The various court cases the city is involved in continue to move forward. By the way, I keep an archive of the history and key documents in the cases here.
Today: Fort Lawton, Che Taylor, and the recall of Council member Sawant.
You may recall that about a year ago the court ordered plaintiff Elizabeth Campbell to issue an amended complaint adding the U.S. Army to the case, since the Army is still the legal owner of the Fort Lawton Reserve Center. Campbell and her lawyers dragged their feet for months, and then made several procedural mistakes, but the Army was finally properly added at the end of the summer.
Yesterday the Army filed a motion to be dismissed from the case. It cites three reasons:
- The federal government has sovereign immunity from lawsuits, unless it agrees to be sued (usually through an act of Congress). In this case Campbell has not cited any authority granting her the right to sue.
- The complaint does not allege any wrong that the Army has done for which it would owe her relief.
- The complaint does not claim any concrete injury that she has suffered that would give her standing to sue.
The first is a curious catch-22: the law requires the Army to be a party to the suit, and yet there may not be a case against the Army. If it is dismissed, it’s unclear whether the lawsuit can even proceed against the other defendants (the City of Seattle and Seattle Public Schools).
The latter two — especially the third — undercut her case as a whole, and not just as it applies to the Army.
In a status update over the summer the City said that it intended to file its own motion to dismiss the case by October 8, but as of this writing it has not done so. One would assume that it would be making similar arguments.
Campbell, who now represents herself as she has been unable to obtain a new lawyer to represent her, will have a chance to respond to the motion before the judge rules.
Che Taylor Wrongful Death lawsuit
When last we looked in on this case, the two police officers had appealed the trial court’s ruling denying them (at least for the moment) qualified immunity. While the appeal is pending, they have asked for proceedings in the case to be stayed so that they don’t prepare for a trial only to have an appeals court rule that they do, in fact, have qualified immunity and therefore there is no need for the trial. The plaintiffs responded in opposition to the motion to stay proceedings, and further argued that the judge should find that the defendants’ appeal is “frivolous” based upon the facts in the case.
Yesterday the defendants filed their reply, arguing that by definition their appeal is not frivolous because it raises a point of law, not of facts. The questions at hand are whether the two officers had probable cause to arrest Taylor at the time they tried to take him into custody, and whether they were reasonable in their belief that Taylor was armed at the time.
Half an hour before the incident, one of the two officers saw Taylor leaving an apartment building carrying a gun — a felony offense for him. Then Taylor left the scene in a car, and when he returned the officers tried to arrest him. At that time they didn’t observe Taylor carrying a gun (though they also didn’t observe that he wasn’t carrying one — their view was partially obscured). So the questions of law are whether the probable cause to arrest Taylor still existed from thirty minutes earlier, and whether they could reasonably presume that he still possessed the gun. The trial court judge ruled that the probable cause had gone “stale.” The officers are challenging that ruling.
This case has dragged on for years already, and yet it is nearly ready to go to trial. If the trial court proceedings are not stayed, there’s a decent chance that the trial will finish before the appeals court rules. But if they are stayed, it could potentially stretch out the case for several additional months if the appeals court affirms the trial court ruling.
Recall petition for Council member Sawant
Earlier this month, Council member Sawant appealed a King County Superior Court judge’s certification of the recall petition against her. Though technically, she appealed it twice: once for the judge’s ruling on rewriting the ballot synopsis, and then again last week for the judge’s separate ruling on the factual and legal sufficiency of the charges (after waiting for him to deny their motion for reconsideration).
Today the petitioners filed a motion with the state Supreme Court, which will hear both appeals. The motion asks the Court to consolidate the two separate appeals into a single case, and to schedule an accelerated review. The petitioners note that it’s already effectively too late to collect signatures and get the recall on the February 2021 election ballot (the deadline is December 11), and the deadline for the April 27, 2021 election is February 26 — so time is of the essence. They ask for the following schedule for the appeal:
- Sawant’s answer to their motion: October 28
- Petitioners’ reply: October 30
- Appellants’ opening brief: due November 13
- Respondents’ brief: November 30
- Appellants’ reply brief: December 3.
The court could then rule at any point after that, depending on its own scheduling.
The petitioners also included a declaration from their lead attorney, former U.S. Attorney John McKay, in which he says that in a conversation with Sawant’s attorney, Dmitri Iglitzin, Iglitzin declined to consent not only to an accelerated schedule but also to combining the appeals.
It’s no surprise that Sawant is happy to drag the appeal out; pushing any particular recall election out further from the events that precipitated it would only help her to get the votes to stay in office. Mayor Durkan also opposed an accelerated schedule for the appeal of the recall petition filed against her, and we can assume it was for the same reasons.
This afternoon, the Court sent the following to the parties:
City of Seattle Councilmember Kshama Sawant’s second “NOTICE OF APPEAL TO WASHINGTON SUPREME COURT PURSUANT TO RCW 29A.56.270”, which was filed in the King County Superior Court on October 23, 2020, was forwarded to this Court by the Clerk of the Superior Court pursuant to RAP 5.4 and received on October 26, 2020. The notice of appeal has been filed in this existing Supreme Court case until the motion to consolidate referenced below has been decided.
On October 26, 2020, the Court also received the “RESPONDENTS ERNEST H. LOU AND THE RECALL ELECTION FOR CITY OF SEATTLE COUNCIL MEMBER KSHAMA SAWANT COMMITTEE’S EMERGENCY MOTION TO CONSOLIDATE APPEALS AND ACCELERATE REVIEW”, and the related declaration of John McKay.
Any answer to the motion, which should respond to both the request to consolidate and the request to accelerate review, should be served and filed by November 3, 2020. Any reply to the answer should be served and filed by November 5, 2020.
As it did with Mayor Durkan’s recall petition, the Court will likely order some form of accelerated schedule for the case.
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