Last week, the Washington Supreme Court heard arguments about the constitutionality of two radical Seattle housing laws that handcuff landlords in selecting their tenants. Cities across the country are watching the court as they contemplate similar measures.
The two laws in question, both aimed at limiting property owners’ ability to exercise discretion in choosing tenants, illustrate the Seattle City Council’s mistreatment of landlords, reflecting city officials’ apparent disdain for property rights, personal choice and individual accountability.
This drama began in 2016, when the city council passed a “first-in-time” law requiring landlords lease their rental units to the first person to submit an adequate application. Under the law, landlords have zero flexibility to use their own judgment in selecting a tenant.
A group of landlords, represented by Pacific Legal Foundation (PLF), persuaded a court to strike down the first-in-time rule in 2018. Those landlords’ circumstances drive home the importance of discretion in rental decisions. After all, landlords are making a decision about someone with whom they’ll have an involved business relationship for years to come. Their judgment deserves respect.
In many cases, those relationships can be personal, to the point of familial. For example, Chong and MariLyn Yim live with their children in a triplex and rent out the other two units. They share a yard with their tenants, and some of their tenants have roommates. The Yims need to get to know rental applicants and make a measured decision about who will be a good fit, both for their own family and their other tenants.
Or, consider the case of Kelly Lyles, an artist who rents out a single-family home she inherited. She’s a single woman who wants to be sure of her personal safety when she visits her tenants. Yet the city tells her she has no discretion in selecting her tenants — she doesn’t get to decide about her own sense of safety.
The ostensible rationale behind this harsh rule is to prevent “implicit bias” from infecting landlords’ rental decisions. In essence, the city says it can strip away landlords’ discretion simply because a supposedly faulty mental process might influence that choice. That’s a frightening approach to governance.
The first-in-time idea is even worse when coupled with another Seattle law — a ban on criminal background checks passed in 2017. That law prohibits landlords from inquiring about criminal history, running a criminal background check or relying on criminal history when considering a rental applicant. The severity or age of the offense doesn’t matter. At least under the first-in-time law, a landlord could check to make sure a rental applicant didn’t have a violent past. Not any longer. As with first-in-time, a group of landlords represented by PLF have challenged this ban in court.
And once again, city officials defended the ban as necessary to prevent discrimination, arguing that a disproportionate number of minorities carry criminal histories. But the discriminatory law enforcement that results in that disparity is not the fault of landlords. Landlords do criminal background checks to protect their investments, themselves and their other tenants. They don’t do it to kick someone while they’re down.
In fact, the city’s own evidence suggests landlords willingly consider applicants with a minor offense or mitigating factors that demonstrate rehabilitation — that’s simply part of the discretionary process. If Seattle wants to do something about the disparate impact of criminal records, maybe the city should stop enforcing its laws in a discriminatory way. After all, the city police are still under the shadow of a federal consent decree because of biased policing.
These laws don’t just hurt landlords; do tenants no favors, either. The first-in-time law gives a decided advantage to people who can apply fast, which means applicants with regular internet access, no language barrier, access to a car and flexible work hours. In other words, first-in-time favors people who likely don’t need the help.
Meanwhile, the criminal background rule prevents community self-policing by landlords who feel a moral duty to ensure the safety of their other tenants and neighbors. The ban played a direct role in recent gun violence in Seattle. After a downtown shooting in May, police uncovered a weapons cache in a nearby apartment. The building manager had no inkling of the tenant’s criminal history, thanks to the ban.
Seattle’s landlord laws are nothing more than a heavy-handed attempt to restrict property owners’ rights to rent their homes to the tenants they choose. If a landlord believes an applicant would be a poor fit as a tenant, she has a constitutionally protected right to decline to rent her property to that person. She’s certainly more likely to exercise wise judgment than Seattle’s sanctimonious city officials. We’re hopeful the Washington Supreme Court will come to the same conclusion.
Ethan Blevins is an attorney with Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty. Follow him on Twitter @ethanwb.
This article was originally published by The Hill on June 17, 2019.