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FILED
2020 JUL 10 04:13 PM
KING COUNTY
SUPERIOR COURT CLERK
E-FILED
CASE #: 20-2-10455-8 SEA

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JUDGE MARY E. ROBERTS

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SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
IN RE THE MATTER OF RECALL
CHARGES AGAINST CITY OF
SEATTLE MAYOR JENNY DURKAN
(HARVEY)

NO.

20-2-10455-8 SEA

ORDER ON PETITION TO DETERMINE
SUFFICIENCY OF RECALL CHARGES AND
ADEQUACY OF BALLOT SYNOPSIS

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Clerk’s Action Required

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This matter came before the court upon the King County Prosecuting Attorney
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(KCPA)’s petition to determine (1) the sufficiency of recall charges filed by Elliott Grace

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Harvey, Alan L. Meekins, Jr., Courtney Scott, Leah Solomon, and Charlie Stone (the Recall

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Petitioners), against City of Seattle Mayor Jenny Durkan, and (2) the adequacy of the ballot

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synopsis formulated by the KCPA from the charges.

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ORDER ON PETITION TO
DETERMINE SUFFICIENCY OF
RECALL CHARGES AND ADEQUACY
OF BALLOT SYNOPSIS - 1

Judge Mary E. Roberts
King County Superior Court
Courtroom W905, King County Courthouse
516 Third Avenue
Seattle, WA 98104-2381
(206) 477-1348

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The charges leveled against Mayor Durkan by these five citizens arise in the context of

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largely peaceful local protests against racism and police brutality, following the death of

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George Floyd while being restrained by police officers in Minneapolis.

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The court held a telephonic hearing on July 2, 2020. Present telephonically were Janine

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Joly and Jennifer Atchison on behalf of the KCPA; each of the Recall Petitioners except for
Alan L. Meekins, Jr.; and attorneys Rebecca J. Roe, G. William Shaw, Ryan J. Groshong, and

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Matthew Clark on behalf of Mayor Durkan. The court heard and considered argument from

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Elliott Grace Harvey on behalf of the Recall Petitioners, and from Rebecca J. Roe on behalf of

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Mayor Durkan. Ms. Joly and Ms. Atchison were present and available for questions, but did

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not offer argument.

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On June 15, 2020, the Recall Petitioners filed a statement of charges with the King
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County Elections Department seeking the recall of Mayor Durkan.

The Recall Petitioners

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summarize their charges as follows:

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A

Mayor Durkan endangered the peace and safety of the community and violated her
duties under RCW 35.18.200, Seattle Charter Art. V, Sec. 2, SMC 10.02.010A, and her
oath to uphold US Const., Amend. 4, Washington Constitution, Art. 1, Sec. 3; when
she issued a city-wide curfew without sufficient notice for individuals to safely
disperse.

B.

Mayor Durkan endangered the peace and safety of the community and violated her
duties under RCW 35.18.200, Seattle Charter Art. V, Sec. 2, SMC 10.02.010A, and her
oath to uphold US Const., Amends. 1 and 4, Washington Constitution, Art. 1 Sec. 3-5,
when she failed to institute new polices and safety measures for the Seattle
Police Department when using crowd control measures during a public health
emergency.

C.

Mayor Durkan endangered the peace and safety of the community and violated her
duties under RCW 35.18.200, Seattle Charter Art. V, Sec. 2, SMC 10.02.010A, and her
oath to uphold US Const., Amend. 4, Washington Constitution, Art. 1, Sec. 3 and 5,

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ORDER ON PETITION TO
DETERMINE SUFFICIENCY OF
RECALL CHARGES AND ADEQUACY
OF BALLOT SYNOPSIS - 2

Judge Mary E. Roberts
King County Superior Court
Courtroom W905, King County Courthouse
516 Third Avenue
Seattle, WA 98104-2381
(206) 477-1348

 when she failed to enforce Seattle Police Officer compliance with the Seattle Municipal
Code and the Seattle Police Manual, when the police deliberately attacked members of
the press despite their identification as such, attacked street medics attempting to treat
the injured, destroyed medical supplies, and deliberately did not use appropriate deescalation techniques.

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D.

Mayor Durkan endangered the peace and safety of the community and violated her
duties under RCW 35.18.200, Seattle Charter Art. V, Sec. 2, and her oath to
uphold US Const., Amends. 1 and 4, Washington Constitution, Art. 1, Sec. 3-5, when
she failed to protect the Right to Freedom of Speech and the Right to Peaceful
Assembly under the First Amendment of the United States Constitution and Article 1,
Sec. 4-5 of the Washington State Constitution.

E.

Mayor Durkan endangered the peace and safety of the community and violated her
duties under RCW 35.18.200, Seattle Charter Art. V, Sec. 2, SMC 10.02.010A, and her
oath to uphold US Const., Amends. 1 and 4, Washington Constitution, Art. 1 Sec. 3-5,
when she wrongfully subjected bystanders to chemical weapons and crowd control
measures.

F.

Mayor Durkan endangered the peace and safety of the community and violated her
duties under RCW 35.18.200, Seattle Charter Art. V, Sec. 2, SMC 10.02.010A, and her
oath to uphold US Const., Amends. 1 and 4, Washington Constitution, Art. 1 Sec. 3-5,
when she endangered the lives of people around the SPD East Precinct by allowing
police to leak false information about fabricated crimes and threats to the media.

G.

Mayor Durkan endangered the peace and safety of the community and violated her
duties under RCW 35.18.200, Seattle Charter Art. V, Sec. 2, SMC 10.02.010A, and her
oath to uphold US Const., Amends. 4, Washington Constitution, Art. 1 Sec. 3, when
she wrongfully disallowed certain property rights in downtown Seattle and Capitol Hill.

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Statement of Charges, pp. 6-7.
This court’s role in this case is limited.

At this stage of a recall effort, the court is to

assume that the Recall Petitioners’ allegations are true, and to determine whether if true, they

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can support a recall. RCW 29A.56.140. This gatekeeping role is based on “the framers’ intent
to prevent recall elections from reflecting on the popularity of the pollical decisions made by

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ORDER ON PETITION TO
DETERMINE SUFFICIENCY OF
RECALL CHARGES AND ADEQUACY
OF BALLOT SYNOPSIS - 3

Judge Mary E. Roberts
King County Superior Court
Courtroom W905, King County Courthouse
516 Third Avenue
Seattle, WA 98104-2381
(206) 477-1348

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elected officers.” In re Recall of Telford, 166 Wn.2d 148, 159-160 (2009). To quote the

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Washington Supreme Court,

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[T]he role of courts in the recall process is highly limited, and it is not for us to decide
whether the alleged facts are true or not. It is the voters, no the courts, who will
ultimately act as the fact finders. RCW 29A.56.140; in re Recall of Kast, 144 Wn.2d
807, 813 (2001). We merely function as a gatekeeper to ensure that the recall process
is not used to harass public officials by subjecting them to frivolous or unsubstantiated
charges. Id. Accordingly, our role is limited to ensuring that only legally and factually
sufficient charges go to the voters. Id.
In re Recall of West, 155 Wn. 2d 659, 662 (2005).

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Charge A pertains to Mayor Durkan’s May 30, 2020 emergency curfew order, which

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became effective upon issuance. The recall petitioners allege that the fact it was effective

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immediately left members of the public in violation without warning, thereby threatening their

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safety and welfare. This charge is both legally and factually insufficient. The issuance of the
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emergency order was a discretionary act within Mayor Durkan’s legal authority.

The Recall

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Petitioners point to no instances of threats to the safety and welfare of members of the public.

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Finally, nothing alleged relating to the issuance of the emergency proclamation and order

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reflects a manifestly unreasonable decision.

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Charge B alleges that Mayor Durkan failed to institute new policies and safety
measures for SPD to prohibit the use of tear gas and other chemical crowd control agents by

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SPD when such use would be particularly detrimental to public health during the COVID-19
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pandemic.

The Recall Petitioners further allege that Mayor Durkan knowingly allowed SPD

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officers to continue to use chemical crowd control agents over many days without concern for

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the health and well-being of the community, constituting misfeasance, malfeasance, and

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ORDER ON PETITION TO
DETERMINE SUFFICIENCY OF
RECALL CHARGES AND ADEQUACY
OF BALLOT SYNOPSIS - 4

Judge Mary E. Roberts
King County Superior Court
Courtroom W905, King County Courthouse
516 Third Avenue
Seattle, WA 98104-2381
(206) 477-1348

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violation of oath of office.

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crowd control agents by SPD based on the early conduct before she can be said to have been

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Any alleged failure of Mayor Durkan to prohibit use of chemical

aware, are legally and factually insufficient. To the extent the allegations pertain to failure to
step in to stop the use of chemical crowd control agents after Mayor Durkan is alleged to have

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become aware of and opposed to their alleged use on peaceful protesters as a means of crowd
control, such allegations are legally and factually sufficient to go forward.

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Charges C allege that Mayor Durkan allowed SPD officers to deliberately violate the

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law in a number of ways aimed at members of the press, and street medics. Mayor Durkan is

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not accountable by way of recall for the actions of her subordinates without her knowledge, not

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at her direction. In Re Recall of Morisette, 110 Wn.2d 933, 936 (1988). This charge is legally

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insufficient.
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Charge D alleges in essence that Mayor Durkan, allowed SPD officers to violate city

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ordinances and other laws pertaining to managing crowd control more generally.

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above, Mayor Durkan is not accountable by way of recall for the actions of her subordinates

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without her knowledge, not at her direction. The allegations in Charge D are general in nature

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and are not legally or factually sufficient.

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As stated

Charge E alleges again a failure to direct the SPD in a manner consistent with
upholding protestors’ rights to peaceful assembly to exercise their free speech rights.

This

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charge is duplicative of Charge B.
Charge F alleges Mayor Durkan allowed SPD officers to leak false information about
fabricated crimes and threats to the media. This charge is legally and factually insufficient.

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ORDER ON PETITION TO
DETERMINE SUFFICIENCY OF
RECALL CHARGES AND ADEQUACY
OF BALLOT SYNOPSIS - 5

Judge Mary E. Roberts
King County Superior Court
Courtroom W905, King County Courthouse
516 Third Avenue
Seattle, WA 98104-2381
(206) 477-1348

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Charge G pertains to Mayor Durkan’s May 30, 2020 emergency order banning from the

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downtown and Capitol Hill neighborhood weapons and items that could be used as weapons,

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such as rocks, bottles, pipes, and bats. The recall petitioners point to the ban of lightbulbs in
particular to support their assertion that the ban is “grossly overbroad,” in that it would place

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homeowners in danger of violating the order by having lightbulbs in their homes.
is both legally and factually insufficient.

This charge

The issuance of the emergency order was a

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discretionary act within Mayor Durkan’s legal authority.

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instances of members of the public being held to violate the order by way of ordinary

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possession of lightbulbs in their homes, and such.

The Recall Petitioners point to no

Finally, nothing alleged relating to the

issuance of this emergency order reflects a manifestly unreasonable decision.

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The Elections Department sent a copy of the statement of charges to the KCPA’s Office

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for preparation of the ballot synopsis pursuant to RCW 29A.56.120. The ballot synopsis reads

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as follows:

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As alleged by King County voters Elliott Grace Harvey, Alan L. Meekins, Jr.,
Courtney Scott, Leah Solomon and Charlie Stone, shall Jenny Durkan be recalled from
office for misfeasance, malfeasance, and violation of the oath of office, based on the
following charges:

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Mayor Durkan endangered the peace and safety of the community and violated her
duties under state and local laws and her oath to uphold the federal and state
constitutions when she:

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(1) Issued a citywide curfew without sufficient notice for individuals to safely disperse;

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(2) Failed to institute new policies and safety measures for the Seattle Police
Department when using crowd control measures during a public health emergency;

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ORDER ON PETITION TO
DETERMINE SUFFICIENCY OF
RECALL CHARGES AND ADEQUACY
OF BALLOT SYNOPSIS - 6

Judge Mary E. Roberts
King County Superior Court
Courtroom W905, King County Courthouse
516 Third Avenue
Seattle, WA 98104-2381
(206) 477-1348

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(3) Failed to enforce police officer compliance with the Seattle Municipal Code and the
Seattle Police Department Manual when the police attacked members of the press
and street medics and failed to use appropriate de-escalation techniques;

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(4) Failed to protect freedom of speech and the right to peaceful assemble;

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(5) Wrongfully subjected bystanders to chemical weapons and crowd control measures;
(6) Allowed police to leak false information to the media about fabricated crimes and
threats;
(7) Issued an overbroad order prohibiting possession or certain items in areas of the
city.
The synopsis is inconsistent with the court’s rulings above. Based on the foregoing, the
court ORDERS as follows:

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1. Charges A, and C-G are DISMISSED as insufficient.
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2. Charge B is allowed to proceed, more narrowly than alleged.

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3. The ballot synopsis is amended to read as follows:

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As alleged by King County voters Elliott Grace Harvey, Alan L. Meekins, Jr.,
Courtney Scott, Leah Solomon and Charlie Stone, shall Jenny Durkan be recalled from
office for misfeasance, malfeasance, and violation of the oath of office, based on the
following charge:

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Mayor Durkan endangered the peace and safety of the community and violated her
duties under state and local laws and her oath to uphold the federal and state
constitutions when she failed to institute new policies and safety measures for the
Seattle Police Department after learning of the use of chemical agents on peaceful
protesters as a means of crowd control during a public health emergency.

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ORDER ON PETITION TO
DETERMINE SUFFICIENCY OF
RECALL CHARGES AND ADEQUACY
OF BALLOT SYNOPSIS - 7

Judge Mary E. Roberts
King County Superior Court
Courtroom W905, King County Courthouse
516 Third Avenue
Seattle, WA 98104-2381
(206) 477-1348

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4. The Clerk of the Court Shall certify and submit the above ballot synopsis to Mayor
Jenny Durkan, to each Recall Petitioner, and to the County Auditor.

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DATED this 10th day of July, 2020.

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See digital signature_________________
JUDGE MARY E. ROBERTS

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ORDER ON PETITION TO
DETERMINE SUFFICIENCY OF
RECALL CHARGES AND ADEQUACY
OF BALLOT SYNOPSIS - 8

Judge Mary E. Roberts
King County Superior Court
Courtroom W905, King County Courthouse
516 Third Avenue
Seattle, WA 98104-2381
(206) 477-1348

 King County Superior Court
Judicial Electronic Signature Page
Case Number:
Case Title:

20-2-10455-8

Document Title:

IN RE JENNY DURKAN / RECALL CHARGES AND
ADEQUACY OF BALLOT SYNOPSIS
ORDER RE RECALL PETITION

Signed by:
Date:

Mary Roberts
7/10/2020 4:13:11 PM

Judge/Commissioner: Mary Roberts

This document is signed in accordance with the provisions in GR 30.
Certificate Hash:
3D64BFCEEA2C954279D2D48411270A0F20B49453
Certificate effective date: 7/16/2018 1:34:44 PM
Certificate expiry date: 7/16/2023 1:34:44 PM
Certificate Issued by:
C=US, E=kcscefiling@kingcounty.gov, OU=KCDJA,
O=KCDJA, CN="Mary Roberts:
YO/0sIr95BGVOK5mHl1GsA=="

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