City insurer urges caution with homeless

Shelton can’t use the courts to solve its homeless problem.

At least not now.

That’s the opinion of city officials and the city’s insurer, Washington Cities Insurance Authority.

Shelton City Manager Mark Ziegler, speaking with the Journal in August, said while some may see a solution in a recent Supreme Court decision overturning Martin v. Boise and allowing camping bans on public land, he is wary.

“It’s not necessarily the fix,” he said.

Ziegler and other municipal officials throughout the state rely on WCIA’s advice and right now the insurer is recommending against prohibiting homeless camping.

WCIA Executive Director Ann Bennett, who spoke with the Journal Tuesday, explained why the insurer is “urging caution” to members thinking about homeless regulations.

All WCIA members share in the legal costs of that litigation.

WCIA formed in 1981 as a risk pool of Washington public entities. Risk pools are not traditional insurance. They are member-owned with the goal of managing risk factors collaboratively, so members reduce the overall cost of coverage for one another.

“We’re basically a public entity created by our members to self-insure their risk,” Bennett said.

WCIA has more than 165 members throughout the state. Over the past five years, more than 20 lawsuits have been filed against various entities, Bennett said.

“What’s happening is cities will put something out and they’ll be a challenge through the courts,” Bennett said.

Johnson v. Grants Pass, which was also overturned by the Supreme Court in June, started when Grants Pass, a city in Oregon, regulated camping in public.

In Oregon, it was challenged under a federal cruel and unusual punishment standard.

“That’s a very narrow decision,” Bennett said.

Justices did not address other considerations such as due process, according to Bennett.

“It’s not ‘Oh you can ban homelessness.’ It’s very narrow,” she said.

Current state litigation challenging similar bans question whether it violates the cruel and unusual standard in the Washington Constitution.

Defending the local suits is expensive, but if litigation makes its way to the Supreme Court, costs are “hundreds of thousands of dollars,” Bennett said.

There are also attorney fees.

In federal law, if a plaintiff’s attorney sues and prevails, they can petition for attorney fees.

Bennett gave an example of a WCIA member that was sued.

“We immediately offered some money to the plaintiffs, probably $5,000,” Bennett said. The reasonable settlement turned costly when “attorney fees requested were in the six figures,” she said.

“That’s the kind of exposure that cities face. We are pooling taxpayer dollars to pay these settlements.”

In his remarks in August, Ziegler also noted costs to taxpayers.

“I have no intent to bring the city of Shelton especially into a civil rights lawsuit. I think that’s irresponsible to our citizens because of the costs,” he said.

Homeless camping bans are not the only municipal solution being challenged. Bennett said “tiny home villages” are also the subject of litigation – from the residents.

“Sometimes they’ll have tiny home villages and people will violate rules,” Bennet said.

Suits have been brought challenging those rules and alleging even if the resident violates them, an eviction violates Washington’s Residential Landlord-Tenant Act, Bennett said.

Vendors, hired by cities to run these programs, are also being sued and in need of insurance, she said.

“That’s a big new thing.”

Civil rights suits involving homeless issues are dynamic and the law is not settled.

“This is why we’re urging caution. Because anything you try is being challenged,” she said.

Some municipalities that decide not to take WCIA advice and enact challenged legislation won’t necessarily be dropped from the risk pool.

“Coverage is not conditioned upon that” Bennett said about heeding advice, although WCIA may review the entity’s membership.

“There are mechanisms that our board has should they feel like a member is not operating with good intent and is exposing the pool…They do have recourse.”

Bennet said unsuccessful lawsuits have also been brought against WCIA members by business owners who want the cities to do something about crime and homelessness.

“They say their business has been impacted by a city’s failure to act,” Bennett said, but none of those suits has succeeded. People involving the courts spend a lot of time and money, she said.

“That’s how much passion is around this issue.”