In re Recall of Reed

• Decision Date: 01 December 2005
• Docket Number: No. 76758-1.,76758-1.
• Citation: 124 P.3d 279,156 Wn.2d 53
• Parties: In the Matter of the Recall of Sam REED, Secretary of State for the State of Washington, Respondent.
• Court: Washington Supreme Court

Page 279

124 P.3d 279

In the Matter of the Recall of Sam REED, Secretary of State for the State of Washington, Respondent.

No. 76758-1.

Supreme Court of Washington.

Considered December 1, 2005.

Decided December 1, 2005.

Linda Jordan, Martin D. Ringhofer, Seattle, for Petitioner/Appellant.

Jeffrey Todd Even, Office of The Attorney General, Brian Edwin Buchholz, Attorney at Law, Olympia, for Appellee/Respondent.

En Banc.

PER CURIAM.

AppellantsMartin D. Ringhofer and Linda Jordan seek direct review of the Thurston County Superior Court's ruling that their recall petition was factually and legal insufficient.For reasons that follow, we affirm the trial court.

I.FACTS AND PROCEDURAL HISTORY

Appellant Ringhofer submitted a statement of charges on January 19, 2005 with the Office of the Secretary of State seeking the recall of Secretary of State Sam Reed.On January 24, 2005, appellantLinda Jordan filed supplemental charging materials with the secretary of state.Appellants set forth nine charges that allege a basis for recall of Secretary Reed. Clerk's Papers(CP)at 13-15.The recall charges all relate to the 2004 election for governor of the state of Washington.¹

The secretary's office promptly transmitted both documents to the attorney general to prepare a ballot synopsis pursuant to RCW 29A.56.120.The attorney general reviewed the charges in the statement and supporting documents, promptly prepared a ballot synopsis, and filed a petition with Thurston County Superior Court to determine the sufficiency of the charges pursuant to RCW 29A.56.130.The statement of charges and supplemental materials were appended to the petition.

The matter came before the trial court on February 14, 2005, for the purpose of determining the sufficiency of the recall and the adequacy of the ballot synopsis.The trial court heard arguments from both parties but declined to accept additional filings from the appellants, considering such filings untimely.Verbatim Report of Proceedings (VRP)at 25-27.

In an order issued the day of the hearing, the trial court found the statement of charges submitted by the appellants"factually and/or legally insufficient" to support the proposed recall of Secretary Reed.CPat 325.Accordingly, the trial court held that the determination of the adequacy of the ballot synopsis was moot and issued an order holding that the proposal to recall Secretary Reed could not proceed.Id.

In its memorandum opinion accompanying the order, the trial court concluded that charges one through six merely alleged "voting irregularities in King County."CPat 320.Assuming the truth of the facts alleged, the trial court concluded there were no specific allegations as to facts showing wrongdoing by Secretary Reed and that the charges were thereby factually insufficient.Id.The trial court ruled that charges seven and eight were both legally and factually insufficient, CPat 320-21, and that charge nine was legally insufficient.CPat 321-22.

Appellants filed a notice of direct review with this court.

II.ANALYSIS

Because the court has very recently decided a recall case, extended analysis of our laws concerning the right of recall and the recall process is not repeated here.SeeIn re Recall of West, ___ Wash.2d ___, 121 P.3d 1190(2005).The Washington Constitution provides that the citizens of this state may seek the removal of a public official from his/her duly elected office before his/her term expires through a recall election.CONST. art. I, §§ 33-34;In re Recall of Kast,144 Wash.2d 807, 812, 31 P.3d 677(2001);In re Recall of Pearsall-Stipek,141 Wash.2d 756, 764, 10 P.3d 1034(2000).The process for initiating a recall election is detailed in chapter 29A.56 RCW, andRCW 29A.56.110 further defines the constitutional grounds on which a public official may be recalled from public office.

A public official may be recalled for acts of malfeasance, misfeasance, or violations of his/her oath of office.Misfeasance and malfeasance may both be defined as "wrongful conduct that affects, interrupts, or interferes with the performance of official duty."RCW 29A.56.110(1).Misfeasance may also be defined as "performance of a duty in an improper manner."RCW 29A.56.110(1)(a).In contrast, malfeasance may also be defined as "the commission of an unlawful act."RCW 29A.56.110(1)(b).Finally, a violation of the oath of office will include "the neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law."RCW 29A.56.110(2).

We have recognized that the legislature has provided this recall procedure with the effect that public officials are protected from petitions based on frivolous charges.Kast,144 Wash.2d at 812-13, 31 P.3d 677;Chandler v. Otto,103 Wash.2d 268, 274, 693 P.2d 71(1984).The role of the courts in the recall process is very limited.West,___ Wash.2d at ___, 121 P.3d at 1192.It is for the voters and not the courts to decide whether the alleged facts are true or not.Id.Accordingly, our role is limited to ensuring that only legally and factually sufficient charges go to the voters.

A.Sufficiency of the Recall Charges

1.Charges One through Six

Assuming the truth of facts alleged in charges one through six, the charges themselves allege no conduct directly on the part of Secretary Reed.Instead, those charges relate entirely to actions by King County elections officials.The appellants merely argue Secretary Reed should have been aware of such conduct after the fact.

Charges in a recall action must be both factually and legally sufficient.In re Recall of Lee,122 Wash.2d 613, 616, 859 P.2d 1244(1993).As to factual sufficiency, the court must inquire into whether the charges state, in detail, the acts complained of, as well as whether they demonstrate that the petitioner knows of identifiable facts that support the charge.Pearsall-Stipek,141 Wash.2d at 765, 10 P.3d 1034.Factual sufficiency is determined from the face of the statement of charges, In re Recall of Carey,132 Wash.2d 525, 527, 939 P.2d 1221(1997), but courts may consider supporting documentation to determine whether the charges are factually sufficient.West,___ Wash.2d at ___, 121 P.3d at 1193.

The recall statutes do not require the petitioner to have firsthand knowledge, but they do require the petitioner have some form of knowledge more than simply a belief that the charges are true.In re Recall of Ackerson,143 Wash.2d 366, 373, 20 P.3d 930(2001);Lee,122 Wash.2d at 617, 859 P.2d 1244.Appellants' materials explaining the authorities upon which the charges rely—consisting of newspaper accounts and press releases—are not per se insufficient to show some form of knowledge of the facts underlying the charges.West,___ Wash.2d at ___, 121 P.3d at 1194.

However, this court has noted that there is "no authority for the proposition that a public official may be recalled for the act of a subordinate done without the official's knowledge or direction."In re Recall of Morrisette,110 Wash.2d 933, 936, 756 P.2d 1318(1988).This conclusion reflects an underlying premise that an official cannot be held responsible for conduct beyond his knowledge or ability to direct.

In light of the foregoing case, appellants' contention here is unsupportable.In King County, the elected county executive appoints the county election officer.King County Charter 320.10(election of county executive), 920.20.40 (establishment of election office).There is no authority for the proposition that a public official may be recalled for the past conduct of a wholly separate governmental agency.A conclusion to the contrary would run counter to the reasoning of this court in Morrisette,110 Wash.2d 933, 756 P.2d 1318.

2.Charge Seven

Charge seven alleges that Secretary Reed accepted final election returns from several counties even though they lacked material required by regulations.As noted above, charges in a recall action must be both factually and legally sufficient.Lee,122 Wash.2d at 616, 859 P.2d 1244.Legal sufficiency requires the petitioner to allege a prima facie case of misfeasance, malfeasance, or violation of the oath of office, without justification.In re Recall of Feetham,149 Wash.2d 860, 865, 72 P.3d 741(2003).²Further, under the legally sufficiency requirement an elected official cannot be recalled for appropriately exercising the discretion granted him or her by law.Kast,144 Wash.2d at 815, 31 P.3d 677;Chandler,103 Wash.2d at 274, 693 P.2d 71.

Here, although appellants alleged that Secretary Reed wrongly accepted final election returns from counties without required materials before the trial court, they do not repeat those allegations on appeal and appear to have abandoned them.SeeAppellants' Br.at 7.Nonetheless, appellants' petition contends that Secretary Reed failed to receive "written narratives" from any Washington county reconciling election errors prior to his certification of the governor's election.Id.Appellants quote a public records request citing WAC 434-262-080 through -100 but otherwise offer no further specific factual arguments or any legal arguments in furtherance of this allegation.Id.The cited administrative rules involve errors identified by a canvassing board in reviewing election results submitted to it by the auditor for certification within the context of a particular count.Those rules do not involve discrepancies between an earlier count and a recount.Because appellants do not provide any reason why "written narratives" were required for inclusion in materials certified to the secretary of state, charge seven is legally insufficient.

3.Charge Eight

Charge eight relies upon a statute that grants the secretary of state administrative rule making authority (former RCW 29A.04.610(2004)),³ asserting that Secretary Reed failed to perform "many of the duties detailed therein."CPat 14.⁴The charge is ambiguous in that it could be...