City Attorney Warns Human Rights Commissioners of Legal Action if SHRC Pursues Amicus Status — Fails to Cite Specifics

by Carolyn Bick

Seattle Human Rights Commissioners past and present say that since the commission announced its intention to seek amicus status with the federal court in the matter of the Consent Decree, they have faced repeated warnings from the Seattle City Attorney's Office.

The Emerald has learned that the Seattle City Attorney's Office has told multiple Seattle Human Rights commissioners that they may not be reappointed to — or that they could even potentially face removal from — the Seattle Human Rights Commission if the commission pursues amicus curiae status. This suggestion is the latest in a series of warnings the City Attorney's Office has issued to the Human Rights Commission.

The warnings began when the Seattle Human Rights Commission (SHRC) publicly announced its intent to seek amicus status in April 2022. Amicus status would allow the commission to submit documents to the federal court in the matter of the federal Consent Decree, which has been in place since 2012. The commission wanted to pursue amicus status in response to 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.

According to an email shared with the Emerald, the Seattle City Attorney's Office (SCAO) told the SHRC that because the Seattle Municipal Code (SMC) does not specifically state that the SHRC may pursue legal matters, the SCAO is interpreting that to mean that it cannot do so and has suggested that the SHRC could face legal action by the City of Seattle.

"While as you noted the SMC does not expressly prohibit the SHRC from filing an amicus brief, we do not interpret the SMC to imply that authority, as such action is outside of the Commission's expressly articulated role of advising City officers and departments" the SCAO writes in a Jan. 4, 2023, email.

"In contrast, Ordinance 124021[,] which originally established the CPC, did expressly state that 'the CPC may also appear before the court enforcing [the consent decree] if the court determines the CPC has standing and meets the requirements of Federal Rule of Civil Procedure 24,' thus providing express authority to pursue filings in DOJ v. Seattle [the case concerning the Consent Decree]," the SCAO continues.

No Specific Violation

SHRC Commissioner Matthew Mitnick shared with the Emerald that in a recent private meeting, the SCAO told commissioners that there was no specific provision or code it could cite but claimed that because the SHRC is a creation of the City, its authority and latitude to act is determined by the City.

If true, this would appear to be at odds with the SHRC's role and purpose.

The SMC states that the SHRC "shall act in an advisory capacity to the Mayor, City Council, Office for Civil Rights, and other City departments in respect to matters affecting human rights," and lists several specific duties. The SMC does not remark on the SHRC's ability to engage in legal matters in the course or furtherance of its duties.

The SCAO also told commissioners in this meeting that the SHRC pursuing amicus status would be considered ultra vires or an action unsupported by law. The SCAO gave the example of the mayor opting to fire the entire Seattle City Council (SCC) as an ultra vires action, presumably because the SMC doesn't explicitly state that the mayor cannot take such an action.

However, this does not appear to be an entirely accurate comparison. Article III of the SMC briefly lays out the heads of the various departments and specifically states that "no head of department shall have or exercise any power or authority not provided for elsewhere in this Charter." Therefore, the SMC does, in fact, appear to say in a roundabout way that the mayor cannot fire the entire SCC.

Mitnick also shared that the SCAO highlighted Federal Judge James. L. Robart's "very strong language" in response to the CPC seeking amicus status, appearing to suggest that the judge's response to the SHRC would be similar.

According to Mitnick, the SCAO also said that commissioners' reappointment by the SCC and the Mayor's Office could hinge on "prior actions," suggesting that commissioners may not be reappointed if they pursue amicus status. Though the SCAO did not itself suggest removal from the commission as a consequence, when a fellow commissioner asked whether removal from the commission could be within the realm of possibility, the SCAO answered in the affirmative, referring to removal as the "potential ultimate remedy."

Moreover, according to several commissioners who spoke with the Emerald, the exact legal challenges they could face have never been spelled out. The SCAO has simply said that it has decided to interpret the SMC's lack of guidance on the matter to mean that the SHRC is not legally allowed to pursue amicus status or other legal matters.

According to Mitnick, the SCAO told commissioners in the meeting that a private entity (such as an individual) could also file for amicus status to "avoid" the outlined issues. But the SCAO also admitted that the only action it may be able to take should the SHRC file for amicus status would be to file a competing motion challenging the commission's participation in litigation. Thus, it would appear that a judge would be the ultimate decider in the matter, not the SCAO.

In other words, in attempting to dissuade the SHRC from filing for amicus status, the SCAO may be attempting to make what would appear to be a judicial decision.

In a Jan. 27 email shared with the Emerald, Mitnick asks the SCAO exactly what legal challenges the SHRC could face from the City. The SCAO appears to decline to reply with any specifics, instead stating, "the response from the City, if any, is dependent on the content, representations and positions set forth in anything that you and/or the SHRC were to file in the DOJ v. Seattle litigation.

"The City's legal position on SHRC's status and relevant authorities is detailed in our previous attorney-client privileged memorandum to the SHRC," the SCAO writes, appearing to cite the memos the Emerald obtained last year.

Mitnick follows up to ask the question again — "What legal consequences and actions from your office will result from our votes on this?" — and points out that the memos do not appear to hold the answer.

"If it was [in the memos]," Mitnick writes, referring to the answer, "please cite them here for my review. Once again, if you do not give me an answer, you will be on the record confirming that there are zero legal consequences and actions from your office that will result from both my votes and that of my colleagues on this item."

The SCAO responds again without any specifics but does not cite the memos again. "The [S]CAO may respond to any filing that purports to be on behalf of the SHRC in the DOJ v. Seattle litigation. The [S]CAO does not plan to pursue separate legal proceedings in any form against the SHRC or its members."

Notably, it was a judge — specifically, federal Judge James L. Robart, who is overseeing the Consent Decree — who made the final decision in the matter of the CPC seeking amicus status. The SCAO itself referenced this decision in its memos from April 2022.

Possible Conflict of Interest

At the same time, the Emerald has learned that the SCAO, which represents the City in legal actions, has privately told SHRC commissioners that because they are on a City commission, the SCAO also represents the commissioners. According to SCAO, they would do so in a potential legal action by creating a "screen" within the SCAO, whereby some SCAO attorneys would represent the City — which would bring the legal action against the commissioners — and some SCAO attorneys would represent the commissioners. If such a situation were to occur, these attorneys would be directed to neither work together nor communicate.

However, it is unclear how the SCAO could do this, given what appears to be a significant conflict of interest — or if there are any legal challenges the City of Seattle could actually bring against the SHRC, beyond filing a competing motion challenging the SHRC in participating in litigation.

The SCAO has previously claimed to the SHRC in legal memos that the mayor is the only person or entity that can waive legal privilege as pertains to the SCAO. The SHRC, according to SCAO, cannot waive attorney-client privilege for this reason.

Given these statements, it is unclear how SCAO can claim to represent commissioners without influence from the mayor's office.

Equally, in light of the fact that using the interests of one client (the City) against another (the SHRC) to influence the latter's actions appears to violate the American Bar Association's conflict of interest rule, SCAO's threats of legal challenges by the City of Seattle against the SHRC would seem to have created a conflict of interest that would prevent SCAO attorneys from representing or advising the SHRC in any capacity. The suggestion that commissioners could be removed from the commission — which is an independent body not controlled by any single entity or office and whose members are neither paid nor take an oath of office — could also be considered retaliation.

The SCAO did not provide comment before publication, despite initially responding to the Emerald and saying it would. Finally, the morning of publication, the SCAO sent along the following brief message: "All communications from the City Attorney's Office to members of the SHRC regarding amicus status have been solely in the context of providing privileged legal advice to a City client. To answer the questions posed below would require revealing our privileged advice, and we are therefore unable to comment."

Featured Image: Ann Davison, Seattle City Attorney, via City of Seattle; edits by Emerald team.