Seattle's Anti-Discrimination Rental Law Ruled Unconstitutional

by | March 29, 2018

By Daniel Beekman

Seattle's law requiring landlords to choose among qualified applicants on a first-come, first-served basis violates the state constitution, a judge ruled Wednesday.

Adopted by the City Council in 2016 and in effect since last year, the groundbreaking law "has a laudable goal of eliminating the role of implicit bias in tenancy decisions," King County Superior Court Judge Suzanne Parisien said in a written ruling.

But choosing a tenant "is a fundamental attribute of property ownership," Parisien said in striking down the law.

The decision is a victory for landlords represented by an attorney from the Bellevue office of the Pacific Legal Foundation.

The law allows initial screening of applicants based on standards such as credit scores.

But the plaintiffs claimed forcing landlords to accept the first qualified applicant violated their property, due-process and free-speech rights, and the judge sided with them on each point.

"While landlords are permitted to set their own rental criteria," Parisien said, "this preliminary, general rental criteria does not substitute for the discretion to choose a specific tenant."

Chris Benis, a plaintiff in the case whose family owns a small apartment building in Magnolia, said getting to know prospective tenants is important.

"The idea of the city preventing us from making a judgment call to protect our property and other tenants is just wrong," Benis said.

And MariLyn Yim, another of the property owners who sued, said she resented being lumped in with landlords the council considers "evil and greedy." She called the judge's ruling "a smackdown."

Ethan Blevins, the plaintiffs' attorney, said the ruling means Seattle must immediately stop enforcing the first-come, first-served law.

"We're especially gratified she was willing to uphold the key precedent we relied on," he said, referring to a case related to trailer-park tenants.

Blevins said he expects Seattle to appeal.

"We disagree with the court's ruling, and we're studying it to determine our next steps," Deputy City Attorney John Schochet said.

Councilmember Lisa Herbold championed the first-come, first-served law in 2016, saying her goal was to ensure all renters were treated equally. At the time, officials said they were unaware of any other U.S. city with such a law.

When landlords are allowed to choose among multiple qualified applicants, their biases -- conscious or unconscious -- may come into play, Herbold and other proponents said.

Existing laws already prohibited landlords from choosing renters based on characteristics such as race, gender and sexual orientation. But discrimination by landlords can be hard to prove when they are allowed to exercise discretion.

In 2015 and 2016, sting operations by the city led to allegations against landlords of bias based on race, sexual orientation and other characteristics.

"We know landlords skip people all the time, and often the people they skip are people of color, people with vouchers and families with children," Shanna Smith of the National Fair Housing Alliance said after the law passed.

On Wednesday, Herbold said she wants the city to appeal.

"If landlords won't screen tenants in a way that intentionally addresses bias," Seattle will have no choice but to increase enforcement, she said.

"The reality is that, intentionally or not, far too many landlords are discriminating in the practices they use to select renters."

Seattle's law exempts landlords renting out rooms in their own homes, plus granny flats and backyard cottages. It doesn't exempt landlords renting out apartments in duplexes and triplexes where they also live.

When the law was adopted, some landlords saw no problem, saying they already were operating on a first-come, first-served basis -- for efficiency's sake and to avoid discrimination claims based on the existing fair-housing laws.

Others had said they planned to work around the law, predicting enforcement would be difficult. And critics warned of unintended consequences, saying people with the time and ability to respond quickly to apartment listings would gain an advantage.

Since last year, Benis has been trying to comply. The law is overly complicated and stops landlords from making exceptions to help people, he said.

"When you take discretion away, what we do is raise our criteria," Benis said, mentioning a man with a criminal record he rented to years ago after a conversation.

"The city's only concern is a landlord using discretion to do harm, but the law prevents us from using discretion to do good," the landlord said.

"The idea of unconscious bias has some validity, but I think the answer is education and enforcement of our existing laws."

For now at least, the city's effort to go further than that to address discrimination has been blocked.

(c)2018 The Seattle Times