In re Snaza

197 Wash.2d 104

480 P.3d 404

In the MATTER OF the RECALL OF John SNAZA, Thurston County Sheriff.

No. 98918-4

Supreme Court of Washington.

Filed: February 11, 2021

Donald R. Peters Jr., Thurston County Prosecutor's Office, 2000 Lakeridge Dr. Sw Bldg. 2, Olympia, WA, 98502-6045, for Appellant.

Arthur West (Appearing Pro Se), 120 State Avenue Ne, #1497, Olympia, WA, 98501, for Respondent.

MONTOYA-LEWIS, J.

¶1 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.

¶2 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 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

¶3 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=govdelivery [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 , 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.

¶4 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.

¶5 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 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. ¶6 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 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

¶7 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.

¶8 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 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.

¶9 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

¶10 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:

(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 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 Wash.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 Wash.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 Wash.2d 68, 76, 448 P.3d 747 (2019).

¶12 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 Wash.2d 787, 791, 72 P.3d 170 (2003). The petition must also provide specific details, including the date, location, and nature of the allegations. Id. Factual sufficiency also requires that the petitioner have some knowledge of the facts underlying the charge. Id .

¶...