In re Inslee
| Decision Date | 19 January 2023 |
| Docket Number | 101117-2 |
| Citation | 522 P.3d 972 |
| Parties | In the MATTER OF the RECALL OF Jay INSLEE, Governor of the State of Washington. |
| Court | Washington Supreme Court |
Richard M. Stephens, Stephens & Klinge LLP, 10900 Ne 4th St. Ste. 2300, Bellevue, WA, 98004-5882, for Appellant(s).
Jeffrey Todd Even, Alicia O. Young, Alexia Diorio, Wash. State Attorney General's Office, 1125 Washington St. Se, P. O. Box 40100, Olympia, WA, 98504-0100, for Respondent(s).
¶1 Brandon Ducharme appeals the trial court's finding that the four charges in his recall petition against Washington Governor Jay Inslee are factually and legally insufficient. After granting Ducharme's motion for accelerated review, we issued an order affirming the trial court's ruling. We now explain the reasons for our decision.
¶2 Ducharme makes four allegations against the governor that fall into two general groups. The first group consists of two charges alleging the misuse of vetoes to legislation that occurred in 2019. The second group consists of allegations that are connected to the governor's response to the COVID-19 pandemic in our state.
¶3 While the parties dispute the legal significance of the four actions taken by Governor Inslee, the underlying facts are not disputed here.
¶4 On April 28, 2019, "the Washington Legislature passed ESHB 1160,[1 ] titled ‘AN ACT Relating to transportation funding and appropriations.’ " 1 Clerk's Papers (CP) at 5. Section 220 of ESHB 1160 appropriated funds to the Washington State Department of Transportation (WashDOT) "to issue transportation-related grants." Id . The bill specified that certain amounts "must be used ‘solely’ for nine specific grant programs." Id . Seven of those grant programs contained a provision that " ‘[f]uel type may not be a factor in the grant selection process’ " (fuel type condition). Id . (quoting LAWS OF 2019, ch. 416, § 220); ESHB 1160, § 220(1)(a), (b), (2), (3)(a), (5)(a), (7), (9). On May 21, 2019, the governor vetoed the fuel type condition each time it appeared.
¶5 On November 10, 2021, our court addressed these partial vetoes in Washington State Legislature v. Inslee , 198 Wash.2d 561, 498 P.3d 496 (2021). In that case, a majority of this court held that "Governor Inslee exceeded his article III, section 12 veto power by striking the fuel type condition, which formed only one part of each appropriation item in which it appeared." Id . at 596, 498 P.3d 496. In charge one of his recall petition, Ducharme contends that because Governor Inslee's partial veto of ESHB 1160 was "illegal," it constitutes an "unconstitutional or unlawful act" that subjects him to recall. 1 CP at 7.
¶6 Similarly, on April 25, 2019, the legislature enacted SSHB 1579,2 " ‘relating to implement recommendations of the Southern Resident Killer Whale Task Force related to increasing chinook abundance.’ " Id . at 8. The passage of SSHB 1579 was a result of the governor's convening of a task force to "identify actions that could be taken to help sustain and recover" the "population of southern resident killer whales." LAWS OF 2019, ch. 290, § 1.
¶7 Subsection 8(1)(a) of the bill contained the following provision:
If section 13 of this act is enacted into law by June 30, 2019, the department may levy civil penalties of up to ten thousand dollars for every violation of this chapter or of the rules that implement this chapter. If section 13 of this act is not enacted into law by June 30, 2019, the department may levy civil penalties of up to one hundred dollars for every violation of this chapter or of the rules that implement this chapter. Each and every violation is a separate and distinct civil offense.
SSHB 1579. Section 13, in turn, provided for multiple government agencies to coordinate on "demonstration projects" to "be used as a model for river management throughout the state." Id. § 13(1).
¶8 On May 8, 2019, Governor Inslee exercised a partial veto of subsection 8(1)(a). In charge two, Ducharme maintains that the governor misused his veto because "[s]ubsection 8(1)(a) of [SS]HB 1579 is neither an entire section, nor an appropriation item." 1 CP at 8. Thus, Ducharme alleges that "[f]or the same reasons expressed in Washington State Legislature v. Inslee ," the governor "exceeded his Article II[I], section 12 veto power by vetoing only a part of [SS]HB 1579, namely [s]ubsection 8(1)(a)." Id .
¶9 On March 23, 2020, Governor Inslee issued Proclamation 20-25. Proclamation 20-25 stated in part that " ‘[a]ll people in Washington State shall immediately cease participating in all public and private gatherings and multi-person activities for social, spiritual and recreational purposes, regardless of the number of people involved, except as specifically identified herein.’ " Id . at 28 (boldface omitted) (quoting Proclamation by Governor Jay Inslee No. 20-25 (Wash. Mar. 23, 2020), https://www.governor.wa.gov/sites/default/files/proclamations/20-25% 20Coronovirus% 20Stay% 20Safe-Stay% 20Healthy% 20% 28tmp% 29% 20% 28002% 29.pdf [https://perma.cc/PJ48-WAEY]). In charge three, Ducharme alleges that because Proclamation 20-25 "prohibited all people in Washington State from participating in social, spiritual and recreational gatherings of any kind regardless of the number of participants," it "violated the Free Exercise Clause of the First Amendment to the United States Constitution." 1 CP at 10.
¶10 Then on August 9, 2021, Governor Inslee issued Proclamation 21-14, which required "[s]tate employees to be vaccinated for COVID-19" by October 18, 2021. Id . at 12; Proclamation by Governor Jay Inslee No. 21-14 (Wash. Aug. 9, 2021), https://www.governor.wa.gov/sites/default/files/proclamations/21-14% 20% 20COVID-19% 20Vax% 20Washington% 20% 28tmp% 29.pdf [https://perma.cc/AK47-28CT]. On October 18, 2021, pursuant to this proclamation, 435 WashDOT employees "who were exempt from the vaccine mandate on medical or religious grounds" were not accommodated and were fired. 1 CP at 12-13; see also Verbatim Rep. of Proc. (July 8, 2022) (VRP) at 8.3 In charge four, Ducharme contends that employees with religious exemptions were discriminated against because they "lost their jobs at a glaringly different rate" than those with medical exemptions. 1 CP at 13.
¶11 To support this contention, Ducharme points to an August 3, 2021 e-mail by the governor's general counsel, Kathryn Leathers. In that e-mail, Ms. Leathers writes that a "decision has been made" regarding "the direction of [ ] mandatory vaccine[s] for all employees in certain areas of employment." Id . at 78. Concerning the exemptions, Ms. Leathers wrote that medical exemptions would be granted "for sure," but religious exemptions would be granted only "if we have to" and should be "as narrow as possible." Id . Ducharme maintains that both the rate at which employees with religious exemptions were fired and Ms. Leathers’ e-mail demonstrate disparate treatment between employees with medical and religious exemptions. Consequently, Ducharme alleges that this "[d]iscrimination against employees based on their religious beliefs is contrary to the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution." Id . at 13.
¶12 On May 20, 2022, Ducharme "filed a statement of charges with the Office of the Secretary of State, requesting the recall of Jay Inslee as Governor of Washington." Id . at 2. The Office of the Attorney General prepared the following ballot synopsis:
¶13 After receiving the parties’ briefs and holding oral arguments, the trial court found that all "charges filed by proponent against Governor Jay Inslee to be legally and factually insufficient." Id. at 321.
¶14 On July 12, 2022, Ducharme filed a notice of appeal. We affirm the trial court's ruling.
¶15 Whether the four charges alleged against Washington Governor Jay Inslee are factually and legally sufficient to move forward with the recall petition.
¶16 Washington's constitution grants voters the right to recall any nonjudicial elected official who "has committed some act or acts of malfeasance or misfeasance while in office, or who has violated [their] oath of office." CONST . art. I, § 33. Recall proceedings are governed by RCW 29A.56.110 -.270. See CONST . art. I, § 34.
¶17 In the recall process, the courts act as gatekeepers and our role is " ‘to ensure that the recall process is not used to harass public officials by subjecting them to...
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