Last week the state Supreme Court heard arguments related to legal challenges against two tenant-rights laws passed in recent years: the “First in Time” ordinance that requires landlords to rent a property to the first qualified tenant who applies; and the “fair chance housing” ordinance that restricts landlords’ ability to use a potential tenant’s criminal record to deny tenancy.

The two cases took different paths to get to the Supreme Court, but the legal issues raised have significant overlap.

The legal theory underlying both legal challenges is essentially the same: that they restrict one of the landlords’ fundamental rights of property ownership related to being able to choose who to rent to, and as such are government “takings” of private property. Restrictions on government takings are enshrined in both the U.S. Constitution and the Washington State Constitution. The U.S. Constitution’s protections are in two places:

• the Fifth Amendment, which says: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
• the Fourteenth Amendment, which says: ” No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. “

The “due process” protections at first seem redundant; however, the Fourteenth Amendment clarifies that they apply to state government actions (and their municipal subsidiaries) as well.

The state Constitution provides the same due process protection, using almost exactly the same language (article I, section 3), and nearly the same language requiring just compensation (article I, section 16). But it also provides stronger protections against government takings than the US constitution, as it is allowed to do as a sovereign state (it can’t weaker protections, but it can provide stronger ones). Specifically, it strictly limits the government’s ability to take private property for the benefit of other private parties. And it makes clear that the decision as to whether a use is private or public is to be made by the courts, independent of what a legislative body may assert.

According to court precedents, injured parties may argue that a given government action is an illegal taking, a violation of due process protections, or both. Each provides their own set of issues, and that’s where we get into the heart of the cases as presented last week.

In the “first in time” ordinance case, the plaintiffs argue that the City of Seattle is giving a “right of first refusal” to rent the property to the first person who applies without the consent of the property owner. That, they say, is a fundamental property right, one “stick in the bundle” of rights that property owners have, and handing it to a potential tenant is a taking of private property for the benefit of a private party — not the government. They also argue that there was no compensation by the city for the property taken. The City of Seattle doesn’t deny that it’s giving something to a private party, but it argues that under both federal and state law it isn’t a “government taking” because landlords don’t have a fundamental right to pick their tenants, and even if they did, the law requires looking at the entire bundle of rights, a “total taking,” and not just individual ones.

The plaintiffs, for their part, point to a case where the state Supreme Court threw out a law requiring mobile home park landlords to give a right of first refusal to their tenants’ association before selling the property to a third party, as an illegal government taking. They argue that the “first in time” ordinance, while dealing with right of first refusal to rent instead of to buy, is an even greater violation of property rights because the landlord never gets the right back: if the first-in-line tenant refuses, it passes on to the next in line.

The steps for analyzing whether a government action is in fact a taking (legal or otherwise) are a complicated mess of federal and state law. The city argues that the court should simply follow federal case law rather that strike out on its own path (because, of course, federal law is kinder to its case). The plaintiffs argue that the state has already struck out on its own, not in small part because it offers greater protections than the federal government, and should not abandon its precedents.

At the trial court level the City of Seattle lost — badly; it found that it was a government taking for private use, and that it was also a due process violation. At the Supreme court level, this case will probably never make it to the question of due process violations, because if the court finds that it is a taking, it’s clearly for private use and that will be the deciding factor in its analysis (and it will likely stop there unless it feels unusually compelled to rule on the due process issue too). However the other case, the challenge to the “fair chance housing” ordinance, is all about the question of due process — or at least as far as the state Supreme Court is concerned. The case was originally filed in King County Superior Court, but was then moved to US District Court at the request of the City of Seattle. However, as the briefing process began, the two sides had very different views on what the standard of review is for due process violations under the Washington State Constitution.

The two constitutions don’t say that the government may never  deprive persons of life, liberty or property; rather, they say that doing so requires “due process.” That requires looking at the nature of the right being deprived, and whether the government interest warrants that deprivation. As an example, in times of emergency governments can enact curfews in order to maintain the general populace’s peace, security and safety until the emergency has passed. When assessing due process violations, courts establish a standard of review: essentially how far the government must go to justify its action.

The lowest bar for a standard of review is “rational basis,” under which if a judge can conceive of any way in which the action is rationally related to a government interest, then the action is sustained. The government nearly always wins when this is the standard of review. At the other end of the spectrum is “strict scrutiny,” under which the government must articulate a compelling government interest to justify the policy, and show that the action is narrowly tailored to that interest and is the least restrictive means to accomplish the goal; strict scrutiny is regularly applied to restrictions on the rights of protected classes of people, such as racial minorities. In between rational basis and strict scrutiny is “intermediate scrutiny,” under which the government must show that the action furthers an important government interest by means that are substantially related to that interest.

At issue in this case is what level of scrutiny should be applied to due process cases under the Washington State Constitution, and specifically for land use regulations. The City of Seattle argues that since the U.S. and Washington constitutions use the same language with regard to due process, the state should simply follow federal case law precedent, which the state Supreme Court has done in several recent cases. The plaintiffs point to other cases, some recent and some older, in which the Court has established its own precedent. Since the final word on interpreting the Washington State Constitution is up to the state Supreme Court, at the city’s request Judge Coughenour officially asked that Court to provide an answer to which level of scrutiny should apply. Last week’s hearing was specifically to argue that question.

It’s worth noting that this isn’t just an arbitrary question of law: the ultimate resolution of the case under Coughenour will likely depend on the state Supreme Court’s answer. Under federal case law, the city argues that the standard of review is “rational basis.” But several state law cases argue for a level of intermediate scrutiny which considers whether the action is “unduly oppressive” upon the landlord’s rights. As you can imagine, the City of Seattle is arguing for deference to federal case law so that its ordinance will be held to the lowest, most permissive “rational basis” standard of scrutiny, while the plaintiffs want state law to prevail so that a higher standard applies.

But the answer to the question is far from clear. Given that Washington offers stronger protections against government takings, it’s not out of the question for the state to use a higher standard of review for due process violations as well. But the fact that both constitutions use the same language argues for following federal precedent.

At the same time, “following federal precedent” could mean one of two things. It could mean articulating a standard for Washington state that matches the current state of jurisprudence on the issue in federal case law. Or it could mean simply declaring that Washington State will go wherever the U.S. Supreme Court goes in the future as cases continue to be decided. In last week’s hearing, some of the judges expressed concern about agreeing to blindly follow the moving target of federal precedent into the future, especially given what they have recently heard from Justice Clarence Thomas about his views on the limited extent of due process rights.

In both cases heard last week, it was difficult to get a read from the Court on how they might rule. The issues presented are very technical, the case law is convoluted, and both cases involve policy decisions for the Court as to how deferential it wants to be to federal case law in interpreting the state Constitution.  Don’t be surprised if the Court takes its time making up its mind.