In re Sawant

• Decision Date: 01 April 2021
• Docket Number: No. 99089-1,99089-1
• Citation: 483 P.3d 752
• Court: Washington Supreme Court
• Parties: In the MATTER OF the RECALL OF Kshama SAWANT, City of Seattle Councilmember, Appellant.

483 P.3d 752

In the MATTER OF the RECALL OF Kshama SAWANT, City of Seattle Councilmember, Appellant.

No. 99089-1

Supreme Court of Washington.

Filed: April 1, 2021

Dmitri L. Iglitzin, Danielle Elizabeth Franco-Malone, Melissa Jill Greenberg, Barnard Iglitzin & Lavitt LLP, 18 W. Mercer St. Ste. 400, Seattle, WA, 98119-3971, for Appellant.

John McKay, Christopher Cameron Morley, Jordan Caine Harris, Davis Wright Tremaine LLP, 920 5th Ave. Ste. 3300, Seattle, WA, 98104-1610, for Respondent.

Jennifer H. Atchison, Janine Elizabeth Joly, King County Prosecuting Attorney, 500 4th Ave. Ste. 900, Seattle, WA, 98104-2316, for Other Parties.

MADSEN, J.

¶ 1 Kshama Sawant has served on the Seattle City Council since 2013. Ernest H. Lou, among others, have filed recall charges alleging that Councilmember Sawant delegated city employment decisions to a political organization outside city government (delegation charge), Councilmember Sawant used city resources to promote a ballot initiative and failed to comply with public disclosure requirements (ballot initiative charge), Councilmember Sawant disregarded state orders related to COVID-19 (coronavirus disease 2019) and endangered the safety of city workers and other individuals by admitting hundreds of people into Seattle City Hall while it was closed to the public (city hall charge), and Councilmember Sawant led a protest march to Mayor Jenny Durkan's private residence, the location of which Councilmember Sawant knew was protected under state confidentiality laws (protest charge).¹ The trial court found these charges factually and legally sufficient for recall. For the reasons discussed below, we affirm the trial court in part and reverse in part. Additionally, Councilmember Sawant challenges the ballot synopsis, which we decline to address because RCW 29A.56.140 provides that "[a]ny decision regarding the ballot synopsis by the superior court is final."

ANALYSIS

¶ 2 All elected public officials in Washington State, except for judges, are subject to recall for malfeasance, misfeasance, or violation of their oath of office. WASH. CONST. art. I, §§ 33 - 34 ; RCW 29A.56.110. RCW 29A.56.110 defines malfeasance, misfeasance, and violation of the oath of office:

(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.

(2) "Violation of the oath of office" means the neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law.

¶ 3 "An elected official can be recalled only for cause, meaning the [recall] petition must be factually and legally sufficient." In re Recall of Inslee , 194 Wash.2d 563, 567, 451 P.3d 305 (2019) (citing Chandler v. Otto , 103 Wash.2d 268, 274, 693 P.2d 71 (1984) ).

¶ 4 The reviewing court's role in a recall petition is limited. The court does not evaluate the truthfulness of the charges; rather, it verifies that the charges are factually and legally sufficient on the face of the petition before the charges reach the electorate. In re Recall of Boldt , 187 Wash.2d 542, 548, 386 P.3d 1104 (2017) ; see also In re Recall of Zufelt , 112 Wash.2d 906, 914, 774 P.2d 1223 (1989). The court's inquiry is designed "to ensure that the recall process is not used to harass public officials by subjecting them to frivolous or unsubstantiated charges." In re Recall of West , 155 Wash.2d 659, 662, 121 P.3d 1190 (2005). It is up to the voters to determine whether the charges are true and, if so, whether they in fact justify recalling the official.

In re Recall of Jenny Durkan , 196 Wash.2d 652, 663, 476 P.3d 1042 (2020) ; Boldt , 187 Wash.2d at 549, 386 P.3d 1104.

¶ 5 A reviewing court "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." Inslee , 194 Wash.2d at 568, 451 P.3d 305. The superior court makes the initial sufficiency determination, which is subject to review by this court. RCW 29A.56.140. This court evaluates the sufficiency of a recall petition de novo. Teaford v. Howard , 104 Wash.2d 580, 590, 707 P.2d 1327 (1985).

¶ 6 A charge is factually sufficient when the facts establish a prima facie case of the elected official's misfeasance, malfeasance, or violation of oath of office; are stated in concise language; and provide a detailed description to enable the electorate and the challenged official to make informed decisions. Inslee , 194 Wash.2d at 567-68, 451 P.3d 305. Additionally, for a recall charge to be legally sufficient "it [has to] define[ ] ‘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." Id. at 568, 451 P.3d 305 (quoting In re Recall of Wasson , 149 Wash.2d 787, 791-92, 72 P.3d 170 (2003) ). If a legal justification exists for the challenged action, the charge is not sufficient. In re Recall of Wade , 115 Wash.2d 544, 549, 799 P.2d 1179 (1990).

¶ 7 Taken as a whole, a recall petition " ‘must be specific enough to give the elected official meaningful notice of the particular conduct challenged and why it is grounds for recall.’ " Inslee , 194 Wash.2d at 567, 451 P.3d 305 (internal quotation marks omitted) (quoting In re Recall of Pepper , 189 Wash.2d 546, 553, 403 P.3d 839 (2017) ). It is this court's responsibility to confirm the individuals presenting the charges have " ‘some knowledge of the facts underlying the charges.’ " Boldt , 187 Wash.2d at 548, 386 P.3d 1104 (quoting Wasson , 149 Wash.2d at 791, 72 P.3d 170 ). The recall petitioners bear the burden of identifying the " ‘standard, law, or rule that would make the officer's conduct wrongful, improper, or unlawful.’ " Inslee , 194 Wash.2d at 568, 451 P.3d 305 (internal quotation marks omitted) (quoting Pepper , 189 Wash.2d at 555, 403 P.3d 839 ). When a charge contends that the elected official disregarded the law, the facts must show the official had the intent to do so. Id .

Delegation of City Employment Decisions to a Political Organization

¶ 8 Petitioners allege that Councilmember Sawant "[d]elegated city employment decisions to a political organization [(Socialist Alternative Party)] outside city government." 1 Clerk's Papers (CP) at 2. The statement of charges allege,

In Councilmember Sawant's case, the media has uncovered documents suggesting that she may have effectively delegated decisions regarding the hiring and termination of City of Seattle employees to an outside political organization. According to documents, the National Executive Committee, and the Seattle Executive Committee [(SEC)] of the Socialist Alternative Party had authority over staffing decisions for her City of Seattle Council Office. At least one employee was allegedly fired as a result of a decision of the Executive Committee of this political organization, and that employee protested that the firing was the result of retaliation. Councilmember Sawant willfully and intentionally violated her duties under Seattle Charter Art. IV, Title 4, Sections 2 and 4 and the Seattle Municipal Code Ch. 4.16 (Code of Ethics).

3 CP at 248. The trial court found this charge factually and legally sufficient.

A. Factual Sufficiency

¶ 9 Prior to this recall petition being filed, members of the public brought similar charges against Councilmember Sawant to the Seattle Ethics and Elections Commission (SEEC). The SEEC interviewed Councilmember Sawant. "[S]he told [the committee] that the SEC does not take votes on matters coming before the City Council." 1 CP at 47. Councilmember Sawant acknowledged, while "she consults with the SEC, ... she could not recall a single instance where she had taken an official action as a City Councilmember with which she disagreed because the SEC had directed her to do so." Id . She describes informing the SEC of her "decision to dismiss the staff members ... [and] that she thought [it was proper to fire this staff member]." Id . She states that she "ultimately persuaded the SEC to side with her opinion." Id . The SEEC dismissed the charges because it concluded that "elected officials are free to structure their decision-making processes as they wish." Id .

¶ 10 Similar to the charges brought to the SEEC, the petitioners here accuse Councilmember Sawant of delegating her hiring and firing decisions to the Socialist Alternative.

¶ 11 In a series of letters and internal documents exchanged between Councilmember Sawant and the Socialist Alternative, Councilmember Sawant discussed the strides she made to be accountable to her political party.

¶ 12 In a letter titled "Concerns Regarding Worsening Situation in the Seattle Leadership," dated October 28, 2017, to the SEC of the Socialist Alternative, Councilmember Sawant responded to Socialist Alternative members accusing her of a lack of accountability to the party. She refuted the idea that her office had failed to communicate or to be accountable to the Socialist Alternative party's SEC membership. In acknowledging the importance of communication between her and her party, she stated, "[She takes] great pains to include and consult the full SEC" and errs "on the side of taking political questions to the SEC." 1 CP at 143. However, she also stated in this letter that she "cannot always inform the SEC of every detail or involve comrades on every question." Id .

¶ 13 In response to the above letter, another member acknowledged "it is the purview of the EC [(Executive Committee)] and NC [(National Committee)] comrades leading the Council work (Kshama and Adam) to make decisions about staffing [Sawant's City Council] office, and that they need to be free to create a team they have the utmost confidence in to work within the extremely high-pressure,...