First In Time Lawsuit Filed by Landlords Receives Its Day in Court - Summary Judgment Hearing
Edited by Sean Flynn | RHAWA Board Past President
On Friday, February 23, Judge Suzanne Parisien heard oral argument in the First In Time case (Yim et al v. Seattle). The ordinance requires rental housing providers to rent to the first person who completes an application for tenancy and who qualifies under the owner's minimum screening criteria. The primary issue comes down to whether or not the city has the authority to regulate a rental provider's ability to choose a tenant based on who they deem the best fit, in compliance with all federal / state / local fair housing and protected class status rules.
Ethan Blevins, an attorney with Pacific Legal Foundation who is representing the rental housing providers, went first. He spoke eloquently and directly to the legal issues with the Seattle ordinance:
- The city’s appropriation of landlords’ right to lease their property to the applicant of their choice — without just compensation — violates the takings clause of the Washington State Constitution.
- The city’s first-in-time rule grants a right of first refusal to the first qualified applicant and constitutes a prohibited private taking.
- The city’s first-in-time rule violates substantive due process because it uses an improper, overbroad, and unduly burdensome means to achieve an illegitimate public purpose.
- The city’s first-in-time rule imposes an unconstitutional condition by requiring that landlords surrender constitutionally protected property and free speech rights as a mandatory condition of renting residential property in Seattle.
Roger Wynne, a seasoned attorney for the City of Seattle on this matter, then spoke on the City arguments:
- The city simply does not agree with the case law on the issue. Namely that Washington State Supreme Court had “got it wrong” in Manufactured Housing Communities v. State when they ruled “that the right to sell or lease property to a person of your choosing is a protected property right”.
- The city also appeared to disagree with the level of protection the Washington State Constitution gives to property rights under a takings analysis. Arguing the test from the US Constitution should be applied rather than the more robust analysis under the Washington State Constitution.
- The city also argued that landlords were able to create subjective criteria in their minimum criteria mandated by the law.
When questioned on RHAWA’s and other associations’ stance that processing applications in chronological order as a best practice, Ethan Blevins noted there is a huge difference between a recommendation and a law requiring you to do so. He used the analogy that often the government recommends that we should exercise, but does not mandate that we do. The judge, in a rather humorous moment, pointed out that Seattle now has a sugar tax. My personal thoughts on that is even with a sugar tax, we still have the right to select which soda we want to drink.
The attorney for the City, when asked about rental criteria, repeated his theory from his motion that “Contrary to their assertions, nothing on the face of the Rule precludes an interview as part of the application.” Given this is the complete opposite of what Seattle’s Office for Civil Rights has instructed rental owners, this was a surprising stance from the city.
The idea that every single possible circumstance could be documented in a set of rental criteria is absurd and impossible to do. As the judge said, “What the landlord wants and what this law appears to do is… they want to be able to have their gut check, we use our guy all the time in the real world… Every day we’re making a million choices based on how somebody makes you feel.”
On the whole, the questions from the bench together with the oral presentations makes me believe there is a good chance the judge finds the law illegal. But we will have to wait and see. The judge stated that she would let the attorneys know next week the approximate date of her ruling.