Following last month’s unanimous 8th Circuit opinion against the landlords challenging Minneapolis’ Fair Chance Ordinance, the plaintiff-appellants petitioned the 8th Circuit Court of Appeals for a rehearing. The plaintiff-appellants argue that the appellate court did not fully consider the U.S. Supreme Court’s decision in Cedar Point Nursery et al. v. Hassid. The landlords’ brief notes that Cedar Point Nursery was “unfortunately … decided after briefing was complete in this case.”

Recently, we had a guest blog post, Differing Results in Minnesota “Tenants Rights” Ordinance Cases, from Mark A. Jacobson, a partner at Cozen O’Connor, who is litigating the Minneapolis case.

The Minneapolis Fair Chance Ordinance prohibits landlords from rejecting prospective tenants based on specified aspects of their criminal, credit, or rental history unless they first conduct a detailed analysis of that person’s circumstances. The landlords sued alleging that the ordinance is an unconstitutional taking.

As noted in a Law 360 article, in

[d]enying the landlords’ motion for a preliminary injunction in November 2020, U.S. District Court Judge Paul A. Magnuson found that the Minneapolis City Council did not force landlords to ‘open their rental properties to the public.’

Rather, the ordinance preserves landlords’ ability to choose their tenants, Judge Magnuson said, so long as they conduct individualized assessments and provide a rejected tenant with an explanation of their denial.

Eighth Circuit Judges Duane Benton, Roger Wollman and Lavenski Smith reiterated this position in March, finding that the ordinance ‘allows landlords to reject individuals due to undesirable criminal, credit, rental, and other history so long as they comply with the ordinance’s procedural requirements.’

Because of this, the Eighth Circuit panel concluded, ‘the ordinance is a restriction on the landlords’ ability to use their property, not a physical-invasion taking.’

Pushing back on Monday, the Minneapolis landlords argued that the appellate panel should have focused on the ‘overall impact’ of the individualized assessment process in the tenant screening ordinance, as required under Cedar Point.

‘While landlords may still decline applicants on a case-by-case basis, they are dissuaded from rejecting every applicant failing to meet more exclusive screening criteria,’ according to Monday’s petition. ‘So, the ordinance’s ultimate result is to force landlords to rent to tenants they would otherwise reject.’

The cases are 301, 712, 2103 and 3151 LLC et al. v. City of Minneapolis, U.S.C.A. 8th Cir., No. 20-3493, and 301, 712, 2103 and 3151 LLC et al. v. City of Minneapolis, U.S.D.C., D. Minn., No. 0:20-cv-01904. The landlords are represented by Robert W. Hayes, Calli J. Padilla, Mark A. Jacobson, Steven P. Katkov and Cassandra M. Jacobsen of Cozen O’Connor.