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FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
FEBRUARY 9, 2023
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
FEBRUARY 9, 2023
ERIN L. LENNON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
WASHINGTON FOOD INDUSTRY ) NO. 99771-3
ASSOCIATION & MAPLEBEAR, )
INC. D/B/A INSTACART, )
)
Respondent, )
)
v. ) EN BANC
)
CITY OF SEATTLE, )
) Filed: February 9, 2023
Petitioner. )
______________________________ )
MONTOYA-LEWIS, J.—In early 2020, life in the state of Washington
changed dramatically due to the public health emergency caused by the novel
coronavirus (COVID-19). Six months after United States and global health
authorities declared COVID-19 a public health emergency, the city of Seattle (City)
passed an ordinance authorizing hazard pay for certain workers who deliver food to
consumers’ homes. By that time, Governor Inslee had issued stay-at-home orders
requiring Washingtonians to leave home only for the most essential of trips. Many
businesses were closed, and many businesses and state offices that remained in For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Wash. Food Indus. Ass’n, et al. v. City of Seattle
No. 99771-3
operation were closed to the public, with many employees working remotely. Those
who could stayed home and stayed away from others as much as possible, compelled
by the rapid spread of the deadly virus and the emergency it caused. But we had to
eat. Given the rapid spread of COVID-19 and the risk of exposure, many were faced
with a dilemma: How can we safely buy food?
Critically, some people were willing and able to perform the service of
delivering food from restaurants and grocery stores. Deliveries skyrocketed—while
some businesses operated their own delivery services, others contracted with thirdparty companies like Instacart that maintain networks of workers to complete ondemand shopping and delivery services. Using those delivery services, consumers
were able to order food for delivery, from the safety of their own homes.
Concerned for the health, safety, and economic security of the delivery
workers, the City passed Seattle Ordinance 126094, requiring hazard pay for gig
workers1 for food delivery network companies. The ordinance requires food
delivery network companies to pay their workers an extra dollar and a quarter for
each work-related stop in Seattle. It also imposes constraints. Food delivery
network companies may not reduce workers’ compensation or otherwise limit their
earning capacity as a result of the ordinance. They are also prohibited from reducing
the areas of the City they serve or passing on the cost of the premium pay to
1
See infra note 8.
2
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Wash. Food Indus. Ass’n, et al. v. City of Seattle
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customers’ charges for groceries.
The Washington Food Industry Association and Maplebear Inc., d/b/a
Instacart, challenge the ordinance. The plaintiffs seek declaratory judgment
invalidating the ordinance on statutory as well as Washington and United States
constitutional grounds. They also seek an award of damages for violations of federal
law. The trial court dismissed the statutory claim under chapter 82.84 RCW but
permitted all remaining claims to proceed. At this early stage in the proceedings, no
discovery has occurred, and the record is limited to the pleadings.
This court unanimously holds that the chapter 82.84 RCW claim and equal
protection claim should be dismissed and that the takings clause, contracts clause,
and federal damages claims should not be dismissed. A majority of the court also
holds that the privileges and immunities claim should be dismissed. Although I
would conclude that the police powers claim should be dismissed, a majority of the
court holds that it should not be dismissed, and we therefore affirm on that issue.
For the reasons stated below, we affirm in part and reverse in part as follows:
I. The chapter 82.84 RCW claim is dismissed; we affirm.
II. The equal protection claim is dismissed; we reverse.
III. The privileges and immunities claim is dismissed; we reverse.
IV. The takings clause claim is not dismissed; we affirm.
V. The contracts clause claim is not dismissed; we affirm.
3
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VI. The 42 U.S.C. § 1983 damages claim is not dismissed; we affirm.
VII. The police powers claim is not dismissed; we affirm. 2
BACKGROUND
A. Factual Background 3
The COVID-19 pandemic first took hold in the winter of 2020. In January
and February 2020, United States and global health authorities declared COVID-19
a public health emergency and began taking actions in response to the highly
infectious virus. In Washington State, Governor Jay Inslee declared a state of
emergency in February, and Seattle Mayor Jenny Durkan proclaimed a civil
emergency in response to COVID-19 in March. Proclamation by Governor Jay
Inslee, No. 20-05 (Wash. Feb. 29, 2020); 4 Proclamation by Mayor Jenny Durkan,
Civil Emergency at 2 (Seattle, Mar. 3, 2020). 5
COVID-19 can cause serious illness or death, and the virus spreads easily
from person to person; thus, government and public health authorities advised taking
distancing measures in order to minimize exposure and infection. In March 2020,
2
The court’s lead opinion of Justice Montoya-Lewis provides the majority holdings on all
issues except for police powers. The concurrence of Justice Johnson provides the majority on the
police powers claim.
3
The facts are drawn from the complaint. Becker v. Cmty. Health Sys., Inc., 184 Wn.2d
252, 257, 359 P.3d 746 (2015) (when reviewing a motion to dismiss, we accept all facts alleged in
the complaint as true).
4
https://www.governor.wa.gov/sites/default/files/proclamations/20-05%20Coronavirus%20%28final%29.pdf [https://perma.cc/TAF6-QNGB].
5
https://durkan.seattle.gov/wp-content/uploads/sites/9/2020/03/COVID-19-MayoralProclamation-of-Civil-Emergency.pdf [http://perma.cc/8ZFH-DTE6].
4
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No. 99771-3
Governor Inslee issued a “Stay Home – Stay Healthy” proclamation closing all
nonessential workplaces and banning large gatherings in an effort to reduce the
spread of the virus. Proclamation by Governor Jay Inslee, No. 20-25 (Wash. Mar.
23, 2020).6 That proclamation directed all people in Washington State to stay at
home unless engaging in essential activities or working in essential businesses. Id.
at 3. “Essential activities” included obtaining necessary supplies like groceries and
food for household consumption, and “essential business services” included grocery
stores and restaurants with delivery and carry-out services. Id.; Proclamation 20-25
App., at 4 (Mar. 23, 2020).7
During these early months of the pandemic, demand for delivery food services
increased significantly. While some restaurants and grocery stores provided inhouse delivery services, food delivery network companies also facilitated orders of
groceries and food from restaurants as a third party. Some members of the
Washington Food Industry Association, like independent grocery stores, markets,
and convenience stores, do not employ delivery workers but instead depend on those
third-party delivery services. In turn, food delivery network companies like Instacart
offer smartphone applications that allow consumers to shop for groceries or
6
https://www.governor.wa.gov/sites/default/files/proclamations/20-25%20Coronovirus%20Stay%20Safe-Stay%20Healthy%20%28tmp%29%20%28002%29.pdf
[https://perma.cc/PJ48-WAEY].
7
https://www.
governor.wa.gov/sites/default/files/WA%20Essential%20Critical%20Infrastructure%20Workers
%20%28Final%29.pdf [https://perma.cc/3574-C4SB].
5
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Wash. Food Indus. Ass’n, et al. v. City of Seattle
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restaurant food using the online platform and then have their orders delivered
directly to the consumer’s home. Instacart’s platform facilitates only grocery
shopping and delivery. Instacart does not employ workers to shop for and deliver
groceries; people who perform that work do so as independent contractors and are
paid with a combination of service fees and customer tips.
By Instacart’s estimate, the number of delivery workers contracting with it
tripled between March and May 2020, as demand for food delivery services
increased significantly at the same time. The upsurge in the number of orders also
meant that drivers made more paid deliveries. Instacart estimates that its Seattle
delivery workers earned approximately $20 per hour in January and February 2020
and closer to $30 per hour by May 2020. Instacart does not provide any estimates
on how many hours drivers worked or their total compensation. At this early stage
in the litigation, the record does not include any evidence of the number of delivery
workers Instacart contracts with, the number of stops they make, the method by
which they are compensated, or the details of any of Instacart’s contracts with
delivery workers or grocery stores.
B. The Ordinance
In June 2020, the Seattle City Council passed Seattle Ordinance 126094,
“Premium Pay for Gig Workers.” The ordinance recognizes that food delivery
network companies and their workers provide essential services during the COVID6
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19 emergency. Seattle Ordinance 126094, at 2 (June 26, 2020),
https://www.seattle.legistar.com/View.ashx?M=F&ID=8656949&GUID=450BE06
7-D41F-4C49-A3C9-7A7D67A2DB9D [https://perma.cc/EK2L-TWEX]. It also
acknowledges that those workers “face magnified risks of catching or spreading
disease because the nature of their work can involve close contact with the public”
when they pick up food from eating and drinking establishments or grocery stores
and deliver it to consumers’ homes. Id. at 1. Additionally, food delivery network
companies rely on business models that hire independent contractors, or “gig
workers,” who do not have access to all of the workplace protections created by law
for employees. 8 Id. The City determined that gig workers working for food delivery
network companies should receive premium pay for work performed during the
COVID-19 emergency. Id. It concluded that premium pay
protects public health, supports stable incomes, and promotes job
retention by ensuring that gig workers are compensated now and for the
duration of the public health emergency for the substantial risks, efforts,
and expenses they are undertaking to provide essential services in a safe
and reliable manner during the COVID-19 emergency.
Id. at 6.
8
The terms “gig work” and “the gig economy” are used colloquially to describe a business
model that pays workers by the task and depends on freelance workers or independent contractors
who do not receive protections usually afforded employees, like the minimum wage, overtime,
workers’ compensation, unemployment insurance, and the right to collectively organize and
bargain. Ride-hail companies and food delivery network companies typically operate using this
model. The ordinance defines “gig worker” as any “food delivery network company worker.”
Seattle Ordinance 126094, at 9.
7
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Therefore, the ordinance requires food delivery network companies to provide
each gig worker with premium pay for each online order that results in the worker
making a work-related stop in Seattle: $2.50 for the first pickup or drop-off point in
Seattle and $1.25 for each additional pickup or drop-off point in Seattle. Id. at 13.
It also includes “[g]ig worker and consumer protections” prohibiting food delivery
network companies from taking any of the following actions “as a result of this
ordinance going into effect”:
1. Reduce or otherwise modify the areas of the City that are
served by the [food delivery network company];
2. Reduce a gig worker’s compensation; or
3. Limit a gig worker’s earning capacity, including but not
limited to restricting access to online orders.
4. Add customer charges to online orders for delivery of
groceries.
Id. at 13-14. The ordinance can be enforced with investigations by the Office of
Labor Standards, a private right of action, and civil penalties. Id. at 17-31.
Seattle Ordinance 126094 originally stated that it would be automatically
repealed three years after the termination of the civil emergency proclaimed by the
mayor on March 3, 2020. Id. at 35. In August 2020, the city council passed Seattle
Ordinance 126122, “Technical Amendments to Premium Pay for Gig Workers,”
which limits the premium pay requirement and worker and consumer protections to
the duration of the civil emergency. Seattle Ordinance 126122, at 7 (August 21,
8
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2020). 9 We refer to Seattle Ordinance 126094, as modified by Seattle Ordinance
126122, as the ordinance.
C. Instacart’s Complaint
Washington Food Industry Association and Maplebear Inc., d/b/a Instacart
(collectively Instacart), filed suit against the City, seeking invalidation of the
ordinance and damages. Instacart alleges the city council passed the ordinance in
consultation with labor unions “intent on increasing pay to food delivery persons
and used the COVID-19 emergency as a pretext to do so.” 1 Clerk’s Papers (CP) at
76.
Instacart alleges seven causes of action in the complaint. First, Instacart
alleges the ordinance violates Initiative 1634 (I-1634), codified at chapter 82.84
RCW, which states that local governments “may not impose or collect any tax, fee,
or other assessment on groceries.” RCW 82.84.040(1). Second, it alleges the
ordinance exceeds the City’s police powers. See WASH. CONST. art XI, § 11. Third,
it alleges the ordinance takes private property for public use without just
compensation, in violation of the takings clause of the Washington and United States
Constitutions. See U.S. CONST. amend. V; WASH. CONST. art. I, § 16. Fourth, it
alleges the ordinance impairs existing contractual obligations in violation of the
9
Both the State of Washington and the City lifted the states of emergency on October 31,
2022.
9
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contracts clauses of the Washington and United States Constitutions. See U.S.
CONST. art. I, § 10, cl. 1; WASH. CONST. art. I, § 23. Fifth, it alleges the ordinance
violates the equal protection clause of the United States Constitution. See U.S.
CONST. amend. XIV, § 1. Sixth, Instacart alleges the ordinance violates the
privileges and immunities clause of the Washington Constitution. See WASH.
CONST. art. I, § 12. Seventh, Instacart alleges the City has, under the color of law,
violated Instacart’s rights protected by the U.S. Constitution and federal law, and
Instacart should be entitled to recover damages and attorney fees. 42 U.S.C. § 1983.
D. City’s Motion To Dismiss
The City filed a CR 12(b)(6) motion to dismiss all of Instacart’s causes of
action for failure to state a claim on which relief can be granted. The superior court
dismissed with prejudice Instacart’s first cause of action regarding I-1634, codified
at chapter 82.84 RCW. It declined to dismiss the remaining causes of action.
The City sought discretionary review in this court. Instacart opposed
discretionary review but raised the contingent issue of the dismissed chapter 82.84
RCW claim. We granted review and retained the case for review of all issues.
Numerous organizations filed briefs of amici curiae: the Association of Washington
Cities; the State of Washington; the Chamber of Commerce of the United States of
America; Northwest Grocery Association; Institute for Justice; and the National
Employment Law Project, Economic Policy Institute, Jobs with Justice, National
10
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Council for Occupational Safety and Health, and Public Rights Project.
ANALYSIS
We review a superior court’s decision on a CR 12(b)(6) motion de novo.
Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007). Dismissal is proper only
if the court concludes “the plaintiff cannot prove ‘any set of facts which would
justify recovery.’” Id. (quoting Tenore v. AT&T Wireless Servs., 136 Wn.2d 322,
330, 962 P.2d 104 (1998)). We presume all facts alleged in the complaint to be true
and may consider hypothetical facts supporting the plaintiff’s claims. Id. The
gravamen of our inquiry is whether the plaintiff’s claim is legally sufficient: if the
plaintiff’s claim remains legally insufficient even under their proffered hypothetical
facts, dismissal is appropriate. Trujillo v. Nw. Tr. Servs., Inc., 183 Wn.2d 820, 830,
355 P.3d 1100 (2015).
I. Chapter 82.84 RCW: Taxes, Fees, or Other Assessments on Groceries
First, Instacart alleges the ordinance violates RCW 82.84.040, a statute
prohibiting local taxes on groceries. In 2018, Washington voters approved I-1634,
which was codified as the “keep groceries affordable act of 2018,” chapter 82.84
RCW. LAWS OF 2019, ch. 2 (I-1634). Chapter 82.84 RCW includes several findings
and declarations:
(1) Whereas access to food is a basic human need of every
Washingtonian; and
(2) Whereas keeping the price of groceries as low as possible
improves the access to food for all Washingtonians; and
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(3) Whereas taxing groceries is regressive and hurts low- and
fixed-income Washingtonians the most; and
(4) Whereas working families in Washington pay a greater share
of their family income in state and local taxes than their wealthier
counterparts; now, therefore,
(5) The people of the state of Washington find and declare that
no local governmental entity may impose any new tax, fee, or other
assessment that targets grocery items.
RCW 82.84.020. Under RCW 82.84.040(1), a local governmental entity may not
impose or collect any tax, fee, or other assessment on groceries. Such a “[t]ax, fee,
or other assessment on groceries”:
includes, but is not limited to, a sales tax, gross receipts tax, business
and occupation tax, business license tax, excise tax, privilege tax, or
any other similar levy, charge, or exaction of any kind on groceries or
the manufacture, distribution, sale, possession, ownership, transfer,
transportation, container, use, or consumption thereof.
RCW 82.84.030(5). Instacart argues the ordinance’s premium pay requirement
imposes a “‘fee,’ ‘other assessment,’ ‘charge,’ or ‘exaction of any kind’” within this
definition. 1 CP at 84.
Interpretation of a statute is a question of law we review de novo. Dep’t of
Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). Initiatives
are passed as an exercise of the legislative power reserved by the people of
Washington. WASH. CONST. art. II, § 1(a). Therefore, our task is “to ascertain the
collective intent of the voters who, acting in their legislative capacity, enacted the
measure.” Amalg. Transit Union Loc. 587 v. State, 142 Wn.2d 183, 205, 11 P.3d
762, 27 P.3d 608 (2000). We interpret statutes created by initiatives according to
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the general rules of statutory construction. City of Spokane v. Taxpayers of Spokane,
111 Wn.2d 91, 97, 758 P.2d 480 (1988). We look to the language of the enactment
as a whole to determine the plain meaning of the text. Campbell & Gwinn, 146
Wn.2d at 11. We must not interpret a statute in a way that renders any portion of it
meaningless or superfluous. State v. K.L.B., 180 Wn.2d 735, 742, 328 P.3d 886
(2014). “Statutory language must be given its usual and ordinary meaning,
regardless of the policy behind the enactment.” Taxpayers, 111 Wn.2d at 97. If the
meaning is ambiguous, we may resort to aids to construction, including legislative
history and statements in the voters’ pamphlet. Campbell & Gwinn, 146 Wn.2d at
12; Amalg. Transit Union, 142 Wn.2d at 205-06. For statutes created by initiatives,
we “focus on the voters’ intent and the language of the initiative ‘as the average
informed lay voter would read it.’” Taxpayers, 111 Wn.2d at 97 (internal quotation
marks omitted) (quoting Est. of Turner v. Dep’t of Revenue, 106 Wn.2d 649, 654,
724 P.2d 1013 (1986)).
The meaning of RCW 82.84.030(5) is unambiguous. The statute prohibits
taxes on groceries. We read the text of the statute in context and in its entirety as
the average informed lay voter would read it, giving language its usual and ordinary
meaning. Id.; Campbell & Gwinn, 146 Wn.2d at 11. The definition of a “[t]ax, fee,
or other assessment on groceries” under the statute includes a nonexhaustive,
illustrative list of six different kinds of “tax,”—“sales tax, gross receipts tax,
13
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business and occupation tax, business license tax, excise tax, privilege tax”—or “any
other similar levy, charge, or exaction of any kind.” RCW 82.84.030(5) (emphasis
added). The ballot title for I-1634 was “A[n act r]elating to the taxation of groceries;
and adding a new chapter to Title 82 RCW.” 2 CP at 284 (State of Washington
Voters’ Pamphlet, General Election (Nov. 6, 2018)). Title 82 RCW relates to
“excise taxes.” Thus, the average informed lay voter would read the statute to
prohibit charges that are, or resemble, taxes on groceries.
The term “tax” has a common meaning as a burden or charge imposed by
legislative authority to raise money for public purposes or for the public treasury.
King County Fire Prot. Dists. No. 16 v. Hous. Auth., 123 Wn.2d 819, 833, 872 P.2d
516 (1994). We have previously held that the average informed lay voter would
understand this common meaning of “tax” in the initiative context:
As a noun, the term “tax” has as its common meaning a “pecuniary
charge imposed by legislative or other public authority upon persons or
property for public purposes: a forced contribution of wealth to meet
the public needs of a government.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 2345 ([3d ed.] 1986). These definitions
probably accord with the average informed voter’s understanding of the
term “tax,” and are consistent with the State’s argument that “tax”
means a compulsory charge for the support of government. . . . “Tax”
means “an enforced contribution of money, assessed or charged by
authority of sovereign government for the benefit of the state or the
legal taxing authorities. . . .” State ex rel. City of Seattle v. Dep’t of
Public Utils., 33 Wn.2d 896, 902, 207 P.2d 712 (1949). “Tax” is a
“pecuniary burden laid upon individuals or property to support the
government . . . .” BLACK’S LAW DICTIONARY 1457 (6th ed. 1990).
Amalg. Transit Union, 142 Wn.2d at 219-20 (emphasis added).
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In Amalgamated Transit Union, we held that an initiative that referred only to
“taxes” in its title violated the constitutional subject-in-title requirement because it
failed to provide notice that the tax provision would apply to fees and charges not
traditionally considered taxes. Id. at 191-92; see WASH. CONST. art II, § 19. The
ballot title of that initiative was “‘Shall voter approval be required for any tax
increase, license tab fees be $30 per year for motor vehicles, and existing vehicle
taxes be repealed.’” Amalg. Transit Union, 142 Wn.2d at 193 (quoting State of
Washington Voters’ Pamphlet, General Election (Nov. 2, 1999)). But the initiative’s
definition of “tax” not only included traditional taxes such as “‘sales and use taxes,
property taxes, business and occupation taxes, excise taxes, [and] fuel taxes’”—it
also included “‘impact fees, license fees, permit fees, and any monetary charge by
government,’” while excluding tuition for higher education and civil and criminal
fines and charges. Id. (quoting LAWS OF 2000, ch. 1, § 2(2), (3)).
In analyzing the subject-in-title rule, the court looked to the intent of the
voters, construing the language of the initiative “as the average informed voter
voting on the initiative would read it.” Id. at 219. We held that the average informed
voter’s understanding of the term “tax” was probably consistent with the common
meaning as a charge imposed by the government to support the public needs of a
government. Id. In contrast, the initiative defined “‘tax’” as something that
“‘includes, but is not necessarily limited to’” various taxes, as well as license fees
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that the average voter would not consider a tax in its traditional sense, plus “‘any
monetary charge by government.’” Id. (quoting LAWS OF 2000, ch. 1, § 2(2)).
Further, it excluded things that are not compulsory charges for the support of the
government, like higher education tuition and civil and criminal fines and charges.
Id. (quoting LAWS OF 2000, ch. 1, § 2(3)). The initiative needed to specify that it
excluded certain charges, like fines and tuition, because if it failed to do so, its
extremely broad definition apparently encapsulated items other than traditional taxes
under the common meaning. If a “tax” under the initiative was consistent with the
traditional common understanding, the specific inclusions and exclusions in the
definition would be “superfluous.” Id. at 220 (citing City of Bellevue v. Lorang, 140
Wn.2d 19, 25, 992 P.2d 496 (2000) (legislation is to be construed so that all language
is given effect and no part is rendered meaningless or superfluous)). Therefore, the
initiative defined “tax” far more broadly than the traditional meaning as the average
informed voter would read the term. Id. at 222.
In contrast, here, the statute created by I-1634 defines “tax” consistent with
the traditional, common meaning of the term. We conclude that the average
informed lay voter would read chapter 82.84 RCW to prohibit new local taxes on
groceries that would increase the cost of groceries for the consumer in order to
produce revenue for public purposes of the public treasury. As we have explained,
the average informed lay voter would read the term “tax” to mean a compulsory
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charge to raise money for the public purposes of the government. Id. at 219; King
County Fire Prot. Dist., 123 Wn.2d at 833. The title and structure of the act indicate
that it relates to taxes. The definition of a “tax, fee, or other assessment on groceries”
lists only illustrative taxes—such as a “sales tax, gross receipts tax, business and
occupation tax, business license tax, excise tax, [or] privilege tax”—“or any other
similar levy, charge, or exaction of any kind.” RCW 82.84.030(5) (emphasis added).
Further, the findings and declarations under RCW 82.84.020 emphasize access to
food as “a basic human need,” that keeping the price of groceries low improves
access to food, and that “taxing groceries is regressive and hurts low- and fixedincome Washingtonians the most.” RCW 82.84.020(1), (3). An average informed
lay voter would read this law to prohibit taxes on groceries consistent with the
common meaning as a compulsory charge for the support of the government.
The City’s premium pay ordinance does not impose a tax on groceries. It
requires food delivery network companies to pay their workers, and the money flows
directly to those workers, not to the government or the general public. The ordinance
commands food delivery network companies to “provide each gig worker with
premium pay for each online order.” Seattle Ordinance 126094, at 13; see also id.
at 8, 10 (defining “compensation” as “the total payment owed to a gig worker by
reason of working for the [food delivery network company]” and “premium pay” as
“additional compensation owed to a gig worker” (emphasis added)). Whereas a tax
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is a forced contribution of money to the public treasury or for public purposes,
Amalg. Transit Union, 142 Wn.2d at 219-21, the ordinance requires food delivery
network companies to make a payment directly to their workers. Thus, the premium
pay required by the ordinance is not a “tax, fee, or other assessment on groceries” as
defined by RCW 82.84.030(5) because it does not raise money for the support of the
government.
Instacart argues that the definition of a “tax, fee, or other assessment on
groceries” should be read more broadly than the traditional common understanding
of “tax” because the statute includes the phrase “or any other similar levy, charge,
or exaction of any kind.” RCW 82.84.030(5) (emphasis added). Instacart argues
that the presence of the word “any” broadens the definition to mean “‘something
other than similar.’” Resp’ts’ Br. at 23 (quoting Amalg. Transit Union, 142 Wn.2d
at 193).
We disagree. As we have explained, the phrases “tax, fee, or other assessment
on groceries” and “any other similar levy, charge, or exaction of any kind” do not
appear in a vacuum. We must interpret the terms in the context of the statutory
scheme and give the language of the definition provided by the voters its usual and
ordinary meaning. Taxpayers, 111 Wn.2d at 97; Campbell & Gwinn, 146 Wn.2d at
11. Moreover, we must not interpret a statute in a way that renders any portion of it
meaningless or superfluous, and such a reading would render the term “similar”
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superfluous. K.L.B., 180 Wn.2d at 742; Amalg. Transit Union, 142 Wn.2d at 220.
If the average informed voter would understand “tax” to be a compulsory charge for
the support of government, then “any other similar levy, charge, or exaction of any
kind” must be any kind of levy, charge, or exaction that is similar to the traditional
taxes listed as examples in the definition. RCW 82.84.030(5) (emphasis added);
Amalg. Transit Union, 142 Wn.2d at 220 (“similar” and “any” have contrasting
meaning).
The ordinance does not violate RCW 82.84.040 because premium pay to
workers is not a tax, as an average lay voter would understand the term. Therefore,
the trial court did not err in dismissing Instacart’s chapter 82.84 RCW claim. We
affirm.
II. Equal Protection
Second, Instacart alleges the ordinance violates the equal protection clause of
the federal constitution. U.S. CONST. amend. XIV, § 1 (“No state shall make or
enforce any law which shall . . . deny to any person within its jurisdiction the equal
protection of the laws.”). Instacart alleges there is no rational basis for differential
treatment for food delivery workers because they face lower risks than people who
work in grocery stores or restaurants, or who transport passengers in their vehicles.
“[E]qual protection is not a license for courts to judge the wisdom, fairness,
or logic of legislative choices.” Fed. Commc’ns Comm’n v. Beach Commc’ns, Inc.,
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508 U.S. 307, 313, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993). Social and economic
policies that do not involve suspect classifications, such as a race or nationality, or
fundamental constitutional rights “must be upheld against [an] equal protection
challenge if there is any reasonably conceivable state of facts that could provide a
rational basis for the classification.” Id.; see also Medina v. Pub. Util. Dist. No. 1 of
Benton County, 147 Wn.2d 303, 313, 53 P.3d 993 (2002). No suspect class exists
here; therefore, the parties agree we review Instacart’s equal protection claim under
the rational basis standard. Medina, 147 Wn.2d at 313.
“‘Equal protection does not require that all persons be dealt with identically,
but it does require that a distinction made have some relevance to the purpose for
which the classification is made.’” In re Det. of Dydasco, 135 Wn.2d 943, 951, 959
P.2d 1111 (1998) (internal quotation marks omitted) (quoting In re Pers. Restraint
of Young, 122 Wn.2d 1, 45, 857 P.2d 989 (1993)). On rational basis review, there is
a “strong presumption” of the law’s validity, and the challenger has the burden “‘to
negative every conceivable basis which might support it.’” Beach Commc’ns, 508
U.S. at 314-15 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356,
364, 93 S. Ct. 1001, 35 L. Ed. 2d 351 (1973)); Aetna Life Ins. Co. v. Wash. Life &
Disability Ins. Guar. Ass’n, 83 Wn.2d 523, 528, 520 P.2d 162 (1974) (“A statute’s
alleged unconstitutionality must be proven ‘beyond all reasonable doubt’ before it
may be struck down.” (quoting Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 270, 6
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L. Ed. 606 (1827))). Instacart fails to do so here; thus, this claim must be dismissed.
Instacart argues this ordinance treats food delivery network drivers differently
from other workers in restaurants or grocery stores or other gig economy workers
like ride-hail drivers for transportation network companies. But the equal protection
clause does not require the City to treat all gig workers the same. Under the
deferential standard of rational basis, courts should not scrutinize “the wisdom,
fairness, or logic of legislative choices” and should therefore uphold an ordinance as
long as “‘plausible reasons’” exist for its enactment. Beach Commc’ns, 508 U.S. at
313-14 (quoting U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179, 101 S. Ct. 453, 66 L.
Ed. 2d 368 (1980)). Further, “it is entirely irrelevant for constitutional purposes
whether the conceived reason for the challenged distinction actually motivated the
legislature.” Id. at 315.
Rational bases exist for the ordinance to provide protections for food delivery
network companies and their workers, aside from other kinds of workers. The City
recognized that the “availability of food delivery services is fundamental to the
health of the community” and that food delivery network drivers work on the front
lines in potentially hazardous conditions to provide the essential service of allowing
consumers to obtain sustenance without personally visiting stores and restaurants,
thereby promoting social distancing and minimizing the spread of the virus. Seattle
Ordinance 126094, at 6. Though workers in restaurants and grocery stores face risks
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while providing a similarly essential service of making food available to customers,
it is reasonable for the City to view the work of food delivery network drivers as
serving a different, additional purpose of minimizing person-to-person contact in
otherwise highly trafficked areas; it is likewise reasonable for the City to choose to
incentivize that work by requiring premium pay. Aetna Life Ins., 83 Wn.2d at 528-29 (Equal protection “forbids all invidious discrimination but does not require
identical treatment for all without recognition of difference in relevant
circumstances.”). Further, the ordinance is aimed at providing protections for gig
workers who do not receive the same workplace protections as employees. The City
could have rationally concluded hazard pay was necessary for these gig workers
because they work as independent contractors and are therefore more vulnerable
than employees in the food and grocery industries.
While the parties may disagree as a matter of policy as to how the City should
protect gig workers and workers in the food and grocery industry against COVID19, this process of “line-drawing” is squarely within the ambit of the legislative
branch. Beach Commc’ns, 508 U.S. at 315-16 (“These restraints on judicial review
have added force ‘where the legislature must necessarily engage in a process of linedrawing’ . . . ‘the fact [that] the line might have been drawn differently at some
points is a matter for legislative, rather than judicial, consideration.’” (second
alteration in original) (quoting Fritz., 449 U.S. at 179)). Instacart has failed to show
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that there is no conceivable basis for this classification. As there is a rational basis
for the legislature to treat this class of workers differently, the judicial inquiry is
done. Id. at 313-14 (“Where there are ‘plausible reasons’ for [the legislature’s]
action, ‘our inquiry is at an end.’” (quoting Fritz, 449 U.S. at 179)); Fitzgerald v.
Racing Ass’n of Cent. Iowa, 539 U.S. 103, 108-09, 123 S. Ct. 2156, 156 L. Ed. 2d
97 (2003). Therefore, the equal protection claim should be dismissed, and we
reverse the trial court on this issue.
III. Privileges and Immunities
Third, Instacart alleges the ordinance violates the privileges and immunities
clause of the Washington Constitution. See WASH. CONST. art. I, § 12. Similar to
its equal protection argument, Instacart argues the ordinance singles out food
delivery network companies for disfavored treatment. It further argues that the
ordinance’s gig worker and consumer protection provisions “implicate Instacart’s
fundamental right to carry on business” in Washington. 1 CP at 89. We have only
held that this right is implicated in very narrow circumstances not alleged in the
complaint. Therefore, we reverse the trial court on this issue and dismiss the
privileges and immunities claim.
Washington’s privileges and immunities clause states, “No law shall be
passed granting to any citizen, class of citizens, or corporation other than municipal,
privileges or immunities which upon the same terms shall not equally belong to all
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citizens, or corporations.” WASH. CONST. art. I, § 12. We have often construed
article I, section 12 of the Washington Constitution to be consistent with the equal
protection clause of the Fourteenth Amendment. Ockletree v. Franciscan Health
Sys., 179 Wn.2d 769, 776, 317 P.3d 1009 (2014). We apply an independent state
constitutional analysis only when the legislation implicates a fundamental right to
state citizenship. Id. at 778; see also Martinez-Cuevas v. DeRuyter Bros. Dairy, 196
Wn.2d 506, 514-19, 475 P.3d 164 (2020). We apply a two-step analysis. “First, we
ask whether a challenged law grants a ‘privilege’ or ‘immunity’ for purposes of our
state constitution.” Martinez-Cuevas, 196 Wn.2d at 519 (quoting Schroeder v.
Weighall, 179 Wn.2d 566, 573, 316 P.3d 482 (2014)). If the answer is no, then
article I, section 12 is not implicated. Ockletree, 179 Wn.2d at 776. “If the answer
is yes, then we ask whether there is a ‘reasonable ground’ for granting that privilege
or immunity.” Martinez-Cuevas, 196 Wn.2d at 519 (quoting Schroeder, 179 Wn.2d
at 573). For purposes of article I, section 12 analysis, “the terms ‘privileges and
immunities’” “‘pertain alone to those fundamental rights which belong to the
citizens of the state by reason of such citizenship.’” Am. Legion Post No. 149 v.
Dep’t of Health, 164 Wn.2d 570, 607, 192 P.3d 306 (2008) (internal quotation marks
omitted) (quoting Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 150
Wn.2d 791, 812-13, 83 P.3d 413 (2004)).
Instacart alleges the ordinance implicates the fundamental “right to remove to
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and carry on business therein.” State v. Vance, 29 Wash. 435, 458, 70 P. 34 (1902);
see also Martinez-Cuevas, 196 Wn.2d at 536. But we have found this right
implicated only in very narrow circumstances. In Ralph v. City of Wenatchee, 34
Wn.2d 638, 209 P.2d 270 (1949), this court held that an ordinance requiring license
fees of photographers who were not residents of Wenatchee violated article I, section
12 of the Washington Constitution because it prohibited a class of businesses to the
benefit of another class of the same business. There, the ordinance required only
“transient” or “itinerant’ photographers who were not “bona fide resident[s] of the
city of Wenatchee or vicinity” to apply for a license to engage in the business of
photography before they could engage in that business. Id. at 639. The ordinance
required the license to be paid in advance and renewed upon expiration and made it
unlawful for a nonresident photographer to do business in Wenatchee without a
license, punishable by a fine and/or imprisonment. Id. at 639-40. This court
concluded that the ordinance violated the state privileges and immunities clause
because it “discriminates unreasonably” against a class of business—nonresident
photographers—by prohibiting their business in favor of the business of another
class of the same business—resident photographers. Id. at 641; see also Ass’n of
Wash. Spirits & Wine Distrib. v. Wash. State Liquor Control Bd., 182 Wn.2d 342,
360-62, 340 P.3d 849 (2015). The court also concluded that the ordinance’s
prohibition on solicitation for photographic work was designed “substantially to
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prohibit activity of nonresident photographers in the city of Wenatchee.” Ralph, 34
Wn.2d at 642. That part of the ordinance “effectively prohibited nonresidents from
engaging in the photography business.” Am. Legion Post, 164 Wn.2d at 608.
Here, Instacart merely alleges that the ordinance implicates the fundamental
right to carry on business because it treats food delivery network companies
differently from taxis, transportation network companies, and other grocery and food
providers. But the ordinance does not treat classes of the same business differently;
as we have explained supra, food delivery network companies provide a different
service, and the drivers and shoppers who work for them do so under different
circumstances than those other businesses. See Ass’n of Wash. Spirits & Wine
Distrib., 182 Wn.2d at 362. They are not different classes of the same business but,
rather, different businesses. Cf. id. (licensing fee structure did “not unfairly
discriminate against a class of businesses to the benefit of another class of the same
businesses; it merely assign[ed] a uniform fee to the class of individuals” who sell
spirits under a particular kind of license). Additionally, Instacart does not allege that
it is effectively prohibited from engaging in business as a result of the ordinance,
only that it receives disfavored treatment.
Instacart has not met its burden to show that a fundamental right of state
citizenship is implicated. Therefore, the Washington Constitution privileges and
immunities claim should be dismissed, and we reverse the trial court on this issue.
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IV. Takings Clauses
Fourth, Instacart alleges the ordinance takes private property for public use
without just compensation in violation of the takings clause of the United States and
Washington Constitutions. U.S. CONST. amend. V; WASH. CONST. art. I, § 16. The
trial court correctly declined to dismiss this claim, which requires factual
development and assessment. We affirm.
Both the United States and the Washington Constitutions prohibit the taking
of private property for public use without just compensation. U.S. CONST. amend.
V; WASH. CONST. art. I, § 16; see Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536-37, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005) (characterizing the takings clause as
placing a condition on the exercise of the power to take private property). Though
“[t]he paradigmatic taking requiring just compensation is a direct government
appropriation or physical invasion of private property,” courts have also recognized
regulatory takings that limit property owner’s lawful uses without physically
appropriating land. Chevron, 544 U.S. at 537; Cedar Point Nursery v. Hassid, 594
U.S. ___, 141 S. Ct. 2063, 2071-72, 210 L. Ed. 2d 369 (2021). We apply the same
definition of a regulatory taking under the Washington and United States
Constitutions. Chong Yim v. City of Seattle, 194 Wn.2d 651, 658-59, 451 P.3d 675
(2019) (Chong Yim I).
A regulation that is otherwise a valid exercise of police power may go “‘too
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far’” in its impact on a property owner as to constitute a taking, requiring
compensation.10 Id. at 660 (quoting Pa. Coal Co. v. Mahon, 260 U.S. 393, 415, 43
S. Ct. 158, 67 L. Ed. 322 (1922)); Chevron, 544 U.S. at 543 (holding that an inquiry
into a regulation’s validity is “logically prior to and distinct from the question
whether a regulation effects a taking, for the Takings Clause presupposes that the
government has acted in pursuit of a valid public purpose”). Here, Instacart has
alleged a regulatory taking in the complaint, and the inquiry as to whether a
regulation goes “too far” depends on the circumstances of the case.
As a preliminary matter, it is necessary to identify what “property” Instacart
alleges the City has taken. Instacart acknowledges that the ordinance does not
appropriate real or tangible property. Instacart describes itself as a “technologybased platform” without a storefront, whose “business consists of contracts” with
independent contractors who shop for and deliver groceries. Wash. Sup. Ct. oral
argument, Wash. Food Indus. Assoc. v. City of Seattle, No. 99771-3 (Feb. 17, 2022),
10
The problem of an excessive regulation may implicate either the question of whether it
exceeds the scope of police powers or whether it amounts to a taking, requiring just compensation.
See Orion Corp. v. State, 109 Wn.2d 621, 648-49, 747 P.2d 1062 (1987), abrogated on other
grounds by Chong Yim v. City of Seattle, 194 Wn.2d 682, 451 P.3d 694 (2019) (Chong Yim II).
Though the doctrines have, at times, been blurred, see, e.g., id. at 645-48, the analyses—and,
moreover, the remedies—are distinct. The remedy for an excessive police power regulation is
invalidation, whereas the remedy for a taking is just compensation. Id. at 649; Chong Yim I, 194
Wn.2d at 660. The takings clause “‘is designed not to limit the governmental interference with
property rights per se, but rather to secure compensation in the event of otherwise proper
interference amounting to a taking.’” Chevron, 544 U.S. at 537 (quoting First Eng. Evangelical
Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315, 107 S. Ct. 2378, 96 L.
Ed. 2d 250 (1987)).
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at 30 min., 47 sec. to 30 min., 54 sec., video recording by TVW, Washington State’s
Public Affairs Network, http://www.tvw.org. It argues the ordinance renders those
contracts commercially impracticable and appropriates Instacart’s property rights in
its business for the private benefit of the food delivery network workers receiving
premium pay.
Though takings claims most often involve physical invasions on real property
or land use regulations, they are not limited to those forms of property. Intangible
property rights, including valid contracts, are protected by the takings clause.
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003-04, 104 S. Ct. 2862, 81 L. Ed. 2d
815 (1984) (holding that trade secrets were property for purposes of takings
analysis); see also Omnia Com. Co. v. United States, 261 U.S. 502, 508, 43 S. Ct.
437, 67 L. Ed. 773 (1923) (“The contract in question was property within the
meaning of the Fifth Amendment.”); Lynch v. United States, 292 U.S. 571, 579, 54
S. Ct. 840, 78 L. Ed. 1434 (1934) (same). Thus, Instacart’s contracts with food
delivery network workers are property for purposes of our analysis.
“Regulatory takings cases involve a ‘remedial question of how compensation
is measured once a regulatory taking is established.’” Chong Yim I, 194 Wn.2d at
668 (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Plan. Agency, 535 U.S.
302, 328, 122 S. Ct. 1465, 152 L. Ed. 2d 517 (2002)). When the government
regulates the use of property, the takings clause requires compensation “only if
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considerations such as the purpose of the regulation or the extent to which it deprives
the owner of the economic use of the property suggest that the regulation” unfairly
imposes on the property owner “a burden that should be borne by the public as a
whole.” Yee v. City of Escondido, 503 U.S. 519, 522-23, 112 S. Ct. 1522, 118 L.
Ed. 2d 153 (1992).
First, however, before reaching the question of compensation, it must be
shown that the “‘regulation at issue had in fact constituted a taking.’” Chong Yim I,
194 Wn.2d at 668 (quoting Tahoe-Sierra Pres. Council, 535 U.S. at 328). Though
the government may impose some regulations on property, “‘if regulation goes too
far it will be recognized as a taking.’” Id. at 660 (quoting Pa. Coal Co., 260 U.S. at
415). Regulatory takings may be characterized as “per se” or “partial.” Id. A per se
regulatory taking occurs only when regulations require an owner to tolerate a
permanent physical invasion of their property or “‘completely deprive an owner of
all economically beneficial us[e] of [their] property.’” Id. at 672 (first alteration in
original) (internal quotation marks omitted) (quoting Chevron, 544 U.S. at 538). On
the other hand, a partial taking is more nuanced and “must be analyzed on a caseby-case basis according to the Penn Central [Transportation Co. v. New York City,
438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978)] factors.” Id. at 670; Chevron,
544 U.S. at 548. 11
11
The City argues that under Omnia, 261 U.S. 502, a takings claim involving contract
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There is no “set formula” to determine when the impact of a regulation
becomes a taking and requires compensation because the inquiry “depends largely
‘upon the particular circumstances [in each] case.’” Penn Cent., 438 U.S. at 124
(quoting United States v. Cent. Eureka Mining Co., 357 U.S. 155, 168, 78 S. Ct.
1097, 2 L. Ed. 2d 1228 (1958)). Nonetheless, in Penn Central, the United States
Supreme Court announced a multifactor test for analyzing partial regulatory takings
claims. Id. We consider the following factors on a case-by-case basis: (1) “[t]he
economic impact of the regulation on the claimant,” (2) “the extent to which the
regulation has interfered with distinct investment-backed expectations,” and (3) “the
character of the governmental action.” Id. In Chevron, the Court clarified that this
inquiry “aims to identify regulatory actions that are functionally equivalent to the
classic taking in which government directly appropriates private property or ousts
the owner from [their] domain.” 544 U.S. at 539. 12
rights as property cannot be premised on mere impairment or frustration of its contract rights or
expectations, but government must actually acquire or appropriate those rights to amount to a
compensable taking. However, that case, involving a steel contract in 1917, predates by over half
a century the multifactor test for regulatory takings announced in Penn Central. As this court and
the United States Supreme Court has explained, aside from the “two relatively narrow categories”
of per se takings, regulatory takings challenges are subject to the standards set forth in Penn
Central. Chevron, 544 U.S. at 538; Chong Yim I, 194 Wn.2d at 670.
12
We have explained,
Those factors are intended to shed light on “the magnitude or character of the
burden a particular regulation imposes upon private property rights” and to provide
“information about how any regulatory burden is distributed among property
owners.” The factors explicitly do not ask “whether a regulation of private property
is effective in achieving some legitimate public purpose.”
Chong Yim I, at 671-72 (citation omitted) (quoting Chevron, 544 U.S. at 542).
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This test involves “factual assessments” and “turns in large part, albeit not
exclusively, upon the magnitude of a regulation’s economic impact and the degree
to which it interferes with legitimate property interests.” Yee, 503 U.S. at 523;
Chevron, 544 U.S. at 540 (emphasis added). “Consistent with this understanding,
[courts] have described determinations of liability in regulatory takings cases as
‘essentially ad hoc, factual inquiries,’ requiring ‘complex factual assessments of the
purposes and economic effects of government actions.’” City of Monterey v. Del
Monte Dunes at Monterey, Ltd., 526 U.S. 687, 720, 119 S. Ct. 1624, 143 L. Ed. 2d
882 (1999) (citation omitted) (internal quotation marks omitted) (quoting Lucas v.
S.C. Coastal Council, 505 U.S. 1003, 1015, 112 S. Ct. 2886, 120 L. Ed. 2d 798
(1992); Yee, 503 U.S. at 523).
We conclude that Instacart’s takings claim should not be dismissed. Instacart
may be able to prove a set of facts that demonstrates the ordinance interferes with
its economic interests to a degree that amounts to a taking under the Penn Central
test. See Berst v. Snohomish County, 114 Wn. App. 245, 257-58, 57 P.3d 273 (2002)
(reversing a dismissal under CR 12(b)(6) when the complaint alleged the challenged
law prevented the plaintiffs from making reasonable use of their property).
Specifically, Instacart has alleged that the ordinance has a significant economic
impact because the premium pay requirement and the limitations on how food
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delivery network companies can defray those costs are “unsustainable” and render
its contracts with drivers “commercially impracticable.” 1 CP at 85-86; see Pa. Coal
Co., 260 U.S. at 414 (statute that made it “commercially impracticable to mine
certain coal” amounted to a taking). However, the economic impact, extent of
interference with investment-backed expectations, and character of the regulation
are highly factual inquiries. Monterey, 526 U.S. at 720; Chevron, 544 U.S. at 540.
Absent more factual development, it is impossible to ascertain the economic impact
of the ordinance on Instacart’s business model—an inquiry that may require
information about Instacart’s contracts with the grocery stores and the pay structure
with drivers. See Penn Cent., 438 U.S. at 124. This factual inquiry into the
magnitude and degree to which the ordinance affects Instacart’s contracts is
appropriate for the trial court, not this court.
Dismissal upon a CR 12(b)(6) motion is proper only if the court concludes the
plaintiff cannot prove any set of facts consistent with the complaint that would
justify recovery. Kinney, 159 Wn.2d at 842. Instacart has sufficiently alleged that
the ordinance amounts to a regulatory taking; Instacart may be able to show that the
ordinance interferes with its investment-backed expectations to the degree that is
“functionally equivalent to the classic taking.” Chevron, 544 U.S. at 539; Berst, 114
Wn. App. 2d at 257-58. Therefore, the takings clause claim should not be dismissed,
and we affirm the trial court on this issue.
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V. Contracts Clauses
Fifth, Instacart argues the ordinance impairs existing contractual rights in
violation of the contracts clauses of the Washington and United States Constitutions.
U.S. CONST. art. I, § 10, cl. 1; WASH. CONST. art. I, § 23. Instacart alleges the
ordinance interferes with its “Independent Contractor Agreement” with food
delivery network workers; Instacart references that document in the complaint, but
the agreement is not part of the record before this court, as the parties have not yet
engaged in discovery. Specifically, Instacart alleges the ordinance interferes with
three provisions of the agreement: (a) Instacart’s right to modify the terms of account
access, (b) Instacart’s right to limit availability of the platform, and (c) Instacart’s
right to “stop providing access to the Instacart Platform services” whenever it deems
“necessary.” 1 CP at 87. Instacart argues the ordinance alters obligations and
deprives it of the benefit of these provisions.
Article 1, section 23 of Washington’s constitution prohibits the State from
passing a “law impairing the obligations of contracts.” The federal constitution’s
language is substantially similar. U.S. CONST. art. I, § 10, cl. 1 (“No state shall. . .
pass any. . . law impairing the obligation of contracts.”). We have read our state
contracts clause as coextensive with the federal constitution’s contracts clause when
neither party has argued to the contrary. Tyrpak v. Daniels, 124 Wn.2d 146, 151,
874 P.2d 1374 (1994). Despite the clauses’ unqualified language, the prohibition
34
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Wash. Food Indus. Ass’n, et al. v. City of Seattle
No. 99771-3
against the impairment of contracts is not absolute. Home Bldg. & Loan Ass'n v.
Blaisdell, 290 U.S. 398, 428, 54 S. Ct. 231, 236, 78 L. Ed. 413 (1934) (this
“prohibition is not an absolute one and is not to be read with literal exactness”). The
contracts clauses’ prohibitions must accommodate “the inherent police power of the
State ‘to safeguard the vital interests of its people.’” In re Est. of Hambleton, 181
Wn.2d 802, 830, 335 P.3d 398 (2014) (internal quotation marks omitted) (quoting
Energy Rsrvs. Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400, 410, 103 S. Ct.
697, 74 L. Ed. 2d 569 (1983)).
The threshold question is “‘whether the state law has, in fact, operated as a
substantial impairment of a contractual relationship.’” Id. (internal quotation marks
omitted) (quoting Energy Rsrvs Grp., 459 U.S. at 411). We consider the “extent to
which the law undermines the contractual bargain, interferes with a party's
reasonable expectations, and prevents the party from safeguarding or reinstating
[their] rights” when determining whether there has been a substantial impairment of
a contract between private parties. Sveen v. Melin, 584 U.S. ___, 138 S. Ct. 1815,
1822, 201 L. Ed. 2d 180 (2018). If the contract has been substantially impaired, we
then ask whether the law “is drawn in an ‘appropriate’ and ‘reasonable’ way to
advance ‘a significant and legitimate public purpose.’” Id. (quoting Energy Rsrvs.
Grp., 459 U.S. at 411); Tyrpak, 124 Wn. 2d at 156. The State may advance a
legitimate purpose by remedying a general social or economic problem, and the law
35
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Wash. Food Indus. Ass’n, et al. v. City of Seattle
No. 99771-3
need not only be in response to an emergency. See Energy Rsrvs. Grp., 459 U.S. at
412.
Taking the factual allegations in the complaint to be true, Instacart has a
contractual relationship with its drivers, governed by the Independent Contractor
Agreement. Instacart argues the ordinance substantially impairs these contracts
because the premium pay requirement and consumer protection provisions “broadly
adjust[] the rights and responsibilities under existing contracts.” 1 CP at 87.
Instacart may be able to prove a set of facts that show a substantial impairment.
However, the inquiry into the extent to which the law undermines the bargain,
interferes with reasonable expectations, or prevents a party from safeguarding their
rights involves factual assessment. Sveen, 138 S. Ct. at 1822; see Tyrpak, 124 Wn.2d
at 153-55 (relying on testimony to evaluate whether a statute substantially impaired
a port district’s obligations to its bondholders); Energy Rsrvs. Grp., 459 U.S. at 414-16 (determining that the plaintiff’s reasonable expectations had not been impaired
in the context of the regulatory background and the text of statements of intent the
parties included in drafting the contracts).
We therefore do not reach the second prong of the analysis to determine
whether the impairment was a reasonable and necessary exercise of the City’s
power. See Sveen, 138 S. Ct. at 1822 n.3 (declining to abandon this two-step
contracts clause analysis). Like the regulatory takings claim, the first step of the
36
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Wash. Food Indus. Ass’n, et al. v. City of Seattle
No. 99771-3
contracts clause claim involves questions of degree. The extent to which the
ordinance impairs Instacart’s contracts is a factual question we cannot resolve on the
limited record before us. Instacart has sufficiently alleged a contracts clause claim
and may be able to prove a set of facts showing the ordinance’s premium pay
requirement and consumer protection provisions interfere with reasonable
expectations about the independent contractor agreements to a degree that rises to
the level of substantial impairment. For that reason, the contracts clause claim
should proceed to discovery to determine the degree to which Instacart’s contracts
have been impaired. Therefore, the contract clause claim should not be dismissed,
and we affirm the trial court on this issue.
VI. 42 U.S.C. § 1983 Damages
Next, Instacart alleges that it should be entitled to recover damages and
attorney fees because the City has, under the color of law, violated Instacart’s rights
protected by the United States Constitution and federal law. 42 U.S.C. § 1983. This
court concludes that Instacart’s equal protection, takings clause, and contracts clause
claims should not be dismissed. Therefore, the 42 U.S.C. § 1983 damages claim
should also not be dismissed. The City may be liable for damages if the ordinance
violates a clause of the United States Constitution. Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) (local governing bodies can
be sued for damages under 42 U.S.C. § 1983). Therefore, we affirm.
37
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Wash. Food Indus. Ass’n, et al. v. City of Seattle
No. 99771-3
CONCLUSION
As we have sorted through the ways to deal with a major public health
emergency like COVID-19, different communities have responded with their own
requirements and ways to maintain public health and safety. Seattle’s approach to
protecting gig economy workers during this time raises several questions that we can
answer prior to trial and several we cannot. The nature of this public health
emergency is constantly changing, and this case as presented requires us to evaluate
the claims based on no factual record. That said, we resolve these claims in the
manner stated below.
The chapter 82.84 RCW claim, the equal protection claim, and the privileges
and immunities claim should be dismissed. The regulatory takings claim, contracts
clause claim, the 42 U.S.C. § 1983 damages claim, and the police powers claim (see
concurrence (Johnson, J.) at 4-5) should not be dismissed. We affirm in part, reverse
in part, and remand to the trial court for further proceedings consistent with this
opinion.
38
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Wash. Food Indus. Ass’n, et al. v. City of Seattle
No. 99771-3
WE CONCUR:
39
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Wash. Food Indus. Ass’n v. City of Seattle
(Johnson, J., concurring)
No. 99771-3
JOHNSON, J. (concurring)—I concur in the lead opinion and write
separately on the police power violations claim. The rule our cases have developed
to date, i.e., for claims challenging enactments as exceeding the constitutional
police power, requires that a law must promote the health, safety, peace, education,
or welfare of the people. The law must also bear some reasonable relationship to
the purpose underlying the law. See Weden v. San Juan County, 135 Wn.2d 678,
958 P.2d 273 (1998), abrogated on other grounds by Chong Yim v. City of Seattle,
194 Wn.2d 682, 451 P.3d 694 (2019). Importantly, the analysis focuses on the law
being challenged, not on some law that might have been enacted. The police power
is broad, but not unlimited.
Our cases establish that we presume all facts alleged in the complaint to be
true and may consider hypothetical facts supporting the plaintiff’s claims when
reviewing the sufficiency of a claim under CR 12(b)(6). Reviewing a ruling under
CR 12(b)(6) presents the situation where, at this stage of the case, we know no For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Wash. Food Indus. Ass’n v. City of Seattle, No. 99771-3
(Johnson, J., concurring)
facts, just allegations, while our review is deferential to the plaintiff. And here, the
Washington Food Industry Association and Maplebear Inc., d/b/a Instacart, have
supported their claims with sufficient factual allegations. The trial court properly
applied our rule and determined that dismissal of the police powers issue was not
appropriate at this time.
First, the trial court noted the setting in which the motion was brought—a
CR 12(b)(6) motion—which requires the court to give credit to all well-pleaded
allegations. Those allegations must be accepted as true, with all reasonable
inferences viewed in the light most favorable to the plaintiffs. Hypothetical facts
may also be assumed to test the challenge to the complaint at this stage.
Second, the trial court pointed out the unique nature of the ordinance itself,
which not only regulates compensation to drivers but precludes plaintiffs from
adjusting their business model to offset the cost of the imposed regulatory
expenses. The regulation imposed a hazard pay requirement, $2.50 per delivery,
and prohibited Instacart from passing this surcharge on to consumers. Instacart also
claims that the ordinance forbids food delivery network companies (FDNCs) from
altering the areas they serve and forces them to continue providing access to their
platform regardless of changes in demand, that it sets price controls, and that it
prohibits them from changing their business model, essentially requiring FDNCs to
operate like public utilities. 1 Clerk’s Papers at 71-72.
2
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Wash. Food Indus. Ass’n v. City of Seattle, No. 99771-3
(Johnson, J., concurring)
Third, the complaint and Instacart’s claim asserts that the ordinance and the
city’s justification is a mere pretext. Instacart states that the ordinance in question
was a political favor to special interest groups to regulate the “gig economy” and to
specifically target their operations. They claim that the city council had a close
working relationship with Working Washington and other labor groups interested
in regulating the gig economy. This was evidenced by the city’s willingness to
remove Transportation Network Company (TNC) drivers from the draft bill, as
requested by the Teamsters, excluding them from the emergency relief that is
supposedly critical for food delivery drivers. Since TNC drivers are members of
the “essential workforce” declared by the governor, their exclusion from the
ordinance appears arbitrary and undermines the legitimacy of the legislation since
drivers transporting passengers are more vulnerable to COVID-19 than drivers
transporting groceries. Instacart asserts that the purpose was not to respond to the
emergency but to implement the wage goals of organized labor.
Fourth, the decision of the trial court was supported by allegations that there
was no real need for the ordinance because delivery services were thriving, and
compensation to drivers was at a record high. The city ordinance purported that the
goal was to raise pay to ensure adequate supply of delivery persons, but Instacart
points out that they had no trouble tripling the number of independent contractors
to meet demand because delivery persons were already working and earning more
3
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Wash. Food Indus. Ass’n v. City of Seattle, No. 99771-3
(Johnson, J., concurring)
as a result of the pandemic. Normal market forces had already balanced supply and
demand for grocery delivery services. The council failed to consider the fact that
actual driver compensation had already exceeded, by double, the city’s target
minimum wage. Instacart asserts that the oversight of this fact by the city council
was arbitrary and unreasonable.
Finally, implicit in the allegation is the argument that the ordinance fails to
advance the public health goal. The drivers make, in essence, the same deliveries,
coming into contact with the same people and in all respects operate in the same
manner. The ordinance simply requires more pay. Perhaps if the ordinance
imposed masking requirements, distancing restrictions, cleanliness practices, or
any more typical public health suggestions, a stronger connection would exist. The
ordinance adopts none of these protections—it primarily alters pay. At this stage,
without knowing more facts or having discovery, the allegations must survive a CR
12(b)(6) motion.
Presuming all these facts and allegations are true, as we must at this stage in
the litigation, Instacart has alleged sufficient facts that the ordinance does nothing
to promote the health, safety, and welfare of people during the pandemic. Instacart
may be able to establish, in a trial, that the imposition of hazard pay has no rational
connection to protecting public health. Instacart should be allowed the opportunity
to develop facts supporting this claim.
4
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Wash. Food Indus. Ass’n v. City of Seattle, No. 99771-3
(Johnson, J., concurring)
CONCLUSION
Further factual development is required before Instacart’s police power
claim can be answered appropriately. We affirm the trial court on this claim. On all
other issues I concur with the lead opinion.
5
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Wash. Food Indus. Ass’n, et al. v. City of Seattle, No. 99771-3
(Stephens, J., concurring in part, dissenting in part)
No. 99771-3
STEPHENS, J. (concurring in part, dissenting in part)—The Washington
Food Industry Association and Maplebear Inc., d/b/a Instacart, challenge Seattle
Ordinance 126094. The ordinance—enacted amid the COVID-19 pandemic and
stay-at-home orders—authorizes hazard pay for gig workers1 who deliver food to
consumers’ homes and regulates various other aspects of Instacart’s business.
Instacart raises seven potential grounds for invalidating the ordinance. I join the lead
opinion with respect to Instacart’s claims under RCW 82.84, the equal protection
clause, takings clause, contracts clause, and 42 U.S.C. § 1983. I also join the partial
dissent by Justice Montoya-Lewis because I would reverse the superior court and
dismiss the police powers claim.
1
See lead opinion at 7 n.8.
1
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Wash. Food Indus. Ass’n, et al. v. City of Seattle, No. 99771-3
(Stephens, J., concurring in part, dissenting in part)
I write separately with respect to Instacart’s privileges and immunities claim.
I would affirm the decision below allowing this claim to go forward. Instacart has
alleged facts sufficient to defeat a CR 12(b)(6) motion and it is therefore entitled to
discovery on its privileges and immunities claim. On this issue, I respectfully
dissent.
ANALYSIS
The Washington Constitution provides that “[n]o law shall be passed granting
to any citizen, class of citizens, or corporation other than municipal, privileges or
immunities which upon the same terms shall not equally belong to all citizens, or
corporations.” WASH. CONST. art. I, § 12. If a challenged law implicates or
encroaches on a fundamental right of state citizenship, we conduct an independent
state constitutional analysis. Martinez-Cuevas v. DeRuyter Bros. Dairy, 196 Wn.2d
506, 518-19, 475 P.3d 164 (2020). We first ask whether the challenged law grants
a “privilege” or “immunity” and, if so, whether there is a “reasonable ground” for
granting that immunity. Id. at 519.
As the lead opinion acknowledges, the right to carry on business in
Washington is a fundamental right of state citizenship that triggers an independent
privileges and immunities analysis. State v. Vance, 29 Wash. 435, 458, 70 P. 34
2
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Wash. Food Indus. Ass’n, et al. v. City of Seattle, No. 99771-3
(Stephens, J., concurring in part, dissenting in part)
(1902); see also lead opinion at 24. In this context, “a ‘privilege’ normally relates
to an exemption from a regulatory law that has the effect of benefiting certain
businesses at the expense of others.” Am. Legion Post No. 149 v. Dep’t of Health,
164 Wn.2d 570, 607, 192 P.3d 306 (2008) (upholding statutory prohibition on
smoking in the workplace because it did not burden any entity’s ability to engage in
business and therefore no “privilege” was involved).
Instacart claims the Seattle ordinance burdens its fundamental right to carry
on business and unfairly discriminates between similarly situated businesses.
Specifically, Instacart attacks the hazard pay requirement and several provisions that
prohibit it from restricting the geographic areas it chooses to serve, adding customer
charges to online orders, and reducing compensation or otherwise limiting the
earning capacity of workers. 1 Clerk’s Papers (CP) at 79. Instacart argues that
collectively, these provisions “intrude into [its] core business and operations
decisions” and will prohibit it “from managing its business to profitability.” Id. at
79, 83. Moreover, the ordinance “singles out [food delivery network companies] for
uniquely disfavored treatment, placing no similar burdens on taxis, [transportation
network companies], or any other businesses or service providers in the grocery and
food industry.” Id. at 89.
3
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Wash. Food Indus. Ass’n, et al. v. City of Seattle, No. 99771-3
(Stephens, J., concurring in part, dissenting in part)
Instacart’s factual allegations sufficiently implicate a right this court has long
recognized as fundamental under our privileges and immunities clause: the right to
carry on a business. The stated purpose of the ordinance is to protect gig workers
who provide essential services during the COVID-19 pandemic and, as a result,
“face magnified risks of catching or spreading disease” due to the nature of their
work. Seattle Ordinance 126094, at 1 (June 26, 2020),
https://www.seattle.legistar.com/View.ashx?M=F&ID=8656949&GUID=450BE06
7-D41F-4C49-A3C9-7A7D67A2DB9D [https://perma.cc/EK26-TWEX]. In doing
so, however, it imposes significant burdens on Instacart that similarly situated
businesses do not face, including increased operating costs and restrictions on
internal management authority. The ordinance singles out food delivery network
companies such as Instacart and it does not apply to transportation network
companies such as Uber and Lyft—even though workers in both of these business
are considered gig workers and they all face magnified health risks due to the nature
of their work. 1 CP at 77. Instacart’s allegations, which we accept as true at this
stage of proceedings, indicate the city may lack a “reasonable ground” for
distinguishing between food delivery network companies and transportation
network companies. Martinez-Cuevas, 196 Wn.2d at 519.
4
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Wash. Food Indus. Ass’n, et al. v. City of Seattle, No. 99771-3
(Stephens, J., concurring in part, dissenting in part)
Relying on Ralph v. City of Wenatchee, 34 Wn.2d 638, 209 P.2d 270 (1949),
the lead opinion would dismiss Instacart’s privileges and immunities claim partly
because “Instacart does not allege that it is effectively prohibited from engaging in
business as a result of the ordinance, only that it receives disfavored treatment.”
Lead opinion at 26 (emphasis added). This reasoning erroneously interprets Ralph
as limiting the fundamental right to carry on business to only those cases where a
challenged law bars one from engaging in business altogether. But the privilege of
conducting business in Washington is not so limited.
Ralph involved two separate provisions of one city ordinance: (1) a license
requirement for nonresident photographers and (2) a ban on public and door-to-door
solicitation of photographic work. Ralph, 34 Wn.2d at 641-42. We held the license
requirement violated article I, section 12 of the Washington Constitution because it
“discriminate[d] unreasonably” against nonresident photographers. Id. at 641. In
contrast, the ban on solicitation constituted an abuse of the police power because its
primary purpose was to “protect[] local photographers from lawful competition, and
was thereby designed to serve private interests in contravention of common rights.”
Id. at 644. We further observed that the effect of this second provision was
“substantially to prohibit activity of nonresident photographers in the city of
Wenatchee.” Id. at 642. This effective bar on nonresident photographers was
5
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Wash. Food Indus. Ass’n, et al. v. City of Seattle, No. 99771-3
(Stephens, J., concurring in part, dissenting in part)
relevant to our police powers analysis, but not to our privileges and immunities
analysis.
Ralph does not require Instacart to show that the ordinance bars it from
engaging in business altogether in order to state a privileges and immunities claim.
Under Ralph, Instacart must show only that the ordinance imposes unique burdens
and thereby “discriminates unreasonably” against it. Ralph, 34 Wn.2d at 641.
Instacart has pleaded sufficient facts of unreasonable discrimination to survive a
motion to dismiss. Such motions should be granted only sparingly, Kinney v. Cook,
159 Wn.2d 837, 842, 154 P.3d 206 (2007), and the facts alleged here demonstrate
that Instacart can prove a fundamental right and unreasonable discrimination, so
dismissal is inappropriate.
CONCLUSION
The superior court properly held that Instacart has alleged facts sufficient to
proceed with its privileges and immunities claim, and it is therefore entitled to
discovery in support of that claim. I would affirm the superior court on this issue.
6
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Wash. Food Indus. Ass’n v. City of Seattle
(Gordon McCloud, J., concurring in part/dissenting in part)
No. 99771-3
GORDON McCLOUD, J. (concurring in part/dissenting in part)—I agree
with the bulk of the trial court’s decisions in this case. Specifically, I agree with its
decision to dismiss the RCW 82.84 claim and to deny the motion to dismiss the
takings clause, contracts clause, and 42 U.S.C. § 1983, police power, and state
privileges and immunities clause claims. The only decision on which I disagree
with the trial court is that it denied dismissal of the federal equal protection clause
claim; I would dismiss that claim.
As a result, I join the portions of the lead opinion that affirm the trial court’s
dismissal of the RCW 82.84 claim, affirm the trial court’s denial of the motion to
dismiss the takings clause claim, affirm the trial court’s denial of the motion to
dismiss the contracts clause claim, affirm the trial court’s denial of the motion to
dismiss the 42 U.S.C. § 1983 claim, and reverse the trial court’s denial of the
motion to dismiss the federal equal protection clause claim.
But I join the concurrence by Justice Johnson, to the extent that it would
affirm the denial of the motion to dismiss the police powers claim.
1
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Wash. Food Indus. Ass’n v. City of Seattle
(Gordon McCloud, J., concurring in part/dissenting in part)
And I join the concurrence/dissent by Justice Stephens, to the extent that it
would affirm the denial of the motion to dismiss the state privileges and
immunities clause claim.
2
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Wash. Food. Indus. Ass’n v. City of Seattle, No. 99771-3
(Montoya-Lewis, J., dissenting in part)
No. 99771-3
MONTOYA-LEWIS, J. (dissenting in part)—The Washington Food Industry
Association and Maplebear Inc., d/b/a Instacart (collectively Instacart), allege
Seattle Ordinance 126094 exceeds the city of Seattle’s (City’s) police powers.
Instacart argues that the ordinance “is an arbitrary and irrational response to the
COVID-19 emergency, and the City Council’s intention in passing the [o]rdinance
was to promote labor organizations’ goals to organize certain workers for higher pay
by using the emergency as a pretext.” 1 Clerk’s Papers at 85. Instacart stresses that
the ordinance applies to workers delivering groceries and items from eating and
drinking establishments “while omitting many other workers who provide essential
services and come into greater contact with the public, and thereby are exposed to a
greater risk of viral contraction.” Id. A majority of the court concludes that Instacart
has alleged sufficient facts that the ordinance does not promote the health, safety,
and welfare of the people during the pandemic, and therefore that claim should not
be dismissed, affirming the trial court. Concurrence (Johnson, J.) at 2; concurring
in part/dissenting in part (Gordon McCloud, J.) at 1. Dismissal is appropriate under
1
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Wash. Food. Indus. Ass’n v. City of Seattle, No. 99771-3
(Montoya-Lewis, J., dissenting in part)
CR 12(b)(6) where, as here, the claim is legally insufficient even under the plaintiff’s
proffered hypothetical facts. In my view, Instacart has not raised a legally sufficient
challenge to the City’s exercise of police powers, and I would reverse the trial court
and dismiss that claim. I respectfully dissent.
We review a ruling on a CR 12(b)(6) motion de novo. Kinney v. Cook, 159
Wn.2d 837, 842, 154 P.3d 206 (2007). We presume all facts alleged in the complaint
to be true and may consider hypothetical facts supporting the plaintiff’s claims. Id.
Dismissal is proper only if the plaintiff’s claim remains legally insufficient even
under their proffered hypothetical facts and “the plaintiff cannot prove ‘any set of
facts which would justify recovery.’” Id. (quoting Tenore v. AT&T Wireless Servs.,
136 Wn.2d 322, 330, 962 P.2d 104 (1998)); Trujillo v. Nw. Tr. Servs., Inc., 183
Wn.2d 820, 830, 355 P.3d 1100 (2015).
The Washington Constitution grants every “county, city, town or township”
the power to “make and enforce within its limits all such local police, sanitary and
other regulations as are not in conflict with general laws.” WASH. CONST. art. XI, §
11. A city ordinance is valid under this provision “‘unless (1) the Ordinance
conflicts with some general law; (2) the Ordinance is not a reasonable exercise of
the [local government’s] police power; or (3) the subject matter of the Ordinance is
not local.’” Cannabis Action Coal. v. City of Kent, 183 Wn.2d 219, 226, 351 P.3d
151 (2015) (alteration in original) (quoting Weden v. San Juan County, 135 Wn.2d
2
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Wash. Food. Indus. Ass’n v. City of Seattle, No. 99771-3
(Montoya-Lewis, J., dissenting in part)
678, 692-93, 958 P.2d 273 (1998), abrogated on other grounds by Chong Yim v. City
of Seattle, 194 Wn.2d 682, 451 P.3d 694 (2019) (Chong Yim II)). The party
challenging the ordinance’s constitutionality—here, Instacart—holds “‘a heavy
burden,’” and “‘[e]very presumption will be in favor of constitutionality.’” Id.
(alteration in original) (internal quotation marks omitted) (quoting HJS Dev., Inc. v.
Pierce County, 148 Wn.2d 451, 477, 61 P.3d 1141 (2003)). Whether an ordinance
is a valid exercise of this power under article XI, section 11 of the constitution is a
question of law subject to de novo review. Id.
In Washington, local governments have broad police powers to make and
enforce laws to promote the “health, peace, morals, education, good order and
welfare of the people.” Covell v. City of Seattle, 127 Wn.2d 874, 881, 905 P.2d 324
(1995), abrogated on other grounds by Chong Yim II, 194 Wn.2d 682; WASH.
CONST. art. XI, § 11.
“Municipal police power is as extensive as that of the legislature,
so long as the subject matter is local and the regulation does not conflict
with general laws. . . . The scope of police power is broad,
encompassing all those measures which bear a reasonable and
substantial relation to promotion of the general welfare of the people.”
Covell, 127 Wn.2d at 878 (alteration in original) (quoting Hillis Homes, Inc. v.
Snohomish County, 97 Wn.2d 804, 808, 650 P.2d 193 (1982)). We apply a two-part
test in determining the validity of a law passed pursuant to the police power. State
ex rel. Faulk v. CSG Job Ctr., 117 Wn.2d 493, 504, 816 P.2d 725 (1991), abrogated
3
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Wash. Food. Indus. Ass’n v. City of Seattle, No. 99771-3
(Montoya-Lewis, J., dissenting in part)
on other grounds by Chong Yim II, 194 Wn.2d 682. First, the law must promote the
health, safety, peace, education, or welfare of the people. Id.; Weden, 135 Wn.2d at
700. Second, the requirements of the law “must bear some reasonable relationship
to accomplishing the purpose underlying” the law. Weden, 135 Wn.2d at 700; see
also Faulk, 117 Wn.2d at 504.
We apply the deferential rational basis standard of scrutiny to statutes and
ordinances that do not affect fundamental rights or create suspect classifications.
“‘[L]egislation under the police power must be reasonably necessary in the interest
of the public health, safety, morals, and the general welfare.’” Cougar Bus. Owners
Ass’n v. State, 97 Wn.2d 466, 477, 647 P.2d 481 (1982) (quoting Petstel, Inc. v.
County of King, 77 Wn.2d 144, 154-55, 459 P.2d 937 (1969)), abrogated on other
grounds by Chong Yim II, 194 Wn.2d 682. We must uphold a law as long as it is
not arbitrary and has “‘a reasonable relation to a proper legislative purpose.’” W.
Coast Hotel Co. v. Parrish, 300 U.S. 379, 398, 57 S. Ct. 578, 81 L. Ed. 703 (1937)
(quoting Nebbia v. New York, 291 U.S. 502, 537, 54 S. Ct. 505, 78 L. Ed. 940
(1934)). This test equates to rational basis, not any form of heightened scrutiny.
Chong Yim II, 194 Wn.2d at 695. 1 “[I]n determining whether a particular statute is
1
In Chong Yim II, this court held that state substantive due process claims are subject to
rational basis review. 194 Wn.2d at 701. In doing so, the court observed that tests variously
labeled “the ‘unduly oppressive’ and ‘substantial relation’ tests,” or “[t]he ‘arbitrary or irrational’
standard” correspond to rational basis review, not any form of heightened scrutiny. Id. at 693,
695-96. That decision included as an appendix a nonexclusive list of Washington Supreme Court
cases that may no longer be interpreted as requiring heightened scrutiny. Id. at 702-04. Those
4
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Wash. Food. Indus. Ass’n v. City of Seattle, No. 99771-3
(Montoya-Lewis, J., dissenting in part)
reasonable, we must conclude only that there is a rational connection between the
purpose of the statute and the method the statute uses to accomplish that purpose.”
Faulk, 117 Wn.2d at 506. Under this test, if a set of facts justifying the legislation
can be conceived to exist, the existence of those facts must be presumed. Cougar
Bus. Owners, 97 Wn.2d at 478. “‘[E]very presumption’” will be in favor of
upholding the law, and the party challenging the law has the “‘heavy burden’” to
show that it is invalid. Cannabis Action Coal., 183 Wn.2d at 226 (internal quotation
marks omitted) (quoting HJS Dev., Inc. v. Pierce County, 148 Wn.2d at 477).
As the challenger to the ordinance, Instacart holds the burden to allege there
is no rational basis for the ordinance—in other words, there is no reasonably
conceivable set of facts creating a public need for it or the ordinance does not have
a reasonable relation to a valid legislative purpose. Id.; Cougar Bus. Owners, 97
Wn.2d at 478. Instacart fails on both counts.
First, Instacart fails to allege that the law does not tend to promote proper
legislative purpose in the interest of the health, safety, peace, education, or welfare
of the people. Faulk, 117 Wn.2d at 504; Weden, 135 Wn.2d at 700. Instacart argues
that “the problems [the ordinance] purports to address do not exist” and that the
City’s public safety purposes in passing the ordinance were pretextual. Resp’ts’ Br.
cases, including cases cited in this opinion, are abrogated only to the extent they suggest that a
heightened standard of scrutiny applies. See State v. Blake, 197 Wn.2d 170, 178 n.5, 481 P.3d 521
(2021).
5
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Wash. Food. Indus. Ass’n v. City of Seattle, No. 99771-3
(Montoya-Lewis, J., dissenting in part)
at 34. But Instacart does not dispute the existence or seriousness of the COVID-19
emergency; indeed, it emphasizes the public health benefit of food delivery services
in promoting social distancing and reducing the spread of the virus. Rather, Instacart
argues that food delivery network drivers face similar risks as other essential workers
while seeing an increase in demand for their labor and corresponding increase in
pay, which relates only to the reasonableness of the City’s decision to address public
safety and health in this manner.
Instacart is correct that upon a motion to dismiss, we presume all facts alleged
in the complaint to be true and may consider hypothetical facts supporting the
plaintiff’s claims. Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007).
However, the party challenging an exercise of police powers must allege a legally
sufficient claim that the challenged law cannot survive rational basis scrutiny.
“[A]ny ordinance regularly enacted is presumed to be constitutional and valid” and
the challenger must allege there is no reasonably conceivable state of facts creating
a public need for the legislation. Hass v. City of Kirkland, 78 Wn.2d 929, 933, 481
P.2d 9 (1971), abrogated on other grounds by Chong Yim II, 194 Wn.2d 682;
Cougar Bus. Owners, 97 Wn.2d at 478.
There is an obvious conceivable basis for the ordinance that would tend to
promote the health, safety, and welfare of the people. The ordinance recognizes the
rapid spread and significant health risk of the COVID-19 virus. It also acknowledges
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Wash. Food. Indus. Ass’n v. City of Seattle, No. 99771-3
(Montoya-Lewis, J., dissenting in part)
the risks food delivery network drivers face and the essential service they provide
because “[t]he availability of food delivery services is fundamental to the health of
the community.” Seattle Ordinance 126094, at 6 (June 26, 2020),
https://www.seattle.legistar.com/View.ashx?M=F&ID=8656949&GUID=450BE06
7-D41F-4C49-A3C9-7A7D67A2DB9D [http://perma.cc/EK2L-TWEX]. Instacart
does not dispute the seriousness of the COVID-19 pandemic or the risk of the virus
spreading from person to person; rather, Instacart asserts that hazard pay is not
necessary or not a reasonable means to achieve the purpose of protecting public
health. This goes to the second step of the inquiry—the reasonableness of the means
the law uses to achieve that purpose. As to the first step of the inquiry, the City
unquestionably has a “legitimate interest in protecting public health.” Am. Legion
Post No. 149 v. Dep’t of Health, 164 Wn.2d 570, 604, 192 P.3d 306 (2008). The
purpose of promoting the health, safety, and welfare of consumers and these
essential workers falls squarely within the City’s police powers. Instacart has not
shown that the ordinance lacks a proper legislative purpose.
Instacart alleges the true motive of the ordinance was to increase pay and
workplace protections for certain classes of independent contractors, in cooperation
with labor organizations. But we do not examine the motives of the legislative body
or require it to provide factual justification for the legislation as long as rational basis
7
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Wash. Food. Indus. Ass’n v. City of Seattle, No. 99771-3
(Montoya-Lewis, J., dissenting in part)
can reasonably be presumed. 2 Petstel, 77 Wn.2d at 155. Even taking that allegation
as true and presuming that the City wanted to raise pay for workers in the gig
economy3 more broadly, regulations on wages and working conditions are generally
within the scope of a state or municipality’s police power. See Seattle NewspaperWeb Pressmen’s Union Loc. No. 26 v. City of Seattle, 24 Wn. App. 462, 604 P.2d
170 (1979) (employment discrimination); Petstel, 77 Wn.2d 144 (employment
agencies); County of Spokane v. Valu-Mart, Inc., 69 Wn.2d 712, 419 P.2d 993 (1966)
(day of rest); Parrish v. W. Coast Hotel Co., 185 Wash. 581, 55 P.2d 1083 (1936)
(wages and unsanitary working conditions), aff’d, 300 U.S. 379.
Second, Instacart has not shown that the hazard pay and consumer protection
provisions lack a “reasonable relationship to accomplishing the purpose underlying”
the ordinance. Weden, 135 Wn.2d at 700; see also City of Seattle v. Pullman, 82
Wn.2d 794, 799-800, 514 P.2d 1059 (1973). The ordinance endeavors to “increase
2
Instacart argues that courts may look past conceivable rational bases and examine actual
legislative motive when there are well-pleaded allegations of pretext. To support this proposition,
Instacart relies on several cases from the Ninth Circuit of the Court of Appeals involving equal
protection challenges with either a class of one, where the plaintiff must establish that they were
intentionally treated differently from others similarly situated, or an allegation of selective
enforcement of the law, where the plaintiff must show that the defendant’s proffered rational basis
for selective enforcement is a pretext for an impermissible motive. See Squaw Valley Dev. Co. v.
Goldberg, 375 F.3d 936, 944 (9th Cir. 2004); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 589-91
(9th Cir. 2008); Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 992-93 (9th Cir. 2007), aff’d, 533
U.S. 591 (2008). Instacart cites no authority importing this analysis to a claim that a regulation
exceeds government police powers, and, as discussed, see lead opinion at Part II, Instacart’s equal
protection claim involves neither a class of one nor selective enforcement. I am unpersuaded that
an allegation of pretext is cause to depart from our traditional assessment whether an exercise of
police powers survives rational basis review.
3
See lead opinion at 7 n.8.
8
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Wash. Food. Indus. Ass’n v. City of Seattle, No. 99771-3
(Montoya-Lewis, J., dissenting in part)
retention of these gig workers and compensate them for the hazards of working on
the frontlines of a global pandemic.” Seattle Ordinance 126094, at 2. If a set of
facts justifying the legislation can be conceived to exist, the existence of those facts
must be presumed. Cougar Bus. Owners, 97 Wn.2d at 478. Therefore, we must
presume that food delivery network drivers do face magnified risks of catching or
spreading COVID-19 when they come into contact with other people as they shop
for groceries, pick up food from restaurants, or make deliveries to customers. Again,
Instacart does not dispute this; it merely alleges that other essential workers face
similar risk. But simply analogizing the risks of food delivery network drivers to
other essential workers does not absolve Instacart of the burden to allege a lack of a
reasonable relationship to the underlying purpose of increasing retention and public
health and safety.
Indeed, it is not difficult to conceive how premium pay may achieve the goals
of increasing retention of food delivery network workers and compensating them for
these hazards. It is reasonable to conclude that drivers who receive premium pay for
each delivery in Seattle may be able to earn a more livable wage while making fewer
deliveries—thereby reducing their exposure risk on a daily basis and making their
work more sustainable as the pandemic persists. Retaining a large number of food
delivery network drivers could, in turn, ensure those services can keep up with the
demand from customers who want to use these services and reduce their exposure
9
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Wash. Food. Indus. Ass’n v. City of Seattle, No. 99771-3
(Montoya-Lewis, J., dissenting in part)
to the virus, thereby reducing infection across the populace. Additionally, premium
pay may compensate the workers for personal protective equipment they may need
to purchase in order to protect themselves and others against the spread of the virus
while they perform their work.
Instacart counters that it is irrational to provide hazard pay to food delivery
network drivers because their pay had already increased due to the rise in demand
for their services during the COVID-19 pandemic. Though Instacart alleges that the
number of delivery workers and their hourly pay increased during the first few
months of the pandemic, it did not proffer any facts—hypothetical or not—about the
number of hours worked or the workers’ total compensation. It is easily conceivable
that the City would conclude that the increase in deliveries (and corresponding
increase in exposure risk) would not result in an adequate increase in compensation
for those hazards and therefore would choose not to rely on market forces to ensure
adequate pay for these workers. Cf. Petstel, 77 Wn.2d at 152 (concluding that a law
fixing employment agencies’ maximum rates survived rational basis review because
“it is easy to conceive of a situation where the rates charged by employment agencies
may become abusive, and regulation of maximum rates charged by these agencies is
a means substantially directed toward curbing this abuse”).
Additionally, the ordinance also recognizes that “food delivery network
companies rely on business models that hire gig workers as ‘independent
10
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Wash. Food. Indus. Ass’n v. City of Seattle, No. 99771-3
(Montoya-Lewis, J., dissenting in part)
contractors’” who do not receive the same protections as employees. Seattle
Ordinance 126094, at 1. The City could reasonably seek to protect this class of
workers completing hazardous work during the pandemic, who may not receive
protections otherwise afforded to employees due to their status.4
Likewise, we can easily conceive of facts justifying the gig worker and
consumer protection provisions of the ordinance. Prohibiting food delivery network
companies from reducing workers’ pay, reducing the areas they serve, or adding
charges to customers’ orders can help ensure that food delivery services are available
and affordable to communities that rely on them for their safety and sustenance, even
now when some conclude the pandemic is waning. Ensuring that communities in
the City continue to be able to access these services is particularly important for
areas that comprise food deserts, which disproportionately affect communities of
color. See Sameer M. Siddiqi et al., SNAP Participants and High Levels of Food
Insecurity in the Early Stages of the COVID-19 Pandemic, 136 PUB. HEALTH REPS.
457 (2021) (study finding food insecurity increased significantly between March and
May 2020 for households experiencing poverty, particularly Black households and
households located in food deserts)5; Sravani Singu et al., Impact of Social
4
Instacart emphasizes that the ordinance does not cover other gig workers like
transportation network drivers who also face the risk of exposure while working, as evidence that
the ordinance is not a rational response to the COVID-19 emergency. As the court has explained,
see lead opinion at Part II, there are rational bases to treat food delivery network workers different
from other classes of workers, given that food is a necessity for basic survival.
5
https://journals.sagepub.com/doi/pdf/10.1177/00333549211007152
11
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Wash. Food. Indus. Ass’n v. City of Seattle, No. 99771-3
(Montoya-Lewis, J., dissenting in part)
Determinants of Health on the Emerging COVID-19 Pandemic in the United States,
8 FRONTIERS IN PUB. HEALTH 406 (2020) (study finding the intersection of food
deserts and COVID-19 related health complications has a disproportionate effect on
communities of color). 6
The lead opinion notes that the ordinance does not adopt any protections such
as masking requirements, distancing restrictions, or cleanliness practices but rather
focuses on hazard pay. Consequently, the lead opinion concludes that the ordinance
fails to advance the public health goal. While I agree with the lead opinion that
requiring those more robust protections would strengthen the relationship to the
public health goal, rational basis review does not require legislation to be that
narrowly tailored to the purpose—only that it has a rational connection. Weden, 135
Wn.2d at 700; Faulk, 117 Wn.2d at 505-06. Though it might be more consistent for
the City to provide even greater protections to essential workers, it is not this court’s
role to substitute our judgment for that of a legislative body. As the ordinance’s
premium pay and consumer protection provisions have a reasonable connection to
the goals of retaining these essential workers and promoting public health and safety,
I cannot agree that the ordinance lacks a rational basis simply because I would prefer
additional details and protections that clarify the purpose of the ordinance.
6
https://www.frontiersin.org/articles/10.3389/fpubh.2020.00406/full
[https://perma.cc/W8SK-QCFV]
12
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Wash. Food. Indus. Ass’n v. City of Seattle, No. 99771-3
(Montoya-Lewis, J., dissenting in part)
Judicial review is highly deferential in the police powers context because the
necessity of the enactment is within the wisdom and expertise of the legislative
branch. Parrish, 300 U.S. at 398; Faulk, 117 Wn.2d at 505. “The courts will not
examine the motives of the legislative body; they will not require factual justification
if it can reasonably be presumed; and the courts will not weigh the wisdom of the
particular legislation enacted.” Petstel, 77 Wn.2d at 155. “‘These rules are more
than mere rules of judicial convenience. They mark the line of demarcation between
legislative and judicial functions.’” City of Seattle v. Webster, 115 Wn.2d 635, 645,
802 P.2d 1333 (1990) (quoting Lenci v. Seattle, 63 Wn.2d 664, 667-68, 388 P.2d
926 (1964), abrogated on other grounds by Chong Yim II, 194 Wn.2d 682). It is not
the role of the courts to “‘substitute their social and economic beliefs for the
judgment of legislative bodies, who are elected to pass laws.’” Chong Yim II, 194
Wn.2d at 698 (quoting Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S. Ct. 1028, 10 L.
Ed. 2d 93 (1963)). Rather, our task is to “‘assume the existence of any necessary
state of facts which [we] can reasonably conceive in determining whether a rational
relationship exists between the challenged law and a legitimate state interest.’”
Chong Yim v. City of Seattle, 194 Wn.2d 651, 675, 451 P.3d 675 (2019) (Chong Yim
I) (quoting Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 222, 143 P.3d 571 (2006),
abrogated on other grounds by Chong Yim II, 194 Wn.2d 682).
13
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Wash. Food. Indus. Ass’n v. City of Seattle, No. 99771-3
(Montoya-Lewis, J., dissenting in part)
Given the broad nature of police powers and the deferential standard of
judicial review, I cannot conclude that the ordinance lacks a rational basis. Reducing
the spread of COVID-19 is a rational basis for instituting hazard pay. We will
invalidate a law under this test only if there is no reasonably conceivable set of facts
creating a public need for the regulation. Cougar Bus. Owners, 97 Wn.2d at 478;
see, e.g., Petstel, 77 Wn.2d at 152. As noted, there are numerous reasonably
conceivable sets of facts to support the ordinance. And under this standard, the
means of achieving the purpose of promoting the health, safety, and welfare of the
people does not need to be narrowly tailored to that purpose, as long as it bears a
rational relationship to that purpose. The hazard pay here may incentivize drivers to
engage in grocery and food delivery, increase the availability of delivery drivers,
and decrease the number of people in grocery stores and restaurants. This benefits
the community by reducing the number of possible transmissions of COVID-19,
which most all agree is a reasonable goal consistent with the City’s interest in
promoting the health, safety, and welfare of the community. Thus, Instacart has not
sufficiently alleged that the ordinance cannot survive rational basis scrutiny, and the
police powers claim should be dismissed. I would reverse the trial court’s decision
not to dismiss that claim. I respectfully dissent.
14
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Wash. Food. Indus. Ass’n v. City of Seattle, No. 99771-3
(Montoya-Lewis, J., dissenting in part)
15