Justice Richard B. Sanders
OLYMPIA -- City officials trumped landlords in a split ruling today by the Washington Supreme Court that sparked both a concurrence and a dissent over privacy concerns.
In City of Pasco v. Shaw and others (docket# 77195-2) the Supreme Court upheld a Court of Appeals decision ruling that a Pasco city ordinance requiring landlords to submit compliance certificates for rental property every two years. It also allows either public or private inspectors to inspect property without prior tenant approval.
A group of landlords and tenants had jointly argued that Pasco Ordinance 3231 breached both the U.S. and Washington state Constitution protections against unlawful entry by state agents. They also argued the mandate was unconstitutionally vague.
But the five-justice majority concluded that PO3231's requirements did not amount to state action and therefore not subject to such protections, wrote majority author Bobbe J. Bridge. Nor was it unconstitutionally vague, she added.
"Pasco Ordinance 3231 was enacted in an attempt to protect tenants and nearby property owners from dangerous and unhealthy housing conditions," Bridge wrote. Required property inspections "do not amount to state action, nor does the ordinance require any intrusion not already permitted by the RLTA."
But concurring author Tom Chambers, while agreeing that unconstitutionality had not been proven, expressed concern in his concurrence that the requirements could allow warrantless searches of private property.
"[A]ny inspection of an occupied unit performed pursuant to the ordinance should be done with the tenant's consent or by court order or arbitrator; anything less runs the risk of violating...our state constitution," warned Justice Chambers, joined in concurrence by Chief Justice Alexander.
Dissenting Justice Richard B. Sanders went further, charging that the Pasco ordinance was indeed state action to enter a home without a warrant. This clearly violates the Washington state constitution, Sanders argued, joined in dissent by Justice James M. Johnson.
"Even though the ordinance allows landlords the option to utilize private inspectors approved by the city, private inspectors under the ordinance are simply doing the work of city inspectors," Sanders wrote.
"This is state action which invades the tenant's home without the 'authority of law' provided by a warrant," he added.