Amici curiae brief (housing and legal-aid organizations) — Heights Apartments v. Walz (8th Cir.)

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UNITED STATES DISTRICT COURT 
DISTRICT OF MINNESOTA 
 
Heights Apartments, LLC, and Walnut 
Trails, LLLP, 
Plaintiffs, 
v. 
Tim Walz, in his individual and his official 
capacity as Governor of the State of 
Minnesota, and Keith Ellison, in his 
individual and his official capacity as 
Attorney General of the State of Minnesota, 
and John Doe, 
Defendants. 
 
Court File No. 20-CV-02051 (NEB/BRT) 
 
 
PROPOSED BRIEF OF AMICI CURIAE  
HOME LINE, HOUSING JUSTICE CENTER, LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW, MID-MINNESOTA LEGAL AID, MINNESOTA 
ASSISTANCE COUNCIL FOR VETERANS, MINNESOTA ASSOCIATION OF 
COMMUNITY HEALTH CENTERS, MINNESOTA COALITION FOR THE 
HOMELESS, SOUTHERN MINNESOTA REGIONAL LEGAL SERVICES, 
VIOLENCE FREE MINNESOTA, AND VOLUNTEER LAWYERS NETWORK 
 
 
 
IN SUPPORT OF THE DEFENDANTS 
 
 
 
 
 

 
1
PRELIMINARY STATEMENT 
 
Plaintiffs’ preliminary injunction motion is a misguided effort to stop a Minnesota 
eviction moratorium essential to protecting the health of Minnesotans during the COVID-
19 pandemic.  The grim reality is that lifting the moratorium now would trigger an 
avalanche of evictions that would accelerate the spread of COVID-19 through Minnesota.  
No less an authority than the Centers for Disease Control and Prevention (“CDC”)—the 
leading health protection agency in the United States—has concluded that “in the absence 
of state and local protections” such as Minnesota’s eviction moratorium “as many as 30-
40 million people in America” would be forced from their homes by “a wave of 
evictions” that would multiply the spread of COVID-19 because a “large portion of those 
who are evicted may move into close quarters in shared housing or . . . become 
homeless.”1  As the Star Tribune reported just this past weekend, “COVID-19 has put 
Minnesota in a ‘desperate and dangerous place’ with case counts soaring, the death toll 
climbing and fears growing that hospitals could become overwhelmed if the trend isn’t 
restrained.2  Dr. Michael Osterholm, the director of the University of Minnesota’s Center 
for Infectious Disease Research and Policy, has warned Minnesotans: “The dark days of 
 
1 CDC, Temporary Halt in Residential Evictions to Prevent the Further Spread of 
COVID-19, 85 Fed. Reg. 55,292 (Sept. 4, 2020), available at  
https://www.federalregister.gov/documents/2020/09/04/2020-19654/temporary-halt-in-
residential-evictions-to-prevent-the-further-spread-of-covid-19. 
 
2 Christopher Snowbeck, Minnesota in ‘Desperate and Dangerous’ Place with COVID-
19, Star Tribune (November 14, 2020) (quoting Kris Ehresmann, Minnesota’s director for 
infectious diseases), available at https://www.startribune.com/minnesota-in-desperate-and-
dangerous-place-with-covid-19/573079741/. 
 

 
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the pandemic are about to descend upon us.”3  In other words, this is not the time to end 
the eviction moratorium.  This is the time when Minnesota needs the eviction moratorium 
the most.   
 
Plaintiffs themselves admit that “[t]here can be no doubt that the COVID-19 
pandemic facing the country and the State of Minnesota has presented a grave situation 
for the past six months and will for the foreseeable future.”  (Dkt. No. 6 at 1.)  See also 
id. at 34 (“Plaintiffs do not doubt the severity of The Pandemic, its profound effects on 
the citizens of Minnesota, or the fact that Defendants as officers of the State have reason 
to make all constitutional efforts to prevent harm to the State’s citizens to the extent 
possible.”).  Inexplicably, however, Plaintiffs contend that a preliminary injunction is 
appropriate because the State’s eviction moratorium is “essentially financial” and 
unrelated to the government’s interest in protecting public health.  (Id. at 2, 34-35.)  
Plaintiffs could not be more mistaken.  The Governor’s original eviction moratorium 
order—Emergency Executive Order 20-14 (“EO 20-14”)—expressly connects the 
eviction moratorium with control of the spread of the virus:  “[D]uring the COVID-19 
peacetime emergency in particular, losing housing endangers the public peace, health, 
and safety of all Minnesotans. . . .  Restricting evictions is a vital tool to keep 
Minnesotans in their homes to mitigate the community spread of COVID-19 in 
 
3 Jeremy Olson, Minnesota Officials Hoping for COVID-19 Wake-Up Call, Star Tribune 
(Oct. 18, 2018), available at https://www.startribune.com/minnesota-health-officials-
now-hoping-for-a-virus-wakeup-call/572784572/. 
 

 
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Minnesota and nationwide.”4  And the CDC has explicitly endorsed eviction moratoria as 
a critical public health measure for controlling the spread of the virus: “In the context of a 
pandemic, eviction moratoria—like quarantine, isolation, and social distancing—can be 
an effective public health measure utilized to prevent the spread of communicable 
disease.”5  This is because “evictions threaten to increase the spread of COVID-19 as 
they force people to move, often in close quarters in new shared housing setting with 
friends or family, or congregate settings such as homeless shelters.”6   
 
For the reasons stated in this amicus brief and the State’s opposition papers, the 
eviction moratorium is a proper use of the Governor’s powers to protect Minnesotans at a 
time of an enormous public health emergency.  See Jacobson v. Mass., 197 U.S. 11 
(1905) (state has broad regulatory discretion “to protect itself against an epidemic of 
disease which threatens the safety of its members”); see also see also Block v. Hirsch, 
256 U.S. 135, 156 (1921) (Holmes, J.) (upholding eviction restrictions against 
constitutional challenge based on “exigency” of crisis posing a “danger to public 
health”); South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (Roberts, 
C.J., concurring) (“[W]hen public officials ‘undertake[] to act in areas fraught with 
medical and scientific uncertainties,’ their latitude ‘must be especially broad.’” (citation 
 
4 State of Minnesota Emergency Executive Order 20-14, Suspending Evictions and Writs 
of Recovery During the COVID-19 Peacetime Emergency (Mar. 23, 2020) (“EO 20-14”), 
available at https://mn.gov/governor/assets/EO%2020-14%20Filed_tcm1055-
424508.pdf. 
 
5 CDC, Temporary Halt in Residential Evictions, 85 Fed. Reg. 55,292.   
 
6 Id.  

 
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omitted).).  Amici urge the Court to (1) apply the U.S. Supreme Court’s Jacobson 
doctrine to reject Plaintiffs’ constitutional claims, (2) apply the public interest and 
balance of harm factors under Dataphase to deny Plaintiffs’ preliminary injunction 
motion, and (3) allow Minnesota’s eviction moratorium to stay in place to protect the 
health of Minnesotans during the COVID-19 pandemic. 
STATEMENT OF INTERESTS OF AMICI CURIAE 
 
The amici curiae are public interest organizations that advocate for and assist 
disadvantaged Minnesotans adversely impacted by evictions, homelessness, and the 
COVID-19 pandemic.   
 
HOME Line.  HOME Line is a statewide, nonprofit organization that provides 
free legal advice to residential tenants on all landlord-tenant issues regardless of income 
and works to improve public and private policies relating to rental housing.  Website: 
https://homelinemn.org/. 
 
Housing Justice Center (HJC). HJC is a nonprofit public interest and legal 
organization whose primary mission is to preserve and expand the supply of affordable 
housing for low-income individuals and families.  Website: https://www.hjcmn.org/. 
 
Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee). The 
principal mission of the Lawyers’ Committee is to secure equal justice for all through the 
rule of law, targeting in particular the inequities confronting African Americans and other 
racial and ethnic minorities.   The Lawyers’ Committee is a nonpartisan, nonprofit 
organization, formed in 1963 at the request of President John F. Kennedy to enlist the 

 
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private bar’s leadership and resources in combating racial discrimination and the 
resulting inequality of opportunity.  Website: https://lawyerscommittee.org/. 
 
Mid-Minnesota Legal Aid (MMLA).  MMLA provides free lawyers to those 
who cannot afford them in a broad range of civil cases in thirty counties throughout 
Minnesota, including more than 2,000 families facing eviction from their homes per year. 
Website:  https://mylegalaid.org/. 
 
Minnesota Assistance Council for Veterans (MACV).  MACV is a statewide 
non-profit organization with the mission of ending veteran homelessness.  Website:  
https://mnachc.org/. 
 
Minnesota Association of Community Health Centers (MNACHC). MNACHC 
represents the interests of the state’s 17 community health centers who collectively serve 
nearly 200,000 low-income patients that are adversely impacted by the social drivers of 
health—including lack of affordable housing—that impact their overall health and 
wellness.  Website: https://mnachc.org/. 
 
Minnesota Coalition for the Homeless (MCH).  The mission of the Minnesota 
Coalition for the Homeless is to generate policies, community support and local resources 
for housing and services to end homelessness in Minnesota.  Website: 
https://www.mnhomelesscoalition.org/. 
 
Southern Minnesota Regional Legal Services (SMRLS).  SMRLS is a not-for-
profit law office that provides legal advice and representation in civil cases only to low 
income persons in 33 counties in southern Minnesota, and to agricultural and migrant 
workers in Minnesota and North Dakota.  Website: https://www.smrls.org/. 

 
6
 
Violence Free Minnesota (VFMN): VFMN is a statewide coalition of over 90 
member programs that works to end relationship abuse through several avenues, 
including advocating for housing access and tenant protections, providing direct financial 
support to survivors facing housing instability, and supporting service providers.  
Website:  https://www.vfmn.org/. 
 
Volunteer Lawyers Network (VLN).   VLN provides civil legal services to low-
income people through volunteer attorneys.  Its mission is to protect and promote the 
basic human needs of people in poverty through the power of legal volunteers. Website:  
https://www.vlnmn.org/. 
DISCUSSION 
I. 
LIFTING MINNESOTA’S EVICTION MORATORIUM WOULD 
TRIGGER AN AVALANCHE OF EVICTIONS AND COVID-19 
INFECTIONS. 
 
 
A.   
Minnesota’s Eviction Moratorium Is an Essential Public Health Tool  
 
 
for Controlling the COVID-19 Pandemic. 
 
 
Minnesota’s eviction moratorium is directly connected to the public health 
emergency caused by the COVID-19 pandemic, and Plaintiffs’ assertion to the contrary is 
contradicted by the Governor’s executive order and science.  Executive Order 20-14 is 
crystal clear: “Restricting evictions is a vital tool to keep Minnesotans in their homes to 
mitigate the community spread of COVID-19 in Minnesota and nationwide.”  The Center 
for Disease Control agrees, having issued its own federal eviction moratorium for the 
exact same reason: “In the context of a pandemic, eviction moratoria—like quarantine, 
isolation, and social distancing—can be an effective public health measure utilized to 

 
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prevent the spread of communicable disease.”7  In its agency order Temporary Halt in 
Residential Evictions To Prevent the Further Spread of COVID-19, the CDC provides a 
detailed explanation as to why eviction moratoria like Minnesota’s have prevented a 
series of “multiple outcomes that increase the risk of COVID-19 spread”8: 
• “In the context of the current pandemic, large increases in evictions could have at 
least two potential negative consequences. One is if homeless shelters increase 
occupancy in ways that increase the exposure risk to COVID-19. The other is if 
homeless shelters turn away the recently homeless, who could become 
unsheltered, and further contribute to the spread of COVID-19. Neither 
consequence is in the interest of the public health.”9 
• “A large portion of those who are evicted may move into close quarters in shared 
housing or, as discussed below, become homeless, thus contributing to the spread 
of COVID-19.”10 
• “Eviction moratoria facilitate self-isolation by people who become ill or who are 
at risk for severe illness from COVID-19 due to an underlying medical 
condition.”11  
 
7 CDC, Temporary Halt in Residential Evictions, 85 Fed. Reg. 55,292.   
 
8 Id. 
  
9 Id.  
 
10 Id.  
 
11 Id.  
 

 
8
• “[Eviction moratoria] also allow State and local authorities to more easily 
implement stay-at-home and social distancing directives to mitigate the 
community spread of COVID-19.”12  
• “[H]ousing stability helps protect public health because homelessness increases 
the likelihood of individuals moving into congregate settings, such as homeless 
shelters, which then puts individuals at higher risk to COVID-19. The ability of 
these settings to adhere to best practices, such as social distancing and other 
infection control measures, decreases as populations increase.”13  
• “Unsheltered homelessness also increases the risk that individuals will experience 
severe illness from COVID-19.”14 
• “These public health risks may increase seasonally. Each year, as winter 
approaches and the temperature drops, many homeless move into shelters to 
escape the cold and the occupancy of shelters increases.”15   
 
These CDC findings about the public health efficacy of eviction moratoria track 
closely with findings by Minnesota’s own Department of Health explaining the risk of 
COVID-19 caused by housing instability and displacement: 
• “Housing instability and frequent mobility increase the risk of exposure to 
 
12 Id. 
 
13 Id. 
 
14 Id. 
 
15 Id. 
 

 
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infectious diseases.”16  
• “The prevalence of transmissible diseases is greatest among people experiencing 
homelessness in unsheltered settings.”17  
• “In the context of COVID-19, the risks associated with sleeping outdoors in an 
encampment setting are different than with staying indoors in a congregate setting 
such as an emergency shelter or other congregate living facility.”18  
• “Outdoor settings may allow people to increase distance between themselves and 
others. However, sleeping outdoors often does not provide protection from the 
environment, quick access to hygiene and sanitation facilities, or connection to 
health care.”19 
 
Finally, the conclusions of these public health agencies are confirmed by extensive 
real-time reporting on the surge of infections and deaths in homeless shelters and 
encampments, which frequently describes these settings as a public health “time bomb” 
because of their extreme risk for spreading the virus.20   The fundamental purpose of the 
eviction moratoria is to defuse these COVID-19 time bombs. 
 
16 Minnesota Department of Health, Interim Guidance About People Experiencing 
Homelessness and Encampment Settings (Aug. 7, 2020), available at 
https://www.health.state.mn.us/diseases/coronavirus/unsheltered.pdf. 
  
17 Id. 
 
18 Id. 
 
19 Id. 
 
20 Coronavirus Outbreak Has America’s Homeless at Risk of ‘Disaster,' N.Y. Times, Mar. 
10, 2020, available at https://www.nytimes.com/2020/03/10/us/coronavirus-

 
10
B.    
The Eviction Moratorium Holds Back an Avalanche of Evictions That Would 
 
Endanger Public Health in Minnesota. 
 
 
It has become increasingly clear since spring that Governor Walz’s eviction 
moratorium is the only thing holding back an avalanche of evictions that would bury 
Minnesota in COVID-19 cases and homelessness.  The CDC has concluded that without 
state measures like Minnesota’s eviction moratorium, the pandemic would have triggered 
a “wave of evictions on a scale that is unprecedented in modern times” across the country 
involving “30 to 40 million people.”21   
 
The numbers in Minnesota confirm the massive scale of the eviction threat.  In 
2019, there were 611,160 renter households in Minnesota.22  Census Bureau data from 
 
homeless.html; Nikita Steward, 'It's a Time Bomb': 23 Die as Virus Hits Crowded 
Shelters, N.Y. Times, Apr. 13, 202), available at  
https://www.nytimes.com/2020/04/13/nyregion/new-york-coronavirus-homeless.html; 
Alyse D. Oneto, Samantha Batko, Why Homeless Encampment Sweeps Are Dangerous 
During COVID-19, Urb. Inst. (May 12, 2020), available at 
https://www.urban.org/urban-wire/why-homeless-encampment-sweeps-are-dangerous-
during-covid-
19#:~:text=Because%20it%20is%20more%20likely,access%20to%20resources%20and
%20services;  
Daniella Silva, Ed Ou, Homeless and Facing Winter in Minneapolis: Racial Inequality, 
Skyrocketing Housing Prices and Stagnating Wages Have Created a Dire Problem Here 
and Across the Nation, NBC News (Oct. 9, 2020), available at  
https://www.nbcnews.com/specials/homeless-and-facing-winter-in-minneapolis/. 
 
21 CDC, Temporary Halt in Residential Evictions, 85 Fed. Reg. 55,292; see also Emily 
Benfer, Coronavirus Rent Freezes Are Ending — and A Wave of Evictions Will Sweep 
America, NBC News (June 22, 2020), available at  
https://www.nbcnews.com/think/opinion/coronavirus-rent-freezes-are-ending-wave-
evictions-will-sweep-america-ncna1230916. 
 
22 State of the State’s Housing 2019 - Biennial report of the Minnesota Housing 
Partnership at 4, 6, available at  

 
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October shows that with a similar sample of the 666,277 adults tenants surveyed in 
Minnesota, 245,003 (36.8%) reported they were unemployed, while 334,258 (50.2%) 
reporting loss of employment income.23  57,509 (8.6%) tenants reported that they were 
not currently caught up on rent payments.24  Only 52.5% of Minnesota tenants reported 
high confidence in the ability to pay rent while 124,628 (18.7%) reported no or slight 
confidence in the ability to pay rent.25  
 
With a sample less than 10% of the above Census Bureau 666,277 sample, of the 
57,509 adult tenants who responded to the question about the likelihood of leaving this 
home due to eviction in next two months, 30,367 (52.8%) responded very likely or 
somewhat likely.26  When multiplied by 10 to account for the number of tenants in 
Minnesota, the number of adult tenants at risk of eviction is 303,670.27  The Census data 
 
http://www.mhponline.org/images/stories/images/research/SOTS-
2019/2019FullSOTSFinal-small.pdf. 
 
23 U.S. Dept. of Commerce, Census Bureau Pulse Survey, Table 1b. Last Month's 
Payment Status for Renter Occupied Housing Units, by Select Characteristics: Minnesota 
(Oct. 21, 2020), available at 
https://www.census.gov/data/tables/2020/demo/hhp/hhp16.html#tables. 
 
24 Id. 
 
25 Id., Table 2b.Confidence in Ability to Make Next Month’s Payment for Renter 
Occupied Housing Units, by Select Characteristics: Minnesota, available at available at 
https://www.census.gov/data/tables/2020/demo/hhp/hhp16.html#tables. 
 
26 Id., Table 3b. Likelihood of Having to Leave this House in Next Two Months Due to 
Eviction, by Select Characteristics: Minnesota, available at 
https://www.census.gov/data/tables/2020/demo/hhp/hhp16.html#tables. 
 
27 Lawrence McDonough, Housing Issues in the Justice Tsunami: Legal Issues Now and 
When Minnesota Reopens, at 22 (Nov. 12, 2020,) available at 

 
12
is consistent with academic estimates. Stout Risius Ross estimates that 127,000-160,000 
Minnesota tenants currently are at risk of eviction due to unpaid rent.28  
Estimates vary on how many eviction cases could be filed if the eviction 
suspension ended December 31, 2020.  The Aspen Institute concluded the risk of eviction 
at 30% renter unemployment for Minnesota on December 31, 2020 would be 281,085 
tenants.29  As noted above, the Census survey found a 36.8% unemployment rate for 
Minnesota tenants.30  Stout Risius Ross estimated 59,000-74,700 evictions.31  Even a 
more conservative calculation puts the number of potential eviction cases at 13,330.32  
 
http://povertylaw.homestead.com/files/Reading/Housing_Issues_in_the_Justice_Tsunami
.pdf. 
 
28 Stout Risius Ross, LLC, Estimation of Households Experiencing Rental Shortfall and 
Potentially Facing Eviction, available at  
https://app.powerbi.com/view?r=eyJrIjoiNzRhYjg2NzAtMGE1MC00NmNjLTllOTMtYj
M2NjFmOTA4ZjMyIiwidCI6Ijc5MGJmNjk2LTE3NDYtNGE4OS1hZjI0LTc4ZGE5Y2
RhZGE2MSIsImMiOjN9. 
 
29 K. McKay, Z. Neumann & S. Gilman, 20 Million Renters Are at Risk of Eviction; 
Policymakers Must Act Now to Mitigate Widespread Hardship (The Aspen Institute June 
19, 2020) 
https://www.aspeninstitute.org/blog-posts/20-million-renters-are-at-risk-of-eviction/. 
 
30 U.S. Dept. of Commerce, Census Bureau Pulse Survey, Table 1b. Last Month's 
Payment Status for Renter Occupied Housing Units, by Select Characteristics: Minnesota 
(Oct. 21, 2020), available at 
https://www.census.gov/data/tables/2020/demo/hhp/hhp16.html#tables. 
 
31 Stout Risius Ross, LLC, Estimation of Households Experiencing Rental Shortfall and 
Potentially Facing Eviction, available at 
https://app.powerbi.com/view?r=eyJrIjoiNzRhYjg2NzAtMGE1MC00NmNjLTllOTMtYj
M2NjFmOTA4ZjMyIiwidCI6Ijc5MGJmNjk2LTE3NDYtNGE4OS1hZjI0LTc4ZGE5Y2
RhZGE2MSIsImMiOjN9. 
 
32 Lawrence McDonough, Housing Issues in the Justice Tsunami: Legal Issues Now and 
When Minnesota Reopens, at 28 (Nov. 12, 2020,) available at  

 
13
These estimates are profound because even experts’ lower estimates are equivalent to 
nearly ten months’ worth of eviction actions filed in the space of just a few weeks.   
 
Equally alarming, the wave of evictions and increased infections would 
disproportionately impact communities of color, who are more likely to rent than any 
other group.  As of 2018, Minnesota has “the 5th highest homeownership disparity 
between white/non-Hispanic households and households of color.”33  Minnesota is 
comprised of 20% people of color,34 and of that group, 58% are renters.35   
 
People of color are faring poorly in the pandemic economy.  In September 2020, 
the 6-month moving average unemployment rate for Minnesota was 7.8%, up from 2.8% 
in September 2019. The rate for Minnesota African Americans was 16.5%, twice the 
overall rate and over three times higher the 5.1% rate for African Americans in 
 
http://povertylaw.homestead.com/files/Reading/Housing_Issues_in_the_Justice_Tsunami
.pdf. 
 
33 Minnesota Housing, Affordable Housing Plan: October 2018-September 2019, at 8, 
available at 
http://www.mnhousing.gov/sites/Satellite?blobcol=urldata&blobheadername1=Content-
Type&blobheadername2=Content-Disposition&blobheadername3=MDT-
Type&blobheadervalue1=application%2Fpdf&blobheadervalue2=attachment%3B+filena
me%3DMHFA_1044198.pdf&blobheadervalue3=abinary%3B+charset%3DUTF-
8&blobkey=id&blobtable=MungoBlobs&blobwhere=1533150601602&ssbinary=true. 
 
34 Minnesota State Demographic Center, Age, Race, & Ethnicity, available at 
https://mn.gov/admin/demography/data-by-topic/age-race-ethnicity/.’ 
 
35 Minnesota Housing Partnership, State of the State’s Housing 2019: Biennial Report of 
the Minnesota Housing Partnership (2019), at 8, available at 
http://www.mhponline.org/images/stories/images/research/SOTS-
2019/2019FullSOTSPrint_Final.pdf. 
 

 
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September 2019.36  Moreover, Census Bureau data from October show that only 23.1% 
of African American renters had high confidence about ability to pay next month’s rent,37 
and 63.3% of Hispanic or Latino Americans responded they were very likely or 
somewhat likely to leave home due to eviction in the next two months.38 
 
Already the CDC reports that COVID-19 has a disproportionate impact on racial 
and ethnic minorities.39  African Americans, Hispanics and Latinos contract the disease at 
over 2.5 times the rate of Whites and require hospitalization over 4.5 times as often.40  
The mortality rate for African-Americans is 2.1 times higher than it is for Whites.41 
Factors contributing to this disparity include: (1) jobs that require close personal contact; 
 
36 Alternative Measures of Unemployment, Table 5 (Minnesota Department of 
Employment and Economic Development - viewed Nov.12, 2020), available at 
https://mn.gov/deed/data/current-econ-highlights/alternative-unemployment.jsp. 
 
37 U.S. Dept. of Commerce, Census Bureau Pulse Survey, Table 2b. Confidence in 
Ability to Make Next Month's Payment for Renter Occupied Housing Units, by Select 
Characteristics: Minnesota (Oct. 21, 2020), available at  
https://www.census.gov/data/tables/2020/demo/hhp/hhp16.html#tables. 
 
38 Id., Table 3b. Likelihood of Having to Leave this House in Next Two Months Due to 
Eviction, by Select Characteristics: Minnesota (United States Department of Commerce 
Oct. 21, 2020), available at  
https://www.census.gov/data/tables/2020/demo/hhp/hhp16.html#tables. 
 
39 CDC, Health Equity Considerations and Racial and Ethnic Minority Groups (July 24, 
2020), available at https://www.cdc.gov/coronavirus/2019-ncov/community/health-
equity/race-ethnicity.html. 
 
40 CDC, COVID-19 Hospitalization and Death by Race/Ethnicity (Aug. 18, 2020), 
available at https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-
discovery/hospitalization-death-by-race-ethnicity.html. 
 
41 Id. 
 

 
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(2) jobs that do not provide paid sick days, so workers “cannot afford to miss work, even 
if they’re sick;” and (3) higher rates of COVID-related unemployment.42   
 
In Minnesota, the Star Tribune reports that “nearly 16,000 of the confirmed cases 
of COVID-19 have been in Black residents.  That means African Americans account for 
6% of the state population and 19% of the confirmed cases. Hispanic residents account 
for 5% of the state population but 17% of confirmed cases.”43  A statistical analysis 
conducted by the New York Times in June shows that in Hennepin and Ramsey Counties 
Black and Latino residents had infection rates over 4 times higher than infection rates 
among white residents.44 
In sum, Minnesota’s eviction moratorium is preventing a disastrous increase in 
evictions and COVID-19 infections that would disproportionately impact renters of color.  
It is hard to imagine a state action more important to the public health and the public 
interest —and less deserving to be a target of a preliminary injunction motion.   
C.  
Lifting the Eviction Moratorium Would Overwhelm Housing Courts. 
In addition to the devastating public health impact lifting the eviction moratorium 
 
42 Id. 
 
43 Joe Carlson, COVID Widens Racial Gap in Minnesota’s Health Care System, Star 
Tribune (Sept. 14, 2020), available at https://www.startribune.com/covid-widens-racial-
gap-in-minnesota-s-health-care-system/572402602/. 
 
44 Richard A. Oppel, Jr. et al., The Fullest Look Yet at the Racial Inequity of Coronavirus, 
N.Y. Times (Jul. 5, 2020), available at  
https://www.nytimes.com/interactive/2020/07/05/us/coronavirus-latinos-african-
americans-cdc-data.html. 
  

 
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would have on Minnesotans, Minnesota’s housing court system would be overwhelmed 
by an abrupt end to the eviction moratorium.  The effects would include increased chance 
of  COVID-19 exposure for  those attending housing court, and unfair technology 
challenges for those disadvantaged tenants participating remotely.45  
In pre-pandemic times the Fourth Judicial District—which covers Hennepin 
County—heard and decided around 6,500 cases per year, or around 120 cases per week.46 
Amici know from their experience representing tenants that the Fourth District processed 
families facing eviction in 45-case increments. It convened “cattle call” eviction 
calendars, with one judicial officer hearing all 45 cases in the space of an afternoon. 
Often, nearly 100 people vied for fewer than 50 chairs in the same courtroom.  
Obviously, this cattle call approach to eviction proceedings is untenable during a 
pandemic that turns any significant inside gathering into a potential superspreader event.   
Yet state law gives courts little room to process the predicted wave of eviction 
cases in a more humane or procedurally fair way.  Minnesota currently has one of the 
fastest eviction process in the country. State law requires cases be heard between seven 
 
45 “Data from the last American Community Survey show more than 330,000 Minnesotans 
lack home internet connectivity—and a similar number don’t even have computers—
making remote work, continuing education and accessing basic government services in a 
time of pandemic even more challenging.”  Jeff Hargarten, A Look at Minnesota’s Digital 
Divide During a Pandemic, Star Tribune (Apr. 15, 2020), available at 
https://www.startribune.com/covid-19-isolation-hits-harder-for-300-000-minnesotans-
who-don-t-have-internet/568966911/. 
 
46 HOME Line, Evictions in Greater Minnesota, at 4 (May 2018), available at 
https://homelinemn.org/wp-content/uploads/2018/06/Evictions-in-Greater-Minnesota-
Report-with-Appendix.pdf. 
 

 
17
and 14 days after filing. Minn. Stat. § 504B.321, subd. 1(d) (2018). The statute presumes 
cases will be decided at the same cattle call hearing when people arrive. Id. § 
504B.335(a). At most, a family facing eviction can get a six-day continuance to prepare 
for trial. Id. § 504B.341(a). Most families do not have access to legal counsel. After the 
eviction summons appears there is no time to access emergency financial resources, even 
if the family qualifies: That process takes, on average, more than 24 days to complete. 
The turnaround time on applications would surely skyrocket if governments are required 
to process thousands more applications. 
The moratorium has also kept at bay a specific group of landlords who evict nearly 
every tenant who rents from them.47  These landlords collect large money deposits from 
families desperate for housing—a price of admission they often need to scrape together 
from families, friends, churches, nonprofit organizations, and government entities. 
Evicting one family allows them to illegally keep the deposit and then re-run the cycle 
with another, and another.  In Hennepin County, home-churning scams 
disproportionately impact communities of color.48  In North Minneapolis, for example a 
historically low-income community of color, over 45% of renters had eviction filings 
 
47 See Minneapolis Innovation Team, Evictions in Minneapolis, at 17 (July 2016) 
(showing eviction filing rates per year in excess of total number of rental units), available 
at https://www.housinglink.org/docs/default-
source/MainLibrary/evictionsinminneapolis2016.pdf. 
 
 
48 See Brittany Lewis, The Illusion of Choice: Eviction and Profit in North Minneapolis, 
available at  http://evictions.cura.umn.edu/illusion-choice-evictions-and-profit-north-
minneapolis-full-report. 
 

 
18
brought against them between 2013 and 2015.49  The eviction moratorium has stalled the 
usual business practice, providing protection to communities like the North Minneapolis 
from practices that would cause displacement and exposure to the virus.   
II. 
PLAINTIFFS’ INJUNCTION MOTION IS UNTENABLE GIVEN  
       
 
THE ENORMOUS PUBLIC HEALTH BENEFIT OF THE EVICTION 
 
MORATORIUM. 
 
 
Below, amici put into legal context the enormous public health benefit of 
Minnesota’s eviction moratorium:    
 
First, the U.S. Supreme Court long ago recognized in Jacobson v. Massachusetts 
that a state government has broad constitutional latitude “to protect itself against an 
epidemic of disease which threatens the safety of its members.” 197 U.S. 11, 25 (1905). 
As the Eighth Circuit recently stated in In re Rutledge in affirming an emergency state 
law enacted in response to the COVID-19 pandemic under Jacobson:  “[T]he bottom line 
is this: when faced with a society-threatening epidemic, a state may implement 
emergency measures that curtail constitutional rights so long as the measures have at 
least some ‘real or substantial relation’ to the public health crisis and are not ‘beyond all 
question, a plain, palpable invasion of rights secured by the fundamental law.’” 956 F.3d 
1018, 1028 (8th Cir. 2020) (citing In re Abbott, 954 F.3d 772, 784-85 (5th Cir. 2020)). 
Just last month, Chief Justice Roberts issued a concurring opinion citing Jacobson in 
upholding a California COVID-19 regulation in which he stated that “[w]hen public 
officials ‘undertake[] to act in areas fraught with medical and scientific uncertainties,’ 
 
49 Evictions in Minneapolis, at 6. 

 
19
their latitude ‘must be especially broad.’”  S. Bay United Pentecostal Church v. Newsom, 
140 S. Ct. 1613, 1613 (2020) (quoting Marshall v. United States, 414 U. S. 417, 427 
(1974)).  He also emphasized that this principle “is especially true where, as here, a party 
seeks emergency relief in an interlocutory posture, while local officials are actively 
shaping their response to changing facts on the ground.”  Id. at 1614. 
 
In this case, there can be no question that the eviction moratorium has “some real 
or substantial relation to the public health crisis” under Jacobson.50  As explained above, 
EO 20-14 is explicit about this relationship—stating that the moratorium is “a vital tool to 
keep Minnesotans in their homes to mitigate the community spread of COVID-19.”  
Moreover, as detailed above, both the CDC and the Minnesota Department of Health 
have issued findings that fully support Minnesota’s rationale for issuing the eviction 
moratorium.  Thus, the eviction moratorium easily passes constitutional muster under 
Jacobson, and the preliminary injunction can be promptly rejected because Plaintiffs 
“seek[] emergency relief in an interlocutory posture[]” while state officials “are actively 
shaping their response to changing facts on the ground.”  S. Bay United Pentecostal 
Church, 140 S. Ct. at 1614. 
 
Second, the foregoing discussion leaves no doubt that the Dataphase factors of 
balance of harms and public interest require denial of Plaintiffs’ preliminary injunction 
motion.  The balance of harms and the public interest factors “merge when the 
 
50 The State’s opposition brief comprehensively explains why there are no constitutional 
violations in the first place, and certainly no “plain, palpable invasion of rights secured by 
the fundamental law.”  (Dkt. No. 12, at 16-21.) 

 
20
Government is the opposing party."  Nken v. Holder, 556 U.S. 418, 435, 129 S. Ct. 1749, 
173 L. Ed. 2d 550 (2009).  The Eighth Circuit has also emphasized that courts should 
issue a preliminary injunction only after paying particular attention to the “public 
consequences in employing the extraordinary remedy of an injunction.”  Winter v. Nat. 
Res. Def. Council, Inc., 555 U.S. 7, 7 (8th Cir. 2008).  As discussed above, the public 
consequence of enjoining the eviction moratorium would be an avalanche of evictions 
causing a surge of infections in vulnerable communities in the middle of winter at a time 
when Minnesota is already entering the “dark days of the pandemic.”  In other words, the 
difference between having an eviction moratorium and not having one is literally a matter 
of life and death.  As one district court aptly put it: “The harm to plaintiffs if the Order is 
enforced pales in comparison to the dangers to society if it is not.  The record clearly 
reveals how virulent and dangerous COVID-19 is, and how many people have died and 
continue to die from it.”  Elim Romanian Pentecostal Church v. Pritzker, No. 20 C 2782, 
2020 U.S. Dist. LEXIS 84348, at *16 (N.D. Ill. May 13, 2020).51   
 
51 See Cassell v. Snyders, No. 20 C 50153, 2020 U.S. Dist. LEXIS 77512, at *41-44 
(N.D. Ill. May 3, 2020) (“Taking into account COVID-19's virulence and lethality, 
together with the State's efforts to protect avenues for religious activity, the Court finds 
that equitable considerations, including the promotion of the public interest, weigh 
heavily against the entry of the temporary restraining order and preliminary injunction 
that Plaintiffs seek.”); Hayes v. Oregon, No. 1:20-cv-01332-CL, 2020 U.S. Dist. LEXIS 
144813, at *4-9 (D. Or. Aug. 12, 2020) (“The harm to the public in granting such a TRO, 
which may result in more transmissions of COVID-19 and more cases of serious illness 
and death, far outweighs any potential harm identified in the complaint.”); Auracle 
Homes, LLC v. Lamont, No. 3:20-cv-00829 (VAB), 2020 U.S. Dist. LEXIS 141500, at 
*53-54 (D. Conn. Aug. 7, 2020) (“given the nature of this pandemic, the balance of the 
equities and the public interest favor denying a preliminary injunction” against the 
Connecticut eviction moratorium). 

 
21
CONCLUSION 
 
 
For the foregoing reasons, Amici curiae respectfully ask the Court to (1) apply the 
U.S. Supreme Court’s Jacobson doctrine to reject Plaintiffs’ constitutional claims, (2) 
apply the public interest and balance of harm factors under Dataphase to deny Plaintiffs’ 
preliminary injunction motion. and (3) allow Minnesota’s eviction moratorium to stay in 
place to protect the health of Minnesotans during the COVID-19 pandemic. 
Dated:  November 16, 2020 
 
 
 
 
 
By   /s/ James W. Poradek 
 
James W. Poradek (#0290488) 
Housing Justice Center 
Northwestern Building 
275 East Fourth Street, Suite 605 
Saint Paul, MN 55101 
Phone: 612-723-0517 
jporadek@hjmcmn.org 
 
Attorney for Amici Curiae 
By   /s/ Lawrence R.  McDonough 
 
   Lawrence R. McDonough (#151373) 
   1161 Palace Avenue 
   Saint Paul, MN 55105 
   Phone: 651-398-8053 
   mcdon056@umn.edu 
 
Attorney for Lawyers’ Committee for 
Civil Rights Under Law 
 
 
 

 
22
 
WORD COUNT COMPLIANCE CERTIFICATE 
 
 
I certify that this memorandum complies with the type-volume limitation of Local 
Rule 7.1(f) and the type-size limitation of Local Rule 7.1(h). The memorandum has 5041 
words of type, in size 13 font. The memorandum was prepared using Microsoft Word 
Version 16.42, and the word count includes all text, including headings, footnotes, and 
quotations. 
 
Dated:  November 16, 2020 
 
 
 
 
 
By   /s/ James W. Poradek 
 
James W. Poradek (#0290488) 
Housing Justice Center 
Northwestern Building 
275 East Fourth Street, Suite 605 
Saint Paul, MN 55101 
Phone: 612-723-0517 
jporadek@hjmcmn.org 
 
Attorney for Amici Curiae

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