In re Fortney
| Decision Date | 14 January 2021 |
| Docket Number | No. 98683-5,98683-5 |
| Citation | 196 Wash.2d 766,478 P.3d 1061 |
| Court | Washington Supreme Court |
| Parties | In the MATTER OF the RECALL OF Adam FORTNEY, Snohomish County Sheriff, Appellant |
Mark Christopher Lamb, The North Creek Law Firm, 12900 Ne 180th St. Ste. 235, Bothell, WA, 98011-5773, George M. Ahrend, Ahrend Law Firm PLLC, 457 1st Ave. Nw, P.o. Box 816, Ephrata, WA, 98823-0816, for Appellant(s).
Alyssa Anne Melter, Hillary H. McClure, Vick, Julius, McClure, PS, 5506 6th Ave. S. Ste. 201a, Seattle, WA, 98108-2553, for Amicus Curiae on behalf of Snohomish County Deputy Sheriff'S Assoc.
Rebecca June Guadamud, Attorney at Law, 3000 Rockefeller Ave., Everett, WA, 98201-4046, for Other Parties.
¶ 1 This case involves a recall petition against Snohomish County Sheriff Adam Fortney. Sheriff Fortney challenges the trial court's finding that four of five recall charges filed against him are factually and legally sufficient. On September 10, 2020, we issued an order affirming the trial court in part and reversing in part. We now explain that order.
¶ 2 Snohomish County voters elected Adam Fortney as sheriff in November 2019, and he assumed office in January 2020.
¶ 3 Fortney's first four months in office were beset by multiple controversies. In January 2020, Fortney rehired three deputies who had been terminated by the former sheriff for serious misconduct. In March 2020, Fortney wrote a Facebook post to justify a deputy's use of physical force on a woman after a jaywalking incident. Then in April 2020, Fortney publicly accused Governor Jay Inslee of mishandling the COVID-19 crisis and stated that he would refuse to enforce the governor's "Stay Home – Stay Healthy" proclamation.
¶ 4 In May 2020, four voters responded to Fortney's actions by filing multiple recall charges against him, initiating Washington's recall process pursuant to RCW 29A.56.110 -.270. The petitioners alleged five claims: (1) Fortney refused to enforce the governor's Stay Home – Stay Healthy proclamation, (2) Fortney incited members of the public to violate the Stay Home – Stay Healthy proclamation, (3) Fortney mismanaged the Snohomish County Jail by failing to institute adequate policies and safety measures, (4) Fortney rehired three deputies previously discharged for misconduct, and (5) Fortney failed to investigate a deputy sheriff who tackled and injured a black female for jaywalking. 3 Clerk's Papers (CP) at 452-470.
¶ 5 After a hearing at the superior court, the trial court found four of the recall charges were factually and legally sufficient. The court rejected the charge related to the Snohomish County Jail, concluding that the petitioners had not met their burden to allege specific facts and legal standards to show Fortney violated his duties. 1 Verbatim Report of Proceedings (June 2, 2020) (VRP) at 91. The following four recall charges were allowed to proceed:
¶ 6 On appeal, Fortney does not challenge the sufficiency of the first charge and agrees to stand for recall on his refusal to enforce the Stay Home – Stay Healthy proclamation. The petitioners do not cross appeal the trial court's rejection of Fortney's handling of the Snohomish County Jail. Thus, we focus our review on recall charges two, three, and four.
¶ 7 Washington voters have a constitutional right to recall nonjudicial elected officials who commit acts of malfeasance or misfeasance or violate an oath of office. WASH. CONST. art. I, § 33 ; RCW 29A.56.110. For the purposes of recall:
RCW 29A.56.110.
¶ 8 The court's role is solely that of gatekeeper in reviewing recall petitions. In re Recall of Riddle , 189 Wash.2d 565, 570, 403 P.3d 849 (2017). As such, we do not review the truth of recall charges. In re Recall of Wasson, 149 Wash.2d 787, 792, 72 P.3d 170 (2003). It is the voters who must act as fact finders. In re Recall of West , 155 Wash.2d 659, 662, 121 P.3d 1190 (2005). Our judicial gatekeeping function ensures public officials are not subject to "frivolous or unsubstantiated charges." In re Recall of Kelley , 185 Wash.2d 158, 163, 369 P.3d 494 (2016). We therefore review petitions simply to determine if they are "legally and factually sufficient." In re Recall of Boldt , 187 Wash.2d 542, 548, 386 P.3d 1104 (2017).
¶ 9 A recall petition is factually sufficient if the facts establish a case of misfeasance, malfeasance, or violation of the oath of office. Wasson , 149 Wash.2d at 791, 72 P.3d 170 (citing Cole v. Webster , 103 Wash.2d 280, 285, 692 P.2d 799 (1984) ). A petition is legally sufficient if it " ‘state[s] with specificity substantial conduct clearly amounting to misfeasance, malfeasance or violation of the oath of office.’ " West , 155 Wash.2d at 677, 121 P.3d 1190 (quoting Chandler v. Otto , 103 Wash.2d 268, 274, 693 P.2d 71 (1984) ). A petitioner bears the burden of identifying the " ‘standard, law, or rule that would make the officer's conduct wrongful, improper, or unlawful.’ " In re Recall of Inslee , 194 Wash.2d 563, 568, 451 P.3d 305 (2019) (internal quotation marks omitted) (quoting In re Recall of Pepper , 189 Wash.2d 546, 554-55, 403 P.3d 839 (2017) ).
¶ 10 We review the sufficiency of a recall petition de novo. Boldt , 187 Wash.2d at 549, 386 P.3d 1104.
¶ 11 Charge Two alleges that Fortney incited members of the public to violate the governor's Stay Home – Stay Healthy proclamation. We affirm the trial court's ruling that this charge is legally and factually sufficient.
¶ 12 On February 29, 2020, Governor Jay Inslee issued a statewide, emergency Stay Home – Stay Healthy proclamation to prevent the spread of COVID-19. The statewide proclamation temporarily closed nonessential businesses and prohibited nonessential travel and activities.
¶ 13 On March 23, 2020, Fortney responded to the Stay Home – Stay Healthy proclamation, utilizing the official Snohomish County Sheriff's Office Facebook page. He stated in part, "As your elected sheriff, I have no intention of carrying out enforcement for a stay-at-home directive." 2 CP at 390-91. On April 21, 2020, Fortney posted a lengthier statement. In that post, Fortney acknowledged the seriousness of COVID-19 but criticized Governor Inslee's response as unconstitutional:
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In re Inslee
..."clarified that the intent to act illegally requirement only applies to acting criminally." Id . at 9 (citing In re Recall of Fortney , 196 Wash.2d 766, 776, 478 P.3d 1061 (2021) ). Ducharme points to a single statement in our Fortney opinion that "[t]he petitioners accuse Fortney of violat......
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In re Sawant
...SMC 4.16.070(B)(2); Resp'ts’ Answering Br. at 22. The petitioners, citing In re Recall of White , 196 Wash.2d 492, 474 P.3d 1032 (2020), and Fortney , argue these cases support the assertion that not only do public officials have a duty to follow those laws but public officials also violate......
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In re Fortney
...for tackling a black woman related to a jaywalking incident without ensuring a proper investigation. In re Recall of Fortney , 196 Wash.2d 766, 770, 478 P.3d 1061 (2021). On appeal, we held the second and third charges were factually sufficient but reversed the trial court on the fourth cha......
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In re Inslee
...Id. at 9 (citing In re Recall of Fortney, 196 Wn.2d 766, 776, 478 P.3d 1061 (2021)). Ducharme points to a single statement in our Fortney opinion that "[t]he petitioners Fortney of violating his statutory duties rather than of committing any legal crime, and thus, they were not required to ......