A King County Superior Court judge has struck down a landmark Seattle law that required landlords to rent to the first qualified applicant.
The "first in time" law, passed by the city council in 2016, is meant to fight implicit bias by landlords who may unconsciously discriminate against potential tenants because of factors like race, gender, or disability. It requires landlords to clearly state their rental criteria and then rent to the first applicant who meets those criteria.
Landlords sued over the law last year. In court last month, their attorneys argued they have a constitutional right to choose who they rent their property to. When an attorney for the City of Seattle argued that sort of choice sometimes amounts to exclusion of certain people, Judge Suzanne Parisien was skeptical. "What the plaintiffs want is a right to choose,” the judge said. “They want to be able to have their gut check that we use all the time in the real world."
In her ruling Wednesday, she struck a similar tone. Parisien, who herself owns a rental property, wrote that choosing a tenant is a "fundamental attribute of property ownership."
"The [first in time] rule's few concessions to landlords' interests do not redeem it," Parisien wrote. "While landlords are permitted to set their own rental criteia...this preliminary, general rental criteria does not substitute for the discretion to choose a specific tenant."
Parisien wrote that attempting to stop discrimination is a "legitimate public purpose," but that the law is over-broad and has no limiting principle. "It would expand the police power beyond reasonable bounds," she wrote. Because the law requires that landlords include their rental criteria in their for-rent ads, Parisien ruled it's also an illegal restriction on commercial speech. She called the rules "sweeping advertising restrictions" that restrict landlords' "speech without any individualized suspicion of disparate treatment." The law "forbids valuable speech activities like case-by-case negotiation," Parisien wrote.
Ethan Blevins, an attorney with the Pacific Legal Foundation who represented the landlords, 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 landlord isn’t just a convenience store where customers come and go within minutes," Blevins said by email. "Our clients have long-term relationships with their tenants, and they deserve the chance to decide who those tenants will be."
Seattle is likely to appeal the ruling, though a spokesperson for the City Attorney's Office has not yet responded to a request for comment. Seattle City Council member Lisa Herbold, who sponsored the law, could not immediately be reached. I'll update this post if I hear back.
UPDATE: “The City Attorney's office and I disagree with today's ruling,” Herbold said in a text message. “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.”