Resident Action Council v. Seattle Housing Authority , 162 Wash. 2d 773 ( 2008 )

¶1

C. Johnson, J.

This case involves a challenge to a housing regulation prohibiting the posting of signs on the exterior of resident apartment doors. The superior court granted summary judgment to Resident Action Council (RAC), enjoining enforcement of the regulation. The superior court held that the regulation violated residents’ free speech rights under the United States and Washington Constitutions.¹ Seattle Housing Authority (SHA) appealed and we accepted certification. We affirm.

FACTS

¶2 SHA is a public housing authority, organized under the state Housing Authorities Law (ch. 35.82 RCW). Among the low-income housing programs it operates is the low-income public housing (LIPH) program, which is funded in part by the federal government. Clerk’s Papers (CP) at 160. There are roughly 5,300 LIPH units in Seattle.

¶3 Tenancies in LIPH facilities are governed by lease agreements. SHA issues “house rules” which tenants must sign and are incorporated by reference into their leases. CP at 207. Residents have obligations, set out in the house rules, to maintain the interior and exterior appearance of the buildings in which they reside. For example, SHA restricts the installation of locks on unit doors and restricts the use of certain adhesives and the weight of items residents can hang on unit interior walls. CP at 202, 204. Rule violations are treated as violations of the lease. The lease agreement does not specifically state whether residents’ doors are included in the property leased to residents or not. Br. of SHA at 12.

¶4 SHA considered issuing a rule limiting the amount and type of material that could be posted on unit doors. CP at 172-75. The record indicates that residents'have posted “signs,” including artistic images, flags, and political messages. CP at 210-16. -SHA claims that swastikas and nude images have appeared on residents’ doors. SHA rejected the idea of a limited regulation as likely ineffective in reducing SHA’s management burden and costs and resident disagreements. Br. of SHA at 9-10.

¶5 Instead, SHA issued house rule number 42 (the rule), at issue in this case. The rule bans all signs, flyers, placards, advertisements, “or similar material” from exterior walls, interior common area walls and doors, and the surface of unit doors that face the hall or outside. CP at 162. The rule does not address the posting of materials inside resident units, and it permits postings in designated areas with prior written approval.

¶6 The rule refers to SHA’s desire that its buildings be indistinguishable from other neighborhood buildings. The rule states that indiscriminate posting created “a negative appearance which detrimentally affects residents of the building, residents of the surrounding community, and the public generally.” In its briefing, SHA expands on this explanation, stating that some displays had been creating hostility among residents, which SHA managers were called upon to mediate. It also claims that it incurs significant costs in refinishing doors damaged by postings. Br. of SHA at 9.

f 7 The RAC, a nonprofit organization composed of elected tenant representatives from LIPH communities, sued after SHA refused to withdraw or modify the rule. RA.C claimed that the rule violated residents’ rights of free speech guaranteed by the United States and Washington Constitutions. CP at 1-12. RAC moved for summary judgment, seeking an order declaring the rule unconstitutional and enjoining SHA from enforcing it. CP at 139.

¶8 The superior court found that the signs and materials posted on exterior surfaces of residential doors are “residential signs” and hence constitutionally-protected speech under the First Amendment to the United States Constitution and entitled to heightened judicial scrutiny, applying the reasoning of City of Ladue v. Gilleo, 512 U.S. 43, 114 S. Ct. 2038, 129 L. Ed. 2d 36 (1994). The superior court found that residents could, but did not, cede their control over exterior surfaces of unit doors to SHA or designate those surfaces as “common areas.” Finally, the superior court held that the SHA’s cited interests were not sufficiently compelling to justify the regulation. The superior court permanently enjoined SHA from enforcing the rule in any way that infringed on tenants’ rights to use their doors for expressive purposes. CP at 222-25. We accepted certification from the Court of Appeals.

ANALYSIS

¶9 The superior court found for RAC on RAC’s motion for summary judgment and enjoined enforcement of the rule. We review issues of law involving a constitutional challenge de novo, and the State bears the burden of justifying a restriction on speech. Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 114, 937 P.2d 154, 943 P.2d 1358 (1997).

¶10 The first issue we need to decide is, under the facts of this case, who has “control” or “ownership” of the exterior of the door. This determination is critical to deciding what analysis to apply. If SHA retains “ownership” of the door, SHA argues this would mean that a nonpublic forum analysis would apply, under which limitations on expressive conduct are reviewed more leniently. RAC argues that the doors are included in the leased premises and, as such, become the property of the tenant during the term of the lease. Under its argument, a government ban on all residential signs constitutes a violation of the First Amendment.

¶11 Generally, a lease is a conveyance of a limited estate for a limited term with conditions attached. Under Washington law, as a general rule, areas that are necessary to a tenant’s use of the premises, and are for the exclusive use of the tenant and tenant’s invitees, pass as an appurtenant to the leased premises though not specifically mentioned or described therein. Andrews v. McCutcheon, 17 Wn.2d 340, 344-45, 135 P.2d 459 (1943).

¶12 The issue in McCutcheon was whether McCutcheon, the landlord, had a duty to maintain a stairway. Patrons of the salon above McCutcheon’s store had to walk through McCutcheon’s store and then use an outside stairway at the store’s rear to reach the salon. A salon patron, Andrews, was injured descending the stairway. McCutcheon argued that he had no duty to maintain the stairs. He contended that when he leased the balcony above his store, the stairway also passed as an appurtenant thereto.

¶13 The court stated that a basic right of ingress and egress through McCutcheon’s store would assumptively be covered by the lease. The salon owner’s exclusive use of the stairway, in contrast, entailed a greater right of control than that resulting from the tenants’ and customers’ need to pass through the store:

It is a general rule of law that, when premises are leased, a stairway necessary to be used with them, and which is intended shall be for the exclusive use of the tenant and his invitees, passes as an appurtenant to the leased premises and is covered by the lease, though not specifically mentioned or described therein; but, when premises are leased to several tenants and it is necessary, in the enjoyment thereof, that they use a common stairway and no mention is made of it when the lease is made, it is not deemed to be appurtenant to the leased premises and covered by the lease, but the tenants and their invitees have the right to use the same as a means of access to the leased property.

McCutcheon, 17 Wn.2d at 344-45. Under this rule, because the stairway was used exclusively by the tenant and his invitees, the salon owner would receive more than a mere right to use the stairway for access.

¶14 McCutcheon involved control over a stairway, but its reasoning applies with equal force here. A tenant’s authority over his or her unit door is greater than that necessary for mere ingress or egress. When a door is necessary to a tenant’s use of the premises, and is for the exclusive use of the tenant and the tenant’s invitees, it passes as an appurtenant to the leased premises and is part of the leased premises. Put simply, the door that opens to the tenancy passes to the tenant unless the lease provides otherwise.

f 15 This same reasoning would apply if the leased premises involved a single family residence. The general rule is that the tenant receives the right to possess and use the house, the yard, and everything else necessary to the use of the leased premises. An apartment lease operates on the same principle as does a lease of a single family residence.

¶16 SHA argues that the “general rule” stated in McCutcheon should not apply here because SHA retained control over the doors. In McCutcheon the plaintiff argued that McCutcheon was liable, notwithstanding the general rule, because through McCutcheon’s actions he expressly and impliedly indicated intent to retain control over the stairway. The court agreed; rather than passing as appurtenant to the leased premises, the court found that Mc-Cutcheon retained ownership and control over the stairs.

¶17 The facts here do not establish a reservation of control. Unlike SHA hallways and other such common areas, other tenants and the general public have no right of access to the outer surface of unit doors. Cf. de la O v. Hous. Auth., 417 F.3d 495 (5th Cir. 2005) (finding the common areas of public housing facilities are public property and nonpublic forums). Nor does a landlord’s control over a hallway, in itself, signal the landlord’s intent to reserve control over an adjoining surface that is not common. It is not significant to this inquiry that the door, when closed, serves as part of the hallway. To the extent that a resident’s use of his or her door does not interfere with use of the common area, the landlord’s control over the common area does not imply a reservation of control over the adjacent door.

¶18 Nor would SHA impliedly retain control despite its responsibility for repair and replacement and liability for defective doors. Br. of SHA at 13-14. SHA has a duty to maintain doors under the Residential Landlord-Tenant Act of 1973 and local codes. See RCW 59.18.060; Seattle Municipal Code 22.206.120, .140. SHA has a duty to maintain that is a function of statutory responsibilities, so maintenance is not tantamount to asserting a right of control. For these reasons, we find that SHA residents have, and retained, control and dominion over the outer surfaces of their doors.

¶19 In light of tenant control over their respective unit doors, RAC argues that Gilleo is directly on point. We agree with the tenants that the analysis in Gilleo controls the issue presented here.

¶20 In Gilleo, Margaret Gilleo sued the city of Ladue, alleging that Ladue’s sign ordinance violated her First Amendment rights. That ordinance barred Ladue residents, like Gilleo, from erecting a wide variety of signs on their property “ ‘wherever placed out of doors in view of the general public or ... as a window sign.’ ” 512 U.S. at 46 n.5 (quoting App. to Pet. for Cert, at 39a). The ordinance exempted, among others, for sale signs and on-site commercial and organizational signs.

¶21 The United States Supreme Court stated that a prohibition is not always invalid merely because it applies to a sizeable category of speech. For example, a ban on signs on public property poses a lesser threat to the ability to communicate effectively because the category of speech banned is not a uniquely valuable or important mode of communication. In contrast, residential signs are a means of communication that is “venerable . . . unique and important.” 512 U.S. at 54. Residential signs “reflect and animate change in the life of a community.” 512 U.S. at 54.

¶22 The Court cited unique facets of this medium. The medium is inexpensive and convenient. Residential signs reach neighbors, an audience “that could not be reached nearly as well by other means.” 512 U.S. at 57. Further, residential signs have great value derived from their clear association with an identified speaker. “Displaying a sign from one’s own residence often carries a message quite distinct from placing the same sign someplace else____”512 U.S. at 56. In addition, the Court referred to the special respect for individual liberty in the home, a “principle [that] has special resonance when the government seeks to constrain a person’s ability to speak there.” 512 U.S. at 58. In response to the argument that the ordinance was merely a time, place, or manner restriction, the Court again emphasized the unique medium in question. It said it was not persuaded that adequate substitutes exist. The Court concluded that the provision prohibited “too much” speech. 512 U.S. at 50-51.

¶23 Like the ordinance in Gilleo, the SHA rule bans too much speech. The signs in this case may reflect reactions to local events or signal support or opposition to political candidates or laws. They do so in a manner that is inexpensive. Of particular importance here, the signs are unique because “[d]isplaying a sign from one’s own residence carries a message quite distinct from placing the same sign someplace else” or by other means. 512 U.S. at 56. The identity of the resident is an “important component” of this means of communication. 512 U.S. at 56.

¶24 SHA has failed to meet its burden of justifying a restriction on speech. In reaching this conclusion, we consider first SHA’s asserted interest in avoiding the cost of refinishing doors damaged by residents’ signs. CP at 199. SHA already restricts the installation of locks on unit doors and limits the weight of items residents can hang on interior walls. CP at 202, 204. SHA could impose restrictions that would prevent damage to its doors by requiring the use of nondamaging materials. A total ban on signs is unnecessary to support the claimed interest.

¶25 Regarding SHA’s asserted interest in reducing clutter, “while aesthetic interests are legitimate goals, they require careful scrutiny when weighed against free speech interests because their subjective nature creates a high risk of impermissible speech restrictions.” Collier v. City of Tacoma, 121 Wn.2d 737, 752, 854 P.2d 1046 (1993) (finding Tacoma’s interests in aesthetics and traffic safety sufficient to justify reasonable content-neutral regulation of noncommunicative aspects like size and spacing).

¶26 Aesthetic concerns may merit some type of regulation here. SHA residents do not own their living spaces, and some residents may act based on what they feel is a reduced incentive to maintain property values. Cf. Gilleo, 512 U.S. at 58 (Ladue residents had a strong incentive to keep their own property values up and to prevent visual clutter, “incentives markedly different from those of persons who erect signs on others’ land.”). However, “more temperate measures,” Gilleo, 512 U.S. at 58, are available to SHA in addressing this interest, including some limit on noncommunicative aspects of the signs. The same is true of SHA’s interest in avoiding conflict between residents. While a ban is an inexpensive solution, other measures could achieve this interest without foreclosing the medium altogether. We find that SHA has not met its burden of justifying the restriction on speech.

¶27 An obvious purpose of the unit doors is to permit egress and ingress. However, that purpose is neither incompatible with expressive activity nor the sole purpose of this property. LIPH buildings provide a community for SHA residents, with all that that entails. Here, each unit door passed as appurtenant to the leased premises. In the eyes and minds of tenants and the public, the outer surface of the door represents the outer boundary of the tenants’ homes. A ban on signs placed there is subject to the same scrutiny applied to the ordinance in Gilleo. Cf. Spence v. Washington, 418 U.S. 405, 408, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974) (statute forbidding the attachment of symbols to United States flag unconstitutional as applied; among “important” factors was that display occurred on private property).

¶28 It does not matter that SHA tenants lease and do not own the unit. Gilleo makes no distinctions between privately-owned residences and publicly-owned surfaces leased as part of a residence to a private tenant. A sign placed on a unit door by the resident under these circumstances is a residential sign. We find Gilleo’s analysis persuasive and conclude that the rule violates the First Amendment rights of LIPH tenants. We affirm the decision of the trial court.

Alexander, C.J.; Sanders and Owens, JJ.; and Bridgewater, J. Pro Tem., concur.

1 Under article I, section 5 of the Washington Constitution, “[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” Under the First Amendment to the United States Constitution, “Congress shall make no law ... abridging the freedom of speech, or of the press.” Neither party makes independent arguments based on the state constitution.