Category: Courts

King County Judge Rules Juvenile Sentencing Law Constitutional, Sparking Possible Appeal

The King County jail in downtown Seattle (Paul Kiefer: PubliCola)
The King County jail in downtown Seattle, where Adnel Kenjar transferred after turning 18 (Paul Kiefer: PubliCola)

By Paul Kiefer

A King County Superior Court judge dismissed a motion on Friday challenging the constitutionality of a Washington law requiring 16- and 17-year-olds charged with serious felonies to be tried as adults. The motion, prepared by defense attorney Emily M. Gause and the Korematsu Center for Law and Equality at Seattle University’s law school, was the latest in a series of challenges to the law, known as the “auto-decline” statute, by criminal justice reform and children’s rights advocates.

The defendant in Friday’s test case is Adnel Kenjar, who prosecutors allege was the gunman in a 2018 drive-by shooting in Burien that killed a bystander. Kenjar was 17 at the time of the shooting.

Echoing earlier challenges to the auto-decline law, Kenjar’s defense attorneys argue that automatically trying him in adult court violates the due process clause of the state constitution. They’ve asked the court to transfer Kenjar to juvenile court for an “individualized” hearing to decide whether he was developmentally mature enough at the time of his alleged crime to be tried as an adult. Though Kenjar is now legally an adult, the state legislature voted last year to extend juvenile courts’ jurisdiction to include defendants between the ages of 18 and 25 facing charges for crimes committed while underage.

Kenjar’s defense also added new pillars to existing arguments against the auto-decline statute. On Friday, defense attorney Emily Gause argued that automatically trying juvenile defendants in adult court also violates the state constitution’s equal protections clause and prohibition of cruel and unusual punishment.

Both the state supreme court and recent developments in brain science have repeatedly underscored that “children are categorically less culpable for every crime,” Gause told the court, so automatically tracking some juvenile defendants into adult court is unfair. “Also, there are no meaningful grounds to draw a line at 16,” she added. Gause also argued that a trial in adult court is a form of punishment in and of itself, particularly because privacy protections for defendants in adult court are less robust than the protections provided by juvenile courts.

The auto-decline law dates back to the 1990s, when widespread fears about a juvenile crime wave spurred state legislatures across the country to pass harsh sentencing laws targeting teenagers. But more recent developments in adolescent brain science—specifically, a growing body of evidence that impulse control and other crucial interpersonal skills aren’t well-developed in adolescents and young adults—have prompted courts and legislatures across the United States to backtrack. In 2012, for instance, the US Supreme Court ruled that mandatory life-without-parole sentences are unconstitutional for defendants younger than 18. “[A]n offender’s age is relevant to the Eighth Amendment,” Justice Elena Kagan wrote in the court’s majority decision, “and criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.’”

“If there is no constitutional right to juvenile court, then there’s no constitutional right to be transferred to that court.”—Prosecuting attorney Jim Whisman

The prosecution argued that Washington’s sentencing guidelines—including the auto-decline statute—are the responsibility of the legislature, not the courts. And while the court could overrule the legislature if the law was clearly unconstitutional, prosecuting attorney Jim Whisman noted on Friday that the state constitution doesn’t guarantee anyone the right to a trial in juvenile court. “If there is no constitutional right to juvenile court,” he said, “then there’s no constitutional right to be transferred to that court.”

Whisman also pointed to a 2017 decision by the state’s supreme court requiring judges to consider a defendant’s age before sentencing, arguing that the decision offers juvenile defendants a form of protection from excessive sentences in adult court. King County Prosecutor Dan Satterberg attempted to challenge the same decision, known as Washington v. Houston-Sconiers, before the US Supreme Court in September 2020; the court declined to hear Satterberg’s appeal. Continue reading “King County Judge Rules Juvenile Sentencing Law Constitutional, Sparking Possible Appeal”

King County Superior Court Wants to Make Virtual Jury Selection—and Trials—Permanent

 

King County Courthouse
Image via King County.

By Paul Kiefer

The instructions that accompany a jury summons in King County changed dramatically when the COVID-19 pandemic upended court operations: instead of directions to a courthouse, jurors now receive an email from a bailiff with a video link. Now, King County Superior Court judges say that the switch to virtual jury selection—originally adopted as an emergency measure—is too useful to abandon once the pandemic winds down.

In a bid to make the change permanent, King County Superior Court staff are petitioning the Washington State Supreme Court to continue using video calls for jury selections once the state’s emergency order expires.

For Judge Sean O’Donnell, the shift to virtual jury selections is a matter of efficiency. Before the pandemic, he said, the response rate to jury summons was abysmal; as a consequence, the court had to delay trials until it had enough qualified jurors to fill a bench. “When you got a summons, you had to make the trek to a courthouse, wait in a hallway in case your name was called, file into a courtroom and go through questioning—it could take a full day,” he said.

Online jury selection, he added, only takes an hour. “I think for judiciary, this has to be the future,” O’Donnell said. “The convenience factor is huge. The physical safety benefits, in comparison coming down to the courthouse on Third Avenue with all the chaos nearby, are huge. If we can just reduce the footprint of citizens who have to physically come down, we can make performing your civic duty more attainable for more people.”

The virtual hearing, O’Donnell added, also gives attorneys more time to question prospective jurors. “We’ve been able to increase the quantity of information we collect from jurors, and that helps attorneys make calls about who is or is not appropriate to serve on a jury,” he said.

But for some attorneys navigating virtual jury selection, the new setup isn’t perfect. “I’ve found it a bit more difficult to get people to open up,” said Brent Hart, a Seattle defense attorney who recently took part in a virtual jury selection. “For some reason, it seems like it’s harder to get people to unmute than it is to get them to raise their hand in a courtroom.”

And while Hart agrees that the virtual jury selection process can streamline court proceedings, he added that attorneys have a harder time reading potential jurors’ behavior through a computer screen. “If someone’s doing legal research, looking up stuff about a case that they shouldn’t be looking up, we can’t tell,” he said. “We don’t actually have eyes on them—only the illusion of eyes on them.”

But both O’Donnell and Hart agreed that a more efficient jury selection process will play an important role in working through the superior court’s looming backlog of criminal cases. “We have thousands and thousands of criminal cases—some very serious—that have stacked up during the pandemic,” O’Donnell said, “and being able to select juries faster has helped.”

For now, jurors selected for criminal trials usually need to attend court hearings in person, but the superior court is also petitioning the state to make virtual civil trials a permanent feature of King County’s judicial system. The supreme court won’t rule on the two requests until next year.

Public Safety Fizz: Council Takes Up SPD Budget, Captain Demoted Over Protest Role Sues, and More

1. The Seattle City Council’s budget committee heard presentations on Thursday about Mayor Jenny Durkan’s proposed 2022 public safety budget, which would increase the Seattle Police Department budget by $2.8 million and add 125 new officers, for a net gain, after projected attrition, of 35 officers compared to current staffing levels.

The meeting helped clarify the mayor’s decision to move the nascent “Triage Team” unit (previously, and briefly, known as Triage One) to the Seattle Fire Department instead of the Community Safety and Communications Center (CSCC). According to CSCC Director Chris Lombard, his fledgling department is underprepared to take on the new crisis units. “It would take us at least six months to get the teams off the ground,” he said, “and I recognize that there’s an urgent need to get this program running sooner than that.” 

In her presentation, SPD budget director Angela Socci said most of SPD’s proposed budget increase would pay for paid family leave and a standard annual wage increase. The rest of SPD’s spending plans come from re-shuffling the department’s existing budget. Even with 125 new hires and slower attrition, Socci predicted that the department may have as much as $19 million in unspent salaries next year to repurpose.

After a brief report on a plan to add staff to the City Attorney’s Office to expand a pre-filing diversion program for young adults, Councilmember Andrew Lewis floated the possibility that the council could make the program a “permanent fixture” of the office instead of “an elective program”—alluding to the impending change in leadership at the City Attorney’s Office, which could place the future of the office’s pre-filing diversion program in question.

2. Three people in custody at the King County Detention Center in downtown Seattle lost consciousness on Wednesday after ingesting a still-unidentified substance. The King County Department of Adult and Juvenile Detention (DAJD) would not confirm on Thursday whether the three people had suffered overdoses, but department spokesman Noah Haglund noted that jail staff and medics were able to resuscitate all three before transporting them to Harborview Medical Center along with two other people who had ingested the same substance. All five people were housed in the same section of the jail; after the incident, guards emptied the nearby cells and moved inmates to a different unit.

3. On Thursday, Gov. Jay Inslee announced that the state’s Department of Corrections (DOC) will no longer use disciplinary segregation—solitary confinement as a form of punishment—in any of the agency’s jails across the state.

The DOC made the change after reviewing data collected in Washington prisons between 2019 and 2020 that showed that more than half of the 2,500 people subjected to disciplinary segregation were punished for non-violent infractions. Additionally, the data showed that most people held in disciplinary segregation had already waited in administrative segregation—another type of solitary confinement, ostensibly for the safety of the incarcerated person—while awaiting a disciplinary hearing. The average stay in disciplinary segregation during the one-year study period ranged from 11 days for non-violent infractions to 16 days for violent ones.

According to a news release issued on Thursday afternoon, the DOC officially ended its use of disciplinary segregation on September 16.

4. A Seattle Police Department commander demoted in May filed a lawsuit against the city on Wednesday alleging that Interim SPD Chief Adrian Diaz unfairly blamed him for the department’s handling of a protest on Capitol Hill on June 1, 2020. Continue reading “Public Safety Fizz: Council Takes Up SPD Budget, Captain Demoted Over Protest Role Sues, and More”

Report Criticizes Municipal Court “Records Checks” That Can Result In Perpetual Probation

By Paul Kiefer

At any given time, the Seattle Municipal Court is keeping tabs on the criminal records of hundreds of people who successfully passed out of the court’s probation program, effectively prolonging probation for more than a thousand people in the past five years, according to a newly released report by the city auditor’s office. The court routinely monitors former probationers to see if they have any new criminal charges; if they do, they can be put back on probation.

The report also outlines a pattern of missteps by court administrators and probation staff that may have exacerbated racial disparities and undercut the court’s efforts to phase out burdensome fees that fall most heavily on homeless defendants—and makes some suggestions for correcting course.

According to the auditor’s office, the court didn’t monitor the impacts of these “records checks” on people released from probation because it didn’t consider the monitoring part of the probation system. While the auditor’s office only recommended that the court begin tracking records checks as part of the probation system, municipal court spokesman Gary Ireland wrote in a response to the report on Thursday that the court has already discontinued records checks when they aren’t legally required—since the beginning of the year, the court has stopped monitoring 1,640 people.

As is the case across Seattle’s criminal legal system, the 741 people currently on probation through the municipal court are disproportionately Black, Native American, Pacific Islander, Latinx, low-income, and/or homeless. As recently as 2019, nearly 70 percent of people on probation in Seattle qualified for a public defender; Black and Native American people are overrepresented by a factor of three or more compared to the demographics of the city as a whole.

The auditor’s staff used outside sources to determine the extent of racial disparities in the probation system. Historically, the report found, the court has relied on incomplete racial, ethnic and gender information provided by the Seattle Police Department, not the probationers themselves. Without reliable demographic information about the people on probation, the auditor’s team wrote, the municipal court couldn’t keep track of the disparities in its probation programs.

Those disparities extend beyond the makeup of the probation programs themselves. For instance, the court assigns varying levels of surveillance—ranging from the most intrusive, which involves in-person check-ins, to the least intrusive, which involves no contact with probation staff—based on a “risk assessment,” which could include judgments about a probationer’s housing stability, employment, or educational background. The court assigned Black and Native American probationers to the most invasive forms of monitoring more often than their white counterparts.

The auditor’s office also found that court staff were less likely to pursue an early end to probation for Black people than for white people.

The court started making adjustments ahead of the report’s release. According to Ireland, the court has begun collecting self-reported racial, ethnic and gender information from probationers, has eliminated all probation-related fees, and a new court policy requires probation counselors to close a case once a person has reached every benchmark set by the court.

Court Approves City Attorney’s Motion to Clear Outstanding Prostitution Warrants

Seattle Municipal Courthouse
Seattle Municipal Court image via SMC Facebook page

By Paul Kiefer

On Thursday morning, a Seattle Municipal Court Judge approved a motion by Seattle City Attorney Pete Holmes to quash all outstanding warrants for misdemeanor prostitution, including some issued well over a decade ago.

The motion, which Holmes’ office filed last Friday, requested that the court dismiss 37 warrants involving 34 people arrested for selling sex between 2001 and 2019; the office also asked the court to dismiss cases or vacate charges against the individuals named in the warrants, on the condition that a future city attorney cannot refile the cases at a later date. The warrants represent less than one percent of the outstanding warrants issued by the municipal court.

The City Attorney’s Office hasn’t prosecuted anyone for selling sex since 2019, when the Seattle Police Department ramped up arrests and sting operations targeting both sex workers and buyers in response to public pressure driven by an increase in the presence of sex workers along Aurora Avenue North—an uptick partially driven by the federal shutdown of Backpage, a website sex workers used to find clients. Because Seattle’s pre-arrest diversion programs were stretched to capacity, officers booked dozens of sex workers into the King County jail; the City Attorney’s Office opted not to file charges against most of them, though eight of the warrants quashed on Thursday stemmed from charges that the office filed in 2019.

Lisa Daugaard, the executive director of the Public Defender Association and co-founder of Let Everyone Advance with Dignity (LEAD), previously known as Law Enforcement Assisted Diversion, told PubliCola on Thursday that public criticism of SPD’s arrests in 2019 likely prompted the department to reverse course. The change in police department leadership (from Carmen Best to interim chief Adrian Diaz), the COVID-19 pandemic, and SPD’s ongoing staffing challenges also played key roles in curtailing low-level arrests in general, Daugaard added. SPD officers have made 55 prostitution arrests this year, compared to 78 in all of 2020 and 175 in 2019.

The City Attorney’s Office has also seen a sharp decline in the number of sex buyers the police department refers to the office for charging. Because of a delay between arrests and filings, the office received 88 referrals in the first two months of 2020—sex buyers arrested during SPD sting operations the previous year—but only a single case between early March and the end of the year. In 2021, SPD has only referred four sex buyers to the office for charging. SPD has also made fewer arrests of sex buyers in the past two years: seven in 2021 and nine in 2020, compared to 76 in 2019.

The City Attorney’s Office did not attempt to contact the people subject to outstanding prostitution warrants before filing the motion; Holmes spokesman Dan Nolte told PubliCola on Wednesday that his office planned to wait until the court accepted their motion before reaching out.

City Finally Sends Team to Bitter Lake Encampment, City Attorney Candidate Has Scant Court Record, 37th LD Endorses

Anything Helps' Mike Mathias takes questions at a recent public meeting at Broadview Thomson K-8 School.
Anything Helps’ Mike Mathias takes questions at a recent public meeting at Broadview Thomson K-8 School.

1. The Human Services Department’s HOPE Team, a group that coordinates outreach by social-services groups like REACH, has begun showing up at a controversial encampment near Broadview Thomson K-8 School after months of deliberate inaction from the city—a sign, advocates and encampment residents fear, that the city is preparing to sweep the area.

For months, Mayor Jenny Durkan has maintained that the city bears no responsibility for helping the dozens of people living at the encampment, which is on school district-owned property along the shore of Bitter Lake in North Seattle. Earlier this year, Durkan said the school district should establish its own human services system to provide services and housing for the people living there, using district “reserves” to pay for it.

Once the district missed its self-imposed deadline of September 1 to move people off the property, however, the city changed its tune, sending HOPE Team members into the encampment to “do an assessment of the needs of the current residents of the encampment and identify the resources needed to permanently address the encampment,” according to HSD spokesman Kevin Mundt.

Mike Mathias, an outreach worker who has been on site at the encampment with his organization, Anything Helps, for months, says the sudden presence of city outreach workers has “freaked out” a lot of people at the encampment, leading to more disruptive behavior and residents giving out false information to the new, unfamiliar outreach staff. “Our whole goal was to be on site so that if outreach teams wanted to collaborate, they could come up or call us and we could give them warm introductions to people,” Mathias said. “Instead, the city keeps sending people without any notice, and it’s frightening for people.”

The city is reportedly about to stop referring new clients to the two hotels it has leased through next year, leaving rooms vacant as people leave, so the only options available to encampment residents are existing shelters and tiny house villages, which fill up quickly.

Mathias says the city has told him flatly that encampment residents will have to move into congregate shelters, rather than hotel rooms, while they wait for housing resources to come through. (Mathias is trying to sign most of the residents up for the Housing and Essential Needs program, subsidized housing for low-income people with disabilities, but it’s a slow process.) “Our priority [now] is ensuring that people can stay together and that they don’t go to congregate settings,” Mathias said. “That’s just not going to happen not here.”

Ideally, Mathias said, the city would open rooms in the two hotels it has reserved for people referred by the HOPE Team for residents of the Bitter Lake encampment. Originally, the hotels were supposed to serve as temporary housing for unsheltered people who would be moved quickly into permanent spots using “rapid rehousing” subsidies, so that each room could shelter multiple people over the life of the hotel contracts, which are supposed to start ramping down early next year.

However, not only did that optimistic scenario fall flat, the city currently plans to stop referring new clients to the hotels as soon as mid-October, PubliCola has learned, leaving rooms vacant as people leave. (HSD spokesman Kevin Mundt told PubliCola after this article was posted that the city has not picked a specific date to stop taking new referrals to the hotels.) This would mean that the only options available to encampment residents are existing shelters, which many people experiencing homelessness avoid, and tiny house villages, which fill up quickly. The contracts the city has signed with hotel service providers say that they will begin decommissioning the hotels at the end of this year.

Mundt, from HSD, says it is not true that the city has decided to stop referring people to its two hotels sooner than stipulated in the contract. If such a decision was made informally, the city could change its mind without requiring changes to the contract itself.

According to Mundt, the city now plans to offer encampment residents “resources” including “diversion, rental assistance, new and existing shelter, and permanent housing from combined resources of [Seattle Public Schools], City, and County.” In an internal presentation about the encampment, the city said it hopes to have everyone off the site by October 14.

2. Ann Davison, who ran for lieutenant governor last year on the Republican ticket (her platform: Abolish the office of the lieutenant governor), has touted her experience as an attorney and arbitrator working on “civil litigation, immigration, sports, contracts and business transactions,” according to her campaign website. But a review of court records in King and Snohomish Counties suggests Davison has represented clients in the Puget Sound region in just a handful of court cases, none of them after 2010.

Specifically, Davison (also known as Ann Sattler) has represented clients in five King County cases—four cases involving people’s wills, one business dispute that ended in a settlement, and one case involving unpaid commercial rent. Sattler’s most recent case in King County was in 2010.

The city attorney’s office does not primarily prosecute crimes (the sort of major and violent crimes Davison has talked about in her campaign literature are the province of the King County Prosecutor, not the city attorney), but it is constantly involved in litigation—defending legislation the city has passed, defending the city and city officials against lawsuits by outside parties, and enforcing civil laws like environmental regulations. Although the only strict requirement to run as city attorney is being an attorney, a lack of courtroom experience could be a serious impediment for doing the day-to-day work of running the office’s civil and criminal divisions.

3. At the end of a nearly five-hour online meeting Monday night, the 37th District Democrats narrowly failed to reach consensus on an endorsement for mayor, with 59 percent supporting City Councilmember Lorena González in two rounds of voting, just shy of the required 60 percent. The group ultimately voted for a “no endorsement” position. Notably, Bruce Harrell—who lives in the 37th and represented Southeast Seattle on the council—failed to top 40 percent in either endorsement vote, despite previous endorsements by the group. Continue reading “City Finally Sends Team to Bitter Lake Encampment, City Attorney Candidate Has Scant Court Record, 37th LD Endorses”

Durkan Won’t Sign Crowd Control Weapons Bill, Raises Specter of Court Challenge

By Paul Kiefer

Seattle Mayor Jenny Durkan refused to sign the city council’s recent ordinance restricting the Seattle Police Department’s use of crowd control weapons, allowing the bill to become law while the city awaits a federal district court’s go-ahead to implement changes to SPD’s tactics and arsenal.

In a letter to the council during their August recess, Durkan heaped criticism on the bill and the year-long process that produced it, calling it a “kneejerk reaction” to last year’s protests that overstepped the council’s authority, undercut SPD policy change procedures enshrined in the city’s agreement with the US Department of Justice, and made promises that the city can’t keep.

Durkan has routinely allowed legislation to take effect without her signature, though not always because of a difference of opinion: Certain land use ordinances, for instance, don’t necessarily go to the mayor for a signature before becoming law. The mayor can also return legislation to the council unsigned when she has concerns about a bill’s impact or legality but believes that the council would vote to override a veto.

The council’s bill, which passed unanimously in early August, bans officers from using “disorientation devices” like blast balls or ultrasonic cannons under any circumstances, with the exception of flash-bang grenades, which would still be available to SWAT teams. It also allows officers to use pepper spray and tear gas to move crowds of protesters, but only in response to a “violent public disturbance”—a legal term to describe violence committed by a group of twelve or more people. The legislation is supposed to replace a June 2020 ordinance that would have prohibited police officers from using tear gas, pepper spray, blast balls and other “less-lethal” weapons for crowd control.

In her letter, Durkan criticized the council for passing a law that can’t go into effect without the court’s approval—an arrangement, she wrote, of “doubtful legality.”

Shortly after the 2020 ordinance passed, US District Court Judge James Robart—who oversees reforms to SPD as part of an ongoing agreement between the US Department of Justice and the city of Seattle known as the consent decree—issued a temporary restraining order that stopped it from taking effect. The order came in response to a warning from the US Department of Justice that any law preventing officers from using “less-lethal” weapons against crowds might lead officers to use more extreme forms of force.

When reworking the crowd control weapons bill to respond to the DOJ’s criticism, council public safety chair Lisa Herbold sought feedback from both the DOJ and the federal court-appointed monitor—the court’s eyes and ears in police reform matters. During a hearing on the status of Seattle’s consent decree on August 10, neither Robart nor representatives from the DOJ or monitoring team raised new concerns about the bill.

In a statement to PubliCola, Herbold’s office said that the new bill was “developed in compliance with, and respect for, the Consent Decree process.” Herbold also noted that she met informally with the court-appointed monitor and DOJ while re-working the bill and made adjustments based on their suggestions.

The bill doesn’t directly rewrite SPD’s policy manual. Instead, the department has 60 days from the bill’s passage to draft new crowd-control weapons policies that reflect the new law; the federal court will then consider whether those policy changes should move forward. If Robart concludes that SPD should not change its crowd control weapons policies, the law is effectively dead in the water.

But while Durkan assumes that the DOJ and federal court will take issue with the ordinance, that outcome isn’t a given. SPD will bring its draft policy revisions before the court in mid-October. If the DOJ believes the changes would violate the terms of the consent decree, it can ask the court to enjoin the city from implementing the new policies.

In her letter, Durkan criticized the council for passing a law that can’t go into effect without the court’s approval—an arrangement, she wrote, of “doubtful legality.” And the requirement that SPD rewrite policies that reflect the new law, she wrote, places the department “in the unfair and untenable position of proposing, and defending, to the DOJ and the Court, now-codified provisions of City law that it cannot support as best practice.” The Seattle City Attorney’s office reviewed and approved the legality of the bill.

But while Durkan assumes that the DOJ and federal court will take issue with the ordinance, that outcome isn’t a given. SPD will bring its draft policy revisions before the court in mid-October. If the DOJ believes the changes would violate the terms of the consent decree, it can ask the court to enjoin the city from implementing the new policies.

In Durkan’s view, the ordinance is unlikely to survive a court challenge. Continue reading “Durkan Won’t Sign Crowd Control Weapons Bill, Raises Specter of Court Challenge”

Compassion Seattle Appeals Ruling Striking Down Ballot Measure on Homelessness

By Erica C. Barnett

Defying expectations, Compassion Seattle has appealed last week’s King County Superior Court ruling that their proposed ballot initiative, Charter Amendment 29, was beyond the scope of the initiative process. The state Court of Appeals is expected to hear the case on Friday. If the appeals court decided to stay the lower court’s ruling, the measure could still make it onto the November ballot, although it would cause a certain amount of chaos at King County Elections, which is currently putting ballots together in multiple languages for more than 400 unique jurisdictions.

Last week, Judge Catherine Shaffer ruled that the charter amendment, which would require the city to fund 2,000 shelter beds or housing units next year using existing resources, violated state law giving local governments, not local voters, the authority to write budgets and adopt policies on land use and homelessness. To remove this authority from local jurisdictions, Shaffer said, would require a vote by the people of the entire state.”You can’t amend a city charter to conflict with state law,” Shaffer said, because “that would be local folks seeking to overturn the will of the state population as expressed through our state representatives in legislation. And that’s not how it works.”

Attorney Knoll Lowney said he’s not surprised that Compassion Seattle “felt the desire to appeal, but I’m surprised that they appealed without coming up with any appellate arguments.”

Compassion Seattle, the campaign for the charter amendment, said last week that they didn’t believe the appeals court could resolve an appeal in time for the measure to appear on the November ballot. (Charter amendments can only be on the ballot during local general elections, which come once every two years). In a statement Tuesday, the campaign said that Judge Shaffer’s ruling “caused an outpouring of support over the weekend from supporters who want us to press on with an appeal. We decided that we must take this action to represent the interests of tens of thousands of voters who signed petitions to put this amendment on the ballot.”

Compassion Seattle has raised more than a million dollars, almost all of it from large real estate developers and commercial property owners in downtown Seattle.

Knoll Lowney, the attorney for the ACLU of Washington, Transit Riders Union, and the Seattle/King County Coalition on Homelessness, who sued to stop the measure, said he’s not surprised that Compassion Seattle “felt the desire to appeal, but I’m surprised that they appealed without coming up with any appellate arguments.” In their emergency motion requesting a stay, Compassion Seattle’s attorneys reiterate many of the same arguments they made in the original case— the same arguments Judge Shaffer rejected. “The appellate court is not going to resurrect this measure—I don’t see that happening,” Lowney said.

“We decided that we must take this action to represent the interests of tens of thousands of voters who signed petitions to put this amendment on the ballot.”—Compassion Seattle statement

If the appeals court does allow the charter amendment to move forward, King County Elections will have to scramble. Elections spokeswoman Kendall LeVan Hodson says the elections office is already building ballots in four languages for more than 430 sub-jurisdictions within King County, and any delay or late addition to local ballots makes it harder to hit two September deadlines to print ballots and mail them to service members overseas.

“Obviously, will comply with whatever the court directs us to do,” she said, but it might take some doing; for example, the elections office could create two different potential ballots, one with Charter Amendment 29 and one without, for all its jurisdictions within Seattle. “We’ll make something work” if it comes to that, she said.

Judge Strikes Homelessness Charter Amendment from Ballot; King County Equity Now Gets New City Contract

1. Late Friday afternoon, King County Superior Court Judge Christine Shaffer struck Charter Amendment 29, the “Compassion Seattle” homelessness initiative, from the November ballot, agreeing with opponents of the measure that it went beyond the scope of the initiative process. Specifically, Shaffer said, the amendment attempted to overrule the city of Seattle’s authority to determine its own homelessness and land-use policies—authority granted to local jurisdictions by the state legislature that cannot, she said, be overturned by an initiative at the local level.

The amendment, if adopted, would require the city council to spend a minimum of 12 percent of its general fund revenues on homelessness, dictating further that in the first year, that money would have to pay for 2,000 new units of “emergency housing” (shelter). It would also change local land use and zoning laws by requiring the city to waive code requirements, regulations, and fees to “urgently site” the projects it would mandate.

The groups that sued to remove the proposal from the ballot, including the Seattle/King County Coalition on Homelessness and the ACLU of Washington, argued that the voters of Seattle lack the authority to overturn these sort of legislative decisions, and that the amendment would effectively undo the agreement the city and county made to create the new King County Regional Homelessness Authority. Judge Shaffer agreed.

“There’s a direct effort in Charter Amendment 29 to control the city’s budgetary authority and that is not disputed in this record, any more than the efforts to control zoning and land use is disputed,” Shaffer said. “These are measures specifically required by Charter Amendment 29, and they both are outside the scope of a proper initiative in a way that is not even close. There are so many prior Supreme Court cases on both those topics.”

In arguing for the amendment, Compassion Seattle’s attorney Tom Ahearne said the court should let the proposal move forward and give opponents a chance to challenge it if and when it’s adopted. “When thousands of voters have signed a petition, opponents should not be able to hold the people’s measure hostage, merely because it opposes the policy or raises questions about the measure’s validity,” he said. “Instead of rushing to suppress the vote, this court should allow citizens to consider this charter amendment in November, and if citizens adopt it, allow the plaintiffs’ claims to be fully litigated and resolved through the trial court and appellate process.”

Judge Shaffer said she personally liked the solutions proposed in the amendment, and might vote for it if it was on the ballot. “But as judge,” she continued, “it cannot stand, and I am required to strike it from the ballot.”

“Judge Shaffer’s ruling affirms well-established limits to the local initiative process and recognizes the importance of the proper functioning of our democratic systems,” ACLU of Washington staff attorney Breanne Schuster said in a statement. “We are pleased that CA 29 will not stand as an impediment to solutions that meaningfully address our housing crisis and do not punish people for trying to meet their basic life-sustaining needs like shelter, sleep, and food.”

In a statement issued after the ruling, the Compassion Seattle campaign said that while they were “gratified that Judge Shaffer said that she would have voted for Charter Amendment 29 if given that option, we strongly disagree with her ruling today denying Seattle voters the opportunity to have their voices heard on the number one issue facing our city.” Because an appeal could not play out before the November election, the campaign continued, “We can still make our voices heard in the elections for Mayor, City Council, and City Attorney. In each race, the difference between the candidates is defined by who supports what the Charter Amendment was attempting to accomplish and who does not.”

2. Last month, Seattle Mayor Jenny Durkan and the city’s Human Services Department (HSD) announced that 33 community organizations would share the $10.4 million set aside to invest in “community safety capacity building,” one of many simultaneous efforts to support non-law enforcement approaches to public safety sparked by last summer’s protests.

One of the groups that will receive funds is King County Equity Now (KCEN), the coalition-turned-nonprofit that led the push for a city-wide participatory budgeting program—and, when the council supported their plan, took the reins of the Black Brilliance Research Project, intended to lay the foundations for public-safety-focused participatory budgeting in Seattle. KCEN’s brief tenure as a city sub-contractor ended ignominiously when the project’s head researchers left the organization because of alleged financial mismanagement, as well as alleged mistreatment of queer researchers and researchers born outside Seattle. The group lost their city subcontract, and the research project finished weeks later without KCEN.

But after several months out of the spotlight, KCEN is making its quiet return to the world of city contracting. With the new grant, KCEN says it will partner with “incredible local Black-led housing service providers, like First Place Schools [a charter school provider] and Monica’s Place,” a housing development in the Central District, to conduct another research project. KCEN initially asked for $789,391; however, HSD capped grants at $585,410 because of the volume of applications. The group will have a new fiscal sponsor—Parents for Student Success, a nonprofit cofounded by King County Equity Now board chair Dawn Mason.

This second project will include “an inventory of Black community resources, hubs, places to tap in, needs, current and potential Black partnerships, current policies successes, failures, and gaps to address anti-gentrification and spatial community toward building holistic support,” according to KCEN’s response to the city’s request for proposals. The core question that would guide KCEN’s proposed research—”what does community safety and wellness look like for you in place?”—is nearly identical to the central question of the Black Brilliance Research Project. The results of the research, they wrote in their proposal, would help them and their partners create “scalable, replicable anti-gentrification models.”

The organization asked for funds to pay existing staff, to hire more people to work on the new research project, and to pay for consultants, office space, and supplies.

Since the organization’s unwilling exit from the Black Brilliance Research Project, KCEN has focused on anti-gentrification projects; the group is an offshoot of the Africatown Community Land Trust, which focuses largely on land acquisition in the Central District.

During the Black Brilliance Research Project, measuring the success of multiple wide-ranging research teams became a key challenge for KCEN. In their latest grant application, KCEN says they will track their project’s success by assessing the number and “effectiveness” of their community meetings and workshops, the “thoroughness” of their partnerships and the “quality and reach of community-led research,” among other metrics.

In Victory for Families of People Killed by Police, State Supreme Court Allows Inquest Reforms to Proceed

A portrait of Charleena Lyles on Capitol Hill in June 2020 (Flickr: Derek Simeone; reproduced under a Creative Commons license)

By Paul Kiefer

The Washington State Supreme Court sided with the families of people killed by police officers in a unanimous decision Thursday, restoring reforms to King County’s inquest process that have stalled since 2018 under pressure from law enforcement agencies.

The ruling brings a close to a lawsuit filed against King County Executive Dow Constantine last year by the families of Damarius Butts, Isaiah Obet, Charleena Lyles and seven other people killed by law enforcement officers in the county in 2017. It also opens the door for inquests—a type of fact-finding hearing in which a jury reviews the details of a death and decides who is responsible—to resume in King County after a four-year hiatus. 

Tiffany Rogers, Charleena Lyles’s sister, told PubliCola the four-year legal battle was exhausting for her and other family members of people killed by police. “It was painful, and it was painful for a long time, but we’re doing this so that other families don’t have to,” she said.

King County first overhauled its inquest process in 2018, when, under pressure from police accountability groups, Constantine implemented a slate of changes intended to improve transparency and give victims’ families a say in what information inquest juries hear. The changes allowed attorneys representing victims’ families to take part in inquest hearings for the first time and empowered juries to determine not only what happened in a police shooting, but whether the officers involved complied with their department’s policies and training.

In the ruling, the court concluded that all of the reforms supported by the families, including the changes introduced in 2018 and the reforms the families sought in their lawsuit, can move forward. In fact, the court noted that state law not only allows, but requires, inquest juries to consider whether an officer committed a crime.

Before announcing the reforms, Constantine had placed a hold on three pending inquests into the deaths of Butts, Obet, and Lyles. But when reforms took effect and the county began preparing to start the three inquests, a problem emerged: Under the executive order, the officers’ attorneys couldn’t participate if the officers themselves refused to testify. When the officers involved in Butts’ death declined to testify, the inquest couldn’t move forward.

The families filed a lawsuit in 2020, hoping to fill the gap in Constantine’s reforms by compelling the officers to testify. The families also called for another change to inquest procedures: allowing jurors to consider whether the officers involved in a shooting broke the law. “The inquest can be a useful tool to investigate police killings of community members, but the panel must answer whether the officer committed a crime for the process to have any teeth,” said Amy Parker, an attorney with King County’s Department of Public Defense who represented Obet’s family.

Meanwhile, several law enforcement agencies—the Seattle Police Department, the King County Sheriff’s Office and municipal police departments in Auburn, Renton, Kent and Federal Way—also sued Constantine, aiming to invalidate all of the recent changes to the inquest process. According to the agencies’ attorneys, the inquest reforms already underway in King County would put police officers at a serious disadvantage when facing a jury. The lawsuits forced the county to suspend the new reforms and put a stay on any new or ongoing inquests.

When the case came before King County Superior Court Judge Julie Spector in July 2020, the law enforcement agencies prevailed; Spector ruled that Constantine’s reforms threatened officers’ rights to counsel and struck down most of the changes to the inquest process. By that point, SPD had backed out of the lawsuit under pressure from members of the city council and the public, leaving the other agencies to carry on the suit.

The state supreme court entirely reversed the course of the case on Thursday, dismissing Judge Spector’s ruling as “wrong as a matter of law.” Continue reading “In Victory for Families of People Killed by Police, State Supreme Court Allows Inquest Reforms to Proceed”