A Lewis County Superior Court judge will rule Friday on a lawsuit filed by officials in seven Washington counties against the state last year. The suit disputes provisions of a police reform bill that give the chair of the county board of commissioners, rather than the sheriff, authority to make emergency decisions on tear gas usage in a riot situation.
Specifically, the lawsuit disputes two subsections of Engrossed Substitute House Bill (ESHB) 1054 dealing with the use of tear gas.
ESHB 1054 became law when Gov. Jay Inslee signed the legislation on May 18, 2021, but the plaintiffs specifically refer to the House version of the law.
The state of Washington refers to the provisions under their revised code of Washington (RCW) titles, RCW 10.116 in documents related to the Lewis County Superior Court case.
There are no differences in language between ESHB 1054 and RCW 10.116.
The two provisions under dispute, with both names listed, are:
• Section 4(3) or 10.116.30(3), reading, “In the case of a riot outside of a correctional, jail or detention facility, the officer or employee may use tear gas only after: (a) Receiving authorization from the highest elected official of the jurisdiction in which the tear gas is to be used and (b) meeting the requirements of subsection (2) of this section.”
• Section 4(4b) or 10.116.30 (4)(b), reading, “‘Highest elected official’ means the county executive in those charter counties with an elective office of county executive, however designated, and in the case of other counties, the chair of the county legislative authority. In the case of cities and towns, it means the mayor, regardless of whether the mayor is directly elected, selected by the council or legislative body pursuant to RCW 35.18.190 14 or 35A.13.030, or selected according to a process in an established city charter. In the case of actions by the Washington state patrol (sic), it means the governor.”
The law went into effect on July 25, 2021.
Two and a half weeks earlier, on July 6, Lewis County Sheriff Rob Snaza and all three members of the Lewis County Board of Commissioners filed a lawsuit in Lewis County Superior Court asking a judge to issue a judgment declaring the two specified provisions are unlawful.
“Each commissioner has standing as (ESHB) 1054 vests authority in a single commissioner where no such authority exists or is authorized. As a result, the entire board of county commissioners is undermined,” according to the complaint. “Making the commissioners substantially unequal, when under the law and constitution each commissioner has equal power, effects a partial forfeiture of each of their offices.”
Snaza claims ESHB 1054 “effects a partial forfeiture of his office by improperly depriving the sheriff of the authority that has historically been, and under the current law, is within the sole purview of the sheriff,” according to the complaint.
The plaintiffs filed an amended complaint in Lewis County Superior Court on Aug. 26, 2021, with 24 additional names, including the sheriffs and county commissioners of Columbia, Ferry, Garfield, Grant, Skamania and Spokane counties.
There were 28 named plaintiffs in the case as of September 2022.
Earlier this month, the plaintiffs filed a motion for a summary judgment, in which a judge decides a case without a jury trial.
The state of Washington issued a formal objection to that motion on Sept. 7, specifically claiming:
• The use of tear gas is a tool or a tactic, and not itself a core function of the sheriff.
• The constitution does not restrict the Legislature’s authority to assign a new function to the chair of the board of county commissioners.
• The constitution expressly authorizes the Legislature to fashion the duties of county officers without interfering with a core office.
• The plaintiffs’ analysis would unnecessarily create an irrational distinction between county and municipal law enforcement.
Judge J. Andrew Toynbee is scheduled to hear the case at 9:30 a.m. on Friday, Sept. 16.
