Case 2:18-cv-00736-JCC Document 51 Filed 01/11/19 Page 1 of 7 The Honorable John C. Coughenour 1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 5 6 7 8 YIM, et al., No. Plaintiffs, 9 10 11 vs. CITY OF SEATTLE, CITY OF SEATTLE’S MOTION TO CERTIFY A QUESTION TO THE WASHINGTON SUPREME COURT NOTE ON MOTION CALENDAR: Friday, February 1, 2019 Defendant. 12 13 2:18-cv-736-JCC I. INTRODUCTION AND RELIEF REQUESTED 14 The City of Seattle respectfully asks this Court to certify a question to the Washington 15 Supreme Court: What analysis does that court apply to a substantive due process claim arising 16 under the Washington Constitution? This Court should defer to the Washington Supreme Court 17 to resolve that issue. Many of the same plaintiffs in this case, represented by the same counsel, 18 have raised that question in a case the Washington Supreme Court recently agreed to hear on 19 direct review. Certification would provide an efficient means of ensuring the Washington 20 Supreme Court answers that question directly. The City also asks this Court to stay this action 21 pending resolution of the question by the Washington Supreme Court. 22 23 CITY’S MOTION TO CERTIFY A QUESTION - 1 YIM ET AL. V. CITY OF SEATTLE, NO. 2:18-cv-736-JCC Peter S. Holmes Seattle City Attorney 701 Fifth Ave., Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00736-JCC Document 51 Filed 01/11/19 Page 2 of 7 II. 1 2 A. 3 4 5 6 7 8 11 King County Superior Court to the City’s First-in-Time (“FIT”) Rule, which essentially requires a landlord to notify prospective tenants of the landlord’s screening criteria and offer tenancy to the first applicant meeting them (“Yim I”).1 Represented by Ethan Blevins and Brian Hodges of the Pacific Legal Foundation, the Yim I Plaintiffs allege the FIT Rule facially violates landlords’ substantive due process rights under the Washington Constitution.2 In March 2018, the trial court granted the Yim I Plaintiffs’ cross motion for summary judgment and denied the City’s.3 The City filed a notice of appeal to the Washington Supreme Court.4 12 13 14 On November 28, 2018, after the parties briefed the appeal, the Washington Supreme Court agreed to consider the City’s appeal on direct review.5 That Court has not yet set an oral argument date. 15 B. 16 Many of the same plaintiffs, represented by the same counsel, raise the same issue before this Court in Yim II. On May 1, 2018, while Yim I was pending before the Washington Supreme Court, three 17 18 The Yim I Plaintiffs brought a substantive due process claim now before the Washington Supreme Court. In March 2017, five Seattle landlords (“Yim I Plaintiffs”) initiated a facial challenge in 9 10 RELEVANT FACTS of the Yim I Plaintiffs and the Rental Housing Association of Washington (“Yim II Plaintiffs”) 19 20 21 22 23 City’s Yim I Opening at 11 – 12 (Cert. App. 25 – 26). “Cert. App.” refers to the Appendix to this motion, which comprises four Yim I Supreme Court documents: (1) City’s Opening Brief (appendices omitted); (2) Yims’ Respondents’ Brief; (3) City’s Reply Brief (appendix omitted); and (4) Order granting direct review. 1 2 Yims’ Yim I Response at 23 – 41, 48 (Cert. App. 104 – 122, 129). 3 See City’s Yim I Opening at 13 (Cert. App. 27). 4 See id. 5 Yim I Order (Cert. App. 162). CITY’S MOTION TO CERTIFY A QUESTION - 2 YIM ET AL. V. CITY OF SEATTLE, NO. 2:18-cv-736-JCC Peter S. Holmes Seattle City Attorney 701 Fifth Ave., Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00736-JCC Document 51 Filed 01/11/19 Page 3 of 7 1 initiated this action challenging the City’s Fair Chance Housing Ordinance (“Yim II”).6 2 Represented by Mr. Blevins and Mr. Hodges, the Yim II Plaintiffs raise the same claim made in 3 Yim I: that a City regulation facially violates landlords’ substantive due process rights under the 4 Washington Constitution.7 Today the Yim II Plaintiffs and the City concluded their briefing of cross motions for 5 6 summary judgment before this Court. III. 7 Under the Washington Federal Court Local Law Certificate Procedure Act, federal courts 8 9 ARGUMENT may certify questions to the Washington Supreme Court when “necessary to ascertain the local 10 law of this state in order to dispose of such proceeding and the local law has not been clearly 11 determined.”8 Certification allows federal courts to obtain authoritative answers to unclear 12 questions of state law, and is particularly appropriate where the issues are complex and raise 13 significant policy implications.9 Certification “does, of course, in the long run save time, energy 14 and resources and helps build a cooperative judicial federalism.”10 Courts request certification 15 “not because a difficult legal issue is presented but because of deference to the state court on 16 significant state law matters.”11 This Court should certify to the Washington Supreme Court the question of the proper 17 18 analysis to apply to substantive due process claims under the Washington Constitution. 19 20 21 22 23 6 See Complaint, Dkt. # 1-1. See also Notice of Removal, Dkt. # 1. 7 Pls.’ Mot. for Sum. J., Dkt. # 23 at 21 – 24. 8 RCW 2.60.020. Accord Wash. RAP 16.16 (the procedure for implementing ch. 2.60 RCW). 9 Centurion Props. III, LLC v. Chicago Title Ins. Co., 793 F.3d 1087, 1089 (9th Cir. 2015). 10 Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974). 11 Kremen v. Cohen, 325 F.3d 1035, 1037 (9th Cir. 2003). CITY’S MOTION TO CERTIFY A QUESTION - 3 YIM ET AL. V. CITY OF SEATTLE, NO. 2:18-cv-736-JCC Peter S. Holmes Seattle City Attorney 701 Fifth Ave., Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00736-JCC Document 51 Filed 01/11/19 Page 4 of 7 That question is unresolved. The parties disagree on the answer: the City maintains 1 2 “rational basis” is the proper analysis, but the Yim I and II Plaintiffs believe it is “undue 3 oppression.”12 Courts have not provided a clear answer: although the Washington Supreme Court 4 has invoked only the “rational basis” analysis since 2006 and several Washington Court of 5 Appeals decisions have also invoked “rational basis” since then, other decisions—including one 6 from the Ninth Circuit Court of Appeals—have invoked “undue oppression.”13 7 The controlling analysis is a significant issue for the balance of power in Washington 8 government. Washington will either allow courts wide discretion to second-guess legislative 9 choices under the “undue oppression” analysis, or direct courts to accord legislative bodies the 10 same deference they enjoy under the federal “rational basis” analysis. The question is complex. As the briefing demonstrates, resolving it requires tracing 11 12 Washington and federal case law back to the 1890s.14 Although this Court can capably handle 13 complexity, the more appropriate course would be to defer to the Washington Supreme Court to 14 untangle that authority and interpret the Washington Constitution. Plaintiffs concede the 15 Washington Supreme Court is the appropriate body to resolve the question, but mistakenly claim 16 the City has waived its chance to seek that review.15 The case they cite certified a question; it did 17 not discuss waiver.16 18 See, e.g., City’s Yim I Opening at 15 – 25 (Cert. App. 29 – 39); City’s Opp. & Cross Mot., Dkt. # 33 at 22 – 27; cf. Yims’ Yim I Response at 23 – 29 (Cert. App. 104 – 110); Pls.’ Mot. for Sum. J., Dkt. # 23 at 17 – 20; Pls.’ Opp. to XMSJ & Reply, Dkt. # 48 at 32 – 34. 12 19 20 21 22 13 See City’s Opp. & Cross Mot., Dkt. # 33 at 26. See, e.g., City’s Yim I Reply at 2 – 8 (Cert. App. 138 – 144); City’s Opp. & Cross Mot., Dkt. # 33 at 23 – 26; Pls.’ Opp. to XMSJ & Reply, Dkt. # 48 at 32 – 34. 14 15 Pls.’ Opp. to XMSJ & Reply, Dkt. # 48 at 32:19 – 24. 16 23 Moore v. King Cty. Fire Prot. Dist. No. 26, 545 F.3d 761, 764 (9th Cir. 2008). The Ninth Circuit later withdrew the question after confirming the Washington Supreme Court had issued a decision in another case answering the certified question. Moore v. King County Fire Prot. Dist. No. 26, 555 F.3d 1096 (2009). CITY’S MOTION TO CERTIFY A QUESTION - 4 YIM ET AL. V. CITY OF SEATTLE, NO. 2:18-cv-736-JCC Peter S. Holmes Seattle City Attorney 701 Fifth Ave., Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00736-JCC Document 51 Filed 01/11/19 Page 5 of 7 This Court cannot count on Yim I to answer the question. The Washington Supreme 1 2 Court could obviate the substantive due process issue there by ruling against the City on one of 3 the Yim I Plaintiffs’ other claims. This Court should certify the due process question to ensure 4 the Washington Supreme Court resolves it. Judicial economy and principles of federalism and comity favor certification. This 5 6 situation is analogous to one where the Ninth Circuit Court of Appeals certified an important 7 Washington constitutional question upon learning of a pending Washington Supreme Court 8 action raising the same issue: 11 Judicial economy favors allowing the state court the option of considering these cases together. [T]he question presented is an important one of state constitutional law that implicates the balance of power in the Washington state government. Principles of federalism and comity militate in favor of allowing the state to dictate which branch of government has the power to decide its own law.17 12 This Court should stay this action pending resolution of the question by the Washington 9 10 13 Supreme Court. In the interests of efficiency and fairness, this Court may stay an action pending 14 resolution of independent proceedings bearing on the action.18 Sparing this Court from resolving 15 the certified question would be efficient, especially when the issue is already pending before the 16 Washington Supreme Court. A stay would also be fair for the parties, even if the Yim II Plaintiffs 17 would prefer a speedier ruling from this Court—where the same attorneys raise the same legal 18 issue on behalf of many of the same clients in overlapping cases, they cannot complain when 19 courts pause to resolve the issue authoritatively and consistently. 20 21 22 17 Moore, 545 F.3d at 763. Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863 – 64 (9th Cir. 1979). See, e.g., Queen Anne Park Homeowners Ass’n v. State Farm Fire & Cas. Co., 763 F.3d 1232, 1235 (9th Cir. 2014) (staying proceedings pending resolution of a question certified to the Washington Supreme Court). 18 23 CITY’S MOTION TO CERTIFY A QUESTION - 5 YIM ET AL. V. CITY OF SEATTLE, NO. 2:18-cv-736-JCC Peter S. Holmes Seattle City Attorney 701 Fifth Ave., Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00736-JCC Document 51 Filed 01/11/19 Page 6 of 7 IV. 1 2 CONCLUSION To defer to the Washington Supreme Court on this significant issue of Washington 3 constitutional law, the City respectfully asks this Court to certify the question of what analysis 4 applies to a substantive due process claim under the Washington Constitution and stay further 5 proceedings in this Court pending resolution of the certified question. 6 7 8 9 10 11 12 13 14 Respectfully submitted, January 11, 2019, PETER S. HOLMES Seattle City Attorney SUMMIT LAW GROUP PLLC By: s/Roger D. Wynne s/Sara O’Connor-Kriss Roger D. Wynne, WSBA #23399 Phone: (206) 233-2177 Sara O’Connor-Kriss, WSBA #41569 Phone (206) 615-0788 Seattle City Attorney’s Office 701 5th Avenue, Suite 2050 Seattle, WA 98104 Roger.Wynne@seattle.gov Sara.OConnor-Kriss@seattle.gov Attorneys for Defendant City of Seattle By: s/Jessica L. Goldman Jessica L. Goldman, WSBA #21856 Summit Law Group 315 5th Ave. South, Suite 1000 Seattle, WA 98104 Phone: (206) 676-7062 jessicag@summitlaw.com Attorneys for Defendant City of Seattle 15 16 17 18 19 20 21 22 23 CITY’S MOTION TO CERTIFY A QUESTION - 6 YIM ET AL. V. CITY OF SEATTLE, NO. 2:18-cv-736-JCC Peter S. Holmes Seattle City Attorney 701 Fifth Ave., Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00736-JCC Document 51 Filed 01/11/19 Page 7 of 7 CERTIFICATE OF SERVICE 1 2 I certify that on this day I electronically filed this document with the Clerk of the Court using the CM/ECF system which will send notification of such filing to: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Brian T. Hodges Ethan W. Blevins Pacific Legal Foundation 10940 NE 33rd Place, Ste. 210 Bellevue, WA 98004 425-576-0484 bth@pacificlegal.org eblevins@pacificlegal.org Attorneys for Plaintiffs Melissa R. Lee Robert S. Chang Ronald A. Peterson Law Clinic 1112 E. Columbia St. Seattle, WA 98122 206-398-4394 leeme@seattleu.edu changro@seattleu.edu Attorneys for Amici Curiae Fred T. Korematsu Center for Law and Equality and ACLU-WA Hillary Madsen Kimberlee L. Gunning Nicholas Brian Allen Columbia Legal Services 101 Yesler Way, Ste. 300 Seattle, WA 98104-2552 206-464-0838 hillary.madsen@columbialegal.org Kim.Gunning@columbialegal.org nick.allen@columbialegal.org Attorneys for Amici Curiae Pioneer Human Services and Tenants Union of Washington Eric Dunn National Housing Law Project 919 E. Main Street, Ste. 610 Richmond, VA 23219 415-546-7000 ext. 3102 edunn@nhlp.org Attorney for Amici Curiae National Housing Law Project and Sargent Shriver National Center on Poverty Law Michael J. Saltz Jacobsen, Russell, Saltz, Nassim & De La Torre, LLP 1880 Century Park East, Suite 900 Los Angeles, CA 90067 msaltz@jrsnd.com 310-446-9900 and Jeffrey E. Bilanko Carroll, Biddle, & Bilanko, PLLC 801 2nd Avenue, Suite 800 Seattle, WA 98104 206-489-5549 jbilanko@cbblegal.com Attorneys for Amicus Curiae NCRA Douglas E. Smith Littler Mendelson, P.C. 600 University Street, Suite 3200 Seattle, WA 98101-3122 206-623-3300 desmith@littler.com Attorneys for Amici Curiae CDIA/NAPBS DATED January 11, 2019. s/ Marisa Johnson Marisa Johnson 23 CITY’S MOTION TO CERTIFY A QUESTION - 7 YIM ET AL. V. CITY OF SEATTLE, NO. 2:18-cv-736-JCC Peter S. Holmes Seattle City Attorney 701 Fifth Ave., Suite 2050 Seattle, WA 98104-7097 (206) 684-8200