Controversy over changes to investigative power is ‘kind of silly,’ WA AG says
The Washington state attorney general this session requested legislation related to the agency’s general powers, arguing that it would simply help equip the office with a better set of tools.
Critics warn that Senate Bill 5925 and House Bill 2156 would amount to a concerning expansion of the Office of the Attorney General’s authority.
SB 5925 passed off the House floor Wednesday on a 56-41 vote, with only Democratic support. Two Dems — Kirkland representatives Larry Springer and Amy Walen — joined Republicans in voting against the bill.
The bill cleared the Senate last month 30-19 along party lines.
SB 5925 would allow the state’s AG to issue civil investigative demands (CIDs) for oral testimony, documents and responses to written questions when probing potential violations of the U.S. or state constitutions, plus statutes like the Washington Law Against Discrimination, the City and County Jails Act and law enforcement requirements under the Keep Washington Working Act, according to the bill report. That CID authority wouldn’t extend to criminal prosecutions or investigations.
Multiple Republican-backed amendments seeking to exempt certain organizations, including gun clubs and hospitals, were shot down during Wednesday’s debate. Others were accepted, such as one requiring the attorney general to give the Legislature a report within four years about use of CID authority.
Rep. David Hackney, a Tukwila Democrat, said during Wednesday’s debate that the attorney general’s office can already investigate wage theft and discrimination, but that such probes can be needlessly time consuming and costly.
Democratic Rep. Darya Farivar of North Seattle stood in support of the bill.
“This legislation will make it easier to bring justice swiftly, so that there are no more victims,” she said.
Rep. Hunter Abell, an Inchelium Republican, argued that the bill lets the attorney general embark on a “fishing expedition” by issuing those demands on people, businesses and entities with virtually “no standards.”
Eatonville Rep. Matt Marshall warned that it would give the AG and the office’s attorneys unchecked authority.
“When that’s coupled with all of the lack of oversight — with really the only oversight being also the Attorney General’s Office — it’s setting the stage for political targeting,” the Republican said.
Bill sponsor Sen. Drew Hansen, a Bainbridge Island Democrat, explained at a February committee hearing that CIDs are typically written requests for documents or written discovery. Although the AG can currently investigate violations of a “hodgepodge” of statutes like the Medicaid False Claims and Consumer Protection acts, lots of others are left out, he said.
“Other states don’t do this,” he continued. “Tennessee, for example, has CID authority for every single statute that the Attorney General enforces.”
Among those testifying against the bill: the Washington Council of Police and Sheriffs (WACOPS) and the Washington Association of Sheriffs and Police Chiefs (WASPC).
Attorney General Nick Brown dismissed Republican comments about the legislation amounting to a power grab as “kind of silly.”
“But I do think people are confused by an expansion of our authority versus an expansion of our tools,” he said in a call.
Sen. Yasmin Trudeau, a Tacoma Democrat who previously worked as then-Attorney General Bob Ferguson’s legislative director, said the AG’s office is fairly conservative as an institution.
CIDs are a pre-investigatory tool that has already existed to ensure the AGO has the facts available to show a case is warranted to bring, she said. Many such demands move forward but don’t lead to litigation, she added.
Brown said the CID bill is particularly important as the federal government has backtracked on traditional civil rights enforcement. He cited concerns with the administration’s investigation of poor working conditions, and said that it has instead preferred to prioritize employers over employees.
Another AG-requested bill, HB 2156 by Rep. Edwin Obras, a SeaTac Democrat, would tell the AGO to appoint investigators as limited authority peace officers who can probe financial and economic crimes. Those investigators would not have the authority to make arrests or carry firearms, however.
Brown said that bill would help streamline the warrant process by giving his office the ability to serve a narrow class of search warrants to institutions directly instead of working through a law enforcement agency.
Mike Faulk, a spokesperson for the AG, noted via email that today, when the agency heads to court and has a judge sign off on a search warrant, the office isn’t allowed to serve it. Instead, he said, the agency has to ask local law enforcement to do so, which uses law-enforcement resources and takes coordination, time and effort. Under the bill, some investigators would have limited ability to electronically serve a court-issued search warrant through either an online portal or by email, he explained.
HB 2156 cleared the House last month on a 54-43 vote, with no Republican support. Four Democrats voted against the bill: Walen and representatives Dan Bronoske of Lakewood, Adison Richards of Gig Harbor and Alicia Rule of Blaine.
Rep. Jim Walsh, an Aberdeen Republican, told McClatchy that he views these bills as part of a broader mission creep at the agency. He worries about a lack of independent oversight and that the expansion of such tools could potentially be used in a selective or weaponized way.
“Who watches the watchmen?” he said. “Where is the check and balance here?”
Faulk wrote in an email that there are many pathways for accountability and oversight for the office, including the Legislature and courts.
Walsh also accused Brown of being hypocritical when it comes to his stance on Immigration and Customs Enforcement entering homes with self-issued administrative — not judicial — warrants, arguing that the AG is now asking for an analog at the state level.
Brown brushed off Walsh’s critique, questioning why he’d equate a CID subpoena with ICE physically intruding into someone’s home.
Terry Price, associate teaching professor at the University of Washington School of Law, said he isn’t as concerned about these bills amounting to mission creep. Pointing to the fiscal notes, he said he doesn’t see money there to hire a bunch of people to serve such administrative subpoenas.
Spokane County prosecutor Preston McCollam testified against SB 5925 in a February public hearing in the House Civil Rights & Judiciary Committee.
He argued that the bill would allow a partisan office to investigate separately elected offices and likened it to a “Watergate-era or McCarthyism-era type of power.”
Faulk said the office could only issue such a demand if it’s looking into a violation of law that’s “a matter of public concern.”
Brown called McCollam’s characterization “disappointing.” He said he would hope that a county prosecutor or local government would support an investigation to stop Washingtonians’ civil rights from being violated by public or private actors.
Opposition to the bill is restricting his office’s ability to enforce state law, he added.
“I heard so much over the last couple of years from the law enforcement community in general, and the public, wanting us to do more to help keep people safe,” Brown said. “And the CID bill helps us do that.”
SB 5925 must return to the Senate for a concurrence vote before it heads to the governor’s desk. As of Thursday afternoon, the upper chamber had not taken a floor vote on HB 2156; by that evening it had passed the Senate 29-19 along party lines.
Friday is the final day for most bills to clear the opposite chamber, and the legislative session is scheduled to end March 12.
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