In re the Recall of West

¶23 J.M. Johnson, J.

(concurring) — Constitutional rights do not submit to red tape. Accordingly, I join the opinion of the court but write separately to underscore the nature and importance of the constitutional right to recall under article I, section 33 of the Washington Constitution. The adjacent constitutional provision authorizes statutes only to “facilitate its operation.” Const, art. I, § 34. Thus, any laws affecting recall must be construed by courts to assure the free exercise of this right. That is the (belated) result here,5 so I concur.

f 24 The right to recall finds its source in the sovereignty of the people, first expressed at the beginning of our constitution in article I, acknowledging the source of all political power:

All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.

Const, art. I, § 1. The foregoing section states, “the fundamental premise as to the source of political power in Washington.” Wash. State Farm Bureau Fed’n v. Reed, 154 Wn.2d 668, 684-85, 115 P.3d 301 (2005) (J.M. Johnson, J., dissenting). It therefore serves as the lens through which we view all other article I rights. This necessarily includes the express provision of a right to recall elected officials which was ratified in 1912. The Eighth Amendment, now article I, section 33, in pertinent part provides:

Every elective public officer of the state of Washington expect [except] judges of courts of record is subject to recall and discharge by the legal voters of the state, or of the political subdivision of the state, from which he was elected whenever a *670petition demanding his recall, reciting that such officer has committed some act or acts of malfeasance or misfeasance while in office, or who has violated his oath of office, stating the matters complained of, signed by the percentages of the qualified electors thereof....

(Alteration in original.) The right of recall is an additional remedy provided by the people to further control public officers they have elected. Gibson v. Campbell, 136 Wash. 467, 479, 241 P. 21 (1925) (Holcomb, J., dissenting). It serves as a safeguard against abuse of power by elected officials, further ensuring their accountability to the people.

¶25 As an article I right in the Declaration of Rights of our state’s constitution, the right to recall is an individual right on par with the right to petition and assemble (section 4) and freedom of speech (section 5) of the same article I. It is well established that none of these other article I rights are subject to prior restraint by government or by government officials, and this same protection must be given the right to recall.6

¶26 In my view, this means that prior restraints upon the exercise of the right to recall are presumptively unconstitutional. Since statutes of the legislature relating to recall are constitutionally allowed only to “facilitate its operation,” such statutes cannot be construed to prohibit or *671impede exercise of this right.7 Delay — even in the courts— could work such an impediment.

f 27 As article I, section 34 provides, in pertinent part:

The legislature shall pass the necessary laws to carry out the provisions of section thirty-three (33) of this article, and to facilitate its operation and effect without delay ....

Any legislation at cross-purposes with the facilitation of the right would be constitutionally void. The corollary is that a court should construe and implement any statutory scheme to avoid this effect.

¶28 In this respect, section 34’s provision requiring legislation to “facilitate” the right to recall is similar to article II’s provision requiring legislation to “facilitate” the respective rights of initiative and referendum. The article II provision was included through the Seventh Amendment, which established these rights of initiative and referendum. In the initiative context we have noted that “[t]he principle that statutes are to be construed to ‘facilitate,’ rather than frustrate, the right of initiative derives from the plain language of the Washington Constitution.” Coppernoll v. Reed, 155 Wn.2d 290, 297 n.4, 119 P.3d 318 (2005).

¶29 Although article II, section 1(d) describes the section as “self-executing,” it shares article I, section 34’s use of the limiting term “facilitate.” It is also important that the right to recall was adopted by the people at the same election in 1912. Accordingly, the exercise of that right demands as much respect as the rights of initiative and referendum, being “nearly as old as our constitution itself, deeply ingrained in our state’s history, and widely revered as a powerful check and balance on the other branches of government.” Coppernoll, 155 Wn.2d at 296-97.

*672¶30 From this understanding that legislation may be passed only to “facilitate” the exercise of the right to recall, it follows that “the judiciary must exercise restraint in interfering with the elective process which is reserved to the people in the state constitution.” McCormick v. Okanogan County, 90 Wn.2d 71, 75, 578 P.2d 1303 (1978). Such restraint involves recognition that the charges raised in the recall statement do not require the particularity of criminal charges or a criminal indictment. The question of whether sufficient cause exists for removal involves a political proceeding, with the question to be ultimately decided by the people. “The same exactitude, or any approach thereto, is never required in non-judicial that is generally required in judicial procedure.” Gibson, 136 Wash, at 479 (Holcomb, J., dissenting). “[A]s against the people, a public officer, their servant, has no rights whatever, so far as his possession of the office is concerned, which may not be ignored by the people speaking in a lawful manner.” Cudihee v. Phelps, 76 Wash. 314, 330, 136 P. 367 (1913). In the exercise of the right of recall, “there is not involved any question of due process of law guaranteed by the state or Federal constitution cognizable by the courts.” Id. at 331. Accordingly, “[a] person need not be guilty or even probably guilty of any penal offense to be amenable to recall under this political method of recall.” Gibson, 136 Wash, at 479 (Holcomb, J., dissenting).8

¶31 It also follows that, as with initiative or referendum statutes, interpretation of statutes preserving the people’s right to recall must be liberally construed. See Gibson, 136 Wash, at 474-75 (“in carrying out the salutary purposes intended in the adoption of the recall, the provisions of the *673statute should be liberally construed.”); In re Estate of Thompson, 103 Wn.2d 292, 294-95, 692 P.2d 807 (1984) (noting this court has consistently applied the rule that provisions preserving the right of initiative to the people will be liberally construed to facilitate that right). “Recall statutes are construed in favor of the voter.” Majority at 663 (citing In re Recall of Kast, 144 Wn.2d 807, 814, 31 P.3d 677 (2001)). Only by remembering the underlying purpose of recall statutes in facilitating the exercise of that right will the judiciary be able to vigilantly safeguard this important right of the people.

¶32 Accordingly, I concur in today’s opinion upholding this recall, while reminding courts in the future their role should be limited and quickly concluded — i.e., exercised with clear understanding that the constitutional right of recall is only to he facilitated.

I strongly agreed with the procedure followed in this court, entering an order allowing the recall immediately the day of argument to minimize delay.

In the speech context, we have noted that prior restraints are official restrictions that prohibit future speech. State v. Bassett, 128 Wn.2d 612, 615, 911 P.2d 385 (10996); City of Seattle v. Bittner, 81 Wn.2d 747, 756, 505 P.2d 126 (1973). Prior restraints are presumptively unconstitutional. Bassett, 128 Wn.2d at 615; Soundgarden v. Eikenberry, 123 Wn.2d 750, 765, 871 P.2d 1050 (1994). However, not all prior restraints are prohibited. Id. (citing State v. Coe, 101 Wn.2d 364, 372-73, 679 P.2d 353 (1984)). E.g., a regulation may not rise to the level of a prior restraint if it is merely a valid time, place, or manner restriction on the exercise of protected speech. Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 126, 937 P.2d 154 (1997); Coe, 101 Wn.2d at 373.

It is also worth emphasizing that rights of the people guaranteed through other articles of our constitution should be protected from prior restraints. See, e.g., Wash. State Farm Bureau Fed’n, 154 Wn.2d at 684 (J.M. Johnson, J., dissenting) (maintaining that the secretary of state and the legislature may not act in prior restraint of the right of referendum).

That the people contemplated the legislature enacting legislation to ensure the facilitation of this right is obvious, as discussed supra. However, such legislation cannot prohibit future exercise of the right and any statutory provisions relating to recall that would purportedly be analogous to time, place, or manner restrictions should be carefully scrutinized in order that the people’s right may be maintained and protected.

Further, because “the recall was adopted by the people of the state for the express purpose of allowing them to remove their officials at will, and for any cause which was by them deemed sufficient,” the ascertainment of the particular motives of any recall petition’s proponents is beyond proper judicial inquiry. Gibson, 136 Wash, at 474. Rather, the existence or legitimacy of any such motives are themselves triable to the people, and “[cjourts would he treading upon dangerous ground if they should assume i uake the exercise by the citizens of rights granted by the constitution and laV'i dependent upon considerations of motive.” Roberts v. Milliken, 200 Wash. 60, 68, 93 P.2d 393 (1939).