Washington Supreme Court Reverses Decades of Precedent Protecting the Constitutional Rights of Washingtonians

J. Justin Wilson
J. Justin Wilson · November 14, 2019

In a unanimous opinion issued today in the case of Yim v. City of Seattle, No. 95813-1, the Supreme Court of Washington upheld the city of Seattle’s “First In Time” (FIT) law from a constitutional challenge brought by Seattle landlords. The FIT ordinance required Seattle landlords to offer vacant units to the first qualified applicant. The court upheld the FIT ordinance against claims that it took the landlords’ private property and transferred it to private individuals, deprived landlords of their due process rights, and violated their right to free speech.

In coming to this conclusion, the court reversed decades of its own decisions that held that the Washington Constitution provides greater and independent rights for Washingtonians than the federal Constitution. It specifically overturned seven decisions dating back over 30 years that held that the Washington Constitution provides greater protections for private property than the U.S. Constitution. It also overturned cases holding that the government violates the state constitution when it acts in a way that is unduly oppressive to individual rights. Finally, the court held that the Washington Constitution’s protection of free speech, which guarantees the right of all Washingtonians to speak freely “on all subjects,” provides fewer protections for speech regarding commercial transactions than speech on other topics.

William Maurer, the managing attorney of the Institute for Justice’s Washington state office in Seattle, issued the following statement in response to the decision:

Today’s decision is not about whether the city of Seattle can mandate that landlords rent to the first tenant who meets their rental criteria. The decision today is about whether Washingtonians can continue to rely on the protections of our state constitution that have been in effect since the state was founded in 1889. With this decision, the Washington Supreme Court has made it clear that, for large sections of that document, they cannot.

When the people who founded this state wrote our constitution, they specifically chose to make its Declaration of Rights far more explicit and protective than the federal Bill of Rights. They did this because they felt that the federal document did not protect the fundamental rights of Washingtonians sufficiently. Today the Washington Supreme Court has undone the founders’ decision and replaced our constitution with protections our founders specifically believed were inadequate.

The real harm of today’s decision is not to the Washington Constitution. The real harm is to the people of this state, who will now have no independent protections from the state government and municipalities who want to violate their rights. Today’s decision gives the green light to the government to unduly oppress the state’s residents, deprive them of their ability to freely use and enjoy their property, and speak freely about commercial matters. Perhaps the only way to revive the rights the court has taken from the people of this state is to amend our state Declaration of Rights by adding at the end, ‘And this time we mean it.’

IJ is a nationwide public interest law firm that fights for the constitutional rights of all Americans and its Washington office litigates cases to specifically vindicate the rights guaranteed by the Washington Constitution. IJ filed a friend of the court brief urging the court to preserve the rights guaranteed by that document.

IJ Attorney Joshua Windham, who co-authored IJ’s friend of the court brief, added:

It is difficult to overstate the harm this decision will cause to the constitutional rights of Washington residents. The court has basically made large portions of the Washington Constitution superfluous and leaves Washington residents to rely only on federal interpretations of their rights.