Court filing

Defendants' motion for judgment on the pleadings brief — Heights Apartments v. Walz (8th Cir.)

Filed September 2, 2022 in Heights Apartments v. Walz; one of 14 filings from this case.

Record facts

Court	U.S. District Court for the District of Minnesota
Filed	2022-09-02

U.S. District Court for the District of Minnesota · No. 0:20-cv-02051-NEB-DJF · Doc. 58 · 2022-09-02 · Docket on CourtListener

Full text

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Heights Apartments, LLC, and Walnut
Trails, LLLP,

Plaintiffs,

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)

DEFENDANTS’ MEMORANDUM
IN SUPPORT OF MOTION FOR
JUDGMENT ON THE PLEADINGS

INTRODUCTION

The Eighth Circuit Court of Appeals reversed this Court’s dismissal of Plaintiff
Heights Apartments’ (“Heights”) claims and remanded the case to this Court for further
proceedings. Heights’ remaining claims, however, are not viable as a matter of law
because Defendants are immune from claims for money damages under the Eleventh
Amendment and the doctrine of qualified immunity. Aside from immunity, recent case
law has also made clear that there is no individual liability under either the Takings
Clause or the Contracts Clause and that there is no cause of action under Section §1983
for violations of the Contracts Clause. Accordingly, because these deficiencies are clear
on the face of the pleadings and do not require additional discovery to prove or disprove,
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judgment on the pleadings is appropriate. The Court should grant Defendants’ motion
and dismiss Heights’ remaining claims in their entirety and with prejudice.
FACTS
I.
THE STATE OF MINNESOTA RESPONDS TO AN UNPRECEDENTED PUBLIC
HEALTH CRISIS.
It is undisputed that COVID-19, the infectious disease caused by a newly-
discovered coronavirus, has created a public health crisis and has caused adverse impacts
on many, if not all, Minnesotans. (See Compl. ¶ 1, Doc. 1.) In response to the COVID-
19 public health crisis, Governor Walz issued a peacetime emergency declaration on
March 13, 2020. (Compl. ¶ 8.) See also Emergency Executive Order (“Emergency EO”
or “EO”) 20-01.1 Minnesota engaged in a comprehensive plan to combat COVID-19
aimed at slowing the spread of the disease, protecting the capacity of the State’s medical
system to respond to the disease, and ensuring the continued operation of critical sectors
to protect the public’s access to necessary services and supplies. See, e.g., Emergency
EOs 20-02 through 20-63, 20-66, 20-70, 20-73 through 20-76, 20-78 through 20-86, 20-
89, 20-92, 20-94 through 20-107, 21-01 through 21-04, 21-07, 21-11, 21-12, 21-15, 21-
16, 21-17, 21-19, 21-21, 21-22, 21-23, and 21-24. (See also Compl. ¶ 9, Doc. 1.)
Both the pandemic and the continuing government response are events without
precedent in at least the last century and perhaps in recorded history. Indeed, Heights
says in its Complaint that it “fully recognize[s] the depths of the crisis facing the State,

1 All of Minnesota’s Emergency Executive Orders regarding COVID-19 are available online at
https://www.leg.state.mn.us/lrl/execorders/eoresults?gov=44 [PERMA: https://perma.cc/EV34-
32NG].
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while also recognizing the hundreds of billions of dollars the state and federal
governments have invested in ensuring that citizens are able to provide for necessities for
themselves and their families, including for housing.” (Compl. Prayer for Relief,
Doc. 1.)
II.
GOVERNOR WALZ TEMPORARILY LIMITS EVICTIONS TO LIMIT SPREAD OF
VIRUS.
Like the federal government and many state and local governments, Minnesota
temporarily limited the ability of residential property owners to evict tenants. See, e.g.,
Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID-19, 85
Fed. Reg. 55292, 55292-95 (Sept. 4, 2020). On March 23, 2020, Governor Walz issued
Emergency EO 20-14. (Compl. ¶ 13, Compl. Exhs. 1-3, Doc. 1.) Recognizing the
economic consequences of the pandemic as well as the connection between housing
stability and control of community spread of the virus, EO 20-14 temporarily limited the
circumstances in which property owners could terminate residential leases or use the
statutory eviction procedure. (Compl. Exh. 1.) Noting similar measures by the federal
government and at least two dozen other states, the Governor stated:
[p]ublic health and safety are promoted by stabilizing households which,
through no fault of their own, may suddenly have the inability to afford
rent. Providing a temporary moratorium on eviction actions allows these
households to remain stably housed as they safeguard the health of
themselves, their families, and other Minnesotans.

(EO 20-14 at 2, Compl. Exh. 1.) EO 20-14 excepted eviction cases in which the tenant
“seriously endangered the safety of other residents” and for violations of Minnesota
Statutes § 504B.171, subd. 1, which provides that a tenant loses the right to possession of
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the property by engaging in illegal activity related to drugs, firearms, prostitution, or
stolen goods on the property. Id. EO 20-14 specifically provided that it did not affect a
tenant’s continuing obligation to pay rent. Id. On June 5, 2020, the Governor issued
Emergency EO 20-73 to clarify the application of EO 20-14 “to situations where a tenant
seriously endangers the safety of others who are not residents.” (Compl. Exh. 2 at 1,
Doc. 1.)_
On July 14, 2020, Governor Walz issued Emergency EO 20-79, which rescinded
EO 20-14 and EO 20-73 and took effect on August 4, 2020. (Compl. Exh. 3.) EO 20-79
created additional exceptions to the eviction moratorium, including an exception for
when a tenant violates a lease by “significantly damag[ing] the property.” (Id.). EO 20-
14, 20-73, and 20-79 are collectively referred to herein as the “Orders.” See also Compl.
¶ 23 (Referring to the Orders collectively).2
In June 2021, Governor Walz and the Legislature agreed to a phaseout of these
emergency eviction restrictions. Briana Bierschbach and Stephen Montemayor,
Minnesota legislators reach deal on eviction moratorium, Star Tribune (June 14, 2021).
See Act of June 29, 2021, ch. 8, art. 5, §§ 1-4, 2021 Minn. Laws 1st Spec. Sess. In
addition, when Governor Walz and the Legislature reached an agreement on separate
legislation that terminated Governor Walz’s COVID-19 peacetime emergency

2 One researcher estimated that that the Orders saved 2,040 lives and prevented 111,000 COVID-
19 infections through January 4, 2021. Larry McDonough, Pandemic Eviction Claims and
Defenses and Other Housing Claims in Minnesota, p. 28 (updated and revised February 2022)
(available
at
https://povertylaw.homestead.com/files/Reading/Pandemic_Eviction_Claims_and_Defenses_and
_Other_Housing_Claims_in_Minnesota.pdf
(last
visited
Sept. 2,
2022)
(PERMA:
https://perma.cc/9AST-QD33).
CASE 0:20-cv-02051-NEB-DJF Doc. 58 Filed 09/02/22 Page 4 of 21

declaration, effective July 1, 2021, the Orders became null and void. See Act of June 30,
2021, ch. 12, art. 2, § 23, 2021 Minn. Laws 1st Spec. Sess. Meanwhile, the State made
hundreds of millions of dollars in rental assistance available to Minnesota tenants and
landlords. See RentHelpMN Dashboard, Minnesota Housing Finance Agency,
https://www.mnhousing.gov/renthelpmn-dashboard (Last visited September 2, 2022)
[Perma: https://perma.cc/KQ8M-5GZA].
III.
THE EIGHTH CIRCUIT REMANDS HEIGHTS’ CLAIMS FOR MONEY DAMAGES
UNDER THE TAKINGS AND CONTRACTS CLAUSES.
Heights and another landlord sued Governor Walz and Attorney General Ellison in
September 2020, seeking to enjoin the Orders and to recover money damages for alleged
harm. (Compl., Doc. 1.) Heights pleaded substantive claims under the Petition Clause of
the First Amendment, the Contracts Clause, the Takings Clause, and the Due Process
Clause of the Fourteenth Amendment, as well as separate counts for allegedly “ultra vires
acts” under state law, for violations of 42 U.S.C. § 1983, and for declaratory judgment.
(Compl. Doc. 1.) The district court dismissed all of the claims and denied the Landlords’
request for an injunction as moot. (Doc. 37.)
Heights appealed without the other landlord. (Doc. 40.) The Eighth Circuit
affirmed in part and reversed in part. First, the court dismissed as moot Heights’ claims
for declaratory and injunctive relief because the EOs had been voided by legislation
signed into law by the Governor. Heights Apartments, LLC v. Walz, 30 F.4th 720, 726
(8th Cir. 2022). The court also affirmed the dismissal of Heights’ claims under the
Petition Clause and the Due Process Clause. Id. at 732, 735-36. As to Heights’ Contracts
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Clause claim, the court assumed without deciding that there is a § 1983 cause of action
for a Contracts Clause claim. Id. at 728. The Court then went on to hold that Heights
pleaded a plausible Contracts Clause claim, becoming the first federal court in the
country to allow such a claim to proceed. Id. at 731-32. The Court also held that Heights
had pleaded viable claims for physical and regulatory takings, relying on U.S. Supreme
Court case law issued after the Orders were set to expire. Id. at 734-35.

The Eighth Circuit later denied Defendants’ petition for rehearing en banc, with
four of the court’s 11 active judges voting to grant the petition. Heights Apartments, LLC
v. Walz, 39 F.4th 479 (8th Cir. 2022). Dissenting from the denial of rehearing, Judge
Colloton criticized the panel decision for misreading Supreme Court precedent and for
being “an outlier among federal courts.” Id. at 481 (8th Cir. 2022) (Colloton, J.,
dissenting). On the same day that Defendants’ petition for rehearing en banc was denied,
the Eighth Circuit decided Glow In One Mini Golf, LLC v. Walz, determining that the
Governor was entitled to qualified immunity on the takings claim of several businesses
that were subject to emergency executive orders. 37 F.4th 1365, 1373 (8th Cir. 2022).
Defendants now bring this motion for judgment on the pleadings to terminate Heights’
remaining claims.
ARGUMENT
I.
RULE 12(C) AUTHORIZES DISMISSAL OF CLAIMS THAT ARE NOT VIABLE AS A
MATTER OF LAW.
On a motion for judgment on the pleadings, the Court should “accept the plaintiff's
factual allegations as true and construe all reasonable inferences in favor of the plaintiff.”
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Saterdalen v. Spencer, 725 F.3d 838, 841 (8th Cir. 2013) (affirming judgment on the
pleadings based on qualified immunity). “While courts generally may not consider
materials outside the pleadings in deciding whether to grant a motion for judgment on the
pleadings, courts may consider some public records, materials that do not contradict the
complaint, or materials that are necessarily embraced by the pleadings.” Id. (internal
quotations omitted). The Court “do[es] not accept legal conclusions phrased as fact
allegations.” Buckley v. Hennepin Cnty., 9 F.4th 757, 760 (8th Cir. 2021) (affirming
judgment on the pleadings based on qualified immunity).
Judgment on the pleadings is appropriate here because neither of Heights’ two
remaining substantive claims3 -- § 1983 damages claims for alleged violations of the
Contracts Clause and Takings Clause -- are viable as a matter of law, and no amount of
discovery will change the outcome. First, the only relief available on remand under the
remaining claims is money damages, but Heights may not recover damages. Heights’
damages claims against Defendants in their official capacities are barred by the Eleventh
Amendment, and the damages claims against Defendants in their individual capacities are
barred by qualified immunity. Second, Heights’ takings claim also fails for the
independent reason that Heights has the wrong Defendants; neither Defendant can be
individually liable for an allegedly unconstitutional taking or Contracts Clause violation.
Finally, the Contracts Clause claim fails because § 1983 does not provide a remedy for an

3 Count V of Heights’ Complaint is styled as “Section 1983 Claims” against both
Defendant Walz and Defendant Ellison that purports to incorporate Heights’ Contracts
Clause (Count I) and Takings Clause (Count III).
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alleged Contracts Clause violation. Accordingly, because none of Heights’ remaining
claims is viable, judgement on the pleadings is appropriate.
II.
HEIGHTS’ CLAIMS AGAINST DEFENDANTS IN THEIR OFFICIAL CAPACITIES ARE
BARRED BY THE ELEVENTH AMENDMENT.
The Eleventh Amendment bars claims seeking damages from State officials sued
in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099,
87 L.Ed.2d 114 (1985); Hummel v. Minnesota Dep’t of Agric., 430 F. Supp. 3d 581, 587
(D. Minn. 2020). “[D]efendants cannot be sued for money damages under § 1983
because claims against state officials in their official capacities are really suits against the
state and a state is not a person for purposes of a claim for money damages under
§ 1983.” Kruger v. Nebraska, 820 F.3d 295, 301 (8th Cir. 2016). See also Treleven v.
Univ. of Minnesota, 73 F.3d 816, 818 (8th Cir. 1996) (holding that Eleventh Amendment
barred official capacity claims for money damages against University of Minnesota
officials).
The Complaint seeks compensatory relief from Defendants in both their official
and individual capacities. (Compl. Counts I, III, V, Docket 1.) In particular, Count V of
Heights’ Complaint incorporates Heights’ Contracts Clause and Takings claims and seeks
damages against Defendants in their official capacities. (Compl. ¶¶ 70-73, and Prayer for
Relief.) These claims are barred by the Eleventh Amendment. See Montgomery v. City
of Ames, 829 F.3d 968, 973 (8th Cir. 2016) (“[T]he State and its agencies are immune
from suits for damages.”); Gibson v. Ark. Dep’t of Corr., 265 F.3d 718, 720 (8th Cir.
2001). Because money damages are not available against Defendants in their official
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capacities, judgment on the pleadings is appropriate for Heights’ official capacity
claims.4 See Skatemore, Inc. v. Whitmer, 40 F.4th 727 (6th Cir. 2022) (holding Eleventh
Amendment barred takings claim against state governor in her official capacity).
III.
DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY BECAUSE THE
ALLEGATIONS IN THE COMPLAINT DO NOT SHOW A VIOLATION OF CLEARLY
ESTABLISHED LAW.
As Defendants pleaded in their Answer, they are entitled to qualified immunity for
all of the actions alleged in the Complaint. (Doc. 53.) Heights’ Complaint faults the
Governor’s choice to temporarily limit Heights’ ability to evict the tenants of four of its
17 apartment units, while acknowledging the gravity of the public health crisis facing
public officials. (Compl. at ¶¶ 25-34; Doc. 1.) In prior briefing, Heights even suggested
that the Governor could limit evictions in a similar manner to limitations imposed by the
federal government, but criticized the Governor’s alleged failure to tailor the Orders to
the economic consequences of the pandemic. (Plaintiff’s Memorandum in Opposition to
Motion to Dismiss (Doc. 28) (“Pl. Mem.”) pp. 1-2, 22-23.) Defendants’ actions,
however, were undisputedly discretionary, and as such are protected by qualified
immunity unless they violated clearly established law.
Qualified immunity protects discretionary actions taken by public officials unless
those officials violate clearly established law. Whether the law is clearly established is a
legal issue for the Court to decide and can be decided at this stage if Defendants’
entitlement to judgment is clear from the face of the pleadings. The doctrine applies here

4 Heights’ claims for declaratory and injunctive relief have already been dismissed,
leaving only the claims for money damages. Heights, 30 F.4th at 726.
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because, as the Eighth Circuit decided in Glow in One, there is no legal authority that
would have put a reasonable official in Defendants’ position on notice that their conduct
violated clearly established law.
A.
Heights Must Show That Every Reasonable Official In The Position Of
Defendants Would Have Known The EOs Violated The Constitution.
The U.S. Supreme Court has long recognized that “government officials
performing discretionary functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). This doctrine, qualified immunity, applies “when an officer reasonably
believes that his or her conduct complies with the law.” Pearson v. Callahan, 555 U.S.
223, 244 (2009). The Court asks whether (1) the plaintiff has shown the violation of a
constitutional right, and (2) if so, whether the right at issue was “clearly established” at
the time of the incident, such that a reasonable official would have known his conduct
was unlawful. Id. at 232. Courts reviewing a qualified immunity defense may exercise
their “sound discretion” as to which of the two prongs of the analysis to address first.5 Id.

5 Heights’ claims fail both prongs of the qualified immunity analysis for both the
Contracts Clause and the Takings Clause claims. Although the Eighth Circuit panel’s
determination that allegations in the Complaint are sufficient to plead a claim for
violation of the Contracts and Takings Clauses is binding on this Court, the Court did not
address whether the contours of the right were clearly established at any time that the
orders were in effect. Accordingly, this motion focuses on the clearly established prong
of the analysis, which is a different question. See Glow In One Mini Golf, LLC v. Walz,
37 F.4th 1365, 1374 (8th Cir. 2022) (declining to decide whether a taking occurred
because the law was not clearly established “such that Governor Walz would have
understood that his EOs constituted a taking.”). Defendants reserve the right to litigate
(Footnote Continued on Next Page)
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at 236. See also Glow In One Mini Golf, LLC v. Walz, 37 F.4th 1365, 1373 (8th Cir.
2022) (resolving qualified immunity in favor of Governor Walz because contours of
takings claim were not clearly established).
The issue of whether a right is clearly established is a legal one that does not
require discovery. Kulkay v. Roy, 847 F.3d 637, 646 (8th Cir. 2017) (dismissing § 1983
claims on qualified immunity grounds and rejecting argument that district court should
have allowed discovery); Ehlers v. City of Rapid City, 846 F.3d 1002, 1012 n 4 (8th Cir.
2017); Kruger v. Nebraska, 820 F.3d 295, 302 (8th Cir. 2016) (explaining that court was
not required to accept as true assertion that constitutional right was clearly established).
See also First Com. Tr. Co. v. Colt’s Mfg., 77 F.3d 1081, 1083 n.4 (8th Cir. 1996)
(explaining that without a “plausible legal theory,” plaintiffs have “no right to
discovery.”). To show the violation of a clearly established right so as to overcome
qualified immunity, a plaintiff must show “that every reasonable official would [have
understood] that what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658,
664 (2012) (emphasis added) (internal quotations omitted). “[W]hether an official
protected by qualified immunity may be held personally liable for an allegedly unlawful
official action generally turns on the objective legal reasonableness of the action,
assessed in light of the legal rules that were clearly established at the time it was taken.”
Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (internal quotations omitted). The
_________________________________
(Footnote Continued from Previous Page)
these substantive constitutional issues in further proceedings before this Court or on
appeal.
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Court must view the law as it existed when the challenged decisions were made because
public officials cannot be “expected to predict the future course of constitutional law.”
Wilson v. Layne, 526 U.S. 603, 605 (1999).
Authority cited to overcome qualified immunity must also present “similar
circumstances.” White v. Pauly, 137 S. Ct. 548, 552 (2017). The Supreme Court has
“repeatedly told courts not to define clearly established law at too high a level of
generality.” City of Tahlequah, Oklahoma v. Bond, 142 S. Ct. 9, 11 (2021) (per curiam)
(reversing because circuit court did not identify “a single precedent finding a Fourth
Amendment violation under similar circumstances.”); Rivas-Villegas v. Cortesluna, 142
S. Ct. 4, 9 (2021) (per curiam) (reversing denial of qualified immunity because circuit
court failed to identify case law that was “sufficiently similar” to situation faced by
officers). “It is not enough that a rule be suggested by then-existing precedent; the rule’s
contours must be so well defined that it is clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” City of Tahlequah, 142 S. Ct. at 11 (2021)
(internal quotations and citations omitted). “This demanding standard protects all but the
plainly incompetent or those who knowingly violate the law.” Wesby, 138 S. Ct. at 589
(internal quotation marks and citation omitted).

Applying this framework to Heights’s § 1983 claims for alleged violations of the
Contracts Clause and Takings Clause, it is clear that judgment on the pleadings is
appropriate. There was no case law establishing that the Orders were obviously
unconstitutional at any time they were in effect, an indisputable fact bolstered by the
dozens of federal, state, and local measures that limited evictions. To the contrary, at the
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time that the Governor issued the Orders and until the Eighth Circuit issued its opinion in
this case, the relevant case law supported the Orders’ constitutionality. Because the
clearly established prong of qualified immunity focuses on the objective legal
reasonableness of Defendants’ actions, no further development of the record is necessary
and the court should dismiss the claims with prejudice.
B.
Defendants Are Entitled To Qualified Immunity On Heights’ Takings
Claim.

Heights’ takings claim should be dismissed because it does not allege a violation
of clearly established law. Recent Eighth Circuit case law – as well as decisions from
other federal courts in dismissing similar claims – forecloses any such showing.
The Eighth Circuit Court of Appeals recently found that Governor Walz was
entitled to qualified immunity on a takings claim brought by several businesses who were
allegedly “forced to close completely” because of the Governor’s emergency executive
orders. Glow In One Mini Golf, LLC v. Walz, 37 F.4th 1365, 1375 (8th Cir. 2022),
petition for rehearing denied, August 9, 2022. In Glow In One, a group of businesses
claimed that Governor Walz’s executive orders resulted in complete closure of their
businesses, one of them permanently. 37 F.4th at 1374. Nonetheless, the court affirmed
dismissal of their takings claims, rejecting the argument that the Takings Clause itself
was sufficient notice that just compensation was owed under the circumstances. Id. The
court found that the Governor could not have known that “his EOs, issued in response to
an unprecedented pandemic, constituted a taking for which just compensation was
owed.” Id.
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Glow in One controls this Court’s analysis and requires judgment on the pleadings
on Heights’ takings claim. Heights has never pointed to controlling case law that
established the Orders as a constitutional taking, and such case law did not exist until the
Eighth Circuit reversed this Court’s dismissal in April 2022, almost a year after the
Orders were rescinded. As Judge Colloton pointed out in dissenting from the denial of
rehearing en banc, the panel decision “misreads the most analogous decision of the
Supreme Court on the matter of per se takings” and its “analysis of regulatory takings
runs counter to governing precedent and the decisions of other federal courts during the
pandemic.” Heights Apartments, LLC v. Walz, 39 F.4th 479, 480 (8th Cir. 2022).
Indeed, every federal court that has examined takings claims against state eviction
restrictions has concluded that such restrictions were not constitutional takings. E.g.,
Elmsford Apartment Assocs., LLC v. Cuomo, 469 F. Supp. 3d 148, 162-67 (S.D.N.Y.
2020); Baptiste v. Kennealy, 490 F. Supp. 3d 353, 387-90 (D. Mass. 2020); Auracle
Homes, LLC v. Lamont, 478 F. Supp. 3d 199, 220-23 (D. Conn. 2020); Jevons v. Inslee,
561 F. Supp. 3d 1082, 1105–1108 (E.D. Wash. 2021); Gallo v. D.C., No. 1:21-CV-03298
(TNM), 2022 WL 2208934, at *8-10 (D.D.C. June 21, 2022). Courts have reached
similar conclusions with regard to other emergency business regulations to combat the
pandemic. Skatemore, Inc. v. Whitmer, 40 F.4th 727 (6th Cir. 2022) (collecting cases and
affirming dismissal of takings claim based on qualified immunity).
Moreover, in remanding Heights’ remaining claims to this Court, the Eighth
Circuit relied primarily on U.S. Supreme Court decisions from June and August of 2021
to find that the takings claims were sufficiently pleaded. 30 F.4th at 733-736 (relying on
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Cedar Point Nursery and Ala. Assn. of Realtors). By the time the first of those decisions,
Cedar Point Nursery, was issued on June 23, 2021, the Governor and the Minnesota
Legislature had announced an agreement to phase out the Orders. Briana Bierschbach
and Stephen Montemayor, Minnesota legislators reach deal on eviction moratorium, Star
Tribune (June 14, 2021). Even if these cases could clearly establish the law as it relates
to Orders, neither was available to the Defendants at the time the Orders were in effect.
See Wilson, 526 U.S. at 605 (holding that officials were entitled to qualified immunity
and are not required to predict the future course of constitutional law).
Finally, the federal government and at least two dozen other states issued
temporary eviction moratoria in response to the COVID-19 pandemic. See Heights
Apartments, LLC v. Walz, 39 F.4th at 480 (Colloton, J. dissenting from denial of
rehearing en banc) (noting widespread use of eviction moratoria in response to
pandemic). Until the Eighth Circuit issued its decision in this case, no federal court in the
country had found such a measure to be a taking. Thus, there was far from a “robust
consensus of cases of persuasive authority” that the Orders were a constitutional taking,
and significant authority that they were not. Wesby, 138 S. Ct. at 589 (requiring a “robust
consensus” of case law to clearly establish the law). As Judge Colloton’s dissent
highlights, there was not even a consensus among judges in the Eighth Circuit about the
constitutionality of the Orders. Because takings liability for the Orders was not clearly
established at any time that the Orders were in effect, Defendants are entitled to qualified
immunity on Heights’ takings claim.
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C.
Defendants Are Entitled To Qualified Immunity On Heights’
Contracts Clause Claim.
Qualified immunity applies with equal force to Heights’ claims under the
Contracts Clause. As Judge Colloton wrote in dissenting from the denial of Defendants’
petition for rehearing en banc, “the panel decision on the Contracts Clause is an outlier
among federal courts: it conflicts with a recent decision of the Ninth Circuit and decisions
of every federal district court to consider the issue.” Heights Apartments, LLC v. Walz,
39 F.4th 479, 481 (8th Cir. 2022) (Colloton, J., dissenting from denial of rehearing en
banc). Judge Colloton was referring to Apartment Ass’n of L.A. Cnty. v. City of L.A., in
which the Ninth Circuit affirmed the denial of a preliminary injunction of similar eviction
restrictions, recognizing that housing instabilities “exacerbate the public health-related
problems stemming from the COVID-19 pandemic.” 10 F.4th 905, 914-917 (9th Cir.
2021), cert. denied, -- S. Ct. --, 2022 WL 1131544 (Mem). The Ninth Circuit joined
every federal district court in determining that eviction moratoria, like the Orders, do not
violate the Contracts Clause. See Baptiste, 490 F. Supp. 3d at 386-387; HAPCO v. City
of Philadephia, 482 F. Supp. 3d 337, 354-55 (E.D. Pa. 2020); Auracle Homes, 478 F.
Supp. 3d at 225-226; Elmsford Apartment Assocs, 469 F. Supp. 3d at 171-172; Gallo,
2022 WL 2208934, at *6; Jevons, 561 F. Supp. 3d at 1101.
This broad consensus is unsurprising in light of the historical context and purpose
of the Contracts Clause. The Contracts Clause was originally intended to reassure
Revolutionary War creditors that war debts would not be extinguished through
legislation. Sveen, 138 S. Ct. at 1821. The Clause has never been understood, however,
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to prevent states “from regulating health, safety, and morals,” as the Governor did with
the Orders. Ass'n of Equip. Manufacturers v. Burgum, 932 F.3d 727, 732 (8th Cir. 2019).
Indeed, courts routinely have deferred to States in the exercise of police power in
rejecting Contracts Clause challenges. Energy Rsrvs. Grp., Inc. v. Kansas Power & Light
Co., 459 U.S. 400, 410 (1983); Hawkeye Commodity Promotions, Inc. v. Vilsack, 486
F.3d 430, 439 (8th Cir. 2007).

Moreover, even the Eighth Circuit panel that remanded this case acknowledged
that it was breaking with another circuit in determining that a similar eviction moratorium
would violate the Contracts Clause. Heights Apartments, 30 F.4th at 729 n. 8 (explaining
that it did not find Apartments Association persuasive). “When the courts are divided on
an issue so central to the cause of action alleged, a reasonable official lacks the notice
required before imposing liability.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1868 (2017).
Given the agreement among federal courts that pandemic related restrictions did
not violate the Contracts Clause, it would not have been clear to reasonable officials in
Defendants’ positions “that [their] conduct was unlawful in the situation [they]
confronted.” City of Tahlequah, 142 S. Ct. at 11 (2021). At the time the Orders were
issued, Governor Walz was responding to “an unprecedented pandemic” with similar
measures to those employed by the federal government and dozens of other states and
municipalities. Glow In One, 37 F.4th at 1375. See also In re Rutledge, 956 F.3d 1018,
1023 (8th Cir. 2020) (recognizing that COVID-19 was an “unprecedented health crisis”).
Because the Orders did not violate any clearly established Contracts Clause
CASE 0:20-cv-02051-NEB-DJF Doc. 58 Filed 09/02/22 Page 17 of 21

jurisprudence, the Defendants must be afforded qualified immunity and judgment on the
pleadings is appropriate.
IV.
HEIGHTS’ CLAIMS AGAINST DEFENDANTS IN THEIR INDIVIDUAL CAPACITIES
FAIL BECAUSE BOTH THE TAKINGS CLAUSE AND THE CONTRACTS CLAUSE DO
NOT CREATE INDIVIDUAL LIABILITY.
Heights’ claims against Defendants in their individual capacities fails for yet
another independent reason: neither constitutional provision provides for individual
liability.6 The Eighth Circuit recently held that an individual-capacity takings claim
arising out of Governor Walz’s emergency executive orders could not survive dismissal
because the Takings Clause does not provide for individual liability. Glow In One, 37
F.4th at 1375. “Supreme Court cases only contemplate government entities—not
individual government officials—providing just compensation.” Id. As discussed above,
Defendants are immune from Heights’ takings claim in their official capacities, leaving
only the individual capacity claims. But as the Glow In One court recognized, the
Takings Clause applies to governments, not to individual government actors. As such,
Heights’ claims against Defendants in their individual capacities fails as a matter of law
and should be dismissed.

6 Heights’ Complaint alleges no facts at all with respect to unconstitutional actions taken
by Attorney General Ellison himself. Heights alleges only that Attorney General Ellison
is a member of the Executive Council, that he had authority to enforce the Orders, and
did so on a number of occasions with respect to other landlords. (Compl. ¶¶ 14, 19, 24.)
None of these allegations are sufficient to sustain Heights’ claim, and therefore Heights’
claims against Attorney General Ellison should fail for the independent reason that there
are no factual allegations that he took any action with respect to Heights. Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009) (“[A] must plead that each Government-official
defendant, through the official's own individual actions, has violated the Constitution.”)
CASE 0:20-cv-02051-NEB-DJF Doc. 58 Filed 09/02/22 Page 18 of 21

Similarly, the Contracts Clause provides that “[n]o State shall […] pass any Bill of
Attainder, ex post facto Law, or Law impairing the Obligation of Contracts.” U.S. Const.
Sec. 10 (emphasis added). The Contracts Clause applies to “States,” not individual
government actors. As with the takings claim in Glow In One, because the text of the
relevant constitutional provision does not provide for individual liability, there can be no
cause of action against Defendants in their individual capacities. Judgement on the
pleadings is therefore appropriate on Heights claims under the Takings Clause and
Contracts Clause.
V.
THERE IS NO § 1983 CAUSE OF ACTION FOR A CONTRACTS CLAUSE
VIOLATION.
The Court should also dismiss Heights’ money damages claim under the Contracts
Clause because a Contracts Clause violation is not cognizable under 42 U.S.C. § 1983.
Section 1983 “is not itself a source of substantive rights.” Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979). Section 1983 permits a private cause of action to be brought against
a “person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State ... subjects, or causes to be subjected, any citizen of the United States ... to the
deprivation of any rights, privileges, or immunities secured by the Constitution and
laws.” 42 U.S.C. § 1983. However, “[t]he Supreme Court has never definitively held
that an alleged Contracts Clause violation is cognizable as a § 1983 claim.” Kaminski v.
Coulter, 865 F.3d 339, 346 (6th Cir. 2017). As two of the three circuit courts that have
considered the issue have determined, “an alleged Contracts Clause violation cannot give
rise to a cause of action under § 1983.” Laborers’ Int’l Union of N. Am., Loc. 860 v. Neff,
CASE 0:20-cv-02051-NEB-DJF Doc. 58 Filed 09/02/22 Page 19 of 21

29 F.4th 325, 334 (6th Cir. 2022) (citing Kaminski v. Coulter, 865 F.3d 339, 347 (6th Cir.
2017)); Crosby v. City of Gastonia, 635 F.3d 634, 640 (4th Cir. 2011). Watters v. Bd. of
Sch. Directors of City of Scranton, 975 F.3d 406, 413 n.2 (3d Cir. 2020) (acknowledging
split between Sixth, Fourth, and Ninth Circuits but declining to resolve issue). Because
an alleged Contracts Clause violation is not remediable through § 1983 and because the
Court cannot create a vehicle through which to adjudicate these rights, Heights’ Contracts
Clause argument necessarily fails as a matter of law.
CONCLUSION

The Court should grant Defendants’ motion for judgment on the pleadings and
dismiss what remains of Heights’ Complaint in its entirety and with prejudice. Each
cause of action fails on the face of the pleadings and no factual development is necessary
or appropriate.
Signature on Following Page

CASE 0:20-cv-02051-NEB-DJF Doc. 58 Filed 09/02/22 Page 20 of 21

Dated: September 2, 2022
Respectfully submitted,

KEITH ELLISON
Attorney General
State of Minnesota

/s/ Michael Goodwin

LIZ KRAMER (#0325089)
Solicitor General

MICHAEL GOODWIN (#0390244)
Assistant Attorney General

445 Minnesota Street, Suite 1100
St. Paul, Minnesota 55101-2128
liz.kramer@ag.state.mn.us
(651) 757-1010 (Voice)
michael.goodwin@ag.state.mn.us
(651) 757-1456 (Voice)

Attorneys For Defendants
Tim Walz and Keith Ellison

|#5296187-v1
CASE 0:20-cv-02051-NEB-DJF Doc. 58 Filed 09/02/22 Page 21 of 21

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Defendants' motion for judgment on the pleadings brief — Heights Apartments v. Walz (8th Cir.)

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