In re the Recall of Bolt

298 P.3d 710, 177 Wash. 2d 168
CourtWashington Supreme Court
DecidedMarch 28, 2013
DocketNo. 88227-4
StatusPublished
Cited by12 cases

This text of 298 P.3d 710 (In re the Recall of Bolt) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Recall of Bolt, 298 P.3d 710, 177 Wash. 2d 168 (Wash. 2013).

Opinion

Owens, J.

¶1 This case concerns a recall petition filed against Mayor Terecia F. Bolt and Councilman Dennis L. Jenson of the town of Marcus. The petition included 10 charges against Mayor Bolt and 6 charges against Councilman Jenson. The superior court determined that only one charge against Mayor Bolt and Councilman Jenson was factually and legally sufficient to support a recall election. We find that none of the charges are factually and legally sufficient, and thus we reverse the superior court’s decision on the one remaining charge.

FACTS

¶2 Marcus is a town of 183 people over 0.23 square miles near the Grand Coulee Dam. In November 2012, three other city council members (hereinafter the recall petitioners) filed 10 recall charges against Mayor Bolt and 6 charges against Councilman Jenson and requested a recall election. [172]*172Because of the number of charges, the underlying facts are included in the analysis of each charge below.

¶3 At the superior court, none of the parties were represented by counsel. The superior court found that the only factually and legally sufficient charge against Mayor Bolt and Councilman Jenson was related to equipment purchases made prior to council authorization but ratified after the fact (hereinafter the preauthorization purchase charge).

¶4 The recall petitioners obtained counsel and appealed the superior court decision to this court, assigning error to the trial court’s decision on all of the charges other than the preauthorization purchase charge. Unaware of the recall petitioners’ appeal, Mayor Bolt and Councilman Jenson filed a motion to reconsider with the superior court and attached additional materials. The superior court struck the motion to reconsider and the attached materials because they were filed one day late. Mayor Bolt and Councilman Jenson, representing themselves, appealed the superior court’s decision to strike the materials attached to the motion for reconsideration1 but did not ultimately file a proper cross appeal of the trial court’s ruling on the preauthorization purchase charge. They apparently believed that the recall petitioners’ appeal meant this court would automatically review all parts of the superior court’s ruling, as their response brief to this court assigned error to the superior court’s ruling on the preauthorization purchase charge. In the reply brief, the recall petitioners contend that Mayor Bolt and Councilman Jenson waived that issue on appeal by failing to properly file a cross appeal.

[173]*173ANALYSIS

I. The Trial Court Correctly Ruled That Most of the Recall Charges Are Insufficient

¶5 A nonjudicial elected official can be recalled from office if a petition charges that the official has committed misfeasance or malfeasance while in office or that the official has violated the oath of office. Const, art. I, §§ 33-34. “Misfeasance” and “malfeasance” mean “any wrongful conduct that affects, interrupts, or interferes with the performance of official duty.” RCW 29A.56.110(1). “Misfeasance” also means “the performance of a duty in an improper manner,” RCW 29A.56.110(l)(a), and “malfeasance” also means “the commission of an unlawful act,” RCW 29A.56-.110(l)(b). A violation of the oath of office is “the neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law.” RCW 29A.56.110(2).

¶6 We have previously recognized that the legislature intended to limit the recall process so that public officials are protected from petitions based on frivolous or unsubstantiated charges. In re Recall of Kast, 144 Wn.2d 807, 812-13, 31 P.3d 677 (2001). Thus, recall petitions must “state the act or acts complained of in concise language” and “give a detailed description including the approximate date, location, and nature of each act complained of” (sometimes referred to as the “specificity requirement”). RCW 29A.56.110. After a recall petition is filed, a superior court determines whether the acts stated in the charge satisfy the recall criteria — essentially serving a gatekeeping function. See RCW 29A.56.140; Kast, 144 Wn.2d at 813. The courts do not evaluate the truthfulness of a petitioner’s charges, instead considering only whether the charges are both factually and legally sufficient. RCW 29A.56.140; Kast, 144 Wn.2d at 813 (citing In re Recall of Pearsall-Stipek, 141 Wn.2d 756, 764, 10 P.3d 1034 (2000)). Therefore, courts must determine “whether, accepting the allegations [174]*174as true, the charges on their face support the conclusion that the officer abused his or her position.” In re Recall of Wasson, 149 Wn.2d 787, 792, 72 P.3d 170 (2003).

¶7 Factual sufficiency means that the charges (1) satisfy the specificity requirement described above and (2) enable the public and the challenged public official to identify the “ ‘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.’ ” Kast, 144 Wn.2d at 813 (quoting Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984)). If an official is charged with a violation of the law, “the petitioners must at least have knowledge of facts which indicate an intent to commit an unlawful act.” In re Recall of Wade, 115 Wn.2d 544, 549, 799 P.2d 1179 (1990).

¶8 Legal sufficiency requires that the petitioner “state with specificity substantial conduct clearly amounting to misfeasance, malfeasance or violation of the oath of office.” Chandler, 103 Wn.2d at 274 (emphasis added). Thus, conduct that is insubstantial is legally insufficient. Kast, 144 Wn.2d at 815. To establish legal sufficiency, petitioners must identify the “standard, law, or rule that would make the officer’s conduct wrongful, improper, or unlawful.” In re Recall of Ackerson, 143 Wn.2d 366, 377, 20 P.3d 930 (2001) (holding that a recall petition charging a council member with sleeping during a public meeting was legally insufficient because it failed to identify the rule that made such conduct wrongful).

¶9 We have also outlined additional rules for legal sufficiency.

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Bluebook (online)
298 P.3d 710, 177 Wash. 2d 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-recall-of-bolt-wash-2013.