Case 2:18-cv-00736-JCC Document 70 Filed 05/01/20 Page 1 of 15

Honorable Judge John C. Coughenour

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IN THE UNITED STATES DISTRICT COURT

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FOR THE WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

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CHONG and MARILYN YIM, KELLY
LYLES, EILEEN, LLC, and RENTAL
HOUSING ASSOCIATION OF
WASHINGTON,

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Plaintiffs,

v.

THE CITY OF SEATTLE, a Washington
Municipal corporation,

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Defendant.

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) Civil Action No. 2:18-cv-00736-JCC
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RESPONSE AND REPLY IN
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SUPPORT OF SUPPLEMENTAL
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BRIEF ON PLAINTIFFS’ DUE
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PROCESS CLAIMS
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION .......................................................................................................................... 1
ARGUMENT .................................................................................................................................. 2
I.

Due Process Requires a Means-Ends Fit.......................................................................... 2

II.

Rational Basis Review Looks to Whether a Law Actually Furthers a
Legitimate Interest ........................................................................................................... 4

III.
A.

The Fair Chance Housing Ordinance Cannot Satisfy Rational Basis .............................. 6
The Ordinance’s Identical Treatment of Different Offenses Is Irrational .................... 7

Response and Reply iso Supp. Brief on
P.s’ Due Process Claims - i
2:18-cv-00736-JCC

Pacific Legal Foundation
255 South King St., Suite 800
Seattle, Washington 98104
(425) 576-0484

 Case 2:18-cv-00736-JCC Document 70 Filed 05/01/20 Page 2 of 15

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B.

The Exemption for Federally Assisted Housing Is Irrational and Arbitrary ................ 8

CONCLUSION ............................................................................................................................. 10
CERTIFICATE OF SERVICE ..................................................................................................... 12

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TABLE OF AUTHORITIES

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Page(s)

Cases
Ballard v. Hunter, 204 U.S. 241 (1907) ..........................................................................................4
Bettendorf v. St. Croix Cty., 631 F.3d 421 (7th Cir. 2011) ..............................................................3
Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194 (1934) ......................................................4
City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432 (1985) ..............................4, 5, 6
Eisenstadt v. Baird, 405 U.S. 438 (1972) ........................................................................................6
FCC v. Beach Communications, 508 U.S. 307 (1993) ................................................................5, 6
Ferguson v. Skrupa, 372 U.S. 726 (1963) .......................................................................................4
Gladden v. Richbourg, 759 F.3d 960 (8th Cir. 2014) ......................................................................3
Goldblatt v. Town of Hempstead, N.Y., 369 U.S. 590 (1962) ..................................................1, 3, 7
Greene v. United States, 440 F.3d 1304 (Fed. Cir. 2006)................................................................3
Guertin v. State, 912 F.3d 907 (6th Cir. 2019) ................................................................................3
Haynes v. State of Wash., 373 U.S. 503 (1963) ...............................................................................7
Heller v. Doe, 509 U.S. 312 (1993) .......................................................................................4, 5, 10
Holland v. Rosen, 895 F.3d 272 (3d Cir. 2018) ...............................................................................3
Kelo v. City of New London, 545 U.S. 469 (2005) ..........................................................................5
Lawrence v. Texas, 539 U.S. 558 (2003) .........................................................................................5
Lawton v. Steele, 152 U.S. 133 (1894) ........................................................................................1, 3
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005)....................................................................2, 3
Mathews v. Lucas, 427 U.S. 495 (1976) ......................................................................................1, 6
Nebbia v. New York, 291 U.S. 502 (1934) ...........................................................................1, 3, 4, 6
Nectow v. Cambridge, 277 U.S. 183 (1928) ............................................................................1, 3, 5
Nestle Waters N. Am., Inc. v. City of New York,
689 F. App’x 87 (2d Cir. 2017) .................................................................................................3
Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) ..........................................................2
Pension Benefit Guaranty Corporation v. R.A. Gray & Co.,
467 U.S. 717 (1984) ...................................................................................................................7
Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244 (5th Cir. 2003) .................................................3
Romer v. Evans, 517 U.S. 620 (1996)......................................................................................5, 6, 9
Sherwood v. Oklahoma Cty., 42 F. App’x 353 (10th Cir. 2002) .....................................................3
St. Joseph Abbey v. Castille, 712 F.3d 215 (5th Cir. 2013) .............................................................6
Response and Reply iso Supp. Brief on
P.s’ Due Process Claims - ii
2:18-cv-00736-JCC

Pacific Legal Foundation
255 South King St., Suite 800
Seattle, Washington 98104
(425) 576-0484

 Case 2:18-cv-00736-JCC Document 70 Filed 05/01/20 Page 3 of 15

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State v. Moore, 7 Wash. 173 (1893) ............................................................................................1, 3
Susan Virginia Parker v. Henry & William Evans Home for Children, Inc.,
762 F. App’x 147 (4th Cir. 2019) ..............................................................................................3
Terrace v. Thompson, 263 U.S. 197 (1923).....................................................................................1
Torromeo v. Town of Fremont, NH, 438 F.3d 113 (1st Cir. 2006) ..................................................3
U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) .....................................................................6
United States v. Carlton, 512 U.S. 26 (1994) ..............................................................................1, 7
United States v. Carolene Products, 304 U.S. 153 (1938) ..............................................................6
United States v. Weiland, 420 F.3d 1062 (9th Cir. 2005) ................................................................3
Vandevere v. Lloyd, 644 F.3d 957 (9th Cir. 2011) ..........................................................................3
Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) .................................................1, 2, 3
Village of Willowbrook v. Olech, 528 U.S. 562 (2000) ...................................................................5
Waldman v. Conway, 871 F.3d 1283 (11th Cir. 2017) ....................................................................3
Washington Teachers’ Union Local No. 6, Am. Fed’n of Teachers, AFL-CIO v.
Bd. of Educ. of the D.C., 109 F.3d 774 (D.C. Cir. 1997)...........................................................3
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)..............................................................................6
Statutes
24 C.F.R. § 982.2 ...........................................................................................................................10
24 C.F.R. § 982.553(a)(2)(i) ..........................................................................................................10
24 C.F.R. § 983.2 ...........................................................................................................................10
Seattle Ordinance 125393 ............................................................................................................1, 9
SMC 14.09 .....................................................................................................................................10
SMC 14.09.115 ..............................................................................................................................10
Other Authorities
National Coalition for the Homeless, Federal Housing Assistance Programs
(2007), http://www.nationalhomeless.org/publications/facts/Federal.pdf ...............................10
Sandefur, Timothy, Rational Basis and the 12(b)(6) Motion: An Unnecessary
“Perplexity”, 25 Geo. Mason U. Civ. Rts. L.J. 43 (2014) ........................................................6
Seattle Housing Authority, Annual Report 1 (2018),
https://www.seattlehousing.org/sites/default/files/2018_Annual_Report.pdf .........................10

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Response and Reply iso Supp. Brief on
P.s’ Due Process Claims - iii
2:18-cv-00736-JCC

Pacific Legal Foundation
255 South King St., Suite 800
Seattle, Washington 98104
(425) 576-0484

 Case 2:18-cv-00736-JCC Document 70 Filed 05/01/20 Page 4 of 15

INTRODUCTION

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The City of Seattle (City) argues the background check ban satisfies due process if the ban

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is intended to advance a legitimate goal, without regard to whether the restriction actually advances

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the stated goal and without regard to its unduly oppressive impact. The City’s standard is contrary

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to binding precedent, which requires that “the means selected shall have a real and substantial

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relation to the objective sought to be attained.” Nebbia v. New York, 291 U.S. 502, 525 (1934).

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Plaintiffs are entitled to a searching level of scrutiny under the “substantial relation” test

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set out by Nectow v. Cambridge, 277 U.S. 183, 187–88 (1928), and Village of Euclid v. Ambler

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Realty Co., 272 U.S. 365, 395 (1926). But even if this Court opted to apply rational basis review,

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that test remains a meaningful limit on government power. See Mathews v. Lucas, 427 U.S. 495,

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510 (1976) (Rational basis is not “toothless”). A law fails rational basis if evidence demonstrates

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that the law lacks a sufficient means-ends fit and is, therefore, not rationally related to the

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government’s stated interest. Moreover, whether the Court applies rational basis or substantial

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relation, a law’s oppressiveness is relevant. Goldblatt v. Town of Hempstead, N.Y., 369 U.S. 590,

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594 (1962); Lawton v. Steele, 152 U.S. 133, 137 (1894); see also United States v. Carlton, 512

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U.S. 26, 30 (1994) (The “harsh and oppressive” formulation “does not differ from the prohibition

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against arbitrary and irrational legislation”). The City’s ordinance fails under either standard. The

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ordinance bars landlords from asking about or relying on criminal history in making a long-lasting

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decision about who will occupy their property—a right protected by the Fourteenth Amendment. 1

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The City claims to have enacted the law to assist ex-convicts with reentry and combat the

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disparate impact that the criminal justice system imposes on certain racial groups. See City of

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Seattle Ordinance 125393. The ordinance, however, does not rationally relate to its stated

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objectives in at least two respects. First, it treats all criminal history identically, with an arbitrary

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exception for any offense that places an adult offender on a sex offender registry. The irrational

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result is that a landlord can deny tenancy to someone with a decades-old sex offense, but not for

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Terrace v. Thompson, 263 U.S. 197, 215 (1923) (The right to “dispose of [property] for lawful
purposes” is recognized as an “essential attribute[] of property” and protected by the Fourteenth
Amendment).

Response and Reply iso Supp. Brief on
P.s’ Due Process Claims - 1
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Pacific Legal Foundation
255 South King St., Suite 800
Seattle, Washington 98104
(425) 576-0484

 Case 2:18-cv-00736-JCC Document 70 Filed 05/01/20 Page 5 of 15

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someone with multiple convictions for arson, assault, or even murder. Second, the ordinance

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exempts the most important category of housing for ex-offenders: assisted housing programs. The

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City has never disputed the record evidence that access to assisted housing is more important for

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reintegration than private housing, nor has it argued that its concern regarding the disparate impact

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of criminal records does not apply to federally assisted housing. Plaintiffs therefore ask that this

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Court grant their motion for summary judgment and deny the City’s cross-motion.
ARGUMENT

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This litigation raises two overarching questions regarding substantive due process: first,

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does heightened scrutiny apply to property deprivations? And second, if rational basis is the correct

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standard, what does that standard demand? The parties have extensively briefed the first question,

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but the second deserves more attention. Rational basis demands more than the City recognizes. It

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requires an objectively reasonable means-ends fit when the government deprives a person of

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property, not simply a hypothetical link to a conceivable government purpose, as the City argues.

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Reasonableness includes regard for whether the impact of the regulation is unduly oppressive.

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I.

Due Process Requires a Means-Ends Fit

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The City asks this Court to ignore numerous Supreme Court opinions requiring “a means-

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ends test” aimed at determining “whether a regulation of private property is effective in achieving

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some legitimate public purpose.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 542 (2005); see

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also Nollan v. California Coastal Comm’n, 483 U.S. 825, 834 n.3 (1987) (“We have required that

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the regulation substantially advance the legitimate state interest sought to be achieved, not that the

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State could rationally have decided that the measure adopted might have achieved the State’s

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objective.”); see also Moore v. East Cleveland, 431 U.S. 494, 498 n.6 (1977) (“[O]ur cases have

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not departed from the requirement that the government’s chosen means must rationally further

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some legitimate state purpose.”). Indeed, Euclid requires that courts evaluate the “circumstances

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and conditions” of the case. Euclid, 272 U.S. at 387–88. And, in Nectow, the Court held that an

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ordinance violated due process upon a “determinative” finding that the property restriction would

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not promote the law’s stated objective. 277 U.S. at 188. This is an objective means-ends analysis.
Response and Reply iso Supp. Brief on
P.s’ Due Process Claims - 2
2:18-cv-00736-JCC

Pacific Legal Foundation
255 South King St., Suite 800
Seattle, Washington 98104
(425) 576-0484

 Case 2:18-cv-00736-JCC Document 70 Filed 05/01/20 Page 6 of 15

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The City insists that Lingle v. Chevron impliedly rejected the “substantial relation” prong

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of due process in favor of minimal rational basis. City’s Supp. Brief at 5 n.22. Not so. Lingle

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simply excised “substantially advances” from the regulatory takings test while confirming that it

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remains a valid due process inquiry. 544 U.S. at 540 (“We conclude that this [substantially

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advances] formula prescribes an inquiry in the nature of a due process, not a takings, test, and that

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it has no place in our takings jurisprudence.”). The Court in fact emphasized that its ruling “does

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not require us to disturb any of our prior holdings.” Id. at 545. 2 The “means-ends” inquiry required

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by Euclid, Nectow, Moore, and Nebbia is necessary to determine the existence of a “substantial

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relation” and remains valid. So, too, is the “undue oppression” inquiry required by Goldblatt, 369

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U.S. at 594, and Lawton, 152 U.S. at 137.

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Perhaps aware that Lingle offers no foothold, the City argues that this Court should decline

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to follow binding precedent because the cases cited by Plaintiffs are old—as if Supreme Court case

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law is issued with a sell-by date. See City’s Supp. Brief at 7 (“Mugler . . . is a nineteenth century

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relic . . . .”); see also id. at 5 (“Plaintiffs offer no opinion favorably citing Goldbatt’s invocation

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of ‘undue oppression’ since the Court issued it in 1962”). Plus, the federal circuit courts still apply

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these heightened inquiries in property cases. 3

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The City also casts Supreme Court caselaw establishing the “substantial relation” and

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“unduly oppressive” tests as outdated relics of Lochner-era jurisprudence. City’s Supp. Brief at 5.

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The City has offered no response to Plaintiffs’ citation to the fundamental principle that federal
courts are bound by Supreme Court caselaw “until it is explicitly overruled by that Court.” United
States v. Weiland, 420 F.3d 1062, 1079 n.16 (9th Cir. 2005); see also Plaintiffs’ Supp. Brief at 2.
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See, e.g., Susan Virginia Parker v. Henry & William Evans Home for Children, Inc., 762 F.
App’x 147, 158 (4th Cir. 2019); Guertin v. State, 912 F.3d 907, 917 (6th Cir. 2019); Holland v.
Rosen, 895 F.3d 272, 292 (3d Cir. 2018); Waldman v. Conway, 871 F.3d 1283, 1292 (11th Cir.
2017); Nestle Waters N. Am., Inc. v. City of New York, 689 F. App’x 87, 88 (2d Cir. 2017); Gladden
v. Richbourg, 759 F.3d 960, 964 (8th Cir. 2014); Vandevere v. Lloyd, 644 F.3d 957, 969 (9th Cir.
2011); Bettendorf v. St. Croix Cty., 631 F.3d 421, 426 (7th Cir. 2011); Torromeo v. Town of
Fremont, NH, 438 F.3d 113, 118 (1st Cir. 2006); Greene v. United States, 440 F.3d 1304, 1314
(Fed. Cir. 2006); Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 248 (5th Cir. 2003); Sherwood
v. Oklahoma Cty., 42 F. App’x 353, 357 (10th Cir. 2002); Washington Teachers’ Union Local No.
6, Am. Fed’n of Teachers, AFL-CIO v. Bd. of Educ. of the D.C., 109 F.3d 774, 781 (D.C. Cir.
1997).

Response and Reply iso Supp. Brief on
P.s’ Due Process Claims - 3
2:18-cv-00736-JCC

Pacific Legal Foundation
255 South King St., Suite 800
Seattle, Washington 98104
(425) 576-0484

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But Lochner did not involve unduly oppressive government action. The Supreme Court overruled

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Lochner because it authorized courts to substitute their own policy judgments for the legislature’s.

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Ferguson v. Skrupa, 372 U.S. 726, 729 (1963). By contrast, courts assess whether a law is

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“arbitrary, oppressive, and unjust . . . without interfering with that large discretion which every

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legislative power has.” Ballard v. Hunter, 204 U.S. 241, 256 (1907). Thus, the Supreme Court has

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never extended the repudiation of Lochner to the “substantially advances” or “unduly oppressive”

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inquiries.

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II.

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Rational Basis Review Looks to Whether a Law Actually Furthers a
Legitimate Interest
Under either the “substantial relation” or rational basis standard, due process requires a

means-ends fit. Although the rational basis test presumes that a challenged law has a rational
relationship to a legitimate end, plaintiffs can rebut this presumption through evidence of
irrationality. The case that inaugurated the modern rational basis test, Nebbia, confirmed that,
while constitutionality is presumed, “the reasonableness of each regulation depends upon the
relevant facts.” 291 U.S. at 511. See also Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194,
209 (1934) (weight given to a government’s means and objective is “not a conclusive presumption,
or a rule of law which makes legislative action invulnerable to constitutional assault. Nor is such
an immunity achieved by treating any fanciful conjecture as enough to repel attack.”). This
evidence-based approach remains valid today, requiring that “even the standard of rationality as
we so often have defined it must find some footing in the realities of the subject addressed by the
legislation.” Heller v. Doe, 509 U.S. 312, 321 (1993).
This evidentiary approach is visible in cases like City of Cleburne, Texas v. Cleburne
Living Center, 473 U.S. 432 (1985). Cleburne asked whether a zoning ordinance that forbade
operation of a home for the mentally handicapped violated equal protection. Applying rational
basis, the Court still considered whether the zoning ordinance in fact satisfied the government’s
purported objectives. See id. at 446. Although rational basis review is deferential, “[t]he State may
not rely on a classification whose relationship to an asserted goal is so attenuated as to render the
Response and Reply iso Supp. Brief on
P.s’ Due Process Claims - 4
2:18-cv-00736-JCC

Pacific Legal Foundation
255 South King St., Suite 800
Seattle, Washington 98104
(425) 576-0484

 Case 2:18-cv-00736-JCC Document 70 Filed 05/01/20 Page 8 of 15

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distinction arbitrary and irrational.” Id. at 446. The City of Cleburne argued that the zoning

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ordinance would protect handicapped occupants from harassment and that placing the home in a

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floodplain raised safety concerns. Id. at 449. As in Nectow, the Court looked to whether the zoning

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ordinance was actually effective in achieving these goals: “Because in our view the record does

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not reveal any rational basis for believing the Featherston home would pose any special threat to

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the city’s legitimate interests, we affirm the judgment below insofar as it holds the ordinance

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invalid as applied in this case.” Id. at 448. Hence, courts applying rational basis to deprivations of

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property rights must look to facts in the record.

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The City, however, advocates for a rational basis test that divorces the due process inquiry

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from fact. According to the City, this Court can simply imagine a rational basis. City’s Supp. Brief

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at 8. For this proposition, the City cites to FCC v. Beach Communications, 508 U.S. 307, 313

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(1993), which stated that a law subject to rational basis review “must be upheld . . . if there is any

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reasonably conceivable state of facts that could provide a rational basis for the classification.” This

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statement, however, runs contrary to the overwhelming weight of authority before and since Beach

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Communications, establishing that a plaintiff can rebut the presumption of constitutionality with

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evidence of irrationality based on the actual objectives of the challenged law. 4 Importantly, it is

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See, e.g., Kelo v. City of New London, 545 U.S. 469, 491 (2005) (courts applying rational basis
“should treat the [claim] as a serious one and review the record to see if it has merit”) (Kennedy,
J., concurring); Lawrence v. Texas, 539 U.S. 558, 582 (2003) (evaluating an anti-sodomy law
under rational basis based on the state’s actual objective, not a hypothetical one); Village of
Willowbrook v. Olech, 528 U.S. 562, 565 (2000) (holding that a plaintiff can succeed on a rational
basis challenge “quite apart from the [government]’s subjective motivation” if the law doesn’t
have an objectively rational relationship to a legitimate government interest); Romer v. Evans, 517
U.S. 620, 632 (1996) (“[E]ven in . . . the most deferential of standards, we insist on knowing the
relation between the classification adopted and the object to be attained. The search for the link
between classification and objective gives substance to [rational basis].”); Heller, 509 U.S. at 321
(“[E]ven the standard of rationality as we so often have defined it must find some footing in the
realities of the subject addressed by the legislation.”); Cleburne Living Center, 473 U.S. at 448
(“[I]n our view the record does not reveal any rational basis.”) (emphasis added); Weinberger v.
Wiesenfeld, 420 U.S. 636, 648 n.16 (1975) (judges apply rational basis should not “accept at face
value assertions of legislative purposes, when an examination of the legislative scheme and its
history demonstrates that the asserted purpose could not have been a goal of the legislation”); U.S.
Dep’t of Agric. v. Moreno, 413 U.S. 528, 537 (1973) (invalidating food stamp restrictions on
unrelated co-inhabitants under rational basis review because “in practical effect, the challenged

Response and Reply iso Supp. Brief on
P.s’ Due Process Claims - 5
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Pacific Legal Foundation
255 South King St., Suite 800
Seattle, Washington 98104
(425) 576-0484

 Case 2:18-cv-00736-JCC Document 70 Filed 05/01/20 Page 9 of 15

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contrary to City of Cleburne, which is a property rights case more similar to this case than Beach

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Communications, which dealt with differential treatment of cable television operators.

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As a practical matter, rational basis as articulated by the City would render the test a nullity,

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since “a plaintiff could not possibly disprove an infinite set of theoretically imaginable facts and

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speculations so as to prove the law irrational, especially if the genuine facts she relies upon to

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prove this are declared irrelevant at the outset.” Timothy Sandefur, Rational Basis and the 12(b)(6)

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Motion: An Unnecessary “Perplexity”, 25 Geo. Mason U. Civ. Rts. L.J. 43, 47 (2014); see also

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Beach Communications, 508 U.S. at 323 n.3 (Stevens, J., concurring) (“Judicial review under the

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‘conceivable set of facts’ test is tantamount to no review at all”). Such excessive deference clashes

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with the Supreme Court’s insistence that rational basis is not “toothless.” Mathews, 427 U.S. at

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510. Instead, for rational basis to impose any genuine limit on government power, courts should

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“insist on knowing the relation between the classification adopted and the object to be attained.”

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Romer, 517 U.S. at 632. A law subject even to the most deferential form of scrutiny must still be

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“narrow enough in scope and grounded in a sufficient factual context for us to ascertain some

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relation between the classification and the purpose it serve[s].” Id. at 632–33.

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III.

The Fair Chance Housing Ordinance Cannot Satisfy Rational Basis

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The background check ban fails rational basis. A regulation’s effect on an individual’s

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rights bears on whether the regulation is arbitrary or capricious. Hence, a law that is “unduly

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oppressive” fails to satisfy substantive due process, even in the context of rational basis review.

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See Goldblatt, 369 U.S. at 594. This means that courts must determine whether the destruction of

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classification simply does not operate so as rationally to further the prevention of fraud.”)
(emphasis added); Eisenstadt v. Baird, 405 U.S. 438, 450–52 (1972) (“The Supreme Judicial Court
. . . held that the purpose of the amendment was to serve the health needs of the community . . . .
It is plain that Massachusetts had no such purpose in mind . . . .”); United States v. Carolene
Products, 304 U.S. 153–54 (1938) (“[W]e recognize that the constitutionality of a statute, valid on
its face, may be assailed by proof of facts tending to show that the statute as applied to a particular
article is without support in reason.”); Nebbia, 291 U.S. at 511 (“[T]he reasonableness of each
regulation depends upon the relevant facts.”); St. Joseph Abbey v. Castille, 712 F.3d 215, 223 (5th
Cir. 2013) (A “perfectly rational statement of hypothesized footings” for a law will not stand if
“betrayed by the undisputed facts.”).

Response and Reply iso Supp. Brief on
P.s’ Due Process Claims - 6
2:18-cv-00736-JCC

Pacific Legal Foundation
255 South King St., Suite 800
Seattle, Washington 98104
(425) 576-0484

 Case 2:18-cv-00736-JCC Document 70 Filed 05/01/20 Page 10 of 15

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a protected right—here, the right to select whom one will invite into a lease of private property—

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is “reasonably necessary for the accomplishment of the [public] purpose, and not unduly

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oppressive upon individuals.” Goldblatt, 369 U.S. at 594. Evaluation of the law’s effect is a

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necessary component of due process because “[t]here is no reasonable or rational basis for claiming

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that the oppressive and unfair methods [are] in any way essential to the [government objective].”

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Haynes v. State of Wash., 373 U.S. 503, 519 (1963); Carlton, 512 U.S. at 30 (The “harsh and

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oppressive” formulation “does not differ from the prohibition against arbitrary and irrational

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legislation”). As already discussed at some length in prior briefing, the ordinance is unduly

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oppressive—a factor that even the City concedes is part of rational basis. 5 See Plaintiffs’ Motion

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for Summary Judgment at 17–20, Dkt. # 23; Plaintiffs’ Opp. and Reply at 28–30 (reading Pension

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Benefit Guaranty Corporation v. R.A. Gray & Co., 467 U.S. 717, 733 (1984), as confirming that

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an unduly oppressive standard “does not differ from the prohibition against arbitrary and irrational

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legislation.”). On this basis alone, the Court should grant summary judgment for plaintiffs.

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Additionally, Seattle’s ordinance is arbitrary and irrational because it fails to make rational

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distinctions between criminal offenses, and it irrationally exempts the most important category of

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housing for successful reintegration.
A.

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The Ordinance’s Identical Treatment of Different Offenses Is Irrational

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As the Yims argued in their opening supplemental brief, the ordinance is irrational in its

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approach to different convictions. The ordinance treats minor misdemeanors the same as a major

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violent felony. A landlord is forbidden from taking adverse action based on either a shoplifting or

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murder conviction, despite profound differences in the underlying offenses. Yet the ordinance

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provides that a landlord can deny someone tenancy based on a state sex offender registry,

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regardless of the underlying offense that resulted in sex offender registration, if she can articulate

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a legitimate business reason. The result is an irrational system that forces landlords to rent to

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27

5

The City notes that Plaintiffs’ supplemental brief did not address how the undue oppression or
substantial relation standards apply here. See City’s Supp. Brief at 7. Plaintiffs applied those
factors at great length in their summary judgment briefing, and there is no need to belabor the
Court with repetitive argument. Plaintiffs’ MSJ at 17–21; Plaintiffs’ Opp. and Reply at 27–30.

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individuals with grave criminal convictions—even a long history of violent criminal behavior—

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while allowing them to deny tenancy based on a single, long-ago sex offense.

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The City’s only response to this arbitrary classification is to call sex offenses a “unique

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type of crime.” City’s Supp. Brief at 10. That argument, however, merely begs the question

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whether a blanket prohibition on screening criminal histories is arbitrary. Indeed, the City offers

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no rationale for treating someone with a decades-old misdemeanor on his record just like a recently

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released murderer, or treating repeated convictions for assault or drug manufacturing just like a

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single guilty plea for driving with a suspended license. Nor does it explain why landlords are

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allowed a legitimate business reason for excluding someone convicted of a sex crime but cannot

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have a legitimate business reason for excluding someone convicted of multiple counts of arson or

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assault. Moreover, the City does not explain what makes a sex offense “unique” when compared

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to other violent crimes. It presents no evidence, for instance, that racial minorities are not as

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disproportionately affected by sex offenses (the basis stated in the ordinance’s findings). The City

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cites a statistic that sex offenders are more likely than other offenders to be arrested later for rape

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or sexual assault, City’s Supp. Brief at 10, but that says nothing about sex offenders’ overall

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recidivism rate in comparison to other offenders, nor does it explain why landlords have less of a

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legitimate interest in denying an application where the applicant has committed a serious violent

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crime with a high recidivism rate or has a record showing repeated criminal behavior. 6
B.

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The Exemption for Federally Assisted Housing Is Irrational and Arbitrary

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The exemption for federally assisted housing remains the most visibly arbitrary component

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of the ordinance. See SMC 14.09.115. By freeing all federally assisted housing from the ban on

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the use of criminal history, the City has ensured that the most important category of housing for

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successful reintegration is harder for ex-offenders to secure. The City has never questioned the

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record evidence that assisted housing is the most important category of housing for ex-offenders.

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Indeed, as plaintiffs have already noted, sex offenders have a markedly lower recidivism rate
than other ex-offenders. See Plaintiffs’ Supp. Brief at 6 n.6.
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255 South King St., Suite 800
Seattle, Washington 98104
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Hence, the exemption bears no rational relationship to the City’s objectives in either reducing the

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disparate impact of criminal background checks or promoting successful reintegration. 7

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The City continues to wrongly insist that this exemption is required by federal law.

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Avoiding federal preemption is likely a legitimate government interest, but the City’s exemption

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is not rationally related to that end. It expressly extends beyond what federal regulations require,

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arbitrarily burdening the landlords least equipped to help ex-offenders reintegrate. See Plaintiffs’

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Supp. Brief at 7. This broad exception is not “narrow enough in scope and grounded in a sufficient

8

factual context for [this Court] to ascertain some relation between the classification and the purpose

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it served.” Romer, 517 U.S. at 632–33.

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The City calls the “federally assisted” housing exemption “narrow,” perhaps implying that

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the exemption is insignificant because it either does not apply to many people or only exempts

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federally assisted housing from a narrow component of the ordinance. See City’s Supp. Brief at

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11. But the federally assisted housing exemption is not, in fact, narrow in either respect. While the

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term “federally assisted” is undefined, a reasonable reading of the ordinance would at least include

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project-based and voucher-based housing because the federal regulations requiring limited

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criminal background screening apply to these two types of federally assisted housing. 8 If “federally

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assisted” refers to housing for vouchers and project-based housing, that indicates that a substantial

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portion of the Seattle housing market is exempt from the criminal background check ban. In 2018,

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The City seeks to downplay the problem of exempting the housing most beneficial for preventing
recidivism by arguing that reducing recidivism is not in fact an objective of the ordinance. City’s
Supp. Brief at 9. The ordinance’s recitals make clear that the Ordinance has two primary
objectives: reducing disparate impact of criminal background and preventing recidivism. See, e.g.,
City of Seattle Ordinance 125393 (“WHEREAS, a study by the Vera Institute of Justice has shown
that people with stable housing are more likely to successfully reintegrate into society and are less
likely to reoffend”); id. (“WHEREAS, research shows higher recidivism occurs within the first
two years of release and is mitigated when individuals have access to safe and affordable housing
and employment”). Excluding the housing most likely to result in successful reintegration does
not rationally relate to either objective.
8
24 C.F.R. § 982.2 establishes that the background check requirements established by HUD (24
C.F.R. § 982.553(a)(2)(i)) apply to tenant-based housing assistance, i.e. section 8 vouchers. 24
C.F.R. § 983.2 establishes that the background check requirements likewise apply to project-based
housing assistance.

Response and Reply iso Supp. Brief on
P.s’ Due Process Claims - 9
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255 South King St., Suite 800
Seattle, Washington 98104
(425) 576-0484

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a total of 18,658 households would qualify as “federally assisted” under this definition. See Seattle

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Housing Authority, Annual Report 1 (2018). 9 But “federally assisted” likely extends further. For

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example, many housing projects rent to low-income households as part of the Low-Income

4

Housing Tax Credit program. See The Urban Institute, The Low-Income Housing Tax Credit: How

5

It Works and Who It Serves (2018). 10 A plain reading of the ordinance would include such housing

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as “federally assisted.” 11 This further underscores the arbitrariness of the exemption, since housing

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providers eligible for the Low-Income Housing Tax Credit are not subject to federal regulations

8

requiring denial for certain types of criminal history. In short, the City’s exemption for federally

9

assisted housing lacks any “footing in the realities of the subject addressed by the legislation.”

10

Heller, 509 U.S. at 321.

11

Nor is the exemption for federally assisted housing “narrow” in any legal sense. The

12

exemption applies far beyond what federal law requires, and the exemption does not just apply to

13

a minor technicality. See SMC 14.09.115. Preventing adverse action based on criminal history is

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the hallmark of the ordinance, as evidenced by the title of the chapter in the municipal code: “Use

15

of Criminal Records in Housing.” See SMC 14.09. Exempting a vital category of housing for the

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formerly incarcerated is far from trivial or narrow.
CONCLUSION

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The criminal background check ban violates the First and Fourteenth Amendments to the

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United States Constitution. This Court should therefore grant Plaintiffs’ motion for summary

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judgment and deny the City’s cross-motion.

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9

https://www.seattlehousing.org/sites/default/files/2018_Annual_Report.pdf.
https://www.urban.org/sites/default/files/publication/98758/lithc_how_it_works_and_who_it_s
erves_final_0.pdf.
11
There are other forms of housing that would also appear to qualify as “federally assisted,” such
as supportive housing for the elderly or persons with disabilities, the Home Investment Partnership
Program, rural rental housing loans, and farm labor housing loans and grants. National Coalition
for
the
Homeless,
Federal
Housing
Assistance
Programs
(2007),
http://www.nationalhomeless.org/publications/facts/Federal.pdf.
10

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255 South King St., Suite 800
Seattle, Washington 98104
(425) 576-0484

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DATED: May 1, 2020.
Respectfully submitted,

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By: s/ BRIAN T. HODGES
By: s/ ETHAN W. BLEVINS
Brian T. Hodges, WSBA # 31976
Ethan W. Blevins, WSBA # 48219
Pacific Legal Foundation
255 South King Street, Suite 800
Seattle, Washington 98104
Telephone: (425) 576-0484
Email: BHodges@pacificlegal.org
Email: EBlevins@pacificlegal.org

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Attorneys for Plaintiffs

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Response and Reply iso Supp. Brief on
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Pacific Legal Foundation
255 South King St., Suite 800
Seattle, Washington 98104
(425) 576-0484

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CERTIFICATE OF SERVICE

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I hereby certify that on May 1, 2020, I caused the foregoing to be electronically filed with
the Clerk of the Court using the CM/ECF, system which will send notification to all counsel of
record.
s/ ETHAN W. BLEVINS
Ethan W. Blevins, WSBA # 48219

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Attorney for Plaintiffs

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Response and Reply iso Supp. Brief on
P.s’ Due Process Claims - 12
2:18-cv-00736-JCC

Pacific Legal Foundation
255 South King St., Suite 800
Seattle, Washington 98104
(425) 576-0484