Washington Business Properties Ass'n v. State of Washington

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
WASHINGTON BUSINESS
PROPERTIES ASSOCIATION, a
Washington Nonprofit Corporation,
Appellant,
v.
STATE OF WASHINGTON,
Respondent.
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No. 39988-5-III
UNPUBLISHED OPINION
LAWRENCE-BERREY, C.J. — Washington Business Properties Association
(WBPA) appeals the trial court’s order granting judgment on the pleadings, thereby
dismissing WBPA’s challenge to the constitutionality of RCW 59.18.660, the “Eviction
Resolution Pilot Program” (ERPP). By its terms, the statute expired on July 1, 2023.
FILED
OCTOBER 3, 2024
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

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We decline to review WBPA’s challenge because the expiration of the statute
renders this controversy moot, and because the factors for reviewing moot controversies
do not weigh in WBPA’s favor.
FACTS
In 2021, the legislature enacted Engrossed Second Substitute Senate Bill 5160 in
response to a growing eviction crisis. The legislature described why it enacted the
legislation:
[T]he COVID-19 pandemic is causing a sustained global economic
slowdown, and an economic downturn throughout Washington [S]tate with
unprecedented numbers of layoffs and reduced work hours for a significant
percentage of our workforce. Many of the [S]tate’s workforce has been
impacted by these layoffs and substantially reduced work hours and have
suffered economic hardship, disproportionately affecting low and
moderate-income workers resulting in lost wages and the inability to pay
for basic household expenses, including rent. Hundred of thousands of
tenants in Washington are unable to consistently pay their rent, reflecting
the continued financial precariousness of many renters in the state. . . .
Because the COVID-19 pandemic has led to an inability for tenants to
consistently pay rent, the likelihood of evictions has increased, as well as
life, health, and safety risks to a significant percentage of the [S]tate’s
tenants.
Engrossed Second Substitute S.B. 5160, 67th Leg., Reg. Sess. (Wash. 2021), enacted as
LAWS OF 2021, ch. 115, § 1.
The enactment, codified under RCW 59.18.660, was known as the Eviction
Resolution Pilot Program (ERPP). The ERPP required landlords to participate in an

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“eviction resolution program” before filing an unlawful detainer action for nonpayment
of rent. RCW 59.18.660(2). The legislature charged dispute resolution centers, situated
in each county, with administering the program. RCW 59.18.660(1). Until such a center
certified a plaintiff-landlord’s participation in the program, the statute prevented any trial
court from hearing that landlord’s unlawful detainer action for nonpayment of rent.
RCW 59.18.660(5). Following the legislature’s enactment, every superior court in
Washington promulgated standing orders effectuating the statute. By its terms,
RCW 59.18.660 expired July 1, 2023. RCW 59.18.660(9).
In 2022, WBPA petitioned in Spokane County Superior Court to declare
RCW 59.18.660 unconstitutional. WBPA argued the statute (1) interfered
with trial courts’ original jurisdiction over real property disputes, (2) violated the
separation of powers doctrine, (3) impermissibly interfered with landlords’ access to
courts, (4) violated landlords’ due process and equal protection rights, and (5) violated
the nondelegation doctrine.
The State answered WBPA’s complaint, and successfully moved for a judgment of
dismissal on the pleadings under CR 12(c).
WBPA timely appeals.

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ANALYSIS
MOOTNESS
The State argues that WBPA’s appeal is moot and should be dismissed. An appeal
is moot where the court hearing the appeal “can no longer provide effective relief.”
Orwick v. City of Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984). The parties do not
dispute that the appeal is moot.
Notwithstanding mootness, a court may hear an appeal where the case presents a
question of “continuing and substantial public interest.” Sorenson v. City of Bellingham,
80 Wn.2d 547, 558, 496 P.2d 512 (1972). Under this standard, the WBPA urges us to
review its constitutional arguments. We decline to do so.
When determining whether an otherwise moot case presents a question of
continuing and substantial public interest, courts consider (1) the public relevance of the
question, (2) the benefit of a judicial determination for policymaking purposes, and
(3) the likelihood of the question recurring. Randy Reynolds & Assocs., Inc. v. Harmon,
193 Wn.2d 143, 152, 437 P.3d 677 (2019).
The 2021 legislature adopted a novel approach to reduce the severity of housing
insecurity caused by a once-in-a-century pandemic. This is the only time in our State’s
135-year history that unlawful detainer actions have been conditioned upon a landlord’s
participation in mediation. Given the unlikelihood that the circumstances precipitating

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this measure will recur in our lifetimes, the first and third factors noted above outweigh
any benefit a judicial determination could provide policymakers, and we dismiss the
appeal as moot.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
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Lawrence-Berrey, C.J.
WE CONCUR:
Pennell, J.
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