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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
) No. 98918-4 In the Matter of the Recall of ) ) EN BANC JOHN SNAZA, ) ) Filed :__________________ February 11, 2021 Thurston County Sheriff. ) ______________________________ )
MONTOYA-LEWIS, J.—Voters in Washington have a constitutional right to
recall elected officials for cause before the officials have completed their term.
WASH. CONST. art. I, §§ 33, 34. If a voter believes an official has committed an act
of malfeasance or misfeasance or has violated their oath of office, the voter may file
a petition seeking to recall that official. Id. § 33. If a court finds the charge factually
and legally sufficient, it is submitted to the voters. In such recall petitions, the court
serves as a gatekeeper to ensure that recall petitions have sufficient support in facts
and law.
This case involves a recall petition against Thurston County Sheriff John
Snaza. Petitioner Arthur West alleges that Snaza committed a recallable offense
because he stated in a press release that he would not enforce an order issued by the For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In the Matter of the Recall of John Snaza No. 98918-4
Washington State secretary of health intended to combat the COVID-19
(coronavirus) pandemic. Snaza appeals the trial court’s conclusion that the recall
charge is factually and legally sufficient. We conclude that Snaza has discretion and
his exercise of discretion—stating he would not criminally enforce the order—was
not manifestly unreasonable. Therefore, the recall charge is neither factually nor
legally sufficient, and we reverse the trial court.
I. FACTS AND PROCEDURAL HISTORY
A. Factual Background
We are currently in the throes of an ongoing public health crisis. The highly
contagious COVID-19 has spread worldwide, creating a global pandemic and
infecting and killing millions of people. On January 21, 2020, the first COVID-19
case in the United States was discovered in Washington, and on February 29, 2020,
Governor Inslee declared a state of emergency. Proclamation by Governor Jay
Inslee, No. 20-05, at 2 (Wash. Feb. 29, 2020),
https://www.governor.wa.gov/sites/default/files/20-
05%20Coronavirus%20%28final%29.pdf?utm_medium=email&utm_source=govd
elivery [https://perma.cc/TAF6-QNGB]. COVID-19 is transmitted from person to
person through respiratory droplets, and face coverings greatly reduce the risk of
infection. Scientific Brief: Community Use of Cloth Masks to Control the Spread of
SARS-CoV-2, CTRS. FOR DISEASE CONTROL & PREVENTION,
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In the Matter of the Recall of John Snaza No. 98918-4
https://www.cdc.gov/coronavirus/2019-ncov/more/masking-science-sars-cov2.html
[https://perma.cc/BCT5-2HTE]. Therefore, in addition to social distancing and
frequent handwashing, health officials recommend that people wear face coverings
in public settings to help stop the spread of COVID-19. Id.
On June 24, 2020, the Washington State secretary of health issued Order 20-
03, requiring that “[e]very person in Washington State must wear a face covering
that covers their nose and mouth when in any indoor or outdoor public setting.”
Washington Sec’y of Health, Order No. 20-03, at 1 (Wash. June 24, 2020),
http://mrsc.org/getmedia/d6167fa2-f2a3-427f-936b-
f630098d859f/Secretary_of_Health_Order_20-03_Statewide_Face_Coverings.aspx
(hereinafter Order) (boldface omitted). The Order further states that “[m]embers of
the public are required by law to comply with this order, and violators may be subject
to criminal penalties.” Id. at 3. The Order references RCW 43.70.130(7), which
delineates the secretary of health’s legal authority to issue orders, and RCW
70.05.120(4), which states that any person who violates such an order is guilty of a
misdemeanor. Id.
Snaza is the elected sheriff of Thurston County, and he has held that office
since 2011. On June 24, 2020—the same day the secretary of health issued the
Order—Snaza issued a public statement on behalf of the Thurston County Sheriff’s
Office regarding the mask mandate. News Release by Thurston County Sheriff John
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In the Matter of the Recall of John Snaza No. 98918-4
Snaza, No. 20-08 (Wash. June 24, 2020),
https://www.co.thurston.wa.us/sheriff/docs/20-08%20Face%20Coverings.pdf
[https://perma.cc./ZS6H-WZWZ] (hereinafter News Release). He recommended
that “everyone continue exercising safe and precautionary measures as we work
through this pandemic, including wearing masks around those in high-risk groups.”
Id. at 1. He also stated,
Due to the minor nature of this offense, and the possibility for a negative outcome during an enforcement encounter and various ways in which the order may be violated, it would be inappropriate for deputies to criminally enforce this mandate. [Thurston County Sheriff’s Office] deputies will not be doing so.
Id. Snaza announced that rather than criminally enforcing the mask mandate, officers
“will continue to engage with people when appropriate, and educate them in
partnership with our public health staff. Deputies will be trying to balance public
safety with public health during these challenging times of COVID-19.” Id.
Snaza further stated that in order to protect officers’ safety and their ability to
adequately respond to emergency situations, the decision of whether to wear a mask
would be left to each officer’s discretion based on the circumstances. Id. at 1-2.
Snaza announced he would not require officers to wear a mask. Id. Still, he
encouraged all officers to wear one and stated that his office would review
complaints about officers not wearing masks. Id. He continued, stating, “We have
never experienced this type of pandemic, so we are working with Thurston County
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In the Matter of the Recall of John Snaza No. 98918-4
Public Health to review and educate ourselves to make informed decisions by
reviewing every situation when it needs to be addressed.” Id. at 2.
B. Procedural History
West is a legal voter in Thurston County. On July 2, 2020, he filed a statement
of charges seeking Snaza’s recall, and the prosecutor’s office filed a petition and
ballot synopsis with one charge, as required by law. West alleged that Snaza’s News
Release was a public refusal to enforce the Order and was a recallable offense
because his statements interfered with a lawful order, impeded public health
officials’ efforts to protect the public during a global pandemic, and amounted to an
unlawful act and a failure to perform a duty imposed by law. 1 In response, Snaza
pointed to the word “may” in the Order to argue that criminal enforcement is a
discretionary act. Therefore, Snaza argued, the charge is factually and legally
insufficient because West did not allege that Snaza’s actions were manifestly
unreasonable.
At the hearing, the trial court found the recall charge factually and legally
sufficient. The court found that the Order’s language—“violators may be subject to
criminal penalties”—referred to a prosecutor’s ability to prove a case rather than to
1 West’s statement of charges and the ballot synopsis mischaracterized Snaza’s statement as a blanket refusal to enforce the Order. However, Snaza’s statement did not in fact reflect a categorical refusal to enforce the Order. Instead, he stated only that his office would not criminally enforce the Order. 5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In the Matter of the Recall of John Snaza No. 98918-4
an officer’s discretion to enforce the law. The trial court concluded the mask
mandate is clearly mandatory and RCW 70.05.120(4) mandates that a violation of
an order from a health official is a misdemeanor. Therefore, it concluded that Snaza
does not have any discretion and his News Release “runs counter to the mandate by
the legislators and the clear mandate by Department of Health.” Verbatim Report of
Proceedings at 35. The trial court also stated that Snaza’s News Release was “a
classic violation of the oath to follow the law.” Id. Therefore, the trial court found
the charge factually and legally sufficient and approved the ballot synopsis to
proceed to signature gathering.
Snaza appealed directly to this court, and we ordered accelerated review. We
conclude that Snaza has discretion in deciding how to enforce the Order and that his
public statement that he would not criminally enforce the Order was not manifestly
unreasonable. Therefore, the charge is factually and legally insufficient, and we
reverse.
II. ANALYSIS
Washington voters have a constitutional right to recall an elected official who
has “committed some act or acts of malfeasance or misfeasance while in office, or
who has violated his oath of office.” WASH. CONST. art. I, § 33; see also RCW
29A.56.110. For the purposes of recall:
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In the Matter of the Recall of John Snaza No. 98918-4
(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 neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law.
RCW 29A.56.110.
Courts do not assess the truth or falsity of a recall charge; the role of fact finder
is for the voters. In re Recall of West, 155 Wn.2d 659, 662, 121 P.3d 1190 (2005).
Rather, the court’s role is to act as gatekeeper to ensure that officials are not subject
to recall for “frivolous or unsubstantiated charges” by evaluating the factual and
legal sufficiency of the charge. Id.; see also RCW 29A.56.140. The charge must be
both factually and legally sufficient—if it fails one prong, it is insufficient. See In re
Recall of Kast, 144 Wn.2d 807, 816-19, 31 P.3d 677 (2001) (dismissing a charge
that was factually sufficient but legally insufficient). This court reviews the factual
and legal sufficiency of a recall petition de novo. In re Recall of Burnham, 194
Wn.2d 68, 76, 448 P.3d 747 (2019).
The recall petition is factually sufficient if the alleged acts or failures to act
establish a prima facie case of misfeasance, malfeasance, or a violation of the oath
of office. In re Recall of Wasson, 149 Wn.2d 787, 791, 72 P.3d 170 (2003). The
petition must also provide specific details, including the date, location, and nature of 7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In the Matter of the Recall of John Snaza No. 98918-4
the allegations. Id. Factual sufficiency also requires that the petitioner have some
knowledge of the facts underlying the charge. Id.
The recall petition is legally sufficient if it “define[s] substantial conduct
clearly amounting to misfeasance, malfeasance, or a violation of the oath of office.”
Id. “[L]awful discretionary acts are not a sufficient legal basis for a recall.” Id. at
792 (citing Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984)). If the recall
charge is based on a discretionary act, the charge is legally sufficient only if the
elected official “exercised discretion in a ‘manifestly unreasonable’ manner.”
Burnham, 194 Wn.2d at 76 (quoting Greco v. Parsons, 105 Wn.2d 669, 672, 717
P.2d 1368 (1986)).
The recall petition here alleges that Snaza committed an act of malfeasance or
misfeasance or a violation of his oath of office when he publicly refused to enforce
the mask mandate. Snaza does not directly challenge the factual sufficiency of the
charge. Rather, he argues the charge is insufficient because he has discretion to
enforce the law in whatever manner he believes necessary given the nature of the
circumstances. He further argues that his statement refusing to criminally enforce
the Order was not manifestly unreasonable.
An official’s discretion is relevant to making a prima facie showing of
misfeasance, malfeasance, or a violation of oath of office. See Kast, 144 Wn.2d at
816-17 (charge is factually sufficient when the facts allege the official may have
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In the Matter of the Recall of John Snaza No. 98918-4
exercised discretion in an unreasonable manner); see also In re Recall of Wade, 115
Wn.2d 544, 550, 799 P.2d 1179 (1990) (no prima facie showing where the facts do
not demonstrate an official improperly exercised discretion). If an official has
discretion, the recall petition must allege that they exercised their discretion in a
manifestly unreasonable manner in order to be factually sufficient. Here, the petition
alleges that Snaza failed to perform a duty and committed an unlawful act, but it
does not allege that he unreasonably exercised discretion. However, Snaza does have
discretion in how to enforce the law, and we hold that his exercise of that discretion
was not manifestly unreasonable.
The sheriff is bound by their oath of office and the legislature to enforce the
law. West argues Snaza’s general statutory duties require him to arrest people,
protect public peace and safety, execute orders, and keep the peace. RCW
36.28.010(1), (2), (3), (6). He also argues Snaza has a statutory duty to enforce orders
issued by health officials and to “to make complaint of all violations of the criminal
law.” RCW 36.28.011; RCW 43.20.050(5). Further, he points out that Snaza is
bound by his oath of office to uphold the law. Therefore, West argues, Snaza has a
mandatory duty to criminally enforce the Order. However, this court has not found
that there are mandatory duties unless such duties are required by the legislature.
The nature of policing requires officers to make judgment calls; here, Snaza argues
that how to enforce the mask mandate is one such judgment call. He argues that his
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In the Matter of the Recall of John Snaza No. 98918-4
News Release indicates the same by directing that officers will engage people to
educate them in accordance with public health officials’ guidelines, but officers will
not criminally enforce the Order.
Law enforcement officers generally enjoy significant discretion in deciding
how, when, and against whom to enforce the law.2 See Donaldson v. City of Seattle,
65 Wn. App. 661, 670, 831 P.2d 1098 (1992) (“Generally, where an officer has legal
grounds to make an arrest he has considerable discretion to do so.”); see also RCW
46.64.015 (granting officers discretion to cite and release drivers for misdemeanor
offenses). While officers have discretion to decide when to issue a citation or arrest
someone for certain offenses, this court has been reluctant to rule on “whether
officers must exercise discretion in every situation.” State v. Pulfrey, 154 Wn.2d 517,
523-24, 527, 111 P.3d 1162 (2005). When the law does not impose a mandatory duty
to criminally enforce the law, the officer has discretion to decide how to enforce the
law. See Donaldson, 65 Wn. App. at 670 (comparing an officer’s general discretion
to criminally enforce the law with an officer’s mandatory duty to arrest when
responding to a domestic violence call under chapters 10.99 RCW and 10.31 RCW).
That discretion is endemic to an officer’s duties, even when, as in this case, such
2 Indeed, this discretion explains, at least in significant part, patterns of disproportionate policing in communities of color. See Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 FORDHAM L. REV. 13, 25 (1998) (“No discussion of the . . . racial disparities in the criminal justice system would be complete, however, without a discussion of the discretionary decisions of police officers.”). 10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In the Matter of the Recall of John Snaza No. 98918-4
discretion has the potential to affect many—potentially negatively, given the
COVID-19 epidemic.
Snaza argues the charge against him is factually and legally insufficient
because the Order did not mandate criminal enforcement and he has discretion to
decide how to enforce the Order. While it is correct that Snaza has a duty to enforce
the Order, he is not required to criminally enforce it. The plain language of the Order
gives law enforcement officers discretion—it states that violators may be subject to
criminal penalties. Order at 3. “As a general rule . . . the word ‘may’ is permissive
only and operates to confer discretion.” Spokane County ex rel. Sullivan v. Glover,
2 Wn.2d 162, 169, 97 P.2d 628 (1940). Officers are under no mandatory duty,
statutory or otherwise, to criminally enforce the Order. Therefore, Snaza had
discretion. Such discretion is fundamental to his office.
Further, Snaza’s exercise of discretion was not manifestly unreasonable. See
Burnham, 194 Wn.2d at 76. Contrary to West’s assertion, Snaza did not announce a
blanket refusal to enforce the Order. Nor did he denounce the mask mandate and
encourage people to violate the Order.3 Rather, he declined only to criminally
3 Compare this case with a recent recall case involving the Snohomish County sheriff, who announced that, as sheriff, he had “‘no intention of carrying out enforcement for a stay-at-home directive.’” In re Recall of Fortney, No. 98683-5, slip op. at 6 (Wash. Jan. 14, 2021) https://www.courts.wa.gov/opinions/pdf/986835.pdf. Fortney also claimed the governor’s stay at home order was unconstitutional, and he encouraged business owners to remain open, in violation of the order. Id. at 6-8. We affirmed the trial court’s ruling that the charge was legally and factually sufficient. Id. at 6. 11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In the Matter of the Recall of John Snaza No. 98918-4
enforce the Order. Law enforcement officers’ duties are not solely criminal law
enforcement. See Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed.
2d 706 (1973) (Law enforcement officers’ “community caretaking functions [are]
totally divorced from the detection, investigation, or acquisition of evidence relating
to the violation of a criminal statute.”). In the News Release, Snaza affirmed that
officers will safely engage with people when appropriate, presumably to ask them
to wear a mask in compliance with the Order. He agreed that wearing a mask is a
precautionary measure intended to protect public health and safety. He also declared
the Thurston County Sheriff’s Office would continue its commitment to partner with
public health officials to educate the public.4 Additionally, he explained his decision
to not criminally enforce the Order upholds public safety. COVID-19 is transmitted
through respiratory droplets when people are in close proximity, so Snaza’s refusal
to criminally enforce the Order is not manifestly unreasonable because an interaction
between police and an unmasked person for the purposes of issuing a citation or
arrest increases the risk of transmission. Therefore, Snaza’s exercise of discretion
was not manifestly unreasonable, and the charge is legally insufficient. Burnham,
194 Wn.2d at 76. For the same reasons, the petition does not make a prima facie
4 In the News Release, Snaza also stated that Thurston County deputies are not required to wear masks. While this arguably conflicts with local health officials’ efforts to combat the COVID- 19 pandemic, it is a Thurston County Sheriff’s Office internal department policy issue. It is not a recall issue, nor did West allege that this was a recallable offense. 12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In the Matter of the Recall of John Snaza No. 98918-4
showing of misfeasance, malfeasance, or a violation of oath of office, and it is also
factually insufficient. Wasson, 149 Wn.2d at 791.
III. CONCLUSION
As sheriff, Snaza has discretion to decide how to enforce the Order. His
refusal to criminally enforce the Order was not manifestly unreasonable. Therefore,
we reverse the trial court’s ruling that the charge is factually and legally sufficient,
and we remand with instructions to dismiss the recall petition.
______________________________
WE CONCUR:
___________________________ ______________________________