Today the Washington State Supreme Court set the briefing schedule for Council member Sawant’s appeal of a lower court’s certification of a recall petition against her, with an expectation that it will decide the matter in early January.
Bear with me while we go through some complicated procedural stuff for a moment.
You may recall that King County Superior Court Judge Jim Rogers certified four charges in the recall petition, then at the request of Sawant’s attorney allowed both sides to file separate arguments regarding the ballot synopsis wording and ruled separately on that. Sawant’s attorney filed a motion to reconsider the certification, and while that was pending went ahead and appealed the ballot synopsis ruling to the state Supreme Court. Then after the judge denied the motion to reconsider, Sawant’s attorney separately appealed that as well.
In late October, the petitioners filed a motion with the state Supreme Court asking for two things:
- to consolidate the two appeals into a single case;
- to set an accelerated schedule for briefings, and a hearing if the Court required it, so that the petitioners would still have a shot at collecting enough signatures in time to make the April election deadline (signatures would need to be submitted by late February).
They proposed that Sawant file her opening brief by November 13, they would respond by November 30, and then Sawant would file her reply by December 3.
In its response to the motion, Sawant’s legal team agreed to consolidating the two appeals into a single case (they had initially told the petitioners that they opposed consolidation), but asked the Court to resolve the certification issue first and have a separate follow-on round of briefs on the ballot synopsis so that they only needed to brief the court on the parts that survive.
They suggested that they file their opening brief on the certification issues by November 30, the petitioners respond by December 14, they would file their reply by December 21, and then after the Court ruled on the certification, each party would have seven days to file a supplemental brief on the ballot synopsis — which of course would drag out the proceedings long enough that the petitioners would miss the deadline for the April election (though to be honest it was a long shot anyway).
Sawant’s attorney emphasized why they saw the need for separate briefs on the ballot synopsis, and highlighted the lack of previous rulings by the state Supreme Court interpreting the rules for wording a ballot synopsis:
The need for supplemental briefing on the ballot synopsis issue is made even more clear, however, when one considers just how unclear the law is currently regarding how a recall ballot should be worded. There is an absence of controlling, or even persuasive, authority in Washington State regarding how a recall ballot should be worded. In fact, review of this Court’s jurisprudence suggests that issues relating to the ballot synopsis are rarely, if ever, addressed. Typical is this Court’s recent decision in In Re Recall of Fortney, ___ Wn.2d ___, 471 P.3d 180, 180 (2020), in which the Court unanimously declined to address Sheriff Adam Fortney’s challenge to the ballot synopsis. While this Court has issued numerous decisions providing guidance regarding the threshold questions of legal and factual sufficiency, it has provided far much less guidance regarding ballot synopses, leaving both the original drafting authorities and the reviewing courts in the dark regarding how such synopses should be worded.
But in their reply, the petitioners explain why that is so — and at the same time show how far in over their heads Sawant’s attorneys are in this case:
Appellant requests that the Court allow “supplemental briefing on the ballot synopsis issue” (i.e., the contents of the ballot synopsis) after it decides the legal and factual sufficiency of the charges against her. 3-7. This, Appellant contends, would “put the horse before the cart.” Id. at 3.
Appellant erroneously contends that this Court “has provided far much less [sic] guidance regarding ballot synopses” than other issues in recall matters. To the contrary, this Court has repeatedly given very clear guidance on the content of ballot synopses—repeatedly holding that “[t]he decision of the superior court concerning the adequacy of the ballot synopsis is `final’ under RCW 29.82.023 and is therefore not reviewable court.” In re Zufelt, 112 Wn.2d 906, 910 (1989); RCW § (“Any decision regarding the ballot synopsis by the superior court is final”); Matter of Recall of Riddle, 189 Wn.2d 565, 587 (2017), as amended (Oct. 26, 2017). In other words: there’s no cart here.
State law is clear that a lower court ruling on certification of a recall petition can be appealed, but the lower court’s ruling on the wording of the ballot synopsis is final and cannot be appealed. The Supreme Court hasn’t made any rulings on ballot synopsis language because it doesn’t have jurisdiction to do so. If the Supreme Court overrules the lower court on the certification, it will remand the case back down to have the judge rewrite the ballot synopsis accordingly — but it won’t rewrite the synopsis itself. The fact that Sawant’s attorney didn’t know this is bad; but that he went on to remark out loud at the lack of Supreme Court rulings on ballot synopsis language just makes him look foolish and amateur. He made it clear to everyone, and in particular the nine justices, that he didn’t do his homework.
Today the state Supreme Court handed down its order:
At the direction of the assignment justice, the motion is granted in part as follows. Since no party objects, the two appeals will proceed as one case. The Appellant’s opening brief should be served and filed by November 23, 2020. The Respondent’s brief should be served and filed by December 3, 2020. The Appellant’s reply brief should be served and filed by December 10, 2020. The Appellant’s request to file separate supplemental briefs at a later date to address ballot synopsis language is denied.
The parties are advised that this case has been tentatively set for consideration by the Court at the January 7, 2020, en banc conference. The case will be considered without oral argument. In light of this schedule, it is unlikely that extensions of time to file briefs will be granted.
To sum up:
- The two appeals are consolidated;
- All the briefs will be filed by December 10, with no separate briefs on the ballot synopsis language;
- There will be no hearing for oral arguments (the Court skipped oral arguments for Mayor Durkan’s recall too);
- The state Supreme Court will discuss the case at its January 7 conference, and will likely hand down a decision that day, as it did with the recall petition for Durkan.
That cuts about a month off the schedule that Sawant had asked for. But assuming some or all of the recall petition survives, that’s still probably not enough time for the petitioners to collect enough signatures to get the recall on the April election ballot.
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