Amicus Curiae Brief — Shaw v. City of Pasco, Washington (No. 07-788)

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No. 07-788

IN THE

Supreme Court of the United States

BERNARD N. SHAW and B. JEAN SHAW,

COLUMBIA BASIN APARTMENT ASSOCIATION,

ROBERT LEE GAINES and BILLIE JEAN GAINES,

MANUEL VALA, and MARIA GALEANA,

Petitioners,

CITY OF PASCO,

Respondent,

On Petition for Writ of Certiorari to the

Supreme Court of the State of Washington

BRIEF AMICUS CURIAE OF RENTAL

HOUSING ASSOCIATION OF PUGET SOUND

AND THE WASHINGTON MULTI FAMILY

HOUSING ASSOCIATION IN SUPPORT OF

THE PETITION FOR WRIT OF CERTIORARI

—v

John M. Groen, Counsel of Record

Daniel J. Appel

GROEN STEPHENS & KLINGE LLP

11100 NE 8th Street, Suite 750

Bellevue, Washington 98004

Telephone: (425) 453-6206

Attorneys for Amici Curiae

TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE OUT OF TIME......1

IDENTITY AND INTEREST OF AMICI... 1

STAT IMR COR Ree Ce cscnsinnsiiscsncanicccatncabninionnns 2

REASONS FOR GRANTING THE WRIT...............0..... 7

I THE DECISION OF THE WASHINGTON

SUPREME COURT UPHOLDING SO-

CALLED “PRIVATE” SEARCHES

CONFLICTS WITH NINTH CIRCUIT

PRECEDENT IMPUTING PRIVATE

ACTION TO THE GOVERNMENT WHEN

PERFORMED AT THE GOVERNMENT'S

SPER PIEI TEE iiertcosicensisisnsignnneaniateimaneibuniaianedamiaiaaahanmiage 7

It THIS APPEAL PRESENTS AN

IMPORTANT ISSUE OF FEDERAL LAW

THAT THIS COURT HAS NOT, BUT

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TABLE OF AUTHORITIES

UNITED STATES CONSTITUTION

U.S. Const., Fourth Amendment .........0......00.....ccceeee 13

STATE CASES

City of Pasco v. Shaw,

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FEDERAL CASES

Bass v. Parkwood Hosp.,

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Blum v. Yaretsky,

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Brentwood Acad. v. Tennessee Secondary Sch.

Athletic Ass’n,

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Camara v. Municipal Court of San Francisco,

Ee Pes SE 08 PI viii canninccenavakstacsbuctoaneouobiniaaeel 6

Jackson v. Metropolitan Edison Co.,

BEE RB” 2. 2 | ne aS IRA RANE e RRC ed 8

Peterson v. City of Greenville,

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Skinner v. Railway Labor Executives’ Ass’n,

I res Me I iiteactivncteio oescidcndindvachesaiasrenacenas 10

Sutton v. Providence St. Joseph Med. Cir.,

102 F.3d B26 (Oth Cir. 1999)............scccssccseccccccccessess 9

United States v. Davis,

482 F.2d 893 (9th Cir. 1978)...............cceseceeeeees 10, 11

United States v. Ross,

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MOTION FOR LEAVE TO FILE OUT OF TIME

The Amici identified below previously filed a

brief that followed the formatting as set forth in the

Court’s prior rules. This brief is. identical in

substance to the previously filed brief. However, the

Amici have re-printed the brief with changes to type

size and font so as to conform to the Court’s new

rules. The Amici respectfully request that leave be

granted to file the re-printed brief.

IDENTITY AND INTEREST OF AMICI

This brief is filed on behalf of the Rental

Housing Association of Puget Sound and the

Washington Multi Family Housing Association. The

parties to the litigation have provided written

consent to the filing of this brief, which consent has

been lodged with the Clerk of the Court. !

The Rental Housing Association of Puget

Sound (“RHA”) is the largest association of rental

housing owners in the Pacific Northwest,

representing more than 4,400 members. RHA has

appeared as an intervenor and amicus in numerous

state administrative and appellate court proceedings

involving the regulation of rental dwellings. The

RHA participated as an amicus in the proceedings

before the Washington Supreme Court.

‘ Counsel for amici prepared this brief in whole, and no person

or entity other than the amici provided any funding for the

preparation or filing of this brief.

The Washington Multi Family Housing

Association is the Washington chapter of the

National Apartment Association and represents over

50 management companies encompassing over

62,000 apartment homes.

The interest of the amici in this case stems

from the organizations’ long-standing interest in

licensing and inspection regulations for residential

rental units. The amici are concerned that the City

of Pasco’s ordinance requiring searches of residential

dwellings without a warrant or tenants’ consent

places landlords in an untenable position: their

business licenses are conditioned upon tenants

waiving their personal constitutional right to

privacy.

STATEMENT OF THE CASE

The amici contend that the Washington

Supreme Court decision allows government to

circumvent the requirements of the Constitution by

forcing private citizens to conduct searches where a

search warrant would otherwise be required. In

other words, the City of Pasco seeks to do indirectly

what it cannot constitutionally do directly.

The key issue is what constitutes “state

action” for purposes of the Fourth Amendment.

The issue stems from a City of Pasco

ordinance that requires landlords to obtain and

maintain a business license as a prerequisite to

engaging in the residential rental business. Pet. for

Writ of Cert., Appendix (App.) at 126 (Pasco

Municipal Code (“PMC”) § 5.78.010). |

Before the City will issue the license, the

landlord must provide a “certificate of inspection.”

Id. (PMC § 5.78.020(a)). The license must be

renewed every two years, and the certificate of

inspection (based on a new inspection) must also be

resubmitted at each renewal. Id. at 127-28 (PMC §

5.78.020(b)).

The inspection is required even though there

is no probable cause of any code violation. Likewise,

inspections are required over the objection of the

existing tenant. Rather than requiring an inspection

when a tenant moves out—that is, during the period

of vacancy between tenants—the Pasco ordinance

requires existing tenants to succumb to inspection.

The inspection is carried out by the city’s Code

Enforcement Officer or by a qualified private

inspector selected by the of the landlord, but

approved by the City.

In its decision, the Washington Supreme

Court stressed that the ordinance “does not

authorize the city itself to search for housing

violations.” City of Pasco v. Shaw, 161 Wn.2d 450,

460, 166 P.3d 1157 (2007), reproduced at Pet. for

Cert., App.11 (emphasis added). Instead, the Court

viewed the inspections as furthering a private

purpose of obtaining a business license.

(U]nder the Pasco ordinance a

landlord can engage private

inspectors in order to further the

private objective of obtaining a

certification needed to maintain a

business license.

Id. (italics in original).

The Washington court’s reasoning continued:

The city insists only upon the

certificate that an inspection has

been successfully completed.

Landlords first and _ foremost

further their own ends when they

engage in the inspections

contemplated by the ordinance.

Id., 161 Wn.2d at 461, App. at 12 (italics in original).

While the landlords obviously want to secure a

business license, it is Pasco that created the need for

that license. It is also Pasco that conditioned license

issuance on completion of an inspection. The dissent

by Justice Sanders recognized both of these points,

reasoning:

Even though the ordinance allows

landlords the option to utilize

private inspectors approved by the

city, private inspectors are simply

doing the work of city inspectors.

This is state action ...

161 Wn.2d at 467 (Sanders, J., dissenting); App. at

20. The dissent continued:

The majority claims, however,

private inspectors are merely

furthering the “private objective of

obtaining a certification needed to

maintain a _ business license.”

Majority at 10. The business

license requirement is imposed by

the government. Moreover,

landlords are coerced into

complying with these unwanted

intrusions into private residential

units to further the government’s

objective of compliance with health

and safety codes. The landlords

are not “first and foremost

furthering their own ends” .... but

are actually furthering the city’s

ends.

161 Wn.2d at 469 (Sanders, J., dissenting); App. at

24.

The amici contend that the clear purpose of

Pasco’s ordinance is to increase compliance with city

housing codes, not to benefit the landlord. See Pet.

for Writ of Cert. App. 124 (preamble to Pasco

Ordinance No. 3231). MHere’s the rub: unless the

occupant consents, the City cannot inspect private

dwellings without a warrant issued on probable

cause of a code violation. Thus, under the ordinance,

the city seeks to force the landlord to perform the

searches for the city.

The issue presented here goes a step beyond

Camara v. Municipal Court of San Francisco, 387

U.S. 523 (1967). There, this Court held that

administrative searches “are significant intrusions

upon the interests pretected by the Fourth

Amendment, that such searches, when authorized

and conducted without a warrant procedure, lack the

traditional safeguards which the Fourth Amendment

guarantees to the individual.” Id. at 534.

Clearly, then, if Pasco wished to inspect rental

dwellings in compliance with the Fourth

Amendment, it must first obtain tenant consent, or

obtain a search warrant under this Court’s holding

in Camara. Trying to circumvent this requirement,

the City, by way of the business licensing process,

compels private landlords to perform inspections as a

condition to doing business. The primary question of

this appeal is whether a private inspection

performed under this kind of governmental

compulsion is properly attributed to the City for

purposes of the Fourteenth Amendment’s state

action requirement.

. ae

REASONS FOR GRANTING THE WRIT

The decision of the Supreme Court of

Washington upholds these inspections because they

are ostensibly “private.” That decision conflicts with

precedent of the United States Court of Appeals for

the Ninth Circuit. The result is to leave landlords in

the impossible predicament of choosing to forfeit

their right to conduct business by loss of a necessary

license, or choosing to violate their tenants’ privacy

rights under the Fourth Amendment. This Court

should grant certiorari to resolve this split and

provide clear direction regarding the Fourth

Amendment’s applicability to landlord searches of

tenants’ homes at the direction of the state.

THE DECISION OF THE WASHINGTON

SUPREME COURT UPHOLDING SO-CALLED

“PRIVATE” SEARCHES CONFLICTS WITH

NINTH CIRCUIT PRECEDENT IMPUTING

PRIVATE ACTION TO THE GOVERNMENT

WHEN PERFORMED AT THE

GOVERNMENT’S BIDDING

The protections of the Fourth Amendment

prevent abuses of the government only, not of private

citizens. See Brentwood Acad. v. Tennessee

Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295

(2001) (“Our cases try to plot a line between state

action subject to Fourteenth Amendment scrutiny

and private conduct (however exceptionable) that is

not.”) (citation omitted).

Thus, to find a constitutional violation, the

abuse in question must be attributable to “state

action,” the precise contours of which are not defined

by formal distinctions. Id. This Court has stated the

issue as follows:

If the Fourteenth Amendment is

not to be displaced, therefore, its

ambit cannot be a simple line

between States and _ people

operating outside formally

governmental organizations, and

the deed of an ostensibly private

organization or individual is to be

treated sometimes as if a State had

caused it to be performed.

Id. To hold the state responsible for private action,

there must be a close nexus between the state and

the action such that the action “may be fairly treated

as that of the State itself.” Jd. (quoting Jackson v.

Metropolitan Edison Co., 419 U.S. 345, 351 (1974)).

The question of state action is highly fact specific:

“What is fairly attributable is a matter of normative

judgment, and the criteria lack rigid simplicity.” Id.

One particular fact pattern this Court has

reengnized as constituting state action occurs when

the state has

exercised coercive power or has

provided such significant

encouragement, either overt or

covert, that the choice must in law

be deemed to be that of the State.

Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)

(citations omitted).

When the State has commanded a

particular result, it has saved to

itself the power to determine that

result and thereby ‘to a significant

extent’ has ‘become involved’ in it,

and, in fact, has removed that

2 Lower courts have attempted to distill this Court’s various

cases on this topic into specific “tests” used to analyze state

action. The Ninth Circuit, for example, uses four different

tests: public function, joint action, governmental compulsion or

coercion, and governmental nexus. See, eg., Sutton v.

Providence St. Joseph Med. Ctr., 192 F.3d 826, 835-36 (9th Cir.

1999). Even so, these courts recognize the fact intensive nature

of the state action requirement: “Under any formula, however,

the inquiry into whether private conduct is fairly attributable

to the state must be determined based on the circumstances of

each case.” /d. at 836 (quoting Bass v. Parkwood Hosp., 180

F.2d 234, 242 (5th Cir. 1999)).

decision from the sphere of private

choice.

Peterson v. City of Greenville, 373 U.S. 244, 248

(1963).°

Following these guidelines, the Ninth Circuit

has recognized that “[t]he Fourth Amendment

applies to a search whenever the government

participates in any significant way in this total

course of conduct.” United States v. Davis, 482 F.2d

893, 897 (9th Cir. 1973).

In Davis, the defendant was convicted of

attempting to board an airplane with a concealed

weapon. Id. at 895. The weapon was found during a

routine search performed by an airline employee, not

a government official. Jd. at 896. The court noted,

however, that the search “was part of a nationwide

anti-hijacking program conceived, directed, and

* In Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602

(1989), for example, this Court examined regulations

promulgated by the Federal Railroad Administration

suggesting that private railroads test employees who violate

safety standards for alcohol use. 489 U.S. at 606. Even though

the regulations were not mandatory, this Court determined

that these “private” tests were not “primarily the result of

private initiative.” Jd. at 615. Rather, the government’s

“encouragement, endorsement, and participation” were

sufficient “to implicate the Fourth Amendment.” Jd. at 615-16.

In the same way, the inspections performed by landlords

pursuant to the City’s ordinance are not done primarily from

private initiative, but rather at the “encouragement”

(compulsion, rather) of the local government. In both instances,

the Fourth Amendment is implicated.

implemented by federal officials in cooperation with

air carriers,” id. at 897, and concluded that the

search was attributable to the government: “It makes

no difference that the act of opening appellant’s

briefcase was accomplished by a ‘private’ airline

employee rather than a ‘public’ official,” id. at 904.

Significantly, the court reasoned that

[clonstitutional limitations on

governmental action would be

severely undercut if the

government were allowed _ to

actively encourage conduct by

‘private’ persons or entities that is

prohibited to the government itself.

Id. (emphasis added).* That result, amici submit, is

precisely what happens under Pasco’s inspection

ordinance.

Justice Sanders in_ dissent correctly

acknowledges:

Pasco instigates and encourages

these searches, dictates their

scope, and examines their fruits.

The housing code inspection not

only occurs at Pasco’s demand,

* The Ninth Circuit reaffirmed this rule in United States v.

Ross, 32 F.3d 1411, 1413-14 (9th Cir. 1994), in which it again

applied the Fourth Amendment to a search of airline luggage by

a private airline employee, finding the private action

attributable to the government.

but the ordinance also rigidly lays

out who can. perform the

inspections... Given such

extensive government involvement,

the physical search need not be

done by an actual city employee to

trigger constitutional protections.

Pasco v. Shaw, 161 Wn.2d at 468 (Sanders, J.,

dissenting) (emphasis added); App. at 22-23.

The Supreme Court of Washington

disregarded the extensive government involvement

in the City’s inspection scheme, and reached

precisely the opposite result dictated by Ninth

Circuit precedent. This Court should grant a writ of

certiorari to resolve this split of authority and

provide clear direction for Washington’s landlords

with respect to inspections of their tenants’ homes.

THIS APPEAL PRESENTS AN IMPORTANT

ISSUE OF FEDERAL LAW THAT THIS COURT

HAS NOT, BUT SHOULD, DECIDE

The ramifications of the Supreme Court of

Washington’s analysis in this case are far reaching.

Under the majority opinion, the government can

condition the issuance of a necessary license on the

performance of actions that the government cannot

constitutionally perform itself. There is no reason to

suppose that governments will not seize upon this

new power to create new conditions for other types of

licenses. Numerous problems facing society can be

addressed by the licensing process, and the

government can hide with impunity behind so-called

“private” actors who do the government’s bidding

while supposedly acting in their “own” best interest

of securing the license. This Court should decide

whether this practice withstands constitutional

scrutiny:

Already, the Washington decision is having

practical impacts. The City of Seattle has recently

passed a resolution to review the Pasco ordinance

with an eye towards adopting a similar measure.

City of Seattle Resolution No. 31031, Dec. 17, 2007.

The amici understand that numerous jurisdictions in

Washington are waiting to see what happens in this

Court. If allowed to stand, the “state action”

requirement will effectively be circumvented and

thousands of tenants will soon be subjected to

unconstitutional invasions of their homes. This

Court should grant review and determine whether

the Pasco ordinance goes too far.

inal

CONCLUSION

The Supreme Court of Washington’s decision

in this matter creates a conflict with Ninth Circuit

precedent construing the “state action” predicate to,

the application of the Fourth Amendment. Absent

tenant consent, searches performed at the behest of

the government, and for the government’s benefit,

presents a federal issue of substantial importance

that this Court should decide.

For the foregoing reasons, amici respectfully

request this Court to issue a writ of certiorari to the

Supreme Court of Washington in this matter.

DATED: February 27, 2008.

Respectfully submitted,