Syracuse water turn-off policy is constiutionally suspect

The City of Syracuse set up its water service so that only property owners, or landlords, but not tenants, set up their water service accounts. This means if the landlord does not pay the bill, the tenant will go without any water. When the tenant finds out the water may be shut off, she or the landlord can request a hearing before an administrative law judge. In this case, relying on the landlord's assurance that he would pay the bill, plaintiff did not request a hearing. The landlord blew off the bill, and plaintiff got the shaft, and proceeded with this class action lawsuit against the City under the Due Process Clause, which the trial court dismissed.

The case is Winston v. City of Syracuse, decided on April 11. The Second Circuit reinstates the lawsuit. But first, it puts the kibosh on her equal protection claim that there is no rational basis for the City's rule that only landlords and not tenants can open water accounts. The transient nature of tenants justifies the rule, which ensures that landlords, who don't come and go, will pay the water bills at the risk of a lien on the property. The lien threat does not kick in with tenants, only landlords. While plaintiff offers some creative ways to get around the logistical problem of collecting payment from transient tenants, the Court of Appeals notes that the equal protection claim must fail if the City can put forward any rational basis for distinguishing between tenants and landlords, an easy burden for the City. This analysis reminds us that it is quite difficult to challenge municipal policies under rational basis review.

But while the  water account policy is constitutional, a different analysis governs the water service termination policy. We have two classes here for purposes of equal protection analysis: tenants whose landlords have delinquent water bills and tenants whose landlords actually give a damn and pay their bills. Is there a rational basis for this distinction? That's the question here. In 1974, the Fifth Circuit said water policies like this violated the Equal Protection Clause. The Sixth, Seventh and Ninth Circuits have similarly ruled over the years. The Second Circuit joins these courts in ruling that ordinances like this are constitutionally suspect:

Requiring a tenant without any legal obligation for a landlord's unpaid bill to pay that bill to retain or restore water service fails rational basis review. The tenants of non-delinquent and delinquent landlords are similar in all respects to this situation. First, they rent their homes and cannot open water accounts in their own name. Second, their landlords have the legal obligation to pay the water bills to the City; neither class of current tenants possesses a legal obligation to pay the unpaid water bill. As a result, the City's policy of shutting off water to collect debs 'divorces itself entirely from the reality of legal accountability for the debt involved' and penalizes not the debtor but an innocent third party with whom the debtor contracted."