THE CASE FOR SMALL TIME DISCRIMINATION  

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On Monday, June 5, 2000, Vadim Miesagaes, a native Swiss and student at San Francisco State University, stood before Superior Court Judge Mary Morgan in San Francisco and was adjudged incompetent to stand trial.  You see, Mr. Miesagaes was found to be too crazy even to understand the nature of the proceedings being brought against him or to assist in his own defense.  As of this writing he is lodged in the medical wing of the San Francisco County Jail.

Ella Wong is, or was, no one is yet quite sure which, a property owner in San Francisco.  She rented a spare room to Miesagaes in the house in which she lived.  She has gone missing.  Miesagaes, police reportedly say, was arrested on May 1 after he confessed that he killed his landlady, skinned her, cut her body up, and disposed of the pieces in several places about the city.  The police also reportedly say that Miesagaes led them to what they think is her torso (they are still working on positive identification), which he dumped in a garbage bin in Golden Gate Park.  Allegedly, Miesagaes told police he killed Wong because she was giving off “evil vibes” and he feared he would be “sucked into the matrix.”  No one, of course, knows exactly what this means.

The United States, both through the efforts of its Federal government, and through the efforts of the state and local governments, is in the process of trying to stamp out by law the last vestiges of invidious discrimination based on several factors such as race, sex, sexual preference, religious belief, and so on.  So tenuous have American prejudices in this regard become, as compared to other countries and despite the clamor of the entrenched civil rights industry, that government at all levels has begun to do things that would have been unheard of even a decade ago, such as to compel individuals who have no impact on the economy at large to do business with people they do not wish to do business with.  But the government does not wield its tools with the precision with which the surgeon wields his lancet.  No, the government wields its tools with all the delicacy of a ham-fisted gandy dancer swinging a 16-pound sledgehammer.  Enlightened persons would like to see all vestiges of invidious discrimination eliminated, there is a compelling case for exemptions, both for the continuation of those that now exist, and perhaps even the creation of some where they do not now exist.

We come to the case of the small time, the amateur, landlord.  All cities and towns have them.  They are the widow ladies that rent out the basement room, or the family that rents the other half of the duplex they live in or the cottage in the back.  Not only do they help themselves by gaining that small increment of income from their extra space, they are a valuable asset to the community.  They offer a type of housing that is usually of relatively low cost, and ideal for students, the elderly, and others living alone.  Multi housing complexes and owners of 50 free standing homes, say, who rent out their units also offer a value to the community, but their role is very different.  While they deal with their housing as a retailer deals with his merchandise, the small time landlord is very often literally sharing his or her abode.  The big time landlord can deal with his tenants with the safety distance provides.  The small time landlord deals with his tenants from a position of extreme vulnerability, always within striking distance of the tenant in the in-law downstairs, who just may be an axe murderer.

It may be that in the circumstance of the old church-going widow lady with a basement unit, she should be allowed to insist that her tenant be an old church-going widow lady.  Perhaps she should be permitted to refuse to rent to the punk rocker with green dyed hair and a ring in his eyelid, and for no other reason than that she is uncomfortable about it.

The relationship between the big time landlord and his tenants is a commercial one.  The government and the law can, within limits, deal fairly effectively with commercial relationships.  The relationship between the small time landlord and his tenants is much more a social one.  The government and the law are notoriously bad at dealing with these.  It is impossible to quantify or regulate the thousands of subtle decisions that go into the formation of a social relationship.

The atrocity that befell Ella Wong is a powerful urge to thought.  We do not contend that she was forced to rent to Mr. Miesagaes by any civil rights law, or to continue to rent to him because of any other law.  Her fate does illustrate the risks small time landlords take, and suggests they might be allowed to guard against them in any way they see fit, even if these ways do not comport with our views of ideal equality.

Although many fair housing and similar laws have qualifications related to the size of the operation in question, most civil rights laws do not.  There is a growing body of common law in which prospects have sued small time landlords for invidious discrimination on general tort theory that has grown out of such statutes.  One case in California, which is now on appeal, pitted a landlady who refused to rent to an unmarried couple because their relationship was contrary to the landlady’s religious beliefs.  Maybe it is time to weigh the social utility of our antidiscrimination laws and carve out permanent exceptions, as, for example, for landlords with three or fewer rental units who live in the same building.  After all that unmarried couple did not end up living in their car, they just got another rental unit.  Ella Wong will not be concerned with housing, or anything else, any more.

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