Rac v. Sha

• Decision Date: 03 January 2008
• Docket Number: No. 80006-5.,80006-5.
• Citation: 174 P.3d 84,162 Wn.2d 773
• Parties: RESIDENT ACTION COUNCIL, Respondent, v. SEATTLE HOUSING AUTHORITY and Tom Tierney, Executive Director, in his official capacity, Appellants.
• Court: Washington Supreme Court

174 P.3d 84

162 Wn.2d 773

RESIDENT ACTION COUNCIL, Respondent, v. SEATTLE HOUSING AUTHORITY and Tom Tierney, Executive Director, in his official capacity, Appellants.

No. 80006-5.

Supreme Court of Washington, En Banc.

Argued May 31, 2007.

Decided January 3, 2008.

James Ernest Fearn Jr., Seattle Housing Authority, Seattle, WA, for Appellants.

Eric Dunn, NW Justice Project, Seattle, WA, for Respondent.

C. JOHNSON, J.

¶ 1 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 (chapter 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.

¶ 7 The RAC, a nonprofit organization composed of elected tenant representatives from LIPH communities, sued after SHA refused to withdraw or modify the rule. RAC 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 Wash.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 Wash.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 Wash.2d at 344-45, 135 P.2d 459. 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.

¶ 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 McCutcheon 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. Housing Authority, 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...