1 2 3 4 5 6 7 8 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY 9 10 CITY OF SEATTLE, a municipal corporation, No. 11 Petitioner/Plaintiff, PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF 12 vs. 13 14 15 KING COUNTY EXECUTIVE, DOW CONSTANTINE, in his official capacity, and ADMINISTRATOR MICHAEL SPEARMAN, in his official capacity. 16 Respondents/Defendants. 17 18 19 The Petitioner/Plaintiff, the City of Seattle (“City”) on behalf of the Seattle Police Department (“SPD”), respectfully petitions the court for a Writ of Prohibition, Writ of Review, and 20 for Declaratory Relief. In support thereof, the City states as follows: 21 INTRODUCTION 22 1.1 Washington’s inquest laws “date[] back virtually unchanged to the 1854 territorial laws of 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 1 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 Washington.” BNSF Ry. Co. v. Clark, 192 Wash. 2d 832, 838, 434 P.3d 50, 54 (2019). Their 2 legislative purpose is also unchanged: “to determine who died, what was the cause of death, 3 and what were the circumstances surrounding the death, including the identification of any 4 actors who may be criminally liable for the death.” Carrick v. Locke, 125 Wn.2d 129, 133, 882 5 P.2d 173, 176 (1994) (citing Wn. Rev. Code Ann. 36.24.040). 6 1.2 The State of Washington worked to implement several changes in the area of police 7 accountability – the amendment of Wn. Code Rev. Ann 9A.16.040 and the ongoing efforts to 8 implement I-940. Separate and apart from those state legislative changes, King County 9 Executive Dow Constantine conducted his own rulemaking and implementation of inquest 10 reforms beyond the constraints imposed by long-established state law. 11 1.3 Executive Constantine’s Executive Order (“EO”) governing King County inquests expands the 12 scope and alters procedures to create a quasi-civil quasi-criminal proceeding not contemplated 13 by the Coroner’s Statute, R.C.W. 36.24 et seq. The EO now requires inquiry into whether the 14 involved subject law enforcement officers complied with their own agency’s policy and 15 training; compels testimony of agency representatives and chiefs of police; conditions officer 16 representation on a waiver of rights; and leaves interpretive room for the exchange of heavy 17 pre-inquest discovery, depositions, and civil litigation evidentiary balancing. 18 19 1.4 The EO exceeds the authority vested in the Executive by the Coroner’s Statute, R.C.W. 36.24 et seq. and the King County Charter, Section 895. (See Sharifi Dec., ¶ 2, Ex. 1). 20 1.5 Michael Spearman, the appointed Administrator in the two pending SPD inquests must balance 21 the directives of the EO, the interests of the parties, the interests of the Executive, who 22 appointed the Administrator, and ultimately the confines of State law. While Administrator 23 Spearman has done an exceptional job in managing the balance, some of his discretionary PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 2 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 decisions interpreting the EO are inconsistent with the stated purpose of inquests under state 2 law. 3 1.6 This Court should grant the City’s writs of prohibition and review to curtail the overreach of 4 authority by the King County Executive. This Court should grant the City’s request for 5 declaratory relief finding the EO invalid and restoring the inquest process to harmony with the 6 Coroner’s Statute that authorizes it. 7 PARTIES 8 3.1 The City of Seattle is a governmental entity and political subdivision of the State of Washington, 9 duly organized under the State of Washington and located in King County. The Seattle Police 10 Department (“SPD”) is a City of Seattle Department established under Article VI of the City’s 11 Charter. 12 3.2 King County Executive Dow Constantine is the elected Executive of the County of King. As party 13 of his responsibilities, Executive Constantine is charged with administering inquests in King 14 County by authority of Wn. Rev. Code Ann. 36.24 et seq., King County Charter § 895, and King 15 County Code 2.35A.090.13. 16 17 18 3.3 Administrator Michael Spearman is the quasi-judicial Administrator, appointed by Executive Constantine, who made discretionary decisions at issue in the City’s writ. JURISDICTION 19 3.4 This Court has subject matter jurisdiction under Wn. Rev. Code Ann. 7.16.290 and 7.16.040. 20 3.5 Personal jurisdiction and venue are proper under Wn. Rev. Code Ann. 4.12.020 and 7.16.060. 21 3.6 The Court has personal jurisdiction over respondents, as the parties are all located in King County, 22 Washington the complained of events occurred in King County. 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 3 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 FACTUAL BACKGROUND 1 2 I. The Coroner’s Statute and Statutory Framework 3 4.1 Coroners’ inquests are governed by Wn. Rev. Code Ann. 36.24 et seq. Section 895 of the King 4 County Charter provides that an inquest “shall be held to investigate the causes and circumstances 5 of any death involving a member of the law enforcement agency of the county in the performance 6 of the member’s duties.” King Cty. Charter § 895. King County Code (KCC) Chapter 2.35A 7 created a division of the medical examiner within the Seattle-King County Department of Public 8 Health and assigned to it most of the coroner’s duties under Wn. Rev. Code Ann. 36.24 et seq. 9 "except for the holding of inquests, which function is vested in the County Executive" under KCC 10 2.35A.090.13. 11 II. 12 King County Executive Order Governing Inquests a. Background 13 4.2 On December 4, 2019, Executive Constantine issued the controlling Executive Order (“EO”) 14 governing inquests in King County. (Sharifi Dec, ¶ 2, Ex. 1). Prior to this EO’s release, a similar 15 EO was signed and entered by Executive Constantine on October 3, 2018. (Sharifi Dec., ¶ 3, Ex. 16 2). The December 4, 2019 EO rescinded and replaced the October 3, 2018 EO. (Sharifi Dec., Ex. 17 1, Appx. 1, ¶ 10.0). 18 4.3 On December 12, 2017, Executive Constantine “[e]stablished a six-member committee to review 19 and reexamine the inquest process to determine what, if any, changes could be made to improve 20 the process both for the public and the affected parties.” (Sharifi Dec., ¶ 4, Ex. 3). 21 22 4.4 In March 2018, the King County Inquest Process Review Committee released its Report and Recommendation. (Id.). 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 4 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 4.5 The Report and Recommendation contains much of the language of the current Executive Order and its predecessor. (Id.). 2 3 4.6 The Committee highlighted in a portion of its report, “[T]he Committee’s work was guided . . . 4 [in part] by the need to balance the consensus around change against constraints imposed by due 5 process and existing state and local law.” (Id. at p. 7) (emphasis added). 6 4.7 The Committee noted, “[a] strong source of frustration with the current process was that it had 7 evolved to take an overly narrow, often rigid view of the scope of the inquiry. [T]he inquest is the 8 appropriate forum for the community – through the jury – to consider issues and express its views 9 on the important question of how deaths in similar circumstances may be prevented.” (Id.). 10 4.8 The Committee made several recommendations that were largely incorporated into the current Executive Order. (See id.; Sharifi Dec., Ex. 1) 11 12 4.9 Concurrent with the October 3, 2018 EO, the Department of Executive Services, released a 13 comparison matrix and a summary overview of the revisions to the inquest process. (Sharifi Dec., 14 ¶ 5, Exs. 4 and 5). 15 4.10 On April 17, 2018, before the first inquest was called, the City of Seattle met with 16 representatives from the King County Executive’s Office to address a myriad of unanswered 17 questions about the changes in the inquest process. (Sharifi Dec., ¶ 6). A copy of the questions 18 and topic areas were transmitted to the Office of the Executive for consideration and follow-up. 19 (Sharifi Dec., ¶ 7, Ex. 6). 20 4.11 Several weeks later, the City received a partial response to its list of questions. These responses 21 form the “FAQs” identified on the Inquest Program Website. (Sharifi Dec., ¶ 8, Exs. 7 and 8). 22 / 23 / PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 5 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 2 b. Stated Purpose and Affected Parties 4.12 Appendix 1, §§ 2.2 and 2.3 of the Executive Order identifies the purpose and limitations of 3 inquests as defined by Executive Constantine. It notes: 4 The purpose of the inquest is to ensure a full, fair, and transparent review of any such death, and to issue findings of fact regarding the facts and circumstances surrounding the death. The review will result in the issuance of findings regarding the cause and manner of death, and whether the law enforcement member acted pursuant to policy and training. 5 6 7 8 The purpose of the inquest is not to determine whether the law enforcement member acted in good faith or should be disciplined or otherwise held accountable, or to otherwise find fault, or to determine if the use of force was justified, or to determine civil or criminal liability. It is acknowledged that the facts determined in the course of the inquest may sometimes have an indirect bearing on such determinations. 9 (Sharifi Dec., Ex. 1). 10 4.13 Appendix 1, Section 3.0 identifies the agencies affected. The Seattle Police Department is 11 categorized as a “law enforcement agency within King County.” (Sharifi Dec., Ex. 1). Appendix 12 2, Section 3.2 mirrors the above-referenced purpose: 13 14 15 the inquest scope shall include an inquiry into and the panel shall make findings regarding the cause, manner, and circumstances of the death, including applicable law enforcement agency policy. The panel shall make findings regarding whether the law enforcement officer complied with applicable law enforcement agency training and policy as they relate to the death. 16 (Sharifi Dec., Ex. 1, Appx. 2, ¶ 3.2). 17 4.14 The EO defines the roles of the inquest staff – all selected by, compensated by, and directly 18 answerable to the King County Executive (Sharifi Dec., ¶ 4, Ex. 3; Sharifi Dec., Ex. 1, Appx. 1, 19 20 21 ¶¶ 5.10-5.12). Appendix 1, Section 5.10 of the EO identifies the “administrator” as the “[p]resider of the inquest proceeding, selected from a roster approved by the County Executive, who presides over a particular inquest proceeding.” (Sharifi Dec., Ex. 1). EO Appendix 1, ¶ 7.2 22 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 6 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 states that if an inquest is to be held, “the Executive shall direct an administrator conduct the 2 inquest on the Executive's behalf.” (Id.). 3 4 4.15 The EO identifies the parties as the family of the deceased; law enforcement members; and the applicable law enforcement agency. (Sharifi Dec., Ex. 1, Appx. 2, ¶¶ 2.1-2.3). 5 4.16 The EO permits the family of the deceased and the applicable law enforcement agency to have 6 counsel to represent their interests in the inquest proceedings. The EO conditions representation 7 of the law enforcement officer involved in the incident (“involved officer”) on whether that 8 individual “[o]ffer[s] testimony subject to examination by the other participating parties.” 9 (Sharifi Dec., Ex. 1, Appx. 2, ¶ 2.2). 10 c. Discovery and Procedures 11 12 13 14 4.17 The EO defines the parameters of discovery and the inquest procedures. As to discovery scope, it notes: Discoverable material shall be exchanged among: the administrator and any pro tem attorney; the attorney representing the family of the deceased; the attorney representing the jurisdiction employing the involved law enforcement member(s); and the attorney representing the involved law enforcement member(s). 15 16 17 Discovery materials are to be used by the attorneys solely for the inquest proceeding. Such materials include the police and/or agency investigative file of the incident that resulted in the death. They also include the report of the medical examiner, crime laboratory reports, and the names, addresses, and summaries and/or copies of statements of any witnesses obtained by any party. 18 (Sharifi Dec., Ex. 1, Appx. 2, ¶¶ 4.1 and 4.2). 19 4.18 The EO permits the introduction of the criminal history of the decedent and the disciplinary 20 history of the involved officer, conditioned on relevance determinations by the Administrator. 21 (Sharifi Dec., Ex. 1, Appx. 2, ¶¶ 4.4-46). 22 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 7 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 d. Recording and media access 2 4.19 Recording and media access is addressed in the EO as follows: :”[t]he manager shall ensure 3 that the inquest proceedings are audio recorded and . . . made accessible to the public to the 4 greatest extent consistent with GR 16 . . . Consistent with Section 9, above, the administrator 5 shall make the proceedings available to the public and to the media, this includes video and 6 audio recording and still photography.” 7 e. Inquest Proceedings 8 4.20 In unusual manner, the EO compels the applicable law enforcement agency to designate 9 subject matter experts for testimony. This is akin to CR 30(b)(6) designations. The EO also 10 compels the “chief law enforcement officer” – regardless of agency – to offer evidence 11 regarding agency training and policy. Appendix 2, Section 12.3 of the EO states: 12 The employing government department shall designate an official(s) to provide a comprehensive overview of the forensic investigation into the incident (e.g., statements collected by investigators, investigators' review of forensic evidence, physical evidence collected by investigators, etc.). Additionally, the chief law enforcement officer of the involved agency or director of the employing government department shall provide testimony concerning applicable law enforcement agency training and policy as they relate to the death but may not comment on whether employees' actions related to the death were pursuant to training and policy; or any conclusions about whether the employee's actions were within policy and training. 13 14 15 16 17 (Sharifi Dec., Ex. 1, Appx. 2, ¶ 12.3). 18 4.21 The EO maintains a strong presumption against the exclusion of witnesses, but permits 19 discretionary decisions for “relevant, non-cumulative witnesses” to be excluded “in 20 exceptional circumstances.” (Id. at ¶ 12.4). 21 4.22 Without justification or condition, the EO excludes testimony or conclusion by the inquest 22 jury of “[t]he mental state of the involved officer(s), such as whether the officer thought the 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 8 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 decedent posed a threat of death or serious bodily injury to the officer(s)—or on the criminal 2 or civil liability of a person or agency.” (Id. at 14.2). 3 III. 4 4.23 The Executive has recently called two inquests involving SPD. Several more are expected 5 to follow. The first inquest is In re Death of Damarius Butts; the second pending inquest is In 6 re Death of Charleena Lyles. (Sharifi Dec., ¶ 10, Exs. 9 and 10). 7 8 9 10 11 Inquest Proceedings and Discretionary Decisions. a. In re Death of Damarius Butts 4.24 The October 3, 2018 Executive Order controlled at the time the Butts inquest was called. (Sharifi Dec., Ex. 2). 4.25 In Butts, the Family, the involved officers, and SPD each have separate counsel. There was no objection to the Officers’ counsel participating from the outset. (Sharifi Dec., ¶ 11). 12 4.26 Early in the case, counsel for the Family propounded written discovery demands to SPD – 13 these discovery demands mirrored those propounded in civil discovery. The discovery 14 extended far beyond the parameters of discovery allowed in inquests. (Sharifi Dec., Ex.,1; ¶ 15 12, Ex. 11); see Wn. Code Rev. Ann, 36.24 et seq. 16 17 4.27 Ultimately, the Administrator compelled the disclosure of certain discovery (Sharifi Dec., ¶ 13, Ex. 12). 18 4.28 Per inquest requirements and the Administrator’s order, SPD designated different witnesses 19 to address policy and training. SPD objected to the Chief of Police herself offering any 20 testimony. (Sharifi Dec., ¶ 14, Exs. 13 and 14). 21 22 4.29 SPD was also asked to identify relevant policy provisions and applicable training materials. (Sharifi Dec., ¶ 15). 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 9 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 2 4.30 As a result of the discovery orders from the Administrator, SPD produced several thousand pages of records. (Sharifi Dec., ¶ 16, Ex. 15). 3 4.31 The Family sought interviews of several witnesses – both fact witnesses and policy and 4 training witnesses. In a cooperative and collaborative effort, SPD policy and training 5 designees consented to interviews. (See September Order). Other individuals did not consent 6 to interviews. (Sharifi Dec., ¶ 17, Ex. 16). 7 4.32 The Family issued an expansive and overbroad topic list for the proposed policy and training 8 witnesses. (Sharifi Dec., ¶ 18, Ex. 17). Following heavy objection (Sharifi Dec., ¶ 19, Ex. 18), 9 the Administrator narrowed the scope of the topics addressed. (Sharifi Dec., ¶ 19, Ex. 19). 10 4.33 The Family moved to compel pre-inquest depositions of witnesses that did not consent to 11 pre-inquest interviews. The Officers and the City opposed the Family’s motion. (Sharifi Dec., 12 ¶ 20, Exs. 20 and 21). 13 14 15 16 4.34 The Administrator ordered certain depositions claiming authority to do so under RCW 26.24.200. (Sharifi Dec., ¶ 17, Ex. 16). 4.35 The Administrator issued an Order identifying the scope of inquiry, policies, and the witnesses. (Sharifi Dec., ¶ 21, Ex. 22). 17 4.36 This Order was subsequently modified. (Sharifi Dec., ¶ 22, Ex. 23). 18 4.37 Ultimately, pre-inquest subpoenas for deposition were not issued, as the lead Crime Scene 19 Investigation and Force Investigation Team detectives agreed to interviews. 20 4.38 On November 19, 2019, the Administrator issued an Order indicating that the Involved 21 Officers were required to disclose whether they intended to testify, otherwise their counsel 22 would be prohibited from participation. (Sharifi Dec., ¶ 23, Ex. 24). 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 10 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 4.39 On November 26, 2019, the Administrator concluded that the Involved Officers were 2 declining to testify. Despite the perceived refusal of the Officers to testify, the Administrator 3 still permitted their counsel to be present and represent the Officers’ interest at the inquest. 4 He noted, “I conclude that the Involved Officers are participating as described in Executive 5 Order, App. 2, Section 2.2, and may continue to be represented by counsel in this proceeding.” 6 (Sharifi Dec., ¶ 24, Ex. 25). 7 8 4.40 In anticipation of a December 9, 2019 Inquest date, the Administrator issued a proposed livestreaming, recording, and media order. (Sharifi Dec., ¶ 25, Ex. 26). 9 4.41 During the final December 4, 2019 pre-inquest conference, the parties were advised by 10 Inquest Attorney Matthew Anderson that the inquest program intended to have a live video 11 stream available online of the witnesses testifying, the exhibits being depicted (including 12 crime-scene photos, such as un-redacted photographs of the decedent), and the proceedings 13 overall. After the conclusion of the inquest and/or the hearing days, the video feed would be 14 uploaded onto third-party platform YouTube onto a permanent King County Inquest 15 “channel.” The parties jointly objected to this. The parties later filed a joint motion to limit 16 livestreaming and a social media upload. (Sharifi Dec., ¶ 26, Ex. 27). 17 4.42 In lieu of an Order on the parties’ joint livestream motion, Inquest Attorney Matt Anderson 18 sent an e-mail with the following: “In essence, the matter will be livestreamed. It’ll still be on 19 YouTube, but for 3 months. After that, if someone wants to view the hearings, they’ll have to 20 request it . . .” An Amended media order followed on January 9, 2020. (Sharifi Dec., ¶ 28; 21 Ex. 29). 22 4.43 Two business days before the first inquest proceeding, on December 5, 2019, the parties 23 attended a voluntary pre-inquest interview with the investigating Crime Scene Investigation PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 11 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 detective. In the middle of that interview, the parties were notified for the first time and 2 without warning via e-mail that Executive Constantine rescinded and replaced the October 3, 3 2018 EO. (Sharifi Dec., Ex. 1, Appx. 1, ¶ 10.0). 4.44 The Office of the Executive refused to provide a redline copy of the proposed changes. 4 (Sharifi Dec., ¶ 29). 5 6 4.45 The primary distinction between the October 3, 2018 and the new December 4, 2019 EO 7 was that the Executive changed the language of the Appendix 2, ¶ 2.2. The October 3, 2018 8 EO ¶ 2.2 stated: 9 The law enforcement member(s) involved in the death, who shall be allowed to have an attorney(s) present, provided that the law enforcement member(s) elect(s) to participate in the inquest proceeding. 10 In the December 4, 2019 EO, ¶ 2.2 states: 11 The law enforcement member(s) involved in the death, who shall be allowed to have an attorney(s) present, provided that the law enforcement member(s) elect(s) to offer testimony subject to examination by the other participating parties. 12 13 14 4.46 SPD and the Involved Officers immediately moved to stay. 15 4.47 During the December 6, 2019 pre-inquest hearing, Administrator Spearman recognized that 16 Executive Constantine disagreed with his ruling permitting the Officers’ counsel to continue 17 to participate in the inquest. Administrator Spearman recognized that the limitations of his 18 powers are at the discretion of the Executive. The Administrator also recognized that the 19 assessment of the Executive Order’s authority limiting Officer representation is within the 20 province of the Superior Court. The Administrator granted the stay requests pending a ruling 21 on a stay by the superior court. (Sharifi Dec., ¶ 30). 22 / 23 / PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 12 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 2 3 b. In re death of Charleena Lyles 4.48 The Lyles inquest is in its early stages. The October 3, 2018 EO controlled at the beginning of that inquest. (Sharifi Dec., ¶ 31). 4 4.49 The Family is represented by two sets of counsel– counsel involved in the civil action and 5 counsel retained by other family members; the Officers and SPD are separately represented. 6 (Sharifi Dec., ¶ 32) 7 4.50 At the outset, counsel for the Family moved to exclude the Officers’ legal representatives 8 unless the officers committed to testify. (Sharifi Dec., ¶ 33, See Ex. 30). Counsel for the 9 officers opposed the motion. (Sharifi Dec., ¶ 33, See Ex. 31). 10 11 12 13 14 15 16 17 4.51 Administrator Spearman permitted the Officers to participate through their counsel of record. (Sharifi Dec., ¶ 34, See Ex. 32). 4.52 The Family also propounded extensive and overbroad discovery to SPD. (Sharifi Dec., ¶ 35, Ex. 33). 4.53 SPD objected to most of the propounded discovery. The Administrator restricted a significant portion of the Family’s request. (Sharifi Dec., ¶ 36, Ex. 34). 4.54 Nonetheless, SPD still produced several thousand pages of discovery materials. (Sharifi Dec., ¶ 37, Ex. 35). 18 4.55 There has been a request for witness interviews by the Family. (Sharifi Dec., ¶ 38, Ex. 36). 19 4.56 No witnesses identified from SPD consent to interviews. (Sharifi Dec., ¶ 39). 20 21 22 PETITION FOR WRIT OF PROHIBITION AND REVIEW 5.1 The City adopts and incorporates by reference the allegations contained in the preceding paragraphs. 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 13 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 I. Procedural Framework and Background 2 5.2 As fully explained in the pleadings herein, the City meets the requirements for this Court to 3 issue a writ of prohibition and review against the Respondents because the Respondents have 4 exceeded their statutory authority and jurisdiction. Additionally, the law is clear that there is 5 no adequate remedy at law available to the City. (Sharifi Dec., ¶ 41). 6 5.3 A “[w]rit of prohibition . . . arrests the proceedings of any tribunal, corporation, board or 7 person, when such proceedings are without or in excess of the jurisdiction of such tribunal, 8 corporation, board or person.” Wn. Rev. Code Ann. 7.16.290 (2020). 9 5.4 “The statutory writ may be invoked to prohibit judicial, legislative, executive, or 10 administrative acts if the official or body to whom it is directed is acting in excess of its 11 power.” Brower v. Charles, 82 Wn. App. 53, 57, 914 P.2d 1202, 1204 (1996). The rules 12 governing Writs of Mandamus apply equally to writs of prohibition. Wn. Rev. Code Ann. 13 7.16.320 (West 2020). A “writ must be issued in all cases where there is not a plain, speedy 14 and adequate remedy in the ordinary course of law” upon affidavit on the application of the 15 party beneficially interested. Wn. Rev. Code Ann.7.16.170 (West 2020). 16 5.5 “A writ of review shall be granted by any court, except a municipal or district court, when an 17 inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction 18 of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void 19 proceeding, or a proceeding not according to the course of the common law, and there is no 20 appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law.” Wn. 21 Rev. Code Ann. 7.16.040 (West 2020); City of Seattle v. Holifield, 150 Wn.App. 213, 208 22 P.3d 24, review granted 167 Wn.2d 1001, 220 P.3d 207, reversed 170 Wn.2d 230, 240 P.3d 23 1162 (2009). PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 14 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 5.6 What constitutes a plain, speedy and adequate remedy depends on the facts of the case and 2 rests within the sound discretion of the court in which the writ is sought. Butts v. Heller, 69 3 Wn. App. 263, 265, 848 P.2d 213, 214 (1993) (citing State ex rel. Hodde v. Thurston Cy. 4 Superior, Ct., 40 Wash.2d 502, 517, 244 P.2d 668 (1952); State ex rel. O'Brien v. Police 5 Court, 14 Wash.2d 340, 348, 128 P.2d 332 (1942)). 6 5.7 “Every court that has examined the issue [of inquests] held that coroner inquests may not be 7 appealed or set aside by the courts.” In Re Boston, 112 Wn. App. 114, 118-19, 47 P.3d 956, 8 957-58 (2002). Direct appeal of inquests is “uniformly disallowed.” Id. Writ challenges to 9 inquest decisions and processes satisfies the prong requiring that a party have “no adequate 10 remedy at law” because “decisions surrounding coroners' inquests may not be directly 11 appealed or set aside by the court.” BNSF Ry. Co., 192 Wn. at 847. 12 II. Purpose of Inquests 13 6.1 Inquests are not intended as adversarial proceedings. Rather, inquests are intended to serve as 14 a method to determine the cause of death. Miranda v. Sims, 98 Wn.App. 898, 903, 991 P.2d 15 681, review denied, 141 Wn.2d 1003, 10 P.3d 404 (2000). Inquests are in “a gray zone at the 16 periphery of both the executive and judicial branches.” Carrick v. Locke, 125 Wn.2d at 139. 17 “The reason for holding an inquest is to obtain an objective, nonpartisan and independent 18 opinion as to the cause of death and the circumstances surrounding that death.” Id. (citing Wn. 19 Rev. Code 36.24.020, 36.24.040) (West 2020). 20 6.2 The statute clearly states that a coroner’s inquest is limited to “[i]nquire who the person was, 21 and when, where, and by what means he or she came to his or her death, and into the 22 circumstances attending his or her death, and to render a true verdict therein, according to the 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 15 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 evidence afforded them, or arising from the inspection of the body.” Wn. Rev. Code Ann. § 2 36.24.040 (West 2020). 3 6.3 The inquest jury’s verdict is limited to “[s]etting forth who the person killed is, if known, and 4 when, where and by what means he or she came to his or her death; or if he or she was killed, 5 or his or her death was occasioned by the act of another by criminal means, who is guilty 6 thereof, if known.” Wn. Rev. Code Ann. § 36.24.070. 7 III. Statutory Construction 8 7.1 “The court’s fundamental objective when interpreting statutes is to ascertain and carry out 9 the Legislature’s intent, and if the statute’s meaning is plain on its face, then the court must 10 give effect to that plain meaning as an expression of legislative intent.” Dep’t of Ecology v. 11 Campbell & Gwinn, LLC, 146 Wash.2d 1, 9-10, 43 P.3d 4 (2002) (citing State v. J.M., 144 12 Wash.2d 472, 480, 28 P.3d 720 (2001)) (internal citations omitted). 13 7.2 “Plain meaning is discerned from the ordinary meaning of the language at issue, the context 14 of the statute in which that provision is found, related provisions, and the statutory scheme 15 as a whole.” BNSF Ry. Co., 192 Wn. 2d at 837. 16 7.3 If the statute is ambiguous, we apply “principles of statutory construction, legislative history, 17 and relevant case law to assist us in discerning legislative intent.” Id. (citing Cockle v. Dep't 18 of Labor & Indus., 142 Wash.2d 801, 808, 16 P.3d 583 (2001)). 19 7.4 The statutory language, intent, and limitations of Wn Rev. Code Ann. Chapter 36.24 have 20 been largely unchanged since the inception of the laws of inquests in the State of Washington. 21 The legislature never expanded the scope or altered the ultimate purpose behind inquests. 22 BNSF Ry. Co., 192 Wn.2d at 838 (citing Carrick, 125 Wash.2d at 137-38) (“Chapter 36.24 23 RCW ‘dates back virtually unchanged to the 1854 territorial laws of Washington.’”). PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 16 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 7.5 “When it was originally adopted by the first legislative assembly of the Territory of 2 Washington, it stated that when the coroner learns of an unnatural death, ‘he shall go to the 3 place where the body is, and forthwith summon six good and lawful persons, qualified by 4 law to serve as jurors, to appear before him forthwith, at the place where the body of the 5 deceased is, to inquire into the cause of the death.’” Id. at 838-39 (citing LAWS OF 1854, § 6 3 at 436). 7 7.6 None of the subsequent amendments to the Chapter have ever broadened the ultimate intent 8 of the inquest—to inquire into the cause of death. The Executive seeks to place himself in 9 the position of the sovereign to do just that. 10 IV. Limitations of County Authority 11 8.1 The county is a political subdivision of the state and its power is limited strictly to that granted 12 by the state legislature. State ex rel. King County v. Superior Court for King County, 33 13 Wash.2d 76, 204 P.2d 514 (1949). The powers of a county can be exercised only by its county 14 commissioners, or by agents or officers acting under their authority or under authority of law. 15 State ex rel. King Cty. v. Superior Court for King Cty., 33 Wash. 2d 76, 80, 204 P.2d 514, 516 16 (1949). 17 8.2 An inquest is a statutorily created process that permits the coroner, “in his or her discretion,” 18 to “notify the superior court to provide persons to serve as a jury of inquest to hear all the 19 evidence concerning the death and to inquire into and render a true verdict on the cause of 20 death.” RCW 36.24.020(emphasis added). The inquest process, as set forth in state law, 21 includes the Coroner’s subpoena power to compel attendance at an inquest to determine cause 22 of death. RCW 36.24.050; see also BNSF Ry. Co., 192 Wn.2d at 837 (an “inquest is a 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 17 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 proceeding in which a jury, instead of the coroner, determines the cause of death of an 2 individual.”) (emphasis added). 3 8.3 The oath prescribed for a coroner’s jury is similarly limited, statutorily requiring the jury “to 4 inquire who the person was, and when, where, and by what means he or she came to his or 5 her death, and into the circumstances attending his or her death, and to render a true verdict 6 therein, according to the evidence afforded them, or arising from the inspection of the body.” 7 RCW 36.24.040. 8 8.4 In King County, the authority to conduct inquests has been delegated to the King County 9 Executive. See Carrick, 125 Wn.2d 129; KCC 2.35A.090. The EO recognizes that despite 10 the delegation to the County Executive, the original statutory grant of authority stems from 11 the language in RCW 36.24: “to inquire into the death of a person.” (Sharifi Dec., Ex. 1 at p. 12 1); Wn Rev. Code Ann. 36.24 et seq. (authorizing the county coroner to summon a jury to 13 inquire into the death of a person by suspicious circumstances). The King County Charter 14 Section 895 tracks the state statutory language, and states “An inquest shall be held to 15 investigate the causes and circumstances of any death involving a member of the law 16 enforcement agency of the county in the performance of the member’s duties.”) 17 8.5 There is nothing in the Revised Code of Washington or the King County Charter that expands 18 the authority for an inquest to inquire into anything other than the cause and circumstances of 19 the death of an individual. 20 8.6 Additionally, the authority of the coroner to compel witnesses and information to be presented 21 at an inquest is without discretion. Specifically, “[t]he coroner must summon and examine as 22 witnesses, on oath administered by the coroner, every person, who, in his or her opinion or 23 that of any of the jury, has any knowledge of the facts.” RCW 36.24.050. The Washington PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 18 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 Supreme Court clearly stated that a coroner “does not have the discretion to view a piece of 2 evidence or hear a particular witness statement and decide not to present it to the jury.” BNSF 3 192 Wn.2d at 841. As such, the statutory authority for a coroner does not include the ability 4 to pick and choose evidence – every person with knowledge of the facts shall be called to 5 testify. 6 V. The Superior Court Should Issue a Writ of Prohibition to Prohibit the Executive’s Overreach of Power. 7 9.1 The Executive exceeds the statutory authority vested in him by the expanded scope of the EO 8 taking an inquest inquiry into the realm of a quasi-civil and quasi-criminal action. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 a. The EO’s requirements to evaluate compliance with agency policy and training and compelling agency and chief testimony is inconsistent with the authority vested in the County Executive by state law. 9.2 The language of the EO clearly identifies that the purpose of an inquest in King County is now two-fold: (1) determine the facts and circumstances of the death as required by the County authority; and (2) evaluate whether the subject law enforcement officer complied with its own agency’s policy and training. (See Sharifi Dec., Ex. 1, ¶¶ 2.2, 3.2, 12.3). 9.3 The effect of these provisions is to expand the inquiry into matters of individual department policy and training, which is well beyond the scope of cause of death. Additionally, it compels the chief law enforcement officer to testify, who presumably will not have firsthand information about the circumstances of death and prevents him or her from offering any conclusions about whether the department found the actions of the officers to be within policy. 9.4 Policies and department interpretations are generally excluded in civil lawsuits specifically because they do not track legal requirements, but typically exceed them. See Whren v. United PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 19 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 States, 517 U.S. 806 (1996). Allowing policy considerations by lay jurors without training, 2 context, or the requisite background is simply bad public policy as it incentivizes departments 3 to put fewer requirements into policy. Regardless, both the expansion of the inquest inquiry 4 into departmental policy and training and compelling the attendance of the Chief without any 5 personal knowledge of the facts and circumstances of death is beyond the authority of the 6 King County Executive under the inquest process to determine the necessary facts that led to 7 the decedent’s death. 8 9 10 9.5 Nothing in the vesting statutory language or the historical framework for Washington’s inquest laws allows for such an overreach. b. Designation of quasi-judicial authority to an Administrator assigned by and answerable to the County Executive violates the appearance of fairness doctrine. 11 9.6 Appendix 1, Section 5.10 of the EO identifies the “administrator” as the “[p]resider of the 12 inquest proceeding, selected from a roster approved by the County Executive, who presides 13 over a particular inquest proceeding.” (Sharifi Dec., Ex. 1, Appx. 1, ¶ 5.10). 14 9.7 All the identified administrators are selected by and answerable to the County Executive. 15 (Sharifi Dec., ¶ 9). 16 9.8 “[T]he appearance of fairness doctrine is directed at the evil of a biased or potentially 17 interested judge or quasi-judicial decisionmaker.” State v. Post, 118 Wn.2d 596, 618-19, 826 18 P.2d 172, 837 P.2d 599 (1992). 19 9.9 “The law goes farther than requiring an impartial judge; it also requires that the judge appear 20 to be impartial.” Id. at 618 (citing State v. Madry, 8 Wn. App. 61, 70, 504 P.2d 1156 (1972)). 21 9.10 The doctrine applies to “[a]dministrative tribunals acting in a quasi-judicial capacity in two 22 circumstances: (1) when an agency has employed procedures that created the appearance of 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 20 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 unfairness and (2) when one or more acting members of the decision-making bodies have 2 apparent conflicts of interest creating an appearance of unfairness or partiality. City of 3 Hoquiam v. Pub. Employment Relations Comm'n of State of Wn., 97 Wn.2d 481, 488, 646 4 P.2d 129, 132 (1982) (internal citations omitted). 5 9.11 Under the EO, administrators do not meet the appearance of fairness and impartiality. They 6 are subject to the whims of the County Executive. (See Sharifi Dec., ¶ 30). The administrators 7 ultimately answer to the same rulemaking and promulgating body without the benefit of 8 independence. (Id.). 9 9.12 In fact, the exact framework adopted by the Executive violates the Washington Supreme 10 Court’s decision in Carrick. “An inquest conducted by an officer under the direct control of 11 the County Executive could not provide the necessary assurances of impartiality the public 12 expects from an inquest. Not only is the County Executive not bound in his delegation 13 powers, fairness concerns dictate that he assign the inquest task to someone outside of his 14 immediate authority, such as a district court judge.” Carrick, 125 Wn.2d at 143 (emphasis 15 added). 16 17 18 19 9.13 This Court should prohibit the Executive from violating the principles of the appearance of fairness doctrine through the EO and the appointment of his own quasi-judicial body. c. Conditioning the legal representation of the involved officers on their waiver of rights to testify is an improper exercise of discretion and a violation of the appearance of fairness doctrine. 20 9.14 The crux of the revisions in the December 4, 2019 EO was to deprive the involved and 21 subject officers of their right to counsel unless the involved officers waived any rights they 22 may possess and consent to testimony at the inquest subject to cross examination. (Sharifi 23 Dec., Ex. 1, Appx. 2, ¶ 2.2). PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 21 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 9.15 The purpose of an inquest is to determine the identity of the deceased, the cause of death, 2 and the circumstances of the death, including an identification of any actors who may be 3 criminally liable. RCW 36.24.040; Carrick, 125 Wn.2d at 133. 4 5 9.16 This potential for criminal charges makes the right to invoke due process constitutional protections and the right to representation inviolable. 6 9.17 Washington courts recognize the unique position of an involved officer in an inquest due to 7 a risk of prosecution. See Miranda v. Sims, 98 Wn. App. 898, 908–09, 991 P.2d 681, 687 8 (2000) (“[h]ere, the family's participation and interest in the proceeding is fundamentally 9 different from that of the [officers]. The [officers] involved in the inquest may have had 10 important knowledge of [decedent’s] death and maybe civilly or criminally liable.”). 11 9.18 Wn. Rev. Code Ann. 36.24 et seq. is silent on counsel representation at inquests. The 12 statutory authority also does not condition the fact-finding purpose of the inquest on a party’s 13 deprivation of certain rights. 14 9.19 The EO permits all parties except the officers to have counsel without pre-condition. (See 15 Sharifi Dec., Ex. 1). The EO also purports to encourage a “full, fair, and transparent review” 16 of a death. Inexplicably, the County Executive views “full, fair, and transparent” as an 17 arbitrary curtailment of the rights of only one party. 18 9.20 The EO violates the appearance of fairness doctrine because the Executive, through the EO 19 “employ[] procedures that create[] the appearance of unfairness.” See City of Hoquiam., 97 20 Wn.2d at 488. The language and conditions in the EO target only one party without 21 justification and in an unfair manner. The natural consequence of this imbalance is an unfair 22 and inequitable hearing. In such a hearing, the Family and the applicable law enforcement 23 agency are fully and adequately represented. Inexplicably, the one party whose alleged PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 22 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 actions are at issue before the inquest jury, and the only party potentially subject to personal 2 civil liability and criminal prosecution is conditioned on a waiver of fundamental rights of 3 due process. 4 9.21 The EO’s conditioning of Officer representation is an overreach of authority by the Executive 5 and a violation of the appearance of fairness doctrine. 6 d. Evaluating disciplinary history of involved law enforcement officer exceeds the Executive’s statutory authority 7 9.22 The EO leaves room for the disciplinary history of an involved law enforcement officer to 8 be evaluated during an inquest. (Sharifi Dec., Ex. 1, ¶ 4.6). The EO states in pertinent part, 9 “[t]he disciplinary history of the law enforcement member(s) involved may not be introduced 10 into evidence unless the administrator first determines that it is directly related to the use of 11 force.” (Id.). This language is vague. 12 9.23 The EO contradicts its own language and framework prohibiting the departmental 13 representatives and the chief from addressing “whether employees' actions related to the 14 death were pursuant to training and policy; or any conclusions about whether the employee's 15 actions were within policy and training.” See Sharif Dec., Ex. 1, Appx. 2, ¶ 12.3). The Chief 16 of Police is the ultimate decision-maker on disciplinary decisions. See Seattle Mun. Code 17 Article IV; Seattle Mun. Code 4.04.230(B); Ord. No. 125315 (2017). Thus, ¶ 4.6 of the EO 18 internally conflicts with ¶ 12.3 if ¶ 4.6 requires that the discipline at issue was imposed as a 19 direct result of the events connected to the underlying death event that is the subject of the 20 inquest. 21 9.24 Regardless of the vagueness and internal inconsistency of the language itself, the Executive 22 is not vested with the authority to evaluate past violations of departmental policy and past 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 23 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 discipline. The Executive is vested with the authority to charge the inquest jury to determine 2 the cause and manner of a death. 3 9.25 Departmental policies and an officers’ compliance with those policies do not address the 4 statutory requirement of Wn. Rev. Code Ann. 36.24 et seq. The Executive should be 5 prohibited from overreaching into any training, policy, or disciplinary histories. Such an 6 overreach extends beyond the authority vested by the sovereign. 8 e. Prohibiting inquiry into mental state of the involved officer(s) is an improper overreach of discretionary authority by the Executive inconsistent with the Coroner’s Statute. 9 9.26 The EO arbitrarily and without justification curtails the inquest panel’s ability to evaluate 10 “[f]ault, or [] justification—including the mental state of the involved officer(s), such as 11 whether the officer thought the decedent posed a threat of death or serious bodily injury to 12 the officer(s) . . .”(Sharifi Dec., Ex. 1, Appx. 2, ¶ 14.2). 7 13 9.27 Such an arbitrary limitation on the introduction of evidence directly addressing the 14 circumstances attending to the death is inconsistent with Wn. Rev. Code Ann. 36.24.040 and 15 36.24.050. 16 9.28 This exclusion is also inconsistent with other state law. RCW 9A.16.040 governs the use of 17 justifiable homicide by a peace officer – a statute that was modified in 2018 and codified to 18 lower the legal threshold. See 2019 Wn. House Bill No. 1064, Washington Sixty-Sixth 19 Legislature - 2019 Regular Session, 2019 Washington House Bill No. 1064, Washington 20 Sixty-Sixth Legislature - 2019 Regular Session (Feb. 4, 2019). Even under the lowered 21 standard, an officer that acts in good faith, under an objective standard, will not be liable for 22 use of deadly force. Wn. Code Rev. Ann. 9A.16.040. 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 24 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 9.29 Not permitting a jury to consider whether the officer reasonably believed the decedent posed 2 a threat of death or serious injury unnecessarily limits the inquiry and conflicts with the 3 coroner’s duty to bring all relevant evidence to determine the facts attending to the death. 5 The Superior Court Should Issue a Writ of Review and Prohibition Against the Improper Discretionary Decisions of Administrator Spearman in Interpreting the Executive Order. 6 10.1 During the two pending inquests, Administrator Spearman made several discretionary 7 decisions interpreting the language of the EO and relying on other civil or criminal law. (See 8 Sharifi Dec., Exs. 13. 14. 16, 19, 22-26, 29, 32, and 34). Some of these discretionary 9 decisions were beyond the authority vested in the Executive through the Administrator – and 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 VI. extended beyond the authority afforded to the Administrator by state law. a. Discretionary exclusions for fear of prejudice or speculation are not contemplated by authorizing state law. 10.2 Under Wn. Rev. Code Ann. 36.24.050 (West 2020), “[t]he coroner must summon and examine as witnesses, on oath administered by the coroner, every person, who, in his or her opinion or that of any of the jury, has any knowledge of the facts.” (emphasis added). 10.3 In the Butts inquest, inconsistent with the directive of the statutory mandate, Administrator Spearman initially excluded, then significantly limited the testimony of Officer Adam Merritt, the first officer to contact Damarius Butts after he committed the robbery. (Sharifi Dec., ¶ 17, Ex. 16). 10.4 Administrator Spearman also fully excluded testimony of Adrianna Butts or reference to her by name. Administrator Spearman justified this decision based on potential prejudice to the inquest panel. (Sharifi Dec., Ex. 28). Ms. Butts is the sister of Mr. Butts. She and Mr. Butts together robbed the 7-Eleven store the day of the alleged shooting. Ms. Butts admitted that PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 25 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 the revolver Mr. Butts used to shoot at law enforcement belonged to her and that she gave 2 the revolver to Mr. Butts right before they went into the 7-Eleven store. Ms. Butts also 3 assaulted Officer Merritt, who had temporarily detained decedent Butts prior to the events 4 that caused his shooting death. (See Sharifi Dec., ¶ 17, recorded hearing). 5 10.5 Such discretionary exclusions violate 36.24.050 and should be prohibited. 6 b. The discretionary decisions of the Administrator on the coroner’s subpoena authority extends beyond the authority afforded by law. 7 8 1. The County Executive does not have authority to subpoena witness testimony, documents, or interviews prior to the inquest hearing. 9 10.6 The Washington Supreme Court recently and clearly addressed the question of inquest 10 subpoena power in BNSF Ry. Co. v. Clark, 192 Wn.2d 832, 434 P.3d 50 (2019), holding that 11 (1) the power to subpoena documents and witnesses was limited to subpoenas returnable to 12 the inquest jury; and (2) specifically, no pre-inquest examination of evidence or interviews 13 was permissible under RCW 36.24.050. 14 10.7 A coroner’s statutory subpoena authority comes from RCW 36.24.050, which states: “[t]he 15 coroner must summon and examine as witnesses, on oath administered by the coroner, every 16 person, who, in his or her opinion or that of any of the jury, has any knowledge of the facts.” 17 In BNSF, the court recognized that this subpoena authority – although applicable to both 18 documents and witnesses – begins “once the coroner has properly begun the inquest process 19 by requesting jurors” and is limited to “subpoenas returnable to the inquest jury.” Id. at 841. 20 10.8 At the time of the BNSF case in early 2019, there was no mechanism at all for a coroner to 21 compel any pre-inquest discovery, regardless of whether documents or live witnesses were 22 sought. The authority of RCW 36.24.050 was limited to subpoenas returnable to the inquest 23 jury and did not permit pre-inquest discovery, regardless of form. PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 26 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 10.9 Similarly, the EO includes a lengthy section on Discovery and Admissibility of Evidence 2 that contains no reference whatsoever to any pre-inquest interviews or depositions. (Sharifi 3 Dec, Ex. 1, Appx. 2, Section 4.0). The absence of any reference to pre-inquest interviews 4 strongly suggests that the EO does not provide for such process. 2. The 2019 addition of RCW 36.24.200 does not change the Executive’s subpoena authority. 5 6 10.10 As a partial response to the BNSF case, the Washington State Legislature enacted Wn. 7 Code Rev. Ann. 36.24.200 in 2019, which reads in part: 8 11 In addition to any of its existing authorities, the coroner may, in the course of an active or ongoing death investigation, request that the superior court issue subpoenas for production of documents or other records . . . A subpoena for production must substantively comply with the requirements of CR 45. A subpoena for production may be joined with a subpoena for testimony, or it may be issued separately. 12 10.11 Although the statute confers new authority for coroner subpoenas for records during and 13 active or ongoing death investigation, the statute does not apply to inquest testimony at all, 14 much less to pre-inquest interviews or depositions after an inquest jury has been requested. 15 10.12 In King County, inquests are no longer conducted by a coroner; the death investigation is 9 10 16 conducted by the Medical Examiner and the inquest is conducted by the Executive. 17 10.13 The Washington State Supreme Court explained “[King County] has broken up the 18 responsibilities of the coroner, as described in the general law of RCW Chapter 36.24, 19 assigning most of the coroner's duties to the division of the medical examiner, but retaining 20 the authority to conduct inquests in the County Executive.” Carrick, 125 Wn.2d at 141. 21 10.14 Specifically, the relevant duties are parsed as follows in KCC 2.35A.090 (emphases 22 added): 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 27 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 2 (A) … The medical examiner shall be responsible for the administration and staffing of all programs relating to the performance of autopsies and investigations of death as authorized by the statutes of the state of Washington, except as provided by this section…. 3 4 5 (B) The chief medical examiner shall assume jurisdiction over human remains, perform autopsies and perform such other functions as are authorized by chapter 68.50 RCW and such other statutes of the state of Washington as are applicable, except for the holding of inquests, which function is vested in the county executive…. 6 7 8 9 10 11 12 (C) The chief medical examiner shall institute procedures and policies to ensure investigation into the deaths of persons so specified in chapter 68.50 RCW and to ensure the public health, except for the holding of inquests, which function is vested in the county executive. 10.15 This bifurcation is also recognized in the EO, which states: King County Code (KCC) Chapter 2.35A created a division of the medical examiner within the Seattle-King County Department of Public Health and assigned to it most of the coroner’s duties under RCW Chapter 36.24, “except for the holding of inquests, which function is vested in the County Executive” under KCC 2.35A.090.B. (Sharifi Dec., Ex. 1). 13 10.16 The subpoena power created by RCW 36.24.200 grants the coroner subpoena authority in 14 the context of “an active or ongoing death investigation.” In King County, this applies to the 15 Medical Examiner, not the Executive. 16 10.17 RCW 36.24.200 is clearly limited to active or ongoing death investigations, as it states in 17 relevant part: “the coroner may, in the course of an active or ongoing death investigation, 18 request that the superior court issue subpoenas…”. 19 20 10.18 King County Code essentially mirrors the language of RCW 32.26.200, by granting the Medical Examiner similar subpoena authority. KCC 2.35A.090(E) (emphasis added). 21 10.19 When the Legislature provided death investigation subpoena power to coroners in RCW 22 32.26.200, that did not imbue the King County Executive with the ability to subpoena 23 witnesses for pre-inquest interviews or depositions. PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 28 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 10.20 The Administrator or Executive have no authority to issue any subpoena beyond RCW 2 36.24.050, which is limited to documents and witnesses returnable to the inquest jury, at the 3 hearing. The Executive through the Administrator exceeded the vested statutory authority by 4 making a discretionary ruling that the Administrator can issue subpoenas compelling pre- 5 inquest interviews or depositions. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 c. Pre-Inquest discovery is not contemplated by the Coroner’s Statute. 10.21 There is no aspect of the Coroner’s Statute or of the EO that permits the exchange of preinquest discovery in the manner contemplated by the Administrator during SPD’s pending inquests. 10.22 The discovery demand and exchange occurring in the Butts and Lyles inquests mirrored discovery exchanges in civil litigation. (Sharifi Dec., Exs. 11, 33-36) 10.23 In both inquests, the Family propounded and subsequently moved to compel extensive and burdensome discovery. (Sharifi Dec., ¶¶ 12-13; 35-36). 10.24 SPD subsequently produced thousands of pages of records for each inquest, absorbing significant amount of time and resources. (Sharifi Dec., ¶¶ 16, 37). 10.25 RCW 36. 24 et seq. does not contemplate a traditional exchange of written discovery akin to civil litigation. In fact, by the time an inquest is called, the investigation into the death must be complete. See Wn. Rev. Code Ann. 36.24.200. 10.26 This is recognized by the EO itself: “The King County Prosecuting Attorney shall inform the King County Executive whenever an investigation into a death involving a member of any law enforcement agency in King County is complete and also advise whether an inquest should be initiated pursuant to the King County Charter.” (Sharifi Dec., Ex. 1, Appx 1, ¶ 7.1). PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 29 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 10.27 As noted in the preceding paragraphs, the authority of the coroner for compelling records 2 and witnesses is narrow. The coroner can subpoena records for the investigation and can 3 subpoena people or records to the inquest. There is no other avenue for compelled production 4 of records or persons. 5 10.28 The Executive, through the Administrator, made improper discretionary decisions 6 permitting and compelling voluminous pre-inquest discovery exchanges inconsistent with 7 the letter and spirit of the vesting statutory authority. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 d. Livestream and a subsequent upload to a media platform is an intrusive overreach by the Executive 10.29 The Amended Order Governing Camera and Recording Devices from the Butts inquest (Sharifi Dec., Ex. 29) permits livestreaming video from the inquest and a subsequent upload to YouTube the entirety of the inquest. 10.30 The decision by the Executive through the Administrator to not only live-stream the inquest, but then post the recording onto a third-party platform, YouTube, is intrusive. Such an invasion into the privacy rights of the family, the involved officers, and wholly unconnected civilian witnesses is contrary to the law and to basic public policy. 10.31 The Executive’s goal of a full transparent review is already met by conducting a public hearing, in an open courtroom – allowing interested members of the King County community to have access to the process that is occurring in their community. Subsequently, the damage arises from the upload onto a third-party platform. The triggering and emotional impact on family members, involved law enforcement, and civilian witnesses having their stories, faces, and images of injuries or deceased bodies plastered on the internet available for manipulation, duplication, and the onslaught of attacks by internet trolls enters the realm of 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 30 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 voyeurism. There is no purpose served in the interest of transparency by such an invasive 2 approach. 3 10.32 In Lee v. City of Seattle, the Court of Appeals held that death scene photographs were not 4 subject to public disclosure because of the substantive due process rights of the Family 5 members. In that case, Division 1 identified: 10 The long-standing tradition of respecting family members' privacy in death images partakes of both types of privacy interests protected by the Fourteenth Amendment. First, the publication of death images interferes with “the individual interest in avoiding disclosure of personal matters....” Few things are more personal than the graphic details of a close family member's tragic death. Images of the body usually reveal a great deal about the manner of death and the decedent's suffering during his final moments—all matters of private grief not generally shared with the world at large. Second, a parent's right to control a deceased child's remains and death images flows from the well-established substantive due process right to family integrity. 11 Lee v. City of Seattle, No. 75815-2-I, 2018 WL 2203287, at *4 (Wash. Ct. App. May 14, 12 2018), review denied, 192 Wash. 2d 1017, 433 P.3d 806 (2019). 6 7 8 9 13 10.33 GR 16, governing courtroom photography and recordings by the news media, has an 14 inherent presumption of free access but in no way compels the public voyeurism proposed 15 by the Executive. 16 10.34 There is no aspect of the laws of the State of Washington mandating the livestream and 17 subsequent upload of these proceedings onto a web platform. There is no authority in public 18 records requiring such a permanent and public preservation of such a proceeding. The 19 livestream – and subsequent recording is anticipated to collect not only the demeanor and 20 faces of the testifying witnesses, but often graphic images or video depicted alongside the 21 witness during the course of testimony. 22 23 10.35 It is Executive overreach to unnecessarily disseminate the contents of the inquests, where no such authority is vested in the statutory authority. PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 31 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 REQUEST FOR DECLARATORY RELIEF 1 2 3 11.1 The City adopts and incorporates by reference the allegations contained in the preceding paragraphs. 4 11.2 Under Wn. Rev. Code Ann. 7.24.010, this Court has the jurisdiction and authority to 5 “[d]eclare rights, status and other legal relations whether or not further relief is or could be 6 claimed.” 7 11.3 Such authority applies to “[a]ny proceeding where declaratory relief is sought, in which a 8 judgment or decree will terminate the controversy or remove an uncertainty.” Wn. Rev. 9 Code Ann. 7.24.050. 10 11 12 13 11.4 Actual controversy exists between Plaintiff and Defendants as to the rights, duties, and obligations of the parties under the coroner’s statute and the EO. 11.5 There is an actual, present, and existing dispute as to the validity of the EO because it exceeds the authority vested in the County Executive by state law. 14 11.6 The parties have genuine and opposing interests. 15 11.7A judicial determination declaring the EO as invalid because it exceeds the statutory 16 authority vested in the County Executive by Wn. Rev. Code Ann. 36.24 et seq. 17 11.8 Plaintiff is entitled to a declaratory judgment from this Court setting forth and decreeing 18 the respective rights, duties and obligations of the parties under the statutory confines of 19 Wn. Rev. Code Ann. 36.24 et seq. as defined in Plaintiff’s prayer for relief. 20 21 22 23 REQUEST FOR A STAY 12.1 The City adopts and incorporates by reference the allegations contained in the preceding paragraphs. 12.2 This writ request significantly impacts the proceedings in all pending inquests before the PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 32 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 Administrator in King County. (Sharifi Dec., ¶ 10). 2 11.1 The City is currently engaged in two active inquests. (Id.). 3 11.2 Wn. Code Rev. Ann. 7.16.080 requires that the writ explicitly stay proceedings in the 4 5 6 inferior tribunal pending disposition of the writ action. 11.3 The requested relief sought by the City affects the litigation, proceedings, and disposition of the underlying inquests. 7 11.4 In the Butts Inquest, Administrator Spearman encouraged the interested persons to seek a 8 stay by the Superior Court pending the writ petition. (Sharifi Dec., ¶ 30, 40, Ex. 37). 9 11.5 A stay of proceedings is essential to protect the rights and interests of the City and other 10 11 12 13 14 15 16 17 18 19 affected persons. NOTICE TO ADVERSE PARTY 12.1On December 16, 2019, Executive Constantine and Administrator Spearman were advised of the City’s intent to seek judicial review of the December 4, 2019 Executive Order. (Sharifi Dec., ¶ 40, Ex. 37). 12.2 Administrator Spearman set a deadline of January 17, 2020, to seek such review. (Id.). 12.3 Inquest attorney Matt Anderson requested e-mailed courtesy copies of the writs filed. 12.4 Upon filing, the City also intends to formally serve this Complaint and Writ Petition at the King County Council Clerk’s Office meeting the King County Charter requirement for service of process on the County Executive and its officers. 20 PRAYER FOR RELIEF 21 (1) This Court should issue a writ of prohibition invalidating the Executive Order because the 22 Respondents EO and implementation of the EO extends beyond the authority vested in them by 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 33 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 Wn. Rev. Code Ann. 36.24 et seq. for the following reasons: 2 a. The EO’s requirements to evaluate compliance with agency policy and training and 3 compelling agency and chief testimony is an overreach of the authority vested in the 4 County Executive by state law; 5 6 b. Designation of quasi-judicial authority to an Administrator assigned by and answerable to the County Executive violates the appearance of fairness doctrine; 7 c. Conditioning the legal representation of the involved officers on their waiver of rights to 8 testify is an improper exercise of discretion and a violation of the appearance of fairness 9 doctrine; 10 11 12 13 14 15 16 17 18 19 d. Evaluating disciplinary history of involved law enforcement officers exceeds the Executive’s statutory authority; e. Prohibiting inquiry into the mental state of the involved officer(s) is an improper overreach of discretionary authority by the Executive inconsistent with the Coroner’s Statute; f. The Administrator’s discretionary exclusions of witness testimony for fear of prejudice or speculation are not contemplated by the authorizing state law; g. The discretionary decisions of the Administrator on the coroner’s subpoena authority extends beyond the authority afforded by law; h. The discretionary decisions of the Administrator to order and compel pre-inquest written discovery exceeds the authority afforded by law; and 20 i. The discretionary decision by the Administrator to permit for video livestreaming and a 21 subsequent upload to a social media platform is an intrusive overreach by the Executive 22 beyond the authority vested by law. 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 34 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 (2) This Court should grant Plaintiff declaratory relief, including but not limited to declarations 2 that: (a) the EO is invalid in violation of Wn. Code Rev. Ann 36.24 et seq.; (b) Defendants are 3 estopped from: 4 a. and training; 5 6 b. Compelling agency designee and chief testimony for inquests to address policy and training; 7 8 Evaluating compliance with the applicable law enforcement agency’s specific policy c. Designating a quasi-judicial authority to an Administrator assigned by and answerable to the County Executive; 9 10 d. Conditioning the legal representation of the involved officers; 11 e. Evaluating disciplinary history of involved law enforcement officers; 12 f. Prohibiting inquiry into the mental state of the involved officer(s) in all inquests; 13 g. Subpoenaing witnesses for pre-inquest interviews or depositions; 14 h. Compelling pre-inquest written discovery by involved parties; and 15 i. Permitting video livestreaming of the inquest and a subsequent upload to a third-party 16 17 media platform. (3) This Court should grant any and all costs incurred by the City. 18 19 20 21 22 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 35 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 2 DATED this 16th day of January, 2020. PETER S. HOLMES Seattle City Attorney 3 4 5 6 7 By: /s/ Ghazal Sharifi Ghazal Sharifi, WSBA# 47750 Assistant City Attorney Phone: (206) 684-8217 Email: Ghazal.Sharifi@seattle.gov Seattle City Attorney’s Office 701 5th Avenue, Suite 2050 Seattle, WA 98014 8 Attorney for Petitioner/Plaintiff, City of Seattle 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 36 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 CERTIFICATE OF SERVICE 2 3 4 5 6 7 8 9 I certify that on the 16th day of January, 2020, I caused a true and correct copy of this document to be served on the following in the manner indicated below: King County Executive, Dow Constantine ( x ) Via Process Service c/o Clerk of the Council, King County For delivery on 1/16/2020 Council 516 Third Avenue, Room 1200 Seattle, WA 98104 Honorable Michael Spearman ( x ) Via Process Service c/o Clerk of the Council, King County For delivery on 1/16/2020 Council 516 Third Avenue, Room 1200 Seattle, WA 98104 10 11 12 13 14 15 16 17 18 19 20 21 Matthew Anderson Inquest Program Manager DES-Dept. of Executive Services 401 5th Ave., suite 131 Seattle, WA 98104 Mailstop: CNK-DES-135 ( x ) Via Email Matt.Anderson@kingcounty.gov Dee.Sylve@kingcounty.gov Adrian Leavitt ( x ) Via Email La Rond Baker Adrian.Leavitt@kingcounty.gov Northwest Defenders Division, King lbaker@kingcounty.gov County Department of Public Defense 710 2nd Ave, Suite 250 Seattle, WA 98104 Attorneys for the Family of Damarious Butts Ted Buck Frey Buck, P.S. 1200 5th Ave, Ste 1900 Seattle, WA 98101-3135 22 Attorneys Representing the Involved Seattle Police Officers (Butts Inquest) 23 Karen Koehler ( x ) Via Email TBuck@freybuck.com EBariault@freybuck.com (x) Electronic Delivery PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 37 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 3 Melanie Nguyen Lisa Benedetti 3600 15th Ave W Ste 300 Seattle, WA 98119-1330 (206) 448-1777 4 [Attorneys for the Lyles Family] 1 2 5 8 Edward H. Moore Law Offices of Edward H Moore PC, Attorney for Lyles Estate 3600 15th Ave W Ste 300 Seattle, WA 98119-1330 (206) 826-8214 9 [Attorneys for the Lyles Family] 6 7 10 11 12 13 14 Karenk@stritmatter.com Melanie@stritmatter.com Lisa@stritmatter.com elodie@stritmatter.com anner@stritmatter.com (x) Electronic Delivery emoore@ehmpc.com Personal Representative of the Estate of Charleena Lyles Commissioner Eric Watness (x) Electronic Delivery Ericwatness1@gmail.com Corey Guilmette Prachi Dave Public Defender Association 110 Prefontaine Pl. S, Suite 502 Seattle, WA 98104-2626 (206) 392-0050 EXT 711 (x) Electronic Delivery corey.guilmette@defender.org prachi.dave@defender.org 15 [Attorneys for the Lyles Family] 16 17 18 Karen Cobb Frey Buck, P.S. 1200 5th Ave, Ste 1900 Seattle, WA 98101-3135 (206) 486-8000 (x) Electronic Delivery kcobb@freybuck.com 19 [Attorney for Officer Steven McNew] 20 21 22 23 Ted Buck Frey Buck, P.S. 1200 5th Ave, Ste 1900 Seattle, WA 98101-3135 (206) 486-8000 Paralegals: Lisa Smith (x) Electronic Delivery tbuck@freybuck.com lsmith@freybuck.com PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 38 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 1 Matthew Kniffen Megan Riley 2 [Attorney for Officer Jason Anderson] 3 4 5 s/ Kelly Nakata Kelly Nakata, Paralegal 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 PETITION FOR WRIT OF PROHIBITION, WRIT OF REVIEW, AND COMPLAINT FOR DECLARATORY RELIEF - 39 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200