Moore v. Call , 109 Wash. 2d 954 ( 1988 )

Dolliver, J.

The proponents of a recall petition filed against Fife City Council Member Jim Call appeal on direct review from a superior court order denying the sufficiency of the recall charges. We affirm the trial court and hold the charges stated in the recall petition are legally insufficient.

In 1986, Pierce County was in the process of considering a rezone in which the City of Fife had a potential interest because of the proximity of the parcel to Fife and the possible regional effects of the rezone.

A letter dated December 3, 1986, was sent to the hearing examiner assigned to the rezone. The letter was prepared by a private attorney and stated it was being sent at the request of two named private Fife citizens. The letter indicated the apparent deadline for comments on the rezone proposal was December 3, 1986, stated grounds for challenging the rezone, and requested further hearings be held. A copy of the letter was directed to the Fife City Council and was received by the Council on December 11, 1986.

On December 4, 1986, at a regularly scheduled open and public Fife City Council meeting, Call proposed a resolution to set aside $500 of City moneys as a contingency for the purpose of hiring a specific attorney to represent Fife should the City decide to challenge the rezone. The resolution was discussed, but the Council took no action. The attorney Call proposed hiring was the same attorney who had written the December 3, 1986 letter.

At a subsequent Council meeting on December 23, 1986, allegations were made that Call personally initiated the December 3, 1986 letter and had used the names of the two Fife citizens to conceal his involvement; that Call had failed to disclose his knowledge that the attorney who wrote the letter was the same attorney Call proposed hiring as outside counsel for the City of Fife; that Call's intent in making the motion on December 4, 1986, was to misappropriate City moneys to pay the attorney fees for the December 3, 1986 letter; and that Call knew the appeal period for the rezone had ended on December 3, 1986, when he made the motion of December 4, 1986, to hire an attorney to represent Fife in the rezone.

Call denied the allegations and stated he had no knowledge of the December 3, 1986 letter prior to December 11, 1986, when the letter was received by the Council. The recall petition arose out of these events.

The recall petition states two charges which recall proponents allege constitute malfeasance, misfeasance or violation of oath of office. The first charge states that Call made the December 4, 1986 resolution proposal with knowledge that the time for rezone appeal had expired and without disclosing the attorney in question was the same attorney who was representing the two private citizens in the rezone. Thus, the funds would, in effect, be used to pay the attorney fees incurred for the preparation of the December 3, 1986 letter. The second charge alleges Call knowingly made three untrue statements at the December 23, 1986 Council meeting: (a) the proposed resolution was unrelated to the same attorney's representation of the two private Fife citizens named in the December 3, 1986 letter, (b) he had not initiated the December 3, 1986 letter, and (c) he had not seen the December 3, 1986 letter before December 11, 1986.

On February 13, 1987, a ballot synopsis was prepared by the Pierce County Prosecuting Attorney. On February 27, 1987, a hearing was held in the Superior Court for Pierce County. There was no voir dire examination of the petitioners. See Cole v. Webster, 103 Wn.2d 280, 288, 692 P.2d 799 (1984). The court determined the allegations in the recall petition were insufficient. The recall petitioners' motion for reconsideration was granted and the matter was reconsidered on March 20, 1987, at which time the court affirmed the earlier decision and ruled the charges stated in the ballot synopsis were legally insufficient grounds for recall. Plaintiffs appealed this decision.

The right to recall elected officials derives from article 1, sections 33 and 34 (amend. 8) of the Washington Constitution. Pursuant to this constitutional provision, the Legislature has adopted RCW 29.82 to provide the framework for the recall process. The sufficiency of recall charges has been addressed several times in recent cases: Greco v. Parsons, 105 Wn.2d 669, 717 P.2d 1368 (1986); Teaford v. Howard, 104 Wn.2d 580, 707 P.2d 1327 (1985); Estey v. Dempsey, 104 Wn.2d 597, 707 P.2d 1338 (1985); Chandler v. Otto, 103 Wn.2d 268, 693 P.2d 71 (1984); Cole v. Webster, 103 Wn.2d 280, 692 P.2d 799 (1984).

The right to recall elected officials is limited to recall for cause so as to free public officials from the harassment of recall elections grounded on frivolous charges or mere insinuations. Chandler, at 274. Recall for cause requires a petition to be both legally and factually sufficient. Chandler, at 274. As noted in Chandler:

Factually sufficient means the petition must comply with the specificity requirements of RCW 29.82.010. As noted in Herron [v. McClanahan, 28 Wn. App. 552, 625 P.2d 707, review denied, 95 Wn.2d 1029 (1981)], 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. . . .

Legally sufficient means that an elected official cannot be recalled for appropriately exercising the discretion granted him or her by law. ... To be legally sufficient, the petition must state with specificity substantial conduct clearly amounting to misfeasance, malfeasance or violation of the oath of office.

Chandler, at 274.

There can be no inquiry by the court into the truth or falsity of the charges, nor can there be inquiry into the motives of those filing the charges. Roberts v. Millikin, 200 Wash. 60, 93 P.2d 393 (1939).

The fundamental doctrine of separation of powers prohibits the judicial branch from invading the right of a legislative body to exercise its legislative powers. State ex rel. Gunning v. Odell, 58 Wn.2d 275, 278, 362 P.2d 254 (1961) (citing Household Fin. Corp. v. State, 40 Wn.2d 451, 244 P.2d 260 (1952)). Proposing a resolution is a legitimate legislative function. Call was within his discretion to propose a resolution when acting in a legislative capacity as a city council member. Chandler, at 274. The charge alleging Call made an improper resolution is legally insufficient.

As to the second charge, it must also fail. Article 2, section 17 of the Washington Constitution protects legislators from civil action or criminal prosecution for words spoken in debate. This provision on its face applies only to the State Legislature and to actions brought in a court of law. We believe, however, the necessity for free and vigorous debate in all legislative bodies is part of the essence of representative self-government. The legislative process would become stunted and open debate impossible if members of any legislative body were to be subject to recall simply on the basis of statements made during the give and take of legislative debate. We do not believe the people in adopting amendment 8 intended to authorize a recall based on words uttered in a legislative process — whether they be true or false.

The 1984 cases of Cole v. Webster, supra, and Chandler v. Otto, supra, discussed the recall of elected officials in light of RCW 29.82.010, as amended by Laws of 1984, ch. 170. In Chandler v. Otto we held elected officials cannot be recalled for legally exercising the discretion granted them by law. There is no greater or more important discretion afforded a legislator, whether state or municipal, than to engage in debate in the legislative context, including the offering of proposed resolutions or legislation. Here the entire matter complained of involved nothing more than debate and the proposing of a resolution which was not adopted. This is legally insufficient to support a petition for recall.

Neither charge in the recall petition is legally sufficient. The trial court is affirmed.

Pearson, C.J., and Utter, Brachtenbach, Dore, and Goodloe, JJ., concur.

Andersen, J., concurs in the result.