April 29, 2019
Washington Supreme Court decided standard of review.
Case remanded to district court.
In Yim v. City of Seattle, the plaintiffs are challenging a city ordinance that requires them to conduct what are known as “first-in-time” rentals when they lease property. This means that a landlord is required to accept the first applicant who meets the written qualifications to rent a home or apartment. While this might sound benign in the abstract, in practice it means that landlords may not request screening services for applicants. Screening companies cannot pull the criminal history of housing applicants or provide that information to landlords. Thus, the first-in-time rule attempts to serve a noble purpose—preventing racial discrimination among landlords—in an unfair and unconstitutional manner.
On appeal to the Washington Supreme Court, the case presents an important question: Should state constitutions be read the same as the U.S. Constitution, or should state courts use them to provide greater protection for individual rights? This, a longstanding question in legal circles, is the topic of an amicus brief that the Goldwater Institute submitted in the case. (The Institute is currently suing Seattle to defend the property rights of Seattleites who conduct short-term rentals on their property. The outcome of Yim will play an important role in that case.)
Washington has long provided greater protection for private property rights than most states, which seems to have served the state well given its explosive growth over the past two decades. The origin of this greater protection is the case of Presbytery of Seattle v. King County, which found that the substantive due process clause of the Washington Constitution only allows the government to regulate land use if evidence shows that that regulation both serves a legitimate public purpose and is not unduly burdensome on the property owner. This standard of review—which determines the constitutionality of state land use regulations—is substantially stronger than the “rational basis” review that courts give such regulations under the U.S. Constitution.
The government is asking the state supreme court to adopt a standard of review that mirrors the federal constitution’s rational basis test. But if every state constitutional guarantee is read to offer no more liberty than its federal analogue, then state constitutions themselves will be drained of their independent vitality. The Washington Supreme Court should resist the urge to adopt the federal test, and instead continue under the existing Presbytery standard of review.
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