Is the Big House, Little Lot ‘Emergency’ Constitutional?

Our Federal and State Constitution function as the operating system of our governments, providing the source code for numerous decisions, procedures, and regulations passed by legislative bodies. When someone doesn’t like a particular law or regulation, one option they have is to challenge it based on whether it is inconsistent with the Constitution. Based on a read of an article by State Constitutional scholar Hugh Spitzer, I’d say Richard Conlin’s proposed emergency legislation, based on the City’s emergency powers, skirts the edges of Constitutionality.

Spitzer’s status as the State’s leading expert on the Washington State Constitution is undisputed. His 2000 article on Municipal Police Power in Washington State doesn’t take that long to read, and it highlights some critical points that the Council should consider before it’s vote.

Spitzer lays out the history of municipal police power in the state noting that it was at first very strong, then attenuated by legal decisions in the early part of the last century. Before cases like Lochner (which I wrote about on this blog) police power was mostly untrammeled and favored the status quo. After Lochner the State Supreme Court started to lean away from police power, favoring the individual or company affected by a law or rule.

On balance, when the Court began to shift again, it reestablished the primacy of local governments to determine the appropriate use of emergency or police powers.

Spitzer quotes an early case after the shift back toward favoring cities, Shepard.

The principal of police power is important. I’m the former Tobacco Tsar after all, and I think local government ought to have the power to intervene to protect the public’s health and safety. But the question for the Council tomorrow when it considers Conlin’s proposal is whether this fits the bill. Are big houses really a threat to public health and safety? Based on the standard test, the Petstel Test, I’d say no.

I think Conlin’s proposal clearly fails the first and fourth elements of Petstel.

But I’m no lawyer. Wouldn’t it make sense, rather than rush this legislation forward, to think about it for a few more weeks? Are big houses on little lots really an ‘evil’ needing to be cured? Are they a threat to public health and safety?

Those questions would be best debated in the land use committee rather than a before a judge.

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