During the briefing, Pacifica attorneys discussed the current legal landscape, explored future scenarios, and shared practical guidance and potential legal strategies on the following topics. Two days into the new administration, many of these concerns have already begun to materialize—and Pacifica is working with its clients and community partners on multiple fronts to respond. (Stay tuned.)

Immigration

Sarah Mack and Anita Khandelwal discussed how the incoming administration’s immigration policies may conflict with state laws and federal privacy laws. They also discussed the potential ramifications of the Trump administration’s threats to revoke the Department of Homeland Security’s “Sensitive Locations Policy,” which currently provides that federal immigration enforcement operations should not occur at courts, schools or other designated locations.

Sarah and Anita also shared ideas about how schools, courts, jails, and other public and private entities should prepare for and respond to the presence of U.S. Immigration and Customs Enforcement officers at their facilities.

Federal Funding

Jessica Skelton and Paul Lawrence analyzed the potential for the executive and legislative branches of the federal government to use funding to ensure state and local compliance with federal policies. They discussed the 10th Amendment’s anti-commandeering doctrine, which says that the federal government cannot coerce state or local governments to enforce federal laws. They also discussed the use of funding incentives to encourage state and local compliance, including the guardrails courts have placed on the use of such funding incentives.

Diversity, Equity, and Inclusion Initiatives

Jessica and Paul also analyzed the current state of the law on diversity, equity, and inclusion (DEI) initiatives in light of two recent U.S. Supreme Court decisions: Students for Fair Admissions, the 2023 case in which the Court struck down race-based admissions processes at Harvard and the University of North Carolina; and Allen v. Milligan, in which the Court upheld a key provision of the Voting Rights Act that allows race-conscious government action as a remedy to unlawful discrimination.

They also looked ahead to possible DEI-related issues under the new administration, including the potential abolishment of government DEI offices, the end of federal government participation in DEI initiatives, and threats to eliminate federal funding to organizations with DEI programs.

Abortion Access

Jamie Lisagor and Erica Coray addressed how abortion access may be affected during the second Trump administration. Jamie and Erica provided an overview of Washington’s abortion protections and explained how the Trump administration may attempt to undermine those protections by utilizing the Comstock Act, seeking reversal of the Food and Drug Administration’s approval of mifepristone abortion medication, or by cutting insurance coverage and funding for organizations and programs that currently provide abortions. They concluded by discussing ways in which local government entities and organizations can help protect access to abortion during the Trump administration.

Gun Violence Prevention

Zach Pekelis outlined how the second Trump administration may attempt to weaken gun violence prevention efforts. As he promised during the campaign, Trump will likely divert federal funds to arm teachers, encourage gun sales without background checks, defund the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and do away with ATF regulations. Trump has also pledged to sign the Concealed Carry Reciprocity Act, which would force states to recognize concealed carry laws of other states—even those that require no permit at all.

For questions regarding these or other issues related to the changing legal landscape under the second Trump administration, please reach out to Jessica Skelton or any member of the Pacifica team.

Pacifica clients Climate Solutions, Washington Conservation Action, Front and Centered, Washington Solar Energy Industries Association, and local sustainable builder Anthony Maschmedt are joined by King County and the city of Seattle in filing the lawsuit in King County Superior Court this week.

The lawsuit argues that I-2066 violates Washington’s Constitution in three ways. First, it violates the requirement that an initiative can concern only a single subject. This requirement is meant to protect against “logrolling,” or bundling of multiple proposals into one initiative. Second, I-2066 violates the Washington Constitution’s subject-in-title rule because it did not accurately inform voters of the Initiative’s full scope and consequences. Finally, I-2066 violates the requirement that the Initiative set forth in full each of the state law provisions it would repeal or amend. I-2066 fails to identify several state law provisions that it would alter.

“Among its far-reaching impacts,” the lawsuit argues, “the Initiative jeopardizes the ability of local governments and other entities to establish energy-efficiency standards and reduce greenhouse gas emissions; it threatens programs that require the construction of energy efficient buildings; and it would make the clean energy transition chaotic and more expensive for Washingtonians.”

The complaint asks the court to declare I-2066 is unconstitutional, and for an injunction prohibiting the implementation of the law.

The Pacifica litigation team includes Kai Smith, Paul Lawrence, Noe Merfeld, and Luther Reed-Caulkins.

Initiative 2066 was backed by conservative political action committee Let’s Go Washington, the Building Industry Association of Washington, and the Washington Hospitality Association. It passed with just 51.7 percent of the vote.

 Follow this link to view a copy of the complaint.

Click here to download a PDF of this news release.

While emphasizing that “the state-action doctrine demands a fact-intensive inquiry,” Justice Barrett’s decision for a unanimous Court offers some important guideposts—and warnings—for government officials using social media.

Authority to Speak for the Government

On the first prong (whether the official has actual authority to speak for the government), courts must pay “careful attention to the relevant statute, ordinance, regulation, custom, or usage” to determine whether the social media speech in question falls within the “scope of an official’s power.” The Court explained: “The inquiry is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the State entrusted the official to do.” As a “threshold” requirement of state action, the defendant “must have actual authority rooted in written law or longstanding custom to speak for the State,” and “[t]hat authority must extend to speech of the sort that caused the alleged rights deprivation.”

Post Content, Disclaimers, and the Exercise of Authority

Second, in addition to the official having authority to speak on the state’s behalf, the official must also claim to use that authority when speaking on social media. This is, the Court noted, a “fact-specific undertaking in which the post’s content and function are the most important considerations.” Disclaimers or labels—such as “the views expressed are strictly my own” or “this is the personal page of John Doe”—can give speech clear context and thus would “entitle[] it to a heavy . . . presumption that all of the posts on [the] page [are] personal.” That presumption, however, is “not irrebuttable.” So “an official cannot insulate government business from scrutiny by conducting it on a personal page,” such as a mayor “host[ing] a city council meeting online by streaming it only on his personal Facebook page.” That would still be state action.

On the other hand, an account that “belongs to political subdivision (e.g., a “City of Port Huron” Facebook page) or is passed down to whomever occupies a particular office (e.g., an “@PHuronCityMgr Instagram account),” would “make clear that [it] purports to speak for the government.” Another clear case of state action—a “slam dunk,” in the Court’s phrase—would be an announcement of a policy decision shared “exclusively” on a public official’s Facebook page, such as a mayor’s temporary suspension of parking rules. In contrast, if a public official “merely repeats or shares otherwise available information,” it would be “far less likely that he is purporting to exercise the power of his office.”

Risks of “Mixed-Use” Social Media Accounts

What made Freed’s account “hazier” than the Court’s hypothetical examples was that it was not designated as either “personal” or “official” and that he “made some posts in his personal capacity” (like family photos and Bible quotes) and “others in his capacity as city manager” (like the city’s pandemic response). Such “mixed use” accounts can pose considerable line-drawing challenges for both governments and courts. In such “[h]ard-to-classify cases,” courts should look for “additional factors,” including whether the official “uses government staff to make a post,” which would make it “hard . . . to deny that he was conducting government business.”

Although the Court did not telegraph on which side of the line this case will ultimately fall, it did note one additional consideration that may bode poorly for the city on remand: Because Freed both deleted certain of Lindke’s comments on his Facebook page and blocked him altogether from the page, the district court will “have to consider whether Freed had engaged in state action with respect to any [emphasis added] post on which Lindke wished to comment.” The Court explained that the “bluntness of Facebook’s blocking tool highlights the cost of a ‘mixed use’ social-media account,” as well as its risks: “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”

For questions the First Amendment and state action, or other constitutional matters, please reach out to any member of our Litigation team.

Please click here to download a PDF of this article.

The statute of limitations to file a claim under the PRA is one year (RCW 42.56.550(6)). In its decision in Cousins v. State of Washington, Case No. 101769-3 (2024), the Washington Supreme Court held that an agency’s letter closing a request for records under the PRA “will generally trigger the PRA’s statute of limitations” but there are certain requirements that agencies must follow.

The Court determined that to trigger the limitations period, “a closing letter must be sufficient” and “an agency’s use of the word ‘closed,’ without more, is not determinative.” The Court opined that a closing letter to a requester is sufficient if it includes the following information in plain language targeted to a lay audience: (1) information on how the PRA request was fulfilled and why the agency is now closing the request; (2) a statement that the PRA’s one-year statute of limitations to seek judicial review has started to run because the agency does not intend to further address the request; and (3) a statement that the requester may ask follow-up questions within a reasonable time frame, which may be specified by the agency.

The Court further noted that, to assess the sufficiency of a closing letter, courts and agencies should consult the attorney general’s advisory model rules on public records compliance (Public Records Act—Model Rules), chapter 44-14 WAC, and the Court’s decision.

Click here for a PDF of the Court’s decision in Cousins. For questions regarding PRA compliance, please reach out to any member of our municipal law team.

According to the complaint, Washington State’s system of delegating trial court indigent defense obligations to the counties “denies indigent defendants equal access to justice.” The lawsuit alleges the State has failed to provide counties with adequate and reliable funding for indigent defense. It also alleges that state limits on Washington counties’ authority to raise tax revenue leaves counties unable to raise funds to cover court-appointed criminal defense costs.

The lawsuit asks the Court to declare the State’s indigent defense system unconstitutional and require that the State provide counties consistent and stable funding for indigent defense.

According to the lawsuit, counties currently cover more than 96 percent of these costs. Lack of funds and other issues have led to inconsistent indigent defense services between counties, the suit alleges, perpetuating a system in which outcomes for indigent defendants may vary depending on where that person is charged.

The suit also details how factors such as population growth and indigent defense standards mandated by the Washington State Supreme Court have led to a significant increase for counties in indigent defense costs in the past decade, while state funding has remained virtually the same, resulting in a net decrease in state funding since 2012.

Pacifica Law Group senior litigator Paul Lawrence leads a litigation team working on the case, which includes partner Ian Rogers and associate Christopher Sanders.

Click here for a PDF of the complaint.

SEATTLE, WA—Pacifica Law Group attorneys Zach Pekelis and Scott Ferron helped secure an important constitutional victory for our client, the Alliance for a Safe Oregon, and for the people of Oregon when, on Friday, July 14, a federal court in Portland ruled that Ballot Measure 114 is constitutional. Measure 114, which Oregon voters approved in November 2022, restricts the sale and manufacture of large-capacity gun magazines (LCMs) and establishes a permit system for all firearm purchases.

In her ruling, U.S. District Judge Karin J. Immergut held that the Second Amendment does not protect LCMs, defined as magazines that hold more than 10 rounds of ammunition, and that Measure 114’s permitting provisions are also constitutional.

Judge Immergut’s 122-page decision is the culmination of a six-day bench trial in four cases consolidated under the name Oregon Firearms Federation, Inc. v. Kotek, which were filed shortly after voters adopted Measure 114. The plaintiffs included firearms dealers and gun industry organizations, including the Second Amendment Foundation, the Firearms Policy Coalition, and the Oregon State Shooting Association (the NRA’s Oregon affiliate). Pacifica’s client, the Oregon Alliance for Gun Safety (the “Oregon Alliance”), is a Portland-based nonprofit gun safety advocacy organization and a leading advocate for Measure 114. In December, the Oregon Alliance intervened in the cases to defend the law. Pacifica attorneys Zach Pekelis and Scott Ferron tried the case alongside attorneys for the State of Oregon defendants.

During the weeklong trial, Pacifica attorneys:

• Delivered an opening statement, in which associate Scott Ferron stated: “It’s the Alliance’s firm conviction that Measure 114 is precisely the sort of policy that promotes gun safety while respecting the Second Amendment rights of Oregonians. The Alliance is confident that the testimony in this week’s trial will confirm that conclusion.”
• Offered testimony from expert and fact witnesses, including University of Illinois linguistics professor Dennis Baron, who testified that the original public meaning of the word “arms” in the Second Amendment did not include “accoutrements” like ammunition or ammunition containers; Oregon Health & Science University trauma surgeon Dr. Mackenzie Cook, who testified regarding the severity of gunshot wounds from LCM-equipped firearms and the burdens imposed on hospital capacity by mass shooting events; and Jenna Longenecker, whose mother was killed by a mass shooter armed with an LCM at the Clackamas Town Center, and whose father died by firearm suicide.
• Cross-examined plaintiffs’ witnesses, successfully exposing their close ties to the gun lobby and economic interests in the outcome of the case. The court found their witnesses’ bias “troubling” and gave “little weight” to their testimony. In contrast, the court found the defense experts—historians, social scientists, and other scholars—“significantly more credible—and entitled to more weight—than [plaintiffs’ experts].”
• Delivered a closing argument, in which partner Zach Pekelis stated: “In 2013, after Sandy Hook, fed-up Oregonians formed the Oregon Alliance for Gun Safety. We are proud to represent the Alliance which intervened in this case to help defend Measure 114. A commonsense gun safety law that the Alliance vigorously campaigned to enact, and the voters did so, spurred by another school massacre ten years after Sandy Hook at Robb Elementary in Uvalde. The people’s will should be honored and respected and upheld.”

Judge Immergut did so, ruling that Measure 114 is constitutional. The court’s decision is the first final judgment in any federal case challenging state laws restricting LCMs since the U.S. Supreme Court’s decision last year in New York State Rifle and Pistol Association v. Bruen, which significantly altered the standard governing Second Amendment claims. Applying that standard, which focuses on the Second Amendment’s text and the nation’s historical tradition of firearms regulation, Judge Immergut ruled that LCMs are not “bearable arms” protected by the Second Amendment because they are accessories that “are not necessary for firearms to function,” are not in common use for self-defense, and have “uniquely dangerous propensities” and are “closely related to weapons used in warfare.” The court also concluded that, even if LCMs were protected by the Second Amendment’s text, prohibiting their sale and manufacture is consistent with the nation’s long history of regulating especially dangerous arms and accessories. Judge Immergut found that “mass shootings using LCMs are an unprecedented societal concern,” and that Measure 114’s “restrictions on LCMs impose a minimal burden on the right to self-defense” and are consistent with the Nation’s history and tradition of firearms regulation. Judge Immergut also found that BM 114’s permitting provisions constitute a shall-issue licensing regime.

As to the permit-to-purchase system, Judge Immergut held that it was an example of a “shall-issue” licensing regime, which the Supreme Court in Bruen indicated is constitutional under the Second Amendment. Under Bruen, a shall-issue regime requires issuance of a permit based on “narrow, objective, and definite standards” and do not afford excessive discretion to licensing officials. The OFF Court ruled that Measure 114’s permitting regime is just such a shall-issue regime, and therefore constitutional under Bruen.

Rejecting the plaintiffs’ other constitutional claims under the Takings Clause and the Due Process Clause, the Court entered final judgment for the Oregon Alliance and the State Defendants.

Pacifica partner Zach Pekelis, who first-chaired the trial for the Oregon Alliance, hailed the decision. “The Court’s detailed, well-reasoned decision is a significant victory for gun violence prevention and for the people of Oregon,” Pekelis said. “In adopting Measure 114, Oregonians voted for common-sense strategies to reduce mass shootings, which overwhelmingly involve LCMs, and to ensure people meet basic requirements before they may purchase a deadly weapon—which has been shown to reduce homicides and other interpersonal violence. The ruling confirms that Measure 114 is not only good policy, but it is perfectly consistent with the Second Amendment. As the concurring Justices told us in Bruen, ‘Properly interpreted, the Second Amendment allows a variety of gun regulations.’ We hope other courts adjudicating Second Amendment cases around the country follow the Court’s thorough and measured decision, which we are confident will be affirmed on appeal.”

Ballot Measure 114 is also the subject of a case in Oregon state court. In that case, the Harney County Circuit Court entered a temporary restraining order blocking the measure’s enforcement pending trial, which is scheduled for September 2023.

In addition to representing the Alliance for a Safe Oregon, Pacifica has long represented the Seattle-based Alliance for Gun Responsibility. Pacifica secured significant victories for the Alliance for Gun Responsibility in state and federal cases challenging Washington firearm laws, including I-594 (requiring background checks for all gun sales), I-1639 (enacting age and residency restrictions on purchase of semiautomatic rifles), Senate Bill 5078 (restricting large-capacity magazines), and House Bill 1240 (restricting assault weapons).

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Read about recent developments here: Judge denies last-minute effort to block Gov. Jay Inslee’s COVID-19 vaccine mandate | The Seattle Times

Pacifica attorneys Greg Wong, Kymberly Evanson, and Michelle Vaughan represented the Washington State Budget & Policy Center, the Washington Black Lives Matter Alliance, the Children’s Alliance, the Statewide Poverty Action, Balance Our Tax Code, SEIU 775, and the Washington Community Alliance as amicus curiae on appeal.

The amicus brief focused on the state’s legitimate interest in creating a more balanced tax code. Washington State has one of the most regressive tax codes in the nation, with the burden falling disproportionately on people of color and low- and moderate-income Washingtonians. Amici argued that the legislature’s desire to impose a more progressive tax—taxing only banks with over $1 billion in profit—was a legitimate interest that supported the constitutionality of the law. The Washington Supreme Court agreed with the State and Amici, unanimously upheld the tax, and noted that a tax based on ability to pay is not discriminatory. To learn more, see the Court’s opinion and read more here.