April 29, 2019
By Matt Miller

In early June, the Washington Supreme Court will hear oral argument in a case that involves an important question of constitutional rights. No, not that constitution. One of the other 50 constitutions that protect the individual rights and liberties across this nation—in this case, the Washington State Constitution.

In Yim v. City of Seattle, the plaintiffs are challenging a city ordinance that requires them to conduct what are known as “first-in-time” rentals when they lease property. This means that a landlord is required to accept the first applicant who meets the written qualifications to rent a home or apartment. While this might sound benign in the abstract, in practice it means that landlords may not request screening services for applicants. Screening companies cannot pull the criminal history of housing applicants or provide that information to landlords. Thus, the first-in-time rule attempts to serve a noble purpose—preventing racial discrimination among landlords—in an unfair and unconstitutional manner.

On appeal to the Washington Supreme Court, the case presents an important question: Should state constitutions be read the same as the U.S. Constitution, or should state courts use them to provide greater protection for individual rights? This, a longstanding question in legal circles, is the topic of an amicus brief that the Goldwater Institute submitted in the case. (The Institute is currently suing Seattle to defend the property rights of Seattleites who conduct short-term rentals on their property. The outcome of Yim will play an important role in that case.)

Washington has long provided greater protection for private property rights than most states, which seems to have served the state well given its explosive growth over the past two decades. The origin of this greater protection is the case of Presbytery of Seattle v. King County, which found that the substantive due process clause of the Washington Constitution only allows the government to regulate land use if evidence shows that that regulation both serves a legitimate public purpose and is not unduly burdensome on the property owner. This standard of review—which determines the constitutionality of state land use regulations—is substantially stronger than the “rational basis” review that courts give such regulations under the U.S. Constitution.

As we argue in our brief, it would be wrong to treat state constitutions as conterminous with the federal constitution, for at least three reasons: First, federal courts fashioned their version of the rational basis test in part because of the structural difference between the state and federal levels of government. The federal government has limited, enumerated powers, relating primarily to national subjects such as foreign relations and interstate trade.  Matters not entrusted to the federal government are left to the states, meaning states have what The Federalist No. 45 calls “numerous and indefinite” powers over “the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people.” With greater governmental power comes the need for greater protection for individual liberties.

Second, federal courts fashioned their extremely lenient version of the rational basis test in part to avoid imposing a one-size-fits-all national standard on states that have different political and social institutions. This provides breathing room for states to offer greater protection for individual rights—as Washington has done.

And third, state constitutional law is easier to change than is the federal system, meaning that if voters are dissatisfied with the decision of a state court interpreting state law, they have greater recourse than they do when federal courts decide matters of federal constitutional law. Greater judicial restraint might be more justified in the latter circumstance than in the former.

Predictably, the government in Yim is asking the state supreme court to adopt a standard of review that mirrors the federal constitution’s rational basis test. But if every state constitutional guarantee is read to offer no more liberty than its federal analogue, then state constitutions themselves will be drained of their independent vitality. The Washington Supreme Court should resist the urge to adopt the federal test, and instead continue under the existing Presbytery standard of review.

Matt Miller is a Senior Attorney at the Goldwater Institute.

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