IN THE SUPREME COURT OF THE STATE OF WASHINGTON
THE FAMILY OF DAMARIUS BUTTS et al.,
Respondents/Cross-Appellants, NO. 98985-1
v.
DOW CONSTANTINE et al.,
Appellants/Cross-Respondents.
Filed July 15, 2021
STEPHENS, J.— Damarius Butts, Isaiah Obet, Charleena Lyles, and seven
other people were shot and killed by law enforcement officers in King County in
2017. Fatal Force: Police Shootings Database, WASH. POST (last updated June 21,
2021), https://www.washingtonpost.com/graphics/investigations/police-shootings-
database/ [https://perma.cc/2KUT-4QH8]. In response to community demands for
greater police accountability, King County Executive (Executive) Dow Constantine
issued a series of executive orders to reform the procedures for conducting coroner’s
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inquests—a type of death investigation the King County Charter requires whenever
a law enforcement officer causes or contributes to someone’s death. The King
County Superior Court struck down those executive orders on various grounds, and
nearly all parties appealed some aspect of that ruling. We accepted direct review.
Executive Constantine and the Inquest Administrator Michael Spearman
argue the executive orders were a valid exercise of the powers granted to the
Executive by the King County Charter and King County Code. Executive
Constantine asks us to vacate the superior court’s order and reinstate the executive
orders.
The families of Butts, Obet, and Lyles (individually and collectively Families)
argue state law requires more than Executive Constantine’s recent reforms allow.
Specifically, they argue the “Coroner’s Act,” ch. 36.24 RCW, requires that the
involved officers be examined by the inquest jury and that the inquest jury be
allowed to determine whether their relatives were killed by criminal means. The
Families seek writs of mandamus to compel Executive Constantine and
Administrator Spearman to comply with those requirements of state law.
Finally, four King County cities, the King County Sheriff’s Office, and
several individual law enforcement officers (the Law Enforcement Parties) argue the
Executive’s orders go too far. They claim that the Coroner’s Act creates a narrow,
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fact-bound inquiry and that Executive Constantine’s recent orders impermissibly
broaden the inquest’s scope and purpose. The Law Enforcement Parties seek to
prevent coroner’s inquests from proceeding under those orders and ask us to affirm
the superior court’s ruling.
Every party’s arguments have some merit and all prevail to some degree. We
hold that the Executive’s authority to conduct coroner’s inquests includes the power
to establish the procedures by which those inquests are conducted, as long as those
procedures are consistent with applicable state and county law. We therefore largely
uphold Executive Constantine’s recent reforms. But we strike the portions of the
executive orders that the Families and the Law Enforcement Parties show conflict
with state law, including those that would prevent inquest juries from fulfilling their
duties under the Coroner’s Act. The Families are correct that the law requires
inquest juries be able to examine the involved officers and to decide whether those
officers killed Butts, Obet, and Lyles by criminal means. Accordingly, we vacate
the superior court’s order and remand to grant in part the Families’ petitions for writs
of mandamus.
RELEVANT FACTS
Law enforcement officers in King County shot and killed Damarius Butts,
Isaiah Obet, and Charleena Lyles within a two-month period in 2017. Seattle Police
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killed Butts on April 20. Auburn Police killed Obet on June 10. Seattle Police killed
Lyles on June 18.
The King County Charter requires coroner’s inquests be held whenever “an
action, decision or possible failure to offer the appropriate care by a member of any
law enforcement agency might have contributed to an individual’s death.” KING
COUNTY CHARTER § 895. Per the inquest procedures in place at the time, Executive
Constantine sent letters to the Honorable Donna Tucker, presiding judge of the King
County District Court, requesting judges to preside over inquests into the deaths of
Butts, Obet, and Lyles.
In December 2017, in response to growing community concern, Executive
Constantine convened a six-member Inquest Review Committee (IRC) to propose
reforms to King County’s long-standing inquest procedures. The IRC found those
procedures were largely perceived by community members as “favor[ing] law
enforcement,” “‘lack[ing] compassion,’ and . . . condescending to families” of those
killed by police. Clerk’s Papers (CP) at 707-08. The IRC proposed several reforms
to improve King County’s inquest process, including clarifying the purpose and
scope of inquests, promulgating more robust procedural rules, allowing the inquest
jury to make more meaningful observations “as a voice of the community,” and
improving the transparency of and better educating the public about inquests. CP at
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704-05. The IRC proposed a draft executive order incorporating these and other
changes to King County’s inquest process.
Soon after, a coalition of law enforcement representatives and community
advocates attempted to create an alternative proposal that would accommodate some
of the law enforcement community’s concerns with the IRC proposal. That coalition
shared a draft compromise executive order with Executive Constantine’s office but
never reached a final agreement.
Meanwhile, Judge Tucker notified Executive Constantine that the King
County District Court would no longer assign judges to preside over inquests. On
the day he received Judge Tucker’s letter, Executive Constantine placed the pending
Butts, Obet, and Lyles inquests—along with two others—on hold until new inquest
procedures could be adopted. No jurors had yet been requested, so none of those
inquests had formally begun. See BNSF Ry. Co. v. Clark, 192 Wn.2d 832, 838, 434
P.3d 50 (2019) (“[T]he coroner must request a jury in order to begin an inquest.”).
Nearly a year after placing the inquests on hold, Executive Constantine issued
Executive Order PHL 7-1-2-EO (2018 EO), incorporating several of the IRC’s
proposed reforms and the coalition’s suggested revisions. The 2018 EO provided
for an inquest administrator to preside over inquests as the Executive’s designee,
significantly reduced the role of the prosecuting attorney, and expanded public
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access to inquest proceedings, including by directing the inquest administrator to
make video and audio recordings available online. The 2018 EO also allowed the
chief law enforcement officer of the involved agency to provide limited testimony
about police training and policies, permitted testimony from expert witnesses on
whether the involved officers complied with such training and policies, and
prohibited the issuance of subpoenas to compel the testimony of involved officers.
Other portions of the 2018 EO maintained some long-standing practices, such as
mandating a transparent process, providing for the exchange of discoverable
materials, and barring the inquest jury from determining issues of fault or criminal
or civil liability.
With the 2018 EO in place, Executive Constantine removed the hold from the
pending inquests. In the late spring and early summer of 2019, Executive
Constantine officially initiated the Butts, Obet, and Lyles inquests by requesting
jurors from lists maintained by the King County Superior Court. Retired Superior
Court and Court of Appeals Judge Michael Spearman was appointed as the
administrator for all three inquests.
Administrator Spearman held a series of prehearing conferences in each
inquest to facilitate discovery, establish the initial scope of the inquest, and address
the parties’ various motions. These conferences soon exposed a flaw in the 2018
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EO: it conditioned the participation of involved officers’ attorneys on the officers’
willingness to participate in the inquest, but it did not define what it meant for the
officers to participate. The Butts Family moved to condition the officers’ attorneys’
participation on the officers’ willingness to testify at the inquest hearing, and
Administrator Spearman denied that motion.
Two days before the Butts inquest was scheduled to begin, Executive
Constantine issued Executive Order PHL 7-1-3-EO (2019 EO), which effectively
overturned Administrator Spearman’s ruling by clarifying that the officers’ attorneys
could participate only if the officers were willing to testify at the inquest. Otherwise,
the 2019 EO is identical to the 2018 EO. Compare CP at 1502-13, with CP at 1515-
26. The officers involved in Butts’s death immediately moved to stay the inquest
hearing, and Administrator Spearman granted the motion.
Before their inquest hearings could begin, the Butts and Obet Families filed
separate petitions for writs of mandamus in the King County Superior Court. The
Butts Family sought a writ compelling “Administrator Spearman . . . to summon and
examine the law enforcement officers who killed Mr. Butts” using the subpoena
authority in RCW 36.24.050. CP at 27-31. The Obet Family sought a writ
compelling “Administrator Spearman and the Executive . . . to include within the
scope of the inquest the question of whether or not the killing of Isaiah Obet was
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with criminal means as required by RCW 36.24.070.” CP at 1. The Lyles Family
later intervened and petitioned for the same writs as the Butts and Obet Families.
Almost simultaneously, the city of Seattle sought writs of prohibition and
review and declaratory relief to invalidate the executive orders in their entirety. The
individual law enforcement officers soon filed their own suit, seeking essentially
identical relief. The cities of Auburn, Federal Way, Kent, and Renton, and the King
County Sheriff’s Office moved to intervene, joined Seattle’s and the officers’
requests for relief, and sought further relief in the form of an order limiting inquests
to those involving King County deputy sheriffs, staying all pending and potential
inquests involving law enforcement officers, declaring some inquests time-barred,
and limiting the use of expert witnesses. All these actions, along with the Families’
petitions, were consolidated under a single case number. 1
On the day before briefing was due in the superior court, Executive
Constantine issued Executive Order PHL 7-1-4-EO (2020 EO). The 2020 EO made
two significant revisions to the 2019 EO, which Executive Constantine argues render
some of the Families’ and Law Enforcement Parties’ challenges moot. First, it
eliminated the requirement that the involved officers had to testify in order to
1
The city of Seattle voluntarily dismissed its claims before the superior court heard oral
argument and is not a party before this court.
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participate through counsel. Second, it provided that involved officers could be
subpoenaed to testify at the inquest hearing like any other witness.
The superior court heard oral argument in July 2020 and a month later issued
an order denying all writ petitions and granting declaratory and injunctive relief to
the Law Enforcement Parties. Executive Constantine and Administrator Spearman
appealed. The Families cross appealed to seek their writs, while the cities and King
County Sheriff’s Office cross appealed to preserve two narrower requests for relief
that the superior court did not address. The individual law enforcement officers did
not appeal any portion of the superior court’s order.
After the parties confirmed the trial court’s order disposed of all claims of all
parties, we granted direct review. At the request of the Families and individual law
enforcement officers—whose positions are adverse despite the procedural posture
of this appeal—we allowed those parties to submit additional briefing replying to
each other’s arguments. We also accepted briefs from Public Health amici,
Community Organizations amici, and the Washington State Association of Counties,
and we granted additional oral argument time.
ANALYSIS
We first address Executive Constantine’s threshold arguments that the issues
presented by this case are beyond this court’s constitutional authority to address,
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cannot be raised by the Families or the Law Enforcement Parties, or are otherwise
not properly before us. These justiciability arguments mostly fail.
First, Executive Constantine argues policy choices about how to conduct
coroner’s inquests are discretionary and internal to the executive branch and thus
cannot be examined in court without breaching the separation of powers. Executive
Constantine relies heavily on our opinion in Brown v. Owen, where we declined to
“referee disputes over parliamentary rulings” between a state senator and the
lieutenant governor acting in his capacity as president of the state senate. 165 Wn.2d
706, 721, 206 P.3d 310 (2009). That decision, Executive Constantine claims, stands
for the proposition that Washington courts cannot interfere with intrabranch
functions, including executive orders establishing how executive branch employees
conduct an executive branch function. Executive Constantine’s argument
misunderstands our precedent.
Brown involved an intrabranch dispute about an intrabranch function, in
which a member and the presiding officer of the same legislative body disagreed
over what that body’s internal rules required. Id. Here, in contrast, the dispute is
not confined to matters internal to a single body or branch of government: it is
between the King County executive branch and the Families and the Law
Enforcement Parties. And unlike the authority of the state senate to adopt its own
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rules, which our constitution has “committed solely to the legislature,” Id. at 722,
the Executive’s authority to direct how coroner’s inquests are conducted is subject
to other laws. More precisely, the Executive’s power is constrained by what those
laws permit. Even where the Executive enjoys broad discretion, it is entirely
appropriate for Washington courts to decide whether the Executive’s commands
exceed lawful executive powers. This exercise of judicial authority sustains—not
threatens—the separation of powers.
Second, Executive Constantine argues the Families and the Law Enforcement
Parties lack standing to challenge the executive orders in court. Because the standing
inquiry is inherent in the test for writs of mandamus, the Families need not establish
standing apart from showing they are entitled to mandamus relief. See RCW
7.16.170 (authorizing mandamus relief “on the application of the party beneficially
interested”); Retired Pub. Emps. Council of Wash. v. Charles, 148 Wn. 2d 602, 620,
62 P.3d 470 (2003) (RPECW) (“For purposes of standing under the mandamus
statute, all that must be shown is that the party has a[ beneficial] interest in the matter
beyond that of other citizens.”). We therefore address the Families’ “beneficial
interest” on the merits below. See infra Section I.A.3.
The Law Enforcement Parties have established they have standing to
challenge the executive orders under the Uniform Declaratory Judgments Act, ch.
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7.24 RCW. “‘The basic test for standing is whether the interest sought to be
protected by the complainant is arguably within the zone of interests to be protected
or regulated by the [law] in question.’” Lakehaven Water & Sewer Dist. v. City of
Federal Way, 195 Wn.2d 742, 769, 466 P.3d 213 (2020) (internal quotation marks
omitted) (quoting City of Seattle v. State, 103 Wn.2d 663, 668, 694 P.2d 641 (1985)).
To have standing under the Uniform Declaratory Judgments Act, “‘a party must be
within the zone of interests to be protected or regulated by the statute . . . [and] the
party must have suffered an injury in fact.’” Id. (internal quotation marks omitted)
(quoting Am. Legion Post No. 149 v. Dep’t of Health, 164 Wn.2d 570, 593-94, 192
P.3d 306 (2008)).
The Law Enforcement Parties have established they are within the zone of
interests regulated by the executive orders and have alleged adequate injuries in fact.
The challenged executive orders require or authorize the participation of the
employing government department, its chief law enforcement officer, and the
officers involved in the death being investigated. Besides providing testimony to
the inquest jury, that participation includes producing discovery in the form of
training records, policy manuals, officers’ psychological records and disciplinary
proceedings, and more. Those obligations carry economic costs the Law
Enforcement Parties must bear, and we have long recognized that such costs can
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constitute an injury sufficient to establish standing. See, e.g., Grant County Fire
Prot. Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 802, 83 P.3d 419 (2004)
(injury in fact can be “economic or otherwise”).
Finally, Executive Constantine argues some challenges to the executive orders
are moot. We agree. First, because the 2020 EO eliminated the requirement that the
involved officers must testify in order to participate through counsel, Executive
Constantine is correct that the challenge to the contrary provision in the 2019 EO is
now moot. The Law Enforcement Parties counter that “‘a defendant cannot
automatically moot a case simply by ending its unlawful conduct once sued.
Otherwise, a defendant could engage in unlawful conduct, stop when sued to have
the case declared moot, then pick up where he left off, repeating this cycle until he
achieves all his unlawful ends.’” Br. of Resp’ts Cities & King County Sheriff’s
Office at 70 (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133 S. Ct. 721,
184 L. Ed. 2d 553 (2013)). Recognizing the risk of such gamesmanship, the United
States Supreme Court has explained that “[v]oluntary cessation does not moot a case
or controversy unless ‘subsequent events ma[ke] it absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.’” Parents Involved in
Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719, 127 S. Ct. 2738, 168 L.
Ed. 2d 508 (2007) (second alteration in original) (quoting Friends of Earth, Inc. v.
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Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 145 L. Ed. 2d
610 (2000)). In Parents Involved, the Court reasoned that the school district did not
meet its “heavy burden” to show its decision to stop using the challenged policy
rendered the case moot because “the district vigorously defend[ed] the
constitutionality of its race-based program, and nowhere suggests that if this
litigation is resolved in its favor it will not resume using race to assign students.” Id.
In contrast, here Executive Constantine has abandoned the challenged policy, made
no effort to defend its legitimacy before this court or the trial court, and expressly
stated he “has no plans to re-adopt this provision.” Appellant King County’s
Opening Br. at 67. There being no evidence in the record suggesting Executive
Constantine is misleading the court or otherwise engaging in gamesmanship, we
hold this issue is moot.
Executive Constantine is also correct that the recent passage of King County
Charter Amendment 1 moots the Law Enforcement Parties’ challenge to Executive
Constantine’s authority to conduct inquests into deaths involving law enforcement
officers other than King County deputy sheriffs. King County Charter Amendment
1 amends King County Charter § 895. That section formerly provided that an
“inquest shall be held to investigate the causes and circumstances of any death
involving a member of the law enforcement agency of the county,” but it now
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provides that an “inquest shall be held to investigate . . . any death where an action,
decision or possible failure to offer the appropriate care by a member of any law
enforcement agency might have contributed to an individual’s death.” King County
Ordinance 19116 (June 23, 2020) (emphasis added). This new language plainly
authorizes the Executive to conduct inquests into deaths involving all law
enforcement officers in King County, not just those within the King County Sheriff’s
Office. Id. Accordingly, we hold this issue is also moot.
Having dispensed with the unavailing justiciability issues, we turn to the
merits of the Families’ and the Law Enforcement Parties’ challenges to the executive
orders.
I. The Executive Has Authority To Establish Procedures for Coroner’s
Inquests by Executive Order Consistent with State Law
A coroner’s inquest is a death investigation facilitated by the coroner and
decided by a jury. BNSF, 192 Wn.2d at 837-38. “‘[T]he purpose of a coroner’s
inquest is to determine who died, what was the cause of death, and what were the
circumstances surrounding the death, including the identification of any actors who
may be criminally liable for the death.’” Id. (alteration in original) (quoting Carrick
v. Locke, 125 Wn.2d 129, 133, 882 P.2d 173 (1994)). Coroner’s inquests are
governed by the Coroner’s Act, which has remained largely unaltered since its
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adoption in the original territorial laws of Washington. Compare LAWS OF 1854, §§
1-21, at 435, with ch. 36.24 RCW.
The Coroner’s Act provides a basic framework for conducting inquests, with
only a few mandatory duties to be performed by either the coroner or the inquest
jury. The coroner must (1) request jurors from the superior court, RCW 36.24.020,
(2) administer an oath to the inquest jury, .040, and (3) summon and examine any
witness with knowledge of the facts surrounding the death under investigation, .050.
The inquest jury must (1) inquire into the circumstances surrounding the death,
RCW 36.24.040, and (2) render a verdict setting out who was killed, when, where,
how, by whom, and whether that killing was “by criminal means,” .070.
If the inquest jury concludes the death was caused by homicide, the Coroner’s
Act requires the coroner to take two more steps. The coroner must reduce the inquest
proceedings to writing and deliver that written record to the clerk of the county
superior court. RCW 36.24.080. Then, depending on whether the suspected killer
is under arrest or at large, the coroner must either (a) deliver the inquisition record
to the judge before whom the suspect will appear, RCW 36.24.090, or (b) deliver the
inquisition record to the county prosecuting attorney for a determination whether the
suspect should be charged, .100.
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Apart from these few mandatory duties, the Coroner’s Act gives the coroner
discretion to determine when and how to conduct the inquest. See, e.g., RCW
36.24.020 (“Any coroner, in his or her discretion, may hold an inquest . . . .”; “The
coroner may adjourn the inquest from time to time as he or she may deem
necessary.”), .060 (“The coroner may summon a surgeon or physician to inspect the
body . . . .”). The Coroner’s Act does not specify who may participate as a party to
the inquest, what evidence may be presented, or how the relevance of evidence
should be evaluated. It does not limit the number or type of witnesses, restrict the
evidence or issues the inquest jury may consider, or prohibit the coroner from
opening inquest proceedings to the media and the public.
The King County Code vests the inquest functions of the coroner in the
Executive but provides no further detail about how the Executive should carry out
those functions. KING COUNTY CODE (KCC) 2.35A.090(B). 2 Since at least 1985,
the Executive has built on the Coroner’s Act’s basic inquest framework by
promulgating executive orders establishing policies and procedures for the conduct
of inquests. Historically, those executive orders have specified which parties may
participate, allowed media to film and record inquest proceedings, established that
2
The King County medical examiner performs all other coroner functions, including
autopsies and other forensic investigations into unnatural deaths. See generally KCC
2.35A.090.
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the Rules of Evidence apply, permitted cross-examination of witnesses, mandated
the exchange of discovery, provided for prehearing party conferences, and otherwise
created the ground rules for conducting effective inquests. This court has recognized
the Executive’s authority to issue executive orders establishing policies and
procedures for coroner’s inquests as necessary to fill “gaps in the statute,” so long
as those orders “do not create any direct conflict” with the Coroner’s Act. Carrick,
125 Wn.2d at 144. Today, we reaffirm that authority.
The Executive is charged with “execut[ing] and enforc[ing] all ordinances and
state statutes within the county.” KING COUNTY CHARTER § 320.20. “Executive
officers do have some measure of constitutionally protected discretion in how they
carry out that responsibility.” In re Recall of White, 196 Wn.2d 492, 503 n.4, 474
P.3d 1032 (2020) (citing State v. Rice, 174 Wn.2d 884, 889, 279 P.3d 849 (2012)).
When the Executive conducts a coroner’s inquest, that discretion necessarily
includes the ability to determine the details of how that inquest will be conducted.
Carrick, 125 Wn.2d at 144. So long as there is no “direct and irreconcilable conflict
between the statute and the [e]xecutive [o]rder,” the Executive may establish policies
and procedures for conducting coroner’s inquests in King County. Id. 3
3
The parties dedicate much of their briefing to whether King County Charter § 320.20
effectively vests all executive powers in the Executive or merely establishes a particular
form of government. At issue is the interpretation of Wash. Const. art. XI, § 4, which vests
all general law powers “in the legislative authority of the county unless expressly vested in
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Therefore, to prevail in their challenges to the executive orders, the Families
and the Law Enforcement Parties must show the challenged provisions conflict with
some provision of the Coroner’s Act. We address the Families’ claims first, as they
are dispositive of some of the Law Enforcement Parties’ arguments.
A. The Families Are Entitled to Writs of Mandamus to Comply with the
Coroner’s Act
A writ of mandamus is an extraordinary remedy that commands a government
official to perform a mandatory, nondiscretionary duty required by law. Walker v.
Munro, 124 Wn.2d 402, 407, 879 P.2d 920 (1994). To obtain a writ of mandamus,
petitioners must show (1) the government official has a clear duty to act, RCW
7.16.160, (2) there is “no plain, speedy and adequate remedy in the ordinary course
of law,” and (3) that petitioners are “beneficially interested,” .170. The Families
have satisfied their burden and the writs should issue.
1. The Coroner Has a Clear Duty to Facilitate the Performance of the
Inquest Jury’s Duties
The coroner’s role in inquests is to facilitate proceedings so the inquest jury
can fully investigate the death in question. BNSF, 192 Wn.2d at 837 (“A coroner’s
inquest is a proceeding in which a jury, instead of the coroner, determines the cause
specific officers by the charter.” We need not—and therefore do not—address these broad
constitutional questions in resolving the issues before us today.
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of death of an individual.”). The Coroner’s Act does not grant the coroner authority
to circumvent or limit the jury’s performance of its duties. Instead, the Coroner’s
Act commands the coroner to help seat the inquest jury and swear it in, enable the
presentation of evidence and witness testimony the jury wants to examine, and relay
the jury’s verdict to other government officials as necessary. RCW 36.24.020, .040,
.050, .080-.100. Implicit in this structure is the coroner’s mandatory duty to facilitate
the inquest jury’s performance of its mandatory duties.
The most direct example of the coroner’s duty to facilitate the jury’s inquiry
is in the production and examination of evidence. The jury swears to “inquire who
the person was, and when, where, and by what means he or she came to his or her
death, and into the circumstances attending his or her death.” RCW 36.24.040. But
the jury itself has no power to compel the production of evidence necessary to inform
that inquiry. Instead, it is the coroner who summons and, if necessary, subpoenas
witnesses and evidence to facilitate that inquiry. RCW 36.24.050.
Similarly, the Coroner’s Act compels the coroner to facilitate the jury’s duty
to issue a verdict setting forth the essential details of the circumstances attending the
death being investigated. RCW 36.24.070. The verdict must set forth the identity
of the decedent, when and where they were killed, and the means by which they were
killed. Id. If those means were criminal, the Coroner’s Act requires the inquest jury
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name “who is guilty thereof, if known.” Id. But the jury has no specialized
knowledge about what actions are or are not criminal. The coroner facilitates the
jury’s verdict by submitting questions the jury must answer and providing written
instructions for how to answer each question.
Here, the Families argue the challenged executive orders block Administrator
Spearman from performing two key duties to facilitate the inquest jury’s duties.
They petition for writs of mandamus to compel Executive Constantine and
Administrator Spearman to alter the procedures laid out in the challenged executive
orders to allow the inquest jury to fully comply with the commands of the Coroner’s
Act.
a. The Coroner Must Summon and Examine Every Person They or Any
Member of the Inquest Jury Believes Has Relevant Evidence4
RCW 36.24.050 contains one of the mandatory duties in the Coroner’s Act:
“The coroner must summon and examine as witnesses, on oath administered by the
coroner, every person, who, in his or her opinion or that of any of the jury, has any
knowledge of the facts.” Note there are two duties set out by that provision: a duty
4
Executive Constantine and Administrator Spearman argue this issue is moot because the
2020 EO struck the language barring the issuance of subpoenas to the involved officers.
But because the Butts and Lyles Families also seek a writ compelling Administrator
Spearman to issue the subpoenas and compel the involved officers’ testimony, the issue is
not moot.
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to summon and a duty to examine. RCW 36.24.050 also empowers the coroner to
issue subpoenas to compel reluctant witnesses to attend and be examined. While the
statute provides that the “coroner may issue subpoenas,” this language cannot be
read in context as leaving the issuance of subpoenas to the coroner’s discretion.
RCW 36.24.050. Rather, the coroner has a duty to “examine as witnesses . . . every
person” with relevant testimony. Id. Once the coroner or any member of the inquest
jury identifies a person as possibly having “any knowledge of the facts,” the coroner
must examine that person as a witness. Id. That duty exists whether a prospective
witness voluntarily complies with a summons or must be compelled to attend by
subpoena. Accordingly, the coroner may not refuse—and an executive order may
not prevent the coroner from using their authority—to compel the attendance of any
person who the coroner or any inquest juror believes has “any knowledge of the
facts” relevant to the death being investigated. Id.
The law enforcement officers involved in the killings of Butts and Lyles have
firsthand knowledge of the facts leading to those shootings and are therefore within
the universe of witnesses the coroner must examine. See CP at 185 (prehearing
conference order from Administrator Spearman stating, “It is critical to a full, fair
and transparent investigation that the panel hear from the Involved Officers
regarding the events that occurred resulting in Mr. Butts’ death.”) Administrator
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Spearman has a clear duty to issue subpoenas to those officers compelling their
attendance and testimony so he may examine them in accordance with RCW
36.24.050.
b. The Coroner Must Permit the Inquest Jury To Determine Whether the
Means by Which a Person Was Killed Were Criminal
The 2020 EO commands the inquest administrator to instruct the inquest jury
“that it may not comment on fault . . . such as . . . the criminal or civil liability of a
person.” CP at 1572. The Obet and Lyles Families argue this command conflicts
with the inquest administrator’s duty to facilitate the jury’s ability to render a
complete verdict as required by the Coroner’s Act. We agree.
RCW 36.24.070 commands the jury to issue a verdict identifying, among
other things, the means by which a person was killed. If those means were criminal,
the statute further commands the jury to identify “who is guilty thereof, if known.”
RCW 36.24.070. Implicit in this combination of commands is that the jury must
determine whether the means by which someone was killed was, in fact, criminal.5
5
The Law Enforcement Parties argue the inquest jury cannot be allowed to determine
issues of criminal liability because an inquest is not a criminal trial. Not only is this
argument contrary to the clear commands of RCW 36.24.070, it also misunderstands the
purpose and nature of the criminal means question. “A coroner’s inquest is not a
culpability-finding proceeding,” so the inquest jury’s verdict is not a binding adjudication
of criminal guilt. State v. Ogle, 78 Wn.2d 86, 88, 469 P.2d 918 (1970). Rather, an inquest
is one of four “established, recognized and legally permissible methods for determining the
existence of probable cause.” State v. Jefferson, 79 Wn.2d 345, 347, 485 P.2d 77 (1971).
Consistent with this purpose, the inquest jury’s verdict is a determination whether probable
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This implicit requirement is further demonstrated by the fact that other mandatory
duties are triggered by the jury’s finding that a person was killed by criminal means.
See, e.g., RCW 36.24.100 (“If the jury finds that the person was killed and the party
committing the homicide is ascertained by the inquisition, but is not in custody, the
coroner must deliver the findings . . . to the prosecuting attorney.”). If the inquest
jury is not permitted to determine whether the means by which someone was killed
were criminal, neither the jury nor Administrator Spearman will be able to fulfill
their mandatory duties.
Moreover, the coroner’s inquests into the deaths of Obet and Lyles are being
conducted pursuant to the King County Charter’s requirement that such inquests be
held “where an action, decision or possible failure to offer the appropriate care by a
member of any law enforcement agency might have contributed to an individual’s
death.” KING COUNTY CHARTER § 895. Both Obet and Lyles were killed by
gunshots fired by law enforcement officers. Their inquest juries will know from the
cause exists to arrest and charge a person who allegedly committed homicide. See RCW
36.24.100. Until 2016, the coroner had a mandatory duty to issue an arrest warrant for the
accused whenever the inquest jury found the death in question was the result of homicide.
See LAWS OF 2016, ch. 186 (replacing coroner’s duty to issue an arrest warrant with a duty
to deliver the jury’s findings and all inquest materials to the prosecuting attorney, who
decides whether to seek any arrest warrant and pursue criminal charges against the
accused). That coroners no longer possess the authority to issue arrest warrants does not
change the nature of the inquest jury’s verdict—it remains a type of probable cause
determination.
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outset the identities of the decedents, when, where, and by what means they were
killed, as well as the identity of the officers who killed them. The sole remaining
question for the inquest juries is whether the means by which these people were
killed were criminal in nature. RCW 36.24.070. The Coroner’s Act requires that
juries be allowed to answer that question whenever possible.
The Obet and Lyles Families seek a writ of mandamus compelling Executive
Constantine and Administrator Spearman “to include within the scope of the inquest
the question of whether or not the killing[s of Obet and Lyles were] with criminal
means.” CP at 1 (emphasis omitted), 1164-65. We hold Executive Constantine and
Administrator Spearman have a duty to submit that question to the inquest jury so
that the jury and Administrator Spearman can fulfill their mandatory duties under
the Coroner’s Act.
2. The Families Have No Plain, Speedy, or Adequate Remedy Other
Than Extraordinary Writs
Washington courts have recognized that because “decisions surrounding
coroners’ inquests may not be directly appealed or set aside by the court,” an
extraordinary writ is an appropriate remedy when a person seeks to challenge the
proceedings of an inquest. BNSF, 192 Wn.2d at 847 (affirming issuance of writ of
prohibition). Even as parties to the inquests, the Families do not have any ability to
appeal or otherwise challenge Executive Constantine and Administrator Spearman’s
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decisions not to comply with their duties under the Coroner’s Act. In re Inquest into
Death of Boston, 112 Wn. App. 114, 117, 47 P.3d 956 (2002) (holding superior court
lacked jurisdiction to hear direct appeal from coroner inquest proceeding into
shooting death of armed robbery suspect). Declaratory judgment is likewise
unavailable to the Families because—unlike the cities and the King County Sheriff’s
Office, who show economic injuries stemming from the inquest proceedings
themselves—the Families cannot show the inquest process causes them to suffer any
cognizable injury in fact, economic or otherwise. See Grant County, 150 Wn.2d at
802. The Families have demonstrated that they have “no plain, speedy and adequate
remedy in the ordinary course of law” and therefore satisfy the second element of
the mandamus test. RCW 7.16.170.
3. The Families Are Beneficially Interested and Therefore Have
Standing To Bring Writs of Mandamus
The requirement that a party seeking a writ of mandamus must be beneficially
interested is a simple standard: “all that must be shown is that the party has an
interest in the matter beyond that of other citizens.” RPECW, 148 Wn.2d at 620.
The Families argue that as parties to the inquest and as relatives of the individuals
killed by law enforcement officers, they have emotional and reputational interests in
the conduct of these inquests beyond the public’s general interest that inquests be
conducted fairly. The Families point to specific rules in King County that, they say,
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demonstrate families’ additional interests in how these inquests are conducted. They
highlight that the families of people killed by law enforcement have had the right to
participate as parties in coroner’s inquests in King County since at least 1985. They
also point out that families’ rights to inquest representation at public expense has
been deemed “so foundational, that the County has moved to enshrine it in the
County Charter.” Family of Charleena Lyles’s Opening and Resp. Br. at 33 (citing
King County Ordinance 19116).
Executive Constantine replies with unpersuasive authorities. First, Executive
Constantine points to a decision of the Pennsylvania appellate court holding a father
was not beneficially interested in the coroner’s decision whether to hold an inquest
into his son’s death because “the discretion of the coroner whether or not to conduct
an inquest is not a precipitating factor of the emotional trauma of the decedent’s
death.” Nader v. Hughes, 164 Pa. Commw. Ct. 434, 446, 643 A.2d 747 (1994).
However, the Families here do not claim their emotional and reputational harms are
due solely to their relatives’ deaths. Executive Constantine’s orders and
Administrator Spearman’s refusal to subpoena the involved officers and put the
criminal means question to the jury constitutes a distinct harm, denying the Families
the opportunity to fully investigate the deaths of their relatives during the inquest
process.
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Executive Constantine relies on a Washington Court of Appeals case that held
a family’s interest in a coroner’s inquest is more like the public’s interest than the
involved officers’ interest. Miranda v. Sims, 98 Wn. App. 898, 903, 991 P.2d 681
(2000). But that decision did not concern a petition for an extraordinary writ; it
involved an equal protection issue. Id. at 908 (“[T]o show a violation of the [Equal
Protection Clause], a party ‘must first establish that the challenged act treats
unequally two similarly situated classes of people.’” (internal quotation marks
omitted) (quoting Fell v. Spokane Transit Auth., 128 Wn.2d 618, 635, 911 P.2d 1319
(1996))). The Court of Appeals reasoned that the family was not similarly situated
with law enforcement officers involved in the death under investigation, so the
county’s decision to provide officers with representation did not require it to likewise
provide the families with representation. Id. at 909. That equal protection question
is distinct from the question whether the Families here have a greater interest than
the general public in the procedures by which the inquests into their relatives’ deaths
are held.
We conclude that the Families are beneficially interested in the conduct of
coroner’s inquests. The inquest process is integral to the Families’ deeply personal
interest in seeking justice on behalf of their family members who have been killed
by law enforcement officers. The Families’ position here is similar to that of crime
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victims, who have significant rights in criminal proceedings because their interests
in seeking justice exceeds that of any other citizen. See WASH. CONST. art. I, § 35.
Just as Washington law recognizes victims’ superior interests because of “the severe
and detrimental impact of crime on victims,” RCW 7.69.010, we recognize the
Families’ special interests because of the severe and detrimental impact of police
killings on the families of those slain by law enforcement. The Families’ interest in
seeking justice on behalf of their relatives far exceeds the interest of any other citizen
in coroner’s inquests.
Because the Families have satisfied all three elements of our test for
mandamus, we direct the superior court to grant the Families’ petitions and issue the
writs of mandamus on remand.
B. The Coroner’s Act Grants Coroners Broad—but Not Unlimited—
Discretion To Determine the Procedural Details for Conducting Inquests
We turn now to the Law Enforcement Parties’ arguments that various
provisions of the challenged executive orders conflict with the requirements of state
law. As explained above, the Coroner’s Act provides a basic framework for
conducting inquests and relies on the coroner’s discretion to determine the
procedural details that enable the inquest to satisfy all the requirements of ch. 36.24
RCW. In Carrick, this court upheld an earlier executive order from the Executive,
recognizing the Executive has the authority to issue such orders as necessary to fill
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“gaps in the statute,” so long as they “do not create any direct conflict” with the
Coroner’s Act. 125 Wn.2d at 144. The Law Enforcement Parties challenge several
provisions of the 2018, 2019, and 2020 EOs, arguing they conflict with the spirit and
letter of the Coroner’s Act. We analyze each in turn to determine whether the
challenged provisions are in harmony with state law.
1. Coroner’s Inquests May Include Prehearing Discovery6
The Law Enforcement Parties first argue that coroner’s inquests may not
involve discovery before the inquest jury is empaneled. We disagree.
The 2020 EO—like predecessor orders dating back to 1985—provides for a
series of prehearing conferences in which, among other things, the participating
parties exchange discovery. Prehearing discovery facilitates the inquest jury’s
work by allowing the parties and inquest administrator the opportunity to resolve
evidentiary disputes—including by allowing in camera review and protective
orders for confidential materials—before evidence is presented to the inquest jury.
That facilitation is consistent with the role of the coroner in the inquest process;
certainly, nothing in the Coroner’s Act forbids prehearing discovery. As the
6
The parties alternatively refer to these and other procedures as “pre-hearing” and “pre-
inquest.” But all the procedures in question occurred after Executive Constantine requested
jurors from the superior court, and those requests officially began the inquests. See CP at
1555, 1560, 1557; BNSF, 192 Wn.2d at 838. Therefore, these proceedings are “pre-
hearing” but not “pre-inquest.” We refer to them accordingly.
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Executive notes, the plaintiffs in Carrick specifically challenged the discovery
provisions in the 1990 executive order on inquest procedures, but this court
rejected those arguments. See Resp’t’s Answering Br. (Don Carrick), No. 61542-
0, at 32-35; Carrick, 125 Wn.2d at 143-44. We reaffirm that decision and hold
coroner’s inquests may include prehearing discovery.
2. The Coroner May Initiate Subpoenas To Compel Prehearing
Discovery, but Only through the Superior Court
The 2020 EO provides that the inquest administrator may initiate discovery
subpoenas for witnesses and records by requesting the prosecuting attorney issue
such subpoenas. Executive Constantine argues RCW 36.24.200—which the
legislature passed after our decision in BNSF7—“grant[s] the coroner the right to
issue subpoenas.” Appellant King County’s Opening Br. at 54; RCW 36.24.200 (“In
addition to any of its existing authorities, the coroner may, in the course of an active
or ongoing death investigation, request that the superior court issue subpoenas for
production of documents and other records . . . and permit inspection [of those
7
There, we held that the subpoena authority in RCW 36.24.050 “does not allow a coroner
to demand to see the subpoenaed evidence prior to the inquest” and “does not allow
preinquest inspection of the evidence,” barring the use of those subpoenas to compel
discovery. BNSF, 192 Wn.2d at 845. RCW 36.24.200’s additional authorization of
subpoenas to produce evidence “at a specified time and place” permits the coroner to
receive, inspect, and make rulings about the admissibility of subpoenaed discovery at
prehearing conferences.
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records] . . . at a specified time and place.”). The Law Enforcement Parties counter
with two arguments.
First, they argue the new subpoena authority in RCW 36.24.200 does not
apply to coroner’s inquests because the statute refers to “‘active or ongoing death
investigation[s].’” Br. of Resp’ts Cities & King County Sheriff’s Office at 24-31
(quoting RCW 36.24.200) They point out that the King County Code vests all the
coroner’s duties other than conducting inquests in the King County medical
examiner. KCC 2.35A.090(B). Those duties include “ensur[ing] investigation into
the deaths of persons so specified by chapter 68.50 RCW.” KCC 2.35A.090(C). So,
they reason, the new authority for coroners to issue subpoenas in death investigations
is held by the King County medical examiner, not the Executive.
That argument is unavailing. By definition, a coroner’s inquest is a type of
death investigation. See BLACK’S LAW DICTIONARY 946 (11th ed. 2019) (defining
“inquest” as “[a]n inquiry by a coroner or medical examiner, sometimes with the aid
of a jury, into the manner of death of a person who has died under suspicious
circumstances”). Nothing in the Coroner’s Act suggests a coroner’s inquest is not a
death investigation. To the contrary, the entire “‘purpose of a coroner’s inquest is
to determine who died, what was the cause of death, and what were the
circumstances surrounding the death, including the identification of any actors who
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may be criminally liable for the death.’” BNSF, 192 Wn.2d at 837-38 (quoting
Carrick, 125 Wn.2d at 133). And the legislature specifically added this subpoena
authority to ch. 36.24 RCW (governing inquests) rather than ch. 68.50 RCW
(governing treatment of human remains, including autopsies and postmortems). See
LAWS OF 2019, ch. 237, § 1 (“A new section is added to chapter 36.24 RCW to read
as follows . . . .”). The plain language of RCW 36.24.200 grants coroners additional
subpoena authority that may be used to compel prehearing discovery in inquests.
The Law Enforcement Parties’ second argument, however, is correct. They
point out that RCW 36.24.200 requires the coroner to request that the superior court
issue subpoenas, while the challenged executive orders direct the inquest
administrator to request subpoenas from the prosecuting attorney. Executive
Constantine “acknowledges that the procedures in the 2020 EO for actually issuing
subpoenas may require further refinement . . . [because] the process must comply
with RCW 36.24.200.” Appellant King County’s Reply Br. at 35 n. 19.
We hold that the inquest administrator has authority to request subpoenas to
compel the production of discovery consistent with RCW 36.24.200, and thus only
from the superior court.
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3. Coroner’s Inquests May Inquire into Relevant Law Enforcement
Policies and Training
The Coroner’s Act requires inquest jurors to take an oath pledging to “inquire
who the person was, and when, where, and by what means he or she came to his or
her death, and into the circumstances attending his or her death, and to render a true
verdict therein.” RCW 36.24.040. The statute does not define what is included in
“the circumstances attending” a death; as is typical of the Coroner’s Act, it leaves
that to the discretion of the coroner. Id. Executive Constantine persuasively argues,
“There is no logical argument that excludes an officer’s policy and training from the
facts or circumstances that resulted in the death, especially when policy and training
serve to inform an officer’s response to potential threats.” Appellant King County’s
Opening Br. at 59. The Law Enforcement Parties claim that coroner’s inquests can
inquire into only the narrow questions the jury’s verdict must answer and “[w]hether
an officer acted in compliance with policy is not within that factual panoply.” Resp’t
Individual Law Enf’t Officers’ Resp. Br. at 43. But, as explained above, a coroner’s
inquest is not so cabined.
The inquest jury swears to inquire into “the circumstances attending [the]
death” under investigation in addition to “who the person was, and when, where,
and by what means” the person died—in other words, in addition to most of the
questions answered in the jury’s verdict. RCW 36.24.040. The only remaining
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questions for the jury’s verdict are whether those means were criminal and who is
guilty thereof, which suggests the inquiry into attendant circumstances must be
broad enough to allow the jury to determine whether the killing was a crime. RCW
36.24.070. In officer-involved shootings like the three at issue here, whether the
officers complied with training and policy may be relevant to whether the officers’
actions were criminal. Because an inquiry into policy and training aligns with the
purposes and provisions of the Coroner’s Act, we hold the Executive has the
authority to make that inquiry part of the coroner’s inquest process in King County.
4. Coroner’s Inquests May Include Testimony and Evidence from
Outside Expert Witnesses
The Coroner’s Act gives the coroner and the inquest jury broad authority to
determine what testimony and evidence the jury will hear. RCW 36.24.050 (“The
coroner must summon and examine as witnesses, on oath administered by the
coroner, every person, who, in his or her opinion or that of any of the jury, has any
knowledge of the facts.” (emphasis added)). As noted, the Coroner’s Act also
commands the jury to determine the means by which the decedent was killed and, if
by criminal means, who is guilty thereof. RCW 36.24.070. This inquiry
encompasses a determination of whether the means by which the decedent was killed
was criminal. Id. The jury cannot make that determination without evidence
pertaining to criminal liability, and the Coroner’s Act explicitly grants the coroner
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and inquest jurors the power to summon and examine every person they believe has
any knowledge of relevant facts. Id. Accordingly, we hold that coroner’s inquests
may include testimony and evidence from outside expert witnesses as the coroner or
inquest jury deem relevant.
5. The Coroner May Make Inquest Proceedings Accessible to the
Public, Including by Livestreaming
The 2020 EO directs the inquest administrator to “make the proceedings
available to the public and to the media” in a manner consistent with open courts
principles and General Rule 16. CP at 1571. Administrator Spearman issued orders
in the Butts and Lyles inquests permitting media access, livestreaming, filming,
voice recording, and photography, with some exceptions for juror and party privacy.
CP at 1869-71, 1207. The Coroner’s Act is silent as to media access but requires
that inquests be held in “a courtroom or comparable public venue.” RCW 36.24.020.
This requirement underscores that providing for public access is consistent with the
purposes of the act. At the very least, the public access provided in the 2020 EO and
in Administrator Spearman’s orders does not conflict with any aspect of the
Coroner’s Act, and reflects a proper exercise of the coroner’s authority.
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6. The Coroner May Not Preemptively Bar the Inquest Jury from
Considering Particular Evidence or Testimony
The coroner and inquest jury share equal authority to determine what
witnesses have relevant knowledge of the facts regarding the circumstances
attending a person’s death. RCW 36.24.050 (“The coroner must summon and
examine as witnesses, on oath administered by the coroner, every person, who, in
his or her opinion or that of any of the jury, has any knowledge of the facts.”
(emphasis added)). Because the inquest jury has commensurate authority to decide
what witnesses and evidence are relevant to its inquiry, the coroner cannot
preemptively exempt or bar particular evidence or testimony from the jury’s
consideration.
The coroner may, after the jury has asked to summon a witness, decide on a
case-by-case basis that the requested testimony or evidence is irrelevant or unfairly
prejudicial, cumulative or unhelpful to the jury’s inquiry under the rules of evidence.
Indeed, the 2020 EO—like previous executive orders governing inquests in King
County—provides that the Rules of Evidence apply to inquest proceedings. But the
2020 EO’s preemptive prohibition on any inquest jury’s ability to hear testimony
from the chief law enforcement officer regarding the involved officers’ compliance
with training and policy impermissibly infringes on the jury’s authority under the
Coroner’s Act to seek the evidence it needs. So too does the 2020 EO’s categorical
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prohibition on the jury’s ability to hear testimony from the involved officers
regarding their mental state at the time of the killings. We therefore strike the 2020
EO’s preemptive prohibition of and limitation on the testimony of potential
witnesses, including the chief law enforcement officer.
II. The Challenged Executive Orders Do Not Violate the Appearance of
Fairness Doctrine
Aside from their arguments that aspects of the executive orders conflict with
the Coroner’s Act, the Law Enforcement Parties claim those orders violate the
appearance of fairness doctrine. This court originally recognized the appearance of
fairness doctrine “to ensure fair hearings by legislative bodies,” mainly in the context
of land use hearings. Raynes v. City of Leavenworth, 118 Wn.2d 237, 245, 821 P.2d
1204 (1992). We established the doctrine in Smith v. Skagit County, 75 Wn.2d 715,
743, 453 P.2d 832 (1969), where we voided a planning commission’s zoning change
because the hearing at issue had “lost one of its most basic requisites—the
appearance of elemental fairness.” The planning commission had “announced at
the close of a public meeting that it would go into executive session” but later
“invited . . . powerful advocates of the zoning changes to attend and be heard” in
that executive session while “deliberately exclud[ing] opponents of the proposed
rezoning.” Id. at 742-43. This court concluded that hearing was “so wanting in
apparent fairness as to vitiate the legislation emerging” from it. Id. at 743.
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More recently, we have applied the doctrine to quasi-judicial proceedings in
two circumstances: “‘(1) when an agency has employed procedures that created the
appearance of unfairness and (2) when one or more acting members of the
decisionmaking bodies have apparent conflicts of interest creating an appearance of
unfairness or partiality.’” In re Disciplinary Proceeding Against Petersen, 180
Wn.2d 768, 785-86, 329 P.3d 853 (2014) (quoting City of Hoquiam v. Pub. Emp’t
Relations Comm’n, 97 Wn.2d 481, 488, 646 P.2d 129 (1982) (PERC)). The doctrine
“only applies to judicial and quasi-judicial decision makers.” State v. Finch, 137
Wn.2d 792, 808, 975 P.2d 967 (1999) (plurality opinion). “Whether a decision is
quasi-judicial in nature depends on whether the decision was adjudicatory in nature.”
Id. at 809.8
8
In Petersen we noted, “The doctrine does not apply to executive functions such as
prosecutorial inquests or coroner inquests.” 180 Wn.2d at 786 n.17 (citing Finch, 137
Wn.2d at 809-10; Carrick, 125 Wn.2d at 140-43). Appellants rely on this language to
argue the doctrine is wholly inapplicable to the King County coroner inquests at issue in
this case. Appellant King County’s Opening Br. at 28; Appellant Inquest Administrator
Spearman’s Opening Br. at 3, 22. However, our note in Petersen should not be read so
broadly; it is more accurately read as indicating the appearance of fairness doctrine does
not apply to prosecutors’ actions in inquest proceedings. See Petersen, 180 Wn.2d at 786
(“Though [the commissioner’s disciplinary] inquest may be characterized as prosecutorial
and therefore exempt from the appearance of fairness doctrine, . . . [the inquest nonetheless]
bore many hallmarks of a . . . quasi-judicial proceeding.” (emphasis added) (footnote
omitted)). That understanding is consistent with our holding in Carrick, which declined to
apply the doctrine to prosecutors because they were “not the decisionmaker at the inquest.”
125 Wn.2d at 143 n.8. We need not decide today whether the appearance of fairness
doctrine generally applies to coroner’s inquests because, as explained in the main text, the
Law Enforcement Parties have not established any violation here.
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The first circumstance is essentially an extension of the original appearance
of fairness doctrine to other, nonlegislative government bodies. In the second
circumstance—where a decision-maker has an apparent conflict of interest—we
have invalidated decisions because biased individuals participated in the decision-
making process. See PERC, 97 Wn.2d at 488-89 (collecting cases). But “[w]e
presume that judicial hearings and judges are fair.” Petersen, 180 Wn.2d at 787
(citing In re Disciplinary Proceeding Against King, 168 Wn.2d 888, 904, 232 P.3d
1095 (2010)). And absent “evidence of actual or potential bias, an appearance of
fairness claim cannot succeed and is without merit.” State v. Post, 118 Wn.2d 596,
619, 826 P.2d 172 (1992); see also Petersen, 180 Wn.2d at 786-87 (declining to
apply the doctrine where the petitioner failed to present material evidence suggesting
impropriety).
As to the first category, the Law Enforcement Parties allege an appearance of
unfairness based on the “back room method by which the rules [governing coroner’s
inquests] were drafted.” Br. of Resp’ts Cities & King County Sheriff’s Office Br. at
33 (internal quotation marks omitted). They primarily object to the fact that “an
attorney for one of the families”—who was part of the coalition of law enforcement
and community organizations that drafted a compromise proposal based off the
IRC’s work—“was the principal author of the executive order.” Id. at 34 n.17. But
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that assertion is not supported by the record. The attorney in question shared the
coalition’s draft compromise proposal with the Executive Constantine’s office, and
Executive Constantine incorporated some of the coalition’s proposals alongside
some of the IRC’s proposals in his executive orders. Representatives from law
enforcement agencies were also involved in the coalition and IRC’s work. The
evidence in the record is insufficient to find Executive Constantine’s method of
drafting the challenged executive orders, including Executive Constantine’s
acceptance of a few provisions of the draft compromise executive order, violated the
appearance of fairness doctrine. There is no evidence here that Executive
Constantine “deliberately excluded” law enforcement interests from or otherwise
demonstrated bias against law enforcement in the executive orders reforming the
procedures for conducting coroner’s inquests. Smith, 75 Wn.2d at 743.
Nor have the Law Enforcement Parties presented evidence of any actual or
potential bias on the part of any decision-maker, so their claims under the appearance
of fairness doctrine cannot succeed. They mainly argue Executive Constantine’s
delegation of his inquest duties to an at-will employee like the inquest administrator
suggests potential bias in light of our decision in Carrick. But there are two flaws
with that argument.
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First, the court in Carrick was addressing a factual scenario not at issue here.
At the time of the events in Carrick, the Executive oversaw both the sheriff’s office
and the inquest process. So, “at least in the case of an inquest into a death in which
county police are involved,” we suggested the Executive, “who is ultimately
responsible for police conduct,” delegate his inquest authority to “an official
exercising a high degree of independence.” Carrick, 125 Wn.2d at 142-43. But the
Executive no longer oversees the sheriff’s office and is not ultimately responsible
for police conduct, so there is no more tension between the Executive’s inquest and
oversight authorities. Our expressed concern in Carrick—which at any rate was
mere dicta—does not apply to the current operational structure. 9
Second, the Law Enforcement Parties have not presented sufficient evidence
to show that the at-will nature of the inquest administrator’s employment creates the
appearance of unfairness. The inquest administrators hired by King County are all
former judges, whose independence and judgment are well established. Beyond that,
the logic of this argument fails at a basic level. The Law Enforcement Parties argue
the Executive cannot delegate inquest duties to at-will employees because the
9
King County Charter Amendments 5 and 6, which voters approved in November 2020,
provide that the King County sheriff will revert to an appointed position in 2022 and that
the King County Council, not the Executive, will establish policies and procedures
governing the King County Sheriff’s Office by ordinance.
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Executive might improperly influence such employees to conduct inquests in
accordance with the Executive’s views. But, absent the delegation of authority to
an inquest administrator, the Executive would perform the statutory duties of coroner
directly, and so directly control the conduct of any inquests. KCC 2.35A.090(B).
The Law Enforcement Parties do not argue that the King County Code itself violates
the appearance of fairness doctrine by vesting the authority to conduct inquests in
the Executive. If the Executive can directly conduct coroner’s inquests without
violating the doctrine, the Executive can delegate the authority to conduct coroner’s
inquests to an at-will employee without violating the doctrine. We reject the notion
that the at-will employment status of inquest administrators violates the appearance
of fairness doctrine.
Finally, we reject the Law Enforcement Parties’ argument that Administrator
Spearman has demonstrated prejudice by taking positions at odds with the law
enforcement officers’ positions in this litigation. Administrator Spearman did not
launch this litigation, nor does he violate the appearance of fairness doctrine by
defending his position against legal challenges. And we presume quasi-judicial
decision-makers such as Administrator Spearman act fairly in performing their
duties, absent any evidence to the contrary. Petersen, 180 Wn.2d at 787. As in
Petersen, the inability of the Law Enforcement Officers to sufficiently identify
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evidence of bias on behalf of Administrator Spearman is dispositive of their
appearance of unfairness claims.
III. The Fifth Amendment Does Not Grant Law Enforcement Officers
Blanket Immunity from Testifying in Coroner’s Inquests
The Law Enforcement Parties argue the executive orders violate the Fifth
Amendment rights of the officers involved in the deaths of Butts, Obet, and Lyles.
We disagree. U.S. CONST. amend. V.
“The Fifth Amendment privilege permits a person to refuse to testify at a
criminal trial, or to refuse to answer official questions asked in any other proceeding,
where the answer might tend to incriminate [them] in future criminal proceedings.”
King v. Olympic Pipe Line Co., 104 Wn. App. 338, 351, 16 P.3d 45 (2000). But
“[t]here is no blanket Fifth Amendment right to refuse to answer questions based on
an assertion that any and all questions might tend to be incriminatory.” Eastham v.
Arndt, 28 Wn. App. 524, 532, 624 P.2d 1159 (1981). Instead, in noncriminal
proceedings like coroner’s inquests, the “only way the privilege can be asserted is
on a question-by-question basis.” Jane Doe ex rel. Rudy-Glanzer v. Glanzer, 232
F.3d 1258, 1263 (9th Cir. 2000); see also State v. King, 130 Wn.2d 517, 524, 925
P.2d 606 (1996).
Nothing in the challenged executive orders prevents law enforcement officers
from asserting their Fifth Amendment privilege against self-incrimination on a
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question-by-question basis, even when testifying under subpoena. The 2020 EO
permits the full participation of counsel for the involved officers, who can help their
clients invoke the privilege when appropriate. The officers do not argue they will
be unable to do so but nevertheless insist the challenged executive orders force them
“to forfeit their constitutional right by pinning on the badge to protect and serve the
citizenry.” Resp’t Individual Law Enf’t Officers’ Resp. Br. at 31. To the contrary,
they retain the unfettered right to invoke their Fifth Amendment privilege when it is
actually implicated, and their status as law enforcement officers does not diminish
that right.
IV. The Sixth Amendment Does Not Apply to Coroner’s Inquests
We also reject the superior court’s conclusion that the challenged executive
orders implicate the involved officers’ Sixth Amendment right to counsel. The Sixth
Amendment does not apply to investigatory proceedings like coroner’s inquests; the
right to counsel applies only to criminal proceedings and does not attach until “the
State initiates adversarial proceedings against a defendant.” State v.
Everybodytalksabout, 161 Wn.2d 702, 707, 166 P.3d 693 (2007). The superior
court’s conclusion to the contrary is wrong as a matter of law, and no party defends
it here.
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V. The Pending Inquests Are Timely
Finally, the parties ask us to decide whether some of the pending inquests
remain timely. The Law Enforcement Parties argue RCW 36.24.020 requires that
inquests be completed within 18 months of their commencement, effectively
creating a sunset provision for coroner’s inquests. Executive Constantine replies
that the language in RCW 36.24.020 is meant to command the superior courts to
timely provide jurors and facilities for inquests, not to restrict the ability of the
coroner to hold inquests. Regardless of which interpretation of RCW 36.24.020 is
correct, the inquests at issue are timely.
Under our decision in BNSF, Executive Constantine’s 2017 letters requesting
judges from the King County District Court did not officially begin any inquests.
192 Wn.2d at 838 (“[T]he coroner must request a jury in order to begin an inquest.”).
That is why Executive Constantine sent subsequent letters to request inquest jurors
from the superior court in the spring and summer of 2019—then commencing the
proceedings. In March 2020, less than a year after the inquests began, the parties
agreed to stay all pending inquests during this litigation. Given the sequence of
events, even if RCW 36.24.020 imposes an 18 month window for inquests, the Law
Enforcement Parties’ claims of untimeliness fail.
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CONCLUSION
Coroner’s inquests are an important feature of state and local law in
Washington. They empower community members to conduct thorough,
transparent, and public death investigations, including when individuals like
Damarius Butts, Isaiah Obet, and Charleena Lyles are shot and killed by police. In
such instances, coroner’s inquests can offer some measure of the accountability
necessary to rebuild trust between law enforcement and the communities they
serve—but that accountability depends on how coroner’s inquests are conducted.
The Executive, acting as coroner, has the authority to establish by executive
order procedures for conducting inquests within its jurisdiction. Those procedures
must not conflict with any constitutional, statutory or county-level mandate. Most
provisions of the executive orders challenged here are consistent with
constitutional provisions, the Coroner’s Act, the King County Charter, and the
King County Code, and are therefore valid exercises of the Executive’s authority.
But a few of the challenged provisions, which directly conflict with the inquest
jury’s ability to seek relevant evidence and render a complete verdict under the
Coroner’s Act, exceed the Executive’s lawful authority and are invalid.
Accordingly, we vacate the superior court’s order striking down the challenged
executive orders and uphold them in part.
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We direct the superior court to grant the Families’ petitions in part and issue
the writs of mandamus to (1) compel Administrator Spearman to summon and
examine as witnesses the officers involved in the killing of Damarius Butts and the
killing of Charleena Lyles and (2) compel Executive Constantine to require that the
criminal means question be put to the juries in inquests into deaths involving law
enforcement officers. We also grant declaratory judgment in part for the Law
Enforcement Parties by invalidating the 2020 EO’s preemptive restrictions on the
testimony of the chief law enforcement officer and involved officers. We leave
intact the other provisions of the executive orders establishing King County inquest
procedures, and remand to the superior court for further proceedings consistent
with this opinion.
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WE CONCUR:
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