The Honorable Karen Donohue IN THE MUNICIPAL COURT OF THE CITY OF SEATTLE KING COUNTY, WASHINGTON CITY OF SEATTLE, Plaintiff, No. 617327 V. NOTICE OF FILING OF APPLICATION FOR WRIT OF KAREEM JALIL, REVIEW Defendant. TO: The Clerk of the Court AND TO: All Parties and Counsel of Record Please takenotice that, on September 7, 2017, the City of Seattle lodged an Application for a Writ of Review, arising from this Court?s August 8, 2017 Order on Defense Motion for Diversion, with the King County Superior Court, in Cause No. 17-2-23670-5 SEA. A copy of the City?s Application is appended to this Notice. Davis Wright Tremaine LLP LAW OFFICES NOTICE OF FILING OF APPL. FOR WRIT OF REVIEW - 1201 Third Avenue. Suite 2200 Sea 1e, WA - 04 206 622 silso main 9:332 1737' 75700 fax DATED this 11th day of September, 2017. PETER S. HOLMES SEATTLE CITY ATTORNEY DAVIS WRIGHT TREMAINE LLP Attorneysf the iry of Seattle . Coopersmith, WSBA #30954 Jan 5 H. Corning, WSBA #45177 Rachel H. Herd, WSBA #50339 1201 Third Avenue, Suite 2200 Seattle, Washington 98101 Phone: (206) 622-3150 Fax: (206) 757-7700 Email: jeffcoopersmith@dwt.com jamescoming@dwt.com rachelherd@dwt.com Davis Wright Tremaine LLP LAW OFFICES NOTICE OF FILING OF APPL. FOR WRIT OF REVIEW - 2 1201 Third Avenue. Suite 2200 Sea 6, - 206.622 1:311 9302173325700 fax Appendix FILED 17 SEP 07 PM 4:20 KING COUNTY SUPERIOR COURT CLERK E-FILED CASE NUMBER: 17-2-23670-5 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY CITY OF SEATTLE, No. Plaintiff, (Seattle Mun. Ct. No. 617327) v. CITY OF APPLICATION KAREEM JALIL, FOR WRIT OF REVIEW AND MEMORANDUM IN SUPPORT Defendant. .OllT LLP APPLICATION FOR WRIT OF REVIEW I [?lm?sm 0002348-000029 l20 Third Ave Suilc 2200 WA 98 IOI 206-622-3l50 main 206-757-7700 fax EA APPLICATION FOR WRIT OF REVIEW Plaintiff City of Seattle (the ?City?) respectfully petitions this Court to issue a writ of review and stay further proceedings in the Seattle Municipal Court pursuant to RCW ch. 7.16, and further, upon issuance of the writ and review of the underlying record, to vacate the Municipal Court?s August 8, 2017 order (the ?Order?). The Order granted Defendant Kareem alil?s ?Motion for Diversion? and directed the Seattle City Attorney?s Of?ce to ?review th[e] case? and consider offering Mr. Jalil a non?statutory diversion to resolve his criminal case. This Order violates separation of powers and the well-established prohibition on judicial interference in prosecutorial decision-making with respect to charging criminal offenses. In issuing the Order, the Municipal Court exceeded its jurisdiction, committed plain error, substantially and unreasonably limited the exercise of prosecutorial discretion, and grossly departed from the accepted and usual course of judicial proceedings, such that this Court should exercise its power and jurisdiction to vacate the Order. In support of this Application, the City relies upon the subj oined Memorandum in Support of Application, the Declaration of Jeffrey B. Coopersmith (?Coopersmith and all exhibits attached thereto. A proposed writ of review, with a command to stay further proceedings in Municipal Court until this Court enters ?nal judgment, is attached. The City further requests the Court set a dispositive hearing or trial date and issue ?nal judgment vacating the Order, pursuant to RCW 7.16.020 and .130, within thirty (30) days following issuance of the requested writ. MEMORANDUM IN SUPPORT OF APPLICATION I. FACTS A. Sexual Exploitation ?Sexual Exploitation,? as proscribed by SMC 12A.10.040, is a crime in which those with power and privilege pay to exploit vulnerable people. While those who sell sex are predominately poor women and girls, this group also includes men, boys, and transgender individuals. C00persmith Decl. Ex. A (Declaration of Peter Holmes) (?Holmes Decl.?) 1] 5. Davis Wright Tremaine LLP APPLICATION FOR WRIT or REVIEW 2 01mg 4847-6623-3166v 8 0002348-000029 I201 Third Ave Suite 2200 WA 98 206-022-3150 nmin 206-757-7700 I?m; Many have a history of sexual abuse, substance addiction, and severe poverty. Id. Additionally, approximately 90% of sex workers in Seattle are controlled by procurers through violence, threats of force, and the exploitation of their substance addictions. Id. 11 6. Although there is a small minority of individuals who claim to sell sex consensually, statistics show the majority of people remain in the industry because they believe they have no other choice. Id. The City?s laws re?ect the understanding that prostitution and sexual exploitation are different in nature. Sexual exploitation laws, aimed at the buyer, carry substantial mandatory ?nancial penalties, starting at $1,500 for ?rst-time offenders. SMC On the other hand, prostitution laws carry a much smaller ?nancial penalty, starting at $50.00. SMC In addition, the Seattle City Council passed legislation in 2000 that imposed a $1,000 Sex Industry Victims Fund to be paid by those who receive diversions after being charged with sexual exploitation. SMC (E). There is no such fee for prostitution convictions or deferrals. B. The Policy Regarding Disposition of Sexual Exploitation Charges. In 2011, the majority of individuals in Seattle charged with prostitutiOn-related crimes were the suppliers?the individuals selling sex. Holmes Dec]. 11 7. The buyers generating the demand for sex were rarely arrested or prosecuted. Id. The CAO recognized the inherent problem?it is the demand for commercial sex that drives the market, not the supply. Id. 11 8. Without buyers? money, procurers and traf?ckers have no incentive to force vulnerable individuals into the illegal sex trade. Id. Therefore, if demand decreases, the number of victims forced into commercial sex declines as well. Id. Recognizing this problem, the CA0 began a multi-year effort to understand how to best implement policies and practices to eliminate or at least reduce the demand for sexual exploitation. Id. 11 9. Mr. Holmes and employees of the CA0 spent years researching the topic, attending conferences, meeting with community members, observing effective models in other cities, and talking with both buyers and sellers of sex. Id; see also I'd. Ex. A. Ultimately, the CA0 implemented a ?Nordic Model,? which aims to reduce sex traf?cking by curtailing Davis Wright Tremaine LLP APPLICATION FOR WRIT OF REVIEW - 3 omcgs 4847-6623-3166v.8 0002348-000029 1201 Third me Suite 2200 WA OSIOI 206-622-3 50 main 206-757-7700 Fax demand. Id. 11 10. Embracing this model, Mr. Holmes committed to increasing the proportion of procurers and buyers charged in prostitution-related cases, paying greater attention to the ?demand? side of the equation. Id. Since 2011, a number of changes have transformed the way Seattle treats prostitutiOn- related crimes. For example, the Seattle Municipal Court created a ?John School? that educates buyers of sex about the conditions in?icted on prostituted people and the harm of their own actions to the community at large. Id. 11 11. First-time buyers of sex are required to attend this program. Id. Statistics show that once an offender learns about the impact of his or her actions 0n the victim, the likelihood that he or she will reoffend decreases dramatically. Id. Another way the City aims to change the culture surrounding prostitution-related crimes is through the words it uses to describe the offenses. Words the community uses to talk about these issues shape the way people feel about the conductillustration, the Seattle Police Department?s Vice Unit, which works with the CA0 to address prostitution- related activity in Seattle, was renamed the Vice and High Risk Victims Unit. Id. 11 13. More recently, in January 2015, following a request made by the CA0, the Seattle City Council unanimously voted to change the name of the crime ?patronizing a prostitute? to ?sexual exploitation.? Id. This change was predicated on a shared desire to accurately describe the harm inherent in the commercial sex trade, to recognize that sex workers are often a vulnerable and exploited population in the community, and to acknowledge that buyers create demand which perpetuates the market and continued exploitation. Id. In early 2016, the CA0 began to comprehensively reevaluate how it handles cases of sexual exploitation. Id. TI 14. Until that point, sex buyers were often allowed to enter into a diversion agreement with the City without pleading guilty to the crime of sexual exploitation. Id. Mr. Holmes recognized from various studies and conversations with his peers in other jurisdictions that diversion without a guilty plea did little to deter future criminal conduct or inhibit the demand for commercialized sex. Id. Many diversion participants reoffended shortly after the completion of the program. Id. Davis Wright Tremaine LLP APPLICATION FOR WRIT OF REVIEW 4 01mg 4847-6623-3166v.8 0002348-000029 1201 111ml Ave Suilc 2200 Seattle. WA 98101 206-622-3150 main 206-757~7700 fax Research shows that most sex buyers are deterred by the threat of some form of public disclosure of their activities, such as a guilty plea entered on their criminal record. Id. 11 15. Therefore, in an effort to deter future criminal conduct, the CAO modi?ed its internal policies. Id. 11 16. Instead of routinely offering a no-plea diversion to ?rst?time violators, the CA0 has adopted a new policy governing charging and plea decisions for ?rst?time violators of the sexual exploitation statute: those without a criminal history remain eligible for a 12?month deferred jail sentence, so long as they enter a plea of guilty. Id. Exceptions to this policy may be granted if circumstances or evidentiary considerations warrant one. Id. jl 17. City Prosecutors remain free to seek policy exceptions whenever they feel one is warranted. Id Although Mr. Holmes or departmental supervisors might ultimately disagree, City Prosecutors are in no way subject to discipline or consequences for seeking such an exception?on the contrary, Mr. Holmes encourages all of his employees to be thoughtful, to exercise their judgment, and to come forward with their opinions. Id. And Mr. Holmes retains, at all times, the discretion to waive charging, sentencing, and dispositional policies?~including the one at issue in this case?if the facts warrant it. Id. This policy in no way eliminates or reduces the obligation of the City Prosecutors under Mr. Holmes?s supervision to give individualized consideration to each case before making a charging decision. Id. 1] 18. That individualized consideration routinely includes an assessment of the accused?s conduct, the nature and circumstances of the alleged crime, the amount and strength of the evidence, the credibility and availability of possible witnesses, potential defenses and mitigating circumstances, and whether charging lesser offenses is justi?ed, among many other factors. Id. C. Mr. Jalil?s Case In July 2016, the Seattle Police Department organized a 10?day undercover Operation targeting individuals looking to buy sex. Id. 11 21. The police-operated ?Euro Spa? attracted more than 200 men, including Mr. Jalil. Id. On July 7, 2016, Mr. Jalil paid $200 to the Euro Spa receptionist for ?full sex,? and he was escorted to a private room where he was arrested by the Davis Wright Tremaine LLP APPLICATION FOR WRIT OF REVIEW - 5 4847-6623-3166v.8 0002348-000029 1201 Third Ave Suite 2200 Suiiltlu. WA 9SIOI 206-622-3150 main 206-757-7700 fax Seattle Police DepartmentFebruary 3, 2017, he was charged with sexual exploitation in violation of SMC 12A.10.040. Id 11 23. In accordance with its policy governing charging and plea decisions for the crime of sexual exploitation, the CA0 offered Mr. Jalil a deferred sentence if he pled guilty to sexual exploitation. Id. 1124. Other than Mr. alil?s age and lack of criminal history?facts the CA0 was already aware of?his attorney did not present the prosecutor with any individualized mitigating circumstances unique to his case that would bear on the decisions on charging and disposition of the case. Id. 1125. On July 14, 2017, Mr. alil ?led a ?Motion for Diversion? in the Seattle Municipal Court. In it, he argued that the ?policy shift away from diversions for ?rst offenders? violated, among other things, his right to due process.] Coopersmith Decl. Ex. at 2 (Def?s Mot. for Diversion; ?led 7/14/17). He sought relief in the form of an order from the Court requiring the CA0 to permit him to apply for diversion. Id. at 3. On July 27, 2017 a hearing on the motion occurred before the Honorable Judge Donahue. At the hearing, the City of Seattle explained that while it is the City?s policy not to offer diversions to people charged with sexual exploitation, the ?criminal division chief [has] an open- door policy to review cases to take into account circumstances,? and when compelling circumstances are presented, the City will offer diversion. Coopersmith Decl. Ex. 64:10-66:10 (Tr. of July 27, 2017 Mot. Hrg.). Nevertheless, on August 8, 2017, the Court granted Mr. alil?s motion, ordering the CA0 to ?review th[e] case for possible diversion.? Coopersmith Decl. Ex. F, at 4 (Order on Defense Motion for Diversion; entered 8/8/17). The Court held that the standard policy of not offering non-statutory diversion to those charged with sexual exploitation ?removes individualized consideration of each case, thus taking away prosecutorial discretion, which is not consistent with the principles of due process.? Id. 1 Most of Mr. Jalil?s motion concerned his argument that the disposition policies for the crime of sexual exploitation singled out men for disparate treatment, thereby violating the Equal Rights Amendment (ERA). The Municipal Court did not address this argument in its Order; therefore, the City does not further address it here. Davis Wright Tremaine LLP APPLICATION FOR WRIT or REVIEW - 6 0mm 4847-6623-3166v8 0002348-000029 120] Third Ave Suilc 2200 ScnIIlc. WA 98m] 206-622-3I50 main 206-757-7700 fax September 1, 2017, the City of Seattle ?led a Motion for Reconsideration of the Order with the Municipal Court. Coopersmith Decl. Ex. (City?s Mot. for Reconsideration; ?led 9/1/17). As of the ?ling of this Application, the Municipal Court has not yet ruled on that Motion. The City is ?ling this application for a writ now to avoid any potential jurisdictional issues that could have arisen had the City waited to ?le until after the Municipal Court decided the Motion. However, to afford the Municipal Court adequate time to reconsider, the City has delayed the initial hearing on this application until September 27, 2017.2 11. ISSUE Did the Seattle Municipal Court exceed its jurisdiction or act illegally, and is there no appeal or plain, speedy, and adequate remedy at law, therefore necessitating this Court?s issuance of a writ of review? Yes. 111. LEGAL AUTHORITY Under RCW 7.16.040, a writ of review ?shall be granted . . . when an inferior tribunal . . . has exceeded [its] jurisdiction [or] act[ed] illegally, or to correct any erroneous or void proceeding and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law.? (emphasis added). In other words, a party seeking a writ need only show that the district court exceeded its jurisdiction or acted illegally; and (2) there is no appeal or adequate remedy at law.? Commanda v. Cary, 143 Wn.2d 651, 655, 23 P.3d 1086 (2001). The City amply satis?es that standard. A. The Municipal Court ?Acted Illegally? by Restraining the Lawful Exercise of Prosecutorial Discretion. For purposes of RCW 7.16.040, an inferior court ?acts illegally when [it] (1) has committed an obvious error that would render further proceedings useless; (2) has committed probable error and the decision substantially alters the status quo or substantially limits the freedom of a party to act; or (3) has so far departed from the accepted and usual course of 2 lfthe Municipal Court grants the Motion and vacates its earlier order before that hearing, the City will withdraw this application. Davis Wright Tremaine LLP APPLICATION FOR WRIT OF REVIEW 7 LAW 4847-6623-3166v.8 0002348-000029 1201 Third Ave Suite 2200 WA 98 IOI main 206-757-7700 fax judicial proceedings as to call for the exercise of revisory jurisdiction by an appellate court.? City ofSeattle v. Holi?eld, 170 Wn.2d 230, 244?45, 240 P.3d 1162 (2010). Even though the City need only establish one of these three alternatives to justify issuance of a writ, here it can establish all three. We address each in turn. 1. The Order Constitutes Obvious Error and Renders Further Proceedings Useless. The Municipal Court?s Order constitutes obvious error for at least two reasons. First, Mr. alil has no due process right to pretrial diversion, and thus the Municipal Court?s Order lacks any legal authority. Second, the Municipal Court concluded, incorrectly, that the policy deprives Mr. alil and perhaps other defendants of individualized prosecutorial consideration. We explain these two errors below. a. The Order Constitutes Obvious Error Because Mr. ali] Has No Due Process Right to Pretrial Diversion. The Municipal Court?s Order incorrectly reasoned the standard policy to not offer diversion to buyers of sex was ?not consistent with principles of due process.? Coopersmith Decl. Ex. at 4. This was error. Whether the charging decision was the result of a standard of?ce policy or individualized decision-making, Mr. alil has no protected entitlement or due process right to pretrial diversion.3 ?The threshold question in every due process challenge is whether the challenger has been deprived of a protected interest in life, liberty, or prOperty.? In re Pers. Restraint ofStuhr, 186 Wn.2d 49, 55?56, 375 P.3d 1031 (2016) (quoting In re Pers. Restraint ofPullman, 167 Wn.2d 205, 211?12, 218 P.3d 913 (2009)); In re Guardianship ofCornelius, 181 Wn. App. 513, 530, 326 P.3d 718 (2014) (for due process protections to be implicated, there must be an individual interest asserted that is encompassed within the protection of life, liberty, or pr0perty). 3 Although Mr. Jalil did not appear to raise?and the Municipal Court did not address?an equal protection argument, the Court of Appeals recognized in State v. Rushing, 77 Wn. App. 356, 890 P.2d 1077 (1995), that the prosecutor?s decision to ?le a DUI charge in Superior Court rather than District Court, thereby depriving the defendant ofthe opportunity to petition for a deferred prosecution, does not violate equal protection. This fuither bolsters the City?s position that declining to offer a pretrial diversion does not offend constitutional principles. Davis Wright Tremaine LLP APPLICATION FOR WRIT or REVIEW - 8 0mm. 4847-6623-3166v.8 000234 8-000029 120: Third Ave Suite 2200 Seamle. WA 98 [01 206-622-3l50 mnin 206-757-7700 l'ilx The interest must rise to more than ?an abstract need or desire,? and must be based on more than ?a unilateral hope.? In re Pers. Restraint ofLain, 179 Wn.2d 1, 14, 315 P.3d 455 (2013). subjective expectation on the part of the plaintiff that a bene?t will be provided or continued does not create ,a property interest protected by the Constitution.? Coal. of Chiliwist v. Okanogan Cty., 198 Wn. App. 1016 (unpublished)4 (citing Clear Channel Outdoor v. Seattle Popular Monorail/lath, 136 Wn. App. 781, 784?86, 150 P.3d 649 (2007)). In other words, to succeed on his due process claim, Mr. Jalil must establish that the decision not to offer him pretrial diversion constitutes a deprivation of a protected entitlement created by some independent source other than his own unilateral hope or expectation. He cannot satisfy this burden, for a number of reasons: First, as a threshold matter, the Municipal Court failed to identify or apply any particular standard of due process in analyzing the policy. In State v. Heddrick, 166 Wn.2d 898, 904 n.3, 215 P.3d 201 (2009), the Supreme Court held that the appropriate due process standard for criminal matters, as articulated in Medina v. California, 505 US. 437, 446 (1992), is that a particular criminal procedure does not violate due process unless it ?offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.? Medina, 505 US. at 446. Against that standard, Mr. Jalil?s claim necessarily fails?there is no authority for the principle that the right to be considered for pretrial diversion after a sexual exploitation charge is ?so rooted in the traditions and conscience of our people as to be ranked as fundamental.? Heddrick, 166 Wn.2d at 904 n.3. Second, Mr. alil can assert no generalized right to receive (or even be considered for) pretrial diversion as a particular disposition. ?Pretrial diversion is an alternative to prosecution which allows diversion of selected offenders from the traditional criminal justice process.? United States v. Richardson, 856 F.2d 644, 647 (4th Cir. 1988).5 defendant has no right to be 4 Cited as nonbinding authority pursuant to GR 5 Although Mr. Jalil?s due process arguments are nominally raised under Article 1 Section 3 ofthe Washington Constitution, the language ofthat provision ?is virtually identical with that ofthe federal due process clause, [and] federal cases are [therefore] entitled to great weight.? State v. Davis, 38 Wn. App. D: I LLP APPLICATION FOR WRIT or REVIEW 9 4847-6623-3 66v.8 0002348-000029 1201 Third Ave Suilu 2200 WA OSIOJ Innin 206-757-7700 fax placed in pretrial diversion.? 1d. (citing United States v. Hicks, 693 F.2d 32, 34 (5th Cir. 1982)). ?The decision of whether a particular defendant will be allowed the opportunity to participate in the program is one entrusted to? the relevant prosecuting authority, which has ?broad discretion in determining which defendants are best suited for pretrial diversion.? 1d. (citing Wayte v. United States, 470 U.S. 598 (1985)). As the United States Supreme Court recognizes, the exercise of this discretion is ?particularly ill-suited to judicial review,? and courts are understandably ?hesitant to examine the decision whether to prosecute.? Wayte, 470 U.S. at 607?08. Third, unlike a decision about whether and what charges to bring, the use of pretrial diversion (at least in this case) is a nonstatutory remedy, created and supervised by the prosecuting authority, subject only to the requirement that it not be operated ?in an unconstitutional or discriminatory manner.? Richardson, 856 F.2d at 647. To demonstrate a violation, then, a ?defendant must establish not only that he has been singled out while others similarly situated have not been prosecuted but also that the decision to prosecute was based on impermissible considerations.? 1d. Mr. alil did not and cannot meet either of these tests. Indeed, his initial Motion for Diversion did not contest that the policy applies to those similarly situated: ?rst-time offenders charged with sexual exploitation. Nor did he allege? much less establish?any impermissible consideration that impacted the decision to apply its policy to his case. Accordingly, Mr. alil failed to identify any generalized due process entitlement to receive a diversion in his case. Fourth, there is no independent source of law that creates a protected liberty interest for Mr. alil entitling him to receive a diversion. In granting Mr. Jalil?s request for relief, the Municipal Court determined that SMC 12A.10.070 ?contemplated that individuals charged with sexual exploitation would be given an opportunity for a deferred sentence, a deferred 600, 604, 686 P.2d 143 (1984). In any event, Mr. Jalil?s motion does not offer a comparative analysis under State v. Gimwall, 106 Wn.2d 54 (1986), or otherwise offer any rationale for diverging from federal authorities interpreting the Fourteenth Amendment to the U.S. Constitution. Davis Wright Tremaine LLP APPLICATION FOR WRIT OF REVIEW - 10 0mm 4847-6623-3166v8 000234 8-000029 1201 Third Ave Suilc 2200 WA 98 206-632-3l50 main 206-757-7700 fax prosecution, or a statutory or non?statutory diversion.? Coopersmith Decl. Ex. at 4. On the contrary, however, SMC sets mandatory fees for defendants who commit certain prostitution-related offenses. As to the crime of sexual exploitation, it reads: In addition to penalties set forth in Section 12A.10.040, a person who is either convicted or given a deferred sentence or a deferred prosecution or who has entered into a statutory or nonstatutory diversion agreement as a result of an arrest for violating Section 12A.10.040 shall be assessed a fee in the amount of One Thousand Five Hundred Dollars ($1500.00) if the person has no prior convictions SMC The mere fact that the statute references ?deferred prosecution? and ?nonstatutory diversion agreements,? imposing a fine if either is pursued, does not accord any particular defendant a due process right to receive such remedies. The statute does not, for example, mandate that the City Attorney establish a pretrial diversion program or offer it to particular offenders, nor does it create any right to such a program.6 Finally, the general policy of not offering diversion but instead requiring a guilty plea for sexual exploitation crimes is not an outlier, but instead aligns with the consistent regional approach taken by other jurisdictions. The King County Prosecutor?s Office and the City of Bellevue have both adopted policies that are substantively identical to the City?s policy. See Coopersmith Decl. Ex. (Decl. of Valiant Richey) Ex. (Decl. of Stephen Penner). A 6 State v. Harrier, 153 Wn.2d 228, 103 P.3d 738 (2004) forecloses such an argument. In that case, defendants challenged their conviction on due process grounds, asserting that the county they were convicted in did not provide them with access to diversion through a drug court. Id at 23 6?37. Similar to Mr. alil, defendants in Harrier pointed to a statute that enabled (but did not require) counties to establish drug court programs, and alleged a due process interest arising from that statute. Id. at 237?3 8. The Washington Supreme Court rejected this claim. Id. It noted that, like the penalty statute above, the drug-court statute did not ?mandate that counties establish drug courts, or create any right to treatment for drug offenders,? but rather gave counties ?broad discretion to decide? whether to create drug courts and to develop guidelines for their. use. Id. at 237. In sum, statutory language that contemplates the existence of?but does not af?rmatively require?a particular pretrial disposition does not create a due process right in any defendant to receive that disposition. Davi l'l? (. LLP APPLICATION FOR WRIT OF REVIEW II 4847-6623-3l66v.8 0002348-000029 IZOI 'lhird A\c Sllilc 2200 Scaillc WA 206-622-3l50 main 206-757-7700 fax uniform regional approach ensures that no particular jurisdiction becomes a haven for those who procure sex workers and those who exploit them.7 Because Mr. Jalil has no statutory or due process right to receive or be considered for a pretrial diversion, the Municipal Court had no legal grounds to issue the Order, and its decision to do so constitutes obvious error. b. The Order Further Constitutes Obvious Error Because the Policy Does Not Deprive Mr. alil of Individualized Consideration. The Municipal Court?s Order analogized the policy to a ??xed formula requiring a particular action in every case upon the happening of a speci?c series of events,? Coopersmith Decl. Ex. at 3, and erroneously concluded the policy to not offer diversion to buyers of sex ?removes individualized consideration of each case, thus taking away prosecutorial discretion.? 1d. at 4. This too was error. The policy regarding diversion is directory, not mandatory?it does not require a particular action in every case of sexual exploitation. While a policy is deemed mandatory ?if a prosecuting attorney can be forced to comply or if a prosecutor's failure to comply has legal repercussions,? a directory policy, in contrast, ?only guide[s] and do[es] not limit the charging discretion of prosecuting attorneys.? State v. Rice, 174 Wn.2d 884, 896, 279 P.3d 849 (2012). The distinction between directory and mandatory charging policies is critical. While mandatory policies are viewed with greater skepticism?and, indeed, are routinely struck down when imposed by the legislative branch#directory policies are rarely, if ever, subject to judicial scrutiny. Compare State v. Pettite, 93 Wn.2d 288, 290, 609 P.2d 1364 (1980) (invalidating ?mandatory policy on ?ling habitual criminal [allegations]? against ?all defendants with three or more felonies?), with State v. Rowe, 93 Wn.2d 277, 282?83 609 P.2d 1348 (1980) (upholding 7 The Municipal Court?s decision to invalidate the City?s policy?particularly if affirmed by this Court? may have signi?cant region?wide implications, as King County and City of Bellevue may need to revisit their own policies. This decision could significantly impact the City of Bellevue?s recent prostitution sting. See Sara Jean Green, 110 arrested in Bellevue prostitution sting set up ?to ?ll void after Asian brothels shut down, The Seattle Times (Sept. 1, 2017), Davis Wright Tremaine LLP CITY 5 APPLICATION FOR WRIT OF REVIEW 12 mamas 4847-6623-3 66v.8 0002348-000029 20 Third Ave Suite 2200 Scultlc. WA 98 IOI 206-622-3 ISO main 206-757-7700 fax ?directory? policy for habitual criminal allegations because, despite policy?s use of the word ?shall,? it was clear that ?exceptions to these policies may be made in any case?). Applying these principles here, the policy is plainly directory. As the City represented at the hearing on Mr. alil?s motion, the criminal division chief has ?an open? door policy to discuss the facts of the case, the issues that are presented? and will consider diversion when compelling facts are presented. Coopersmith Decl. Ex. at 65:12-66:4. As the City explained, ?it?s not just all sexual exploitation cases are going to trial and we?re only offering deferred sentences. They are reviewed on an individual basis.? Id. at 66:5?9. The prosecutors certainly will not suffer any legal repercussions for requesting such an exception to this policy. Holmes Decl. 1] 17. Although exceptions to the policy may be reserved for unique circumstances, that constitutes the legitimate exercise of Mr. Holmes? prosecutorial discretion, re?ecting his belief about the seriousness of the crime of sexual exploitation, the social impact it has, and the importance of a public guilty plea in deterring future violations. Moreover, the Municipal Court entirely disregarded the individualized consideration and exercise of prosecutorial discretion that occurs in each case. The CAO exercises prosecutorial discretion from the moment it receives probable cause and evidence of a possible crime?most importantly in the decision of whether to charge a suspect with the crime of sexual exploitation. City prosecutors must give individualized consideration to each case before making a charging decision. Id. 18. That individualized consideration includes an assessment of the accused?s conduct, the nature and circumstances of the alleged crime, the amount and strength of the evidence, the credibility and availability of possible witnesses, potential defenses and mitigating circumstances, and whether charging lesser offenses is justi?ed, among many other factors. Id. In light of the general policy not to offer diversion for those charged with sexual exploitation, the individual consideration also necessarily includes an assessment of whether to charge an offender with sexual exploitation when the offender will likely be ineligible for diversion. Id. This sort of individualized consideration amply satis?es Mr. Holmes?s duty to exercise his prosecutorial discretion in good faith. Davis Wright Tremaine LLP APPLICATION FOR WRIT OF REVIEW - 13 New? 4847-6623?3 66v.8 0002348-000029 1201 Thin] Ave Suilc 2200 WA 200-622-3I50 mnin 306-757-7700 Fax The Municipal Court?s conclusion to the contrary was obvious error. e. The Municipal Court?s Error Renders Further Proceedings Useless. The Municipal Court?s Order is tantamount to an order directing the CA0 to offer Mr. Jalil diversion. Although nominally couched as an order to ?review th[e] case for possible diversion,? the Municipal Court has in effect instructed the CA0 it can no longer apply its standard policy to not offer diversion to defendants charged with sexual exploitation. But the Order identi?es no other information the CA0 must?or even can?consider in conducting this supposed ?review.? Indeed, Mr. alil has offered no additional information (other than Mr. alil?s age and lack of criminal history) to the CA0 that it could consider in such a ?review.? Id. 11 25. In essence, the Municipal Court disagrees with the decision to not offer diversion, and has issued a directive to ?do it again??without any information or instruction on how the CA0 should do so, or what additional information it should consider. The CAO does not believe diversion is appropriate in Mr. alil?s case. However, without any new information to consider or review, the only option available to the CA0 to demonstrate compliance with the Order is apparently to offer Mr. alil diversion, deSpite its desire not to do so. If the CA0 offers Mr. alil diversion, as the Municipal Court apparently intends, this offer will obviate any further proceedings in the case. Mr. alil will receive a stipulated order of continuance, and the case will eventually resolve by voluntary dismissal (assuming Mr. alil complies with the terms of that continuance) or conviction (assuming he does not). Following either of those outcomes, the City would have no basis to appeal. Thus, the Municipal Court?s Order, which effectively directs the CA0 to extend an offer of diversion, will render further proceedings in the case immaterial. Even if the Municipal Court?s intention was for the CA0 only to ?consider? diversion and not necessarily to agree to it, the Order would still appropriately be reviewed by this Court on the requested writ because having to ?consider? what it already has considered and rejected as Davis Wrighl Tremaine LLP APPLICATION FOR WRIT OF REVIEW - 14 0mm 4847-6623-3166v8 0002348-000029 I20: Third Ave Suilc 2200 Seatlle. WA 98 206-622-3 I 50 main 200-757-7700 l'nx charging option constitutes an impermissible interference with the prosecutorial discretion of the CA0. Moreover, as noted above, Mr. alil pointed to no individualized facts or circumstances that should lead to offering him a diversion, beyond his status as a ?rst-time offender. This status, however, is a categorical attribute common to many defendants charged with sexual exploitation, and as such lends itself to a policy decision as a matter of prosecutorial discretion by the CA0. The Municipal Court pointed to no individualized factors in Mr. alil?s case that could guide a new ?review? of whether diversion is appropriate. In essence, the Municipal Court is attempting to replace the well?considered judgment with its own views as to whether ?rst-time offender status, standing alone, should result in a prosecutorial decision to offer diversion. This the Court may not do. 2. The Order Constitutes Probable Error, Substantially Alters the Status Quo, and Substantially Curtails the City?s Freedom. This Court should additionally conclude that the Municipal Court ?acted illegally? because its decision constitutes ?probable error? and ?substantially alters the status quo or substantially limits the freedom of a party to act.? City of Seattle v. Holi?eld, 170 Wn.2d 230, 244?45, 240 P.3d 1162 (2010). Here, the Order constitutes probable error for all of the same reasons it constitutes obvious error, as explained above. Additionally, as we explain below, the Order substantially alters the status quo by effectively invalidating the policy and calling into question whether the CA0 can, in fact, make a policy choice that the crime of sexual exploitation is sufficiently serious such that diversion based on ?rst?time offender status alone is not appropriate. It also substantially limits the City?s freedom to act by precluding the CA0 from enacting standardized charging and diSpositional policies. a. The Order Substantially Alters the Status Quo by Effectively Invalidating the Challenged CAO Policy and Calling into Question the Validity of Other Charging and Dispositional Policies. A lower tribunal?s order ?alters the statuts quo,? for purposes of a writ of review under RCW ch. 7.16, if it has ?an immediate effect outside the court room,? or has ?effects beyond the Davis Wright Tremaine LLP APPLICATION FOR WRIT OF REVIEW 15 01mg 4847-6623-3 166v.8 0002348-000029 Izol Third Ave Suilc 2200 Seattle. WA 20(1-622-3l50 main 206-757-7700 fax parties? ability to conduct the immediate litigation.? State v. Howland, 180 Wn. App. 196, 207, 321 P.3d 303 (2014). By concluding that the policy violates due process, the Municipal Court?s Order applies not just to this case, but potentially to all future instances in which the City charges a defendant with the crime of sexual exploitation. The order effectively invalidates the policy and prevents the CA0 from applying it to future cases. Indeed, it calls into question whether the CA0 can maintain any uniform policy applicable to a category of individuals with the same attribute?in this case, ?rst-time-offender status. To comply with the Order, the CA0 must alter the way it exercises prosecutorial discretion by disregarding standardized policies in favor of individualized?and potentially arbitrary?decision?making. Indeed, for this reason the Order substantially interferes with the ability of Mr. Holmes and his leadership team to manage the CA0, because the Order potentially removes the ability to adopt uniform policies to ensure consistency in charging and plea decisions among the Assistant City Attorneys who prosecute cases. b. The Order Substantially Limits the Freedom to Implement Standard Policies Governing the Charging and Disposition of Offenses. When the court?s probable error substantially limits the freedom of a party to act, this constitutes an ?illegal? act for the purposes of RCW 7.16.040. Holi?eld, 170 Wn.2d at 244?45. A key component of the role of a prosecutor is his or her ability to exercise prosecutorial discretion and, when appropriate, prosecute a case to the fullest extent permissible under the law. The Order removes this freedom. It requires the CA0 to adhere to a specific course of conduct with each case of sexual exploitation. If every sexual exploitation case involving a first-time offender must essentially receive a diversionary recommendation, the least serious of any recommendation the CA0 may give, the CA0 cannot differentiate between a case with extremely strong evidence (126., a confession), and a case with evidentiary issues, such as a potential language barrier between the defendant and arresting of?cer. In both situations, the Davis Wright Tremaine LLP APPLICATION FOR WRIT or REVIEW - l6 WOFHCES 4847-6623-3166v.8 0002348-000029 Third Ave Suite 2200 WA 9Sl0l 206-622-3150 main 200-757-7700 tux Court?s ruling effectively mandates the same dispositionP?under the Municipal Court?s rationale, the offender is entitled to a diversion. The CAO presently weighs all evidentiary considerations in determining whether a defendant receives a dispositional continuance, a deferred sentence, a recommendation for a suSpended sentence, or some other disposition. Holmes Decl. ii 18. This use of discretion in making sentencing recommendations is critical to the prosecutor?s ability to effectively negotiate and resolve cases. In this case, the CAO appropriately exercised prosecutorial discretion, considering a number of factors before charging Mr. alil with sexual exploitation and declining to offer him a dispositional continuance as a result of that decision. Id. 18?19, 24. The Order takes away this freedom, and for that reason, a writ of review is appropriate. 3. The Municipal Court Departed from the Accepted and Usual Course of Judicial Proceedings. The Order is a departure from the well-established prohibition on judicial interference with prosecutorial discretion, therefore warranting this Court?s review. See Holz?eld, 170 Wn.2d at 244?45. By ordering the case to be reviewed for diversion, the Court imprOperly substituted its own Opinions and views for the reasoned prosecutorial charging and dispositional decision. Prosecutorial discretion?the ?most important prosecutorial power? ??allows for the consideration of individual facts and circumstances when deciding whether to enforce criminal laws, and permits the prosecuting attorney to seek individualized justice; to manage resource limitations; to prioritize competing investigations and prosecutions; to handle the modern ?proliferation? of criminal statutes; and to re?ect local values, problems, and priorities.? Rice, 174 Wn.2d at 901?02. ?Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.? Newman v. United States, 382 F.2d 479, 480 (DC. Cir. 1967). Davis Wright Tremaine LLP APPLICATION FOR WRIT or REVIEW - l7 moms ()002343-000029 I20I Third Ave SuiIc 2200 WA 9S 0l main 200-757-7700 fax branch of the court, subject to the court?s supervision.? Id. at 481 n.5. The prosecutor alone ?must determine the policies of that of?ce. On the rests the responsibility to determine whether to prosecute, when to prosecute and on what charges to prosecute. A case is not to be summarily dismissed because the court disagrees with some policy of the Id. While courts are free to ?accept or reject individual charge bargains? they ?should be wary of second-guessing prosecutorial choices. Courts do not know which charges are best initiated at which time, which allocation of prosecutorial resources is most efficient, or the relative of various cases and charges.? United States v. Miller, 722 F.2d 562, 565 (9th Cir. 1983) (internal citations omitted). ?There is a broad body of law recognizing the practical and legal necessity of vesting broad discretion in the government?s attorneys with respect to their enforcement of" criminal laws. United States v. Berrigan, 482 F.2d 171, 180 (3d Cir. 1973). This broad discretion includes a prosecutor?s ability to enter into and supervise pretrial diversion agreements. ?[D]iversion agreements are entered into and supervised by the prosecutor, as distinct from plea agreements, which are under the direct supervisory control of the court.? State v. Kessler, 75 Wn. App. 634, 639, 879 P.2d 333 (1994). A court?s role in relation to diversion agreements ?consist[s] primarily of assuring procedural regularity throughout the criminal justice process,? not interfering with a prosecutor?s determination as to which charges to bring and whether to offer a pretrial diversion. State v. Marina, 100 Wn.2d 719, 724, 674 P.2d 171 (1984). The Order ?second guess[es] prosecutorial choices,? Miller, 722 F.2d at 565, and substitutes Mr. Holmes? decision to enact the policy?and his employees? decision to apply that policy without seeking an exception?with the Municipal Court?s own view of the case. The Order raises many practical considerations, illustrating why courts are generally prohibited from this type of judicial intervention: First, although it purports to require the CA0 to ?review? the case and reevaluate its decision not to offer diversion, the Order offers no clari?cation about what factors or information should be considered. Mr. Jalil certainly offered none, other than his age and his preference for Davis Wrighl Tremaine LLP APPLICATION FOR WRIT OF REVIEW 18 0mm. 4847-6623-3166v.8 0002348-000029 1201 Third Avc Suile 2200 Seattle. WA 98 IOI 206-622-3150 mnin 206-757-7700 fax the old practice of offering diversion to ?rst?time sexual exploitation defendants like him. The CAO simply has no idea how to comply with the Order. Second, because the Order is bereft of guidance about what factors or information should be considered, the Order effectively vests the Municipal Court with unfettered discretion to measure whether the CA0 has complied. In other words, it empowers the Municipal Court to decide whether Mr. alil (and future defendants) should be offered diversion, as the Municipal Court can simply order a ?review? whenever it disagrees with the decisions. Third, the Municipal Court has no way to measure compliance with its Order. If the CA0 reports that it has reviewed the case and reached the same determination, and Mr. alil again challenges that determination, the Municipal Court has no way to evaluate whether the CA0 has conducted the required review. Does the com?: intend to question Mr. Holmes or the Assistant City Prosecutor handling the matter on what factors the CA0 used and how it weighed each factor? Does it intend to af?rmatively direct the CAO to offer diversion to Mr. alil if it disagrees with the ?review?? These questions illustrate the slippery slope inherent in the Municipal Court?s ruling and the rationale supporting the judiciary?s established restraint from interference in prosecutorial discretion. ?Courts are jealous, and so, of their prerogatives, and for that reason should carefully refrain from encroachment on the prerogatives of another department of the Government.? United States v. Show, 226 A.2d 366, 368 (DC. 1967). For all of these reasons, this Court should conclude that the Municipal Court ?acted illegally? within the meaning of RCW 7.16.040. B. There Is No Appeal or Adequate Remedy at Law. ?The absence of a right of appeal or plain, speedy, and adequate remedy at law is recognized as an essential element of the superior court?s jurisdiction to grant a statutory writ of review.? Coballes v. Spokane Cty., 167 Wn. App. 857, 866, 274 P.3d 1102 (2012); see also Clark Cty. Pub. Util. Dist. No. v. Wilkinson, 139 Wn.2d 840, 846, 991 P.2d 1161 (2000). Inadequacy ?is shown only where it is apparent to th[e] court that it will not be able to protect the Davis Wright Tremaine LLP APPLICATION FOR WRIT OF REVIEW - 19 mamas 4847-6623-3166V.8 0002348-000029 20 Thirrl Ave Suile 2200 Scatllc. WA 98 I01 206-622-3 I50 main 206-757-7700 fax \000?rights of litigants or afford them adequate redress, otherwise than through the use of State ex rel. Pub. Util. Dist. No. 1 of Pend Oreille Cty. v. S'chwab et al., 40 Wn.2d 814, 819, 246 P.2d 1081 (1952). There is no appeal or adequate remedy available to the City absent the issuance of the requested writ. Appeals from the Seattle Municipal Court, when lodged by the City, are controlled by the Rules for Appeal of Decisions of Courts of Limited Jurisdiction RALJ 2.2(c) sets forth which orders are appealable by the state government in a criminal case: (1) ?nal decisions; (2) pretrial orders suppressing evidence; (3) arrests or vacations of judgment; or (4) orders granting a new trial. The Municipal Court?s Order does not fall into the latter three categories, so the only remaining question is whether it constitutes a ??nal decision.? Although the term ??nal decision? is not explicitly de?ned in the RALJ rules (but see RALJ (listing several kinds of additional orders that qualify as ?nal decisions)), the court in State v. Taylor considered a similar unde?ned judgment??in the RAP rules and adopted a de?nition from Black?s Law Dictionary: court?s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes, attorney?s fees) and enforcement of the judgment.? Taylor, 150 Wn.2d 599, 602, 80 P.3d 605 (2003). In a criminal proceeding, a ?nal judgment ends the litigation, leaving nothing for the court to do but execute the judgment. Id. The Municipal Court?s Order does not qualify under this de?nition. As a result, the Order is interlocutory, and therefore, under the RALJ rules, can only be reviewed on appeal from the ultimate judgment. Commando: v. Cary, 143 Wn.2d 651, 656, 23 P.3d 1086 (2001). Thus, until the Municipal Court enters a ?nal decision, the City has no means of obtaining direct appellate review in the superior court. In the meantime, the CA0 will be forced to comply with the Order, which will effectively render any subsequent appeal moot because the Order constitutes a clear and egregious interference with the City Attorney?s exercise of the prosecutorial discretion vested in him by the peeple of the City of Seattle. Dav's Wr'al lTr= 2' LLP APPLICATION FOR WRIT OF REVIEW 20 4847-6623-3166v.8 0002348-000029 20 Third Aw: Suite 2200 WA 206-622-3 50 main 206-757-7700 fax The Court Should Stay Further Proceedings in the Municipal Court Until Final Judgment is Entered in this Proceeding. If the Court grants the requested writ of review, the Clerk Of the Seattle Municipal Court will transmit the record and transcript of the Municipal Court proceedings tO this Court for review. RCW 7.16.060?.070. Upon receipt, the assigned Judge will review the record, may consider further brie?ng from the parties, and will enter ?nal judgment on the matter. RCW 7.16.130; Although the City asks that this proceeding be concluded as expeditiously as possible, ideally within thirty (30) days after issuance of the writ, the City requests that the Municipal Court case be stayed while the proceedings in this Court are conducted. RCW 7.16.070 suggests the issuance of a stay is commonplace and expected under these circumstances (126., the writ ?must command the party to whom it is directed in the meantime, to desist from further proceedings in the matter to be reviewed?); however, the decision of whether to issue a stay is committed to this Court?s ?sound discretion.? RCW 7.16.080. In evaluating whether to stay, the Court considers whether the issue presented by this proceeding is debatable, and whether a stay is necessary to preserve for the City the fruits of a successful appeal, considering the equities of the situation. See Purser v. Rahm, 104 Wn.2d 159, 177, 702 P.2d 1196 (1985). Here, a stay is vital to preserve this Court?s jurisdiction and to preserve the outcome of this proceeding. If no stay is entered, the City will be forced to comply with the Order. If it decides (again) not to offer a diversion, this proceeding will be unnecessary. If the City elects to Offer a diversion, it is accepted, and the case is eventually dismisSed following Mr. alil?s compliance, then the City may not be able to challenge the Order under the invited error doctrine, as it will have asked the Municipal Court to enter the diversion it seeks to challenge. On the other hand, if a diversion is offered and the defendant is unsuccessful and convicted of sexual exploitation, then the City cannot appeal as it would not be an aggrieved Davis Wright Tremaine LLP APPLICATION FOR WRIT OF REVIEW - 21 W, ems 4847-6623-3166v.8 0002348-000029 I20I Third Ave SuiIc 2200 Seattle. WA 9810] 206-622-3 ISO main 206-757-7700 fax party under RALJ 2. (?Only an aggrieved party may appeal?). In other words, if the City complies with the Order, this proceeding becomes moot. A stay is therefore warranted. IV. CONCLUSION For these reasons, the City requests this Court grant this application for a writ of review and, (ii) pursuant to RCW 7.16.070, stay all further proceedings in the Seattle Municipal Court pending issuance of ?nal judgment in this case. The City further requests the Court set a dispositive hearing and issue ?nal judgment vacating the Order within thirty (30) days following issuance of the writ. RESPECTFULLY SUBMITTED this 7th day of September, 2017. PETER S. HOLMES SEATTLE CITY ATTORNEY DAVIS WRIGHT TREMAINE LLP By @5761 43% Jeffrey B. Coo?ersmith, James H. Corning, WSBA #45177 Rachel H. Herd, WSBA #50339 1201 Third Avenue, Suite 2200 Seattle, Washington 98101 Phone: (206) 622-3150 Fax: (206) 757?7700 Email: jeffcoopersmith@dwt.com jamescorning@dwt.com rachelherd@dwt.com Attorneys for the City of Seattle APPLICATION FOR WRIT OF REVIEW - 22 Dav? {3313;113:1316 LLP 4847-6623-3166v.8 0002348-000029 1201 Third Ave Suilc 2200 WA 9810 206-622-3150 main 200-757-7700 Fax DECLARATION OF FILING AND SERVICE I certify that on the 7th day of September, 2017, I ?led the foregoing City of Seattle?s Application for Writ of Review with the Clerk of the King County Superior Court, and caused a copy of the same to be served upon the following by legal messenger and by email: Robert W. Goldsmith 1300 Hoge Bldg. 705 Second Avenue Seattle, Washington 98104 Phone: (206) 623-1591 Fax: (206) 623-4965 Email: bobgoldsmith@hotmail.com Attorney for Defendant Kareem Jalz'l I flirther certify under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct, and that this proof of service was executed this 7th day of September, 2017, at Seattle Washington. r" We Silva Legal Assistant Davis Wright Tremaine LLP APPLICATION FOR WRIT OF REVIEW 23 0mm 4847-6623-3 I 66v 8 0002348-000029 20 Third Ave Suilc 2200 WA 98 206-622-3l50 nmin 206-757-7700 fax