Potter v. City of Lacey

550 P.3d 1037

Certification from the United States Court of Appeals for the Ninth Circuit in Jack POTTER, Plaintiff,

v.CITY OF LACEY, Defendant,,andKen Semko, Defendant.

No. 101188-1 (certified No. 21-35259)

Supreme Court of Washington, En Banc.

Argued October 10, 2023

Filed July 3, 2024

James Elliot Lobsenz, Carney Badley Spellman, 701 5th Ave. Ste. 3600, Seattle, WA, 98104-7010, Scott Crain, Northwest Justice Project, 401 2nd Ave. S. Ste. 407, Seattle, WA, 98104-3811, Carrie Suzanne Graf, Northwest Justice Project, 711 Capitol Way S. Ste. 704, Olympia, WA, 98501-1237, for Plaintiff.

John Edward Justice, Law Lyman Daniel Kamerrer et al., 2674 R W Johnson Blvd. Sw., Tumwater, WA, 98512-6111, for Defendants.

John Ballif Midgley, La Rond Baker, Amer. Civil Liberties Union of Wash. Found., P. 0. Box 2728, Seattle, WA, 98111-2728, for Amicus Curiae on behalf of American Civil Liberties Union.

Kathryn Meyer Scott, Attorney at Law, 6537 27th Ave. NW., Seattle, WA, 98117-5902, Mary T. Benton, 1201 West Peachtree Street, Atlanta, GA, 30309, for Amicus Curiae on behalf of National Homelessness Law Center.

Skylar Texas Brett, Purpose. Dignity. Action., 110 Prefontaine Pl. S. Ste. 502, Seattle, WA, 98104-2626, for Amicus Curiae on behalf of Purpose.Dignity.Action.

Nichole Mendoza, 350 South Bixel Street, Los Angeles, CA, 90017, for Amicus Curiae on behalf of Disability Rights California.

Sarah Rachel Nagy, Columbia Legal Services, 711 Capitol Way S. Ste. 706, Olympia, WA, 98501-1237, Alison Sophia Bilow, Columbia Legal Services, 1301 5th Ave. Ste. 1200, Seattle, WA, 98101-2677, for Amicus Curiae on behalf of Columbia Legal Services.

Erik J. Lamb, City of Spokane Valley, 10210 E. Sprague Ave., Spokane Valley, WA, 99206-3682, Charlotte A. Archer, Inslee Best, PS, 10900 Ne 4th St. Ste. 1500, Bellevue, WA, 98004-8345, Bob C. Sterbank, Attorney at Law, 1111 3rd Ave. Ste. 3000, Seattle, WA, 98101-3296, for Amicus Curiae on behalf of Wa State Assoc. of Municipal Attorneys.

Sheila Marie Gall, Association of Washington Cities, 1076 Franklin St. Se., Olympia, WA, 98501-1346, for Amicus Curiae on behalf of Association of Washington Cities.

GORDON MCCLOUD, J.

¶1 Jack Potter lived in a 23-foot travel trailer hitched to his truck. He parked his truck and attached trailer on public lots and streets in the city of Lacey, Washington.

¶2 In 2019, Lacey (or the City) passed an ordinance barring people from parking such large vehicles and trailers on public lots and streets for more than four hours per, day. The City then ordered Potter to move his trailer and truck off the city hall parking lot and off Lacey streets.

¶3 Potter sued the City and claimed—in part—that its new ordinance violated his state constitutional "right to reside," which he argued inhered in the state constitutional right to intrastate travel. The Ninth Circuit Court of Appeals has certified questions of state law to this court concerning this right-to-travel—or, as Potter calls it, this right-to-reside—claim:

Is the right to intrastate travel in Washington protected under the Washington State Constitution, or other Washington law? If Washington state law protects the Tight to intrastate travel, does the RV [(recreational vehicle)] Parking Ordinance codified in LMC [(Laeey Municipal Code)] §§ 10.14.020-[.]045 violate Jack Potter’s intrastate travel rights?

Ord. Certifying Question to Wash. State Sup. Ct. at 2 (Aug. 18, 2022) (Ninth Cir. Ord.).

[1, 2] ¶4 We treat this two-part inquiry as a single question that asks, "Does the RV Parking Ordinance codified in LMC §§ 10.14.020-.045 violate Jack Potter’s claimed Washington State constitutional right to intrastate travel?" The answer to that question is no. Potter has not established that his claimed right to reside inheres in a Washington state constitutional right to intrastate travel or that it protects his preferred method of residing in Lacey: by siting his 23-foot trailer on a public street in violation of generally applicable parking ordinances.¹

Factual Background

¶5 The City enacted certain antiparking and related anticamping ordinances in 2019. At that time, Potter was a 62-year-old veteran who had lived in Lacey for most of the past 20 years. Excerpts of R. (ER) at 49-50 (Potter decl.). He had lived intermittently at a friend’s house, in a car, and for a time at a veterans’ outreach program that he ran. Id. at 52-53.

¶6 But Potter’s veterans’ program closed and Potter suffered a brief hospitalization. He then bought a 23-foot travel trailer, hitched it to his truck, and began living in it full time. Id. at 53. Sometimes he parked the travel trailer in private lots and other times he parked it on the Lacey streets. Id. In May 2019, Potter moved his trailer to the Lacey City Hall parking lot and began living there full-time, along with a group of other vehicle-sheltered individuals. Id. at 54-55.

¶7 But in the fall of 2019—seemingly in response to a regional rise in the number of people living or camping on public property—the City enacted an anticamping ordinance and an affordable housing strategy. Id. at 33-34 (Gundel decl.), 103 (Ordinance 1549 (anticamping)), 109 (Ordinance 1550 (affordable housing strategy)).

¶8 One of those ordinances, Ordinance 1551, barred a person from parking a "recreational vehicle, motor home, mobile home, trailer, camper, vessel or boat upon the improved or unimproved portion of any street, alley, public right-of-way, or publicly owned parking lot for more than four hours …." LMC 10.14.020(B); ER at 218-21 (Ordinance 1551 (parking)).

¶9 Ordinance 1551 contains two exceptions, but neither applied to Potter. The first exception allows a trailer owner to park temporarily for the purposes of loading or unloading. LMC 10.14.020(B)(l). The second exception allows a trailer owner to obtain a permit through a process controlled by Lacey’s city manager. LMC 10.14.020(B)(2), .045.

¶10 If neither exception applies and the trailer owner parks for more than four hours on Lacey public land, the ordinance bars the owner from parking the rig on any Lacey "street, alley, public right-of-way or publicly owned parking lot" for the following 24 hours. LMC 10.14.020(C). Lacey punishes violations of these parking provisions with a $35 fine and immediate impoundment of the trailer. LMC 10.14.040.

¶11 To implement Ordinance 1551, the city manager adopted a two-tiered permitting system for trailers and other large residential vehicles covered by the ordinance. LMC 10.14.020(B)(2), .045; ER at 220-21 (relevant portion of Ordinance 1551), 222-27 ("Temporary Parking Permit Policies and Procedures" manual). One permitting process applies to "residents," defined as a "Lacey homeowner or renter"; the other permitting process applies to "nonresidents," defined as an "[i]ndividual without a permanent address." ER at 223. The residents’ permitting process allows homeowners or renters to request up to four temporary permits each year for visitors. Id. Those permits allow visitors to park their trailer or vehicle for up to 48 hours within 150 feet of the requesting resident’s home. Id. To obtain these permits, the resident must provide proof of residency, the license plate numbers for the permitted vehicle, and the requester’s address. Id. at 223-24.

¶12 The nonresidents’ permitting, process allows someone without a permanent address—like Potter—to "receive a temporary parking permit in a designated permitted parking area," if the requester is "actively engaged with social services." Id. at 224. To obtain a permit, the nonresident must provide government-issued identification, proof of insurance and registration, and disclose all other occupants of the trailer or vehicle. Id. The Lacey Police Department must then conduct a background check on all of the vehicle’s occupants and may deny a permit if any of them have an outstanding warrant or are registered as a sex offender.² Id. at 224. Nonresident permits are valid only within designated areas of the City, only for the period indicated on the permit, and only for 12 (or fewer) hours per day. Id.³

¶13 In other words, as the Ninth Circuit summarized, these provisions effectively make it "impossible for vehicle-sheltered individuals to live in an RV on Lacey’s public land." Ninth Cir. Ord. at 5. As a result, shortly after Lacey enacted this ordinance, Potter and the other vehicle-sheltered individuals in the Lacey City Hall lot were ordered to leave or risk citations and impoundment. ER at 56. Potter complied and has since moved his trailer to Olympia, Washington. Id. at 59.

Procedural History

¶14 But Potter also sued. He filed his lawsuit against the City in August 2020 in Thurston County Superior Court. He alleged that Ordinance 1551 violated several provisions of the state and federal constitutions as applied to him and other "homeless people who live in their vehicles." Id. at 248 (complaint). But he later clarified, in both the trial court and in this court, that he raised his claims only for himself as an individual and challenged Ordinance 1551 only as applied to him, not on its face.⁴

¶15 Potter’s right to intrastate travel claim states in full:

By adopting and enforcing laws, policies and customs that make it unlawful for the homeless people living in their vehicles to live in the City of Lacey, the Defendants have deprived the Plaintiff of his right to freedom of travel guaranteed by the Washington Constitution. Defendants have denied Plaintiff his state constitutional right not to travel to another city within Washington State and not to live elsewhere in Washington State.

Id. at 258 (complaint). As this quote shows, Potter frames his claim as a "right not to travel." His briefing calls it a "right to reside." Br. of Pl. at 35.

¶16 Lacey removed the case to the federal district court for the Western District of Washington. The parties filed cross motions for summary judgment. ER at 286-87 (Lacey’s notice of removal), 12 (fed. dist. ct. ord.).

¶17 The district court...