April 3, 2017

Social justice matters, but not at the expense of property rights

By Ethan W. Blevins Attorney

At the start of the year, Seattle became the first city to forbid landlords from choosing their own tenants. A group of small-time landlords, represented by Pacific Legal Foundation, has sued to challenge this unconstitutional burden on basic property rights.

Under Seattle’s new first-in-time rental policy, landlords must rent their property to the first qualified applicant. They can no longer choose for themselves, on a nondiscriminatory basis, who will live on their property. Landlords can still set general criteria — credit history, no pets, etc. — but otherwise they must simply hand over their property to the first person who meets those broad qualifications.

The purpose of this mandate, according to the city council, is to ensure that landlords don’t “cherry pick which residents they deem ‘worthy.’ ” Seattle also wants to go beyond prohibiting intentional discrimination and eliminate any “unconscious bias.” So the city removes all discretion to make sure a bigoted subconscious doesn’t pull the strings.

The lawsuit challenging the rule argues — among other things — that it violates the prohibition against uncompensated government takings and infringes the due process rights of landlords. The suit should prevail on both theories.

Government cannot take property without compensating the owner. Most think of a government “taking” as a seizure of a house or a public easement to cross your land. But it involves much more. At its core, property is not an object — it is a family of individual rights associated with an object. Property thus includes the rights to sell or lease to whom we choose, to exclude others, and to use the things we own. When government obliterates one of these fundamental attributes of property ownership, it has taken a property right as surely as if it had seized a house.

Here, the city has removed landlords’ ability to choose who they will lease their property to. If the city council wants to take that property right — no matter how noble their purpose — they’ll have to pay for it.

The rule also thwarts due-process rights. Due process forbids government from enacting laws that don’t have a legitimate public purpose, or go beyond what’s necessary to fulfill the government’s purpose, or that are unduly oppressive. Certainly, preventing overt discrimination in housing is a legitimate government purpose. But unconscious bias? The city can’t even prove that the landlords subject to this law suffer from it. And the legitimacy of regulating the human subconscious is shaky at best.

Plus, this law goes far beyond what’s necessary to stop discrimination. It prevents landlords from choosing their tenants even when the pool of qualified applicants contains no members of a protected class. It thus infringes choice even when there’s no danger of bias.

The law also hurts small-time landlords in return for dubious public benefits. For small landlords, renting involves a long-term relationship based on trust and compatibility. For example, one plaintiff in the lawsuit, Kelly Lyles, is a local artist who relies almost exclusively on the rental income from her small property in West Seattle. She can’t afford to lose even a single month’s rent, and, as a single woman, she must take personal safety into account when selecting tenants. The first-in-time policy impairs her ability to protect her primary income and undermines her safety.

The city council has pointed out that landlords can still set general rental criteria. However, broad, generalized criteria like “no smoking” can’t replace careful discretion and judgment. It’s like forcing Amazon to hire the first applicant who has five years of programming experience and a bachelor’s degree in computer science. Genuine choice can’t be reduced to paper.

Published by The Seattle Times

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