Recently, a recall petition against Seattle Mayor Jenny Durkan was found largely defective by a King County judge. But the judge allowed one narrow charge to proceed, and the mayor promptly appealed to Washington’s Supreme Court. We believe the remaining recall charge is legally and factually defective, and no one should be surprised if the state’s high court throws it out and lets Durkan get back to doing her job.
In contrast with some other states, Washington prohibits recalls against public officials for political purposes, for policy choices some dislike or for alleged managerial mistakes. State law allows recall attempts only if an elected official engages in substantial wrongful conduct that affects or interferes with performance of a public duty. The recall statute requires petitioners to provide a detailed description of wrongful conduct or unlawful acts. Recall petitions are routinely rejected by our courts because they consist of nebulous complaints about a public official or only complain of policy or management decisions the petitioners dislike.
The basic concept in Washington recall law is that an elected leader should be allowed to do his or her job without fear of recall for policy decisions. There’s a high bar to allowing recall elections because the process interferes midstream with choices voters already made. The public will always have the opportunity to replace an unpopular official at the next regular election. Examples of recalls that were allowed to proceed include where a mayor asked a police chief to investigate a vocal critic of that mayor; where an official entered into an unauthorized contract; and where an elected officer offered a job in exchange for sex. In each instance, the recall petitions alleged specific unlawful acts that were factually and legally sufficient to propel the charges to the ballot.
The recall petition against Durkan contained a confused array of overlapping charges, all of them relating to police actions at Black Lives Matter rallies where a small number of demonstrators engaged in violent acts against people and property. The King County judge found almost all of the recall charges deficient because they dealt with “discretionary acts” (policy decisions) or because they attempted to hold the mayor responsible for her subordinates’ decisions on the ground.
But the judge allowed one part of one recall charge to proceed — a charge that Mayor Durkan had failed to step in and stop the use of chemical crowd control agents against peaceful protesters. Even after a reconsideration motion by Mayor Durkan, the judge stuck with an approach that in our view was legally incorrect and completely at odds with the other rulings that had rejected charges about discretionary policy choices or subordinates’ actions.
Seattle’s City Charter expressly states that the police chief “shall be the chief peace officer of the City” and that the chief shall manage the Police Department, and prescribe rules and regulations governing police. The police chief is ultimately responsible to the mayor, but the charter firmly places the chief in control of the department. It was odd and contradictory for the lower court judge to reject a bundle of recall charges because they complained about policy decisions or operational choices of subordinates, and then reverse course and permit a single petition charge that the mayor had “failed” to step in and second-guess operational decisions by Chief Carmen Best.
In the judge’s final order, she recognized “the compelling challenges” encountered by both the demonstrators and the City, a clear recognition of the tough policy and management choices the chief and the mayor faced. During the protests, Durkan and Chief Best were dealing with a highly dynamic situation where large numbers of people were peacefully exercising their protest rights but small groups of demonstrators were threatening law enforcement officers and damaging property. The chief needed to make quick tactical decisions while taking into account a federal court order and a federal judge actively overseeing police conduct. The chief’s — and the mayor’s — tactical and discretionary decisions were nowhere near the type of acts that are eligible for a recall under Washington law.
We expect the state Supreme Court may well reject the remaining recall charge against Mayor Durkan because it is factually deficient — it fails to allege specific lawbreaking or violations of legal duties. That charge is also legally defective because it asserts she had a legal duty to exercise her discretion and second-guess Chief Best’s operational decisions.
If some Seattle voters disagree with Durkan’s policy decisions and management style, they will certainly have the opportunity to make their views known in next year’s regularly-scheduled mayoral election.