WA Legal Roundup - Washington Supreme Court
Northshore had sought a permit to host Tent City. The problem lied in the fact that the Woodinville had placed a moratorium on all R-1 (Residential) permit applications. However, the city had agreed to host Tent City as long as they sought an R-1 permit. Essentially, Northshore filed suit on two grounds: 1) The city had breached its earlier contract by placing a moratorium on the one method through which Tent City could have obtained its benefit from the contract; and 2) the city violated the free exercise clause.
Before I get to the substance, I must articulate something about the standard here. Which applies in terms of Free Exercise? The State Constitution or the Federal Constitution? The Court of Appeals did not apply a Gunwall analysis because Northshore did not submit briefing on it. The Court laid out a better rule for determining when courts should apply the analysis:
Gunwall is better understood to prescribe appropriate arguments: if the parties provide argument on state constitutional provisions and citation, a court may consider the issue. This is especially true where, as in many areas, the special protections of our state constitution have been previously recognized by this court. Listing the Gunwall factors is a helpful approach when arguing how Washington's constitution provides greater rights than its federal counterpart. But failing to subhead a brief with each factor does not foreclose constitutional argument.
Here, numerous cases in this court have already decided that the article I, section 11 freedom of religious sentiment, belief and worship "absolutely protects the free exercise of religion, [and] extends broader protection than the first amendment to the federal constitution . . . ." First Covenant Church v. City of Seattle, 120 Wn.2d 203, 229-30, 840 P.2d 174 (1992). The Church has more protection under Washington's constitution.
Under the Free Exercise clause, the challenger must show that the action was the the belief is sincere and the government action burdens the exercise. The burden is then shifted to the government to show a narrow tailoring to achieve a compelling goal -- essentially strict shifting it to strict scrutiny. The city conceded the first factor, that the belief is sincere. The city also did not submit briefing that its action was narrowly tailored. It only said that its actions did not substantially burden the exercise. The court turned to the second Free Exercise Factor, the only thing in dispute: "Thus, the only issue presented is whether the City's actions substantially burden the free exercise of the Church's religious "sentiment, belief [or] worship."
Keeping in line with a slew of cases surrounding permitting of church applications:
This does not mean any slight burden is invalid, however. If the constitution forbade all government actions that worked some burden by minimally affecting "sentiment, belief [or] worship," then any church actions argued to be part of religious exercise would be totally free from government regulation. Our constitution expressly provides to the contrary. The argued burden on religious exercise must be more, it must be substantial. Here, the total refusal to process a permit application is such a burden.
As to the contract, the city's material breach excused the breach by Northshore:
When the City rejected the Church's application without even considering it, the Church was excused from full compliance. Though the Church did not provide sufficient processing time, as also required by the 2004 contract, this does not excuse the City's refusal to process the permit application, especially since the City actually had time to hold a public hearing. Under the contract's clear terms, the Church promised not to host Tent City 4 until it obtained a permit, a promise it broke.
Since the City would not process the Church's permit application, the Church was excused from its performance under these unique circumstances.