Wash. High Court Asks If Police Evictions Trigger AG Scrutiny

By Rachel Riley | June 15, 2023, 10:14 PM EDT ·

Washington Supreme Court justices asked Thursday how far-reaching local civil rights violations needed to be before the state attorney general could get involved, as they considered the state's claims that a small city police force had a practice of illegally evicting residents.

The City of Sunnyside has argued that the alleged abuse of a statewide crime-free housing program by its police department was entirely confined to its borders, and so did not rise to the level of a "public concern" that would allow state regulators to sue the municipality of roughly 15,000.

But the justices appeared wary of that thinking, with three suggesting the attorney general had implicated problems with Sunnyside's administration of the program that could have remedies with statewide significance.

"It seems that the assertion — and this goes to the municipal liability claim — is that there's a lack of understanding about the authority of law enforcement under this program, lack of training, lack of policies to implement," Justice Debra Stephens said while questioning Sunnyside's counsel. "Why would that not be of broader significance?"

Kirk A. Ehlis of Menke Jackson Beyer LLP, representing Sunnyside, said the case relies on a unique set of facts about how some of its police officers handled a limited number of cases.

"Well, yes and no," Justice Barbara Madsen said. "Each of those fact patterns — don't they arise out of the fact that there's a lack of oversight, protocol and procedures in place? Isn't that beyond the individual case?"

Washington Attorney General Bob Ferguson sued the city in February 2020 after his investigation into the city's program found police were using it illegally. A lower court dismissed the case on summary judgment, finding that the attorney general's office overstepped its authority. But the state argued on appeal that the attorney general has broad authority in picking what cases to pursue, and the state's high court has never second-guessed that discretion.

Justice Raquel Montoya-Lewis remarked that during her time as a state court judge in Whatcom County, she heard tenants make similar allegations about the local crime-free housing program on the western side of the state.

"Obviously that's not in the record, and I'm not suggesting that you would be aware of that," Justice Montoya-Lewis told Ehlis. "But are you saying that if the attorney general was aware of that, and brought suit not just against Sunnyside but against the Sheriff's Office in Whatcom County, would that change your argument about the public concern argument?"

Ehlis agreed, saying that would be a different case. In this one, the attorney general has unfairly singled out Sunnyside, he argued. Ehlis also emphasized that the state had not challenged the law that lets Washington municipalities offer the program, or other local governments' administration of the program.

Robert Lawrence-Berrey, acting chief judge of the Court of Appeals, sitting in for the recused Justice G. Helen Whitener, was skeptical of Ehlis' argument that the city is not involved in the landlord-tenant relationship. He underscored that the police department issues rental permits subject to annual renewal and requires landlords participating in the program to attend eviction training workshops about working with law enforcement.

"You're saying that under the record we have here, there isn't evidence of an agency relationship between the police and the landlords even though this training is required, working with police, and their licenses are issued by the police?" Judge Lawrence-Berrey asked.

Ehlis responded that the evidence was "insufficient to create an agency relationship."

The state has argued that the city and the five law enforcement officers named in the suit are liable for violation of the Washington Residential Landlord Tenant Act because they became de facto agents of the landlords by deciding who gets evicted without engaging in the state's normal legal process for evictions.  

Colleen M. Melody of the Washington State Attorney General's Office said that while tenants served with an unlawful detainer have the chance to formally protest their eviction before a state court, Sunnyside and its officers provided no such notice.

"That's the heart of the claim here," Melody said. "That when police assume the authority, commandeer it, and then cut the landlord and the courts notably out of the entire process, all of the checks and balances on the authority to evict are completely lost."

While Sunnyside's counsel repeatedly said that the attorney general claims that just 43 residents were ousted from their homes – out of a state of almost 7.8 million people – Melody maintained that there was no "magic number" or required geographic scope to determine what constitutes a matter of public concern that the office can pursue.

Melody also said that the justices need not draw a line on what exactly constitutes a "matter of public concern" because this is "so far from an edge case."

"This is a case where 123 documented instances of this ordinance being applied resulted in at least 43 evictions of vulnerable residents in a city where 15,000 people live — any of whom would be subject to this ordinance at any time they rented their home," she said.

The state of Washington is represented by Colleen M. Melody, Mitchell A. Riese, Neal Luna, Lane Polozola and Robert Ferguson of the Washington State Attorney General's Office.

The City of Sunnyside is represented by Kirk A. Ehlis and Seann M. Mumford of Menke Jackson Beyer LLP.

The case is State of Washington v. City of Sunnyside et al., number 101,205-5, in the Washington State Supreme Court.

--Editing by Peter Rozovsky.

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