Fair Chance Housing court challenge stayed

The legal challenge to the city’s Fair Chance Housing ordinance has been put on hold by U.S. District Court Judge John Coughenour, who is overseeing the case, in order to ask the Washington Supreme Court to clarify a point of state law.

Both sides in the case have moved for summary judgment in the case, recognizing that the relevant facts are not in dispute and the case revolves around the interpretation of federal and state law.

The City of Seattle requested that the Court “certify” a question to the state Supreme Court, asking it to clarify the standard to determine a due process claim. In their motions for summary judgment (and again in their legal briefs on whether to certify the question), both sides cited different case law as the precedent for answering that question. In particular, the city argued that the state Supreme Court had created a vague and contradictory case history, while the plaintiffs argued that it had established one clear standard for due process related to land use cases and another for all other cases.

Complicating the matter: the case was originally filed in state Superior Court, and the city had it transferred to federal court. That, the plaintiffs argued, made it inappropriate for the city to try to refer it back to a state court. In his ruling today, the judge ignored that question.

On the other hand, the state Supreme Court is already hearing a case that answers the question, not coincidentally involving the same parties: a legal challenge to the “First-in-Time” tenant protection ordinance. So it makes sense to wait for that decision, Coughenour decided, than risk issuing a decision that conflicts with it. However, it’s possible that the Supreme Court will decide that case on grounds other than the due process issue, so it may not, in fact, become a precedent that reads on the Fair Chance Housing case.

The judge reformulated the questions to be certified a bit, ending up with three specific questions:

  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?
  3.  What standard should be applied to the “Fair Chance Housing” ordinance?

Coughenour also stayed the case until the Supreme Court responds to the certified question. Certifying a question does not obligate the Supreme Court to respond, though it is likely to after it rules on the First-in-Time case.  Briefs have been filed in that case, but oral argument has not yet been scheduled, so it is likely to be late this year before the court rules — and early 2020 at the earliest for a ruling on the Fair Chance Housing ordinance.