State ex rel. Mandatory Bussing v. Brooks

492 P.2d 536, 80 Wash. 2d 121, 1972 Wash. LEXIS 569

• Court: Washington Supreme Court
• Decided: January 6, 1972
• Docket: No. 41912
• Status: Published

Opinions

Neill, J.

Petitioners filed recall charges in King County against all seven members of the Seattle School Board. Defendants, King County election officials, refused to issue ballot synopses on the ground that the charges are not legally sufficient to support recall. Petitioners thereupon commenced this action for a writ of mandamus compelling issuance of the ballot synopses. In response, defendants assert the legal insufficiency of the charges and, as an- affirmative defense, that issuance of the requested synopses in the present circumstances would amount to “state action” violative of the equal protection clause of the Fourteenth Amendment.

The trial court denied the writ, concluding that the allegations of the recall charges fail to assert grounds for recall and that the allegations were fatally vague. Motions for evidentiary hearing on the affirmative defense and challenges thereto were denied without reaching the merits.

Our constitution establishes a very broad right of the electorate to recall elective public officials.¹ In compliance with this constitutional mandate, the legislature enacted RCW 29.82, which, provides for the initiation of recall proceedings by

any legal voter or committee or organization of legal voters of the state or of any political subdivision thereof

by preparation of

a typewritten charge, reciting that such officer, naming him and giving the title of his office, has committed an act or acts of malfeasance, or an act or acts of misfeasance while in office, or has violated his oath of office, or has been guilty of any two or more of the acts specified in the Constitution as grounds for recall, which charge shall state the act or acts complained of in concise language, without unnecessary repetition, . . .

RCW 29.82.010.

Upon presentation of such charge to the election officials it is incumbent upon them,-

If the acts complained of in the charge are acts of malfeasance or misfeasance while in office, or a violation of the oath of office, as specified in the Constitution, . . . [to] formulate a ballot synopsis of such charge . . .

RCW 29.82.020.

This court has on numerous occasions interpreted and applied these constitutional and statutory provisions. Some basic rules may be gleaned from these prior cases. First, in determining the validity of recall charges, courts are limited to examination of the charges stated and cannot inquire into factual matters extraneous to the allegations. E.g., State ex rel. LaMon v. Westport, 73 Wn.2d 255, 438 P.2d 200 (1968). Second, courts must assume the truth of the charges in determining whether legally sufficient grounds for recall have been stated. E.g., Skidmore v. Fuller, 59 Wn.2d 818, 370 P.2d 975 (1962). Third, just as there can be no inquiry into the truth or falsity of the charges, there can be no inquiry into the motives of those filing the charges. Roberts v. Millikin, 200 Wash. 60, 93 P.2d 393 (1939). Fourth, recall charges are sufficiently specific if they are definite enough to allow the charged official to meet them before the tribunal of the people. E.g., State ex rel. LaMon v. Westport, supra. Finally, any one sufficient charge requires the holding of a recall election. E.g., Morton v. McDonald, 41 Wn.2d 889, 252 P.2d 577 (1953).

With this Washington concept of recall as prologue, we proceed to examine the sufficiency of the recall charges. These charges are:

(1) That acting as d member of the Board of Directors of Seattle School District No. 1, he did conspire and agree with remaining members of said Board of Directors and others, within five (5) years immediately pre-ceeding [sic] the filing of these charges, to destroy and abandon the neighborhood public school concept, which has been in existence since the creation of said Seattle School District and relied upon by the citizens thereof, and to substitute therefor large school complexes to separate children from their families and neighborhood environments and to destroy and break down rights of parents to supervise the guidance of their children, and to make obsolete and useless existing capital improvements including school structures and facilities of said school district. He did the above acts knowing that they would require the construction of new facilities costing millions of dollars of taxpayers’ money over and above the currently existing cost of making ample provision for the education of all children in said district. At public meetings of said Seattle School Board and in press releases, he willfully and knowingly misrepresented to the citizens of the school district the true nature of the above program by stating it was only a program for desegregation of the Seattle Public Schools.

(2) That, acting as a member of and in concert with other members of the Board of Directors of Seattle School District No. 1, he has knowingly and wilfully retained one Forbes Bottomly as Superintendent of said school district despite knowledge that he is unqualified to carry out the duties of such position as evidenced by the steady decline in the quality of education in said district since the appointment of said Forbes Bottomly approximately five years prior to filing this charge.

(3) Within five (5) years immediately preceeding [sic] the filing of this charge, acting as a member of, and .in concert with other members of the Board of Directors of Seattle School District No. 1, he did knowingly establisH and officially impose segregation of students by race (dejure [sic] segregation) within said school district and particularly in the Meany and Madrona schools thereof.

(4) That on or about November 11, 1970, as a member of the Board of Directors of Seattle School District No. 1, he did conspire with the remaining members of the school board and with others to transfer approximately 600 white students from their established attendance areas of Lincoln and Roosevelt High Schools to the remote Garfield High School attendance area for the 1971-1972 school year, and thereafter to effect massive student transfers throughout the entire school district. The race of the students was the criterion used to determine which students in the school district would be transferred and which schools they would attend, contrary to the Constitution of the State of Washington.

(5) That on or about November 11, 1970, as a member of the Board of Directors of Seattle School District No. 1, he did conspire and agree with the remaining members of said Board of Directors and with others to transfer approximately 600 non-white students from their established attendance areas of the Garfield High School area to the remote Lincoln and Roosevelt High School attendance areas for the 1971-1972 school year, and thereafter to effect massive student transfers throughout the entire school district. The race of the students was the criterion used to determine which students in the school district would be transferred and which schools they would attend, contrary to the Constitution of the State of Washington.

(6) That on or about November 11, 1970, as a member of the Board of Directors of Seattle School District No. 1, he did conspire and agree with the remaining members of said board and with others to provide school transportation only for students participating in the mandatory transfer program between the Lincoln and Roosevelt areas and the Garfield area of said school district, and to deny other students equal treatment with regard to providing school transportation during the 1971-1972 school year.

(7) That on or about November 11, 1970, acting as a member of the Board of Directors of Seattle School District No. 1, he did conspire and agree with remaining members of said Board of Directors to abdicate their duty to exercise their best and honest judgment with regard to the budget and cost of a program of student transfers between schools in said school district for the 1971-1972 school year.

We will treat these charges in two general groups: those which pertain to the proposed school desegregation and bussing program, and those which do not purport to have that reference. As to the first group of charges, we believe .the recent case of Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 28, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971), has controlling significance. In that case, the court upheld a court-ordered desegregation plan which incorporated mandatory bussing in a “Southern” school district which was infected with “de jure” racial segregation.² The court said:

The remedy for such segregation may be administratively awkward, inconvenient and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to ehminate the dual school systems.

In a companion case, the court rejected the notion that school authorities cannot consider the race of students in formulating and implementing desegregation plans:

Just as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy. To forbid, at this stage, all assignments made on the basis of race would deprive school authorities of the one tool absolutely essential to fulfillment of their constitutional obligation to eliminate existing dual school systems.

North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 28 L. Ed. 2d 586, 589, 91 S. Ct. 1284 (1971).

Although the Swann court rather clearly limited the authority of federal courts to impose desegregation plans on school authorities to situations involving “de jure” dual systems, that court also observed (Swann, 402 U.S. at 16):

School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; . . .

Petitioners argue that these federal precedents have no application in this case because any segregation in the Seattle schools is “de facto” and thus beyond the purview of those cases. We disagree. For our present purpose of testing the sufficiency of recall charges, the nature of segregation within Seattle schools as “de facto” or “de jure” is of no consequence. Reason impels the conclusion that, if the constitution supports court directed mandatory bussing to desegregate schools in a system which is dual “de jure,” then such bussing is within the appropriate exercise of the discretion of school authorities in a system which is dual “de facto.” In this connection, it is important to note that the recall charges do not attack particulars of the bussing plan. Rather, they are leveled against the enactment of such a plan per se, with alleged consequences which could be asserted as to any mandatory bussing plan. Assuming such charges are true, they do not charge misfeasance, malfeasance or violation of the oath of office. Accordingly, the trial court is affirmed as to charges numbered 1, 4, 5, 6 and 7, which relate to a mandatory bussing plan. Charges 4 and 5 are directed at the bussing plan per se, and charges 1, 6 and 7 attack purported “awkwardness and inconvenience” and “burdens” (Swann v. Charlotte-Mecklenburg Bd. of Educ., supra) of the plan.

The remaining charges do not, on their face, have reference to the bussing plan. Charge 2 asserts that the school board members knowingly and willfully retained an unqualified superintendent of the school district “as evidenced by the steady decline in the quality of education in said district.” In State ex rel. LaMon v. Westport, 73 Wn.2d 255, 438 P.2d 200 (1968), and Morton v. McDonald, 41 Wn.2d 889, 252 P.2d 577 (1953), charges of employing officials known to be incompetent were held to be legally sufficient for recall purposes. On its face, charge 2 is also legally sufficient, assuming its truth, to support recall. The trial court erred in ruling this charge insufficient on the grounds that the facts of the case do not bear it out. The charge may ultimately prove to be unfounded, even frivolous, but courts are not empowered to make that determination. E.g., Skidmore v. Fuller, 59 Wn.2d 818, 370 P.2d 975 (1962). Defendants’ reference to the statute and rules' setting forth qualifications for obtaining the office of superintendent is of no avail here, since the charge does not pertain to eligibility, but to performance while in office. As a majority of this court is unwilling to overrule the Westport and Morton cases as to what constitutes “misfeasance, malfeasance or violation of oath of office,” we must hold that charge 2 states a legally sufficient allegation.

We turn to the legal sufficiency of the remaining charge, charge 3. Here, the parties engage in an interesting turnabout. Petitioners assert that the school board members knowingly and officially established and imposed “de jure” racial segregation within the school district, specifying two schools in particular. Defendants argue that “de jure” segregation requires some legal mandate or color of law; that the charge is not legally sufficient since it fails to specify such a mandate.

Defendants’ argument on this point has lost efficacy in light of the United States Supreme Court’s decision in Swann v. Charlotte-Mecklenburg Bd. of Educ., supra. We find, in the language of Swann, the essence, if not the express existence of a rule expanding the meaning of the term “de jure segregation” to comprehend any situation in which the activities of school authorities have had a racially discriminatory impact contributing to the establishment or continuation of a dual system of schools, and a corresponding limit on the meaning of “de facto segregation” to include only that which is inadvertent and without the assistance or collusion of school authorities.³ The formality of a legal mandate is no prerequisite. The charge states a violation of constitutional rights' and, if true, would support recall.

Although charge 3 seems somewhat dissonant in company with other charges against the school board members pertaining to their bussing plan, we reiterate the rule that the truth and consequence of a recall charge are matters to be determined by the people, not the courts. E.g., Skidmore v. Fuller, supra. Furthermore, we are of the opinion that this charge, in specifying that the act complained of was “official” and in particularizing two schools involved, was sufficiently definite. See State ex rel. LaMon v. Westport, supra.

The trial court indicated that, should any charge be found legally sufficient, defendants would be entitled to an evidentiary hearing on their assertion that the recall campaign is for the purpose of blocking desegregation and that issuance of a ballot synopses would constitute “state action” violative of the equal protection clause. With reference to charges numbered 2 and 3, defendants’ argument is unconvincing. Neither charge has any express relevance to the bussing plan and there is nothing intrinsic therein which would have a discriminatory effect. Of course, the recall process is not invalid state action per se.

Defendants cite Reitman v. Mulkey, 387 U.S. 369, 18 L. Ed. 2d 830, 87 S. Ct. 1627 (1967), and similar cases to support their position that a political process, such as recall, cannot be used to thwart Fourteenth Amendment rights. Those cases involved attempts to use state processes for immediately discriminatory objectives, such as repeal of open housing (Reitman v. Mulkey, supra) or rescission of a desegregation plan (Keyes v. School Dist. 1, 303 F. Supp. 279 (Colo. 1969)). See also North Carolina State Bd. of Educ. v. Swann, supra (“anti-bussing” statute). Here, as to charges 2 and 3, there is no such immediate objective and effect, and such a purpose can only be gleaned from an investigation of the personal motives of the petitioners. Such inquiry is not proper in recall cases. Roberts v. Millikin, supra. Furthermore, to accept defendants’ contention on this point would allow officials subject to legally sufficient recall charges to take refuge in the fact that recall may have a discriminatory effect, even though that effect is unrelated and incidental to the recall itself. Such a severe limitation on the right of the people to recall elected officials is not required and is not in keeping with the broad concept of the right of recall contained in our constitution.

Affirmed as to charges 1, 4, 5, 6 and 7. Reversed as to charges 2 and 3, and remanded for proceedings in accordance herewith.

Hamilton, C.J., Finley, Rosellini, Stafford, and Wright, JJ., and Ryan, J. Pro Tern., concur.

1 The Washington Constitution states:

“Amendment 8

“Art. 1 was amended by adding the two following sections:

Ҥ 33 Recall of Elective Officers. Every elective public officer of the state of Washington expect [except] judges of courts of record is subject to recall and discharge by the legal voters of the state, or of the political subdivision of the state, from which he was elected whenever a petition demanding his recall, reciting that such officer has committed some act or acts of malfeasance or misfeasance while in office, or who has violated his oath of office, stating the matters complained of, signed by the percentages of the qualified electors thereof, hereinafter provided, the percentage required to be computed from the total number of votes cast for all candidates for his said office to which he was elected at the preceding election, is filed with the officer with whom a petition for nomination, or certificate for nomination, to such office must be filed under the laws of this state, and the same officer shall call a special election as provided by the general election laws of this state, and the result determined as therein provided.

“§ 34 Same. The legislature shall pass the necessary laws to carry out the provisions of section thirty-three (33) of this article, and to facilitate its operation and effect without delay: Provided, That the authority hereby conferred upon the legislature shall not be construed to grant to the legislature any exclusive power of lawmaking nor in any way limit the initiative and referendum powers reserved by the people. The percentages required shall be, state officers, other than judges, senators and representatives, city officers of cities of the first class, school district boards in cities of the first class; county officers of counties of the first, second and third classes, twenty-five per cent. Officers of all other political subdivisions, cities, towns, townships, precincts and school districts not herein mentioned, and state senators and’representatives, thirty-five per cent.”

2 The scope of the term “de jure”' is not limited by geography or by the concept of an express provision of law. Segregation, to be invidious, need not be blatant. The constitution, as elucidated by Brown v. Board of Educ., 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686, 38 A.L.R.2d 1180 (1954), and its progeny, especially the most recent cases, outlaws racial discrimination in school systems which is the result of discriminatory action by school authorities, with or without other state action. “Our objective in dealing with the issues presented by these cases is to see that school authorities exclude no pupil of a racial minority from any school, directly or indirectly, on account of race . . .” Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 28 L. Ed. 2d 554, 570, 91 S. Ct. 1267 (1971). Indicia of such a “de jure” system include factors in addition to student assignments within the school district in question, such as: “existing policy and practice with regard to faculty, staff, transportation, extracurricular activities, and facilities” (Swann, 28 L. Ed. 2d 568). “In ascertaining the existence of legally imposed school segregation, the existence of a pattern of school construction and abandonment is ... a factor of great weight.” (Swann, 28 L. Ed. 2d 569). If, in fact, such a racially discriminatory system is found to exist, then school authorities have the affirmative duty to take any necessary steps to convert to a system which is unitary not just in form but “in which racial discrimination would be eliminated root and branch.” (Swann, 28 L. Ed. 2d 566, quoting Green v. County School Bd., 391 U.S. 430, 437-38, 20 L. Ed. 2d 716, 88 S. Ct. 1689 (1968)..

3 Accord: Johnson v. San Francisco Unified School Dist., 339 F. Supp. 1315 (N.D. Cal., July 9, 1971).

The Swann court expressly put aside any question as to the effect in this area of state action not involving any discriminatory action by school authorities. 28 L. Ed. 2d 554, 570. However, in the companion case of North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 45, 28 L. Ed. 2d 586, 589, 91 S. Ct. 1284 (1971), the court met this question in significant part. In striking down a state “anti-bussing law,” the court said:

We observed in Swann, supra at 16, that school authorities have wide discretion in formulating school policy, and that as a matter of educational policy school authorities may well conclude that some kind of racial balance in the schools is desirable quite apart from any constitutional requirements. However, if a state-imposed limitation on a school authority’s discretion operates to inhibit or obstruct the operation of a unitary school system or impede the disestablishing of a dual school system, it must fall; state policy must give way when it operates to hinder vindication of federal constitutional guarantees.

See also Keyes v. School Dist. 1, 303 F. Supp. 279 (Colo. 1969).