In re Recall of Riddle

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                                                                                   FILED t-
                                                                                  OCT 2 S 2017
                                                                              WASHINGTON STATE
                                                                                             E         / •
                                                                               SUPREME COURT




        IN THE SUPREME COURT OF THE STATE OF WASHINGTON



        In the Matter of the Recall of                    No. 94788-1


        JANELLE RIDDLE,                                   ORDER AMENDmC
                                                          OPINION
               Yakima County Clerk.


               It is hereby ordered that the following change be made to the unanimous opinion
        of Yu,J., in the above entitled case (page and line references are to the slip opinion filed
        on October 26, 2017):

                  On page 1, at line 10, the following language is deleted: ", defeating
           incumbent Kim Eaton".




               DATED this              _ day of                                 ,20|'1.

                                                                                   an.
                                                                                  ice I
                                                                        Chief Justice



        APPROVED:
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            IN CLERKS OPPICS   X
                                                             This opinion was filed for record
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                                                                  SUSAN  L. r.ARI
                                                                  SIJRAW I  CARLSON
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                                                                SUPREME COURT CLERK




        IN THE SUPREME COURT OF THE STATE OF WASHINGTON


        In the Matter of the Recall of                 No. 94788-1


        JANELLE RIDDLE,                                EN BANC


              Yakima County Clerk.                     Filed:         OCT 2 6 2M?

              YU, J. — Yakima County Clerk Janelle Riddle appeals the trial court's

        ruling that five out of the six recall charges filed against her are factually and

        legally sufficient. We granted the recall petitioners' motion for accelerated review

        and now affirm the trial court.

                         FACTUAL AND PROCEDURAL BACKGROUND

              Riddle was elected on November 4, 2014, defeating incumbent Kim Eaton.

        Riddle executed her oath of office on December 29 and began her term on January

        1, 2015. Riddle's term in office has been a challenging one.

              Riddle attributes many of the challenges she has faced to Yakima County's

        early adoption of new case management software called Odyssey. Yakima County

        had received approval to be "an early adopter site" for Odyssey about a year before
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       In re Recall ofRiddle, No. 94788-1


        Riddle's election, Yakima County Superior Court Local Administrative

        Rule(LAR)2.1. Odyssey was deemed necessary to replace Yakima's "obsolete"

        calendaring software, which posed "a threat to the [Superior] Court's continuing

        ability to operate." Id. Odyssey was implemented in November 2015, nearly one

        year after Riddle took office. Although most of the early adopter sites for Odyssey

        encountered some difficulties in its implementation, the Yakima County Clerk's

        Office had the most difficulty making the transition.

              Another source of difficulty for Riddle has been her ongoing disagreement

        with other Yakima County officials, particularly the superior court judges, about

        the scope of Riddle's powers and duties as clerk. This disagreement prompted the

        Yakima County Superior Court to pass five new local administrative rules

        regarding the powers and duties ofthe clerk on an emergency basis pursuant to GR

        7(e). LAR 3, 7, 8, 9, 10. Riddle contends that those rules are void because they

        conflict with state law and violate separation-of-powers principles.

              In May 2017, about two and a half years into Riddle's four-year term, the

        recall petitioners (attorneys Rickey Kimbrough, Robert Young,Bruce Smith, and

        Richard Johnson)filed a statement of charges against Riddle, Briefly, the charges

        allege that Riddle failed to transmit court orders as required by statute, refused to

        perform in-court duties and threatened to shut down the Yakima County Superior
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        In re Recall ofRiddle, No. 94788-1


        Court, and failed to properly collect and account for clerk's office revenue. The

        facts underlying each charge are discussed as relevant to the analysis below.

               As required by ROW 29A.56.130, the Yakima County Prosecuting

        Attorney's Office drafted a ballot synopsis based on the charges and petitioned for

        a ruling on the sufficiency of the charges and the ballot synopsis in Yakima County

        Superior Court. The court ruled that five of the six charges were factually and

        legally sufficient and approved an amended ballot synopsis that states, in full, as

        follows:


                                      BALLOT SYNOPSIS


                      The charges that Yakima County Clerk, Janelle Riddle,
               committed misfeasance, malfeasance and/or violated her oath of
               office allege she:

                      1. Failed, between October 2015 and November 2016,to
               properly and timely transmit to [the Department of Social and Health
               Services], Division of Child Support, orders of child support entered
               in Yakima County Superior Court, resulting in substantial loss of
               revenue to the County and harm to parents;

                      2. Failed, between February 2016 and October 2016 to properly
               discharge her duty to timely transmit to law enforcement agencies
               restraining orders entered in Yakima County Superior Court;

                     3. Refused and/or failed in July 2016 to perform in-court duties
               required by law, and threatened to shut down or close the Yakima
               County Superior Court and Yakima County Clerk's Office;

                      4. Failed, between January 2015 and December 2016 to
               properly maintain account ofthe monies received by the Yakima
               County Clerk's Office; and
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                      5. Failed, between May 2016 and October 2016 to enact
               procedures to collect for jury services rendered to other courts
               resulting in a delay of revenue.

                      Should Janelle Riddle be recalled from office based on these
               charges?

        Clerk's.Papers(CP)at 2442.

               Riddle appealed the sufficiency ofthose five charges to this court pursuant

        to RCW 29A.56.270. The insufficient charge is not at issue. We affirm the trial

        court and hold that all five ofthe remaining charges in the amended ballot synopsis

        are factually and legally sufficient and the recall proceeding may move forward.

                                               ISSUES


               A.     Are the five remaining charges factually and legally sufficient to

        move forward in accordance with RCW 29A.56.140?


               B.     Is the amended ballot synopsis adequate?

                      BACKGROUND LAW AND STANDARD OF REVIEW


               Washington voters have a constitutional right to recall any nonjudicial

        elected official who "has committed some act or acts of malfeasance or

        misfeasance while in office, or who has violated his[ or her] oath of office."

        Const, art. I, § 33. The statutes governing recall proceedings are RCW

        29A.56.110-.270. See CONST, art. I, § 34.

               The courts act solely as gatekeepers in the recall process. Our role is "to

        ensure that the recall process is not used to harass public officials by subjecting
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        In re Recall ofRiddle, No. 94788-1


        them to frivolous or unsubstantiated charges." In re Recall of West, 155 Wn.2d

        659, 662, 121 P.3d 1190(2005). It is up to the voters to determine whether the

        charges are true and, if so, whether they actually justify recalling the official.

        Courts therefore take all factual allegations as true. In re Recall ofBoldt, 187

        Wn.2d 542, 549, 386 P.3d 1104(2017). '"The sufficiency of a recall petition is

        reviewed de novo.'" Id. (quoting In re Recall ofWasson, 149 Wn.2d 787, 791, 72

        P.3d 170 (2003)).

               A charge is factually sufficient where the alleged facts, taken as a whole,

        "'identify' to the electors and to the official being recalled acts or failure to act

        which without justification would constitute a prima facie showing of misfeasance,

        malfeasance, or a violation of the oath of office.'" Id. at 548 (quoting Chandler v.

        Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984)). A charge "is legally sufficient if

        it'state[s] with specificity substantial conduct clearly amounting to misfeasance,

        malfeasance or violation of the oath of office.'" Id. at 549 (alteration in original)

       (quoting Chandler, 103 Wn.2d at 274). "Misfeasance," "malfeasance" and

        "violation ofthe oath of office" are statutorily defined:

                    (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
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                     (b) Additionally,"malfeasance" in office means the
              commission of an unlawful act;

                   (2)"Violation of the oath of office" means the neglect or
              laiowing failure by an elective public officer to perform faithfully a
              duty imposed by law.

        RCW 29A.56.110. When applying these statutory definitions, we have held that

        "[a]n appropriate exercise of discretion does not constitute grounds for recall."

        Boldt, 187 Wn.2d at 549. Moreover, where the charge alleges the commission of

        an unlawful act,"the petitioner must show facts indicating the official had

        knowledge of and intent to commit an unlawful act." Id.

                                             ANALYSIS


              Riddle's contentions reflect a misunderstanding ofthe respective roles ofthe

        courts and the voters in the recall process. We affirm the trial court's ruling that

        each charge is factually and legally sufficient to move on to the signature-gathering

        phase of the recall proceeding. We decline to address Riddle's challenge to the

        amended ballot synopsis.

        A.    Factual and legal sufficiency of the charges

              Riddle challenges the factual and legal sufficiency of each ofthe five

        remaining charges individually, and further raises a general challenge to the recall

        proceeding as a whole. We affirm the trial court.
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        In re Recall ofRiddle, No. 94788-1


               1.     Charge One: failure to transmit child support orders

               Charge One alleges that for over a year, Riddle failed to transmit child

        support orders entered by the Yakima County Superior Court to the appropriate

        agency as required by statute. We affirm the trial court's ruling that Charge One is

        factually and legally sufficient.

                      a.     Background information

               Superior court clerks must transmit child support orders to the Division of

        Child Support(DCS)"whhin five days of entry." RCW 26.23.033(2).' Ifthe

        Yakima County Clerk complies with this duty, then DCS funds a portion ofthe

        clerk's office budget; if not, then DCS must withhold the anticipated funding. CP

        at 1153, 1252, 1281. Charge One alleges that Riddle "[f]ailed, between October

        2015 and November 2016, to properly and timely transmit to [the Department of

        Social and Health Services, DCS], orders of child support entered in Yakima

        County Superior Court, resulting in, substantial loss of revenue to the County and

        harm to parents." Id. at 2442.

               DCS first became aware that there was a problem with transmitting support

        orders in January 2016. The problem dated back to November, when Odyssey was

        first implemented. On January 11, DCS e-mailed Riddle to notify her that there


              'DCS maintains a statewide registry of child support orders to promote uniform
        recordkeeping and to help custodial parents and their children obtain support payments. RCW
        26.23.010,.033(1).
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        appeared to be a problem and to ask if she knew what was causing it. Id. at 1283.

        The next day, DCS e-mailed again to say it had confirmed that there was a

        problem; it sent a list of cases in which it knew that support orders had not been

        transmitted and asked Riddle to investigate and resolve the issues. Id. at 1289.

               Riddle responded that "[a]s an 'early adopter' ofthis state courts' program

        [Odyssey], we are just to the point of finishing up the workflow process for those

        documents to automatically be emailed to the designated staff that [the Washington

        State Support Registry] would like to receive them." Id. at 1283. She assured

        DCS that her office was "working diligently to get this workflow in place," and

        proposed that in the interim, she could "ask staff to email them directly" to DCS.

        Id.


               However, neither the automatic workflow process nor the direct e-mails

        from staff had resolved the problem by February 3, so DCS e-mailed again,

        expressing its concerns more forcefully:

               While we do understand the difficulties often encountered when
               switching to a new system, there must be a 'workaround' in place so
               that you can continue to transmit orders to [the Washington State
               Support Registry] during this transition period.

                     Please let [the supervisor fi-om the intake unit] know the status
               ofthe automated transmission of orders under the new Odyssey
               system and also when all ofthe orders NOT previously sent since
               November 1, 2015 will be transmitted.
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                      Also note that the monthly reimbursements you receive from
               DCS are payment for the transmission of orders and copy requests.
               Since orders are not being transmitted I will likely need to withhold
               future reimbursements until all ofthe past orders are received and you
               are sending orders regularly again.

        Id. at 1282. DCS's e-mails always included offers to help Riddle resolve the issue.

               In February 2016, the issue also came to the attention ofthe court services

        director for Yakima County. Id. at 1153. Three people had called her to report

        that they had not received support payments because the support orders in their

        cases had not been transmitted to DCS, and the clerk's office had not returned their

        repeated phone calls. Id. at 1153-54. The court services director confirmed that

        both the prosecutor's office and DCS were experiencing similar problems, and she

        then had her staff prepare a report ofthe missing orders. Id. at 1154-55.

               The report stated that only 44.7 percent ofthe child support orders entered in

        family law cases between November 1, 2015 and February 17, 2016, were ever

        received by DCS. Id. at 1340. A follow-up report revealed that between February

        18 and May 31, 2016,the number of orders transmitted dropped to 33.3 percent.

        Id. at 1330. By August 2016, 74 percent of orders were transmitted on time, id. at

        1125, and as of May 2, 2017, the court services director stated that "it appears that

        the child support orders are now being sent to [DCS]." Id. at 1156. However, as a

        result of so many orders being transmitted late or not at all, DCS withheld over

        $200,000 in anticipated funding for the clerk's office. Id. at 1154.
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                       b.      Factual sufficiency

               Riddle contends that Charge One is factually insufficient because there is no

        evidence that she intended to violate the law. Br. of Appellant at 17. However,

        Riddle misreads the intent requirement and the showing necessary to satisfy it.^

               Riddle is correct that in recall proceedings "[wjhere commission of an

        unlawful act is alleged, the petitioner must show facts indicating the official had

        knowledge of and intent to commit an unlawful act." Boldt, 187 Wn.2d at 549

       (citing/« re Recall ofTelford, 166 Wn.2d 148, 158, 206 P.3d 1248 (2009)). The

        primary purpose of the intent requirement is to shield elected officials from recall

        where their actions, though not statutorily compliant, are attributable to a "simple

        mistake." In re Recall ofHeiberg, 171 Wn.2d 771, 779, 257 P.3d 565(2011)

       (mayor purchased truck under honest but erroneous belief that reserve fund money-

        could be used for that purpose and later reimbursed the town when he learned of

        his mistake).

               The facts in this case, however, allege that Riddle knowingly failed to

        perform a statutorily mandated duty in the majority of cases for eight months(from



                ^ Riddle also contends that Charge One is factually insufficient because it "fails to
        mention that the problem with forwarding child support orders has been fixed by Ms. Riddle."
        Br. of Appellant at 18. However, Charge One provides a start and end date for the period at
        issue, clearly implying that the problem has been resolved. CP at 2442. If Riddle disagrees
        about the precise date on which the problem was resolved or who should be given credit for
        resolving it, she must take her case to the voters, as we are in no position to resolve that factual
        dispute.


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        the time she was first notified ofthe problem in January 2016 until it was arguably

        mostly resolved in August 2016). The facts also allege that other counties that had

        been early Odyssey adopters faced some challenges, but none ofthem had nearly

        as many problems, nor did their problems persist for nearly as long. And in light

        of Riddle's refusal to accept suggestions or assistance over this extended period of

        time, a voter might also rationally infer that Riddle acted willfully and with

        unreasonable indifference to the consequences of her failure to transmit child

        support orders. See In re Recall ofSandhaus, 134 Wn.2d 662, 671,953 P.2d 82

       (1998)("[Wjilfullness can probably be found in evidence showing that Sandhaus

        knew he was overspending and did so even after the Board and the auditor warned

        him against doing so."). The factual allegations in this case clearly allege much

        more than a simple mistake.

               Riddle, however, contends that the recall petitioners must have evidence that

        she had an unlawful purpose in failing to transmit court orders, such as an intent to

        deprive custodial parents of child support payments. It is true that we have

        required such evidence where the elected official's actions would have been lawful

        but for the official's alleged unlawful purpose. See Boldt, 187 Wn.2d at 551

       (charge that officials held a closed meeting for the purpose oftaking action outside

        the view ofthe public in violation ofthe Open Public Meetings Act of 1971,

        chapter 42.30 ROW);In re Recall ofCarkeek, 156 Wn.2d 469,472-73, 128 P.3d


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        1231 (2006)(charge that official filed antiharassment order for the purpose of

        keeping constituents from attending public meetings). In such cases, a showing of

        unlawful purpose is necessary to establish an unlawful act constituting

        malfeasance.


               This case is different. The factual allegations here, if believed, establish a

        prima facie showing of"the neglect or knowingfailure by an elective public officer

        to performfaithfully a duty imposed by law," that is, a violation ofthe oath of

        office. RCW 29A.56.110(2)(emphasis added). We therefore hold that Charge

        One is factually sufficient. Boldt, 187 Wn.2d at 548.

                      c.     Legal sufficiency

               Riddle argues that Charge One is not legally sufficient because she did not

        engage in any wrongful conduct and the problems with transmitting child support

        orders were not her fault. We reject these arguments.

               First, relying on the same arguments she raises as to factual sufficiency.

        Riddle argues that her extended failure to transmit child support orders was not

        wrongful at all. We reject this argument for the reasons stated above in the

        discussion offactual sufficiency.

               Second, as Riddle correctly notes,"[a]n appropriate exercise of discretion

        does not constitute grounds for recall." Id. at 549. She is also correct that

        becoming an early adopter of Odyssey was an appropriate exercise of discretion.


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        which she was not involved in. However, Charge One does not seek to recall

        Riddle for the early adoption of Odyssey, but for Riddle's knowing failure to

        perform faithfully her mandatory duties.

               Riddle may intend to argue that the early adoption of Odyssey made it

        impossible for her to fulfill her duties, which could preclude legal sufficiency. See

        Greco v. Parsons, 105 Wn.2d 669, 673, 717 P.2d 1368(1986)("Greco's failure to

        comply with an ordinance, because it was impossible to comply, amounts to a

        legally cognizable justification for his failure. Such justification defeats the legal

        sufficiency of the recall petition."). However, impossibility in this case is, at best,

        disputed.

               Riddle apparently attributes all the problems to Yakima's early adoption of

        Odyssey, but the facts alleged by the recall petitioners suggest that other early

        adopters had fewer problems, or no problems at all. Compare Br. of Appellant at

        21-22, with CP at 1155-56, 1298, 1300, 1302. Moreover, the office manager for

        Riddle's predecessor stated that "[t]he process before Odyssey was to fax all no

        contact/protection orders to a designated law enforcement agency, as stated in the

        order. It was to be done immediately after court, so law enforcement could serve

        the paperwork and enter it into their system." CP at 2253. There is no indication

        Riddle could not have done the same with child support orders until Odyssey was

        functioning properly. We must take the facts alleged by the recall petitioners as



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        true and assume that the early adoption of Odyssey did not make it impossible for

        Riddle to perform her duties.

               Therefore, we affirm the trial court's ruling that Charge One is legally

        sufficient, as well as factually sufficient.

               2.     Charge Two: failure to transmit restraining orders

               Charge Two is very similar to Charge One except that Charge Two deals

        with restraining orders instead of child support orders. Riddle's challenges to the

        factual and legal sufficiency of Charge Two are identical to her challenges to

        Charge One. Because the allegations underlying each charge are not materially

        different, we affirm the trial court's ruling that Charge Two is factually and legally

        sufficient.


                      a.     Background

               The superior court clerk must transmit restraining orders entered in a variety

        of cases to law enforcement "on or before the next judicial day." RCW

        7.92.180(1)(civil antistalking actions); RCW 10.99.040(6)(pending criminal

        actions for domestic violence offenses); RCW 26.09.050(3)(final dissolution

        decrees),.060(8)(pending dissolution actions); RCW 26.26.130(11)(parentage

        actions); RCW 26.50.100(1)(domestic violence protection orders). Charge Two

        alleges that Riddle "[fjailed, between February 2016 and October 2016 to properly




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        discharge her duty to timely transmit to law enforcement agencies restraining

        orders entered in Yakima County Superior Court." CP at 2442.

               On July 25, 2016,the Yakima County court services director learned that a

        family member of one of her staff could not get law enforcement assistance in

        enforcing valid restraining orders because the orders had not been transmitted to

        law enforcement. Hoping that this was an isolated incident, the court services

        director ordered reports about missing restraining orders. The reports revealed that

        between June 1 and July 27, 2016, 40 percent of criminal no-contact orders were

        not received by law enforcement. Id. at 1731. Between June 1 and July 21, 2016,

        71 percent of domestic restraining orders were not received. Id. at 1735. A

        follow-up report spanning January through August 2016 revealed a pattern of

        failure to transmit restraining orders. Id. at 1159-60, 1788.

               When the court services director sent these reports to Riddle and asked if

        they could meet to discuss and sort out the problem. Riddle responded that her

        office was running its own reports and did not need assistance. Id. at 1736, 1738.

        Although the time period referenced in Charge Two ends in October 2016,the

        problem was not in fact fully resolved by then. M at 1751-55. We do not know

        what happened after October 2016.




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                       b.     Factual and legal sufficiency

               Riddle argues that there is no evidence that she intended to violate the law,

        that she did not engage in any substantial misconduct, and that the problems were

        caused by Yakima's early adoption of Odyssey. She does not distinguish the

        arguments pertaining to Charge Two from those pertaining to Charge One. We

        therefore reject those arguments for the reasons discussed in the above analysis of

        Charge One and affirm the trial court's ruling that Charge Two is sufficient.

               3.      Charge Three: refusal to perform in-court duties

               There have been significant tensions between Riddle and the Yakima

        County Superior Court over their respective powers and duties. Charge Three

        alleges that Riddle "[rjefused and/or failed in July 2016 to perform in-court duties

        required by law, and threatened to shut down or close the Yakima County Superior

        Court and Yakima County Clerk's Office." Id. at 2442. We affirm the trial court's

        ruling that this charge is factually and legally sufficient,

                       a.     Background

               Riddle came into the position of clerk with very different ideas about her

        powers and duties than those held by the Yakima County Superior Court and the

        Board of Yakima County Commissioners. Riddle felt it was inappropriate for her

        deputy clerks to perform in-court tasks they had done in the past, such as operating

        the electronic recording equipment that had replaced most ofthe in-person court



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        reporters in Yakima and providing copies ofthose recordings as requested. The
        clerk's office had been providing such services to the Yakima County Superior

        Court for years in exchange for extra staff and additional funding for the clerk's

        office, while the staff and budget for the court were reduced accordingly. Id. at

        1177-78.


               Although Riddle agreed before she took office that she would continue that

        arrangement, after taking her oath of office she stated her intent to withdraw from

        it. E.g., id. at 1168. After a tense meeting between Riddle and the superior court

        judges on March 30, 2015, the Yakima County Superior Court adopted LAR 3,

        which "describes actual current courtroom procedures and the responsibilities of

        the Clerk of the Court while in court. The purpose ofthe rule is to maintain and

        continue current practice without interruption." LAR 3 was adopted on an

        emergency basis effective April 15, 2015, and on a permanent basis effective

        September 1, 2015. However, despite the passage ofLAR 3, Riddle again asserted

        that her deputy clerks would stop providing the in-court services specified in the

        rule. E.g., id. at 1223.

               The court services director became sufficiently concerned about Riddle's

        assertions, and she brought the issue to the Yakima County Law and Justice

        Committee, which caused the Board of Yakima County Commissioners to appoint

        an independent review panel in March 2016. The panel's initial report, issued on


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        May 31, 2016, noted an attorney general opinion suggesting that the remedy for a

        clerk who refuses to follow a local court rule may be contempt proceedings.

               On July 3, 2016, Riddle responded to the panel's report with a written

        document that opened,"Dear Family, Friends and Supporters."^ M at 2113. As

        relevant to Charge Three, Riddle's document included the following language:

                     I have been threatened with contempt and going to jail if I don't
               do what the County Commissioners and Court want me to do.
               Therefore, I have no choice other than to prepare for this possibility
               by sending a Clerk's Directive to the Prosecuting Attorney. I don't
               believe they realize what the severity ofthe consequences will be. I
               would have no choice other than to revoke the deputization[ ]of all my
               deputies (staff) and they would not be able to perform my duties in
               my absence which would close the Clerk's Office. The Courts will
               not be able to hear cases without a Clerk present so the Courts will
               shut down. The jail will be overflowing because the Prosecutor will
               have no way to prosecute individuals. I would hope they know these
               consequences and will choose not to shut down our judicial system by
               such an action. I would be given no choice as I must ensure my
               mandated responsibilities are being met according to the law.

        Id. at 2117. The disputes leading up to this document and the document itself are

        the basis for Charge Three.

                      b.     Factual sufficiency

               First, Riddle contends that Charge Three is factually insufficient because

        there is no proofthat she actually "failed" to perform any in-court duties.

        However, Charge Three alleges that she "[rjeflised and/or failed" to perform those


               ^ The document is dated "July 3, 2015," but the parties agree that the document was
        actually written in 2016. CP at 2113.


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        duties. Id. at 2442(emphasis added). The facts clearly allege that Riddle refused

        to perform in-court duties and thus that Riddle refused and/or failed to perform

        those duties,just as Charge Three states.

               Next, Riddle argues that there is no proofthat she actually shut down the

        court as threatened. That is true, but irrelevant. Where an official credibly

        threatens retaliation in his or her official capacity,"such threats alone would be ...

        wrongful by any standard." In re Recall ofLee, 122 Wn.2d 613, 619, 859 P.2d

        1244(1993). For instance, we held sufficient a charge that a mayor threatened to

        have local law enforcement officers fired if they issued her a traffic citation. Id.

        Like Riddle in this case, the mayor in that case argued the charge was "inadequate

        because it does not allege that any police officer ever refrained from issuing her a

        citation because of what she said." Id. at 618-19.


               We rejected that argument and held that "[ejven if no officer ever refrained

        from issuing Mayor Lee a citation out of fear for his job,such threats alone would

        be a clear abuse of the mayor's position of authority over the police department

        and would be wrongful by any standard.'"^ Id. at 619(emphasis added). To the

        extent Riddle argues that the document at issue in this case was not a threat but a




                Riddle attempts to distinguish this case on the basis that in Lee,"the mayor's threat was
        coupled with an action: a directive to subordinates to never issue her a ticket." Reply Br. of
        Appellant at 9. However, the decision in Lee was explicitly based on the threat alone, not a
        threat coupled with an action.


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        mere expression of opinion regarding a hypothetical scenario, a reasonable person

        reading the language Riddle actually used might well reach a different conclusion.

               Finally, Riddle argues that the alleged threat to shut down the court cannot

        be factually sufficient because it was in a letter "addressed to Ms. Riddle's

        supporters, family and friends," not to the court. Br. of Appellant at 27.

        However,this letter was delivered to the Board of Yakima County Commissioners

        at one of its meetings. CP at 2036. Regardless ofthe opening salutation, the facts

        clearly allege that Riddle did not intend for this document to be a private

        expression of opinion but a publicly directed statement of her intentions.

               We affirm that Charge Three is factually sufficient.

                      c.     Legal sufficiency

               Riddle contends Charge Three is not legally sufficient because she had no

        obligation to perform in-court duties, and therefore she had a legally justifiable

        excuse for refusing to perform them. She also argues that Charge Three cannot be

        legally sufficient because she was exercising her First Amendment rights. U.S.

        Const, amend I. Riddle misapprehends the scope of her powers, her duties, and

        the First Amendment.




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               First, Riddle contends that LAR 3 was enacted without authority oflaw and

        is therefore void, so she was justified in refusing to follow it.^ An action with a

        legally justifiable excuse is not sufficient for recall, but Riddle's position is not

        legally justifiable.

               While Riddle is correct that she retains authority over the clerk's office, she

        fails to recognize that she is,"by virtue of[her] office, clerk of the superior court."

        Const, art. IV, § 26. As we have explained,

               [t]he duties of a county clerk as clerk of the superior court are defined
               both by statute and court rules. Generally speaking, a clerk of court is
               an officer of a court ofjustice, who attends to the clerical portion of
               its business, and who has custody of its records and files and of its
               seal. Such an office is essentially ministerial in its nature, and the
               clerk is neither the court nor a judicial officer.

        Swanson v. Olympic Peninsula Motor Coach Co., 190 Wash. 35, 38,66 P.2d 842

       (1937)(emphasis added). The superior court "has power ...[t]o control, in

        furtherance ofjustice, the conduct of its ministerial officers," such as county

        clerks. RCW 2.28.010(5). Therefore, when acting as the clerk ofthe superior

        court, the county clerk has always been required "[i]n the performance of his or her

        duties to conform to the direction ofthe court." RCW 2.32.050(9); see Laws OF

        1891, ch. 57, § 3(9). The clerk's general powers and duties as clerk ofthe superior




                ^ Riddle also argues that her initial agreement to provide in-court services is without force
        because she entered the agreement prior to taking office. This is irrelevant because the charge is
        that she refused to perform duties required by law—^that is, by statute and court rule.

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        court are set forth in RCW 2.32.050 and, for Yakima County specifically, LAR 3

        and 7 through 10.

               Riddle contends that LAR 3, which addresses in-court duties, is void

        because the court has no authority to "dictate the personnel functions of a different

        County department." Br. of Appellant at 28. However, as the preceding paragraph

        explains, a court does have the authority to direct the functions of the clerk when

        he or she is acting in his or her capacity as clerk ofthe superior court. Cf. SAR

        16(f)(powers and duties of the Clerk of the Supreme Court). Moreover, the

        attorney general has opined that a court's rule-making authority in regard to court

        clerks is subject to the same restrictions as any other rules: "[T]o the extent that the

        court rule relates to practice and procedure rather than to the creation of

        substantive law, the rule is within the authority of the court." 2001 Op. Att'y Gen.

        No. 6, at 3. LAR 3 is within the scope ofthe court's rule-making authority, and

        Riddle has no legally justifiable excuse for refusing to follow it.

               Second, Riddle contends that her alleged threat to shut down the court was

        an expression of opinion protected by the First Amendment and that such protected

        expression cannot be grounds for recall. Riddle appears to be unaware that the

        First Amendment prevents governments from restricting or chilling free speech.

        16A Am.Jur. 2d Constitutional Law § 400(2008). A recall proceeding is an

        action by the voters, not the government. CONST, art. I, § 33. The voters


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        unquestionably have a right to base their decisions on what a public official says,

        the First Amendment notwithstanding.

               While Riddle cites authorities, they do not support her position. One ofthe

        cases cited, which does not deal with recall, holds that "[t]o be sure, the First

        Amendment protects [the plaintiff]'s discordant speech as a general matter; it does

        not, however, immunize him from the political fallout of what he says." Blair v.

        Bethel Sch. Dist., 608 F.3d 540, 542(9th Cir. 2010), cited in Br. of Appellant at 33.

        Another, which also does not deal with recall, notes that "[ojur case law recognizes

        that the nature of political debate is rough and tumble." Eaton v. Meneley, 379

        F.3d 949, 956(10th Cir. 2004), cited in Br. of Appellant at 33. And the only case

        Riddle cites that does involve a recall proceeding dealt with very different

        questions about a charge that the official committed perjury and false swearing. In

        re Recall ofPearsall-Stipek, 141 Wn.2d 756, 10 P.3d 1034(2000), cited in Br. of

        Appellant at 34. The court was required to determine whether the elements of

        those crimes were properly alleged by the facts underlying the charge. It did not

        engage in any discussion of free speech principles.

               Because Riddle's contentions do not have merit, we affirm the trial court's

        ruling that Charge Three is factually and legally sufficient.




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               4.     Charge Four: failure to account

               Charge Four states that Riddle "[f]ailed, between January 2015 and

        December 2016 to properly maintain account ofthe monies received by the

        Yakima County Clerk's Office." CP at 2442. We affirm the trial court's ruling

        that Charge Four is factually and legally sufficient,

                      a.     Background

               The Washington State auditor performed a scheduled audit ofthe Yakima

        County Clerk's Office covering the year from January 1 to December 31, 2015.

        The audit determined that stronger internal controls and oversight were needed,

        noting, among other problems, that several important tasks were not completed

        until long after they were due and the clerk's office had failed to maintain proper

        documentation needed for an outsider to verify that collections had been performed

        correctly.

               The audit noted that similar concerns had been raised in two prior audits, but

        apparently had not been fixed. The cause of the problems, according to the audit

        report, was that "[t]he Clerk's Office has not devoted sufficient time and resources

        to ensure proper segregation of duties exists over cash handling and account

        reconciliations and has not taken the necessary steps to correct reconciliation items

        noted in the previous audit." Id. at 2131.




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                       b.    Factual and legal sufficiency

               Riddle's contentions regarding the sufficiency of Charge Four are

        indistinguishable from those she raises in regard to Charges One and Two. We

        reject these arguments in accordance with the analysis ofthe factual and legal

        sufficiency of Charge One, above, and affirm the sufficiency of Charge Four.

               5.      Charge Five; failure to collect jury service fees

               Charge Five alleges that Riddle "[fjailed, between May 2016 and October

        2016 to enact procedures to collect for jury services rendered to other courts

        resulting in a delay of revenue." Id. at 2442.

                       a.    Background

               In addition to the Yakima Counly Superior Court, the Yakima County

        Clerk's Office provides jury services for one district court and three municipal

        courts. The clerk's office is supposed to bill those courts for jury services once a

        month. However,the Washington State Auditor's Office determined that

               [t]he Clerk has not established procedures to ensure the Office is paid
               for these services. The Office has not billed or collected for jury
               services provided to the District Court and two municipal courts from
               May 2015 through August 2016. We estimate these services to be
               approximately $44,500. In addition, the Clerk provided jury services
               for one municipal court without an agreement in place from May 2015
               to September 2016. The agreement was subsequently signed and
               billed in October 2016 for $52,411, sixteen months after the service
               period started.

        Id. at 2130.




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                      b.     Factual and legal sufficiency

               Riddle's contentions regarding the sufficiency of Charge Five are

        indistinguishable from those She raises in regard to Charges One, Two, and Four.

        We reject these arguments in accordance with the analysis ofthe factual and legal

        sufficiency of Charge One, above, and affirm the sufficiency of Charge Five.

               6.     Challenge based on the timing of the next general election

               Finally, Riddle briefly notes that she will be up for election soon anyway,

        implying that the recall proceeding is therefore unnecessary. Certainly the recall

        petitioners, if unsuccessful, may take solace in the fact that Riddle is up for

        reelection soon, but"we do not suggest that the imminence of a regular election

        justifies dismissing a recall petition." Sandhaus, 134 Wn.2d at 672. The timing of

        the next election is irrelevant to our analysis.

        B.     Ballot Synopsis

               Finally, Riddle challenges the adequacy of the ballot synopsis for its failure

        to identify which charges are malfeasance, which are misfeasance, and which are

        violations ofthe oath of office. We decline to review this issue because "[t]he

        decision ofthe superior court concerning the adequacy ofthe ballot synopsis is

        'final.'" In re Recall ofZufelt, 112 Wn.2d 906, 910, 774 P.2d 1223 (1989); see

        RCW 29A.56.140.




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                                             CONCLUSION


               We affirm the trial court's ruling that the five remaining recall charges

        against Riddle are factually and legally sufficient, and the recall proceeding may

        move forward to the signature-gathering phase.




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        WE CONCUR:




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