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CHRIS CLIFFORD, Plaintiffs, vs. MAYOR PAUL SCHELL, ET AL., Defendants.	) ) ) ) ) ) ) ) ) ) ) )	NO. 01-2-11547-2SEA MOTION HEARING MAY 21, 2001

FOR THE PLAINTIFF:
Appearing Pro Se
Chris Clifford
2721 Talbot Road South
Renton, Washington 98055
425 255-0447

FOR THE DEFENDANT:
Mr. Gary Keese
Assistant City Attorney
600 Fourth Avenue, 10th Floor
Seattle, Washington 98104-1877
206 684-8200
KING COUNTY COURTHOUSE
SEATTLE, WASHINGTON
MAY 21, 2001 - 1:30 P.M.

BY THE COURT:

Let me set forth what I believe is the factual situation before me, and then the law that governs this court's decision.

There are two groups of task forces before me. The first is the racial profiling task force. And this task force was set up by means of a resolution of the county council. The membership was set forth by the county council. The mission of the task force, which is a very definite, policy making one, was set forth by the county council. And the county council approved and confirmed each of the members of that task force.

Separately I also have before me the three Mardi Gras task forces. Those were not constituted by means of the county council. They appear to have been constituted by means of the strategic planning office, which is located within the office of the mayor, but is responsible for assisting in policy making for both the county council and the mayor.

And the mission of those three task forces is set forth largely in attachments that have been submitted by the parties. One is from the city of Seattle which has set forth Mayor Schell's press release announcing his formation of the three Mardi Gras task forces. And it identifies them as each having a specific mission to address the problems that arose out of the February 27 Mardi Gras riots.

The Pioneer Square events task force, according to this press release, is required to identify ways to make these events, Pioneer Square events, safer and more enjoyable. The special events task force is identified as ensuring that future specific events will go forward without the threat of violence.

And the final task force, the youth safety task force, is responsible for tackling broader social issues, namely by understanding root causes of violent behavior seen in some of our region's teenagers and young adults, and developing effective measures to address those problems.

According to the mayor's press release, in other words, all three of these task forces were set up with specific missions to identify means by which to accomplish their respective goals.

I would note as well that in Mr. Clifford's attachments to his initial moving papers for the Writ of Mandamus, that he was able to put before the court some specific documents setting forth the membership and the specific missions of two of the Mardi Gras task forces.

The Pioneer Square task force, according to the mission statement I have, is responsible specifically to develop a toolkit of actions to ensure public safety during special events and to determine the planning process and roles in the process for special events and large gatherings. Again, this is not phrased as advisory language, but as policy making language.

Similarly, the special events task force is set forth as being responsible for reviewing and developing strategies to ensure that future special events, including Seafair, Bite of Seattle and Bumbershoot, go ahead forward safely. Again, not phrased in an advisory sense. And it doesn't appear, from the materials I have involving the youth task force, that they have been limited to a purely advisory role.

The membership of the task forces is interesting. I'm not going to go back to the racial profiling task force, because that membership was set forth by resolution. But I found it interesting to look at the Mardi Gras task force membership. And note that in total, taking the Mardi Gras task forces as a group, that a majority of county council members were initially designated to chair and be members of those task forces. And that the list of designated task force members for each of the county councils is a wide ranging group of representatives, both from within city government and outside city government.

So with that factual background, the court looks to the law and what the standards are before the court.

And this court does not make law. This court enforces the law as set forth by our state legislature.

Our legislature has set forth extremely strong terms in the Open Public Meetings Act with regard to how this act is to be viewed and what the purpose of the act is. And the legislative declaration I think speaks better than this court can for why it is that the open meetings act exists.

The legislature said, and I quote, "the legislature finds and declares that all public commissions, boards, councils, committees, subcommittees, departments, divisions, offices, and all other public agencies of this state, and subdivisions thereof, exist to aid in the conduct of the people's business. It is the intent of this chapter that their action be taken openly and that their deliberations be conducted openly.

The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments that they have created."

The legislature also specifically directed in this Act, in Section 42.30.910, quote, "the purposes of this chapter are hereby declared remedial and shall be liberally construed," end quote. And it is with that legislative declaration and direction that this court looks to the language of the act.

As Mr. Clifford points out, the Act requires that all meetings of the governing body of a public agency shall be open and public. And all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in this chapter.

So we turn to the meaning of the terms "public agency" and "governing body."

First with regard to the racial profiling task force. The Act says that a public agency includes, under 42.30.020(1)(B), "any city or other municipal corporation of the state of Washington."

And it further provides, in subsection (1)(C), that public agency includes any subagency of a public agency which is created by or pursuant to statute, ordinance or other legislative act.

Now, it is impossible to liberally construe this act and not include within that language the racial profiling task force. It is a subagency of the city which was created by legislative act, specifically by resolution.

This court is not persuaded that the fact that the city of Seattle narrowly defines what a legislative act is in its city code is determinative given that it was clearly by legislative act, as that term is used in the state statute, that the profiling task force was created.

It's clear as well that the task force itself is its own governing body. And that it has also held hearings and taken testimony and that it has been given a policy making role. And therefore, all meetings of the racial profiling task force are required to be open under the Open Meetings Act.

Of greater difficulty for the court is the question of the Mardi Gras task forces. And that is because they were not created specifically by legislative act. They were created administratively by the mayor and the strategic planning office.

And the court has reviewed, with particular care, the language of Cathcart, Refai, and the 1986 opinion No. 16 of the Attorney General. The Cathcart decision is a helpful one because it sets forth, in such powerful terms, the policy that should inform this court's decision.

As Mr. Clifford has quoted, the Cathcart decision recognized the reason for passage of the Open Public meetings Act. And the Supreme Court specifically said, in language that this court finds very compelling, and I quote, "we believe that the purpose of the act is to allow the public to view the decision making process at all stages."

Now, let me remind the parties that Cathcart did not deal with the situation where the agency at issue was, in fact, the acting agency. Rather, the court was dealing with a law school faculty which made recommendations to a president, which tended to then go forward through the board of regents to adopt that faculty action.

But the fact that the faculty decisions were recommendations, in some sense, was not determinative to the Cathcart court. What was determinative to the court was that the faculty, for all intents and purposes, was making decisions which were going to be implemented. And that the public was being excluded from that decision making process.

Similarly, in Refai, although the court found that the entity before it, which was a smaller and less decisive entity of Central Washington University, was not subject to the Open Public Meetings Act, the court also acknowledged that the legislature had recently amended the Open Public Meetings Act to add language including any committee, quote, "when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment."

And the court, specifically in footnote five which is attached to the relevant part of the decision, noted that had the case before it, involving an entity whose recommendations appeared to be destined for adoption, been submitted to it under this version of the act, including that language I have just quoted, that the decision of Refai might well have been very different.

I looked as well to the 1986 Attorney General's decision. And I was particularly interested in the legislative history that was attached to the statute.

In this court's view, it is really critical in light of that legislative history to determine whether or not the particular agency before the court is, in effect, making policy or making rules. And that decision cannot be made by looking to the appointing agency and their characterization of what is the mission of the group that they have constituted. Because it would be too easy for government to insulate its decision making by means of labeling its constructions as advisory only.

To this court's way of thinking, I have to look at, first of all, the extreme level of public interest for the matters that the Mardi Gras task forces have been asked to address.

Secondly, to the constitution of the Mardi Gras task forces, each of which were set up to involve decision makers. And specifically what was planned was to involve the decision makers of this city, the city council members.

And thirdly, I look to the scope of membership. And I see it's not confined to city staffers, but is extremely broad across our community, including almost every heavy hitter a decision making body would want to be included in the process of deciding on appropriate policy measures.

And finally, I look to the fact that the missions of these Mardi Gras task forces, to the extent that they have been set forth, appear clearly to be policy making missions.

I cannot conclude that these are merely advisory groups whose decision making should be closed to the public.

When I look to the purpose of the Open Public Meetings Act as enunciated very clearly by our legislature, and to the mandate to the courts to construe the language liberally, and to the facts that I have before me, I must conclude that the Writ of Mandamus should also issue with regard to the Mardi Gras task forces.

And I will issue a Writ of Mandamus directed to the appropriate city officials to direct that the racial profiling task force meetings, and all meetings of the Mardi Gras task forces, be open to the public pursuant to the open public meetings act.

And what that means, of course, is that the exceptions of the open public meetings act set forth in its terms, would also apply to those meetings. And where appropriate, of course, they could go into executive session. But otherwise, the act applies. And those meetings are to be open, and notice to be given of meetings pursuant to the act.

	Judge Catherine Shaffer KING COUNTY SUPERIOR COURT