Who speaks for Seattle? In responding to the court-appointed monitor's plan for the Seattle Police Department to avoid violating the constitution and federal law, Mayor Mike McGinn said it was the mayor. City Attorney Pete Holmes said it was the city attorney.
McGinn made the issue temporarily moot on Friday when he stopped objecting to the plan and said that after talking with the monitor, Merrick Bobb, he had told Bobb he accepted "the monitoring plan submitted to the court with the mutual understanding that the plan is a living document." The court will presumably approve the plan on Tuesday.
Seattle's municipal charter, article XIII, section 3, says that "[t]he City Attorney shall have full supervisory control of all the litigation of the City." That's clear enough. But does approving the monitor's plan under a federal court order qualify as litigation? McGinn clearly thinks it doesn’t. The mayor’s spokesman, Aaron Pickus said, "we're not in litigation. We have settled this." Period.
Others disagreed. Holmes' office wouldn't comment on the dispute, but Holmes was clearly among those who thought that since it was happening in a court of law, it was indeed litigation.
"This is not a new issue," Pickus said. It was basically the latest round of an old disagreement. In 2011, when Holmes sued to keep a referendum on contracts for the deep-bore tunnel off the city ballot, McGinn questioned his authority to bring the case. The court said he lacked authority.
This time might have been different. Then, the issue was a last-ditch attempt to stop the tunnel. Now, even before McGinn caved, it seemed clear that no one was going to stop the monitoring or make the agreement to monitor go away. In December 2011, the Department of Justice announced after an investigation that it had "found that [the Seattle Police Department] has engaged in a pattern or practice of excessive force that violates the Constitution and federal law. Our investigation further raised serious concerns that some SPD policies and practices, particularly those related to pedestrian encounters, could result in discriminatory policing."
The DOJ and the city negotiated a memorandum of understanding and a consent agreement that was filed in U.S. District Court. (The city never conceded it had done anything wrong. It has agreed to solve a problem without acknowledging that the problem exists.)
The Department of Justice quickly filed a notice of approval, signing off on the monitoring plan. The plan "complies with the requirements of the Settlement Agreement," said U.S. Attorney for Western Washington Jenny Durkan. It "does not impose new obligations on the parties, and avoids unnecessary delay." McGinn disagreed, saying in a press release that it did go beyond the bounds of the agreement and also changed some of the timelines. Holmes did not object to the plan.
"Do not represent to the Court or the monitor that the City has approved a monitoring plan," McGinn told Holmes in a leaked memo, "until you have received written authorization from me."
Holmes replied, "I cannot comment in detail on the mayor’s counterproductive statements, except to say that this is a sad day for Seattle." Presumably, a succession of sad days followed, but Holmes office wouldn't talk about the details.
Pickus said the police department "is ready to go," but the monitor's "initial drafts ... significantly extended the timeline for review” of proposed policies and training curricula, stretching it from 45 days to six to nine months. There were also "a few other issues where it felt like the monitoring plan was out of compliance " with the consent decree. In some areas, the plan seemed "much broader." Pickus said the mayor's office was "continuing to meet with the monitor, the city attorney's office, the Department of Justice."
He also pointed to the larger issue that keeps coming up between the mayor and the city attorney: "Does the city attorney have independent decision-making authority?" Pickus argued that the answer was clearly no. To support that argument, he pointed to the state Supreme Court's 2011 decision in Goldmark v. McKenna (the court's ruling is here).
The Okanogan PUD had condemned state land administered by Peter Goldmark's Department of Natural Resources for a power line. The DNR challenged the PUD's action in Superior Court, arguing that the PUD had no legal authority to do so. The PUD won. Goldmark wanted to appeal. More precisely, he wanted the state attorney general to appeal on the DNR's behalf. Attorney General Rob McKenna refused. The question before the Supreme Court was whether McKenna could exercise his independent judgment or whether he was compelled to represent an agency that wanted to appeal. Under the Washington constitution, the court said, the attorney general:
acts as the attorney for state officers and performs other duties "prescribed by law." The legislature has delineated what those other duties are, and RCW 43.12.075 expressly requires the attorney general to represent the commissioner in any court when so requested by the commissioner. This duty is mandatory, and the attorney general has no discretion to deny the commissioner legal representation.
(Ironically, perhaps, when Holmes' office asked the courts for a writ of mandamus ordering McKenna to drop out of a Republican attorneys general's suit against Obamacare, the court said — at the same time it handed down the Goldmark decision — that McKenna had discretion to join the suit.)
The Goldmark language was pretty clear, and it seemed relevant to the Holmes v. McGinn controversy — but was it? The court relied on the language of the state constitution and state statute. State law says it "shall be the duty of the attorney general, to institute, or defend, any action or proceeding . . . when requested so to do by the commissioner [emphasis added by the court]." The language of the Seattle charter is different. Therefore, the duty is different.
The Goldmark ruling also held that “the attorney general, like every lawyer in the state, is bound by [a Rule of Professional Conduct] which provides that ‘a lawyer shall abide by a client’s decisions concerning the objectives of representation’ and ‘shall abide by a client's decision whether to settle a matter.' " But who is the client?
Speaking at a University of Washington Law School symposium in 2008, Wayne Witkowski, who works for the Legal Counsel Division, Office of the Attorney General for the District of Columbia, made it clear that at any level of government, determining the client is murkier than one might expect. It changes with the context.
Some scholars think the client may be, at least partly, the broader public interest. In this case, presumably, it was or included the municipal corporation as a whole. Did the mayor speak for the corporation? Did the city council — which remained strangely silent on the issue? (When Holmes sued to force McKenna out of the Obamacare suit, then-Gov. Chris Gregoire — who had already said publicly that the Attorney General "doesn't represent me" — filed an amicus brief arguing that McKenna shouldn't be allowed to sue on behalf of the state. That argument went nowhere.)
One could argue, in terms of the public interest, that the mayor, of all people, shouldn't be calling the shots on the monitoring plan or process: He's the city's chief law enforcement officer, and in the Department of Justice's eyes, if not the city's, law enforcement is the problem.
What's next? The mayor and city attorney have papered over this particular dispute, but they haven't resolved the underlying issue. Both may still be in office when the monitor wraps up work five years hence. More issues may arise under the agreement with the DOJ. There will surely be issues of other kinds.
Who does speak for Seattle? Stay tuned.