In re Recall of Piper

• Court: Washington Supreme Court
• Decided: December 10, 2015
• Docket: 90883-4
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Recall of NO. 90883-4

EDWARD M. PIPER, Commissioner of ENBANC the Cowlitz County Public Utility District No.1. Filed DEC 1 0 2015

STEPHENS, I.-Petitioners William Ammons, Douglas Irvine, and Charles

Wallace (Petitioners) petitioned to recall respondent Cowlitz County Public Utility

District (PUD) Commissioner Edward M. Piper. Clerk's Papers (CP) at 8-13. At a

hearing to determine the sufficiency of the allegations, Petitioners voluntarily

withdrew the recall petition. Finding that the recall petition was frivolous and

intentionally filed in bad faith, the superior court awarded Piper attorney fees.

Petitioners moved for review of the attorney fees award. We affirm the superior

court.

FACTS AND PROCEDURAL HISTORY

In 20 13, PUD commissioners Buz Ketcham and Kurt Anagnostou passed a

censure resolution against Piper. The resolution alleged nine instances of

misfeasance but contained no underlying factual description to support the charges. In re Recall ofEdward M Piper, 90883-4

Petitioners then filed a recall petition against Piper. 1 CP at 151-53. The

petition was a near-verbatim copy of the censure resolution. Compare CP at 8-13,

with CP at 151-53. According to Ammons, the recall petition was dropped in the

mail slot of his barber shop. Without investigating the tn1thfulness of the recall

petition, Ammons signed and presented it to Wallace and Irvine. After speaking

with Anagnostou, Wallace and Irvine also signed the petition. Although

Anagnostou confirmed the recall petition mirrored the censure resolution, he

declined to provide any supporting information. Ammons claimed the purpose of

the recall petition was "to get [Piper] to retire like he should." CP at 197.

Petitioners claimed no part in writing the petition. CP at 358.

The Cowlitz County prosecuting attorney rejected the recall petition, finding

that it did not include the required oath. CP at 117. After Petitioners submitted a

revised recall petition, the prosecutor moved for a sufficiency hearing. Piper

objected, arguing the recall petition lacked both legal and factual sufficiency.

Piper also moved for CR 11 sanctions, contending the recall petition was filed in

bad faith.

At the sufficiency hearing, Petitioners voluntarily withdrew the recall

petition. Verbatim Report of Proceedings (VRP) (Dec. 20, 2013) at 21-23. The

trial judge warned Petitioners, "[I]f you want to withdraw the petition, I think

you're entitled to do so. I don't think that prohibits ... Piper from any motion for

1 In 2009, Ammons had unsuccessfully filed a recall petition against Piper.

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attorney[ ] fees." !d. at 22. Petitioner's counsel responded, "I've discussed that

with my clients, and we're aware of that." !d. at 23.

To determine whether the recall petition was filed in bad faith, the superior court granted discovery, which was limited to deposing Petitioners. VRP (Jan. 15,

2014) at 16. Both Piper and Petitioners agreed to this discovery. Finding that the

recall petition was frivolous and intentionally filed in bad faith, the superior court

awarded Piper attorney fees. CP at 360-61. Petitioners timely appealed.

ANALYSIS

An elected official may be recalled for misfeasance, malfeasance, or

violation of the oath of office. CONST. art. I, §§ 33-34; RCW 29A.56.110. In

recall proceedings, courts ensure that public officials are not subject to frivolous or

unsubstantiated charges by confirming that the charges are legally and factually

sufficient before placing the charges before the voters. RCW 29A.56.140; In re

Recall of Lindquist, 172 Wn.2d 120, 131-32, 258 P.3d 9 (2011). Courts do not,

however, evaluate the truthfulness of the charges. !d.

Although a recall petitioner's motives play no part in determining the legal

and factual sufficiency of a recall petition, In re Recall of Pearsall-Stipek, 136

Wn.2d 255, 267, 961 P.2d 343 (1998), a petitioner's motives are relevant to

determining bad faith, Lindquist, 172 Wn.2d at 136-39. In dismissing a recall

petition filed in bad faith, the trial court may award sanctions under CR 11. !d. at

136.

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1. The Superior Court Properly Allowed Discovery To Determine Whether to Award Sanctions

Petitioners argue that discovery cannot be granted solely to search out

grounds for applying sanctions. Appellants' Opening Br. at 19. Specifically,

Petitioners contend that the superior court erred by allowing Piper to depose them.

Id. We reject this argument.

Parties may obtain discovery regarding any matter, not privileged, that is

relevant to the subject matter involved in the pending action, whether it relates to

the claim or defense of the party seeking discovery or to the claim or defense of

any other party. CR 26(b)(l); Barfield v. City of Seattle, 100 Wn.2d 878, 883, 676

P.2d 438 (1984) ("[CR 26(b)(l)] is designed to permit a broad scope of

discovery."). After Petitioners withdrew the recall petition, Piper filed a CR 11

motion for sanctions, which in the context of a recall petition requires a showing of

bad faith. Lindquist, 171 Wn.2d at 136. Not only did Petitioners agree that

discovery was necessary at the hearing on sanctions, but CR 26(b )(1) 's plain

language also permitted discovery on the issue of bad faith because it was a matter

relevant to the subject matter involved in the pending action-the award of

attorney fees. CR 26(b)(1). The superior court therefore acted within its discretion

by allowing discovery to determine whether to award sanctions in this recall

action.

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2. The Superior Court Properly Awarded Attorney Fees against Petitioners for Intentionally Filing a Frivolous Petition in Bad Faith

An award of attorney fees is reviewed for abuse of discretion and may be

reversed only if the court exercised its discretion on untenable grounds or for

untenable reasons. Lindquist, 172 Wn.2d at 135. In any civil action, a court may

award attorney fees if the action was frivolous and advanced without reasonable

cause. RCW 4.84.185. In a recall action, the superior court holds a hearing on the

merits, without cost to any party, to determine whether the alleged acts satisfy the

criteria for filing a recall petition. RCW 29A.56.140.

Although a petitioner may not be assessed expenses and attorney fees under

RCW 4.84.185 for bringing a merely frivolous recall petition, sanctions may be

imposed to '"respond to intentionally frivolous recall petitions brought for the

purpose of harassment."' Lindquist, 172 Wn.2d at 136 (quoting Pearsall-Stipek,

136 Wn.2d at 266). Both CR 11 and the court's inherent equitable powers

authorize the award of attorney fees when recall petitions are intentionally

frivolous and filed in bad faith. !d. Under CR 11, sanctions are available against a

litigant for filing a claim for an improper purpose, or if the claim is not grounded in

fact or law and the signing litigant failed to conduct a reasonable inquiry. Id. By

signing a pleading, including a recall petition, a party certifies that "it is not

interposed for any improper purpose, such as to harass or to cause unnecessary

delay or needless increase in the cost of litigation." CR ll(a)(3); Lindquist, 172

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Wn.2d at 136. Violation of this rule allows the court to award reasonable attorney

fees. Lindquist, 172 Wn.2d at 136.

In Lindquist, this court affirmed an award of attorney fees upon the dismissal

of a recall petition against Pierce County Prosecutor Mark Lindquist for failing to

investigate and prosecute an individual. !d. at 135-38. There, the court found that

the petitioners' claim was frivolous because petitioners knew that law

enforcement-not the prosecuting attorney-conduct investigations. !d. at 137.

Petitioners' claim was filed for the purpose of political harassment because "[t]he

timing allowed the recall petition's charges to be known before the [prosecuting

attorney's] election but too late for Lindquist to clear his name in a hearing on the

merits." Id. Finally, the court found bad faith because petitioners refused ''to

comply with the subpoena ordering petitioners to answer questions and produce

documents relating to filing the recall petition." !d. at 137-38.

At the outset, we address Petitioners' argument that withdrawing the recall

petition at the sufficiency hearing bars an award of attorney fees. Appellants'

Opening Br. at 33-34. A violation of CR 11 "is complete upon the filing of the

offending paper; hence an amendment or withdrawal of the paper, or even a

voluntary dismissal of the suit, does not expunge the violation." Biggs v. Vail, 124

Wn.2d 193, 199-200, 876 P.2d 448 (1994). By filing the recall petition, Petitioners

assumed the risk of CR 11 sanctions. Indeed, the superior court warned petitioners

that a voluntary withdrawal would not prevent Piper from seeking sanctions. VRP

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(Dec. 20, 2013) at 22-23. Petitioner's counsel acknowledged this fact when

Petitioners withdrew the petition anyway. Id. We reject this argument.

Determining whether the recall petition is frivolous turns on the factual and

legal sufficiency of the charges alleged. Pearsall-Stipek, 136 Wn.2d at 266 ("The

very purpose of the sufficiency determination is to eliminate frivolous recall

petitions."). Factual sufficiency requires that the charge state each act of

misfeasance, malfeasance, or breach of the oath of office in concise language and

provide a detailed description, including the approximate date, location, and nature

of each act. Lindquist, 172 Wn.2d at 132. Moreover, the petitioner must "'know[ ]

of identifiable facts that support the charge."' I d. (quoting In re Recall of Reed,

156 Wn.2d 53, 58, 124 P.3d 279 (2005)). Legal sufficiency requires that the

petition state with specificity "'substantial conduct clearly amounting to

misfeasance, malfeasance[,] or violation of the oath of office.'" In re Recall of

Wade, 115 Wn.2d 544, 549, 799 P.2d 1179 (1990) (quoting Teaford v. Howard,

104 Wn.2d 580, 584,707 P.2d 1327 (1985)).

As the superior court noted, "Petitioners made no attempt, reasonable or

otherwise, to obtain any factual information to support the allegations of the recall

petition." CP at 359. In re Recall of Ackerson, 143 Wn.2d 366, 372, 20 P.3d 930

(2001) (finding that a recall petitioner must have some knowledge of the facts

underlying the charges contained in the petition). Petitioners failed to identify any

specific action or inaction by Piper to support the allegations in the petition.

Instead, they levied conclusory allegations of misconduct, namely that Piper

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violated several PUD policies and some statutes, but failed to identify any

misconduct with the required specificity. CP at 8-15, 358-60.

Petitioners nevertheless contend that their petition was not frivolous because

it was supported by information attached to the petition. Appepants' Opening Br.

at 24. But the recall petition must reasonably identify the supporting information

and explain how it supports the charges. In re Recall of Wasson, 149 Wn.2d 787,

792-93, 72 P.3d 170 (2003) (finding recall petition that referred to several attached

exhibits-but failed to identify how the attachments supported the charges-

factually and legally insufficient). Petitioners attached several e-mail

conversations to the recall petition but neither referenced those attachments nor

explained how the attachments supported the charges. CP at 8-44. Petitioners

concede this point, stating that supplemental documentation "must normally be

better indexed to the charges to provide the factual support necessary to validate a

recall petition." Appellants' Reply Br. at 7-8.

Petitioners also argue the petition was not frivolous because it relied on a

public document-the censure resolution against Piper. Appellants' Opening Br.

at 20. Petitioners contend that relying on a public document prevents finding the

recall petition lacked factual sufficiency. Id. Relying on a public document to

support a recall petition, however, requires that the document contain sufficient

facts to indicate the approximate time, location, and nature of the alleged acts. See

Janovich v. Herron, 91 Wn.2d 767, 774, 592 P.2d 1096 (1979). This standard

exists because the public must be able to make an informed decision on whether to

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support the recall. Id. In Janovich, a recall petition was substantially copied from

a federal criminal complaint that was filed against an elected sheriff. Id. at 768-69.

There, the court found the recall petition was sufficient because the criminal

complaint it relied on contained the approximate time, location, and nature of the

alleged acts. Id. at 774 n.l. Unlike the complaint in Janovich, however, the

censure resolution here does not contain any factual description of the alleged

violations or misconduct. CP at 111-13. Instead, the censure resolution vaguely

references legal authorities and PUD policies, and merely states that Piper violated

these rules. Id. Because the petition is a near-verbatim copy of the censure

resolution, the sufficiency of the charge cannot be determined from the face of the

petition and the petition does not allow the public to make an informed decision

regarding the recall.

Petitioners finally argue that an award of attorney fees under CR 11 is

improper because they conducted a sufficiently reasonable inquiry into the factual

allegations in the recall petition. Specifically, Petitioners argue that meeting with

Anagnostou constituted a sufficiently reasonable inquiry. Appellants' Opening Br.

at 22. To impose CR 11 sanctions when a recall petition lacks factual or legal

sufficiency, the court must find that the attorney who filed the complaint failed to

conduct a reasonable inquiry into the factual and legal basis of the claim. Bryant v.

Joseph Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992) ("The

reasonableness of an attorney's inquiry is evaluated by an objective standard."); In

re Recall of Beasley, 128 Wn.2d 419, 427-29, 908 P.2d 878 (1996) (stating that

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asking someone to confirm the truth of conclusory allegations is not a reasonable

inquiry under the circumstances); Cf In re Pers. Restraint of Bonds, 165 Wn.2d

135, 143, 196 P.3d 672 (2008) ("Indeed, we require a pro se petitioner to comply with applicable rules and statutes and hold them to the same responsibility as an

attorney.")

Petitioners, representing themselves, failed to conduct a reasonable inquiry.

Petitioners' meeting with Anagnostou was insufficient because the commissioner

declined to discuss any facts underlying the charges. Instead, Anagnostou

confirmed only his belief that the charges in the censure resolution were true. CP

at 92-93. Because asking someone to confirm the truth of conclusory allegations is . not a reasonable inquiry and Petitioners had no knowledge of the petition beyond

its mere existence, Petitioners' argument fails. CP at 357-58. As the superior

court found, Petitioners made no attempt, reasonable or otherwise, to inquire into

the factual information needed to support the charges in the recall petition. CP at

358. Not only did Petitioners fail to conduct a reasonable inquiry, but they also

filed the petition without knowledge of the underlying facts. Accordingly, the

recall petition plainly lacks factual and legal sufficiency.

The record discloses that Petitioners filed the petition in bad faith and for

purposes of political harassment. As the superior court noted, Ammons was

intentionally unprepared during his deposition, showing a "cavalier" and "reckless

attitude" to the recall and the court process. CP at 359. Despite this, Ammons

admitted that the purpose of the recall petition was not to successfully recall Piper.

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CP at 197, 359. Instead, Ammons sought to force Piper to "retire like he should."

CP at 197. Petitioners also admitted that the recall petition was motivated by a

desire to politically reshape the PUD board, not based on any misconduct by Piper. CP at 359. The record further reveals that Ammons had previously filed an

unsuccessful recall petition against Piper. CP at 196. Given the repeated and

wholly meritless efforts to recall Piper, Petitioners' persistence suggests that they

were motivated by something other than a sincere belief in the sufficiency of the

recall charges.

Petitioners nonetheless challenge the superior court's finding of bad faith by

contending that court "assumed good ·faith" lYuC"oraere

Appellants' Opening Br. at 17. We reject this argument, as it mischaracterizes the

record. Although the trial judge said at the sufficiency hearing, "I don't question

anybody's good faith," VRP (Dec. 20, 2013) at 28, the trial judge later clarified

that he had not yet made any bad faith determination; he subsequently ordered a

hearing on the issue, VRP (Jan. 15, 2014) at 15. After considering Petitioners'

depositions, the court issued findings of fact and conclusions of law wherein it

articulated the basis for finding that Petitioners intentionally filed the recall petition

in bad faith. Because defects in a trial court's oral comments do not constitute

proper assignments of error, Petitioner's reliance on the judge's statement at the

sufficiency hearing is without merit. See Rutter v. Rutter, 59 Wn.2d 781, 784, 370

P.2d 862 (1962).

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Accordingly, the superior court did not abuse its discretion by finding that

Petitioners intentionally filed a frivolous recall petition in bad faith.

3. Piper Is Entitled to Reasonable Attorney Fees on Appeal

Pursuant to RAP 18.1, Piper requests attorney fees on appeal, noting a party

may recover attorney fees incurred on appeal as a result of a bad faith recall

petition. See Lindquist, 172 Wn.2d at 136. Because we agree Petitioners

intentionally filed a frivolous recall petition in bad faith, we award Piper attorney

fees on appeal.

CONCLUSION

We affirm the superior court on all issues presented for review and award

Piper all reasonable attorney fees and expenses incurred on appeal.

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WE CONCUR:

I

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