Case 2:18-cv-00736-JCC Document 54 Filed 02/05/19 Page 1 of 3

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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CHONG and MARILYN YIM, et al.,

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Plaintiffs,

ORDER

v.

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CASE NO. C18-0736-JCC

THE CITY OF SEATTLE,

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Defendant.

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This matter comes before the Court on Defendant’s motion to certify a question to the

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Washington Supreme Court (Dkt. No. 51). Having thoroughly considered the parties’ briefing

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and the relevant record, the Court hereby GRANTS the motion for the reasons explained herein.

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I.

BACKGROUND

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Plaintiffs, individual landlords and a membership association providing screening

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services to its landlord members, have filed suit against the City of Seattle. (Dkt. No. 1-1 at 2–3.)

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They challenge the constitutionality of Seattle Municipal Code § 14.09 (“Fair Chance Housing

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Ordinance”). (Id. at 4.) Specifically, they allege that a subsection of the ordinance, which

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generally precludes landlords from inquiring about a tenant or a prospective tenant’s criminal

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history or from taking adverse action against the same based on criminal history, violates

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landlords’ free speech and substantive due process rights. (Id. at 14–18.)

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The parties have filed cross motions for summary judgment. (Dkt. Nos. 23, 33.) Various
ORDER
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interested parties have filed amicus curiae briefs in support of both sides. (Dkt. Nos. 38, 39, 40,

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42, 43, 44.) At the end of the summary judgment briefing schedule, Defendant moved the Court

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to certify the following question to the Washington Supreme Court—what is the proper standard

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for evaluating substantive due process claims that arise under the Washington Constitution?

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(Dkt. No. 51.) Plaintiffs oppose the motion because they argue that the law is clear and that the

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question is not dispositive to this case. (Dkt. No. 52.)

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II.

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DISCUSSION
A federal court may certify to the Washington Supreme Court a question of Washington

law involved in the underlying federal case when “it is necessary to ascertain the local law . . . in

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order to dispose of such proceeding and the local law has not been clearly determined.” Wash.

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Rev. Code § 2.60.020. The certification process serves the important judicial interests of

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efficiency and comity. Certification saves “time, energy, and resources and helps build a

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cooperative judicial federalism.” Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974).

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The Court finds several important reasons to certify the proposed question to the

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Washington Supreme Court. First, the case involves an important and far-reaching issue of local

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law and public policy. Second, the Washington Supreme Court has not squarely answered what

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the proper standard is for a substantive due process claim arising under these or similar

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circumstances. Third, the Washington Supreme Court may soon decide this same question in

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another case and this Court is therefore wary about applying a potentially inaccurate standard

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under state law. (See Dkt. No. 52-3.) For those reasons, this matter should be presented for

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expedited review to the Washington Supreme Court. The following questions are hereby

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certified to the Washington Supreme Court:

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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?
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3. What standard should be applied to Seattle Municipal Code § 14.09 (“Fair Chance

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Housing Ordinance”)?

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The Court does not intend its framing of the questions to restrict the Washington

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Supreme Court’s consideration of any issues that it determines are relevant. The Washington

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Supreme Court may in its discretion reformulate the questions, if it decides to consider the

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questions. Affiliated FM Ins. Co. v. LTK Consulting Servs. Inc., 556 F.3d 920, 922 (9th Cir.

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2009).

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The Clerk is DIRECTED to submit to the Washington Supreme Court a certified copy of
this order; a copy of the docket in the above-captioned matter; and Docket Numbers 23, 24, 33,

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38, 39, 40, 42, 43, 44, 48, 50, 51, and 52 in this case. The record so compiled contains all matters

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in the pending case deemed material for consideration of the local law questions certified for

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answer.

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III.

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CONCLUSION
For the foregoing reasons, Defendant’s motion to certify a question to the Washington

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Supreme Court (Dkt. No. 51) is GRANTED. The matter is STAYED until the Washington

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Supreme Court answers the certified questions. Defendant shall file the opening brief on the

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certified questions, in accordance with the Washington Rules of Appellate Procedure. The Clerk

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is DIRECTED to terminate all pending motions and case management deadlines.

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DATED this 5th day of February 2019.

A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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