In re Recall of Pearsall-Stipek, 68216-0.
| Decision Date | 28 September 2000 |
| Docket Number | No. 68216-0.,68216-0. |
| Citation | 141 Wash.2d 756,10 P.3d 1034 |
| Court | Washington Supreme Court |
| Parties | In re the RECALL OF Cathy PEARSALL-STIPEK, Pierce County Auditor. |
Dale Washam, Puyallup, for Appellant.
John Ladenburg, Pierce County Prosecutor, Roger J. Miener, Deputy Pierce County Prosecutor, Tacoma, for other parties.
Joseph F. Quinn, Lakewood, for Respondent.
Dale Washam (Washam) has filed a petition to recall Cathy Pearsall-Stipek (Pearsall-Stipek) from her position as Pierce County Auditor, alleging two substantive charges. The first is that Pearsall-Stipek committed perjury or false swearing by misrepresenting her educational background while under oath on three separate occasions. The second is that she failed to fulfill the duties of her office while conducting the 1997 referendum election relating to a new professional football stadium. The Pierce County Superior Court dismissed the petition, finding all charges factually and legally insufficient, and Washam appealed directly to this court. We find one of Washam's false swearing allegations factually and legally sufficient and, therefore, we reverse on that claim. The trial court is affirmed on all other grounds.
On May 18, 1999, Washam1 filed a recall petition against Pierce County Auditor Cathy Pearsall-Stipek, and on June 4, he filed a supplemental petition. The petition contains two substantive charges. The first is that Pearsall-Stipek committed perjury or false swearing by misrepresenting her educational background on three separate occasions while under oath. The second relates to Pearsall-Stipek's conduct of the 1997 statewide referendum on a new professional football stadium.
The first charge contains three "counts," all relating to Pearsall-Stipek's misrepresentation of her educational background. Pearsall-Stipek did not graduate from college; however, she has misrepresented this fact, claiming she received a degree in 1954 from the University of Washington with a concentration in business administration and home economics.2 An official statement from the University of Washington Registrar indicates she was "registered for the period 09/50 to 6/52" and that she "did not declare a major and no degree was awarded." Clerk's Papers (CP) at 339.
Counts one and three of charge I relate to a discrimination suit brought in 1994 by Sally Riccobono, a former auditor's employee. The first count of charge I is based on the following interrogatory and answer, which was submitted on May 12, 1994:
CP at 59-60. Pearsall-Stipek did not sign this interrogatory answer. It was signed by her lawyer in the case who attested under oath that he "believe[d]" the answers to be true. CP at 312.
The third count of charge I is based on Pearsall-Stipek's testimony given at trial in the same case, the Riccobono lawsuit. On January 3, 1996, shortly after being sworn in as a witness, the following colloquy occurred between Pearsall-Stipek and defense counsel:
The second count of charge I is based on testimony given in a deposition in a federal civil rights lawsuit brought by Sherry Bockwinkel against Pierce County and Pearsall-Stipek. The lawsuit stemmed from the eviction of Bockwinkel and another person from a county ballot counting facility. On July 3, 1997, Pearsall-Stipek testified to the following:
Pearsall-Stipek's testimony in the Bockwinkel deposition is the only statement at issue in this case in which Pearsall-Stipek conceded that she did not earn a degree. In this statement she misrepresented only her years of college attendance. She attended the University of Washington from September, 1950 to June, 1952, not "'51, '52, '53, and '54." CP at 66.
Charge II of Washam's petition concerns Pearsall-Stipek's conduct of the statewide referendum on funding for a new professional football stadium, which was held in 1997. Washam alleges that despite a requirement that the team affiliate (the Seattle Seahawks) pay the full cost of the election, Pearsall-Stipek conducted the entire election in Pierce County by mail-in ballot without charging the team affiliate for return postage on the ballots. According to Washam, Pearsall-Stipek should have provided prepaid return envelopes to the voters and then billed this cost to the team affiliate. By failing to do so, Washam charges that Pearsall-Stipek failed to fulfill the duties of her office.
In response to Washam's petition, the Pierce County prosecutor prepared a ballot synopsis and filed a petition in superior court to determine the sufficiency of the charges and the synopsis. After hearing arguments, the superior court found the charges factually and legally insufficient for submission to the voters. The sufficiency of the synopsis was therefore not addressed. Washam appealed directly to this Court pursuant to RCW 29.82.023 and .160.
The right to recall elected officials is a right of the people guaranteed by article I, sections 33 and 34 (amendment 8) of the Washington Constitution. In re Recall of Pearsall-Stipek, 136 Wash.2d 255, 262, 961 P.2d 343 (1998). Section 33 contains the substantive right of recall and provides that "[e]very elective public officer of the state of Washington ... is subject to recall and discharge by the legal voters of the state...." Section 34 permits the Legislature to "pass the necessary laws" to carry out section 33. Pursuant to this authority, the Legislature adopted RCW 29.82, which was enacted "to provide the substantive criteria and procedural framework for the recall process." Pearsall-Stipek, 136 Wash.2d at 262-63, 961 P.2d 343.
In 1984, the "Legislature amended RCW 29.82 to provide for judicial review of the sufficiency of recall petitions in order to `free public officials from the harassment of recall elections grounded on frivolous charges or mere insinuations.'" Id. at 263, 961 P.2d 343 (quoting Chandler v. Otto, 103 Wash.2d 268, 274, 693 P.2d 71 (1984)). We perform a limited gate-keeping function in the recall process, using the same reviewing criteria as the superior court. In re Recall of Shipman, 125 Wash.2d 683, 684, 886 P.2d 1127 (1995). Our responsibility is simply to ascertain whether a recall petition meets the threshold standards necessary to proceed to the signature gathering phase of the recall process. See RCW 29.82.060.
The fundamental requirement is that the charges be factually and legally sufficient. In re Recall of Sandhaus, 134 Wash.2d 662, 668, 953 P.2d 82 (1998). To be factually sufficient, the petition must state in detail the acts complained of, and the petitioner must have knowledge of identifiable facts that support the charges. RCW 29.82.010; Pearsall-Stipek, 136 Wash.2d at 263, 961 P.2d 343. Legal sufficiency requires the charge "state with specificity `"substantial conduct clearly amounting to misfeasance, malfeasance or violation of the oath of office."'" Id. (quoting In re Recall of Wade, 115 Wash.2d 544, 549, 799 P.2d 1179 (1990) (quoting Teaford v. Howard, 104 Wash.2d 580, 584, 707 P.2d 1327 (1985))).
The critical language (misfeasance, malfeasance, or violation of the oath of office) is defined by statute:
RCW 29.82.010. These definitions, as well as the rest of the recall statute, are to be construed in favor of the voter, not the elected official. Pederson v. Moser, 99 Wash.2d 456, 462, 662 P.2d 866 (1983).
The above criteria have been further developed by case law. When an official is "charged with violating the law, the petitioner[] must have knowledge of facts indicating that the official intended to commit an unlawful act." Pearsall-Stipek, 136 Wash.2d at 263, 961 P.2d 343 (citing Sandhaus, 134 Wash.2d at 668, 953 P.2d 82). This means that for the factual sufficiency requirement to be satisfied, the petitioner is required to demonstrate "not only that the official intended to commit the act, but also that the official intended to act unlawfully." Id. at 263, 961 P.2d 343. Additionally, "[o]fficials may not be recalled for their discretionary acts absent manifest abuse of discretion." Id. at 264, 961 P.2d 343. "A legally cognizable justification...
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