CHONG аnd MARILYN YIM, KELLY LYLES, EILEEN, LLC, and RENTAL HOUSING ASSOCIATION OF WASHINGTON, Plaintiffs, v. CITY OF SEATTLE, Defendant.
No. 96817-9
In the Supreme Court of the State of Washington
Nov 14 2019
En Banc
The merits of the plaintiffs’ claims are not before us. Instead, we have been certified three questions by the federal district court regarding the standard that applies to the plaintiffs’ state substantive due process claim: (1) “What is the proper standard to analyze a substantive due process claim under the Washington Constitution?” (2) “Is the same standard applied to substantive due process claims involving land use regulations?” and (3) “What standard should be applied to Seаttle Municipal Code [chapter] 14.09 (‘Fair Chance Housing Ordinance‘)?” Order, No. C18-0736-JCC, at 2-3 (W.D. Wash. Feb. 5, 2019).
This court has not previously adopted heightened standards for substantive due process challenges to laws regulating the use of property as a matter of independent state law, and we are not asked to do so in this case. Therefore, we answer the district court‘s questions as follows: Unless and until this court adopts heightened protections as a matter of independent state law, state substantive due process claims are subject to the same standards as federal substantive due рrocess claims. The same is true of state substantive due process claims involving land use regulations and other laws regulating the use of property. Therefore, the standard applicable to the plaintiffs’ state substantive due process challenge to the Fair Chance Housing Ordinance is rational basis review.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, the mayor of Seattle and the Seattle City Council convened an advisory committee “to evaluate potential strategies to make Seattle more affordable, equitable, and inclusive.” Doc. 33-12, at 59 (Stipulated R.). The committee recommended “a multi-рronged approach of bold and innovative solutions
Several Seattle landlords and the Rental Housing Association of Washington (which provides tenant screening services) challenged the ordinance‘s facial constitutionality in King County Superior Court. Their challenge focuses on
Defendant city of Seattle (City) removed the case to federal district court, and the parties filеd cross motions for summary judgment based on stipulated facts and a stipulated record. The district court has not yet ruled on the summary judgment motions because the parties dispute the standard of review that applies to the plaintiffs’ state substantive due process claim. The plaintiffs contend that the Fair Chance Housing Ordinance deprives property owners of “a fundamental property interest” and is therefore subject to heightened scrutiny. Doc. 23, at 21. The City contends that rational basis review applies.
The district court noted that another pending case involving a different Seattle ordinance, Chong Yim v. City of Seattle, No. 95813-1 (Wash. Nov. 14, 2019) (Yim I), raises a similar dispute regarding the standard that applies to state substantive due process claims in Washington. Therefore, “wary about applying a potentially inaccurate standard under state law,” the district stayed this case and certified to us three questions regarding the applicable standard of review. Order at 2.
ISSUES
A. “What is the proper standard to analyze a substantive due process claim under the Washington Constitution?” Id.
B. “Is the same standard applied to substantive due process claims involving land use regulations?” Id.
C. “What standard should be applied to Seаttle Municipal Code [chapter] 14.09 (‘Fair Chance Housing Ordinance‘)?” Id. at 3.
ANALYSIS
In a substantive due process claim, courts scrutinize the challenged law according to “a means-ends test” to determine if “a regulation of private property is effective in achieving some legitimate public purpose.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 542, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005) (emphasis omitted). The level of scrutiny to be applied depends оn “the nature of the right involved.” Amunrud, 158 Wn.2d at 219. “State interference with a fundamental right is subject to strict scrutiny,” which “requires that the infringement is narrowly tailored to serve a
The plaintiffs characterize the right involved here as a “fundamental property interest[ ],” specifically, “the right of each residential landlord to rent her property to a person of her own choice.” Pls.’ Rеsp. Br. at 15-16. They do not contend that this right requires the application of strict scrutiny, but they do not concede that rational basis review applies either. Instead, the plaintiffs argue that there is a third type of review, which applies in substantive due process challenges to laws restricting “fundamental property rights” or “traditional ‘old property’ rights.” Id. at 15 n.6. This third type of review, the plaintiffs contend, is “some form of intermediate scrutiny,” which exceeds rational basis review by requiring that laws regulating the use of property must either substantially advance a government interest (the “substantially advancеs test“) or not be unduly oppressive on the property owner (the “unduly oppressive test“). Id. at 39.
The level of scrutiny that applies to the plaintiffs’ state substantive due process claim is a constitutional question that we decide as a matter of law. Amunrud, 158 Wn.2d at 215. We hold that rational basis review applies, and we clarify that the cases cited by the plaintiffs can no longer be interpreted as requiring heightened scrutiny because their “legal underpinnings” have “disappeared.” W.G. Clark Constr. Co. v. Pac. Nw. Reg‘l Council of Carpenters, 180 Wn.2d 54, 66, 322 P.3d 1207 (2014).
A. In answer to the first two certified questions, independent state law doеs not require heightened scrutiny in article I, section 3 substantive due process challenges to laws regulating the use of property
“[T]he protection of the fundamental rights of Washington citizens was intended to be and remains a separate and important function of our state constitution and courts that is closely associated with our sovereignty.” State v. Coe, 101 Wn.2d 364, 374, 679 P.2d 353 (1984). Therefore, this court has a duty to recognize heightened constitutional protections as a matter of independent state law in appropriate cases. O‘Day v. King County, 109 Wn.2d 796, 801-02, 749 P.2d 142 (1988). Nevertheless, “[t]his court traditionally has practiced great rеstraint in expanding state due process beyond federal perimeters.” Rozner v. City of Bellevue, 116 Wn.2d 342, 351, 804 P.2d 24 (1991). Accordingly, we have never before required heightened scrutiny in substantive due process challenges to laws regulating the use of property as a matter of independent state law. In light of the arguments presented in this case, we decline to do so now.
We recognize that in a number of cases, this court has recited the “unduly oppressive” test, which appears to exceed rational basis review by asking “(1) whether the regulation is aimed at achieving a legitimate public purpose; (2) whether it uses means that are reasonably necessary to achieve that purpose; and (3) whether it is unduly oppressive on the landowner.” Presbytery of Seattle v. King County, 114 Wn.2d 320, 330, 787 P.2d 907 (1990); see also, e.g., Tiffany Family Tr. Corp. v. City of Kent, 155 Wn.2d 225, 238, 119 P.3d 325 (2005); Orion Corp. v. State, 109 Wn.2d 621, 651, 747 P.2d 1062 (1987). We have never explicitly rejected the “unduly oppressive” test, although we have noted that it “has limited applicability even in land use cases.” Amunrud, 158 Wn.2d at 226 n.5. We have also occasionally suggested that a “substantial relation” test applies and that this test requires heightened scrutiny by asking whether police power regulations bear a “‘real or substantial relation‘” (as opposed to a merely rational relation) to legitimate government purposes. Biggers v. City of Bainbridge Island, 162 Wn.2d 683, 694, 169 P.3d 14 (2007) (plurality opinion) (quoting State ex rel. Brislawn v. Meath, 84 Wash. 302, 313, 147 P. 11 (1915)); see also, e.g., Remington Arms Co. v. Skaggs, 55 Wn.2d 1, 5-6, 345 P.2d 1085 (1959).
To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.
152 U.S. 133, 137, 14 S. Ct. 499, 38 L. Ed. 385 (1894); see also Goldblatt v. Town of Hempstead, 369 U.S. 590, 594-95, 82 S. Ct. 987, 8 L. Ed. 2d 130 (1962). Meanwhile, the “substantial relation” test is derived from an 1887 opinion, Mugler v. Kansas:
If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.
123 U.S. 623, 661, 8 S. Ct. 273, 31 L. Ed. 205 (1887). We have never held that any form of heightened scrutiny is independently required by
Because the heightened scrutiny apparently required by some of our precedent derives from federal law, we need not consider whether such heightened scrutiny is “incorrect and harmful.” W.G. Clark, 180 Wn.2d at 66. Instead, we may consider whether the federal “legal underpinnings of our precedent have changed or disappeared altogether.” Id. As discussed below, the federal legal underpinnings of our precedent have disappeared because the United States Supreme Court requires only rational basis review in substantive due process challenges to laws regulating the use of property. In the absence of a Gunwall2 analysis or any other principled basis for departing from federal law, we decline to do so at this time.
The district court‘s first two certified questions are “What is the proper standard to analyze a substantive due process claim under the Washington Constitution?” and “Is the same standard applied to substantive due process claims involving land use regulations?” Order at 2. We answer that unless and until this court adopts a heightened standard as a matter of independent state law,
B. In answer to the third certified question, we hold that rational basis review applies to the plaintiffs’ state substantive due process challenge to the Fair Chance Housing Ordinance
Because the plaintiffs do not advance an independent state law argument, the parties’ primary dispute is the minimum level of
We disagree. As a matter of current federal law, the “unduly oppressive” and “substantial relation” tests are not interpreted as requiring heightened scrutiny, and the “substantially advances” test has been explicitly rejected. Instead, a law regulating the use of property violates substantive due process only if it “fails to serve any legitimate governmental objective,” making it “arbitrary or irrational.” Chevron U.S.A., 544 U.S. at 542; see also Kentner v. City of Sanibel, 750 F.3d 1274, 1280-81 (11th Cir. 2014), cert. denied, 135 S. Ct. 950 (2015); Samson v. City of Bainbridge Island, 683 F.3d 1051, 1058 (9th Cir.), cert. denied, 568 U.S. 1041 (2012). This test corresponds to rational basis review. In addition, the use of property has not been recognized as a fundamental right for substantive due process purposes. Therefore, the standard that applies to the plaintiffs’ state substantive due process challenge to the Fair Chance Housing Ordinance is rational basis review.
1. The “unduly oppressive” test is no longer interpreted as requiring heightened scrutiny
The plaintiffs correctly point out that the United States Supreme Court has never explicitly overruled the “unduly oppressive” language that originated in Lawton and was repeated in Goldblatt. However, the plaintiffs fail to recognize that the United States Supreme Court does not interpret this language as requiring heightened scrutiny. To the contrary, the United States Supreme Court has made it clear in its 2005 Chevron U.S.A. decision that Lawton and Goldblatt should be interpreted as applying a deferential standard that corresponds to rational basis review.
The reason Goldblatt may appear to require heightened scrutiny is that Goldblatt was decided during a period of “doctrinal blurring that has occurred between due process and regulatory takings.” Orion Corp., 109 Wn.2d at 647. A “regulatory taking” occurs when a government restriction on the use of private property is so onerous that the regulation amounts to “a de facto exercise of eminent domain requiring just compensation.” Id. at 645. For many years, United States Supreme Court cases did not clearly differentiate between the tests for determining (1) when a regulation is so burdensome that it effectively takes private property and (2) when a regulation arbitrarily interferes with the use of property in violation of substantive due process. See Chevron U.S.A., 544 U.S. at 541-42.
Goldblatt was one such case. Its “unduly oppressive” test, which asks who must bear the economic burden of a regulation, Amunrud, 158 Wn.2d at 226 n.5, reflects concerns implicated by the takings clause, such as “the magnitude or character of the burden a particular regulation imposes upon private property rights” and “how any regulatory burden is distributed among property owners.” Chevron U.S.A., 544 U.S. at 542. It does not reflect the core concern of substantive due process, which is “whether a regulation of private property is effective in achieving some legitimate public purpose.” Id.
While Goldblatt “does appear to assume that the inquiries are the same” for both regulatory takings and substantive due process claims, the United States Supreme Court has recognized that “that assumption is inconsistent with the formulations of our
To the extent Goldblatt does appear to require heightened scrutiny of laws regulating the use of property for substantive due process purposes, thе United States Supreme Court has clarified that it does not. Instead, Goldblatt has been interpreted as “applying a deferential ‘reasonableness’ standard.” Chevron U.S.A., 544 U.S. at 541 (internal quotation marks omitted) (quoting and citing Goldblatt, 369 U.S. at 594-95; Lawton, 152 U.S. at 137). This deferential standard protects against “arbitrary or irrational” restrictions on property use. Id. at 542; see also id. at 548 (Kennedy, J., concurring).
The “arbitrary or irrational” standard is not heightened scrutiny. It corresponds to rational basis review, which requires only that “the challenged law must be rationally related to a legitimate state interest.” Amunrud, 158 Wn.2d at 222. The plaintiffs do not cite, and we cannot find, any post-Chevron U.S.A. decision in which the United States Supreme Court has held the “unduly oppressive” test requires heightened scrutiny in substantive due process challenges to laws regulating the use of property.
As we have already held, “[t]hat a statute is unduly oppressive is not a ground to overturn it under the due process clause.” Salstrom‘s Vehicles, Inc. v. Dep‘t of Motor Vehicles, 87 Wn.2d 686, 693, 555 P.2d 1361 (1976). Today, we reaffirm that holding and clarify that the “unduly oppressive” test recited in many of our cases can no longer be interpreted as requiring heightened scrutiny in substantive due process challenges to laws regulating the use of property.
2. The “substantially advances” test has been rejected and the “substantial relation” test is no longer interpreted as requiring heightened scrutiny
As an alternative to the “unduly oppressive” test, the plaintiffs contend that laws regulating the use of property must be scrutinized in accordance with the “substantially advances” test, which the plaintiffs characterize as “a form of heightened scrutiny that closely mirrors this Court‘s understanding of the unduly oppressive test.” Pls.’ Resp. Br. at 38. We disagree. Since at least 1934, federal law has required only deferential rational basis review.
The plaintiffs point to the United States Supreme Court‘s 2005 decision in Chevron U.S.A. to argue that a heightened “substantially advances” test is required. However, Chevron U.S.A. actually states “that the ‘substantially advances’ formula was derived from due process” and holds “that it has no proper place in our takings jurisprudence.” 544 U.S. at 540 (emphasis added). Chevron U.S.A. does not hold that a heightened “substantially advances” test reflects current federal substantive due process law, and it clearly does not.
The “substantially advances” test was set forth in a takings case, Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980). However, the test was derived from two Lochner-era4 substantive due process cases, Nectow v. City of Cambridge, 277 U.S. 183, 48 S. Ct. 447, 72 L. Ed. 842 (1928), and Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926). Both Nectow and Ambler Realty Co. do state that zoning regulations must have a “‘substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense.‘” Nectow, 277 U.S. at 187-88 (emphasis added) (quoting Ambler Realty Co., 272 U.S. at 395). Nevertheless, both cases also state that a regulation fails this test only if it “‘has no
at 187 (emphasis added) (quoting Ambler Realty Co., 272 U.S. at 395). This languagе is arguably contradictory, as the “substantial relation” test may appear to require heightened scrutiny, while the “arbitrary or irrational” test suggests that deferential rational basis review applies. However, any confusion has long since been resolved because the United States Supreme Court does not interpret the “substantial relation” test as requiring heightened scrutiny.
Since at least 1934, the United States Supreme Court has recognized that “the use of property and the making of contracts are normally matters of private and not of public concern,” but “[e]qually fundamental with thе private right is that of the public to regulate it in the common interest.” Nebbia v. New York, 291 U.S. 502, 523, 54 S. Ct. 505, 78 L. Ed. 940 (1934). Laws regulating the use of property are therefore not subject to heightened scrutiny:
The doctrine that prevailed in Lochner . . . and like cases—that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely—has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.
Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S. Ct. 1028, 10 L. Ed. 2d 93 (1963); see also Greater Chi. Combine & Ctr., Inc. v. City of Chicago, 431 F.3d 1065, 1071 (7th Cir. 2005) (“[O]ur precedent has routinely applied [Ambler Realty Co.] as a rational basis rule for substantive due procеss and equal protection challenges to municipal ordinances.“).
Thus, according to current United States Supreme Court precedent, a law that regulates the use of property violates substantive due process only if it “fails to serve any legitimate governmental objective,” making it “arbitrary or irrational.” Chevron U.S.A., 544 U.S. at 542. Even where a law restricts the use of private property, “ordinances are ‘presumed valid, and this presumption is overcome only by a clear showing of arbitrariness and irrationality.‘” Samson, 683 F.3d at 1058 (quoting Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1234 (9th Cir. 1994)); see also Kentner, 750 F.3d at 1280-81.
As noted above, this test corresponds to rational basis review, which requires only that “the challenged law must be rationally related to a legitimate state interest.” Amunrud, 158 Wn.2d at 222. The plaintiffs do not cite, and we cannot find, any post-Chevron U.S.A. decision in which the United States Supreme Court has held the “substantial relation” or “substantially advances” tests require heightened scrutiny in substantive due process challenges to laws regulating the use of property. To the contrary, as recently as 2017, the United States Supreme Court reiterated “that the test articulated in Agins—that regulation effects a taking if it ‘does not substantially advance legitimate state interests‘—was improper because it invited courts to engage in heightened review of the effeсtiveness of government regulation.” Murr v. Wisconsin, 582 U.S. 383, 137 S. Ct. 1933, 1947, 198 L. Ed. 2d 497 (2017) (emphasis added) (internal quotation marks omitted) (quoting Chevron U.S.A., 544 U.S. at 540).
3. The use of property is not recognized as a fundamental right for substantive due process purposes
Finally, the plaintiffs argue that heightened scrutiny is required because the “fundamental attribute[s] of property” are recognized as “fundamental right[s]” for substantive due process purposes—not so fundamental as to require strict scrutiny, but fundamental enough to require “some form of intermediate scrutiny.” Pls.’ Resp. Br. at 31, 39. None of the cases the plaintiffs cite could fairly be read to make such a holding.
Without quеstion, the federal due process clauses do require “heightened protection against government interference with certain fundamental rights and liberty interests.” Washington v. Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997). However, our Court of Appeals recently
Nevertheless, the plaintiffs contend Olympic Stewardship was incorrect, relying on cases from this court and the United States Supreme Court that discuss the importance of property rights, primarily in the context of takings cases. See Pls.’ Resp. Br. at 2, 16-17, 31, 39; Pls.’ Second Statement of Additional Auth.5 We do not question that property rights are important. However, as noted above, the United States Supreme Court has also made it clear that takings claims and substantive due process claims are different matters involving different considerations. Chevron U.S.A., 544 U.S. at 541-42. None of the cases cited by the plaintiffs actually addresses the question of whether the use of property is a fundamental right for substantive due process purposes, and they certainly do not make such a holding.
The plaintiffs also cite many cases from this court and the United States Supreme Court applying the “substantial relation” or “unduly oppressive” tests as evidence that the use of property is a fundamental right. Pls.’ Resp. Br. at 2-3, 13-15, 17-22, 32, 37-39; Pls.’ Statement of Additional Auths. at 14-15.6 However, as
In sum, the “unduly oppressive” test recited in our precedent can no longer be interpreted as requiring heightened scrutiny because its legal underpinnings have disappeared. The plaintiffs also do not show that laws regulating the use of property must be subject to heightened scrutiny as a matter of current federal law or that the use of property is a fundamental right for substantive due process purposes. Therefore, in answer to the third certified question, we hold that rational basis review applies to the plaintiffs’ state substantive due process challenge to the Fair Chance Housing Ordinance.
CONCLUSION
Based on the foregoing, we answer the certified questions as follows: Unless and until this court recognizes a principled basis for adopting heightened protections as matter of independent state law, state substantive due process claims are subject to the same standards as federal substantive due process claims. The same is true of state substantive due process claims involving land use regulations and other laws regulating the use of property. Therefore, the standard applicable to the plaintiffs’ state substantive due process challenge to the Fair Chance Housing Ordinance is rational basis review.
Yu, J.
WE CONCUR:
Fairhurst, C.J.
Johnson, J.
Madsen, J.
Owens, J.
Stephens, J.
Wiggins, J.
Gonzalez, J.
Gordon McCloud, J.
APPENDIX
The following is a nonexclusive list of Washington Supreme Court cases that may no longer be interpreted as requiring heightened scrutiny in article I, section 3 substantive due process challenges to laws regulating the use of property:
Abbey Rd. Grp., LLC v. City of Bonney Lake, 167 Wn.2d 242, 218 P.3d 180 (2009) (plurality opinion)
Allen v. City of Bellingham, 95 Wash. 12, 163 P. 18 (1917)
Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 143 P.3d 571 (2006)
Asarco, Inc. v. Dep‘t of Ecology, 145 Wn.2d 750, 43 P.3d 471 (2002)
Biggers v. City of Bainbridge Island, 162 Wn.2d 683, 169 P.3d 14 (2007) (plurality opinion)
Brown v. City of Seattle, 150 Wash. 203, 272 P. 517, 278 P. 1072 (1928)
Christianson v. Snohomish Health Dist., 133 Wn.2d 647, 946 P.2d 768 (1997)
City of Olympia v. Mann, 1 Wash. 389, 25 P. 337 (1890)
City of Seattle v. Ford, 144 Wash. 107, 257 P. 243 (1927)
City of Seattle v. Montana, 129 Wn.2d 583, 919 P.2d 1218 (1996) (plurality opinion)
City of Seattle v. Proctor, 183 Wash. 293, 48 P.2d 238 (1935)
City of Seattle v. Ross, 54 Wn.2d 655, 344 P.2d 216 (1959)
City of Spokane v. Latham, 181 Wash. 161, 42 P.2d 427 (1935)
Convention Ctr. Coal. v. City of Seattle, 107 Wn.2d 370, 730 P.2d 636 (1986)
Cougar Bus. Owners Ass‘n v. State, 97 Wn.2d 466, 647 P.2d 481 (1982)
Covell v. City of Seattle, 127 Wn.2d 874, 905 P.2d 324 (1995)
Crane Towing, Inc. v. Gorton, 89 Wn.2d 161, 570 P.2d 428 (1977)
Duckworth v. City of Bonney Lake, 91 Wn.2d 19, 586 P.2d 860 (1978)
Ellestad v. Swayze, 15 Wn.2d 281, 130 P.2d 349 (1942)
Erickson & Assocs. v. McLerran, 123 Wn.2d 864, 872 P.2d 1090 (1994)
Guimont v. Clarke, 121 Wn.2d 586, 854 P.2d 1 (1993)
Hass v. City of Kirkland, 78 Wn.2d 929, 481 P.2d 9 (1971)
Hauser v. Arness, 44 Wn.2d 358, 267 P.2d 691 (1954)
Homes Unlimited, Inc. v. City of Seattle, 90 Wn.2d 154, 579 P.2d 1331 (1978)
Horney v. Giering, 132 Wash. 555, 231 P. 958 (1925)
Isla Verde Int‘l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 49 P.3d 867 (2002)
Lenci v. City of Seattle, 63 Wn.2d 664, 388 P.2d 926 (1964)
Lutz v. City of Longview, 83 Wn.2d 566, 520 P.2d 1374 (1974)
Manos v. City of Seattle, 173 Wash. 662, 24 P.2d 91 (1933)
Margola Assocs. v. City of Seattle, 121 Wn.2d 625, 854 P.2d 23 (1993)
Markham Advert. Co. v. State, 73 Wn.2d 405, 439 P.2d 248 (1968)
Maytown Sand & Gravel, LLC v. Thurston County, 191 Wn.2d 392, 423 P.3d 223 (2018)
McNaughton v. Boeing, 68 Wn.2d 659, 414 P.2d 778 (1966)
Myrick v. Bd. of Pierce County Comm‘rs, 102 Wn.2d 698, 677 P.2d 140, 687 P.2d 1152 (1984)
Orion Corp. v. State, 109 Wn.2d 621, 747 P.2d 1062 (1987)
Patton v. City of Bellingham, 179 Wash. 566, 38 P.2d 364 (1934)
Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P.2d 907 (1990)
Ragan v. City of Seattle, 58 Wn.2d 779, 364 P.2d 916 (1961)
Remington Arms Co. v. Skaggs, 55 Wn.2d 1, 345 P.2d 1085 (1959)
Rivett v. City of Tacoma, 123 Wn.2d 573, 870 P.2d 299 (1994)
Robinson v. City of Seattle, 119 Wn.2d 34, 830 P.2d 318 (1992)
Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 935 P.2d 555 (1997)
Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 829 P.2d 765 (1992)
State ex rel. Brislawn v. Meath, 84 Wash. 302, 147 P. 11 (1915)
State ex rel. Faulk v. CSG Job Ctr., 117 Wn.2d 493, 816 P.2d 725 (1991)
State ex rel. Modern Lumber & Millwork Co. v. MacDuff, 161 Wash. 600, 297 P. 733 (1931)
State ex rel. Rhodes v. Cook, 72 Wn.2d 436, 433 P.2d 677 (1967)
State ex rel. Spokane Int‘l Ry. Co. v. Kuykendall, 128 Wash. 88, 222 P. 211 (1924)
State ex rel. Warner v. Hayes Inv. Corp., 13 Wn.2d 306, 125 P.2d 262 (1942)
State v. Bowen & Co., 86 Wash. 23, 149 P. 330 (1915)
State v. Conifer Enters., Inc., 82 Wn.2d 94, 508 P.2d 149 (1973)
State v. Fabbri, 98 Wash. 207, 167 P. 133 (1917)
State v. Van Vlack, 101 Wash. 503, 172 P. 563 (1918)
Tiffany Family Tr. Corp. v. City of Kent, 155 Wn.2d 225, 119 P.3d 325 (2005)
Town of Woodway v. Snohomish County, 180 Wn.2d 165, 322 P.3d 1219 (2014)
Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 733 P.2d 182 (1987)
Viking Props., Inc. v. Holm, 155 Wn.2d 112, 118 P.3d 322 (2005)
Wash. Kelpers Ass‘n v. State, 81 Wn.2d 410, 502 P.2d 1170 (1972)
Weden v. San Juan County, 135 Wn.2d 678, 958 P.2d 273 (1998)
W. Main Assocs. v. City of Bellevue, 106 Wn.2d 47, 720 P.2d 782 (1986)
Willoughby v. Dep‘t of Labor & Indus., 147 Wn.2d 725, 57 P.3d 611 (2002)
Yim et al. v. City of Seattle
96817-9
STEPHENS, J. (concurring in part, dissenting in part)—I agree with the majority‘s answers to the first two certified questions, but I write separately because the third certified question does not involve a matter of state law and is therefore not appropriately before this court.
“[C]ertified questions should be confined to uncertain questions of state law.” City of Houston v. Hill, 482 U.S. 451, 471 n.23, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987) (citing 17 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4248 (1978)). Any federal court may certify a “question of local law” to this court,
Here, the district court asks us (1) what standard of scrutiny generally applies to a substantive due process claim under the Washington Constitution, (2) whether that same standard of scrutiny applies to substantive due process claims involving land use regulations, and (3) what standard оf scrutiny should be applied to Seattle‘s Fair Chance Housing Ordinance, chapter 14.09 Seattle Municipal Code. See Order, No. C18-0736-JCC, at 2-3 (W.D. Wash. Feb. 5, 2019). As the majority cogently explains in response to the first two certified questions, the standard of scrutiny applicable to substantive due process claims under the Washington Constitution is identical to the standard applicable to such claims under the federal constitution. But then, despite recognizing that “the parties’ primary dispute [under the third certified question] is the minimum level of scrutiny required by the federal due process clauses,” the majority providеs a fairly encompassing analysis of federal substantive due process precedent and proposes a conclusion under “current federal law.” Majority at 11-12.
The majority justifies its decision to answer a question of federal law by claiming “it is necessary to provide complete answers to the certified questions in this case.” Id. at 11 (citing Broad, 141 Wn.2d at 676). But “certified questions should be confined to uncertain questions of state law.” Hill, 482 U.S. at 471 n.23. There is nothing to be gained by offering the district court our interpretation of federal law, when that court must make its own decision and will undoubtedly consider further arguments from the parties about whether our (nonbinding) interpretation is right or wrong. Moreover, there is no requirement for us to provide complete—or, indeed, any—answers to certified questions. See Broad, 141 Wn.2d at 676 (“The decision whether to answer a certified question pursuant to chapter 2.60 RCW is within the discretion of the court.” (citing Hoffman, 140 Wn.2d at 128; RAP 16.16(a))). We frequently limit certified questions, change them, or simply decline to answer—and that is when state law questions are presented. We have all the more reason to decline to answer a question that requires interpretation of uncertain federal law.
I would decline to answer the third certified question here and accordingly dissent from that portion of the majority‘s opinion.
Stephens, J.
Fairhurst, C.J.
Madsen, J.