Last week the final legal briefs were filed with the Washington State Supreme Court in Councilmember Sawant’s challenge to a recall petition. In late September four charges against her were certified by a King County Superior Court judge, and Sawant subsequently appealed that decision. Now it’s up to the Supreme Court to decide whether any of the charges can continue on to the signature-gathering phase.
Both the petitioner, Ernest Lou, and Sawant largely argued the same points they did at the trial court level, which was expected since for the most part appellants aren’t allowed to introduce new arguments on appeal that they didn’t argue in the lower courts. But both sides sharpened up their arguments, bringing the key issues into clearer focus.
Opening brief (by Sawant)
Response brief (by petitioner)
Reply brief (by Sawant)
Sawant disputes all four of the charges leveled against her, with tailored arguments for each of them (though a couple of recurring themes). In addition, she asks the Court to rewrite the ballot synopsis approved by the trial court for any of the charges that survive. The courts’ role in certifying petitions is narrow: the don’t rule on whether the charges are true or not (that is up to the voters to weigh), but instead whether the evidence provided by the petitioners — if true — is factually sufficient to substantiate the charge, and whether the charge is legally sufficient to justify a recall. Under state law, an elected official may only be recalled for malfeasance, misfeasance, or violating their oath of office.
Let’s review the four charges, and the arguments proffered by both sides:
Delegating personnel decisions to Socialist Alternative
The first charge is that Sawant delegated decisions about the hiring and firing of staff in her City Council office to Socialist Alternative (SA), with which she is affiliated; Sawant claims that SA is her political party, though it has not registered as a political party at either the federal or state level. SA employs Sawant’s husband, Calvin Priest, and has on several occasions paid for Sawant and Priest to travel to meetings.
Despite internal documents showing Sawant declaring her accountability to SA and the organization documenting its decisions to fire individuals in her City Council office, Sawant argued that she merely consulted with SA and did not in fact delegate the decisions to them. Further, she argues:
- the relevant law only applies to personal and business relationships and not “political” relationships — claiming that her relationship with SA is entirely and only political;
- “accountable” means something different than what the petitioners claim;
- even if she did defer the decision, deferring to a political party is not an “improper channel” as defined under the law;
- employee decisions are at her discretion; further, since she never disagreed with SA’s decisions, there is no proof that she delegated any decision;
- the Seattle Ethics and Elections Commission (SEEC) agreed with her and chose not to dismiss complaints over the issue;
- she had no intent to violate the law, thus cannot be recalled over it.
The petitioner responded:
- Sawant is trying to get the courts to determine the truth of the assertions, not factual/legal sufficiency;
- the internal SA documents provide more than enough evidence of who made the decisions, and that Sawant felt the need to convince SA how the decisions should be made;
- political decisions can also be personal (in an amusing and ironic aside, quoting Karl Marx back at Sawant);
- the petitioners are not arguing that Sawant abused her discretion; they are arguing that her judgment was impaired. Sawant’s judgment was clearly impaired by SA and she was not acting independently of outside influences as required by law of elected officials;
- the voters should decide Sawant’s level of impairment, rather than the courts;
- the trial court shot down the SEEC’s findings;
- Sawant’s intent can be inferred from the internal documents.
Using city resources to promote a ballot initiative
The second charge is that Sawant improperly used city resources — her City Council office staff, and $2000 of taxpayer dollars — to promote the “Tax Amazon” ballot initiative in January and February of this year. State and local law both prohibit city resources from being used to promote ballot initiatives.
Sawant’s main argument hinged on a technical point: that under the relevant law, something only becomes a “ballot proposition” once it is officially filed for signature collection. She points to a state Supreme Court case precedent to support her argument. Following on that, she again argues that she had no intent to violate the law because her understanding of the law at the time was that there were no restrictions on what she was allowed to do before the ballot proposition was filed.
The petitioner responded with several points:
- In this case, the SEEC disagreed with her; charges are pending in that case.
- The state Public Disclosure Commission also held that the Tax Amazon campaign failed to register their campaign as they were required to do in January;
- Sawant misreads the relevant case law, which they argue prohibits the use of city resources even if the ballot proposition isn’t filed. But even if it only applies to propositions that are filed, the Court’s prior decision holds that once filing occurs the actions prior to filing also fall within its regulations — both for reporting of campaign finances as well as restrictions on city resources.
- In particular, the Seattle Municipal Code version of the prohibition has no timing restrictions — only the state law does.
- Voters are entitled to infer Sawant’s intent that she intended to support and promote the initiative, regardless of the declarations that she makes to the court now. Sawant was, after all, listed on the Tax Amazon campaign committee and claimed that she “spearheaded” it.
Occupying City Hall
The third charge is that Sawant led a late-night protest to City Hall, where she used her own passkey to let hundreds of people into the building and then delivered a speech to the crowd. This allegedly violated both the Governor’s “stay home” emergency order at the time, and endangered city property and personnel by opening up a closed public building at night during a pandemic.
- She had no intent to violate law, since she did not believe that the Governor’s order applied to political rallies;
- Elected officials are allowed to bring guests into City Hall after hours, and frequently do;
- There is no local ordinance prohibiting political rallies in City Hall;
- her actions were a discretionary act, and therefore not subject to recall.
The petitioners responded:
- It clearly violated the Governor’s order, which prohibited gatherings “of any kind.” The order included “community, civic, and public events,” and while the order did list some exemptions, political rallies were not among them;
- Sawant has a duty to follow public health orders;
- Sawant misused city property for other than a city purpose. Sawant countered that this charge is not listed in the petition and thus the Court should dismiss it;
- City hall was closed to the public at the time the rally was held, so regardless of whether Sawant can bring guests in or city ordinances allow or prohibit political rallies, Sawant was prohibited from holding a public event at that time;
- Sawant herself recognized that she was participating in prohibited actions when she retweeted a description of the event as “occupying” City Hall;
- Facilitating an illegal protest is not an act in the course of Sawant’s duties, thus is not a discretionary act;
- As for her intent to violate law, her actions speak for themselves on top of her own admission that they “occupied” City Hall.
Leading a protest to Mayor Durkan’s house
The fourth charge is that Sawant led a protest to Mayor Durkan’s home, where she gave a speech to the crowd and where crowd members vandalized the Mayor’s property. Durkan’s home address is confidential and protected under a program to protect law enforcement officials such as Durkan who prosecuted dangerous criminals in the past and who could be subject to retaliation. If Sawant knew of Durkan’s address and led the crowd there, she would have violated the confidentiality provisions of the law and violated city law by using confidential information for other than a city purpose. Further, the vandalism is both a crime in itself and could constitute harassment of an elected official.
- there is no evidence that she disclosed the Mayor’s address;
- she didn’t lead the crowd there — she just spoke after they arrived, and speaking is not the same as “leading the protest” or threatening the Mayor;
- it isn’t criminal harassment since she didn’t directly threaten the Mayor or participate in vandalizing her home.
The petitioner responded:
- Sawant is once again attempting to get the Court to rule on the truth of the allegations, rather than factual and legal sufficiency;
- the allegation is based upon news coverage of the event, and the Mayor’s letter to the Council requesting that they sanction Sawant for the event;
- Sawant engaged in conduct amounting to a threat, and criminal harassment is a Class C felony;
- Sawant stood in front of the crowd and held a mike, so it’s disingenuous to claim that she wasn’t leading the protest;
- whoever led the protest knew the Mayor’s address; they didn’t randomly stumble over the Mayor’s home as they arbitrarily ambled through Seattle residential neighborhoods.
With the briefs all filed, the rest is up to the Supreme Court. It has indicated that it intends to discuss the case at its en banc conference on January 7, though the petitioner is holding out hope for an earlier decision in order to give the campaign more time to collect enough signatures to get on the April election ballot. The petitioners would need about 10,000 signatures, and the deadline for submitting them is February 26. If they miss that deadline but eventually gather the required signatures, then either a special election would need to be called or the recall would go on the August 2021 ballot (along with primary elections for Mayor, City Attorney, and two city-wide City Council positions).
Expect Sawant and her supporters to fight at every step. They have posted their own “Decline to Sign” campaign to discourage District 3 residents from signing the recall petition, and are actively fundraising for the election campaign. As of December 2, they have raised $117,000, while the recall campaign has raised $200,000.
In related news, last week the state Supreme Court wrapped up the Durkan recall case by finally issuing its full opinion. On October 8, the Court issued a brief ruling that tossed out the recall petition, explaining that it would be releasing its full ruling “in due course.” Under state law the Court is required to handle recall certification appeals on an expedited basis; had it affirmed the certification of the recall petition, that would have allowed the petitioners to begin signature gathering immediately instead of waiting for the Court to finish drafting its full ruling.
In the full opinion, the Court noted the standard that applies to the charges:
There are two limitations on recall that are particularly relevant to this case. First, an elected official is not subject to recall “for the act of a subordinate done without the official’s knowledge or direction.”… Second, “[a]n official may be recalled for execution of discretionary acts only if the execution of that discretion is done ‘in a manifestly unreasonable manner,’”which “may be shown by demonstrating discretion was exercised for untenable grounds or for untenable reasons.”
But they found that it was not “manifestly unreasonable” for Mayor Durkan not to have taken further action to stop SPD’s violent reactions to protests.
In contending that Mayor Durkan’s failure to take further actions to stop SPD’s violations and protect the community, the recall petitioners suggest a number of actions that she could have taken. While most of the actions suggested are indisputably within Mayor Durkan’s authority, the recall petitioners do not show that declining to take those actions was a manifestly unreasonable decision.
Certainly, had Mayor Durkan refused to act at all, “simply turning a blind eye,” such a complete failure to act might be sufficient to support a recall election. Reply Br. of Cross-Appellant at 1. See In re Recall of Riddle, 189 Wn.2d 565, 575, 403 P.3d 849 (2017). However, Mayor Durkan did not completely fail to act. She sought expert input regarding SPD’s crowd control policies on June 5, she consistently expressed her support for the protesters’ constitutional rights and the limitations placed on the use of tear gas, and she ordered SPD to comply with the TRO. Though the petitioners are dissatisfied with Mayor Durkan’s official actions, they have not demonstrated an adequate basis for recall.
In their conclusion, the justices don’t shy away from expressing alarm at the charges leveled and the need for accountability — though they make clear that a recall election is not the appropriate way to do so under the law.
If the alarming factual allegations in this case are true, as we must assume they are, then those responsible must be held accountable, including Mayor Durkan. However, our precedent does not allow Mayor Durkan to be held accountable on these charges through the process of a recall election.
It will be interesting to see how the justices weigh the charges against Sawant versus the ones against Durkan. There is one big difference: the charges against Durkan were largely for failure to take a desired action, while the ones against Sawant were for actions that she took. In the end, it may be challenging to tell if the Court held one to a higher standard than the other; it may just end up as different standards for different situations.
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