August 2015 Bar Bulletin
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August 2015 Bar Bulletin

KCBA Amicus Brief AssistsTenants in Appeal

By Andrew G. Murphy


In September 2014, KCBA Board of Trustees formally approved a new amicus curiae policy to better enable KCBA to address substantially important issues pending in appellate courts. The policy's arm is the Amicus Committee, which reviews requests for KCBA to participate as amicus, recommends to the Board of Trustees whether to approve the request, and, if the request is approved, oversees the review and filing of the amicus brief.

The Amicus Committee had its first opportunity to implement the new policy in October when it received a request to participate as amicus in Pham v. Corbett, which was pending in Division I of the Court of Appeals. The dispute was between a residential landlord and tenants that grew out of an unlawful detainer action involving substandard housing. Although Pham presented many issues, the Amicus Committee ultimately determined that KCBA should file an amicus brief regarding an issue of first impression: application and interpretation of the relocation assistance statute, RCW 59.18.085.

The statute was designed to protect tenants with limited financial resources who live in substandard housing and cannot afford to pay the costs associated with relocating to new, safe and habitable housing. If landlords knowingly rent housing that is or will become condemned or is unlawful to occupy, the statute requires that the landlord pay relocation assistance to their tenants.

The statute is clear that landlords can be sued to obtain such relocation assistance. But before Pham it remained an open question whether a tenant could bring a relocation assistance claim as a counterclaim in an unlawful detainer action.

As a limited statutory proceeding intended to quickly resolve the right to possession between a landlord and tenant, an unlawful detainer action is unlike other civil actions because only limited defenses or counterclaims may be heard. If tenants could not present relocation assistance claims in unlawful detainer actions, then tenants who were entitled to that assistance would have to initiate a separate action after they were already forced to move. Since the point of relocation assistance is to provide resources to tenants before they move so as to facilitate their transition to new housing, requiring them to initiate a separate action - and bear the associated costs - would thwart the statute's purpose.

The Amicus Committee met to discuss the case and concluded that the Pham decision could ultimately strengthen or weaken the statute. The committee agreed that the court should hear how restricting the statute could negatively impact hundreds of low-income tenants every year, and unanimously recommended that the Board of Trustees approve the request to participate as amicus.

After the Board formally approved the request at its November 19, 2014 meeting, the committee reviewed and edited drafts of the brief to ensure it was of the high quality necessary to represent KCBA. When the Court of Appeals ultimately published its opinion on May 26, authored by Chief Judge Michael Spearman, the Court expressly agreed with KCBA's position on the statute issues, stating:

Amicus King County Bar Association (KCBA) argues that the obligation to pay relocation assistance under subsection (3)(a) does not require that a unit actually be condemned or unlawful to occupy. It is enough for an agency to notify a landlord that the dwelling will be condemned or will be unlawful to occupy. We agree with the Tenants and KCBA. (emphasis added)1

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