The King County judge who ruled earlier this month that a recall petition against Seattle Mayor Jenny Durkan could proceed is sticking by that decision.
Superior Court Judge Mary Roberts on Wednesday denied a motion by Durkan that asked Roberts to reconsider her July 10 ruling.
The petition seeks to recall Durkan based on the Seattle Police Department’s use of tear gas and other crowd-control weapons at recent protests against police brutality and racism. Durkan said police Chief Carmen Best was responsible, because she is in charge of police policies, but Roberts rejected that argument.
The mayor has obligations to protect the health and well-being of residents, the judge determined, without rending an opinion on whether the city actually did anything wrong by using the weapons.
Durkan could still appeal to a higher court, but Wednesday’s news marked another legal advance for the mayor’s opponents in what could be a long process to try to oust her from office in a special recall election.
On July 10, Roberts dismissed six charges made by the petitioners as insufficient grounds for a recall but allowed a seventh charge to progress “more narrowly than alleged.”
She noted her role was limited to assuming the allegations against Durkan were true and determining whether they were specific and serious enough to allow the petition to move ahead, rather than determining whether the mayor deserves be removed from office.
If the recall petition survives, Durkan’s opponents will need to collect more than 50,000 signatures from Seattle voters within 180 days. The election would be a simple up-or-down vote on Durkan, and her removal would result in the City Council’s president (currently M. Lorena González) becoming mayor.
The petitioners — a group of Seattle residents — accused Durkan of failing to institute policies to prohibit the use of tear gas and other chemical crowd-control agents by police “when such use would be particularly detrimental to public health during the COVID-19 pandemic.”
They also accused her of allowing officers to continue using such agents “without concern for the health and well-being of the community, constituting misfeasance, malfeasance and violation of oath of office.”
Roberts found the charge was sufficient with respect to Durkan allegedly not stopping the weapons from being deployed after she knew about and opposed their use on peaceful protesters as a means of crowd control.
A recall ballot would ask voters whether Durkan had, by endangering peace and safety, “violated her duties under state and local laws and her oath to uphold the federal and state constitutions.”
Durkan asked Roberts to reconsider that ruling, arguing the use of tear gas to disperse protesters was a decision made by Best, not by the mayor, and also arguing Best’s decision was reasonable in the midst of public unrest.
“Mayor Durkan has no legal or constitutional duty to prescribe policies and procedures for SPD. Instead, the City Charter places that duty upon the Chief of Police, who exercised her authority in a reasonable manner,” wrote Durkan’s attorney, Rebecca Roe.
The petitioners opposed the motion, making the case that Best works for Durkan and that the buck should stop with the mayor. Roberts agreed Wednesday in a written ruling.
“Mayor Durkan argues, as she did in the initial response to the petition, that she has no legal or constitutional duty to ‘prescribe policies and procedure for SPD.’ The gravamen (the most serious part) of the court’s ruling … is more broadly the alleged failure to protect the health and well-being of the community,” Roberts wrote. “The critical role of the Chief of Police in commanding her department does not vitiate the Mayor’s obligations.”
The mayor didn’t say Wednesday whether she would appeal. Durkan spokesperson Kelsey Nyland said: “In the midst of unprecedented challenges for the city, Mayor Durkan has consistently acted to protect the public health and safety of residents during the pandemic, economic devastation, and demonstrations for justice.”
Nyland added: “The Mayor hasn’t had an opportunity to thoroughly review the ruling. This afternoon she was focused on how to provide support for small businesses and workers who have lost their jobs, preparing the City’s 2021 budget, meeting with her expert advisors to discuss slowing the spread of COVID-19, and working with Chief Best on public safety challenges facing our city.”
Petitioner Elliott Grace Harvey, with the Committee to Recall Jenny Durkan, said in a statement: “Judge Roberts clarified for us today … that the Mayor has a larger responsibility to the health and well-being of her community, and that the role of the Chief of Police does not absolve the Mayor of her duty.”
Roberts took care to mention that she didn’t rule on whether the city has handled the Black Lives Matter protests appropriately.
“The court declines to weigh the evidence and make factual determinations as to what has happened and what reasonably should have been done on any step of the way,” the judge wrote. “The court does not opine on whether Mayor Durkan should replace Chief Best, or under what circumstances the use of (tear gas) and the like may reasonably and legally be justified.”
Durkan’s approval rating in a KING 5 poll of Seattle adults last month was 43% (40% unfavorable and the rest not sure), while Best’s was 48% and the City Council’s was 39%. While 46% of respondents said the mayor should remain in office, 31% said she should resign and 22% said they weren’t sure.
The mayor’s job rating in a poll of likely Seattle voters by a union earlier this month was 44% favorable and 36% unfavorable.