Seattle’s ban on background checks inches toward Supreme Court

April 04, 2019 | By ETHAN BLEVINS

Artwork by PLF Client Kelly Lyles

Landlords in Seattle can’t ask about or even consider a rental applicant’s criminal history. This edict was handed down in 2017 by the Seattle’s “Fair Chance Housing” Ordinance. The law is merciless: it allows zero flexibility for the gravity or age of the offense or the circumstance of the landlord and her other tenants. Soon, the Washington Supreme Court will decide how high a hurdle this law must leap to satisfy the constitution.

We sued the city soon after the law’s enactment in Yim v. City of Seattle, representing a handful of mom-and-pop landlords and the Rental Housing Association of Washington. The stories of our clients make it clear why “fair” doesn’t mean what Seattle thinks it means. Take, for instance, Kelly Lyles, a single woman with an artist’s livelihood. Her main source of income is a small rental home she inherited in West Seattle. Kelly deals with her tenants often face-to-face, and the Fair Chance Housing Ordinance jeopardizes her personal safety.

Chong and MariLyn Yim own a triplex and a duplex in Seattle. They live in one of the triplex units and rent out the other two units. They share a yard with their tenants, and the Yim children are sometimes home alone while their tenants are in the building. The Yims deserve to know whether a rental applicant could pose a danger to their family or their other tenants. A few of their units are shared by roommates. In the past, their tenants have sometimes had to find new roommates, and the Yims have always offered a background check to make sure the tenants know whether future roommates might have a violent felony or other serious offense in their past. Now, the Yims have to keep their tenants in the dark about whether potential roommates have a checkered past.

Our lawsuit raises two claims: freedom of speech and due process. Landlords have a First Amendment right to ask a question, and Seattle can’t deny one group access to public records while allowing everyone else to peruse them at will. And Seattle deprives landlords of due process by saddling them with a heavy burden to grapple with a problem not of their own making.

Our case began its journey in federal court, but it has now veered off on an unexpected turn toward the Washington Supreme Court. Since we brought a due process claim under the Washington Constitution, the federal court has asked the Washington Supreme Court to weigh in on the state due process issue.

The big question posed to the Washington Supreme Court is this: just how tough should courts be on laws challenged under state due process law? In constitutional law, courts use three levels of “scrutiny,” which basically determine just how high the hurdle is that a challenged law will have to clear. The lowest level of scrutiny is “rational basis,” which is an easy hurdle: if the government had a “rational” reason for doing what it did, then the law survives constitutional challenge. The middle level is “intermediate” scrutiny, a slightly higher hurdle that asks if the law substantially advances its purpose and isn’t too oppressive. Then the toughest level is “strict” scrutiny: the highest hurdle that requires the government must prove that its law serves a compelling interest and is narrowly tailored to achieving that purpose (i.e., it doesn’t restrict rights more than what’s necessary to fulfill its goal).

The Washington Supreme Court will decide which level of scrutiny applies when someone like our clients claim that government has stripped them of a property right without due process of law. In our brief filed this week, we argue that property rights are fundamental, and government must satisfy at least intermediate scrutiny when it places a burden on a fundamental right. After all, the Constitution names property as a right protected by due process. It doesn’t get more fundamental than that.