1 THE HONORABLE MARY ROBERTS Hearing Date: July 15, 2020 2 3 4 5 6 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING 7 8 9 IN RE THE MATTER OF RECALL CHARGES AGAINST CITY OF SEATTLE MAYOR JENNY DURKAN (HARVEY) 10 11 Case No. 20-2-10455-8 SEA MOTION FOR RECONSIDERATION OF ORDER ON PETITION TO DETERMINE SUFFICIENCY OF RECALL CHARGES AND ADEQUACY OF BALLOT SYNOPSIS 12 ORAL ARGUMENT REQUESTED 13 14 15 I. 16 Pursuant to CR 59(a)(7) and (9), Mayor Durkan respectfully requests that this Court 17 18 19 20 21 22 23 INTRODUCTION AND RELIEF REQUESTED reconsider its July 10 Order on [the] Petition to Determine Sufficiency of Recall Charges and Adequacy of Ballot Synopsis (“Order”).1 Charge B, even as modified by the Order (“Charge”), is factually and legally insufficient. As previously noted, the Petition’s overbreadth made meaningfully responding to each allegation nearly impossible. This Motion and supporting materials are tailored to the sole remaining Charge and supplements the prior record with actions the Mayor has taken regarding crowd control policies. Mayor Durkan has no legal or constitutional duty to prescribe policies and procedures 24 25 26 1 Mayor Durkan does not request reconsideration of the Order except as expressly provided herein. MOTION FOR RECONSIDERATION OF ORDER TO DETERMINE SUFFICIENCY OF RECALL CHARGES AND ADEQUACY OF BALLOT SYNOPSIS - 1 K&L GATES, LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 370-7955 FACSIMILE: (206) 370-6169 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 for SPD. Instead, the City Charter places that duty upon the Chief of Police, who exercised her authority in a reasonable manner by requiring that CS gas only be used with her approval. Moreover, on July 13, DOJ stated that any unilateral change to SPD use of force or crowd control policies without court approval would violate the Consent Decree. To the extent Charge B implies that Mayor Durkan should have taken emergency action with regard to crowd control policies, her discretionary decision not to overrule or usurp all or part of the Chief’s authority cannot be a basis for recall, particularly in the midst of a dynamic week of protests, public safety issues, and unrest. To be sure, the insufficiency of Charge B is reflected in Judge Jones’ ruling in the Black Lives Matter Seattle-King County case, which came after the events in question. Judge Jones did not find a statutory, constitutional, or other legal duty to prohibit all use of chemical agents. Rather, he limited their use in a manner similar to Chief Best’s existing policy and left compliance to the Chief and SPD.2 Recall cannot be used to settle political disagreements or second guess discretionary actions, particularly where the law places that discretion in another individual. 16 17 18 19 20 21 II. STATEMENT OF FACTS It has been more than two decades since Seattle has seen demonstrations of the size and duration of those in recent months. These events escalated significantly and quickly. A. May 30 Peaceful demonstrations turned to “chaos,” including “significant property damage, multiple arson events, theft, and injuries to community members and law enforcement.”3 22 23 24 25 26 2 Charge B does not even specify whether Petitioners allege that an outright ban, or some other policy short of an outright ban, was required. 3 Links to footage reflecting the dire situation are provided in the Declaration of Rebecca Roe filed herewith (“Roe”) at ¶2. As the footage demonstrates, real time decision making regarding appropriate use of force is often difficult in crowd management situations. MOTION FOR RECONSIDERATION OF ORDER TO DETERMINE SUFFICIENCY OF RECALL CHARGES AND ADEQUACY OF BALLOT SYNOPSIS - 2 K&L GATES, LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 370-7955 FACSIMILE: (206) 370-6169 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Declaration of Thomas Mahaffey (“Mahaffey”), Dkt. 16, at Ex.A, ¶13. The Emergency Proclamation Mayor Durkan issued described the perilous situation, including assaults on officers, SPD cars set on fire, an SPD rifle stolen from a police vehicle and fired, and Molotov cocktails thrown at SPD headquarters.4 Dkt.15, Ex.1. The National Guard was activated to restore safety. B. May 31 The focus of the demonstrations shifted to SPD’s East Precinct. Multiple officers were injured after being hit with rocks, bottles, OC spray, fireworks, and other projectiles. Mahaffey, ¶15. There were 21 arrests on charges including burglary, assault, robbery, and assault/unlawful possession of a firearm. Roe, Ex.B. Due to the depletion of less-lethal tools available to officers “as they managed the significant violence, property damage, and injuries to police and other civilians during the events,” Chief Best, under her lawful Charter authority, authorized patrol to use CS gas “in the necessary event of crowd disbursement otherwise consistent with SPD policy.”5 Mahaffey, ¶14. C. June 1 Individuals in the crowd deployed several explosions towards officers.6 Id. ¶17. There were at least three reports of officer injuries. Roe, Ex.B. After issuing several dispersal orders, 18 19 20 21 22 4 The Seattle Police Operational Command’s timeline (the “Timeline”) contains logs reflecting radio traffic from officers and commanders responding to events as they unfolded. Roe Exs.A,B. On May 30, the Timeline notes 55 arrests, including assault on an officer, assault, and burglary. Id., Ex.B. The Timeline also describes an individual being stabbed in the abdomen, multiple recovered weapons, and rampant vandalism and/or looting. 23 24 25 26 5 As the OIG noted in its Informational Summary of Less Lethal Weapon Usage in Protests, under “normal circumstances,” SWAT is authorized to use CS gas in crowd management situations. Dkt.16, Ex.B. 6 The Timeline also noted individuals “pushing hard” through a barricade, the arrest of an individual who had an AR-15 assault rifle in the crowd, and a “violent aggressive crowd” that refused to follow orders and pushed officers. Roe, Ex.B. MOTION FOR RECONSIDERATION OF ORDER TO DETERMINE SUFFICIENCY OF RECALL CHARGES AND ADEQUACY OF BALLOT SYNOPSIS - 3 K&L GATES, LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 370-7955 FACSIMILE: (206) 370-6169 1 incident command authorized CS gas and OC spray.7 Mahaffey, ¶17, Roe, Ex.B. 2 D. 3 4 5 6 7 8 June 2 After viewing the events of the previous evening, Mayor Durkan verbally requested “immediate recommendations” and “systemic review” of SPD’s crowd management policy from the two oversight bodies charged with assessing individual and systemic problems at SPD: the Office of Police Accountability and the Inspector General. Roe, Ex.C. In a press conference, Mayor Durkan publicly announced the review and discussed the desire she and Chief Best shared to uphold First Amendment rights and maintain public safety, stating: 9 I want people to be able to peacefully gather to be able to demand change, express grief, experience community with one another, but we need them to do it peacefully. 10 11 We will do all we can to protect the cherished right to assemble and express First Amendment rights, but we will also make sure we maintain public safety, protect people, and protect the public safety of every community. 12 13 Chief Best and I have had so many conversations over the years, and we know and agree and reaffirm that every encounter of police they use and try to determine how to de-escalate as a first stop. The use of any force—whether it be the use of handson force or pepper spray or tear gas should only be done as circumstances require. 14 15 16 17 18 19 20 21 Roe, Ex.E. Mayor Durkan affirmed her commitment to investigating police misconduct, stating, “there could never be a more important moment that [OPA and OIG] have the resources and confidence of the public . . . we will make sure that in the budget[,] OPA and OIG have the resources they need to do the job they need to do to give the public the confidence that the oversight is there.” Id. Unfortunately, violence continued from some in the protest crowds, with officers hit by 22 23 24 various projectiles. Mahaffey, ¶18. At least four officers were injured, including one hospitalization. Roe, Ex.B. SPD incident command authorized OC spray and CS gas near 25 7 26 As a recent New York Times article noted, CS gas was deployed in approximately 100 U.S. cities during protests last month. Roe, Ex.D. MOTION FOR RECONSIDERATION OF ORDER TO DETERMINE SUFFICIENCY OF RECALL CHARGES AND ADEQUACY OF BALLOT SYNOPSIS - 4 K&L GATES, LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 370-7955 FACSIMILE: (206) 370-6169 1 2 3 4 5 6 7 8 midnight after prior dispersal efforts failed. Id. E. To de-escalate the situation, SPD created additional barrier space between officers and the crowd. Mahaffey, ¶20. Officers still incurred injuries from projectiles thrown from the crowd. Id. Regardless, SPD did not deploy chemical irritants. See id; Roe, Ex.B.8 F.  Proactively following up on her earlier request, Mayor Durkan sought professional input on SPD’s crowd management policies by sending a letter to 10 the OPA, OIG, Federal Monitor, CPC, and DOJ. See Roe, Ex.C. In the letter, 11 Mayor Durkan requested review of “SPD’s crowd management policy, including 12 the use of all crowd control tools and strategies, in the next 30 days.” Id. She 13 further requested they work with Public Health Seattle & King County to 14 “determine what innovative techniques . . . can provide a greater ability to de- 15 escalate situations that occur with mass protests, so that the use of force can be 16 greatly minimized and avoided.” Id.  18 The OIG, CPC, and OPA released a memorandum regarding the use of CS gas, noting the Mayor and Chief’s requests that they “thoroughly review the [SPD] 19 protest response.” Roe, Ex.F. They recommended that SPD “cease the use of CS 20 gas in response to First Amendment activity, until such time as any appropriate 21 use can be vetted by oversight entities and incorporated into a written SPD 22 23 June 5 Mayor Durkan and Chief Best took several critical steps: 9 17 June 3 policy.” Id.  Just hours later, Chief Best announced that SPD would suspend the use of CS gas 24 25 26 8 Also on June 3, Mayor Durkan and Chief Best attended the CPC meeting to hear from commissioners and community members. Roe, Ex.C. MOTION FOR RECONSIDERATION OF ORDER TO DETERMINE SUFFICIENCY OF RECALL CHARGES AND ADEQUACY OF BALLOT SYNOPSIS - 5 K&L GATES, LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 370-7955 FACSIMILE: (206) 370-6169 1 for at least 30 days pending the oversight work. Any use of CS gas could only be 2 used by SWAT “in life safety circumstances and consistent with training.” The 3 directive further specified, “until further notice, any deployment must be 4 approved by the Chief or the Chief’s designee.” Mahaffey, ¶21. This order was 5 6 well within the Chief’s authority under the Charter.  7 officers do not need to be using tear gas at protests as a crowd management tool.” 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mayor Durkan noted that she supported Chief Best’s order, stating that “SPD Roe, ¶8. G. June 6 Demonstrators near the East Precinct began trying to push the line of officers back by 15-20 feet. Mahaffey, ¶23. When officers attempted to reestablish the line, individuals in the crowd began to throw items at officers and attempt to take fencing from SPD. Id. Throughout the night, officers were hit with glass bottles and fireworks. Id. Due to these dangers, OC spray was deployed; CS gas was not. See id.; Roe, Ex.B. H. June 7 During evening hours, the situation deteriorated. SPD installed new barriers, hoping to minimize direct confrontations. Officers on the ground observed individuals break and weaponize the protective fencing, as well as another group of approximately 20 people with shields, helmets, and gas masks attempting to create a disturbance. Mahaffey, ¶24. As the crowd slowly advanced towards police, officers observed a potential IED nearby and received a radio report of an individual with a gun in the crowd. Id. Despite multiple instructions to cease advancing, the situation escalated, as demonstrators threw items at officers, including a water bottle filled with chemical irritants. Id. As individuals brought wooden shields with nails to the front of the line, the crowd surrounded officers and began to block the area that was designated the safe entry/exit point for SPD. Id. 26 MOTION FOR RECONSIDERATION OF ORDER TO DETERMINE SUFFICIENCY OF RECALL CHARGES AND ADEQUACY OF BALLOT SYNOPSIS - 6 K&L GATES, LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 370-7955 FACSIMILE: (206) 370-6169 1 2 3 Based on the life-safety circumstances, Chief Best authorized CS gas shortly after midnight. See Mahaffey, ¶25. In a press conference, Chief Best described her decision in the midst of this extremely difficult situation: 4 I was keeping abreast of what was happening in the precinct. We had a shooting earlier in the day. At some point, it got unruly, [and] there was a man with a gun in the crowd. The officers felt like it was a life-safety situation based on what was occurring, and I concurred. And I own that decision. I made that decision, and I will own any decision that I think is in the best interest of everyone’s public safety. 5 6 7 8 Roe, ¶9. There have been no subsequent deployments of CS gas. 9 I. 10 11 12 13 14 15 16 17 In his Order in Black Lives Matter Seattle-King County, Judge Jones declined plaintiffs’ request to ban the use of chemical irritants outright. Instead, his order “does not preclude individual officers from taking necessary, reasonable, proportional, and targeted action to protect against a specific threat of physical harm to themselves or identifiable others or to respond to specific acts of violence or destruction of property.” Id., 5. Moreover, the order permitted use of CS gas where (a) efforts to subdue a threat by using alternative measures, including pepper spray, have been exhausted and ineffective, and (b) the Chief has determined that use of CS gas is the only reasonable alternative. 18 19 20 21 22 23 24 June 12 Since this order, policy discussions have continued over the use of chemical irritants. On June 15, City Council passed an ordinance banning all “crowd control weapons,” including chemical irritants, effective at the end of July.9 Roe, Ex.G. On June 29, Mayor Durkan returned the ordinance unsigned, noting that while she shared concerns regarding crowd management, the ordinance, among other issues, was inconsistent with Judge Jones’ order and contained no exemption for life-safety situations. Roe, Ex.H. Mayor Durkan’s response further noted that the “law directly impacts and possibly contravenes SPD policies developed and approved by [Judge 25 26 9 The ordinance does not purport to apply retroactively. MOTION FOR RECONSIDERATION OF ORDER TO DETERMINE SUFFICIENCY OF RECALL CHARGES AND ADEQUACY OF BALLOT SYNOPSIS - 7 K&L GATES, LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 370-7955 FACSIMILE: (206) 370-6169 1 2 3 4 5 6 7 8 Robart] in the consent decree litigation.” Id. In a July 13 e-mail to the Seattle City Attorney’s Office, Assistant United States Attorney Fogg stated that pursuant to the Consent Decree, “the City must obtain approval of any modification to Consent Decree-related policies in advance of their implementation.” The City remains subject to the Consent Decree. Roe, Ex.I. Paragraph 177 of the Consent Decree states, “SPD will submit the policies, procedures, training curricula, and training manuals required to be written, revised, or maintained by the Settlement Agreement to the Monitor and DOJ for review and comment prior to publication and implementation.” Roe, Ex.J. 9 10 11 12 III. A. AUTHORITY AND ARGUMENT Charge B is legally insufficient. 1. Mayor Durkan has no legal duty to unilaterally implement new SPD policies and procedures. 13 The City Charter places responsibility for implementation of SPD policies and 14 procedures upon the Chief, not the Mayor. Moreover, DOJ’s position is that any modification 15 to SPD use of force and crowd control policies, whether from the Mayor, City Council, or any 16 other entity, are subject to court approval prior to implementation. 17 As discussed below, Petitioners do not specify the policies they contend Mayor Durkan 18 failed to implement. If Petitioners suggest an outright ban on chemical irritants was required, 19 notably, Judge Jones declined this exact request for relief and continued to permit Chief Best to 20 authorize CS gas in life-safety situations. Black Lives Matter Seattle-King County, 2020 WL 21 3128299 *5. Indeed, no federal court has adopted an outright ban on chemical irritants relating 22 to the recent demonstrations. See e.g., Don't Shoot Portland v. City of Portland, 2020 WL 23 3078329, *4 (D. Or. June 9) (permitting CS gas where the lives or safety of the public or police 24 are at risk); Abay v. City of Denver, 2020 WL 3034161, *5 (D. Colo. June 5) (permitting chemical 25 agents “after an order to disperse was issued” and after adequate time is given for the intended 26 audience to comply); Anti Police-Terror Project, et al. v. City of Oakland, No. 20-cv-03866MOTION FOR RECONSIDERATION OF ORDER TO DETERMINE SUFFICIENCY OF RECALL CHARGES AND ADEQUACY OF BALLOT SYNOPSIS - 8 K&L GATES, LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 370-7955 FACSIMILE: (206) 370-6169 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JCS, *2 (N.D. Cal. June 18) (permitting CS gas where necessary to protect “lives, serious bodily injury, or specific property”); Williams v. City of Dallas, No 3:20-CV-01526-L, at *1-2 (N.D. Tex. June 11) (permitting less lethal weapons in situations presenting immediate threat of serious harm). Legal sufficiency requires that a charge “define substantial conduct clearly amounting to misfeasance, malfeasance, or violation of the oath of office.” In re Recall of Telford, 166 Wn.2d 148, 154 (2009). Malfeasance and misfeasance require “wrongful conduct that affects, interrupts, or interferes with performance of an official duty.” RCW 29A.56.110(1) (emphasis added). “Violation of the oath of office” likewise includes the “neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law.” RCW 29A.56.110(2) (emphasis added). A charge cannot be legally sufficient where it does not allege violation of an official’s legal duties. For example, in In re Recall of Lindquist, 172 Wn.2d 120, 133 (2011), petitioners sought recall for a prosecutor’s alleged failure to investigate. The prosecutor argued that the charge was legally insufficient, as “the prosecuting attorney does not perform investigations.” Id. The Court agreed, holding that the charge was factually and legally insufficient because the prosecutor “had no duty to investigate.” Id. at 134. See also, Matter of Recall Charges Against Seattle School District Board of Directors, 162 Wn.2d 501, 511 (2007) (charge legally insufficient where directors had no legal duty to hold the hearing petitioners claimed they failed to timely hold). In stating that Mayor Durkan “failed to institute new policies and safety measures for the Seattle Police Department,” Charge B implies that under the various laws and constitutional provisions Petitioners identified, Mayor Durkan has a legal duty to unilaterally implement policies and safety measures for SPD. She does not. The Seattle City Charter states that the Chief of Police shall be the “chief peace officer of the City” and shall “maintain the peace and 26 MOTION FOR RECONSIDERATION OF ORDER TO DETERMINE SUFFICIENCY OF RECALL CHARGES AND ADEQUACY OF BALLOT SYNOPSIS - 9 K&L GATES, LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 370-7955 FACSIMILE: (206) 370-6169 1 2 3 quiet of the City.” Charter, Article VI, Sec. 5. Pursuant to this authority, the Chief “shall manage the Police Department, and shall prescribe rules and regulations, consistent with law, for its government and control.” Id. at Sec. 4 (emphasis added). 4 2. 5 The decision of whether to declare an emergency and assume operational control of SPD is within Mayor Durkan’s sole discretion. 6 To the extent Charge B refers to Mayor Durkan not assuming operational control of SPD, 7 this decision is discretionary and not a valid basis for recall. The Charter only permits the Mayor 8 to “assume command of the whole or any part of the police force” in an “emergency.” Id. at Art. 9 5, Sec. 2. Prior to taking this step, the mayor must issue an emergency proclamation. Id.10 SMC 10 10.02.010A provides that the determination of whether to declare a civil emergency shall be “in 11 the judgment of the mayor.” 12 “[D]iscretionary acts of a public official are not a basis for recall insofar as those acts are 13 an appropriate exercise of discretion by the official in the performance of his or her duties.” In 14 re Recall of Bolt, 177 Wn.2d 168, 174 (2013) (termination of an employee is a discretionary 15 decision). Rather, “[a]n official may be recalled for execution of discretionary acts only if the 16 official exercised discretion in a manifestly unreasonable manner.” Id. For example, in Matter 17 of Recall of Inslee, 194 Wn.2d 563, 573 (2019), the Court held that the governor’s alleged failure 18 to declare a state of emergency regarding homelessness was legally insufficient. The Court noted 19 that even though it was “apparent” that Washington was facing a homelessness crisis, “the choice 20 not to execute this discretionary act was not manifestly unreasonable.” Id. 21 It can hardly be said that Mayor Durkan’s decision to not usurp Chief Best’s authority 22 was unreasonable, let alone manifestly so. Chief Best is a world-class law enforcement 23 professional. Her credentials are impeccable, as is her commitment to public safety and police 24 25 26 10 Mayor Durkan’s Proclamation of Civil Emergency vested responsibility for public safety with the Police Chief and the Fire Chief. Notably, the City Council did not exercise its authority to amend the emergency order to institute particular policies for SPD. If a clear duty to impose a ban existed, the City Council had the same duty to act by modifying the orders. MOTION FOR RECONSIDERATION OF ORDER TO DETERMINE SUFFICIENCY OF RECALL CHARGES AND ADEQUACY OF BALLOT SYNOPSIS - 10 K&L GATES, LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 370-7955 FACSIMILE: (206) 370-6169 1 2 3 4 5 6 7 reform efforts. As Judge Jones noted, constitutional interests must be balanced where “violent offenders choose to disrupt constitutionally protected activity.” Black Lives Matter Seattle-King County, at *1. Mayor Durkan trusts Chief Best to continue to appropriately balance these interests in her stellar leadership of SPD. Charge B does not allege that Mayor Durkan violated a legal duty or exercised her authority in a manifestly unreasonable manner. It is accordingly legally insufficient. B. Charge B is factually insufficient. 8 1. Charge B is impermissibly vague. 9 Charge B alleges that Mayor Durkan failed to “step in” after becoming aware of the use 10 of chemical agents. The Charge lacks the requisite specificity. To be factually sufficient, a 11 charge must “give a detailed description including the approximate date, location, and nature of 12 each act complained of.” RCW 29A.56.110. For example, in In re Recall of Bolt, 177 Wn.2d 13 168, 176 (2013), petitioner alleged that a city councilmember “bullied and harassed” a town 14 employee, while the mayor allowed the behavior. The Court held that the allegation was 15 factually insufficient as to both officials, as it did not “identify the conduct or behavior with any 16 specificity.” Rather, the charge simply made general allegations of “bullying” and “harassment.” 17 Here, while the Charge alleges that Mayor Durkan failed to “institute new policies and 18 safety measures for [SPD],” it does not specify the basis of an affirmative duty to do so, or any 19 particular policy or safety measure Petitioners allege Mayor Durkan failed to implement. 20 Without this specificity, Seattle voters cannot meaningfully evaluate Petitioners’ purported basis 21 for a recall election. 22 Second, while the Court held that Charge B was only sufficient to the extent it pertains 23 to Mayor Durkan’s failure to “step in” after “becoming aware of [the use of chemical agents] 24 on peaceful protestors,” Charge B does not specify the dates or uses of force to which it 25 26 MOTION FOR RECONSIDERATION OF ORDER TO DETERMINE SUFFICIENCY OF RECALL CHARGES AND ADEQUACY OF BALLOT SYNOPSIS - 11 K&L GATES, LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 370-7955 FACSIMILE: (206) 370-6169 1 2 3 4 applies.11 As the above facts demonstrate, the Mayor and the Chief took specific and active steps in response to rapidly evolving events. The Mayor sought professional input, and the Chief imposed a policy related to the use of chemical irritants that appropriately balanced life safety concerns. Charge B accordingly lacks sufficient specificity.12 5 2. 6 There is no evidence that Mayor Durkan violated the law, let alone that she intended to do so. 7 Factual sufficiency requires that a petition demonstrate not only that the official 8 intended to commit an unlawful act, but that she intended to act unlawfully. Matter of Recall 9 of Inslee, 194 Wn.2d 563, 567-68 (2019). “While some inferences are permissible in a recall 10 petition, on the whole, the facts must indicate an intention to violate the law.” Id. at 572. For 11 example, in In re Recall of Carkeek, 156 Wn.2d 469 (2006), the petitioner claimed that a 12 commissioner sought an anti-harassment order against two of his neighbors to exclude them 13 from public meetings in violation of the OPMA. Even though the anti-harassment order was 14 denied, the Court nonetheless held that the petition was insufficient to show intent to violate 15 the law. Id. at 174. The Court noted the absence of any “concrete facts” showing an 16 “impermissible motive.” Rather, the commissioner’s “sincere, if ultimately nonprevailing” 17 fear for his safety was not indicative of the requisite intent. Id. 18 Likewise, in Matter of Recall of Wade, 115 Wn.2d 544, 799 (1990), the petitioner sought 19 to recall a school board member, noting the district affirmative action policy’s aim of increasing 20 the number of women and claiming he was not hired because he was a man. The Court held that 21 the claim was legally insufficient, stating that “[j]ust because the District’s affirmative action 22 23 11 24 25 To the extent this distinction refers to Chief Best’s decision to authorize the deployment of CS gas due to the life safety circumstances presented June 7, the Charge is insufficient, as an official cannot be recalled for an act of a subordinate where the official did not direct or have knowledge of the act. In re Matter of Recall of Morrisette, 110 Wn.2d 933, 936 (1988). The Mayor is not subject to recall for any discretionary act taken by any subordinate without her knowledge or direction. 26 12 For the same reasons, the Court’s ballot synopsis does not satisfy RCW 29A.56.140’s adequacy requirement. MOTION FOR RECONSIDERATION OF ORDER TO DETERMINE SUFFICIENCY OF RECALL CHARGES AND ADEQUACY OF BALLOT SYNOPSIS - 12 K&L GATES, LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 370-7955 FACSIMILE: (206) 370-6169 1 2 3 plan had a general aim to increase the number of women in administrative positions does not suggest that in this particular instance the Board refused to hire [petitioner] because he is a man.” Id. at 550. 4 5 6 7 Here, in order to be factually sufficient, the Petition must set forth facts showing that upon learning of the use of chemical irritants, Mayor Durkan had a lawful duty to “step in,” and in failing to do so, intended for constitutional rights to be violated. To the contrary, Mayor Durkan has: 8  9 protestors; 10  11  13  15 20 21 22 Publicly stated her support of Chief Best’s decision to prohibit the use of CS gas pending review of SPD crowd management policies.13 Roe, Exs.C-E, ¶8. 17 19 Promised budgetary support, despite the economic crisis, for review of recent events; and 14 18 Actively requested OPA, CPC, DOJ, Federal Monitor, and OIG review of crowd management policies just days after the onset of the protests; 12 16 Consistently voiced her support for the First Amendment rights of peaceful Even if this Court declines to consider Mayor Durkan’s public statements and actions, the allegations contained in Charge B do not reflect any “concrete facts” evidencing intent to violate the law. Petitioners have not supplied any factual basis for their allegation that after a decades-long career actively pursuing police reform efforts, Mayor Durkan would intend for SPD officers to violate First Amendment rights. SPD has existing court-approved policies relating to use of force and crowd management.14 If individual officers’ actions violated those 23 24 25 13 It is appropriate for the trial court to consider materials beyond the petition in evaluating the factual basis of a recall petition. See Matter of Recall of Beasley, 128 Wn.2d 419, 427 (1996) (in light of conclusory allegations, it was proper for the trial court to consider supporting documents submitted by the public official “for the purpose of determining whether there is any basis for the charges”). 26 14 The OIG’s June 12 report on Less Lethal Weapons Usage in Protests provides an overview MOTION FOR RECONSIDERATION OF ORDER TO DETERMINE SUFFICIENCY OF RECALL CHARGES AND ADEQUACY OF BALLOT SYNOPSIS - 13 K&L GATES, LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 370-7955 FACSIMILE: (206) 370-6169 1 2 3 4 5 policies, Petitioners fail to set forth any evidence that Mayor Durkan or Chief Best intended this result. This allegation is both unsupported by the record and false. I certify that this memorandum contains 4,194 words, in compliance with the Local Civil Rules. DATED this 14th day of July, 2020. 6 SCHROETER GOLDMARK & BENDER 7 By: s/ Rebecca J. Roe Rebecca J. Roe, WSBA No. 7560 Schroeter Goldmark & Bender 500 Central Building 810 Third Avenue Seattle WA 98104 (206) 622-8000 8 9 10 11 12 K&L GATES LLP 13 14 By: s/ G. William Shaw G. William Shaw, WSBA No. 8573 bill.shaw@klgates.com Ryan J. Groshong, WSBA No. 44133 ryan.groshong@klgates.com Matthew P. Clark WSBA No. 55570 matt.clark@klgates.com 15 16 17 18 Attorneys for City of Seattle Mayor Jenny A. Durkan 19 20 21 22 23 24 25 26 of SPD policies relating to less lethal weapons. The report notes that “[i]n its preliminary research, OIG did not find credible external sources advocating a blanket ban on the use of less lethal weapons either in general patrol operations or crowd control.” Dkt.16, Ex.B. Rather, in the absence of such tools, “officers may rely on greater use of lethal force to respond to threats of their or others’ safety.” MOTION FOR RECONSIDERATION OF ORDER TO DETERMINE SUFFICIENCY OF RECALL CHARGES AND ADEQUACY OF BALLOT SYNOPSIS - 14 K&L GATES, LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 370-7955 FACSIMILE: (206) 370-6169 1 CERTIFICATE OF SERVICE 2 3 4 5 6 7 8 I hereby certify that on July 14, 2020, I caused the foregoing opposition to be served via the Court’s e-service portal on the party listed below: Jennifer Atchison Janine Joly Daniel T. Satterberg King County Prosecuting Attorney Civil Division, Contracts Section 900 King County Administration Building 500 Fourth Avenue Seattle, WA 98104 9 10 CROMWELL, MATTHEW LEE - Email address of matthewlcromwell@gmail.com 418 23RD AVE E SEATTLE, WA 98112 11 12 HARVEY, ELLIOTT (GRACE) Email address of elliottgraceharvey@gmail.com 1505 11TH AVE APT 203 SEATTLE, WA 98122 13 14 MEEKINS, ALAN LAWRENCE Jr Email address of nullagent@gmail.com 4200 MARY GATES MEMORIAL DR NE # Q221 SEATTLE, WA 98105 15 16 SCOTT, COURTNEY K Email address of courtneykscott@me.com 1907 13TH AVE S SEATTLE, WA 98144 17 18 SOLOMON, LEAH MICHELE Email address of solomon.lm@gmail.com 1621 N 47TH ST SEATTLE, WA 98103 19 20 21 STONE, CHARLIE JENNA Email address of: charliehorsepower26@gmail.com 505 BOYLSTON AVE E # 304 SEATTLE, WA 98102 DATED this 14th day of July, 2020 22 s/ Sabrina Mitchell Sabrina Mitchell, Sr. Practice Assistant 23 24 25 26 MOTION FOR RECONSIDERATION OF ORDER TO DETERMINE SUFFICIENCY OF RECALL CHARGES AND ADEQUACY OF BALLOT SYNOPSIS - 15 K&L GATES, LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 370-7955 FACSIMILE: (206) 370-6169