We get a lot of reference questions at the King County Law Library.

The refrain goes that because we aren’t practicing attorneys, we can’t offer legal advice—as librarians, we can only offer resources.

That said, some questions are very interesting & inspire me to do some research of my own, collected here in this column. Don’t construe this as legal advice!

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This is Ross’ Ref Q’s, a monthly column that looks at real law library reference questions with some kind of deeper payoff: Perhaps you’ll learn a novel research strategy or the answer to an unorthodox procedural question. This installment’s lesson can be largely distilled down to the dictum: don’t take anything for granted.

Someone came to the reference desk. They said that they wanted to evict someone and that [an agency] sent them our way, saying that we have a kit. We do have a kit. The short spiel on that goes: the bulk of “forms” for residential evictions aren’t necessarily state-provided, fill-in-the-blank forms, but are instead drafted one-off (usually by attorneys). Many small time landlords can’t afford attorney hourly rates, so KCLL worked with a local attorney to offer a kit that includes the typically necessary forms as well as instructions for the process. It can be bought in-library and on our website too.

There is a distinction in librarianship, and I suppose in customer service overall, where you want to follow the customer’s lead-to a degree. If someone comes in looking for a form packet for divorce, for example, I will clarify if they have kids or if the divorce is contested, as there are additional form sets in either case. But I won’t ask if they want to look at the Legal Separation packet, because while legal separation is similar to divorce and achieves many of the same outcomes, it is discrete enough that I have to assume they would request it specifically.

I will print the eviction kit on demand given the conversation flows as it usually does: Someone will come in and say they’re at wits end, a tenant has been causing trouble, they haven’t been paying rent, and they need them gone. That’s clear enough, that’s an eviction. Or they may even say, in a questioning voice, “I need an…unlawful detainer?” If that part is unclear I’ll ask if they want to evict someone or they are being evicted-of course, the methods vary greatly there. But I don’t ask if they’ve considered a protection order. It can have the same result, but I have to assume the person knows what they’re talking about, to a certain degree.

With COVID-19 changes to eviction law/procedure, we started prefacing eviction kit sales with some questions. “Are you aware of the moratoria?” Then, “Is the property located in Seattle or Burien?” These two had the longest lasting moratoria ie for the longest time, the kit wouldn’t work in these municipalities. But otherwise, I’ve assumed this person was a landlord and wanting to follow standard unlawful detainer actions under Washington Landlord-Tenant Law.

So, anyway… Someone came to the reference desk. They said that they wanted to evict someone and that [an agency] sent them our way, saying that we have a kit. We do have a kit.

With the moratoria finished, I ask the one qualifying question I have left: “Just to be sure, is the person you’re trying to evict on a lease?” They affirmed, I started swerving my cursor around to print the packet.

As I’m doing so, the patron continued railing against the renter, and casually lamented that it would have been great to have a roommate that actually helped with rent, but this person wasn’t paying. That’s a wrinkle.

I pull my cursor away from the “Print” button, and asked for clarification, “I might have misunderstood, are you the owner of the property?”

“No, I rent the place. I’m trying to evict my roommate.”

Ah. I’ve seen this before, and while I am not a lawyer, I feel comfortable saying, “Unfortunately landlord-tenant law, and eviction in general, is meant for … landlords and tenants. You can’t evict a roommate. There are resources out there, such as the Tenants’ Union and…”

So the conversation again diverged but again settled into an existing track. I have given this spiel before, and hope I didn’t speak mechanically. I asked if they have a relationship with their landlord, perhaps the landlord would want to evict him for not paying rent.

Then, interrupting, “But I am kinda his landlord. I’m subletting a room to him.”

Ah. This is a wrinkle I hadn’t seen before. At last, we’ve arrived at our titular ref q:

Can I evict a subtenant?

I brought up the Residential Landlord-Tenant Act on the Legislature’s website, clicked “Complete Chapter” and used Ctrl+F to look for “subl” which is broad enough to capture sublease and sublessor or sublessee, The Act includes “subl” five times, but makes only oblique references to sublessees and sublessors, mostly about drug-related prohibitions. These inclusions tell me that subtenancy seemingly isn’t regulated or prohibited in a unique way—there would probably be a section devoted to it, or at least some mention.

But in so searching, I see the word subtenant, so I search “subt” next. I see some more drug-related talk, the word “subtract,” but then…

RCW 59.18.410 — Forcible entry or detainer or unlawful detainer actions—Notice of default—Writ of restitution—Judgment—Execution.

RCW 59.18.650 — Eviction of tenant, refusal to continue tenancy, end of periodic tenancy—Cause—Notice—Penalties.

These are run-of-the-mill unlawful detainer statutes. “Subtenant” isn’t used in a majorly qualifying way, but in-line with other forms of tenancy.

If someone was asking our question in an academic way, I might give them the annotated code and let them continue research, but since our ref q has the embedded subquestion, “Can we use this eviction packet?” statutes weren’t an end point.

Instead, I grabbed the WSBA Real Property Deskbook. Knowing that some primary law existed in the RCWs gave me confidence that a secondary source like a deskbook would discuss subtenancy, and I wasn’t let down. §17.11(1)(a) discusses the differences between assignments and subleases—It’s a distinction worth noting because evidently a sublease without a reversion (the expectation that full possession of the property will revert to the original leaseholder for at least one day before the end of the balance term) is actually an assignment (which is the transfer of an entire balance of a lease). That subsection goes on to say “Between themselves, the head tenant and the subtenant stand in a true landlord-tenant relationship. The head tenant may bring an unlawful detainer action against its subtenant” and quotes relevant case law. Bingo. But, the subsection also offers this practice tip, “Many intended subleases are actually assignments or partial assignments because the head tenant fails to reserve a reversion. A party who makes an assignment instead of a sublease will not be able to recover possession through unlawful detainer.” Huh.

The patron made it out that they had a verbal sublease and not for the remaining balance, they were only supposed to be there until they got back on their feet. Is this periodic tenancy? Landlord-tenant RCWs swam before my eyes. I did my usual qualifiers (I’m not an attorney, you should probably talk to one, I can’t interpret the law or tell you what your rights are, but) and explained what I read. I said I can’t say for sure, but it appears you have a subtenancy, not an assignment, and it appears subtenant eviction falls under the purview of the Landlord-Tenant Act, which is what our packet is designed to do, and that while our packet costs $60 and could potentially fail for some reason, an attorney would certainly cost more. He ended up buying the packet.

 

 

We get a lot of reference questions at the King County Law Library.

The refrain goes that because we aren’t practicing attorneys, we can’t offer legal advice—as librarians, we can only offer resources.

That said, some questions are very interesting & inspire me to do some research of my own, collected here in this column. Don’t construe this as legal advice!

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Welcome back to another exciting edition of Ross’ Ref Q’s. As a reminder, we’re here to interrogate heady reference questions, or otherwise note unique research strategies. In the first round, we  looked at avenues for suing the President — the short answer there is that you really can’t sue the President for damages for official acts, which is what most people want. That question was a little off the wall, but it’s asked somewhat frequently and it allowed for a unique look at how we tackle “getting started” questions. This month’s question, on the other hand, looks at a process found at the tail end of a court process:

How Do I Get Rid of My Criminal Record?

This is a straight forward question, but one that is complicated to answer. It is complicated because people can mean different things when saying “get rid” of their record, complicated because whichever path they have in mind isn’t always possible, and complicated because the “correct” path isn’t obvious via court-provided materials.

What does it mean to get rid of your criminal record?

I chose this general phrasing because for one, this is how the question often arrives, but it also underpins the typical nature of the question: folks have a criminal record and they want it sealed, perhaps, or vacated (often these terms are used interchangeable, but as we’ll see, they are not). Whichever way, they want it gone. Understandable.

The first step is to ask about their criminal record and ascertain what type of conviction they have. Then we’ll talk about what exactly they want done. This can hopefully be hashed out in a few sentences. Important distinctions are whether the conviction was for a felony or a misdemeanor, whether they were a minor at the time of conviction or an adult, and what they want their record to be: totally clear and empty, or to simply restrict access to case information? This last part touches on the important distinction between vacating convictions vs. sealing a record. 

Learning about their criminal record up front is crucial because depending on the conviction, it’s possible that it can’t be sealed, destroyed, vacated, or much else. But before we get too far, what do all these terms mean? The first resource to which I’ll point people is Washington Courts’ guide on “Sealing and Destroying Court Records, Vacating Convictions, and Deleting Criminal History Records.” This has general definitions as well as basic steps to these processes. The downside is that this guide is vague and not actionable for a pro se library user. But, it does speak authoritatively about what’s possible, so it serves as a worthwhile jumping off point.

Let’s talk sealing.

First I’ll offer the primary authority on “Destruction, Sealing, and Redaction of Court Records:” GR 15 / LGR 15.

What we can learn between these rules and the above court guide above is that sealing means preventing access to a court record, and that this cannot be accomplished for adult criminal cases that resulted in a conviction.

So, we are seemingly left sealing records that are either juvenile or civil.

If the user wants to seal juvenile court records, there exist DIY form packets and third party resources, in addition to the Washington Courts’ pattern forms. I’d usually pull these up on my monitor and encourage the user to use our computers or their smart phone to learn more.

Civil sealing comes up frequently at the law library, although this clearly diverges from this reference question prompt. In short, going this route involves first filing a motion and order to seal. There is a King County Clerk-provided Order, but strangely they have not provided a matching motion. Folks have to use the general family law motion and make it work.

But our question here is about criminal cases. Juvenile records have the potential to be sealed, but not adult records? What else can be done with adult convictions?

Let’s talk vacation. 

Vacating means to set aside a conviction—if you successfully vacate a conviction you can truthfully say you were not convicted. Chapter 9.96 of the RCW deals with misdemeanors, RCW 9.94A.640 is for felonies.

What’s possible re: vacation has to do with how the conviction was classified:

If it was a misdemeanor, I point people to the Washington Law Help article.

If it was a non-violent Class B or C Felony, I similarly point them to the Washington Law Help article. Washington Courts provides an overview on this as well, but Washington Law Help displays the information in a more pleasing manner, to my eyes. There’s also the Courts bank of forms, but again, I think WLH provides a more guided experience, plus I don’t like to recommend forms if I don’t have to.

If the conviction resulted from a crime committed as a juvenile, the Washington Law Help packet mentioned in the sealing section is helpful.

Lastly, and though it’s beyond our focus here, WLH also has a Motion to Vacate packet for the civil side as well.

Expunge? And a broader view of the issue.

Whereas sealing and vacation have to do with altering or clearing legal records, expungement is the deletion of criminal records on the law enforcement side. This is handled exclusively by the Washington State Patrol- they have an FAQ and a form. From my understanding though, the only thing they will delete is non-conviction related data… which isn’t usually with what our users are concerned.

But this ties into a larger issue with these yet disjointed actions (sealing, vacating, expunging): you can’t seal records that led to a conviction, and Washington State Patrol will only delete non-conviction data… but vacation hand waves away convictions. So I’m left with the impression that if you vacate first, you can then fully seal and expunge the court and law enforcement records, because they’re not pointing to a conviction, right?

I’m not so sure. In an actual reference interview, the Washington Courts guide and the Washington Law Help articles are more than enough to get folks started, and they provide resources for next steps as well. My goal isn’t necessarily to personally educate people, but instead to provide resources (my having said this lets you mark off the center square in your Law Library bingo card), and these resources serve well.

What do?

If someone is totally lost in the process or has some barrier that is otherwise stalling them (perhaps a Class A Felony), and honestly in many other situations, it’s best to talk to an actual expert. And with this situation, there are several local groups that can guide people through this process:

• KCBA Records Project: attorneys that help vacate eligible convictions
• Civil Survival: post conviction resources
• King County Public Defense: county department that assists with juvenile record vacation

Why go it alone? I think the combination of (1) The Washington Courts guide, (2) A relevant Washington Law Help article/form packet, and (3) these agencies, most everyone can clear their record, insomuch as that is possible.

 

 

We get a lot of reference questions at the King County Law Library.

The refrain goes that because we aren’t practicing attorneys, we can’t offer legal advice—as librarians, we can only offer resources.

That said, some questions are very interesting & inspire me to do some research of my own, collected here in this column. Don’t construe this as legal advice!

****************************************************************************************************************************************

Welcome to the first edition of my column, Ross’ Ref Q’s, wherein interesting KCLL reference questions are interrogated. I’ve only been with the law library for two years (a bulk of which was during our COVID shutdown), and as such I’m still somewhat green with legal reference—my previous library experience was in municipal and community college libraries. I love this job because I’m always learning, and here in this column, perhaps you will learn something too. Or perhaps you will be entertained by my unsophisticated research; I’ll take what I can get!

A goal of this column is to highlight questions that might be pertinent to KCLL users— though to get the ball rolling I’ve chosen a reference question that is slightly off the wall, but is asked often enough to warrant attention:

How do I sue the President?

What I love about this question, which is the most common phrasing, is that it blows right past “CAN I sue the President,” which is a somewhat more interesting and tricky question. As procedural questions go, though, the can does impact the how, as we’ll see.

This is also a question that has received a fair amount of interest recently. These publications are worth a read, however in treating this column like an actual reference interview, in which I tend to prefer treatises over online articles or posts, I’ll simply leave these hyperlinks embedded for your casual perusal.

My first thought was about personal jurisdiction. Presidents have been sued before, but were they being sued as The President, or as private citizens who happened to be the President.

Before digging into this question, I was aware of such concepts as sovereign immunity, so I sought out a treatise on the subject. I found Rotunda and Nowak’s Treatise on Constitutional Law-Substance and Procedure on Westlaw, which as a Thomson publication seemed authoritative enough. §7.3(b) deals with “Absolute Versus Qualified Immunity from Civil Damage Claims.”

“The President should have absolute immunity from damage actions for his official actions so that the threat of personal liability does not affect his official judgment”

§ 7.3(b) Presidential Civil Damages Immunity, 1 Treatise on Const. L. § 7.3(b)

Emphasis theirs. So I see this question splits into two parts: suing the President for official acts, and for unofficial acts.

Suing the President for official acts

To sue the President for his official acts, which if I had to hazard a guess would be the aim for most of our inquiring patrons, is a bit of a dead end. Rotunda & Nowak go on to say that the Court grants “absolute immunity from civil damages because of his official actions.” Evidently injunctions and subpoenas are still on the table, but damages are not.

I had pulled up an American Jurisprudence explainer on the Federal Tort Claims Act, thinking it would dovetail nicely into the “official” side of things, but FTCA §1346(b) specifically requires monetary damages. So that’s out.

With only injunctions and subpoenas on the table, the official side starts to become less interesting. I wanted a L&O-style cross-examination, with The President floundering under Jack McCoy’s dogged questioning!

Federal Rule of Civil Procedure 65 deals with injunctions, and the Federal Judiciary website has pro se injunction paperwork. The Federal Rules of Civil Procedure are bursting at the seams with rules about discovery & subpoena, so if the reference interview was going that way, I would pull out Wright & Miller Federal Practice and Procedure to offer Rules Practice resources.

Suing the President for unofficial acts

This side, which is by nature apolitical, is also less interesting. From here, because we’re suing the President for unofficial acts, it’ll follow standard channels for jurisdiction.

If you’re suing for damages pertaining to federal law and/or you’re asking for at least $75,000 in damages, it’ll land in Federal Court. The reference interview ends with that hyperlinked Pro Se guide for United States District Court, Western District of Washington. It includes links to forms and explains overall procedures.

Alternatively, if thresholds such as Washington’s “long arm” statute are met, the case could land in state court. For that, I recommend using KCLL’s Starting a Civil Lawsuit in Superior Court form packet! Sunglasses emoji!

Lastly

I recommend coming in to either KCLL location to access not only the resources mentioned here, but also the existing case law on suing the president, via Westlaw (did you know that KCLL has three Westlaw terminals in the Seattle location, and two in Kent?). There have been relatively few lawsuits against Presidents, so it is worthwhile to note the channels used previously.

Best of luck!