Laws v. City of Seattle et al, No. 2:2009cv00033 - Document 39 (W.D. Wash. 2009)

Court Description: ORDER denying 25 Ms. Laws's Motion for Partial Summary Judgment by Judge James L. Robart.(MD)

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Laws v. City of Seattle et al Doc. 39 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 GIA L. LAWS, Plaintiff, 11 CITY OF SEATTLE, et al., Defendants. 14 15 16 ORDER v. 12 13 CASE NO. C09-033JLR I. INTRODUCTION This matter comes before the court on Plaintiff Gia L. Laws’s motion for partial 17 summary judgment (Dkt. # 25). Ms. Laws asks the court to declare RCW 4.24.350(2) 18 unconstitutional under the United States Constitution and the Washington State 19 Constitution. Similar challenges to RCW 4.24.350(2) have already been considered and 20 rejected by four district court judges of the Western District of Washington. Having 21 22 ORDER- 1 Dockets.Justia.com 1 reviewed the motion, as well as all papers filed in support and opposition, and deeming 2 oral argument unnecessary, the court DENIES the motion (Dkt. # 25). II. 3 4 BACKGROUND On April 3, 2008, Ms. Laws boarded a bus at Third Avenue and James Street in 5 downtown Seattle, Washington, followed by a woman brandishing a knife. (Am. 6 Compl. (Dkt. # 16) ¶ 12.) Passengers alerted the bus driver to the woman’s presence, 7 but the driver did not stop the bus immediately. (Am. Compl. ¶ 13.) The woman, 8 standing in the isle, declined the offer of a seat. (Am. Compl. ¶ 14.) Ms. Laws, who 9 was six months pregnant at the time, asked the woman if she could pass by her. (Am. 10 Compl. ¶ 15.) In response, the woman pushed on Ms. Laws’s left shoulder and pointed 11 the knife at Ms. Laws’s abdomen. (Id.) “She has a knife!” a passenger screamed. (Id.) 12 The woman continued to point the knife at Ms. Laws until another passenger screamed 13 and Ms. Laws pushed the woman out of her way, running to the front of the bus. (Am. 14 Compl. ¶¶ 16-17.) “She has a knife!” Ms. Laws told the driver. (Am. Compl. ¶ 17.) 15 When the bus arrived at Fifth Avenue and James Street, the driver stopped the 16 bus and opened the doors. (Am. Compl. ¶ 18.) As she describes it, Ms. Laws felt 17 herself dragged forcefully backwards by the arm, down the steps of the bus. (Id.) She 18 subsequently realized that it was Defendant Officer Scott Schenck of the Seattle Police 19 Department who had taken hold of her. (Id.) Ms. Laws told Officer Schenck that she 20 was not the knife-wielding woman. (Am. Compl. ¶ 21.) Ms. Laws alleges that Officer 21 Schenck shoved her against a wall and pulled on her right wrist, causing her to lose her 22 balance and fall to the ground. (Am. Compl. ¶ 22.) She states that Officer Schenck told ORDER- 2 1 her she was under arrest, although she was released shortly thereafter. (Am. Compl. ¶¶ 2 23, 29.) 3 In her amended complaint, Ms. Laws alleges both federal and state causes of 4 action against Officer Schenck and Defendants the City of Seattle, King County, and 5 five unnamed officers of the Seattle Police Department. (Am. Compl. ¶¶ 31-46.) In 6 response, Officer Schenck filed a counter-claim against Ms. Laws for malicious 7 prosecution under RCW 4.24.350. (Countercl. (Dkt. # 18) ¶ 1.) Specifically, Officer 8 Schenck alleges that Ms. Laws instituted this action with knowledge that the allegations 9 in her amended complaint as to Officer Schenck are false and unfounded, and that she 10 instituted this action with malice and without probable cause. (Id.) Officer Schenck 11 seeks recovery for injury in an amount to be proven at trial or an amount of liquidated 12 damages as provided by RCW 4.24.350(2), together with attorneys’ fees and costs. The 13 City of Seattle also requests reimbursement of its attorneys’ fees and costs under the 14 statute. 15 Pursuant to the instant motion, Ms. Laws seeks a determination that RCW 16 4.24.350(2) is unconstitutional under the United States Constitution and the Washington 17 State Constitution. (See generally Mot. (Dkt. # 25) at 3-22.) Ms. Laws levels a wide 18 range of constitutional challenges at RCW 4.24.350(2), alleging (1) that the statute 19 infringes on the First Amendment right to petition and is unconstitutionally overbroad, 20 (2) that the statute constitutes impermissible viewpoint discrimination under the First 21 Amendment, (3) that the statute violates the Equal Protection Clause of the Fourteenth 22 ORDER- 3 1 Amendment, and (4) that the statute violates article I, sections 4, 5, and 12 of the 2 Washington State Constitution. III. 3 ANALYSIS 4 A. Malicious Prosecution Statute 5 RCW 4.24.350 permits a defendant to counterclaim for malicious prosecution 6 when the underlying civil action “was instituted with knowledge that the same was false, 7 and unfounded, malicious and without probable cause in the filing of such action . . . .” 8 RCW 4.24.350(1). Washington law ordinarily requires proof of seven elements to 9 support a malicious prosecution claim arising from a civil action. Clark v. Baines, 84 10 P.3d 245, 248-49 (Wash. 2004). Specifically, a claimant must show: (1) that the 11 prosecution claimed to have been malicious was instituted or continued by the defendant; 12 (2) that there was want of probable cause for the institution or continuation of the 13 prosecution; (3) that the proceedings were instituted or continued through malice; (4) that 14 the proceedings terminated on the merits in favor of the plaintiff, or were abandoned; (5) 15 that the plaintiff suffered injury or damage as a result of the prosecution; (6) an arrest or 16 seizure of property; and (7) that the plaintiff suffered special injury of a nature that would 17 not necessarily result from similar actions. Id. 18 RCW 4.24.350(2) eliminates two of the traditional seven elements when a 19 malicious prosecution claim is brought “by a judicial officer, prosecuting authority, or 20 law enforcement officer for malicious prosecution arising out of the performance or 21 purported performance of the public duty of such officer.” In full, the statute provides: 22 ORDER- 4 In any action, claim, or counterclaim brought by a judicial officer, prosecuting authority, or law enforcement officer for malicious prosecution arising out of the performance or purported performance of the public duty of such officer, an arrest or seizure of property need not be an element of the claim, nor do special damages need to be proved. A judicial officer, prosecuting authority, or law enforcement officer prevailing in such an action may be allowed an amount up to one thousand dollars as liquidated damages, together with a reasonable attorneys’ fee, and other costs of suit. A government entity which has provided legal services to the prevailing judicial officer, prosecuting authority, or law enforcement officer has reimbursement rights to any award for reasonable attorneys’ fees and other costs, but shall have no such rights to any liquidated damages allowed. 1 2 3 4 5 6 7 RCW 4.24.350(2). As the language of the RCW 4.24.350(2) makes clear, judicial 8 officers, prosecuting attorneys, and law enforcement officers need not prove two of the 9 elements of an ordinary malicious prosecution claim, i.e., the elements of arrest or seizure 10 and of special damages. See Gibson v. City of Kirkland, No. C08-0937-JCC, 2009 WL 11 564703, at *1 (W.D. Wash. Mar. 3, 2009). In addition, RCW 4.24.350(2) permits such 12 claimants to recover liquidated damages of up to $1,000, reasonable attorneys’ fees, and 13 other costs. 14 B. 15 Previous Constitutional Challenges to RCW 4.24.350(2) The constitutionality of RCW 4.24.350(2) has been reviewed by five district court 16 judges sitting in Washington. See Gibson, 2009 WL 564703, at *1-5 (Coughenour, J.); 17 Pruitt v. City of Arlington, No. C08-1107 MJP, 2009 WL 481293, at *1-2 (W.D. Wash. 18 Feb. 23, 2009) (Pechman, J.); Wender v. Snohomish County, No. C07-197Z, 2007 WL 19 3165481 (W.D. Wash. Oct. 24, 2007) (Zilly, J.); De La O v. Arnold-Williams, Nos. CV20 04-0192-EFS & CV-05-0280-EFS, 2006 WL 2781278, at *2-6 (E.D. Wash. Sept. 25, 21 2006) (Shea, J.), vacated by 2008 WL 4192033 (E.D. Wash. Aug. 27, 2008); Bakay v. 22 ORDER- 5 1 Yarnes, No. C04-5803RJB, 2005 WL 2454168, at *4-8 (W.D. Wash. Oct. 4, 2005) 2 (Bryan, J.); see also Johnson v. Hawe, 388 F.3d 676, 687 (9th Cir. 2004). The courts in 3 Bakay, Gibson, Pruitt, and Wender rejected constitutional challenges to RCW 4 4.24.350(2) while the court in De La O concluded that the statute constituted 5 impermissible content discrimination. However, a split no longer exists in the 6 Washington district courts as to the constitutionality of RCW 4.24.350(2) because the 7 decision in De La O has been vacated. 2008 WL 4192033 (E.D. Wash. Aug. 27, 2008). Having reviewed these decisions, the court rejects Ms. Laws’s constitutional 8 9 challenges to RCW 4.24.350(2) for the reasons articulated in Bakay, Gibson, Pruitt, and 10 Wender, as discussed more fully below. These decisions address the precise arguments 1 11 raised by Ms. Laws in the instant motion , and Ms. Laws presents no authority to 12 support a different result here. 13 C. First Amendment Challenges 14 1. Right to Petition 15 Ms. Laws first argues that RCW 4.24.350(2) implicates the right to petition. (Mot. 16 at 3-6.) The First Amendment guarantees the right “to petition the Government for a 17 redress of grievances.” U.S. Const. amend. I. It is well-settled that the right of access to 18 the courts is subsumed within the right to petition. Bill Johnson’s Rests., Inc. v. Nat’l 19 Labor Relations Bd., 461 U.S. 731, 741 (1983); Gibson, 2009 WL 564703, at *2. The 20 1 The court notes that counsel for Ms. Laws represented the plaintiffs in both Gibson and 21 Pruitt. The arguments submitted in support of the instant motion reiterate, often verbatim, many of the arguments presented by counsel and ultimately rejected in Gibson and Pruitt. 22 ORDER- 6 1 aegis of the First Amendment, however, does not shield the filing of all lawsuits equally. 2 See, e.g., Bill Johnson’s, 461 U.S. at 743. As the Supreme Court teaches: “Just as false 3 statements are not immunized by the First Amendment right to freedom of speech, 4 baseless litigation is not immunized by the First Amendment right to petition.” Id. 5 (internal citations omitted). 6 By its terms, RCW 4.24.350(2) regulates only activity unprotected by the right to 7 petition because it requires that the underlying action be both knowingly false and 8 maliciously brought. Gibson, 2009 WL 564703, at *4; Pruitt, 2009 WL 481293, at *1; 9 Wender, 2007 WL 3165481, at *3; see Bill Johnson’s, 461 U.S. at 743. In other words, 10 RCW 4.24.350(2) applies only to “baseless litigation,” which is not immunized by the 11 First Amendment. See Bill Johnson’s, 461 U.S. at 743. The false and malicious claims 12 targeted by RCW 4.24.350 are not entitled to First Amendment protection. 13 Nevertheless, Ms. Laws argues that the statute is constitutionally deficient under 14 the overbreadth doctrine because it chills a substantial amount of protected First 15 Amendment activity. (Mot. at 5-6.) Ms. Laws reasons that many potential plaintiffs with 16 well-founded claims against police officers are deterred from filing suit for fear of a 17 malicious prosecution counterclaim under RCW 4.24.350(2). Under the overbreadth 18 doctrine, “a statute is facially invalid if it prohibits a substantial amount of protected 19 speech.” United States v. Williams, __ U.S. __, 128 S.Ct. 1830, 1838 (2008). 20 Application of the overbreadth doctrine is “strong medicine.” Broadrick v. Oklahoma, 21 413 U.S. 601, 613 (1973). Accordingly, to ensure that the doctrine’s high social costs do 22 not swallow its benefits, the Supreme Court teaches that a law may not be declared ORDER- 7 1 overbroad unless its application to protected speech is “‘substantial,’ not only in an 2 absolute sense, but also relative to the scope of the law’s plainly legitimate applications.” 3 Virginia v. Hicks, 539 U.S. 113, 120 (2003). Here, Ms. Laws has not shown that RCW 4 4.24.350(2) substantially burdens protected activity in an absolute sense, much less in 5 relation to the statute’s legitimate scope. Cf. Bakay, 2005 WL 2454168, at *6 (“There is 6 simply not a showing here sufficient to justify that this statute in some way chills the 7 right of access to the courts.”). In support of her overbreadth challenge, Ms. Laws 8 alludes to her counsel’s “personal experience that it is a true fact that litigants who are 9 often impecunious fear a large judgment against them for attorneys’ fees if they do not 10 prevail,” and discusses two settlement conferences in which RCW 4.24.350(2) allegedly 11 played a part. (Mot. at 4.) This showing is insufficient to sustain an overbreadth 12 challenge. As in Bakay, Ms. Laws’s argument appears to be based on no more than her 13 counsel’s “human experience regarding how such things affect people,” which “fails in 14 the face of legislative findings.” See Bakay, 2005 WL 2454168, at *6. On this record, 15 the court denies Ms. Laws’s overbreadth challenge. 16 2. Viewpoint Discrimination 17 Next, Ms. Laws challenges RCW 4.24.350(2) on the basis that it constitutes 18 unconstitutional viewpoint discrimination. In R.A.V. v. City of St. Paul, 505 U.S. 377 19 (1992), the Supreme Court established that the government generally may not 20 discriminate based on content or viewpoint when it proscribes so-called “unprotected” 21 categories of expression. The Court explained that although the government may 22 proscribe certain limited categories of expression, such as fighting words, libel, or ORDER- 8 1 obscenity, the government may not use these categories as “vehicles for content 2 discrimination unrelated to their distinctively proscribable content.” R.A.V., 505 U.S. at 3 383-84. For example: “A State might choose to prohibit only that obscenity which is the 4 most patently offensive in its prurience—i.e., that which involves the most lascivious 5 displays of sexual activity. But it may not prohibit, for example, only that obscenity 6 which includes offensive political messages.” Id. at 388. 7 In Chaker v. Crogan, 428 F.3d 1215 (9th Cir. 2005), the Ninth Circuit applied the 8 viewpoint discrimination principles articulated in R.A.V. to strike down a California penal 9 statute that criminalized knowingly false speech critical of peace officer conduct, but left 10 unregulated knowingly false speech supportive of peace officer conduct. The Ninth 11 Circuit recognized that knowingly false speech regarding a public official is not within 12 the ambit of constitutionally protected speech and that “the state may prohibit knowingly 13 false speech made in connection with the peace officer complaint process.” Chaker, 428 14 F.3d at 1225. Nevertheless, the Ninth Circuit emphasized that its task was “to determine 15 whether ‘the specific motivating ideology or the opinion or perspective of the speaker is 16 the rationale for the restriction.’” Id. at 1226 (quoting Rosenberger v. Rector & Visitors 17 of Univ. of Va., 515 U.S. 819, 829 (1995)). In reviewing the California statute for 18 impermissible viewpoint discrimination, the Ninth Circuit was troubled by the fact that 19 the statute proscribed only knowingly false speech critical of peace officers as opposed to 20 all knowingly false speech connected to the peace officer complaint process, whether 21 supportive or critical. The Ninth Circuit concluded as follows: 22 ORDER- 9 1 2 3 4 5 6 Like the ordinance at issue in R.A.V., [the California statute] regulates an unprotected category of speech, but singles out certain speech within that category for special opprobrium based on the speaker’s viewpoint. Only knowingly false speech critical of peace officer conduct is subject to prosecution under [the California statute]. Knowingly false speech supportive of peace officer conduct is not similarly subject to prosecution. California “has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.” Because [the California statute] targets only knowingly false speech critical of peace officer conduct during the course of a complaint investigation, we conclude that the statute impermissibly regulates speech on the basis of a speaker’s viewpoint. 7 Id. at 1227-28 (internal citations omitted). 8 Here, Ms. Laws argues that RCW 4.24.350(2) engages in the same type of 9 impermissible viewpoint discrimination at issue in R.A.V. and Chaker. The court is not 10 persuaded. To begin with, it is not clear whether the content discrimination principles of 11 R.A.V. and Chaker extend in full to the right to petition. Gibson, 2009 WL 564703, at *3. 12 As the Gibson court observed: 13 14 15 Filing a lawsuit is different from making a statement; the former does not necessarily have a “viewpoint,” whereas the latter necessarily does. Thus, it not entirely clear what “viewpoint discrimination” would [look] like when applied to the right to petition. 16 Id. For present purposes, however, the court will assume, without deciding, that the 17 filing of a lawsuit can constitute an expressive act and can convey a viewpoint such that 18 the principles of R.A.V. and Chaker apply in whole or in part, even where the lawsuit is 19 frivolous and otherwise unprotected by the First Amendment. 20 Turning to Chaker, the court agrees with the Pruitt and Wender courts that the 21 Ninth Circuit’s decision is distinguishable on its facts and that Chaker does not require 22 the court to condemn RCW 4.24.350(2) as unconstitutional viewpoint discrimination. ORDER- 10 1 Pruitt, 2009 WL 481293, at *2; Wender, 2007 WL 3165481, at *3. In addressing this 2 issue, the court is persuaded by and hereby adopts the Pruitt court’s consideration of 3 Chaker’s applicability to RCW 4.24.350(2) as follows: Chaker is distinguishable. While the California statute was penal in nature and thus actively proscribed certain conduct, RCW 4.24.350(2) is a civil statute that was intended to be purely remedial. See Laws of 1984, ch. 133, 1, 3. In Chaker, the California statute was invalidated because only false complaints against government officials were proscribed. Chaker, 428 F.3d at 1226. In contrast, the Washington statute proscribes no conduct at all. Washington common law provides anyone with a cause of action for malicious prosecution; the State Legislature merely limited the elements that must be proven by certain plaintiffs. The Washington statute limits no one’s access to the courts, nor does it dictate what type of lawsuit may be filed. 4 5 6 7 8 9 10 Pruitt, 2009 WL 481293; see also Wender, 2007 WL 3165481, at *3 (“Chaker is 11 distinguishable on at least two grounds: (i) Chaker concerned a substantive criminal 12 code, as opposed to a procedural civil statute; and (ii) Chaker involved a proscription on 13 specific types of statements, as opposed to a remedy available to specific types of 14 individuals.”). Of particular salience, as Pruitt makes clear, it is simply not the case that 15 Washington law only provides a cause of action for malicious prosecution in response to 16 civil lawsuits filed against police officers. Ms. Laws submits no authority to support a 17 finding that RCW 4.24.350(2) impermissibly discriminates on the basis of viewpoint. 18 The court denies Ms. Laws’s viewpoint discrimination challenge to RCW 4.24.350(2). 19 D. 20 Equal Protection Challenge The Equal Protection Clause of the Fourteenth Amendment guarantees that no 21 person shall be denied the equal protection of the laws. U.S. Const. amend. XIV, § 1. 22 This command “is essentially a direction that all persons similarly situated should be ORDER- 11 1 treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). 2 However, in recognition that the principles of equal protection must coexist with a wide 3 range of legislative classifications, the Supreme Court has developed a tiered system of 4 review. See Romer v. Evans, 517 U.S. 620, 631 (1996). First, laws that burden a 5 fundamental right or target a suspect class must face the highest standard—strict 6 scrutiny—and will be sustained only if they have been narrowly tailored to serve a 7 compelling state interest. Id. at 631; Silveira v. Lockyer, 312 F.3d 1052, 1087-88 (9th 8 Cir. 2002). Second, laws that target a quasi-suspect class will be subject to intermediate 9 scrutiny. City of Cleburne, 473 U.S. at 440-41. Third, laws that neither target a suspect 10 or quasi-suspect class nor burden a fundamental right will be upheld so long as the 11 legislative classification is rationally related to a legitimate state interest. Romer, 517 12 U.S. at 631; Silveira, 312 F.3d at 1088. 13 Ms. Laws argues that the court should review RCW 4.24.350(2) under strict 14 scrutiny because the statute burdens the fundamental right to petition. (Mot. at 9-10.) As 15 discussed above, however, RCW 4.24.350(2) does not burden a fundamental right 16 because it targets only the unprotected act of maliciously filing a frivolous lawsuit. See 17 Bill Johnson’s, 461 U.S. at 743; Pruitt, 2009 WL 481293, at *1; Wender, 2007 WL 18 3165481, at *3. It is also evident that the statute does not target a suspect or quasi19 suspect class, nor does Ms. Laws argue that it does. The court therefore declines to apply 20 strict scrutiny. 21 Ms. Laws next argues that, even if strict scrutiny does not apply, RCW 22 4.24.350(2) cannot survive rational basis review. (Mot. at 10.) Ms. Laws’s bare ORDER- 12 1 assertion that the statute is not rationally related to any legitimate state interest is 2 incorrect: “RCW 4.24.350(2) was passed in response to the ‘growing number of 3 unfounded lawsuits, . . . filed against law enforcement officers, . . .’ and with the purpose 4 of providing a remedy to those officials.” Pruitt, 2009 WL 481293, at *1 (citing Laws of 5 1984, ch. 133, 1). As the court explained in Bakay: [I]n looking at the beneficiaries of [RCW 4.24.350(2)]—police, prosecutors, and judges—we note that they are set apart for many reasons. We give them powers no one else has, such as the power to arrest, issue warrants, bring lawsuits, and start criminal proceedings against individuals. They have a unique role in our society. . . . It is not a suspect classification to treat police officers, judges, and prosecutors as a separate class or to distinguish them from the rest of the public. It is appropriate to come to such conclusion because of the unique roles played in society by this class of individuals. 6 7 8 9 10 11 Bakay, 2005 WL 2454168, at *7. The court joins with Pruitt, Wender, and Bakay in 12 concluding that RCW 4.24.350(2) is rationally related to a legitimate state interest and 13 survives rational basis review. Pruitt, 2009 WL 481293, at *1; Wender, 2007 WL 14 3165481, at *4; Bakay, 2005 WL 2454168, at *5-8. The court denies Ms. Laws’s equal 15 protection challenge. 16 E. Washington State Constitution 17 Ms. Laws finally argues that RCW 4.24.350(2) violates the Washington State 18 Constitution. (Mot. at 21-22.) Specifically, Ms. Laws contends that the statute violates 19 article I, sections 4, 5, and 12 of the Washington State Constitution. Ms. Laws, however, 20 provides no support for or analysis of her position and merely recites the constitutional 21 22 ORDER- 13 2 1 language. On this showing, for the reasons discussed below, the court denies Ms. 2 Laws’s challenges to RCW 4.24.350(2) under the Washington State Constitution. 3 1. Article I, Section 4: Right to Petition 4 The Washington State Constitution provides that “[t]he right to petition and of the 5 people peaceably to assemble for the common good shall never be abridged.” Wash. 6 Const. art. I, § 4. Ms. Laws argues that RCW 4.24.350(2) violates these principles 7 because a potential plaintiff does not have access to the courts if he or she is afraid of a 8 judgment against him or her. (Mot. at 21.) Washington interprets article I, section 4 9 consistent with the First Amendment. Richmond v. Thompson, 922 P.2d 1343, 1351 10 (Wash. 1996); see Gibson, 2009 WL 564703, at *4. As discussed above, the court is not 11 persuaded by Ms. Laws’s arguments that RCW 4.24.350(2) violates the federal right to 12 petition. The court denies Ms. Laws’s challenge to RCW 4.24.350(2) under article I, 13 section 4 of the Washington State Constitution. 14 2. Article I, Section 5: Freedom of Speech 15 The Washington State Constitution provides that “[e]very person may freely 16 speak, write and publish on all subjects, being responsible for the abuse of that right.” 17 Wash. Const. art. I, § 5. Ms. Laws presents no independent argument that RCW 18 4.24.350(2) violates the Washington State Constitution’s freedom of speech protections; 19 she refers instead only to arguments made with respect to the First Amendment. (Mot. at 20 21 2 Counsel for Ms. Laws presented identical arguments regarding the Washington State Constitution in Gibson and Pruitt. 22 ORDER- 14 1 21.) On this cursory showing, having already concluded that the First Amendment does 2 not condemn RCW 4.24.350(2), the court denies Ms. Laws’s challenge to RCW 3 4.24.350(2) under article I, section 5 of the Washington State Constitution. See Gibson, 4 2009 WL 564703, at *5; Pruitt, 2009 WL 481293, at *2. 5 3. Article I, Section 12: Privileges & Immunities Clause 6 To establish a violation of equal protection under the privileges and immunities 7 clause of the Washington State Constitution, a plaintiff must show that “the challenged 8 law treats unequally two similarly situated classes of people.” Fell v. Spokane Transit 9 Auth., 911 P.2d 1319, 1327 (Wash. 1996) (quoting Cosro, Inc. v. Liquor Control Bd., 733 10 P.2d 539, 543 (Wash. 1987)); see Samson v. City of Bainbridge Island, 202 P.3d 334, 349 11 (Wash. Ct. App. 2009). “In the absence of any argument that the challenged ordinance 12 violates a fundamental right or inclusion in a suspect class, rational basis review applies.” 13 Samson, 202 P.3d at 349. Here, Ms. Laws has not demonstrated either that RCW 14 4.24.350(2) treats two similarly situated classes of people differently or that the statute 15 does not survive rational basis review. Therefore, the court denies Ms. Laws’s challenge 16 to RCW 4.24.350(2) under article I, section 12 of the Washington State Constitution. See 17 Gibson, 2009 WL 564703, at *5; Pruitt, 2009 WL 481293, at *2. 18 19 20 21 22 ORDER- 15 IV. 1 2 CONCLUSION For the foregoing reasons, the court DENIES Ms. Laws’s motion for partial 3 summary judgment (Dkt. # 25). 4 Dated this 12th day of November, 2009. 5 A ____ 6 JAMES L. ROBART United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER- 16

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