Reply Brief — Chong Yim, et al., Petitioners v. City of Seattle, Washington

No. 23-329

In The

Supreme Court of the United States

____________________

CHONG and MARILYN YIM, KELLY LYLES,

EILEEN, LLC, and RENTAL HOUSING

ASSOCIATION OF WASHINGTON,

Petitioners,

v.

THE CITY OF SEATTLE,

____________________

Respondent.

On Petition for Writ of Certiorari to

the U.S. Court of Appeals for the Ninth Circuit

____________________

PETITIONERS’ REPLY BRIEF

____________________

DEBORAH J. LA FETRA

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, California 95814

Telephone: (916) 419-7111

BRIAN T. HODGES

Counsel of Record

ETHAN W. BLEVINS

Pacific Legal Foundation

1425 Broadway, #429

Seattle, Washington 98122

Telephone: (916) 419-7111

BHodges@pacificlegal.org

Counsel for Petitioners

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTRODUCTION ....................................................... 1

ARGUMENT ............................................................... 1

I.

THE YIMS PROPERLY RAISED

A FACIAL CHALLENGE UNDER THE

DUE PROCESS CLAUSE ............................. 1

II.

HISTORY AND TRADITION

ESTABLISH PROPERTY OWNERS’

RIGHT TO EXCLUDE THOSE WHO

POTENTIALLY THREATEN PEOPLE

AND PROPERTY .......................................... 6

III,

PROPERTY OWNERS FACE

SIGNIFICANT COSTS AND PENALTIES

FOR TENANTS’ CRIMINAL ACTIONS ...... 9

CONCLUSION.......................................................... 11

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Adult Student Housing, Inc. v. State, Dep’t

of Revenue, 41 Wash.App. 583 (1985) ................. 3

Bob Jones University v. United States,

461 U.S. 574 (1983) ............................................. 7

Campbell v. Henry Phipps Plaza South,

Inc., 356 N.Y.S.2d 326 (App. Div. 1974) ............. 7

Chicago v. Morales,

527 U.S. 41 (1999) ............................................... 2

City of Los Angeles, Calif. v. Patel,

576 U.S. 409 (2015) ............................................. 2

Cranwell v. Mesec,

77 Wash.App. 90 (1995) ...................................... 3

Dep’t of Housing and Urban Dev. v. Rucker,

535 U.S. 125 (2002) ............................................. 4

DeShaney v. Winnebago Cnty. Dep’t of Soc.

Servs., 489 U.S. 189 (1989) ................................. 5

Geise v. Lee,

84 Wash.2d 866 (1975) ........................................ 3

Grosfield v. United States,

276 U.S. 494 (1928) ........................................... 11

Housing Pioneers, Inc. v. C.I.R.,

58 F.3d 401 (9th Cir. 1995) ................................. 4

J. W. Goldsmith, Jr., Grant Co. v. United

States, 254 U.S. 505 (1921) ............................... 11

Logan v. United States,

552 U.S. 23 (2007) ............................................... 8

iii

Mapp v. Ohio,

367 U.S. 643 (1961) ........................................... 11

Moore v. Missouri,

159 U.S. 673 (1895) ............................................. 8

Mosby v. Ligon,

418 F.3d 927 (8th Cir. 2005) ............................... 1

Parke v. Raley,

506 U.S. 20 (1992) ............................................... 8

State ex rel. Pfeiffer v. Columbus Inn &

Suites, No. 14AP–132, 2014 WL 4854542

(Ohio App. Sept. 30, 2014) ................................ 11

Sharif v. Leahy,

133 Wash.App. 1007 (2006)............................... 10

Sinclair v. City of Seattle,

61 F.4th 674 (9th Cir. 2023) ............................ 5, 6

Thompson v. Ashe,

250 F.3d 399 (6th Cir. 2001) ............................... 7

Tyler v. Hennepin Cnty.,

598 U.S. 631 (2023) ............................................. 5

United States v. Rosales-Garay,

283 F.3d 1200 (10th Cir. 2002) ........................... 7

United States v. Traficant,

368 F.3d 646 (6th Cir. 2004) ............................... 1

United States v. 16 Clinton Street,

730 F.Supp. 1265 (S.D.N.Y. 1990) .................... 11

Watkins v. U.S. Army,

875 F.2d 699 (9th Cir. 1989) ............................... 7

Statutes

42 U.S.C. § 11901(4) ................................................. 5

iv

Wash. Rev. Code § 28A.400.303 ............................... 5

Wash. Rev. Code § 69.53.010(1) ............................. 11

Other Authorities

49 Am. Jur. 2d Landlord and Tenant § 434

(2021) ................................................................. 10

Bateman, Tracy A. & Thomas, Susan,

Landlord’s Liability for Failure to

Protect Tenant from Criminal Acts of

Third Person, 43 A.L.R.5th 207 (1996) ............. 10

Fallon, Richard H., Jr., Fact and Fiction

About Facial Challenges, 99 Calif. L.

Rev. 915 (2011) .................................................... 2

1

INTRODUCTION

The Yims’ petition asks this Court to decide

whether a property owner’s right to exclude

potentially dangerous tenants—a fundamental right

entitled to full constitutional protection under the

Takings Clause—is relegated to a nonfundamental

right and deferential rational basis review under the

Due Process Clause. The City of Seattle acknowledges

the differential treatment of the right to exclude and

approves of it. BIO.5, 14. But the question remains:

how can a right be fundamental under one clause but

not another? “The Constitution functions as a

coherent whole, not as a series of isolated and

unrelated clauses…” United States v. Traficant, 368

F.3d 646, 651 (6th Cir. 2004). This Court has never

squarely answered the question whether the right to

exclude—a fundamental property right for Takings

purposes—is equally fundamental as a matter of due

process. This is a foundational question that rests on

constitutional theory, history, and tradition. No

further factual development or percolation is

warranted or needed, and only this Court can answer

the question. The petition should be granted.

ARGUMENT

I.

THE YIMS PROPERLY RAISED

A FACIAL CHALLENGE UNDER THE

DUE PROCESS CLAUSE

Facial challenges are not abstract challenges—

they are brought in the context of actual people

suffering actual injuries. Mosby v. Ligon, 418 F.3d

927, 932–33 (8th Cir. 2005) (litigants must satisfy

“normal requirements” of Article III standing to bring

2

facial challenges). Nor is there anything inherent in a

facial claim that advises against review. City of Los

Angeles, Calif. v. Patel, 576 U.S. 409, 415 (2015); see

also Richard H. Fallon, Jr., Fact and Fiction About

Facial Challenges, 99 Calif. L. Rev. 915, 917–18 (2011)

(in a dataset of six Supreme Court terms, “the Court

adjudicated more facial challenges on the merits than

it did as-applied challenges.”). Where a regulation, by

its plain terms, sweepingly strips individuals of a

cherished constitutional right, as is the case here,

facial review is warranted. Chicago v. Morales, 527

U.S. 41, 46 (1999) (concluding that an “anti-vagrancy”

ordinance facially violated the Due Process Clause of

the Fourteenth Amendment).

Seattle and the courts below are entirely solicitous

of ex-convicts’ difficulties in obtaining housing.

BIO.1–2. So much so that they are utterly

disinterested in property owners’ moral and legal

obligations to exclude known dangers that threaten

their homes, families, tenants, and property—and ask

this Court to avert its gaze as well. BIO.5. But the

adverse effects of Seattle’s ordinance on the Yims and

other property owners should not be cast aside or

ignored. The Yims and their children share space with

their tenants, App.133a, and Kelly Lyles frequently

visits her property and her tenants. App.135a (“As a

single woman who frequently interacts with her

tenants, she considers personal safety when selecting

her tenants.”). 1 Such interactions are common among

property owners who rent and manage small

properties. App.135a (Rental Housing Association’s

1 Seattle’s complaint that no tenants are party to this action,

BIO.3, makes no sense when property owners facially challenge

a law that regulates only property owners’ actions.

3

5300 members consist primarily of property owners

who “rent out single-family homes, often on a

relatively short-term basis due to the landlord’s work,

personal, or financial needs.”). And one need not have

record citations for the common-sense proposition that

multi-unit rental housing includes shared common

spaces. See Cranwell v. Mesec, 77 Wash.App. 90, 104

(1995) (“For the tenants, common areas (which

include amenities such as laundry rooms and lounges)

are extensions of their living space.”); Geise v. Lee, 84

Wash.2d 866, 871 (1975) (owner of rental property has

a duty to exercise reasonable care in providing safe

common areas such as walkways).

Seattle coldly mischaracterizes this case as

involving remote corporate landowners, BIO.12, 19, as

if such property owners have no problem consigning

their tenants to cohabiting with dangerous criminals

and have no worries about known criminals harming

tenants or trashing the place and otherwise engaging

in criminal conduct or inviting their criminal

associates onto the premises. Of course, Seattle

operates from a false premise. See, e.g., GRE

Downtowner LLC Am. Br. at 6, 10 (brief explains

“GRE’s goals to provide safe, clean, comfortable,

stable, and affordable housing for the Addison’s lowincome tenants and to maintain the project as a

sustainable enterprise” and describes extensive

efforts to combat adverse effects from Seattle’s

requirement that GRE extend tenancy to known

criminals).

Moreover, cities concerned about the lack of

housing rely upon corporate property owners that can

provide more rental housing stock than individuals

renting out a couple rooms in a triplex. See, e.g., Adult

4

Student Housing, Inc. v. State, Dep’t of Revenue, 41

Wash.App. 583, 585 (1985) (corporation built 15

apartment buildings to serve students and faculty of

a community college). Some corporations are even

dedicated to providing housing to “pre-release and

post-release persons who are or have been

incarcerated in prisons.” Housing Pioneers, Inc. v.

C.I.R., 58 F.3d 401, 401 (9th Cir. 1995). Even so, as a

matter of constitutional law, it doesn’t matter whether

the property owner is a married couple, a single

woman, a small company like Eileen, LLC (7-unit

building), or a corporate owner like GRE Downtowner

that rents to low-income tenants at “The Addison on

Fourth” building. See GRE Downtowner LLC Am. Br.

at 2 & n.3 (company purchased property for $12

million and invested another $27 million to create

apartment homes, 25% of which are reserved for

tenants with disabilities, as well as artist lofts, and

musician studios; the company accepts tenants

subsidized by publicly funded rental assistance). All

property owners have a constitutional right to exclude

potentially dangerous criminals.

Seattle cannot seriously dispute that where

criminals congregate, crime follows. This is the

“obvious reason” that Congress authorizes owners of

subsidized housing to evict anyone who engages in

crime and anyone who invites a criminal onto the

property. Dep’t of Housing and Urban Dev. v. Rucker,

535 U.S. 125, 134 (2002) (“Regardless of knowledge, a

tenant who cannot control drug crime, or other

criminal activities by a household member which

threaten health or safety of other residents, is a threat

to other residents and the project.”) (citation omitted).

Congress expressly found that “the increase in drugrelated and violent crime not only leads to murders,

5

muggings, and other forms of violence against

tenants, but also to a deterioration of the physical

environment that requires substantial government

expenditures.” 42 U.S.C. § 11901(4).

Seattle itself requires criminal background checks

for many people seeking to work in public schools.

Wash. Rev. Code § 28A.400.303 (requiring checks for

job positions that require unsupervised access to

children or developmentally disabled persons). That

is, people with a criminal history are excluded from

Seattle’s schoolyard properties to “ensure the safety of

Washington’s school children,” id. (Official Notes,

Findings), but Seattle prohibits the Yims from

excluding people with a criminal history from their

home’s yard where their children play. App.133a

(“The Yims share a yard with their renters in the

triplex, and the Yim children are occasionally at home

alone when the renters are at home.”). When

government enacts laws that burden ordinary

citizens’ constitutional rights and exempts itself, this

Court takes notice. Tyler v. Hennepin Cnty., 598 U.S.

631, 645 (2023).

Review by this Court is a matter of the utmost

importance because an owner’s ability to keep known

and dangerous criminals off her property is the last

line of defense for her family, property, and tenants.

The state has no obligation under the Due Process

Clause to protect individuals from “invasion by

private actors.” DeShaney v. Winnebago Cnty. Dep’t of

Soc. Servs., 489 U.S. 189, 195 (1989). The narrow

“state-created danger” doctrine doesn’t apply to

generally applicable laws. Sinclair v. City of Seattle,

61 F.4th 674, 680 (9th Cir. 2023). This means that

Seattle can order property owners to welcome

6

criminals into their homes and then disclaim any

responsibility for any mayhem that ensues. It’s bad

enough that Seattle officials handed over entire city

blocks to criminal activity, id. at 676, 681 (Seattle

Police Department’s “wholesale abandonment” of “an

entire precinct and a large area of the surrounding

neighborhood to protestors for a month” created “a

toxic

brew

of

criminality”);

they

cannot

constitutionally demand that private property owners

cede their own homes and businesses to the criminal

element.

II.

HISTORY AND TRADITION

ESTABLISH PROPERTY OWNERS’ RIGHT TO

EXCLUDE THOSE WHO POTENTIALLY

THREATEN PEOPLE AND PROPERTY

The Yims seek to convince this Court that property

owners’ right to exclude potentially dangerous tenants

from their property is fundamental as a matter of Due

Process as well as under the Takings Clause. Pet.i, 22.

Because this issue is plainly unresolved, Pet.6, 24–28,

Seattle sets up a series of strawman arguments by

shifting its description of the right depending on

which set of cases it seeks to distinguish. It variously

describes the right as “the right to deny tenancy to

someone based on their criminal history,” BIO.7, 11,

the “right to deny tenancy to someone [generally],”

BIO.9, the “right to choose or evict tenants,” BIO.13,

“the right to exclude tenants they disfavor,” BIO.13,

and the “right to discriminate on the basis of criminal

history.” BIO.14, 18. The multiple descriptions serve

only to obfuscate Seattle’s insistence that property

owners have no choice but to welcome into their homes

and businesses people with criminal backgrounds, no

7

matter how recent, how violent, and how repetitious.

Pet.7; App.129a (S.M.C. § 14.09.025).

This case does not implicate the right to

discriminate against people in suspect classes, such as

race, sex, etc. First, criminality is not an immutable

personal characteristic; it is conduct that violates the

law, often causing grievous harm to people and

property. See Watkins v. U.S. Army, 875 F.2d 699, 724

(9th Cir. 1989) (Norris, J., concurring in the judgment)

(contrasting choice of criminality with immutability of

sexual orientation: “discrimination exists against

some groups because the animus is warranted—no

one could seriously argue that burglars form a suspect

class.”); United States v. Rosales-Garay, 283 F.3d

1200, 1203 n.4 (10th Cir. 2002) (“Convicted criminals

are not a suspect class.”). Second, discrimination

against protected classes such as race and sex can be

justified only under strict or heightened scrutiny

because it is based on immutable characteristics that

we, as a society, agree must be protected by the Equal

Protection Clause. See Bob Jones University v. United

States, 461 U.S. 574, 604 (1983). Discrimination

against people who choose to engage in criminal

activity is not the same thing. Campbell v. Henry

Phipps Plaza South, Inc., 356 N.Y.S.2d 326, 327 (App.

Div. 1974) (no unlawful discrimination when property

owners terminate the tenancy of tenant “and the

members of her family” who are “constantly involved

in criminal arrests and incidents which constitute a

danger to the health and well being of other tenants”);

Thompson v. Ashe, 250 F.3d 399, 406–07 (6th Cir.

2001) (public housing authority’s “no-trespass” list

barring individuals involved in criminal activities did

not violate the rights of a person on the list who sought

to visit family members (who did not specifically invite

8

him) in the housing project). Given these precedents,

which the Yims do not challenge, Seattle’s slippery

slope (BIO.16) is short and shallow indeed.

Seattle alternatively claims that recidivism isn’t

really a problem, BIO.17, contrary to an

overwhelming number of studies by federal

government agencies and others. See Nat’l Apt. Ass’n

Am. Br. at 7 (citing multiple recent studies by the

United States Sentencing Commission concluding

that “about half of federal offenders were rearrested,

almost one-third were reconvicted, and one-quarter

were reincarcerated” and “violent offenders

reoffended at a higher rate than non-violent

offenders”); Consumer Data Industry Ass’n Am. Br. at

7 (citing a 2021 study by the Department of Justices’

Bureau of Statistics finding that “[a]bout 1 in 3 (32%)

prisoners released in 2012 after serving time for a

violent offense were arrested for a violent offense

within 5 years.”); Citizen Action Defense Fund Am Br.

at 14–15 (citing studies that “recidivism rates among

the formerly incarcerated remain stubbornly high”).

This Court routinely recognizes recidivism as a

perpetual problem. See, e.g., Logan v. United States,

552 U.S. 23, 29 n.2 (2007) (noting penalty for

misdemeanor battery is enhanced when committed by

a “repeater” or “habitual” criminal); Parke v. Raley,

506 U.S. 20, 27 (1992) (“States have a valid interest in

deterring and segregating habitual criminals.”);

Moore v. Missouri, 159 U.S. 673, 677 (1895) (“‘the

punishment for the second [offense] is increased,

because by his persistence in the perpetration of

crime, [the defendant] has evinced a depravity, which

merits a greater punishment, and needs to be

restrained by severer penalties than if it were his first

offence.’”).

9

While housing providers have shown tolerance and

openness to renting to many tenants with criminal

backgrounds, App.134a, they are rightfully wary of

allowing criminals—particularly those with extensive

histories—to enter their properties. Seattle’s

ordinance nonetheless forbids property owners, on

pain of significant penalties, 2 from choosing whether

to permit or exclude such criminals.

III.

PROPERTY OWNERS FACE

SIGNIFICANT COSTS AND PENALTIES FOR

TENANTS’ CRIMINAL ACTIONS

1. The amicus brief submitted by GRE

Downtowner describes the array of extra costs borne

by property owners required to accept tenants with a

criminal history. GRE owns The Addison on Fourth

and has been complying with Fair Chance Housing

Ordinance (FCHO) since its enactment. Since FCHO

went into effect, crime in and around the Addison

increased, prompting GRE to hire armed security

guards and take other security measures. GRE

Downtowner LLC Am. Br. at 2, 10 (security cost prior

to FCHO totaled about $84,000 annually; post-FCHO,

the total exceeded $220,000 annually). 3 With less

reliable tenants, the Addison saw a marked increase

in evictions, costing tens of thousands of dollars

2 App.130a–131a (includes injunctive relief and damages to an

excluded tenant, plus monetary civil penalties ranging from

$11,000 for first violation of the ordinance to $55,000 for two

violations within seven years).

3 GRE installed cameras in public areas, upgraded door

hardware, limited access to the elevator, and gave residents

access only to their respective floors. GRE Am. Br. at 10.

10

annually. Id. at 8. Due to an increase in anti-social

activity in the building, GRE’s insurance company

increased the assault and battery insurance

deductible. Id. at 9. Employees, some of whom were

afraid to be on the premises alone, quit at a much

higher rate, and GRE bore the cost of frequently

recruiting, hiring, and training replacements. Id.

2. Seattle acknowledges that Washington property

owners may face tort liability if a tenant is injured by

a foreseeable act of criminality. BIO.16. Such liability

is not limited to Washington, as Seattle suggests. 4 See

Tracy A. Bateman & Susan Thomas, Landlord’s

Liability for Failure to Protect Tenant from Criminal

Acts of Third Person, 43 A.L.R.5th 207, 257–62 (1996)

(collecting cases from California, District of Columbia,

Florida, Georgia, Idaho, Kentucky, Nebraska, New

York, North Carolina, Pennsylvania, and Tennessee

holding that landlord has duty to exercise reasonable

care to protect tenants against foreseeable third-party

criminal acts). And this duty often extends to

foreseeable criminal acts occurring in common areas.

Sharif v. Leahy, 133 Wash.App. 1007, at *4 (2006)

(unpublished); Bateman & Thomas, supra, at 266–69

(collecting cases from District of Columbia, Georgia,

Illinois, Massachusetts, Michigan, New Mexico, New

York, and Ohio concerning such liability in common

areas).

Potential liability extends beyond tort. Property

owners may be criminally liable for certain offenses

4 Seattle’s citation to American Jurisprudence for the proposition

that there is no common law duty to perform a criminal

background check omits the qualifier, “unless such violence by

the other tenants or their guests was highly foreseeable.” 49 Am.

Jur. 2d Landlord and Tenant § 434 (2021).

11

committed by their tenants. See Wash. Rev. Code

§ 69.53.010(1) (property owners who knowingly rent,

lease or make available any building, space, room or

enclosure for an illegal drug purpose commit a felony).

Law enforcement may confiscate an entire apartment

building under civil asset forfeiture laws based on a

single tenant’s illegal drug dealing. See, e.g., United

States v. 16 Clinton Street, 730 F.Supp. 1265, 1267–68

(S.D.N.Y. 1990). Property owners can be liable under

public nuisance laws when tenants engage in criminal

activities. State ex rel. Pfeiffer v. Columbus Inn &

Suites, No. 14AP–132, 2014 WL 4854542, at *8 (Ohio

App. Sept. 30, 2014) (if a hotel owner doesn’t hire

security guards or refuse to rent rooms to “known

criminals or troublemakers,” he is liable for creating

and perpetuating a nuisance); Grosfield v. United

States, 276 U.S. 494, 498 (1928) (owner’s business

shut down when tenant used space for illegal alcoholic

beverage manufacturing).

To expose property owners to extra costs and

penalties for tenants’ criminal activities—up to and

including loss of the property itself—the fundamental

fairness underlying the Due Process Clause must

protect the right to investigate and exclude

prospective tenants whose past criminal activity

foreshadows serious future problems. J. W.

Goldsmith, Jr., Grant Co. v. United States, 254 U.S.

505, 511–12 (1921) (noting “the anxious solicitude a

court must feel” regarding “the injustice of making an

innocent man suffer for the acts of a guilty one”).

CONCLUSION

“There is no war between the Constitution and

common sense.” Mapp v. Ohio, 367 U.S. 643, 657

(1961). Throughout history, property owners have had

12

the right and the moral responsibility to exclude

known criminals from entering their property,

especially their homes. Seattle’s law forcing property

owners to be willfully blind to the dangers presented

by criminal tenants implicates the fundamental right

to exclude and warrants strict scrutiny under the Due

Process Clause. Because this question is unsettled

and of increasing importance as other cities look to

trendsetters like Seattle for inspiration, 5 the Court

should grant the petition.

DATED: December 2023.

Respectfully submitted,

BRIAN T. HODGES

Counsel of Record

ETHAN W. BLEVINS

Pacific Legal Foundation

1425 Broadway, #429

Seattle Washington 98122

Telephone: (916) 419-7111

BHodges@pacificlegal.org

DEBORAH J. LA FETRA

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, California 95814

Telephone: (916) 419-7111

Counsel for Petitioners

5 See Nat’l Apt. Ass’n Am. Br. at 4 (As of 2022, 15 municipalities

have adopted ordinances similar to FCHO.).