The west coast is no longer waiting for the Supreme Court to opine on the constitutionality of anti-camping laws in the Grants Pass case.[1] But the long-awaited Grants Pass decision overshadowed another case on homelessness recently decided in Washington state. In Potter v. City of Lacey, Washington’s highest court was asked, via certified questions from the Ninth Circuit, to decide if a state constitutional right to intrastate travel empowers a person to live in his vehicle parked on public property against the wishes of the local government.[2]

A unanimous Washington Supreme Court handed down its Potter opinion on July 3, 2024, recognizing that Washington’s constitution might protect the right to in-state travel, but holding that this right does not shield Mr. Potter from enforcement of the city’s generally applicable parking rules.[3]

The plaintiff was Jack Potter, a homeless man who was living in a trailer hitched to his truck in Lacey, Washington.[4] Beginning in 2019, Potter permanently parked his trailer in the public parking lot at Lacey’s city hall.[5] Lacey then enacted a parking ordinance that forbade the parking of certain vehicles in public places for longer than four hours.[6] Violators of the four-hour rule were forbidden from parking during the subsequent 24-hour period and subjected to fines and impoundment of their vehicles.[7]

After being ordered to leave the Lacey city hall parking lot, Potter moved his vehicle to a neighboring city and sued Lacey in state court, arguing that Lacey’s parking restriction violated Potter’s right to travel under Washington state law.[8] Lacey removed the case to federal court where it eventually reached the Ninth Circuit on appeal, and the Ninth Circuit certified the following questions to the Washington Supreme Court in 2022:

Is the right to intrastate travel in Washington protected under the Washington State Constitution, or other Washington law? If Washington state law protects the right to intrastate travel, does [Lacey’s parking ordinance] violate Jack Potter’s intrastate travel rights?[9]

The Washington Supreme Court narrowed the scope of its inquiry based on its reading of Potter’s asserted right.[10] “[T]he record shows that Potter asserts only a very limited and specific right: the right to reside in a 23-foot travel trailer hitched to his truck on public streets and lots for an indefinite period of time.”[11] The court found no authority to support Potter’s position so construed.[12]

The court started with the nature of Lacey’s authority.[13] Washington municipalities are authorized by the state constitution to “make and enforce . . . all such local police, sanitary and other regulations as are not in conflict with general laws.”[14] A city’s authority to make local law includes the authority to set generally applicable parking restrictions in the city.[15]

Moreover, the court emphasized that its prior decisions have usually upheld parking regulations against challengers who have asserted the right to intrastate travel.[16] In support, the court cited two cases about the state’s power to license drivers and to suspend those licenses, as there “is no constitutional right to a particular mode of travel.”[17] And surveying other cases from different jurisdictions led the court to a similar conclusion: “[M]unicipalities have the right to enact parking and driving laws of general applicability, even if they limit the ability of residents to use the streets.”[18]

Nevertheless, the Potter opinion leaves the door open for future exploration of Washington’s right to travel. The Washington Supreme Court did not deny that the right may exist. The court instead assumed, without deciding, that the Washington Constitution recognizes and protects a right to in-state travel, although the source of that purported right was not pinpointed, and its breadth was not discussed.[19]

The court elided a full overview of the Washington right to travel by construing Potter’s claims to be anchored in an undefined and undeveloped “right to reside.”[20] Furthermore, the cases cited to reject Potter’s right-to-reside theory dealt with an asserted federal constitutional right to intrastate travel, not a Washington-specific right.[21] So the court concluded that, under Washington law, Potter “failed to show that Lacey’s parking ordinance violates his asserted state constitutional right to reside in the manner that he has chosen.”[22]

Potter is a prime example of a case that would have done far more to upset the status quo if it had been decided the other way. Particularly in the light of Grants Pass, Washington residents may have wondered whether the Washington Supreme Court would give litigants a unique state-based foothold to challenge government enforcement actions geared toward addressing homelessness. As it came to be, however, the Potter decision broadly supports the city’s parking restrictions while strongly suggesting that a right to in-state travel has little, if any, application to such restrictions.

 

[*] The author thanks Diana Eggert for her helpful editing.

[1] City of Grants Pass v. Johnson, 144 S. Ct. 2202 (2024) (holding that an anti-camping ordinance did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment).

[2] Potter v. City of Lacey, 550 P.3d 1037 (Wash. 2024).

[3] Id. at 1037.

[4] Id. at 1038.

[5] Id. at 1039.

[6] Id.

[7] Id.

[8]Id. at 1040.

[9] Potter v. City of Lacey, 46 F.4th 787, 789 (9th Cir. 2022).

[10] Potter, 550 P.3d at 1041.

[11] Id.

[12] Id.

[13] Id.

[14] Id. (quoting Wash. Const. art. XI, § 11).

[15] Id. (citing Sandona v. City of Cle Elum, 37 Wash. 2d 831, 836 (1951)).

[16] Id. at 1042 (citing State v. Scheffel, 82 Wash. 2d 872, 880 (1973)).

[17] Id. (quoting Scheffel, 82 Wash. 2d at 880). See City of Spokane v. Port, 43 Wash. App. 273, 275-76 (1986).

[18] Id. (citing Lai v. N.Y.C. Gov’t, 991 F. Supp. 362, 366 (S.D.N.Y. 1998); State v. French, 77 Haw. 222, 231 n.9 (1994); District of Columbia v. Smith, 93 F.2d 650, 651 (D.C. Cir. 1937)).

[19] See id.

[20] Id. at 1038-39.

[21] Id. at 1041.

[22] Id. at 1042.

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