Rental Housing Association Of Wa., V. City Of Federal Way

• Court: Court of Appeals of Washington
• Decided: November 14, 2022
• Docket: 83327-8
• Status: Published

Opinion

NOTICE: SLIP OPINION (not the court’s final written decision)

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THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

RENTAL HOUSING ASSOCIATION OF No. 83327-8-I WASHINGTON, DIVISION ONE Appellants, PUBLISHED OPINION v.

CITY OF FEDERAL WAY, a Washington municipal corporation,

Respondents.

ANDRUS, C.J. — Rental Housing Association of Washington (RHA)

challenges a 2019 citizens’ initiative requiring landlords to have good cause to

terminate a tenancy or to refuse a lease renewal and prohibiting discrimination

against certain community members, such as health care providers and first

responders, within the City of Federal Way (City). RHA argues the initiative is

invalid because the city attorney refused to determine the initiative’s

appropriateness before it was placed on the ballot, as required by city ordinance.

RHA also contends the initiative violates the single subject rule and impermissibly

covers administrative, rather than legislative, topics beyond the scope of the City’s

initiative power. We reject these arguments and affirm the summary judgment

dismissal of RHA’s claims.

Citations and pin cites are based on the Westlaw online version of the cited material. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83327-8-I/2

FACTS

In June 2019, the Washington Community Action Network (Washington

CAN) submitted a petition to the City of Federal Way asking the city council to pass

an ordinance requiring landlords to show good cause before evicting a tenant,

along with other tenant protections. Pursuant to Federal Way Revised Code

(FWRC) 1.30.040, the city clerk forwarded it to the city attorney for a determination

as to the appropriateness of the initiative topic.

On July 3, 2019, the city attorney declined to issue the determination

required under FWRC 1.30.040 because, in his opinion, to do so would violate

state law in two respects. First, the city attorney concluded that “Washington

courts have long held that reviewing the appropriateness of a proposed initiative

is exclusively a judicial function and not a role for other governmental actors.”

Second, he concluded a determination on the appropriateness of the initiative topic

would violate RCW 42.17A.555’s prohibition on the use of public facilities for the

promotion or opposition of ballot propositions.

On July 16, 2019, the city council passed resolution 19-766, placing the

initiative on the November ballot. 1 The initiative passed in the November 5, 2019,

general election and is now codified as Federal Way Revised Code (FWRC)

chapter 20.05.

Part one of the ordinance contains several findings related to the

homelessness crisis in Federal Way and the impact of evictions on this crisis. Part

1 That same month, RHA filed a complaint for declaratory and injunctive relief, writ of mandamus,

writ of prohibition, and writ of certiorari, seeking to prevent the City from placing the initiative on the ballot. The trial court denied RHA’s request for pre-election injunctive relief, concluding that RHA had not demonstrated irreparable harm or a clear right to relief. RHA did not appeal that ruling. -2- For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83327-8-I/3

two, entitled “Requiring Landlords to Comply with Tenant Protection of Laws and

Show Good Cause Before Evicting a Tenant,” creates a defense to eviction where

the landlord lacks good cause and limits “good cause” to a set of specific listed

situations. 2 Part three, entitled “Prohibiting Retaliatory Evictions,” prohibits

evictions “against a tenant for asserting rights or defenses afforded by this chapter

or under another tenant protection law.” Part four prohibits discriminatory evictions

based upon a tenant’s status as a member of the military, first responder, senior,

family member, health care provider, or educator. Part five extends the good

cause requirement and anti-discrimination protections to lease renewals. Part six

imposes penalties for violating the ordinance and sets up procedures to enforce

its protections. Part seven contains definitions of key terms used in the ordinance.

Part eight contains miscellaneous provisions, including notice requirements and a

provision prohibiting waiver of the ordinance’s protections.

RHA brought this action seeking a judicial determination that the initiative is

invalid on various constitutional grounds. Washington CAN intervened with the

consent of the parties as the initiative’s sponsor. RHA then moved for partial

summary judgment on its claim that the City violated FWRC chapter 1.30 by failing

to issue a determination of validity before placing the initiative on the ballot, its

claim that the initiative violates the single subject rule set out in RCW 35A.12.130,

and its claim that three sections of the initiative exceed the initiative powers by

adopting administrative, rather than legislative, provisions. The City cross-moved

2 Good cause includes the failure to pay rent, a material breach of non-monetary provisions of the

rental agreement, waste, unlawful entry without permission of the owner, the landlord’s intent to remove the unit from the rental market, the refusal by a tenant to execute a new rental agreement after expiration of the prior agreement, and remaining in possession after receiving a 30-day notice to quit for chronic, unexcused and unjustified failure to pay rent. -3- For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83327-8-I/4

for partial summary judgment, seeking the dismissal of the single subject rule

claim, the claim that the initiative conflicts with state law in violation of article XI of

the Washington Constitution, and the claim that the initiative violates RHA’s right

to substantive due process in violation of article I, § 3.

The trial court denied RHA’s motion and granted the City’s motion. The

court concluded the City’s failure to adhere to its initiative procedures did not

invalidate the initiative because RCW 35A.11.100 “establishes field preemption

with respect to the initiative process.” The court further held that the initiative did

not violate the single subject rule and fell within the legislative powers of the City

and did not constitute administrative matters outside the scope of local initiative

powers. The court also granted summary judgment for the City on RHA’s

substantive due process claim but reserved ruling on its void for vagueness claim.

RHA voluntarily dismissed all remaining claims without prejudice and appealed. 3

ANALYSIS

Standard of Review

We review a summary judgment order on the validity of an initiative de novo.

City of Sequim v. Malkasian, 157 Wn.2d 251, 261, 138 P.3d 943 (2006). We

engage in the same inquiry as the trial court. Id.

Conflict Preemption

RHA first contends the initiative is invalid because the City failed to follow

its own procedures before placing it on the ballot. Because Federal Way’s

3 Left unresolved were RHA’s void for vagueness claim and the claims that the initiative constitutes

an unlawful taking and/or damaging of property under article I, § 16 of the Washington Constitution, and violates the impairment of contracts clause of article I, § 23 of the Washington Constitution. -4- For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83327-8-I/5

ordinance requiring the city attorney to determine an initiative’s validity

irreconcilably conflicts with state law reserving that power to the courts, state law

preempts the city ordinance and the city attorney’s action does not invalidate the

initiative.

Federal Way is a noncharter code city governed by the Optional Municipal

Code, RCW Title 35A. RCW 35A.11.080 permits such cities to “provide for the

exercise in their city of the powers of initiative and referendum.” Pursuant to this

authority, Federal Way has adopted ordinances for submitting initiatives and

referendums for placement on the ballot. FWRC 1.30.010.

FWRC 1.30.030 provides:

Ordinances may be initiated by petitions of electors of the city. If any individual, or group of individuals, desires to petition the council to enact a proposed measure, that individual or group shall file in the office of the city clerk five printed or typewritten copies of the measure proposed, accompanied by the name, post office and residence address of the proposer.

FWRC 1.30.040 provides:

Upon filing of the proposed initiative measure, the city clerk shall assign a number to each such initiative petition and transmit one copy of the measure proposed, bearing such number, to the city council, the mayor, and to the city attorney. Within five days after the receipt of the initiative measure and this request, the city attorney shall issue a determination as to the appropriateness of the topic of the initiative measure as defined by this chapter. In the event the initiative measure is determined valid pursuant to this chapter, and within 14 days after the receipt of an initiative measure, the city attorney shall formulate therefor and transmit to the city clerk, the city council, the mayor, and the individual or group proposing such a measure, an initiative statement in the form of a question containing the essential features of the measure.

(Emphasis added.) Under FWRC 1.30.160:

If the petition accompanying the proposed ordinance is signed by the registered voters in the city as required by state law and, if it contains -5- For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83327-8-I/6

a request that, unless passed by the city council, the ordinance be submitted to a vote of the people, the council shall either:

(1) Pass the proposed ordinance without alteration within 45 days after the city clerk’s certificate that the number of signatures on the petition is sufficient; or

(2) Upon receipt of the certificate of sufficiency with the attached petition, the city clerk will notify the city council for submission of the proposed ordinance without alteration to a vote of the people at the next general election.

The city attorney declined to follow FWRC 1.30.040 before the city council

voted to place the initiative on the ballot because he believed the ordinance

conflicted with Washington law. He was correct.

State law preempts a local ordinance in one of two ways: when state law

occupies the field being regulated, leaving no room for concurrent jurisdiction, or

when a conflict exists such that the state law and the ordinance cannot be

harmonized. Lawson v. City of Pasco, 168 Wn.2d 675, 679, 230 P.3d 1038 (2010).

The party arguing the invalidity of an ordinance (in this case, the City) bears the

burden of establishing preemption. Cannabis Action Coalition v. City of Kent, 183

Wn.2d 219, 226, 351 P.3d 151 (2015).

Under our conflict preemption precedents, a state law preempts a local

ordinance “when an ordinance permits what state law forbids or forbids what state

law permits.” Lawson, 168 Wn.2d at 682. State law preempts an ordinance if the

ordinance directly and irreconcilably conflicts with the state law. Id.

There is a direct and irreconcilable conflict between Federal Way’s

requirement that the city attorney determine the validity of any initiative before

forwarding it to the clerk to put on the ballot and our jurisprudence on the authority

of local officials to engage in this type of initiative gatekeeping. In Philadelphia II -6- For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83327-8-I/7

v. Gregoire, 128 Wn.2d 707, 714, 911 P.2d 389 (1996), our Supreme Court

examined whether the attorney general could refuse to prepare a ballot title and

summary for a proposed initiative in violation of former RCW 29.79.040’s

command to do so. Id. at 712-13. Attorney General Gregoire argued that she did

not need to follow the statutory process when she concluded the initiative in

question exceeded the scope of initiative power. Id. at 714. The Supreme Court

disagreed, reasoning that only the courts may “review the substance of a proposed

initiative to determine whether it exceeds the scope of initiative power described in

article II, section 1, of the Washington State Constitution.” Id. Accordingly, “[I]f the

Attorney General believes an initiative exceeds the scope of the initiative power,

she should prepare a ballot title and summary in accordance with her statutory

duty and then seek an injunction to prevent the measure from being placed on the

ballot.” Id. at 715-16.

In Eyman v. McGehee, 173 Wn. App. 684, 294 P.3d 847 (2013), this court

followed Philadelphia II to hold that local officials have no authority to decide which

initiatives are legally valid and which are not. In that case, a Redmond city clerk

decided not to transmit to the county auditor an initiative petition invalidating the

city’s automated traffic safety camera system. Id. at 687-88. The clerk argued

that she had no duty to do so because this court had held in American Traffic

Solutions v. City of Bellingham, 163 Wn. App 427, 260 P.3d 245 (2011), that an

initiative regarding automated traffic cameras was beyond the initiative powers of

Title 35A RCW. The clerk contended she had no authority to file the initiative

based on that legal ruling. Id. at 692. This court disagreed and held that “the

determination of the validity of an initiative is ‘exclusively a judicial function’ ” Id. -7- For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83327-8-I/8

at 692 (quoting Philadelphia II, 128 Wn.2d at 714), and “not a role for other

governmental actors.” Id. at 690.

Federal Way’s city attorney correctly interpreted this case law to conclude

that he had no authority to render an opinion on the validity of the initiative or to

act as a gatekeeper to decide which initiatives could move to the next stage in the

process and which could not.

RHA attempts to distinguish Philadelphia II and McGehee, arguing that

while a public official may not refuse to place an initiative on the ballot, neither case

forecloses the city attorney from expressing a legal opinion on the validity of an

initiative, as that act would not impact whether the initiative is actually put to a vote.

This argument, however, is inconsistent with the procedure outlined in the city’s

code. The plain language of FWRC 1.30.040 states that the city attorney may only

forward an initiative to the city council if he determines it to be “valid.” The

ordinance’s use of the word “determination” further supports this conclusion. A

“determination” is “the act of deciding something officially, . . . a final decision by a

court or administrative agency.” BLACK’S LAW DICTIONARY 564 (11th ed. 2019).

The ordinance required the city attorney to make a binding and final decision on

the validity of the proposed initiative. Such authority is beyond the power of the

city attorney under McGehee and Philadelphia II, rendering the ordinance in

conflict with state law and unenforceable.

Because the Federal Way initiative procedure irreconcilably conflicts with

state law, the city attorney correctly refused to follow it. The initiative cannot be

invalidated based on noncompliance with FWRC 1.30.040.

-8- For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83327-8-I/9

Single Subject Rule

RHA next contends the initiative violates the single subject rule. Because

the various parts in the initiative are all germane to the initiative’s general title and

to each other, we reject this argument.

“No ordinance shall contain more than one subject and that must be clearly

expressed in its title.” RCW 35A.12.130. This statutory rule is an extension of

article II, section 19 of our state constitution, applying to statewide initiatives, and

we look to cases interpreting that constitutional provision in evaluating a single

subject challenge to a municipal ordinance. Filo Foods, LLC v. City of SeaTac,

183 Wn.2d 770, 781-82, 357 P.3d 1040 (2015).

Initiatives are presumed to be constitutional and the party challenging the

validity of an initiative has the burden of demonstrating its unconstitutionality. Am.

Hotel & Lodging Assoc. v. City of Seattle, 6 Wn. App. 2d 928, 937, 432 P.3d 434

(2018). Only where there exists a rational relationship between the provisions of

the initiative and the initiative's subject “can we be certain voters were not required

to vote for an unrelated subject of which the voters disapproved in order to pass a

law pertaining to a subject of which the voters were committed.” City of Burien v.

Kiga, 144 Wn.2d 819, 826, 31 P.3d 659 (2001).

In determining whether an ordinance violates the single subject rule,

Washington courts first look to the provision’s title for guidance. Filo Foods, 183

Wn.2d at 782. A ballot title may be general or restrictive. A general title is broad,

comprehensive, and generic, as opposed to a restrictive title, which is specific and

narrow. Amalg. Transit Union Local 587 v. State, 142 Wn.2d 183, 207-08, 11 P.3d

762 (2000). If the ballot title is restrictive, the provisions of the initiative must all -9- For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83327-8-I/10

fall “fairly within” the restrictive language. State ex rel. Wash. Toll Bridge Auth. v.

Yelle, 32 Wn.2d 13, 26, 200 P.2d 467 (1948). Where a ballot title is general, only

rational unity among the matters covered in the initiative need exist. Kiga, 144

Wn.2d at 825-26. Rational unity exists when the matters within the body of the

initiative are germane to the general title and to one another. Id. at 826.

The parties agree the initiative’s ballot title in this case is general. We

therefore apply the “rational unity” test to determine whether the initiative’s

provisions are germane to the ballot title and germane to each other. See Kiga,

144 Wn.2d at 826; Amalgamated, 142 Wn.2d at 217. While rational unity must

exist among all matters included within a measure and with the general topic

expressed in the title, an initiative can embrace several incidental subjects or

subdivisions “so long as they are related.” Kiga, 144 Wn.2d at 826.

The ballot title to this initiative stated:

City of Federal Way Citizen Initiative No. 19-001 concerns enacting rental requirements for landlords and rental rights for tenants.

This citizen initiative would enact an ordinance to amend the Federal Way Revised Code to require landlords to comply with existing rental laws; to establish obligations and duties for landlords, and defenses and rights for tenants, regarding: requirements that landlords must meet before evicting tenants, retaliatory actions, rental agreements, and rental agreement renewals; to create classes of tenants afforded additional rental rights; and to adopt penalties for landlords and procedures to enforce the measure.

Even though the second paragraph of this title lists out the initiative’s provisions,

the general statement in the first paragraph, preceding the list, is “sufficiently broad

to place voters on notice of its contents.” Filo Foods, 183 Wn.2d at 784. All of the

provisions are rationally related to this general topic expressed in the ballot title as

they all impose rental requirements for landlords and grant rental rights to tenants. - 10 - For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83327-8-I/11

RHA contends that part four of the initiative, establishing special treatment

for certain members of the Federal Way community, described by RHA as “societal

heroes,” is too narrow to be rationally related to the broader good cause provisions

applicable to all tenants. RHA relies on Kiga and American Hotel to support this

argument. We conclude that the initiative here is less analogous to Kiga and

American Hotel and more analogous to the initiative upheld by the Supreme Court

in Filo Foods.

In Kiga, the Supreme Court evaluated I-722, an initiative that provided tax

relief in the form of nullification of various tax increases, authorized a onetime tax

refund, changed the method of assessing property taxes, and imposed a two

percent cap on property tax increases. 144 Wn.2d at 823. The court invalidated

the initiative as a violation of the single subject rule because the subjects within it

were not germane to one another. Id. at 827. It based this ruling on the fact that

the nullification of various tax increases was unnecessary and unrelated to the

permanent and systematic changes in property tax assessments. Id. And the

refund provisions encompassed more than property taxes and implicated utility

charges, hospital charges, city moorage rates, park district admissions, and many

other monetary charges. Id. Finally, changing the method by which local

governments determined property taxes did not necessitate a refund of all of the

tax increases that voters had not approved. Id. The court deemed the combination

of these various tax provisions to be the “kind of logrolling of unrelated measures

[that] violates the fundamental principle embedded in article II, section 19.” Id. at

827-28.

- 11 - For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83327-8-I/12

In American Hotel, this court held that an initiative regulating hotels and

hotel employees violated the single subject rule. 6 Wn. App. 2d at 941. The

initiative at issue in that case had four distinct purposes contained in the

challenged initiative:

Part 1 is intended to protect certain hotel employees from violent assault and sexual harassment. SMC 14.25.020. Part 2 is intended to protect hotel employees from on-the-job injuries arising out of heavy lifting, repetitive tasks, and chemical exposure. SMC 14.25.070. Part 3 is intended to improve hotel workers’ access to affordable medical care. SMC 14.25.110. And part 4 is intended to provide job security to low income hotel workers when there is a change in hotel ownership. SMC 14.25.130.

6 Wn. App. 2d at 941-42. We held that the four distinct purposes were unrelated

to each other. Id. at 944. The court said:

[R]equiring hotels to maintain a list of people who have been accused of sexually harassing hotel employees is unrelated to limiting the number of square feet a hotel worker can be required to clean in an eight-hour period without being paid overtime, or requiring a hotel to create a seniority list from which a new owner must hire employees for a period of time after a change in ownership. Part 1 of the initiative does not have, as its purpose, the same purpose as part 2, 3, or 4. .... Even assuming Part 1's guest registry requirements and Part 2's hazardous chemicals restrictions are related to the same goal of reducing on-the-job injuries, it is difficult to see how the guest registry provision is germane to providing hotel workers with employment security for a set period of time after a hotel changes ownership.

Id. at 943-44.

In contrast, in Filo Foods, our Supreme Court rejected a single subject

challenge to an initiative establishing a variety of labor standards protecting

employees in the hospitality and transportation industries in the city of SeaTac.

183 Wn.2d at 784-85. These protections included, among other labor standards,

a $15 hourly minimum wage, paid sick time, and a 90-day worker retention policy - 12 - For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83327-8-I/13

imposed on successor employers. Id. at 783. The court concluded that the

provisions of that initiative were germane to one another because all of the worker

protections advanced the same purpose: the establishment of minimum employee

benefits, including job security. Id. at 785.

Unlike American Hotel and more analogous to Filo Foods, Federal Way’s

initiative has a single goal—reducing homelessness resulting from evictions. The

initiative’s identified purpose is “[t]o protect families, promote community, stabilize

the rental market, and reduce homelessness.” Parts two, three and four create

defenses tenants can raise to avoid eviction, each of which would advance this

identified goal.

Moreover, the various eviction defenses are rationally related to each other

in a way not present in American Hotel because the defenses may be factually

intertwined. For example, under part two, a tenant may raise as a defense to

eviction the lack of good cause to evict. The landlord may argue, in response, that

the eviction is permissible because the tenant breached a non-monetary term of

the rental agreement, one of the permissible bases for eviction. The tenant may

counter that argument by alleging that the true motivation for the eviction is not a

purported breach of contract, but instead the tenant’s status as a senior citizen, a

defense to eviction under part four, or the landlord’s retaliation against the tenant

for having recently exercised their rights under the law, a defense to eviction under

part three. Because defenses set out in parts two, three and four can conceivably

be factually intertwined and all raised in the same unlawful detainer proceeding,

they are much more germane to each other than the disparate provisions of the

City of Seattle initiative in American Hotel. For these reasons, the initiative here is - 13 - For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83327-8-I/14

more analogous to the worker protection initiative affirmed in Filo Foods than the

tax provisions invalidated in Kiga or the initiative invalidated in American Hotel.

The initiative does not violate the single subject rule.

Legislative Nature of Initiative

RHA finally argues that the initiative exceeds the scope of the City’s initiative

power because parts six, seven, and eight address administrative issues, rather

than legislative ones. We reject this argument as well.

The initiative power of the people of Washington is inherently limited to

matters that are legislative in nature. Ruano v. Spellman, 81 Wn.2d 820, 823, 505

P.2d 447 (1973). “[A]dministrative matters, particularly local administrative

matters, are not subject to initiative or referendum.” City of Port Angeles v. Our

Water–Our Choice!, 170 Wn.2d 1, 8, 239 P.3d 589 (2010). “Generally speaking,

a local government action is administrative if it furthers (or hinders) a plan the local

government or some power superior to it has previously adopted.” Id. at 10.

Washington courts look to several factors to distinguish between

administrative and legislative measures, including whether an initiative is

permanent and general in character or temporary and specific, and whether the

initiative prescribes a new policy or merely pursues or implements a plan already

adopted. Glob. Neigh. v. Respect Wash., 7 Wn. App. 2d 354, 394 434 P.3d 1024,

rev. denied, 193 Wn.2d 1019, 448 P.3d 69 (2019).

RHA challenges parts six through eight on the basis that they do not declare

new policy, but merely carry out the policy set out in the initiative’s preceding

provisions. RHA argues that these “administrative details” should have been left

for the city council and their inclusion renders the entire initiative invalid. This - 14 - For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83327-8-I/15

argument misapplies the administrative nature test. “In distinguishing between

administrative and legislative proposals, we look at the fundamental and overriding

purpose of the initiative, rather than mere incidentals to the overriding purpose.”

Glob. Neigh., 7 Wn. App. 2d at 395. RHA’s contention that the initiative contains

incidental administrative details is immaterial to the question of whether the

initiative overall is legislative or administrative in nature.

RHA does not dispute that the overriding purpose of the initiative is

legislative in nature and concedes that no Washington appellate court has held

that an initiative which establishes new legislative policy and includes provisions

for enforcing that policy, violates the ban on administrative initiatives. We reject

RHA’s invitation to tread new ground. Parts six, seven and eight of the landlord-

tenant ordinance do not exceed the scope of the City’s initiative power.

Affirmed. 4

WE CONCUR:

4 RHA also assigns error to the denial of its motion to strike the declaration of the City’s expert,

Edmund Witter. The City submitted Witter’s declaration to defeat RHA’s substantive due process claim. Because RHA does not challenge the dismissal of its substantive due process claim, the admissibility of the Witter declaration would have no future impact on this case and is therefore moot. See Keene Valley Ventures, Inc. v. City of Richland, 174 Wn. App. 219, 227, 298 P.3d 121 (2013) (argument about a ruling that will have no future impact in case is essentially a moot question). - 15 -