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April 2018

Judge overturns Seattle's first-in-time rental law

By NWREporter

Property owners claimed victory while proponents of a Seattle law known as "first in time," a law meant to regulate landlords and fight implicit bias against certain renters, vowed to appeal a judge's ruling siding with landlords. The law had required landlords to rent to the first qualified applicant.

Late last month, King County Superior Court Judge Suzanne Parisien sided with landlords and their right to choose their own tenants. The decision stemmed from an action brought by Pacific Legal Foundation on behalf of several small landlords.

The trial court held that Seattle violated four constitutional guarantees, including property, free speech and due process rights.

In her ruling, King County Superior Court Judge Suzanne Parisien called eliminating implicit bias a "laudable" goal, but struck down the law as "an unreasonable means of pursuing anti-discrimination because of its sweeping overbreadth."

The rule on leasing practices was enacted by the Seattle City Council in 2016; it had required landlords to rent to the first qualified tenant to apply for an opening. The regulation, supported by The Tenants Union of Washington, Washington Community Action Network (CAN) and other tenant advocates, was part of a package of protections dubbed the tenants' bill of rights.

During a hearing in February one of the plaintiffs, Kelly Lyles an artist who rents out a house in West Seattle, said two of her tenants wouldn't have qualified under her usual rules because of poor credit, but she rented to them anyway because she liked them. "It's just shocking to me they're telling us we don't have the right to trust our gut," she stated.

Following last month's ruling by Judge Parisien, landlord Lyles hailed the ruling, saying the law was well-intentioned but caused some landlords to stop advertising or to sell or convert properties into vacation rentals. "Some sanity is being restored after the council's overreach," she remarked.

Landlords filed their lawsuit to overturn the regulation last year, arguing they have a constitutional right to choose their renters. An attorney for the city of Seattle argued such choices sometimes amounts to exclusion of certain people, but Judge Parisien differed.

"What the plaintiffs want is a right to choose. They want to be able to have their gut check that we use all the time in the real world," said the judge, an owner of rental property.

Prior to a hearing she disclosed such ownership, saying, "I believe I can decide this matter fair and impartially but wish to apprise the parties in the event I am asked to recuse myself," she wrote. The city made no such motion.

"I think her status as a landlord helped her understand the underlying issues well, but I don't think it prejudiced her," said Ethan Blevins, an attorney with the Pacific Legal Foundation who represented the landlords. He called the ruling "a victory for property rights, common sense, and our courageous clients, who can once again make basic judgment calls over who will live on their property."

A spokesman for the Rental Housing Association of Washington also lauded the decision. The organization's interim executive director, Sean Martin, said he's "pleased that the court recognized the rights of rental housing owners to decide how to lawfully operate their private property." The ruling "restores the ability for rental housing owners to provide opportunities for under-qualified renters who would otherwise have difficulty with being first in line to apply for a rental unit or meeting higher screening criteria standards," he said in a statement.

Supporters of the law had a different reaction. They argue bias can be hard to prove and say landlords sometimes discriminate unconsciously.

Renters' rights advocates also cited findings from a 2015 sting conducted by the city's Office for Civil Rights (OCR), which submitted applications 97 times focused on three different groups protected by Seattle housing law.

The office reported finding evidence of different treatment due to a disability in 64 percent of their tests. About the same number, 63 percent, revealed differences due to a Section 8 voucher, while 31 percent experienced differences due to a familial status. Similar tests, conducted in 2014, found different treatment based on race, national origin, and sexual orientation around two-thirds of the time for each group.

"We're very disappointed in the ruling and hope there's an appeal," said Merf Ehman, executive director of Columbia Legal Services, which pushed for the City Council to adopt the law in 2016. By allowing landlords to "go with their gut," Wednesday's ruling restores opportunities for discrimination and hurts "people who are low-income, people of color, people with disabilities, people who are gay, lesbian, transgender and bisexual," Ehman said.

Ehman believes the judge failed to understand the impact of discrimination on people and to sufficiently consider "the social science and how our brains work." The former staff attorney in the Institutions Project at Columbia Legal Services (CLS) noted "People don't like to think of themselves as discriminatory, but our gut instincts can be discriminatory. We know good people discriminate even when they don't intend to."

"This was supposed to cut down on what I call cherry picking," said Gina Owens, a renter and advocate with Washington Community Action Network. "When you have the conscience that allows you to turn one person away even though they're qualified … you're telling them, 'I have a preconceived notion of who you are and I don't want you in my building.'?"

Councilmembers Lisa Herbold and Teresa Mosqueda want the city to appeal.

"The City Attorney's office and I disagree with today's ruling," Herbold stated.  "First in time is good policy that helps landlords screen tenants and avoid claims of fair housing violations. If landlords won't screen tenant[s] in a way that intentionally addresses bias, we have no recourse but to increase fair housing law enforcement because the reality is that, intentionally or not, far too many landlords are discriminating in the practices they use to select renters."

A spokesperson for the Seattle City Attorney's Office said, "We disagree with the court's ruling, and we're studying it to determine our next steps."

Deputy City Attorney John Schochet said the city is evaluating an appeal and what to tell landlords and renters to do. Attorney Ethan Blevins, representing the landlords, said he believes the city can no longer enforce the law.