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In re Recall of Inslee

Supreme Court of Washington, En Banc

October 31, 2019

In the Matter of the Recall of JAY INSLEE, Governor of the State of Washington.

          MADSEN, J.

         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

         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.

         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

         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.

         An elected official can be recalled only for cause, meaning the petition must be factually and legally sufficient. Chandler v. Otto, 103 Wn.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 Wn.2d 906, 914, 774 P.2d 1223 (1989).

         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 Wn.2d 546, 553, 403 P.3d 839 (2017) (alteration in original) (quoting In re Recall of Boldt, 187 Wn.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 Wn.2d 120, 131-32, 258 P.3d 9 (2011).

         This court reviews the sufficiency of a recall petition de novo. Teaford v. Howard, 104 Wn.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 Wn.2d 787, 791, 72 P.3d 170 (2003) (citing Cole v. Webster, 103 Wn.2d 280, 285, 692 P.2d 799 (1984); Chandler, 103 Wn.2d at 274). The petitioner must have some knowledge of the facts underlying the charges. In re Recall of Ackerson, 143 Wn.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 Wn.2d 544, 549, 799 P.2d 1179 (1990).

         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 Wn.2d at 791-92.

         RCW 29A.56.110 defines ...


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