November 15, 2019
By Matt Miller

Yesterday, nearly 30 years of private property rights protections were undone by the Washington Supreme Court in a sweeping decision that explicitly overrules 51 pro-liberty cases under the state Constitution. Those decisions served as a bulwark against governmental overreach, requiring the government to balance the impact of restrictions on one’s property against the public interest those restrictions allegedly served. 

No longer. In its decision in Yim v. City of Seattle, the state Supreme Court held that the burden on individual property owners no longer matters—at all—and that the state Constitution does not, in fact, provide any enhanced protection for private property rights. (The Goldwater Institute submitted an amicus brief in the case, which was cited by the court.) The only thing that matters, going forward, is whether the government’s regulation of your property serves some conceivable governmental interest, even if there is no evidence supporting that claim, and even if the burden on property owners is severe.

In Yim, property owners challenged the city of Seattle’s “Fair Chance Housing Ordinance.” Under the law, landlords who screen applicants for housing are prohibited from asking someone if they have a criminal record, or from denying someone housing on the basis of their criminal record. The property owners argued that it is legitimate to consider someone’s criminal record when deciding whether to rent to them, and that they should be allowed to consider such factors. Indeed, some people may not want to have a convicted criminal living on their property. But Seattle has made this kind of decision illegal, and so the property owners sued under the state and federal Constitutions.

The Washington Supreme Court did not rule on the merits of the case. It was asked, instead, to decide what legal standard applies to claims that a law violates the substantive due process clause of the Washington State Constitution. That clause provides that “No person shall be deprived of life, liberty, or property, without due process of law.” Put simply, that means that the government can only exercise its police power in ways that do not unjustly infringe on your constitutional right to live your life, pursue your livelihood, and own your property as you see fit.

But how do we apply those protections in cases where someone alleges that the government has overstepped its authority and exercised the police power in an unconstitutional manner? What legal standard should courts apply? This was the question in Yim. The property owners and the government presented two very different answers.

The property owners argued that the court should apply the same standard it adopted in 1990, in a case called Presbytery of Seattle v. King County. Presbytery announced that Washington courts, when analyzing substantive due process claims involving property rights, should consider whether the regulation is “unduly oppressive upon the person regulated,” in addition to looking at whether the government’s alleged public purpose is supported by evidence. But the government argued that courts should not consider whether a law unduly burdens a property owner. Instead, according to the government, any conceivable justification for a regulation should be sufficient to withstand constitutional scrutiny.

You know by now that the court adopted the government’s view of how substantive due process review—which is fundamentally court review of the police power—should be conducted. In the court’s view, the Washington State Constitution does not provide enhanced protections for the substantive due process rights of property owners. Instead, it provides no more protection than those found in the U.S. Constitution and, accordingly, “rational basis” review applies. This means that “a law regulating the use of property violates substantive due process only if it fails to serve any legitimate governmental objective, making it arbitrary or irrational.” Burden on the property owner does not matter.

For nearly 30 years, Washington courts have operated under the Presbytery framework, which applied heightened scrutiny to regulations for property rights and required courts to consider whether a regulation was “unduly burdensome” on property owners. That protection is now gone, and only government-friendly rational basis review survives. As if to drive the point home, the court included an appendix of 51 Washington State cases that Yim overrules. This is unprecedented, and it demonstrates that the court understood the magnitude of its decision.

Yesterday’s decision reminds us of Ronald Reagan’s warning that “[f]reedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same.” Courts play a vital role in protecting our freedoms, but Yim also reminds us that courts can also play a role in weakening those same rights. The fight for liberty continues under all 51 of America’s constitutions. 

Matt Miller is a Senior Attorney at the Goldwater Institute.

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