(dissenting) — I agree with the majority we cannot condone lying under oath by any witness, whether an ordinary citizen, Pierce County Auditor, a Justice of the Supreme Court, or President of the United States, but our task here is more limited than merely expressing our condemnation of lying under oath. Thus, we must discern here whether Cathy Pearsall-Stipek’s statements under oath constitute statutory misfeasance or malfeasance, subjecting her to recall pursuant to article I, sections 33 and 34 (amendment 8), of the Washington Constitution and RCW 29.82.010.
I concur in the majority’s disposition of Charge 2 against Pearsall-Stipek, relating to her conduct during the 1997 statewide referendum. However, I disagree with the majority’s treatment of Charge 1 against Pearsall-Stipek, which relates to Pearsall-Stipek’s misrepresentation of her educational background.
The majority creates a rule for the recall of elected officials that is vastly more encompassing than the Legislature could have possibly intended or that comports with ordinary common sense. The majority holds malfeasance in office, sufficient to subject an elected official to a recall election, can result from any unlawful act, regardless of whether the unlawful act affected, interrupted, or interfered with the performance of official duties. In this case, the unlawful act was false swearing, serious business indeed. But there is nothing in the majority’s approach to prevent the Dale Washams of the world from bringing a *789recall action against an elected official for committing any traffic infraction (an unlawful act); for expectorating on a bus, see RCW 9.91.025(l)(d) (unlawful bus conduct); or for leading a dog on a bike path, see RCW 35.75.020 (use of bike paths for other purposes prohibited).
Some may consider the foregoing heinous infractions, rendering one unsuitable to hold public office, but most would not. Most, including the Legislature, would also think it foolish and wasteful to conduct a recall election for matters not connected to the performance of official duties. General considerations of character and morality are, of course, important themes for the electorate. But such matters should be decided in the ordinary electoral process, not in extraordinary recall elections generated by those with personal animus against an elected official. Government could hardly go on if we required an elected official to stand for a recall election every time he or she committed a traffic infraction. Indeed, I served in the state senate in 1981 when a recall election completely disrupted the operation of that body.
Our task is to decide whether the false swearing that allegedly occurred in this case is prohibited activity described in the recall statute. The recall statute permits recall for misfeasance, malfeasance, or violation of the oath of office, and defines those terms:
(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 wilful neglect or failure by an elective public officer to perform faithfully a duty imposed by law.
RCW 29.82.010. The precise issue is whether the phrase “affects, interrupts, or interferes with the performance of *790official duty” applies to the phrase “commission of an unlawful act.” In other words, if the elected official commits an unlawful act, must that act affect, interrupt, or interfere with the performance of his or her official duty in order for a recall petition to lie. As noted above, the majority concludes it does not, that any unlawful act is enough to support a recall petition, whether or not the unlawful act related to official duties. Standard statutory construction demonstrates the majority’s conclusion cannot possibly be correct.
The majority attempts to construe the recall statute at pages 767-69 of its opinion. Absent from the majority’s discussion is reference to the first canon of statutory construction: “The primary goal in statutory interpretation is to ascertain and give effect to the intent of the Legislature.” National Elec. Contractors Ass’n, Cascade Chapter v. Riveland, 138 Wn.2d 9, 19, 978 P.2d 481 (1999).
In fact, legislative intent is so important we have held “a ‘fundamental guide to statutory construction is that the spirit or intention of the law prevails over the letter of the law.’ ” Janovich v. Herron, 91 Wn.2d 767, 772, 592 P.2d 1096 (1979) (quoting State v. Dan J. Evans Campaign Comm., 86 Wn.2d 503, 508, 546 P.2d 75 (1976)).
Interpreting the recall statute in a way that would carry out the intent of the Legislature presents an awkward problem for the majority. As Justice Johnson has ably demonstrated in his dissent, the common law history of recall in Washington has required a nexus between a wrongful or illegal act and performance of official duties. See Johnson dissent at 784-87. When the Legislature amended the recall statute in 1984,9 thereby codifying the common law,10 it copied the language of one of our cases, *791Danielson v. Faymonville, 72 Wn.2d 854, 859, 435 P.2d 963 (1967), overruled on other grounds by Cole v. Webster, 103 Wn.2d 280, 692 P.2d 799 (1984), where we said: “Misfeasance or malfeasance (often stated as maladministration, misconduct, official misconduct, nonfeasance, or misbehavior in office), have been held to be comprehensive terms and include any wrongful conduct that affects, interrupts, or interferes with the performance of official duty” (Emphasis added.) Our cases have held as much without interruption at least since 1939.
In State ex rel. Knabb v. Frater, 198 Wash. 675, 679, 89 P.2d 1046 (1939), we quoted with approval a nineteenth century treatise on public officers:
“Where the constitution or a statute authorizes a removal for official misconduct, or misfeasance, misconduct, or maladministration in office, or similar acts of misbehavior in office, the general rule is, that the officer can be removed only for acts or omissions relating to the performance of his official duties, not for those which affect his general moral character, or his conduct as a man of business, apart from his conduct as an officer. In such a case, as a learned judge has remarked, it is necessary to ‘separate the character of the man from the character of the officer.’ ”
(quoting Montgomery H. Throop, A Treatise on the Law Relating to Public Officers and Sureties in Official Bonds 363 (1892)). The learned judge to which Throop referred was Judge Underwood of the Kentucky Court of Appeals (before 1976, the Court of Appeals was the highest state court in Kentucky), speaking in 1829 in a case in which a court clerk was sought to be removed for embezzlement. Judge Underwood said:
I do not admit that it is necessary to attach to a clerk the turpitude of a criminal, to justify his removal from office. Avery honest man may make a very indifferent clerk, and a man despicable for his vices may make an excellent clerk. It is proper to separate the character of the man, from the character of the officer, and when that is done, it may readily be perceived that there might be great propriety in making a distinction *792between the rules for the trial of the man for crime, and those for the trial of the officer, for breaches of good behaviour in office. This court has no power to remove a clerk for crimes committed, so long as he discharges the duties of his office well, nor should it be induced to overlook breaches of good behaviour, because the officer is honest as a man, or acts from good motives.
Commonwealth v. Chambers, 24 Ky. (1 J.J.Marsh.) 108, 1829 WL 1166, at *28 (1829).
In Knabb, 198 Wash. at 678, we cited to another nineteenth century treatise to the same effect:
Where the removal is to be for official misconduct or for misfeasance or mal-administration in office, the misconduct which shall warrant a removal of the officer must be such as affects his performance of his duties as an officer and not such only as affect his character as a private individual.
Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers 290 (1890). We followed Knabb in State v. Miller, 32 Wn.2d 149, 152, 201 P.2d 136 (1948); State ex rel. Zempel v. Twitchell, 59 Wn.2d 419, 427, 367 P.2d 985 (1962); Danielson, 72 Wn.2d at 859; State ex rel. LaMon v. Westport, 73 Wn.2d 255, 259, 438 P.2d 200 (1968), overruled on other grounds by Cole, 103 Wn.2d 280; Bocek v. Bayley, 81 Wn.2d 831, 836, 505 P.2d 814 (1973), overruled on other grounds by Cole, 103 Wn.2d 280. By the time we held in Chandler the 1984 amendments to the recall statute codified the common law, the common law of Washington was unequivocal that acts of malfeasance sufficient to subject a public officer to recall must be connected with the performance of official duties. Thus, we have already given meaning to the recall statute by holding it codified the common law. The common law, i.e., our cases, is where we must turn to find the meaning of the statute. Unless, that is, we wish to overrule Chandler and hold the statutory amendments did not codify the common law, and we are now free to interpret the statute at our whimsy, free of 60 years of case law. The majority does just that, without explicitly overruling Chandler or explaining why we should just simply ignore our case law on recall elections.
*793We have spoken about new statutory enactments and their effect on the law:
“No statute enters a field which was before entirely unoccupied. It either affirms, modifies, or repeals some portion of the previously existing law. In order, therefore, to form a correct estimate of its scope and effect it is necessary to have a thorough understanding of the laws, both common and statutory, which heretofore were applicable to the same subject. Whether the statute affirms the rule of the common law on the same point, or whether it supplements it, supersedes it, or annuls it, the legislative enactment must be construed with reference to the common law; for in this way alone is it possible to reach a just appreciation of its purpose and effect. Again, the common law must be allowed to stand unaltered as far as is consistent with the reasonable interpretation of the new law.”
In re Tyler’s Estate, 140 Wash. 679, 689, 250 P. 456, 51 A.L.R. 1088 (1926) (quoting Perry v. Strawbridge, 209 Mo. 621, 637, 108 S.W. 641 (1908)). The more customary articulation of this principle is “a statute will not be construed in derogation of the common law unless the legislature has clearly expressed that purpose.” Staats v. Brown, 139 Wn.2d 757, 766, 991 P.2d 615 (2000). See also Carson v. Fine, 123 Wn.2d 206, 213, 867 P.2d 610 (1994).
The majority opinion construes the recall statute to be in derogation of the common law. But there is not a shred of legislative history indicating the Legislature intended to change Washington common law and disconnect malfeasance in office from the performance of official duty. Such a drastic change in long-standing common law would surely have been the subject of commentary in the bill report or in the statute itself. The intent of the Legislature in enacting the recall statute was to codify the common law, as we held in Chandler, not to stand it on its head. By construing the recall statute to apply to any unlawful act, the majority opinion mandates precisely the contrary intent of the Legislature.
Moreover, a key ingredient of the recall statute the majority fails to note or discuss is the statute’s structure. *794The sentence “Additionally, ‘malfeasance’ in office means the commission of an unlawful act” appears as a subparagraph of the first paragraph of the statute. RCW 29.82.010(l)(b). It does not appear as a sentence standing alone and of equal weight with the first paragraph. As a subparagraph, RCW 29.82.010(l)(b) is subject to the same modifiers that appear in the senior paragraph. That is, the phrase “that affects, interrupts, or interferes with the performance of official duty” must apply to whatever subheadings appear below it if we are to give any weight to the structure the Legislature gave the recall statute.11
I therefore agree with the statutory analysis of RCW 29.82.010 Justice Johnson undertakes in his dissent: a nexus between the alleged malfeasance and the performance of official duties is an essential touchstone to recalling a public officer.
I also part company with the majority when it finds Pearsall-Stipek may have committed malfeasance in office by conduct amounting to the crime of false swearing pursuant to RCW 9A.72.040. The majority errs when it determines the crime of false swearing in Washington can be committed in court or in other official proceedings.
The Legislature created the crimes of perjury in the first and second degree with materiality of the falsehood squarely in mind. A person commits first degree perjury when that person makes a “materially false statement” under oath in “any official proceeding.” Similarly, a person commits second degree perjury when that person makes a “materially false statement” when being examined under oath regarding an insurance contract or when such person acts with intent to mislead a public servant in the performance of his or her duty. A “materially false statement” means:
*795any false statement oral or written, regardless of its admissibility under the rules of evidence, which could have affected the course or outcome of the proceeding; whether a false statement is material shall be determined by the court as a matter of law[.]
RCW 9A.72.010(1). An “official proceeding” is one:
before any legislative, judicial, administrative, or other government agency or official authorized to hear evidence under oath, including any referee, hearing examiner, commissioner, notary, or other person taking testimony or depositions!.]
RCW 9A.72.010(4). Plainly, in each of these instances, the false statement under oath must materially affect the outcome of a proceeding. For example, a witness’s falsehood under oath must affect the outcome of the case to constitute perjury in the first degree. Similarly, a witness’s false statement to an insurance adjuster about a claim must affect the insurer’s decision about the existence or extent of coverage to constitute perjury in the second degree.
By contrast, the crime of false swearing makes no reference to any kind of official proceeding or specific statutory proceeding when it states:
A person is guilty of false swearing if he makes a false statement, which he knows to be false, under an oath required or authorized by law.
RCW 9A.72.040U).
Prior Washington case law has clearly held the crime of false swearing cannot be committed in an official proceeding. In State v. Wilson, 83 Wash. 419, 145 P. 455 (1915), a case arising under an earlier version of our criminal code, we held the crime of second degree perjury (the equivalent of false swearing now) was not a lesser included offense of first degree perjury. A similar reading of the penury and false swearing statutes appeared in State v. Jacobson, 74 Wn. App. 715, 726, 876 P.2d 916 (1994), where the Court of Appeals stated:
Jacobson also claims the court erred in refusing to give the *796lesser instruction on false swearing. “A person is guilty of false swearing if he makes a false statement, which he knows to be false, under an oath required or authorized by law.” RCW 9A.72.040(1). False swearing does not require the statement to have been made in an official proceeding. To give a lesser included instruction: (1) each element of the lesser offense must be a necessary element of the offense charged, and (2) the evidence in the case must support an inference that the lesser crime was committed. State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). The second prong has been interpreted as requiring that the evidence in the case must support an inference that only the lesser crime was committed. State v. Rodriguez, 48 Wn. App. 815, 818-19, 740 P.2d 904, review denied, 109 Wn.2d 1016 (1987).
Jacobson admits the evidence supports an inference that all of the elements of first degree perjury are met except the official proceeding element. Since the statement was made in an official proceeding, no rational trier of fact could conclude the evidence supported an inference that the lesser but not the greater offense was committed.
Thus, Pearsall-Stipek could not be guilty of perjury unless her false statements under oath in court-related proceedings were material. They were not. Likewise, she could not be guilty of false swearing if the alleged false statement under oath were in a judicial proceeding. As the false statements occurred in court, she could not be guilty of false swearing.
This conclusion makes sense. The Legislature could not have intended every misstatement under oath, including simply mistaken statements, however immaterial, to be punished as perjury. Similarly, the Legislature could hardly have intended every impeachment of a witness to be false swearing. The crime of false swearing appropriately applies to circumstances outside the courtroom, where a person violates his or her oath in signing a document.
I consider it remarkable the majority embarks on this fresh reading of the recall statute. Appellant Washam has not urged such a reading. While it is true no justice now sitting on the Court was sitting in 1984 when our predecessors held the 1984 amendments to the recall statute *797codified the common law set forth in our cases, and while it is equally true we are now in a new decade, new century, and new millenium, a decent respect for our usual rule of stare decisis requires some explanation of why we should throw away more than 60 years of decisions on recall elections without so much as a passing wave at what has gone before and why the policy embodied in our cases ought now to be different. In 1984, we said in Chandler: “We believe the [recent amendments to the recall statute] indicate a legislative intent to place limits on the recall right, i.e., to allow recall for cause yet free public officials from the harassment of recall elections grounded on frivolous charges or mere insinuations.” Chandler, 103 Wn.2d at 274. What new policy revelations have the majority divined to compel its sweeping new interpretation of the recall statute?
Recall is not the Washington State equivalent of a parliamentary vote of no confidence. Nor is it the tool of political vendetta to be used by one party against officials of the other when someone calculates such a move may yield momentary political advantage. The appropriate remedy for citizens dissatisfied with an elected official’s conduct is to seek that official’s defeat at the ballot box in the next regular election.12
In this case, Pearsall-Stipek’s statements under oath do not reflect well on her. But they do not form the basis for recall under RCW 29.82.010.
Reconsideration denied October 18, 2000.
Laws op 1984, ch. 170, § 1.
We said in Chandler v. Otto, 103 Wn.2d 268, 272, 693 P.2d 71 (1984), the 1984 amendments to the recall statute, enacting the language now at bar, “codify the definitions of misfeasance, malfeasance, or violation of the oath of office in accordance with case law definitions . ...” The majority opinion overrules this holding and purports to define the statute as if we just woke up to a new day and were writing on a clean slate.
The majority ends its discussion of statutory construction this way: “Thus, we conclude that the only statutory and Constitutional requirement relating to an ‘unlawful act’ is that it be ‘in office.’ ” Majority at 769. Because the recall statute can apply only to people who are “in office,” the majority’s conclusion shows great mastery of the obvious.
Dale Washam is currently pursuing recall of Pearsall-Stipek and has made her defeat as Pierce County auditor something of a cottage industry. In re Recall of Pearsall-Stipek, 129 Wn.2d 399, 918 P.2d 493 (1996); In re Recall of Pearsall-Stipek, 136 Wn.2d 255, 961 P.2d 343 (1998). This is Mr. Washam’s fourth recall effort. Pearsall-Stipek, 136 Wn.2d at 259. Mr. Washam, who argued this case against Pearsall-Stipek, not only participated in the recall efforts but he was her opponent three times. He even attended depositions of Pearsall-Stipek in civil actions brought by others in state and federal court. The people of Arizona have wisely enacted the following provision: “After one recall petition and election, no further recall petition shall be filed against the same officer during the term for which he was elected unless the petitioners signing the petition first, at the time of application for the subsequent recall petition, pay into the public treasury from which such election expenses were paid all expenses of the preceding election.” Ariz. Rev. Stat. § 19-202(B).