November 15, 2019
By Matt Miller
Yesterday, nearly 30
years of private property rights protections were undone by the Washington
Supreme Court in a sweeping
decision that explicitly overrules 51 pro-liberty cases under the
state Constitution. Those decisions served as a bulwark against governmental
overreach, requiring the government to balance the impact of restrictions on
one’s property against the public interest those restrictions allegedly
served.
No longer. In its
decision in Yim
v. City of Seattle, the state Supreme Court held that the burden on
individual property owners no longer matters—at all—and that the state Constitution
does not, in fact, provide any enhanced protection for private property rights.
(The Goldwater Institute submitted
an amicus brief in the case, which was cited by the court.) The only thing
that matters, going forward, is whether the government’s regulation of your
property serves some conceivable governmental interest, even if there is no
evidence supporting that claim, and even if the burden on property owners is
severe.
In Yim, property
owners challenged the city of Seattle’s “Fair Chance Housing Ordinance.” Under
the law, landlords who screen applicants for housing are prohibited from asking
someone if they have a criminal record, or from denying someone housing on the
basis of their criminal record. The property owners argued that it is
legitimate to consider someone’s criminal record when deciding whether to rent
to them, and that they should be allowed to consider such factors. Indeed, some
people may not want to have a convicted criminal living on their property. But
Seattle has made this kind of decision illegal, and so the property owners sued
under the state and federal Constitutions.
The Washington Supreme
Court did not rule on the merits of the case. It was asked, instead, to decide
what legal standard applies to claims that a law violates the substantive due
process clause of the Washington State Constitution. That clause provides that
“No person shall be deprived of life, liberty, or property, without due process
of law.” Put simply, that means that the government can only exercise its
police power in ways that do not unjustly infringe on your constitutional right
to live your life, pursue your livelihood, and own your property as you see
fit.
But how do we apply
those protections in cases where someone alleges that the government has
overstepped its authority and exercised the police power in an unconstitutional
manner? What legal standard should courts apply? This was the question in Yim.
The property owners and the government presented two very different answers.
The property owners
argued that the court should apply the same standard it adopted in 1990, in a
case called Presbytery of Seattle v. King County. Presbytery announced
that Washington courts, when analyzing substantive due process claims involving
property rights, should consider whether the regulation is “unduly oppressive
upon the person regulated,” in addition to looking at whether the government’s
alleged public purpose is supported by evidence. But the government argued that
courts should not consider whether a law unduly burdens a property owner.
Instead, according to the government, any conceivable justification for a
regulation should be sufficient to withstand constitutional scrutiny.
You know by now that
the court adopted the government’s view of how substantive due process
review—which is fundamentally court review of the police power—should be
conducted. In the court’s view, the Washington State Constitution does not
provide enhanced protections for the substantive due process rights of property
owners. Instead, it provides no more protection than those found in the U.S.
Constitution and, accordingly, “rational basis” review applies. This means that
“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.” Burden on the property owner does not matter.
For nearly 30 years, Washington courts have operated under the Presbytery framework, which applied heightened scrutiny to regulations for property rights and required courts to consider whether a regulation was “unduly burdensome” on property owners. That protection is now gone, and only government-friendly rational basis review survives. As if to drive the point home, the court included an appendix of 51 Washington State cases that Yim overrules. This is unprecedented, and it demonstrates that the court understood the magnitude of its decision.
Yesterday’s decision
reminds us of Ronald Reagan’s warning that “[f]reedom is never more than one
generation away from extinction. We didn’t pass it to our children in the
bloodstream. It must be fought for, protected, and handed on for them to do the
same.” Courts play a vital role in protecting our freedoms, but Yim also
reminds us that courts can also play a role in weakening those same rights. The
fight for liberty continues under all 51 of America’s constitutions.
Matt Miller
is a Senior Attorney at the Goldwater Institute.
