Without a single mention of the U.S. or California constitutions, the San Francisco city attorney’s office issued an April 13, 2020 memo declaring that the City may “take any measure necessary to prevent the spread of an infectious disease.”

Addressing the City’s authority to commandeer property in connection with the City’s efforts to secure housing for people who need it during the COVID-19 emergency, the memo (1) asserts that the mayor, and not the board of supervisors, may commandeer private property, subject to the board’s concurrence, (2) highlights the powers of the local health officer, whose orders the board can neither approve or reject, (3) states that the City must pay “fair value” for commandeered property but not necessarily at the time it commandeers the property, and (4) explains the procedures the City can use to commandeer property, and (5) cites the enforcement mechanisms the City may use for violations of an order to commandeer private property.

Although the government certainly has extensive power to protect public health in a crisis, the memo is breathtaking in its scope.  With but a passing nod to the fact that its procedures “must be sufficient to satisfy due process requirements,” the memo says nothing about what due process requires much less acknowledges the existence of constitutional limits that apply even during this tragic public health crisis.  To pick but one example, the memo places the burden of seeking compensation on those whose private property is commandeered by the City through an administrative claims process that is inconsistent with the text of the Fifth Amendment and Knick v. Township of Scott, 139 S. Ct. 2162 (2019), in which the U.S. Supreme Court held last year that a property owner who contends that the government has taken his property and therefore owes “just compensation” under the Takings Clause can file his case in federal court without first securing a “final decision” from the relevant state regulatory agency.

Our friend and colleague, Robert Thomas, addressed the tension between safety and liberty in an informative web video available on his excellent blog, inversecondemnation.  As he helpfully explains, these are deeply complicated issues, and yet it is important to bear in mind that the constitution is not suspended during a public health emergency, even in San Francisco:

“Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency.  Its grants of power to the Federal Government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency.”
Home Building & Loan Assoc. v. Blaisdell, 290 U.S. 398, 425 (1934).


Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use. Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. For more information, visit www.msrlegal.com.