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No Recall of Councilman for Criticizing Coronavirus Shutdown Order, Says Washington S. Ct.

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From a Washington Supreme Court unanimous opinion today in In re Recall of White (written by Justice González):

In our constitutional democracy, the people elect their own representatives for fixed electoral terms….

Voters have a constitutional mechanism for expressing dissatisfaction with their elected representatives between elections: recall…. Our constitution, however, constrains recall. Most relevantly, a recall petition must allege a violation of the oath of office or an act of misfeasance or malfeasance. Wash. Const. art. I § 33. Courts are obligated to review recall petitions to ensure they allege a recallable offense and not merely an unpopular decision or an unpopular stance. See RCW 29A.56.110, .140; see also Chandler v. Otto (Wash. 1984). When the recall petitioner alleges that an official committed a recallable offense by violating the law, the petition must also articulate the “‘standard, law, or rule that would make the officer’s conduct wrongful, improper, or unlawful.'” In re Recall of Inslee (Wash. 2019).

We have before us today a recall petition alleging that city of Yakima District 2 Councilman Jason White committed acts of misfeasance and malfeasance, and violated his oath of office by using his position to undermine the State’s and Yakima County’s responses to the public health emergency caused by the COVID-19 virus (coronavirus disease). The recall petition also alleges Councilmember White committed a recallable offense by refusing to attend several city council meetings….

Councilmember White is skeptical about the response to COVID-19 by our state and local governments. In a series of Facebook posts, Councilmember White encouraged his friends and followers to violate the governor’s Stay Home – Stay Healthy proclamation. Illustratively, Councilmember White posted:

“Only avoid getting out if you are sick.. and most American’s are extremely unhealthy and sick. For the rest of us with healthy immune systems and that keep them that way, this won’t effect us, just like all the other viruses in the environment.

“I spend my entire day in and out of grocery stores. Be healthy and wise to what is actually going on. The CDC and WHO are just the feel good branch of big pharma and Bill Gates and friends that want mandatory immunizations.”

Similar Facebook posts were included in the recall petition material. For example, when Councilmember White reposted an article from YakTriNews.com headlined “Face coverings required in Yakima County starting June 3,” he titled his post, “I will not comply!”

Yakima’s mayor, Patricia Byers, described White’s comments as “ʻreckless, frightening, and potentially harmful.'” The next day, Councilmember White announced he would no longer attend council meetings in protest. The remaining councilmembers voted unanimously to censure White. The record suggests Councilmember White resumed attending council meetings not long after….

[1.] [One charge in the recall petition] alleges that Councilmember White “used his position as an elected official to wrongfully encourage citizens to disobey state and local COVID-19 emergency proclamations that ordered everyone to stay home unless they need to pursue an essential activity.” … [But] beyond the bare assertion that Councilmember White had a duty to uphold the law and not interfere with other public officials’ executions of their duties, no standard, law, or rule he allegedly violated has been identified. Nothing in the governor’s “Stay Home – Stay Healthy” proclamation demands the allegiance of local legislators, and such a requirement would raise immediate constitutional concerns.

Councilmember White is a member of the city council. Under the Yakima City Charter, the council is the city’s legislative branch. In our system of divided government, legislators do not have a general duty to enforce public health orders or to abstain from criticizing the actions of other public officials….

[2.] [Another charge] alleged Councilmember White “violated his oath of office pursuant to RCW 29A.56.110(1)(b) by encouraging the public to disobey emergency orders imposed by the State of Washington and the Yakima County Health District.” … The petitioner contends … [that] under his sworn oath, Councilmember White had an obligation to uphold the law. According to the recall petition, the oath Councilmember White took would have said:

I,, do solemnly swear that I will support the Constitution of the United States and the Constitution and Laws of the State of Washington, and the Charter and Ordinances of the City of Yakima. I will faithfully and impartially discharge and perform the duties of the office of Council Member of the City of Yakima, Washington, according to the best of my ability. SO HELP ME GOD. (City of Yakima Council Oath of Office).

While the governor’s Stay Home – Stay Healthy order has the force of law, Councilmember White’s oath-bound duty to support the law cannot reasonably be construed within our system of divided government as an obligation not to criticize the law. Accordingly, the trial court did not err in dismissing this charge….

[3.] [A final] charge alleges that CouncilmemberWhite “refused to attend Yakima City Council meetings which interfered with the performance of his official duties, and unreasonably denied his constituents representation at Council meetings.” … The failure to attend council meetings could be the basis for recall if it prevented an official council meeting from occurring or, perhaps, had some other ascertainable consequence for the city’s business. But after considerable probing from the trial judge, the petitioner was unable to identify any consequence of Councilmember White’s failure to appear. Again, the petitioner bore the burden of identifying “the ‘standard, law, or rule that would make the officer’sconduct wrongful, improper, or unlawful.'” None have been articulated here….

While Councilmember White’s statements may have been scientifically inaccurate and intemperate, the petitioners have not shown they are the basis for recall. Accordingly, we affirm the superior court’s dismissal of the recall charges.

Thanks to Ramsey Ramerman for the pointer.


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Eugene Volokh

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