Bocek v. Bayley , 81 Wash. 2d 831 ( 1973 )

Utter, J.

(concurring)—I concur in this case only because a majority of this court believe we are bound by State ex rel. LaMon v. Westport, 73 Wn.2d 255, 438 P.2d 200 (1968), and the authority upon which it is based. We there held that courts are limited to examination of the charges stated and cannot inquire into factual matters extraneous to the allegations. Although our proceedings for recall are theoretically to be for cause, the interpretation LaMon and other cases place on this provision of our constitution means that if a petitioner phrases the charge correctly, a vote on recall will occur, regardless of whether actual cause on the issues stated exists and whether there is, in fact, any truth to the charge.

This procedure readily lends itself to public officials being made subject to recall where the real issues for dissatisfaction are not publicly stated. The general public is denied both an opportunity to hear debate on the real issues involved and the opportunity to make an intelligent choice on these issues. I cannot believe this was the intent of the original drafters of our constitution. It makes no sense to affirm that we have recall for cause and then not have at least a prima facie showing of the truth of the allegations made before the courts. The remedy, as suggested in Cudihee v. Phelps, 76 Wash. 314, 331, 136 P. 367 (1913), may be for the legislature to more specifically state in the enabling legislation that the courts are to first try the question of whether a prima facie case for recall exists.

Stafford, J., concurs with Utter, J.