Hired Hands, Llc v. Dept Of L & I, State Of Wa ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
September 29, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
HIRED HANDS, LLC, and KENNETH No. 53450-9-II
SMITH,
Appellants,
v.
WASHINGTON STATE DEPARTMENT OF UNPUBLISHED OPINION
LABOR AND INDUSTRIES,
Respondent.
MELNICK, J. — Hired Hands, LLC and Kenneth Smith (hereafter Hired Hands) appeal the
superior court’s order that upheld the constitutionality of WAC 296-46B-940. This regulation
requires electricians to wear a wallet-sized badge showing they are certified to perform electrical
work. Hired Hands challenges the regulation on three constitutional grounds. First, it argues that
the badge requirement violates its First Amendment right against compelled speech. Hired Hands
next argues it violates the fundamental right to choose physical appearance. Lastly, it argues that
the regulation is void for vagueness.
We affirm.
FACTS
Hired Hands sought a declaratory judgment in the Thurston County Superior Court seeking
to have WAC 296-46B-940 declared unconstitutional on its face. This regulation requires
electricians to wear a wallet-sized badge while working.
53450-9-II
Electricians in Washington are regulated in a several ways. Ch. 19.28 RCW. Individual
electricians must acquire licenses and certificates of competency. RCW 19.28.041; RCW
19.28.161. The certificates have four levels: master journey level, journey level, master specialty,
and specialty electrician. RCW 19.28.161(1). The various levels are based on experience with
different types of work, and each level has specific hands-on requirements. RCW 19.28.191.
In 2009, the legislature conducted fact finding to understand the issue of contractors using
unlicensed electricians to perform electrical work. SUBSTITUTE H.B. 1055, 61ST Leg., Reg. Sess.
(Wash. 2009). Testimony revealed that some contractors did in fact utilize unlicensed electricians
to perform electrical work. SUBSTITUTE H.B. 1055. Additionally, individual unlicensed
electricians have deceived consumers and contractors by using certificates from people with the
same name. SUBSTITUTE H.B. 1055.
The legislature determined these anticompetitive practices contributed to consumer
deception and could lead to unsafe electrical installations. SUBSTITUTE H.B. 1055 §1. Pursuant to
those findings, the legislature amended RCW 19.28.271 to give the Department of Labor and
Industries (L&I) the power to require electricians to wear a visible certification badge.
SUBSTITUTE H.B. 1055 §1; RCW 19.28.271(1).
In 2012, L&I adopted WAC 296-46B-940 which required electricians to wear a wallet-
sized badge while working. The badge must contain the electrician’s city and state of residence,
and the person’s level of electrical certification. The badge must be worn on the outside of
clothing, except “when working in an attic or crawl space or when operating equipment . . . where
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wearing the certificate may pose an unsafe condition for the individual.” WAC 296-46B-
940(3)(e). Additionally, as appropriate, the badge may be worn under protective clothing “e.g.,
rain gear when outside in the rain, arc flash, welding gear, etc.” WAC 296-46B-940(3)(e). Cold
weather jackets “or similar” clothing are excluded from the protective gear definition. WAC 296-
46B-940(3)(e).
In 2017, Hired Hands filed a declaratory judgment action challenging the constitutionality
of WAC 296-46B-940. Hired Hands also filed an opening brief. First, Hired Hands argued strict
scrutiny should apply because the regulation compelled protected speech in violation of the First
Amendment to the Constitution. Second, Hired Hands argued strict scrutiny should apply because
the regulation violated the fundamental right to choose personal appearance by forcing electricians
to wear the badge. Lastly, Hired Hands argued the “etc.” and “similar” language in WAC 296-
46B-940(3)(e) rendered the statute unconstitutionally vague. L&I argued that a rational basis test
should be used for the first two arguments and that the court should uphold the regulation. In
addition, it argued that the regulation was not vague.
At a hearing, the court asked Hired Hands whether the central issue requiring strict scrutiny
was Hired Hands’ bodily integrity argument, rather than its First Amendment challenge. Report
of Proceedings (RP) at 12. Hired Hands conceded that strict scrutiny was appropriate only because
the badge must be worn, not because of the specific content of the badge. Hired Hands also stated
that the badge would be constitutional if it were affixed to an electrician’s toolbox or car, but that
it was a “huge step” to require the badge be worn on the electrician’s person. RP at 12.
The court utilized a rational basis test to evaluate the badge requirement and it upheld the
regulation. Hired Hands appeals.
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ANALYSIS
I. STANDARD OF REVIEW
Hired Hands challenges the constitutionality of a Washington administrative rule.
Constitutional challenges are issues of law. Lenander v. Dep't of Ret. Sys., 186 Wash. 2d 393, 403,
377 P.3d 199 (2016). We review such challenges de novo. Lenander, 186 Wash. 2d at 403. In
reviewing a rule, we shall declare it invalid if it is unconstitutional, if it exceeds the statutory
authority of the agency, if its adoption violated rule-making procedures, or if it is arbitrary and
capricious. Hillis v. Dept. of Ecology, 131 Wash. 2d 373, 382, 932 P.2d 139 (1997).
II. FIRST AMENDMENT ISSUES
The parties disagree on what test we should utilize to decide the first two issues raised by
Hired Hands. Hired Hands argues we should use strict scrutiny because the badge requirement
compels electricians to convey a content based, ideological message of the state.1 L&I argues that
a rational basis test applies because the badge requirement is a reasonable regulation of
professional conduct that only incidentally impacts speech. We agree with L&I.
Strict scrutiny requires the government to prove a challenged restriction furthers a
compelling state interest and is narrowly tailored to achieve that interest. Reed v. Town of Gilbert,
576 U.S. 155, 171, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015). Strict Scrutiny is the highest
standard available, and few statutes survive under this level of analysis. Reed, 576 U.S. at 180.
On the other hand, the rational basis test is a deferential standard that presumes a statute is
valid. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S. Ct. 3249, 87 L. Ed. 2d
313 (1985). Under rational basis, a statute is constitutional if it rationally relates to any legitimate
state interest. Cleburne Living Ctr., 473 U.S. at 440.
1
This argument seems to contradict the position Hired Hands asserted in the trial court.
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We must first decide whether the badge requirement is a regulation of professional conduct
or one of compelled speech. The outcome of that analysis determines what test we use.
We conclude that the badge requirement regulates professional conduct and only
incidentally involves speech. This requirement is a component of a larger scheme that regulates
electricians. Ch. 19.28 RCW; Ch. 296-46B WAC. The electrical profession in Washington is
subject to extensive licensing and regulation. Ch. 19.28 RCW; Ch. 296-46B WAC. The badge
requirement is a component of those licensing regulations. RCW 19.28.191; WAC 296-46B-940.
The badge identifies the person as an electrician and it shows the electrician’s certification level,
which directly corresponds to the type of electrical work the electrician may perform. RCW
19.28.191. The badge discloses information that contractors or consumers need to determine
whether an electrician is certified and whether an electrician can do the assigned work.
The badge requirement is not compelled speech. Hired Hands seems to argue that the
badge requirement forces electrical workers to express a message they would not otherwise make.
However, this argument fails because all electricians must obtain a certificate of competency
issued by L&I. RCW 19.28.161(1). By performing electrical work, electricians are merely
expressing that they have met L&I’s certification requirements. The regulation at issue merely
verifies that the electrician is compliant with the law, or, as the case may be, that the worker is not
compliant with the law. The regulation’s effects on speech are incidental.
This conclusion is in accord with Planned Parenthood of Southeastern Pennsylvania v.
Casey, 505 U.S. 833 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). In Casey, the state required
physicians to provide factual disclosures about abortion to women seeking the procedure. 505
U.S. at 884. Because the practice of medicine is subject to licensing and regulation, and the
disclosures directly related to the procedures practiced by the complaining physicians, the Court
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held the disclosure was constitutional as a reasonable regulation of professional conduct that only
incidentally impacts speech. Casey, 505 U.S. at 884. The state’s interest was to ensure women
seeking an abortion provided informed consent, and the required disclosure was reasonably related
to that interest. Casey, 505 U.S. at 883-84.
Hired Hands’ reliance on National Institute of Family and Life Advocates v. Becerra, ___
U.S. ___, 138 S. Ct. 2361 201 L. Ed. 2d 835 (2018), is misplaced and it does not affect Casey’s
applicability. In Becerra, the Court invalidated a California law that required anti-abortion clinics
and unlicensed covered facilities” to provide a government drafted notice onsite about other
available options for “family planning services, . . . prenatal care, and abortion for eligible
women.” 138 S. Ct. at 2369. It also required that unlicensed clinics provide onsite and in all
advertising materials a government drafted notice stating they were unlicensed. Becerra, 138 S.
Ct. at 2370. The state required the notices be in large font and in up to thirteen different languages.
Becerra, 138 S. Ct. at 2378. The Court held that the California law did not regulate professional
conduct but that it did regulate “speech as speech.” Becerra, 138 S. Ct. at 2374.
Here, WAC 296-46B-940 regulates professional conduct and not “speech as speech.” For
this reason, we utilize a rational basis test. We reject Hired Hands argument that we utilize strict
scrutiny.
The rational basis test is used when states regulate professional conduct, even if the
regulation incidentally impacts speech. Casey, 505 U.S. at 884. A statute or regulation is
reasonable if it rationally relates to any legitimate state interest. Cleburne Living Ctr., 473 U.S. at
440.
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We have previously established that the badge requirement is a regulation of professional
conduct directly related to an electrician’s profession. The remaining step is to apply Casey’s
rational basis test to determine if the regulation rationally relates to a legitimate state interest. We
determine that it does.
The badge requirement rationally relates to the state’s interest of preventing consumer
deception and unsafe electrical work. It also relates to the L&I’s mandate to “adopt reasonable
rules in furtherance of safety to life and property.” RCW 19.28.031(1). L&I adopted the regulation
after the legislature conducted fact finding, which found that contractors utilize unlicensed
electricians and individual unlicensed electricians used certificates from people with the same
name. SUBSTITUTE H.B. 1055. The legislature determined these practices led to consumer
deception and could contribute to unsafe electrical work. SUBSTITUTE H.B. 1055 § 1. Protecting
the public is a legitimate state interest. The regulation helps prevent consumer deception and
unsafe electrical work by helping contractors and consumers easily identify who is certified to
conduct electrical work. The badge requirement is reasonable because it rationally relates to a
legitimate state interest.
We conclude the badge requirement is constitutional because it is a reasonable regulation
of professional conduct that only incidentally impacts speech.2
2
Because of our conclusion, we do not address L&I’s alternative argument that the regulation does
not violate the First Amendment because it requires factual, uncontroversial disclosure of
commercial speech.
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III. PHYSICAL APPEARANCE
Hired Hands argues we should evaluate the badge requirement under strict scrutiny because
it violates the fundamental right to choose physical appearance because the badge must be worn. 3
We disagree.
A right is fundamental when it is “objectively, ‘deeply rooted in this Nation’s history and
tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice
would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct.
2258, 138 L. Ed. 2d 772 (1997) (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503, 97
S. Ct. 1932, 52 L. Ed. 2d 531 (1997), and Palko v. Connecticut, 302 U.S. 319, 325-36, 58 S. Ct.
149, 82 L. Ed. 288 (1937)). Fundamental rights that the Supreme Court has recognized involve
deeply intimate personal choices including marriage, procreation, and abortion. Glucksberg, 521
U.S. at 726; Kelley v. Johnson, 425 U.S. 238, 244, 96 S. Ct. 1440, 47 L. Ed. 2d 708 (1976). No
court has held that personal appearance is a fundamental right and Hired Hands has cited none.
Those cases that have examined personal appearance have applied a rational basis test.
Kelley, 425 U.S. at 244. In Kelley, a police officer challenged a requirement that male officers
keep their hair at a certain length. 425 U.S. at 239. In one sentence, the Court assumed some
liberty interest existed in personal appearance, but it still applied a rational basis test. Kelley 425
U.S. at 244, 248. The Court emphasized that police, as government employees, are accorded fewer
liberty protections than private citizens. Kelley 425 U.S. at 245. The Court upheld the
constitutionality of the hair requirement because the state had a reasonable interest in requiring a
uniform for police that included hair length. Kelley 425 U.S. at 247-48.
3
Hired Hands uses the term “bodily integrity” but it really means physical appearance.
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Other cases that have examined personal appearance challenges have also applied rational
basis review, even when faced with race-based discrimination challenges. See e.g. Hodge v. Lynd,
88 F. Supp. 2d 1234, 1241-42 (D.N.M. 2000) (reviewing a number of state personal appearance
cases, all of which applied rational basis); Equal Emp’t Opportunity Comm’n v. Catastrophe
Mgmt. Sols., 852 F.3d 1018, 1032 (11th Cir. 2016) (reviewing decisions holding hair styles are not
a protected interest in workplace discrimination cases); N.W. Enters. Inc. v. City of Houston, 352
F.3d 162, 197 (5th Cir. 2003) (rejecting strict scrutiny and upholding a requirement that strip club
staff wear visible identification badges), abrogated on other grounds by Reagan Nat’l Advert. of
Austin, Inc. v. City of Austin, 352 F.3d 162 (2003). Personal appearance is subject to reasonable
regulation and is evaluated under a rational basis standard. Hodge, 88 F. Supp. 2d at 1241-42.
Hired Hands argues that we should create a new fundamental right based on one sentence
in Kelley and other inapplicable cases based on sexual battery. However, Hired Hands cites to no
case that holds personal appearance alone is a fundamental right subject to strict scrutiny. All of
the authority in personal appearance cases have applied rational basis, and we agree with this
authority.
As analyzed above, the Washington badge requirement rationally relates to a legitimate
state interest. It does not violate Hired Hands’ right to personal appearance.
IV. VOID FOR VAGUENESS CHALLENGE
Hired Hands argues the badge requirement is unconstitutional because the regulation is
vague and does not provide fair notice of when the badge may be worn under clothing. We
disagree.
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A statute is vague if a person of ordinary intelligence would need to guess what a statute
prohibits. Johnson v. United States, 576 U.S. 591, 612, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015);
City of Spokane v. Douglass, 115 Wash. 2d 171, 179, 795 P.2d 693 (1990). The standard requires
more than “mere uncertainty.” Douglass, 115 Wash. 2d at 179.
To determine whether a regulation is vague, courts employ rules of statutory construction.
The rules of statutory construction apply to agency created rules and regulations. Odyssey
Healthcare Operating B, LP v. Dep't of Health, 145 Wash. App. 131, 141, 185 P.3d 652 (2008). The
primary goal of statutory construction is to determine and give effect to the legislature's intent.
SEIU Healthcare 775 NW (SEIU) v. Dep't of Soc. & Health Servs., 193 Wash. App. 377, 398, 377
P.3d 214 (2016). To decipher legislative intent, courts examine the plain language of the statute,
the context of the statute in which the provision is found, and related statutes. SEIU, 193 Wn.
App. at 398. “When the statute at issue or a related statute includes an applicable statement of
purpose, we interpret statutory language in a manner consistent with that stated purpose.” SEIU,
193 Wash. App. at 398.
“To discern the plain meaning of undefined statutory language, we give words their usual
and ordinary meaning and interpret them in the context of the statute in which they appear.” SEIU,
193 Wash. App. at 399. Generally, “statutory exceptions are construed narrowly in order to give
effect to the legislative intent underlying the general provisions.” Foster v. Dep't of Ecology, 184
Wash. 2d 465, 473, 362 P.3d 959 (2015).
Here, the regulation at issue expressly identifies the situations when the badge may be
covered: “when working in an attic or crawl space or when operating equipment . . . where wearing
the certificate may pose an unsafe condition for the individual.” WAC 296-46B-940(3).
Additionally, the regulation identifies when the badge may be worn beneath clothing: “rain gear
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when outside in the rain, arc flash, welding gear, etc.,” when such gear is required. WAC 296-
46B-940(3)(e) (emphasis added). Cold weather jackets “or similar” clothing are excluded from
the protective gear definition. WAC 296-46B-940(3)(e) (emphasis added).
Hired Hands argues the words “etc.” and “similar” in the protective gear section mean other
garments may qualify and that failing to list these other garments makes the regulation
unconstitutionally vague. However, the context of the surrounding words in the regulation provide
guidance on the meaning of “etc.” and “similar.”
The “etc.” does mean that the badge may be worn under other, unlisted protective clothing.
The “etc.” is at the end of a string of expressly identified articles of protective gear. WAC 296-
46B-940(3)(e). In this context, a person of ordinary intelligence would conclude the badge may
only be worn under clothing designed to protect against specific harms (rain, high temperature,
flame, etc.). “Similar” is used in the regulation in a section excluding cold weather jackets from
the list of protective gear in WAC 296-46B-940(3). WAC 296-46B-940(3)(e). In this context,
“similar” is intended to encompass other cold weather gear such as hats, gloves, wind breakers.
The “similar” means that other clothing worn to protect against the cold do not qualify as protective
gear. Outside of these situations, the badge may be covered only when working in an attic or crawl
space. WAC 296-46B-940(3)(e). Evaluating the “etc.” and “similar” within the context of the
regulation shows WAC 296-46B-940 is not vague and provides fair notice of when the badge may
be covered.
For these reasons, we conclude the badge regulation provides fair notice of when the badge
may be worn under clothing. It is not vague.
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ATTORNEY FEES
Hired Hands has requested costs and attorney’s fees as a prevailing party pursuant to RCW
4.84.010 and RCW 4.84.350. Because Hired Hands is not a prevailing party, it is not entitled to
costs or fees.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Melnick, J.
We concur:
Worswick, P.J.
Cruser, J.
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