PROPOSED AMENDMENT OF RCW 29.82 THE RECALL

By Bob Hegamin    September 1, 1998

Charge: The revision of RCW 29.82 in 1984 basically stripped the right of Recall from the residents of the state of Washington.

PURPOSE The purpose of this amendment is to return the right of Recall to the electorate. The primary goal is to prevent the judicial arm of government from unwittingly usurping this power of the electorate, namely, to recall those they put in office.

The argument begins with Mr. Michael L. Cohen, Recall in Washington: A Time for Reform Washington Law Review Vol.50.29, 1974. In part, he states:

• Recall is the electoral process by which an elected officer is removed before the expiration of the term of office. All but 10 states provide for the recall of public officers, but Washington is the only state whose constitution provides that recall by the electorate must be for cause.

• The court has limited the scope of judicial review in recall cases to a facial examination of the recall charges to determine whether the charges state sufficient cause for recall. The Supreme Court has consistently refused to consider the truth of the charges, or the motives of the petitioners which prompt the recall of elective officers.

Presently, RCW 29.82.023 states that ".... the superior court shall have conducted a hearing on and shall have determined without cost to any party, (1) whether or not the acts stated in the charge satisfy the criteria for which a recall petition may be filed, and (2) the adequacy of the ballot synopsis."

A SHORT HISTORY

From 1912 through 1984, Washington residents had gradually emboldened themselves to remove their elected officers at will, even for disagreements on issues of public policy. Elected officials, especially Mayors and members of City Councils, had been the principle targets of recalls - as they are now - charged from using poor judgment to being incompetent yet, under the law, neither a recallable offense. In 1984, in its attempt to reestablish the provision of the Constitution, the Washington State legislature revised the language of the statute. They wanted to reassure elected officials they could be removed "for cause" only – and, only if the charge could be shown to be an act or acts of misfeasance, malfeasance or a violation of the oath of office. The 1984 amendment, however, was written so broadly that the legislature essentially allowed the court to extend its jurisdiction over the issue of recalls over and beyond the authority that had originally been delegated to it by the Constitution.

PROBLEM

In today’s environment, an elected officer can excuse an improper or unlawful act by simply declaring the act was conducted in the public interest and performed "honestly, faithfully, and to the best of one’s ability". This broad language has legitimized unlawful, unethical, and improper conduct by elected officials. The Recall is not a viable corrective option.

The main problem exists solely because both the court and the "Preparer of the Ballot Synopsis" act as "gatekeepers. The problem is further exacerbated, however, since RCW 29.82 presently allows both the person whose recall is being demanded and the person or persons filing charges to unilaterally decide to appear with or without counsel before the court.

In assuming its responsibility under this amendment, the legal arm of government will simply assure itself that both parties understand the nature and limit of the charge or charges which can be debated before the people.

First, consider the existing sequence of events called for in the recall process:

1. The person or persons must prepare and file written charges against the elected official whose recall is being demanded.
1. The charges are submitted to the Records and Elections Office which certifies it to be correct as to substance and form, according to law.
1. The Records and Elections Office then submits the charges to the county’s Office of the Prosecuting Attorney.
1. The "Preparer of the Ballot Synopsis", and the ballot synopsis are determined by RCW 29.82.021. The Preparer then submits the synopsis to the Superior Court.
1. The Superior Court of Washington then determines the legal and factual sufficiencies of the recall charges. This must be accomplished without making any judgments of the charges themselves.
2. In event of an appeal, the Washington State Supreme Court reviews the case on an expedited basis.

The citizen has essentially been elbowed out of the recall process by the legal influence, since, before all else, a recall charge must be both "legally and factually sufficient". That is, in order to "satisfy the criteria" of RCW 29.82.023, the petitioner must convince the court that not only have all the legal requirements been met but that there is a legitimate "cause" for a recall. In other words, the court must first determine whether a violation actually exists. Yet, under RCW 29.82.023, the Legislature mandates that "the court shall not consider the truth of the charges, but only their sufficiency" – both legal and factual. It appears the legislative and judicial levels of government in the state of Washington have placed the petitioner seeking a recall in a "Catch 22" situation.

Yet, citing authority under the provisions of section 33 and 34 of Article 1 of the Washington State Constitution, the legislature and court maintain the following:

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, …. (emphasis added)

It is within this framework then, that any petitioner filing charges today has to assume the "criteria" to be clear, acceptable, and "do-able" then start with the following concepts and definitions.

• Legally sufficient for purposes of a recall petition means that an elected official cannot be recalled for appropriately exercising the discretion granted him or her by law: to be legally sufficient, the petition must state with specificity substantial conduct clearly amounting to misfeasance, malfeasance or violation of the oath of office. Matter of Recall of Teaford (1985) 104 W2d 580, 707 P2d 1327. (emphasis added)

• Factually sufficient for a recall petition means that although the charges may contain some conclusions, taken as a whole they do state sufficient facts to identify to the electors and to the official being recalled acts or failures to act which without justification would constitute a prima facie showing of misfeasance, malfeasance, or a violation of the oath of office. Matter of Teaford (1985) 104 W2d 580, 707 P2d 1327. (emphasis added)

Despite the constitutional requirement that the recall of an elected official be based on malfeasance and misfeasance, it has only been within the past thirty-five years or so have the people been told, by the high court, what the terms mean -- legally. What they had to say started with the following:

There is no constitutional or statutory definition of the words malfeasance or misfeasance. Skidmore v Fuller (1962) 59 W2d 818, 370 P2d 975.

Subsequently, the legislature took action and corrected the oversight. Today, RCW 29.82 .010 defines the following for the purpose of this chapter as:

    (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 way; and

            (b) Additionally, "malfeasance" in office means the commission of an unlawful act.

    (2) "Violation of the oath of office" means the willful neglect or failure by an elective public officer to perform faithfully a duty imposed by law.

Unfortunately, because the definitions in the statute were so broadly defined, the court also relies on the following interpretations:

• Misfeasance and malfeasance include any wrongful conduct that affects the performance of an official duty or is clearly inappropriate or not in the best interests of the body or constituency the officer represents, with misfeasance relating to unlawful official acts improperly done and malfeasance relating to the doing of official acts which are unlawful.. Boccek v Bayley (1973) 81 W2d 831, 505 P2d 814.
• An oath of office is violated by failure to perform duties of office honestly, faithfully, and to the best of one’s ability. Boccek v Bayley (1973) 81 W2d 831, 505 P2d 814.

SOLUTION

At this time, it calls for a review of what Mr. Cohen had to say:

"…The court has limited the scope of judicial review in recall cases to a facial examination of the recall charges to determine whether the charges state sufficient cause for recall. The supreme court has consistently refused to consider the truth of the charges, or the motives of the petitioners which prompt the recall of elective officers."

In other words, it appears the only purpose of the court is to certify that charges are not frivolous and that all the "i’s" are dotted and "t’s" crossed.

The first step in resolving the problem is to redefine the terms "Malfeasance" and "Misfeasance" and the expression "Oath of Office".

RCW 29.82.010 certainly appears to be clear enough to the layperson: Summarized, it states that: (1) the petitioner must establish valid charges of the act or acts of misfeasance, or the act or acts of malfeasance, or the violation of the oath of office, and (2) write the charges of the one being charged so they are understandable, and finally, (3) make the case to the people during a recall campaign.

The second step calls for the exclusion of attorneys in the court procedures, because of the court’s limited scope of judicial review, and because the government’s legal system prepares the ballot synopsis. The reason is to simply place the elected official and the constituency at the same level they had during an election campaign. The legal arm of government was not involved then and should not be now. The courtroom procedure would actually be similar to that used in a small claims court. Making the appearance of the parties a mandatory requirement - rather than employing proxies - would also insure the return of the law of Recall to the people.

CONCLUSION

This amendment proposes to retain the principle of preventing frivolous cases from being brought against elected officials, while restoring the right of the people to utilize the right of Recall without undue interference by the court. Elected officials have to be held accountable. It is not reasonable to excuse away or shield elected officials from recall by allowing any type of "wrongful" conduct by an elected official, merely because a plea can be made that the action was carried out "honestly, faithfully, and to the best of one’s ability". Although used in the Oath of Office, the affirmation can only be categorized as subjective and vague.

The decision by the people to call for an accounting from their representatives belongs to them. It cannot be decided in favor of an elected official, such as in a "Motion to Dismiss" or some such other procedural, legal technicality handed from the court.

Even good intentions by public officials can and do result in gross mismanagement of the public’s trust, funds, and assets. If it can be established by the court that recall charges are not frivolous, then it is the people’s right to determine the political fate of that official.

• The proper venue for a recall of an elected official is the political arena – not the judicial.

• The final decision belongs to the people – not the courts.