A Civil Disagreement
Wednesday, October 3, 2018
A CIVIL DISAGREEMENT: “The prosecutor’s role is critically important in maintaining public safety, but that is also just one part of the job,” James Erb sketched the duties of the office he seeks at a recent forum at Bellingham City Club. “The prosecutor is also responsible for providing competent and professional legal counsel and civil legal advice and guidance to the County Council, to the County Executive and department heads and staff of Whatcom County. The prosecutor is also responsible for seeking constantly to improve substantive and procedural inadequacies in our justice system. And we have not seen the prosecutor’s office, over the past many decades, performing those latter two functions.”
It was the forum’s only brief reference to the wider role of the prosecutors office in advising and representing county government—a capacity that has gotten scant attention as the topic of criminal justice has taken up most of the oxygen in their debates. Yet the Gristle would argue that it is on the civil side that the most staggering differences exist between the candidates.
Erb has been serving with the Bellingham City Attorney’s Office for the last eight years as a senior attorney in the city’s civil division. His opponent, Eric Richey, Whatcom County’s chief deputy criminal prosecutor, appears to have no discernible experience at all in the civil division; and is moreover indifferent to the office. Where Erb perceives problems in the civil division, Richey sees none.
“We’re talking about things like land use, growth management. We’re talking about things like water rights, like election law,” Erb said in an initial interview with the Weekly last spring. “These are issues that impact the lives of nearly everyone who lives in Whatcom County. Where the criminal side deals with just a fraction of the county’s overall population that encounter it, the civil side really matters in the lives of most people.”
But Richey was disdainful of this idea in an interview with the Weekly in the same period.
“I’ve heard that. I’m not sure it’s true,” Richey said. “Look, 70 percent of our work is criminal, and I understand that people are talking about the civil side affecting a lot of people, but it is not the biggest part of our job. Only four attorneys are assigned there.”
Whatcom County is nearly 30 years out of compliance with the state’s Growth Management Act, with seemingly no urgency to get into compliance with state law. The county was badly beaten up in the state Supreme Court’s Hirst decision, a GMA ruling that agreed with a state hearings board that the county had failed to plan growth where resources were adequate. The county remains out of compliance with the findings of the Court.
Richey suggested at a recent forum that the County Council was perhaps not taking the legal advice they’d received from the prosecutor’s office on Hirst, a suggestion former and current Council members, and Hirst petitioners, find risible.
“The public does not know what kinds of representations or advice has been given to policy-makers,” Richey said. “If we’re going to be talking about Hirst, you don’t know what our Whatcom County prosecutors office advised the County Council. We do know the County Council made a decision to go out and hire their own attorneys to represent them in this water issue.”
But, of course, we do know that the prosecutor’s office every step of the way advised Council against sitting down with Hirst petitioners to resolve their very specific (and finite) issues, and instead took their chances in applying an old Ecology rule concerning Nooksack River flows that even Ecology was backpedaling away from. We know this because Council members and Hirst petitioners tell the same story of how this ended up in court.
“There are unresolved issues, despite phrases like the ‘Hirst fix,’ that did not fix water shortage problems that we’re experiencing around Whatcom County,” Erb said. “If we don’t have a prosecuting attorney who can demonstrate some leadership around this issue—who can work with the Council and the Executive—and work with other stakeholders to fashion an appropriate remedy to these problems, then these problems will be taken out of our hands. They will be solved by a superior court judge in Seattle, or perhaps a state board in Olympia.”
County Council takes the legal advice they receive from the prosecutors office very seriously, as it is the advice that keeps them from being sued, and sued successfully.
Nothing could better illustrate this than the terrible advice Council followed during the scoping of the Gateway Pacific coal terminal, where they were advised not to take comments from the public because of concerns of “potential litigation.” This advice kept them from holding open meetings on the issue for more than two years, and is ludicrous on the face of it: Nothing in state law would gag or restrict the public, or deny their constitutional rights to make comments to their elected representatives during an open public meeting.
Meanwhile, as former County Planning Director David Stalheim (and a petitioner on Hirst) relates, private land-use attorneys had free reign drafting policy recommendations through the under-staffed prosecutors office, and would assist in writing their legal briefings. The county’s civil prosecutors have unusual interpretations of what can go into executive session. Conversations in Council’s executive sessions go well beyond litigation issues and stray into policy that should be debated in public, he said.
Advice from the prosecutors office seems well-intentioned to keep the county from being sued—but only from one particular direction, by developers, and at the direct expense of county government’s paramount duty to protect public health and safety, and to honor GMA’s central commitment to protect natural resources.
Where (arguably) there’s not a degree of separation between these Bellingham Democrats in their approaches to criminal justice, Richey performed unaccountably well in the most conservative parts of the county in the August primary, outpacing Erb by as much as 50 points in precincts across the county’s northern tier. What accounts for this strangely lopsided preference? We’ll speculate that it is exactly Richey’s towering indifference to the way things are in the civil division—his assurance that nothing will change in the status quo of county approaches to land use, water use, shorelines, fossil fuel and climate policy, compliance with GMA—that accounts for his mysteriously strong support among this cohort.
After 44 years, the county deserves difference, not indifference.