FILED 1 THE HONORABLE MARY ROBERTS 2020 AUG 12 01:50 PM KING COUNTY SUPERIOR COURT CLERK E-FILED CASE #: 20-2-10455-8 SEA 2 3 4 5 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING 6 7 8 9 IN RE THE MATTER OF RECALL CHARGES AGAINST CITY OF SEATTLE MAYOR JENNY DURKAN (HARVEY) Case No. 20-2-10455-8 SEA NOTICE OF APPEAL TO WASHINGTON SUPREME COURT 10 11 12 13 14 15 Pursuant to RCW 29A.56.270, Mayor Jenny A. Durkan respectfully seeks review by the Washington Supreme Court of the following decisions as outlined herein:  16 July 10, 2020, Order on Petition to Determine Sufficiency of Recall Charges 17 and Adequacy of Ballot Synopsis. Mayor Durkan specifically seeks review of 18 the portion of the Order addressing Charge B of the above-referenced recall 19 petition. A copy of this order is attached as Exhibit A.  20 July 29, 2020, Order on Motion for Reconsideration. A copy of this order is attached as Exhibit B. 21 22 // 23 // 24 // 25 // 26 // NOTICE OF APPEAL TO WASHINGTON SUPREME COURT - 1 K&L GATES, LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 370-7955 FACSIMILE: (206) 370-6169 1 DATED this 12th day of August, 2020. 2 SCHROETER GOLDMARK & BENDER 3 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 4 5 6 7 8 K&L GATES LLP 9 10 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 11 12 13 14 Attorneys for City of Seattle Mayor Jenny A. Durkan 15 16 17 18 19 20 21 22 23 24 25 26 NOTICE OF APPEAL TO WASHINGTON SUPREME COURT - 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 18 19 20 21 22 23 24 25 CERTIFICATE OF SERVICE I hereby certify that on August 12, 2020, I caused the foregoing document to be served via the Court’s e-service portal, email, and US Mail, First Class postage prepaid, on the parties 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 26 NOTICE OF APPEAL TO WASHINGTON SUPREME COURT - 3 K&L GATES, LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 370-7955 FACSIMILE: (206) 370-6169 1 DATED this 12th day of August, 2020. 2 s/ Sabrina Mitchell Sabrina Mitchell 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 NOTICE OF APPEAL TO WASHINGTON SUPREME COURT - 4 K&L GATES, LLP 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 370-7955 FACSIMILE: (206) 370-6169 EXHIBIT A 1 2 3 4 5 6 JUDGE MARY E. ROBERTS 7 8 9 10 11 12 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 13 14 Clerk’s Action Required 15 16 17 This matter came before the court upon the King County Prosecuting Attorney 18 19 (KCPA)’s petition to determine (1) the sufficiency of recall charges filed by Elliott Grace 20 Harvey, Alan L. Meekins, Jr., Courtney Scott, Leah Solomon, and Charlie Stone (the Recall 21 Petitioners), against City of Seattle Mayor Jenny Durkan, and (2) the adequacy of the ballot 22 synopsis formulated by the KCPA from the charges. 23 24 25 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 1 The charges leveled against Mayor Durkan by these five citizens arise in the context of 2 largely peaceful local protests against racism and police brutality, following the death of 3 George Floyd while being restrained by police officers in Minneapolis. 4 The court held a telephonic hearing on July 2, 2020. Present telephonically were Janine 5 6 7 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 8 Matthew Clark on behalf of Mayor Durkan. The court heard and considered argument from 9 Elliott Grace Harvey on behalf of the Recall Petitioners, and from Rebecca J. Roe on behalf of 10 Mayor Durkan. Ms. Joly and Ms. Atchison were present and available for questions, but did 11 not offer argument. 12 On June 15, 2020, the Recall Petitioners filed a statement of charges with the King 13 14 County Elections Department seeking the recall of Mayor Durkan. The Recall Petitioners 15 summarize their charges as follows: 16 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, 17 18 19 20 21 22 23 24 25 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. 1 2 3 4 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. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 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 21 22 23 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 24 25 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 1 elected officers.” In re Recall of Telford, 166 Wn.2d 148, 159-160 (2009). To quote the 2 Washington Supreme Court, 3 4 5 6 7 8 [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). 9 Charge A pertains to Mayor Durkan’s May 30, 2020 emergency curfew order, which 10 became effective upon issuance. The recall petitioners allege that the fact it was effective 11 immediately left members of the public in violation without warning, thereby threatening their 12 safety and welfare. This charge is both legally and factually insufficient. The issuance of the 13 14 emergency order was a discretionary act within Mayor Durkan’s legal authority. The Recall 15 Petitioners point to no instances of threats to the safety and welfare of members of the public. 16 Finally, nothing alleged relating to the issuance of the emergency proclamation and order 17 reflects a manifestly unreasonable decision. 18 19 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 20 SPD when such use would be particularly detrimental to public health during the COVID-19 21 22 pandemic. The Recall Petitioners further allege that Mayor Durkan knowingly allowed SPD 23 officers to continue to use chemical crowd control agents over many days without concern for 24 the health and well-being of the community, constituting misfeasance, malfeasance, and 25 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 1 violation of oath of office. 2 crowd control agents by SPD based on the early conduct before she can be said to have been 3 4 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 5 6 7 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. 8 Charges C allege that Mayor Durkan allowed SPD officers to deliberately violate the 9 law in a number of ways aimed at members of the press, and street medics. Mayor Durkan is 10 not accountable by way of recall for the actions of her subordinates without her knowledge, not 11 at her direction. In Re Recall of Morisette, 110 Wn.2d 933, 936 (1988). This charge is legally 12 insufficient. 13 14 Charge D alleges in essence that Mayor Durkan, allowed SPD officers to violate city 15 ordinances and other laws pertaining to managing crowd control more generally. 16 above, Mayor Durkan is not accountable by way of recall for the actions of her subordinates 17 without her knowledge, not at her direction. The allegations in Charge D are general in nature 18 and are not legally or factually sufficient. 19 20 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 21 22 23 24 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. 25 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 1 Charge G pertains to Mayor Durkan’s May 30, 2020 emergency order banning from the 2 downtown and Capitol Hill neighborhood weapons and items that could be used as weapons, 3 4 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 5 6 7 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 8 discretionary act within Mayor Durkan’s legal authority. 9 instances of members of the public being held to violate the order by way of ordinary 10 11 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. 12 13 14 The Elections Department sent a copy of the statement of charges to the KCPA’s Office 15 for preparation of the ballot synopsis pursuant to RCW 29A.56.120. The ballot synopsis reads 16 as follows: 17 18 19 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: 21 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: 22 (1) Issued a citywide curfew without sufficient notice for individuals to safely disperse; 20 23 24 (2) Failed to institute new policies and safety measures for the Seattle Police Department when using crowd control measures during a public health emergency; 25 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 2 (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; 3 (4) Failed to protect freedom of speech and the right to peaceful assemble; 1 4 5 6 7 8 9 10 (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: 11 12 13 14 1. Charges A, and C-G are DISMISSED as insufficient. 15 16 2. Charge B is allowed to proceed, more narrowly than alleged. 17 3. The ballot synopsis is amended to read as follows: 18 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: 19 20 21 22 23 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. 24 25 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 1 2 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. 3 4 DATED this 10th day of July, 2020. 5 See digital signature_________________ JUDGE MARY E. ROBERTS 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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==" Page 9 of 9 EXHIBIT 1 2 3 4 5 6 JUDGE MARY E. ROBERTS 7 8 9 10 11 12 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY IN RE THE MATTER OF RECALL CHARGES AGAINST CITY OF SEATTLE MAYOR JENNY DURKAN (HARVEY) 13 NO. 20-2-10455-8 SEA ORDER ON MAYOR DURKAN’S MOTION FOR RECONSIDERATION 14 15 16 This matter came before the court upon Mayor Jenny Durkan’s Motion for 17 Reconsideration of Order on Petition to Determine Sufficiency of Recall Charges and 18 19 Adequacy of Ballot Synopsis. The court requested and received a response and reply, and has now considered all written submissions of the parties in support of and in opposition to the 20 21 22 motion for reconsideration. The court has also reviewed anew the entire court record through the date designated for briefing on the motion, July 24, 2020. 23 Mayor Durkan’s motion requests reconsideration of a portion of the court’s ruling in its 24 July 10, 2020 Order on Petition to Determine Sufficiency of Recall Charges and Adequacy of 25 ORDER ON MOTION FOR RECONSIDERATION - 1 Judge Mary E. Roberts King County Superior Court Courtroom W905, King County Courthouse 516 Third Avenue Seattle, WA 98104-2381 (206) 477-1348 1 Ballot Synopsis (“Order”). 2 Prosecuting Attorney (KCPA) to determine (1) the sufficiency of recall charges filed by Elliott 3 4 The Order ruled on a petition brought by the King County Grace Harvey, Alan L. Meekins, Jr., Courtney Scott, Leah Solomon, and Charlie Stone (the Recall Petitioners), against City of Seattle Mayor Jenny Durkan, and (2) the adequacy of the 5 6 7 ballot synopsis formulated by the KCPA from the charges. The seven charges leveled against Mayor Durkan by these citizens arose in the context 8 of largely peaceful local protests against racism and police brutality, following the death of 9 George Floyd while being restrained by police officers in Minneapolis. The court in it Order 10 dismissed six of the seven charges in their entirety but ruled that a subset of one of the Recall 11 Petitioners’ charges was factually and legally sufficient, as follows: 12 13 14 15 16 17 18 19 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 SPD when such use would be particularly detrimental to public health during the COVID-19 pandemic. The Recall Petitioners further allege that Mayor Durkan knowingly allowed SPD officers to continue to use chemical crowd control agents over many days without concern for the health and well-being of the community, constituting misfeasance, malfeasance, and violation of oath of office. Any alleged failure of Mayor Durkan to prohibit use of chemical crowd control agents by SPD based on the early conduct before she can be said to have been 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 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. 20 Order, pp. 4-5. 21 22 23 24 Consistent with the narrowed charge, the court crafted the following ballot synopsis: 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: 25 ORDER ON MOTION FOR RECONSIDERATION - 2 Judge Mary E. Roberts King County Superior Court Courtroom W905, King County Courthouse 516 Third Avenue Seattle, WA 98104-2381 (206) 477-1348 1 2 3 4 5 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. Order, p. 7. 6 Mayor Durkan asserts that the court erred, and requests reconsideration pursuant to CR 7 59(a)(7) (“[t]hat there is no evidence or reasonable inference from the evidence to justify the 8 … decision, or that it is contrary to law,”) and (9) (“[t]hat substantial justice has not been 9 10 done.”). 11 Mayor Durkan argues, as she did in the initial response to the petition, that she has no 12 legal or constitutional duty to “prescribe policies and procedure for SPD.” The gravamen of 13 the court’s ruling as summarized above is more broadly the alleged failure to protect the health 14 and well-being of the community. 15 department does not vitiate the Mayor’s obligations. The critical role of the Chief of Police in commanding her 16 Mayor Durkan (and the Remand Petitioners) also submitted substantial additional 17 18 evidence on reconsideration related to the handling of protests in the city. 19 As the court already described in the Order, the court’s role in this case is limited. At 20 this stage of a recall effort, the court is to assume that the Recall Petitioners’ allegations are 21 true, and to determine whether if true, they can support a recall. RCW 29A.56.140. This 22 gatekeeping role is based on “the framers’ intent to prevent recall elections from reflecting on 23 the popularity of the political decisions made by elected officers.” In re Recall of Telford, 166 24 Wn.2d 148, 159-160 (2009). To quote the Washington Supreme Court, 25 ORDER ON MOTION FOR RECONSIDERATION - 3 Judge Mary E. Roberts King County Superior Court Courtroom W905, King County Courthouse 516 Third Avenue Seattle, WA 98104-2381 (206) 477-1348 [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. 1 2 3 4 5 6 7 In re Recall of West, 155 Wn. 2d 659, 662 (2005). Consistent with these legal principles, the court declines to weigh the evidence and make factual determinations as to what has happened 8 and what reasonably should have been done on any step of the way. The court does not opine 9 on whether Mayor Durkan should replace Chief Best, or under what circumstances the use of 10 CS gas and the like may reasonably and legally be justified. The Recall Petitioners and Mayor 11 12 Durkan have each provided the court with compelling evidence of the incredible challenges faced by each in the past weeks; application of the court’s limited authority in this proceeding 13 14 is not meant to diminish the presentations on either side of these important issues. 15 Mayor Durkan’s motion for reconsideration is DENIED. i 16 DATED this 29th day of July, 2020. 17 See digital signature_________________ JUDGE MARY E. ROBERTS 18 19 20 21 22 23 The Recall Petitioners included within their response memorandum a “cross motion for reconsideration.” That motion was not noted for hearing; it is not properly before the court for consideration. i 24 25 ORDER ON MOTION FOR RECONSIDERATION - 4 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 RECONSIDERATION Signed by: Date: Mary Roberts 7/29/2020 2:51:19 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==" Page 5 of 5