In re Recall of Piper ( 2015 )


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  •   IN THE SUPREME COURT OF THE STATE OF WASHINGTON
    In the Matter of the Recall of                     NO. 90883-4
    EDWARD M. PIPER, Commissioner of                   ENBANC
    the Cowlitz County Public Utility District
    No.1.                                              Filed   DEC 1 0 2015
    STEPHENS, I.-Petitioners William Ammons, Douglas Irvine, and Charles
    Wallace (Petitioners) petitioned to recall respondent Cowlitz County Public Utility
    District (PUD) Commissioner Edward M. Piper. Clerk's Papers (CP) at 8-13. At a
    hearing to determine the sufficiency of the allegations, Petitioners voluntarily
    withdrew the recall petition. Finding that the recall petition was frivolous and
    intentionally filed in bad faith, the superior court awarded Piper attorney fees.
    Petitioners moved for review of the attorney fees award. We affirm the superior
    court.
    FACTS AND PROCEDURAL HISTORY
    In 20 13, PUD commissioners Buz Ketcham and Kurt Anagnostou passed a
    censure resolution against Piper.      The resolution alleged nine instances of
    misfeasance but contained no underlying factual description to support the charges.
    In re Recall ofEdward M Piper, 90883-4
    Petitioners then filed a recall petition against Piper. 1 CP at 151-53. The
    petition was a near-verbatim copy of the censure resolution. Compare CP at 8-13,
    with CP at 151-53. According to Ammons, the recall petition was dropped in the
    mail slot of his barber shop. Without investigating the tn1thfulness of the recall
    petition, Ammons signed and presented it to Wallace and Irvine. After speaking
    with Anagnostou, Wallace and Irvine also signed the petition.                    Although
    Anagnostou confirmed the recall petition mirrored the censure resolution, he
    declined to provide any supporting information. Ammons claimed the purpose of
    the recall petition was "to get [Piper] to retire like he should."             CP at 197.
    Petitioners claimed no part in writing the petition. CP at 358.
    The Cowlitz County prosecuting attorney rejected the recall petition, finding
    that it did not include the required oath. CP at 117. After Petitioners submitted a
    revised recall petition, the prosecutor moved for a sufficiency hearing.               Piper
    objected, arguing the recall petition lacked both legal and factual sufficiency.
    Piper also moved for CR 11 sanctions, contending the recall petition was filed in
    bad faith.
    At the sufficiency hearing, Petitioners voluntarily withdrew the recall
    petition. Verbatim Report of Proceedings (VRP) (Dec. 20, 2013) at 21-23. The
    trial judge warned Petitioners, "[I]f you want to withdraw the petition, I think
    you're entitled to do so. I don't think that prohibits ... Piper from any motion for
    1
    In 2009, Ammons had unsuccessfully filed a recall petition against Piper.
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    In re Recall of Edward M. Piper, 90883-4
    attorney[ ] fees." !d. at 22. Petitioner's counsel responded, "I've discussed that
    with my clients, and we're aware of that." !d. at 23.
    To determine whether the recall petition was filed in bad faith, the superior
    court granted discovery, which was limited to deposing Petitioners. VRP (Jan. 15,
    2014) at 16. Both Piper and Petitioners agreed to this discovery. Finding that the
    recall petition was frivolous and intentionally filed in bad faith, the superior court
    awarded Piper attorney fees. CP at 360-61. Petitioners timely appealed.
    ANALYSIS
    An elected official may be recalled for misfeasance, malfeasance, or
    violation of the oath of office. CONST. art. I, §§ 33-34; RCW 29A.56.110. In
    recall proceedings, courts ensure that public officials are not subject to frivolous or
    unsubstantiated charges by confirming that the charges are legally and factually
    sufficient before placing the charges before the voters. RCW 29A.56.140; In re
    Recall of Lindquist, 
    172 Wn.2d 120
    , 131-32, 
    258 P.3d 9
     (2011). Courts do not,
    however, evaluate the truthfulness of the charges. !d.
    Although a recall petitioner's motives play no part in determining the legal
    and factual sufficiency of a recall petition, In re Recall of Pearsall-Stipek, 
    136 Wn.2d 255
    , 267, 
    961 P.2d 343
     (1998), a petitioner's motives are relevant to
    determining bad faith, Lindquist, 
    172 Wn.2d at 136-39
    . In dismissing a recall
    petition filed in bad faith, the trial court may award sanctions under CR 11. !d. at
    136.
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    In re Recall of Edward M. Piper, 90883-4
    1. The Superior Court Properly Allowed Discovery To Determine Whether to
    Award Sanctions
    Petitioners argue that discovery cannot be granted solely to search out
    grounds for applying sanctions.     Appellants' Opening Br. at 19.      Specifically,
    Petitioners contend that the superior court erred by allowing Piper to depose them.
    
    Id.
     We reject this argument.
    Parties may obtain discovery regarding any matter, not privileged, that is
    relevant to the subject matter involved in the pending action, whether it relates to
    the claim or defense of the party seeking discovery or to the claim or defense of
    any other party. CR 26(b)(l); Barfield v. City of Seattle, 
    100 Wn.2d 878
    , 883, 
    676 P.2d 438
     (1984) ("[CR 26(b)(l)] is designed to permit a broad scope of
    discovery."). After Petitioners withdrew the recall petition, Piper filed a CR 11
    motion for sanctions, which in the context of a recall petition requires a showing of
    bad faith.   Lindquist, 171 Wn.2d at 136.        Not only did Petitioners agree that
    discovery was necessary at the hearing on sanctions, but CR 26(b )(1) 's plain
    language also permitted discovery on the issue of bad faith because it was a matter
    relevant to the subject matter involved in the pending action-the award of
    attorney fees. CR 26(b)(1). The superior court therefore acted within its discretion
    by allowing discovery to determine whether to award sanctions in this recall
    action.
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    In re Recall ofEdward M Piper, 90883-4
    2. The Superior Court Properly Awarded Attorney Fees against Petitioners for
    Intentionally Filing a Frivolous Petition in Bad Faith
    An award of attorney fees is reviewed for abuse of discretion and may be
    reversed only if the court exercised its discretion on untenable grounds or for
    untenable reasons. Lindquist, 
    172 Wn.2d at 135
    . In any civil action, a court may
    award attorney fees if the action was frivolous and advanced without reasonable
    cause. RCW 4.84.185. In a recall action, the superior court holds a hearing on the
    merits, without cost to any party, to determine whether the alleged acts satisfy the
    criteria for filing a recall petition. RCW 29A.56.140.
    Although a petitioner may not be assessed expenses and attorney fees under
    RCW 4.84.185 for bringing a merely frivolous recall petition, sanctions may be
    imposed to '"respond to intentionally frivolous recall petitions brought for the
    purpose of harassment."' Lindquist, 
    172 Wn.2d at 136
     (quoting Pearsall-Stipek,
    
    136 Wn.2d at 266
    ).      Both CR 11 and the court's inherent equitable powers
    authorize the award of attorney fees when recall petitions are intentionally
    frivolous and filed in bad faith. !d. Under CR 11, sanctions are available against a
    litigant for filing a claim for an improper purpose, or if the claim is not grounded in
    fact or law and the signing litigant failed to conduct a reasonable inquiry. 
    Id.
     By
    signing a pleading, including a recall petition, a party certifies that "it is not
    interposed for any improper purpose, such as to harass or to cause unnecessary
    delay or needless increase in the cost of litigation." CR ll(a)(3); Lindquist, 172
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    In re Recall of Edward M. Piper, 90883-4
    Wn.2d at 136. Violation of this rule allows the court to award reasonable attorney
    fees. Lindquist, 
    172 Wn.2d at 136
    .
    In Lindquist, this court affirmed an award of attorney fees upon the dismissal
    of a recall petition against Pierce County Prosecutor Mark Lindquist for failing to
    investigate and prosecute an individual. !d. at 135-38. There, the court found that
    the petitioners'   claim was frivolous because petitioners knew that law
    enforcement-not the prosecuting attorney-conduct investigations. !d. at 137.
    Petitioners' claim was filed for the purpose of political harassment because "[t]he
    timing allowed the recall petition's charges to be known before the [prosecuting
    attorney's] election but too late for Lindquist to clear his name in a hearing on the
    merits." 
    Id.
       Finally, the court found bad faith because petitioners refused ''to
    comply with the subpoena ordering petitioners to answer questions and produce
    documents relating to filing the recall petition." !d. at 137-38.
    At the outset, we address Petitioners' argument that withdrawing the recall
    petition at the sufficiency hearing bars an award of attorney fees.      Appellants'
    Opening Br. at 33-34. A violation of CR 11 "is complete upon the filing of the
    offending paper; hence an amendment or withdrawal of the paper, or even a
    voluntary dismissal of the suit, does not expunge the violation." Biggs v. Vail, 
    124 Wn.2d 193
    , 199-200, 
    876 P.2d 448
     (1994). By filing the recall petition, Petitioners
    assumed the risk of CR 11 sanctions. Indeed, the superior court warned petitioners
    that a voluntary withdrawal would not prevent Piper from seeking sanctions. VRP
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    In re Recall ofEdward M. Piper, 90883-4
    (Dec. 20, 2013) at 22-23.     Petitioner's counsel acknowledged this fact when
    Petitioners withdrew the petition anyway. 
    Id.
     We reject this argument.
    Determining whether the recall petition is frivolous turns on the factual and
    legal sufficiency of the charges alleged. Pearsall-Stipek, 
    136 Wn.2d at 266
     ("The
    very purpose of the sufficiency determination is to eliminate frivolous recall
    petitions."). Factual sufficiency requires that the charge state each act of
    misfeasance, malfeasance, or breach of the oath of office in concise language and
    provide a detailed description, including the approximate date, location, and nature
    of each act. Lindquist, 
    172 Wn.2d at 132
    . Moreover, the petitioner must "'know[ ]
    of identifiable facts that support the charge."' I d. (quoting In re Recall of Reed,
    
    156 Wn.2d 53
    , 58, 
    124 P.3d 279
     (2005)).         Legal sufficiency requires that the
    petition state with specificity "'substantial conduct clearly amounting to
    misfeasance, malfeasance[,] or violation of the oath of office.'" In re Recall of
    Wade, 
    115 Wn.2d 544
    , 549, 
    799 P.2d 1179
     (1990) (quoting Teaford v. Howard,
    
    104 Wn.2d 580
    , 584,
    707 P.2d 1327
     (1985)).
    As the superior court noted, "Petitioners made no attempt, reasonable or
    otherwise, to obtain any factual information to support the allegations of the recall
    petition." CP at 359. In re Recall of Ackerson, 
    143 Wn.2d 366
    , 372, 
    20 P.3d 930
    (2001) (finding that a recall petitioner must have some knowledge of the facts
    underlying the charges contained in the petition). Petitioners failed to identify any
    specific action or inaction by Piper to support the allegations in the petition.
    Instead, they levied conclusory allegations of misconduct, namely that Piper
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    In re Recall ofEdward M Piper, 90883-4
    violated several PUD policies and some statutes, but failed to identify any
    misconduct with the required specificity. CP at 8-15, 358-60.
    Petitioners nevertheless contend that their petition was not frivolous because
    it was supported by information attached to the petition. Appepants' Opening Br.
    at 24. But the recall petition must reasonably identify the supporting information
    and explain how it supports the charges. In re Recall of Wasson, 
    149 Wn.2d 787
    ,
    792-93, 
    72 P.3d 170
     (2003) (finding recall petition that referred to several attached
    exhibits-but failed to identify how the attachments supported the charges-
    factually and legally insufficient).           Petitioners   attached several e-mail
    conversations to the recall petition but neither referenced those attachments nor
    explained how the attachments supported the charges.          CP at 8-44. Petitioners
    concede this point, stating that supplemental documentation "must normally be
    better indexed to the charges to provide the factual support necessary to validate a
    recall petition." Appellants' Reply Br. at 7-8.
    Petitioners also argue the petition was not frivolous because it relied on a
    public document-the censure resolution against Piper. Appellants' Opening Br.
    at 20. Petitioners contend that relying on a public document prevents finding the
    recall petition lacked factual sufficiency. 
    Id.
     Relying on a public document to
    support a recall petition, however, requires that the document contain sufficient
    facts to indicate the approximate time, location, and nature of the alleged acts. See
    Janovich v. Herron, 
    91 Wn.2d 767
    , 774, 
    592 P.2d 1096
     (1979). This standard
    exists because the public must be able to make an informed decision on whether to
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    In re Recall ofEdward M Piper, 90883-4
    support the recall. 
    Id.
     In Janovich, a recall petition was substantially copied from
    a federal criminal complaint that was filed against an elected sheriff. 
    Id. at 768-69
    .
    There, the court found the recall petition was sufficient because the criminal
    complaint it relied on contained the approximate time, location, and nature of the
    alleged acts. 
    Id.
     at 774 n.l.     Unlike the complaint in Janovich, however, the
    censure resolution here does not contain any factual description of the alleged
    violations or misconduct. CP at 111-13. Instead, the censure resolution vaguely
    references legal authorities and PUD policies, and merely states that Piper violated
    these rules.   
    Id.
       Because the petition is a near-verbatim copy of the censure
    resolution, the sufficiency of the charge cannot be determined from the face of the
    petition and the petition does not allow the public to make an informed decision
    regarding the recall.
    Petitioners finally argue that an award of attorney fees under CR 11 is
    improper because they conducted a sufficiently reasonable inquiry into the factual
    allegations in the recall petition. Specifically, Petitioners argue that meeting with
    Anagnostou constituted a sufficiently reasonable inquiry. Appellants' Opening Br.
    at 22. To impose CR 11 sanctions when a recall petition lacks factual or legal
    sufficiency, the court must find that the attorney who filed the complaint failed to
    conduct a reasonable inquiry into the factual and legal basis of the claim. Bryant v.
    Joseph Tree, Inc., 
    119 Wn.2d 210
    , 220, 
    829 P.2d 1099
     (1992) ("The
    reasonableness of an attorney's inquiry is evaluated by an objective standard."); In
    re Recall of Beasley, 
    128 Wn.2d 419
    , 427-29, 
    908 P.2d 878
     (1996) (stating that
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    In re Recall ofEdward M Piper, 90883-4
    asking someone to confirm the truth of conclusory allegations is not a reasonable
    inquiry under the circumstances); Cf In re Pers. Restraint of Bonds, 
    165 Wn.2d 135
    , 143, 
    196 P.3d 672
     (2008) ("Indeed, we require a pro se petitioner to comply
    with applicable rules and statutes and hold them to the same responsibility as an
    attorney.")
    Petitioners, representing themselves, failed to conduct a reasonable inquiry.
    Petitioners' meeting with Anagnostou was insufficient because the commissioner
    declined to discuss any facts underlying the charges.          Instead, Anagnostou
    confirmed only his belief that the charges in the censure resolution were true. CP
    at 92-93. Because asking someone to confirm the truth of conclusory allegations is
    .
    not a reasonable inquiry and Petitioners had no knowledge of the petition beyond
    its mere existence, Petitioners' argument fails. CP at 357-58. As the superior
    court found, Petitioners made no attempt, reasonable or otherwise, to inquire into
    the factual information needed to support the charges in the recall petition. CP at
    358. Not only did Petitioners fail to conduct a reasonable inquiry, but they also
    filed the petition without knowledge of the underlying facts. Accordingly, the
    recall petition plainly lacks factual and legal sufficiency.
    The record discloses that Petitioners filed the petition in bad faith and for
    purposes of political harassment.      As the superior court noted, Ammons was
    intentionally unprepared during his deposition, showing a "cavalier" and "reckless
    attitude" to the recall and the court process. CP at 359. Despite this, Ammons
    admitted that the purpose of the recall petition was not to successfully recall Piper.
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    In re Recall ofEdward M Piper, 90883-4
    CP at 197, 359. Instead, Ammons sought to force Piper to "retire like he should."
    CP at 197. Petitioners also admitted that the recall petition was motivated by a
    desire to politically reshape the PUD board, not based on any misconduct by Piper.
    CP at 359.    The record further reveals that Ammons had previously filed an
    unsuccessful recall petition against Piper. CP at 196. Given the repeated and
    wholly meritless efforts to recall Piper, Petitioners' persistence suggests that they
    were motivated by something other than a sincere belief in the sufficiency of the
    recall charges.
    Petitioners nonetheless challenge the superior court's finding of bad faith by
    contending that court "assumed good ·faith" lYuC"oraere59 Wn.2d 781
    , 784, 
    370 P.2d 862
     (1962).
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    In re Recall ofEdward M Piper, 90883-4
    Accordingly, the superior court did not abuse its discretion by finding that
    Petitioners intentionally filed a frivolous recall petition in bad faith.
    3. Piper Is Entitled to Reasonable Attorney Fees on Appeal
    Pursuant to RAP 18.1, Piper requests attorney fees on appeal, noting a party
    may recover attorney fees incurred on appeal as a result of a bad faith recall
    petition.   See Lindquist, 
    172 Wn.2d at 136
    .            Because we agree Petitioners
    intentionally filed a frivolous recall petition in bad faith, we award Piper attorney
    fees on appeal.
    CONCLUSION
    We affirm the superior court on all issues presented for review and award
    Piper all reasonable attorney fees and expenses incurred on appeal.
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    In re Recall ofEdward M. Piper, 90883-4
    WE CONCUR:
    I
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    ~MAv.t.g.
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