Potter v. City of Lacey

550 P.3d 1037, 3 Wash. 3d 328

• Court: Washington Supreme Court
• Decided: July 3, 2024
• Docket: 101,188-1
• Status: Published

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON JULY 3, 2024 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON JULY 3, 2024 ERIN L. LENNON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

CERTIFICATION FROM THE UNITED No. 101188-1 STATES COURT OF APPEALS FOR (certified No. 21-35259) THE NINTH CIRCUIT IN

JACK POTTER, EN BANC Plaintiff, v. Filed: July 3, 2024 CITY OF LACEY, Defendant, and KEN SEMKO, Defendant.

GORDON MCCLOUD, J.—Jack Potter lived in a 23-foot travel trailer

hitched to his truck. He parked his truck and attached trailer on public lots and

streets in the city of Lacey, Washington.

In 2019, Lacey (or the City) passed an ordinance barring people from

parking such large vehicles and trailers on public lots and streets for more than

four hours per day. The City then ordered Potter to move his trailer and truck off

the city hall parking lot and off Lacey streets. Potter v. City of Lacey, No. 101188-1

Potter sued the City and claimed—in part—that its new ordinance violated

his state constitutional “right to reside,” which he argued inhered in the state

constitutional right to intrastate travel. The Ninth Circuit Court of Appeals has

certified questions of state law to this court concerning this right-to-travel—or, as

Potter calls it, this right-to-reside—claim:

Is the right to intrastate travel in Washington protected under the Washington State Constitution, or other Washington law? If Washington state law protects the right to intrastate travel, does the RV [(recreational vehicle)] Parking Ordinance codified in LMC [(Lacey Municipal Code)] §§ 10.14.020-[.]045 violate Jack Potter’s intrastate travel rights?

Ord. Certifying Question to Wash. State Sup. Ct. at 2 (Aug. 18, 2022) (Ninth Cir.

Ord.).

We treat this two-part inquiry as a single question that asks, “Does the RV

Parking Ordinance codified in LMC §§ 10.14.020-.045 violate Jack Potter’s

claimed Washington State constitutional right to intrastate travel?” The answer to

that question is no. Potter has not established that his claimed right to reside

inheres in a Washington state constitutional right to intrastate travel or that it

protects his preferred method of residing in Lacey: by siting his 23-foot trailer on

a public street in violation of generally applicable parking ordinances. 1

Potter asks us to reformulate the questions presented to add whether Lacey’s 1

parking ordinance violates article I, section 14 of the Washington Constitution—our state constitutional bar against cruel punishments. Br. of Pl. at 4, 46-50. The American Civil

2 Potter v. City of Lacey, No. 101188-1

FACTUAL BACKGROUND

The City enacted certain antiparking and related anticamping ordinances in

2019. At that time, Potter was a 62-year-old veteran who had lived in Lacey for

most of the past 20 years. Excerpts of R. (ER) at 49-50 (Potter decl.). He had lived

intermittently at a friend’s house, in a car, and for a time at a veterans’ outreach

program that he ran. Id. at 52-53.

But Potter’s veterans’ program closed and Potter suffered a brief

hospitalization. He then bought a 23-foot travel trailer, hitched it to his truck, and

began living in it full time. Id. at 53. Sometimes he parked the travel trailer in

private lots and other times he parked it on the Lacey streets. Id. In May 2019,

Potter moved his trailer to the Lacey City Hall parking lot and began living there

full-time, along with a group of other vehicle-sheltered individuals. Id. at 54-55.

Liberties Union of Washington (ACLU) amicus brief asks us to also address whether Lacey’s parking ordinance violates Washington Constitution article I, section 5—the state constitutional guaranty of freedom of association. Br. of Amicus Curiae ACLU at 3- 5. To be sure, “[w]e have the authority to reformulate certified questions.” Dearinger v. Eli Lilly & Co., 199 Wn.2d 569, 573 n.2, 510 P.3d 326 (2022) (citing Danny v. Laidlaw Transit Servs., Inc., 165 Wn.2d 200, 205, 193 P.3d 128 (2008) (plurality opinion)). But we generally decline to answer a question that is completely different from the one posed by the federal court. Id. The article I, section 14 and article I, section 5 questions presented by these amici are completely different from the right-to-reside or right-to- intrastate-travel questions posed by the federal court. We therefore decline to address them.

3 Potter v. City of Lacey, No. 101188-1

But in the fall of 2019—seemingly in response to a regional rise in the

number of people living or camping on public property—the City enacted an

anticamping ordinance and an affordable housing strategy. Id. at 33-34 (Gundel

decl.), 103 (Ordinance 1549 (anticamping)), 109 (Ordinance 1550 (affordable

housing strategy)).

One of those ordinances, Ordinance 1551, barred a person from parking a

“recreational vehicle, motor home, mobile home, trailer, camper, vessel or boat

upon the improved or unimproved portion of any street, alley, public right-of-way,

or publicly owned parking lot for more than four hours . . . .” LMC 10.14.020(B);

ER at 218-21 (Ordinance 1551 (parking)).

Ordinance 1551 contains two exceptions, but neither applied to Potter. The

first exception allows a trailer owner to park temporarily for the purposes of

loading or unloading. LMC 10.14.020(B)(l). The second exception allows a trailer

owner to obtain a permit through a process controlled by Lacey’s city manager.

LMC 10.14.020(B)(2), .045.

If neither exception applies and the trailer owner parks for more than four

hours on Lacey public land, the ordinance bars the owner from parking the rig on

any Lacey “street, alley, public right-of-way or publicly owned parking lot” for the

following 24 hours. LMC 10.14.020(C). Lacey punishes violations of these

4 Potter v. City of Lacey, No. 101188-1

parking provisions with a $35 fine and immediate impoundment of the trailer.

LMC 10.14.040.

To implement Ordinance 1551, the city manager adopted a two-tiered

permitting system for trailers and other large residential vehicles covered by the

ordinance. LMC 10.14.020(B)(2), .045; ER at 220-21 (relevant portion of Ordinance

1551), 222-27 (“Temporary Parking Permit Policies and Procedures” manual). One

permitting process applies to “residents,” defined as a “Lacey homeowner or renter”;

the other permitting process applies to “nonresidents,” defined as an “[i]ndividual

without a permanent address.” ER at 223. The residents’ permitting process allows

homeowners or renters to request up to four temporary permits each year for

visitors. Id. Those permits allow visitors to park their trailer or vehicle for up to 48

hours within 150 feet of the requesting resident’s home. Id. To obtain these permits,

the resident must provide proof of residency, the license plate numbers for the

permitted vehicle, and the requester’s address. Id. at 223-24.

The nonresidents’ permitting process allows someone without a permanent

address—like Potter—to “receive a temporary parking permit in a designated

permitted parking area,” if the requester is “actively engaged with social services.”

Id. at 224. To obtain a permit, the nonresident must provide government-issued

identification, proof of insurance and registration, and disclose all other occupants of

5 Potter v. City of Lacey, No. 101188-1

the trailer or vehicle. Id. The Lacey Police Department must then conduct a

background check on all of the vehicle’s occupants and may deny a permit if any of

them have an outstanding warrant or are registered as a sex offender. 2 Id. at 224.

Nonresident permits are valid only within designated areas of the City, only for the

period indicated on the permit, and only for 12 (or fewer) hours per day. Id. 3

In other words, as the Ninth Circuit summarized, these provisions effectively

make it “impossible for vehicle-sheltered individuals to live in an RV on Lacey’s

public land.” Ninth Cir. Ord. at 5. As a result, shortly after Lacey enacted this

ordinance, Potter and the other vehicle-sheltered individuals in the Lacey City Hall

lot were ordered to leave or risk citations and impoundment. ER at 56. Potter

complied and has since moved his trailer to Olympia, Washington. Id. at 59.

2 Potter did not raise a challenge to these exceptions. ER at 258-60. 3 Lacey officials have technically designated a “safe lot” in which nonresident permit holders can park their trailer or vehicle, but it is not in operation. ER at 15 (Fed. Dist. Ct. Ord.). As the federal district court stated, a “safe lot does not appear to have come to fruition.” Id. Lacey contests the Ninth Circuit’s and the district court’s assertions that Lacey has failed to provide the promised safe lot. Def.’s Br. at 7 n.3. But Lacey provides no proof that the lot is operating. Id. (citing ER at 311). And at oral argument before the Ninth Circuit Court of Appeals, Lacey’s counsel confirmed that Lacey had not opened a safe lot. Ninth Cir. oral arg., Potter v. City of Lacey, No. 21- 35259 (May 17, 2022), at 26 min., 20 sec., video recording by United States Courts for the Ninth Circuit, https://www.ca9.uscourts.gov/media/video/?20220517/21-35259/.

6 Potter v. City of Lacey, No. 101188-1

PROCEDURAL HISTORY

But Potter also sued. He filed his lawsuit against the City in August 2020 in

Thurston County Superior Court. He alleged that Ordinance 1551 violated several

provisions of the state and federal constitutions as applied to him and other

“homeless people who live in their vehicles.” Id. at 248 (complaint). But he later

clarified, in both the trial court and in this court, that he raised his claims only for

himself as an individual and challenged Ordinance 1551 only as applied to him,

not on its face.4

Potter’s right to intrastate travel claim states in full:

By adopting and enforcing laws, policies and customs that make it unlawful for the homeless people living in their vehicles to live in the City of Lacey, the Defendants have deprived the Plaintiff of his right to freedom of travel guaranteed by the Washington Constitution. Defendants have denied Plaintiff his state constitutional right not to travel to another city within Washington State and not to live elsewhere in Washington State.

Id. at 258 (complaint). As this quote shows, Potter frames his claim as a “right not

to travel.” His briefing calls it a “right to reside.” Br. of Pl. at 35.

4 Appellant’s [Pl.’s] Answer to Amicus Curiae Br. of Wash. Ass’n of Mun. Att’ys et al. at 21 (“The only question in this case is whether Lacey’s four- hour parking law is unconstitutional as applied to Jack Potter on the facts in the record of this case.” (emphasis omitted)); Def.’s Br. at 10 (“On cross-motions for summary judgment in the district court, Potter further clarified that he was making an ‘as applied’ challenge to the City’s parking ordinance. Dkt. 16, p. 2.”).

7 Potter v. City of Lacey, No. 101188-1

Lacey removed the case to the federal district court for the Western District

of Washington. The parties filed cross motions for summary judgment. ER at 286-

87 (Lacey’s notice of removal), 12 (fed. dist. ct. ord.).

The district court granted summary judgment to Lacey on nearly all of its

claims, including Potter’s state right to intrastate travel claim. Id. at 4-7, 25. The

district court explained that Ordinance 1551

does not fundamentally impede the right to exist or reside in a given area. It is a parking ordinance that is applicable to all people in Lacey, resident or not, and only by extension does it restrict the manner in which a person can live in Lacey. The right to travel does not, however, include a right to live in a certain manner. It is, therefore, inapplicable.

Id. at 23 (fed. dist. ct. ord.).

Potter appealed to the Ninth Circuit Court of Appeals. Id. at 312. Following

oral argument, that court certified the questions quoted above to this court.

Ninth Cir. Ord. at 2-3.

ANALYSIS

The Ninth Circuit has asked us whether the RV parking ordinance codified

in LMC 10.14.020-.045 violates Potter’s Washington state constitutional intrastate

travel rights. Id. at 2.

We must analyze that claim based on the certified record of Potter’s case.

That record shows that Potter challenges Ordinance 1551 only as applied to his

8 Potter v. City of Lacey, No. 101188-1

own circumstances. See supra at 7 & n.4; Appellant’s [Pl.’s] Reply Br. at 28-32.

An as applied challenge “‘is characterized by a party’s allegation that application

of the statute in the specific context of the party’s actions or intended actions is

unconstitutional.’” Fields v. Dep’t of Early Learning, 193 Wn.2d 36, 46, 434 P.3d

999 (2019) (plurality opinion) (quoting City of Redmond v. Moore, 151 Wn.2d

664, 669, 91 P.3d 875 (2004)); see Broadrick v. Oklahoma, 413 U.S. 601, 610-11,

93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). In other words, the record shows that

Potter asserts only a very limited and specific right: the right to reside in a 23-foot

travel trailer hitched to his truck on public streets and lots for an indefinite period

of time. Br. of Pl. at 23, 35, 37 n.21.

But Potter has presented us with no authority, binding or nonbinding, to

support a constitutional right to reside in this manner. The nonbinding authority

based on facts most similar to the facts of Potter’s case has actually come to the

opposite conclusion: those cases hold that there is no (federal) constitutional right

to intrastate travel that protects the right to remain in a particular place, in a

particular manner, in a vehicle. E.g., State v. Pelletier, 2015 ME 129, ¶ 7 & n.5,

125 A.3d 354 (assuming right to intrastate travel exists, upholds State’s right to

require driver’s licenses and establish rules of the road: “the State may, as a valid

exercise of its police power, place limitations on the operation of motor vehicles on

9 Potter v. City of Lacey, No. 101188-1

the State’s roads”); Lutz v. City of York, 899 F.2d 255, 268 (3d Cir. 1990)

(upholding city ordinance that outlawed “cruising” indefinitely on public roads,

despite the fact that it implicated due process right to “move freely about one’s

neighborhood or town,” as appropriate time, place, manner type of restriction).

In fact, binding authority of this court holds that the City actually has the

constitutional authority to adopt parking laws of general applicability. The

Washington Constitution provides municipalities with police powers to protect

health and safety: “Any county, city, town or township may make and enforce

within its limits all such local police, sanitary and other regulations as are not in

conflict with general laws.” WASH. CONST. art. XI, § 11. This is a broad delegation

of power that mirrors the police powers of the state legislature. See Detamore v.

Hindley, 83 Wash. 322, 326-27, 145 P. 462 (1915) (holding that local law

“requires no legislative sanction for its exercise so long as the subject-matter is

local, and the regulation reasonable and consistent with the general laws” (citing

Odd Fellows’ Cemetery Ass’n v. City & County of San Francisco, 140 Cal. 226, 73

P. 987 (1903)).

That broad delegation of power means that cities like Lacey are “authorized

to enact vehicle and traffic regulations which are not in conflict with state laws.”

Sandona v. City of Cle Elum, 37 Wn.2d 831, 836, 226 P.2d 889 (1951) (citing

10 Potter v. City of Lacey, No. 101188-1

Kimmel v. City of Spokane, 7 Wn.2d 372, 109 P.2d 1069 (1941)). That state

constitutional grant of authority empowers cities to enact parking ordinances “to

keep traffic moving, to minimize congestion, and, at the same time, to afford users

of the highways an opportunity to transact business with the occupants of abutting

property.” Kimmel, 7 Wn.2d at 377; see also County Bd. of Arlington County v.

Richards, 434 U.S. 5, 7, 98 S. Ct. 24, 54 L. Ed. 2d 4 (1977) (“A community may . .

. decide that restrictions on the flow of outside traffic into particular residential

areas would enhance the quality of life there by reducing noise, traffic hazards, and

litter.”).

We have therefore consistently upheld such health and safety laws of general

applicability, including laws that limit driving and parking, against intrastate travel

challenges. E.g., State v. Scheffel, 82 Wn.2d 872, 880, 514 P.2d 1052 (1973)

(upholding driver’s license suspension statute against right to travel challenge

because “[t]here is no constitutional right to a particular mode of travel”); City of

Spokane v. Port, 43 Wn. App. 273, 275-76, 716 P.2d 945 (1986) (upholding

driver’s license requirement against right to intrastate travel challenge because

privileges like driving are “always subject to . . . reasonable regulation and control

. . . under the police power” (citing Scheffel, 82 Wn.2d at 880)).

Many federal courts have addressed similar questions arising in other

11 Potter v. City of Lacey, No. 101188-1

states. They generally come to the same conclusion: municipalities have the

right to enact parking and driving laws of general applicability, even if they limit

the ability of residents to use the streets. E.g., Lai v. N.Y.C. Gov’t, 991 F. Supp.

362, 366 (S.D.N.Y. 1998) (“[P]laintiff’s ability to travel is limited by her

physical condition and the shortage of on-street parking spaces in New York

City, [but] her right to travel has not been abridged by the

City’s parking regulations.”); State v. French, 77 Haw. 222, 231 n.9, 883 P.2d

644 (1994) (upholding conviction of violating traffic law against intrastate travel

challenge; federal “right to travel is not a right to travel in any manner one

wants, free of state regulation”); cf. District of Columbia v. Smith, 93 F.2d 650,

651 (D.C. Cir. 1937) (“The power to regulate the use of streets and highways by

restrictions on the parking of vehicles is one universally recognized, and its

reasonable exercise is consistently upheld.”).

Potter has failed to show that Lacey’s parking ordinance violates his

asserted state constitutional right to reside in the manner that he has chosen.

CONCLUSION

Does the RV parking ordinance codified in LMC 10.14.020-.045 violate

Potter’s claimed Washington State constitutional right to intrastate travel? No.

Potter has not established that his claimed constitutional right to travel intrastate, or

12 Potter v. City of Lacey, No. 101188-1

to not travel intrastate, or to reside, protects his preferred method of residing in

Lacey: by siting his 23-foot trailer on a public street in violation of generally

applicable parking ordinances.

WE CONCUR: