The past week has been a crazy whirlwind in legal filings as Mayor Durkan appeals to the state Supreme Court a lower court’s certification of the recall petition against her.
The activity in King County Superior Court wrapped up on July 29 when Judge Mary Roberts denied Durkan’s motion for reconsideration of her ruling, which certified one of seven charges as factually and legally sufficient for a recall. Then the action moved to the state Supreme Court.
On August 12, Durkan’s attorneys filed a Notice of Appeal with the Supreme Court. The same day, the petitioners filed a Notice of Cross-Appeal, indicating that they will ask the Court to overturn Roberts’ ruling on two of the charges she dismissed.
The next day, the petitioners filed an emergency motion asking the Court to set an expedited briefing schedule — a very expedited schedule. They requested the following deadlines:
- Durkan’s opening brief: August 14 (the next day)
- Petitioners’ response, and their cross-appeal: August 17
- Durkan’s reply to the response, and response to the cross-appeal: August 19
- Petitioner’s reply to Durkan’s response: August 21
- Oral arguments some time during the week of August 24-28
The petitioners justified the schedule by pointing to RCW 29A.56.270, which states the rules for appeals of lower court rulings on recall petitions:
The supreme court has like original jurisdiction in relation to state officers and revisory jurisdiction over the decisions of the superior courts. Any proceeding to compel or prevent the performance of any such act shall be begun within ten days from the time the cause of complaint arises, and shall be considered an emergency matter of public concern and take precedence over other cases, and be speedily heard and determined. Appellate review of a decision of any superior court shall be begun and perfected within fifteen days after its decision in a recall election case and shall be considered an emergency matter of public concern by the supreme court, and heard and determined within thirty days after the decision of the superior court.
Later that day, the Court sent a letter to the parties clarifying that the state legislature doesn’t get to set the rules for how the courts hear cases. Rather, the Rules of Appellate Procedure (RAP) for Washington state courts controls the process, and RAP 18.22 explicitly supersedes state laws that attempt to legislate the courts’ processes (gotta love that whole separation-of-powers thing). However, in a nod to the petitioners, the letter states that the Court “will consider the legislature’s treatment of recall cases as ‘urgent and deserving of accelerated procedure.'” It instructed Durkan’s legal team to file a response to the motion by August 14, with the petitioners’ response due by today.
Durkan’s attorneys did file a response, calling the proposed expedited schedule “untenable” and proposing their own unhurried one:
- Durkan’s opening brief: September 28
- Petitioners’ response, and their cross-appeal: October 28
- Durkan’s reply to the response, and response to the cross-appeal: November 28
- Petitioner’s reply to Durkan’s response: as the court sees fit
The petitioners quickly filed an angry reply, accusing Durkan of trying to drag out the proceedings in order to separate the date of a potential recall election from the events of this summer that precipitated it, in the hopes that voters’ views soften over time.
Today the court weighed in with its answer: it set an expedited schedule, but one not nearly as breathless as what the petitioners asked for.
- Durkan’s opening brief: August 31
- Petitioners’ response, and their cross-appeal: September 14
- Durkan’s reply to the response, and response to the cross-appeal: September 17
- Petitioner’s reply to Durkan’s response: September 22
The court also indicated that it will not schedule oral arguments in the case, but instead will rule solely on the written briefs. Further, it said that it has tentatively planned to consider the case at its en banc hearing scheduled for October 8 — and presumably issue its ruling shortly thereafter.
There is one potential legal twist still to come: whether the petitioners’ cross-appeal is allowed. They have indicated that they will argue on appeal the same issues for which they filed a “cross-motion for reconsideration” at the lower court level, specifically to get two of the charges reinstated. However, their motion for reconsideration was improperly filed, and thus was never considered by Judge Roberts (see the footnote on page 4 of Roberts’ ruling). As a general rule, litigants may not raise issues on appeal that they didn’t first raise at the lower court level, so the petitioners won’t be able to use anything that they raised for the first time in their motion for reconsideration. If that is the basis for their cross-appeal, Durkan’s attorneys will likely try to get it tossed out — and they will have a very good chance of succeeding.
Either way, by mid-October we will have the final word as to whether the recall petition can go forward and the petitioners can start collecting signatures.
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