In re Recall of White ( 2020 )

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE OCTOBER 29, 2020
SUPREME COURT, STATE OF WASHINGTON
OCTOBER 29, 2020
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Recall of )
) No. 98663-1
)
)
)
JASON WHITE, ) En Banc
City of Yakima )
District 2 Councilman, )
)
)
_______________________________) Filed: October 29, 2020
GONZÁLEZ, J.—In our constitutional democracy, the people elect their
own representatives for fixed electoral terms. WASH. CONST. art. II, §§ 5, 6;
art. III, § 1; art. IV, §§ 3, 30(4); art. VI; art. XI, § 5. These terms are set by
regularly scheduled elections. RCW 29A.04.321. At these regularly
scheduled elections, voters frequently have the choice to reelect their
representatives or choose another direction by voting for a challenger.
Voters have a constitutional mechanism for expressing dissatisfaction
with their elected representatives between elections: recall. WASH. CONST.
art. I, §§ 33, 34. Under our constitution, any legal voter in the political
In re Recall of Jason White, No. 98663-1
subdivision that elected a person to a legislative or executive office may file
a petition to recall that person from office. Id.
Our constitution, however, constrains recall. Most relevantly, a recall
petition must allege a violation of the oath of office or an act of misfeasance
or malfeasance. Id. § 33. Courts are obligated to review recall petitions to
ensure they allege a recallable offense and not merely an unpopular decision
or an unpopular stance. See RCW 29A.56.110, .140; see also Chandler v.
Otto, 103 Wn.2d 268, 270-71, 693 P.2d 71 (1984) (citing 4 EUGENE
MCQUILLIN, MUNICIPAL CORPORATIONS § 12.251b at 336 n.12 (3d rev. ed.
1979)). When the recall petitioner alleges that an official committed a
recallable offense by violating the law, the petition must also articulate the
“‘standard, law, or rule that would make the officer’s conduct wrongful,
improper, or unlawful.’” In re Recall of Inslee, 194 Wn.2d 563, 568, 451
P.3d 305 (2019) (internal quotation marks omitted) (quoting In re Recall of
Pepper, 189 Wn.2d 546, 554-55, 403 P.3d 839 (2017)).
We have before us today a recall petition alleging that city of Yakima
District 2 Councilman Jason White committed acts of misfeasance and
malfeasance, and violated his oath of office by using his position to
undermine the State’s and Yakima County’s responses to the public health
emergency caused by the COVID-19 virus (coronavirus disease). The recall
2
In re Recall of Jason White, No. 98663-1
petition also alleges Councilmember White committed a recallable offense
by refusing to attend several city council meetings. A trial judge dismissed
the recall petition on several grounds, including Councilmember White’s
right to criticize other elected officials’ actions and the petition’s failure to
specifically identify the standard, law, or rule that Councilmember White
allegedly violated. Verbatim Report of Proceedings (VRP) at 61-67. On
August 6, 2020 we affirmed the trial court’s dismissal by order with opinion
to follow. We now explain that order.
FACTS
Washington State is in the middle of a COVID-19 pandemic. This
spring, the governor and both the county and city of Yakima declared a state
of emergency by proclamation and order. In his “Stay Home – Stay
Healthy” order, the governor directed people to stay home except for limited
activities. Proclamation by Governor Jay Inslee, No. 20-25, at 3 (Wash.
Mar. 23, 2020),
https://www.governor.wa.gov/sites/default/files/proclamations/20-
25%20Coronovirus%20Stay%20Safe-
Stay%20Healthy%20(tmp)%20(002).pdf [https://perma.cc/PJ48-WAEY].
Both the city and the county of Yakima have also responded with emergency
measures. See Mayoral Proclamation of Civil Emergency and Order
3
In re Recall of Jason White, No. 98663-1
(Mar.12, 2020); Yakima City Council Resolution No. R-2020-025 (both
available at http://mrsc.org/getmedia/e5faad8a-0608-4f24-84f8-
a4276bc2301b/y33coronaep.pdf.aspx [https://perma.cc/5PNZ-42L8]).
Councilmember White is skeptical about the response to COVID-19
by our state and local governments. In a series of Facebook posts,
Councilmember White encouraged his friends and followers to violate the
governor’s Stay Home – Stay Healthy proclamation. Illustratively,
Councilmember White posted:
Only avoid getting out if you are sick.. and most American’s are
extremely unhealthy and sick. For the rest of us with healthy immune
systems and that keep them that way, this won’t effect us, just like all
the other viruses in the environment.
I spend my entire day in and out of grocery stores. Be healthy and
wise to what is actually going on. The CDC and WHO are just the feel
good branch of big pharma and Bill Gates and friends that want
mandatory immunizations.
Clerk’s Papers (CP) at 21 (errors in the original).
Similar Facebook posts were included in the recall petition material.
For example, when Councilmember White reposted an article from
YakTriNews.com headlined “Face coverings required in Yakima County
starting June 3,” he titled his post, “I will not comply!” CP at 128.
Yakima’s mayor, Patricia Byers, described White’s comments as “ʻreckless,
frightening, and potentially harmful.’” CP at 12. The next day,
4
In re Recall of Jason White, No. 98663-1
Councilmember White announced he would no longer attend council
meetings in protest. The remaining councilmembers voted unanimously to
censure White. The record suggests Councilmember White resumed
attending council meetings not long after.
Based on these Facebook posts and media reports on Councilmember
White’s apparent contempt for COVID-19 public health orders, David
Briggs filed this recall petition. It appears to be largely modeled on a similar
recall petition filed against Snohomish County Sheriff Adam Fortney, In re
Pet. for Recall of Adam Fortney, No. 98683-5, alleging, among other things,
that Sheriff Fortney improperly refused to enforce the governor’s COVID-19
emergency proclamation. Most relevantly, the White recall petition alleged
that
Mr. White’s conduct in interfering with State, City, emergency
management, public health, and hospital officials in their efforts to
protect the public during a worldwide pandemic constitutes
malfeasance, misfeasance, and violation of oath of office under RCW
29A.56.110. Mr. White recommended that citizens disregard the State
of Washington’s emergency, mandatory, nondiscretionary stay-at-
home proclamation, as well as disregard Yakima County Public
Health’s discretionary stay-at-home ordinance. Violators of Governor
Inslee’s Emergency Proclamation No. 20-25 “Stay Home – Stay
Healthy” may be subject to criminal penalties in accordance with
RCW 43.06.220(5).
5
In re Recall of Jason White, No. 98663-1
To the extent any of his recommendations to defy a state and local
stay-at-home order were discretionary acts, they were manifestly
unreasonable.
CP at 8. The petition also alleged:
Mayor [Byers’] emergency proclamation enables the City of Yakima
to quickly employ resources to deal with the current COVID-19
emergency. Non-compliance carries a misdemeanor penalty. In the
Mayor’s own words, Councilman White’s statements encouraging
residents to violate the emergency efforts of the Council, state law,
and the public health officials orders were “reckless” and endangered
the rest of the community.
Mr. White’s wrongful conduct interferes with and interrupts the
attempts of the rest of the Council and health officials to get people to
stay home to prevent the spread of COVID-19.
Mr. White’s use of his position as a public official to urge residents to
disobey state and local emergency proclamations constitutes “the
performance of a duty in an improper manner.” Despite his oath of
office to uphold local and state law, he states that he is not in
compliance with the law, downplays the severity of the virus, and
incites others to ignore the will of the State, the Council, and the local
health district.
Additionally, a violation of oath of office includes “the neglect or
knowing failure by an elective public office to perform faithfully a
duty imposed by law.” RCW 29A.56.110(2). Mr. White has a duty to
faithfully obey emergency orders imposed by the State of Washington
and the City of Yakima. He also has a duty to ensure he is not
encouraging the public to disobey these directives. Unfortunately, Mr.
White has knowingly and intentionally failed to perform his duties as
a public official, putting the public at great risk during an
extraordinary global health crisis.
CP at 14-15.
6
In re Recall of Jason White, No. 98663-1
The Yakima County prosecuting attorney distilled five charges from
the petition. Charges one, three, and five are before this court. The first
charge alleges that White committed a recallable offense when he “used his
position as an elected official to wrongfully encourage citizens to disobey
state and local COVID-19 emergency proclamations that ordered everyone
to stay home unless they need to pursue an essential activity.” CP at 7. The
third charge, as amended below, alleges that White “ʻviolated his oath of
office pursuant to RCW 29A.56.110(1)(b) by encouraging the public to
disobey emergency orders imposed by the State of Washington and the
Yakima County Health District.’” CP at 138. The fifth charge alleges that
White “refused to attend Yakima City Council meetings which interfered
with the performance of his official duties, and unreasonably denied his
constituents representation at Council meetings.” CP at 7. 1
Councilmember White challenged the factual and legal sufficiency of
the charges and Briggs’ personal knowledge of the facts. Councilmember
White argued that the Facebook posts were on his personal social media
1
Charge two alleged Councilmember White had committed malfeasance by disobeying
state and local COVID-19 emergency proclamations, and charge four alleged he had
recklessly put the public at risk. Originally, charge three also alleged that
Councilmember White had personally violated the orders. According to his attorney,
Councilmember White works as a delivery person for Instacart, which would likely give
him a legally cognizable justification for frequently being in grocery stores. VRP at 30,
34-35. Charge three was revised at the hearing below to remove the allegation that White
had personally violated the orders.
7
In re Recall of Jason White, No. 98663-1
account, were not made in any official capacity, and did not amount to
inciting criminal activity. White also noted, correctly, that the petition did
not list a time and place that he or anyone he incited allegedly violated the
emergency orders. Finally, he argued that the petitioners had not offered
any authority for the proposition that missing some council meetings,
without more, is grounds for recall.
The trial court conducted a hearing by video conference. At the
hearing, the petitioners clarified that they were alleging Councilmember
White should be recalled because
he threatens the personal safety of the citizens of Yakima by telling
people to disobey the stay-at-home orders and he threatens the
personal safety of public employees such as fire, police, and EMT
drivers by downplaying the risks of the virus.
VRP at 15. The judge asked if under the petitioner’s theory, someone could
be recalled for advocating marijuana legalization. The petitioner responded
“Yes.” Id. at 19.
At the hearing, the judge dismissed charges one, two, and three on the
grounds that “[e]xpressive conduct that is not unlawful should not be the
basis of a recall petition, unless that unlawful expressive conduct is coupled
to a threat that constitutes a plausible threat not to perform the official’s
duties or to prevent others from carrying out their duties, or a threat to carry
8
In re Recall of Jason White, No. 98663-1
out unlawful conduct.” CP at 138. The judge concluded that “[n]one of the
conduct alleged was actually unlawful. It was either expressive conduct and
therefore lawful, or legal conduct compliant with the order.” CP at 139.
The judge also found Councilmember White had no duty to enforce the
emergency orders.
The judge dismissed charge 5 on the grounds that the petitioner had
cited no authority for the proposition that a Yakima City councilmember had
a duty to attend all city council meetings and that the petitioner had not
offered evidence that the city’s business had been interrupted because of
Councilmember White’s absence. Charge 4 was abandoned. The petitioner
appealed, assigning error to the judge’s rulings on the first, third, and fifth
charges.
ANALYSIS
Elected officials in Washington State may be recalled for
malfeasance, misfeasance, and violation of oath of office. WASH. CONST.
art. I, §§ 33-34; RCW 29A.56.110. For the purposes of recall:
(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
9
In re Recall of Jason White, No. 98663-1
(b) Additionally, “malfeasance” in office means the
commission of an unlawful act;
(2) “Violation of the oath of office” means the neglect or
knowing failure by an elective public officer to perform faithfully a
duty imposed by law.
RCW 29A.56.110.
Courts review recall petitions to ensure that the charges are factually
and legally sufficient. In re Recall of Wasson, 149 Wn.2d 787, 791, 72 P.3d
170 (2003) (citing Chandler, 103 Wn.2d at 274). To be factually sufficient,
the petition must allege facts that establish a “case of misfeasance,
malfeasance, or violation of the oath of office.” Id. (citing Cole v. Webster,
103 Wn.2d 280, 285, 692 P.2d 799 (1984)). “Although there is no
requirement that the petitioner have firsthand knowledge of the facts, he or
she must have some knowledge of the facts underlying the charges.” Id.(citing In re Recall of Ackerson, 143 Wn.2d 366, 372, 20 P.3d 930 (2001)).
Courts do not evaluate the truthfulness of the charges. Id. at 792 (citing
Teaford v. Howard, 104 Wn.2d 580, 586, 707 P.2d 1327 (1985)). Instead,
courts decide whether, presuming they are true, the charges on their face
support the conclusion that the officer abused his or her position. Id. (citing
Teaford, 104 Wn.2d at 586). 2
2
While not presented by these facts, we stress that the “discretionary acts of a public
official are not a basis for recall insofar as those acts are an appropriate exercise of
10
In re Recall of Jason White, No. 98663-1
To be legally sufficient, “the charge must define substantial conduct
clearly amounting to misfeasance, malfeasance or a violation of the oath of
office.” Id. at 791 (citing In re recall of Anderson, 131 Wn.2d 92, 95, 929
P.2d 410 (1997)). If there is a legal justification for the challenged action,
the charge is not sufficient. Id. at 791-92 (citing In re Recall of Wade, 115
Wn.2d 544, 549, 799 P.2d 1179 (1990)). Most importantly for this case,
given the allegations, the petitioner bears the burden of identifying the
“‘standard, law, or rule that would make the officer’s conduct wrongful,
improper, or unlawful.’” Inslee, 194 Wn.2d at 568 (internal quotation marks
omitted) (quoting Pepper, 189 Wn.2d at 554-55). We review the trial
court’s decision de novo. Teaford, 104 Wn.2d at 590 (citing Claussen v.
Peddycord, 69 Wn.2d 224, 226, 417 P.2d 953 (1966)).
1. FIRST CHARGE. This charge alleges that Councilmember White
“used his position as an elected official to wrongfully encourage citizens to
disobey state and local COVID-19 emergency proclamations that ordered
everyone to stay home unless they need to pursue an essential activity.” CP
at 7. The trial judge found this factually and legally insufficient. We agree.
discretion by the official in the performance of his or her duties.” Cole, 103 Wn.2d at283 (citing Chandler, 103 Wn.2d at 274). In rare cases, an elected official’s abuse of
discretion may satisfy the threshold requirements for recall. See id. at 284-85 (citing
Wilson v. Bd. of Governors, 90 Wn.2d 649, 656, 585 P.2d 136 (1978)).
11
In re Recall of Jason White, No. 98663-1
The recall petitioner bears the burden of identifying “the ‘standard,
law, or rule that would make the officer’s conduct wrongful, improper, or
unlawful.’” Inslee, 194 Wn.2d at 568 (internal quotation marks omitted)
(quoting Pepper, 189 Wn.2d at 554-55). The petitioner argues that
Governor Inslee’s “Stay Home – Stay Healthy” proclamation has been
upheld by the federal courts. Appellant David Briggs’ Opening Br. at 46
(citing Slidewaters LLC v. Wash. State Dep’t of Labor & Indus., No. 2:20-
CV-0210-TOR, 2020 WL 3130295, at *3 (E.D. Wash. June 12, 2020)).3 But
beyond the bare assertion that Councilmember White had a duty to uphold
the law and not interfere with other public officials’ executions of their
duties, no standard, law, or rule he allegedly violated has been identified.
Nothing in the governor’s “Stay Home – Stay Healthy” proclamation
demands the allegiance of local legislators, and such a requirement would
raise immediate constitutional concerns. See Proclamation by Governor Jay
Inslee, No. 20-25 (Wash. Mar. 23, 2020) [https://perma.cc/PJ48-WAEY].
Councilmember White is a member of the city council. Under the
Yakima City Charter, the council is the city’s legislative branch. Yakima
3
Slidewaters considered a later iteration of the governor’s COVID-19 emergency
proclamations, the “Transition from ‘Stay Home – Stay Healthy’ to ‘Safe Start – Stay
Healthy’ County-By-County Phased Reopening” proclamation. Slidewaters, 2020 WL
3130295, at *2 (citing Proclamation by Governor Jay Inslee, No. 20-25.4 (May 31, 2020)
[https://perma.cc/4HY6-S2CM]).
12
In re Recall of Jason White, No. 98663-1
City Charter, art. I, section 2. In our system of divided government,
legislators do not have a general duty to enforce public health orders or to
abstain from criticizing the actions of other public officials. 4 See generally
Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 506, 198 P.3d 1021(2009); State ex rel. Hartley v. Clausen, 146 Wash. 588, 592, 264 P. 403(1928); WASH. CONST. art. XI, § 11 (powers of municipal governments to
make and enforce regulations within their limits). 5 The trial judge properly
dismissed this charge.
2. THIRD CHARGE. As amended at the hearing, this charge alleged
Councilmember White “violated his oath of office pursuant to RCW
29A.56.110(1)(b) by encouraging the public to disobey emergency orders
imposed by the State of Washington and the Yakima County Health
District.” CP at 138. The trial judge found this factually and legally
insufficient. We agree.
4
In our system of divided government, the executive branch, not the legislative, is
responsible for enforcing the law. E.g., WASH. CONST. art. III, § 5; RCW 36.28.010;
Cougar Bus. Owners Ass’n v. State, 97 Wn.2d 466, 472, 647 P.2d 481 (1982) abrogated
on other grounds by Chong Yim v. City of Seattle, 194 Wn.2d 682, 451 P.3d 694 (2019).
Executive officers do have some measure of constitutionally protected discretion in how
they carry out that responsibility. E.g., State v. Rice, 174 Wn.2d 884, 889, 279 P.3d 849(2012); In re Impoundment of Chevrolet Truck, 148 Wn.2d 145, 149, 60 P.3d 53 (2002).
5
Given our disposition, we need not decide whether Councilmember White’s statements
were privileged under article II, section 17 of the state constitution or whether he was
acting in his official capacity by posting the statements on a personal Facebook page that
was allegedly also used for city business.
13
In re Recall of Jason White, No. 98663-1
For purposes of recall, “‘Violation of the oath of office’ means the
neglect or knowing failure by an elective public officer to perform faithfully
a duty imposed by law.” RCW 29A.56.110(2). But as with the first charge,
the petitioner has not identified any specific “‘standard, law, or rule that
would make the officer’s conduct wrongful, improper, or unlawful.’” Inslee,
194 Wn.2d at 568 (internal quotation marks omitted) (quoting Pepper, 189
Wn.2d at 554-55).
The petitioner contends the charge is factually and legally sufficient
because under his sworn oath, Councilmember White had an obligation to
uphold the law. According to the recall petition, the oath Councilmember
White took would have said:
I, __, do solemnly swear that I will support the Constitution of the
United States and the Constitution and Laws of the State of
Washington, and the Charter and Ordinances of the City of Yakima. I
will faithfully and impartially discharge and perform the duties of the
office of Council Member of the City of Yakima, Washington,
according to the best of my ability. SO HELP ME GOD. (City of
Yakima Council Oath of Office).
CP at 10-11. While the governor’s Stay Home – Stay Healthy order has the
force of law, Councilmember White’s oath-bound duty to support the law
cannot reasonably be construed within our system of divided government as
an obligation not to criticize the law. Accordingly, the trial court did not err
in dismissing this charge.
14
In re Recall of Jason White, No. 98663-1
3. FIFTH CHARGE. This charge alleges that Councilmember White
“refused to attend Yakima City Council meetings which interfered with the
performance of his official duties, and unreasonably denied his constituents
representation at Council meetings.” CP at 7. The trial judge found this
factually and legally insufficient. We agree.
The failure to attend council meetings could be the basis for recall if it
prevented an official council meeting from occurring or, perhaps, had some
other ascertainable consequence for the city’s business. See Pepper, 189
Wn.2d at 559. But after considerable probing from the trial judge, the
petitioner was unable to identify any consequence of Councilmember
White’s failure to appear. Again, the petitioner bore the burden of
identifying “the ‘standard, law, or rule that would make the officer’s conduct
wrongful, improper, or unlawful.’” Inslee, 194 Wn.2d at 568 (internal
quotation marks omitted) (quoting Pepper, 189 Wn.2d at 554-55). None
have been articulated here.6 The trial court did not err in dismissing this
charge.
6
Given that we find the recall petition insufficient on these grounds, we do not consider
the petitioner’s other arguments.
15
In re Recall of Jason White, No. 98663-1
CONCLUSION
While Councilmember White’s statements may have been
scientifically inaccurate and intemperate, the petitioners have not shown
they are the basis for recall. Accordingly, we affirm the superior court’s
dismissal of the recall charges.
____________________________
González, J.
WE CONCUR:
_____________________________ ____________________________
Stephens, C.J. Gordon McCloud, J.
_____________________________ ____________________________
Johnson, J. Yu, J.
_____________________________ ____________________________
Madsen, J. Montoya-Lewis, J.
_____________________________ ____________________________
Owens, J. Whitener, J.
16