13 hours ago
Pierce County Sheriff wants to work with ICE. WA law says he can't. Here's why
Pierce County Sheriff Keith Swank's desire to cooperate with federal immigration authorities, despite Pierce County officials saying he can't under Washington law, has resulted in pending legal action after Swank used an outside attorney to serve three officials with a demand for mediation last week.
Pierce County Prosecuting Attorney Mary Robnett has told Swank he cannot seek legal advice from attorney Joan Mell and that only the Prosecuting Attorney's Office can act as Swank's attorney. She also said Mell's legal advice about cooperating with U.S. Immigration and Customs Enforcement (ICE) could expose the county to millions of dollars in potential liability, as previously reported by The News Tribune. On Wednesday Robnett served Mell an order seeking to restrict her from offering legal advice to Swank.
Mell has told The News Tribune that Robnett incorrectly advised Swank and was duty-bound as counsel to adhere to his requests, for example, challenging the Keep Washington Working Act, which Swank has called unconstitutional. Swank has also told the News Tribune he feels caught between federal directives to enforce immigration detainers and state law that forbids it.
To get an outside perspective, The News Tribune asked Hugh Spitzer, a semi-retired professor at the University of Washington School of Law, about the issue. Spitzer has practiced law in Washington for 50 years and has spent 10 years teaching at the law school on topics including local government and municipal law, Washington state constitutional law and legal ethics and professional responsibility.
On Wednesday Spitzer said all sheriffs in Washington are subject to statute and state law. The Pierce County Charter states that part of the county executive's job is to supervise and manage all executive departments established by the charter or the county council, which includes the sheriff's office, he said.
'It doesn't mean that the executive can interfere with a so-called 'core function,' but the executive still has some powers in terms of oversight,' he said. 'And the prosecuting attorney is probably right when she said in her memo that the sheriff can't go out and contract with his own lawyer [because] the prosecuting attorney shall be the legal advisor of the county and appears and represents the county.'
An overview of the executive's role, as spelled out in the 2017 Pierce County budget, says 'all executive departments are subject to the personnel, budgeting, expenditure, and any other policies of general application established by the County Executive,' including the Sheriff's Office. Likewise the executive has supervision and management power over 'all County administrative operations including staffing, expenditures, and procedures; strategic direction for the resolution of complex or sensitive County issues; and, execution, enforcement, and support of Pierce County policy and state/federal statutes.'
The sheriff is responsible for police services in unincorporated Pierce County and several contracted cities, including patrol, criminal investigation and emergency response, according to the charter. The sheriff also administers the county jail.
Spitzer said Swank can hire a lawyer to represent him personally but not as the sheriff because the County Council has control over expenditures like that. Mell did not respond to a question from The News Tribune on Wednesday asking whether Swank was seeking for Pierce County to pay his attorney fees.
In terms of working with ICE, Spitzer said although local governments have a lot of flexibility over how they are structured and run, 'ultimately, everything has to be according to general law.' In this case Swank will have to abide by the 2019 bipartisan Keep Washington Working Act that emphasizes immigration enforcement is primarily a federal responsibility. Under the act, local law enforcement cannot arrest people solely for civil immigration offenses.
'The sheriff, if they don't like it, they're welcome to not like it,' Spitzer said. 'But that doesn't mean they can violate their oath and not follow the law by claiming that they understand the constitution better than the Legislature does.'
Spitzer said there's a movement in the state and nationally where so-called 'constitutional sheriffs' have a notion that because their offices are mentioned in their state's constitution that they're not subject to statute or their county charters.
The only way Swank would be able to cooperate with ICE is if he sued the state 'on his own nickel' and won, Spitzer said.
In March, Washington's Attorney General Nick Brown filed a lawsuit against the Adams County Sheriff's Office for illegally aiding federal officials with immigration enforcement in eastern Washington, as previously reported by The Olympian. In April Swank traveled to Washington, D.C. with other sheriffs from across Washington, including Adams County Sheriff Dale Wagner, to give Wagner moral support and 'bring what he sees as a conflict between state and federal law to the attention of the federal government,' as reported by The News Tribune.
Mell told The News Tribune in an email Wednesday evening, 'The Sheriff has the right to question and legally challenge State law where it invades his core constitutional duties.'
'A professor saying the Sheriff has to follow the law is not news. Finally Pierce County has a Sheriff willing to challenge the law to ensure he has all the tools in his tool belt to which he is entitled to keep the peace,' she wrote. 'Pierce County is in desperate need of every mechanism available to cut the skyrocketing violence and crime in Pierce County under Robnett and [Executive Ryan] Mello['s] leadership.'
