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THE HONORABLE MARY ROBERTS

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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KING

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IN RE THE MATTER OF RECALL
CHARGES AGAINST CITY OF SEATTLE
MAYOR JENNY DURKAN (HARVEY)

Case No. 20-2-10455-8 SEA

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REPLY IN SUPPORT OF MOTION FOR
RECONSIDERATION OF ORDER ON
PETITION TO DETERMINE
SUFFICIENCY OF RECALL CHARGES
AND ADEQUACY OF BALLOT
SYNOPSIS

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ORAL ARGUMENT REQUESTED

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I.

INTRODUCTION1

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Recall petitions are not the forum to resolve political disagreements. Washington law

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only permits a recall petition to proceed where, at minimum, the petitioner can specifically

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identify a law or legal duty that a public official has violated. Mayor Durkan has not violated

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any law or legal duty, and Petitioners’ Response fails to allege otherwise.

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Instead, Petitioners heavily rely on criticism of Mayor Durkan’s discretionary decisions

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and actions. While such criticism is a necessary and legitimate part of public debate, it is not

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In their July 21 Response, Petitioners purport to bring a “Cross-Motion for Reconsideration.” The Court issued
its Order on July 10. Petitioners’ “Cross-Motion” is therefore untimely. See CR 59(b) (requiring a motion for
reconsideration to be filed within ten days). In compliance with KCLCR 59(b), Mayor Durkan will not otherwise
respond to the “Cross-Motion” unless requested to do so by the Court. A proposed order dismissing the CrossMotion as untimely is submitted herewith.

REPLY IN SUPPORT OF 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

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a substantive basis to justify a recall petition. Mayor Durkan respectfully requests that this
Court grant the Motion for Reconsideration and dismiss the remaining charge in the Petition.

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II.
A.

AUTHORITY AND ARGUMENT

Petitioners fail to allege any act that justifies recall.
Petitioners now admit Mayor Durkan is not subject to recall for not implementing an

outright ban on CS gas and claim they never maintained otherwise. Response at 8 (“[A] request
to outlaw CS gas was not present in the charges, nor was it the intent.”). At the very least, the
Petition and associated filings strongly implied that anything short of an outright ban on CS
gas was a violation of the law or a legal duty sufficient to justify recall. Indeed, the Court
appears to have interpreted the Petition as claiming an outright ban was required. See Order
at 5 (holding that allegations were sufficient to the extent they pertained to “failure to step in
to stop the use of chemical crowd control agents” after becoming aware of their use) (emphasis
added). Even though she supported restrictions on the use of CS gas, Mayor Durkan has
demonstrated that an outright ban was not legally required, which presumably accounts for
Petitioners’ changed position.
Having abandoned the call for an outright ban, Petitioners vaguely allege that Mayor
Durkan is nonetheless subject to recall, but do not include specifics as to the purported grounds
for the Petition. For example, Petitioners do not identify the “orders” they contend Mayor
Durkan should have given SPD. Petitioners also fail to describe how their unspecified
preferred policies would have differed from SPD’s existing court-approved use-of-force and
crowd management policies, as well as Chief Best’s June 5 order prohibiting CS gas except at
her direction in life-safety circumstances. Without this basic information, Petitioners do not
satisfy RCW 29A.56.110’s requirement that a recall petition identify the alleged act or acts
justifying recall. See Jenkins v. Stables, 110 Wn.2d 305, 307 (1988) (A petition must describe
the charge with “sufficient precision and detail to enable the electorate and the challenged

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REPLY IN SUPPORT OF 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

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official to make informed decisions in the recall process.”). Absent a specific failure to act,
there is no basis to find that the failure to do the act violated the law or a legal duty.
1.

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Mayor Durkan had no legal duty under the Seattle City Charter to implement
new SPD policies.

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Petitioners concede that the City Charter “places initial implementation of SPD policies

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upon the Chief of Police,” not the Mayor. Response at 5. Indeed, Article V, Section 2 of the

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Charter states, “The Mayor shall see that the laws in the City are enforced . . . except in so far

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as such enforcement . . . is by this Charter reposed in some other officer or board . . . .” Article

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VI, Section 4, in turn, states that the Chief of Police “shall manage the Police Department and

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shall prescribe rules and regulations, consistent with law, for its government and control.”).

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To construe the Charter otherwise would render superfluous the Mayor’s discretionary

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authority to “assume command of whole or part of the police force” during an emergency. See

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Charter, Article V, Sec. 2.

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Petitioners’ reliance on Pepper and Cy Sun is unpersuasive, primarily because they

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rebut an argument Mayor Durkan has never made. Mayor Durkan does not “blame” Chief

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Best for policy decisions she did or did not make. Chief Best has the Mayor’s complete trust

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and support. Rather, Mayor Durkan has highlighted for the Court that she did not violate the

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law and had no legal duty to override Chief Best’s policy decisions or authority.

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The existence of a legal duty is at issue here, not causation. A recall petition must, at

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minimum, allege (1) wrongful conduct that affects, interrupts, or interferes with performance

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of a legal duty or (2) a public officer’s failure to faithfully perform a duty imposed by law.”

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RCW 29A.56.110 (1)-(2) (emphasis added). Mayor Durkan had no legal duty for purposes of

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the recall statute to implement “new policies” for SPD. The Petition accordingly fails.

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2.

Mayor Durkan’s discretionary decisions were not “manifestly unreasonable.”

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While conceding that Mayor Durkan is not responsible for the “initial implementation

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of SPD policies,” Petitioners nonetheless claim that Mayor Durkan’s exercise of discretion in
REPLY IN SUPPORT OF 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

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the midst of massive civil unrest and multiple unfolding civil emergencies was “manifestly
unreasonable.” Petitioners claim that Mayor Durkan should have (1) “remove[d]” Chief Best
and (2) “take[n] control of the Seattle Police Department and give[n] it orders.” Response at
5. The City Charter illustrates the Mayor’s wide discretion in determining whether to assume
command of SPD, noting that the Mayor “shall be the judge” of whether to declare a civil
emergency. See also SMC 10.02.010A (noting that the determination of whether to declare a
civil emergency shall be “in the judgment of the mayor.”).
The Washington Supreme Court has shown deference to public officials’ discretionary
exercise of their executive and/or emergency authority. See Matter of Recall of Inslee, 194
Wn.2d 563, 573 (2019) (governor’s failure to declare a state of emergency to address
homelessness was an appropriate exercise of discretion and therefore not legally sufficient
basis for recall); In re Recall of Bolt, 177 Wn.2d 168, 175 (2013) (noting that “[s]upervising
an employee inherently involves a substantial amount of discretion” and holding that mayor’s
terminating employee without following personnel policy was insufficient for recall); In re
Zufelt, 112 Wn. 2d 906, 913–14 (1989) (mayor’s discretionary decision to disband the reserve
police force was not legally sufficient basis for recall).
Any suggestion that it was manifestly unreasonable for Mayor Durkan not to “remove”
Chief Best or otherwise usurp her authority is meritless. Chief Best is a nationally recognized
law enforcement leader who is committed to constitutional policing, police reform, and
community safety.

Mayor Durkan trusts Chief Best to lead SPD through a period of

unprecedented difficulty.
3.

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Petitioners’ Response illustrates the Mayor’s intent to balance constitutional
rights and community safety, not to violate the law.

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Petitioners devote significant attention in their Response to alleged violations of the

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TRO entered by Judge Jones in the Black Lives Matter Seattle-King County litigation, urging

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this Court to inappropriately apply a broad tort liability standard to a recall petition. As this
REPLY IN SUPPORT OF 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

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Court has already recognized, however, “Mayor Durkan is not accountable by way of recall
for the actions of her subordinates without her knowledge, not at her direction.” Order at 5
(citing In re Recall of Morrisette, 110 Wn.2d 933, 936 (1988)). Particularly given their
admission that the Petition does not allege that Mayor Durkan should have banned the use of
CS gas outright, Petitioners have not and cannot show that any individual use of force that they
allege violated Judge Jones’ TRO was carried out with the Mayor’s knowledge or intent.2

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As for the remaining allegations, Petitioners’ lengthy timeline demonstrates that Mayor
Durkan sought significant input regarding the use of less lethal tools. See Dkt. 25, Ex. C
(showing Mayor Durkan’s June 2 and June 5 requests that the City’s accountability partners
provide “immediate recommendations” and “systemic review” of SPD’s crowd management
policy). As Petitioners note, certain community groups advocated for an outright ban of less
lethal tools. Conversely, the Office of Inspector General noted in its June 12 report that “[i]n
its preliminary research, OIG did not find credible external sources advocating a blanket ban
on the use of less lethal tools 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 to their or others’ safety.” Id.3

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Seeking to balance these concerns, Chief Best announced that SPD would suspend the
use of CS gas for at least 30 days pending the accountability partners’ oversight work, except
in life-safety circumstances where the Chief or her designee authorized the deployment.

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Indeed, Petitioners’ claims regarding the clearing of the area near SPD’s East Precinct are misleading.
Petitioners claim that on July 1st and 2nd, SPD used CS gas. The very materials Petitioners rely on (news articles
from the Seattle Times and capitholhillseattle.com), however, contain no reference to CS gas. See Response at
24, n.58, 60. Moreover, in support of their claim that CS gas was deployed on July 19 near the West Precinct,
Petitioners rely on Tweets from unidentified Twitter users. Response at 25, n.63. No credible media outlet has
reported that CS gas was deployed in response to protests on July 19. See https://www.seattletimes.com/seattlenews/crowd-of-protesters-marches-through-downtown-seattle-and-capitol-hill-police-report-arrests-vandalism/.

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The SPD operations manual notes that “less-lethal tools are used to interrupt a subject’s threatening behavior
so that officers may take physical control of the subject with less risk of injury to the subject or officer than
posed by greater force applications.” Id.

REPLY IN SUPPORT OF 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

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Mayor Durkan supported this order. Dkt 25, ¶8.
In every action, Mayor Durkan sought to reasonably balance interests. Even in the
event individual officers are ultimately found to have violated constitutional rights, they did so
in contravention of Mayor Durkan’s and Chief Best’s actions, not as an intended result.

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III.

CONCLUSION

Contrary to Petitioners’ claims, Mayor Durkan welcomes accountability and careful
review of recent events from SPD’s accountability partners and the community at large. Come
regularly scheduled election time next year, Seattle voters can and will hold Mayor Durkan
accountable for the City’s successes and failures during her administration. Petitioners,
however, fail to identify any policy or order that the Mayor should have issued, let alone that
such alleged failure violates a law or legal duty under the recall statute. The Petition should
accordingly be dismissed.

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I certify that this memorandum contains 1,750 words, in compliance with the Local
Civil Rules.
DATED this 23rd day of July, 2020.
SCHROETER GOLDMARK & BENDER

K&L GATES LLP

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
Attorneys for City of Seattle
Mayor Jenny A. Durkan

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

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REPLY IN SUPPORT OF 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

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CERTIFICATE OF SERVICE
I hereby certify that on July 23, 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
Jennifer.atchison@kingcounty.gov
Janine.joly@kingcounty.gov
Matthew Lee Cromwell
418 23rd Avenue E.
Seattle, WA 98112
matthewlcromwell@gmail.com
Elliott Grace Harvey
1505 11th Avenue, Apt. 203
Seattle, WA 98122
elliottgraceharvey@gmail.com
Alan Lawrence Meekins, Jr.
4200 Mary Gates Memorial Drive NE, # Q221
Seattle, WA 98105
nullagent@gmail.com
Courtney K. Scott
1907 13th Avenue S.
Seattle, WA 98144
courtneykscott@me.com
Leah Michele Solomon
1621 N. 47th Street
Seattle, WA 98103
solomon.lm@gmail.com
Charlie Jenna Stone
505 Boylston Avenue E., # 304
Seattle, WA 98102
charliehorsepower26@gmail.com
DATED this 23rd day of July, 2020
s/ Sabrina Mitchell
Sabrina Mitchell, Sr. Practice Assistant
REPLY IN SUPPORT OF 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