In re Kelley

• Decision Date: 03 March 2016
• Docket Number: No. 91843–1.,91843–1.
• Citation: 185 Wash.2d 158,369 P.3d 494
• Court: Washington Supreme Court
• Parties: In the Matter of the Recall of Troy KELLEY, Auditor for the State of Washington, Respondent.

185 Wash.2d 158

369 P.3d 494

In the Matter of the Recall of Troy KELLEY, Auditor for the State of Washington, Respondent.

No. 91843–1.

Supreme Court of Washington, En Banc.

March 3, 2016.

Callie Anne Castillo, WA State Attorney General Office, Anne Elizabeth Egeler, Jeffrey Todd Even, Office of the Attorney General, Stacia E. Hollar, Washington Attorney General's Office, Olympia, WA, for Respondent.

WIGGINS, J.

¶ 1PetitionerWill Knedlik filed a recall petition against Washington State AuditorTroy Kelley, charging him with misfeasance, malfeasance, and breach of his oath of office.The superior court judge dismissed the recall petition, finding the charges factually and/or legally insufficient for submission to the voters.We affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 Kelley is the elected auditor of Washington.Knedlik filed a recall petition against Kelley with the secretary of state.In the petition, Knedlik charged Kelley with misfeasance, malfeasance, and breach of his oath of office for (1) violating the residency requirements of his office, (2) failing to adequately investigate and report alleged illegal activity by Sound Transit, and (3) pressuring employees of the auditor's office to hire Jason JeRue without following proper employment procedures.The secretary of state served a copy of the petition on Kelley and on the attorney general's office, which prepared the ballot synopsis for the charges.After preparing the synopsis, the attorney general petitioned the superior court for a determination on the sufficiency of the charges and for approval of the ballot synopsis.

¶ 3 As the attorney general's petition was pending, Knedlik filed a motion in the superior court for a determination that "a constitutional and statutory vacancy in the Office of Washington State Auditor has legally existed from January 16, 2013...."In this motion, Knedlik argued that Kelley never legally took office because he never intended to fulfill the residency requirements of his office when he took his oath of office.

¶ 4The superior court heard argument on the motion and the recall petition.The superior court ruled orally and then issued a written order denying the motion and dismissing the recall petition charges.The superior court first ruled that Knedlik's motion for the court to rule that there is a vacancy in the auditor's office was not properly before the court as part of a recall action.The superior court then dismissed each of the recall petition charges as being factually and/or legally insufficient to proceed to the voters.

¶ 5 After the superior court dismissed the recall petition as insufficient, Knedlik moved to reconsider and the superior court denied the motion.Knedlik now appeals the superior court's order dismissing the recall petition to our court, arguing that the superior court erred in its factual and legal rulings.¹

ANALYSIS

¶ 6 The Washington Constitution provides the general framework for the recall of elective officers:

Every elective public officer in the state of Washington expect [except] judges of courts of record is subject to recall and discharge by the legal voters of the state ... from which he was elected whenever a petition demanding his recall, reciting that such officer has committed some act or acts of malfeasance or misfeasance while in office, or who has violated his oath of office, stating the matters complained of, ... is filed with the officer with whom a petition for nomination, or certificate for nomination, to such office must be filed under the laws of this state, and the same officer shall call a special election as provided by the general election laws of this state, and the result determined as therein provided.

CONST. art. I, § 33(first alteration in original)."Misfeasance" and "malfeasance" mean "any wrongful conduct that affects, interrupts, or interferes with the performance of official duty."RCW 29A.56.110(1)."Misfeasance" also means the "performance of a duty in an improper manner,"RCW 29A.56.110(1)(a), and "malfeasance" also means the "commission of an unlawful act,"RCW 29A.56.110(1)(b).A "violation of the oath of office" is the "neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law."RCW 29A.56.110(2).

¶ 7 Courts act as a gateway to confirm that the charges in a recall petition alleging malfeasance, misfeasance, or violation of oath of office are factually and legally sufficient before they are placed before the voters.RCW 29A.56.140;In re Recall of Kast,144 Wash.2d 807, 813–15, 31 P.3d 677(2001).Courts do not evaluate the truthfulness of the charges but ensure that public officials are not subject to frivolous or unsubstantiated charges.RCW 29A.56.140;In re Recall of Lindquist,172 Wash.2d 120, 131–32, 258 P.3d 9(2011).

¶ 8 The proponent of the recall petition bears the burden of establishing that the charges alleged in the recall petition are both legally and factually sufficient.SeeIn re Recall of Sun,177 Wash.2d 251, 255, 299 P.3d 651(2013).The superior court makes the initial sufficiency determination, subject to de novo review by this court.SeeRCW 29A.56.140;In re Recall of Telford,166 Wash.2d 148, 154, 206 P.3d 1248(2009).We determine sufficiency from the face of the recall petition.In re Recall of Telford,166 Wash.2d at 153, 206 P.3d 1248.

¶ 9 Factual sufficiency requires that the recall petition concisely states each charge with " ‘a detailed description including the approximate date, location, and nature of each act’ that, if accepted as true, would constitute a prima facie case of misfeasance, malfeasance, or the violation of the oath of office."In re Recall of Sun,177 Wash.2d at 255, 299 P.3d 651(quotingRCW 29A.56.110).Each charge in the recall petition must demonstrate that the petitioner"knows of identifiable facts that support the charge."In re Recall of Reed,156 Wash.2d 53, 58, 124 P.3d 279(2005).Further, charges are factually sufficient only if they enable the voters and the challenged official to make informed decisions.In re Recall of Wasson,149 Wash.2d 787, 791, 72 P.3d 170(2003).

¶ 10"Legal sufficiency requires that the petition state, with specificity, substantial conduct clearly amounting to misfeasance, malfeasance, or violation of the oath of office."In re Recall of Sun,177 Wash.2d at 255, 299 P.3d 651.To establish legal sufficiency for each charge, the recall petition must identify the "standard, law, or rule that would make the officer's conduct wrongful, improper, or unlawful...."In re Recall of Ackerson,143 Wash.2d 366, 377, 20 P.3d 930(2001)."If recall is sought for acts falling within the elected official's discretion, the official must have acted with a manifest abuse of discretion."In re Recall of Sun,177 Wash.2d at 255, 299 P.3d 651.

¶ 11 Under these rules, each of the charges in the recall petition is factually and/or legally insufficient to proceed to voters.

I.The residency charge is factually insufficient

¶ 12 Citing RCW 43.09.010 and article III, section 24 of the Washington Constitution, the recall petition charges Kelley with taking his "Oath of Office in knowing violation of the statutory [and constitutional] residency requirement for validly undertaking and holding said office....:"

¶ 13 Article III, section 24 of the Washington Constitution —titled "Records, Where Kept, Etc."—reads as follows:

The governor, secretary of state, treasurer, auditor, superintendent of public instruction, commissioner of public lands and attorney general shall severally keep the public records, books and papers relating to their respective offices, at the seat of government, at which place also the governor, secretary of state, treasurer and auditor shall reside.

Similarly, RCW 43.09.010 states that "[t]he state auditor shall reside and keep his or her office at the seat of government."The seat of Washington's government is in the city of Olympia.State ex rel. Lemon v. Langlie,45 Wash.2d 82, 95–96, 273 P.2d 464(1954).

¶ 14 The recall petition states the Kelley is in violation of these provisions because, instead of residing in Olympia, Kelley "appears to maintain his actual residence ... in Pierce County(at which Pierce County location the Federal Bureau of Investigation (FBI) searched his true residence during March, 2015 ...)."Without ruling on the legal sufficiency of this charge,²we hold that this charge is factually insufficient because the recall petition provides no facts showing that Kelley is in violation of any residency requirements for his office.

¶ 15 The recall petition relies solely on assumptions drawn from unspecified FBI searches that Kelley's home is in Tacoma.Even accepting the recall petition's allegations as true, they provide no basis for determining whether Kelley resides in Olympia.Because Kelley has a home in Tacoma does not necessarily mean that Kelley does not have a residence in Olympia.The petition does not specify whether Kelley also maintains a home in Olympia and which home, if not both, constitutes Kelley's "residence" in terms of RCW 43.09.010 and article III, section 24.Because the recall petition is devoid of any facts on whether Kelley "resides" in Olympia, this charge is factually insufficient.

II.The failure to adequately investigate and report alleged illegal activity by Sound Transit charge is both legally and factually insufficient.

¶ 16 The recall petition also charges Kelley with "both fail[ure] to investigate [Sound Transit's] ballot-title fraud, as required by state statutes, and also fail[ure] to report it to the attorney general, as also required by statute...."The recall petition asserts that these failures show that Kelley violated his oath of office by not faithfully discharging the duties of his office to the best of his abilities.However, this charge is both legally and factually insufficient to proceed to the voters because the statutes cited by the recall petition do not impose a duty on...