What’s better than election coverage? Litigation coverage! We have four cases to catch up on today.
The SPD Consent Decree
In the run-up to a status conference called by U.S. District Court Judge James Robart for next Tuesday afternoon, last week the Community Police Commission filed an impassioned but somewhat confusing request with the court. The filing asks Robart to “issue an order requiring the parties to address the current status of efforts to bring the City into compliance with the Consent Decree on accountability issues—as required by the Court’s May 2019 order— either at the August 10, 2021 status conference or shortly thereafter at the convenience of the Court.” The CPC also requested that the CPC be allowed to speak at any hearing addressing the issue of accountability.
The CPC’s filing goes on to lay out several criticisms, not only of the city/SPD and the DOJ for failing to come up with a plan yet to bring the city into compliance on accountability, but it also takes aim at the police monitor for, in the CPC’s view, shirking its duties with regard to monitoring police discipline. It alleges that the monitor’s office meets regularly with SPD and the DOJ monthly, but those meetings have “addressed only issues of process and general statistics, and have not included any information or discussions about individual disciplinary proceedings.”
The CPC goes on to push for other changes to the monitor’s 2021 monitoring plan:
- it should include a plan for the monitor’s involvement in accountability;
- the monitor’s access to officer discipline materials should be increased;
- the monitor’s office should monitor potential impediments to the accountability process.
Finally, the CPC urges the court, the city, and the DOJ to take up the issue of a plan to get SPD into compliance on accountability, since Judge Robart’s May 2019 order directing precisely that has never been completed.
This afternoon, Robart issued a brief order striking the CPC’s request, but granting it the opportunity to speak at next week’s hearing.
On a related note, yesterday the police monitor submitted its semi-annual report. Earlier this year the Monitor, DOJ and SPD issued a revamped monitoring plan for 2021 that attempted to recognize the unique circumstances for policing in Seattle that has sent the consent decree process off the rails. The monitoring plan established a joint plan among the parties to try to cooperatively get things back on track, rather than just write a list of what the monitor’s office will do. The monitor’s semi-annual report follows in the same spirit; it presents a fairly uncritical look at SPD with an emphasis on its achievements and challenges, rather than the failures of the past year that it is still trying to correct. It also presents the work of the OIG, the OPA, and the CPC as partners in the process. The carrot-versus-stick approach is an interesting one, perhaps recognizing the precarious situation SPD currently finds itself in: high attrition, rising property and violent crime, and an unsupportive City Council looking for ways to further cut its budget. But it does raise questions as to whether the monitor is willing to provide harsh criticism of SPD when the moment calls for it.
The Tribe, The Dam, and the Power Utility
In June the Sauk-Suiattle Tribe filed a lawsuit against Seattle City Light claiming that the Gorge Dam on the Skagit River is illegally blocking salmon migration upriver, and asking for an order forcing SCL to abate the dam so as to allow fish to pass freely past it. The tribe’s complaint argues that when Congress originally created the Washington Territory, it prohibited dams and other structures that would inhibit fish migration; and that not only were those prohibitions never repealed, but the Washington State Constitution preserved them when the state was formed. SCL argues in return that the Federal Power Act puts such a dam under the sole regulatory power of the Federal Energy Regulatory Commission (FERC), which granted a license for the dam to SCL.
But the merits of those arguments won’t be heard for a while, because the two sides can’t agree on which court should hear the case. The tribe originally filed the case in Skagit County Superior Court, but Seattle City Light filed to have the case removed to federal court, arguing that the case turns on questions of federal law. The tribe has since objected to that moved, and filed with the federal court to have it remanded back to state court, arguing that the Washington State Constitution is the controlling law. It is all a bit confusing: the prohibition on constructing dams was an act of Congress in establishing the Washington Territory, but the state Constitution incorporates by reference all laws governing the Washington Territory at the time of its enactment — so is it a federal law or a state law? And if it is a state law, does the Federal Power Act pre-empt it under the Supremacy Act of the U.S. Constitution?
Stay tuned for more.
Hotel Workers Healthcare Mandate
You may recall that earlier this year a three-judge panel of the Ninth Circuit Court of Appeals ruled in favor of the city in a legal challenge to the city’s ordinance mandating that hotel employers provide healthcare coverage to their workers. The provision was originally part of Initiative 124, which was tossed out in its entirety by the courts. The City Council, however, rescinded I-124, broke it up into four separate bills, and passed them, including a modified healthcare mandate that they hoped would have a better chance of withstanding legal scrutiny. The plaintiffs challenging the healthcare mandate then revised their lawsuit arguing that the replacement ordinance still violated the federal ERISA pre-emption on state and local regulation of employee healthcare plans.
Since the Ninth Circuit panel handed down its ruling, the plaintiffs have appealed to the full Ninth Circuit for an en banc rehearing of the case. They are taking a very aggressive approach: in their brief, they argue not only that the three-judge panel decided the case wrong, but that the controlling case law precedent, Golden Gate Restaurant Association vs. City and County of San Francisco (a prior Ninth Circuit ruling) was also decided wrong, is in conflict with a December 2020 U.S. Supreme Court ruling on preemption, has led to a circuit split with two other Courts of Appeals, and should be thrown out. The city, of course, is defending Golden Gate as perfectly fine case law and not in conflict with other courts’ rulings.
There is no timetable for the Ninth Circuit to decide whether it will hear the case en banc. If they choose not to, expect the plaintiffs to appeal up the line to the U.S. Supreme Court.
Across the United States there is a complex web of litigation challegning eviction moratoriums at all levels. At the federal level, the CDC’s eviction moratorium was thrown out in multiple courts, and ultimately the U.S. Supreme Court ruled that renewing it past July 31st would require an act of Congress. At President Biden’s direction after substantial political pressure, the CDC just let the old one expire and issued a new one, but it is unclear whether it will hold up in court.
Meanwhile, a local challenge to eviction moratoriums issued by the City of Seattle and by Governor Inslee has also been moving forward, albeit slowly. Cross-motions for summary judgment were filed in early May, with responses and replies that followed. But since all of that paperwork has been filed and while the parties wait for the judge to rule, both sides have been regularly updating the court with notices of “supplemental authorities,” i.e. other emerging court rulings and other happenings that read on the issues in the case. So far, there have been three notices filed:
- the CDC’s June extension of its moratorium to July 31st;
- Governor Inslee’s extension of his moratorium, with a substantially revised set of rules;
- a U.S. Supreme Court ruling that fairly dramatically moved the goalposts on the kinds of government-sanctioned intrusions onto private property that amount to a per se “taking” of property (accompanying some additional legal arguments related to Governor Inslee’s new moratorium extension).
Here too there is no timeline for the judge to rule on the case, and in any event it will almost certainly be immediately appealed to the Ninth Circuit. But the judge now has more to ponder.
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