Feb 10

Kim Waldbaum

KBM successfully defends Tacoma in lawsuit filed by Northwest Detention Center corporation

by Kim Waldbaum

Mike Walter, Brian Augenthaler and Kim Waldbaum successfully defended the City of Tacoma in separate actions brought in federal and state court by GEO Group, Inc. GEO is a privately-owned Florida corporation that runs immigration detention and correctional facilities throughout the country. The lawsuits stemmed from the City’s passage of Ordinance 28491, which rezoned the area in which the Geo-owned and operated Northwest Detention Center was located. In the federal action (3:18-cv-05233-RBL), GEO arguing that the ordinance threatened to interfere with GEO’s future use of its property and threatened GEO’s ability to perform under its federal contract with ICE. GEO maintained that changes to the zoning would not allow the NWDC to expand, however the City countered that expansion was possible with submission of a conditional use permit application.  GEO never submitted an application for expansion and contested the ordinance on its face.  GEO alleged that the city’s legislative zoning action violated the supremacy clause, because the power to regulate immigration was unquestionably a federal power and that the ordinance was preempted by federal law to the extent it prohibited or hindered the future use or expansion of NWDC. GEO also alleged civil rights violations under 42 USC § 1983, specifically that the ordinance violated GEO’s fourteenth amendment rights under the U.S. Constitution (both due process and equal protection).  On cross motions for summary judgment on the supremacy clause/preemption claims, the Honorable Ronald Leighton of the Western District of Washington at Tacoma soundly rejected GEO’s arguments and found in favor of the City.  2019 WL 5963112 (W.D. Wash. 2019).  The district Court reiterated that it is a “high bar” to facially challenge the constitutionality of a statute. GEO argued that the zoning ordinance violated the intergovernmental immunity doctrine because the zoning law discriminated against the contractor (GEO) of the federal government. The court rejected this argument holding that “GEO has not shown that the Amended Ordinance directly regulates the Federal Government. GEO seems to believe that its relationship with ICE provides a complete shield against any regulation, but that is incorrect.” The Court also dismissed GEO’s claims that express, field, or conflict preemption applied to the ordinance, starting that “none of GEO’s arguments held water.” GEO appealed the summary judgment order to the Ninth Circuit Court of Appeals.  However, before any briefing, GEO voluntarily dismissed its appeal, and that ended the litigation. GEO never pursued its federal Fourteenth Amendment claims.

In the state court proceeding, GEO brought a Petition for Review under the Growth Management Act (GMA) pursuing a theory that the NWDC was an essential public facility (EPF) under the GMA, specifically RCW 36.70A.200, and that the ordinance impermissibly restricted the growth of this facility.  The Growth Management Hearings Board twice rejected the argument that the NWDC was an essential public facility, finding that the statute did not require the City to designate the federal facility as an EPF under the state GMA. GEO appealed both of these decisions to the Thurston County Superior Court.  The first appeal was remanded by the Court to the Growth Board for further assessment of a two-part test under WAC 365-196-550(1)(f) (whether the facility provides a public service and whether it is difficult to site) to determine whether the NWDC was an EPF.  The Board engaged in this test on remand and still found that the NWDC met both of these prongs, but there was no requirement that this federal facility be found to be an EPF. GEO again appealed this decision to the Thurston County Superior Court.  In the interim, a new state law had been enacted which clarified that a privately-owned and operated detention facility, such as the NWDC, could not be classified as an EPF.  The Court found that under the newly enacted law—RCW 36.70A.200(1)(b)—GEO’s Petition for Review was dismissed with prejudice.

“Stew Estes and Richard Jolley have restored my faith in the legal system.”

Bret Farrar, Chief of Police, Lakewood Police Department