In re Recall of Inslee

This opinion was
filed for record
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Susan L. Carlson
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CHIEF jusrice

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Recall of No. 96765-2

JAY INSLEE, Governor ofthe State of En Banc
Washington.
3 1 1
Filed
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MADSEN,J.—^Arthur West appeals from a Thurston County Superior Court

judgment finding the charges in his petition to recall Governor Jay Inslee to be legally

and factually insufficient to submit to voters. In his recall petition, West alleged the

governor was absent from Washington too frequently and failed to properly notify the

lieutenant governor of these absences, failed to declare homelessness a statewide

emergency, and improperly campaigned for a ballot initiative. The trial court held that

the charges were factually and legally insufficient. We affirm.

FACTS

On December 13, 2018, West filed a petition to recall Governor Inslee. The

Washington State Attorney General's Office properly prepared a ballot synopsis and
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petitioned for the Thurston County Superior Court to determine the sufficiency ofthe

charges.

The ballot synopsis read:

The charge that Jay Inslee, as Governor of Washington, committed
misfeasance, malfeasance, and/or violated his oath of office alleges:
1. That Governor Inslee abdicated his duties as Governor ofthe
State of Washington and created a vacancy in that office by
taking 32 trips outside of Washington as of August 2018 and by
frequently being absent from the State after that date;
2. That Governor Inslee maintains a residence on Bainbridge Island
and maintains books, papers, and public records of the Office of
Governor in Washington D.C. in violation of article III, section
24 of the Washington Constitution;
3. That Governor Inslee failed to ensure environmental, nuisance,
and criminal laws have been faithfully executed throughout the
State, including by the City of Olympia, and allowed the City of
Olympia to usurp the emergency powers of the Governor;
4. That Governor Inslee failed to use his executive powers to
address homelessness and failed to ensure the integrity and
continuity of government faced with a public health and safety
emergency;
5. That Governor Inslee improperly used state resources and the
authority of his office to campaign for an environmental
initiative.
Should Jay Inslee be recalled from office based on these charges?

Clerk's Papers(CP)at 38. The trial court approved the ballot synopsis and found each of

the charges to be insufficient to support a recall. The court also declined to correct the

ballot synopsis as requested by West. West then moved for reconsideration and filed a

notice of appeal.
No. 96765-2

ANALYSIS

Washington voters may recall any elected, nonjudicial public officer who "has

committed some act or acts of malfeasance or misfeasance while in office, or who has

violated his [or her] oath of office." WASH. CONST, art. I, § 33. The recall process is

governed by ROW 29A.56.110 through .140.

An elected official can be recalled only for cause, meaning the petition must be

factually and legally sufficient. Chandler v. Otto, 103 Wn.2d 268, 274,693 P.2d 71

(1984). Whether the charges are factually and legally sufficient is determined by the

superior court where the officer subject to recall resides. RCW 29A.56.130-.140. The

court must determine sufficiency from the face of the petition. In re Recall ofZufelt, 112

Wn.2d 906, 914, 774 P.2d 1223 (1989).

A recall '"charge, taken as a whole . . ., must be specific enough to give the

elected official meaningful notice of the particular conduct challenged and why it is

grounds for recall.'" In re Recall ofPepper, 189 Wn.2d 546, 553, 403 P.3d 839(2017)

(alteration in original)(quoting In re Recall ofBoldt, 187 Wn.2d 542, 549, 386 P.3d 1104

(2017)). In recall cases, courts do not consider the truth ofthe charges, only the

sufficiency. RCW 29A.56.140;In re Recall ofLindquist, 172 Wn.2d 120, 131-32, 258

P.3d9(2011).

This court reviews the sufficiency of a recall petition de novo. Teaford v.

Howard, 104 Wn.2d 580, 590, 707 P.2d 1327(1985). A charge is factually sufficient if
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the facts "establish a prima facie ease of misfeasance, malfeasance, or violation of the

oath of office" and are "stated in concise language and provide a detailed description" in

order to "enable the electorate and a challenged official to make informed decisions." In

re Recall ofWasson, 149 Wn.2d 787, 791, 72 P.3d 170(2003)(citing Cole v. Webster,

103 Wn.2d 280, 285, 692 P.2d 799(1984); Chandler, 103 Wn.2d at 274). The petitioner

must have some knowledge of the facts underlying the charges. In re Recall ofAckerson,

143 Wn.2d 366, 372, 20 P.3d 930(2001). Where the charge alleges the official violated

the law, the facts must show the official intended to do so. In re Recall of Wade, 115

Wn.2d 544, 549, 799 P.2d 1179(1990).

A charge is legally sufficient if it defines "substantial conduct clearly amounting

to misfeasance, malfeasance or a violation of the oath of office" and there is no legal

justification for the challenged conduct. Wasson, 149 Wn.2d at 791-92.

RCW 29A.56.110 defines malfeasance and misfeasance:

(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.

Lawful, discretionary acts are not a basis for recall. Chandler, 103 Wn.2d at 274.

The burden is on the petitioner to identify the "'standard, law, or rule that would make

the officer's conduct wrongful, improper, or unlawful.'" Pepper, 189 Wn.2d at 554-55
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No. 96765-2

(internal quotation marks omitted)(quoting In re Recall ofBolt, 111 Wn.2d 168, 181, 298

P.3d 710 (2013)).

A reviewing court must not consider the truthfulness ofthe charges but, instead,

must accept the allegations as true and determine whether the charges on their face

support the conclusion that the officer abused his or her position. Cole, 103 Wn.2d at

287; Teaford, 104 Wn.2d at 586.

Charge 1: frequent travel outside of Washington

This charge alleges that Governor Inslee's frequent out-of-state travels created a

vacancy in his office. At the hearing on the recall petition. West argued that Governor

Inslee also violated RCW 43.06.040 because he asked the secretary ofstate—not the

lieutenant governor—^to act as head executive during his absences. Verbatim Report of

Proceedings(VRP (oral argument)) at 12, 14. The trial court found this charge

insufficient and included West's additional allegation regarding the delegation of duties

to the secretary of state. Verbatim Report ofProceedings(VRP (ruling ofthe court)) at

5-6. We hold that charge 1 is legally insufficient.

RCW 43.06.040 provides that

[i]f the governor absents himself or herself from the state, he or she shall,
prior to his or her departure, notify the lieutenant governor of his or her
proposed absence, and during such absence the lieutenant governor shall
perform all the duties of the governor.
No. 96765-2

(Emphasis added.) West argued that .040 requires the lieutenant governor alone to act as

Washington's executive officer when the governor is absent. See VRP (oral argument) at

23-24; Appellant's Opening Br. at 28. But the statute does not support this reading;

indeed,.040 is silent on the very situation West objects to: what official may act as

governor when both the governor and lieutenant governor are absent.

Moreover,.040 requires the governor to notify the lieutenant governor of any

planned absences, and the record does not indicate that Governor Inslee failed to do so.

West submitted numerous letters from Governor Inslee to Secretary of State Kim Wyman

recognizing the notification requirement and asking the secretary to act as governor

because the lieutenant governor was unavailable. That these letters note the lieutenant

governor's unavailability indicates Governor Inslee provided notice as required by .040.

West fails to show the governor's conduct constitutes malfeasance, misfeasance, or

violation of his oath of office. RCW 29A.56.110(1).

Even assuming .040 allows only the lieutenant governor to act as governor, there

is no indication that Governor Inslee intended to commit an unlawful act when asking the

secretary of state to fill that role. Boldt, 187 Wn.2d at 549 (citing In re Recall ofTelford,

166 Wn.2d 148, 158, 206 P.3d 1248 (2009)). The governor's letters show that he was

aware of.040 and, because the lieutenant governor was unavailable, that he asked

Secretary Wyman to step in. These letters show the governor's intent to abide by .040,

not to violate it.
 No. 96765-2

The allegation on vacancy is similarly insufficient. West asserted that Governor

Inslee's frequent travel created a vacancy in the office, but West provides no legal

definition of"vacancy" or argument on what constitutes such a vacancy, e.g., how many

trips outside the state amount to a vacant office. Pepper, 189 Wn.2d at 554-55. The

State explains that RCW 42.12.010 determines when an elective office becomes vacant,

and travel is not included.' Resp. Br. of Jay Inslee at 12-13. This charge is insufficient.

Charge 2: improper residence and maintenance of official papers

In charge 2, the recall petition alleges that Governor Inslee improperly maintained

a residence outside the seat of government in Olympia, Washington, and maintained his

'RCW 42.12.010 provides that
[e]very elective office shall become vacant on the happening ofany ofthe following
events:
(1)The death ofthe incumbent;
(2)His or her resignation. A vacancy caused by resignation shall be deemed
to occur upon the effective date ofthe resignation;
(3)His or her removal;
(4)Except as provided in RCW... 3.50.057, his or her ceasing to be a
legally registered voter ofthe district, county, city, town, or other municipal or quasi
municipal corporation from which he or she shall have been elected or appointed,
including where applicable the council district, commissioner district, or ward from
which he or she shall have been elected or appointed;
(5)His or her conviction ofa felony, or ofany offense involving a violation
ofhis or her official oath;
(6)His or her refusal or neglect to take his or her oath of office, or to give or
renew his or her official bond, or to deposit such oath or bond within the time
prescribed by law;
(7)The decision ofa competent tribunal declaring void his or her election or
appointment; or
(8)Whenever ajudgment shall be obtained against that incumbent for breach
ofthe condition ofhis or her official bond.
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No. 96765-2

books and papers not in our state capital but in Washington, D.C., violating article III,

section 24 of our constitution.^ We hold that charge 2 is factually insufficient.

West admitted at the sufficiency hearing that the residence issue "is not the

strongest claim" and that he had no "personal knowledge as to where the Governor is at

each point of the day. That one, I think, could properly be removed." VRP (oral

argument) at 11. The State asserts that West abandoned this claim (Resp. Br. of Jay

Inslee at 14-15), but because West equivocated on the point at trial and argued it in his

briefing here, we address it below. Appellant's Resp. Br. at 15-18.

First, the residency charge is factually insufficient because it does not specifically

identify conduct or behavior indicating Governor Inslee intended to reside outside

Olympia. A recall petition's charges must provide a detailed description of facts

establishing a prima facie case of misfeasance, malfeasance, or violation of the oath of

office. Wasson, 149 Wn.2d at 791. West made general allegations that Governor Inslee

has a residence on Bainbridge Island and an office in Washington, D.C. See Appellant's

Opening Br. at 39-40; see also In re Recall ofKelley, 185 Wn.2d 158, 165, 369 P.3d 494

(2016)(finding a charge that an official did not reside in Olympia factually insufficient

for failing to provide proof of residency violations).

^ Article 111, section 24 states that
[t]he govemor, secretary of state, treasurer, auditor, superintendent of public
instruction, commissioner of public lands and attomey general shall severally keep
the public records, books and papers relating to their respective offices, at the seat of
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No. 96765-2

Second, West presents no evidence that the governor intended to violate article III,

section 24. While some inferences are permissible in a recall petition, on the whole, the

facts must indicate an intention to violate the law. Telford, 166 Wn.2d at 158; see also In

re Recall ofCarkeek, 156 Wn.2d 469, 128 P.3d 1231 (2006). Maintaining an office

outside the state and spending time away from Olympia, without more, does not allege

misfeasance, malfeasanee, or violation of an oath of office.

Charges 3 and 4: failure to declare homelessness a statewide emergencv

Charges 3 and 4 allege that the governor had a duty to declare a state of

emergency to address homelessness. West argues that because Governor Inslee must

ensure state environmental, criminal, and nuisance laws are faithfully executed, it was

manifestly unreasonable not to declare an emergency. Appellant's Opening Br. at 17-19.

Moreover, West contends, the governor's failure to do so allowed local governments to

usurp state power. Id. at 23-27, 29-38.

We have held that '"discretionary acts of a public official are not a basis for recall

insofar as those acts are an appropriate exercise of discretion by the official in the

performance of his or her duties.'" Bolt, 111 Wn.2d at 174 (quoting Cole, 103 Wn.2d at

283). An offieial may be recalled for execution of discretionary acts only if the execution

of that discretion is done "'in a manifestly unreasonable manner.'" Id. (quoting In re

government, at which place also the governor, secretary of state, treasurer and
auditor shall reside.
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No. 96765-2

Recall ofShipman, 125 Wn.2d 683,685, 886 P.2d 1127(1995)). A clear abuse of

discretion may be shown by demonstrating discretion was exercised for untenable

grounds or for untenable reasons. Cole, 103 Wn.2d at 284-85 (citing Wilson v. Bd. of

Governors, 90 Wn.2d 649,656, 585 P.2d 136 (1978)).

Declaring an emergency is a discretionary act. RCW 43.06.010(12) states:

The governor may, after finding that a public disorder, disaster, energy
emergency, or riot exists within this state or any part thereof which affects
life, health, property, or the public peace, proclaim a state of emergency in
the area affected.

(Emphasis added.) Governor Inslee is not required to declare an emergency, and West

does not articulate why the choice not to execute this discretionary act was manifestly

unreasonable. It is apparent that cities and counties in Washington State are facing a

homelessness crisis; but this fact alone does not make the governor's inaction in

declaring an emergency manifestly unreasonable.

Accompanying his statement of charges. West provided letters from local

governments asking the governor to declare an emergency, and he also provides

legislative measures recognizing the problem of homelessness. E.g., CP at 19-21

(Olympia city ordinance related to homelessness), 36-37 (letter from the mayor of

Bellingham asking Governor Inslee to declare a state of emergency around

homelessness). These materials do not establish or show the existence of a duty. They

also fail to show that Governor Inslee's inaction is manifestly unreasonable.

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No. 96765-2

West's general allegation that the existence of a crisis requires an emergency

declaration is not sufficiently detailed to make a prima facie case of misfeasance,

malfeasance, or violation of the oath of office. Wasson, 149 Wn.2d at 791.

The allegation that local governments usurped state power cannot be the basis of

recall. We have said that "[tjhere is no authority for the proposition that a public official

may be recalled for the past conduct of a wholly separate governmental agency." In re

Recall ofReed, 156 Wn.2d 53, 58, 124 P.3d 279(2005). Similarly, this court can find no

authority, nor does West provide any, for the position that an official may be recalled for

the past conduct of a separate governmental entity—in this case, a local government. The

trial court correctly found that charges 3 and 4 were factually and legally insufficient.

Charge 5: improper campaign activities

Finally, charge 5 alleges that Governor Inslee improperly campaigned for passage

of Initiative 1631 (1-1631), relating to pollution. At the hearing on his petition, West

asserted that the governor could legally make "neutral statements concerning the support

of[his] office for the initiative," VRP (oral argument) at 5, but appearing at media events

and in campaign commercials was improper. Id. The trial court found that an elected

official can use only de minimis state resources when campaigning for a legislative

measure and that there was no evidence presented that Governor Inslee intended to

violate campaign finance laws. VRP (ruling of the court) at 8. Thus, the court found this

charge to be factually insufficient. Id. at 9. We agree.

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No. 96765-2

Here, West contends that the governor engaged in an improper relationship with

every voter in Washington by making personal appearances and attending media events

promoting 1-1631. Appellant's Opening Br. at 16. West submitted communications from

the governor's policy staff concerning 1-1631, which show staff providing Governor

Inslee with materials for a campaign event. West also provided the agenda for a meeting

of the Affiliated Tribes of Northwest Indians General Assembly, in which Governor

Inslee expressed his support for the carbon pricing initiative, I-1631.

State officers are prohibited from using the facilities of an agency to promote or

oppose a ballot proposition. RCW 42.52.180(1). But an official may comment on a

proposition, provided there is no actual, measurable expenditure of public funds. RCW

42.52.180(2)(b). State law allows "[d]e minimis use of public facilities by statewide

elected officials . . . incidental to the preparation or delivery of permissible

communications, including written and verbal communications initiated by them of their

views of ballot propositions." RCW 42.52.180(2)(e).

West's materials certainly show that the governor supported 1-1631. But these

materials do not show any conduct or behavior from the governor in violation of our

campaign finance laws. Indeed, the above materials appear to demonstrate that the

governor's actions are de minimis use of state resources in accordance with RCW

42.52.180(2). Even assuming the governor's conduct was not de minimis or somehow

violated campaign finance laws. West fails to show the governor intended to violate those
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laws. Telford, 166 Wn.2d at 158. Attending events, shaking voters' hands, and

expressing wholehearted support for legislation does not show the governor intended to

violate the law. Some inference is allowed in recall petitions, but West's evidence

requires more than inference—it requires acceptance of his conjecture that the governor

knew what he was doing was unlawful. Conjecture is insufficient to support this charge.

In re Recall ofDeBruyn, 112 Wn.2d 924, 930, 774 P.2d 1196(1989)(conjectural

knowledge is insufficient).

CONCLUSION

None ofthe recall charges are legally or factually sufficient.^ West's petition may

state reasons to disagree with Governor Inslee, but they are not proper reasons to support

a recall. Cole, 103 Wn.2d at 286 (recall based purely on political disagreement does not

support a recall petition); In re Recall ofSandhaus, 134 Wn.2d 662, 670, 953 P.2d 82

(1998)("whether [the official subject to recall] is doing a satisfactory job of managing his

office is a quintessential political issue which is properly brought before the voters at a

regular election"). We therefore affirm the trial court.

^ West also contends the attomey general's ballot synopsis was inadequate and the trial judge erred
by failing to correct it. The trial judge may correct any ballot synopsis it deems "inadequate."
RCW 29A.56.140. Judge Lanese made no changes to the synopsis. We decline to address West's
challenge to the synopsis because the recall petition charges are insufficient and should not appear
on a ballot.
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No. 96765-2

WE CONCUR:

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