Rental Hous. Ass'n of Wash. v. City of Fed. Way

520 P.3d 87

RENTAL HOUSING ASSOCIATION OF WASHINGTON, Appellants,

v.CITY OF FEDERAL WAY, a Washington municipal corporation, Respondents.

No. 83327-8-I

Court of Appeals of Washington, Division 1.

Filed November 14, 2022

Richard M. Stephens, Stephens & Klinge LLP, 10900 Ne 4th St. Ste. 2300, Bellevue, WA, 98004-5882, for Appellants.

Kim Adams Pratt, Eileen McPhee Keiffer, Madrona Law Group, PLLC, 14205 Se 36th St. Ste. 100, Bellevue, WA, 98006-1553, J. Ryan Call, City of Federal Way, 33325 8th Ave. S, Federal Way, WA, 98003-6325, Eric D. ‘Knoll’ Lowney, Alyssa Lee Koepfgen, Smith & Lowney, PLLC, 2317 E John St., Seattle, WA, 98112-5412, for Respondents.

PUBLISHED OPINION

Andrus, C.J.

¶1 Rental Housing Association of Washington (RHA) challenges a 2019 citizens’ initiative requiring landlords to have good cause to terminate a tenancy or to refuse a lease renewal and prohibiting discrimination against certain community members, such as health care providers and first responders, within the City of Federal Way (City). RHA argues the initiative is invalid because the city attorney refused to determine the initiative's appropriateness before it was placed on the ballot, as required by city ordinance. RHA also contends the initiative violates the single subject rule and impermissibly covers administrative, rather than legislative, topics beyond the scope of the City's initiative power. We reject these arguments and affirm the summary judgment dismissal of RHA's claims.

FACTS

¶2 In June 2019, the Washington Community Action Network (Washington CAN) submitted a petition to the City of Federal Way asking the city council to pass an ordinance requiring landlords to show good cause before evicting a tenant, along with other tenant protections. Pursuant to Federal Way Revised Code (FWRC) 1.30.040, the city clerk forwarded it to the city attorney for a determination as to the appropriateness of the initiative topic.

¶3 On July 3, 2019, the city attorney declined to issue the determination required under FWRC 1.30.040 because, in his opinion, to do so would violate state law in two respects. First, the city attorney concluded that "Washington courts have long held that reviewing the appropriateness of a proposed initiative is exclusively a judicial function and not a role for other governmental actors." Second, he concluded a determination on the appropriateness of the initiative topic would violate RCW 42.17A.555 ’s prohibition on the use of public facilities for the promotion or opposition of ballot propositions.

¶4 On July 16, 2019, the city council passed resolution 19-766, placing the initiative on the November ballot.¹ The initiative passed in the November 5, 2019, general election and is now codified as Federal Way Revised Code (FWRC) chapter 20.05.

¶5 Part one of the ordinance contains several findings related to the homelessness crisis in Federal Way and the impact of evictions on this crisis. Part two, entitled "Requiring Landlords to Comply with Tenant Protection of Laws and Show Good Cause Before Evicting a Tenant," creates a defense to eviction where the landlord lacks good cause and limits "good cause" to a set of specific listed situations.² Part three, entitled "Prohibiting Retaliatory Evictions," prohibits evictions "against a tenant for asserting rights or defenses afforded by this chapter or under another tenant protection law." Part four prohibits discriminatory evictions based upon a tenant's status as a member of the military, first responder, senior, family member, health care provider, or educator. Part five extends the good cause requirement and anti-discrimination protections to lease renewals. Part six imposes penalties for violating the ordinance and sets up procedures to enforce its protections. Part seven contains definitions of key terms used in the ordinance. Part eight contains miscellaneous provisions, including notice requirements and a provision prohibiting waiver of the ordinance's protections.

¶6 RHA brought this action seeking a judicial determination that the initiative is invalid on various constitutional grounds. Washington CAN intervened with the consent of the parties as the initiative's sponsor. RHA then moved for partial summary judgment on its claim that the City violated FWRC chapter 1.30 by failing to issue a determination of validity before placing the initiative on the ballot, its claim that the initiative violates the single subject rule set out in RCW 35A.12.130, and its claim that three sections of the initiative exceed the initiative powers by adopting administrative, rather than legislative, provisions. The City cross-moved for partial summary judgment, seeking the dismissal of the single subject rule claim, the claim that the initiative conflicts with state law in violation of article XI of the Washington Constitution, and the claim that the initiative violates RHA's right to substantive due process in violation of article I, § 3.

¶7 The trial court denied RHA's motion and granted the City's motion. The court concluded the City's failure to adhere to its initiative procedures did not invalidate the initiative because RCW 35A.11.100 "establishes field preemption with respect to the initiative process." The court further held that the initiative did not violate the single subject rule and fell within the legislative powers of the City and did not constitute administrative matters outside the scope of local initiative powers. The court also granted summary judgment for the City on RHA's substantive due process claim but reserved ruling on its void for vagueness claim. RHA voluntarily dismissed all remaining claims without prejudice and appealed.³

ANALYSIS

Standard of Review

¶8 We review a summary judgment order on the validity of an initiative de novo. City of Sequim v. Malkasian , 157 Wash.2d 251, 261, 138 P.3d 943 (2006). We engage in the same inquiry as the trial court. Id.

Conflict Preemption

¶9 RHA first contends the initiative is invalid because the City failed to follow its own procedures before placing it on the ballot. Because Federal Way's ordinance requiring the city attorney to determine an initiative's validity irreconcilably conflicts with state law reserving that power to the courts, state law preempts the city ordinance and the city attorney's action does not invalidate the initiative.

¶10 Federal Way is a noncharter code city governed by the Optional Municipal Code, RCW Title 35A. RCW 35A.11.080 permits such cities to "provide for the exercise in their city of the powers of initiative and referendum." Pursuant to this authority, Federal Way has adopted ordinances for submitting initiatives and referendums for placement on the ballot. FWRC 1.30.010.

¶11 FWRC 1.30.030 provides:

Ordinances may be initiated by petitions of electors of the city. If any individual, or group of individuals, desires to petition the council to enact a proposed measure, that individual or group shall file in the office of the city clerk five printed or typewritten copies of the measure proposed, accompanied by the name, post office and residence address of the proposer.

FWRC 1.30.040 provides:

Upon filing of the proposed initiative measure, the city clerk shall assign a number to each such initiative petition and transmit one copy of the measure proposed, bearing such number, to the city council, the mayor, and to the city attorney. Within five days after the receipt of the initiative measure and this request, the city attorney shall issue a determination as to the appropriateness of the topic of the initiative measure as defined by this chapter. In the event the initiative measure is determined valid pursuant to this chapter, and within 14 days after the receipt of an initiative measure, the city attorney shall formulate therefor and transmit to the city clerk, the city council, the mayor, and the individual or group proposing such a measure, an initiative statement in the form of a question containing the essential features of the measure.

(Emphasis added.) Under FWRC 1.30.160:

If the petition accompanying the proposed ordinance is signed by the registered voters in the city as required by state law and, if it contains a request that, unless passed by the city council, the ordinance be submitted to a vote of the people, the council shall either:

(1) Pass the proposed ordinance without alteration within 45 days after the city clerk's certificate that the number of signatures on the petition is sufficient; or

(2) Upon receipt of the certificate of sufficiency with the attached petition, the city clerk will notify the city council for submission of the proposed ordinance without alteration to a vote of the people at the next general election.

¶12 The city attorney declined to follow FWRC 1.30.040 before the city council voted to place the initiative on the ballot because he believed the ordinance conflicted with Washington law. He was correct.

¶13 State law preempts a local ordinance in one of two ways: when state law occupies the field being regulated, leaving no room for concurrent jurisdiction, or when a conflict exists such that the state law and the ordinance cannot be harmonized. Lawson v. City of Pasco , 168 Wash.2d 675, 679, 230 P.3d 1038 (2010). The party arguing the invalidity of an ordinance (in this case, the City) bears the burden of establishing preemption. Cannabis Action Coalition v. City of Kent , 183 Wash.2d 219, 226, 351 P.3d 151 (2015).

¶14 Under our conflict preemption precedents, a state law preempts a local ordinance "when an ordinance permits what state law forbids or forbids what state law permits." Lawson , 168 Wash.2d at 682, 230 P.3d 1038. State law preempts an ordinance if the ordinance directly and irreconcilably conflicts with the state law. Id.

¶15 There is a direct and irreconcilable conflict between Federal Way's requirement that the city attorney determine the validity of any initiative before forwarding it to the clerk to put on the ballot and our jurisprudence on...