january 2018 bar bulletin
By Alison Holcomb
There is a beauty in American law not readily apparent to the casual observer. Behind the fiery sword of justice stands a more complex and interesting concept — a framework of balanced tension between freedom and fairness that provides toeholds for both visionaries and crisis managers. This framework is strong and, yet, flexible, and Pete Holmes thrives in navigating and shaping it.
It was not at all obvious that he would. Holmes, Seattle’s long-time city attorney, applied to the University of Virginia School of Law as he was completing his undergraduate studies. But when he was offered a seat, he deferred matriculation indefinitely. He went instead to Washington, D.C., to work with the Natural Resources Defense Council (NRDC), a nonprofit organization founded by five environmental lawyers: John Adams, Richard Ayres, John Bryson, Edward Strohbehn and Gus Speth.
His timing proved fateful. Two years earlier, Holmes had taken the train from New Haven to Union Station to attend President Jimmy Carter’s inauguration. When he arrived at NRDC in 1978, the Love Canal disaster had broken in the national media, revealing the devastating public health consequences of unsafe disposal of toxic industrial waste. While President Carter was announcing a federal health emergency, NRDC’s founders were engaged in drafting major components of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), better known as the Superfund Act. They were focused on making industry — instead of taxpayers — pay for its mess, and on changing the cost-benefit analysis of waste disposal practices that industry would face moving forward.
The NRDC lawyers’ eyes were fixed on long-term, system realignment that held promise to put an end to industry externalizing the costs of their profit-making enterprises. Their vision reached far beyond Love Canal.
Holmes remembers the first charts, presented by NRDC’s “groundwater team,” of the plume from decommissioned gas stations’ petroleum products leaking into groundwater, and the daunting sense of the enormity of the problem that already existed underground and was just waiting to percolate to the surface. He also remembers the resolve of the NRDC lawyers drafting CERCLA: “What to many people might have been mind numbingly long sessions debating what provisions would do and what things were like on the ground, and how the economy worked — I found it fascinating,” Holmes said.
The enactment of CERCLA initiated a major cultural shift. Holmes likens it to the National Environmental Policy Act of 1969 (NEPA) and recalls Ayres and Tom Stoel explaining that the real substance of NEPA was the procedures it introduced. “Being required to analyze the impact of our proposed actions,” Holmes said, “required industry to think about the substantive considerations underlying the procedural requirements. With practice, thinking about impacts became rote, and then so did thinking about how to avoid them.
That said, Holmes’s decision to take UVA up on its offer was catalyzed by less heady considerations. In 1981, President Reagan appointed anti-environmentalist James Watt as Secretary of the Interior, providing the proverbial straw that broke the camel’s back. Holmes decided to become a lawyer so that he could join the ranks of the people he had come to admire for having a real impact on the laws and policies that were shaping Americans’ quality of life. Holmes was sure that he was going to be a tree-hugging public interest lawyer and even joined UVA’s Journal of Natural Resources Law. As an undergraduate at Yale, he had majored in American studies with a focus on environmental science and energy policy.
However, something strange happened at law school. He discovered he really liked antitrust law, corporations, federal income tax and the Uniform Commercial Code. He enjoyed examining the interlocking systems of incentives and disincentives that guide entity behavior. When he graduated, Holmes moved to Seattle and joined the Miller Nash firm, a group of lawyers he continues to admire. His practice focused on litigating civil commercial matters, and he found himself gravitating toward crisis situations, e.g., businesses facing bankruptcy, with owners struggling to figure out how to make payroll and keep the lights on. This increasing focus foreshadowed his transition to his current role with the City of Seattle.
In 2001, having both made partner and looking for the next adventure, Holmes and his wife Ann decided to make a change. Holmes wasn’t sure what was next. Maybe he would seek a seat on the appellate bench or perhaps he would simply take one or two years to reflect and explore opportunities. On September 11, however, he was reminded of his son Paul’s favorite joke. “How do you make God laugh?” “Tell Her your plans.”
The world changed after 9/11. Holmes put his sabbatical planning on hold. Shortly thereafter, Seattle created its first civilian police oversight board — the Office of Professional Accountability Review Board (OPARB) — and Holmes was invited to serve as a member and, later in the year, chair.
Holmes was surprised at the nearly absolute lack of transparency of the police department in a city as sophisticated as Seattle and the department’s apparent contempt for his role. He immersed himself in ride-alongs, trainings and roll calls, appreciating the up-close view of where, he says, “the rubber meets the road in the U.S. Constitution” — the area of law in which the Fourth, Fifth and Sixth amendments are tested on a daily basis. He thought the police had good insights to share from their experiences, but were unwilling to do so. They opted instead to send OPARB almost completely redacted reports from closed files and treat the board’s civilian membership with disdain.
In time, Holmes came to understand that the city attorney could have greater impact on police accountability and transparency than he could as chair of OPARB. He successfully challenged the incumbent in 2009. His bigger challenge lay ahead, in reforming the charging practices of line prosecutors. Holmes didn’t want to charge people with crimes for simple possession of marijuana for personal use, or for driving with a suspended license after failing to pay a ticket on time. And he didn’t want to see immigrants deported simply because they received a 365-day suspended sentence — perhaps never serving a single day in jail.
The pushback was loud and strong. Holmes was repeatedly reminded by his staff and officers that he had no prosecutorial experience, and he quickly came to understand the centrality of this point to his efforts. Lawyers with years of prosecutorial experience were clinging to “the way it’s always been done.” Meaningful criminal justice reform would never happen in such an officious environment. Some housecleaning was in order. The year after Holmes instituted an office policy of asking for only 364 days on a suspended, gross-misdemeanor sentence, rather than the full 365, he was vindicated by the Legislature’s passage of Senate Bill 5168, codified at RCW § 9.92.020 (2011), incorporating the policy into state law with votes of 45–3 in the Senate and 93–2 in the House.
When Holmes first took office, no one in the Law Department had been through the City’s race and social justice training. By the end of the first quarter, they had all been through it together. In Holmes’s view, Seattle’s Racial and Social Justice Initiative and accompanying Racial Equity Toolkit serve the same purpose as NEPA and CERCLA. They are shifting culture through daily practice. City employees are developing new muscle memory for how to assess the potential impacts of proposed ordinances, policies and practices. Holmes sees the City Attorney’s Office as a necessary leader of the effort. “If the Law Department is not modeling the behavior and asking hard questions,” he says, “where do we expect that to happen?”
As he looks to the future, Holmes’s focus rests on Robert Mueller and the way he asserts the rule of law patiently, deliberately and relentlessly to check a would-be tyrant. Holmes also pauses to reflect on his upbringing by a music teacher and forester in rural Virginia and their advice to “ride loosely in the saddle of life.” You never know what’s around the bend.
Alison Holcomb is the director of strategy in the Political Strategies Department of the ACLU of Washington.