First-in-Time Ruled Unconstitutional
Seattle Appeals Ruling on First-Come, First-Served
by Evan L. Loeffler
As expected, the City has appealed the recent Superior Court ruling determining the First in Time Ordinance is unconstitutional. The City appealed directly to the state Supreme Court instead of letting the court of appeals first review the matter. The Supreme Court may reject this request. In that event the matter would go back to the court of appeals. It could be over a year before this is finally decided.
In the meantime, the City is no longer enforcing the ordinance. However, it is still on the books. It would be a good defense to a notice of violation from the city while the ordinance is under judicial review that the city could not enforce the ordinance so the landlord was under no obligation to follow it. Caution is, nevertheless, recommended. To openly ignore the ordinance may catch the city’s attention and result in more legislation or retaliation by the city when the case is over.
Bottom line: the court said the ordinance is unconstitutional but did not enter a remedy. The city is not enforcing the ordinance, but they can later if they win on appeal. Landlords need not follow the ordinance in Seattle, but run a risk of heightened scrutiny if tenant-selection policies are believed to be unfairly discriminatory against low income or minority renters. While landlords may not have to do everything required by the First in Time ordinance, it is recommended that, at a minimum, landlords do the following:
Confirm that advertising and application packets indicate what the selection criteria are;
Offer an application to EVERYONE;
Always process applications even if the applicant refuses to pay the application fee or is obviously unacceptable;
Keep records of everyone who comes through, shows interest, or applies; and
Make sure all people working on your behalf are familiar with HUD, ADA, state and local housing and tenant selection criteria.
Landlords are ultimately responsible for the conduct or misconduct of people working on their behalf. Landlords should be comfortable that agents and employees showing and managing rental property are aware of the laws and taking every precaution to avoid any violation.
[Landlords claimed the first-come, first-served law violated their property, due-process and free-speech rights, and a King County judge sided with them on each point. (Mike Siegel/The Seattle Times)]
Landlords claimed the first-come, first-served law violated their property, due-process and free-speech rights, and a King County judge sided with them on each point. (Mike Siegel/The Seattle Times)
City Attorney Pete Holmes filed a notice of appeal, skipping over the state Court of Appeals in requesting an immediate review by the state Supreme Court of Seattle's rental rule.
City Attorney Pete Holmes is asking the state Supreme Court to resuscitate Seattle’s first-come, first-served law for renters, which a lower-court judge ruled unconstitutional last month.
Proponents said the law would help ensure equal treatment for all renters. When landlords are allowed to choose among multiple qualified applicants, their conscious and unconscious biases may come into play, leading to discrimination against people of color and people with disabilities, among others, supporters said.
Some landlords sued, claiming the law restricted their ability to choose their tenants and violated their property, due-process and free-speech rights. King County Superior Court Judge Suzanne Parisien sided with them March 28.
Since then, the Seattle Office for Civil Rights has stopped enforcing the law, said Dan Nolte, a spokesman for Holmes.
In her ruling, Parisien called eliminating implicit bias a laudable goal but described choosing a tenant as a fundamental attribute of property ownership and struck down the law as “an unreasonable means of pursuing anti-discrimination.”
Holmes filed a notice of appeal Thursday, skipping over the state Court of Appeals in requesting an immediate review by the state Supreme Court.
Next month, the city attorney will file a “statement of grounds” explaining why he believes the Supreme Court should hear the case, Nolte said, offering no other comment.
Parisien’s ruling was a victory for the landlords who sued, represented by an attorney from the Pacific Legal Foundation. It was also a welcome outcome for critics who said the law was backfiring by encouraging landlords to raise their criteria and by advantaging renters with the time and resources to be first in line.
“Landlords — and everyone else — deserve the dignity of making reasonable choices about how they run their businesses and their personal lives,” the Pacific Legal Foundation attorney, Ethan Blevins, said in a statement Thursday. “They know their circumstances better than a distant bureaucrat, and they often wield their right to choose with goodwill, not irredeemable bigotry.”
For supporters of Seattle’s law, Parisien’s ruling was a blow. They say allowing landlords to “go with their gut” makes discrimination more likely.
Other laws on the books prohibit landlords from choosing renters based on characteristics such as race, gender and sexual orientation. But unconscious bias can be hard to prove, supporters of the first-come, first-served law say.
Seattle’s law allowed landlords to screen applicants on criteria such as credit scores and pets and let them require that applicants attend open houses.
The law exempted landlords renting out rooms in their own homes and cottages in their backyards. It didn’t exempt landlords renting out apartments in duplexes or triplexes where they also lived.
The Rental Housing Association of Washington recommends that its members generally choose the first qualified applicant. But the landlord group has opposed the city’s law as too rigid.
“We are disappointed that the city has chosen to continue to waste taxpayer dollars and public resources on an issue which clearly did not benefit the most vulnerable renters in the city – those who work multiple jobs without the flexibility to respond quickly to vacancy ads and who lack convenient transportation,” the group’s board president, William Shadbolt said in a statement Thursday.
If you need assistance with a tenant dispute, an eviction, a lease or other landlord-tenant situation, please call 206.443.8678 today to speak with one of our experienced attorneys.
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