(The Center Square) – A Thurston County Superior Court judge ruled Friday that several provisions of Washington’s new law governing elected sheriffs are unconstitutional, including requirements for who can run for sheriff and provisions regulating sheriffs’ speech and associations.
Judge Christine Schaller issued the ruling in two lawsuits challenging new state laws stemming from Senate Bill 5974, including a case brought by the Washington State Sheriffs’ Association and a separate lawsuit involving sheriffs from Spokane, Stevens, Ferry and Pend Oreille counties.
SB 5974, signed into law by Gov. Bob Ferguson on April 1, took effect April 30. The Legislature described the measure as an effort to modernize and strengthen laws governing sheriffs, police chiefs, town marshals and other law-enforcement personnel.
Schaller ruled that the Legislature has authority to establish reasonable qualifications for the constitutionally created office of sheriff, but found that several qualifications imposed by SB 5974 went beyond that authority.
The law raises the minimum age for a sheriff from 18 to 25 and establishes education, military-discharge and law-enforcement experience requirements, among other qualifications.
“The qualifications for a candidate of Sheriff under 5974 … goes beyond any reasonable qualification,” Schaller said.
She said the age requirement was not narrowly tailored to a compelling state interest because it applies to sheriffs but not other county elected officials.
The law also requires candidates to have completed five years of regular, full-time law-enforcement employment involving enforcement responsibility with a government law-enforcement agency.
Schaller noted that the requirement does not apply to sheriffs already holding office unless they seek to move to another jurisdiction.
Although lawmakers stated that elected and appointed law-enforcement leaders should be subject to the same eligibility requirements, Schaller said the exemption for sitting sheriffs undermines that stated goal.
Schaller granted summary judgment to the Sheriff’s Association on its challenge to Section 9 and granted summary judgment to the plaintiffs on related claims in the second lawsuit.
Ruling reactions
Rick Kuss, a candidate for Kitsap County sheriff, was directly affected by Senate Bill 5974 and was among the plaintiffs challenging provisions of the law that could have affected his ability to run for office.
Kuss described the ruling as a significant win for candidates and current sheriffs who want to continue seeking office.
“A huge victory just for anyone wanting to run for public office and those currently that are sheriffs that will want to continue running and just eliminate the overreach that the legislative branch has put in place with Senate Bill 5974,” Kuss said in a Friday phone interview with The Center Square.
Kuss said the issue was especially personal because he believes voters should ultimately have the ability to choose their county sheriff.
“It’s even me and my family and of my opponents, just giving the people the right to choose their own sheriff, not based on what the state says you have to do to become one, but more so what our Constitution protects us and allows us to do,” Kuss said.
The state said it would continue the fight to preserve the law.
“We respectfully disagree with the judge’s decision. We intend to appeal to defend this important state law,” said Mike Faulk, deputy communications director of the Washington State Attorney General’s Office.
Pierce County Sheriff Keith Swank, who is separately involved in a dispute over his elected position, said he believes the ruling’s protection of sheriffs’ political speech is significant.
Swank told The Center Square Friday that complaints had previously been filed with the Criminal Justice Training Commission over things he has said.
“I think it’s fantastic because they have filed a bunch of complaints against me … to try to remove me from office for my speech,” Swank said.
Roman Kilinkaridis, a current West Richland Police officer and candidate for Yakima Sheriff, also hailed the ruling.
“I have said from the beginning that accountability in law enforcement is important. Sheriffs should be held to high standards,” he said in a statement to The Center Square. “But accountability cannot become a tool that takes power away from the voters and gives it to an unelected state commission.”
Benton County Sheriff Mike Clark, who joined 11 other sheriffs in the lawsuit against the state in May, said the ruling goes beyond the individual sheriffs involved in the case.
“At its core are the rights of voters and their ability to choose the elected officials who represent them,” said a statement from Clark.
“Today’s ruling striking down new requirements to run for sheriff and preventing removal from office based solely on CJTC findings, reinforces the voters’ authority in selecting and retaining their sheriff,” he added.
Background checks challenged
In her ruling, Schaller also struck down the portion of SB 5974 requiring the Washington State Patrol to conduct background checks to determine whether sheriff candidates meet the new qualifications.
She said determining who is eligible to hold public office is a judicial function and found that SB 5974 improperly transferred that authority to an executive-branch agency.
Under the law, the Washington State Patrol would have to determine whether candidates met requirements including the five-year employment standard, education requirement and restrictions involving misconduct.
Schaller said those determinations were not merely ministerial because they could require discretionary factual findings.
“Nothing in this statute instructs the Washington State Patrol how to resolve a contested issue of eligibility,” Schaller said.
She also pointed to the lack of a required hearing, explanation for an agency decision or meaningful judicial review.
“There are no set of circumstances where this provision can be constitutionally applied,” Schaller said.
Speech, association provisions
Schaller also ruled against the state on challenges involving provisions concerning speech and association.
The law ties sheriff certification to provisions allowing the Criminal Justice Training Commission to deny, suspend or revoke certification based in part on conduct involving affiliation with “extremist organizations.”
Schaller found the term “extremist” was not sufficiently defined and that the law did not provide sheriffs and candidates adequate notice about what conduct could result in sanctions.
“The term extremist does not have a settled meaning,” Schaller said.
She found the provisions unconstitutionally vague and determined they constituted content-based restrictions on speech and association.
Schaller said Washington’s Constitution provides particularly strong protections for political speech and that the challenged provisions could require the state to examine political speech, organizational affiliations and other expressive conduct when determining whether a sheriff could maintain certification.
Although the Legislature identified promoting public trust and confidence in law enforcement as a compelling state interest, Schaller said the law overstepped in pursuit of that goal.
“5974 burdens substantially more speech and association than necessary to advance this interest because it allows the CJTC to evaluate political speech and organizational affiliations under vague and discretionary standards,” she said.
Candidate certification also struck down
Schaller found unconstitutional the requirement that sheriff candidates certify under penalty of perjury that they will maintain certification as a condition of holding office.
She compared the requirement to an unconstitutional oath imposed on candidates for public office in an earlier Washington Supreme Court case.
“This certification is vastly more broad than the oath in the Orians case,” Schaller said.
She granted summary judgment to the plaintiffs on the claim that the certification requirement was unconstitutional.
Schaller additionally ruled the challenged provisions were unconstitutionally overbroad because they reach a substantial amount of protected political speech and association relative to their legitimate scope.
Not every challenge to SB 5974 succeeded.
Schaller upheld Section 16, which limits what people deputized by a sheriff may do unless they are certified peace officers. She found that the sheriff retains the core authority to deputize individuals while the Legislature may establish limitations on what those individuals may do.
The lawsuits also challenged provisions concerning automatic vacancies and removal of elected sheriffs under Sections 11 and 12.
Schaller’s discussion of those provisions focused on whether the Legislature could create a sheriff-specific mechanism allowing an administrative agency’s actions to result in a vacancy, rather than applying the same rules governing vacancies to elected officials generally.
What happens next
Schaller said she had made what she hoped was a comprehensive ruling on the causes of action presented in the two lawsuits but noted that she could not address every argument raised by the parties.
She directed her clerk to set the cases for presentation on Oct. 23 at 9 a.m.
The plaintiffs are scheduled to provide proposed orders to the defendants by Oct. 15. The parties then have deadlines through Oct. 20 to confer and submit proposed changes before the Oct. 23 presentation.
