IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

CITY OF SEATTLE, ) 

) No. 98824-2 

Respondent, ) 

) 

v. ) En Banc

) 

STEVEN GREGORY LONG, ) 

) 

Petitioner. ) Filed: August 12, 2021

________________________________________)

MADSEN, J.—Steven Gregory Long parked his truck on property owned by the 

city of Seattle for more than 72 hours, violating Seattle Municipal Code (SMC) 

11.72.440(B). For this civil infraction, a city-contracted towing company impounded 

Long’s truck. Long contested the infraction and eventually agreed to a payment plan to 

reimburse the city for the costs of the impoundment. He now argues, among other things, 

that the impoundment violated Washington’s homestead act, ch. 6.13 RCW, and the 

federal excessive fines clause. For the reasons discussed below, we affirm in part and 

reverse in part. 

FILE 

IN CLERK’S OFFICE

SUPREME COURT, STATE OF WASHINGTON 

AUGUST 12, 2021

THIS OPINION WAS FILED 

FOR RECORD AT 8 A.M. ON

AUGUST 12, 2021

ERIN L. LENNON

SUPREME COURT CLERK 
No. 98824-2 

2 

BACKGROUND 

In 2016, Long was living in his truck. Long, then a 56-year-old member of the 

Confederated Salish and Kootenai Tribes of the Flathead Nation, worked as a general 

tradesman and stored work tools as well as personal items in his vehicle. One day, Long 

was driving to an appointment when the truck began making “grinding” noises. On 

July 5, 2016, Long parked in a gravel lot owned by the city of Seattle. Long stayed on 

the property for the next three months. 

On October 5, 2016, police alerted Long that he was violating the SMC by parking 

in one location for more than 72 hours. SMC 11.72.440(B). Long claims he told the 

officers that he lived in the truck. Later that day, a parking enforcement officer posted a 

72-hour notice on the truck, noting it would be impounded if not moved at least one city

block. SMC 11.30.060. Long did not move the truck. While Long was at work on 

October 12, 2016, a city-contracted company towed his truck. Without it, Long slept 

outside on the ground before seeking shelter nearby to escape the rain and wind. 

Long requested a hearing to contest the parking infraction. SMC 11.30.120 

(vehicle owner may request a hearing in municipal court to contest an impoundment). At 

the November 2, 2016 impoundment hearing, Long reiterated that he lived in his truck 

and kept all of his work tools in it. The magistrate found that Long had parked illegally, 

but the magistrate waived the $44.00 ticket, reduced the impoundment charges from 

$946.61 to $547.12, and added a $10.00 administrative fee. SMC 11.31.121 (violating 
No. 98824-2 

3 

the 72-hour rule is a “parking infraction” subject to $44.00 fine).1 The magistrate drafted 

a payment plan requiring Long to pay $50.00 per month.2

 Long felt “forced” to agree or 

risk losing his truck at a public auction. Clerk’s Papers (CP) at 109. 

Long appealed the magistrate’s findings. Though he did not contest that the truck 

was parked illegally, Long argued that the impoundment violated the state and federal 

excessive fines clauses, substantive due process, and the homestead act. Long moved for 

summary judgment, which the municipal court denied. 

On a RALJ appeal, the superior court affirmed and reversed in part: it rejected the 

substantive due process claim, and it held that the impoundment costs were 

unconstitutionally excessive under the federal constitution and that the payment plan 

violated the homestead act. The court concluded that the impoundment itself did not 

violate the Eighth Amendment to the United States Constitution. 

The parties then sought review at the Court of Appeals. In a published decision, 

the court concluded that the payment plan was invalid under the homestead act and 

rejected the constitutional argument that the impoundment and associated costs were 

excessive. City of Seattle v. Long, 13 Wn. App. 2d 709, 467 P.3d 979 (2020). The court 

also held that Long failed to show the impoundment was unlawful pursuant to article I, 

1

 The parties do not dispute that the impound charges for Long’s truck totaled $946.61. In 

municipal court, however, the fee was stated as $917.57. Regardless of this total, Long was 

ordered to pay $547.12, which he argues is unconstitutionally excessive. 

2

 Default under the payment plan would not have subjected the vehicle to forfeiture but could 

result in late charges and collection efforts. 
No. 98824-2 

4 

section 7 of the Washington State Constitution, declining to review it for the first time on 

appeal. Id. at 733-35. 

Long sought review here of the excessive fines and the article I, section 7 issues. 

Pet. for Review at 4-5, 8-18. Seattle cross petitioned, raising the homestead act as a 

contingent issue. Answer to Pet. for Review at 16-20. We granted review of all three.3

 

Order, No. 98824-2 (Wash. Dec. 2, 2020). Numerous amici curiae have filed briefs in 

support of Long, including the Institute for Justice, Public Justice, the American Civil 

Liberties Union (ACLU) of Washington, Northwest Justice Project, Juvenile Law Center, 

and Professors Alexes Harris and Mary Pattillo. Two amici contributed briefs in support 

of Seattle: the International Municipal Lawyers Association and the Washington 

Association of Municipal Attorneys.4

3 Seattle argues that Long is not an aggrieved party and that the case is moot because he retrieved 

his truck and the Court of Appeals affirmed the voided payment plan. Answer to Pet. for Review 

at 5; RAP 3.1. Long counters that Seattle can still impose towing costs because the Court of 

Appeals eliminated only the storage costs; it did not preclude the city from “charging a vehicle 

owner for costs associated with the towing and impounding of a vehicle.” Long, 13 Wn. App. 2d 

at 715; Pet’r’s Reply Br. at 8. Further, Long contends the case meets the exception to mootness 

due to the public nature of the issue, the need to provide future guidance, and the likelihood that 

the issue will reoccur. Pet’r’s Reply Br. at 8-9 (citing In re Eaton, 110 Wn.2d 892, 895, 757 

P.2d 961 (1988)). Long is correct that the excessive fines clause issue is public, arising in other

jurisdictions, e.g., Pimentel v. City of Los Angeles, 966 F.3d 934 (9th Cir. 2020) (remanding case

to determine whether parking fines were constitutionally excessive), and likely to reoccur

considering the large population of persons living in vehicles. See Mem. of Amici Curiae in

Supp. of Review at 3 (close to 12,000 people are homeless in Seattle/King County with more

than 2,700 living in their vehicles). As a technical matter, we did not grant review of the

standing issue. Our order grants Long’s petition and the “issue contingently raised in the

answer,” that is, the homestead act. See Order, No. 98824-2 (Wash. Dec. 2, 2020) (emphasis

added); Answer to Pet. for Review at 16-20. Even assuming the case is moot, Long persuasively

shows the issues should be considered.

4 This list does not include all amici curiae that have submitted briefing in this court. We refer

only to first amici author listed on the briefing.
No. 98824-2 

5 

ANALYSIS 

We review a summary judgment order de novo, engaging in the same inquiry as 

the trial court. Highline Sch. Dist. No. 401 v. Port of Seattle, 87 Wn.2d 6, 15, 548 P.2d 

1085 (1976). Summary judgment is proper if the record shows “no genuine issue as to 

any material fact” and the “moving party is entitled to a judgment as a matter of law.” 

CR 56(c). The parties do not appear to contest the facts in this case. 

I. The Homestead Act

A “uniquely American contribution” to real property law, homestead exemptions 

are based on the notion that citizens should have a home where family is sheltered and 

living beyond the reach of financial misfortune and the demands of certain classes of 

creditors. George L. Haskins, Homestead Exemptions, 63 HARV. L. REV. 1289, 1289 

(1950); Charless & Blow v. Lamberson, 1 Iowa 435, 439 (1855); see also Paul Goodman, 

The Emergence of Homestead Exemption in the United States: Accommodation and

Resistance to the Market Revolution, 1840-1880, 80 J. AM. HIST. 470, 470 (1993). States 

began enacting homestead laws in the 19th century in order to provide security in an 

increasingly volatile American economy. Goodman, supra, at 470. Prior to these laws, 

the United States experienced financial panics that caused unemployment, bankruptcy, 

and loss of the family home. Id. at 471. 

Texas enacted the first homestead exemption in 1839. MacKenzie Breitenstein, 

Note, The Ideal Homestead Exemption: Avoiding Asset Conversion & Fraud but Still 

Protecting Dependents, 58 DRAKE L. REV. 1121, 1123 (2010). Today, 48 states have 
6 

No. 98824-2 

homestead exemption laws. Id. at 1126. All such laws require the claimed “homestead” 

to be the primary residence of the debtor or his or her dependents, and only one 

homestead may be claimed. Id. at 1127. Relevant here, the homestead exemption does 

not protect the full value of a homestead but protects up to “the sum of fifteen thousand 

dollars in the case of other personal property described in RCW 6.13.010.” Former 

RCW 6.13.030(2) (2007). 

Washington’s constitution provides, 

The legislature shall protect by law from forced sale a certain portion of the 

homestead and other property of all heads of families. 

WASH. CONST. art. XIX, § 1. The legislature fulfilled this mandate by passing the 

homestead act in 1895. LAWS OF 1895, ch. 64, § 1; Felton v. Citizens Fed. Sav. & Loan 

Ass’n of Seattle, 101 Wn.2d 416, 418, 679 P.2d 928 (1984). Like all homestead acts, 

Washington’s statute “‘implements the policy that each citizen have a home where [the] 

family may be sheltered and live beyond the reach of financial misfortune.’” In re 

Dependency of Schermer, 161 Wn.2d 927, 953, 169 P.3d 452 (2007) (alteration in 

original) (internal quotation marks omitted) (quoting Pinebrook Homeowners Ass’n v. 

Owen, 48 Wn. App. 424, 427, 739 P.2d 110 (1987)). The act is favored in law, and 

courts construe it liberally so it may achieve its purpose of protecting family homes. Id. 

Under the homestead act some residences are automatically protected while others 

require an owner to file a declaration. RCW 6.13.040(1), (2); In re Tr.’s Sale of Real 

Property of Sweet, 88 Wn. App. 199, 201, 944 P.2d 414 (1997) (“Since 1981, homestead 

protection is ‘automatic.’”). Qualifying homes are protected from attachment and 
7 

No. 98824-2 

execution or forced sale for the debts of the owner up to the amount specified in the 

statute. Former RCW 6.13.070 (1987). The homestead exemption does not protect the 

full value of a homestead, but it protects up to “the sum of fifteen thousand dollars in the 

case of other personal property described in RCW 6.13.010.” Former RCW 6.13.030(2). 

Here, we must determine whether the homestead act applies and whether any 

violation occurred. First, Seattle agrees that Long’s truck may qualify as a homestead but 

contends that additional procedural steps are necessary—namely, that RCW 6.13.040(1) 

requires Long to file a declaration, which he did not. Long responds that because he 

occupied the truck as his principal residence, it automatically qualifies. Second, Seattle 

argues that no attachment, execution, or forced sale occurred; Long disagrees. 

For the following reasons, we agree with Long. RCW 6.13.040(1) automatically 

protects occupied personal property as a homestead, and no declaration is required. 

Long’s truck therefore constitutes a homestead. However, we agree with Seattle that no 

attachment, execution, or forced sale occurred. The homestead act protections were not 

triggered at this point in Long’s case because no party sought to collect on Long’s debt. 

A. RCW 6.13.040(1) Automatically Protects Personal Property Occupied

as a Principal Residence

The meaning of a statute is a question of law we review de novo. State v. 

Mitchell, 169 Wn.2d 437, 442, 237 P.3d 282 (2010). “‘The court’s fundamental 

objective in construing a statute is to ascertain and carry out the legislature’s intent.’” 

Lake v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010) 

(quoting Arborwood Idaho, LLC v. City of Kennewick, 151 Wn.2d 359, 367, 89 P.3d 217 
No. 98824-2 

8 

(2004)). If a statute’s meaning is plain on its face, we must follow that plain meaning. 

Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). A 

statute’s plain meaning is discerned from the ordinary meaning of the language, the 

context of the statute, related provisions, and the statutory scheme as a whole. Udall v. 

T.D. Escrow Servs., Inc., 159 Wn.2d 903, 909, 154 P.3d 882 (2007).

Whenever possible, statutes are to be construed so “‘no clause, sentence or word 

shall be superfluous, void, or insignificant.’” Kasper v. City of Edmonds, 69 Wn.2d 799, 

804, 420 P.2d 346 (1966) (quoting Groves v. Meyers, 35 Wn.2d 403, 407, 213 P.2d 483 

(1950)). “If a statute is ambiguous, we ‘may look to the legislative history of the statute 

and the circumstances surrounding its enactment to determine legislative intent.’” Five 

Corners Family Farmers v. State, 173 Wn.2d 296, 305-06, 268 P.3d 892 (2011) (quoting 

Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d 598 (2003)). 

RCW 6.13.040(1) provides, 

Property described in RCW 6.13.010 constitutes a homestead and is 

automatically protected by the exemption described in RCW 6.13.070 from 

and after the time the real or personal property is occupied as a principal 

residence by the owner or, if the homestead is unimproved or improved 

land that is not yet occupied as a homestead, from and after the declaration 

or declarations required by the following subsections are filed for record or, 

if the homestead is a mobile home not yet occupied as a homestead and 

located on land not owned by the owner of the mobile home, from and after 

delivery of a declaration as prescribed in RCW 6.15.060(3)(c) or, if the 

homestead is any other personal property, from and after the delivery of a 

declaration as prescribed in RCW 6.15.060(3)(d). 

(Emphasis added.) Much of the emphasized language above was added in a 1993 

amendment. LAWS OF 1993, ch. 200, § 3. The amendment also included a section 
9 

No. 98824-2 

requiring a debtor claiming as a homestead “any other personal property” under RCW 

6.13.040 to file a declaration stating they reside on the personal property. Id. § 5 

(codified as RCW 6.15.060(3)(d)). Former RCW 6.13.010(1) (1999) defines a 

“homestead” as “real or personal property that the owner uses as a residence.” 

The parties essentially dispute whether the final clause of RCW 6.13.040(1) 

contemplates occupied or unoccupied personal property. Seattle argues that if occupied 

personal property is automatically exempt via the first clause of RCW 6.13.040(1), then 

“any other personal property” in the final clause must be unoccupied—yet lawmakers did 

not include that qualifier in the provision. City of Seattle’s Suppl. Br. (Seattle’s Suppl. 

Br.) at 3-4. Further, Seattle notes RCW 6.15.060(3)(d) requires a declaration for “any 

other personal property” to state that “‘the debtor resides thereon as a homestead.’” This 

requirement would be unnecessary if RCW 6.13.040(1) meant all personal property was 

occupied personal property. Id. at 2-3 (quoting RCW 6.15.060(3)(d)). 

We conclude that RCW 6.13.040(1)’s final clause refers to unoccupied property. 

RCW 6.13.040(1) states explicitly that automatic protections occur when “real or 

personal property is occupied as a principal residence.” (Emphasis added.) The first and 

final clauses of RCW 6.13.040 were added to the homestead act in a 1993 amendment. 

LAWS OF 1993, ch. 200, § 3. The decision to add both clauses to the act in the same 

amendment indicates that they apply to different situations. “[W]e presume the 

legislature says what it means and means what it says.” State v. Costich, 152 Wn.2d 463, 

470, 98 P.3d 795 (2004). 
No. 98824-2 

10 

If lawmakers intended for the final clause to refer to occupied property, they could 

have included the term as they did in the first clause; they did not. Indeed, the final 

clause uses different words than the first clause: “any other personal property.” RCW 

6.13.040(1) (emphasis added). When the legislature uses two different terms in the same 

statute, we presume the legislature intends the terms to have different meanings. Densley 

v. Dep’t of Ret. Sys., 162 Wn.2d 210, 219, 173 P.3d 885 (2007). Thus, under the plain

language of RCW 6.13.040(1), automatically protected real or personal property must be 

occupied while any other personal property does not. 

The statutory history of RCW 6.13.040 supports this reading. In 1881, a 

homestead could be created by mere occupancy. Davies v. Metro. Life Ins. Co., 191 

Wash. 459, 465, 71 P.2d 552 (1937). With the passage of the homestead act in 1895, a 

homestead could be created only by filing a declaration. Id. Homestead by declaration 

persisted until 1981, where the legislature changed course. It reintroduced automatic 

protection, which was ultimately codified in RCW 6.13.040. See LAWS OF 1981, ch. 329, 

§ 9; see also In re Wenner, 61 B.R. 634, 635 (1985) (“The 1981 amendments [to the

homestead act] provided that a homestead was automatically created in the debtor’s 

permanent residence beginning, ‘at the time the property is occupied as a permanent 

residence by the owner.’” (quoting RCW 6.12.080)). As a result, declarations have been 

used in instances where property was not yet occupied. The 1981 amendment added a 

section requiring a declaration for homesteads on unimproved land purchased with the 

intention of residing thereon. LAWS OF 1981, ch. 329, § 9. In 1987, the legislature added 
No. 98824-2 

11 

qualifying language to unimproved land and required a declaration for mobile homes: “if 

the homestead is unimproved or improved land that is not yet occupied as a homestead, 

from and after the declaration . . . or, if the homestead is a mobile home not yet occupied 

as a homestead and located on land not owned by the owner of the mobile home, from 

and after delivery of a declaration.” LAWS OF 1987, ch. 442, § 204(1)-(2). 

Lawmakers further evidenced their intent to automatically protect personal 

property, such as Long’s truck, in the 1993 amendment. “Because some Washington 

citizens reside on their boats or in their cars or vans, it has been recommended that the 

homestead exemption’s scope be expanded to include any personal or real property that 

the owner uses as a residence.” FINAL B. REP. ON SUBSTITUTE S.B. 5068, 53d Leg. Reg. 

Sess. (Wash. 1993) (emphasis added). Admittedly, expanding the definition of 

homestead does not directly answer the question of whether a declaration is required for a 

nontraditional residence. But, when combined with the plain language and statutory 

history of RCW 6.13.040, it is evident that the legislature intended occupied personal 

property to be automatically protected as homesteads and other, unoccupied personal 

property to qualify upon declaration. 

In addition to the plain language and history of .040(1), we reject Seattle’s reading 

because it would render the first clause of .040(1) meaningless. See G-P Gypsum Corp. 

v. Dep’t of Revenue, 169 Wn.2d 304, 309, 237 P.3d 256 (2010) (“‘Statutes must be

interpreted and construed so that all the language used is given effect, with no portion 

rendered meaningless or superfluous.’” (internal quotation marks omitted) (quoting State 
12 

No. 98824-2 

v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003))). The first clause refers to occupied

personal or real property; the last clause refers to “any other personal property,” that is, 

property other than that already mentioned. 

Long’s truck qualifies as a homestead because it was occupied personal property. 

RCW 6.13.040(1). The homestead act does not require him to file a declaration in 

addition to occupying the vehicle as his primary residence. 

B. The Homestead Act Does Not Apply at This Point in Long’s Case

We next consider the homestead act’s protections against “attachment and . . . 

execution or forced sale for the debts of the owner up to the amount specified in RCW 

6.13.030.” Former RCW 6.13.070. Long argues his truck was under threat of a forced 

sale by public auction unless he agreed to the payment plan and was unlawfully attached 

under a possessory lien when the truck was towed. Suppl. Br. of Pet’r/Cross-Resp’t Long 

(Suppl. Br. of Long) at 20-25. Seattle contends that its conduct fell short of all three 

enumerated actions because Long indirectly consented to the sale when he parked illegally 

and that no lien attached to the truck because its $4,000 value fell below the homestead 

act’s $15,000 protection. See former RCW 6.13.030. 

Seattle is partially correct. No attachment and execution or forced sale occurred 

here, but not for the reasons the city offers. Rather, the homestead act’s protections do not 

apply because Seattle has not sought to collect on Long’s debt. Thus, his homestead act 

claim is premature. 
13 

No. 98824-2 

Former RCW 6.13.070 protects debtors against specific creditor actions. An 

“attachment” is the physical “seizing of . . . property to secure a judgment or to be sold in 

satisfaction of a judgment.” BLACK’S LAW DICTIONARY 157 (11th ed. 2019); see, e.g., 

Weber v. Laidler, 26 Wash. 144, 146, 66 P. 400 (1901) (noting that attachment involves 

seizure). An “execution” is a judicial “‘mode of obtaining the debt recovered by 

judgment’” such as a lien. Pinebrook Homeowners, 48 Wn. App. at 431 (quoting First 

Nat’l Bank v. Tiffany, 40 Wn.2d 193, 196, 242 P.2d 169 (1952)); BLACK’S, supra, 714 

(defining “execution” as a “[j]udicial enforcement of a money judgment, usu. by seizing 

and selling the judgment debtor’s property”). A “forced sale” is a nonconsensual sale to 

recover a debt. Felton, 101 Wn.2d at 422-23; BLACK’S, supra, 1604 (defining “forced 

sale” as “[a] hurried sale by a debtor because of financial hardship or a creditor’s action. 

Cf. voluntary sale” (emphasis omitted)). 

As these definitions illustrate, former RCW 6.13.070 protects against actions taken 

to secure a debtor’s judgment. The homestead act does not specify a procedure for 

asserting and determining the validity of a homestead, leaving courts to formulate the 

remedy. Traverso v. Cerini, 146 Wash. 273, 277, 263 P. 184 (1928). The Court of 

Appeals has held that the validity of a homestead claim should be determined whenever it 

is asserted as a defense to execution of judgment against property. Enyart v. Humble, 17 

Wn. App. 181, 184, 562 P.2d 648 (1977); see also City of Algona v. Sharp, 30 Wn. App. 

837, 638 P.2d 627 (1982) (homeowner moved to quash an order and notice of foreclosure 

for failure to pay an assessment for sewer installation). Where property claimed as a 
14 

No. 98824-2 

homestead was sold under execution, owners properly brought a quiet title action against 

a purchase for the purpose of asserting the homestead exemption. Domke v. Beck, 18 

Wn.2d 568, 573, 139 P.2d 1017 (1943). The homestead act operates as a shield to protect 

against creditors’ actions; it is not a sword to prevent such actions in the first instance. 

Christensen v. Christgard, Inc., 35 Wn. App. 626, 631, 668 P.2d 1301 (1983) (citing 

Webster v. Rodrick, 64 Wn.2d 814, 816, 394 P.2d 689 (1964)). 

As a legal matter, a debt is determined at adjudication. See Shaffer v. Heitner, 433 

U.S. 186, 210 n.36, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977). Similarly, former RCW 

6.13.070(2) leaves it to courts to determine whether an exemption from the consequences 

of a debt applies. See Enyart, 17 Wn. App. at 184 (“The legislature has provided that 

homesteads should be identified and protected by the courts.”). 

Further, the homestead act’s monetary exemption is not a complete one. A 

homestead is protected for debts “up to the amount specified in RCW 6.13.030.” Former 

RCW 6.13.070. This limited exemption cannot exceed the lesser of, among other things, 

the total net value of homestead lands, manufactured homes, and a mobile home as 

described in former RCW 6.13.010; or the sum of $125,000 in the case of lands, 

manufactured homes, and a mobile home or the sum of $15,000 in the case of other 

personal property described in former RCW 6.13.010. Former RCW 6.13.030. When an 

owner’s equity in property exceeds these exemption amounts, creditors seeking the 

excess value of the homestead must record a judgment pursuant to RCW 6.13.090 to 

obtain a lien.5

 For a homestead vehicle exceeding the $15,000 exemption, creditors 

5 RCW 6.13.100 allows a creditor to apply for the appointment of an appraiser when a judgment 

is executed on property. Once appointed, the appraiser submits a report on the value of the 
15 

No. 98824-2 

would follow the same statutory procedure. Former RCW 6.13.030; RCW 6.13.090. If 

the homestead exemption applies as the concurrence contends to prevent attachment by 

means of towing, the process of determining a vehicle’s value would occur on the streets

—bypassing adjudication and falling to parking enforcement officers. See concurrence at 

1. In sum, the homestead act protects only up to a certain amount and at least some 

portion of the value of the homestead will likely be available to pay the debt. 

Accordingly, the act operates a shield to preclude debtors from initially incurring a debt.6 

The Washington State Association of Municipal Attorneys (WSAMA) urges us to 

conclude, as a threshold matter, that the impoundment and payment plan are not “debts” 

contemplated by former RCW 6.13.070. Br. of Amicus Curiae WSAMA at 12. For 

support, WSAMA points to Tellevik v. 6717 100th Street S.W., 83 Wn. App. 366, 376-77, 

921 P.2d 1088 (1996). In that case, the Court of Appeals held that civil asset forfeiture is 

not subject to homestead protection because it is not based on such debts. Id. WSAMA 

argues that as in Tellevik, Long’s impoundment and assessed costs arose from an offense 

homestead, and the superior court will order either (1) a division of the property allowing the 

owner to retain a homestead and the creditor to seek enforcement of the execution on the 

remainder of the land or (2) sale of the property under the execution with no bid to be received 

unless it exceeds the amount of the homestead exemption. RCW 6.13.150, .160. 

6 We understand the concurrence’s interest in protecting individuals who find themselves living 

in their vehicles, facing the towing and impoundment of their homes. See concurrence at 1-2. 

Nevertheless, towing a vehicle is not a debt protected under the homestead act until that debt is 

adjudicated. The practical consequences of the concurrence’s interpretation would also 

improperly shift the burden of determining the value of a homestead away from a court and onto 

parking enforcement officers. Such an interpretation transforms the act from a shield into a 

sword and would, at the very least, frustrate the statutory procedure for creditors pursuing the 

value of property exceeding the exemptions under former RCW 6.13.030. See RCW 6.13.090. 
No. 98824-2 

16 

rather than a debt. See Br. of Amicus WSAMA at 12, 14-16. WSAMA is incorrect. The 

impoundment and associated costs are not analogous to civil forfeiture. Long did not 

commit a criminal offense and his property was not seized pursuant to a forfeiture statute

unlike Tellevik, 83 Wn. App. at 375 (citing RCW 69.50.505). 

Here, Long’s parking infraction gave rise to his debt. After contesting the 

infraction in municipal court, the magistrate imposed, and Long agreed to, a payment 

plan to reimburse the city for the impoundment costs. SMC 11.30.160(B) (upon 

imposition of a payment plan, “the City shall be responsible for paying the costs of 

impoundment to the towing company”). Seattle is Long’s creditor to whom he owes a 

$547.12 debt. See BLACK’S, supra, 506 (defining “debt” as “[l]iability on a claim; a 

specific sum of money due by agreement or otherwise”). At this point, however, there is 

no evidence that the city has attempted to collect on Long’s debt. Therefore, the 

homestead act’s shield against attachment, execution, or forced sale is unnecessary 

because none of these actions has occurred. 

II. Article I, Section 7

Long also contends the impoundment of his truck violated article I, section 7. He 

first raised this issue in a reply brief at the Court of Appeals. See Resp’t Long’s Reply 

Br. (No. 78230-4-I May 13, 2019) at 23-24; see also Suppl. Br. of Resp’t/Cross-Pet’r 

(No. 78230-4-I Oct. 21, 2019) at 1-2, 5. Generally a party waives the right to raise an 

issue on appeal that was not raised before the trial court. See Seattle’s Suppl. Br. at 19 

(citing Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 441, 191 P.3d 879 (2008)). 
No. 98824-2 

17 

RAP 2.5(a)(3) permits a party to raise a manifest error affecting a constitutional right for 

the first time on appeal. The Court of Appeals declined to address the issue pursuant to 

RAP 2.5(a) because Long did not make this showing. RAP 2.5(a)(3); Long, 13 Wn. App. 

2d at 733-34 (citing State v. A.M., 194 Wn.2d 33, 38, 448 P.3d 35 (2019)). 

To meet RAP 2.5(a) and raise an error for the first time on appeal, an appellant 

must show (1) the error is manifest and (2) the error is truly of constitutional dimension. 

State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009) (citing State v. Kirkman, 159 

Wn.2d 918, 926, 155 P.3d 125 (2007)). Reviewing courts look to the asserted claim and 

assess whether, if correct, it implicates a constitutional interest. Id. (citing State v. Scott, 

110 Wn.2d 682, 687, 757 P.2d 492 (1988)). Whether an error is manifest requires a 

showing of actual prejudice. Id. at 99 (citing Kirkman, 159 Wn.2d at 935). 

Here, Long relies on State v. Villela, 194 Wn.2d 451, 460, 450 P.3d 170 (2019), to 

argue that the city’s failure to consider alternatives to impoundment was unreasonable 

under article I, section 7. Long’s claim implicates a constitutional privacy interest, but he 

does not show prejudice. 

Article I, section 7 provides, “No person shall be disturbed in his private affairs, or 

his home invaded, without authority of law.” Courts use a two-step analysis to determine 

whether this provision has been violated. State v. Puapuaga, 164 Wn.2d 515, 521-22, 

192 P.3d 360 (2008) (citing State v. Surge, 160 Wn.2d 65, 71, 156 P.3d 208 (2007) 

(plurality opinion)). First, we determine whether the action complained of disturbs one’s 

private affairs. Id. at 522. If so, we look to the second inquiry: whether authority of law 
No. 98824-2 

18 

justifies the intrusion. Id. “[W]arrantless seizures are per se unreasonable, and the State 

bears the burden of demonstrating that a warrantless seizure falls into a narrow exception 

to the rule.” State v. Doughty, 170 Wn.2d 57, 61, 239 P.3d 573 (2010) (citing State v. 

Williams, 102 Wn.2d 733, 736, 689 P.2d 1065 (1984)). Impounding a car is a seizure 

under our state constitution. State v. Reynoso, 41 Wn. App. 113, 116, 702 P.2d 1222 

(1985) (citing State v. Davis, 29 Wn. App. 691, 697, 630 P.2d 938 (1981)). 

Most relevant to this case, a vehicle may be lawfully impounded in the course of 

enforcing traffic regulations if the driver committed a traffic offense for which the 

legislature has expressly authorized impoundment. Villela, 194 Wn.2d at 459 (quoting 

State v. Tyler, 177 Wn.2d 690, 699, 302 P.3d 165 (2013)). If no probable cause exists to 

seize the vehicle and a reasonable alternative to impoundment exists, it is unreasonable to 

impound the vehicle. Id. Reasonableness of a search or seizure is decided in light of the 

facts of the case, and a police officer must consider reasonable alternatives. State v. 

Houser, 95 Wn.2d 143, 148, 622 P.2d 1218 (1980); Tyler, 177 Wn.2d at 699. Pursuant to 

Villela, an impoundment is lawful under article I, section 7 only if, in the judgment of the 

impounding officer, it is reasonable under the circumstances and there are no reasonable 

alternatives. 194 Wn.2d at 460. 

The impoundment was reasonable under the circumstances, and no alternatives 

existed in this case. The Court of Appeals correctly noted that Long told the officers his 

truck was in need of repairs and could not be driven. Long, 13 Wn. App. 2d at 735; see 

also CP at 301-02 (“OFFICER 1: So I’m assuming this [the truck] runs? . . . MR. 
No. 98824-2 

19 

LONG: No, it doesn’t. It’s got a broken (inaudible). . . . OFFICER 1: You need to get 

that thing fixed as soon as possible . . . and get it moving because somebody’s going to 

come through here, probably a parking enforcement officer.”). The parking enforcement 

officer knew of this. CP at 306 (parking enforcement officer arrived at the location 

where Long’s truck is parked and was told Long “can’t move it”). When Long’s truck 

was towed, there appeared to be no other alternative to move it. 

Furthermore, the officers had authority of law to seize Long’s truck. Long 

violated the city’s 72-hour parking ordinance. SMC 11.72.440. He had no right to park 

on a public right of way. See Galvis v. Dep’t of Transp., 140 Wn. App. 693, 706, 167 

P.3d 584 (2007) (parking on a public right of way is a privilege); SMC 11.30.060 (a

“vehicle . . . may be impounded after notice of such proposed impoundment has been 

securely attached”). 

Finally, Long contends that even if the initial impoundment was reasonable, 

holding his truck for an additional 21 days was unreasonable because the impoundment 

violated the homestead act. Suppl. Br. of Long at 19-21. We reject this argument. While 

it is far from acceptable that Long was deprived of his home for three weeks, Long does 

not argue that it violated due process. At the Court of Appeals, Long claimed the city 

violated his substantive due process rights with deliberate indifference by depriving him 

of shelter and exposing him to inclement weather. Long, 13 Wn. App. 2d at 731-33. The 

court rejected this argument in part because Long offered no case considering the 
No. 98824-2 

20 

doctrine outside the context of a 42 U.S.C. § 1983 claim. Id. at 732-33. Long did not 

seek review of the issue here. 

We note that our decision on the homestead act does not call into question the 

city’s independent authority to impound a vehicle. The Seattle Municipal Code provides 

this mechanism to enforce parking infractions. SMC 11.72.440. A vehicle owner can 

object to the impoundment and payment of fees, but the homestead act is not a sword to 

prevent impoundment. Christensen, 35 Wn. App. at 631. Homestead protections are 

resolved upon enforcement, not issuance, of a parking ticket or impoundment of a 

vehicle. See Enyart, 17 Wn. App. at 184; Domke, 18 Wn.2d at 573; Sharp, 30 Wn. App. 

at 839. 

III. Excessive Fines

Long also seeks relief under the state and federal excessive fines clauses. Pet. for 

Review at 17; WASH. CONST. art. I, § 14; U.S. CONST. amend. VIII. Washington’s 

constitution states, “Excessive bail shall not be required, excessive fines imposed, nor 

cruel punishment inflicted.” WASH. CONST. art. I, § 14. The federal constitution 

provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel 

and unusual punishments inflicted.” U.S. CONST. amend. VIII. 

This court has stated that article I, section 14 provides greater protection than the 

Eighth Amendment for the purposes of cruel punishment. E.g., State v. Roberts, 142 

Wn.2d 471, 506, 14 P.3d 713 (2000) (recognizing that the “Washington State 

Constitution’s cruel punishment clause often provides greater protection than the Eighth 
No. 98824-2 

21 

Amendment”); accord State v. Manussier, 129 Wn.2d 652, 674, 921 P.2d 473 (1996) 

(citing State v. Fain, 94 Wn.2d 387, 392-93, 617 P.2d 720 (1980)). Long has failed to 

provide an analysis under State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), in 

support of his argument that the excessive fines prohibition under our state constitution 

should be evaluated differently from the parallel provision in the United States 

Constitution. A Gunwall analysis is not a talisman but an interpretive tool. When a party 

urges a different or more protective interpretation under our state constitution for the first 

time, we expect supportive briefing, particularly when the language of that provision is 

identical to the United States constitutional provision. Absent support for an independent 

analysis, we view article I, section 14 and the Eighth Amendment as coextensive for the 

purposes of excessive fines. 

The excessive fines clause “limits the government’s power to extract payments, 

whether in cash or in kind, ‘as punishment for some offense.’” Austin v. United States, 

509 U.S. 602, 609-10, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993) (emphasis omitted) 

(quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265, 

109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989)). Thus, a qualifying “fine” is a payment to a 

sovereign as punishment for some offense. United States v. Bajakajian, 524 U.S. 321, 

327-28, 118 S. Ct. 2028, 141 L. Ed. 2d 314 (1998); Browning-Ferris, 492 U.S. at 265.

The Supreme Court recently concluded that the clause is applicable to the states. Timbs 

v. Indiana, ___ U.S. ___, 139 S. Ct. 682, 687, 203 L. Ed. 2d 11 (2019).
No. 98824-2 

22 

A. Historical Considerations

The excessive fines clause was taken “verbatim” from the English Bill of Rights 

and the Magna Carta, which guaranteed that a “‘[f]ree-man shall not be amerced[7]

 for a 

small fault, but after the manner of the fault; and for a great fault after the greatness 

thereof, saving to him his contenement.’”8

 Id. at 687-88 (quoting Magna Carta). The 

Magna Carta required monetary sanctions to be “‘proportioned to the wrong’” and “‘not 

be so large as to deprive [an offender] of his livelihood.’” Id. at 688 (alteration in 

original) (quoting Browning-Ferris, 492 U.S. at 271). 

Despite these guarantees, Stuart kings continued to impose large fines on English 

subjects in order to raise revenue, harass political rivals, and detain those unable to pay. 

Id. at 688 (majority), 694 (Thomas, J., concurring in judgment) (reviewing the heavy 

fines imposed on the critics of the crown during the 17th century, such as a £100,000 levy 

against the sheriff of London for speaking against the Duke of York). After the last 

Stuart king was overthrown, the English Bill of Rights reaffirmed the Magna Carta’s 

excessive fines protection. Id. at 688. Virginia was the first to adopt the familiar 

language from the English Bill of Rights, and the Eighth Amendment was based directly 

on article I, section 9 of the Virginia Declaration of Rights of 1776. Id.; see also 

7 Black’s defines “amerce” as “[t]o impose a fine or penalty that is not fixed but is left to the 

court’s discretion” or “[t]o fine or punish in any manner.” BLACK’S, supra, 103; see also Timbs, 

139 S. Ct. at 693 (Thomas, J., concurring in judgment) (noting that “amercements” are the 

medieval predecessors of fines). 8 “Contenement” is defined as “[f]reehold land held by a feudal tenant, [especially] land used to 

support the tenant. ●Magna Carta (1215) exempted this property from seizure.” BLACK’S, 

supra, 398.
No. 98824-2 

23 

Browning-Ferris, 492 U.S. at 294 (O’Connor, J., concurring in part and dissenting in 

part).9

 All 50 states now include constitutional provisions against excessive fines. 

Timbs, 139 S. Ct. at 689. 

B. The Excessive Fines Cases

The Supreme Court largely ignored the excessive fines clause for two centuries. 

Beth A. Colgan, Reviving the Excessive Fines Clause, 102 CAL. L. REV. 277, 297 (2014) 

(“Though the Excessive Fines Clause was ratified in 1791, nearly two centuries passed 

before the Supreme Court undertook its first meaningful foray into analyzing the 

Clause.”). 1993 marked the Court’s first substantial engagement with excessive fines in 

Austin. See Dep’t of Revenue v. Kurth Ranch, 511 U.S. 767, 803 n.2, 114 S. Ct. 1937, 

128 L. Ed. 2d 767 (1994) (Scalia, J., dissenting) (stating that Austin “rescued” the 

excessive fines clause “from obscurity”). Austin held that civil and criminal forfeitures 

are subject to the excessive fines clause if they are at least partially punitive. 509 U.S. at 

609-10. In that case, a defendant pleaded guilty to a drug offense and forfeited his

automobile body shop and mobile home. Id. at 604-05. The government argued on 

appeal that civil forfeiture was not “punishment” and could not be excessive under the 

Eighth Amendment. Id. 607. The Court disagreed, concluding that punishment “‘cuts 

across the division between the civil and criminal law.’” Id. at 610 (quoting United 

States v. Halper, 490 U.S. 435, 447-48, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989)). Civil 

9 Sadly, in spite of our vaunted independence, America followed our English forebears’ history 

of economic abuse. See Timbs, 139 S. Ct. at 688. After the Civil War, Southern states enacted 

“Black Codes,” imposing “draconian fines” for violations of vagrancy and recreating the system 

of involuntary servitude. Id. at 688-89. 
No. 98824-2 

24 

proceedings “‘may advance punitive [and] remedial goals.’” Id. (quoting Halper, 490 

U.S. at 447). The relevant question, according to the Court, was whether a sanction is 

“simply” or “purely” remedial or whether it has any punitive characteristics, in which 

case it “must be considered a punishment for the purpose of the excessive fines clause.” 

State v. McClendon, 131 Wn.2d 853, 883, 935 P.2d 1334 (1997) (plurality opinion); see 

also Austin, 509 U.S. at 621. 

Five years later, the Court returned to excessive fines in Bajakajian, in which a 

defendant was arrested at an airport for failing to declare that he and his family were 

transporting over $350,000 in currency out of the country. 524 U.S. at 324. Federal law 

required persons to forfeit to the government any property involved in such an offense. 

18 U.S.C. § 982(a)(1) (2012). The Supreme Court explained that proportionality was the 

appropriate standard to assess excessive fines and, specifically, that a punitive fine 

violates the Eighth Amendment if it is “grossly disproportional to the gravity of the 

offense.” Bajakajian, 524 U.S. at 324. The Court found the forfeiture of the entire sum 

was unconstitutionally excessive after considering that among other things, it was not an 

egregious infraction and the money was not connected to any illegal activities. Id. at 

337-40, 344. Both Austin and Bajakajian remain the seminal cases in the Court’s

excessive fines jurisprudence. 

In 2019, the Court once more examined the excessive fines clause in Timbs. 

There, a defendant pleaded guilty to dealing a controlled substance and conspiracy to 

commit theft. Timbs, 139 S. Ct. at 686. The police seized the defendant’s Land Rover 
No. 98824-2 

25 

SUV (sport utility vehicle) purchased for $42,000. Id. At the civil forfeiture hearing, the 

trial court found the vehicle had been used to facilitate a criminal offense but its value 

constituted four times the maximum monetary fine for the drug conviction ($10,000); 

thus, forfeiting the vehicle would be grossly disproportionate to the gravity of the 

offense. Id. The Indiana Supreme Court did not examine excessiveness and instead held 

the excessive fines clause did not apply to state action. The Supreme Court granted 

review to answer this narrow question and held that the clause is an incorporated 

protection applicable to the states under the Fourteenth Amendment. Id. 

C. Legal Principles

It is self-evident that to trigger the Eighth Amendment’s excessive fines clause, a 

sanction must be a “fine” and it must be “excessive.” Because the clause limits the 

government’s power to extract payments as “punishment for some offense,” BrowningFerris, 492 U.S. at 265, qualifying fines must be at least “partially punitive.” Timbs, 139 

S. Ct. at 689. Therefore, the first step in an excessive fines inquiry is whether the state

action is “punishment.” State v. Clark, 124 Wn.2d 90, 102, 875 P.2d 613 (1994), 

overruled in part on other grounds by State v. Catlett, 133 Wn.2d 355, 945 P.2d 700 

(1997); Austin, 509 U.S. at 610. The second inquiry is whether the fine is 

constitutionally excessive. Clark, 124 Wn.2d at 102-03; Bajakajian, 524 U.S. at 334. 

Courts engage in this inquiry de novo. Bajakajian, 524 U.S. at 336-37; State v. 

Chenoweth, 160 Wn.2d 454, 462, 158 P.3d 595 (2007) (interpreting the constitution is a 

question of law we review de novo). 
No. 98824-2 

26 

i. “Punishment”

The Court of Appeals assumed without deciding that the impoundment of Long’s 

truck and the associated costs constitute a fine. Long, 13 Wn. App. 2d at 730. Here, the 

parties disagree that either is a punishment and consequently a fine. Long argues that 

SMC 11.72.440(E) characterizes the impoundment and payment plan as a “penalty” for 

violating the 72-hour law, making them partially punitive. Suppl. Br. Long at 7; see also 

Consol. Br. of Resp’t/Cross-Pet’r Long (No. 78230-4-I Jan. 4, 2019) at 28-29. Seattle 

responds that the impoundment is not a fine because “‘deprivation by the government 

must be intended to be permanent.’” Seattle’s Suppl. Br. at 11 (quoting Coleman v. Watt, 

40 F.3d 255, 263 (8th Cir. 1994)). Long retrieved his truck, thus the impoundment was 

not permanent. Id. Regarding the associated costs, Seattle contends the payment plan is 

remedial rather than punitive because it was meant to recoup the towing and storage fees 

that the city paid on Long’s behalf. We agree with Long that the impoundment and 

associated costs are partially punitive and constitute fines. Austin, 509 U.S. at 610. 

If a sanction is partially punitive, it falls within the excessive fines clause. Id.; see 

also Tellevik, 83 Wn. App. at 372 (“If the statutory provision has any purpose not solely

remedial, the forfeiture is punishment within the meaning of the Eighth Amendment.”). 

SMC 11.72.440(E) states, “Vehicles in violation of this section are subject to impound as 

provided for in Chapter 11.30 SMC, in addition to any other penalty provided for by 

law.” (Emphasis added.) As the municipal and superior courts recognized, the plain 
No. 98824-2 

27 

language shows that one purpose of the ordinance is to penalize violators. See Hr’g 

(Mar. 2, 2018) at 50. 

The associated costs were intended to reimburse the city for towing and storage 

fees, but they did not exist in isolation. The fees were imposed only as a result of the 

impoundment, which SMC 11.72.440(E) characterizes as a “penalty.” While the costs 

may be remedial, they are also punitive. See Bajakajian, 524 U.S. at 329 (citing 

BLACK’S LAW DICTIONARY 1293 (6th ed. 1990) (“[R]emedial action” is one “brought to 

obtain compensation or indemnity.”); One Lot Emerald Cut Stones v. United States, 409 

U.S. 232, 237, 93 S. Ct. 489, 34 L. Ed. 2d 438 (1972) (monetary penalty provides a 

“reasonable form of liquidated damages” and thus a “remedial” sanction for 

compensating the government for lost revenue)). We hold the impoundment and 

associated costs are both partially punitive. 

Seattle does not meaningfully dispute the remedial versus punitive nature of the 

impoundment. Instead, the city argues that a fine must be a permanent loss as required 

by Coleman. Seattle’s Suppl. Br. at 11; Answer to Pet. for Review at 6-7. In that case, 

the Eighth Circuit Court of Appeals stated that a government deprivation “must be 

intended to be permanent to constitute a fine, as in the case of civil forfeitures.” 

Coleman, 40 F.3d at 263 (citing Austin, 509 U.S. at 602; Alexander v. United States, 509 

U.S. 544, 113 S. Ct. 2766, 125 L. Ed. 2d 441 (1993)). While Austin and Alexander

concerned the permanent loss of property via forfeiture, neither requires it. 509 U.S. at 

604, 606-22; 509 U.S. at 547-48, 558-60. 
No. 98824-2 

28 

Additionally, Coleman devoted “little discussion” to the argument that a 

temporary deprivation is an excessive fine. 40 F.3d at 263. Instead, the opinion focused

on the subject of Austin and Alexander rather than their underlying reasoning. See id. 

The Austin Court explained that a forfeiture may serve a remedial purpose and still be 

subject to the excessive fines clause if it also serves “in part to punish.” 509 U.S. at 610; 

see also Browning-Ferris, 492 U.S. at 265. This inquiry looks to the function of a 

specific sanction, not its form or duration. See Benjamin Gillig, Note, Nexus Rethought: 

Toward a Rational Factual Standard for Federal Criminal Forfeitures, 102 IOWA L.

REV. 289, 297 (2016) (Austin “emphasized the function that a forfeiture plays in a 

particular case”). It advances a categorical analysis rather than a bright line rule as 

suggested by Seattle’s interpretation. See Tellevik, 83 Wn. App. at 372 (interpreting 

Supreme Court excessive fines precedent as applying a “categorical” approach that 

examines whether a forfeiture constitutes a punishment depending on the purposes of the 

provision). 

Though Austin took no direct position on whether a temporary deprivation may 

still be partially punitive, its reasoning supports this conclusion. Outside the parking 

infraction context, temporary vehicle deprivation is punitive. For example, former RCW 

46.55.350-.360 (2019), also known as “Hailey’s Law,” required officers to impound a 

vehicle when arresting drivers for DUIs (driving under the influence). LAWS OF 2011, ch. 

167, § 3. The law also precluded drivers from redeeming their vehicles until 12 hours 

after it arrived at the tow truck operator’s storage facility. Id. Hailey’s Law was meant 
No. 98824-2 

29 

to “deter those arrested for driving or controlling a vehicle while under the influence of 

alcohol or drugs.” Id. § 2(1)(c) (emphasis added). Deterrence has traditionally been 

viewed as a goal of punishment. Bajakajian, 524 U.S. at 329. 

This court held that Hailey’s Law violated article I, section 7 and found the statute 

unconstitutional in Villela, 194 Wn.2d at 462. See also LAWS OF 2020, ch. 117, § 4 

(repealing Hailey’s Law). While in effect, however, Hailey’s Law required temporary 

deprivation of a car for DUI arrest as a deterrent. This temporary deprivation was plainly 

a punishment. See Bajakajian, 524 U.S. at 329; Tellevik, 83 Wn. App. at 372. Under 

Austin, 509 U.S. at 610, and Bajakajian, 524 U.S. at 329, the law would qualify as 

partially punitive. Similarly, the temporary impoundment of Long’s is a penalty, and so, 

it is partially punitive. SMC 11.72.440(E); Austin, 509 U.S. at 610; Bajakajian, 524 U.S. 

at 329. 

Moreover, we are not bound by Coleman’s rather conclusory treatment of the 

Eighth Amendment. See 40 F.3d at 263 (devoting “little discussion” to the argument that 

a temporary deprivation is an excessive fine). On federal constitutional questions, we are 

bound only by decisions of the Supreme Court of the United States. State v. Vance, 168 

Wn.2d 754, 762 n.7, 230 P.3d 1055 (2010) (citing State v. Radcliffe, 164 Wn.2d 900, 

906, 194 P.3d 250 (2008); Tricon, Inc. v. King County, 60 Wn.2d 392, 394, 374 P.2d 174 

(1962)). We therefore anchor our interpretation on the Supreme Court’s reasoning in 

Austin and Bajakajian rather than the Eighth Circuit’s interpretation of those cases. 
No. 98824-2 

30 

Under the Court’s precedent, the impoundment of Long’s truck was partially punitive and 

constitutes a fine. 

ii. “Excessive”

Next, we consider whether the fines were excessive. Bajakajian, 524 U.S. at 333;

Tellevik, 83 Wn. App. at 372. “The touchstone of the constitutional inquiry under the 

Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture 

must bear some relationship to the gravity of the offense that it is designed to punish.” 

Bajakajian, 524 U.S. at 334 (citing Austin, 509 U.S. at 622-23; Alexander, 509 U.S. at 

559). A fine violates the excessive fines clause if it is grossly disproportional to the 

gravity of a defendant’s offense. Id. at 336. 

Despite mandating a proportionality inquiry, the Court has not yet articulated a 

test to carry it out. See id. at 337-40; David Pimentel, Forfeitures and the Eighth 

Amendment: A Practical Approach to the Excessive Fines Clause as a Check on 

Government Seizures, 11 HARV. L. & POL’Y REV. 541, 542 (2017) (“[T]he Supreme 

Court . . . has not given clear or meaningful guidance for when a forfeiture should be 

deemed ‘excessive.’”). In lieu of such direction, lower courts have looked to Bajakajian

for factors that the Court found persuasive.10 This has resulted in a “patchwork” of tests 

in the federal circuits. Pimentel, supra, at 543-44. For example, the Eleventh Circuit 

10 Nicholas M. McLean, Livelihood, Ability to Pay, and the Original Meaning of the Excessive

Fines Clause, 40 HASTINGS CONST. L.Q. 833, 845-46 (2013) (“[E]ach circuit has had to develop 

its own version of the Bajakajian[ ] multi-factor gross disproportionality test, with the gross 

disproportionality determination often characterized as an inherently fact-intensive inquiry.” 

(internal quotation marks omitted)). 
No. 98824-2 

31 

applies a three-factor test11 and the Tenth Circuit a nine-factor test.12 Id. at 544. 

Regardless of the factors, the various tests are consistent in their “general 

permissiveness.” Id. 

This court adopted the Ninth Circuit’s test to determine whether a fine is grossly 

disproportional. The test includes but is not limited to “‘(1) the nature and extent of the 

crime, (2) whether the violation was related to other illegal activities, (3) the other 

penalties that may be imposed for the violation, and (4) the extent of the harm caused.’” 

State v. Grocery Mfrs. Ass’n, 195 Wn.2d 442, 476, 461 P.3d 334 (2020) (quoting United 

States v. $100,348.00 in U.S. Currency, 354 F.3d 1110, 1122 (9th Cir. 2004) (citing 

Bajakajian, 524 U.S. at 337-40)); see also Tellevik, 83 Wn. App. at 374-75 (listing 

similar factors). Bajakajian does not require the consideration of “any rigid set of factors 

in deciding whether a punitive fee is” proportional to the offense. United States v. 

Mackby, 339 F.3d 1013, 1016 (9th Cir. 2003). 

Critical to the present case is whether this proportionality inquiry can or should 

include consideration of a person’s ability to pay. Timbs notes that Bajakajian took “no 

position on . . . whether a person’s income and wealth are relevant considerations in 

judging the excessiveness of a fine,” 139 S. Ct at 688, yet Bajakajian also observed that 

no argument was presented on the issue: “[r]espondent does not argue that his wealth or 

income are relevant to the proportionality determination or that full forfeiture would 

deprive him of his livelihood and the District Court made no factual findings in this 

11 United States v. Browne, 505 F.3d 1229, 1281 (11th Cir. 2007). 

12 United States v. Wagoner County Real Estate, 278 F.3d 1091, 1101 (10th Cir. 2002). 
No. 98824-2 

32 

respect.” 524 U.S. at 340 n.15 (citation omitted). While the Court has not yet decided 

whether ability to pay is required, the history of the Eighth Amendment suggests it is. 

The Magna Carta—from which the Eighth Amendment descended—limited the 

government’s power to impose punitive fines by, in part, forbidding penalties “so large as 

to deprive [a person] of his livelihood.” Browning-Ferris, 492 U.S. at 271. English 

freemen could be amerced only in such a way as to save “‘to him his contenement,’” a 

merchant “his merchandise,” and a serf his “wainage.”13 Bajakajian, 524 U.S. at 335-36 

(quoting Magna Carta); see also Timbs, 139 S. Ct. at 694 (Thomas, J., concurring in 

judgment) (quoting 2 HENRY HALLAM, THE CONSTITUTIONAL HISTORY OF ENGLAND:

FROM THE ACCESSION OF HENRY VII TO THE DEATH OF GEORGE II 34 (8th ed. 1867) 

(noting the Magna Carta’s provision that no person be amerced to the “‘full extent of his 

means’”)). Blackstone’s Commentaries echo this notion: no one “shall have a larger 

amercement imposed . . . than his circumstances or personal estate will bear.” 4 

WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *372 (1769). 

Across the pond, the Virginia Supreme Court of Appeals explained that its 

excessive fines clause reflected the traditional understanding that any “fine or 

amercement ought to be according to the degree of the fault and the estate of the 

defendant.” Jones v. Commonwealth, 5 Va. 555, 558 (1799) (emphasis added). Thomas 

Cooley’s esteemed constitutional treatise stated that the excessive fines provision requires 

13 For the definition of “contenement,” see supra note 8. Black’s defines “wainage” as “[t]he 

plow, team, and other implements used by a person ([especially] a villein) to cultivate the soil” 

or the “[c]ultivated land or the profits from it.” BLACK’S, supra, 1894. 
No. 98824-2 

33 

a fine to “have some reference to the party’s ability to pay it.” THOMAS M. COOLEY, A

TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE 

POWER OF THE STATES OF THE AMERICAN UNION 328 (1868). 

Nineteenth century lawmakers appear to have accepted this traditional 

understanding. See Nicholas M. McLean, Livelihood, Ability to Pay, and the Original 

Meaning of the Excessive Fines Clause, 40 HASTINGS CONST. L.Q. 833, 883-84 (2013). 

In a 1864 speech to the United States Senate, one Pennsylvania Republican noted that an 

excessive fine “‘is a technical term’” and must “‘be determined from the condition of the 

man how much he could pay without touching the sustenance of his wife and children.’” 

Id. at 884 (quoting CONG. GLOBE, 38th Cong., 1st Sess. 561 (1864) (statement of Sen. 

Edgar Cowan)). Though not uniformly accepted, many state courts applied this 

understanding of the excessive fines clause.14 For example, the Florida Supreme Court 

concluded that “[t]he duration and quantity of each [fine]” depends on the “aggravation, 

14 See McLean, supra, at 885 & n.195 (citing State v. Staub, 182 La. 1040, 1044-45, 162 So. 766 

(1935) (“What constitutes an excessive fine for the violation of a penal statute depends in part 

. . . upon the ability of the defendant to pay. A fine which in one case would be only slight 

punishment, because easily paid, might in another case be excessive, because its payment would 

be ruinous to the convict.”); People v. Hershey Farms, Inc., 175 Misc. 641, 643, 24 N.Y.S.2d 

163 (Sup. Ct. 1941) (quoting 15 AM. JUR. Criminal Law § 551 (1938)) (“‘A fine is excessive if it 

seriously impairs his ability to gain a livelihood.’”); Cohen v. State, 173 Md. 216, 232, 195 A. 

532 (Ct. App. 1937) (“[W]hen a fine is imposed, it should be done with due regard to the ability 

of the defendant to pay.”); cf. State v. Ross, 55 Or. 450, 474, 104 P. 596, 106 P. 1022 (1909) 

(“[I]mprisonment . . . for life, for the nonpayment of [a] fine, . . . is a cruel and unusual 

punishment.”). Not all state courts, however, agreed on this point. See, e.g., Poindexter v. State, 

137 Tenn. 386, 392, 193 S.W. 126 (1917) (“A fine is proportioned to the gravity of the offense 

punished, and the financial ability of a defendant to pay is not ordinarily considered.”); Conley v. 

State, 85 Ga. 348, 11 S.E. 659 (1890); State v. Little, 42 Iowa 51, 56 (1875) (“It seems to us that 

this is one of the cases which call for severe punishment. In view of the fact that the extent of 

the punishment in such cases is fixed by law at one thousand dollars, we think a fine of half that 

sum is far from being excessive in this case.”)). 
No. 98824-2 

34 

or otherwise, of the offense, [and] the quality and condition of the parties . . . the 

quantum, in particular, of pecuniary fines neither can nor ought to be ascertained by an 

invariable.” Id. (second alteration in original) (quoting Frese v. State, 23 Fla. 267, 270-

71, 2 So. 1 (1887)). 

A number of modern state and federal courts have joined the chorus of legal 

scholars to conclude that the history of the clause and the reasoning of the Supreme Court 

strongly suggest that considering ability to pay is constitutionally required. E.g., Oregon 

v. Goodenow, 251 Or. App. 139, 153, 282 P.3d 8 (2012) (“When assessing the severity of

a defendant’s forfeiture, courts consider the amount of the forfeiture and the effect of the 

forfeiture on the defendant.” (citing United States v. Levesque, 546 F.3d 78 (1st Cir. 

2008); Browning-Ferris, 492 U.S. at 266-67)); Commonwealth v. 1997 Chevrolet, 106 

A.3d 836, 871 (Pa. 2014) (“the excessive fines analysis . . . requires . . . a thorough

examination of every property owner’s circumstances”); Rachel J. Weiss, The Forfeiture 

Forecast After Timbs: Cloudy with a Chance of Offender Ability to Pay, 61 B.C. L. REV. 

3073, 3108 (2020); Suppl. Br. of Long at 9 n.19 (citing law review articles in support). 

Federal circuit courts are split on the issue. United States v. Lippert, 148 F.3d 974, 978 

(8th Cir. 1998) (“[I]n the case of fines, as opposed to forfeitures, the defendant’s ability 

to pay is a factor under the Excessive Fines Clause.”). But see United States v. Smith, 

656 F.3d 821, 828 (8th Cir. 2011) (deeming a “‘defendant’s inability to satisfy a 

forfeiture at the time of conviction’” is not relevant to constitutional analysis (quoting 
No. 98824-2 

35 

United States v. Levesque, 546 F.3d 78, 85 (1st. Cir. 2008))); accord United States v. 

Seher, 562 F.3d 1344, 1371 (11th Cir. 2009). 

The Colorado Supreme Court recently observed that history and precedent 

constitute “persuasive evidence that a fine that is more than a person can pay may be 

‘excessive’ within the meaning of the Eighth Amendment.” Dep’t of Labor & Emp’t v. 

Dami Hosp., LLC, 2019 CO 47, ¶ 30, 442 P.3d 94, 101. In addition to historical 

considerations, the Colorado court found that the “concept of ‘proportionality’ itself” 

supported considering ability to pay. Id. ¶ 31. A fine that would bankrupt one person 

would be a substantially more burdensome fine than one that did not. Id. 

The weight of history and the reasoning of the Supreme Court demonstrate that 

excessiveness concerns more than just an offense itself; it also includes consideration of 

an offender’s circumstances. The central tenant of the excessive fines clause is to protect 

individuals against fines so oppressive as to deprive them of their livelihood. Timbs, 139 

S. Ct. at 688. Inherent in this safeguard is the recognition that “‘what is ruin to one

man’s fortune, may be a matter of indifference to another’s.’” Browning-Ferris, 492 U.S. 

at 300 (O’Connor, J., concurring in part and dissenting in part) (quoting 4 BLACKSTONE, 

supra, *371). As one Pennsylvania court astutely noted, “[T]he excessive fines analysis 

under the Eighth Amendment requires more than ‘lip service.’ . . . This requires a 

thorough examination of every property owner’s circumstances.” 1997 Chevrolet, 106 

A.3d at 871.
No. 98824-2 

36 

The homelessness crisis and widespread use of fines to fund the criminal justice 

system also fully support an ability to pay inquiry. Amici have demonstrated what any 

casual observer of the news already knows: America is facing a severe housing crisis. 

E.g., Br. of Amici Curiae ACLU of Wash. et al. at 1; Benjamin Schneider, CityLab

University: Understanding Homelessness in America, BLOOMBERG CITYLAB (July 6, 

2020), https://www.bloomberg.com/news/features/2020-07-06/why-is-homelessnesssuch-a-problem-in-u-s-cities (reviewing a brief history, geographic and demographic 

trends, and the effect of COVID-19 on homelessness in America). In King County, 

nearly 12,000 people are experiencing homelessness, and over 2,000 of those individuals 

live in their vehicles. Homelessness in King County 2019, ALL HOME, 

http://allhomekc.org/wp-content/uploads/2019/05/All-Homes-Infographic-V04.pdf 

[http://perma.cc/5LQX-ZCQE]; Amicus Br. of Nw. Justice Project at 2-3. 

Many factors have contributed to this emergency: volatile housing markets, 

uncertain social safety nets, colonialism, slavery, and discriminative housing practices—

all exacerbated by the global COVID-19 pandemic. Br. of Amici Curiae ACLU of Wash. 

et al. at 1-7 (examining the effects of the seizure of Seattle and surrounding lands from 

indigenous peoples and racially restrictive covenants on communities of color); see also 

RICHARD ROTHSTEIN, THE COLOR OF LAW: A FORGOTTEN HISTORY OF HOW OUR 

GOVERNMENT SEGREGATED AMERICA 64, 97-99 (2017) (reviewing federal, state, and 

local housing policies that supported segregation such as redlining, that is the refusal to 

insure mortgages in black neighborhoods). The excessive fines clause descended from 
No. 98824-2 

37 

English law that sought to protect individuals from fines that would deprive them of their 

ability to live. This concern is directly related to an offender’s circumstances—in this 

case, homelessness and the circumstances forcing individuals into it. 

Further, this court has recognized that punitive fines should not be sought or 

imposed as “‘“a source of revenue.”’” Grocery Mfrs. Ass’n, 195 Wn.2d at 476 (quoting

Timbs, 139 S. Ct. at 689 (quoting Harmelin v. Michigan, 501 U.S. 957, 979 n.9, 111 S. 

Ct. 2680, 115 L. Ed. 2d 836 (1991) (plurality opinion)). It has been said that “offenderfunded justice” comprises much of the funding for criminal justice across the country, 

including traffic and parking violation fines. E.g., Bryan L. Adamson, Debt Bondage: 

How Private Collection Agencies Keep the Formerly Incarcerated Tethered to the 

Criminal Justice System, 15 NW. J.L. & SOC. POL’Y 305, 315 (2020); Suppl. Br. of Long 

at 13. Courts scrutinize “governmental action more closely when the State stands to 

benefit.” Harmelin, 501 U.S. at 979 n.9 (lead opinion). Including an ability to pay 

inquiry for an excessive fines claim allows courts to do just that. 

We pay more than “lip service” to the excessive fines clause and instead hew to its 

history. We conclude, as did the Colorado Supreme Court, that courts considering 

whether a fine is constitutionally excessive should also consider a person’s ability to pay. 

See Dami Hosp., 2019 CO 47, ¶ 31. 

D. Application to Long

Our gross disproportionality test considers “‘(1) the nature and extent of the crime, 

(2) whether the violation was related to other illegal activities, (3) the other penalties that
No. 98824-2 

38 

may be imposed for the violation, and (4) the extent of the harm caused,’” as well as a 

person’s ability to pay the fine. See Grocery Mfrs. Ass’n, 195 Wn.2d at 476; Dami 

Hosp., 442 P.3d at 101. In light of these factors, we conclude that the impoundment and 

$547.12 payment plan were unconstitutionally excessive. 

First, the nature of the offense at issue is a civil parking infraction that carries a 

$44 fine. SMC 11.31.121 (“Monetary penalties—Parking infractions”). The city 

certainly has an interest in keeping its streets clear and free of traffic, but the offense of 

overstaying one’s welcome in a specific location is not particularly egregious. See

Seattle’s Suppl. Br. at 13. Moreover, the city has suspended enforcement of the 72-hour 

parking violation during COVID-19, signaling that the city views it as a relatively minor 

offense. See Amici Br. of Pub. Justice et al. at 8. Second, there is no evidence that the 

infraction was related to any other criminal activity. Third, the only penalty identified is 

the $44 ticket and towing/storage costs. In this case, the magistrate waived the ticket and 

reduced the associated costs from approximately $900 to $550. If Long fell behind on 

payments, he would be subject to additional penalties in the form of late charges and 

collection efforts. Fourth, the extent of the harm caused was minimal. As the superior 

court noted, Long was not parked in an area of “very hot demand for city vehicles or 

otherwise.” Hr’g at 54. He was not parked in a residential neighborhood, and as noted, 

he was not cited for blocking or obstructing a roadway. 

On the other hand, the city was harmed when it paid the costs of towing and 

impoundment. See SMC 11.30.160(B) (allowing a payment plan requires that “the City 
No. 98824-2 

39 

shall be responsible for paying the costs of impoundment to the towing company”). 

Seattle leans heavily on the notion of reimbursement as evidence that the payment plan is 

not excessive because “[t]he government is entitled to rough remedial justice.” Clark, 

124 Wn.2d at 103; Seattle’s Suppl. Br. at 15. Clark reasoned that the value of the 

forfeited property in that case was equivalent to the cost of prosecution, thus the 

government received rough remedial justice, and the court declined to consider the 

forfeiture as an excessive fine. 124 Wn.2d at 103-04. But Seattle overlooks a critical 

caveat: Clark also explicitly acknowledged that “rough equivalence of the value of the 

property forfeited and the amount spent on prosecution may not always insulate a 

forfeiture from a finding that the forfeiture is ‘excessive.’” Id. at 104 (emphasis added). 

Reimbursement is but one factor courts may consider in a proportionality inquiry. 

Fifth, Long’s circumstances were such that he had little ability to pay $547.12. 

When his vehicle was impounded, Long earned between $300.00 and $600.00 in addition 

to $100.00 in tribal fees per month. He told the magistrate at his impoundment hearing 

that he lived in his truck and had only $50.00 to his name. Long was attempting to move 

himself out of homelessness by saving for an apartment. During that time, Long’s truck 

held his clothes, food, bedding, and various work tools essential to his job as a general 

tradesman. After the truck was towed, Long slept outside before seeking shelter from the 

cold weather, and he contracted influenza. These facts indicate Long could not afford to 

pay the $547.12 assessment. From October 13 until November 3, Long did not have his 

truck and could not access his tools, thus he could not find skilled labor jobs. During that 
No. 98824-2 

40 

period, he was homeless and sick, likely making very little money. The impoundment 

severely compromised Long’s ability to work—in other words, his livelihood. See 

Bajakajian, 524 U.S. at 335; Timbs, 139 S. Ct. at 688 (“‘[N]o man shall have a larger 

amercement imposed upon him, than his circumstances or personal estate will bear.’” 

(quoting 4 BLACKSTONE, supra, *372)).

Moreover, paying $50 per month when Long made at most $700, would leave him 

$650 with which to live. Cf. Hr’g at 57 (the superior court stated that Long’s “income 

per month is something like $300 at best.”); see also Amici Br. of Pub. Justice et al. at 18 

& n.12 (the self-sufficiency standard or minimum amount of money to adequate meet 

one’s needs for a Seattle resident is $2,270 per month). It is difficult to conceive how 

Long would be able to save money for an apartment and lift himself out of homelessness 

while paying the fine and affording the expenses of daily life. See Amici Br. of Pub. 

Justice et al. at 17-19 (noting poor offenders facing large financial penalties routinely 

forgo basic needs, miss bills, and borrow at high interest rates); Professors Amicus 

Curiae Br. in Supp. of Resp’t at 9-16 (reviewing the “dramatically different type of 

justice” poor people face than “defendants with financial means,” including automatic 

license suspensions for failure to pay court fines, longer periods of homelessness, and 

persistent mental health concerns). Seattle asserts that treating the payment plan as 

excessive punishment is to “trivialize the Eighth Amendment.” Seattle’s Suppl. Br. at 14. 

Yet to do what the city asks is to ignore the Eighth Amendment entirely. This we cannot 

do. 
No. 98824-2 

41 

Finally, though not referenced in our proportionality test, the Court of Appeals 

below considered the legislative approval of the fines. Long, 13 Wn. App. 2d at 731. 

Pursuant to Seher, 562 F.3d at 1371, if the value of the fine is within the range prescribed 

by a legislative body, a strong presumption exists that a forfeiture is constitutional. The 

Court of Appeals found that towing and requiring a vehicle owner to pay the associated 

costs are the “exact penalties” authorized by the city council for violating the 72-hour 

rule. Long, 13 Wn. App. 2d at 731. While the Seattle City Council likely contemplated 

impoundment when enacting the parking ordinance at hand, it did not approve the related 

costs. Long points out that the fees here were set by a contract negotiated with the 

towing company. Seattle responds that the towing company went through the city’s 

competitive bidding process, indicating legislative approval for towing and storage costs. 

See Seattle’s Suppl. Br. at 16. But the process of competitive bidding shows only that 

Lincoln Towing won the contract, it does not explain how the company determines 

towing and storage costs. See Hr’g at 20-21 (superior court oral ruling). Nor does the 

record contain this information. This is far from the congressionally approved maximum 

financial penalty set out in Bajakajian. As such, it does not indicate a strong presumption 

of constitutionality. 

For these reasons, the impoundment and associated costs deprived Long of his 

means of living and violated the excessive fines clause. 

This decision is not intended to suggest that Seattle can never impound vehicles or 

impose costs associated with towing. Nor does it require city parking enforcement 
42 

No. 98824-2 

officers to determine a vehicle owner’s ability to pay at the issuance of a parking 

infraction, contrary to amicus International Municipal Lawyers Association’s assertion. 

See Amicus Br. of Int’l Mun. Lawyers Ass’n at 13. The above analysis focuses only on

enforcement. See State v. Catling, 193 Wn.2d 252, 264, 438 P.3d 1174 (2019) (noting 

that federal law does not preclude the imposition of a legal financial obligation but does 

restrict the use of Social Security for payment of the debt). The excessive fines clause 

prohibits the extraction of payment as a punishment for some offenses that would deprive 

a person of his or her livelihood. See Bajakajian, 524 U.S. at 335; Timbs, 139 S. Ct. at 

688. A natural venue for this inquiry is an impoundment hearing in municipal court. See

SMC 11.30.120(D) (vehicle owner entitled to a hearing in municipal court to contest an 

impoundment). 

CONCLUSION 

We affirm the superior court’s conclusion that Long’s truck automatically 

qualifies as a homestead and that no declaration is required. RCW 6.13.040(1). 

However, because Seattle has not yet attempted to collect on Long’s debt, former RCW 

6.13.070 does not apply, and Long’s homestead act claim is premature. Thus, we reverse 

the superior court’s decision that Seattle violated the act. 

As to Long’s excessive fines claim, we hold that the impoundment and associated 

costs are fines and that an ability to pay inquiry is necessary. Long has shown that he 

lacks the ability to pay the imposed costs. 
No. 98824-2 

43 

Finally, we conclude that the payment plan as imposed was excessive. However, a 

reasonable fine may still be constitutional and appropriate. Accordingly, we remand the 

case to the trial court for further proceedings consistent with this opinion. 

___________________________________ 

WE CONCUR: 

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1 

City of Seattle v. Long, No. 98824-2 (González, C.J., concurring) 

No. 98824-2 

GONZÁLEZ, C.J. (concurring) – I largely concur with the well-reasoned

majority. I particularly agree that Steven Long’s truck automatically qualified as 

his homestead because he obviously lived in it. In my view, though, the homestead 

act, ch. 6.13 RCW, also protected Long’s home both from being towed and from

being subject to forced sale, regardless of whether the sale was ultimately avoided.

By operation of law, as soon as the truck was towed, a lien was placed on it.

RCW 46.55.140(1). This lien effectively attached the home as security for the

impound debts. This violates the homestead act and never should have happened.1 

See former RCW 6.13.070 (1987). If a home is automatically protected as a 

principal residence under former RCW 6.13.010 (1999), it cannot be simply towed 

by an agent of the state and attached as security for the cost of that tow.2 Even if 

1 Homesteads are not protected against debts secured by “mechanic’s, laborer’s, construction, 

maritime, automobile repair, material supplier’s, or vendor’s liens arising out of and against the 

particular property claimed as a homestead.” Former RCW 6.13.080(1) (2019). These 

exceptions are strictly construed and do not include an operator’s lien that arises from the towing 

of a vehicle. See Pinebrook Homeowners Ass’n v. Owen, 48 Wn. App. 424, 428-29, 739 P.2d 

110 (1987) (holding that an assessment lien does not qualify as one of the statutory homestead 

exceptions); see also City of Algona v. Sharp, 30 Wn. App. 837, 842-43, 638 P.2d 627 (1982) 

(stating that “[a]n inference must therefore be made that the legislature intended the omission” 

of lien types not listed in the statute). 

2 Amici curiae Northwest Justice Project and Northwest Consumer Law Center note that

impoundment and auction of a vehicle is an expedited process with minimal due process 

protections. Amicus Br. of Nw. Justice Project et al. at 15. In fact, “[t]here is a high likelihood 

that vehicle-sheltered individuals will not even receive the [towing] notice, since it is mailed to 
2 

City of Seattle v. Long, No. 98824-2 (González, C.J., concurring) 

that were permissible, requiring Long to consent to a fine for the privilege of 

redeeming his home was not. Under threat of forced sale, Long was forced to 

accede to a payment plan even though the magistrate knew that the vehicle was 

Long’s primary residence. This, too, violates the clear protections of former 

RCW 6.13.070. 

The homestead act protects “‘a home where [the] family may be sheltered 

and live beyond the reach of financial misfortune’” and the act is construed 

“liberally so it may achieve its purpose of protecting family homes.” In re 

Dependency of Schermer, 161 Wn.2d 927, 953, 169 P.3d 452 (2007) (alteration in 

original) (internal quotation marks omitted) (quoting Pinebrook Homeowners 

Ass’n v. Owen, 48 Wn. App. 424, 427, 739 P.2d 110 (1987)). These protections 

would be gutted if the homeowner had to wait until their home is seized and a 

forced sale scheduled before invoking the act’s protections. The impoundment 

hearing is the very latest time the homestead act’s protections could be 

meaningfully raised. See RCW 46.55.120(2)(b). 

The city contends that the homestead act does not apply because a forced 

sale was merely contemplated and because Long impliedly consented to having 

his home impounded by failing to move it. See City of Seattle’s Suppl. Br. at 

9-10. 

the registered owner’s physical address, at which the homeless individual likely does not reside.” 

Id. at 15-16 (citing RCW 46.55.110(a)). This provides additional support for an automatic 

homestead protection that prevents towing in the first instance, as it “may be the only meaningful 

protection” prior to impound and auction. Id. at 16. 
City of Seattle v. Long, No. 98824-2 (González, C.J., concurring) 

3 

But Long could not move his truck because he could not afford a new part. That is 

not consent. Long did not violate the parking ordinance willingly; he simply had 

no other option. Nor did Long willingly enter into an arrangement that provided 

him a benefit with some possible risk. See Felton v. Citizens Fed. Sav. & Loan 

Ass’n of Seattle, 101 Wn.2d 416, 421, 679 P.2d 928 (1984).

Simply put, the homestead act was intended to provide shelter for families. 

Macumber v. Shafer, 96 Wn.2d 568, 570, 637 P.2d 645 (1981) (citing Clark v. 

Davis, 37 Wn.2d 850, 226 P.2d 904 (1951)). The act bars the city from towing a 

vehicle that is occupied as a primary residence and from forcing an individual to 

agree to a payment plan to prevent that vehicle from being sold at a public auction. 

With these observations, I respectfully concur.

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