Property Rights

Court Rules That Seattle Law Banning Landlords From Screening 'Qualified' Tenants Is a Taking

The state court ruling also concluded the taking violates the state constitution because it is for a forbidden "private use," rather than a public one.

|The Volokh Conspiracy |

Seattle.

Yesterday, a Washington state court struck down a Seattle law that requires landlords to accept all "qualified" tenants on a first-come-first-serve basis. Once the landlord set minimum qualifications that all tenants must meet, he or she is forbidden to discriminate between them on any basis, or to reject the next tenant in line, so long as the unit in question is vacant. Judge Suzanne Parisien ruled that the law violates the Washington state constitution because it takes property without compensation, and also effects a taking for an unconstitutional "private use." The purpose of the law is to combat "implicit bias" by landlords. For reasons I discussed here, it is likely to harm potential tenants more than it benefits them.

The court ruled that "choosing a tenant is fundamental attribute of property ownership," like the right to sell property, and therefore the state cannot take this right away, without having to pay "just compensation," as required by the Takings Clause of the state constitution. Although "landlords are permitted to set their own criteria," the court concluded that the right to set such "preliminary, general rental criteria, does not substitute for the discretion to choose a specific tenant." In effect, landlords are forced to take specific tenants, even if they might not want them, thereby being saddled with an unwanted physical occupation of their land.

In addition, Judge Parisien concluded that the Seattle law violates Article I, Section 16 of the state constitution, which forbids state and local governments from taking property for "private use." In this case, the property right taken is not used for a public project, but instead goes to a private party, the next "qualified" tenant in line.

Both of these issues would likely have come out differently if litigated under current Supreme Court precedent interpreting the Takings Clause of Fifth Amendment to the federal Constitution. The Supreme Court is generally reluctant to rule that a regulation of property qualifies as a taking unless it results in a permanent physical occupation of the condemned property, or wipes out all economically valuable uses of the land. The Fifth Amendment indicates that takings must be for a "public use," which is similar to the Washington Constitution's bar on takings for a "private use." In cases such as Kelo v. City of New London (2005), the Supreme Court has ruled that virtually anything that might create some sort of "public benefit" qualifies as a public use, even if the new owner of the condemned property is a private party, and even if the government fails to prove that the supposed public benefits are actually likely to materialize. I criticized Kelo in my book, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain. The decision is highly controversial and may well eventually be overruled or limited. Bu so far it remains on the books.

Washington, however, is one of many states that have interpreted their state constitutions as providing stronger protection for property rights than the federal Supreme Court's interpretation of the Fifth Amendment. As Judge Parisien notes, Article I, Section 16 "offers greater protection to private property owners than its federal counterpart," and has been interpreted by the Washington Supreme Court as "an absolute prohibition against taking property for private use" (though that still permits takings that transer property to private entities that have a legal duty to serve the entire public, such as public utilities).

Yesterday's decision also ruled in favor of the property owners on two other issues, concluding that the Seattle law violates Due Process Clause of the state constitution, and that its restrictions on landlord advertising violate the right to freedom of speech (also under the state constitution, rather than the federal one). The ruling is likely to be appealed, and the case could eventually end up in the state supreme court.

The Pacific Legal Foundation—the public interest law firm representing the property owners challenging the law, has a page devoted to the case, which has additional information about it.

UPDATE: One important issue that Judge Parisien's opinion does not address is how this case differs from ordinary anti-discrimination laws, such as those that bar landlords from discriminating on the basis of the tenants' race, sex, or religion. The latter are not considered takings, even though they too restrict the landlord's right to choose a tenant. To my mind, the key difference is this: conventional antidiscrimination law does not require landlords to accept any particular tenant. The property owner is free to reject an applicant for any reason not specifically forbidden by law, or indeed for no reason at all. By contrast, the Seattle law requires landlords to take the next "qualified" tenant in line, so long as the property in question is vacant. It thereby restricts property rights far more than conventional antidiscrimination law does. Unlike traditional antidiscrimination law, the Seattle law actually imposes specific unwanted tenants on landowners, and therefore forces them to accept physical occupation of their property by tenants whose presence they reject. Forcing owners to accept unwanted physical occupation by strangers is far more clearly a taking than merely foreclosing a few possible reasons for rejection of tenants, though admittedly a sweeping enough antidiscrimination law could potentially amount to the same thing (e.g.—if it forbade all or nearly all potential reasons for rejecting a tenant). In the extreme case, an ultra-broad antidiscrimination law might have to be struck down on the same basis of the Seattle law in this case. But very few if any conventional antidiscrimination laws go that far, or even come close to it.

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    1. Yep. These west side progtard assholes deserve a good judicial kick in the teeth. Next I want to see Bob Ferguson and Jay Inslee suffer some humiliating juridical defeats too. Even better if Sessions grows a pair amd arrests the pair of the with a nice perp walk replete with handcuffs.

  1. The court ruled that “choosing a tenant is fundamental attribute of property ownership,” like the right to sell property

    Oh, so the judgement is based on gut feelings rather than actual legal analysis?

    [Putting the snark away for a moment to actually read the judgement…]

    Nope, snark still justified. The judge cites a couple of cases that say that selling to a buyer of one’s choice is a fundamental attribute of property ownership and concludes that the same is true for renting. Which may well be the case, but surely doesn’t follow without more.

    1. And your snark is based upon what, exactly? Your deeply held belief that property rights should remain the red-headed stepchildren of Constitutional rights? That property rights, like the right to bear arms to defend oneself, aren’t really “rights” at all, not like the rights to have an abortion or marry someone of the same sex are “real” rights?

    2. It sure as fuck is no one else’s business whoma landlord chooses to rent to

  2. The fact that such laws exist in the United States is frightening.

    1. How is it any more frightening than a law dictating that you have to bake a “wedding” cake for a homosexual marriage?

      1. Who said it was more frightening? [citation needed]

    2. Laboratory of Federalism huh?

      Of course the State of Washington can delegate as much or little political authority to its subdivisions as it choses. And where either the Federal or State Constitution limits that authority, the City must surely abide them.

      All that boilerplate out of the way, is there any reason liberal cities shouldn’t try liberal policies? You don’t have to live there if you don’t like it . . .

      1. Also, spoiler alert: if I was a Seattle voter I would have voted against this policy.

      2. “You don’t have to live there if you don’t like it . . .”

        No, but let’s not gloss over the impacts. My detailed research[1] says Seattle 4plexes go for $1.8M. If you decide to sell yours and buy another in a more congenial location, you’re looking at something like a 2% excise tax and 6% realtors fees, so the Good Idea Fairy’s visit to the city council cost you $144k. There may also be mortgage costs, etc, etc. That’s a lot of dinero for a typical small scale landlord.

        This is not to say Seattle can’t follow it’s heart, but they surely shouldn’t be surprised by the resulting unhappy landlords. In my personal experience as a renter, my landlords were distinctly middle class folks doing small scale rentals as a hassle-ful side gig. After 30 years of it they probably had a nice retirement, but it always looked to me like a tough way to make a living. I was surely never tempted to hop on that gravy train myself.

        I also wonder if it’s a zero sum game. I’m not sure making being a landlord less attractive is a win for tenants. It might in fact be a negative sum game.

        [1]the first Seattle 4plex I found on Zillow

        1. Yes, as a citizen of a democratic country you are subject to laws being changed through representative process (the process itself subject to superior jurisdiction and Constitutional limitations).

          Seems like a good reason to vote wisely . . .

          1. “Seems like a good reason to vote wisely . . .”

            Yup. I often reflect on how different things would be if I hadn’t taken the time to inform myself and vote wisely.

          2. The Seattle electorate vote unwisely on a regular basis. The city is run by moronic Marxist zealots. A bunch of San Zfrancosco wannabes.

  3. How exactly does this take property? Is the city going to grab the rent?

    If a landlord can’t specify ahead of time the qualifications he is looking for then too bad.

    1. The city is not allowing him to use the property as he desires, and not for a legitimate government purpose (like not allowing a person to operate a factory in a residential neighborhood). That means it’s taking it.

    2. bernard11: “If a landlord can’t specify ahead of time the qualifications he is looking for then too bad.”

      I don’t think one can specify all “qualifications” ahead of time — though I might make an exception if one were talking about the mountains of fine print a legal department will crank out concerning an internet company’s terms of service; the same with credit card agreements and several other things, even airline tickets. Legal departments work assiduously to pile in every conceivable thing, and some things that probably aren’t conceivable.

      So take the case of the gal who’s renting out the other half of her duplex. She lists a minimum number of qualifications in her personals ad — have ability to pay, basic criminal background check, no pets, whatever. But the first person to her door, who doesn’t have a criminal record or pets, and who has a job, also looks at her funny, or is obnoxious, or smells strongly of alcohol or dope or lack of a bath and deodorant, or indicates he likes to party a lot, or … a lot of possible things.

      I suppose she could try to put together a comprehensive terms of service document, but she’s a real person, not a legal department. And this gets especially intense because in a lot of places it’s almost impossible to evict a tenant, so you want to be as sure as possible upfront that renting to X isn’t going to come back to bite you multiple times.

      1. Pox,

        Reasonable point. As I’ve said elsewhere, I think the law as written may be too broad. I just don’t buy the “taking” argument, or the argument that it will broadly harm tenants.

        I would not object to an exemption for the kind of case you describe, where only one or two units are involved, so long as it is clear that racial discrimination, etc,. is still not allowed. And of course that is part of the problem. “The guy made me uncomfortable,” can be a reasonable reaction to someone who shows up with alcohol on his breath, or looking like a big slob, but it can also be other things.

        I do have a problem with bigger multi-unit apartment buildings.

        1. In terms of harming tenants, the risk is that landlords will decide that renting at all is too much of a legal hassle and/or too risky and will simply take properties off the market.

          1. Given WA’s housing legislation over the last decade it is becoming increasingly unattractive for lenders to offer mortgage loans on property with any kind of a residential component. Plus the testing requirements recently passed for new wells have created all sorts of problems. More proof that democrats belong in prisons, as opposed to political office, or as regulators.

    3. Some say the difference between fascism and socialism is that socialist governments own the means of production, fascist governments merely control the means of production.

      By that definition, this is a fascist taking, not a socialist one. But it’s still a taking.

    4. I think the city of Seattle wants landlords to be unable to discriminate on the basis of religion, national origin, sexual orientation/preference, blah blah blah, and this law was passed to help achieve that goal. But a landlord may find out that a prospective tenant has repeatedly had trouble complying with house rules regarding noise, and may want to avoid the possibility of needing to go through a time-consuming and costly eviction later when the tenant again has trouble complying with house rules regarding noise. It’s just not practical to require a landlord to prepare a full list of criteria in advance, and it’s too inflexible, because a landlord should have the right to rent to someone “after all” if they believe the prospective tenant has “learned his/her lesson” and won’t repeat their past violation. So, I think the outcome of the decision is correct from a public policy viewpoint, regardless of whether or not it is legally well-reasoned.

    5. Specify everything you require for your next car. Then let me choose it for you. You do not have the option to reject or review my decision before purchase. How many pages will you require?

      P.S. Remember to specify you want tires on your vehicle.

    6. bernard11:

      If a landlord can’t specify ahead of time the qualifications he is looking for then too bad.

      He can specify ahead of time what he is looking for, which is the renter having the best credit record and most secure job among all who apply. But this is not allowed.

      1. Also, he wants to exclude people who seem obnoxious or hard to get along with, since the whole building has to live together as a family. This is also not allowed. Furthermore, is it really possible to list all the true requirements? When the person shows up to view the apartment he or she must not be drunk or appear to be on drugs, insult the manager or other tenants, lie to the manager, have children who appear to be out of control, have left his or her prior apartment because nobody could get along with him, etc.

        1. In fine print, that’s a line or two. They should hire you to do about two pages of that. Problem solved.

          1. The point is that they can’t all be included. There are too many ways that people can be objectionable (that are not protected against discrimination), and the average landlord can’t be expected to be able to include even most of them. But the bottom line is that most people have some drawbacks, even if it is only that one person’s credit rating isn’t as good as that of another, and landlords should be able to choose among the best ones who apply.

          2. In fine print, that’s a line or two. They should hire you to do about two pages of that. Problem solved.

            Furthermore, do you think that “seems hard to get along with” would be an acceptable condition under this law?

          3. Who do you think is going to pay for the legal review? The landlord or the next tenant? Why do you hate poor people?

            1. The Association of Real Estate Rental Agents will pay for it.

  4. Having read the linked previous post may I say it is unsupported glibertarian claptrap?

    1. Yes, you may say that. However, you should be aware that you saying that doesn’t make that true.

      1. I am aware of that, Matthew. But in this case it does happen to be true,

      2. Matthew,

        Just to clarify my point, and perhaps desnark it a bit, let me add this.

        There is a form of argument that libertarians often make that says something like, “Gee, if we look at these graphs, which depict a simple model of some economic situation, we can see that doing X will have effect Y.”

        The statement itself is true, but very limited in it usefulness. First, it is a purely theoretical assertion that makes no effort to determine whether the supposed effect is of any remotely significant size. Second, it is based on a super-simplified picture that disregards lots of complexities and counter-effects, economic and other.

        So taking it as a determinant of what is or is not good policy, without regard for these flaws, is silly.

    2. May I say I’m not surprised that a statist authoritarian like yourself believes that?

      1. What makes the guy a statist authoritarian?

        Does he support government micromanagement of certain medical facilities (let alone criminalization of abortion); intolerance-based, nativist immigration policies (building a wall?); the drug war; torture; second-class citizenship for gays; tariffs and other protectionist measures; race-targeting voter suppression?

        If he supports even a few of those things, I agree he is a deplorable, statist authoritarian.

        1. I’m trying to figure out one thing you list the Democrats are not guilty of.

  5. I like this ruling in that it makes governments internalize the costs of regulations. Should be done more often, to be honest.

    1. Allutz, your comment falls a short step from being insightful. You noted one set of costs which the decision makes government internalize?hindrance to the efficiency of landlords in selecting tenants?and ignored another set of costs which the decision forces government to externalize?burdens on landlord-disfavored tenants, including responsible tenants, who may be frozen out altogether from finding housing in the affected region. You applauded that pick-one-ignore-the-other result. But you said nothing to explain why judicially forcing government to internalize the former set of costs, while simultaneously forcing government to externalize the latter set, is the right choice?let alone to explain why it is a justifiable use of judicial power.

      1. Wouldn’t the optimal solution to be for the government to internalize all of the costs (including the ones imposed on landlord-disfavored tenants?

  6. Forcing owners to accept unwanted physical occupation by strangers is far more clearly a taking than merely foreclosing a few possible reasons for rejection of tenants, . . .

    Huh? “Physical occupation by strangers?” Sounds bad, but isn’t that what leasing property generally means?

    The complaint boiled down: there are objectionable conditions a potential tenant might show to a landlord that the landlord won’t anticipate?plus a tacit (and laughably unreasonable) assumption that no one would ever practice illegal discrimination.

    On the first point, no doubt a rental agency business can solve the problem?a few pages of fine print boilerplate detailing all the reasonable and likely objections any landlord might have. The tenant can sign up not to do those things.

    On the second point, ha, ha, ha. When I was a perforce customer in the Boston-area rental market, I learned that empowering illegal discrimination was a big part of what the rental agency business was about. (The other part?shoveling students into tiny, sub-par apartments at astonishing densities and shocking rents.)

    Fixing problems like that is about regulating business, not about taking property. Skeptics can note that landlords in such cases who don’t like it can sell out for the full value of their property?as determined by comparisons with non-leased comparables. Thus, no taking.

    1. Huh? “Physical occupation by strangers?” Sounds bad, but isn’t that what leasing property generally means?

      I’m trying to figure out if you intentionally or subconciously left out the “unwanted” qualifier.

      1. Intentionally.

    2. If discrimination is already illegal, what giveth with these regulations?

  7. Skeptics can note that landlords in such cases who don’t like it can sell out for the full value of their property?as determined by comparisons with non-leased comparables. Thus, no taking.

    Right – try to sell a property with a bad tenant with an existing lease –

    1. If you don’t like the rule, sell the property before you lease it. No bad tenant. No hit to the property value. Hence, no taking.

      Or lease to a good tenant, and sell the property then, at a premium, because of the existing good lease. No taking there either, and no claim by government that your premium belongs to government?even though the regulation might plausibly have increased the value of a good lease, at least according to your view of the case. Hence, no taking.

      Or lease to a bad tenant, and sell the property during the bad lease, at a discount. You lose hypothetical money, but government did not take your property. You got the right price for that. Hence, no taking.

      Or wait it out to the end of the lease, and maybe no discount. Again, no taking.

      See, business. Your business hazards aren’t government’s responsibility.

      1. And when the government creates a buisiness hazard? Although it would seem you have no issue with forcing people to move elsewhere due to onerous laws put in place by governments. Where have I come across governments doing that before…hmm….

      2. See, business. Your business hazards aren’t government’s responsibility.

        1) your responses indicate that you are not the least bit familiar with rental of property, never owned, operated or managed rental property.

        2) The rule which y seem to support increases the business hazards

        1. 1) your responses indicate that you are not the least bit familiar with rental of property, never owned, operated or managed rental property.

          It’s Lathrop; he’s never familiar with anything he posts confidently about.

          1. Identify my substantive mistakes, the ones none of those allegedly more familiar have included in their responses.

            Let’s start with the question of whether it is a rule of law, federally or in Washington State, that everything government does that increases business hazards, however minimally, constitutes a taking.

            1. Since “business hazards” is your personal term, but undefined, I can’t really answer that. But I suppose nothing that’s de minimis would be a taking, no.

  8. Numerous comments in favor of this law are from people who have obviously never owned a rental property.
    How do you screen out the high maintenance tenants which carry a lot of extra costs, if forced to take the first potential tenant.

    It is well known in economics that rent controls result in much lower supply of housing. This law as noted by Ila has a similar economic impact.

    1. Joe, if you interview a prospective tenant, looking for indications of “high maintenance” propensities, what are you looking for? Do you even know? If you do know, just screen for those in your minimum qualifications. If you don’t know, but insist on discriminating anyway, then maybe you are the guy who makes this a useful regulation.

      1. Stephen – another response from you which indicates you have no experience or first hand knowledge of owning, operating or managing rental property.

        Discrimination based on economic factors and other factors which affect the economics remains legal and legitimate business decision. Discrimination based on race, sex or religion remains illegal.

        Do you hire the first person that meets the minimum qualification level for the job or do you hire the best of the available candidates. Same principle applies.

        1. So what economics-affecting characteristics are you looking for that you can’t put down on paper?

          1. None. But you haven’t answered the main point: which is that if there are N applicants, and one of them is best according to the landlord’s pre-agreed rental criteria (e.g. credit history, job history, solvency), it’s eminently logical for the landlord to select the one with the best such criteria.

            Can you explain why this doesn’t make sense on the landlord’s part?

            1. No. I can’t explain why that doesn’t make sense on the landlard’s part. Of course it does. Can you explain why the landlord’s part is the only piece law and policy ought to consider?

              1. No. I can’t explain why that doesn’t make sense on the landlard’s part. Of course it does. Can you explain why the landlord’s part is the only piece law and policy ought to consider?

                That’s the essence of what private property is.

              2. No one said the landlord’s part was the only piece policy considers. In fact, I support a wide variety of tenant-protective laws, and if you’d like we could have a long discussion on the various details.

                But here you have explicitly acknowledged that it is sensible for a landlord to select the best candidate, not merely the minimally-qualified one. So you are standing behind a law that we all agree prohibits this sensible course of action. I don’t know what else we’d need to say here to establish that this is not a sensible policy.

          2. Stephen Lathrop|3.30.18 @ 7:56PM|#

            “So what economics-affecting characteristics are you looking for that you can’t put down on paper?”

            May I suggest an “introductory to economics” textbook. Most any should suffice to get you up to speed on the basics – even Krugmans’ textbook is good with the basics

            1. Joe, I’ve read Samuelson and Mankiw. Neither of them seemed to back your particular take on economic policy?which I read as an assertion that the only thing that matters is optimizing opportunities for landlords. So I guess they didn’t suffice.

              Let me know if I misinterpreted your advocacy.

              1. Stephen Lathrop|4.1.18 @ 7:15AM|#

                Joe, I’ve read Samuelson and Mankiw. Neither of them seemed to back your particular take on economic policy?which I read as an assertion that the only thing that matters is optimizing opportunities for landlords. So I guess they didn’t suffice.

                Since you didn’t grasp the subject matter the first time, I would suggest that you read it a second time – Hopefully, you might get a better handle on the subject matter.

                1. So you are asserting that Samuelson and Mankiw say that with all social goals taken together, the best policy on real estate regulation is always to optimize opportunities for landlords?

      2. I think it’s reasonable to get ‘N’ applications and to pick the prospective tenant you believe based on those applications has the lower maintenance propensity.

        Your pick may not be perfect based on the limited information granted, but it seems very likely that it will be a better algorithm than ‘pick the tenant based on which one was temporally first’.

        1. Nonzenze – good point –

          it is somewhat analogious to the hiring process, lots of behavioural traits, etc can pop up in the interview process that give hints / indications of problem tenants. The prospective tenants attitude, why they moved from the last couple of residences, etc.

      3. Do you run a business, Stephen? Do you have any employees who report to you at all? If you do, I have a proposal for you. Write up your minimum qualifications for the job. Be as detailed as you like. Then I will find a candidate who meets all those objective qualifications and you have to hire him or her on the spot. No interviews, no judgment calls. You must hire whoever I bring to you. Because you obviously don’t know what you’re screening for in an interview, otherwise you’d have added that to your list of minimum qualifications, right?

        Oh, and by the way, you can’t fire them unless they committed one of 18 specified infractions and you then exactly follow a bureaucratic process that takes an absolute minimum of 90 days and in practice generally takes more like a year.

        Does that sound like a good deal to you?

        1. Rossami
          Well stated –
          S landrop’s type comments are coming from someone who has never run a business or owned, operated or managed rental property.

          1. “S landrop’s type comments are coming from someone who has never run a business”

            That’s not true – in the 1970’s he ran one of those free newspapers:

            Idaho Mountain Express founding

            1. “That’s not true – in the 1970’s he ran one of those free newspapers:

              Idaho Mountain Express founding”

              My bad – a successful business

    2. Require references, get a credit history, require that the tenant be employed.

      On the one hand you seem to be arguing that there is no way to identify a bad tenenat, and on the other that of course you can, by looking them in the eye or something.

      Look, this law may be a little too broad, but let’s not pretend that a lot of these subjective “look them in the eye” factors are going to be unacceptable discrimination.

      1. These days, more like ‘look them in the social media’ factors.
        Given two equally qualified tenants, (from an employment, rental history, criminal check point of view), I would be less likely to rent to the applicant with a bazillion posts of drunken party scenes than the one posting about the progress of their doctoral research.
        As an example.
        Same principle as hiring an employee. You get several qualified candidates from the perspective of education, experience, etc. You have to pick one. Do you just grab the one on the top of the resume pile, or do you think back over the interviews and consider how they presented themselves?

        1. The ideal tenant is the one that is going to stay 3-5+ years (vacancy is the largest single cost – even for good & great tenants, that is when all the deferred maintenance is incurred, painting new carpet etc are incurred). So the landlord is screening for both longevity and for behavioral characteristics that would cause problems.

          There are a lot of class c and class d tenants that will technically meet the so called minimum qualifications, but an experienced landlord normally will be able to pick up many of the behavioural characteristics that the bad tenants display.
          Likewise, I never like to rent to the family that is just moving to town and renting temporarily while the look for a permanent home since those typically are trying to buy once the find out where they want to live.

          1. That is also our practice.

      2. Require references, get a credit history, require that the tenant be employed.

        On the one hand you seem to be arguing that there is no way to identify a bad tenenat, and on the other that of course you can, by looking them in the eye or something.

        Seattle’s mandate is that the landlord ought not to be able to give preference to an applicant with (a) more references, (b) a better credit history or (c) a longer or more responsible employment record.

        That is, you are claiming that here are criteria you can use, but the law plainly doesn’t allow the landlord to maximize them. It’s madness.

        1. I looked at the ordinance, and did not see any prohibition on say, requiring a minimum credit score, or a stable employment record.

          Maybe I missed it. I think this sort of requirement by landlords is quite reasonable,

          1. Nonzenze isn’t suggesting that a landlord can’t set a minimum credit score, for example. He/she is saying that a landlord would reasonably prefer the tenant with the best available attributes. If a landlord sets a minimum credit score of 600, but has the following applications:

            12:00 601
            12:01 750
            12:02 603

            the landlord obviously prefers the second applicant. When you’re hiring people – employees, or plumbers, or whatever – you probably talk to more than one and select the best of the bunch rather than the first who meets whatever your bare bones minimum is. This ordinance requires the landlord to take the first, not the best.

            And, notably, you can accomplish the ordinance’s stated objective while still allowing the landlord to select the best candidate. The landlord could say ‘we will accept applications from Date1 until Date2, at which time we will pick the best of the applications in hand according to the following criteria’.

            We sold a house in a hot market a couple years ago and did exactly that – and picked the best offer from the batch. If landlords have to take the first over the bar, should home sellers? How about when you are hiring a roofer – can you interview several and take the best, or must you take the first that meets your minimums? I know I like to get multiple bids.

            1. This is actually very similar to “excessive interference” analysis in the Federal Sector.

              Management has the right to hire and to assign work to employees. A Union proposal that requires management to set minimum qualifications and then select by, say, seniority, “excessively interferes” with that management right – in that the right to hire / assign work includes the right to select the “best qualified” employee.

              Now, management can utilize its rights to say that, in certain circumstances, minimum qualifications are all that is needed (to include avoidance of disqualifiers) – and negotiate with a Union regarding how to select folks for assignments / jobs when that determination is made.

              The Union can also negotiate procedures for when Management states that it will be assigning based on best qualified (e.g. announce qualifications to be reviewed in advance, in-person interview with names redacted from scoring sheets, etc.).

              But Management cannot be forced to relinquish the right to select the best qualified applicant.

              The logic of this case seems quite similar (parallel) in concept.

          2. I endorse Absaroka’s response in my name 😉

            Honestly, the bulk of my objection to the law is the ‘first in’ requirement rather than allowing the landlord to

            (1) Explicitly set the decision criteria in advance
            (2) Accept multiple applications meeting or exceeding those criteria
            (3) Decide among them in accordance with the pre-committed criteria from (1)

  9. Not what expected. Read the Manufactured Housing Communities case the order relies on. Seems to be a fair interpretation of the case. Very surprised that Washington has a relatively recent case that protective of property rights. The case even predates Kelo and so it wasn’t even a decision issued in backlash to SCOTUS.

  10. One has to wonder if the authors of this legislation gave any thought to how landlords would attempt to avoid the more undesirable results of this rule. Chances are that most savvy landlords would cease advertising their vacancies in the mass media and focus their ads towards specialized publications. On top of that, they’d come up with all kinds of special conditions for tenants to ensure that they don’t have to rent to obvious deadbeats or problem tenants. The net result would be a dramatic narrowing of housing options for marginal tenants.

  11. I suppose Washington can do whatever it wants with it’s constitution, but there are some consequences of a rule of this sort. It’s of course a traditional property right to control who is allowed to enter ones property. So a provision like this can mean one and likely both of two things:

    1. Every law implicating who can enter a business’ premises – every discrimination law for example ? becomes a taking requiring compensation. This will make discrimination, health and safety inspection, and numerous other routine laws extremely expensive.

    2. The courts become selective about what laws they apply these rules to, requiring compensation for laws they don’t like, and not for laws they do. This becomes a back ended way to let judges have more control over the laws.

  12. The private use prong makes no sense. The law here is a discrimination law. It may be a wrongheaded one, but discrimination laws are a public use. If a landlord wants to rent to white tenants only, requirjng the landlord to rent to a black tenant the landlord doesn’t want to rent to is indeed an intrusion on property rights. It’s one the courts have deemed permissible under the Federal constitution. I don’t think saying it’s not permissible under a state constitution is a good policy idea. But it at least makes logical sense.

    But it makes no sense to me to say that a racial discrimination law is solely for the private benefit of the black applicant who was refused rental. Discrimination laws serve a public purpose. The purpose identified by the Atlanta Hotel line of cases was implementing public morality, based on the idea that discrimination is immoral or invidious.

    And this discrimination law, whether or not good policy, doesn’t strike me as fundamentally different.

    Of course, if one believes the state can never legislate morality, or can only do so when you agree with the moral viewpoint, perhaps this result follows.

    1. I specifically disagree with Professor Somin’s analysis. Radical equality is a possible government purpose, whether it’s part of your (or my) ideological agenda or not. If it’s permissible to prohibit discrimination based on race on grounds race is irrelevant to a business purpose, surely it’s permissible to just go ahead and say you can’t discriminate based on ANYTHING irrelevant to the business purpose. Courts frequently say governments usually solve problems piecemeal and don’t have to solve the whole thing at once. But surely if they want to solve the whole problem all at once, they can.

      This may be the ultimate discrimination law. But it’s still a discrimination law, and the rationale still applies. And the existing set of laws taken as a totality takes away a good deal of discretion. One has to look at the whole collection, not look at each discrimination law individually. Otherwise this law could simply be divided into pieces each of which is individually an insufficient intrusion.

    2. Private use puts one in the takings arena.

      One useful test that can be applied when a right is infringed upon is the “excessive interference test.” It arises from Federal Sector Labor Law with respect to whether a proposal infringement upon a statutorily retained management right makes it unlawful and outside the proper scope of negotiations. The “excessive interference” test is a balancing test that compares the degree (i.e. necessity) and propriety of the proposed regulation, with the degree of infringement on the right at issue.

      The issue would be whether a governmental restriction is significant enough to “excessively interfere” with enjoyment of the private property.

      You assert no logical distinction between racial discrimination and any other form of discrimination – at least for the purpose of private usage.

      I disagree – the Constitution – via the 14th amendment – clearly identifies certain types of discrimination as more noxious than others. Prevention of these more noxious forms of discrimination thus becomes more grounded in propriety for government actions – and our national history provides greater evidence of necessity.

      Thus, the regulation, if narrowly tailored to the specific concern (discrimination based on the protected classes identified in the 14th amendment) would not “excessively interfere” with the right to enjoy private property, protected by the 5th amendment, in contrast to broader “anti-discrimination” laws, regulations and actions.

      1. But what does federal sector labor law have to do with the constitutional scope of government?

        From the point of view of a segregationist, racial discrimination laws are major infringements on private property, are definitely substantial, and definitely infringe on management’s essential prerogatives. What distinguishes “major infringement” from “I disagree with it a lot”?

  13. Hallelujah.

    The takings clause seems to me to be one of the most clear Constitutional restrictions on excessive legislative / governmental interference with the use and enjoyment of property that exists.

    Unfortunately, it’s been interpreted down to something all too meaningless.

    But significant restrictions in the use of private property clearly deprives the owner of the use and enjoyment of said property, constituting a taking. And therefore, it should not only require due process, but also, as importantly “just compensation” for that taking.

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