In re Fortney

503 P.3d 556

In the MATTER OF the RECALL OF: Adam FORTNEY, Snohomish County Sheriff.

No. 99804-3

Supreme Court of Washington.

Filed: February 10, 2022

Lori Shavlik (Appearing Pro Se), P. O. Box 73, Woodinville, WA, 98072, for Appellant.

Lyndsey Marie Downs, Snohomish County Prosecutor's Office, 3000 Rockefeller Ave. # Ms504, Everett, WA, 98201-4046, for Respondent.

Rebecca June Guadamud, Attorney at Law, 3000 Rockefeller Ave., Everett, WA, 98201-4046, for Other Parties.

OWENS, J.

¶1 This case concerns a recall petition against Snohomish County Sheriff Adam Fortney. The petitioner, Lori Shavlik, challenges the trial court's finding that her eight recall charges are either insufficient or barred under the doctrine of res judicata. We affirm the trial court and award Sheriff Fortney costs on appeal.

FACTS AND PROCEDURAL HISTORY

¶2 Lori Shavlik seeks to recall Snohomish County Sheriff Adam Fortney. Her petition is the fourth to recall Sheriff Fortney since he took office on January 1, 2020. As the fourth attempt to recall Sheriff Fortney, the charges in Shavlik's current petition overlap with charges brought in previous recall petitions. According to Sheriff Fortney, this overlap warrants barring some of the charges in the current petition. Because we must consider the charges brought in prior recall petitions, the history of each recall attempt is discussed below.

A. Petition I

¶3 Shavlik filed her first recall petition on April 23, 2020. 3 Clerk's Papers (CP) at 422-37. That petition solely concerned Sheriff Fortney's April 21, 2020, Facebook post and subsequent press conference where he stated he would not criminally enforce Governor Inslee's Stay Home Order.¹ Id. In that petition, Shavlik alleged those actions (a) violated the sheriff's statutory duties under RCW 36.28.010 and 36.28.011, (b) constituted wrongful conduct that affects, interrupts, or interferes with COVID-19 prevention efforts, (c) constituted performance of a duty in an improper manner, (d) constituted neglect or a knowing failure by an elective public officer to perform faithfully a duty imposed by law, (e) constituted an unlawful act insomuch as it encourages citizens to violate the governor's proclamation and other local health directives in violation of RCW 43.20.050, RCW 70.05.120, and WAC 246-100-070, (f) undermined public trust and puts others at risk, including health officials and emergency management teams, and (g) resulted in private gain to Sheriff Fortney's private business interests as a result of Sheriff Fortney's public office, in violation of RCW 42.23.070. Id. at 439-40.

¶4 The superior court found charges (a), (c), and (d) sufficient and allowed Shavlik to gather signatures. Id. at 250-52. But Shavlik failed to file any signatures as required by RCW 29A.56.150(2). 4 CP at 642. Accordingly, recall I ended, and Sheriff Fortney remained in office.

B. Petition II

¶5 Shortly after Shavlik's first petition, a separate group of voters known as "the Committee to Recall Snohomish County Sheriff Adam Fortney" (Committee) filed a recall petition against Sheriff Fortney containing five charges. 3 CP at 258-321. The superior court found four of the charges sufficient. Id. at 351-52. Those four charges read as follows:

1. Adam Fortney endangered the peace and safety of the community and violated his statutory duties under RCW 36.28.010 and/or 36.28.011 and/or oath of office by declaring that he has not and will not enforce Governor Inslee's "Stay Home – Stay Healthy" proclamation;

2. Adam Fortney endangered the peace and safety of the community and violated his statutory duties under RCW 36.28.010 and/or 36.28.011 and/or oath of office by inciting the public to violate Governor Inslee's "Stay Home – Stay Healthy" proclamation;

3. Adam Fortney endangered the peace and safety of the community, violated his statutory duties under RCW 36.28.010, and exercised discretion in a manifestly unreasonable manner by rehiring three deputy sheriffs previously discharged following investigation and findings of misconduct; and

4. Adam Fortney violated his statutory duties under RCW 36.28.011 and/or 36.28.020 and exercised discretion in a manifestly unreasonable manner by making a public statement on March 27, 2020 that absolved a deputy sheriff of asserted wrongdoing for tackling a black woman related to a jaywalking incident without ensuring a proper investigation.

In re Recall of Fortney , 196 Wash.2d 766, 770, 478 P.3d 1061 (2021). On appeal, we held the second and third charges were factually sufficient but reversed the trial court on the fourth charge as legally and factually insufficient. Ultimately the Committee failed to file any signatures, ending the second recall petition. 4 CP at 642.

C. Petition III

¶6 Nearly a year after filing her first petition, Shavlik filed her second petition to recall Sheriff Fortney. 3 CP at 354-78. This petition was not subject to a sufficiency hearing because the superior court dismissed the petition after Shavlik moved to withdraw it.

D. Petition IV

¶7 On April 1, 2021, Shavlik filed the present recall petition containing eight charges. 1 CP at 15-33; 2 CP at 216.

¶8 The superior court held a sufficiency hearing on May 11, 2021, and dismissed petition IV. In dismissing the petition, the court found that charges 1(e) and 2 were barred by res judicata because they were previously litigated in the first and second recalls. Verbatim Report of Proceedings (VRP) at 34-36. The superior court found the remaining charges either factually or legally insufficient. Id. at 36-43. In response, Shavlik appealed directly to this court under RCW 29A.56.140.

ANALYSIS

¶9 Shavlik raises three issues on appeal. First, she claims the trial court erred by finding charges 3 through 8 insufficient. Second, she claims the trial court erred by finding charges 1(e) and 2 barred under res judicata. Third, she claims the trial court and the Snohomish County Prosecutor's Office deprived her of a fair and impartial hearing. We reject all three claims of error, affirm the trial court, and award Sheriff Fortney costs on appeal.

A. All of Shavlik's Charges Are Insufficient To Sustain the Recall Petition

¶10 Washington voters have a constitutional right to recall a nonjudicial 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 a recall petition:

(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.

¶11 But a voter's right to recall is not unlimited. Rather, "an elected official can be recalled only for cause, meaning the petition must be factually and legally sufficient." In re Recall of Inslee , 194 Wash.2d 563, 567, 451 P.3d 305 (2019).

¶12 A recall petition is factually sufficient if the official's alleged acts or omissions establish a prima facie case of misfeasance, malfeasance, or a violation of the oath of office. In re Recall of Wasson , 149 Wash.2d 787, 791, 72 P.3d 170 (2003). To establish a prima facie case, the petition must provide specific details, including the date, location, and nature of the allegations. Id. ; see In re Recall of Boldt , 187 Wash.2d 542, 549, 386 P.3d 1104 (2017) ("In determining whether a petition is factually sufficient, we assume the veracity of allegations made so long as they are reasonably specific and detailed.") And the petitioner must have some knowledge of the facts underlying the charges. Wasson , 149 Wash.2d at 791, 72 P.3d 170. Such knowledge is not required to be firsthand knowledge, but we have held that "generally, media articles do not form a sufficient basis for the personal knowledge required by law." In re Recall Charges Against Davis , 164 Wash.2d 361, 368, 193 P.3d 98 (2008).

¶13 Meanwhile, a recall petition is legally sufficient if it "define[s] substantial conduct amounting to misfeasance, malfeasance, or a violation of the oath of office." Id. at 371, 193 P.3d 98. To establish legal sufficiency, the petitioner must identify the "standard, law, or rule that would make the officer's conduct wrongful, improper, or unlawful." In re Recall of Ackerson , 143 Wash.2d 366, 377, 20 P.3d 930 (2001). Under this standard, lawful discretionary acts are generally insufficient to support a recall. Id. But an official's discretionary act is legally sufficient if the elected official "exercised discretion in a ‘manifestly unreasonable’ manner." In re Recall of Burnham , 194 Wash.2d 68, 76, 448 P.3d 747 (2019) (quoting Greco v. Parsons , 105 Wash.2d 669, 672, 717 P.2d 1368 (1986) ).

¶14 A superior court initially determines whether the charges are sufficient. In re Recall of West , 155 Wash.2d 659, 663, 121 P.3d 1190 (2005) ; RCW 29A.56.140. In determining sufficiency, a court does not assess the truth or falsity of a recall charge; that role is the sole province of the voters. West , 155 Wash.2d at 662, 121 P.3d 1190. Rather, the court acts as a gatekeeper "to ensure that the recall process is not used to harass public officials by subjecting them to frivolous or unsubstantiated charges." Id.

¶15 We review a recall petition's sufficiency de novo. Burnham , 194 Wash.2d at 76, 448 P.3d 747. If a charge is factually insufficient, we do not need to analyze whether it is legally sufficient and vice versa. In re Recall of Bolt , 177 Wash.2d 168, 175, 298 P.3d 710 (2013).

1. Charge 3: Private Prosecution

¶16 In charge 3, Shavlik alleges that Sheriff Fortney retaliated against her by contracting with a private law firm to prosecute...