First In Time Ordinance Struck Down
by Evan L. Loeffler, Attorney
Seattle’s “First in Time” ordinance was determined to violate the Washington Constitution on March 28, 2018. The ordinance, considered the first of its kind in the nation, required landlords to publish their tenant selection criteria and rent property to the first applicant who meets those criteria. Tenant advocates and the City Council believe the ordinance fights implicit bias by landlords who unconsciously discriminate against potential tenants. Landlords argued that property owners have a right to choose with whom they wish to do business. After a hearing on February 23, 2018, the trial court took over a month to draft a 10 page opinion that agreed with the landlords.
The court’s written opinion noted that the City of Seattle acknowledges that the First in Time rule affects a landlord’s ability to exercise discretion when deciding between potential tenants. This, the landlords argue, violates the Washington Constitution in several ways including taking property without compensation, violating owners’ rights to due process, and violating owners’ free speech rights. The court agreed, noting that the right to lease property is similar to the right to sell property; both are “fundamental attributes of property ownership” which the government may not take without just compensation.
The court rejected the City’s argument that there were enough concessions to property owners’ interests by allowing them to choose their own selection criteria. The fact that the ordinance does not allow the landlord to negotiate or bargain with potential tenants is improper. This is also a violation of the “private use” requirement of the state constitution.
The court also engaged in an analysis of whether the ordinance violated owners’ rights to due process and determined it did. While the ordinance was designed to address a legitimate public purpose—eliminating bias in housing—the method the ordinance employed to achieve that purpose eliminates discretion is not reasonably necessary and unduly oppressive to property owners.
It is not clear what the immediate effect is of this ruling is or if subsequent court filings will result in a change in the ruling. Currently there is an order that says the ordinance is unconstitutional. The order does not state the ordinance may no longer be enforced or dismiss the case. Additional motions are expected by both sides. The City has the opportunity to file a motion to reconsider, which is essentially asking the judge to admit the ruling is a mistake. The Landlords may seek an order prohibiting the City from enforcing the ordinance.
It is also possible—and likely—the City will appeal the court’s ruling. An appeal could take a year or longer to resolve. Pending the appeal, the trial court may stay enforcement of the ruling. This would mean that the ordinance would be enforced provisionally despite the fact the court found the ordinance unconstitutional.
The question many Seattle landlords are asking is whether they should continue to follow the First in Time ordinance by publishing rental criteria and offering the rental property to the first qualified applicant. The answer is a qualified “yes” as of this writing. Before changing current practices, it is strongly recommended that landlords wait for guidance from the trial court on whether the First in Time Ordinance may be enforced. If this initial ruling is overturned or reversed, landlords who have not followed the ordinance could be found to be in violation.
A ruling is expected by the end of April.