City of Tacoma v. Franciscan Foundation , 94 Wash. App. 663 ( 1999 )

972 P.2d 566 (1999)

CITY OF TACOMA, a municipal corporation, Appellant,
v.
FRANCISCAN FOUNDATION, aka St. Joseph Hospital And Healthcare Center, a Washington nonprofit corporation, Respondent.

No. 23107-7-II.

Court of Appeals of Washington, Division 2.

March 5, 1999.

Jean P Homan, Assistant City Attorney, Tacoma, for Appellant.

Linda Gayle White Atkins, Davis Wright Tremaine, Bellevue, for Respondent.

HOUGHTON, J.

The City of Tacoma (City) appeals a trial court order granting summary judgment in favor of St. Joseph Medical Center (St. Joesph). The trial court ruled that the City's anti-discrimination ordinance conflicts with state law and thus is unenforceable against religious nonprofit organizations. We agree and affirm.

FACTS

The facts are undisputed. St. Joseph is a hospital owned and operated by the Franciscan Health System-West, which is in turn owned and operated by Catholic Health Initiatives. All three entities are religious nonprofit organizations. In fall 1997, two St. Joseph's employees filed separate charges with the Tacoma Human Rights Department alleging religious, disability, race, and national origin discrimination under chapter 1.29 of the Tacoma Municipal Code (TMC).^[1] St. Joseph challenged the City's jurisdiction to enforce its ordinance against it because St. Joseph is exempt from the state anti-discrimination law.

On December 5, 1997, the City filed a declaratory judgment action in superior court. Both parties moved for summary judgment. The trial court granted St. Joseph's motion and entered a judgment ruling that: (1) the Tacoma Human Rights Department does not have authority under TMC 1.29 to investigate claims of discrimination, make findings, and/or enforce civil penalties against St. Joseph because St. Joseph is expressly exempted from coverage of the state anti-discrimination law; (2) the City's definition of "employer" conflicts with the state definition of "employer" as to religious nonprofit organizations; (3) RCW 49.60.330 prohibits municipalities from enforcing anti-discrimination ordinances in a manner inconsistent with RCW 49.60; and (4) it is inconsistent with RCW 49.60 for the City to enforce its anti-discrimination ordinance against exempt religious organizations such as St. Joseph. The City appeals.

ANALYSIS

Standard of Review and Burden of Proof

The parties agree that review of this case is de novo,^[2] but disagree as to St. Joseph's burden of proof in challenging the City's ordinance. The City argues that St. Joseph bears the heavy burden of proving the ordinance unconstitutional beyond a reasonable doubt. See Rabon v. City of Seattle, 135 Wash.2d 278, 287, 957 P.2d 621 (1998) (ordinance is presumed constitutional; heavy burden rests on challenger to establish unconstitutionality); City of Seattle v. Shin, 50 Wash. App. 218, 220, 748 P.2d 643 (party challenging constitutionality of ordinance must establish unconstitutionality beyond a reasonable doubt), review denied, 110 Wash.2d 1025 (1988). St. Joseph counters it merely must show that the City's attempt to enforce its ordinance against St. Joseph exceeds its statutory grant of enforcement authority.

The Anti-discrimination Laws

Washington's Law Against Discrimination, RCW 49.60, permits injured persons to bring a civil action for employment discrimination. RCW 49.60.010, .030(2). Its definition of "employer" "includes any person acting in the interest of an employer ... who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit."^[3] RCW 49.60.040(3). The law permits first-class cities to enact their own anti-discrimination ordinances and provide administrative remedies, as long as such ordinances and remedies are consistent with state law. RCW 49.60.330.

The Tacoma City Municipal Code contains an anti-discrimination ordinance that defines "employer" as "any person ... acting in the interests of an employer ... or who has any persons in his, her or its employ." TMC 1.29.030(E). Thus, it includes religious nonprofit organizations.^[4]

The City's Enforcement Powers

The parties' disagreement regarding St. Joseph's burden of proof stems from their disagreement as to the source of the City's power to provide and enforce civil remedies for discrimination. St. Joseph argues that cities have no inherent authority under their police powers to enforce civil and equitable remedies.^[5] Thus, the City's only power to provide such remedies arises from RCW 49.60.330.^[6] St. Joseph, therefore, limits the inquiry to whether the City can provide anti-discrimination remedies that exceed the scope of authority granted it under RCW 49.60.330. Thus, St. Joseph asserts, the answer is "no" and only statutory construction is required to find in St. Joseph's favor.

The City contends that its constitutional grant of police powers includes civil and equitable enforcement measures.^[7] The City claims that RCW 49.60.330 is permissive, not restrictive, and it can, therefore, provide remedies greater than those permitted by the statute unless a constitutional conflict is shown.

In either case, the question is whether the City's ordinance conflicts with the state law. Because it clearly does, it must yield under both standards.^[8]

Conflict Analysis

Under their constitutionally granted police powers, cities may enact ordinances prohibiting the same acts state law prohibits as long as the city ordinance does not conflict with the general laws of the state. City of Bellingham v. Schampera, 57 Wash.2d 106, 109, 356 P.2d 292 (1960). A local ordinance does not conflict with state law merely because one prohibits a wider scope of activity than the other. City of Seattle v. Eze, 111 Wash.2d 22, 33, 759 P.2d 366, 78 A.L.R.4th 1115 (1988) (citing Town of Republic v. Brown, 97 Wash.2d 915, 919, 652 P.2d 955 (1982)). In determining whether an ordinance conflicts with general laws, the test is: "whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa." Schampera, 57 Wash.2d at 111, 356 P.2d 292 (quoting Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519 (1923)).

The City attempts to justify its ordinance under the foregoing rule by asserting that the state anti-discrimination law does not grant religious nonprofit groups a "license to discriminate." Rather, both the state and local schemes are intended to prohibit discrimination. Therefore the local ordinance does not conflict; it merely goes further in its prohibitions. See Brown v. City of Yakima, 116 Wash.2d 556, 562, 807 P.2d 353 (1991) ("Where both the ordinance and the statute are prohibitory, and the difference between them is that the ordinance goes further in its prohibition, they are not deemed inconsistent...."); State v. Rabon, 45 Wash.App. 832, 838, 727 P.2d 995 (1986) (question is whether statute authorizes conduct banned by ordinance).

The City's literal interpretation of the rule ignores that the state law expressly exempts religious nonprofit groups.^[9] The cases relied upon by the City merely show that local regulations may prohibit conduct that similar state laws fail to address.^[10]See, e.g., Shin, 50 Wash.App. at 226-27, 748 P.2d 643 (city may impose duty on parents to report child abuse though state statute omits parents from list of persons required to report); Rabon, 45 Wash.App. at 838, 727 P.2d 995 (state law banning chako sticks under certain circumstances does not preclude city from banning them entirely); Seattle Newspaper-Web Pressmen's Union Local No. 26 v. City of Seattle, 24 Wash.App. 462, 468-69, 604 P.2d 170 (1979) (ordinance may extend prohibition on unfair labor practices to practices not covered under state statute).

Although the state anti-discrimination law does not "authorize" religious groups to discriminate, it does "authorize" their exemption from the law's reach. The statutory language indicates an affirmative policy choice rather than an omission. Because the City's ordinance contravenes this policy choice, it must give way. See Seattle Newspaper-Web, 24 Wash.App. at 469, 604 P.2d 170 (ordinance may be more restrictive than state statute only if statute does not forbid the more restrictive enactment) (emphasis added) (citing Lenci v. City of Seattle, 63 Wash.2d 664, 670-71, 388 P.2d 926 (1964)).

Affirmed.

BRIDGEWATER, C.J., and HUNT, J., concur.

NOTES

[1] Both complainants also filed charges under Title VII with the EEOC.

[2] See Reid v. Pierce County, 136 Wash.2d 195, 201, 961 P.2d 333 (1998) (in reviewing a summary judgment order, reviewing court engages in same inquiry as the trial court); City of Seattle v. Williams, 128 Wash.2d 341, 347, 908 P.2d 359 (1995) (questions of law are reviewed de novo) (citing State v. McCormack, 117 Wash.2d 141, 143, 812 P.2d 483 (1991), cert. denied, 502 U.S. 1111, 112 S.Ct. 1215, 117 L.Ed.2d 453 (1992)).

[3] Persons aggrieved by the discrimination of religious nonprofit groups can seek redress under Title VII. See 42 U.S.C. § 2000e-1(a).

[4] Although not at issue in this case, the City ordinance also purports to cover employers with fewer than eight employees, which are also exempt from the state law.

[5] In support of this proposition, St. Joseph cites State v. Brennan, 76 Wash.App. 347, 884 P.2d 1343 (1994). The Brennan court held that the Legislature could not delegate equitable powers to the district courts because the state constitution vests exclusive equitable jurisdiction in the superior courts. Brennan, 76 Wash.App. at 349, 356, 884 P.2d 1343.

[6] RCW 49.60.330 provides:

Any [first-class city] ... may enact resolutions or ordinances consistent with this chapter to provide administrative and/or judicial remedies for any form of discrimination proscribed by this chapter .... The superior courts shall have jurisdiction to hear all matters relating to violation and enforcement of such resolutions or ordinances, including ... the award of such remedies and civil penalties as are consistent with this chapter .... Any local resolution or ordinance not inconsistent with this chapter may provide, after a finding of reasonable cause to believe that discrimination has occurred, for the filing of an action in, or the removal of the matter to, the superior court.

(emphasis added).

[7] Article XI, section 11 of the Washington Constitution grants first-class cities the power to "make and enforce within [their] limits all such local police, sanitary and other regulations as are not in conflict with general laws." This delegation of power is "as ample within its limits as that possessed by the legislature itself." Williams, 128 Wash.2d at 359, 908 P.2d 359.

[8] Little authority elucidates the issue of the derivation and extent of a city's civil enforcement powers. Cities, pursuant to their police powers, possessed authority to prohibit discrimination before the enactment of RCW 49.60.330, but the extent of their power to create and enforce remedies apart from criminal sanctions was unclear. See AGO 1981, No. 14, at 3-4. In 1981, the Legislature enacted RCW 49.60.330 to "authorize[] what ha[d] been "existing in law." AGO 1981, No. 14, at 7 (quoting Senator Talmadge); see Laws of 1981, ch. 259, § 5. The amendment's legislative history confirms that the amendment was intended to be permissive, not preemptive, see AGO 1981, No. 14, at 6-7, but otherwise sheds little light on the question of what cities' preexisting enforcement powers were.

[9] The religious exemption has been part of the anti-discrimination statute since it was enacted. It has never been amended, although the section in which it is contained has been amended many times, and the Legislature twice has considered narrowing or deleting the exemption. Farnam v. CRISTA Ministries, 116 Wash.2d 659, 673 n. 4, 807 P.2d 830 (1991) (citations omitted).

[10] None of the cases the City cites in support of its contention that no conflict exists where the local prohibitory scheme merely goes further than the state scheme analyzes a state law containing an express exemption. See Rabon v. City of Seattle, 135 Wash.2d at 288, 957 P.2d 621; Brown, 116 Wash.2d at 558, 807 P.2d 353; Eze, 111 Wash.2d at 33, 759 P.2d 366; State ex rel. Schillberg v. Everett Dist. Justice Court, 92 Wash.2d 106, 108, 594 P.2d 448 (1979); Shin, 50 Wash.App. at 221 n. 3, 748 P.2d 643; State v. Rabon, 45 Wash.App. at 833 n. 1, 727 P.2d 995.