Seattle’s new law requiring landlords to accept the first qualified tenant was struck down in King County Superior Court on Wednesday, a blow to the tenant-friendly City Council and a win for pro-landlord groups who viewed the law as violating property rights and commercial speech protection.
The ruling from Judge Suzanne Parisien was not forgiving to the council’s envelope-pushing legislation; Parisien agreed with the law's challengers on nearly every count and almost certainly sent the case toward an appeal.
The “first-in-time” law was passed in 2016 — an effort led in large part by Seattle City Councilmember Lisa Herbold, who joined the council after many years working on tenant issues for former Councilmember Nick Licata.
As its name implies, the law requires landlords to rent to the first applicant who meets pre-determined standards. It was always going to be a difficult law to enforce as tenants are unlikely to know if they were, in fact, the first applicant. Regardless, its purpose was to strip the landlords of what could be viewed as bias.
Landlord organizations like the Rental Housing Association of Washington have said they encourage landlords to accept the first qualified tenant, but the groups have always opposed the legislation. Landlords, they’ve argued, should be allowed to use their discretion to find a right match.
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The first-in-time law was quickly challenged by the Pacific Legal Foundation, a free speech-evangelizing law firm that has argued cases before the U.S. Supreme Court. The law firm has an office in Bellevue. “We’re very pleased that landlords will again have the discretion to choose their tenants,” said foundation attorney Ethan Blevins.
Blevins said he expects Seattle to appeal.
In a statement, Councilmember Herbold said: “The City Attorney’s Office and I disagree with today’s ruling. First in time is good policy that helps landlords screen tenants and avoid claims of fair housing violations. If landlords won’t screen tenants 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. I’d like the city to challenge this ruling in the appellate court.”
A spokesperson for the City Attorney’s Office said in a statement, “We disagree with the court’s ruling, and we’re studying it to determine our next steps.”
The Pacific Legal Foundation’s lawyers argued in court the new law violated landlords’ due process, property and free-speech rights. “A lot of landlords were really worried about their ability to control their investment,” said Blevins. “A lot of people rely on that rental income. … They’re very careful about who they’re going to be entering into these long-term relationships with.”
Regarding the intent of the legislation to eliminate implicit bias, Blevins said he believed the city had other avenues to eliminate such issues.
Judge Parisien said the purpose of the first-in-time law was “laudable” in that it “attempts to codify industry-recommended best practice.” But that was where her praise ended.
Drawing on past precedent, Parisien said the law violated property rights by stripping landlords of their ability to “freely dispose of property” and to choose their own tenant, a “fundamental attribute of property ownership.”
The judge also concluded the law violated landlords' due process rights by imposing the rule without limitation. “A law that undertakes to abolish or limit the exercise of rights beyond what is necessary to provide for the public welfare cannot be included in the lawful police power of the government,” she wrote.
The law is an “unreasonable means of pursuing anti-discrimination because of its sweeping overbreadth,” she added.
Finally, Parisien concluded the law violated speech rights. “The [first-in-time] rule restricts far more speech than necessary to achieve its purposes in stopping discrimination. It imposes sweeping advertising restrictions on all Seattle landlords, restricting their speech without any individualized suspicion of disparate treatment,” she wrote.
The ruling Wednesday could have implications for another tenant-focused City Council effort. Last week, council members placed a moratorium on rent-bidding websites that auction off available housing. Part of their calculation was examining how those websites interacted with the first-in-time law.