451 P.3d 694
Wash.2019Background
- Seattle enacted the Fair Chance Housing Ordinance (SMC 14.09), including § 14.09.025(A)(2) which forbids landlords and tenant‑screening services from requiring disclosure, inquiring about, or taking adverse action based on arrest/conviction records or criminal history (with exceptions).
- Several Seattle landlords and the Rental Housing Association of Washington brought a facial constitutional challenge, alleging violations of federal free speech and state and federal substantive due process rights.
- The case was removed to federal district court; the district court stayed disposition and certified three questions to the Washington Supreme Court about the appropriate standard for state substantive due process review (general standard; land‑use/property regulation; standard for the Fair Chance Ordinance).
- The Washington Supreme Court held that, unless the court adopts heightened protections as independent state law, article I, § 3 substantive due process claims use the same standards as federal substantive due process claims.
- Applying current federal law, the court concluded that laws regulating property use are reviewed under rational basis review (invalid only if arbitrary or irrational), and that the “unduly oppressive” and “substantially advances” formulations no longer impose heightened scrutiny.
- Conclusion: the proper standard for the plaintiffs’ state substantive due process challenge to Seattle’s ordinance is rational basis review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper standard for substantive due process under WA Constitution | Plaintiffs: property use is a fundamental property interest deserving heightened/intermediate scrutiny (tests: "substantially advances" or "unduly oppressive"). | City: federal rational basis standard applies; no heightened state standard required. | Court: Article I, § 3 claims are governed by the same standards as federal substantive due process absent principled state‑law basis to depart; rational basis applies. |
| Whether land‑use/property regulations receive a different standard | Plaintiffs: land‑use/property rights merit heightened protection beyond federal baseline. | City: land‑use regulations are subject to rational basis under federal precedent. | Court: same standard applies to land‑use/property regulation claims; no independent state heightened standard adopted. |
| Standard to apply to SMC ch. 14.09 (Fair Chance Ordinance) | Plaintiffs: ordinance deprives landlords of a fundamental property interest so intermediate/higher scrutiny should apply. | City: ordinance is rationally related to legitimate government interests; rational basis review. | Court: apply rational basis; ordinance subject to deferential review. |
| Status of "unduly oppressive" / "substantially advances" tests and whether property use is a "fundamental right" | Plaintiffs: those tests require heightened review and property use is a quasi‑fundamental right. | City: Supreme Court jurisprudence treats those tests deferentially and distinguishes takings from substantive due process; property use is not a fundamental right for due process. | Court: rejects interpreting those tests as requiring heightened scrutiny; use of property is not a fundamental right for substantive due process—rational basis governs. |
Key Cases Cited
- Lingle v. Chevron U.S.A., 544 U.S. 528 (2005) (property‑use regulation invalid under substantive due process only if arbitrary or irrational)
- Amunrud v. Bd. of Appeals, 158 Wn.2d 208 (2006) (explains Washington substantive due process framework and standards)
- Nebbia v. New York, 291 U.S. 502 (1934) (affirming deference to legislation regulating property and economic affairs)
- Lawton v. Steele, 152 U.S. 133 (1894) (origin of "unduly oppressive" language in police‑power context)
- Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962) (applied "unduly oppressive" language; later understood mainly in takings context)
- Agins v. City of Tiburon, 447 U.S. 255 (1980) (introduced "substantially advances" test in takings context; later disfavored for takings review)
- Olympic Stewardship Found. v. Envt'l & Land Use Hr'gs Office, 199 Wn. App. 668 (2017) (WA Court of Appeals: use of property is not a fundamental right for substantive‑due‑process purposes)
- W.G. Clark Constr. Co. v. Pac. Nw. Reg'l Council of Carpenters, 180 Wn.2d 54 (2014) (framework for evaluating whether to depart from federal precedent)