In an era of acute shortages of affordable housing, rising poverty, and rising homelessness, state courts have largely supported state and local efforts to enact or maintain policies that protect vulnerable communities from these difficult economic realities.
Measures such as a moratorium on evictions during the COVID-19 pandemic and state programs that require hospitals to treat indigent patients are intended to protect vulnerable people. However, these policies often provoke strong opposition from property owners. These property owners are increasingly suing state and local governments to overturn the policies, but state courts have largely rejected these claims.
Many of the cases considered and dismissed in this area have been brought under state and/or federal burden provisions. The Federal Expropriation Clause, found in the Fifth Amendment to the U.S. Constitution, protects private property rights by requiring the government to provide just compensation when it expropriates property for public use. Almost every state constitution has its own provisions.
for example, Englewood Hospital & Medical Center vs. Statethe New Jersey Supreme Court considered whether the state’s mandatory charity health care program was unconstitutional under the Fifth Amendment or equivalent provisions of the New Jersey Constitution. The program prohibits hospitals from rejecting patients due to inability to pay and instead requires them to provide necessary care. Facilities cannot bill patients for this mandated charity care, but the state annually provides subsidies to hospitals that serve a disproportionate number of low-income patients.
Hospital groups sued the state in 2017, alleging that the charity care program constituted a constitutional violation of private property under both the state and federal constitutions. They argued that forcing hospitals to dedicate resources, equipment, and services to poor patients in exchange for state subsidies that “don’t even cover the cost of basic care” amounted to both “per se” and “regulation.” Per se dispossession occurs when the government directly takes or encroaches on private property, whereas regulatory dispossession occurs when the government restricts a property owner’s ability to use the property.
In June, the New Jersey Supreme Court rejected the plaintiffs’ claims after simultaneously analyzing the federal and state constitutions. The court emphasized New Jersey’s long tradition of providing free health care to those in need and the paramount public interest served by charity care programs.
2 weeks later Englewoodthe Minnesota Supreme Court ruled on a similar constitutional issue. Fletcher Properties v. City of Minneapolis. This case arose under Minnesota’s takings clause. Landlords of multi-tenant homes challenged a city ordinance that classifies the refusal to rent to prospective tenants because of their participation in public assistance programs, such as the Section 8 Housing Choice Voucher program, as an “unlawful act of discrimination.” Plaintiffs argued that the non-discrimination clause violates the state’s takings clause by forcing landlords to accept unwanted tenants. The Minnesota Supreme Court ultimately disagreed. The court reasoned that because the landlord voluntarily chose to rent his property, the ordinance functioned as a regulation of the rental relationship rather than forced unwanted physical possession. The ruling also recognized the government’s significant interest in preventing discrimination and increasing housing opportunities for Minnesotans.
These state Supreme Court cases are part of a broader trend in related constitutional debates. For example, in 2021, the Washington Supreme Court considered whether the state’s COVID-19 eviction moratorium, which temporarily prohibits residential landlords from initiating evictions for unpaid rent during the pandemic, violated the State Constitution’s Take-Around Clause. The Washington Supreme Court rejected the claim, holding that the moratorium was not an unconstitutional measure but rather a regulation of the landlord-tenant relationship entered into voluntarily by the landlord.
The result was welcome news for supporters of the eviction moratorium. But for others, state court report Commentator — This decision was unfortunate. The ruling effectively weakens the scope of the state constitution’s takings clause, potentially giving the state even more latitude to violate property rights.
Litigation challenging pro-poor public policies is not limited to filing claims. For example, property owners in Utah and Arizona have filed state nuisance lawsuits against cities seeking court orders ordering the government to remove homeless encampments and their occupants from public spaces. These lawsuits met with mixed success. The Arizona Court of Appeals granted such injunctive relief, while the Utah Supreme Court allowed the dismissal of a similar case based on the state’s public service doctrine.
So far, state courts have largely rejected challenges from property owners who argue that government orders for public assistance violate state law. This result suggests that state courts generally broadly define the scope of state power when faced with measures to assist low-income and vulnerable populations.
However, this judicial trend, in other contexts, can paradoxically harm the very same communities. For example, the Takings Clause case discussed above was considered a victory for vulnerable communities, but may have also undermined state constitutional property rights. This weakening of protection can ultimately lead to impaired functionality. private Initiatives to support vulnerable communities. State and local governments are using their powers to block affordable housing from being built on targeted land. In such a scenario, weakening underwriting provisions could ultimately harm the public interest if it allows governments to block affordable housing and related projects intended to support local communities.
No matter how you look at it, poverty and a lack of affordable housing continue to plague communities across the country. When policies intended to help the most vulnerable among us affect private actors, there is an undeniable tension between supporting those in need and protecting private rights. State courts will continue to wrestle with this tension.
Bridget Lavender is a staff attorney with the State Democracy Research Initiative at the University of Wisconsin School of Law.
Recommended citation: Bridget Lavender; Resistance to public policies that support the poorSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (November 3, 2025), https://statecourtreport.org/our-work/analysis-opinion/resistance-public-policies-assisting-poor
