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City of Seattle v. McConahy

June 2, 1997


Appeal from Superior Court of King County. Docket No: 95-2-13008-9. Judge signing: Hon. Ricardo Martinez.

Authored by Susan R. Agid. Concurring: William W. Baker, Mary K. Becker.

The opinion of the court was delivered by: Agid

AGID, J. -- Sarah McConahy, a formerly homeless youth, and John Hoff, an advocate for Seattle's homeless, were cited under the "Seattle sitting ordinance," SMC 15.48.040, for sitting on the sidewalk in the University District. They challenge the ordinance on several state constitutional grounds. *fn1 These include alleging that the ordinance violates their substantive due process and free expression rights under the Washington State Constitution and that it violates Washington's Privileges and Immunities Clause. McConahy also contends that the ordinance violates her right to travel, and Hoff argues that the officers violated Washington's ban on discrimination against persons with disabilities when they cited him.

While we decline to invalidate the ordinance in this case, we wish to make clear what we are not deciding. First, we express no opinion about whether the ordinance is or is not good social policy. We hold only that the ordinance is constitutionally-valid legislation. SMC 15.48.040 is quintessential legislative policy making, and we will not disturb the policy decisions made by legislative bodies unless they are unconstitutional or conflict with state law. We also hold that the City did not violate appellants' right to free expression because Hoff and McConahy were not involved in expressive activity when they were cited. But we do not decide whether, on different facts involving a protected activity or speech, SMC 15.48.040 would be a valid time, place, manner restriction. We also do not decide whether homeless residents could establish the requisite disparate impact to invoke the protection of the Privileges and Immunities Clause because these appellants have not done so.


In response to complaints about increasing petty crime, declining shoppers in core retail areas, and problems with pedestrians being blocked by people sitting or lying on sidewalks, the Seattle City Council enacted SMC 15.48.040. Under that ordinance, it is a civil infraction for any person to sit or lie on the sidewalk in downtown Seattle and other neighborhood commercial zones between 7 a.m. and 9 p.m. except in an emergency, or if he or she is in a wheelchair or on a bench or in a bus zone or patronizing a commercial establishment or attending a permitted event. *fn2 McConahy was cited while sitting on a street bulb with a group of friends, eating pizza, watching her friends play chess for change, and sometimes panhandling. Police officers approached the group and informed them that they were violating the ordinance. Her friends stood, but McConahy remained seated protesting the ordinance. McConahy wore an army jacket decorated with an American flag and a slogan that said, "Fuck your American dream." She also wore a button that said, "Sitting is not a crime." Hoff was cited while sitting reading a book and leaning against a building with leaflets advertising a protest against the ordinance in his lap. They had separate trials in municipal court. The Hoff court heard testimony and allowed extensive argument on his constitutional claims, and the McConahy court accepted much of this record. Both courts found that the defendants violated the ordinance and rejected their free expression and substantive due process claims. The two cases were joined for appeal.


A. Substantive Due Process

Hoff and McConahy first contend that the sitting ordinance violates their substantive due process rights under the Washington State Constitution. They argue that it violates art. I, sec. 1, because it is an unreasonable exercise of police power which infringes upon their individual liberties. They also argue that the state constitution, read as a whole, is more protective of individual liberties than the federal constitution and that the ordinance is invalid under our Personal Rights Clause, art. I, sec. 3.

Article I, sec. 1 states that "all political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights." Hoff and McConahy contend that this section prohibits governments from enacting legislation which detracts from individual liberties. They argue that this section embodies the fundamental predicate underlying the Washington Constitution protecting individual liberties, and the Seattle ordinance violates it. But they cite no authority for the proposition that art. I, sec. 1 is not coequal with art. XI, sec. 11 of that same constitution which expressly permits "any county, city, town or township [to] make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." We must interpret the constitution as a whole so that no provision is ignored or meaningless. Washington Economic Dev. Fin. Auth. v. Grimm, 119 Wash. 2d 738, 746, 837 P.2d 606 (1992). Reading the two sections together, art. XI, sec. 11 grants local governments the police power to enact legislation to protect the health, safety, and welfare of the citizens, while art. I, sec. 1 acts as a check on that power by requiring that the legislation be reasonable and not infringe unduly on individual rights. State v. Crediford, 130 Wash. 2d 747, 752, 927 P.2d 1129 (1996); Second Amendment Found. v. City of Renton, 35 Wash. App. 583, 586, 668 P.2d 596 (1983).

The Seattle City Council enacted the ordinance based on its findings that people sitting on the sidewalk presented a health and safety concern because many citizens had trouble maneuvering around them and shoppers were deterred from coming into core areas because petty crime and blight were increasing. The record supports these findings, and we must therefore accept them. We are bound to construe the ordinance as constitutional if we can do so without doing violence to important rights. See Duckworth v. City of Bonney Lake, 91 Wash. 2d 19, 26-27, 586 P.2d 860 (1978). The ordinance was enacted in response to a legitimate legislative health and safety concern. Article XI, sec. 11 permits a municipality to enact such an ordinance. Baker v. Snohomish County Dep't of Planning & Community Dev., 68 Wash. App. 581, 585, 841 P.2d 1321 (1992), review denied, 121 Wash. 2d 1027, 854 P.2d 1085 (1993). McConahy and Hoff have not shown that the limits the ordinance imposes are unreasonable under art. I, sec. 1.

They also argue that the ordinance violates their fundamental right to "move about or stand still." We agree with appellants that the Washington and federal constitutions prohibit legislation that unreasonably interferes with the individual's right to be let alone while engaged in innocent activity. See Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972); City of Seattle v. Drew, 70 Wash. 2d 405, 423 P.2d 522, 25 A.L.R.3d 827 (1967). However, Seattle's sidewalk sitting ordinance is not an unreasonable or arbitrary intrusion into that right. Rather, it is narrowly-tailored to permit appellants to exercise this right at other times and in other places than those covered by the ordinance.

Appellants argue that because the Washington Constitution provides greater protection to individual rights than does the federal constitution, we should apply a correspondingly more protective analysis when considering legislation which impacts these liberties. They suggest we adopt an analysis similar to the one the Ninth Circuit recently considered in Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996). The court there adopted a continuum approach which it posited is more consistent with the decisions of the United States Supreme Court. Compassion in Dying, 79 F.3d at 804. Under its formulation, a court considers the following factors when confronted with a substantive due process problem: (1) the State's interests; (2) the manner in which those interests are furthered by the law; (3) the importance of the liberty interest by itself and the context in which it is being exercised; (4) the extent that the interest is burdened by the law; and (5) the consequences of upholding or overturning the law. Compassion in Dying, 79 F.3d at 816.

We disagree with appellants' position that we must apply a more protective approach under the state constitution. Because the text of our provision is so similar to the federal one, our Supreme Court has held that they are to be interpreted the same way. State v. Ortiz, 119 Wash. 2d 294, 304, 831 P.2d 1060 (1992). But we will consider the Compassion in Dying test because our courts look to federal analysis in interpreting art. I, sec. 3. Ortiz, 119 Wash. 2d at 302-03; Petstel, Inc. v. King County, 77 Wash. 2d 144, 459 P.2d 937 (1969). The Compassion in Dying test does not conflict with previous Washington substantive due process law. Rather, it contributes a useful approach to due process analysis because it creates a more workable balance among the competing interests presented in cases like this one than does the traditional balancing test. We agree with the Ninth Circuit that its approach is more comprehensive and helpful in resolving ...

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