Last week, King County Superior Court Judge John Erlick ruled on the lawsuit filed against the City of Seattle over Initiative 124, passed by the voters last November, which provided health and safety protections to hotel workers. through a number of measures.
The plaintiffs, the Seattle Hotel Association, the Washington Hospitality Associations, and the American Hotel and Lodging Association, had moved for a summary judgment in their favor. The City of Seattle rebutted their claims and likewise filed a motion for summary judgment. Summary judgment (skipping a trial) may only be granted when the relevant facts of the case are not in dispute and it’s simply a matter of legal interpretation. In this instance, Erlick found that to be the case and ruled in favor of the City — affirming the legality of I-124.
Preface: I’m about to launch into an analysis of the arguments for both sides and the judge’s ruling; please don’t interpret that as a statement on whether I think I-124 is a wise and virtuous law. As Erlick points out in his ruling, it’s not the job of the courts to rule on the wisdom of the legislature, or the voters, in passing a law; rather it’s the courts’ role, if asked, to rule on the law’s constitutionality and its compatibility with other laws on the books. Likewise, I’m writing here solely about the legal arguments here made by the plaintiffs, the defendant, and the judge.
The plaintiffs raised several objections with I-124, many of them technical in nature, which the judge addressed in turn. The first was that, in their view, the initiative violated the rule that it must only have one subject, since it dealt with a number of seemingly unrelated topics: panic buttons, a “blacklist” of guests accused of sexual assault, protecting hotel workers’ jobs when a hotel changes ownership, health insurance, protection from employer retaliation, and other topics. Erlick responded by noting that an initiative title, which defines the scope of the legislation, can either be “general” or “restrictive,” and that a title can be general even if it names many (but not all) of the individual components of the bill. I-124’s title reads:
Initiative 124 concerns health, safety, and labor standards for Seattle hotel employees.
If passed, this initiative would require certain sized hotel-employers to further protect employees against assault, sexual harassment, and injury by retaining lists of accused guests among other measures; improve access to healthcare; limit workloads; and provide limited job security for employees upon hotel ownership transfer. Requirements except assault protections are waivable through collective bargaining. The City may investigate violations. Persons claiming injury are protected from retaliation and may sue hotel-employers. Penalties go to City enforcement, affected employees, and the complainant.
Erlick found that the title is general, and that all of the individual components of the initiative relate to “health, safety and labor standards for Seattle hotel employees.” So from his perspective, it had only one subject. This is one of the weaker parts of the ruling, and if the plaintiffs choose to appeal, this will figure prominently. The plaintiffs, and the judge, are walking a fine line here: they are trying to create a very broad umbrella to encompass all of these items, but they are also arguing that each of the components is independent enough to be “severable” so that if any one piece is found unconstitutional, the whole initiative doesn’t get thrown out. In essence: they are all related enough to be one big topic, but not so related that any of them rely on any others. Taken to its logical extreme, that argument falls apart: I could title a voter initiative to be about ” improving the health, safety and economic stability of the citizens of Seattle” and then stick pretty much anything in it. At some point, a title becomes so broad as to be meaningless. The point of the “one subject” rule is to prevent “logrolling:” getting voters to approve an unpopular measure by attaching it to an unrelated popular one. In this case, Erlick found that the title was sufficiently meaningful to voters to justify the inclusion of laws on a guest blacklist, health insurance, employer retaliation, employee retention, and panic buttons. An appeals court may see otherwise.
The plaintiffs also argued that the initiative violated the rule that the subject of the initiative must be in the title; Erlick ruled that the general title, including many examples of components of the bill, sufficed. In the case of general titles, he said that the important principle is that the title can’t be false or misleading.
The plaintiffs also argued that the injury protections in the initiative are both preempted by, and in conflict with, the Washington Industrial Safety and Health Act (WISHA). The argument about preemption came down to interpretation of this paragraph in WISHA:
The department shall be the sole and paramount administrative agency responsible for the administration of the provisions of this chapter, and any other agency of the state or any municipal corporation or political subdivision of the state having administrative authority over the inspection, survey, investigation, or any regulatory or enforcement authority of safety and health standards related to the health and safety of employees in any workplace subject to this chapter, shall be required, notwithstanding any statute to the contrary, to exercise such authority as provided in this chapter and subject to interagency agreement or agreements with the department made under the authority of the interlocal cooperation act (chapter 39.34 RCW) relative to the procedures to be followed in the enforcement of this chapter: PROVIDED, That in relation to employers using or possessing sources of ionizing radiation the department of labor and industries and the department of social and health services shall agree upon mutual policies, rules, and regulations compatible with policies, rules, and regulations adopted pursuant to chapter 70.98 RCW insofar as such policies, rules, and regulations are not inconsistent with the provisions of this chapter.
The plaintiffs argued that this was a “preemption.” Erlick disagreed, preferring to interpret it as perhaps preempting a local government from rewriting the rules contained in the chapter, but not preventing a local government from writing additional rules on health and safety related topics not covered in WISHA. He likewise didn’t find any conflicts between components of WISHA and the components of I-124.
The plaintiffs next took exception to the component of I-124 that says that any adverse action an employer takes against a hotel employee within 90 days of that employee exercising their rights granted by the initiative is presumed to be retaliatory (but can be rebutted with evidence). They stated three reasons: first, that it flips the standard that the burden of evidentiary proof is on the plaintiff, not the defendant; second, that it violates the employers’ due process rights; and third, that it violates the employers’ right to a jury trial. Erlick disagreed with all three points: he cited other precedents where legislative bodies have created similar presumptions, and he noted that since the employer can present evidence to rebut the presumption it doesn’t violate rights to due process or a jury trial.
Finally, while the plaintiffs challenged the constitutionality of the “blacklist” of guests accused of assaulting hotel workers, the City of Seattle argued that the plaintiffs didn’t have standing to challenge that, since the hotels can’t demonstrate today that they have been injured by it (a requirement for standing to sue). The hotels claimed that the law makes them “instruments of constitutional violations” and hurts them economically, but Erlick ruled that is purely speculative at this point (the city hasn’t even issued the rules that will guide implementation of the law yet) and that a hotel guest that has actually been placed on a blacklist is in a much stronger position to legally challenge it. The plaintiffs argued that they have a “special relationship” with their hotel guests and should have standing to represent them — especially because it’s not clear that a guest will be allowed to know whether they have been placed on the list and thus have reason to challenge the law. Erlick once again pointed out that since the City hasn’t set the rules yet on how hotels will need to manage and disclose the list, it’s premature for the plaintiffs to claim they can represent their guests. So Erlick found that the plaintiffs currently don’t have standing to challenge the “blacklist.” That doesn’t mean that they won’t have standing in the future once the law goes into effect and the city issues its rules for implementing it; it’s also possible that an appeals court will think differently on whether the hotels have standing. So the blacklist is still in the law, not because it’s been found constitutional, but because no one has been allowed to challenge it yet.
The plaintiffs issued a statement last Friday, saying that they are weighing their options. Erlick’s ruling was a resounding defeat for them, but one that offers many reasons to appeal. In fact, since it was a summary judgment focused on legal interpretation (rather than on evidence or credibility of witnesses) it’s pretty much all open to appeal. I-124 survived this battle, but there are surely more difficult ones to come. The hotel associations have deep pockets and little to lose by filing an appeal. Even if they don’t appeal, Erlick will likely dismiss the lawsuit “without prejudice” with regard to the challenge to the blacklist, so that if the hotels can show in the future they have been injured they will be able to refile their case on that point. I-124 will have many more days in court.