Yesterday the Ninth Circuit Court of Appeals published its ruling on an appeal of a lower court ruling that upheld Seattle’s “Fair Chance Housing” ordinance. The ordinance prohibits landlords from looking at a prospective tenant’s criminal record and from taking adverse action against a prospective tenant (such as denying tenancy) based upon the tenant’s criminal record.
The Ninth Circuit partly affirmed and partly reversed the lower court. It found that the ordinance’s ban on landlords accessing criminal records violated First Amendment protections because it was not narrowly tailored to the city’s purpose of preserving access to housing. But it rejected the notion that the city could not prohibit “adverse action” by landlords.
The three appeals court judges agreed on a few parts but disagreed on others, so the ruling is a bit of a mess to read. One key question was whether a landlord accessing a tenant’s criminal record — which is a public record available to everyone — constitutes noncommercial free speech (subject to strict scrutiny) or commercial speech (subject to lower, “intermediate scrutiny”). In the end the majority opinion chose not to answer that question, finding that a broad ban on accessing criminal records violates even the lower “intermediate scrutiny” standard because it is not narrowly tailored to the city’s purpose.
A more interesting finding in the ruling, which may generate an appeal to the U.S. Supreme Court, relates to the other half of the decision. The plaintiff landlords had argued that the ordinance violated their Fourteenth Amendment substantive due process property rights, specifically the “right to exclude.” In the recent case Cedar Point Nursery vs. Hassid, the Supreme Court ruled that the “right to exclude” was a fundamental property right, but under the “takings clause” of the Fourteenth Amendment, not the “due process” clause. The Ninth Circuit found no precedent for finding the right to exclude to be a fundamental property right under the due process clause, and thus ruled that the city’s violation of the right to exclude was subject to the lowest standard, “rational basis” — which it easily passes.
This puts the conservative majority on the Supreme Court in a bit of a bind. On one hand, as demonstrated in Cedar Point, they have been pushing harder to strengthen property rights. But on the other hand, some of the conservatives have been pushing back hard on the entire concept of “substantive due process,” which they argue has been used to invent fundamental rights that are not explicitly enumerated in the Constitution. Their recent Dobbs ruling is a prime example of this recent trend (read Thomas’s concurrence, in which he spells it out). In this case it would probably still tip in the favor of the landlords since in Cedar Point the conservative majority held that the right to exclude is a “treasured” right grounded in U.S. history and tradition (their yardstick for measuring which rights are fundamental). Nevertheless it’s a gamble for the landlord plaintiffs to appeal this case to the Supreme Court, since the result could either strengthen or weaken property rights.
