Yesterday, the Seattle City Council voted unanimously to pass Councilmember Kshama Sawant's bill to grant free legal representation to tenants facing eviction in Seattle.
The council delayed its original vote on the legislation in order to "strengthen" the bill against legal attacks. Supporters feared this was just an excuse for the more ~pragmatic~ Dems on the council to cook up some amendments to water down the bill's effectiveness.
In the meeting, the only tension came when Council President Lorena Gonzalez introduced an amendment requiring tenants to declare that they couldn't afford a lawyer, or, in other words, that they were indigent. Sawant insisted this amendment amounted to a means test. Gonzalez firmly said it wasn't, and she went on to argue that her amendment would ensure the bill withstood any lawsuits. However, Sawant and tenant advocates believe Gonzalez's amendment wasn't really necessary.
Sawant's bill, co-sponsored by Councilmembers Andrew Lewis and Tammy Morales, is supposed to be a safety net for the masses of people who will face eviction once the eviction moratorium expires on June 30 and over a year of backlogged rent comes due.
Unlike other cities, renters in Seattle don't have a guaranteed right to an attorney for eviction hearings. A 2019 study shows that a vast majority of tenants facing eviction don’t have lawyers, and those who can get them are twice as likely to keep their housing.
Throughout the legislative process, Sawant adamantly opposed any type of means test, fearing the requirement for tenants to declare their low-income status would create a chilling effect that would deter people from accessing the program.
Meanwhile, Gonzalez and the rest of the council feared that opponents of the legislation could weaponize the state constitution's prohibition on the "gift of public funds," which precludes governments from giving money to anyone who isn't poor. Gonzalez seemed pretty certain that when—not if—the council faced a legal challenge, "the gift of public funds" would be the chink in the City Attorney's armor.
"We have three lawyers on the council. All of us think the gift of public funds thing is a problem," Lewis, who is one of those lawyers, told The Stranger.
Gonzalez said she used the same self-attestation strategy to get around that concern when she passed an immigrant legal defense fund for people charged with immigration offenses.
Councilmember Tammy Morales added that legal service providers already ask this type of question before a case starts, and that Gonzalez's amendment was just "codifying what is happening in practice."
Despite these arguments, Sawant insisted Gonzalez's amendment was still a means test. "Council members don’t want to call it means testing," Sawant said. "You can call it happy-joy testing if you want, but it’s still means-testing in reality. People must go through some kind of hoop before they qualify."
Edmund Witter, senior managing attorney for the Housing Justice Project, agreed that it was a means test. "It’s a light one, a low-barrier one," Witter said, "I don’t think it’s terrible, but I’m more personally bothered about why they’re doing it."
Witter said he was confused about where this concern for the gift of public funds was coming from all of a sudden. He cited several policies approved in the past, such as the council's mitigation fund for landlords, or the King County Council paying for the Mariners' new stadium, where the gift of public funds wasn't a factor. "It seems very strange," Witter said.
In an email, Dan Nolte, a spokesperson with the City Attorney's Office, said the business owners who sued the city over CHOP used the gift of public funds argument in their lawsuit, saying the city had "given away an interest in public property without consideration and with donative intent to CHOP participants."
When Sawant brought up examples similar to Witter's during the meeting, Gonzalez said those were a "false equivalency." She refuted Sawant’s claims and reiterated that the council had "a constitutional obligation to not engage in the gift of public funds."
According to Witter, that constitutional obligation was not based on legal precedent, instead, it was "more like council precedent," he said. "It’s how the council thinks they need to act when they’re confronted with these policies. If the council is saying we can’t create welfare programs without taking this narrow approach, it’s going to start affecting other programs."
If the council continues legislating in fear of the gift of public funds, Witter said, we could see more means-testing with social programs in the city and in the state, since Seattle policies have a "ricochet effect" statewide.
The council estimated that the program would cost around $750,000 annually. That could change depending on what the city and mayor decide to do during the budget season.
"We’ll see what actually happens there," Witter said.