In re Inslee

• Decision Date: 31 October 2019
• Docket Number: No. 96765-2,96765-2
• Citation: 451 P.3d 305
• Court: Washington Supreme Court
• Parties: In the MATTER OF the RECALL OF Jay INSLEE, Governor of the State of Washington.

451 P.3d 305

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

No. 96765-2

Supreme Court of Washington.

Filed OCTOBER 31, 2019

Jeffrey Todd Even, Office of the Attorney General, Po Box 40100, 1125 Washington St. Se, Olympia, WA, 98504-0100, Dept. of Lic. & Admin. Law A.G. Office, Attorney at Law, 1125 Washington Street Se, Po Box 40110, Olympia, WA, 98504-0110, for Respondent.

MADSEN, J.

¶ 1 Arthur West appeals from a Thurston County Superior Court judgment finding the charges in his petition to recall Governor Jay Inslee to be legally and factually insufficient to submit to voters. In his recall petition, West alleged the governor was absent from Washington too frequently and failed to properly notify the lieutenant governor of these absences, failed to declare homelessness a statewide emergency, and improperly campaigned for a ballot initiative. The trial court held that the charges were factually and legally insufficient. We affirm.

FACTS

¶ 2 On December 13, 2018, West filed a petition to recall Governor Inslee. The Washington State Attorney General’s Office properly prepared a ballot synopsis and petitioned for the Thurston County Superior Court to determine the sufficiency of the charges.

¶ 3 The ballot synopsis read:

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

1. That Governor Inslee abdicated his duties as Governor of the State of Washington and created a vacancy in that office by taking 32 trips outside of Washington as of August 2018 and by frequently being absent from the State after that date;

2. That Governor Inslee maintains a residence on Bainbridge Island and maintains books, papers, and public records of the Office of Governor in Washington D.C. in violation of article III, section 24 of the Washington Constitution ;

3. That Governor Inslee failed to ensure environmental, nuisance, and criminal laws have been faithfully executed throughout the State, including by the City of Olympia, and allowed the City of Olympia to usurp the emergency powers of the Governor;

4. That Governor Inslee failed to use his executive powers to address homelessness and failed to ensure the integrity and continuity of government faced with a public health and safety emergency;

5. That Governor Inslee improperly used state resources and the authority of his office to campaign for an environmental initiative.

Should Jay Inslee be recalled from office based on these charges?

Clerk’s Papers (CP) at 38. The trial court approved the ballot synopsis and found each of the charges to be insufficient to support a recall. The court also declined to correct the ballot synopsis as requested by West. West then moved for reconsideration and filed a notice of appeal.

ANALYSIS

¶ 4 Washington voters may recall any elected, nonjudicial public officer who "has committed some act or acts of malfeasance or misfeasance while in office, or who has violated his [or her] oath of office." WASH. CONST . art. I, § 33. The recall process is governed by RCW 29A.56.110 through .140.

¶ 5 An elected official can be recalled only for cause, meaning the petition must be factually and legally sufficient. Chandler v. Otto, 103 Wash.2d 268, 274, 693 P.2d 71 (1984). Whether the charges are factually and legally sufficient is determined by the superior court where the officer subject to recall resides. RCW 29A.56.130 -.140. The court must determine sufficiency from the face of the petition. In re Recall of Zufelt , 112 Wash.2d 906, 914, 774 P.2d 1223 (1989).

¶ 6 A recall " ‘charge, taken as a whole ..., must be specific enough to give the elected official meaningful notice of the particular conduct challenged and why it is grounds for recall.’ " In re Recall of Pepper, 189 Wash.2d 546, 553, 403 P.3d 839 (2017) (alteration in original) (quoting In re Recall of Boldt , 187 Wash.2d 542, 549, 386 P.3d 1104 (2017) ). In recall cases, courts do not consider the truth of the charges, only the sufficiency. RCW 29A.56.140 ; In re Recall of Lindquist, 172 Wash.2d 120, 131-32, 258 P.3d 9 (2011).

¶ 7 This court reviews the sufficiency of a recall petition de novo. Teaford v. Howard, 104 Wash.2d 580, 590, 707 P.2d 1327 (1985). A charge is factually sufficient if the facts "establish a prima facie case of misfeasance, malfeasance, or violation of the oath of office" and are "stated in concise language and provide a detailed description" in order to "enable the electorate and a challenged official to make informed decisions." In re Recall of Wasson, 149 Wash.2d 787, 791, 72 P.3d 170 (2003) (citing Cole v. Webster, 103 Wash.2d 280, 285, 692 P.2d 799 (1984) ; Chandler, 103 Wash.2d at 274, 693 P.2d 71 ). The petitioner must have some knowledge of the facts underlying the charges. In re Recall of Ackerson, 143 Wash.2d 366, 372, 20 P.3d 930 (2001). Where the charge alleges the official violated the law, the facts must show the official intended to do so. In re Recall of Wade, 115 Wash.2d 544, 549, 799 P.2d 1179 (1990).

¶ 8 A charge is legally sufficient if it defines "substantial conduct clearly amounting to misfeasance, malfeasance or a violation of the oath of office" and there is no legal justification for the challenged conduct. Wasson, 149 Wash.2d at 791-92, 72 P.3d 170.

¶ 9 RCW 29A.56.110 defines malfeasance and misfeasance:

(1) "Misfeasance" or "malfeasance" in office means any wrongful conduct that affects, interrupts, or interferes with the performance of official duty;

(a) Additionally, "misfeasance" in office means the performance of a duty in an improper manner; and

(b) Additionally, "malfeasance" in office means the commission of an unlawful act.

¶ 10 Lawful, discretionary acts are not a basis for recall. Chandler, 103 Wash.2d at 274, 693 P.2d 71. The burden is on the petitioner to identify the " ‘standard, law, or rule that would make the officer’s conduct wrongful, improper, or unlawful.’ " Pepper, 189 Wash.2d at 554-55, 403 P.3d 839 (internal quotation marks omitted) (quoting In re Recall of Bolt , 177 Wash.2d 168, 181, 298 P.3d 710 (2013) ).

¶ 11 A reviewing court must not consider the truthfulness of the charges but, instead, must accept the allegations as true and determine whether the charges on their face support the conclusion that the officer abused his or her position. Cole , 103 Wash.2d at 287, 692 P.2d 799 ; Teaford , 104 Wash.2d at 586, 707 P.2d 1327.

Charge 1: frequent travel outside of Washington

¶ 12 This charge alleges that Governor Inslee’s frequent out-of-state travels created a vacancy in his office. At the hearing on the recall petition, West argued that Governor Inslee also violated RCW 43.06.040 because he asked the secretary of state—not the lieutenant governor—to act as head executive during his absences. Verbatim Report of Proceedings (VRP (oral argument)) at 12, 14. The trial court found this charge insufficient and included West’s additional allegation regarding the delegation of duties to the secretary of state. Verbatim Report of Proceedings (VRP (ruling of the court)) at 5-6. We hold that charge 1 is legally insufficient.

¶ 13 RCW 43.06.040 provides that

[i]f the governor absents himself or herself from the state, he or she shall, prior to his or her departure, notify the lieutenant governor of his or her proposed absence, and during such absence the lieutenant governor shall perform all the duties of the governor.

(Emphasis added.) West argued that .040 requires the lieutenant governor alone to act as Washington’s executive officer when the governor is absent. See VRP (oral argument) at 23-24; Appellant’s Opening Br. at 28. But the statute does not support this reading; indeed, .040 is silent on the very situation West objects to: what official may act as governor when both the governor and lieutenant governor are absent.

¶ 14 Moreover, .040 requires the governor to notify the lieutenant governor of any planned absences, and the record does not indicate that Governor Inslee failed to do so. West submitted numerous letters from Governor Inslee to Secretary of State Kim Wyman recognizing the notification requirement and asking the secretary to act as governor because the lieutenant governor was unavailable. That these letters note the lieutenant governor’s unavailability indicates Governor Inslee provided notice as required by .040. West fails to show the governor’s conduct constitutes malfeasance, misfeasance, or violation of his oath of office. RCW 29A.56.110(1).

¶ 15 Even assuming .040 allows only the lieutenant governor to act as governor, there is no indication that Governor Inslee intended to commit an unlawful act when asking the secretary of state to fill that role. Boldt, 187 Wash.2d at 549, 386 P.3d 1104 (citing In re Recall of Telford, 166 Wash.2d 148, 158, 206 P.3d 1248 (2009) ). The governor’s letters show that he was aware of .040 and, because the lieutenant governor was unavailable, that he asked Secretary Wyman to step in. These letters show the governor’s intent to abide by .040, not to violate it.

¶ 16 The allegation on vacancy is similarly insufficient. West asserted that Governor Inslee’s frequent travel created a vacancy in the office, but West provides no legal definition of "vacancy" or argument on what constitutes such a vacancy, e.g., how many trips outside the state amount to a vacant office. Pepper , 189 Wash.2d at 554-55, 403 P.3d 839. The State explains that RCW 42.12.010 determines when an elective office becomes vacant, and travel is not included.¹ Resp. Br. of Jay Inslee at 12-13. This charge is insufficient.

Charge 2: improper residence and maintenance of official papers

¶ 17 In charge 2, the recall petition alleges that Governor Inslee improperly maintained a residence outside the seat of government in Olympia, Washington, and maintained his books and papers not in our state capital but in Washington, D.C., violating article III, section 24 of our constitution.² We hold that charge 2 is factually...