Fair Chance Housing ordinance draws its first legal challenge

This morning, two landlords and the Rental Housing Association of Washington filed a lawsuit in King County Superior Court challenging the City of Seattle’s “Fair Chance Housing” tenant-protection ordinance that prohibits the use of criminal records in selecting tenants.

The plaintiffs are represented by the Pacific Legal Foundation, a Bellevue-based law firm specializing in litigating conservative causes. PLF recently filed and won a case overturning the city’s “first in time” tenant-protection ordinance. The RHAWA is a membership association of landlords, and also provides a background-check service to its members.

Here’s a refresher on the Fair Chance Housing ordinance, which was passed last August. The issues are complex, as is the law surrounding them.

The lawsuit filed today argues that the ordinance is unconstitutional on two grounds.  First, that the prohibition on inquiring about a prospective tenant’s arrest record, conviction record, or criminal history is a violation of landlords’ free speech rights under the First Amendment of the US Constitution and the parallel language in the Washington State Constitution. The complaint refers to two U.S. Supreme Court decisions to make the point: from Board of Education vs. Pico, “the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.”  And second, from Griswold vs. Connecticut, “the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.” 

The lawsuit also argues that prohibiting landlords from using criminal records in making decisions on whom to rent to is a violation of landlords’ due process rights under the Fourteenth Amendment of the U. S. Constitution and the similar construct in the state Constitution. The stronger part of their argument here is the same one that carried the day in the First in Time lawsuit: that choosing whom to rent to is an inherent right of property ownership, and restricting that right is a government “taking” without due process or compensation, as per the Washington Supreme Court’s ruling in Manufactured Housing vs. State. The weaker part is their reliance on the notion that landlords have a legal responsibility to protect tenants from foreseeable criminal acts of third parties. The complaint quotes the state Supreme Court’s decision in City of Bremerton vs. Widell in suggesting that if a landlord may be held liable for not protecting tenants, “it would seem only reasonable that the landlord should at the same time enjoy the right to exclude persons who may foreseeably cause such injury.” The plaintiffs cite another state Supreme Court case, Griffin vs. West RS Inc. as the source of their claim that landlords do indeed have a duty to protect tenants from third parties; however, in that ruling the court explicitly declines to answer that very question. Also, the City of Bremerton vs. Widell case was about visitors to a rental housing site, not tenants, and the difference in relationship with the landlord may cause a judge to interpret the right to exclude someone differently.

The plaintiffs are asking the court to declare that the Fair Chance Housing ordinance is unconstitutional, and to issue a permanent injunction forbidding the city from enforcing it.  PLF’s Ethan Blevins says that they do not intend to seek a preliminary injunction.


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