American Hotel & Lodging Association, Apps. v. City Of Seattle, Res. ( 2018 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
AMERICAN HOTEL & LODGING No. 77918-4-1
ASSOCIATION, SEATTLE HOTEL cf)CD
ASSOCIATION, and WASHINGTON DIVISION ONE
HOSPITALITY ASSOCIATION, rfl
PUBLISHED OPINION rn
Appellants, .F
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CITY OF SEATTLE, UNITE HERE!
LOCAL 8, and SEATTLE PROTECTS
WOMEN,
Respondents. FILED: December 24, 2018
ANDRUS, J. — In November 2016, the citizens of Seattle voted to adopt
Initiative 124 (1-124), now codified at Seattle Municipal Code ch.14.25. Three hotel
associations challenge the initiative as a violation of the "single subject" rule of
RCW 35A.12.130 and article IV, section 7 of the Seattle City Charter. We conclude
the ordinance contains provisions not germane one to another and, therefore,
violates the single subject rule. We reverse.
FACTS
On November 8, 2016, Seattle voters approved 1-124. The ballot title for
this initiative read as follows:
Initiative 124 concerns health, safety and labor standards for Seattle
hotel employees.
No. 77918-4-1/2
If passed, this initiative would require certain sized hotel-employers
to further protect employees against assault, sexual harassment,
and injury by retaining lists of accused guests among other
measures; improve access to healthcare; limit workloads; and
provide limited job security for employees upon hotel ownership
transfer. Requirements except assault protections are waivable
through collective bargaining. The City may investigate violations.
Persons claiming injury are protected from retaliation and may sue
hotel-employers. Penalties go to City enforcement, affected
employees, and the complainant.
Should this measure be enacted into law?
Yes
No
The initiative passed with 76.59 percent of the vote. The City certified the results
on November 29, 2016, and the initiative went into effect the following day.1
The initiative has seven parts. Part 1 is intended to protect hotel employees
from violent assault and sexual harassment by guests. SMC 14.25.020. If a hotel
employee is assigned to work in a guest room without other employees present,
the employer must provide that employee with a panic button to use in an
emergency. SMC 14.25.030. Hotel employers must maintain a list of names of
any guest accused of assaulting, sexually assaulting, or sexually harassing hotel
employees. SMC 14.25.040(A). Any guest accused of such misconduct must
remain on the list for five years, and hotel employers must notify other employees
assigned to an accused guest's room and warn them to exercise caution when
entering that room. SMC 14.25.040(A), (C). If an accusation is supported by a
1 The ordinance authorized and directed the Office of Labor Standards to promulgate rules
consistent with the new chapter. SMC 14.25.150(D)(2). The rules became effective in July 2018.
SHRR 150-010 to -300.
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No. 77918-4-1/3
sworn statement "or other evidence,"2 the hotel employer must bar the guest from
the hotel for three years. SMC 14.25.040(B). Part 1 also requires hotel employers
to post signs notifying guests of the protections afforded by 1-124. SMC 14.25.050.
Lastly, Part 1 provides that after an employee accuses a guest of sexual assault
or harassment, a hotel employer must reassign the employee to a different work
area upon request, provide paid time off to allow the employee to contact the
police, a counselor, or an advisor, and, with the employee's consent, report any
accusations of criminal conduct by guests to law enforcement. SMC 14.25.060.
Part 2 seeks to protect hotel workers from on-the-job injury. SMC
14.25.070. SMC 14.25.080 requires hotel employers to provide and use safety
devices and safeguards, as well as "use work practices, methods, processes, and
means"that are "reasonably adequate to make their workplaces safe." Under rules
adopted by the Seattle Office of Labor Standards in July 2018, the workplace
safety requirements of SMC 14.25.080 "must at least meet those outlined by the
Washington Industrial Safety and Health Act" (W1SHA), RCW ch. 49.17 and its
administrative regulations. SHRR 150-070.
SMC 14.25.090 requires hotel employers to protect their employees from
exposure to hazardous chemicals by controlling chemical agents, protecting
employees from having contact with or being exposed to chemical agents, and
providing employees with information on hazardous chemicals in their work areas.3
2 "Other evidence" is not defined in the ordinance. SHRR 150-050(3) defines "other evidence" as
"evidence other than statements of the victim, witnesses, or other persons, that tends to support
an accusation of assault, sexual assault, or sexual harassment against a guest," including "physical
evidence, audio and video recordings or photographs of events, occurrences, injuries, incident
scenes, or other similar evidence."
3 SHRR 150-080 provides that employers "must use methods of controlling chemical agents that
at least meet the minimum requirements" of WISHA and its administrative regulations. SHRR 150-
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No. 77918-4-1/4
SMC 14.25.100 prohibits "large hotels," defined as hotels with 100 or more
guest rooms,4 from requiring housekeepers to clean more than 5,000 square feet
of floor space in an eight-hour workday unless the hotel pays the worker time and
a half. Under administrative regulation, an employee has a right to refuse the
employer's request to clean more than the maximum square footage allowed in
the ordinance. SHRR 150-140.
Part 3 is intended to improve access to medical care for hotel employees.
SMC 14.25.110. Under SMC 14.25.120, "large hotel" employers must provide
healthcare subsidies to low-wage employees or provide health care coverage
equal to at least a gold-level policy on the Washington Health Care Benefit
Exchange.
Part 4 provides job security to hotel workers by requiring hotels undergoing
a change in ownership or control to maintain a list of employees, based on
seniority. SMC 14.25.130. The new hotel owner must hire its employees from this
list for six months and retain employees hired from this list for at least 90 days,
unless there is good cause for termination. SMC 14.25.140.
Part 5 is entitled "Enforcement." SMC 14.25.150(A) makes it a violation for
any hotel employer to interfere with any right protected by the ordinance or to
discharge any employee exercising rights under the ordinance. If an employer
takes an adverse action within 90 days of that employee's exercise of rights under
the ordinance, there is a rebuttable presumption of retaliation. SMC
090 similarly incorporates by reference the WISHA requirements for protecting employees from the
hazard of contact with or exposure to chemical agents.
4 SMC 14.25.160.
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No. 77918-4-1/5
14.25.150(A)(5). Part 5 also prohibits hotel employers from threatening to report
an employee's suspected citizenship or immigration status. SMC 14.25.150(A)(4).
SMC 14.25.150(B) mandates that hotel employers give written notification to each
employee of their rights under the ordinance in each language spoken by 10 or
more employees.
SMC 14.25.150(C) creates a "private enforcement action." It provides that
"any person claiming injury" from a violation of any part of the ordinance is entitled
to bring a lawsuit in King County Superior Court or in any other court of competent
jurisdiction to enforce its provisions. SMC 14.25.150(C)(1). The claimant "shall
be entitled to all remedies available at law or in equity" and may seek "lost
compensation and other damages, reinstatement, declaratory or injunctive relief,
prejudgment interest, exemplary damages equal to the amount of wages
wrongfully withheld or not paid" and to collect penalties described elsewhere in the
ordinance. SMC 14.25.150(C)(1). A prevailing claimant is also entitled to an
award of attorney fees and expenses. SMC 14.25.150(C)(2).
SMC 14.25.150(D) empowers the City's Office of Civil Rights to investigate
alleged violations of the ordinance. It also authorizes the Division Director of the
Office of Labor Standards within the Office of Civil Rights to promulgate rules "that
protect the identity and privacy rights of employees who have made complaints"
under the ordinance. SMC 14.25.156(D)(2).
SMC 14.25.150(E) sets out penalties a court may impose for ordinance
violations. For each workday during which the employer is in violation, a court may
impose a penalty of between $100 and $1,000 per day. SMC 14.25.150(E)(1). If
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No. 77918-4-1/6
civil penalties are imposed, they must be distributed per the following formula: 50
percent to the Office of Labor Standards, 25 percent to "aggrieved employees,"
and 25 percent to the "person bringing the case." SMC 14.25.150(E)(2).
Part 6 defines key terms used in the ordinance. It does not define sexual
assault or sexual harassment.
Part 7, entitled "Miscellaneous," includes a severability provision, SMC
14.25.180, and a provision prohibiting the waiver by agreement of the rights set
out in the ordinance, unless contained in a collective bargaining agreement, SMC
14.25.170. SMC 14.25.170(B) provides that the provisions protecting employees
from assault and sexual harassment and mandating hotels maintain lists of
accused guests are not waivable.
The American Hotel & Lodging Association, the Seattle Hotel Association,
and the Washington Hospitality Association (the Associations) brought suit to
challenge 1-124. The City of Seattle, and two intervening organizations, UNITE
HERE! Local 8 and Seattle Protects Women (the Intervenors), defended the
validity of the initiative. On cross-motions for summary judgment, the superior
court upheld the validity of 1-124. The Associations appeal.
ANALYSIS
The Associations argue the initiative violates the single subject rule of RCW
35A.12.130, article IV, section 7 of the Seattle City Charter, and article II,
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No. 77918-4-1/7
section 19 of the Washington State Constitution.5 The City and Intervenors argue
the provisions of 1-124 encompass only one subject—employee health, safety, and
welfare—and the initiative is thus valid.
Article II, section 19 of the Washington State Constitution provides that "[n]o
bill shall embrace more than one subject, and that shall be expressed in the title."
This constitutional provision does not apply to 1-124 because article II, section 19,
by its express terms, applies only to state legislation. Carlson v. San Juan County,
183 Wn. App. 354, 376-77, 333 P.3d 511 (2014). But RCW 35A.12.130 also
requires city ordinances to contain only a single subject, and the Seattle City
Charter, article IV, section 7, similarly provides that every ordinance "shall contain
but one subject."
Article XI, section 11 of the Washington Constitution provides that no city
may enact any law that conflicts with state general law. An ordinance is
inconsistent with article XI, section 11 if it (a) prohibits what state law permits;
(b) thwarts the legislative purpose of a statutory scheme; or (c) exercises power
that the statutory scheme does not confer on local governments. Emerald Enters,
LLC v. Clark County, 2 Wn. App. 2d 794, 803-04, 413 P.3d 92, review denied, 190
Wn.2d 1030, 421 P.3d 445 (2018). If 1-124 violates the single subject mandate of
RCW 35A.12.130, it would violate article XI, section 11 because it would constitute
an exercise of power that the statute does not permit. See Dep't of Ecology v.
5 The Associations also challenge Part 1 as a violation of the privacy and due process rights of its
members' guests, and Part 2 as preempted by WISHA. Because we resolve this appeal on the
single subject rule challenge, we need not reach the other issues.
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No. 77918-4-1/8
Wahkiakum County, 184 Wn. App. 372, 377, 337 P.3d 364(2014)(ordinance that
conflicts with state general law is unconstitutional under article XI, section 11).
Initiatives are presumed to be constitutional. Amalgamated Transit Union
Local 587 v. State, 142 Wn.2d 183, 204-05, 11 P.3d 762 (2000)(Amalgamated
Transit); see also Citizens for Responsible Wildlife Mqmt. v. State, 149 Wn.2d 622,
631, 71 P.3d 644 (2003) (Citizens) (confirming that initiatives receive the same
level of scrutiny as legislatively enacted bills). The party challenging an ordinance
has the burden of demonstrating its unconstitutionality. Emerald Enters., 2 Wn.
App. 2d at 804.
Although article II, section 19 does not directly apply, case law interpreting
the constitutional single subject rule is relevant because the Washington Supreme
Court has relied on this case law when evaluating whether a city ordinance violates
RCW 35A.12.130. Fibo Foods, LLC v. City of SeaTac, 183 Wn.2d 770, 781-82,
357 P.3d 1040 (2015). We review de novo the trial court's grant of summary
judgment under the statutory single subject rule. Id. at 781.
Washington case law recognizes the single subject rule has three general
purposes. Robert D. Cooter & Michael D. Gilbert, A Theory of Direct Democracy
and the Single Subiect Rule, 110 Colum. L. Rev. 687, 705-06 (2010)(Cooter &
Gilbert). The first purpose is to prevent "logrolling." Wash. Ass'n for Substance
Abuse & Violence Prevention v. State, 174 Wn.2d 642, 655, 278 P.3d 632(2012)
(WASAVP); Amalgamated Transit, 142 Wn.2d at 207. Logrolling is combining
multiple measures, none of which would pass on its own, into an omnibus
proposition that receives majority support. Cooter & Gilbert, at 706.
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No. 77918-4-1/9
A second goal is to prevent "riding," or pushing through unpopular
legislation by attaching it to popular or necessary legislation. Wash. Ass'n of
Neighborhood Stores v. State, 149 Wn.2d 359, 368, 70 P.3d 920 (2003),
abrogated on other grounds by Fibo Foods, 183 Wn.2d 770; see also Michael D.
Gilbert, Does Law Matter? Theory and Evidence from Single-Subiect Adiudication,
40 J. Legal Studies 333, 338 (2011). The single subject rule was written into the
Washington Constitution to address the "riding" problem:
[T]here had crept into our system of legislation a practice of
engrafting upon measures of great public importance foreign matters
for local or selfish purposes, and the members of the Legislature
were often constrained to vote for such foreign provisions to avoid
jeopardizing the main subject or to secure new strength for it,
whereas if these provisions had been offered as independent
measures they would not have received such support.
Lee v. State, 185 Wn.2d 608, 620, 374 P.3d 157 (2016) (quoting State ex rel.
Wash. Toll Bridge Auth. v. YeIle, 54 Wn.2d 545, 550-51, 342 P.2d 588 (1959)).
The rule's third purpose is to simplify the process and improve political
transparency. Lee at 620; State v. Broadawav, 133 Wn.2d 118, 124,942 P.2d 363(1997)(policy underlying single subject rule is to provide notice to public of what
is contained in proposed legislation). "In theory, limiting initiatives and referenda
to a single subject makes it easier for citizens to understand and scrutinize their
contents." Cooter & Gilbert, at 709.
Only where there exists a rational relationship between the provisions of the
initiative and with the initiative's subject"can we be certain voters were not required
to vote for an unrelated subject of which the voters disapproved in order to pass a
law pertaining to a subject of which the voters were committed." City of Burien v.
Kiga, 144 Wn.2d 819, 826, 31 P.3d 659 (2001). When an initiative embodies two
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No. 77918-4-1/10
unrelated subjects, "it is impossible for the court to assess whether either subject
would have received majority support if voted on separately." Id. at 825. An
initiative embodying two unrelated subjects is, thus, void in its entirety. Lee, 185
Wn.2d at 620.
To determine whether an initiative violates the single subject rule, we first
look to the ballot title6 to determine whether it is general or restrictive because the
type of title determines the analysis we undertake. Amalgamated Transit, 142
Wn.2d at 207-10. If the ballot title is general in nature, we look to the body of the
initiative to determine whether "rational unity" exists among the matters addressed
in the initiative. Kiga, 144 Wn.2d at 826. The existence of rational unity is
determined by whether the matters are "germane" to the general title and to one
another. Id. While rational unity must exist among all matters included within the
measure and with the general topic expressed in the title, an initiative can embrace
several "incidental" subjects or subdivisions "so long as they are related." Id. If,
however, the ballot title is restrictive, the provisions of the initiative must all fall
"fairly within" the restrictive language. YeIle, 32 Wn.2d at 26.
The parties disagree whether I-124's ballot title is general or restrictive. If a
ballot title suggests a general, overarching subject matter, it will be considered
general. Fibo Foods, 183 Wn.2d at 782. A ballot title is restrictive when "a particular
part or branch of a subject is carved out and selected as the subject of the
legislation." Id. at 783. The Supreme Court's analysis in Fibo Foods is dispositive
6The ballot title includes the statement of the subject of the measure, the description of the
measure, and the question of whether or not the measure should be enacted into law. WASAVP,
174 Wn.2d at 655.
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No. 77918-4-1/11
on this question. In that case, the court considered the ballot title to SeaTac's
Proposition 1 which read:
Proposition No. 1 concerns labor standards for certain employers.
This Ordinance requires certain hospitality and transportation
employers to pay specified employees a $15.00 hourly minimum
wage, adjusted annually for inflation, and pay sick and safe time of 1
hour per 40 hours worked. Tips shall be retained by workers who
performed the services. Employers must offer additional hours to
existing part-time employees before hiring from the outside. SeaTac
must establish auditing procedures to monitor and ensure
compliance. Other labor standards are established.
Should this Ordinance be enacted into law?
Id. The court concluded this title was general because it "generally concerns labor
standards for certain employers." Id. at 784.
The Associations argue that the ballot title in 1-124 is distinguishable and
more restrictive than Fibo Foods because it carves out for regulation the narrow
topic of protecting hotel employees from sexual assault and harassment by
requiring hotels to keep a list of accused guests. We agree this part of I-124's
ballot title is restrictive. The language about protecting employees "against
assault, sexual harassment, and injury by retaining lists of accused guests" does
carve out for regulation a specific risk hotel workers confront. But the balance of
the title broadens its scope to cover more general working conditions—"improv[ing]
access to healthcare; limit[ing] workloads; and provid[ing] limited job security." In
Amalgamated Transit, the Supreme Court held that a ballot title containing some
restrictive language may, nevertheless, be categorized as a general title when the
overall tenor of the ballot title is general in nature. 142 Wn.2d at 216-17. We
conclude, under Fibo Foods, I-1 24's ballot title is general.
No. 77918-4-1/12
While Fibo Foods governs our conclusion as to the nature of the ballot title,
it does not lead us to conclude that 1-124 passes the rational unity test. The City
and Intervenors argue the provisions of 1-124 all share the related purpose of
ensuring employee health, safety, and welfare, and the initiative is analogous to
Fibo Foods. But Proposition 1, at issue in Fibo Foods, is distinguishable from 1-124
in several material ways. Fibo Foods' Proposition 1 set out minimum employment
standards for certain hospitality and transportation employers in the city of SeaTac.
183 Wn.2d at 778. The Supreme Court concluded that Proposition l's hourly
minimum wage, paid sick leave, tip retention, and 90-day worker retention
provisions all had the related purpose of establishing "minimum employee benefits,
including job security." jçj. at 785.
Unlike Fibo Foods, 1-124, by its own language, identifies at least four distinct
and separate purposes. Part 1 is intended to protect certain hotel employees from
violent assault and sexual harassment. SMC 14.25.020. Part 2 is intended to
protect hotel employees from on-the-job injuries arising out of heavy lifting,
repetitive tasks, and chemical exposure. SMC 14.25.070. Part 3 is intended to
improve hotel workers' access to affordable medical care. SMC 14.25.110. And
Part 4 is intended to provide job security to low income hotel workers when there
is a change in hotel ownership. SMC 14.25.130.
The City and Intervenors, relying on language from Amalgamated Transit,
argue each of these parts "will, or may, facilitate" the stated purpose of improving
the health, safety, and working conditions of employees at certain hotels. 142
Wn.2d at 209. Whether a provision may facilitate the initiative's purpose is but one
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No. 77918-4-1/13
part of a two-part test. While the initiative's various parts may be germane to the
general topic of employee health, safety, and working standards, rational unity
requires that matters within the body of the initiative be germane not only to the
general title, but also to one another. WASAVP, 174 Wn.2d at 656.
Each of I-124's provisions is arguably related to the ballot title because each
"may facilitate" the "health, safety and labor conditions" of certain hotel workers.
But the purposes of the operative provisions in Parts 1 through 4 are completely
unrelated. Where Fibo Foods had one single purpose, 1-124 has four, each of which
sets out very different and distinct public policies.
The initiative is, thus, more analogous to Amalgamated Transit, Kiga, and
Lee, than to Fibo Foods. In Amalgamated Transit, the ballot title for 1-695 stated,
"Shall voter approval be required for any tax increase, license tab fees be $30 per
year for motor vehicles, and existing vehicle taxes be repealed?" 142 Wn.2d at
212. Although the Supreme Court held the ballot title was a general one, it found
no rational unity between the subjects of 1-695 because the provisions setting
license tab fees at $30 and those providing a continuing method to approve all
future tax increases had two unrelated purposes. Id.In Kiga, the ballot title to 1-722 stated, "Shall certain 1999 tax and fee
increases be nullified, vehicles exempted from property taxes, and property tax
increases (except new construction) limited to 2% annually?" 144 Wn.2d at 825.
The Court held that while the tax nullification provision and the property tax
assessment provisions were related to the general topic of tax relief, those subjects
were not germane to each other. Id. at 827. It reasoned that "[t]he nullification
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No. 77918-4-1/14
and onetime refund of various 1999 tax increases and monetary charges [was]
unnecessary and entirely unrelated to permanent, systemic changes in property
tax assessments." Id.Finally, in Lee, the Supreme Court invalidated 1-1366, an initiative that
imposed a one-time reduction in sales taxes if the legislature failed to pass a
constitutional amendment requiring a two-thirds vote of the legislature to enact any
new taxes. 185 Wn.2d at 613. Specifically, it saw
no substantive difference between the one-time tax reduction
coupled with a permanent change to the way all taxes are levied or
assessed in Amalgamated !Transit' and Kiga, which violated the
single-subject rule, and the reduction of the current sales tax rate and
a permanent change to the constitution or to the method for
approving all future taxes and fees set forth by [the initiative].
Id. at 622-23. It held that even if the subjects were related to the general topic of
fiscal restraint or taxes, they were not germane to each other. Id. at 623; see also
Barde v. State, 90 Wn.2d 470,472, 584 P.2d 390(1978)(no rational unity between
criminal sanctions for dognapping and attorney fees in a civil action, even if both
were germane to the general topic of taking or withholding property); Wash. Toll
Bridge Auth. v. State, 49 Wn.2d 520, 523-24, 304 P.2d 676 (1956) (finding no
rational unity where general initiative title—toll roads—contained two unrelated
purposes). Accordingly, the court held in Lee that the initiative violated the single
subject rule and was void in its entirety. 185 Wn.2d at 629.
1-124 is analogous to Lee's 1-1366 because requiring hotels to maintain a
list of people who have been accused of sexually harassing hotel employees is
unrelated to limiting the number of square feet a hotel worker can be required to
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No. 77918-4-1/15
clean in an eight-hour period without being paid overtime, or requiring a hotel to
create a seniority list from which a new owner must hire employees for a period of
time after a change in ownership. Part 1 of the initiative does not have, as its
purpose, the same purpose as Part 2, 3, or 4. The unrelated purposes of the
provisions of 1-124 undermines any claim of rational unity.
Even assuming Part l's guest registry requirements and Part 2's hazardous
chemicals restrictions are related to the same goal of reducing on-the-job injuries,
it is difficult to see how the guest registry provision is germane to providing hotel
workers with employment security for a set period of time after a hotel changes
ownership. In Fibo Foods, the Supreme Court found rational unity between a
similar 90-day employee retention provision and the minimum wage provisions of
Proposition 1 because both provisions related to maintaining job security. 183
Wn.2d at 785. But protecting some employees from a guest's sexual assault or
harassment has a different purpose than ensuring that all hotel employees
maintain their jobs when a hotel changes ownership.
Moreover, none of the first four parts of 1-124 are necessary to implement
any other part of the initiative. Although "[a]n analysis of whether the incidental
subjects are germane to one another does not necessitate a conclusion that they
are necessary to implement each other, . . . that may be one way to do so."
Citizens, 149 Wn.2d at 638. In WASAVP,the Supreme Court affirmed an initiative
privatizing liquor sales despite the inclusion of an earmark offunds for public safety
because the earmark provision was "necessary to implement" the statute. 174
Wn.2d at 656; see also Lee, 185 Wn.2d at 623(discussing WASAVP). No similar
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connection, however, exists between the first four sections of 1-124. Part l's
sexual harassment provisions are not necessary to implement Part 2's hazardous
chemical restrictions, or vice versa. Similarly, Part 3's requirements for medical
insurance subsidies are not necessary to implement Part l's sexual harassment
protections, or vice versa. And Parts 1, 2, and 3 are not necessary to implement
Part 4's seniority list and job security provisions.
Part 5 is the only provision that could fit into a "necessary to implement"
category. Part 5 sets up a unique enforcement system by creating a new cause
of action for injured hotel employees to sue employers for damages and to recover
attorney fees. SMC 14.25.150(C). Part 5 also authorizes the City's Office of Civil
Rights to investigate alleged violations, SMC 14.25.150(D), and it purports to
empower a superior court to impose civil penalties for violations, SMC
14.25.150(E). Part 5 also contains a provision prohibiting hotel employers from
threatening to reveal the citizenship or immigration status of an employee or an
employee's family member. SMC 14.25.150(A)(4)(b).
While Part 5 is arguably germane to the first four parts of the initiative, it
does not make Parts 1 through 4 germane to each other. And Part 5 itself conflicts
with key provisions of Washington's workers' compensation system by creating a
private cause of action that does not now exist under Washington law. RCW
51.04.010 abolished all jurisdiction of the courts to hear worker injury cases. The
Industrial Insurance Act represents a "grand compromise" between industry and
labor to remove workplace injuries from the court system and to provide injured
workers with a swift, no-fault compensation system for on-the-job injuries. Birklid
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v. Boeing Co., 127 Wn.2d 853, 859, 904 P.2d 278 (1995). Even if the City can
lawfully enact worker safety provisions that are stricter than those imposed by the
Department of Labor & Industries, the City does not explain how an ordinance can
confer subject matter jurisdiction on a state court to resolve work-related injury
claims when, by statute, the legislature abolished that very jurisdiction over a
century ago. See Laws of 1911, ch. 74, § 1 (enacting RCW 51.04.010). The
private cause of action provision appears to be a classic example of logrolling
prohibited by RCW 35A.12.130.
Intervenors argue that 1-124 should be affirmed because there is a long
history in Washington of legislatively addressing labor conditions in a single piece
of legislation. In WASAVP,the Supreme Court relied on a well-established history
of legislative appropriations of revenue under the Liquor Act7 to demonstrate the
relatedness of I-1183's liquor privatization provisions and the earmark for law
enforcement funding. 174 Wn.2d at 657. Intervenors cite the Industrial Welfare
Act (IWA) as proof of a similar history of legislating employee protections at the
same time. This argument, however, does not pass scrutiny.
The IWA, originally passed in 1913, mandated the payment of minimum
wages for women and made it unlawful to employ women or minors in any job that
was "detrimental to their health or morals." Laws of 1913, ch. 174, §§ 1-2. The
IWA is now codified in RCW ch. 49.12. But the IWA expressly excludes "conditions
of labor otherwise governed by statutes and rules and regulations relating to
industrial safety and health" administered by the Department of Labor & Industries.
7 Title 66 RCW.
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No. 77918-4-1/18
RCW 49.12.005(5). Industrial safety and health has historically been addressed
in separate legislation—the Industrial Insurance Act, Title 51 RCW—not in the
IWA. Indeed, employees assaulted on the job may not generally sue their
employers for injuries and are limited to filing a claim under the Industrial Insurance
Act. Brame v. W. State Hosp., 136 Wn. App. 740, 749, 150 P.3d 637 (2007).
Contrary to the Intervenors argument, the legislature has not combined minimum
wage and worker safety requirements in the same legislation for decades.
Additionally, the legislature has enacted laws to protect employees from
sexual harassment on the job under the Washington Law Against Discrimination,
RCW 49.60.180. But it has passed separate legislation to entitle an employee to
overtime—the Washington Minimum Wage Act, RCW ch. 49.46. There is no
history of legislatively combining sexual harassment protections with minimum
wage requirements.
Unlike WASAVP, we find no history of the legislature treating sexual
harassment protections, overtime provisions, protections from hazardous
chemicals, and seniority list requirements together in the same legislation. In Lee,
the Supreme Court distinguished WASAVP because it found "no history that the
legislature ha[d] treated sales tax reductions and constitutional amendments or
supermajority requirements together." Lee, 185 Wn.2d at 623. WASAVP is
similarly distinguishable here. There is no legislatively recognized connection
between protecting employees from sexual harassment and providing safeguards
against unemployment or ensuring fair wages for fair work. Nor is there any such
history of joining legislation to protect the confidentiality of an employee's and his
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or her family members' immigration status with other health, safety, and labor
standards.
Additionally, Part 1 regulates more than just the employee-employer
relationship; it regulates the hotels' relationship with their guests by requiring hotels
to ban certain guests for at least three years. There is no history of regulating an
employer's relationships with its customers alongside labor standards for its
employees. I-124's requirement in Part 1 to deny accommodation to guests
accused of sexual harassment, and Part 2's wage requirements for housekeepers
cleaning more than 5,000 square feet in a day, and Part 4's mandated seniority
hiring list do not share the same rational relationship as the public safety earmark
did to liquor regulation in WASAVP.
Nor does the Supreme Court's holding in Citizens save 1-124. In that case,
a consortium of wildlife management, outdoor recreation, and farming groups
challenged the constitutionality of 1-713, a law making it a gross misdemeanor to
capture or kill an animal with steel leg traps or certain poisons. 149 Wn.2d at 627.
The consortium argued that the provisions banning leg traps were not rationally
related to the provisions banning the use of pesticides to kill wild animals. Id. at
637. The court held these two provisions were germane to each other because
they both addressed particular methods of trapping and killing animals. Id. at 639.
The trial court in this case adopted a broad reading of Citizens in rejecting
the Associations' single subject challenge to 1-124. It concluded that the initiative
expressed a single purpose and the provisions facilitated the accomplishment of
this purpose and, for this reason, did not violate the single subject rule. 1-124,
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however, is distinguishable from the initiative in Citizens because Parts 1, 2, and
4 are not just different methods of protecting employees from on-the-job injuries.
Nor are these three parts just different methods of ensuring job security. The
initiative mixes, on the one hand, protections from sexual assault and exposure to
hazardous chemicals with, on the other hand, limits on how much a worker can
clean without being entitled to overtime pay and the creation of a seniority list for
hiring purposes if a hotel is sold. Part l's requirement that hotels maintain a list of
guests accused of sexual harassment has no rational relation to Part 2's overtime
pay requirements for hotel housekeepers or to Part 4's requirement that new hotel
owners must hire from a current list of employees for six months and then retain
them for 90 days. Although these subjects are all germane to the general title—
health, safety, and labor standards—they are not germane to each other.
The key inquiry for the single subject rule is whether the subjects are so
unrelated that "it is impossible for the court to assess whether either subject would
have received majority support if voted on separately." Kiqa, 144 Wn.2d at 825.
In this case, it is impossible to determine whether any subject of 1-124 standing
alone would have received majority support if voted on separately. 1-124 is similar
to the initiative discussed in Kiqa where our Supreme Court found logrolling of
unrelated measures because
a person who desired systemic changes to future property tax
assessments but did not want to fiscally burden cities with the
refunding of 1999 tax increases was required to vote for both
measures or neither. Similarly, a person who did not own a home or
who was otherwise unconcerned with changing methods for
assessing property taxes but did desire a refund of other fees was
required to vote for both measures or neither.
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No. 77918-4-1/21
Id. at 828. Did 1-124 receive overwhelming support because almost 80 percent of
Seattle voters supported all the provisions? Or did a majority of the voters want to
provide better healthcare to these workers and were willing to accept the guest
registry provisions as a necessary evil to achieve the healthcare goal? The
question could be asked for any combination of the subjects covered in 1-124.
Because there is no rational unity between the provisions of 1-124, it is
impossible for the court to determine whether any provision would have received
majority support if voted on separately. We conclude the Associations have
carried their burden of proving that 1-124 violates the single subject rule set out in
RCW 35A.12.130 and article IV, section 7 of the Seattle City Charter. It is, thus,
unconstitutional under Article XI, section 11 of the Washington Constitution and
invalid in its entirety.
We reverse the trial court order granting summary judgment in favor of the
City and Intervenors and remand to the superior court for entry of summary
judgment in favor of the Associations.
Reversed.
WE CONCUR:
54s-c 9.r-e99-e7
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