Resistance to Public Policies Assisting the Poor

In an age marked by an extreme lack of affordable housing, rising poverty, and homelessness, state courts have largely upheld state and local governments’ efforts to enact or uphold policies that protect vulnerable communities from these difficult economic realities.

Measures such as eviction moratoriums during the Covid-19 pandemic and state programs requiring hospitals to treat indigent patients aim to protect vulnerable populations. However, these policies frequently provoke strong counter-reactions from property owners. Increasingly, these property owners file suit against the state or local government seeking to invalidate the policies, but state courts have largely rejected these claims.

Many of the considered — and rejected — lawsuits in this realm are brought under state and/or federal takings clauses. The federal takings clause in found in the Fifth Amendment to the U.S. Constitution and protects private property rights by requiring the government to provide just compensation when it takes property for public use. Nearly every state constitution has its own takings provision.

For example, in Englewood Hospital & Medical Center v. State, the New Jersey Supreme Court considered whether the state’s mandatory charity care program constituted an unconstitutional taking under the federal Fifth Amendment or the New Jersey Constitution’s equivalent clause. This program prohibits hospitals from turning away patients for their inability to pay, instead requiring that they provide necessary medical care. While the facilities cannot bill patients for this mandated charity care, the state does provide annual subsidies to hospitals that serve a disproportionate number of low-income patients.

A group of hospitals sued the state in 2017, arguing the charity care program constituted unconstitutional takings of private property under both the state and federal constitutions. They argued that compelling them to dedicate hospital resources, supplies, and services to indigent patients in exchange for state subsidies that failed “to even cover the basic cost of the care” amounted to both a “per se” and “regulatory” taking. Per se takings occur when the government directly takes or invades private property, while regulatory takings occur when the government restricts a property owner’s ability to use their property.

In June, the New Jersey Supreme Court rejected the plaintiffs’ claims, analyzing the federal and state constitutions concurrently. The court highlighted New Jersey’s longstanding tradition of providing free medical care to those who need it, and the paramount public interest served by the charity care program.

Two weeks after Englewood, the Minnesota Supreme Court decided a similar constitutional question in Fletcher Properties v. City of Minneapolis. This case arose under Minnesota’s takings clause. The landlords of multi-tenant residential properties challenged a city ordinance that classified refusing to rent to prospective tenants based on their participation in public assistance programs, such as the Section 8 Housing Choice Voucher program, as an “unlawful discriminatory practice.” The plaintiffs argued that this non-discrimination provision violated the state’s takings clause by forcing landlords to accept tenants they did not want. The Minnesota Supreme Court ultimately disagreed. The court reasoned that because the landlords voluntarily elected to rent their properties, the ordinance functioned as a regulation of the rental relationship rather than a compulsory unwanted physical occupation. The ruling also acknowledged the substantial governmental interest in preventing discrimination and increasing housing opportunities for Minnesotans.

These state supreme court cases are part of a broader trend of related constitutional disputes. For instance, in 2021, the Washington Supreme Court considered whether the state’s Covid-19 eviction moratorium — which temporarily prevented residential landlords from initiating evictions based on non-payment of rent during the pandemic — violated the state constitution’s takings clause. The Washington Supreme Court rejected the claim, reasoning that the moratorium was not an unconstitutional taking but rather a regulation of the landlord/tenant relationship into which the landlords had voluntarily entered.

That outcome was welcome news for supporters of the eviction moratorium. Yet, to others — including a State Court Report commentator — the decision was a disappointment. The ruling effectively weakened the scope of the state constitution’s taking clause, potentially allowing the state greater latitude to infringe upon property rights.

Litigation challenging public policies assisting the poor is not limited to takings claims. For example, property owners in Utah and Arizona have brought state nuisance lawsuits against cities, seeking a court mandate ordering the government to remove homeless encampments — and the people within them — from public spaces. These lawsuits have had mixed success. The Arizona Court of Appeals allowed such injunctive relief to be entered, but the Utah Supreme Court affirmed the dismissal of a similar suit under the state’s public duty doctrine.

To date, challenges by property owners asserting that government mandates aimed at public aid violate state law have largely been rejected by state courts. This outcome suggests that state courts are generally defining the reach of the states’ power broadly when faced with measures designed to assist low-income or otherwise vulnerable people.

However, this judicial trend could, in other contexts, paradoxically harm the very same communities. For example, although the takings clause cases discussed above were considered a win for vulnerable communities, they simultaneously may have weakened property rights under state constitutions. Such weakened protections could, ultimately, undermine private efforts to assist vulnerable communities. State and local governments have used their takings power to prevent the construction of affordable housing on targeted property. In scenarios such as these, weakened takings clauses may end up harming the public good if they allow the government to block affordable housing or related projects aimed to help the community.

By all accounts, poverty and a lack of affordable housing continue to plague communities across the country. When policies meant to help the most vulnerable among us affect private parties, they create an undeniable tension between supporting those who need assistance and protecting private rights. State courts will likely continue to grapple with this tension.

Bridget Lavender is a staff attorney with the State Democracy Research Initiative at the University of Wisconsin Law School.

Suggested Citation: Bridget Lavender, Resistance to Public Policies Assisting the Poor, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Nov. 3, 2025), https://statecourtreport.org/our-work/analysis-opinion/resistance-public-policies-assisting-poor