Seattle King County Coalition On Homelessness V. City Of Burien

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SEATTLE/KING COUNTY COALITION ON HOMELESSNESS, a non-profit No. 88311-9-I organization; and CARLO PAZ, DIVISION ONE Appellants, UNPUBLISHED OPINION and

ELIZABETH HALE; and ALEX HALE,

Plaintiffs,

v.

CITY OF BURIEN, a municipal corporation,

Respondent.

HAZELRIGG, C.J. — Seattle/King County Coalition on Homelessness and

three named plaintiffs (collectively, the Coalition) challenged the constitutionality

of a section of the Burien Municipal Code that prohibited individuals from camping

or storing personal items on public property. After several amendments to the city

code during the pendency of the case, both parties moved for summary judgment,

and the trial court ultimately granted the City of Burien’s motion and dismissed the

case. On appeal, the Coalition challenges the dismissal of only one of its

constitutional claims and the trial court’s ruling on whether it had organizational

standing to proceed. The trial court did not err as to either determination, and we

affirm. No. 88311-9-I/2

FACTS

In October 2023, the Burien City Council passed Ordinance 827 that

amended the “[u]nlawful [p]ublic [c]amping” provision of the Burien Municipal Code

(BMC), section 9.85.150. 1 BMC 9.85.150, as it existed prior to the October 2023

amendment, defined the misdemeanor offense of unlawful public camping as use

of “nonresidential public property . . . as a temporary or permanent dwelling,

lodging, residence, or living accommodation,” and established certain limited

exceptions. Ordinance 827 modified BMC 9.85.150 as follows:

A person is guilty of unlawful public camping if that person uses nonresidential public property, as defined in this section, as a temporary or permanent dwelling, lodging, residence, or living accommodation, at any time between [10]7:00 p.m. and 6:00 a.m., except at places set aside, posted, or not explicitly prohibited [and posted] for such purposes by the Burien City Manager or designee, or by permit issued by the Burien City Manager or designee. Camping, dwelling, lodging, residing, or living on nonresidential public property shall not be permitted in Burien except during the times stated immediately above.

(Alterations and emphasis in original.) Effectively, this amendment limited the

places where camping was permitted and reduced the hours during which it was

allowed.

In January 2024, the Coalition filed a complaint against the City of Burien

that challenged Ordinance 827. The three named plaintiffs were Elizabeth Hale,

Alex Hale, and Carlo Paz, all of whom were identified in the complaint as

1 Throughout the record the parties and the trial court refer to the successive ordinances

that continued to amend the BMC as the primary focus of this controversy. However, we note that each ordinance served only to modify BMC 9.85.150. Despite the language used by the parties in the trial court and their briefing on appeal, the operative law the Coalition challenged in the trial court is a provision of the code, and not the ordinance itself. Accordingly, we will distinguish between the code and the ordinances and modify quoted language as appropriate.

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“unsheltered resident[s] of Burien.”2 The Coalition presented a variety of

constitutional challenges to the amendments implemented by Ordinance 827 and

sought a declaratory judgment pursuant to the Uniform Declaratory Judgments Act

(UDJA). 3

The City’s answer followed in February and consisted primarily of general

denials but included several affirmative defenses as well. The City contended that

the Coalition had “failed to state a claim upon which relief [could] be granted,” the

ordinance and enforcement of the BMC each constituted “a good faith act”

consistent with the City’s “police powers [under the state constitution] to protect

the health, safety, and welfare of the community,” which it specifically noted

included both “the unhoused and housed,” the Coalition lacked “standing to allege

some or all of these claims,” and the trial court could not provide meaningful relief.

In March 2024, the Burien City Council adopted Ordinance 832 which

further amended the BMC to address “misunderstanding or misinterpretations of

BMC 9.85.150” as amended by Ordinance 827, “clarify and enhance its efforts to

protect Burien residents, businesses, and property and to assist and provide clear

guidance for the unhoused.” Most relevant here, the amendments contained in

Ordinance 832 included a map of areas where camping was prohibited and

authorization for the City Manager to prohibit camping in other specific locations.

In response to the amendments enacted by Ordinance 832, the Coalition was

2 The parties alternatively refer to these plaintiffs as “unhoused,” “homeless,” or

“unsheltered.” Where this fact is relevant and necessary to our analysis, we will use the person- centered phrasing “persons/individuals/community members experiencing homelessness,” except when directly quoting the parties. 3 Ch. 7.24 RCW.

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permitted to amend its complaint to address the new expanded authority of the city

manager and the map of prohibited camping areas. The amended complaint still

sought declaratory relief and offered the following claims, solely under the

Washington State Constitution, regarding the constitutionality of the unlawful

public camping provision of the BMC:

1. Enforcement of BMC 9.85.150, as amended, would “amount[] to

banishment” and, therefore, constituted cruel punishment in violation of

article I, section 14;

2. As amended, BMC 9.85.150 unlawfully delegated legislative authority to

the city manager;

3. BMC 9.85.150 was facially vague such that it violated the due process

protections provided in article I, section 3;

4. The forced removal of individuals that would necessarily result from

enforcement of BMC 9.85.150, in addition to the seizure of personal

property during sweeps, constituted unlawful seizure in violation of

article I, section 7;

5. Exclusion of those unable to access shelter based on intoxication or

drug use from using the defense of lack of shelter space availability

constituted discrimination against people with disabilities in violation of

article I, section 12; and

6. BMC 9.85.150, as amended, violated article I, section 12 because it

“den[ied] homeless residents of Burien the right to reside in Burien, in

violation of their right to intrastate travel.”

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(Boldface omitted.) The City filed further answers and affirmative defenses to the

amended complaint the following June.

On January 3, 2025, the Coalition moved for summary judgment and,

therein, expanded its argument regarding the claimed right to intrastate travel. It

contended the “sheer breadth of [BMC 9.85.150, as amended by Ordinance 832,]

makes it impossible for an unhoused individual, who must carry their belongings

with them (or risk having them stolen or disposed of), to exist or travel through the

City without fear of arrest.” Burien moved for summary judgment dismissal a few

days later, on January 6, and rebutted the Coalition’s argument regarding

intrastate travel with its assertion that “Burien has broad authority to regulate public

lands and protect health by implementing narrowly tailored restrictions on when

and where people can camp on public land.” 4

After the parties responded to the summary judgment motions, the City,

unsolicited, filed supplemental briefing on mootness because the Burien City

Council had further amended BMC 9.85.150 by its enactment of Ordinance 864 on

January 28. The City asserted in its supplemental brief that Ordinance 864

“represent[ed] a significant policy change with respect to public camping” following

the United States Supreme Court’s decision in City of Grants Pass v. Johnson,

603 U.S. 520 (2024). It contended that some of the Coalition’s challenges,

specifically those regarding vagueness and the delegation of legislative authority

4 On January 8, King County moved for authorization to file an amicus brief in support of

the Coalition’s motion on the grounds that the King County Sheriff’s Office (KCSO), “operates the Burien Police Department and provides police services to Burien under an Interlocal Agreement” and KCSO “had substantial concerns about [the] constitutionality” of BMC 9.85.150 based on the enactment of Ordinance 832. The City objected, but the trial court granted King County’s motion on January 21 and its amicus brief, which had been submitted with the motion, was accepted.

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to the City Manager, were now moot because the relevant language had been

completely removed from BMC 9.85.150 by Ordinance 864. The City conceded

that the Coalition’s causes based on “‘cruel punishment inflicted,’” “seizure and

removal of property,” and “the intrastate right to travel” were not moot and

remained. BMC 9.85.150, as amended by Ordinance 864, reads in pertinent part

as follows:

(1) Findings and Legislative Purpose. (a) City of Burien public property is harmed, and public access to public property is diminished or impeded by camping on public property, public street rights-of-way, or public facilities. (b) Camping and unlawful storage on public property disrupts pedestrian and vehicular traffic, businesses, and governmental functions, adding to municipal responsibilities and expenses while detracting from other governmental priorities. (c) Based on law enforcement estimates, significant increases in crime, calls-for-service, and adverse impacts occur in or around encampments. (d) Allowing camping can result in fewer people who need assistance seeking and obtaining that assistance. (e) Burien adopts the ordinances recitals as findings of fact.

(2) Camping and Storage Prohibition. It shall be unlawful for any person to camp or store items on public property in Burien at any time.

(3) Limited Law Enforcement Discretion. (a) There is no requirement that beds, housing, shelter, or treatment be available, offered, or sought before enforcement of this ordinance; however, law enforcement may offer the same to a person camping on public property, and if the person accepts the offer or agrees to “camp” off of public property, that person may not be arrested under BMC 9.85.150 unless they continue to or insist on unlawfully storing items on public property. (b) This provision does not require Burien, its employees, or contractors to provide said services and does not create a right to services for anyone.

(Formatting omitted.)

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At a previously scheduled hearing on the day after the City filed its

supplemental brief, the trial court inquired as to the Coalition’s position in light of

the passage of Ordinance 864 and its amendment of the BMC. The Coalition

indicated it intended to proceed and could provide additional briefing on mootness.

The trial court authorized additional briefing from the Coalition and continued the

hearing on summary judgment to a later date. The Coalition’s supplemental

briefing on mootness followed on February 7, and while it conceded that its claims

regarding “unlawful delegation of legislative authority and unconstitutional

vagueness” were now moot and voluntarily dismissed them, the Coalition noted its

disagreement with the City’s “characterization of [its] remaining claims as facial

challenges” to the BMC and indicated that it would address that issue in its

supplemental briefing on summary judgment.

On February 11, the Coalition filed that supplemental brief in support of

summary judgment and clarified its claims in light of the January amendments to

the BMC. It conceded “that there are hypothetical applications of the ordinance

that would be constitutional” but emphasized that its “as applied challenges,

seeking declaratory and injunctive relief” based on the state constitution were “still

ripe for review even after the recent amendments.” That same day, the City also

provided supplemental briefing regarding the January amendments from

Ordinance 864. The trial court heard the summary judgment motions on February

14 and asked the Coalition to clarify its organizational standing in relation to the

individual plaintiffs named in its amended complaint.

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In April, the trial court ordered “additional briefing from the parties with

respect to the issue of whether any of the Plaintiffs ha[d] standing to bring an as-

applied challenge against Ordinance 864 under article [I], section 14” of the

Washington Constitution, cited this court’s unpublished opinion in Kitcheon v. City

of Seattle, 5 and further specified that the parties did not “need to address ripeness

or standing related to any other claim.” Both parties submitted their supplemental

briefs on standing on April 11 as ordered by the court; the Coalition argued that

both the individual plaintiffs and organization had standing to pursue an as-applied

claim, and the City disagreed and argued Kitcheon supported its position.

On May 15, 2025, the trial court entered its 86-page order on summary

judgement that set out its reasoning, analyzed the standing of the Coalition and

individual plaintiffs, and concluded that only Paz had standing to present an as-

applied challenge. Ultimately, the trial court also denied the Coalition’s motion for

summary judgment on all of its remaining constitutional bases, granted the City’s

motion, and dismissed the complaint.

The Coalition timely appealed.

ANALYSIS

While the trial court dismissed the Coalition’s suit in full, its appeal focuses

primarily on its sixth cause of action: 6 that BMC 9.85.150, as amended by the

5 Kitcheon v. City of Seattle, No. 85583-2-I (Wash. Ct. App. Dec. 9, 2024) (unpublished),

https://www.courts.wa.gov/opinions/pdf/855832.pdf, review denied, 4 Wn.3d 1030 (2025). Pursuant to GR 14.1, we may cite to unpublished opinions as necessary for well-reasoned decisions. Kitcheon is cited here solely as a procedural fact of the litigation in the trial court. 6 While the Coalition presented several distinct constitutional challenges to the ordinance

in the trial court, it did not assign error to the dismissal of any of the other bases that remained after voluntary dismissal of the second and third claims based on mootness, other than the one identified here.

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various ordinances described, supra, violates the privileges and immunities clause

of our state constitution, Art. I, § 12, because it “den[ies] homeless residents of

Burien the right to reside in Burien, in violation of their right to intrastate travel.”

(Boldface omitted.) Toward that end, it asserts that the trial court erred both when

it denied its motion for summary judgment and when it granted the City’s. It also

contends that the trial court’s determination on standing was erroneous, as was an

evidentiary ruling regarding declarations the City submitted in support of summary

judgment. We necessarily begin with the question of standing before turning to

the propriety of the trial court’s resolution of the motions on summary judgment.

I. Standing

The Coalition contends that the trial judge applied the wrong test to resolve

the question of its standing as an organization. Specifically, it asserts the trial court

should have analyzed “organizational standing under the UDJA” but instead

“applied the associational standing test from Riverview [Community Group] v.

Spencer & Livingston.” 7 In response, the City avers that no member of the

Coalition “is an unhoused resident of Burien. It, therefore, does not have standing

to make an as-applied challenge” regarding the constitutionality of BMC 9.85.150

as amended by the ordinances. We agree with the City.

7 181 Wn.2d 888, 337 P.3d 1076 (2014). As it did in the trial court, the Coalition argues for the application of the test articulated in Freedom Foundation v. Washington State Public Disclosure Commission to determine its standing as an organization. No. 84640-0-I (Wash. Ct. App. Apr. 3, 2023) (unpublished), https://www.courts.wa.gov/opinions/pdf/846400.pdf. However, Freedom Foundation is an unpublished case from this court that addressed standing in the specific procedural context of claims arising under the Administrative Procedure Act (APA), ch. 34.05 RCW. See id. at 5-6. Critically, the APA has different standing requirements than the UDJA. Compare RCW 34.05.530 (APA standing), with RCW 7.24.020 (UDJA standing). As such, we decline to follow an unpublished opinion that analyzed a different statute with a distinct standard derived from federal law.

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“Standing is a question of law that we review de novo.” Wash. State Hous.

Fin. Comm’n v. Nat’l Homebuyers Fund, Inc., 193 Wn.2d 704, 711, 445 P.3d 533

(2019). “The standing doctrine prohibits a litigant from raising another’s legal

rights. The kernel of the standing doctrine is that one who is not adversely affected

by a statute may not question its validity.” Walker v. Munro, 124 Wn.2d 402, 419,

879 P.2d 920 (1994). As relevant here, the UDJA grants standing to

[a] person . . . whose rights, status or other legal relations are affected by a statute [or] municipal ordinance . . . may have determined any question of construction or validity arising under the statute [or] ordinance . . . and obtain a declaration of rights, status or other legal relations thereunder.

RCW 7.24.020. “To establish harm under the UDJA, a party must present a

justiciable controversy based on allegations of harm personal to the party that are

substantial rather than speculative or abstract.” Grant County Fire Prot. Dist. No.

5 v. City of Moses Lake, 150 Wn.2d 791, 802, 83 P.3d 419 (2004). “We use the

common law test for standing to determine whether someone has standing under

[the UDJA].” Bass v. City of Edmonds, 199 Wn.2d 403, 409, 508 P.3d 172 (2022).

Pursuant to this test,

a person has standing if (1) the interest they seek to protect “is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question” and (2) “the challenged action has caused injury in fact, economic or otherwise, to the party seeking standing.”

Id. (internal quotation marks omitted) (quoting Nat’l Homebuyers Fund, 193 Wn.2d

at 711-12). Our state Supreme Court has further held that “[o]rganizations have

standing to assert the interests of their members, so long as members of the

organization would otherwise have standing to sue, the purpose of the organization

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is germane to the issue, and neither the claim nor the relief requires the

participation of individual members.” Five Corners Fam. Farmers v. State, 173

Wn.2d 296, 304, 268 P.3d 892 (2011).

Here, the trial court concluded that the Coalition, as an organization, lacked

standing to challenge BMC 9.85.150 “[b]ecause none of their members would

suffer an injury in fact by virtue of [its] enforcement.” The trial judge further

observed that neither the fact that the Coalition’s mission is, broadly, “to advocate

on behalf of homeless individuals” nor that BMC 9.85.150 as amended “may

undercut their efforts, or require their efforts to focus on Burien as opposed to some

other jurisdiction” constituted an injury in fact such that standing was established.

The trial court limited this ruling to the Coalition as an organization and concluded

that, of the three named individual plaintiffs, only Paz had “standing to bring his

right to travel and private affairs causes of action because he [was] currently

homeless in Burien, and intend[ed] to remain so.” 8 The trial court also recognized

that “standing is not dispensed in gross,” and each plaintiff’s standing must be

determined as to every surviving claim and form of relief sought before concluding

that none of the named plaintiffs had standing as to the “‘cruel punishment inflicted’

claim.”

As a preliminary matter, regarding the Coalition’s contention that the trial

court improperly applied the “associational” instead of the “organizational” test for

8 As to the other named individual plaintiffs, the Hales, the trial court explained that they

“were not homeless in Burien at the time they filed declarations in support of summary judgment” and “[i]t [wa]s undisputed that the Hales [we]re not currently homeless in Burien, or anywhere else.” The trial court expressed “serious concerns about whether they have standing to challenge [BMC 9.85.150] because it is purely speculative whether they will ever return to camp or reside on Burien’s property.”

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standing, our state Supreme Court has used these labels interchangeably as they

relate to the type of plaintiff, not to the substance of the test itself. See, e.g., Wash.

State Nurses Ass’n v. Yakima HMA, LLC, 196 Wn.2d 409, 415, 469 P.3d 300

(2020); Five Corners, 173 Wn.2d at 304.

More to the point, Five Corners is instructive here. In that case, our state

Supreme Court considered the standing of a group of plaintiffs that included an

individual farmer, a citizen group of farmers, an environmental law advocacy

group, and an environmentalist organization. Five Corners, 173 Wn.2d at 301.

The plaintiffs filed a declaratory judgment action regarding certain exemptions for

the watering of livestock in a statute that imposed permit requirements for the

withdrawal of public groundwater. Id. Our state Supreme Court considered the

standing of the plaintiffs with the organizational test described, supra, alongside

the requirements of the UDJA. Id. at 302-04. It concluded that the organizational

plaintiffs had standing because the individual members had standing to pursue the

claims they had asserted through the organizations. Id. at 304. The individuals

had established that their claims were within the zone of interest protected by the

statute because the permitting decisions, and therefore necessarily the question

of whether the livestock-watering exemption applied, required consideration of the

various competing uses. Id. at 304-05. The plaintiffs also presented an injury in

fact, as the individuals’ use of water from the aquifer would be negatively impacted

by its depletion, which could be driven or abated based on the decisions regarding

permitting and statutory exceptions. Id. at 303. This binding precedent from our

state Supreme Court establishes that the organizational or associational standing

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test is applicable in the context of an action under the UDJA and, therefore,

controls. The Coalition’s contention to the contrary is simply incorrect.

Having determined the proper test, we consider the question of the

Coalition’s standing de novo. See Nat’l Homebuyers Fund, 193 Wn.2d at 711.

The Coalition described its membership in a declaration from its executive director,

who stated that its “organizational membership consists of 50-60 community-

based nonprofit organizations that provide a wide range of services to King County

residents” but did not assert that any of the Coalition’s members were experiencing

homelessness in Burien at the time it filed its complaint or that those members

were otherwise subject to enforcement of BMC 9.85.150. After the February 14,

2025 hearing, the trial court directed the parties to provide supplemental briefing

on the issue of standing solely as to the cruel punishment claim. 9 The Coalition

did not present any additional facts in that briefing to support its claim regarding its

standing as an organization but instead focused on that of the individual named

plaintiffs. In contrast, the City explicitly argued that the Coalition had not presented

evidence that its members had been subject to enforcement of BMC 9.85.150 as

amended by Ordinance 864.

The Coalition failed to establish that any of the individuals within its

membership had interests that were regulated or impacted by the enforcement of

BMC 9.85.150. Because the individual members did not have standing to

9 The Coalition also avers that the trial court raised this issue sua sponte. However, this

contention is plainly belied by the record as the City expressly asserted, in both its answers to the Coalition’s initial complaint and to the amended complaint, that “[p]laintiffs lack standing to allege some or all of these claims.”

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challenge the constitutionality of BMC 9.85.150 as amended, neither did the

Coalition.

Finally, we will not deviate from established standing requirements for the

Coalition. We recognize that our Supreme Court has explicitly held that we are

permitted to take a “‘less rigid and more liberal’ approach to standing when

necessary to ensure that an issue of substantial public importance does not

escape review.” Nat’l Homebuyers Fund, 193 Wn.2d at 718 (internal quotation

marks omitted) (quoting Grant County, 150 Wn.2d at 803). However, on this

record, no one has been arrested or cited for violating BMC 9.85.150 as amended.

We do not diminish the harm individuals experiencing homelessness could

experience due to the potential future enforcement of the BMC but, without specific

facts regarding its enforcement or subsequent punishment, we can consider the

application of BMC 9.85.150 only as applied to Paz’ “intended actions.” See City

of Redmond v. Moore, 151 Wn.2d 664, 668-69, 91 P.3d 875 (2004). Even if we

were to relax standing requirements to consider the Coalition’s cruel punishment

claim, again, without a record of actual punishment inflicted, any analysis of the

Coalition’s claim would necessarily be speculative.

The trial court did not err in the test it applied or its conclusion that the

Coalition lacked standing as to the various claims it presented. 10 Accordingly, we

10 Our holding that the Coalition lacks organizational standing to challenge BMC 9.85.150

is also dispositive of its assignment of error regarding the consideration of certain evidence at summary judgment. The Coalition avers that the trial court erred when it declined to exclude the declaration of the Burien City Manager and accompanying exhibits, including certain emails, all of which it claimed were hearsay. In the trial court, the Coalition noted that the City had offered this evidence to justify its amendments to the BMC through the various ordinances. However, Paz’ as-applied challenge based on the claimed right to intrastate travel is the only claim remaining after our determination regarding standing, and the disputed evidence is not relevant to that claim.

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consider the single constitutional challenge to BMC 9.85.150 preserved for appeal

only as applied to plaintiff Paz.

II. Summary Judgment

The central contention of the Coalition on appeal is that article I, section 12

of our state constitution “guarantees every citizen the fundamental rights of free

movement, residence, and equal protection. These rights are secured by the state

[p]rivileges and [i]mmunities [c]lause and extend to intrastate travel and residence

within Washington’s borders.” On that basis, it asserts the trial court erred when it

granted the City summary judgment after it concluded that our state constitution

did not provide such a right. The City responds that “no Washington case has

found a ‘right to intrastate travel’ under our state constitution (as opposed to the

federal constitution).”

Summary judgment is governed by CR 56. A motion for summary judgment

will be granted by the trial court if the evidence proves “that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as

a matter of law.” CR 56(c). We “consider all facts and make all reasonable factual

inferences in the light most favorable to the nonmoving party.” Scrivener v. Clark

College, 181 Wn.2d 439, 444, 334 P.3d 541 (2012). “We review the grant of a

motion for summary judgment de novo.” Cockrum v. C.H. Murphy/Clark-Ullman,

Inc., 4 Wn.3d 873, 880, 569 P.3d 287 (2025). “We engage in the same inquiry as

the trial court.” Schiff v. Liberty Mut. Fire Ins. Co., 2 Wn.3d 762, 769, 542 P.3d

1002 (2024).

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A. Washington Jurisprudence Has Not Recognized Right to Intrastate Travel

As to the substance of the summary judgment determination, article I,

section 12 of our state constitution declares, “No 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.” As determined in Part I, supra, only Paz’ as-applied challenge

survived after the trial court’s proper conclusion regarding standing. “An as-

applied challenge to the constitutional validity of a statute is characterized by a

party’s allegation that application of the statute in the specific context of the party’s

actions or intended actions is unconstitutional.” Moore, 151 Wn.2d at 668-69.

“Holding a statute unconstitutional as-applied prohibits future application of the

statute in a similar context, but the statute is not totally invalidated.” Id. at 669. We

review questions of constitutional law de novo. El Centro de la Raza v. State, 192

Wn.2d 103, 111, 428 P.3d 1143 (2018). The Coalition offers three main cases in

support of its argument that the privileges and immunities clause of our state

constitution includes a right to “intrastate travel and residence within Washington’s

borders.”

The oldest of those three, Eggert v. City of Seattle, considered a Seattle city

charter provision that gave an employment preference to those applicants who had

resided in the city or, in certain circumstances, the county for at least a year. 81

Wn.2d 840, 505 P.2d 801 (1973). Eggert and other applicants challenged this

provision on the basis that it “infringe[d] upon their constitutionally protected right

to travel” and also asserted that “the charter provisions further violate[d] the equal

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protection clause of the Fourteenth Amendment” to the United States Constitution.

Id. at 841. Our Supreme Court agreed but relied solely on federal precedent

because the plaintiffs had not premised their challenge on the state constitution.

Id.. As such, and because it only addressed city charter provisions that implicated

the free movement of workers, Eggert is distinguishable and does not control here.

Critically, nowhere in Eggert did our Supreme Court recognize a state right to

intrastate travel.

The Coalition also offered Macias v. Department of Labor & Industries,

wherein the Washington State Supreme Court considered the right to travel but in

the distinct context of the constitutionality of a workers’ compensation statute. 100

Wn.2d 263, 668 P.2d 1278 (1983). There, several migrant seasonal farm workers

challenged a statute that excluded them from workers’ compensation benefits

because of its requirement that agricultural workers earn $150 from a single

employer before they could qualify for compensation for workplace injuries. Id. at

264-65. The Macias plaintiffs argued that “the statute infringe[d] upon their

fundamental right to travel” because, as migrant farm workers, their profession

required them to “move from farm to farm and state to state to obtain continual

employment.” Id. at 271. The court decided the case based on the application of

federal case law but also held that “our state constitution privileges and immunities

clause . . . independently supports our conclusion that this provision denies

appellants equal protection of the law.” Id. at 275. However, the court expressly

recognized that the plaintiffs moved between the states in addition to their travel

within Washington, and its decision rested on state constitutional grounds only as

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to the equal protection claim. As with Eggert, this opinion does not contain any

language that recognizes a state constitutional right to intrastate travel; it is entirely

speculative as to whether the Macias court would have recognized such a right

under our state constitution, beyond its acknowledgment of the long-recognized

federal right to interstate travel. The state constitution is mentioned only in a single

conclusory sentence in Macias, without accompanying analysis, and more

critically, it is factually distinct from the case at bar. Accordingly, Macias is

inapposite here.

Finally, the Coalition relies on City of Seattle v. McConahy, which presented

a similar issue to the case at hand; the constitutionality of a city ordinance that

allegedly burdened the claimed right to travel within a city. 86 Wn. App. 557, 937

P.2d 1133 (1997). There, Seattle had enacted an ordinance that made it “a civil

infraction for any person to sit or lie down on the sidewalk in downtown Seattle and

other neighborhood commercial zones between 7 a.m. and 9 p.m.,” with certain

exceptions. Id. at 562. McConahy challenged the ordinance as unconstitutional

and specifically contended “that the ordinance impermissibly restrict[ed] her right

to travel.” Id. at 571. This court considered the issue solely under the federal

constitution and observed that “[t]raditionally, a violation of the right to travel arises

from residency requirements, waiting periods, or additional fees for new state

residents to receive basic services.” Id. The panel in McConahy relied on Eggert

and various federal cases to hold that the right to travel was not implicated by the

challenged ordinance. Id. at 571-72. However, this court also relied on those

federal cases, and the federal constitution, to note that “[s]weeping ordinances

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prohibiting eating, sleeping, sitting, or lying down in public may also be so broad

that they violate the right to travel if they make it impossible for homeless persons

to live within the city.” Id. at 571. But, while the panel in McConahy considered

that possibility under federal law, it did not acknowledge a right to intrastate travel

stemming from our state constitution, and therefore, it does not support the

Coalition’s position.

These cases offered by the Coalition primarily rely on federal case law and

analyze the right at issue under the federal constitution, which renders them

particularly unavailing as the Coalition has explicitly renounced any federal claims.

Critically, none of these cases contains a holding that our state constitution

provides for a right to intrastate travel, nor could one reasonably be implied from

the reasoning or language therein. Further, the only case that does explicitly

address our state constitution, Macias, does so alongside the federal constitution

and simply does not contain sufficient analysis to support the proposition that the

Coalition puts forward.

Instead, our analysis of this issue is guided by a recent decision of our state

Supreme Court, Potter v. City of Lacey, wherein it considered the question of

whether our state constitution provides a right to intrastate travel in the context of

deciding an as-applied constitutional challenge to a municipal code provision. 3

Wn.3d 328, 550 P.3d 1037 (2024). Lacey had amended its municipal code to bar

“people from parking . . . large vehicles and trailers on public lots and streets for

more than four hours per day.” Id. at 330. Potter, who “lived in a 23-foot travel

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trailer hitched to his truck,” filed a claim against Lacey in Thurston County Superior

Court and contended as follows in his complaint:

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

Id. at 330, 334. Potter further characterized his claimed right not to travel to

another city or live elsewhere in the state as his “‘right to reside.’” Id. After Lacey

successfully removed the case to federal district court and prevailed there, Potter

appealed to the Ninth Circuit. Id. at 334-35. The Ninth Circuit then certified the

following question to our state Supreme Court:

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

Id. at 330 (alterations in original). Our Supreme Court exercised its discretion to

reformulate the question as follows: “‘Does the RV Parking Ordinance codified in

LMC §§ 10.14.020-.045 violate Jack Potter’s claimed Washington State

constitutional right to intrastate travel?’” Id.

Potter had presented an as-applied challenge, so he asserted “only a very

limited and specific right: the right to reside in a 23-foot travel trailer hitched to his

truck on public streets and lots for an indefinite period of time.” Id. at 335. But the

court observed, “Potter has presented us with no authority, binding or nonbinding,

to support a constitutional right to reside in such a manner.” Id. at 336. The court

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explained that “the City [of Lacey] actually has the constitutional authority to adopt

parking laws of general applicability” pursuant to its “police powers to protect health

and safety.” Id.; see also WASH. CONST. art. XI, § 11. This includes the authority

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

Potter, 3 Wn.3d at 336-37 (quoting Sandona v. City of Cle Elum, 37 Wn.2d 831,

836, 226 P.2d 889 (1951)). The court further explained that it had “consistently

upheld such health and safety laws of general applicability, including laws that limit

driving and parking, against intrastate travel challenges,” id. at 337, and it

concluded,

Potter has not established that his claimed constitutional right to travel intrastate, or to not travel intrastate, or to reside, protects his preferred method of residing in Lacey: by siting his 23-foot trailer on a public street in violation of generally applicable parking ordinances.

Id. at 338. Here, in its order on summary judgment, the trial court concluded that

Potter did not stand for “the proposition that the Washington Constitution protects

the right to intrastate travel.” It explained, “In effect, our Supreme Court assumed

the right to intrastate travel’s existence, without squarely deciding the matter. This

is too slender a reed for this [c]ourt to answer a question of such constitutional

significance.”

In its briefing on appeal, the Coalition asks us to read Potter as having

“assumed without deciding” that the state constitution provided a right to intrastate

travel “but found that it did not apply to the plaintiff in that case because the right

did not protect a homeless person’s right to reside in any manner they chose.” In

response, the City correctly notes that Potter had claimed the right to intrastate

travel, but the court did not recognize that such a right exists. The City also avers

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that the court in Potter “opted not to squarely answer that question” posed by the

Ninth Circuit and, instead, limited its holding to Potter’s as-applied challenge. At

oral argument before this court, the Coalition characterized Potter as a “narrow

decision, not a narrowing decision” but ultimately conceded in response to

questioning from this panel that Potter was decided on an assumed right and did

not affirmatively hold that such a right existed. 11 It further asserted that the right

could be found in other caselaw it had cited in its briefing; the cases analyzed and

distinguished, supra. 12

Although our state Supreme Court addressed only Potter’s claimed rights

regarding his trailer and the constitutionality of parking laws, the facts of that case

parallel those of the case at bar. Potter is dispositive and directs that we must first

ascertain the exact nature of the right asserted by the plaintiff and then consider

the extent to which that right is protected under our case law. The Coalition

characterizes the right burdened by BMC 9.85.150 as amended by the ordinances

as the “right to travel or reside” and contends in briefing that it protects “the ability

of a homeless person to exist at all within the borders of a city.” When asked at

oral argument before this court about the distinction between the right to travel and

the right to reside, the Coalition conceded that the rights were the same but

emphasized it was not asserting the right to live in the manner of one’s choosing,

the contention expressly rejected in Potter. 13

11 Wash. Ct. of Appeals, oral arg., Seattle/King County Coal. on Homelessness v. City of

Burien, No. 88311-9-I (June 2, 2026), at 4 min., 7 sec., to 5 min. 11 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-1-court-of-appeals- 2026061128/. 12 Id. at 4 min., 36 sec. to 4 min., 59 sec. 13 Id. at 19 min., 14 sec. to 20 min., 30 sec.

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B. As-Applied Challenge to BMC 9.85.150 Fails As Matter of Law

Here, precise understanding of the nature of Paz’ challenge is crucial;

again, an as-applied challenge “is characterized by a party’s allegation that

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

actions is unconstitutional.” Moore, 151 Wn.2d at 667-68. The “specific context”

was emphasized by our Supreme Court in Potter where they interpreted that

phrase to result in the assertion of, in the context of an as-applied challenge, “only

a very limited and specific right.” 3 Wn.3d at 335. In his declaration in support of

the Coalition’s motion for summary judgment, Paz described both his past and

intended future actions that he asserted were impacted by BMC 9.85.150. Paz

stated, at the time of his declaration, that he was experiencing homelessness in

Burien, had been living in a tent, did not “have anywhere [to sleep] other than the

streets in Burien” on some nights, and “would like to remain in Burien” but found it

hard to do so “with the constant pressure of complying with [the BMC as amended

by] the ordinance.” He also described the amenities and services he routinely used

in Burien and noted that he occasionally stayed with friends in Burien. “The

specific context of [Paz’] actions or intended actions” are the subject of his as-

applied challenge on appeal. See Moore, 151 Wn.2d at 668. Under Potter, we

construe this course of action as the activities the Coalition contends are protected

by the claimed right to intrastate travel. 3 Wn.3d at 335. Therefore, Paz asserts

the right to reside on the streets of Burien, in a tent, and freely move about Burien

in order to access the services and amenities that are available to him, free from

the enforcement of BMC 9.85.150.

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But Potter does not protect such activity, nor do the other cases offered by

the Coalition, even if they were not otherwise distinguishable. The trial court was

correct that our state Supreme Court, in Potter, did not unequivocally hold that our

state constitution provides for a right to intrastate travel, insofar as it could protect

the course of action described in the record before us, and the cases presented by

the Coalition do not provide sufficient support for such an undertaking.

The question of the existence of a right to intrastate travel under our state

constitution was directly before our state Supreme Court in Potter, as were the

Macias and Eggert holdings on which the Coalition relies, but it declined to

conclude that such a right existed. It expressly held “Potter has not established

that his claimed right to reside inheres in a Washington state constitutional right to

intrastate travel or that it protects his preferred method of residing in Lacey.” Id. at

331. Instead, it resolved the case only by assuming such a right for the purpose

of deciding Potter’s as-applied challenge. Id. In its order that certified the Potter

question to our state Supreme Court, the Ninth Circuit panel explicitly discussed

Macias and Eggert and noted that “no Washington case has held that a right to

intrastate travel exists under Washington state law—to the extent Washington

courts have found a right to intrastate travel, they have done so only under the

United States Constitution.” Potter v. City of Lacey, 46 F.4th 787, 792 (9th Cir.

2022). Critically, it so held after Potter expressly relied on Macias and Eggert in

his appeal to the federal panel. Id. While the Ninth Circuit interpretation of these

cases is only persuasive authority, it is telling that our state Supreme Court did not

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reject that conclusion by the Ninth Circuit when it took up the issue in response to

the certified question.

Potter provides the proper framework for our analysis of Paz’ as-applied

challenge to BMC 9.85.150 which, as explained supra, can be considered only in

the specific context of his past and intended course of action. Paz’ declaration

establishes that his course of action includes remaining in Burien, occasionally

sleeping in public places in a tent, traveling across Burien to access available

services and amenities, and remaining free from the enforcement of BMC

9.85.150. This course of action is not meaningfully distinct from the one Potter

identified in his own declaration; living full-time in a travel trailer attached to his

truck that he sometimes parked in private lots and other times on city streets.

Potter, 3 Wn.3d at 331. Our Supreme Court concluded that while this was Potter’s

“preferred method of residing” in the city, it did not constitute a protected right. Id.

at 338. Paz asserts he has the right to remain in public places in Burien and to be

free from the restrictions of BMC 9.85.150 as amended by the ordinances

described herein, which otherwise operates to prevent him from remaining there

indefinitely. However, he fails to establish that that BMC 9.85.150 prevents other

actions he described in his declaration, like entering Burien, traveling through

Burien to access services and amenities, or staying with friends there. While the

Coalition asserts that the City has “passed a law making it impossible for the

homeless to live within its borders,” it does not explain how BMC 9.85.150

impermissibly precludes Paz’ courses of action, beyond his fear of its enforcement.

Whether termed a right to intrastate travel or a right to reside, the Washington State

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Constitution does not provide a right to remain in public places indefinitely in the

manner of one’s choice, free from the enforcement of municipal codes that prohibit

certain activities in public spaces. The Coalition has not demonstrated otherwise.

We will not depart from this controlling precedent.

The trial court did not err when it concluded similarly and granted summary

judgment to the City. 14

Affirmed.

WE CONCUR:

14 Our holding that the City was entitled to summary judgment as a matter of law further

obviates reaching the merits of the Coalition’s challenge to the trial court’s purportedly erroneous evidentiary ruling beyond the separate reasoning set out in note 10, supra.

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