City Attorney Pete Holmes. Photo courtesy Holmes for Seattle

The Best Defense

No Rest for the Wicked—or the Seattle City Attorney’s Office

An activist City Council makes for boatloads of legal work.

In the past few years, Seattle has had to get pretty darn comfortable with getting sued.

Consider, for instance, the sheer number of lawsuits that the City Attorney’s office has fielded following recent legislation passed by the City Council alone. Among them, to date, are lawsuits brought against the city for its $15 minimum-wage ordinance; its for-hire driver collective-bargaining ordinance; an ordinance requiring landlords to accept the first qualified applicant; the cap on move-in fees for renters; the tax on gun and ammunition sales; and now, the income tax on high earners, which has so far engendered four separate lawsuits and—based in part on in-house capacity limitations—forced the City Attorney’s office to hire outside legal help for an extra $250,000.

It’s not all the City Council’s fault, of course. Frequent grievances are brought by the Seattle police union, and there was work to do following the election of President Donald Trump (Seattle sued over Trump’s threat to withdraw federal funds from sanctuary cities). Then there are ballot initiatives: The office had to defend both the democracy-voucher program and a new law ensuring protections for hotel workers. But when Seattle Weekly suggested that the number of lawsuits, in particular, that had arisen as a direct result of new City Council-developed legislation was giving us whiplash, Civil Division Chief Greg Narver laughed and said: “You and me both.”

We offered the same observation to City Attorney Pete Holmes, asking if he could confirm the suspicion that the Civil Division’s workload had burgeoned in recent times, and he said “Yes” so quickly there was no need to finish the sentence. “Yes, yes, yes. We’re all quite busy. I see lawyers here on the weekends; and yeah, they’re working hard.”

He says a measurable change happened in late 2015, when the first round of Councilmembers elected by district instead of at-large took office. There were a number of new faces, sure, but many with specific, individualized agendas; before 2015, he says, he felt there was “more cohesiveness” on the Council. In part as a result, “No denying it, absolutely,” his office has seen “more volume [and] more unique legal issues being addressed for the first time without precedent.”

Narver has been in his role for two and a half years, and has worked with the city for the past 11. He says that “It does feel there’s been a pickup; not just in the number of lawsuits, but in the requests we’re getting from Council that are something other than routine requests.” That’s because lawsuits over city ordinances “don’t just drop out of the sky”; the legal work begins long before a suit is filed in the form of advice and analysis. That work is necessary to help craft legislation that can withstand what Narver and Holmes have come to see as inevitable. “If we’ve been onboarded successfully at the beginning,” Holmes believes, “then usually that last phase—defending the enactment—is a little less problematic.”

And the Council elected in late 2015 isn’t afraid of doing things that might prompt a suit or two. “This Council, to its credit,” Narver says, has tried very hard to “push the envelope on the types of regulations and laws the city could pass, especially targeting some real problem areas: affordable housing, income inequality, the minimum wage.” These Councilmembers were likely elected to do just that, he says—to “challenge the old order.”

Both Narver and Holmes have had private conversations with Councilmembers about their ideas; both confirm that these conversations are frequent, complex, and sometimes heated. “They bring a strong set of beliefs to their office,” Narver says. “That’s good! It’s good that everyone is sticking to their guns… we get better government out of it.” Still, that leaves the lawyers “often in the position of saying, ‘It might be an uphill fight.’ ”

Holmes, who was elected in 2009, puts it more bluntly. “I have loud, sometimes profane discussions with Councilmembers—and mayors. I can tell you I have with just about every one of them, at some point. We’ve had laughs and we’ve had drinks. … They know I will give them my advice.”

While Holmes, like the Councilmembers, answers to voters, he says his advice to other elected officials can’t be political. He tells Seattle Weekly that he supports an income tax on high earners, for instance.

“I get it, as a political matter. I agree with it, as a policy matter. But it doesn’t matter at the end of the day what I believe,” he says. It is his job, and his staff’s job, to offer sound legal advice and then fight as hard as possible to defend city decisions, no matter what. “I think it’s important that I respect the political process and not get in and influence it as if I were a 10th Councilmember or deputy mayor or something like that,” he says. “And it’s OK—I don’t take it personally—when my advice is ignored, or when we’re sued.”

Still, it’s tough. “We’ve got to staff all these things,” Narver says, adding that it’s not just the number of lawsuits, but their complexity. Many suits are brought because a new law threatens someone’s wealth. As a result, it’s common for those bringing the suits to have substantial resources available, which allows them to file reams of paperwork city lawyers have to respond to.

When new civil suits come in, Narver says, his first task is “triage,” making sure they get routed to the appropriate team of lawyers. If they can handle it, so much the better. If they can’t, they’ll let Narver know. “While I would love to have a department staffed so that we never had to go to outside counsel, it’s just not realistic,” he says. “We just don’t have the manpower to handle every lawsuit in-house.”

In a proposed 2017–18 budget document describing the Law Department, Holmes officially confirms this: “In 2015, an increase in workload required utilizing outside counsel for more than 800 hours.” That workload continues to rise. The office does the best job it can to use resources to the best of its ability, Holmes says. But while the office has already “blown through” its approximately $16.3 million Judgment and Claims budget this year, which covers both payouts to aggrieved parties and the hiring of outside counsel, it’s never an option to decline to defend these things.

Past city attorneys have had standing contracts with outside lawyers to handle certain types of suits; before Holmes took office, Seattle automatically punted police-related cases to an outside law firm. Holmes ended that contract. When it comes to hiring outside counsel, he says, nothing is automatic anymore. But it is still often necessary. Along with the time constraints for in-house lawyers, reasons for outsourcing include conflicts of interest (Holmes can’t defend a police officer in court if he has charged that same officer with a crime, say) or specialty issues that the City Attorney’s office doesn’t have in-house experts for (one ongoing lawsuit against the for-hire driver collective-bargaining ordinance alleges violations of federal antitrust laws—something that, Holmes says, had never come up before in his eight years as city attorney).

But staff time is a big one. “I’d say, most of the time, the issue … is capacity,” says Narver. The fact that four separate lawsuits have been filed against the income tax means that while “we have one very fine attorney in-house who handles a lot of our tax cases … there is just no way he could singlehandedly litigate all of those.”

The city has prevailed in court on a number of cases this year already. A number remain ongoing. And there are certainly a number more to come. Among the possibilities, Holmes predicts, are lawsuits filed over the city’s tax on sugary beverages; the new law that limits landlords’ ability to screen tenants based on their criminal record; any legislation to arise from Councilmember Mike O’Brien’s draft proposal to create separate rules for Seattleites living out of their cars; and the city’s Housing Affordability and Livability Agenda (HALA) as a whole. “They will all be challenged, I’m confident,” Holmes says. “There’s too much money at stake.”

It’s exhausting, perhaps. And it’s certainly hectic. But, as City Attorney spokesperson Kimberly Mills puts it, at least it’s never boring.

“From a lawyer’s perspective… it’s a good challenge to have,” offers Holmes. “We have no end of work, and all of it is quite interesting, that’s the thing.” Because a lot of the work is cutting-edge, he says, staffers are pleased to be working there; there’s no question that, in one way or another, the Seattle City Attorney’s office is currently “a place where… we’re going to be setting precedents.”

As for Holmes? He feels the same way. “It’s the hardest job I’ve ever had, but it’s the one I’ve loved the most.”

sbernard@seattleweekly.com

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