Washington state Supreme Court upholds Seattle’s first-come, first-served law for renters

The Washington state Supreme Court has upheld Seattle’s first-come, first-served law for renters, believed to be the first of its kind in the country.

In a unanimous written opinion published Thursday, the court rejected claims by landlords who said the groundbreaking law amounted to a regulatory taking of private property and who said it violated their due-process and free-speech rights under the state Constitution.

The court reversed a decision by a King County judge last year to strike down Seattle’s law, which was adopted by the City Council in 2016 and which required landlords to publicize their criteria for prospective renters and accept the first qualified applicant.

Though the first-come, first-served law is “unquestionably an experiment,” and though “there is room for substantial debate about whether such an experiment is likely to succeed,” it’s an experiment allowed under Washington’s constitution, Justice May Yu wrote in the state Supreme Court’s opinion.

Seattle City Attorney Pete Holmes hailed the decision, saying his office’s goal has been to “give our elected policy makers the tools they need to govern a modern American city.”

“This ruling has been years in the making, and we prevailed thanks to smart lawyering and an eye toward addressing antiquated decisions of the past,” Holmes said in a statement.

Proponents have said the first-come, first-served law is meant to help ensure equal treatment for all renters. When landlords are allowed to choose among multiple qualified applicants, their conscious and unconscious biases may come into play, leading to discrimination against people of color and people with disabilities, the supporters have said.

“Our judicial system understands that implicit bias has no place in our rental markets,” said Councilmember Lisa Herbold, who championed the law, noting that testing by the city has in the past turned up evidence of discrimination against rental applicants based on race, national origin, sexual orientation and gender identity.

Some landlords sued after Seattle’s law took effect in 2017, claiming it restricted their ability to choose their tenants and violated their constitutional rights. They also argued the law could inadvertently advantage people with the time and wherewithal to jump on apartment listings quickly.

King County Superior Court Judge Suzanne Parisien sided with the landlords in 2018, describing the ability to pick among qualified rental applicants as “a fundamental attribute of property ownership.”

The Seattle Office for Civil Rights stopped enforcing the law last year when it was struck down, but should now be able to start enforcing it again.

In a separate case related to a Seattle law that mostly prohibits landlords from screening and choosing renters based on criminal records, the Supreme Court has also sided with the city.

That case is in federal court and has not been decided. But in an opinion published Thursday, the Supreme Court agreed with Seattle’s argument about what due-process standard should apply, bolstering the city’s chances.

Thursday’s rulings sweep aside precedents from prior Supreme Court decisions and could have wider consequences, Holmes said.

“These cases restore the appropriate level of deference to our locally elected policy makers,” the city attorney said.

The libertarian-leaning Pacific Legal Foundation, which has a Seattle office and has challenged a number of the city’s laws in recent years, has represented the landlords in both of the cases dealt with Thursday by the Supreme Court.

Brian Hodges, a senior attorney for the foundation, called the rulings “troubling for Washington state property owners whose rights have been under constant assault.”

The rulings are also “a loss for Seattle’s renters,” because many landlords have abandoned the market “in response to the city’s draconian restrictions,” Hodges said.

Because Thursday’s rulings defer to the U.S. Constitution, they may be appealed to the U.S. Supreme Court, and the Foundation intends to seek that review, he said.