In re Recall of Fortney

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE FEBRUARY 10, 2022
SUPREME COURT, STATE OF WASHINGTON
FEBRUARY 10, 2022
ERIN L. LENNON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
IN THE MATTER OF THE RECALL OF: )
) No. 99804-3
ADAM FORTNEY, )
) En Banc
SNOHOMISH COUNTY SHERIFF. )
) Filed: _______________
February 10, 2022
)
OWENS, J.—This case concerns a recall petition against Snohomish County
Sheriff Adam Fortney. The petitioner, Lori Shavlik, challenges the trial court’s
finding that her eight recall charges are either insufficient or barred under the doctrine
of res judicata. We affirm the trial court and award Sheriff Fortney costs on appeal.
FACTS AND PROCEDURAL HISTORY
Lori Shavlik seeks to recall Snohomish County Sheriff Adam Fortney. Her
petition is the fourth to recall Sheriff Fortney since he took office on January 1, 2020.
As the fourth attempt to recall Sheriff Fortney, the charges in Shavlik’s current
petition overlap with charges brought in previous recall petitions. According to
Sheriff Fortney, this overlap warrants barring some of the charges in the current
In re Recall of Fortney, No. 99804-3
petition. Because we must consider the charges brought in prior recall petitions, the
history of each recall attempt is discussed below.
A. Petition I
Shavlik filed her first recall petition on April 23, 2020. 3 Clerk’s Papers (CP)
at 422-37. That petition solely concerned Sheriff Fortney’s April 21, 2020, Facebook
post and subsequent press conference where he stated he would not criminally enforce
Governor Inslee’s Stay Home Order. 1 Id. In that petition, Shavlik alleged those
actions (a) violated the sheriff’s statutory duties under RCW 36.28.010 and 36.28.011,
(b) constituted wrongful conduct that affects, interrupts, or interferes with COVID-19
prevention efforts, (c) constituted performance of a duty in an improper manner, (d)
constituted neglect or a knowing failure by an elective public officer to perform
faithfully a duty imposed by law, (e) constituted an unlawful act insomuch as it
encourages citizens to violate the governor’s proclamation and other local health
directives in violation of RCW 43.20.050, RCW 70.05.120, and WAC 246-100-070,
(f) undermined public trust and puts others at risk, including health officials and
emergency management teams, and (g) resulted in private gain to Sheriff Fortney’s
private business interests as a result of Sheriff Fortney’s public office, in violation of
RCW 42.23.070. Id. at 439-40.
1
Proclamation by Governor Jay Inslee, No. 20-25 (Wash. Mar. 23, 2020),
https://www.governor.wa.gov/sites/default/files/proclamations/20-
25%20Coronovirus%20Stay%20Safe-Stay%Healthy%20tmp%20(002)pdf
[https://perma.cc/PJ48-WAEY]. See 4 CP at 523-27.
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The superior court found charges (a), (c), and (d) sufficient and allowed
Shavlik to gather signatures. Id. at 250-52. But Shavlik failed to file any signatures
as required by RCW 29A.56.150(2). 4 CP at 642. Accordingly, recall I ended, and
Sheriff Fortney remained in office.
B. Petition II
Shortly after Shavlik’s first petition, a separate group of voters known as “the
Committee to Recall Snohomish County Sheriff Adam Fortney” (Committee) filed a
recall petition against Sheriff Fortney containing five charges. 3 CP at 258-321. The
superior court found four of the charges sufficient. Id. at 351-52. Those four charges
read as follows:
1. Adam Fortney endangered the peace and safety of the community
and violated his statutory duties under RCW 36.28.010 and/or
36.28.011 and/or oath of office by declaring that he has not and will
not enforce Governor Inslee’s “Stay Home – Stay Healthy”
proclamation;
2. Adam Fortney endangered the peace and safety of the community
and violated his statutory duties under RCW 36.28.010 and/or
36.28.011 and/or oath of office by inciting the public to violate
Governor Inslee’s “Stay Home – Stay Healthy” proclamation;
3. Adam Fortney endangered the peace and safety of the community,
violated his statutory duties under RCW 36.28.010, and exercised
discretion in a manifestly unreasonable manner by rehiring three
deputy sheriffs previously discharged following investigation and
findings of misconduct; and
4. Adam Fortney violated his statutory duties under RCW 36.28.011
and/or 36.28.020 and exercised discretion in a manifestly
unreasonable manner by making a public statement on March 27,
2020 that absolved a deputy sheriff of asserted wrongdoing for
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tackling a black woman related to a jaywalking incident without
ensuring a proper investigation.
In re Recall of Fortney, 196 Wn.2d 766, 770, 478 P.3d 1061 (2021). On appeal, we
held the second and third charges were factually sufficient but reversed the trial court
on the fourth charge as legally and factually insufficient. Ultimately the Committee
failed to file any signatures, ending the second recall petition. 4 CP at 642.
C. Petition III
Nearly a year after filing her first petition, Shavlik filed her second petition to
recall Sheriff Fortney. 3 CP at 354-78. This petition was not subject to a sufficiency
hearing because the superior court dismissed the petition after Shavlik moved to
withdraw it.
D. Petition IV
On April 1, 2021, Shavlik filed the present recall petition containing eight
charges. 1 CP at 15-33; 2 CP at 216.
The superior court held a sufficiency hearing on May 11, 2021, and dismissed
petition IV. In dismissing the petition, the court found that charges 1(e) and 2 were
barred by res judicata because they were previously litigated in the first and second
recalls. Verbatim Report of Proceedings (VRP) at 34-36. The superior court found
the remaining charges either factually or legally insufficient. Id. at 36-43. In
response, Shavlik appealed directly to this court under RCW 29A.56.140.
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ANALYSIS
Shavlik raises three issues on appeal. First, she claims the trial court erred by
finding charges 3 through 8 insufficient. Second, she claims the trial court erred by
finding charges 1(e) and 2 barred under res judicata. Third, she claims the trial court
and the Snohomish County Prosecutor’s Office deprived her of a fair and impartial
hearing. We reject all three claims of error, affirm the trial court, and award Sheriff
Fortney costs on appeal.
A. All of Shavlik’s Charges Are Insufficient To Sustain the Recall Petition
Washington voters have a constitutional right to recall a nonjudicial elected
official who has “committed some act or acts of malfeasance or misfeasance while in
office, or who has violated his oath of office.” WASH. CONST. art. I, § 33; see also
RCW 29A.56.110. For the purposes of a recall petition:
(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 neglect or knowing
failure by an elective public officer to perform faithfully a duty imposed
by law.
RCW 29A.56.110.
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But a voter’s right to recall is not unlimited. Rather, “an elected official can be
recalled only for cause, meaning the petition must be factually and legally sufficient.”
In re Recall of Inslee, 194 Wn.2d 563, 567, 451 P.3d 305 (2019).
A recall petition is factually sufficient if the official’s alleged acts or omissions
establish a prima facie case of misfeasance, malfeasance, or a violation of the oath of
office. In re Recall of Wasson, 149 Wn.2d 787, 791, 72 P.3d 170 (2003). To
establish a prima facie case, the petition must provide specific details, including the
date, location, and nature of the allegations. Id.; see In re Recall of Boldt, 187 Wn.2d
542, 549, 386 P.3d 1104 (2017) (“In determining whether a petition is factually
sufficient, we assume the veracity of allegations made so long as they are reasonably
specific and detailed.”) And the petitioner must have some knowledge of the facts
underlying the charges. Wasson, 149 Wn.2d at 791. Such knowledge is not required
to be firsthand knowledge, but we have held that “generally, media articles do not
form a sufficient basis for the personal knowledge required by law.” In re Recall
Charges Against Davis, 164 Wn.2d 361, 368, 193 P.3d 98 (2008).
Meanwhile, a recall petition is legally sufficient if it “define[s] substantial
conduct amounting to misfeasance, malfeasance, or a violation of the oath of office.”
Id. at 371. To establish legal sufficiency, the petitioner must identify the “standard,
law, or rule that would make the officer’s conduct wrongful, improper, or unlawful.”
In re Recall of Ackerson, 143 Wn.2d 366, 377, 20 P.3d 930 (2001). Under this
standard, lawful discretionary acts are generally insufficient to support a recall. Id.6
In re Recall of Fortney, No. 99804-3
But an official’s discretionary act is legally sufficient if the elected official “exercised
discretion in a ‘manifestly unreasonable’ manner.” In re Recall of Burnham, 194
Wn.2d 68, 76, 448 P.3d 747 (2019) (quoting Greco v. Parsons, 105 Wn.2d 669, 672,
717 P.2d 1368 (1986)).
A superior court initially determines whether the charges are sufficient. In re
Recall of West, 155 Wn.2d 659, 663, 121 P.3d 1190 (2005); RCW 29A.56.140. In
determining sufficiency, a court does not assess the truth or falsity of a recall charge;
that role is the sole province of the voters. West, 155 Wn.2d at 662. Rather, the court
acts as a gatekeeper “to ensure that the recall process is not used to harass public
officials by subjecting them to frivolous or unsubstantiated charges.” Id.We review a recall petition’s sufficiency de novo. Burnham, 194 Wn.2d at 76.
If a charge is factually insufficient, we do not need to analyze whether it is legally
sufficient and vice versa. In re Recall of Bolt, 177 Wn.2d 168, 175, 298 P.3d 710(2013).
1. Charge 3: Private Prosecution
In charge 3, Shavlik alleges that Sheriff Fortney retaliated against her by
contracting with a private law firm to prosecute her for violating an antiharassment
order. In full, the charge reads:
3. On two occasions Sheriff Fortney contracted a private law firm,
Zachor & Thomas, to prosecute Lori Shavlik in South District and
Everett District Courts for violation of an anti-harassment order
after she brought a recall petition against the Sheriff to remove
him from office. Sheriff Fortney allowed Zachor & Thomas
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access to Sheriff’s Office files and provided thousands of dollars
in payments for the legal services. Two of the judges met with the
Prosecutor’s Office for an attorney-client privileged meeting.
These actions:
(a) constitute a use of public resources to influence a political action
in violation of RCW 42.17A.555 and WAC 390-32-010;
(b) are retaliatory in nature;
(c) constitute the practice of law in violation of RCW 36.28.110; and
(d) constitute malfeasance, misfeasance, and violation of the Sheriff’s
oath of office.
2 CP at 241-42; see 1 CP at 20-21.
While this charge lays out the legal standards to judge Sheriff Fortney’s
conduct against, the alleged facts do not make out a prima facie case of malfeasance,
misfeasance, or a violation of Sheriff Fortney’s oath of office.
Shavlik fails to allege that Sheriff Fortney used or authorized the use of any
sheriff’s office facilities to assist a campaign for election or oppose any ballot
proposition. Thus, there is no prima facie case to sustain charge 3(a). Similarly,
Shavlik does not allege that Sheriff Fortney appeared or practiced as an attorney in
any court. Thus, there is no prima facie case to sustain charge 3(c). Meanwhile,
charge 3(b) is insufficient as it does not identify a standard, law, or rule that Sheriff
Fortney violated.
Additionally, Shavlik fails to demonstrate she has personal knowledge that a
contract between Sheriff Fortney and Zachor & Thomas exists. See 1 CP at 20-21.
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For instance, her claim lacks any details about when the alleged contract was formed,
the parties to the contract, or its content.
The exhibits attached to the petition do not save Shavlik’s claim. While she
submitted a document entitled “Information Exchange Agreement,” that document
does not reveal a contract to prosecute Shavlik. Rather, the document describes the
parameters under which the sheriff’s office may “provide criminal justice information
to contracted prosecutors.” 1 CP at 75. Specifically, the document states the sheriff’s
office may share criminal history information and copies of police case reports with
contracted prosecutors. Id. Shavlik also submitted copies of checks and invoices
from Zachor & Thomas to the city of Sultan for prosecution services. 1 CP at 77-81.
But these documents neither mention Sheriff Fortney nor demonstrate a private
contract between him and Zachor & Thomas to prosecute Shavlik for retaliatory
purposes. Thus, there is no link between Sheriff Fortney and Zachor & Thomas on
the petition’s face to sustain any of the charges.
2. Charge 4: Dawson Place Board
In charge 4, Shavlik alleges that Sheriff Fortney improperly serves on the board
of the Dawson Place Child Advocacy Center. In full, the charge reads:
4. Sheriff Fortney serves on the board of Dawson Place Child
Advocacy Center. As a Dawson Place board member, he
participates in hiring Dawson Place employees, engages in
fundraising activities, and otherwise dedicates time and attention
to Dawson Place. These activities:
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(a) are in conflict with Sheriff Fortney’s duties as elected sheriff
under RCW 36.28.010;
(b) fraudulently direct government money to a private agency;
and
(c) constitute malfeasance, misfeasance, and violation of the
Sheriff’s oath of office.
2 CP at 242; see 1 CP at 21.
Like the prior charge, this charge lays out the legal standards against which to
judge the sheriff’s conduct, but the facts alleged in the petition do not establish a
prima facie case. Shavlik fails to establish how sitting on the Dawson Place board
conflicts with Sheriff Fortney’s duties. For example, she does not allege that Sheriff
Fortney failed to arrest any individual, execute a warrant, keep and preserve the peace,
or comply with any other duty listed in RCW 36.28.010. Thus, there is no prima facie
case to sustain charge 4(a).
Similarly, Shavlik fails to allege any facts that show Sheriff Fortney raised or
transferred funds to Dawson Place. Nor does she provide any details about how
Sheriff Fortney allegedly spends government time and resources to support a private
agency. Therefore, there is no prima facie case to sustain charge 4(b).
The petition fails to articulate what specific actions Sheriff Fortney took as a
board member that constitute misfeasance, malfeasance, or a violation of his oath of
office. Instead, the charge merely concludes that by serving on the Dawson Place
board, Sheriff Fortney committed an act of malfeasance, misfeasance, and violated his
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oath of office. This allegation is not “reasonably specific and detailed” to inform
voters of Sheriff Fortney’s alleged misconduct. See Boldt, 187 Wn.2d at 549.
Therefore, charge 4 is factually insufficient.
3. Charge 5: Delegating Authority to Interview Child Victims
In charge 5, Shavlik alleges Sheriff Fortney improperly delegated his authority
as sheriff to conduct child forensic interviews to Dawson Place. In full, the charge
reads:
5. Sheriff Fortney, in conjunction with the Prosecutor's Office, has
delegated his authority to conduct child forensic interviews to
Dawson Place Child Advocacy Center thereby allowing a secret
non-private agency to hide the actions of law enforcement from
the public. This delegation of authority is not allowed under law
and constitutes malfeasance, misfeasance, and violation of the
Sheriffs oath of office.
2 CP at 242; see 1 CP at 21.
The charge is factually insufficient because it lacks reasonable specificity.
Shavlik merely alleges Sheriff Fortney delegated his authority to interview child
victims. See 1 CP at 21. But the charge lacks any detail about how, when, or to
whom Sheriff Fortney delegated such authority. This vague and generic allegation
falls short of our requirement that allegations be reasonably specific and detailed.
4. Charge 6: Personal E-mails
In charge 6, Shavlik alleges Sheriff Fortney inappropriately accessed and sent
messages from his county e-mail account while on county time. In full, it reads:
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6. On April 30, 2020, using his County email account and while on
County time, Sheriff Fortney received and responded to an email
from Deputy David Fontenot regarding a campaign to recall
Sheriff Fortney from office. The email exchange solicited
campaign contributions, defamed the recall campaign petitioner
Lori Shavlik, and defamed the Prosecutor’s Office. These email
communications:
(a) are retaliatory in nature; and
(b) constitute malfeasance, misfeasance, and violation of the
Sheriff’s oath of office.
2 CP at 242-43; see 1 CP at 20.
This charge has two defects. First, Shavlik fails to identify a standard, law, or
rule that makes Sheriff Fortney’s act of accessing and sending e-mails unlawful.
Second, the alleged facts do not amount to substantial conduct. To be legally
sufficient, the petition must “define substantial conduct clearly amounting to
misfeasance, malfeasance, or a violation of the oath of office.” Davis, 164 Wn.2d at
371. Under this standard, we have found certain conduct to be insubstantial. See
Bolt, 177 Wn.2d at 174 (conduct was insubstantial where mayor occasionally parked a
town vehicle at a neighbor’s house when he stopped to have coffee); see also
Burnham, 194 Wn.2d at 81 (conduct was insubstantial when mayor used town-owned
lots to park his vehicles). Sheriff Fortney’s conduct is similar to the insubstantial
conduct in those cases. Shavlik alleges only that Sheriff Fortney responded to one
e-mail sent from Deputy David Fontenot on his county e-mail on county time. 1 CP
at 20, 58. In that e-mail, Sheriff Fortney thanked Deputy Fontenot for his support. Id.
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In re Recall of Fortney, No. 99804-3
at 58. Sheriff Fortney neither solicited contributions for his legal defense nor defamed
Shavlik. See id. This single alleged e-mail response to a coworker is not substantial
conduct that clearly amounts to misfeasance, malfeasance, or a violation of the oath
office. Thus, charge 6 is legally insufficient.
5. Charge 7: Organizing Rallies
In charge 7, Shavlik alleges Sheriff Fortney organized rallies where he did not
wear a mask and encouraged others to attend maskless in violation of Governor
Inslee’s orders. In full, the charge reads:
7. After being subject to recall campaigns, Sheriff Fortney organized
several political rallies to protest the recall campaigns. Sheriff
Fortney did not wear a mask at these rallies, which were attended
by hundreds of people many of whom were also maskless. Sheriff
Fortney also indicated that the rallies were organized by Sheriff's
Office employees at his direction. These actions:
(a) are reckless and taken in disregard of the law, including orders
of the Governor;
(b) encourage others to forego [sic] using a mask in violation of
the Governor’s orders and other laws;
(c) put others at risk;
(d) constitute lobbying and a use of County resources for a
political campaign;
(e) provided Sheriff Fortney with an unfair advantage against the
recall campaigns, which were limited to signature gathering under
extreme restrictions; and
(f) constitute malfeasance, misfeasance, and violation of the
Sheriff’s oath of office.
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2 CP at 243; see 1 CP at 21-23.
This charge is legally insufficient because Shavlik fails to cite any standard,
law, or rule that makes Sheriff Fortney’s alleged conduct wrongful, improper, or
unlawful. While Shavlik claims Sheriff Fortney violated the governor’s orders by
appearing at a large public gathering, she does not identify any specific order. At
best, charge 7(b)’s reference to “other laws” incorporates “Snohomish County Health
Officer’s Order No. 20-060,” which Shavlik cites in her petition. 1 CP at 45-49. That
order, issued March 17, 2020, prohibited public gatherings with more than 50 people
in Snohomish County. Id. But as the trial court noted at the sufficiency hearing,
Order No. 20-060 was rescinded on June 23, 2020, by Order No. 20-072. VRP at 41-
42. Because all three rallies occurred after June 23, Sheriff Fortney could not have
violated Order No. 20-060. And Shavlik does not cite any other state, county, or local
orders that Sheriff Fortney violated. See 1 CP at 15; 2 CP at 216. Without a legal
standard to measure Sheriff Fortney’s actions against, Shavlik cannot make out a
prima facie case. Accordingly, charge 7 is legally insufficient.
6. Charge 8: Unmasked Sheriff’s Office Employees
In charge 8, Shavlik alleges that Snohomish County Sheriff’s Office employees
refused to wear masks inside of the Snohomish County Courthouse. In full, the
charge reads:
8. On November 24, 2020 and January 11, 2021, the Sheriff’s Office
Marshalls [sic] assigned to the Superior Court refused to wear
masks and comply with orders of the Superior Court regarding
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masking. These actions constitute malfeasance, misfeasance, and
violation of the Sheriff’s oath of office.
2 CP at 243-44.
This charge is factually and legally insufficient. Shavlik does not allege in her
petition that Sheriff Fortney knew that any of his employees were not wearing masks,
let alone that he ordered or condoned their conduct. This missing piece is required to
make out a prima facie case. Indeed, an official cannot be recalled for a subordinate’s
act where the official did not direct or have knowledge of the act. In re Recall of
Morrisette, 110 Wn.2d 933, 936, 756 P.2d 1318 (1988). Further, Shavlik fails to
identify any standard, law, or rule that Sheriff Fortney violated even if he directed or
knew of his employees appearing maskless in court. Thus, charge 8 is insufficient.
B. Res Judicata Bars Charges 1 and 2
The trial court also dismissed charges 1(e) and 2 on the basis that they were
barred under res judicata. CP at 1-4. Shavlik claims this finding was an error.
Conversely, Sheriff Fortney argues that not only does res judicata bar relitigating
charges 1(e) and 2 but also charges 1(a), (b), (c), (d), (f), and (g). We review whether
res judicata applies de novo. Weaver v. City of Everett, 194 Wn.2d 464, 473, 450
P.3d 177 (2019).
Res judicata bars a successive recall petition when comparing two charges
shows that “the charges share identity of subject matter, cause of action, persons and
parties, and the quality of the persons for or against whom the claim is made.” In re
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Recall of Pearsall-Stipek, 129 Wn.2d 399, 402, 918 P.2d 493 (1996) (Pearsall-Stipek
I). This standard is meant to incorporate “all of the usual elements of res judicata.”
Id. (citing Rains v. State, 100 Wn.2d 660, 663, 674 P.2d 165 (1983)).
Under the third element, charges may share the “identity of parties” even when
parties are not exactly identical, provided they have “sufficiently identical interests.”
In re Pearsall-Stipek, 136 Wn.2d 255, 261, 961 P.2d 343 (1998) (Pearsall-Stipek II);
accord Snyder v. Munro, 106 Wn.2d 380, 383-84, 721 P.2d 962 (1986). Citizens
share the same interest in judicial resolution of the sufficiency of a recall petition:
“proceeding to the signature gathering stage of the recall process.” Pearsall-Stipek II,
136 Wn.2d at 262. Thus, we will not subject an elected official to answer the same
charges each time a different citizen is willing to put their name on a recall petition.
Id.Here, the last three elements of res judicata are satisfied. First, the cause of
action in recall I, recall II, and recall IV is the same: a petition to recall an elected
official. Second, the persons and parties are the exact same between recall I and recall
IV: Shavlik and Sheriff Fortney. Further, under Pearsall-Stipek II, Shavlik and the
Committee have sufficiently identical interests as voters to satisfy the identity of
persons element. Third, the charges share the same quality of the persons for or
against whom the claim is made: Shavlik in her role as a voter seeking to recall an
elected official and Sheriff Fortney in his role as an elected official subject to recall.
See Fortson-Kemmerer v. Allstate Ins. Co., 198 Wn. App. 387, 405-06, 393 P.3d 84916
In re Recall of Fortney, No. 99804-3
(2017) (quality of persons refers to the role the parties are assuming for the current
litigation).
The remaining question is whether the charges share the same subject matter.
To answer this question, we look to the charges as they appear in the ballot synopses
and the facts alleged in the petitions. See Pearsall-Stipek I, 129 Wn.2d at 403 (court
should look to legal and factual similarities to determine if the subject matter is
identical).
Sheriff Fortney first argues that res judicata bars relitigating charges 1(b), (e),
(f), and (g) because the court in recall I found those charges insufficient. He argues
that these charges are the same as charges 1(b), (e), (f), and (g) in recall I. See 3 CP at
439-40; 5 CP at 698-99.
As they appear in the ballot synopses, charges 1(b), (e), (f), and (g) are nearly
identical to those in recall I. Additionally, the facts Shavlik alleged in her petition in
recall IV are nearly identical to the facts in her petition in Recall I. See 1 CP at 15-33;
3 CP at 422-33. Accordingly, both the ballot synopses and petition materials show the
subject matter in charges 1(b), (e), (f), and (g) in the current petition is identical to the
charges in recall I that were found insufficient. Therefore, charges 1(b), (e), (f), and
(g) are barred under res judicata.
Next, Sheriff Fortney contends that res judicata bars charges 1(a), (c), and (d)
because they were found to be sufficient in recall I. See 3 CP at 439-40; 5 CP at 698-
99.
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As they appear in the ballot synopses, charges 1(a), (c), and (d) are identical to
those in recall I. Moreover, similar facts are alleged in both petitions with respect to
these charges. See 1 CP at 15-33; 3 CP at 422-33. Because the underlying facts and
legal theories are identical to the charges the superior court found sufficient in recall I,
charges 1(a), (c), and (d) are also barred under res judicata.
Shavlik counters that res judicata cannot bar charges that were previously
found sufficient. In effect, she argues only insufficient charges are barred under res
judicata. But nothing in our jurisprudence suggests res judicata applies only to certain
outcomes like dismissed claims. Rather, res judicata applies to all claims adjudicated
on the merits regardless of the outcome. This means that charges previously found
sufficient are barred from being relitigated under res judicata, which includes charges
(1)(a), (c), and (d) in this case.
Finally, charge 2 concerning the rehiring of Deputy Wallin is also barred under
res judicata because it was previously decided in recall II. See Fortney, 196 Wn.2d at
778-82. Shavlik effectively concedes res judicata applies to charge 2, stating in her
brief “the issue of Art Wallen [sic] has been adjudicated BOTH in Shavlik’s original
recall AND in the recall from other Snohomish County residence [sic].” Br. of
Appellant at 9-10. Accordingly, charge 2 is barred under res judicata.
C. Shavlik Received a Fair and Impartial Hearing
Shavlik argues she was denied a fair and impartial hearing on three bases.
First, she claims the Snohomish County prosecuting attorney created a conflict of
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interest by filing the ballot synopsis and representing Sheriff Fortney. Second, she
claims she was prejudiced by the prosecutor’s alleged late filing of her petition and
the exclusion of materials from the record. Third, Shavlik claims that all Snohomish
County judges are biased against her.
1. The Snohomish County Prosecuting Attorney Did Not Create a Conflict of
Interest
Shavlik claims the Snohomish County prosecuting attorney’s office created a
conflict of interest when deputy prosecutor Rebecca Guadamud submitted a ballot
synopsis of Shavlik’s recall charges while another deputy prosecutor, Lyndsey
Downs, defended Sheriff Fortney against the recall charges. We reject this claim.
By statute, a county prosecuting attorney has two roles in a recall case. The
first is ministerial: the prosecuting attorney “shall formulate a ballot synopsis of the
charge of not more than two hundred words.” RCW 29A.56.130(1). After
formulating the ballot synopsis, the prosecuting attorney must “certify and transmit
the charges and the ballot synopsis” to superior court and “petition the superior court
to approve the synopsis and to determine the sufficiency of the charges.” RCW
29A.56.130(2).
The prosecuting attorney’s second role is representative: to defend the elected
official who is the subject of the recall petition. The county prosecuting attorney has a
broad duty to advise county officers and represent the county in all criminal and civil
proceedings when the county is a party. RCW 36.27.020(2)-(4). The attorney
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general’s office has interpreted this provision to mean that “the prosecuting attorney
must defend all county officers when sued in the capacity as such county officers.”
1953 Op. Att’y Gen. No. 467, at 2. And in the context of this case, “the county may
in a proper case provide legal services for the sheriff and his deputies when they are
sued as the result of an official act.” 1964 Op. Att’y Gen. No. 124, at 4. The logic of
these attorney general opinions 2 extends to recall petitions. Therefore, the prosecuting
attorney may defend the county sheriff when the sheriff is subject to a recall petition
for his official acts.
Shavlik suggests these roles are at odds with each other. On the other hand,
Sheriff Fortney contends the prosecuting attorney’s dual roles do not inherently create
a conflict of interest. He analogizes the prosecutor’s roles to the dual roles of the
attorney general we considered in Washington Medical Disciplinary Board v.
Johnston, 99 Wn.2d 466, 663 P.2d 457 (1983). In that case, we held a physician was
not denied a fair and impartial hearing when the same assistant attorney general
served as the state medical disciplinary board’s legal advisor and prosecutor in
disciplinary proceedings. Id. at 480-81. While we found no actual prejudice on those
facts, we noted that “[w]hen the performance of any legal duties required of the
Attorney General presents actual conflicts of interest, a different assistant attorney
general can, and should, be assigned to handle those inconsistent functions.” Id. at
2
Attorney general opinions are generally entitled to great weight. Five Corners Family Farmers
v. State, 173 Wn.2d 296, 308, 268 P.3d 892 (2011).
20
In re Recall of Fortney, No. 99804-3
480. This principle applies in full force to the county prosecutor’s dual roles in recall
proceedings. As long as an effective screening mechanism exists in a public office, it
is acceptable for different attorneys within the same public office to represent
different clients with potentially conflicting interests. See State v. Stenger, 111 Wn.2d
516, 522, 760 P.2d 357 (1988) (entire prosecuting attorney’s office is not disqualified
from a case where one prosecutor is properly screened).
Under this standard, no conflict was created because separate prosecutors
handled the potentially inconsistent functions. Ms. Guadamud drafted and submitted
the ballot synopsis while Ms. Downs represented Sheriff Fortney at the sufficiency
hearing. Ms. Guadamud did not present any argument regarding the sufficiency of the
charges or otherwise advocate for Sheriff Fortney. See VRP at 24-25. And Shavlik
does not cite anything else in the record to suggest a conflict of interest exists.
Accordingly, the Snohomish County prosecuting attorney’s office did not create a
conflict of interest that deprived Shavlik of a fair and impartial hearing.
2. Shavlik Was Not Prejudiced by Any Late Filing
Shavlik next claims that Ms. Downs intentionally and in bad faith delayed
entering Shavlik’s petition into the record to be considered at the sufficiency hearing.
Br. of Appellant at 12-13. Further, she argues there were “missing documents relating
to the ‘pennies for Puppies’ private group that Adam Fortney was operating during
county time using county resources.” Id. at 13. Neither argument is persuasive in
light of the record.
21
In re Recall of Fortney, No. 99804-3
It appears that Ms. Guadamud, not Ms. Downs, filed county auditor Garth
Fell’s declaration on April 14, 2021, without Shavlik’s petition attached as an exhibit.
VRP at 29; Resp. Br. of Snohomish County Prosecuting Att’y at 6. To remedy this
error, Ms. Guadamud filed an amended declaration with Shavlik’s petition attached as
an exhibit on April 26, 2021. VRP at 29. Then, because the initial hearing judge was
disqualified and a medical continuance was granted, the sufficiency hearing did not
occur until May 11, 2021. This gave Shavlik more than two weeks to review the
materials submitted by Ms. Guadumud before appearing at the sufficiency hearing.
Despite having this ample time to review the record, she did not raise the issue of any
missing materials before the hearing. At the hearing, Shavlik referenced the “Pennies
for Puppies” business, Id. at 10-11, but she failed then, as she does now, to submit any
evidence of additional materials in her petition that the prosecutor’s office excluded
from the record. Therefore, we reject Shavlik’s claim that she was prejudiced by an
incomplete, “late” filing.
3. Any Judicial Bias Was Cured by Judge Cliff’s Appointment
Shavlik also claims that several Snohomish County judges are biased against
her and that this alleged bias deprived her of a fair and impartial hearing. She claims
Judge Appel, Judge Ellis, Judge Bui, and Judge Fair have connections to Dawson
Place, which is the subject matter of one of her charges against Sheriff Fortney. Br. of
Appellant at 13-16. Even if we take these allegations as true, they do not support the
conclusion that Shavlik was deprived of a fair and impartial hearing. If any judicial
22
In re Recall of Fortney, No. 99804-3
bias existed, it was cured when all Snohomish County judges recused themselves
from hearing Shavlik’s recall petition and the case was reassigned to Island County
Superior Court Judge Carolyn Cliff. 1 CP at 8.
D. Award of RAP 14.2 Costs
Finally, Sheriff Fortney requests costs under RAP 14.2 as the substantially
prevailing party on review. Because Shavlik’s allegations are legally and factually
insufficient to sustain recall charges, Sheriff Fortney is the substantially prevailing
party. As such, he is entitled to costs under RAP 14.2. Accordingly, we award
Sheriff Fortney costs on appeal, to be determined by the commissioner or clerk in
accordance with RAP 14.6.
CONCLUSION
Shavlik’s recall charges are either insufficient to proceed to voters or barred
under res judicata. Further, Shavlik was not deprived of a fair and impartial hearing
because there was no conflict of interest or judicial bias. We affirm the superior
court’s dismissal of the recall petition and award Sheriff Fortney costs on appeal.
23
In re Recall of Fortney, No. 99804-3
WE CONCUR:
24