Chandler v. Otto ( 1984 )

Pearson, J.

This case involves a recall petition filed against members of the Moses Lake City Council. The issue presented is whether the charges propounded in the petition allege sufficient grounds for recall. The trial court, pursuant to RCW 29.82.010, as amended by Laws of 1984, ch. 170, conducted a hearing to determine the sufficiency of the charges and adequacy of the ballot synopsis and concluded that the charges were sufficient. We hold that the recall charges were legally insufficient to serve as the basis for a recall election. Accordingly, we reverse the decision of the trial court.

The salient facts are as follows. In early 1984 the City of Moses Lake invited bids from interested persons desiring to contract with the City for the handling of the City's solid waste. The invitations for bids called for a bid opening on April 27, 1984. The bids were opened on that date and there were seven bidders. Superior Refuse Removal submitted the lowest bid. Shortly after the opening it was discovered that Superior's bid failed to fully comply with the invitation in that some of the pages were not signed as required. Similarly, the second lowest bidder, Western Refuse, had also failed to sign all the pages of its bid. The third lowest bidder was Lakeside Disposal. Lakeside had complied with the invitation and signed each proposal page.

At its regular meeting on May 22, 1984, the City Council considered the seven bids. After some discussion about whether the Council could waive the irregularities in the bids submitted by Superior Refuse and Western Refuse, the Council voted 4 to 3 not to waive the irregularities and awarded the contract to Lakeside Disposal as the lowest responsible bidder. Thereafter on July 12, 1984, a petition for recall was filed against each of the four councilmen who had voted to award the contract to Lakeside. The petition alleged the foregoing facts and contended that the actions of the councilmen were an abuse of discretion, done in contravention of the public interest, and would result in increased costs to the citizens of Moses Lake.

On July 24, 1984, a ballot synopsis was prepared by Paul A. Klasen, Jr., Grant County Prosecuting Attorney. On August 9, 1984, a hearing was held in the Superior Court for Grant County wherein the judge determined that the allegations contained in the recall petitions were sufficient to warrant proceeding with the recall election. The councilmen immediately appealed this decision.

Recall is the electoral process by which an elected officer is removed before the expiration of the term of office. Provisions for the recall of public officers did not appear in the Washington Constitution until 1912 when a constitutional recall referendum proposed by the State House of Representatives was passed by the voters. Laws of 1911, ch. 108, § 1, p. 504; Const. art. 1, §§ 33, 34 (amend. 8). This amendment is the only constitutional recall provision that requires a showing of cause before recall will be allowed. Cohen, Recall in Washington: A Time for Reform, 50 Wash. L. Rev. 29 (1974). In addition, Washington is one of only a few states that requires a recall petition to allege acts of malfeasance, misfeasance or a violation of the oath of office. See 4 E. McQuillin, Municipal Corporations § 12.251b, at 336 n.12 (3d rev. ed. 1979). These requirements indicate that the drafters of Washington's recall provision wanted to prevent recall elections from reflecting on the popularity of the political decisions made by elected officers. See 4 E. McQuillin, at 334.

In 1913 the Legislature passed the necessary laws to carry out the provisions of the new constitutional amendment. See RCW 29.82. The Legislature did not, however, define misfeasance, malfeasance, or violation of the oath of office. Nor did the Legislature suggest what might constitute cause. Because of this, interpretation of the unique requirements of Washington's recall provision has been the focus of over half the recall cases at the appellate level. Constitutional Law — Recall of Public Officers: Discretionary Acts Cannot Be a Sufficient Basis for Recall, 48 Wash. L. Rev. 503, 506 (1973). These cases, in trying to interpret the right of recall, developed a narrow scope of review based on the court's traditional role of nonintervention in political controversies. Cudihee v. Phelps, 76 Wash. 314, 136 P. 367 (1913); McCormick v. Okanogan Cy., 90 Wn.2d 71, 578 P.2d 1303 (1978). This scope of review has in most instances allowed the court to uphold nearly every recall petition. Such a narrow scope of review, however, disregards the apparent intent of the framers of the recall provision to limit the scope of the recall right to recall for cause. Furthermore, it has encouraged two abuses:

(1) The charges, though adequate on their face as cause for recall, may lack any factual basis whatsoever;

(2) The charge may be entirely unrelated to the dispute; the real political issue or dispute between the recall petitioners and the elective officer may be submerged beneath the rhetoric of the charge.

Cohen, 50 Wash. L. Rev. at 30.

The narrow scope of review dictated by the vagueness of the enabling legislation has until recently prevented the courts from dealing with these abuses. Recent amendments to RCW 29.82, however, indicate that the Legislature has finally followed the suggestions of members of this court and has provided safeguards to protect an elected official from being subjected to the financial and personal burden of a recall election grounded on false or frivolous charges. Bocek v. Bayley, 81 Wn.2d 831, 839-40, 505 P.2d 814 (1973) (Utter, J., concurring).

In 1976 the Legislature amended RCW 29.82. The statute was amended to require the state official with whom the charges were filed to serve the officer whose recall is demanded with a copy of the ballot synopsis. RCW 29.82-.015. More importantly, the specificity requirements were changed by adding the portions italicized below.

Whenever any legal voter . . . shall desire to demand the recall and discharge of any elective public officer . . . under the provisions of sections 33 and 34 of Article 1 of the Constitution, he . . . shall prepare a typewritten charge, reciting that such officer . . . has committed an act or acts of malfeasance, or an act or acts of misfeasance while in office, or has violated his oath of office . . . which charge shall state the act or acts complained of in concise language, giving a detailed description including the approximate date, location, and nature of each act complained of . . .

(Italics ours.) RCW 29.82.010 (as amended by Laws of 1975, 2d Ex. Sess., ch. 47, § 1, p. 199).

RCW 29.82 was amended for a second time in 1984. First, in addition to believing a charge to be true a petitioner must now verify under oath that he or she has knowledge of the alleged facts upon which the stated grounds for recall are based. Laws of 1984, ch. 170, § 1, p. 821. Second,the amendments codify the definitions of misfeasance, malfeasance, or violation of the oath of office in accordance with case law definitions:

(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 wilful neglect or failure by an elective public officer to perform faithfully a duty imposed by law.

Laws of 1984, ch. 170, § 1, p. 821. See also Bocek v. Bayley, supra. Third, a new section requires the recall petitioner to file the petition with a specified officer who will formulate a ballot synopsis. The preparer shall additionally certify and transmit the charges and the ballot synopsis to the superior court and shall petition the superior court to approve the synopsis and to determine the sufficiency of the charges. Hence, under the new statute the superior courts, rather than the prosecuting attorney, Attorney General or Chief Justice of the Supreme Court, are entrusted with initially determining whether the charges are sufficient. Laws of 1984, ch. 170, § 3, p. 823. A fourth section outlines the duties of the superior court.

Within fifteen days after receiving the petition, the superior court shall have conducted a hearing on and shall have determined, without cost to any party, (1) whether or not the acts stated in the charge satisfy the criteria for which a recall petition may be filed, and (2) the adequacy of the ballot synopsis. The clerk of the superior court shall notify the person subject to recall and the person demanding recall of the hearing date. Both persons may appear with counsel. The court may hear arguments as to the sufficiency of the charges and the adequacy of the ballot synopsis. The court shall not consider the truth of the charges, but only their sufficiency. An appeal of a sufficiency decision shall be filed in the supreme court as specified by RCW 29.82.160. The superior court shall correct any ballot synopsis it deems inadequate. Any decision regarding the ballot synopsis by the superior court is final. The court shall certify and transmit the ballot synopsis to the officer subject to recall, the person demanding the recall, and either the secretary of state or the county auditor, as appropriate.

(Italics ours.) Laws of 1984, ch. 170, § 4, p. 823.

Our obligation in interpreting the foregoing amendments is to ascertain and give effect to the intent of the Legislature. Janovich v. Herron, 91 Wn.2d 767, 592 P.2d 1096 (1979); Strenge v. Clarke, 89 Wn.2d 23, 569 P.2d 60 (1977); Herron v. McClanahan, 28 Wn. App. 552, 625 P.2d 707, review denied, 95 Wn.2d 1029 (1981). The changes to RCW 29.82 are presumed to indicate a change in the legislative purpose behind recall petitions. See In re Adoption of Jackson, 89 Wn.2d 945, 578 P.2d 33 (1978). We believe the changes indicate a legislative intent to place limits on the recall right, i.e., to allow recall for cause yet free public officials from the harassment of recall elections grounded on frivolous charges or mere insinuations. We perceive the legislative amendments to mean that a recall petition must be both legally and factually sufficient.

Factually sufficient means the petition must comply with the specificity requirements of RCW 29.82.010. As noted in Herron, at 560, "these statutory requirements ensure that both the public electorate and the challenged elective official will make informed decisions in the recall process." Factually sufficient indicates that although the charges may contain some conclusions, taken as a whole they do state sufficient facts to identify to the electors and to the official being recalled acts or failure to act which without justification would constitute a prima facie showing of misfeasance, malfeasance, or a violation of the oath of office. See Amberg v. Welsh, 325 Mich. 285, 38 N.W.2d 304 (1949); Tolar v. Johns, 147 So. 2d 196 (Fla. Dist. Ct. App. 1962).

Legally sufficient means that an elected official cannot be recalled for appropriately exercising the discretion granted him or her by law. Tolar, at 199-200. See also State ex rel. Citizens Against Mandatory Bussing v. Brooks, 80 Wn.2d 121, 492 P.2d 536 (1972). To be legally sufficient, the petition must state with specificity substantial conduct clearly amounting to misfeasance, malfeasance or violation of the oath of office. 4 E. McQuillin, Municipal Corporations § 12.251b, at 334 (3d rev. ed. 1979).

In analyzing the recall petition in the instant case, we conclude that it is not legally sufficient. Pursuant to RCW 35.23.352-.353, members of Moses Lake City Council have the authority to let contracts, such as the one in question here, to the "lowest responsible bidder". This authority is well analyzed in 10 E. McQuillin, Municipal Corporations § 29.73, at 398 (3d rev. ed. 1981):

Concerning the inquiry, how the responsibility is to be determined, "the authorities speak with practically one voice," namely, that the officers in whom the power is vested "must determine the fact, and such determination cannot be set aside unless the action of the tribunal is arbitrary, oppressive or fraudulent. The determination of the question of who is the lowest responsible bidder does not rest in the exercise of an arbitrary and unlimited discretion, but upon a bona fide judgment, based upon facts tending to support the determination." This view has in general been supported by the authorities. The determination of the municipal officials concerning the lowest responsible bidder will not be disturbed by the courts, unless it is shown to have been influenced by fraud, or unless it is an arbitrary, unreasonable misuse of discretion. When the officers have exercised their discretion in the award of the contract, the presumption obtains that such action was regular and lawful, and such presumption can be overcome only by proof that the officers acted without justification or fraudulently.

(Footnotes omitted.)

Respondent's recall petition fails to allege any fraud or arbitrary, unreasonable misuse of discretion. There is no evidence that the appellants exercised their discretion inappropriately. The petition merely attacks the judgment of the councilmen. The exercise of judgment is not grounds for recall. Tolar, 147 So. 2d at 200. Hence, the petition does not state with specificity substantial conduct clearly amounting to misfeasance, malfeasance, or violation of the oath of office.

Accordingly, we reverse the decision of the trial court and direct a dismissal of the recall charges.

Williams, C.J., and Brachtenbach, Dolliver, Dimmick, and Andersen, JJ., concur.