Rental Housing Assoc., App/x-resps V. City Of Seattle, Resp/x-app

• Court: Court of Appeals of Washington
• Decided: March 21, 2022
• Docket: 82469-4
• Status: Published

Opinion

THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

RENTAL HOUSING ASSOCIATION; No. 82469-4-I ELENA BRUK; SCOTT DOLFAY; CJD INVESTMENTS, LLC; ZELLA DIVISION ONE APARTMENTS, LLC, PUBLISHED OPINION Appellants,

v.

CITY OF SEATTLE,

Respondents.

ANDRUS, A.C.J. — In early 2020, the Seattle City Council passed three

ordinances: one limiting a landlord’s ability to evict a tenant for nonpayment of rent

during three winter months, one prohibiting a landlord from evicting a tenant for

nonpayment of rent for six months after the end of the COVID-19 civil emergency,

and one requiring the landlord to accept installment payments of unpaid rent for a

certain period of time after the end of the civil emergency. The Rental Housing

Association of Washington (RHAWA) and several landlords challenge the

constitutionality of these ordinances.

On summary judgment, the trial court concluded that a provision banning

the accrual of interest on unpaid rent during the civil emergency and for one year

Citations and pin cites are based on the Westlaw online version of the cited material. No. 82469-4-I/2

thereafter was preempted by state law. It upheld the remaining provisions of the

three challenged ordinances.

We conclude that the ordinance prohibiting a landlord from evicting a tenant

for nonpayment of rent for six months after the end of the civil emergency, without

affording the landlord the opportunity to challenge a tenant’s self-certification of a

financial hardship, violates the landlord’s right to procedural due process. We

otherwise affirm.

FACTUAL BACKGROUND

In February 2020, the Seattle City Council enacted Ordinance 126041, now

codified as SMC 22.205.080, precluding certain evictions during the winter months

(“winter eviction ban”). The winter eviction ban provides:

[I]t is a defense to eviction if:

A. The eviction would result in the tenant having to vacate the housing unit at any time between December 1 and March 1; and

B. The tenant household is a moderate-income household as defined in Section 23.84A.016; 1 and

C. The housing unit that the tenant would have to vacate is owned by a person who owns more than four rental housing units in The City of Seattle. For purposes of this subsection 22.205.080.C, "owns" includes having an ownership interest in the housing units.

SMC 22.205.080(A)-(C). The stated goal of the ordinance is to “protect the public

health, safety, and welfare by reducing the number of individuals and families

1 SMC 23.84A.016 defines “[h]ousehold, moderate-income” as “a household whose income does not exceed median income.” SMC 23.84A.025 defines “median income” as median family income for the area as determined by the U.S. Department of Housing and Urban Development (HUD) The Landlords presented evidence that under HUD regulations, the median family income in Seattle, Washington, in 2019 was $108,600.00 for a four-person household.

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entering into homelessness during the wintertime” and to lower “the number of

people at higher risk of developing exposure-related conditions.”

In March 2020, the COVID-19 pandemic began. Governor Jay Inslee and

Seattle’s then Mayor Jenny Durkan issued emergency declarations banning

residential rental evictions. Shortly thereafter, the City Council passed Ordinance

126368 codifying the mayor’s COVID-19 eviction ban. SMC 22.205.100 provides:

A. Subject to the requirements of subsection 22.205.100.B, it is a defense to eviction if the tenant fails to pay rent due during the civil emergency proclaimed by Mayor Durkan on March 3, 2020, [that] the tenant has suffered a financial hardship during the civil emergency proclaimed by Mayor Durkan on March 3, 2020, and the reason for terminating the tenancy is:

1. The tenant fails to comply with a 14-day notice to pay rent or vacate pursuant to RCW 59.12.030(3) for rent due during the civil emergency proclaimed by Mayor Durkan on March 3, 2020; or

2. The tenant habitually fails to pay rent resulting in four or more pay-or-vacate notices in a 12-month period . . . .

B. The tenant may invoke the defense provided in subsection 22.205.100.A only if the tenant submits a declaration or self- certification asserting the tenant has suffered a financial hardship and was therefore unable to pay rent during the civil emergency proclaimed by Mayor Durkan on March 3, 2020.

Mayor Durkan extended the civil emergency and eviction moratorium to January

15, 2022. 2 After taking office in January 2022, the newly elected mayor, Bruce

Harrell, extended the moratorium to February 14, 2022, 3 then again to February

2 City of Seattle, Office of the Mayor, Executive Order 2021-07, Executive-Order-2021-07-

Continued-Extension-of-COVID-19-Closures-and-Relief-Policies.pdf (seattle.gov) 3 City of Seattle, Office of the City Clerk, Executive Order 2022-01, http://clerk.seattle.gov/search/results?s6=executive+adj+order&l=200&Sect1=IMAGE&Sect2=TH ESON&Sect3=PLURON&Sect4=AND&Sect5=CFCF1&Sect6=HITOFF&d=CFCF&p=1&u=%2Fse arch%2Fclerk-files&r=3&f=G.

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28, 2022. 4 This provision precluded residential evictions in Seattle if tenants could

establish they suffered a financial hardship as a result of the pandemic. The

Landlords do not challenge this eviction restriction.

The City Council, however, took the eviction ban a step further.

Recognizing that the “economic impacts from the COVID-19 emergency are likely

to last much longer than the civil emergency itself,” on May 4, 2020, the City

Council enacted Ordinance 126075, extending the eviction ban for an additional

six months after the mayor lifts the eviction moratorium (“six-month eviction ban

extension”). Ordinance 126075, codified as SMC 22.205.090, is similar but not

identical, to SMC 22.205.100. It provides:

A. Subject to the requirements of subsection 22.205.090.B, it is a defense to eviction if the eviction would result in the tenant having to vacate the housing unit within six months after the termination of the Mayor's eviction moratorium, and if the reason for terminating the tenancy is:

1. The tenant fails to comply with a 14-day notice to pay rent or vacate pursuant to RCW 59.12.030(3) for rent due during, or within six months after the termination of, the Mayor's residential eviction moratorium; or

2. The tenant habitually fails to pay rent resulting in four or more pay-or-vacate notices in a 12-month period . . . .

B. The tenant may invoke the defense provided in subsection 22.205.090.A only if the tenant has submitted a declaration or self-certification asserting the tenant has suffered a financial hardship and is therefore unable to pay rent.

4 City of Seattle, Office of the City Clerk, Executive Order 2022-03, http://clerk.seattle.gov/search/results?s6=executive+adj+order&l=200&Sect1=IMAGE&Sect2=TH ESON&Sect3=PLURON&Sect4=AND&Sect5=CFCF1&Sect6=HITOFF&d=CFCF&p=1&u=%2Fse arch%2Fclerk-files&r=1&f=G.

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Notably, the six-month eviction ban extension drops the requirement that the

tenant prove they suffered a financial hardship during the COVID-19 civil

emergency. While the tenant must submit a “self-certification” to assert a financial

hardship, there is no provision requiring the tenant to actually prove the existence

of such a hardship, as there appears to be under SMC 22.205.100.

Then, on May 11, 2020, the City Council enacted Ordinance 126081, the

“payment plan ordinance.” 5 It provides:

A. A tenant who fails to pay rent when due during, or within six months after the termination of, the civil emergency proclaimed by Mayor Durkan on March 3, 2020, may elect to pay such overdue rent in installments. The tenant shall pay one month or less of overdue rent in three consecutive, equal monthly installments. The tenant shall pay over one month and up to two months of overdue rent in five consecutive, equal monthly payments. The tenant shall pay over two months of overdue rent in six consecutive, equal monthly payments. Any remainder from an uneven division of payments will be part of the last payment. The tenant may propose an alternative payment schedule, which, if the landlord agrees to it, shall be described in writing and signed by the tenant and landlord and deemed an amendment to any existing rental agreement.

B. No late fee, interest, or other charge due to late payment of rent shall accrue during, or within one year after the termination of, the civil emergency proclaimed by Mayor Durkan on March 3, 2020. ....

E. Failure of the owner to accept payment under the installment schedule provided in subsection 2.A of this ordinance is a defense to eviction.

Ord. 126081 sec. 2. The City Council stated that the purpose of both the six-month

eviction ban extension and this payment plan requirement is to reduce financial

5Ordinance 126081 has yet to be codified into the Seattle Municipal Code. The full text of the ordinance can be accessed here: http://clerk.seattle.gov/search/ordinances/126081.

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instability and the risk of homelessness among tenants in Seattle as a result of

COVID-19.

In September 2020, RHAWA and several Seattle landlords brought suit

challenging the constitutionality of these ordinances. On cross-motions for

summary judgment, the trial court largely upheld the ordinances, but ruled that

state law preempts the payment plan ordinance’s ban on the accrual of interest on

unpaid rent during and for a year after the civil emergency. The Landlords

appealed and the City cross-appealed the invalidation of the interest accrual ban.

ANALYSIS

We review a summary judgment order de novo and perform the same

inquiry as the trial court. Borton & Sons, Inc. v. Burbank Props., LLC, 196 Wn.2d

199, 205, 471 P.3d 871 (2020). Constitutional questions are issues of law and are

also reviewed de novo. City of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d

875 (2004).

The Landlords present facial constitutional challenges to the ordinances. In

facial challenges, we consider only if the ordinances’ language violates the

constitution and not whether the ordinance would be constitutional “as applied” to

the facts of a particular case. JJR Inc. v. City of Seattle, 126 Wn.2d 1, 3-4, 891

P.2d 720 (1995). We reject a facial claim “if there are any circumstances where

the [challenged law] can constitutionally be applied.” Wash. State Republican

Party v. Wash. State Pub. Disclosure Comm’n, 141 Wn.2d 245, 282 n.14, 4 P.3d

808 (2000).

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A. Preemption

The Landlords first argue that the ordinances conflict with and are therefore

preempted by state law. The trial court ruled that state law only preempts the

payment plan ordinance’s ban on interest accruing on unpaid rent due during and

within one year of the termination of the mayor’s civil emergency proclamation.

We agree with the trial court and conclude that the remaining provisions of the

ordinances can be harmonized with state law.

“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.” Const. art. XI, sec. 11. “[A] state statute preempts an ordinance on

the same subject if the statute occupies the field, leaving no room for concurrent

jurisdiction, or if a conflict exists such that the statute and the ordinance may not

be harmonized.” Lawson v. City of Pasco, 168 Wn.2d 675, 679, 230 P.3d 1038

(2010). The Landlords here only argue conflict preemption, which “arises when an

ordinance permits what state law forbids or forbids what state law permits.” Id. at

682. An ordinance is constitutionally invalid if it “directly and irreconcilably conflicts

with the statute.” Brown v. City of Yakima, 116 Wn.2d 556, 561, 807 P.2d 353

(1991). “If the two may be harmonized, however, no conflict will be found.”

Lawson, 168 Wn.2d at 682. “[A] local ordinance may go further in its prohibition

than state law.” Rabon v. City of Seattle, 135 Wn.2d 278, 293, 957 P.2d 621

(1998).

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1. Eviction Bans

The Landlords argue that the two eviction bans are preempted by provisions

of the unlawful detainer statute, RCW 59.12.030(3); the Residential Landlord

Tenant Act of 1973 (RLTA), RCW 59.18.130 and .650; and the ejectment statute,

RCW 7.28.250, by prohibiting evictions that state law allows. Because the winter

eviction ban and the six-month eviction ban extension do not prohibit any landlord

from evicting a tenant who has defaulted on rent, but merely regulates the timing

of the eviction, we reject this argument.

RCW 59.18.130 requires that tenants shall pay rent “at such times and in

such amounts as provided for in the rental agreement.” RCW 59.12.030(3)

provides that a tenant is liable for unlawful detainer if they continue in possession

of rental property after a default in rent and after receiving adequate notice from

the landlord. RCW 59.18.650(1)(a) and (2)(a) permits a landlord to evict a tenant

for remaining in possession of the leased premises after a default in rent and the

issuance of a written notice to pay or vacate under RCW 59.12.030(3). RCW

7.28.250 provides that where a tenant fails to pay rent, “the landlord has a

subsisting right to reenter for such failure; he or she may bring an action to recover

the possession of such property, and such action is equivalent to a demand of the

rent and a reentry upon the property.” 6

6 Both ejectment and unlawful detainer are legal methods of evicting tenants who do not pay their rent. Bar K Land Co. v. Webb, 72 Wn. App. 380, 383, 864 P.2d 435 (1993). Unlawful detainer actions under ch. 59.18 RCW are special statutory proceedings with the limited purpose of hastening the recovery of possession of rental property. Id. The superior court’s jurisdiction is limited to the primary issue of possession and incidental issues such as restitution, rent, or damages. Id. Ejectment, however, is a remedy for someone who, having a claim of paramount title, is out of possession. Id. Counterclaims may be asserted in an ejectment action. Id.

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The Landlords maintain that the winter eviction ban and the six-month

eviction ban extension conflict with these statutory provisions by precluding them

from obtaining a court order of eviction or ejectment after the nonpayment of rent.

But our Supreme Court has held that state landlord/tenant laws do not preempt

local ordinances that allow tenants to raise defenses to eviction in unlawful

detainer proceedings.

In Kennedy v. City of Seattle, 94 Wn.2d 376, 617 P.2d 713 (1980), owners

of two houseboat moorage sites challenged a Seattle ordinance limiting the right

to evict houseboat occupants to six specified reasons. Id. at 379-80. 7 The

landlords argued that the ordinance was preempted by the unlawful detainer

statute and the RLTA because it placed limitations on their ability to evict tenants.

Id. at 383-84. The court disagreed:

There is no preemption expressly or by implication, nor is there an irreconcilable conflict between the statutes and the ordinance. A defendant in an unlawful detainer action may assert any defenses available. RCW 59.16.030; 59.18.380. The ordinance does not raise further procedural barriers between landlord and tenant but simply represents another defense for the tenant.

Id. at 384. Under Kennedy, a municipality may enact defenses to eviction without

coming into conflict with the unlawful detainer statute or RLTA.

The Supreme Court extended the holding in Kennedy in Margola Assoc. v.

City of Seattle, 121 Wn.2d 625, 652, 854 P.2d 23 (1993) (abrogated on other

7 These are: (1) failure to pay rent; (2) breach of covenant (excluding the obligation to surrender the site); (3) failure to abate a nuisance or causing a substantial damage to the moorage or substantially interfering with the comfort, safety or enjoyment of other floating home properties at the moorage; (4) failure to execute a lease not in excess of 5 years at a reasonable rent; (5) a change in use of the moorage (with several further restrictions) with 6 months' advance notice; and (6) if the moorage owner, with 6 months' notice, wishes to occupy the moorage site and finds the displaced houseboat owner another lawful moorage site within the City of Seattle. Id.

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grounds by Yim v. City of Seattle, 194 Wn.2d 682, 703, 451 P.3d 694 (2019)).

There, the court rejected a preemption challenge from landlords who argued that

the RLTA preempted a Seattle ordinance prohibiting the eviction of tenants if the

landlord failed to register the building as rental housing. Id. at 651. As in Kennedy,

the court held that “[t]he registration ordinance likewise creates an additional

affirmative defense for a tenant” and is thus not preempted by state law. Id. at

652. This was the case despite the fact that the registration ordinance created a

defense to eviction for any reason, including nonpayment of rent. Id. at 632.

The Landlords distinguish Kennedy and Margola, arguing that in Kennedy,

the ordinance specifically allowed for eviction based on the tenant’s failure to pay

rent. 94 Wn.2d at 379. And in Margola, the Landlords argue, the defense to

eviction was linked to the landlord’s failure to comply with registration

requirements, and not to the nonpayment of rent. They further argue that under

the RLTA, tenants may not exercise their rights to any remedies available under

the RLTA unless they are current in the payment of rent. RCW 59.18.080. But

RCW 59.18.080, by its language, applies only to a tenant’s remedies under the

RLTA, not to remedies or defenses arising from other laws or ordinances. And the

Landlord’s efforts to distinguish Kennedy and Margola are unpersuasive.

First, neither the unlawful detainer statute nor the RLTA limits the defenses

available to a tenant in an unlawful detainer action. As in Kennedy, the ordinances

here do not prevent landlords from filing unlawful detainer actions; each explicitly

provides that they offer a new defense to such an action. And the ordinance at

issue in Margola allowed a tenant to raise as a defense to eviction the landlord’s

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noncompliance with the registration ordinance, even when the unlawful detainer

action was based on the nonpayment of rent.

Second, the ordinances do not remove a tenant’s obligation to pay rent,

prevent a landlord from bringing an unlawful detainer action, or eliminate a tenant’s

liability for their unlawful detainer under RCW 59.12.030(3). Instead, they provide

a temporary defense to evictions, even where the tenant is in arrears, in certain

limited circumstances. There is nothing in the unlawful detainer statute that

requires that an eviction occur within any specific period of time. Under the winter

ban, a landlord can file an unlawful detainer action, obtain an order finding the

tenant to be in unlawful detainer status, and ask the court to schedule the issuance

of a writ of restitution for execution after March 1. Under the COVID six-month

eviction ban extension, the landlord could similarly initiate an unlawful detainer

action at any time, obtain an order finding the tenant to be in arrears on rent and

request the court to schedule the issuance of a writ of restitution after the six-month

extension period expires.

Because the ordinances do not erect new procedural barriers to unlawful

detainer but merely determine the timing of the issuance of writs of restitution, we

conclude that the defenses to eviction provided in the ordinances do not

irreconcilably conflict with state law.

2. Payment Plan Ordinance

The Landlords next argue that the newly enacted state repayment plan

statute, codified in RCW 59.18.630, conflicts with and preempts the payment plan

requirement contained in Ordinance 126081. We conclude the Landlords’ facial

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challenge fails because the city ordinance can be applied in a way to eliminate any

conflict with the state statute.

In 2021, the state legislature enacted a payment plan structure for renters

experiencing financial hardship due to COVID-19. RCW 59.18.630(2) provides:

If a tenant has remaining unpaid rent that accrued between March 1, 2020, and six months following the expiration of the eviction moratorium or the end of the public health emergency, whichever is greater, the landlord must offer the tenant a reasonable schedule for repayment of the unpaid rent that does not exceed monthly payments equal to one-third of the monthly rental charges during the period of accrued debt. (Emphasis added.)

RCW 59.18.630(3) lists the requirements of such plans. 8 RCW 59.18.630(4)

provides that “It is a defense to an eviction under RCW 59.12.030(3) that a landlord

did not offer a repayment plan in conformity with this section.”

The Landlords argue that the City’s ordinance conflicts with state law

because, while state law allows for a flexible payment schedule, the ordinance

creates a mandatory fixed payment schedule based on the number of monthly rent

payments the tenant has missed.

It is possible that a payment schedule under Ordinance 126081 could

conflict with RCW 59.18.630’s prohibition on payments exceeding one-third of

monthly rental charges. For instance, if a tenant misses two months of rent at

$2,000 per month, Seattle’s ordinance would require the tenant to pay the $4,000

debt in five equal monthly payments of $800, which would exceed the permissible

8 The repayment plan may not require payment until 30 days after it is offered to the tenant; may

not include any late fees, attorney fees or other charges; must allow for payment from any source of income, including churches or government agencies; and may not be conditioned on compliance with the rental agreement or a requirement that the tenant apply for government benefits. RCW 59.18.630(3)(a)-(d).

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amount that a landlord could demand under state law. But the ordinance has a

savings clause—it provides that the tenant may elect either to repay past rent on

the schedule set out in the ordinance or to offer the landlord a different payment

schedule. Ordinance 126081, § 2(A). “The tenant may propose an alternative

payment schedule, which, if the landlord agrees to it, shall be described in writing

and signed by the tenant and landlord and deemed an amendment to any existing

rental agreement.” Id.

Because the tenant can choose between the state repayment law, capping

the amount of the payments to one-third of the monthly rent, and the city’s

repayment ordinance, with the state law requiring lower monthly payments than

the city ordinance, most tenants would foreseeably elect a payment plan consistent

with state law. 9 Although there could be a situation where the ordinance would

require the tenant to make payments in excess of one-third of that tenant’s monthly

rent, and thereby violate state law, the ordinance’s savings clause eliminates any

conflict between the two. Because there are circumstances where the payment

plan ordinance can constitutionally be applied, the Landlords’ facial challenge fails.

3. Ban on Accrual of Interest

The Landlords next argue that RCW 19.52.010 preempts Ordinance

126081’s ban on interest accruing on rent due during or within one year of the

9 If the landlord offers a repayment plan consistent with state law, and the tenant refuses to consent to it, the landlord may evict that tenant. RCW 59.18.630(2). The tenant thus has a strong incentive to accept the payment plan required by state law.

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termination of the civil emergency proclamation. We affirm the trial court’s

conclusion that the state statute preempts this ordinance provision.

Section 2(B) of Ordinance 126081 provides that “[n]o . . . interest . . . due to

late payment of rent shall accrue during, or within one year after the termination

of, the civil emergency.” But RCW 19.52.010(1) states “every loan or forbearance

of money, goods, or thing in action shall bear interest at the rate of twelve percent

per annum where no different rate is agreed to in writing between the parties.” A

party is entitled under this statute to prejudgment interest on any liquidated claim

to compensate them for loss of use on money wrongfully withheld by another party.

TJ Landco, LLC v. Harley C. Douglass, Inc., 186 Wn. App. 249, 256, 346 P.3d 777

(2015). When a party breaches an obligation to pay a specified amount, a new

forbearance is created and that forbearance triggers the prejudgment interest

statute. Id. Unpaid rent accrues interest at a default rate of 12 percent per annum

when the parties’ agreement does not provide otherwise. In re Estate of

Wimberley, 186 Wn. App. 475, 511, 349 P.3d 11 (2015).

The ordinance prohibiting the accrual of prejudgment interest on unpaid

rents violates the rights conferred on any creditor under RCW 19.52.010. There

is no way of interpreting the provision banning the accrual of interest so that it does

not conflict with RW 19.52.010. We therefore affirm the trial court’s ruling that the

interest provision in Ordinance 126081 is preempted by state law.

B. Takings Clause

The Landlords next challenge the ordinances as an unconstitutional taking

without compensation in violation of article I, section 16 to the Washington

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Constitution. 10 They contend that the ordinances are a per se physical taking

because they dispossess the Landlords of their right to occupy their own

property. 11 We disagree that regulating the landlord-tenant relationship in this

manner constitutes a per se physical taking of the leased premises.

Under the takings clause of the Fifth Amendment to the U.S. Constitution,

when the government physically acquires private property for a public use, there

is a clear and categorical obligation to provide the owner with just compensation.

Cedar Point Nursery v. Hassid, __ U.S. __, 141 S. Ct. 2063, 2071, 210 L. Ed. 2d

369 (2021) (citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning

Agency, 535 U.S. 302, 321, 122 S. Ct. 1465, 152 L. Ed. 2d 517 (2002)).

Government action that physically appropriates property is no less a physical

taking because it arises from a regulation. Id. at 2072. “The essential question is

. . . whether the government has physically taken property for itself or someone

else—by whatever means—or has instead restricted a property owner's ability to

use his own property.” Id. Whenever a regulation results in a physical

appropriation of property, a per se taking has occurred. 12 Id.

10 The takings clause of the Fifth Amendment to the United States Constitution provides, “nor shall

private property be taken for public use, without just compensation.” Similarly, article I, section 16 of the state constitution provides, “No private property shall be taken or damaged for public or private use without just compensation having been first made.” 11 The Landlords also argue that the ban on interest payments is also a taking. Because we affirm

the trial court’s conclusion that Ordinance 126081’s ban on interest is preempted by state law, we need not reach this takings claim. 12 In Manufactured Housing Communities of Washington v. State, 142 Wn.2d 347, 361, 13 P.3d 183 (2000), abrogated by Chong Yim v. City of Seattle, 194 Wn.2d 651, 451 P.3d 675 (2019), the Supreme Court held that the Washington State Constitution is more protective than the federal constitution on the basis “that ‘private use’ under amended article I, section 16 is defined more literally than under the Fifth Amendment, and that Washington's interpretation of ‘public use’ has been more restrictive.” In Yim, the Supreme Court held that it would nevertheless follow federal case law for evaluating whether a law constitutes a regulatory taking. 194 Wn.2d at 667. Now that the U.S. Supreme Court appears to apply the same test for both per se physical and regulatory takings, we assume our Supreme Court will continue to apply the federal test. We do so here.

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The Landlords argue that the Ordinances are per se takings because they

eliminate the owner’s right to exclude tenants from their property or to sue to collect

past due rents. They rely heavily on the recent U.S. Supreme Court decision

Cedar Point Nursery. There, plaintiffs challenged a California regulation that

granted labor organizations the right to access an agricultural employer’s property

to solicit support from workers for unionization. Id. at 2069-70. The court

concluded that “[t]he access regulation appropriates a right to invade the growers’

property and therefore constitutes a per se physical taking. The regulation grants

union organizers a right to physically enter and occupy the growers’ land for three

hours per day, 120 days per year” and thus “the regulation appropriates for the

enjoyment of third parties the owners’ right to exclude.” Id. at 2072.

The court deemed the California regulation analogous to an involuntary

servitude or an easement, both of which rise to the level of takings requiring just

compensation. Id. at 2073.

The upshot of this line of precedent is that government-authorized invasions of property—whether by plane, boat, cable, or beachcomber—are physical takings requiring just compensation. As in those cases, the government here has appropriated a right of access to the growers’ property, allowing union organizers to traverse it at will for three hours a day, 120 days a year.

Id. at 2074. The Landlords maintain that the ordinances, like the invalid California

regulation, are analogous to an involuntary occupation of their property by tenants

whose right to remain was contingent on the payment of rent.

But there is a critical difference between tenants invited to live on a

landlord’s property in exchange for rent and union organizers with whom the

landowners had no contractual relationship and who never had permission to enter

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the land in the first place. A tenant’s right to occupy leased property may have

originated in the contractual relationship between the landlord and the tenant, but

the tenants’ rights, including the right to occupy, are heavily regulated in

Washington and protected by state statutes. This is not a situation in which a

government has unilaterally authorized someone with no connection to the

property to gain access, but one in which the landlord has voluntarily given a

temporary right of occupancy through contract and the government has altered its

regulation of that contractual relationship in favor of the tenants. The U.S.

Supreme Court has previously held that “statutes regulating the economic relations

of landlords and tenants are not per se takings.” F.C.C. v. Florida Power Corp.,

480 U.S. 245, 252, 107 S. Ct. 1107, 94 L. Ed. 2d 282 (1987) (citing Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419, 440, 102 S. Ct. 3164, 73 L.

Ed. 2d 868 (1982)).

More applicable to the present case is the U.S. Supreme Court’s decision

in Yee v. City of Escondido, 503 U.S. 519, 112 S. Ct. 1522, 118 L. Ed. 2d 1 (1992).

There, mobile home park owners challenged a California law limiting the reasons

that a park owner could terminate a mobile home owner's tenancy and a municipal

ordinance prohibiting an increase in rent without city council approval. Id. at 524-

25. The park owners argued that the rent control provision constituted a per se

physical taking. Id. at 523-24. The Court rejected this argument, reasoning that a

physical taking occurs “only where [the government] requires the landowner to

submit to the physical occupation of his land” and because the laws merely

regulated petitioners’ use of their land by regulating the relationship between

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landlord and tenant, they could not be squared with the Court's physical takings

cases. Id. at 527-28. This case is more analogous to Yee than to Cedar Point

Nursery. The Landlords voluntarily invited the tenants to live in their homes and

the ordinances regulate a landlord-tenant relationship that has already been

established by the parties.

The Landlords argue that the reasoning in Yee should not be extended to

this case because the regulation at issue in that case simply prohibited rent

increases, whereas here, Seattle’s winter and COVID-19 eviction bans preclude

them from terminating a tenancy for nonpayment of rent.

We understand that the reasoning in Yee was premised on the fact that the

applicable rent control laws did not affect the landlords’ right to exclude anyone

from their property:

At least on the face of the regulatory scheme, neither the city nor the State compels petitioners, once they have rented their property to tenants, to continue doing so. . . . While the “right to exclude” is doubtless, as petitioners assert, “one of the most essential sticks in the bundle of rights that are commonly characterized as property,” we do not find that right to have been taken from petitioners on the mere face of the Escondido ordinance.

Id. at 528-29 (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176, 100 S. Ct.

383, 62 L. Ed. 2d 332 (1979)). Similarly, in Margola, our Supreme Court held that

restricting a landlord’s ability to evict a tenant based on the landlord’s nonpayment

of a registration fee was not a taking because, as in Yee, the law did not destroy

the landlord’s right to exclude others from their property. 121 Wn.2d at 648. It

specifically quoted the following passage from Yee:

- 18 - No. 82469-4-I/19

A different case would be presented were the statute, on its face or as applied, to compel a landowner over objection to rent his property or to refrain in perpetuity from terminating a tenancy.

121 Wn.2d at 648 (emphasis in original) (quoting Yee, 503 U.S. at 528). This

language in Yee, adopted in Margola, appears to create an exception—if the

ordinance compelled a landlord to rent to someone over the landlord’s objection,

or prohibited the landlord from ever terminating the tenancy, a takings claim would

arise.

We nevertheless conclude that the ordinances do not fit into the exception

carved out by Yee and Margola. First, the ordinances do not require a landlord to

rent property to anyone with whom the landlord has not already voluntarily entered

into a lease agreement. Second, the ordinances do not prevent a landlord from

ever terminating a tenancy. The ordinances place timing restrictions on eviction,

but otherwise do not change a pre-existing landlord-tenant relationship. 13

Several federal district courts have considered and rejected a takings claim

in the context of various COVID-related eviction moratoria. In El Papel LLC v.

Durkan, 2021 WL 4272323 (W.D. Wash. September 15, 2021), a magistrate judge

addressed a challenge to two of the same ordinances at issue here—the six-month

eviction ban extension and the payment plan requirement—and concluded the

ordinances do not amount to a physical taking under Yee. Id. at *15-16. Magistrate

Judge Creatura reasoned:

Here, too, the government has not required a physical invasion of plaintiffs’ property. Instead, plaintiffs have voluntarily rented their

13 Employing the same analysis, Division Two of this court recently held that the state COVID-19

eviction moratorium did not constitute a per se physical taking under Yee. Gonzales v. Inslee, No. 55915-3-II, slip op. at *23 (Wash. Ct. App. Feb. 23, 2022) https://www.courts.wa.gov/opinions/pdf/D2%2055915-3-II%20Published%20Opinion.pdf.

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land to residential tenants and temporarily lost the ability to evict tenants in certain situations during the COVID-19 crisis and for six months after September 30, 2021. Contrary to plaintiffs’ arguments, none of the restrictions are permanent. Plaintiffs retained the ability to sue their tenants for unpaid rent due to COVID-19 under the State moratorium, except where the resident had not been offered or was complying with a repayment plan. The City allows tenants to take advantage of a repayment plan, but neither the City nor the State has forgiven or cancelled unpaid rent.

Id. at *16.

In Elmsford Apt. Assocs., LLC v. Cuomo, residential landlords challenged

Governor Cuomo’s executive order that temporarily allowed tenants to apply

security deposits toward rent and temporarily prohibited landlords from initiating

evictions of tenants facing pandemic-caused financial hardships. 469 F. Supp. 3d

148, 160 (S.D. N.Y. 2020). The federal district court held that a “temporary halt on

evictions” does not take on the character of a physical taking. Id. at 163. The

landlords continued to control their property, continued to rent to tenants and to

collect rents from them; the order did not reduce the amount the tenants had to

pay, or forgive any rental obligations. The landlords retained the right to evict

tenants when the order expired. Thus, it held that a temporary ability to expel

tenants facing COVID-related financial setbacks did not rise to the level of a

physical taking. Id. at 164.

Similarly, in Auracle Homes, LLC v. Lamont, residential landlords sued the

Governor of Connecticut, alleging that his executive orders limiting evictions and

rent payments during the pandemic violated the takings clause. 478 F. Supp. 3d

199, 218 (D. Conn. 2020). A federal district court there followed the reasoning of

Elmsford and concluded that no physical taking had occurred because the

landlords had voluntarily rented their premises to the tenants and regulations - 20 - No. 82469-4-I/21

affecting the economic relationships between landlords and tenants are not a

physical invasion. Id. at 220-21. Other federal courts addressing COVID-related

restrictions on eviction have held the same. See Heights Apartments, LLC v. Walz,

510 F. Supp. 3d 789, 812 (D. Minn. 2020); Baptiste v. Kennealy, 490 F. Supp. 3d

353, 388 (D. Mass. 2020).

Finally, in Jevons v. Inslee, 2021 WL 4443084 (E.D. Wash. 2021), the court

rejected a taking challenge to Governor Inslee’s COVID-19 eviction moratorium.

The court held that the moratorium “did not require Plaintiffs to submit to a physical

occupation or invasion of their land and did not appropriate Plaintiffs’ right to

exclude.” Id. at *13. “No physical invasion has occurred beyond that agreed to by

Plaintiffs in renting their properties as residential homes, which is naturally subject

to regulation by the state.” Id.

The reasoning contained in these federal cases is persuasive. Neither the

winter eviction ban nor the COVID-eviction ban extension takes away any control

over the property from landlords. They may continue to rent their properties and

to collect rents. The ordinances do not forgive any rent obligations owed by

tenants or reduce the amount the tenants must pay in arrearages. And the

landlords retain the right to evict tenants at the end of the winter or six months after

the expiration of the COVID civil emergency. We conclude that neither eviction

ban constitutes a per se physical taking in violation of article 1, section 16 of the

Washington Constitution.

C. Procedural Due Process

The Landlords argue that each ordinance violates their procedural due

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process right to a meaningful opportunity to be heard before they are deprived of

their property rights. We agree as to the six-month eviction ban extension’s self-

certification provision, but otherwise affirm the trial court.

Article I, section 3 of the Washington Constitution states: “No person shall

be deprived of life, liberty, or property, without due process of law.” Our state due

process protection against the arbitrary exercise of the powers of government has

both procedural and substantive components. Yim, 194 Wn.2d at 688. “The

procedural component provides that ‘[w]hen a state seeks to deprive a person of

a protected interest’, the person must ‘receive notice of the deprivation and an

opportunity to be heard to guard against erroneous deprivation.’ ” Id. (quoting

Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 216, 143 P.3d 571 (2006). A

procedural due process claim has two distinct elements: (1) the deprivation of a

constitutionally protected liberty or property interest; and (2) a denial of adequate

procedural protections. Webb v. Washington State University, 15 Wn. App. 2d

505, 516, 475 P.3d 1051 (2020). 14

1. Deprivation of Constitutionally-Protected Property Interests

To meet their burden, the Landlords must first demonstrate that the

ordinances constitute a deprivation of a constitutionally-protected property interest.

Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976);

Bang Nguyen v. Dep't of Health Med. Quality Assur. Comm'n, 144 Wn.2d 516,

522-23, 29 P.3d 689 (2001).

14 Article I, section three provides protections coextensive to those contained in the U.S.

Constitution’s 14th Amendment. State v. Jordan, 180 Wn.2d 456, 462, 325 P.3d 181 (2014). As such, federal cases must be given great weight in construing the state due process provision. Petstel, Inc. v. King County, 77 Wn.2d 144, 153, 459 P.2d 937 (1969).

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The Landlords identify the property interests at issue here as:

(1) timely paid rent money, which right is protected by State law . . ., (2) deprivation of the eviction mechanism established by law to assist in either enforcing timely paid rent or enforcing a timely return of the rental premises to the owner . . . , (3) forcing landlords to suffer involuntary physical occupation of an owned real property space, and (4) deprivation of State law required interest on a current owed debt.

The U.S. Supreme Court has recognized that property owners have a

constitutionally protected right to exclude others from their property. Coll. Sav.

Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 673, 119

S. Ct. 2219, 144 L. Ed. 2d 605 (1999) (“The hallmark of a protected property

interest is the right to exclude others. That is one of the most essential sticks in the

bundle of rights that are commonly characterized as property.”) (quoting Kaiser

Aetna, 44 U.S. 164 at 176). Our court has similarly recognized that the right to

exclude others from one’s property is a fundamental attribute of property

ownership. See Holmquist v. King County, 192 Wn. App. 551, 561-62, 388 P.3d

234 (2016) (“Respecting the paramount right to exclude others, Washington courts

compensate the loss of exclusive possession under a variety of legal theories.”).

The U.S. Supreme Court also considers rental income to be a significant

property interest in the due process context. See U.S. v. James Daniel Good Real

Prop., 510 U.S. 43, 54-55, 114 S. Ct. 492, 126 L. Ed. 2d 490 (1993) (federal

government required to give landowner notice and hearing before seizing home

and ordering tenants to remit rent to the U.S. Marshal).

In the landlord-tenant relationship, both rights are recognized in RCW

59.12.030(3) and RCW 7.28.250. These statutes provide that Washington

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landlords are entitled to the timely payment of rent and confer on them the right to

file an action for unlawful detainer and to reenter the property upon a default in

payment. We thus conclude the Landlords have established that they have

constitutionally protected property rights impacted by the ordinances.

The City contends that even if the Landlords have constitutionally protected

property rights, the eviction defenses do not “deprive” the Landlords of this

property because the eviction bans are temporary in nature. But the Landlords’

property interests are protected under procedural due process even if the

challenged deprivation is temporary. In Sniadach v. Family Finance Corp. of Bay

View, 395 U.S. 337, 338-39, 89 S. Ct. 1820, 23 L. Ed. 2d. 349 (1969), the Court

held that a Wisconsin garnishment statute, allowing for prejudgment garnishment

of wages, violated due process principles even if the deprivation of income was

temporary because “in the interim the wage earner is deprived of his enjoyment of

earned wages without any opportunity to be heard and to tender any defense he

may have.” In a concurring opinion, Justice Harlan clarified that “[t]he ‘property’ of

which petitioner has been deprived is the use of the garnished portion of her wages

during the interim period between the garnishment and the culmination of the main

suit.” Id. at 342 (J. Harlan, concurring). See also, Fuentes v. Shevin, 407 U.S. 67,

84-85, 92 S. Ct. 1983, 32 L. Ed. 2d. 556 (1972) (“it is now well settled that a

temporary, nonfinal deprivation of property is nonetheless a ‘deprivation’ in the

terms of the Fourteenth Amendment); Olympic Forest Prods., Inc. v. Chaussee

Corp., 82 Wn.2d 418, 419, 511 P.2d 1002 (1973) (prejudgment garnishment of

$30,000 was deprivation of significant property interest).

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The winter eviction ban temporarily deprives the Landlords of their right to

exclude nonpaying tenants and to receive rental income by barring the Landlords

from removing these tenants and from renting the property to someone who can

pay. The six-month eviction ban extension similarly deprives the Landlords of

these same property rights for six months after the expiration of the civil

emergency. Although the Landlords are only temporarily barred from evicting

nonpaying tenants, the winter eviction ban and six-month eviction ban extension

nevertheless effectuate a deprivation of significant property rights. Even if a

landlord is eventually able to evict the nonpaying tenant and obtain a judgment for

unpaid rent, the landlord lost the use of the rental income during the interim

period. 15

The City argues that the holdings in Sniadach, Fuentes, and Olympic

Forest, should be limited to the prejudgment seizure of a defendant’s assets. But,

in Olympic Forest, the Supreme Court explicitly rejected the argument that the due

process clause applies to certain types of property and not others:

[T]he basic due process requirements of notice and a prior hearing are not limited to the protection of only certain types of property, for if the root principle of procedural due process is to be applied with objectivity, it cannot rest on such distinctions. . . . Where any ‘significant property interest’ is at stake, the safeguards of procedural due process are applicable.

82 Wn.2d at 428 (quoting Fuentes at 90).

Moreover, the temporary deprivation of access to one’s real estate in the

landlord-tenant context is a significant one. The purpose of an unlawful detainer

15 The Landlords also argue that Ordinance 126081 deprives them of their property interest in interest accruing on owed rent. We need not reach the issue because we conclude the ban on the accrual of interest is preempted by state law.

- 25 - No. 82469-4-I/26

action is to provide “an expedited method of resolving the right to possession of

property.” Christensen v. Ellsworth, 162 Wn.2d 365, 370-71, 173 P.3d 228 (2007).

This statute recognizes that a tenant who cannot pay rent may be judgment proof

and expediting the tenant’s departure allows the landlord to recover possession of

the property before incurring extensive damages. Without the ability to exercise

their rights under the RLTA and unlawful detainer statutes, the Landlords face the

risk of never being able to recover the unpaid rent, even after they are eventually

able to evict the defaulting tenant. 16

2. Adequacy of Procedural Protections

The Landlords argue that none of the ordinances contain adequate

safeguards to protect against the wrongful deprivation of their property interests.

We conclude that the winter eviction ban and the payment plan ordinance provide

the Landlords with adequate procedural protections to safeguard their identified

property interests, but the COVID six-month eviction ban extension does not.

When determining procedural due process rights, we use the balancing test

of Mathews v. Eldridge:

[C]ourts must balance three factors to determine the process due in a particular situation: (1) the private interest that will be affected by the governmental action, (2) the risk of erroneous deprivation and the probable value of requiring additional procedural safeguards, and (3) the government's interest, including the fiscal and administrative burdens that additional procedural safeguards would entail.

16 In Auracle Homes, the federal district court rejected the landlords’ procedural due process challenge to the Connecticut eviction moratorium because of Second Circuit precedent precluding a party from pursuing a due process claim if the property interest at issue is arguably protected by the takings clause. 478 F. Supp. 3d at 227. In Washington, however, courts recognize no such rule and permit the simultaneous prosecution of due process and takings claims. See Guimont v. City of Seattle, 77 Wn. App. 74, 80, 896 P.2d 70 (1995).

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City of Redmond v. Moore, 151 Wn.2d 664, 681, 91 P.3d 875 (2004) (citing

Mathews, 424 U.S. at 335).

The private interests implicated by each ordinance are the deprivation of

rental income. In James Daniel Good Real Property, the Supreme Court

concluded that a loss of $900 in rent per month due to government seizure of

claimant Good’s residential property “represents a significant portion of the

exploitable economic value of Good’s home” and therefore “the private interests at

stake in the seizure of real property weigh heavily in the Mathews balance.” 510

U.S. 43, 54-55. The government interest is allowing tenants to avoid

homelessness during the winter or during an unprecedented event, when the

health risks of being unsheltered are extremely high. Both interests are

compelling.

The question here is whether the procedures set out in the ordinances are

adequate to minimize the risk that landlords will lose rental income unnecessarily

and whether providing additional safeguards to avoid such risks would impair the

government’s interest in reducing homelessness.

“The fundamental requirement of due process is the opportunity to be heard

‘at a meaningful time and in a meaningful manner.’ ” Mathews, 424 U.S. at 333

(quoting Armstrong v. Manzo, 380 U.S. 545, 552 85 S. Ct. 1187, 14 L. Ed. 2d 62

(1965)). Absent “extraordinary circumstances,” “[t]he right to prior notice and a

hearing is central to the Constitution's command of due process.” James Daniel

Good Real Property, 510 U.S. at 53. Procedural due process “[a]t its core is a right

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to be meaningfully heard, but its minimum requirements depend on what is fair in

a particular context.” In re Det. of Stout, 159 Wn.2d 357, 370, 150 P.3d 86 (2007).

The ordinances create defenses to an action for unlawful detainer. A

landlord may not evict anyone without a court order. RCW 59.18.290(1). To obtain

a court order, the landlord must file a complaint for unlawful detainer and request

a hearing. RCW 59.18.370. At the hearing, the tenant may assert any defense

arising out of the tenancy. RCW 59.18.380. The two eviction ban ordinances set

out different conditions that the tenant must meet before a court can delay the

eviction. Because the fairness of any set of procedures is contextual in nature, we

evaluate each of the ordinances separately.

a. Winter Eviction Ban

To prevail on a winter eviction ban defense, a tenant must prove that (1) the

eviction would require the tenant to vacate between December 1 and March 1, (2)

the tenant household is “a moderate-income household as defined in [SMC]

23.84A.016,” and (3) the tenants live in housing units “owned by a person who

owns more than four rental housing units” within Seattle. SMC 22.205.080(A)-(C).

Any tenant seeking to avoid eviction between December 1 and March 1 must make

this factual showing at or before the show cause hearing.

The Landlords contend that the winter eviction ban creates an unreasonable

risk of an erroneous deprivation of their property rights because it does not require

the tenant to prove the existence of a financial hardship or a risk of homelessness.

But the tenant must establish their household income fails to meet a designated

threshold, a proxy for financial hardship. SMC 23.84A.016 defines “Household,

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moderate-income” as “a household whose income does not exceed median

income.” SMC 84A.025 defines "median income" as

annual median family income for the Seattle area, as published from time to time by the U.S. Department of Housing and Urban Development (HUD), with adjustments according to household size in a manner determined by the Director, which adjustments shall be based upon a method used by the United States Department of Housing and Urban Development to adjust income limits for subsidized housing, and which adjustments for purposes of determining affordability of rents or sale prices shall be based on the average size of household considered to correspond to the size of the housing unit (one (1) person for studio units and one and a half (1.5) persons per bedroom for other units).

HUD sets income limits that determine eligibility for assisted housing programs and

develops income limits for each metropolitan area, parts of some metropolitan

areas, and each non-metropolitan county. 17 The Landlords presented evidence

below that the annual median family income for Seattle in 2019 was $108,600.

According to its website, HUD has set the 2021 income level at $115,700. 18

The Landlords argue that it is unfair to permit someone earning $115,700

to remain rent free in their apartments or homes for three months if these

individuals cannot prove that they in fact face homelessness. But the City offered

evidence of a connection between eviction and the risk of homelessness, citing the

“Losing Home” report, published by the Seattle Women’s Commission and King

County Bar Association’s Housing Justice Project in 2018. 19 The report found that

17 Income Limits, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, https://www.huduser.gov/portal/datasets/il.html#2021_query. 18 Fiscal Year 2022 Income Limits Documentation System, U.S. DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT, https://www.huduser.gov/portal/datasets/il/il2021/2021MedCalc.odn (medial income calculation), https://www.huduser.gov/portal/datasets/il/il12/HUD_sec8_12.pdf (family size uses four as a base). 19 Seattle Women’s Comm’n & King Cty. Bar Ass’n Housing Justice Project, LOSING HOME: THE

HUMAN COST OF EVICTION IN SEATTLE, at 3 (2018)

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37.5 percent of people evicted in King County became unsheltered, another 25

percent live in a shelter or transitional housing, and another 25 percent ended up

staying with family or friends. Only 12.5 percent of evicted respondents found

another apartment or home. The City Council cited these statistics as a part of its

legislative findings supporting the winter eviction ban. Given these statistics, it is

highly unlikely that a significant number of individuals facing eviction in the winter

months actually earn a six-figure income.

The Landlords argue that requiring tenants to demonstrate a financial

hardship or an increased risk of homelessness as a precondition to invoking the

winter eviction ban defense would protect the Landlords’ right to evict a defaulting

tenant who is not at risk of becoming homeless. But this policy argument would

require us to make a substantive change in the law, rather than to add more

procedural protections.

In Fields v. Department of Early Learning, 193 Wn.2d 36, 43-45, 434 P.3d

999 (2019), four justices of the Supreme Court held that an employee of a licensed

daycare facility had a procedural due process right to challenge a permanent

administrative disqualification from providing licensed child care based on a 30-

year-old robbery conviction. But five justices disagreed that the Department of

Early Learning disqualification rule violated the employee’s procedural due

process rights, with Justice Gordon McCloud concurring in the lead opinion’s result

but doing so on substantive due process grounds. See Id. at 52-53 (McCloud, J.,

concurring); Id. at 58 (Fairhurst, J., dissenting) (procedural due process

http://www.seattle.gov/Documents/Departments/SeattleWomensCommission/LosingHome_9-18- 18.pdf (hereafter “LOSING HOME”).

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guarantees only that individuals have notice and the opportunity to contest whether

the rule applies to them, not whether it should do so). The Landlords’ argument

here is more akin to a substantive, rather than procedural, due process claim. Yet,

the Landlords raise only procedural due process in their briefs.

The minimum procedural due process requirements are:

(1) timely and adequate notice of hearing on the probable validity of the . . . claim which states the basis for the claim and allows the [responding party] adequate time to prepare for the hearing; (2) an independent and impartial decision maker; (3) the right to appear personally at the hearing, with or without retained counsel; (4) the right at the hearing to confront and cross-examine any adverse witness and to present evidence and oral argument in support of his claim or defense; (5) the right to a decision based on applicable legal rules and evidence adduced at the hearing.

Rogowski v. Hammond, 9 Wn. App. 500, 506, 513 P.2d 285 (1973).

Under SMC 22.205.080(E)(2) and the unlawful detainer statute, the

Landlords have the right to a hearing to challenge the factual veracity of the

tenant’s claimed income level. Nothing prevents the landlord from claiming that a

tenant has the ability to pay rent and has simply chosen not to do so. The winter

eviction ban ordinance satisfies the requirements of procedural due process.

Moreover, the risk of erroneous deprivation is low given that, even where

the court deems the defense applicable, the deprivation of rental income and the

landlord’s ability to evict defaulting tenants is temporary, lasting no more than three

months, after which the landlord may proceed with eviction and seek recovery of

unpaid rent. The winter eviction ban does not violate procedural due process.

b. Six-Month COVID Eviction Ban Extension

The Landlords argue that even if the winter eviction defense includes

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sufficient procedural safeguards to satisfy due process, the six-month eviction ban

extension does not. We agree.

SMC 22.205.090(B) allows any tenant, regardless of employment status or

income level, to invoke the six-month eviction ban extension by simply submitting

a “self-certification” asserting that the tenant has suffered a financial hardship and

is unable to pay rent. While SMC 22.205.100, the current COVID-19 eviction ban,

requires the tenant to actually prove the existence of a financial hardship, SMC

22.205.090 eliminated that proof requirement. The self-certification provision does

not allow a landlord to challenge the veracity of the tenant’s certification. Once a

tenant submits a declaration of financial hardship, there appears to be no basis on

which the landlord may challenge it.

The U.S. Supreme Court recently ruled that a similar New York law violates

due process. Chrysafis v. Marks, No. 21A8, 594 U.S. __, 2021 WL 3560766 (Aug.

12, 2021). The New York law at issue in Chrysafis offered more procedural

protections than the six month eviction extension does in that it required a tenant

to submit a “self-certification” of financial hardship under penalty of perjury. Id. at

*1. The court held that “[t]his scheme violates the Court's longstanding teaching

that ordinarily ‘no man can be a judge in his own case’ consistent with the Due

Process Clause” and indicated that due process would not be satisfied without a

hearing to allow the landlord to challenge the claim of financial hardship. Id.

(quoting In re Murchson, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955)).

We reach the same conclusion here; under basic due process law, the Landlords

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must have an opportunity to challenge the veracity of the tenant’s self-certification

or declaration of financial hardship.

The City has advanced no argument for why such an additional procedural

protection would be unduly burdensome. SMC 22.205.100, which provided a

defense to evictions during the civil emergency, applies only where “the tenant has

suffered a financial hardship during the civil emergency” and thus requires the

tenant to prove a financial hardship, presumably with evidence the landlord has

the opportunity to challenge. By removing this evidentiary requirement from SMC

22.205.090, the City Council has eliminated the Landlords’ ability to meaningfully

contest the tenant’s assertion of financial hardship.

The inability to challenge the tenant’s self-certification creates the

unnecessary risk that a court will grant a reprieve from eviction to a tenant who

does not financially need it. The City has failed to demonstrate how the addition

of procedural protections that would safeguard against such an erroneous

deprivation would cause an undue burden and outweighs the benefits the

protections offer. The six month eviction ban extension thus violates the

Landlords’ right to procedural due process.

c. Payment Plan Ordinance

The Landlords argue that the payment plan requirement is defective

because it requires no showing of a heightened risk of homelessness on the part

of the tenant. But again, the Landlords are confusing procedural protections with

substantive ones. The payment plan defense is not based on a self-certification

by the tenant. The ordinance requires a court to determine whether, in fact, the

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tenant proffered and the landlord refused to accept a tenant’s installment payment

under the ordinance’s mandated schedule. The landlord is free to appear at the

show cause hearing and argue that they did in fact accept the payment, or show

that the tenant failed to tender the required installment payment. The law does not

deprive the Landlords of the minimum procedural protections afforded under

Rogowski. This procedure satisfies due process requirements.

D. Privileges and Immunities

Finally, the Landlords argue that the ordinances violate Washington’s

privileges and immunities clause by favoring the rights of Seattle tenants over

those of Seattle landlords. We reject this argument because the ordinances do

not implicate fundamental rights under the privileges and immunities clause.

Article I, section 12 of the Washington Constitution provides that “[n]o law

shall be passed granting to any citizen, class of citizens, or corporation other than

municipal, privileges or immunities which upon the same terms shall not equally

belong to all citizens, or corporations.”

Washington courts employ a two-part test to decide if legislation violates

article I, section 12, asking first whether the challenged law grants a “privilege” or

“immunity” for purposes of the state constitution, and, if it does, then asking if there

is a reasonable ground for granting the privilege or immunity. Schroeder v.

Weighall, 179 Wn.2d 566, 572-73, 316 P.3d 482 (2014) (citations omitted).

“Not every benefit constitutes a ‘privilege’ or ‘immunity’ for purposes of the

independent article I, section 12 analysis. Rather, the benefits triggering that

analysis are only those implicating “ ‘fundamental rights . . . of . . . state . . .

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citizenship.’ ” Id. at 573 (quoting State v. Vance, 29 Wash. 435, 458, 70 P. 34

(1902)). In Schroeder, the Supreme Court recognized that “where a cause of

action derives from the common law, the ability to pursue it is a privilege of state

citizenship triggering article I, section 12's reasonable ground analysis. A law

limiting the pursuit of common law claims against certain defendants therefore

grants those defendants an article I, section 12 ‘immunity.’ ” Id. However, rights

left to the discretion of the legislature are not generally considered fundamental.

Martinez-Cuevas v. DeRuyter Bros. Dairy, Inc., 196 Wn.2d 506, 519, 475 P.3d 164

(2020).

The Landlords reference a few rights they claim to be fundamental in the

privileges and immunities context: the right to pursue a claim in court, the right to

conduct rental business, the right to hold and enjoy one’s own property, and the

right to collect debts. But the process for eviction, and the respective rights of

tenants and landlords, have been left to the discretion of the legislature. Under

these circumstances, we doubt that the ordinances implicate privileges and

immunities concerns.

“An unlawful detainer action is a statutorily created proceeding that provides

an expedited method of resolving the right to possession of property.”

Christensen, 162 Wn.2d at 370-71. The definition of unlawful detainer, the

procedural requirements to initiate such an action, and even the petitioner’s burden

at trial are specifically set out in chapter 59.12 RCW. The RLTA goes even further

and lays out the respective duties and rights of tenants and landlords, and their

available remedies. The ordinances do not prevent the Landlords from pursuing

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an unlawful detainer or common law action against a defaulting tenant, nor do they

prevent the Landlords from acquiring or holding property; they regulate the use of

property which the Landlords voluntarily chose to subject to residential leases

under the above acts. What the Landlords actually seek is the ability to quickly

evict a tenant following the tenant’s default, notwithstanding seasonal or

pandemic-related considerations. They cite no authority for the proposition that

they have a fundamental right under article I, section 12.

But even if the ordinances did implicate a fundamental right, the City has

adequately shown there is a reasonable ground for granting the privilege or

immunity. Under the reasonable grounds test, a court will not hypothesize facts to

justify a legislative distinction. Schroeder, 179 Wn.2d at 574 (citing City of Seattle

v. Rogers, 6 Wn.2d 31, 37-38, 106 P.2d 598 (1940)). Rather, the court will

scrutinize the legislative distinction to determine whether it in fact serves the

legislature's stated goal. Id. The ordinances must be justified in fact and theory.

Martinez-Cuevas, 196 Wn.2d at 523.

We conclude that the ordinances serve their stated goals and thus meet the

reasonable ground standard. The purpose of the winter ban is to “reduc[e] the

number of individuals and families entering into homelessness during the

wintertime.” Ordinance 126041 at 2. The “Losing Home” report indicates that a

substantial proportion of evicted tenants become homeless. LOSING HOME at 3.

The City Council noted that in 2018, the King County Medical Examiner’s Office

investigated the deaths of 194 individuals presumed to be homeless. It also noted

that people experiencing homelessness have a much higher risk than the general

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population of developing exposure-related conditions. By prohibiting evictions

during winter months, the City Council seeks to lower the number of people who

die of or sustain physical injuries associated with being exposed to winter weather.

The winter eviction ban reasonably meets the ordinance’s goal of preventing

homelessness at a time when living unsheltered would cause the most physical

harm.

The purpose of the six-month eviction ban extension is to reduce the

economic impacts and risk of homelessness among tenants in the immediate

aftermath of the COVID-19 pandemic. Ordinance 126075 at 1-2. The repayment

plan requirement shares the same goals. Ordinance 126081 at 1-2. These goals

are also met by providing a defense to eviction and reducing the burden of rental

payments on Seattle tenants.

The Landlords argue that the ordinances lack reasonable grounds because

they are over-inclusive and are not limited to low-income renters at most risk of

homelessness. But the reasonable grounds test includes no such narrow-tailoring

requirement. They merely need to further the legislative body’s stated goals. Each

ordinance meets this requirement and thus survives the reasonable grounds test.

CONCLUSION

We hold that Ordinance 126081’s prohibition on the accrual of interest on

unpaid rent is preempted under state law and is therefore invalid. We further hold

that the defense to eviction contained in SMC 22.205.090 (Ordinance 126075)

deprives the landlords of their property interest without due process by not

affording them the opportunity to test the veracity of a tenant’s self-certification of

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financial hardship. We invalidate it on that ground only. We otherwise uphold the

ordinances and affirm the judgment for the City.

WE CONCUR:

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