In re Inslee

• Decision Date: 28 April 2022
• Docket Number: 99948-1
• Citation: 508 P.3d 635
• Parties: In the MATTER OF: the RECALL OF Jay INSLEE, Governor of the State of Washington. Respondent.
• Court: Washington Supreme Court

508 P.3d 635

In the MATTER OF: the RECALL OF Jay INSLEE, Governor of the State of Washington. Respondent.

NO. 99948-1

Supreme Court of Washington.

Filed: April 28, 2022

Peter B. Gonick, Washington Attorney General's Office, P. O. Box 40100, Olympia, WA, 98504-0100, Jeffrey Todd Even, Washington Attorney General's Office, P. O. Box 40100, 1125 Washington St. Se, Olympia, WA, 98504-0100, for Respondent(s).

STEPHENS, J.

¶ 1C Davis seeks to recall Governor Jay Inslee.Davis filed five recall charges alleging that Governor Inslee violated the separation of powers, infringed on a number of constitutional rights, and improperly exercised emergency powers when issuing proclamations in response to the COVID-19 pandemic.In order to be placed on the ballot, a recall charge must be legally and factually sufficient to demonstrate an elected official's malfeasance, misfeasance, or violation of the oath of office.We hold that the charges put forth by Davis are not legally or factually sufficient.

FACTS AND PROCEDURAL HISTORY

¶ 2 In January 2020, the first case of COVID-19 was identified in Washington.The first COVID-19 related deaths followed closely thereafter.As the virus spread across the country and the globe, the United States Department of Health and Human Services and the World Health Organization declared the COVID-19 outbreak a public health emergency.Governor Inslee, pursuant to the discretionary authority provided by the legislature, proclaimed a state of emergency in Washington on February 29, 2020.RCW 43.06.010(12);LAWS OF 2019, ch. 472, § 1("[T]he governor has broad authority to proclaim a state of emergency ... and to exercise emergency powers during the emergency.").Governor Inslee has continually exercised his discretionary authority to issue further emergency proclamations related to the pandemic.

¶ 3 Davis alleges the governor exceeded his authority under law in responding to the COVID-19 pandemic, thereby committing misfeasance and violating his oath of office.Six specific gubernatorial proclamations are relevant here: 20-05,¹ 20-06,² 20-07,³ 20-11,⁴ 20-19,⁵ and 20-28.⁶

¶ 4 On February 29, 2020, Governor Inslee issued the first COVID-19 emergency proclamation, Proclamation 20-05, declaring a state of emergency and authorizing state agencies and departments to utilize state resources in an effort to respond to and recover from the outbreak.Soon after, the governor issued Proclamation 20-06, which extended Proclamation 20-05 and created several new restrictions related to the operation of nursing homes and assisted living facilities.These restrictions were intended to remain in effect until April 2020.Proclamation 20-06 identified potential criminal penalties for those in violation of this order.

¶ 5 Soon after, Governor Inslee issued Proclamation 20-07, which extended Proclamations 20-05 and 20-06 and imposed restrictions on social, spiritual, and recreational gatherings of more than 250 people in King, Pierce, and Snohomish counties until March 31, 2020.This proclamation also advised of potential criminal penalties for violations.Proclamation 20-11 soon expanded the restrictions on gatherings of 250 people or more to all counties in the state of Washington.

¶ 6 Governor Inslee later issued Proclamation 20-19, which temporarily barred residential landlords from (1) serving a notice of unlawful detainer for default payment of rent, (2) issuing a 20-day notice for unlawful detainer, or (3) initiating judicial action seeking a writ of restitution involving a dwelling unit.The proclamation also prohibited local law enforcement from serving or otherwise acting on eviction orders issued solely for default payment or rent.Landlords and law enforcement officers were still allowed to enforce evictions if the action was necessary to ensure the health and safety of the tenant or other individuals, or if the eviction was issued for waste, nuisance, or commission of a crime on the premises.

¶ 7 In the final proclamation identified by Davis, Proclamation 20-28, Governor Inslee temporarily suspended the portions of the Open Public Meetings Act of 1971 and the Public Records Act that require in-person meetings.Ch. 42.30 RCW; ch. 42.56 RCW.The proclamation also prohibited public agencies from conducting meetings in person and instead required public agencies to provide options for the public to attend the proceedings through, at minimum, telephonic access.

¶ 8 In May 2021, C Davis and four other proponents filed a recall petition against Governor Inslee, alleging that the various emergency proclamations violate the proponents’ constitutional rights and therefore constitute misfeasance and a violation of the governor's oath of office.The Washington State Attorney General's Office prepared a ballot synopsis of these charges.The ballot synopsis reads:

The charges that Jay Inslee, as Governor of Washington committed misfeasance, malfeasance, and/or violated his oath of office allege:

1.Governor Inslee violated constitutional religious freedom guarantees by issuing Proclamation 20-25, "Stay Home – Stay Healthy," which prohibited gatherings in Washington in response to the COVID-19 pandemic.

2.Governor Inslee violated the constitutional separation of powers by issuing Proclamation 20-19, "Evictions," which prohibited landlords from initiating judicial actions for writs of restitution involving dwellings for failure of tenants to timely pay rent.

3.Governor Inslee violated constitutional rights to petition the government for redress of grievances and to peaceably assemble by issuing Proclamation 20-28, which prohibited public agencies from conducting in-person meetings and suspended certain provisions of the Open Public Meetings Act.

4.Governor Inslee violated the constitutional right to peaceably assemble by limiting the size of in-person gatherings through Proclamations20-05, 20-06, 20-07, and 20-11, and subsequent proclamations.

5.Governor Inslee issued emergency proclamations related to the COVID-19 pandemic without finding that a public disorder, disaster, energy emergency, or riot existed in Washington State due to COVID-19.

Clerk's Papers(CP)at 68.

¶ 9 In support of these charges, one of the proponents alleges he was denied access to his local city council meeting for refusing to wear a facial covering and was unable to attend those meetings online due to technological difficulties.Another proponent states she was repeatedly denied permits to hold rallies on the Capitol Campus due to the governor's emergency proclamations.

¶ 10 The Thurston County Superior Court held a hearing on the sufficiency of the recall charges in June 2021 and determined that all of the recall charges were legally and factually insufficient.Davis timely filed his notice of appeal.⁷In his briefing before this court, Davis expressly abandoned his appeal of the first charge.Accordingly, we address only the second, third, fourth, and fifth charges set out in the recall petition.

ANALYSIS

¶ 11 It is well recognized that the COVID-19 pandemic is both a public disorder and a disaster affecting life and health.SeeSlidewaters LLC v. Dep't of Labor & Indus. , 4 F.4th 747, 755(9th Cir.2021), cert. denied , ––– U.S. ––––, 142 S. Ct. 779, 211 L.Ed.2d 487(2022).The charges in the recall petition center on aspects of Governor Inslee's response to the pandemic.In order to be legally and factually sufficient, a charge must show a prima facie case of misfeasance, malfeasance, or violation of the oath of office.Because Davis fails to make this showing, we affirm the trial court's decision and hold that the recall charges are legally and factually insufficient.

A.Legal Standard

¶ 12This court reviews a trial court's determination of the sufficiency of recall charges de novo.In re Recall of West , 155 Wash.2d 659, 663, 121 P.3d 1190(2005).Under Washington law, elected officials may be recalled for malfeasance, misfeasance, or violation of the oath of office.WASH. CONST. art. I, §§ 33 - 34;RCW 29A.56.110.Misfeasance and malfeasance are "any wrongful conduct that affects, interrupts, or interferes with the performance of official duty."RCW 29A.56.110(1).More specifically, misfeasance is "the performance of a duty in an improper manner" and malfeasance is "the commission of an unlawful act."RCW 29A.56.110(1)(a), (b).Violation of the oath of office is "the neglect or knowing failure ... to perform faithfully a duty imposed by law."RCW 29A.56.110(2).

¶ 13 Courts do not evaluate whether the allegations against an elected official are true or false but, rather, stand as gatekeepers to ensure that elected officials are not subject to recall for frivolous reasons.In re Recall of Cy Sun , 177 Wash.2d 251, 255, 299 P.3d 651(2013).To that end, courts must determine whether the recall petitioner has knowledge of the acts complained of and whether the allegations are legally and factually sufficient.Id.The burden of establishing that the charges alleged in the recall petition are both legally and factually sufficient falls on the proponent of the recall.In re Recall of Kelley , 185 Wash.2d 158, 163, 369 P.3d 494(2016).

¶ 14 An allegation is factually sufficient if the petition gives " 'a detailed description’ " of how and when the elected official engaged in unlawful conduct, " ‘including the approximate date, location, and nature of each act’ " that constitutes a prima facie case of misfeasance, malfeasance, or the violation of the oath of office.Id. at 163-64, 369 P.3d 494(internal quotation marks omitted)(quotingIn re Recall of Sun , 177 Wash.2d at 255, 299 P.3d 651 ).An allegation is legally sufficient if the petitioner identifies some substantial conduct of the elected official that would clearly amount to misfeasance, malfeasance, or violation of the oath of office.RCW 29A.56.110.In other words, the petitioner must "identify the ‘standard, law, or rule that would make the officer's conduct wrongful, improper, or...