In a stunning ruling today that raises all sorts of separation-of-powers issues, U.S. District Judge James Robart inserted himself into the middle of the process of drafting and adopting legislation establishing a system of accountability for the Seattle Police Department.
Robart oversees the 2012 consent decree between the Justice Department and the City of Seattle that lays out the steps SPD must take to curb over-policing, biased policing practices, and excessive use of force. He has come under fire for appearing to unnecessarily slow down the process of adopting reforms.
This past spring, various parties including the City of Seattle, US Justice Department, and the Community Police Commission, created a set of recommendations to be considered in legislation, and asked Robart to give the green-light for the legislative process to begin. They proposed that (in typical form) the executive branch would submit a draft bill to the City Council, which would consider it, hold hearings, amend it, and hopefully approve a final version. At that point, it would be submitted to Robart for his approval. This generally fits the traditional model and separation of powers, in that the City Council as the legislative branch writes laws, and the judicial branch interprets them.
But Robart, in today’s ruling, threw out that model. Claiming that he didn’t want to waste the Council’s time by depriving it of his critical guidance on which elements of the proposed legislation are in conflict with the consent decree, he laid out a new process that inserts himself in between the executive branch and the City Council. His ruling requires the executive branch to draft the legislation, then submit it to him for his review. Robart will issue an order within 90 days listing anything that conflicts with either the terms or purpose of the consent decree, and this process will repeat until he approves of the draft. At that point the draft can finally be submitted to the City Council for consideration. If the Council makes substantive amendments, then after it is adopted the legislation will need to go back to Robart for another review.
While judicial review of enacted laws is the norm, it is bizarre, to say the least, for a judge to get involved in the legislative process at the city level (or at any level) — telling legislators in advance what they can and cannot write into law. I am not familiar enough with the role of judges in overseeing consent decrees to know whether there is precedent for them to insert themselves into the legislative process, but I will try to find out.
The CPC meets tomorrow morning, in advance of a hearing in front of Robart scheduled for next Monday. Expect a lot of frustration to be expressed, as this will add months to the already-protracted process of getting an accountability system in place. The chances of getting it done before the end of this year is low, and depending on how quickly Robart responds to drafts (and how many iterations he forces the executive branch to do) it could easily take until fall 2017 — or later — to get an ordinance adopted by the City Council and approved all around.