In Re Recall of Snaza

480 P.3d 404, 197 Wash. 2d 104

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON IN CLERK’S OFFICE FEBRUARY 11, 2021 SUPREME COURT, STATE OF WASHINGTON FEBRUARY 11, 2021 SUSAN L. CARLSON SUPREME COURT CLERK

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 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 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 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 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 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 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 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 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 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 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 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 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.

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WE CONCUR:

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