The Honorable Roger Rogoff Noted for: November 13, 2020 at 10AM With Oral Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING The WASHINGTON FOOD INDUSTRY ASSOCIATION, a Washington corporation, and MAPLEBEAR INC., d/b/a INSTACART, a Delaware corporation, ) ) ) ) ) Plaintiffs, ) ) vs. ) ) CITY OF SEATTLE, a municipal corporation; ) ) Defendant. ) ) Civil Case No.: 20-2-10541-4 SEA CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT Noted for: November 13, 2020 at 10AM With Oral Argument 15 PETER S. HOLMES Seattle City Attorney 16 Jeremiah Miller WSBA #40949 Erica R. Franklin WSBA #43477 Assistant City Attorneys Attorneys for Defendant, The City of Seattle 17 18 19 20 21 22 23 Seattle City Attorney’s Office 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 TABLE OF CONTENTS 1 Page(s) 2 3 I. RELIEF REQUESTED ................................................................................................................ 1 4 II. STATEMENT OF FACTS .......................................................................................................... 1 5 6 7 III. STATEMENT OF ISSUES ......................................................................................................... 4 IV. EVIDENCE RELIED ON............................................................................................................ 4 V. AUTHORITY & ARGUMENT .................................................................................................. 5 A. Civil Rule 12(b)(6) ............................................................................................................. 5 8 B. The Ordinance is a proper exercise of the City’s police powers. ...................................... 6 9 10 11 12 1. The City’s police powers are broad, providing authority to regulate working conditions in the City. .................................................................................................. 6 2. The City’s police powers are at their maximum in addressing emergencies like the public health crisis caused by COVID-19. .................................................................. 7 3. Plaintiffs’ contention that the Ordinance is beyond the scope of the City’s police powers is meritless. ...................................................................................................... 9 13 a. The Ordinance is unquestionably related to public safety and health. ............... 10 b. The Ordinance’s requirements are not extreme.................................................. 12 14 15 C. The Ordinance is not forbidden by Chapter 82.84 RCW................................................. 13 16 17 D. The Ordinance does not violate the State or federal constitutions................................... 17 1. The Ordinance does not effect a “taking.” ................................................................. 18 18 a. The pandemic requires rejection of Instacart’s takings claims. ......................... 18 19 b. The portions of Instacart’s business affected by the Ordinance do not qualify for takings protections. ............................................................................................. 19 c. Regulations that merely adjust the benefits and burdens of economic life to advance the common good are not takings......................................................... 20 20 21 22 2. The Ordinance does not violate the Washington Constitution’s privileges and immunities clause....................................................................................................... 22 23 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- i Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 2 3 4 3. The Ordinance does not violate the federal or Washington Constitutions’ Contracts Clauses. ...................................................................................................................... 27 4. The Ordinance does not violate equal protection guarantees. ................................... 30 E. Instacart is not entitled to damages or attorneys’ fees under 42 U.S.C. § 1983. ............. 33 VI. CONCLUSION .......................................................................................................................... 33 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- ii Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 TABLE OF AUTHORITIES Page(s) 2 3 Cases 4 Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978) .......................................................... 27 5 Alsop v. Desantis, 2020 WL 4927592 (M.D. Fla. Aug. 21, 2020) ...................................................... 8 6 Am. Legion Post #149 v. Washington State Dep’t of Health, 164 Wn.2d 570 (2008). ................................................................................................ 23, 24, 25, 31 7 Amalgamated Transit Union Local 587 v. State, 142 Wn. 2d 183 (2000). ....................................... 15 8 Amunrud v. Bd. of Appeals, 158 Wn. 2d 208 (2006) ................................................................... 31, 32 9 Andersen v. King Cty., 158 Wn. 2d 1 (2006) .................................................................................... 38 10 Andrus v. Allard, 444 U.S. 51 (1979) .......................................................................................... 20, 21 11 Ass’n of Washington Spirits and Wine Distribs. v. Washington State Liquor Control Bd., 182 Wn.2d 342 (2015). ................................................................................................ 23, 24, 25, 26 12 13 14 15 16 17 Bd. of Regents v. Roth, 408 U.S. 564 (1972) ..................................................................................... 20 Blocktree Properties, LLC v. Public Utility Dist. No. 2 of Grant Cty, Washington, 380 F. Supp.3d 1002 (E.D. Wash. 2019) ................................................................................. 24, 25 Bowles v. Willingham, 321 U.S. 503 (1944) ...................................................................................... 19 Mugler v. Kansas, 123 U.S. 623 (1887) ............................................................................................ 18 City of Seattle v. Webster, 115 Wn. 2d 635 (1990)........................................................................... 10 City of Spokane v. Taxpayers of City of Spokane, 111 Wn. 2d 91 (1988) ................................... 14, 15 18 City of Tacoma v. Fox, 158 Wn. 325 (1930). ...................................................................................... 6 19 City of Walla Walla v. Ferdon, 21 Wash. 308 (1899). ...................................................................... 10 20 21 22 23 Classic Cab, Inc. v. D.C., 288 F. Supp. 3d 218 (D.D.C. 2018) ....................................... 18, 19, 20, 21 Connolly v. Pension Benefit Guaranty Corp, 475 U.S. 211 (1986)....................................... 21, 22, 23 Cougar Business Owners Assn. v. State, 97 Wn. 2d 466 (1982) ............................................. 9, 13, 19 Covell v. City of Seattle, 127 Wn. 2d 874 (1995) ................................................................................ 6 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- iii Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 Cross Culture Christian Ctr. v. Newsom, 2020 WL 2121111 (E.D. Cal. 2020) ................................. 8 2 Dep’t of Rev. v. Hoppe, 82 Wn. 2d 549 (1973) ................................................................................. 14 3 Dex Media West, Inc. v. City of Seattle, 2011 WL 4352121 (W.D. Wash. 2011) ............................ 25 4 5 6 E. N.Y. Sav. Bank v. Hahn, 326 U.S. 230 (1945) ......................................................................... 28, 30 Elmsford Apartment Associates v. Cuomo,2020 WL 3498456 (S.D.N.Y. 2020) ............................. 22 Energy Reserves Group, Inc. v. Kan. Power and Light Co., 459 U.S. 400 (1983) ............... 28, 29, 30 7 Fed. Home Loan Mortgage Corp. N.Y. Div. Housing & Cmty. Renewal, 83 F.3d 45, 48 (2nd. Cir. 1996) ......................................................................................... 20, 21, 22 8 Federal Communications Comm’n v. Beach Communications, Inc., 508 U.S. 307 (1993). ............ 32 9 Filo Foods, LLC v. City of SeaTac, 183 Wn. 2d 770 (2015). .............................................................. 7 10 Friends of Danny DeVito v. Wolf, 227 A.3d 872 (Pa. 2020) ............................................................. 19 11 Gen. Offshore Corp. v. Farrelly, 743 F. Supp. 1177 (D.V.I. 1990) .................................................. 29 12 13 Gibbons v. Ogden, 22 U.S. 1 (1824) .................................................................................................... 7 Gorman v. Garlock, Inc., 155 Wn. 2d 198 (2005). .............................................................................. 5 14 Haberman v. Washington Pub. Power Supply Sys., 109 Wn. 2d 107 (1987), amended, 109 Wn.2d 107 (1988).................................................................................................... 4 15 Heinsma v. City of Vancouver, 144 Wn. 2d 556 (2001) .................................................................... 14 16 Hillis Homes, Inc. v. Snohomish County, 97 Wn. 2d 804 (1982) ........................................................ 6 17 Hi–Starr, Inc. v. Liquor Control Bd., 106 Wn. 2d 455 (1986) .......................................................... 14 18 Hodel v. India, 452 U.S. 314 (1981) ...................................................................................... 17, 31, 33 19 20 21 Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934) ......................................... 27, 28, 29, 30 Hudson Water Co. v. McCarter, 209 U.S. 349 (1908) ...................................................................... 28 In re Abbott, 954 F.3d 772 (5th Cir. 2020) .............................................................................. 8, 13, 18 In re Estate of Hambleton, 181 Wn.2d 802 (2014)...................................................................... 27, 28 22 In re Rutledge, 956 F.3d 1018 (8th Cir. 2020)..................................................................................... 8 23 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- iv Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 Int’l Franchise Ass’n, Inc. v. City of Seattle, 97 F. Supp.3d 1256 (W.D. Wash. 2015) .................... 24 2 Int'l Franchise Ass'n, Inc. v. City of Seattle, 803 F.3d 389 (9th Cir. 2015) ....................................... 33 3 Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838 (2015) ........................................................ 4 4 5 6 Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) .......................................... passim Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450 (1988) ................................................................... 32 Ketcham v. King Cty. Med. Serv. Corp., 81 Wn. 2d 565 (1972) ......................................................... 7 7 King Cty. Fire Prot. Dists. No. 16, No. 36 & No. 40 v. Hous. Auth. of King Cty., 123 Wn. 2d 819 (1994) .................................................................................................................. 15 8 Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973)..................................................... 33 9 Levin v. Commerce Energy, Inc., 560 U.S. 413 (2010) ..................................................................... 17 10 Manufactured Hous. Cmtys of Washington v. State, 142 Wn. 2d 347 (2000) ................................... 13 11 Margola Assocs. v. City of Seattle, 121 Wn. 2d 625 (1993) .............................................................. 29 12 13 Marquis v. City of Spokane, 130 Wn. 2d 97 (1996) ............................................................................ 7 McCarthy v. Cuomo, 2020 WL 3286530 (E.D.N.Y. 2020) ............................................................... 18 McCutcheon v. United States, 145 Fed. Cl. 42 (Fed. Cl. 2019) ......................................................... 19 14 Mission Springs, Inc. v. City of Spokane, 134 Wn. 2d 947 (1998) .................................................... 34 15 Munn v. People of State of Illinois, 94 U.S. 113 (1876) ...................................................................... 5 16 17 18 Nat’l Amusements, Inc. v. Borough of Palmyra, 716 F.3d 57 (3rd Cir. 2013) .................................. 19 Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ................................................................................... 32 Ockletree v. Franciscan Health Syst., 179 Wn.2d 769 (2014) .............................................. 23, 26, 31 19 Optimer Int'l, Inc. v. RP Bellevue, LLC, 151 Wn.App. 954 (2009). ............................................ 27, 28 20 Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978) ............................................ 21, 22 21 Petstel, Inc. v. King Cty., 77 Wn. 2d 144 (1969) ............................................................................. 7, 9 22 Phillips v. City of New York, 775 F.3d 538 (2nd Cir. 2015) .............................................................. 13 23 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- v Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 Ralph v. City of Wenatchee, 34 Wn.2d 638 (1949) ........................................................................... 25 2 RUI One Corp. v. City of Berkeley, 371 F.3d 1137 (9th Cir. 2004) cert. denied 543 U.S. 1081 (2005) ................................................................................................... 6 3 4 5 6 S. Bay United Pentecostal Church v Newsom, 140 S. Ct. 1613 (2020) ......................................... 8, 13 Schmeer v. Cty. of Los Angeles, 213 Cal. App. 4th 1310 (2013). ...................................................... 16 Seattle Newspaper-Web Pressmen's Union Local No. 26 v. City of Seattle, 24 Wn. App. 462 (1979) .................................................................................................................. 7 7 Slidewaters LLC v. Washington Dep't of Labor & Indus, 2020 WL 3130295 (E.D. Wash., June 12, 2020); 2020 WL 3979661 (E.D. Wash. July 14, 2020) .............................. 8, 9 8 State v. Buchanan, 29 Wash. 602 (1902) ............................................................................................. 7 9 State v. Kirwin, 165 Wn. 2d 818 (2009) ............................................................................................ 14 10 State v. Malone, 9 Wn. App. 122 (1973) ......................................................................................... 5, 9 11 State v. Smith, 93 Wn. 2d 329 (1980). ............................................................................................... 12 12 Stute v. P.B.M.C., Inc., 114 Wn. 2d 454 (1990) .................................................................................. 7 13 14 Tyrpak v. Daniels, 124 Wn.2d 146 (1994)......................................................................................... 27 U.S. Tr. Co. of New York v. New Jersey, 431 U.S. 1 (1977).............................................................. 30 United States v. Chalk, 441 F.2d 1277 (4th Cir. 1971) ...................................................................... 10 15 United States v. Gen. Motors Corp., 323 U.S. 373 (1945) .......................................................... 19, 20 16 Usery v. Turner Elkhorn Mining Co, 428 U.S. 1 (1976) ................................................................... 22 17 Vance v. Bradley, 440 U.S. 93 (1979) ................................................................................... 31, 32, 33 18 19 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) ........................................................... 6, 12, 28 Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980) ............................................................................... 33 20 Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483 (1955) ........................................ 5, 17, 32 21 Workman v. Mingo Cty. Bd. of Ed., 419 Fed. Appx. 348 (4th Cir. 2011) ......................................... 13 22 Yee v. City of Escondido, 503 U.S. 519 (1992).................................................................................. 22 23 Yim v. City of Seattle, 194 Wn. 2d 651 (2019) ........................................................................... passim CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- vi Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 Zucht v. King, 260 U.S. 174 (1922) ................................................................................................... 13 2 3 Statutes 4 RCW 82.84 ................................................................................................................................ passim 5 42 U.S.C. § 1983 ............................................................................................................................... 33 6 7 8 Rules CR 12(b)(6). ..................................................................................................................................... 4, 5 9 Internet Sources 10 11 12 13 14 15 16 17 18 Centers for Disease Control, Corona Virus 2019 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.................................... 2 Governor’s Proclamation, 20-25 and Appendix, https://www.governor.wa.gov/sites/default/files/WA%20Essential%20Critical%20Infrastructure %20Workers%20%28Final%29.pdf .......................................................................................... 2, 11 WA State Dept. of Health (DOH) https://www.doh.wa.gov/Emergencies/NovelCoronavirusOutbreak2020COVID19/ DataDashboard ..................................................................................................................................... 2 Mayor Jenny Durkan also declared a state of emergency in Seattle on March 3, 2020. https://durkan.seattle.gov/wp-content/uploads/sites/9/2020/03/COVID-19-MayoralProclamation-of-Civil-Emergency.pdf ............................................................................................ 2 19 2018 Voter’s Pamphlet, available at https://www.sos.wa.gov/_assets/elections/research/2018/-ed05all%209.12%20low%20res.pdf ........................................................................................... 4, 15, 16 20 Ordinances 21 Ordinance No. 126094 ................................................................................................................ passim 22 Ordinance No. 126122 ..................................................................................................................... 3, 4 23 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- vii Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 Constitutional Provisions 2 3 Cal. Const. art. 13C, § 2(b), (d ........................................................................................................... 16 4 U.S. Const., amend. V.................................................................................................................... 5, 18 5 6 7 U.S. Const., amend. XIV ............................................................................................................... 5, 30 U.S. Const., Art. I, §10 ...................................................................................................................... 27 Wash. Const. art. I, Section 12....................................................................................................Passim Wash. Const. art. I, Section 16....................................................................................................Passim 8 Wash. Const. Art. XI, § 11............................................................................................................. 6, 10 9 Law Reviews 10 11 Hugh Spitzer, "Home Rule" vs. "Dillon's Rule" for Washington Cities, 38 Seattle U. L. Rev. 809 (2015) ..................................................................................................... 6 12 13 14 15 16 17 18 19 20 21 22 23 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- viii Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 I. RELIEF REQUESTED 2 In the midst of a global pandemic, Defendant City of Seattle (“City”) enacted Ordinance No. 3 126094 (Ordinance),1 a law that ensures that at-home food delivery services continue to be available 4 and that the workers providing those services are properly compensated for the hazards they brave to 5 protect their customers and the general public from COVID-19. The City, Governor Inslee, and even 6 Plaintiffs agree that providing at-home delivery of food is critical to combating the COVID-19 7 pandemic. The City, exercising its Constitutional powers, determined that the Ordinance was a 8 method of protecting that critical service. 9 Plaintiffs now ask this Court to override the City’s legislative functions and decide that the 10 methods the City selected to protect this vital service are impermissible. Because the Ordinance falls 11 squarely within the scope of the City’s police power authority to regulate working conditions for 12 public safety, health, and general welfare, and because the Ordinance does not violate State law or 13 any constitutional provisions, this Court should dismiss this action. Plaintiffs’ desire to avoid 14 regulation for the good of the community, especially during a public health crisis, is properly 15 addressed politically, not in this Court. 16 Accordingly, the City now moves to dismiss Plaintiffs’ Complaint pursuant to Civil Rule (CR) 17 12(b)(6). 18 II. STATEMENT OF FACTS 19 The City, like the rest of the United States and the world, is facing a public health emergency 20 of a magnitude not seen in at least a century. The novel coronavirus, COVID-19 has spread to all 21 22 23 1 Attached as Appendix A to the Amended Complaint, available at http://seattle.legistar.com/View.ashx?M=F&ID=8656949&GUID=450BE067-D41F-4C49-A3C9-7A7D67A2DB9D, accessed September 25, 2020. CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 1 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 corners of the globe. Throughout the United States, millions have been confirmed to have contracted 2 COVID-19, causing more than two hundred thousand deaths.2 In King County more than twenty 3 thousand people have tested positive for COVID-19, and hundreds have died because of the disease.3 4 COVID-19 is spread by close contact between humans; there is currently no vaccine or effective 5 treatment for this disease. 6 As a result, Governor Inslee has declared an emergency4 and promulgated a series of 7 proclamations directing Washingtonians to stay home and avoid contact with one another to limit the 8 spread of the disease.5 Governor Inslee’s proclamations broadly restricted public life and closed 9 businesses, with exceptions for critical services, including services that enable at-home food 10 delivery.6 11 By unanimous vote of the City Council and under the Mayor’s signature, the City enacted the 12 emergency Ordinance at issue here on June 15, 2020, recognizing the critical role played by at-home 13 food delivery services in permitting people in Seattle to obtain food without coming into close contact 14 with large groups of people. The key requirement of the Ordinance is that covered Food Delivery 15 16 17 18 19 20 21 22 23 2 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html accessed on September 25, 2020. https://www.doh.wa.gov/Emergencies/NovelCoronavirusOutbreak2020COVID19/DataDashboard accessed on September 25, 2020. 4 Mayor Jenny Durkan also declared a state of emergency in Seattle on March 3, 2020. https://durkan.seattle.gov/wpcontent/uploads/sites/9/2020/03/COVID-19-Mayoral-Proclamation-of-Civil-Emergency.pdf accessed on September 25, 2020. 5 See, e.g., Proclamation 20-25, “Stay Home—Stay Healthy” accessed at https://www.governor.wa.gov/sites/default/files/proclamations/20-25%20Coronovirus%20Stay%20SafeStay%20Healthy%20%28tmp%29%20%28002%29.pdf on September 25, 2020. 6 Id.; see also Appendix, Proclamation 20-25, accessed at https://www.governor.wa.gov/sites/default/files/WA%20Essential%20Critical%20Infrastructure%20Workers%20%28F inal%29.pdf on September 25, 2020. 3 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 2 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 Network Companies (FDNCs)7 must pay covered workers8 premium pay for each pick-up or drop- 2 off in Seattle until the Mayor’s declaration of emergency is revoked.9 In order to support this key 3 requirement, and ensure that the critical services offered by covered FDNCs continue to be accessible 4 to the public, the Ordinance also contains consumer protections.10 Covered FDNCs are prohibited 5 from taking certain actions “as a result of” the Ordinance going into effect; and may defend against 6 an allegation that they violated the consumer protection by showing “that [the] decision to take the 7 [challenged] action(s) would have happened in the absence of this ordinance going into effect.”11 All 8 consumer protections end when the Mayor declares an end to the emergency.12 9 Two of the consumer protection provisions also ensure that the delivery drivers actually 10 receive the benefit of the core premium pay requirement of the Ordinance. FDNCs are prohibited 11 from altering the system they use to compensate workers or restricting those workers’ access to work 12 in response to the Ordinance.13 The other two consumer protections are essential to ensuring that at 13 home food delivery is available in Seattle: FDNCs may not change their service area or pass along 14 the costs of the premium pay requirement to customers purchasing groceries (but not other types of 15 16 17 18 19 20 21 22 23 FDNC means “an organization … operating in Seattle, that offers prearranged delivery services for compensation using an online-enabled application or platform … to connect customers with workers for delivery from one or more of the following: (1) eating and drinking establishments, (2) food processing establishments, (3) grocery stores, or (4) any facility supplying groceries or prepared food and beverages for an online order.” Ordinance, Section 2, 100.010. FDNCs with more than 250 workers worldwide are subject to the requirements of the law. Id. at Section 2, 100.020. 8 Workers are covered if they are “a person affiliated with and accepting an offer of prearranged delivery services for compensation from a food delivery network company. For purposes of this ordinance, at any time that a food delivery network company worker is logged into the worker platform, the worker is” covered. Id. at Section 2, 100.010. A technical amendment on August 10, 2020 clarified that workers who are “employees under Seattle Municipal Code Chapter 14.20 for covered hiring entities are not covered gig workers under this ordinance.” Ordinance No. 126122, 8 Ordinance No. 126122, passed on August 10, 2020 attached in Appendix A to the Amended Complaint, available at http://seattle.legistar.com/View.ashx?M=F&ID=8763319&GUID=998EAFEF-0B1C-463C-82A2-5D0B532D3296 accessed on September 25, 2020. 9 Ordinance at Section 2, 100.025. 10 Id. at Section 2, 100.027. 11 Id. at Section 2, 100.027.A, .B. 12 Ordinance No. 126122. As noted in Ordinance No. 126122, the amendments therein are merely technical amendments to clarify the intent of the original Ordinance. 13 Ordinance at Section 2, 100.027.A.2, .3. 7 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 3 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 food) because of the Ordinance.14 2 The City and Plaintiffs agree that services provided by covered workers are essential to the 3 safety and health of people in Seattle.15 The provision of at-home food delivery services allows 4 people to engage in effective social distancing, reducing their contact with large groups of people and 5 slows the spread of COVID-19.16 And, because FDNCs often designate their workers “independent 6 contractors,” covered workers otherwise face barriers to accessing protections due employees, 7 suffering greater risks to their health and safety and that of their communities.17 The City found that 8 the law was immediately necessary to increase the retention of workers who deliver food for FDNCs, 9 to compensate the workers for hazards they face, and to compensate workers for the time and expense 10 they bear for sanitizing their equipment and engaging in other efforts to protect themselves, customers, 11 and the public from illness.18 III. 12 STATEMENT OF ISSUES 13 Should Plaintiffs’ Amended Complaint be dismissed for failure to state a claim upon which 14 relief may be granted pursuant to CR 12(b)(6) because none of Plaintiffs’ claims state a legally 15 sufficient basis for granting the relief sought? IV. 16 EVIDENCE RELIED ON This motion relies on the pleadings in this case.19 17 18 19 14 20 21 22 23 Id. at Section 2, 100.027.A.1, .4. Id. at Section 1.M; Amended Complaint at ¶¶ 41, 43. 16 Ordinance, Section 1.S. 17 Id. at Section 1.L; Amended Complaint at ¶¶ 7 & n.2, 42, 47, 49, 50. 18 Ordinance, Section 1.B, .P, .T, .U. 19 Other materials, such as the text of the Ordinance, Ordinance No. 126122 and the 2018 Voter’s Pamphlet covering Initiative 1634 are offered for judicial notice, consistent with a CR 12 motion to dismiss. Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838, 844 (2015). Further, this court may consider other materials to understand the factual context of this Motion. Haberman v. Washington Pub. Power Supply Sys., 109 Wn. 2d 107, 121 (1987), amended, 109 Wn.2d 107 (1988). 15 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 4 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 V. 1 AUTHORITY & ARGUMENT 2 Plaintiffs have raised no claims upon which this Court may grant relief. The Ordinance is 3 unquestionably a valid exercise of the City’s police powers to protect public safety, health and 4 welfare, particularly during the COVID-19 emergency. Further, there is simply no invasion of 5 Plaintiffs’ fundamental rights caused by the Ordinance. As a matter of law, the Ordinance does not 6 violate the Fifth and Fourteenth Amendment to the United States Constitution, Article I, Section 10 7 of the United States Constitution, or Article I, Sections 12 or 16 of the Washington State Constitution. 8 Indeed, during this public health crisis, in the absence of “a plain, palpable invasion” of these rights, 9 shown “beyond all question” Plaintiffs simply cannot carry their substantial burden in seeking to 10 invalidate the Ordinance.20 11 Properly framed, Plaintiffs’ actual complaint is about the adjustment of the economic burdens 12 and benefits during this time of crisis.21 The City has determined that the risks and costs associated 13 with providing home delivery of food should be shared by FDNCs. Plaintiffs disagree. Plaintiffs’ 14 desire not to be subject to regulation is a political question, not a legal one; they should “resort to the 15 polls, not to the courts” to obtain the relief they seek.22 16 A. Civil Rule 12(b)(6) 17 Under CR 12, a defendant may bring a motion to dismiss for “failure to state a claim upon 18 which relief can be granted ….”23 For such a motion, “the gravamen of a court’s inquiry is whether 19 the plaintiff’s claim is legally sufficient.”24 Here, Plaintiffs’ claims are not legally sufficient, and 20 21 20 Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 30 (1905); State v. Malone, 9 Wn. App. 122, 126 (1973). See, e.g., Amended Complaint, ¶ 50 (complaining about the costs to Plaintiffs of complying with the law). 22 Williamson v. Lee Optical of Oklahoma Inc., 348 U.S. 483, 488 (1955) (quotation marks omitted) (quoting Munn v. People of State of Illinois, 94 U.S. 113, 134 (1876)). 23 CR 12(b)(6). 24 Gorman v. Garlock, Inc., 155 Wn. 2d 198, 215 (2005). 21 22 23 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 5 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 therefore, they have wholly failed to state any claim upon which relief may be granted. The Ordinance is a proper exercise of the City’s police powers. 2 B. 3 In the ordinary course of affairs, the City has broad authority to regulate working conditions 4 affecting people in Seattle, including setting pay and prohibiting practices that harm the public. In 5 these extraordinary times, this power is even more extensive, clearly encompassing the Ordinance. 1. 6 7 8 9 10 11 12 Under the Washington State Constitution’s “home rule” principles, cities and counties exercise much of the state’s power.25 Accordingly, “[m]unicipal police power is as extensive as that of the legislature, so long as the subject matter is local and the regulation does not conflict with general laws ….”26 And this power “not only extends to enactments designed to protect and promote public peace, health, morals, and safety, but also to those intended to promote the general public welfare and prosperity.”27 13 14 15 16 17 The City’s police powers are broad, providing authority to regulate working conditions in the City. The police powers of the City clearly permit the regulation of working conditions. “In dealing with the relation of employer and employed, the [state] has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure wholesome conditions of work and freedom from oppression.”28 For example, governments in Washington may exercise their police powers to set 18 19 20 21 22 23 See Wash. Const. Art. XI, § 11(cities and counties are empowered to “make and enforce within [their] limits all such local police, sanitary and other regulations as are not in conflict with general laws”); see also Hugh Spitzer, "Home Rule" vs. "Dillon's Rule" for Washington Cities, 38 Seattle U. L. Rev. 809 (2015) (providing a detailed discussion of “home rule” principles in Washington). 26 Covell v. City of Seattle, 127 Wn. 2d 874, 878 (1995), abrogated on other grounds by Yim v. City of Seattle, 194 Wn. 2d 651 (2019) (quoting Hillis Homes, Inc. v. Snohomish County, 97 Wn. 2d 804, 808 (1982)). 27 City of Tacoma v. Fox, 158 Wn. 325, 330–331 (1930). 28 West Coast Hotel Co. v. Parrish, 300 U.S. 379, 393 (1937); see RUI One Corp. v. City of Berkeley, 371 F.3d 1137, 1150 (9th Cir. 2004) cert. denied 543 U.S. 1081 (2005) (“[t]he power to regulate wages and employment conditions lies clearly within a state’s or a municipality’s police power. …. Child labor laws, minimum and other wage laws, laws affecting occupational health and safety... are only a few examples”) (internal quotations and citations omitted). 25 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 6 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 minimum wages,29 set maximum hours,30 outlaw employment discrimination,31 and set maximum 2 fees charged by employment agencies.32 This authority extends to the working conditions of those 3 labeled independent contractors.33 2. 4 5 6 7 8 9 10 11 12 13 14 15 16 The City’s police powers are at their maximum in addressing emergencies like the public health crisis caused by COVID-19. The City’s police powers are even greater in the context of the ongoing public health catastrophe. More than a century ago, in Jacobson v. Commonwealth of Massachusetts, the United States Supreme Court recognized that public health emergencies necessarily enlarge the scope of the police powers.34 Upholding a local ordinance compelling citizens to be vaccinated to address a smallpox outbreak or face imprisonment over a variety of constitutional challenges, the Court first noted that general, non-emergency police powers permit governments “to enact quarantine laws and ‘health laws of every description’….”35 And when there is a public health emergency, the right “to determine for all what ought to be done” is properly lodged with political decision makers rather than courts. Accordingly, in reviewing the exercise of emergency police powers, “it is no part of the function of a court” to second guess a determination as to what method is “likely to be the most effective for the protection of the public against disease.”36 This is true, even if it results in restrictions of constitutional rights. “‘Under the pressure of great dangers,’ constitutional rights may be 17 18 29 19 20 21 22 23 Filo Foods, LLC v. City of SeaTac, 183 Wn. 2d 770 (2015). State v. Buchanan, 29 Wash. 602 (1902). 31 Seattle Newspaper-Web Pressmen's Union Local No. 26 v. City of Seattle, 24 Wn. App. 462 (1979). 32 Petstel, Inc. v. King Cty., 77 Wn. 2d 144 (1969). 33 See, e.g., Marquis v. City of Spokane, 130 Wn. 2d 97, 112–113 (1996) (holding that portions of the Washington Law Against Discrimination extend to independent contractors); see also Stute v. P.B.M.C., Inc., 114 Wn. 2d 454, 457 (1990) (Washington Industrial Safety and Health Act requires businesses to provide for the safety of independent contractors under some circumstances); Ketcham v. King Cty. Med. Serv. Corp., 81 Wn. 2d 565, 584 (1972) (requiring ophthalmologists to indemnify their customers for losses caused by independent contractors for the ophthalmologist was a valid exercise of the state’s police power). 34 Jacobson, 197 U.S. 11. 35 Id. at 25 (quoting Gibbons v. Ogden, 22 U.S. 1, 203 (1824)). 36 Id. at 30. 30 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 7 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 reasonably restricted ‘as the safety of the general public may demand.’”37 2 Chief Justice Roberts relied on Jacobson in upholding California’s ban on large public 3 gatherings, remarking “[o]ur Constitution principally entrusts the safety and the health of the people 4 to the politically accountable officials of the States to guard and protect. When those officials 5 undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be 6 especially broad.”38 Courts have repeatedly applied Jacobson’s formulation of the scope of 7 emergency police powers in the context of the current pandemic. 39 8 Indeed, in Slidewaters LLC v. Washington Dep't of Labor & Indus., the United States District 9 Court for the Eastern District of Washington recently declined to issue a temporary restraining order 10 against the Governor (and denied a later motion for preliminary injunction subsequently converted to 11 motion for permanent injunction), concluding that Jacobson limited its review of the exercise of 12 emergency police powers.40 The court rejected plaintiffs’ claims that the state lacked the authority 13 to order their business closed, and that the order violated Plaintiffs’ state and federal constitutional 14 rights.41 Ultimately, the court “join[ed] the growing consensus of district courts that constitutional 15 16 37 17 18 19 20 21 22 23 In re Abbott, 954 F.3d 772, 778 (5th Cir. 2020) (alterations removed)(quoting Jacobson 197 U.S. at 29) (upholding state limitations on access to abortion during the COVID-19 pandemic under the “settled rule” announced in Jacobson). 38 S. Bay United Pentecostal Church v Newsom, 140 S. Ct. 1613 (2020) (Roberts, C.J., concurring in denial of injunctive relief) (internal quotations, alterations and citation omitted). 39 See, e.g., Cross Culture Christian Ctr. v. Newsom, 2020 WL 2121111, at *4 & n.3 (E.D. Cal. 2020) (slip copy, appeal pending) (denying Temporary Restraining Order sought by church to overcome California Governor’s order prohibiting church gatherings, collecting cases); In re Rutledge, 956 F.3d 1018, 1028 (8th Cir. 2020) (upholding an Arkansas ban on surgical procedures over constitutional challenges, remarking “[i]n our analysis, we must take care not to ‘usurp the functions of another branch of government,’”) (quoting Jacobson, 197 U.S. at 28); Alsop v. Desantis, 2020 WL 4927592, at *2 (M.D. Fla. Aug. 21, 2020) (slip op.) (orders restricting vacation rentals in response to COVID-19 involve no suspect classes and “are [therefore] subject to rational-basis review. And because [the orders are] in response to a public health emergency, [they] enjoy[] an ‘especially broad’ latitude.”) (quoting S. Bay United Pentecostal Church, 140 S.Ct. 1613); see also Section V.D.1.a, infra. 40 Slidewaters LLC v. Washington Dep't of Labor & Indus, 2020 WL 3130295 (E.D. Wash., June 12, 2020) (slip copy); see 2020 WL 3979661 (E.D. Wash. July 14, 2020) (order from the court denying preliminary and permanent injunction on the same grounds). 41 2020 WL 3130295 at *3-*4. CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 8 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 challenges to similar COVID-19 related measures are precluded by Jacobson.”42 2 Under analogous circumstances, Washington courts have rejected attempts to second guess 3 the decisions of policy makers in response to emergencies. In Cougar Business Owners Association 4 v. State the Washington State Supreme Court held that the Governor’s order designating certain areas 5 around Mt. St. Helens closed, effectively shuttering businesses, was a constitutionally valid exercise 6 of the police power.43 The Court rejected plaintiffs’ contentions that the order violated their rights, 7 holding that courts reviewing the exercise of emergency police powers “will not examine the motives 8 of the legislative body; they will not require factual justification for the legislation if it can reasonably 9 be presumed; and the courts will not weigh the wisdom of the particular legislation enacted.”44 If the 10 basis of an emergency law, issued pursuant to the police power is debatable, courts must uphold the 11 governmental determination that the law is necessary.45 3. 12 13 14 15 16 17 18 Plaintiffs’ contention that the Ordinance is beyond the scope of the City’s police powers is meritless. The City’s exercise of police powers is presumed proper “if any state of facts either known or which could be reasonably assumed affords support for” the challenged action.46 Support includes a finding that the exercise of the police power “reasonably tend[s] to correct some evil or promote some public interest.”47 Further, “[u]nless the measure adopted [pursuant to police powers] is palpably unreasonable and arbitrary so as to needlessly invade constitutionally protected rights, the legislative judgment will prevail.”48 The last time the Washington State Supreme Court directly addressed this 19 20 21 22 23 42 Id. at *4. Cougar Business Owners Assn. v. State, 97 Wn. 2d 466 (1982) abrogated on other grounds by Yim, 194 Wn. 2d 651. 44 Id. at 478 (quoting Petstel, 77 Wn.2d at 154-155). 45 Id. at 477-479. 46 Id. at 478. 47 Malone, 9 Wn. App. at 126 (1973). 48 Id. 43 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 9 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 type of challenge,49 it set an extraordinarily high bar. [For a]n ordinance to be void for unreasonableness [it] must be clearly and plainly unreasonable. The burden of establishing the invalidity of an ordinance rests heavily upon the party challenging its constitutionality. Every presumption will be in favor of constitutionality. And, if a state of facts justifying the ordinance can reasonably be conceived to exist, such facts must be presumed to exist and the ordinance passed in conformity therewith. These rules are more than mere rules of judicial convenience. They mark the line of demarcation between legislative and judicial functions.50 2 3 4 5 6 Thus, an ordinance may only be found to be an improper exercise of the police powers where the 7 ordinance was enacted “either in a mistake, or in a spirit of fraud or wantonness” by the legislating 8 body.51 Where the law was enacted in the context of public health emergency, review is even more 9 deferential.52 a. The Ordinance is unquestionably related to public safety and health. 10 11 12 13 14 15 16 17 Here, Plaintiffs’ bald assertions that the Ordinance is “an arbitrary and irrational response” to the current pandemic defies common sense and is legally insufficient to support the complaint.53 This particular public health crisis requires that people limit their contact with one another. Food delivery services are critical to limiting the time people in Seattle spend in groups and in public. The City has determined that premium pay for covered workers is necessary to ensure that these workers continue to provide delivery services and that they have the means to take precautions to protect their own health and the health of their customers and the public.54 The City has also determined that allowing 18 19 The City respectfully disagrees with cases adding a “reasonableness” gloss to the police powers granted by Wash. Const. Art. XI, §11. 50 City of Seattle v. Webster, 115 Wn. 2d 635, 645 (1990). 51 City of Walla Walla v. Ferdon, 21 Wash. 308, 311 (1899). 52 Jacobson, 197 U.S. at 30; see United States v. Chalk, 441 F.2d 1277, 1281 (4th Cir. 1971) (in reviewing the state’s exercise of police powers to address an emergency, court review “must be limited to a determination of whether the [governmental] actions were taken in good faith and whether there is some factual basis for [the] decision that the restrictions he imposed were necessary…”). 53 Amended Complaint at ¶ 63. 54 Ordinance, Section 1.R, T. 49 20 21 22 23 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 10 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 covered hiring entities to increase the costs of groceries obtained through home delivery, or reduce 2 the availability of home delivery services in response to that requirement would have immediate 3 consequences for public health by reducing access to these critical services.55 These findings are 4 wholly consistent with the Governor’s determination that FDNCs and their drivers are part of the 5 “essential workforce” necessary “to protect communities, while ensuring continuity of functions 6 critical to public health and safety, as well as economic and national security” during the COVID-19 7 pandemic.56 8 Plaintiffs themselves recognize the crucial role that maintaining FDNC services plays in 9 combating the pandemic, acknowledging that “[c]onsumers… benefit from [their services by]…being 10 able to obtain groceries without going into a grocery store” and that this is particularly critical for 11 “consumers in higher-risk populations.”57 Consequently, there is no dispute that the provision of 12 home food delivery services is critical to responding to the public health crisis caused by the COVID- 13 19 pandemic. The City, in selecting the Ordinance as a method of protecting those critical services, 14 properly exercised its police powers. That Plaintiffs evidently would have added additional requirements58 to protect public and 15 16 worker health is beside the point. As the Washington State Supreme Court has explained, In legislating for health, safety and welfare, certain constraints upon individual freedom have traditionally been imposed by the State. Often, such constraints protect both society generally and the individual personally from the perceived harm. …. It is not our proper function to substitute our judgment for that of the legislature with respect to the necessity of these constraints.59 17 18 19 20 55 21 22 23 Ordinance, Section 1.S. Governor’s Proclamation, 20-25 and Appendix, https://www.governor.wa.gov/sites/default/files/WA%20Essential%20Critical%20Infrastructure%20Workers%20%28F inal%29.pdf accessed on July 16, 2020. 57 Amended Complaint at ¶ 41. 58 See id. at ¶ 29 (decrying the lack of a requirement that covered workers spend their premium pay on personal protective equipment); see also id. at ¶¶ 27, 63 (other workers/businesses should be subject to the same requirements). 59 State v. Smith, 93 Wn. 2d 329, 338–39 (1980). 56 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 11 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 b. The Ordinance’s requirements are not extreme. 1 2 Notwithstanding Plaintiffs’ apoplectic description of the Ordinance and the regulation it 3 imposes on their businesses; the Ordinance falls squarely within the traditional bounds of the City’s 4 police powers. Plaintiffs suggest that the Ordinance constitutes an “unprecedented intrusion[] into 5 FDNCs’ most fundamental management and operational decisions[,]” “burdens” Plaintiffs and 6 “usurps Instacart’s business judgment….”60 These complaints are overstated, as Plaintiffs 7 mischaracterize the limitations on their business activities. It has long been recognized that laws 8 requiring minimum compensation for workers do not unduly interfere with the operations of private 9 businesses.61 Also, while Plaintiffs characterize the consumer protections in the Ordinance as severe 10 restrictions on their capacity to operate, they do not properly credit the fact that the consumer 11 protections only apply if the prohibited actions are taken “as a result of this ordinance going into 12 effect ….”62 For example, if demand for their services were to collapse, changes in compensation to 13 drivers, service areas or fees for customers could be made on that basis without violating the 14 Ordinance. Hiring entities are free to operate their businesses, with the sole exception that they cannot 15 take certain narrow categories of actions because they are required to pay additional compensation to 16 their workers. Coupled with the fact that the consumer protections end when the emergency ends, 17 these restrictions on hiring entities’ activities are far less expansive than Plaintiffs allege. 18 Ultimately, the Ordinance is no different than other valid “regulations adjusting the benefits 19 and burdens of economic life to promote the social good” that courts routinely uphold as proper 20 21 22 60 Id. at ¶¶ 4, 15, 16. See, e.g., Parrish, 300 U.S. at 393 (upholding a Washington minimum wage law over a variety of constitutional challenges). 62 Ordinance, Section 2, 100.027.A. 61 23 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 12 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 exercises of the police powers.63 Any law that regulates working conditions impinges on “business 2 decisions.” A requirement to pay a minimum wage prevents a business from obtaining an absolute 3 minimum for its labor costs. Workplace safety and health measures prevent businesses from 4 minimizing costs related to personal protective equipment, or choosing quicker, but more dangerous, 5 methods of completing their tasks. Anti-discrimination laws impinge on the freedom of employers to 6 hire, fire, promote or discipline workers. Yet none of these “burdens” on business operations exceeds 7 the scope of the police power. 8 Even if Plaintiffs’ contentions raised issues for the City’s normal exercise of its police powers, 9 the COVID-19 emergency unquestionably expands those powers to reach the Ordinance. Emergency 10 police powers encompass the power to compel people to be vaccinated against their will, as in 11 Jacobson,64 the power to wholly close towns and businesses as in Cougar Business Association, the 12 power to restrict access to medical care as in Abbott, and the power to limit the size of public 13 gatherings as in S. Bay United Pentecostal Church. By comparison, the Ordinance merely requires 14 payment to workers and restricts changes to business methods that harm public health in response to 15 that requirement. The emergency police power must reach this reasonable effort to ensure access to 16 food while reducing community transmission of COVID-19. 17 C. The Ordinance is not forbidden by Chapter 82.84 RCW. 18 Plaintiffs’ assertion that the Ordinance is preempted by Washington state tax law is baseless. 19 The Ordinance requires FDNCs to pay money to delivery drivers. Because that money is not collected 20 21 22 23 63 Manufactured Hous. Cmtys of Washington v. State, 142 Wn. 2d 347, 413 (2000), abrogated on other grounds by Yim, 194 Wn. 2d 651; see Section V.D, infra. 64 And as routinely upheld by federal courts. See, e.g., Zucht v. King, 260 U.S. 174 (1922) (upholding the exclusion of non-vaccinated children from a school district against a due process and equal protection challenge); Phillips v. City of New York, 775 F.3d 538 (2nd Cir. 2015) (a challenge to mandatory vaccination law was “foreclosed” by Jacobson); Workman v. Mingo Cty. Bd. of Ed., 419 Fed. Appx. 348 (4th Cir. 2011) (unpublished) (mandatory vaccination for schoolchildren does not infringe on religious free exercise rights). CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 13 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 by the City or any other governmental agency, it is not a tax. State law limiting the authority of local 2 governments to impose taxes is irrelevant to this Ordinance, which regulates the conduct of 3 businesses and payment of wages in Seattle. 4 To prevail, Plaintiffs would need to demonstrate either the Ordinance directly conflicts with 5 state law or operates in a field that the legislature wholly occupies by statute.65 Because the law cited 6 by Plaintiffs only functions to prevent local taxes on groceries, it does not, as a matter of law, preempt 7 the Ordinance. 8 Chapter 82.84 RCW (a codification of Initiative 1634 approved by Washington voters in 9 2018) is titled “Local Grocery Tax Restrictions” and is located in Title 82, which is comprised of 10 excise tax statutes. Chapter 82.84 RCW prohibits local governments from “impos[ing] or collect[ing] 11 any tax, fee, or other assessment on groceries.”66 The law defines “tax, fee, or other assessment on 12 groceries” as a sales tax, gross receipts tax, business and occupation tax, business license tax, excise tax, privilege tax, or any other similar levy, charge, or exaction of any kind on groceries or the manufacture, distribution, sale, possession, ownership, transfer, transportation, container, use, or consumption thereof.67 13 14 15 16 17 18 Washington courts interpret initiatives according to the normal canons of statutory interpretation.68 Accordingly, “[s]tatutory language must be given its usual and ordinary meaning, regardless of the policy behind the enactment.”69 The “legislative intent” behind the initiative is only relevant if there is some ambiguity in the meaning of the law; in that case, a court “should focus on 19 20 21 22 23 See State v. Kirwin, 165 Wn. 2d 818, 825 (2009) (conflict preemption applies “where [the ordinance] permits what state law forbids or forbids what state law permits”); see also Heinsma v. City of Vancouver, 144 Wn. 2d 556, 561 (2001) (field preemption results where the state legislature has expressly or impliedly occupied an entire area of regulation). 66 RCW 82.84.040. 67 RCW 82.84.030(5) (emphasis supplied). 68 City of Spokane v. Taxpayers of City of Spokane, 111 Wn. 2d 91, 97 (1988) (citing Hi–Starr, Inc. v. Liquor Control Bd., 106 Wn. 2d 455, 460 (1986); Dep’t of Rev. v. Hoppe, 82 Wn. 2d 549, 552 (1973)). 69 Id. 65 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 14 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 the voters’ intent and the language of the initiative as the average informed lay voter would read it.”70 2 Statements in the voter pamphlet are evidence of voter intent.71 3 By its own terms, the law prevents the imposition of taxes. The examples given in defining 4 the key phrase “tax, fee, or other assessment on groceries” are all taxes, and the more general 5 categories (levy, charge, or exaction) are limited to those that are “similar” to the list of taxes 6 prohibited. Taxes are “burdens or charges imposed by legislative authority on persons or property, 7 to raise money for public purposes, or, more briefly, an imposition for the supply of the public 8 treasury.”72 Setting wage requirements, where hiring entities are required to pay money to their 9 workers, not to the City, does not raise money for the City treasury and cannot reasonably be 10 considered “similar” to a sales tax, business and occupation tax or the like. 11 The language of Chapter 82.84 RCW is plain: local governments are prohibited from taxing 12 groceries; the law does not prohibit regulating working conditions. But even if there were some 13 ambiguity in the text of Chapter 82.84 RCW, nothing in the history of the underlying initiative 14 supports Plaintiffs’ contorted reading. The voter pamphlet is clear: the initiative is about the taxation 15 power of local governments. The pamphlet frames the measure as “concern[ing] taxation of certain 16 items intended for human consumption.”73 The section entitled “the law as it presently exists” begins 17 “[a]ll local taxation must be authorized by state law” and exclusively focuses on the taxation powers 18 of local governments.74 Further, the statements in favor of and against the initiative are exclusively 19 focused on taxation issues. For example, in rebutting the statement against, proponents of the 20 70 21 22 23 Id. (internal quotations and citation omitted). Amalgamated Transit Union Local 587 v. State, 142 Wn. 2d 183, 206 (2000). 72 King Cty. Fire Prot. Dists. No. 16, No. 36 & No. 40 v. Hous. Auth. of King Cty., 123 Wn. 2d 819, 833 (1994) (internal quotations and citations omitted, emphases supplied). 73 Exhibit A to this Motion (the 2018 Voter’s Pamphlet, available at https://www.sos.wa.gov/_assets/elections/research/2018/-ed05-all%209.12%20low%20res.pdf accessed on September 25, 2020). 74 Id. 71 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 15 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 initiative stated “I-1634 prohibits new, local taxes on groceries, period.” Id. 2 While the City is unaware of any Washington court interpreting Chapter 82.84 RCW, the 3 common-sense reading of the statute as only prohibiting taxes (i.e. charges that raise revenue for the 4 government) is consistent with other analyses of nearly identical legal commands. For example, in 5 Schmeer v. Cty. of Los Angeles, the California Court of Appeals refused to strike down a county 6 ordinance imposing a fee for the use of paper bags in grocery stores (payable to the grocery store) 7 under California’s constitutional prohibition on local taxes.75 California’s constitution prohibits local 8 governments from “impos[ing], extend[ing], or increase[ing] any … tax” without approval of the 9 electorate.76 That prohibition is accompanied by the following definition: “‘tax’ means any levy, 10 charge, or exaction of any kind ….”77 The plaintiffs in Schmeer alleged that a county requirement 11 that grocery stores charge a fee for providing paper bags to shoppers was prohibited by the state 12 constitution as a levy, charge or exaction.78 Relying on the ordinary meaning of the words and other 13 textual clues, the court “conclud[ed] that the language ‘any levy, charge, or exaction of any kind 14 imposed by a local government’… is limited to charges payable to, or for the benefit of, a local 15 government.”79 Based on this understanding of the prohibition, the court held “[b]ecause the [paper 16 bag] charge is not remitted to the county and raises no revenue for the county, we conclude that the 17 charge is not” prohibited by the California constitution.80 18 Indeed, if the prohibition on local taxes on groceries did extend to the Ordinance, Chapter 19 82.84 RCW would become a general prohibition on regulating working conditions for any worker 20 21 75 Schmeer v. Cty. of Los Angeles, 213 Cal. App. 4th 1310 (2013). Cal. Const. art. 13C, § 2(b), (d). 77 Cal. Const. art. 13C, § 1(e). 78 Schmeer, 213 Cal. App. 4th at 1315. 79 Id. at 1328-1329. 80 Id. at 1329. 76 22 23 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 16 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 whose work involved “the manufacture, distribution, sale, possession, ownership, transfer, 2 transportation, container, use, or consumption” of groceries.81 For example, a local law requiring 3 personal protective equipment for grocery workers would increase the marginal labor costs and would 4 be forbidden under Plaintiffs’ interpretation of the law. Such an outcome could not have been the 5 intent of the voters when they approved an initiative prohibiting “new, local taxes on groceries, 6 period.” This Court should reject Plaintiffs’ absurd reading of a state prohibition on local taxation 7 8 authority. Chapter 82.84 RCW does not, as a matter of law, forbid the Ordinance. D. 9 The Ordinance does not violate the State or federal constitutions. 10 Instacart’s contentions that the Ordinance violates the State and federal constitutions are 11 without merit. Even in the absence of a global emergency, the Ordinance would pass constitutional 12 muster. Indeed, “[w]hen economic legislation does not employ classifications subject to heightened 13 scrutiny or impinge on fundamental rights, courts generally view constitutional challenges with the 14 skepticism due respect for legislative choices demands.”82 15 But should any doubt remain, Instacart’s constitutional claims must be viewed in the context 16 of the extraordinary factual circumstances underlying the legislation at issue. Because the Ordinance 17 aims to reduce community transmission in the midst of an unprecedented public health crisis, the 18 City’s “interest in protecting public health … is at its zenith.”83 In fact, when faced with a society- 19 threatening epidemic, a government may go so far as to “implement emergency measures that curtail 20 constitutional rights” as long as the measures have a relation to the crisis and they are not “beyond 21 22 81 RCW 82.84.030(5). Levin v. Commerce Energy, Inc., 560 U.S. 413, 426 (2010) (footnote omitted) (citing Hodel v. Indiana, 452 U.S. 314, 331–332 (1981); Williamson, 348 U.S. at 488–489) 83 Abbott, 954 F.3d at 795. 82 23 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 17 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 all question a plain, palpable invasion of rights secured by the fundamental law.”84 Applying this 2 deferential standard, “courts around the country … have overwhelmingly upheld COVID-related 3 state and local restrictions” impacting constitutional rights.85 Against this extraordinary factual 4 backdrop, the Court should dismiss Instacart’s constitutional claims. 1. 5 The Ordinance does not effect a “taking.” Instacart’s takings claims86 under the Fifth Amendment and article I, Section 16 of the 6 7 Washington Constitution87 are unavailing. 8 designed to protect health and safety, and even in the absence of a global public health emergency, 9 Instacart’s takings claims would fail. “For government action to require compensation under the 10 Takings Clause, it must involve ‘property’ and that property must be ‘taken.’”88 The Ordinance 11 satisfies neither criterion. Courts routinely reject takings challenges to laws a. The pandemic requires rejection of Instacart’s takings claims. 12 13 This Court should exercise restraint in considering Instacart’s takings claims.89 In similar 14 public emergencies, courts have rejected takings challenges to government actions protecting health 15 and safety. For example, courts have held that wholly excluding owners of businesses and other 16 private property from those businesses and properties in a town near Mount St. Helens did not amount 17 to a taking while the volcano was erupting,90 that closing a flea market to “abate the danger posed by 18 19 20 21 22 23 84 Id. at 784 (quoting Jacobson, 197 U.S. at 31). McCarthy v. Cuomo, 2020 WL 3286530, at *3 (E.D.N.Y. 2020) (collecting cases). 86 See Amended Complaint at ¶¶ 65-70. 87 Washington courts apply the same standard for takings claims under the Fifth Amendment and claims under article I, section 16 of the Washington Constitution. Yim, 194 Wn. 2d at 662. 88 Classic Cab, Inc. v. D.C., 288 F. Supp. 3d 218, 227 (D.D.C. 2018) 89 Cf. Mugler v. Kansas, 123 U.S. 623, 669 (1887) “The power which the states have of prohibiting such use by individuals of their property, as will be prejudicial to the health, the morals, or the safety of the public, is not, and, consistently with the existence and safety of organized society, cannot be, burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community”). 90 Cougar Business Ass’n, 97 Wn.2d at 476-79. 85 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 18 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 unexploded artillery shells” was “an exercise of [the government’s] police power that did not require 2 just compensation,”91 that prohibiting bump-stock devices to protect public safety in the wake of a 3 mass shooting did not effect a taking,92 and that COVID-related shutdown orders “constitute[d] a 4 classic example of the use of police power to ‘protect the lives, health, morals, comfort, and general 5 welfare of the people’” and as such, did not effect a taking.93 If wholesale closures of businesses and 6 exclusion of property owners from real property are constitutional, the Ordinance, which only applies 7 certain conditions on business operations, is constitutional. b. The portions of Instacart’s business affected by the Ordinance do not qualify for takings protections. 8 9 10 11 12 13 14 Even in the absence of a global crisis, Instacart’s takings claim would fail for lack of legally cognizable “property,”94 as a reduction in business assets, revenues, profits, or profitability does not give rise to a taking. The Fifth Amendment protects an owner’s interest only in the possession at issue, and not interests merely “incident to ... ownership.”95 A taking “does not include losses to [an owner’s] business,”96 profits, or profitability.97 “[W]here an owner possesses a full ‘bundle’ of property rights, the destruction of one ‘strand’ of the bundle is not a taking, because the aggregate 15 16 Nat’l Amusements, Inc. v. Borough of Palmyra, 716 F.3d 57, 63 (3rd Cir. 2013) McCutcheon v. United States, 145 Fed. Cl. 42, 51 (Fed. Cl. 2019) (appeal filed) (noting that “there are certain exercises of the police power that ha[ve] repeatedly been treated as legitimate even in the absence of compensation to the owners of the … property”) (quotation omitted) (collecting cases). 93 Friends of Danny DeVito v. Wolf, 227 A.3d 872, 895–96 (Pa. 2020) (first alteration added). 94 Classic Cab, Inc. v. D.C., 288 F. Supp. 3d at 227. 95 United States v. Gen. Motors Corp., 323 U.S. 373, 378 (1945). 96 Id. at 380. 97 Andrus v. Allard, 444 U.S. 51, 66 (1979) (fact that challenged regulations “prevent the most profitable use of [plaintiffs’] property...is not dispositive” because “a reduction in the value of property is not necessarily equated with a taking”); Fed. Home Loan Mortgage Corp. N.Y. Div. Housing & Cmty. Renewal, 83 F.3d 45, 48 (2nd. Cir. 1996) (upholding rent stabilization law over takings challenge because “[a]lthough [plaintiff] will not profit as much as it could under a market-based system, it may still rent apartments and collect regulated rents”) (citing Bowles v. Willingham, 321 U.S. 503, 517-518 (1944) (recognizing that while “price control, the same as other forms of regulation, may reduce the value of the property regulated…that does not mean that the regulation is unconstitutional” and that a “member of the class which is regulated may suffer economic losses not shared by others” and “[h]is property may lose utility and depreciate in value as a consequence of regulation”)). 91 17 18 19 20 21 22 23 92 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 19 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 must be viewed in its entirety.”98 2 Classic Cab is instructive. That case involved a takings challenge to a requirement to adopt 3 newer metering systems.99 Classic Cab rejected the takings claim because the regulation did not 4 implicate a legally cognizable property interest—it did not “outright strip the plaintiffs of their 5 business” but, rather, imposed a condition on the business’s continued operation.100 “Businesses 6 generally do not have property interests in their assets or revenues. Those are ‘incidents’ to 7 ownership—goals that are far from guaranteed, and certainly not guaranteed by the government.”101 8 Like that taxi regulation, the Ordinance does not deprive FDNCs of their businesses 9 altogether, nor does it destroy the full bundle of rights associated with FDNCs’ ownership of their 10 businesses.102 It merely imposes modest regulations on their continued operation. Indeed, Instacart 11 is evidently entirely financially sound. Throughout the Complaint, Instacart repeatedly explains that 12 its business is booming, that it has tripled the number of new drivers in Seattle and that drivers are 13 making in excess of $30 per hour.103 Absent a complete deprivation of economic value—a possibility 14 foreclosed by Instacart’s thriving business in the face of the pandemic—any impact on assets, 15 revenues, or profits that may result from the Ordinance does not constitute a taking.104 c. Regulations that merely adjust the benefits and burdens of economic life to advance the common good are not takings. 16 17 Even if the Ordinance implicated legally cognizable “property,” Plaintiffs could not establish 18 19 20 21 22 23 Andrus, 444 U.S. at 65–66 (no taking under the Fifth Amendment where “a significant restriction has been imposed on one means of disposing of” plaintiff’s property but challenged regulations “do not compel the surrender” of the property and “there is no physical invasion or restraint upon them”). 99 288 F. Supp.3d at 221. 100 Id. at 225. 101 Id. (citing Gen. Motors Corp., 323 U.S. at 378; Bd. of Regents v. Roth, 408 U.S. 564, 576 (1972) (“To have a property interest in a benefit, a person…must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it”). 102 See Andrus, 444 U.S. at 65–66. 103 Amended Complaint at ¶¶ 31-32. 104 See Andrus, 444 U.S. at 66; Fed. Home Loan Mortgage Corp., 83 F.3d at 48. 98 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 20 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 a “taking” within the meaning of the Fifth Amendment.105 The requirements at issue are nothing 2 more than garden-variety business regulations.106 In Connolly v. Pension Benefit Guaranty Corp., the United States Supreme Court recognized 3 4 that business regulations often fall outside the purview of the Takings Clause. In the course of regulating commercial and other human affairs, Congress routinely creates burdens for some that directly benefit others. For example, Congress may set minimum wages, control prices, or create causes of action that did not previously exist. Given the propriety of the governmental power to regulate, it cannot be said that the Taking Clause is violated whenever legislation requires one person to use his or her assets for the benefit of another.107 5 6 7 8 Connolly rejected a takings claim against a regulation requiring a withdrawing employer to fund its 9 share of the a benefit plan’s unfunded liabilities, reasoning that the regulation “arises from a public 10 program that adjusts the benefits and burdens of economic life to promote the common good.”108 11 This standard has been applied to uphold a regulation that distributes economic burdens in the 12 face of the pandemic’s upheaval. In Elmsford Apartment Associates v. Cuomo, the court held that a 13 COVID-motivated eviction moratorium did not amount to a regulatory taking because although the 14 moratorium “may embody a policy decision to take from Pete [the landlords] to pay Paul [the 15 tenants] ... such burden shifting does not, without more, amount to a regulatory taking.”109 The court 16 17 105 18 19 20 21 22 23 Classic Cab, Inc.., 288 F. Supp. 3d at 227. See Section V.B.3.b., supra. 107 Connolly v. Pension Benefit Guaranty Corp, 475 U.S. 211, 223 (1986); accord. Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978) (“Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law, and this Court has accordingly recognized, in a wide variety of contexts, that government may execute laws or programs that adversely affect recognized economic values. Exercises of the taxing power are one obvious example.”) (internal quotations and citation omitted). 108 Connolly, 475 U.S. at 225; see Classic Cab, Inc. 288 F. Supp. 3d at 228 (challenged regulation requiring taxi operators to adopt modern metering systems “does not physically invade or permanently appropriate any of the [business's] assets for its own use, but rather interferes with the plaintiffs' contract rights in a way that adjusts the benefits and burdens of economic life to promote the common good. As such, it is not a ‘taking’ of any property right associated with Classic Cab's contract”) (quotations and citation omitted). 109 Elmsford Apartment Associates v. Cuomo,2020 WL 3498456 at *11 (S.D.N.Y. 2020) (slip copy) (granting summary dismissal of plaintiff’s constitutional claims) (alterations in original) (quotation omitted). 106 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 21 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 also dismissed an objection that the moratorium “foisted exclusively upon landlords the burden of 2 rental issues,” because “state governments may, in times of emergency or otherwise, reallocate 3 economic hardships between private parties, including landlords and their tenants, without violating 4 the Takings Clause.”110 5 Like the challenged regulation in Connolly and Elmsford Apartment Associates, the 6 Ordinance distributes economic burdens by reallocating funds from FDNCs to their drivers to ensure 7 the continued availability of grocery delivery services for the duration of the pandemic and to ensure 8 that drivers have the means to take precautions on behalf of themselves and the public.111 This shifting 9 of benefits and burdens for the greater good is by no means “unprecedented;”112 it routinely occurs 10 in modern society through such accepted practices as minimum wage laws,113 workers’ compensation 11 programs,114 rent control laws,115 and taxes.116 Like the panoply of other regulations to which 12 businesses and other entities are subject, the Ordinance does not constitute a taking under the Fifth 13 Amendment.117 2. 14 The Ordinance does not violate the Washington Constitution’s privileges and immunities clause. 15 Plaintiffs fail to state a claim under the privileges and immunities clause of the Washington 16 Constitution. Article I, section 12 provides, “No law shall be passed granting to any citizen, class of 17 18 Id. at *12; see also Fed. Home Loan Mortgage Corp.,, 83 F.3d at 47-48 (“However, where a property owner offers property for rental housing, the Supreme Court has held that governmental regulation of the rental relationship does not constitute a physical taking.”) (citing Yee v. City of Escondido, 503 U.S. 519, 529 (1992)). 111 See Section V.B. 112 Complaint at ¶ 4. 113 Connolly, 475 U.S. at 223 (Congress “may set minimum wages” without effecting a taking). 114 Id. (statute requiring coal mine operators to compensate disabled former employees in Usery v. Turner Elkhorn Mining Co, 428 U.S. 1 (1976) did not amount to a taking). 115 Fed. Home Loan Mortgage Corp., 83 F.3d at 48. 116 Penn. Cent. Transp. Co., 438 U.S. at 124. 117 This is true regardless of any disturbance of contractual obligations, as alleged by Plaintiffs. See Connolly, 475 U.S. at 224 (“a regulatory statute… otherwise within the powers of [the government]… may not be defeated by private contractual provisions” or invalidated because it upsets existing contractual relationships); see Section I.D.3, infra. 110 19 20 21 22 23 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 22 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 citizens, or corporation other than municipal, privileges or immunities which upon the same terms 2 shall not equally belong to all citizens or corporations.”118 Courts interpret Washington’s privilege 3 and immunity clause independently of its federal analogue and engage in a two-step analysis to 4 determine whether a violation of the clause has occurred.119 First, the court determines whether the 5 challenged law involves a privilege or immunity; if not, it does not implicate article I, section 12. 6 Second, if the challenged law involves a privilege or immunity, the court determines whether the 7 legislature had a “reasonable ground” for granting the privilege or immunity at issue. 120 The 8 Ordinance easily clears both hurdles. 9 Differential treatment of different businesses does not necessarily implicate the privileges and 10 immunities clause.121 “Not every legislative classification constitutes a ‘privilege’ within the meaning 11 of article I, section 12 but only those where it is, in its very nature, such a fundamental right of a 12 citizen that it may be said to come within the prohibition of the constitution, or to have been had in 13 mind by the framers of that organic law.”122 As the Washington Supreme Court has explained, if the 14 definition of a privilege or immunity were construed more broadly, courts “could be called on to 15 second-guess the distinctions drawn by the legislature for policy reasons nearly every time it enacts 16 a statute.”123 A wide array of statutory exemptions could come under attack, from property tax 17 exemptions based on age, disability, or veteran status, to exemptions from emission control 18 inspections for farm vehicles and hybrid vehicles.124 19 20 21 22 23 118 Wash. Const. Art I, sec. 12. Ass’n of Washington Spirits and Wine Distribs. v. Washington State Liquor Control Bd., 182 Wn.2d 342, 359 (2015). 120 Ockletree v. Franciscan Health Syst., 179 Wn.2d 769, 776 (2014) 121 Am. Legion Post #149 v. Washington State Dep’t of Health, 164 Wn.2d 570, 606-07 (2008). 122 Ockletree, 179 Wn.2d at 778 (internal quotation omitted). 123 Id. at 779. 124 Id. 119 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 23 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 Plaintiffs attempt to shoehorn their claims into the narrow definition of a privilege or 2 immunity by alleging that the Ordinance “implicate[s] Instacart’s fundamental right to carry on 3 business in the State.”125 But courts have declined, time and again, to characterize ordinary business 4 regulations like the Ordinance as intrusions on the right to “carry on business” for purposes of article 5 I, section 12. In particular, “Washington courts have been hesitant to broadly apply the right to carry 6 on a business in any legislative act that happens to harm a single aspect of a business.”126 Similarly, 7 “mere harm to a business’s profits caused by a change in the laws does not implicate the right to carry 8 on a business.”127 9 For example, Seattle’s minimum wage ordinance, which subjected large businesses to higher 10 labor costs over a three-year period than small businesses, did not “substantially burden or prohibit 11 [those classified as large businesses] from carrying on business in Seattle.”128 By the same token, 12 courts have held that an administrative rule that imposed certain fees on spirits distributor licensees 13 but not other entities in the supply chain,129 a statute that prohibited smoking in certain facilities but 14 not in others,130 an ordinance that “simply impose[d] certain business regulations” on distributors of 15 yellow pages phonebooks,131 and a rate schedule that subjected certain industries to higher rates than 16 others132 did not implicate the fundamental right to carry on a business. In stark contrast, a law that 17 18 19 20 21 22 23 Am. Compl. at ¶ 84; See Am. Legion Post #149, 164 Wn.2d at 608 (statute that does not “prevent any entity from engaging in business” falls outside purview of article I, section 12). 126 Blocktree Properties, LLC v. Public Utility Dist. No. 2 of Grant Cty, Washington, 380 F. Supp.3d 1002, 1124 (E.D. Wash. 2019) (citing Am. Legion Post #149, 164 Wn.2d 570, Ass’n of Washington Spirits & Wine Distribs, 182 Wn.2d 342 (2015). 127 Blocktree Properties, LLC, 380 F. Supp.3d at 1124 (citing Am. Legion Post #149, 164 Wn.2d 570, Ass’n of Washington Spirits & Wine Distribs, 182 Wn.2d 342 (2015). 128 Int’l Franchise Ass’n, Inc. v. City of Seattle, 97 F. Supp.3d 1256, 1285 (W.D. Wash. 2015). 129 Ass’n of Washington Spirits and Wine Distribs., 182 Wn.2d 342. 130 Am. Legion Post #149, 164 Wn.2d 570. 131 Dex Media West, Inc. v. City of Seattle, 2011 WL 4352121 (W.D. Wash. 2011). 132 Blocktree Properties, LLC, 380 F. Supp.3d 1102. 125 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 24 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 “effectively prohibited nonresidents from engaging in the photography business” implicated the right 2 to carry on a business.133 3 Nothing in the Ordinance implicates Instacart’s right to engage in or carry on a business. Just 4 as Seattle’s minimum wage ordinance subjected certain businesses to higher labor costs during the 5 phase-in period, the Ordinance merely subjects a class of businesses to higher labor costs for the 6 duration of the civil emergency, impacting the manner in which FDNCs do business but by no means 7 precluding them from engaging in business altogether.134 Plaintiffs also overstate the degree to which 8 the Ordinance intrudes on their operations. Contrary to Plaintiffs’ allegations, the Ordinance does not 9 “mandate that Instacart maintain its existing service in Seattle.”135 The Ordinance merely restricts 10 FDNCs’ ability to modify service areas or pass along costs of the premium pay requirement on 11 groceries if these actions are taken “as a result of this ordinance going into effect….”136 FDNCs are 12 free to make any changes to their service areas, compensation schemes, access to work or costs for 13 consumers that would have been made in the absence of the Ordinance.137 In any event, requiring 14 FDNCs to continue to operate their businesses under certain circumstances lies far outside the scope 15 of article I, section 12, which instead focuses on regulations that prohibit entities from operating their 16 businesses. 17 The Ordinance also fails to implicate article I, section 12 because it does not “unfairly 18 discriminate against a class of businesses to the benefit of another class of the same businesses.”138 19 20 21 22 23 133 Am. Legion Post #149, 164 Wn.2d at 608 (emphasis added) (citing Ralph v. City of Wenatchee, 34 Wn.2d 638, 644 (1949). 134 Ordinance, Section 2, 100.025; see Ass’n of Washington Spirits & Wine Distribs, 182 Wn.2d at 1285; see also Dex Media West, Inc., 2011 WL 4352121 at *15 (ordinance that “simply imposes certain business regulations upon” plaintiffs did not prevent plaintiffs “from engaging in or carrying on business.” 135 Am. Compl. at ¶ 84. 136 Ordinance, Section 2, 100.027.A. 137 Id. at Section 2, 100.027.B. 138 Ass’n of Washington Spirits and Wine Distribs., 182 Wn.2d at 362 (emphasis supplied). CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 25 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 Plaintiffs do not allege—nor could they—that FDNCs “bear any greater expense or costs” as a result 2 of the Ordinance’s inapplicability to taxis, Transportation Network Companies (TNCs), or other 3 differently situated entities within the food or grocery business.139 Consequently, it does not “offend 4 the anticompetitive concerns underlying article I, section 12,” and it falls beyond the reach of that 5 provision.140 6 Even if the Court were to find that the Ordinance implicated a “privilege or immunity,” 7 Plaintiffs’ article I, section 12 claim would fail because “reasonable grounds” exist for distinguishing 8 between FDNCs and other entities that employ front-line workers.141 Courts find “reasonable 9 grounds” when legislative distinctions “rest on real and substantial differences bearing a natural, 10 reasonable, and just relation to the subject matter of the act.”142 Reasonable grounds abound here. 11 The purpose of the Ordinance is not only to compensate FDNC workers for the hazards they brave in 12 doing their jobs but also to ensure the continued availability of food delivery services during a 13 pandemic and thus allow Seattle residents to meet their basic needs without venturing into public 14 spaces and spreading infection.143 There are “real and substantial differences” between FDNCs and, 15 for example, TNCs, in this regard.144 16 Furthermore, while Plaintiffs decry “the request of the Teamsters” to exclude TNCs, the 17 prospect of “broader legislation covering TNCs” that the Teamsters “purported to be drafting”145 18 further supports a legislative distinction between FDNCs and TNCs, as premium pay is less critical 19 for workers covered by other statutory protections. 20 21 22 23 139 Ockletree, 179 Wn.2d at 782. Id. 141 Id. at 783. 142 Id. (internal quotation omitted). 143 See, e.g., Section I.A.3.a supra; see also Section I.D.4, infra. 144 The City does not dispute the risks facing other front-line workers, such as TNC drivers. 145 Amended Compl. at ¶ 27. 140 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 26 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 3. 1 The Ordinance does not violate the federal or Washington Constitutions’ Contracts Clauses. 2 Instacart alleges that its private agreements regarding working conditions with its drivers 3 trump public laws enacted to protect the safety, health and welfare of the people in Seattle. 146 This 4 retrograde view of the relationship between businesses and their workers has no merit under either 5 the federal or Washington State Constitution. 6 7 8 9 10 Both the state and federal constitutions prohibit impairment of contracts.147 Washington courts interpret the state and federal constitutions’ Contracts Clause using the same federal law.148 Despite the wording of these provisions, it has long been recognized that “the prohibition against any impairment of contracts is ‘not an absolute one and is not to be read with literal exactness.’”149 Indeed, the “governing constitutional principle” for Contracts Clause challenges is that 11 when a widely diffused public interest has become enmeshed in a network of multitudinous private arrangements, the authority of the State “to safeguard the vital interests of its people,”… is not to be gainsaid by abstracting one such arrangement from its public context and treating it as though it were an isolated private contract constitutionally immune from impairment.150 12 13 14 15 16 Accordingly, the Contract Clause “prohibition must be accommodated to the inherent police power of the State”151 safeguarding the vital interests of the people, because such police powers are “paramount to any rights under contracts between individuals.”152 17 18 19 146 20 21 22 23 Amended Complaint at ¶¶ 72-75. U.S. Const., Art. I, §10 (prohibiting states from passing “any… law impairing the obligations of contracts…”); Wash. Const. Art. I, §23 (providing that “[n]o… law impairing the obligations of contracts…” may be enacted). 148 In re Estate of Hambleton, 181 Wn.2d 802, 830 (2014). 149 Tyrpak v. Daniels, 124 Wn.2d 146, 151 (1994) (quoting Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 428 (1934)). 150 E. N.Y. Sav. Bank v. Hahn, 326 U.S. 230, 232, 234 (1945) (quoting Blaisdell, 209 U.S. at 434). 151 Energy Reserves Group, Inc. v. Kan. Power and Light Co., 459 U.S. 400, 410 (1983); Hambleton, 181 Wn.2d at 830 (quoting Energy Reserves). 152 Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 241 (1978). 147 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 27 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 Under these principles, the first question is whether the challenged law constitutes a 2 “substantial impairment” of contracts.153 Critically, this threshold condition is not met when the 3 challenged law is a valid exercise of the police powers.154 Here, because the Ordinance is addressed 4 to working conditions and is a valid exercise of the City’s power to protect the safety and welfare of 5 the people of Seattle, Plaintiffs cannot meet this requirement. 6 For more than 80 years, it has been abundantly clear that the freedom to contract for labor is 7 subordinate to the police power. In 1937, the United States Supreme Court upheld Washington’s 8 minimum wage law over the allegation that it unconstitutionally interfered with contracts for wages 9 between employers and employees. The Court held that the “power under the Constitution to restrict 10 freedom of contract has had many illustrations. That it may be exercised in the public interest with 11 respect to contracts between employer and employee is undeniable.”155 In support, the Court cited 12 cases approving laws that set maximum hours, limit methods or means of payment, and establish 13 workers’ compensation systems.156 The Court concluded that workplace regulations, protecting 14 “health and safety… peace and good order” properly supersede private contracts because they “insure 15 wholesome conditions of work and freedom from oppression.”157 16 The challenged Ordinance is best understood as a requirement to pay minimum compensation 17 to workers for deliveries in Seattle accompanied by certain restrictions on FDNCs intended to ensure 18 that workers actually receive increased compensation and to protect public health and safety during 19 20 153 Energy Reserves, 326 U.S. at 411; Optimer Int'l, Inc. v. RP Bellevue, LLC, 151 Wn.App. 954, 965 (2009). See Optimer, 151 Wn. App. at 966 (“legislation does not unconstitutionally impair contractual obligations where the legislation constitutes an exercise of the police power in advancing a legitimate public purpose”); see also Energy Reserves, 459 U.S. at 411 (quoting Hudson Water Co. v. McCarter, 209 U.S. 349, 357 (1908)) (“[t]he Court long ago observed: ‘One whose rights, such as they are, are subject to state restriction, cannot remove them from the power of the State by making a contract about them’”). 155 Parrish, 300 U.S. 392-393 (footnote omitted). 156 Id. 157 Id. 154 21 22 23 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 28 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 a global pandemic. And the Ordinance’s core commands are temporary; the requirement to pay 2 compensation to covered drivers and associated consumer protections end when the emergency 3 ends.158 Additionally, given the broad authority of the City to regulate working conditions, Instacart 4 is “operating in a heavily regulated industry” and so additional workplace laws cannot be said to 5 substantially impair their contracts.159 Such a police power regulation of working conditions is not a 6 substantial impairment of contracts as a matter of law and is therefore not a violation of the State or 7 federal Contracts Clauses. Even if Instacart had pled allegations sufficient to meet the threshold question, it still has not 8 9 pled a constitutionally cognizable impairment of their contracts. If there were a “substantial 10 impairment” of Instacart’s contracts, Instacart would still need to allege that the challenged law does 11 not have a “significant and legitimate” public purpose.160 As discussed at length above, the parties 12 agree that provision of at-home food delivery services is critical to addressing the raging pandemic. 13 Preserving this function is a “significant and legitimate” public purpose. Moreover, though no 14 emergency is required,161 the fact that the City is responding to an emergency, with temporary 15 legislation, also forecloses Instacart’s challenge.162 16 17 18 19 20 21 22 23 See Blaisdell, 290 U.S. at 439 (specifically approving temporary impositions on contracts “made necessary by a great public calamity…”). 159 Energy Reserves, 459 U.S. at 413 (natural gas producers did not have their contracts impaired where state of Kansas, regulated the intra-state prices they could charge because “State authority to regulate natural gas prices is well established” even though Kansas had never before regulated those prices); see Margola Assocs. v. City of Seattle, 121 Wn. 2d 625, 653 (1993), abrogated on other grounds by Yim, 194 Wn. 2d 651 (holding the City’s new restrictions on evictions that impacted existing leases did not violate the contracts clause because the State and the City already regulated the landlord tenant relationship); see also Gen. Offshore Corp. v. Farrelly, 743 F. Supp. 1177, 1198 (D.V.I. 1990) (finding working conditions were heavily regulated as defined by Energy Reserves, because “[o]ccupational safety, collective bargaining, minimum wages, worker's compensation, and other areas of legislation have left few aspects of the workplace unregulated”). 160 Energy Reserves, 459 U.S. at 411-412. 161 Id. at 412. 162 See, e.g., Blaisdell, 290 U.S. 444-447 (finding a Minnesota foreclosure moratorium did not violate the Contracts Clause because, inter alia, it was a response to the emergency created by the Great Depression, and it was temporary, tied to the duration of the emergency). 158 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 29 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 Further, even if Instacart had met the threshold for this claim, it also would need to show that 2 the City’s method of addressing the pandemic is unreasonable or inappropriate. Instacart cannot meet 3 this requirement here. In reviewing a law challenged as impairing contracts, where the law is 4 economic or social regulation “courts properly defer to legislative judgment as to the necessity and 5 reasonableness of a particular measure.”163 As discussed above, there is no legal basis for this Court 6 to ignore the legislative findings that underpin the Ordinance clearly establishing the reasonableness 7 and necessity of the challenged law. 8 Here, too, Plaintiffs seek a ruling from this Court that would supplant the proper legislative 9 function of the City. The United States Supreme Court aptly summarized the issue with this kind of 10 request for relief in the Hahn case. There, in analyzing a state law forbidding foreclosures in response 11 to the Great Depression (still in effect in 1944), the Court identified the many factual determinations 12 it would be required to make about “not only the range and incidence of what are claimed to be 13 determining economic conditions… but also to resolve controversy as to the causes and continuity of 14 such [economic] improvements….”164 The Court properly recognized that “[m]erely to enumerate 15 the elements that have to be considered shows that the place for determining their weight and their 16 significance is the legislature not the judiciary.” 165 The circumstances are similar here—the City 17 Council made legislative determinations about the welfare of the people in Seattle in the context of a 18 global pandemic and passed the challenged Ordinance. Plaintiffs ask this Court to override those 19 determinations; as such, Plaintiffs fail to state a claim upon which relief may be granted. 4. 20 The Ordinance does not violate equal protection guarantees. 21 22 163 23 U.S. Tr. Co. of New York v. New Jersey, 431 U.S. 1, 22-23 (1977) (citing Hahn, 326 U.S. 230). Hahn, 326 U.S. at 234. 165 Id. 164 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 30 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 The United States Constitution guarantees equal protection of the laws. 166 It does not prevent 2 the government from identifying specific needs and legislating to address them. Here, there is a 3 rational basis for tailoring the Ordinance to apply to FDNCs and their drivers, so Plaintiffs have not, 4 as a matter of law, pled a valid claim. 5 Choices about whom and how to regulate are fundamentally political choices. Courts 6 therefore review laws challenged as violating equal protection under the highly deferential “rational 7 basis” test.167 As the U.S. Supreme Court has explained, [s]ocial and economic legislation… that does not employ suspect classifications or impinge on fundamental rights must be upheld against equal protection attack when the legislative means are rationally related to a legitimate governmental purpose. …. Moreover, such legislation carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality. …. [S]ocial and economic legislation is valid unless “the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [a court] can only conclude that the legislature's actions were irrational.” This is a heavy burden….168 8 9 10 11 12 13 14 This test is the “most relaxed form of judicial scrutiny”169 reflecting a strong preference for resolution of policy differences at “the polls not [in] the courts.”170 In conducting a rational basis review “a court may assume the existence of any necessary state of facts which it can reasonably 15 conceive in determining whether a rational relationship exists between the challenged law and a 16 17 legitimate state interest.”171 Any plausible basis suffices, even if it did not underlie the legislative action,172 and even if no party raised that basis in its arguments.173 Because it is “entirely irrelevant 18 19 166 U.S. Const., amend. XIV. Ockletree, 179 Wn. 2d at 776 & n.4. 168 Hodel, 452 U.S. at 331–332 (internal citations omitted, quoting Vance v. Bradley, 440 U.S. 93, 97 (1979)); see also Am. Legion Post #149, 164 Wn. 2d at 609 (2008) (A demarcation between groups “passes rational basis review so long as it bears a rational relation to some legitimate end[;]” and “[s]ocial and economic legislation that does not implicate a suspect class or fundamental right is presumed to be rational …”) (internal quotations omitted). 169 Amunrud v. Bd. of Appeals, 158 Wn. 2d 208, 223 (2006). 170 Williamson, 348 U.S. at 488. 171 Amunrud, 158 Wn. 2d at 222. 172 Federal Communications Comm’n v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). 173 Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 463 (1988). 167 20 21 22 23 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 31 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 for constitutional purpose” whether the rational basis was the actual motivation for a law, “the 2 absence of legislative facts explaining the distinction on the record has no significance in rational- 3 basis analysis.”174 Put another way, legislative decisions may be based on rational speculation, and 4 may go unsupported by empirical data.175 5 Here, Plaintiffs have not alleged that any classification in the Ordinance is suspect,176 and 6 there are clear rational bases on which the City might choose to regulate FDNCs but not TNCs or 7 other grocery or food service businesses.177 The City determined that FDNC workers are critical to 8 supporting social distancing by allowing the public to obtain food without gathering in large numbers. 9 TNC workers and other food service workers do not provide this essential service. Also, as compared 10 to employees who work in grocery stores or other food-related enterprises, FDNCs generally consider 11 their workers “independent contractors”178 who lack the protections that employees possess, 12 including the right to refuse to work in unsafe conditions without losing their jobs.179 Thus, the 13 Ordinances’ protections and increased pay are critical for retaining FDNC drivers, and permitting 14 drivers to protect themselves, their customers, and the public from the spread of disease.180 Set 15 against the clear bases for the choice to regulate FDNCs, Plaintiffs’ complaint that the Ordinance 16 does not contain certain findings it deems necessary is of no moment.181 As the U.S. Supreme Court 17 18 174 Beach Commc'ns, Inc., 508 U.S. at 315 (internal citations, quotation marks and alterations omitted). See Vance, 440 U.S. at 111. 176 Suspect classes are those that “have suffered a history of discrimination, have as the characteristic defining the class an obvious, immutable trait that frequently bears no relation to ability to perform or contribute to society, and show that it is a minority or politically powerless class” such as “[r]ace, alienage, and national origin.” Andersen v. King Cty., 158 Wn. 2d 1, 16 (2006), abrogated on other grounds by Obergefell v. Hodges, 135 S. Ct. 2584 (2015). 177 Cf. Amended Complaint, ¶ 27 (alleging that non-FDNC workers face higher risks of infection or spreading disease). 178 See Amended Complaint ¶¶ 7 & n.2, 42, 47, 49, 50 (explaining that Instacart considers its drivers independent contractors). 179 See Whirlpool Corp. v. Marshall, 445 U.S. 1, 13 (1980) (the Occupational Safety and Health Act allows employees to refuse to work in circumstances where they reasonably believe they are exposed to a risk of death or serious injury without suffering retaliation). 180 Ordinance, Section 1.B, .M, .L, .P, .S, .T, .U. 181 Amended Complaint at ¶¶ 29-30. 175 19 20 21 22 23 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 32 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 has explained “[i]n an equal protection case… those challenging the legislative judgment must 2 convince the court that the legislative facts on which the classification is apparently based could not 3 reasonably be conceived to be true by the governmental decisionmaker.”182 4 Though Plaintiffs have “couched [their equal protection claim] in terms of the arbitrariness of 5 the challenged provisions”, they are actually inviting this Court to “substitute its policy judgment for 6 that of” the City’s legislative functions.183 The Court should refrain from violating the separation of 7 powers and providing a legal solution to political issue. In the context of the current emergency, there 8 can be no question that the City had the authority to determine that FDNC workers were entitled to 9 the protections of the Ordinance and that FDNCs should be subject to the Ordinance’s restrictions.184 10 E. Instacart is not entitled to damages or attorneys’ fees under 42 U.S.C. § 1983. 11 In order to prevail on its claim for damages under 42 U.S.C. § 1983, Instacart must show that 12 the City “deprived the plaintiff of a federal constitutional or state-created property right without due 13 process of law.”185 Instacart does not allege deprivation of a state-created property right. And, as 14 discussed above, Instacart’s allegations that its federal constitutional rights have been violated have 15 no merit.186 Accordingly, Instacart cannot maintain a claim for damages under Section 1983, and this 16 Court should dismiss this claim. VI. 17 CONCLUSION Plaintiffs challenge the allocation of the benefits and burdens of economic life in an Ordinance 18 19 20 21 22 23 182 Vance, 440 U.S. at 111; see Int'l Franchise Ass'n, Inc. v. City of Seattle, 803 F.3d 389, 407 (9th Cir. 2015) (in upholding the City’s minimum wage ordinance requiring a faster phase-in for franchisees, the Ninth Circuit held “the City's determination [that franchisees could afford a faster phase-in] does not require empirical data… [plaintiff] did not negate every possible rationalization for the classification,”) (citing, inter alia, Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)) 183 Hodel, 452 U.S. at 331. 184 See, e.g., Sections V.B.2; V.D.1.a. 185 Mission Springs, Inc. v. City of Spokane, 134 Wn. 2d 947, 962 (1998) (footnote omitted). 186 Section V.D. CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 33 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 1 enacted in response to a global pandemic. In the best of times, the issues Plaintiffs raise do not suffice 2 to invalidate the Ordinance. Under the dire conditions faced by the people of Seattle, the 3 determination as to necessary actions to protect the community must be left to the legislative functions 4 of the state. 5 6 For the foregoing reasons, the City respectfully requests that this Court grant the City’s motion to dismiss the Amended Complaint. 7 8 9 10 11 12 13 14 Dated this 25th day of September, 2020. Respectfully submitted, /s/Jeremiah Miller Jeremiah Miller WSBA #40949 Erica R. Franklin WSBA #43477 Assistant City Attorneys Attorneys for Defendant, The City of Seattle I, Jeremiah Miller, certify that this motion contains 11,975 in compliance with the Court’s September 23rd 2020 Order. 15 16 17 18 19 20 21 22 23 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 34 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200 CERTIFICATE OF SERVICE 1 2 3 I hereby certify that, on this date, I electronically filed a true and correct copy of the following documents with the Clerk of the Court using the ECR system: 4 1. City’s Motion to Dismiss Plaintiff’s Amended Complaint with attached Exhibit A; 5 2. Proposed Order Granting City’s Motion to Dismiss; and 6 3. Notice for Hearing. 7 8 I further certify that on this date, I used the E-Serve function of the ECR system, which will send notification of such filing to the below-listed: 11 Attorney for Defendant, Jeremiah Miller at: jeremiah.miller@seattle.gov; Attorney for Defendant, Erica R. Franklin at: erica.franklin@seattle.gov; Attorney for Plaintiff, Robert M. McKenna at: rmckenna@orrick.com; Attorney for Plaintiff, Daniel J. Dunne at: ddunne@orrick.com; and Attorney for Plaintiff, Christine Hanley at: chanley@orrick.com. 12 DATED this 25th day of September, 2020, at Seattle, Washington. 9 10 13 14 /s/ Sheala Anderson Sheala Anderson 15 16 17 18 19 20 21 22 23 CITY OF SEATTLE’S MOTION TO DISMISS THE AMENDED COMPLAINT- 35 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200