Today attorneys for Mayor Durkan filed a motion for reconsideration of a judge’s certification of a recall petition charge earlier this week, asking the court to take another look at its ruling that one of the seven charges alleged was factually and legally sufficient as a basis for a recall petition.
Durkan’s attorneys took an unconventional approach in their original defense, simply suggesting that all seven charges were too vague as alleged to be responded to directly. Now that it has been narrowed down by the judge to a single charge, they give a spirited and detailed argument against it. This is a step that they must take in order to eventually appeal the judge’s ruling, since they are not allowed to make an argument on appeal that they didn’t already make to the lower court. So now they are backtracking a bit and arguing what they should have the first time.
The foundation of their argument is the one I predicted: that the City Charter places responsibility for setting rules and regulations with the Chief of Police, not the Mayor, and when the Mayor did not exercise her discretionary power to take direct control over the police department it did not raise to the level of an offense sufficient for recall. They back this up by noting that in the recent Black Lives Matter case that led to an injunction against SPD’s use of tear gas for crowd control, the judge still gave the Chief of Police discretion to use it in exigent circumstances.
Attached to the motion is an interesting exhibit: a letter from Assistant U.S. Attorney Christina Fogg, who has represented the DOJ in the ongoing implementation of the Consent Decree. Her letter, dated Monday, points out that changes to SPD’s use-of-force and crowd management policies must be approved by the court before they can be rolled out — implying that Mayor Durkan was legally prohibited from immediately changing the policy in the manner that the recall charge insisted she should have done.
The petitioners will now get the chance to respond to the motion, before the judge rules — perhaps as soon as the end of this week.
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