Seattle’s landlord regs at the Supreme Court

Landlords in Seattle must rent to the first person to walk in the door, so long as they check out on paper. This “first-in-time” rule has slogged through several years of litigation over whether the rule violates landlords’ constitutional rights (full disclosure–I represent the plaintiffs). That case, called Yim v. City of Seattle, has now crescendoed with a petition to the United States Supreme Court. The Court should seize the chance to decide two pressing questions about the Constitution’s role in protecting property rights: (1) if regulation destroys a fundamental attribute of property ownership–like the right to exclude, or the right to sell–does the regulation result in a taking that requires compensation? and (2) if a regulation is “unduly oppressive” of individual rights, does it violate due process?

The first-in-time rule is something of a novelty. The rationale behind the rule is to prevent implicit bias; a landlord can’t unconsciously discriminate if she doesn’t have any discretion to decide whom to rent to. Hence, the rule allows landlords to set pre-established criteria, though all criteria must have minimum thresholds (i.e., minimum credit score). The landlord cannot thereafter deviate from that criteria and must simply rent to the first person who qualifies, even if ten or fifteen applicants check all the boxes. After the landlord rents to the first comer, the lucky winner has 48 hours to sit on the offer, after which time the offer moves on to the next person in line.

The bottom line is that landlords can no longer make common-sense judgment calls about who will live on their property. The practical challenges that result are daunting, for small landlords in particular. A landlord cannot, for instance, deny an applicant because they feel threatened or unsafe when an applicant tours a unit. That’s a big deal for plaintiff Kelly Lyles, a single woman and sexual assault survivor. Or for MariLyn Yim, who owns a triplex and lives in one of the units with her husband and kids. They share a yard and common spaces with their tenants–compatibility and safety are key. And some of the Yims’ units have roommates, where the ability to select people that will get along and feel comfortable with each other is essential. But basic discretion is out the window with first-in-time. If Lois Lane advertises the fortress of solitude for rent and Lex Luthor shows up with his spotless credit score and seven-digit income, she’s out of luck.

And renting property often involves a give-and-take negotiation that’s no longer possible under the rule. Tom Riddle’s credit score is shabby, but he offers a two-year lease instead of one to make his application more appealing. Not under first-in-time. Pam Isley offers to do landscaping if the landlord drops rent by $50 a month. Nope. Nor can landlords offer leniency by deviating from their criteria because they want to give a second chance to someone down-and-out.

MariLyn Yim and Kelly Lyles sued on the theory that removing everyday discretion in this manner constitutes an unconstitutional taking and a violation of due process. They won at trial and lost before the Washington Supreme Court. Now, the questions they bring to the Supreme Court’s attention raise some fundamental questions about the Fifth Amendment’s takings clause and the Fourteenth Amendment due process guarantee.

The plaintiffs argue that a taking occurs when regulation destroys a fundamental attribute of property ownership. They invoke a well-known metaphor in property law: the “bundle of sticks.” Property is not really a single right–it’s a bundle of various rights that a person has with respect to a physical thing, such as the right to exclude others, the right to use the property, to occupy it, to sell it, and so on. Plaintiff’s theory is that each of these “sticks” in the bundle is entitled to independent constitutional protection; when one of those sticks is destroyed by regulation, that constitutes a taking of property as surely as a seizure of land. In this case, plaintiffs argue that denying them the right to decide who will occupy their property destroys their right to sell property to the person of their choosing and their right to exclude people not of their choosing.

This is an important and uncertain question under the Fifth Amendment. The Supreme Court has held in the past that a taking occurred where various attributes of property ownership were destroyed. For instance, when the United States required a marina to open a private lagoon to the public, the Supreme Court held a taking occurred because the government had destroyed the right to exclude, “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Likewise, the Supreme Court held that a taking occurred when Congress prohibited owners of tribal lands to pass on the property to their heirs, which was a “total abrogation” of a right that “has been part of the Anglo-American legal system since feudal times.”

The trouble is, though, that some other decisions of the Supreme Court can be read to refute this approach to takings. Hence, the city of Seattle argues that these takings precedents don’t represent the current state of takings law. This question thus presents an important opportunity for the Court to clarify the scope and meaning of the Fifth Amendment.

The second issue is no less compelling: does the oppressive impact of a law bear on whether it satisfies due process? The federal courts tend to answer yes, while a large number of state courts answer no. The Fourteenth Amendment’s due process clause imposes, at minimum, a floor of rationality–a law must be rationally related to a legitimate government interest. The question raised in the Yim petition asks the Court to address whether an unduly oppressive means (obliterating discretion) of achieving a legitimate government purpose (preventing discrimination) satisfies this threshold of rationality. The Supreme Court has repeatedly held that a law’s oppressive nature bears on whether the law is arbitrary or irrational. That is, a government has no legitimate interest in imposing oppressive laws on its people, and the use of oppression to achieve an otherwise legitimate government interest is arbitrary and irrational, in violation of due process.

The Washington Supreme Court, however, held that the U.S. Supreme Court had implicitly overruled this “unduly oppressive” analysis. It also overruled a whopping 61 of its own cases recognizing and applying this “unduly oppressive” test–so many that it provided a separate index of cases fed through the shredder. By joining a growing number of states that refuse to recognize that an unduly oppressive law violates the rational basis test required by due process, the Washington Supreme Court has teed up an important issue that warrants the U.S. Supreme Court’s attention.

These questions will grow in significance as government control of the rental market expands. Since enacting first-in-time, for instance, Seattle has imposed a ban on criminal background checks, a ban on winter evictions, a requirement that landlords rent to a tenant’s choice of roommate, and more. Other cities are enacting similar restrictions on landlord control over their own property. The U.S. Supreme Court should address the pressing constitutional questions that such regulations raise.

Automated law enforcement and rational basis

Does law enforcement need a human touch? The Supreme Court of Iowa says no. The Court recently decided that automated traffic enforcement (ATE) does not violate the Iowa Constitution. The Court, however, did take some time to address an important topic in constitutional jurisprudence: the nature of rational basis review.

Rational basis is a test applied to a variety of constitutional challenges. In the ATE case, the plaintiffs had brought due process and equal protection claims, both of which relied on the rational basis test. Rational basis is the weakest test in the hierarchy of judicial scrutiny. If a law is rationally related to a legitimate government interest, then a court won’t strike it down. As you might expect, plaintiffs very rarely succeed on this flimsy rational basis standard.

And so it was here. The Plaintiffs had argued that the ATE system in Cedar Rapids was not rationally related to an interest in public safety because, among many other things, the system punished a vehicle’s owner for speeding even if the owner was not the driver at the time. The Court had misgivings, but it ultimately deferred to the City and let the law slide.

The Court did, however, give a little boost to rational basis. The Court correctly noted that many state constitutions offer a stronger rational basis test than the federal test. That’s an important reminder to constitutional litigators–sometimes state constitutions may have analogous provisions to the federal constitution, but the protections they offer might be more robust.

The Court also made an important point about evidence in a rational basis claim. In many rational basis cases, plaintiffs don’t even get a chance to present evidence as to whether a law is rationally related to a legitimate government interest. If the government just asserts–without evidence–that a law furthers a legitimate interest like public safety, then the game is over. But the Iowa Supreme Court correctly noted that while a law is entitled to a presumption of constitutionality under rational basis, plaintiffs have a right to present evidence to rebut that presumption. Hence, “the mere incantation of the abracadabra of public safety does not end the analysis.” This evidentiary point is vital for strengthening the constitution’s protections against expansive government power.

Christine Blasey Ford trivializes rape; the Left’s Orwellian doublespeak

I listened to NPR this Sunday morning. (I make myself do it every day or nearly so.) The commentators sounded as if they believe that but for a small sliver of testimony lacking, it would have been definitely proven that Justice Kavanaugh was a rapist at seventeen. There was no hint of recognition that Ms Ford is a proven public liar. (I distinguish carefully between hazy, confused, or artificial memory on the one hand, and lies, which are deliberate conscious constructions, on the other.) Ms Ford lied about being claustrophobic and she lied about her fear of flying.

She should not have been believed at all because a person who tells untruths about yesterday cannot be treated seriously about what she said happened thirty-five years ago. These lies are treated by the media as insignificant inaccuracies and Justice’s Kavanaugh’s six previous FBI investigations as unimportant. We should have been spared the whole undignified circus except for the mendacity, the bad faith of the Dems, beginning with Sen. Feinstein. By the way, Feinstein used to be my model of an honest elected liberal. Finished; I don’t have such a model anymore.

We will soon know if I am wrong. As I have said before, if Ms Ford is telling the truth, she won’t let the outrage of Kavanaugh’s confirmation go unpunished. She will use the million-dollar war chest she was gifted, her notoriety, and her good team of lying attorneys to sue Mr Kavanaugh. I am told there is no statute of limitation for attempted rape where the imaginary event took place. If she does not sue, what are we supposed to think, that the rape wasn’t that bad after all?

I don’t rejoice much in the ultimate victory. Much damage has been done, including a degree of legitimation of the idea that the presumption of innocence is not actually central to civilization. And the rage of the fascist hordes we saw displayed in the Capitol is not going to dissipate. Those people are going away sincerely convinced that not only did a rapist get away with it (as usual!), but that he is going to be the deciding vote on the elimination of women “reproductive rights.” In fact, Roe and Wade is nowhere high on the Republican agenda. In fact, the Supreme Court does not reach out for cases; a relevant case would have to come up. In fact, in the unlikely case Roe and Wade were reversed, the issue would go back to the individual states where it belongs, constitutionally speaking.

It’s hard to tell whether those people are genuine imbeciles, or fooling themselves, or simply lying. Incidentally, note the Orwellian language we have come to accept: “Reproductive Rights” refers to the right to terminate a pregnancy surgically, like my driver’s license gives me the right to not drive! (In case you are wondering, I am for keeping abortion legal by virtue of the ethical principle that we must accept big evils to avoid even bigger evils.)

Of course, predictably, I will be accused of making light of gang rape. No, Ms, YOU are trivializing the violent crime of rape. Even if we took Ms Ford’s words for granted, at 15, after “one beer,” a 17-year old boy groped her through her clothes but fortunately she happened to be wearing a one piece bathing suit! In the meantime, thousands of women suffer real rape in war zones and American feminists keep shamefully silent. The probable idea here is that if you are a woman violently raped by soldiers who are black or brown skinned, it does not really count as rape.

I hope the next partial elections, a month away, turns from a referendum on Mr Trump to one on the Democratic Party’s new fascism.

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