Case Document 1-1 Filed 05/21/18 Page 1 of 19 EXHIBIT 1 Case 2:18-cv-00736-JCC Document 1-1 Filed 05/21/18 Page 2 of 19 FILED 18 MAY 01 AM 9:12 1 KING COUNTY SUPERIOR COURT CLERK E-FILED CASE NUMBER: 18-2-11073-4 SEA 2 3 4 5 6 7 8 9 10 SUPERIOR COURT OF WASHINGTON IN AND FOR KING COUNTY CHONG and MARILYN YIM, KELLY LYLES, EILEEN, LLC, and RENTAL HOUSING ASSOCIATION OF WASHINGTON, 11 Plaintiffs, 12 v. 13 THE CITY OF SEATTLE, a Washington Municipal corporation, 14 Case No. ________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Defendant. 15 16 PLAINTIFFS, BY AND THROUGH THEIR ATTORNEYS, make this Complaint against 17 the City of Seattle, seeking a declaration that the City’s “Fair Chance Housing Ordinance,” enacted 18 as Council Bill 119015, violates the Due Process and Free Speech provisions of the Washington 19 State Constitution and the United States Constitution, and also seeking a permanent injunction 20 forbidding the City from enforcing its unconstitutional ordinance. 21 /// 22 23 24 COMPLAINT - 1 of 18 PACIFIC LEGAL FOUNDATION 10940 NE 33rd Place, Suite 210 Bellevue, Washington 98004 (425) 576-0484 Case 2:18-cv-00736-JCC Document 1-1 Filed 05/21/18 Page 3 of 19 1 I. INTRODUCTION 2 1. 3 choose, at a price they choose, subject to reasonable anti-discrimination measures. See 4 Manufactured Housing Communities of Washington v. State, 142 Wn.2d 347, 363-65, 13 P.3d 183 5 (2000); Yim v. City of Seattle (Yim I), Case No. 17-2-05595-6 SEA (King Cty. Sup. Ct. Mar. 28, 6 2018). 7 2. 8 criminal history and check the sex offender registry because landlords must protect their tenants 9 against foreseeable criminal acts of third parties. Griffin v. W. RS, Inc., 97 Wn. App. 557, 570, 984 10 P.2d 1070 (1999), rev’d on other grounds by 143 Wn.2d 81, 13 P.3d 558 (2001); see also Hutchins 11 v. 1001 Fourth Avenue Associates, 116 Wn.2d 217, 224, 802 P.2d 1360 (1991). Landlords can 12 even become criminally liable for certain offenses committed by their tenants. See State v. Sigman, 13 118 Wn.2d 442, 447, 826 P.2d 144 (1992). Thus, the Washington State Supreme Court posited 14 that if a landlord may be held liable for the foreseeable criminal acts of third parties, “[i]t would 15 seem only reasonable that the landlord should at the same time enjoy the right to exclude persons 16 who may foreseeably cause such injury.” City of Bremerton v. Widell, 146 Wn.2d 561, 572, 51 17 P.3d 733 (2002). A tragic example of this issue recently arose in Illinois in which a tenant raped 18 and murdered a neighboring tenant. The victim’s family has sued the landlord for failing to perform 19 a criminal background check. 1 Landowners have a constitutionally protected right to rent their property to whom they In exercising this property right, residential landlords commonly screen an applicant’s 20 21 22 23 24 Cate Cuaguiran, Family of woman murdered in Schaumburg apartment files lawsuit, Eyewitness News (Aug. 2, 2017) (available at http://abc7chicago.com/family-of-woman-murdered-in-schaumburg-apartment-fileslawsuit/2267952/). 1 COMPLAINT - 2 of 18 PACIFIC LEGAL FOUNDATION 10940 NE 33rd Place, Suite 210 Bellevue, Washington 98004 (425) 576-0484 Case 2:18-cv-00736-JCC Document 1-1 Filed 05/21/18 Page 4 of 19 1 3. The City’s new Fair Chance Housing Ordinance prohibits landlords from inquiring after 2 applicants’ criminal backgrounds. The City enacted the Ordinance in order to provide more 3 housing opportunities for individuals with a criminal record and to guard against the possibility 4 that rental decisions based on an applicant’s criminal record may have a disparate impact on those 5 groups that are disproportionately affected by the criminal justice system. 6 4. 7 consider—or even request—an applicant’s criminal history when making a rental decision. It 8 thereby deprives residential landlords of their right and obligation to protect themselves and their 9 tenants from potentially dangerous criminals. The Ordinance declares it an “unfair practice” for a private residential landlord to 10 5. The Fair Chance Housing Ordinance also applies to and impacts organizations that provide 11 professional screening services. The Ordinance’s prohibition on inquiring after the criminal history 12 of housing applicants applies to any “person,” defined by the Ordinance as “one or more 13 individuals, partnerships, organizations, trade or professional associations, corporations, legal 14 representatives, trustees, trustees in bankruptcy, or receivers. It includes any owner, lessee, 15 proprietor, manager, agent, or employee, whether one or more natural persons, and any political 16 or civil subdivision or agency or instrumentality of the City.” SMC 14.09.010. Because of the Fair 17 Chance Housing Ordinance, landlords can no longer request screening services, and the screening 18 companies in turn cannot inquire after criminal history of housing applicants or submit such 19 information to landlords. 20 6. 21 State Constitution and the United States Constitution. The Ordinance violates the Due Process and Free Speech guarantees of the Washington 22 23 24 COMPLAINT - 3 of 18 PACIFIC LEGAL FOUNDATION 10940 NE 33rd Place, Suite 210 Bellevue, Washington 98004 (425) 576-0484 Case 2:18-cv-00736-JCC Document 1-1 Filed 05/21/18 Page 5 of 19 1 II. PARTIES 2 7. 3 and manage small rental properties in Seattle and are subject to Seattle’s Open Housing Ordinance. 4 8. 5 provides screening services for its landlord members. 6 9. 7 chartered by the State of Washington. Chong and MariLyn Yim, Kelly Lyles, and Eileen, LLC, are plaintiff landlords who own The Rental Housing Association, a plaintiff in this action, is a membership association that The City of Seattle is a Washington state municipality located in King County and 8 9 III. 10. JURISDICTION AND VENUE This civil action is a case of actual controversy between Plaintiffs and Defendant arising 10 under the Washington State and Federal Constitutions. 11 11. 12 7.40.010, and Article IV, Sections 1 and 6, of the Washington State Constitution. 13 12. 14 Seattle sits within county limits. 15 IV. This Court has jurisdiction over this matter pursuant to RCW 4.28.020, RCW 7.24.010, Under RCW 4.12.020, venue is proper in King County Superior Court because the City of 16 FACTUAL BACKGROUND Seattle’s Fair Chance Housing Ordinance 17 13. 18 (Council Bill 119015), adding Chapter 14.09 to Seattle’s Municipal Code to regulate private 19 landlords’ use of criminal history checks when reviewing rental applications. Former Mayor Ed 20 Murray signed the bill into law on August 23, 2017. The law went into effect on February 19, 21 2018. On August 14, 2017, the City Council voted to adopt the Fair Chance Housing Ordinance 22 23 24 COMPLAINT - 4 of 18 PACIFIC LEGAL FOUNDATION 10940 NE 33rd Place, Suite 210 Bellevue, Washington 98004 (425) 576-0484 Case 2:18-cv-00736-JCC Document 1-1 Filed 05/21/18 Page 6 of 19 1 14. The City enacted the Fair Chance Housing Ordinance in response to reports indicating that 2 (1) an estimated one in three adults has either an arrest or a criminal record; (2) certain minority 3 groups are more likely to have criminal records; and (3) that upon release from incarceration, 4 individuals with stable housing are more likely to reintegrate into society and are less likely to 5 reoffend. Council Bill 119015 (Recitals). 6 15. 7 convicts by expanding public housing assistance and support services such as drug treatment and 8 counseling. The City, however, did not adopt these recommendations. Nor did the City change any 9 of the policies barring individuals with certain criminal histories from supportive public housing. The reports that the City cited as support for the Ordinance recommended helping former 10 Instead, the City sought only to regulate private rental housing. 11 16. 12 records, conviction records, or other criminal history, or to take an adverse action against a 13 prospective tenant based on criminal history. SMC 14.09.025(A)(2). 14 17. 15 adverse actions based on an applicant’s status on a county, state, or national sex offender registry, 16 if the crime was committed when the applicant was a juvenile. SMC 14.09.025(A)(5). 17 18. 18 as an adult, then a landlord can only take adverse action based on a prospective tenant’s registry 19 status if the landlord can prove to the satisfaction of the Seattle Office for Civil Rights that the 20 decision to screen applicants was based on a “legitimate business reason.” SMC 14.09.025(A)(3). 21 19. 22 demonstrate that 23 24 The Ordinance declares it an “unfair practice” to inquire about a prospective tenant’s arrest The Ordinance also declares it an “unlawful practice” for residential landlords to take any If the prospective tenant’s status on a sex offender registry resulted from a crime committed The Ordinance states that a “legitimate business reason” will exist only if the landlord can COMPLAINT - 5 of 18 PACIFIC LEGAL FOUNDATION 10940 NE 33rd Place, Suite 210 Bellevue, Washington 98004 (425) 576-0484 Case 2:18-cv-00736-JCC Document 1-1 Filed 05/21/18 Page 7 of 19 1 the policy or practice is necessary to achieve a substantial, legitimate, 2 nondiscriminatory interest. To determine such an interest, a landlord must 3 demonstrate, through reliable evidence, a nexus between the policy or practice and 4 resident safety and/or protecting property, in light of the following factors: 5 A. The nature and severity of the conviction; 6 B. The number and types of convictions; 7 C. The time that has elapsed since the date of conviction; 8 D. The age of the individual at the time of conviction; 9 E. Evidence of good tenant history before and/or after the conviction occurred; 10 and 11 F. Any supplemental information related to the individual’s rehabilitation, 12 good conduct, and facts or circumstances surrounding the conviction 13 provided by the individual, if the individual chooses to do so. 14 SMC 14.09.010. 15 20. Landlords must provide written notice of these requirements on all rental applications. 16 21. If a residential landlord takes any adverse action based on a “legitimate business reason,” 17 he or she must provide the applicant with written notice of the action and state the specific records 18 that were the basis for the landlord’s decision. SMC 14.09.025(B). 19 22. 20 safety, safety of other tenants, or revulsion due to convictions for sex offenses, crimes against 21 children, or even hate crimes. The Ordinance does not allow a residential landlord to base a rental decision upon personal 22 23 24 COMPLAINT - 6 of 18 PACIFIC LEGAL FOUNDATION 10940 NE 33rd Place, Suite 210 Bellevue, Washington 98004 (425) 576-0484 Case 2:18-cv-00736-JCC Document 1-1 Filed 05/21/18 Page 8 of 19 1 23. Although the City claims that preventing landlords from considering an applicant’s rental 2 history is necessary to assist individuals reentering society after incarceration, the Ordinance 3 exempts landlords providing “federally assisted housing subject to federal regulations that require 4 denial of tenancy, including but not limited to when any member of the household is subject to a 5 lifetime sex offender registration requirement under a state sex offender registration program 6 and/or convicted of manufacture of production of methamphetamine on the premises of federally 7 assisted housing.” SMC 14.09.115(B). 8 24. 9 screening is deemed a violation of the law and is enforceable by the Seattle Office for Civil Rights, 10 which also acts as a quasi-judicial agency charged with adjudicating any claimed violations of the 11 “Fair Chance Housing Ordinance.” SMC 14.09.035, .040, .060, .070. An aggrieved applicant may 12 also file charges with the Seattle Office for Civil Rights within one year after the adverse action. 13 SMC 14.09.050, .055. 14 25. 15 charge is appealable to the Seattle Human Rights Commission, which has the authority to either 16 affirm the decision or direct the Seattle Office for Civil Rights to investigate the matter further. 17 SMC 14.09.075. 18 26. 19 believe that a violation occurred, the Director is authorized to facilitate a conciliation agreement 20 that may include an offer of tenancy, reimbursement of application fees, payment of actual 21 damages, attorneys’ fees, and payment of civil penalties. SMC 14.09.080. A private landlord’s failure to comply with the restrictions placed on criminal history A final decision of the Seattle Office for Civil Rights denying an aggrieved applicant’s In the event the Seattle Office for Civil Rights determines that reasonable cause exists to 22 23 24 COMPLAINT - 7 of 18 PACIFIC LEGAL FOUNDATION 10940 NE 33rd Place, Suite 210 Bellevue, Washington 98004 (425) 576-0484 Case 2:18-cv-00736-JCC Document 1-1 Filed 05/21/18 Page 9 of 19 1 27. If the Director’s efforts at reaching a conciliation agreement are unsuccessful, the Director 2 will forward the investigatory file to the City Attorney, who will then file a complaint with the 3 City Hearing Examiner on behalf of the Seattle Office for Civil Rights. SMC 14.09.085. At its 4 discretion, the Seattle Human Rights Commission may appoint two Commissioners to hear the 5 case on a panel. SMC 14.09.085. 6 28. 7 or provide for such relief as is deemed necessary to correct the violation, including damages, 8 attorneys’ fees, and equitable relief. SMC 14.09.090. The Hearing Examiner may also impose civil 9 penalties ranging from $11,000 for the first violation to as high as $55,000 for repeat violations. The Hearing Examiner is authorized to order the landlord to take such affirmative action 10 SMC 14.09.100. 11 29. 12 Washington’s Residential Landlord-Tenant Act, Ch. 59.18 RCW, allows landlords to screen 13 potential tenants based on a variety of information, including an applicant’s status on the sex 14 offender registry and criminal history going back seven years, subject to a requirement that the 15 applicant be notified of the check and provided an opportunity to respond to the information. RCW 16 59.18.257; RCW 59.18.030. 17 In enacting the Fair Chance Housing Ordinance, City Councilmembers recognized that Plaintiffs Will Be Irreparably Harmed If the Ordinance Goes Into Effect 18 30. 19 into effect because the City has burdened their constitutionally protected right to choose whom 20 they will house and work with in these often lengthy and interpersonal landlord-tenant 21 relationships. The inability to access valuable information about potential tenants increases various 22 risks faced by plaintiffs when renting their property. 23 24 Each of the plaintiffs will be irreparably injured if the Fair Chance Housing Ordinance goes COMPLAINT - 8 of 18 PACIFIC LEGAL FOUNDATION 10940 NE 33rd Place, Suite 210 Bellevue, Washington 98004 (425) 576-0484 Case 2:18-cv-00736-JCC Document 1-1 Filed 05/21/18 Page 10 of 19 1 31. 2 children live in one of the triplex units. They rent out the other two units. The Yim family could 3 not afford to live in Seattle without the rental income from these properties. The Yims consider 4 prospective tenants on a case-by-case basis, and have rented units to individuals with a criminal 5 history based on the number of convictions, the seriousness of the crimes, and other factors relating 6 to personal and financial risks and the safety of their children and other tenants. 7 32. 8 losses because of a tenancy gone bad. And for a family with three children, selecting a tenant who 9 will also be their close neighbor requires careful discretion. The Yims share a yard with their 10 renters, and the Yim children are occasionally at home alone when their renters are home. The 11 Yims treasure their right to ensure compatibility and safety for themselves and their tenants. 12 33. 13 current tenants. The Yims have long rented their units well below market rate. Because of the Fair 14 Chance Housing Ordinance, they will have to raise rents in order to build up a larger cushion of 15 reserves to absorb the risks they face under the new law. 16 34. 17 considers prospective tenants on a case-by-case basis. For example, Ms. Lyles understands the 18 needs of individuals who are recovering from addiction and would consider an applicant who did 19 not otherwise satisfy her credit screening requirements if the applicant was part of a recovery 20 program. 21 35. 22 Seattle. The $1,300 in rent she receives monthly makes up most of her income. 23 24 Chong and MariLyn Yim own a duplex and a triplex in Seattle. They and their three The Yims value their right to select their tenants. The Yim family cannot afford to absorb The Fair Chance Housing Ordinance has an immediate impact on the Yim family and their Kelly Lyles is a single woman who owns and rents a home in West Seattle. Ms. Lyles Ms. Lyles is a local artist who relies on rental income to afford living and working in COMPLAINT - 9 of 18 PACIFIC LEGAL FOUNDATION 10940 NE 33rd Place, Suite 210 Bellevue, Washington 98004 (425) 576-0484 Case 2:18-cv-00736-JCC Document 1-1 Filed 05/21/18 Page 11 of 19 1 36. Discretion in selecting tenants is vital to Ms. Lyles’s livelihood. She cannot afford to miss 2 even a month’s rent, and she does not have the resources to pursue an unlawful detainer action. As 3 a single woman who interacts frequently with her tenants, she also considers personal safety when 4 choosing them. Such considerations cannot be adequately addressed under the restrictions imposed 5 by the Fair Chance Housing Ordinance. The Ordinance will impact Ms. Lyles’s decisions about 6 her rental criteria because she wants to avoid filling a vacancy with someone that she has not fully 7 vetted. 8 37. 9 seven-unit residential complex in the Greenlake area of Seattle. Mr. Davis also owns and runs a 10 small business, the Davis Sign Company. As a small family venture, the Davises treasure their 11 ability to decide who they will rent their units to. The rental property serves as an important 12 supplement to the Davis family’s income. They review all rental applications on a case-by-case 13 basis and would consider applicants with a criminal history based on the circumstances of the 14 crime(s) and other factors relating to personal and financial risks and the safety of their other 15 tenants. 16 38. 17 established in 1935. RHA provides education and assistance to comply with rental housing laws 18 and regularly advocates for uniformity and fairness in state and local policymaking. Most of 19 RHA’s over 5,300 members rent out single-family homes, often on a temporary basis for work, 20 personal, or financial reasons. Most of RHA’s members own and rent residential properties in 21 Seattle. Scott Davis and his wife own and manage Eileen, LLC, through which they operate a Rental Housing Association of Washington (RHA) is a statewide nonprofit organization 22 23 24 COMPLAINT - 10 of 18 PACIFIC LEGAL FOUNDATION 10940 NE 33rd Place, Suite 210 Bellevue, Washington 98004 (425) 576-0484 Case 2:18-cv-00736-JCC Document 1-1 Filed 05/21/18 Page 12 of 19 1 39. RHA provides professional screening services to its members. Indeed, RHA’s screening 2 service is a primary reason that landlords join RHA. RHA members may request a limited or 3 comprehensive screening of housing applicants. A comprehensive screening includes credit 4 history, eviction history, past residences, and criminal conviction and arrest records within the last 5 seven years. RHA contracts with a third-party vendor, Judicial Information Services, to obtain this 6 criminal background information. If a criminal history shows up on a screening report from 7 Judicial Information Services, RHA staff verifies that the housing applicant is the same individual 8 on the screening report. 9 40. Before offering criminal-background-check services to members, RHA requires landlords 10 to go through a certification process in order to comply with the Federal Fair Credit Reporting Act. 11 41. 12 of any offenses, the disposition of each offense, any fines or confinement periods, the relevant 13 jurisdiction, and the relevant dates. The report may also provide additional information such as 14 probation length and conditions, credit for time served, and probation violations. 15 42. 16 long-standing service to its members. Since the Fair Chance Housing Ordinance came into effect, 17 RHA has seen an increase in requests to run credit checks in lieu of criminal background screening. 18 RHA has also seen members switch to reliance on national screening companies instead of RHA 19 to provide screening services. 20 /// The criminal history component of RHA’s full screening report provides a short description As a direct consequence of the Fair Chance Housing Ordinance, RHA cannot provide a 21 22 23 24 COMPLAINT - 11 of 18 PACIFIC LEGAL FOUNDATION 10940 NE 33rd Place, Suite 210 Bellevue, Washington 98004 (425) 576-0484 Case 2:18-cv-00736-JCC Document 1-1 Filed 05/21/18 Page 13 of 19 1 V. DECLARATORY RELIEF ALLEGATIONS (Ch. 7.24 RCW) 2 43. 3 property to whom they choose, at a price they choose. See Manufactured Housing Communities of 4 Washington, 142 Wn.2d at 363-65; Yim I, Case No. 17-2-05595-6 SEA. 5 44. 6 Amendment to the U.S. Constitution, the City cannot deprive landlords of property without due 7 process of law. By enacting an unduly oppressive rule that is not reasonably necessary to fulfilling 8 a legitimate public purpose, the City has facially violated the plaintiffs’ due process rights. 9 45. Landowners have a well-recognized and constitutionally protected right to rent their Under Article I, Section 3, of the Washington State Constitution and the Fourteenth Under Article I, Section 5, of the Washington State Constitution, and the First Amendment 10 to the U.S. Constitution, the City cannot deprive RHA or landlords of the right to access and share 11 truthful information regarding housing applicants without satisfying heightened scrutiny. 12 46. 13 Ordinance to restrict landlords from screening rental applicants’ criminal histories will serve a 14 useful purpose in clarifying and settling the legal relations between plaintiffs and the City. A 15 declaratory relief judgment will also afford relief from the uncertainty and insecurity giving rise 16 to this controversy. 17 A declaratory relief judgment as to whether the City may enforce the Fair Chance Housing VI. PERMANENT INJUNCTIVE RELIEF ALLEGATIONS (Ch. 7.40 RCW) 18 47. 19 City’s unlawful deprivation of their right to lease their property to the eligible candidate of their 20 choosing, nor do landlords or RHA have an adequate remedy at law regarding the speech 21 restriction imposed by the Fair Chance Housing Ordinance. The Yims and the other landlord-plaintiffs have no adequate remedy at law to address the 22 23 24 COMPLAINT - 12 of 18 PACIFIC LEGAL FOUNDATION 10940 NE 33rd Place, Suite 210 Bellevue, Washington 98004 (425) 576-0484 Case 2:18-cv-00736-JCC Document 1-1 Filed 05/21/18 Page 14 of 19 1 48. The Yims and RHA will suffer irreparable injury absent an injunction restraining the City 2 from enforcing this unconstitutional ordinance. 3 VII. CAUSES OF ACTION 4 COUNT I 5 The Fair Chance Housing Ordinance violates the Free Speech guarantees of the state and federal Constitutions because it bars access to truthful information based on speech content, speaker identity and the speaker’s purpose 6 7 49. The plaintiffs reallege the preceding paragraphs as though fully set out here. 8 50. The Washington and Federal Constitutions safeguard speech rights. U.S. Const. Amend. I, 9 Wash. Const. Art. I, § 5. This includes the right to access truthful information as “a necessary 10 predicate to the recipient’s meaningful exercise of his own right of speech.” Board of Educ., Island 11 Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 867, 102 S. Ct. 2799, 73 L. Ed. 2d 12 435 (1982). 13 51. 14 prohibiting individuals and organizations from accessing and sharing truthful information about 15 housing applicants. This prohibition targets speech based on content, speaker identity, and 16 purpose. The Ordinance forbids anyone from inquiring after criminal background for the purpose 17 of vetting housing applicants, but it does not forbid such inquiries for other purposes. This burden 18 on RHA’s and landlords’ speech rights must satisfy heightened judicial scrutiny. 19 /// The Fair Chance Housing Ordinance violates speech rights on its face and as applied by 20 21 22 23 24 COMPLAINT - 13 of 18 PACIFIC LEGAL FOUNDATION 10940 NE 33rd Place, Suite 210 Bellevue, Washington 98004 (425) 576-0484 Case 2:18-cv-00736-JCC Document 1-1 Filed 05/21/18 Page 15 of 19 1 COUNT II 2 The Fair Chance Housing Ordinance violates substantive due process because it uses an unreasonable, overbroad, and unduly burdensome means to achieve its purpose 3 4 52. The plaintiffs reallege the preceding paragraphs as though fully set out here. 5 53. Article I, Section 3, of the state constitution states: “No person shall be deprived of life, 6 liberty, or property, without due process of law.” The guarantee of due process requires that all 7 government actions that restrict individual’s liberty or property rights must sufficiently relate to a 8 legitimate end of government; otherwise, the action is void. Presbytery of Seattle v. King County, 9 114 Wn.2d 320, 330-31, 787 P.2d 907 (1990). 10 54. 11 any person of life, liberty, or property, without due process of law; nor deny to any person within 12 its jurisdiction the equal protection of the laws.” 13 55. 14 reintegrating into society after release from incarceration. That is a laudable goal. But the City’s 15 chosen means to achieve that goal are unnecessary, unreasonable, and impose an undue burden on 16 private landlords’ right to select their tenants. 17 56. 18 variety of factors that are only discoverable through screening, including the type and seriousness 19 of crime committed, the number of convictions, the age of the individual when the crime was 20 committed, and the number of years that passed without criminal activity. See The Importance of 21 Housing for Formerly Incarcerated Individuals, 40(2) Housing Law Bulletin 60 (2010) (reporting 22 that 79% of California’s parolees either return to prison or abscond); Megan Kurlychek, Robert 23 24 The Fourteenth Amendment to the U.S. Constitution states: “nor shall any state deprive The City enacted the Fair Chance Housing Ordinance to try to assist individuals in The studies collected in the City clerk’s file report that recidivism rates vary based on a COMPLAINT - 14 of 18 PACIFIC LEGAL FOUNDATION 10940 NE 33rd Place, Suite 210 Bellevue, Washington 98004 (425) 576-0484 Case 2:18-cv-00736-JCC Document 1-1 Filed 05/21/18 Page 16 of 19 1 Brame & Shawn Bushway, Scarlet Letters and Recidivism: Does an Old Criminal Record Predict 2 Future Offending?, 5(3) Criminology & Public Policy 483, 486-90, 500 (2006) (discussing factors 3 that affect recidivism rates). Indeed, the City’s studies conclude that there is a high risk of future 4 offenses during the first three years after release from custody, when nearly two-thirds of recently 5 incarcerated individuals reoffend. See Kurlychek, et al., at 485. Thus, based on data showing that 6 after seven years the overall risk of recidivism returns to a level similar to that of a person who has 7 never been incarcerated, the study reported that case-by-case consideration of criminal convictions 8 for up to seven years may be warranted. Id. at 499. 9 57. The Fair Chance Housing Ordinance, however, makes this type of meaningful, case-by- 10 case screening unlawful, declaring it a per se “unfair practice” to inquire about any criminal 11 convictions. 12 58. 13 example, the recitals incorrectly state that screening is discretionary; private landlords are under 14 no legal obligation to conduct a criminal background check on prospective tenants. Landlords, 15 however, have a legally recognized duty to protect tenants from harm by third parties, including 16 from other tenants. See, e.g., Griffin, 97 Wn. App. at 570 (Landlords may be held liable for the 17 foreseeable criminal activities of third parties.); Sigman, 118 Wn.2d at 447 (Landlords may be held 18 criminally liable for certain crimes committed by tenants.). Indeed, one of the key studies relied 19 on by the City argues that tort reform relieving landlords of liability for criminal acts of tenants 20 must occur before landlords can be asked to stop considering applicants’ criminal records. See 21 Merf Ehman and Anna Reosti, Tenant Screening in an Era of Mass Incarceration: A Criminal 22 Record is No Crystal Ball, NYU J. of Leg. & Pub. Pol’y Quorum (Mar. 2015). 23 24 The Ordinance’s recitals make several statements that are unsupported by fact or law. For COMPLAINT - 15 of 18 PACIFIC LEGAL FOUNDATION 10940 NE 33rd Place, Suite 210 Bellevue, Washington 98004 (425) 576-0484 Case 2:18-cv-00736-JCC Document 1-1 Filed 05/21/18 Page 17 of 19 1 59. 2 commenting on the problems faced by individuals after release from incarceration, making it 3 appear that access to the private housing market is necessary for successful reintegration into 4 society. To the contrary, the studies conclude that assisted public housing is the only viable option 5 for many recently incarcerated individuals—particularly in Seattle where private rental properties 6 are very expensive. See The Importance of Housing for Formerly Incarcerated Individuals, 40(2) 7 Housing Law Bulletin 60 (2010). 8 60. 9 “there is no sociological research establishing a relationship between a criminal record and an 10 unsuccessful tenancy.” The study cited reported on the success of supportive public housing 11 (providing at-risk individuals with health and social services as well as housing subsidies) in 12 reintegrating chronically homeless individuals with a history of incarceration into society. See 13 Ehman and Reosti, supra at 17. The study repeatedly warned that “findings from supportive 14 housing programs may not be completely generalizable to other housing contexts on account of 15 the unique resources and social services made available to residents.” Id. at 17 n.116, 19 n.131 16 (“Because the study presented here involved individuals with specific characteristics (lengthy 17 homelessness and behavioral health disorders) who received a particular intervention (supportive 18 housing), generalizing the results of our study to other situations may not be valid.”) (citation 19 omitted). The study concluded only that chronically homeless adults with incarceration histories 20 may benefit as much from supportive housing programs as chronically homeless adults with no 21 criminal histories. Id. at 18. The study argues that public housing providers (like the City of Seattle 22 itself) should reconsider their “one strike” policy of excluding persons with criminal histories from 23 24 The recitals also grossly generalize the conclusions contained in a handful of studies The recitals also omit key facts and conclusions reached by the studies when asserting that COMPLAINT - 16 of 18 PACIFIC LEGAL FOUNDATION 10940 NE 33rd Place, Suite 210 Bellevue, Washington 98004 (425) 576-0484 Case 2:18-cv-00736-JCC Document 1-1 Filed 05/21/18 Page 18 of 19 1 applying for public housing. Id. The Ordinance, however, excludes public housing providers from 2 restrictions on criminal history screening. 3 61. 4 reintegrating into society after release from incarceration. For example, one study the City cites 5 relied on Oregon’s fair housing law (Oregon S.B. 91 (2013)) as an “optimal” example of a law 6 that would remove discriminatory barriers to private housing while protecting against high-risk 7 tenants. Rebecca Vallas, et al., Removing Barriers to Opportunity for Parents with Criminal 8 Records and Their Children: A Two-Generation Approach at 19 (Center for American Progress 9 2015). Unlike Seattle’s Fair Chance Housing Ordinance, the Oregon law only prohibits 10 consideration of arrests or charges that did not result in a conviction. Oregon S.B. 91, Sec. 3(2). 11 The law expressly authorizes a landlord to consider criminal convictions for a drug-related crime, 12 a violent crime, a sex offense, a crime involving financial fraud, theft or forgery, or any other crime 13 that would adversely affect the “property of the landlord or tenant” or the “health, safety or right 14 to peaceful enjoyment of the premises of the residents, the landlord or the landlord’s agent.” Id. at 15 Sec.3(3). 16 62. There are less oppressive ways for the City to advance its interest in assisting individuals The “Fair Chance Housing Ordinance” violates the guarantee of due process on its face. 17 18 VIII. PRAYER FOR RELIEF Plaintiffs pray for the following relief: 19 1. A declaration that Chapter 14.09 of the Seattle Municipal Code (the Fair Chance 20 Housing Ordinance) facially violates the Free Speech and Due Process guarantees of the 21 Washington State Constitution and the United States Constitution; 22 23 24 COMPLAINT - 17 of 18 PACIFIC LEGAL FOUNDATION 10940 NE 33rd Place, Suite 210 Bellevue, Washington 98004 (425) 576-0484 Case 2:18-cv-00736-JCC Document 1-1 Filed 05/21/18 Page 19 of 19 1 2 3 4 5 2. A permanent injunction forbidding the City from enforcing the Fair Chance Housing Ordinance and its implementing regulation; 3. An award of reasonable attorney’s fees, expenses, and costs as allowed by law and equity, including RCW 4.84.010 and RCW 7.24.100; and 4. Such other relief as the Court deems just and proper. 6 7 PACIFIC LEGAL FOUNDATION 11 By: s/ Ethan W. Blevins Ethan W. Blevins, WSBA No. 48219 Brian T. Hodges, WSBA No. 31976 10940 NE 33rd Place, Suite 210 Bellevue Washington 98004 Telephone: (425) 576-0484 Email: EBlevins@pacificlegal.org BHodges@pacificlegal.org 12 Attorneys for Plaintiffs 8 Date: May 1, 2018. 9 10 13 14 15 16 17 18 19 20 21 22 23 24 COMPLAINT - 18 of 18 PACIFIC LEGAL FOUNDATION 10940 NE 33rd Place, Suite 210 Bellevue, Washington 98004 (425) 576-0484