Greco v. Parsons

Goodloe, J.

(dissenting) — I find the recall petition legally sufficient. I would affirm the trial court.

This petition meets the requirements of RCW 29.82, the recall statute. In compliance with RCW 29.82.010, the recall petition recited that Richard A. Greco, the Pierce County Auditor, violated his oath of office by failing to implement section 2 of ordinance 84-40, and gave a detailed description. Violation of the oath of office is statutorily defined as the "wilful neglect or failure by an elective public officer to perform faithfully a duty imposed by law." RCW 29.82-.010(2). Section 2 of ordinance 84-40 imposed upon Greco the duty "[p]rior to June 29, 1984, ... to prepare revisions to the boundaries of existing voting precincts so that each individual voter precinct in Pierce County contains between 250 and 400 registered voters, except as provided below: . . ." Clerk's Papers, at 68. Greco admittedly failed to implement the ordinance.

This court has stated that for a petition to be legally sufficient it "must state with specificity substantial conduct clearly amounting to misfeasance, malfeasance or violation of the oath of office." Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984); Teaford v. Howard, 104 Wn.2d 580, 584, 707 P.2d 1327 (1985); Estey v. Dempsey, 104 Wn.2d 597, 604, 707 P.2d 1338 (1985).

The majority today finds implicit in this definition of legally sufficient "the principle that if a legally cognizable justification for an official's conduct exists, that justification renders a recall petition legally insufficient." Majority opinion, at 671. This court has not previously recognized that justifications existed for actions that would otherwise have amounted to misfeasance, malfeasance or violation of the oath of office. What we have found was that the action or inaction itself did not amount to substantial conduct or the type of conduct required by our definition of legal sufficiency.

In Chandler v. Otto, supra at 274, the court found that an official could not be subject to recall "for appropriately exercising the discretion granted him or her by law." See also Estey v. Dempsey, 104 Wn.2d 597, 602, 707 P.2d 1338 (1985). No evidence was proffered that the discretion was exercised inappropriately, and the court found " [t]he exercise of judgment is not grounds for recall." (Citation omitted.) Chandler, at 275. The holding in Chandler was not a justification for charges which amounted to misfeasance, malfeasance or violation of the oath of office.

In Cole v. Webster, 103 Wn.2d 280, 283, 692 P.2d 799 (1984), the court's only inquiry as to legal sufficiency of the charges was to determine that charges reciting only that the public officials were "wasting taxes” were legally insufficient. The court found the decisions called for the exercise of judgment discussed in Chandler. Similarly, in Estey, the court was asked to review the sufficiency of charges regarding discretionary conduct. Unless an abuse of discretion was shown, the actions could not amount to misfeasance, malfeasance or violation of the oath of office. Abuse of discretion is not a justification; it is a necessary prerequisite.

The majority's new "justification" is " [wjhere an elected official fails to implement an ordinance or statute which is impossible to implement, such failure cannot serve as the basis of a recall petition." Majority opinion, at 672. I have great difficulty with this court deciding after the fact that an elected public official was justified in not complying with a duly enacted ordinance. The ordinance did not require Greco to "revise Pierce County precinct boundaries", majority opinion at 672, but did impose on Greco a duty "to prepare revisions". If compliance were truly unreasonable, Greco could have sought a declaratory judgment. This court should not determine whether an ordinance is unreasonable when we review the sufficiency of a recall petition. The court is not even supposed to determine the truth of charges, only their sufficiency. Cole, at 287-88. In my view, Greco's willful failure to comply or attempt to comply with ordinance 84-40 is a more than legally sufficient ground for recall.