BREAKING: SCAO Tells Human Rights Commission Not to Seek Amicus Status

by Carolyn Bick

The Emerald has today received confirmation that the Seattle City Attorney's Office (SCAO) told the Seattle Human Rights Commission (SHRC) not to seek amicus curiae status shortly after the commission's vote to do so at its public meeting on April 7, 2022. It is immediately unclear exactly who in the SCAO told the commission this and why.

Amicus curiae status would give the SHRC a path to submit data regarding police violence to the federal court in charge of the Consent Decree. The commission voted to do so in early April, after it was revealed that community members repeatedly voiced concerns about the perceived failure of the Community Police Commission (CPC) — the agency in the City of Seattle's three-pronged police accountability system responsible for bringing community concerns, voices, and experiences to the fore — to act in the community's best interests.

In the April 25 SHRC Criminal Justice Task Force agenda and notes obtained by the Emerald, the Emerald noted several curious items. The agenda, in bold font, declared that the regular agenda would be "[s]uspended to discuss status of Amicus in light of City Memos." While the agenda did not list those memos or communications directly, several items brought forth for question appeared in notes on the agenda (which readers should note are just that — notes — not exact or direct quotes from anyone at the meeting).

Under the "Matters Arising" section, there are two notes stating, "Revocation of attorney client privilege by commission to be pursued by commission" and "City giving advice which was not sought."

It was confirmed to the Emerald that the SCAO also sent an unsolicited email to the SHRC, following the vote to seek amicus status.

Following that item, the agenda indicates that Dr. Howard Gale, a member of the public who has been working with the commission for the last several months on this matter, directly asked several questions that appeared to relate to some sort of communication regarding the SHRC's ability to seek amicus status (emphasis the Emerald's):

1. Is it clearly denying the SHRC to seek a pro bono lawyer? Is the city asking SHRC to cease and desist?
2. Has the [CAO], at any time over the last 3 weeks, ever issued a direct or indirect threat that there would be legal consequences to the SHRC pursuing amicus status in DOJ v. City of Seattle[?]
3. The SHRC has now given the CAO 18 days to figure this out. What is there to wait for? Has the CAO ever told the SHRC not to pursue amicus status?

In the agenda, the only SCAO attorney named is assistant city attorney Ariel Schneier, at the bottom of the agenda ("City Attorney's – Ariel Schneier Letter Delegation of the SHRC to pursue litigation on behalf of the city.").

Finally, under lawyer Sarah Lippek's section of the agenda is listed the item, "Does the commission call the city's bluff and have the city declare publicly that it does not want the commission to pursue Amicus." Following that appears to be a suggestion, again from Lippek: "A possible way forward (political, not legal, and not constituting legal advice.) 1. Vote as a whole commission to publicly reveal the pressure from the City Attorney's Office. 2. Request a public-facing memo from the City Attorney's office – with a deadline attached."

On April 26, the Emerald asked the Seattle Office of Civil Rights (SOCR) — the department in which the SHRC lives — for any email or emails regarding this matter, but SOCR's communications advisor said that she was "not sure what we can share with the communication from Ariel Schneier, as most of it falls under attorney client privilege (ACP)."

SOCR's communications advisor followed up with the Emerald after consulting with the public disclosure officer and the SCAO and said that she was told that "the Commission as a City entity is not able to release privileged communications, so neither myself nor the Commission could release any unredacted communications to you from Ariel Schneier as it'd be a violation of ACP and the City's ethics code. The Mayor is the only one in the City who would be able to waive the privilege."

In other words, the mayor of Seattle — in this case, Bruce Harrell — is allegedly SCAO's ultimate client. It is unclear whether the language in the City's ethics code, which mainly deals with financial interest and using an official office for personal enrichment, supports this. The only language that might relate to this states that "A covered individual may not engage in any of the following acts: … Disclosure of confidential information … 1. Disclose or use any confidential information gained by reason of his or her official position for other than a City purpose."

In matters of attorney-client privilege, confidential information is confidential only for the attorney, not the client. If it is true that the mayor of Seattle, as the executive, is the ultimate client, then this could apply. However, if this were true, then it would also appear to mean that the mayor, as the ultimate client, would have full control and authority of commissions and departments, meaning that they would have no independence whatsoever. Neither the SOCR nor the SHRC is established in the City Charter, and the only language that shows up with regards to the SOCR is in the Seattle Municipal Code, which states, "There is established in the Executive Department an Office for Civil Rights" and "The Director of the Office for Civil Rights shall be the head of and, under the direction of the Mayor, shall be responsible for the administration of the office."

As noted in its April 7 meeting, the SHRC has been awaiting formal communications from the SCAO that the office will conflict itself out of the SHRC's attempt to seek amicus status. The federal court granted the CPC amicus status in 2013, following its denial of the CPC's motion to intervene, in order to preserve the CPC's voice in the process.

If the SHRC attains amicus status, it may need to retain an outside attorney, in order to be able to argue positions that could be at odds with the City's.

Moreover, if the SCAO did indeed send a communication barring the SHRC from seeking amicus status or attaining outside counsel — which would not seem to be something an attorney sends to their own client — then that would appear to clearly show that the SCAO has too great a conflict of interest to function as the SHRC's representative in court.

It should also be noted that a formal "cease and desist" missive would appear to constitute prior restraint, which is a form of censorship that bars speech or other free expression before it happens, and is a First Amendment violation except in exceptional cases, such as when a nation is at war.

The Emerald has reached out to the SCAO to ask why it told the SHRC not to seek amicus status. Following publication of this story, the Emerald also reached out to the Office of the Mayor to ask whether the office opposes the SHRC seeking amicus status. It will update this story with any developments.

SCAO Communications Director Anthony Derrick told the Emerald in an email on May 2 that the Emerald's original email to the SCAO got caught in a spam filter. However, he did not answer the Emerald's original question. When the Emerald reframed the question, asking why the SCAO told the SHRC that it could not or should not seek amicus status, Derrick replied, "We are not able to discuss [attorney-client] privileged communication."

As of May 2, the Office of the Mayor still had not responded to the Emerald.

The SHRC's next meeting is on May 5.

Correction: An earlier version of this article stated that Jason Sykes was the SHRC's pro bono lawyer. That is incorrect. Sykes in no way represents the SHRC. The article also previously stated that the CPC did not use an SCAO lawyer from the outset and that the CPC sought amicus status on its own several years after the establishment of the Consent Decree. This was also incorrect.

Featured image is attributed to Fayerollinson (under a Creative Commons, CC BY-SA 3.0 license).