FILED
SUPREME COURT
STATE OF WASHINGTON
911712020 2:46 PM
BY SUSAN L. CARLSON
CLERK

No. 98897-8
(King County No. 78443-9-I)

SUPREME COURT OF THE STATE OF WASHINGTON
___________________________________________________
IN THE MATTER OF THE RECALL CHARGES AGAINST CITY OF
SEATTLE MAYOR, JENNY DURKAN
___________________________________________________
APPELLANT’S REPLY BRIEF AND
RESPONSE TO CROSS-APPEAL
___________________________________________________

Rebecca J. Roe, WSBA # 7560
SCHROETER GOLDMARK &
BENDER
810 Third Avenue, Suite 500
Seattle, WA 98104-1657
Telephone: (206) 622-8000
Email: roe@sgb-law.com

G. William Shaw, WSBA # 8573
Ryan J. Groshong, WSBA #44133
Matthew P. Clark, WSBA # 55570
K&L GATES LLP
925 Fourth Avenue, Suite 2900
Seattle, Washington 98104-1158
Telephone: (206) 623-7580
Email: bill.shaw@klgates.com
Email: ryan.groshong@klgates.com
Email: matt.clark@klgates.com

Attorneys for City of Seattle Mayor Jenny A. Durkan

 TABLE OF CONTENTS
Page
APPELLANT’S REPLY BRIEF ............................................................... 1 
I. 

INTRODUCTION ......................................................................... 1 

II. 

ARGUMENT ................................................................................. 2 
A. 

Petitioners fail to identify any conduct that is wrongful,
unlawful, or a violation of Mayor Durkan’s oath of
office. ................................................................................. 2 
1. 

Petitioners fail to establish any violation of
Mayor Durkan’s discretionary authority
pursuant to Seattle City Charter, Article V,
Section 2................................................................. 2 

2. 

Petitioners fail to show any violations of the
state and federal constitutions. ............................... 7 

3. 

Petitioners fail to establish any violation of a
legal duty based on the remaining state and
local laws cited in the Petition. .............................. 9 

B. 

Petitioners do not dispute that the Consent Decree
prevented Mayor Durkan from unilaterally
implementing new SPD policies and procedures............... 9 

C. 

Petitioners fail to set forth any facts from which this
Court could infer that Mayor Durkan violated any law,
much less that she intended to do so. ............................... 10 

D. 

Petitioners fail to identify any action or inaction
sufficient to justify recall. ................................................ 13 

RESPONSE TO CROSS-APPELLANT’S BRIEF ................................. 18 
III. 

INTRODUCTION ....................................................................... 18 

IV. 

STATEMENT OF THE CASE .................................................... 18 

V. 

ARGUMENT ............................................................................... 20 

VI. 

A. 

The trial court appropriately dismissed Charge C. .......... 20 

B. 

Charge E fails for the same reasons as Charge B. ........... 22 

CONCLUSION ............................................................................ 23i

 TABLE OF AUTHORITIES
Page(s)
Cases
In re Anderson,
131 Wn.2d 92, 929 P.2d 410 (1997) ......................................................4
Black Lives Matter Seattle-King County v. City of Seattle,
2020 WL 3128299 (W.D. Wash., June 12, 2020)......................5, 17, 19
Chandler v. Otto,
103 Wn.2d 268, 693 P.2d 71 (1984) ......................................................8
Delaware v. Prouse,
440 U.S. 648 (1979) ...............................................................................8
In re Heiberg,
171 Wn.2d 771, 257 P.3d 565 (2011) ..............................................6, 20
Recall of Kelley,
185 Wn.2d 158, 369 P.3d 494 (2019) ............................................14, 17
In re Matter of Recall of Morrisette,
110 Wn.2d 933, 756 P.2d 1318 (1988) ......................................6, 19, 20
Matter of McNeil,
113 Wn.2d 302, 778 P.2d 524 (1989) ....................................................8
Matter of Recall Charges Against Seattle School District
Board of Directors,
162 Wn.2d 501, 173 P.3d 265 (2007) ..................................................13
In re Recall of Ackerson,
143 Wn.2d 366, 20 P.3d 930 (2001) ......................................................2
In re Recall of Bolt,
177 Wn.2d 168, 298 P.3d 710 (2013) ................................................3, 4
In re Recall of Davis,
164 Wn.2d 361, 193 P.2d 98 (2008) ....................................................12
Matter of Recall of Inslee,
194 Wn.2d 563, 451 P.3d 305 (2019) ..............................................3, 10
In re Recall of Kast,
144 Wn.2d 807, 31 P.3d 677 (2001) ....................................................11
ii

 In re Recall of Lindquist,
172 Wn.2d 120, 258 P.3d 9 (2011) ......................................................13
In re Recall of Pearsall-Stipek,
141 Wn.2d 756, 10 P.3d 1034 (2000) ..................................................12
In re Recall of Pepper,
189 Wn.2d 546, 403 P.3d 839 (2017) ..................................................11
Matter of Recall of Riddle,
189 Wn.2d 565, 403 P.3d 849 (2017) ..................................................13
In re Recall of Sandhaus,
134 Wn.2d 662, 953 P.2d 82 (1998) ..............................................12, 14
In re Recall of Telford,
166 Wn.2d 148, 206 P.3d 1248 (2009) ..............................................5, 6
Snedigar v. Hoddersen,
114 Wn.2d 153, 786 P.2d 781 (1990) ....................................................7
United States of America v. City of Seattle,
No. 2:12-cv-01282-JLR, Dkt. 630 (W.D. Wash., July
25, 2020) ................................................................................................9
Statutes and Court Rules
KCLCR 59 .................................................................................................19
RCW 29A.56.110.........................................................................................5
RCW 29A.56.140.......................................................................................22
RCW 35.18.200 ...........................................................................................9
SMC 10.02.010A .........................................................................................9

iii

 APPELLANT’S REPLY BRIEF
I.
As

their

extensive

INTRODUCTION
factual

allegations

reflect,

Petitioners

fundamentally disagree with Mayor Durkan’s management of chaotic and
sometimes violent events that occurred amidst a pandemic.

Yet

disagreement with Mayor Durkan’s discretionary decisions does not
provide a legally and factually sufficient basis for recall.
Specifically, Petitioners fail to (1) identify any conduct that is
wrongful, unlawful, or a violation of Mayor Durkan’s oath of office, (2)
explain how Mayor Durkan may be subject to recall for not implementing
policy initiatives unilaterally in violation of a federal court order, (3)
provide any basis for this Court to infer that Mayor Durkan intended to
violate the law, and (4) identify any act Mayor Durkan carried out, or
declined to carry out, that would subject her to recall.
Despite their troubling proclamation that absent recall, their only
recourse would be “force,”1 Petitioners’ own filings rely in significant part
on a federal court action in which individuals and advocacy groups
successfully sought relief based on alleged harms committed by the Seattle
Police Department (“SPD”).

Outside of the courts, individuals may

pursue relief through SPD’s oversight entities or otherwise seek to

1

Petitioners argue that if not permitted to proceed with a recall election,
individuals who are dissatisfied with the actions of the police will have no
recourse other than “resorting to force themselves.” Response at 1. In
today’s increasingly polarized political climate, such rhetoric is
irresponsible.

1

 effectuate their preferred policies through the democratic process. There
are forums in which Petitioners may continue to express their policy
disagreements with Mayor Durkan. Washington law simply does not
permit them to use such disagreements as the basis for a recall election.
Mayor Durkan respectfully requests that this Court reverse the trial
court and dismiss the Petition in its entirety.
II.
A.

ARGUMENT

Petitioners fail to identify any conduct that is wrongful,
unlawful, or a violation of Mayor Durkan’s oath of office.
A petition states legally sufficient charges only if it identifies the

“standard, law, or rule that would make the officer’s conduct wrongful,
improper, or unlawful.” In re Recall of Ackerson, 143 Wn.2d 366, 377, 20
P.3d 930 (2001). In their Response Brief (the “Response”), Petitioners fail
to allege any violation of the various constitutional and statutory
provisions they rely upon.
1.

Petitioners fail to establish any violation of Mayor
Durkan’s discretionary authority pursuant to Seattle City
Charter, Article V, Section 2.

Petitioners allege that to avoid being subject to a recall election,
Mayor Durkan should have:


“taken charge of the police department”;



“dismissed the Chief of Police”;



“issued unambiguous orders to the Chief to ensure . . .
[compliance] with the federal TRO”;



ordered “mediation between the parties” and/or

2

 

done “something entirely unimagined herein.”

Response at 21-22.2
Putting aside whether these suggestions would have reflected
sound policy decisions, at the very least, none is sufficient to form the
basis of a valid recall petition. Article V, Sec. 2 of the Seattle City Charter
explicitly confirms Mayor Durkan’s discretionary authority in emergency
situations: “[The Mayor] may, in any emergency, of which the Mayor
shall be the judge, assume command of the whole or any part of the police
force of the City.” Here, it is undisputed that Mayor Durkan did not
exercise her discretionary authority to assume command of SPD.
As Petitioners concede, an elected official cannot be recalled for
appropriately exercising the discretion granted to her by law. Response at
37 (citing Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984)).
Rather, the exercise of discretionary authority cannot be grounds for recall
unless the exercise is manifestly unreasonable. In re Recall of Bolt, 177
Wn.2d 168, 174, 298 P.3d 710 (2013). This Court has consistently 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, 451 P.3d 305 (2019) (governor’s failure to declare a state of
emergency to address homelessness was an appropriate exercise of
discretion and therefore not legally sufficient); Bolt, 177 Wn.2d at 175

2

Notably missing from this list is any claim that Mayor Durkan should
have “instituted new policies and safety measures for [SPD] when using
crowd control measures,” as Charge B originally claimed. CP 15.
3

 (noting that “[s]upervising an employee inherently involves a substantial
amount of discretion” and holding that mayor’s termination of employee
without following personnel policy was insufficient for recall).
Any suggestion that it was manifestly unreasonable for Mayor
Durkan not to “dismiss” Chief Best or otherwise usurp her authority by
assuming command of the police force is meritless.

Chief Best is a

nationally recognized law enforcement leader who is committed to
constitutional policing, police reform, and community safety.

Mayor

Durkan reasonably trusted Chief Best to lead SPD through a period of
unprecedented difficulty.
In addition, the record contradicts Petitioners’ suggestion that
Mayor Durkan and Chief Best did not mandate compliance with Judge
Jones’ TRO. A recall petition is not factually sufficient where there is no
factual basis for the charge. See In re Anderson, 131 Wn.2d 92, 95, 929
P.2d 410 (1997). There is no basis for this Court to conclude that City and
SPD leadership did not understand, convey, and intend compliance with a
federal court order. Indeed, Mayor Durkan’s July 1, 2020, Executive
Order 2020-08 unambiguously provides that “[a]ny [SPD] use of force
shall be consistent with SPD policy and the terms of the Preliminary
Injunction issued in Black Lives Matter v. City of Seattle, No. 20-CV887.” CP 292, 294.3

3

The hyperlink to Mayor Durkan’s July 1, 2020, Executive Order appears
in footnote one on CP 292. For the Court’s reference, the link is provided
again here: http://clerk.seattle.gov/~CFS/CF_321741.pdf.
4

 Moreover, Petitioners’ demands for mediation or “something
entirely unimagined” lay bare the vague nature of their claims. Petitioners
fail to identify who the “parties” to such a mediation would be, among
other critical missing details, and recall surely cannot be based on failure
to perform “something entirely unimagined.”

See RCW 29A.56.110

(factual sufficiency requires “a detailed description including the
approximate date, location, and nature of each act complained of); In re
Recall of Telford, 166 Wn.2d 148, 154, 206 P.3d 1248 (2009) (Legal
sufficiency requires that a charge define “substantial conduct clearly
amounting to misfeasance, malfeasance, or violation of the oath of
office.”).
In addition to their policy suggestions, Petitioners broadly contend
that Mayor Durkan (1) violated her duty to “maintain peace and order” by
not stopping SPD from “violat[ing] the law and the rights of Seattle
citizens” and (2) violated her oath of office to “faithfully conduct” herself
as mayor by not “protecting her electorate.” Response at 30-31. After
conceding that Mayor Durkan cannot be subject to recall for not
implementing an outright ban on chemical irritants as sought in their
Petition, Petitioners now claim that Seattle’s mayor may be subject to
recall whenever there are allegations of excessive force against police
officers pursuant to her duty to “maintain peace and order.” Petitioners’
claim fails for several reasons. First, Charge B refers to Mayor Durkan’s
purported failure to institute new policies and safety measures relating to

5

 “the use of chemical agents,” not allegations of misconduct against police
officers generally. CP 303-04.
Second, if the Court were to adopt Petitioners’ interpretation,
Seattle’s mayor could be subject to perpetual recall, regardless of the
officeholder. In a city of nearly a million people with over 1,000 sworn
officers, the mayor cannot reasonably have a legal duty for purposes of the
recall statute to personally prevent any allegation of excessive force
against a police officer, nor could she, regrettably, reasonably prevent all
instances of violence directed towards police officers or other residents of
Seattle. Public safety in any major city is a complex apparatus, involving,
at minimum, public officials, the police department, the judiciary, and
oversight entities. There is no basis for a violation of a provision as
general as the duty to “maintain peace and order” to be the basis for a
recall petition. See Telford, 166 Wn.2d at 154.
Third, this Court has previously established that 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, 756 P.2d 1318 (1988); see also In re Heiberg, 171
Wn.2d 771, 780, 257 P.3d 565 (2011) (holding that for recall purposes, the
mayor was not responsible for the clerk’s destruction of a document
simply by virtue of the mayor’s supervisory capacity over the clerk).
Where, as here, Petitioners set forth general allegations of misconduct

6

 without any evidence that Mayor Durkan directed or had prior knowledge
of such misconduct, there is no basis for a recall petition.
2.

Petitioners fail to show any violations of the state and
federal constitutions.4

As was the case in Petitioners’ prior briefing, the Response fails to
provide any specific unconstitutional act or analysis of how Mayor Durkan
purportedly violated any of the constitutional provisions Petitioners
identify.5 Mayor Durkan does not highlight Petitioners’ failure to include
any legal analysis in their briefing out of a “dismissive attitude,” as
Petitioners claim. Response at 33. Rather, without any specification of
Petitioners’ legal theory, Mayor Durkan cannot respond to their
allegations. Indeed, the Fourth Amendment alone requires the following
complex analysis:
The essential purpose of the proscriptions in the Fourth
Amendment is to impose a standard of reasonableness upon the
4

Petitioners devote a significant portion of their constitutional argument to
an unsworn first person account (presumably an unidentified petitioner) of
alleged events the author viewed on social media in early September.
Response at 31-32. While the probative value of these allegations to the
instant matter is unclear, in addition to various evidentiary issues, these
allegations were not presented to the trial court and should not be
considered by this Court. See Snedigar v. Hoddersen, 114 Wn.2d 153,
164, 786 P.2d 781 (1990) (“[A] record on appeal may not be
supplemented by material which has not been included in the trial court
record.”).
5

For the first time in the pendency of this case, Petitioners allege that
Mayor Durkan violated the 14th Amendment of the U.S. Constitution and
the 7th Amendment of the Washington Constitution. Response at 33. The
Petition and voluminous supplemental materials Petitioners submitted
therewith and thereafter did not reference either of these provisions; on
this basis alone, this Court should reject Petitioners’ claims under the
Fourteenth Amendment of the U.S. Constitution and the Seventh
Amendment of the Washington Constitution.
7

 exercise of discretion by government officials, including law
enforcement agents, in order to safeguard the privacy and security
of individuals against arbitrary invasions. Thus, the permissibility
of a particular law enforcement practice is judged by balancing its
intrusion on the individual’s Fourth Amendment interests against
its promotion of legitimate governmental interests. Implemented
in this manner, the reasonableness standard usually requires, at a
minimum, that the facts upon which an intrusion is based be
capable of measurement against an objective standard, whether this
be probable cause or a less stringent test. In those situations in
which the balance of interests precludes insistence upon some
quantum of individualized suspicion, other safeguards are
generally relied upon to assure that the individual’s reasonable
expectation of privacy is not subject to the discretion of the official
in the field.”
Delaware v. Prouse, 440 U.S. 648, 654-55 (1979) (internal citations
omitted).
Petitioners fail to provide even the most basic legal analysis of (1)
how their allegations support a violation of the Fourth Amendment or any
of the other constitutional provisions they rely upon and (2) how such
allegations are imputable to Mayor Durkan.

Petitioners thus fail to

establish any violation of a legal duty based on the identified
constitutional provisions. See Matter of McNeil, 113 Wn.2d 302, 305, 778
P.2d 524 (1989) (holding that recall charge was legally insufficient where
petitioners failed to “explain how due process guaranties enter into this
case”).
//
//
//

8

 3.

Petitioners fail to establish any violation of a legal duty
based on the remaining state and local laws cited in the
Petition.

The Petition alleged violations of RCW 35.18.200 and SMC
10.02.010A. The Response offers no argument or authority in support of
such claims. Petitioners accordingly do not contest that the Petition does
not allege any violation of RCW 35.18.200 or SMC 10.02.010A.
B.

Petitioners do not dispute that the Consent Decree prevented
Mayor Durkan from unilaterally implementing new SPD
policies and procedures.
Contrary to the trial court’s holding that Mayor Durkan’s failure to

“step in and stop” the use of chemical crowd control measures was a
sufficient basis for recall, Judge Robart held in the Consent Decree
litigation that policies relating to the use of crowd control tools must be
submitted to the Federal Monitor, the DOJ, and Judge Robart prior to
implementation. CP 650; see also Order, United States of America v. City
of Seattle, No. 2:12-cv-01282-JLR, Dkt. 630 at *6-8 (W.D. Wash., July
25, 2020). Thus, a federal court order precluded Mayor Durkan from
unilaterally implementing changes to SPD’s court-approved use of force
and crowd management policies.
In their Response, Petitioners cite to a decision Judge Robart
issued two days prior to the above-referenced decision under a different
procedural posture, relegating Judge Robart’s subsequent decision to a
footnote. Response at 23-24. Petitioners do not otherwise dispute that the
Consent Decree precluded Mayor Durkan from unilaterally implementing
changes to SPD’s court-approved use of force and crowd management
9

 policies. Mayor Durkan cannot have a legal duty to implement policy
unilaterally in violation of a federal court order. On this basis alone, this
Court should dismiss the remaining charge.
C.

Petitioners fail to set forth any facts from which this Court
could infer that Mayor Durkan violated any law, much less
that she intended to do so.
Petitioners incorrectly claim that the requirement that a petitioner

demonstrate facts indicating a public official’s intent to violate the law
“only applies to recall charges that are based on violation of a statute.”
Response at 36. Just last year, this Court rejected a petition seeking to
recall Governor Inslee for residing outside Olympia in violation of the
Washington State Constitution, holding that the petition did not
“specifically identify conduct or behavior indicating Governor Inslee
intended to reside outside Olympia.” Inslee, 194 Wn.2d at 571. Thus, the
intent requirement applies equally to the allegations here, where Charge B

10

 alleges that Mayor Durkan “violated her duties under state and local laws
and her oath to uphold the federal and state constitutions.”6
Here, there is no evidence that Mayor Durkan violated any law, let
alone that she intended to do so. As evidence of Mayor Durkan’s intent,
Petitioners broadly claim that Mayor Durkan was asked to “intervene in
the unlawful conduct of the police,” but “made an informed choice to let
the police continue in their crimes.” Response at 37. As discussed in
detail below, Petitioners conflate Mayor Durkan’s discretionary decision
not to adopt the policies they apparently prefer with an intent to violate the
law. Indeed, the record clearly reflects Mayor Durkan’s significant efforts
to balance the rights of all parties involved in recent events, including
peaceful protestors, by requesting review of SPD crowd management
policies from the City’s accountability partners, promising budgetary
support for OPA and OIG’s review of recent events, and publicly stating
6

Oddly, Petitioners appear to cite In re Recall of Kast, 144 Wn.2d 807, 31
P.3d 677 (2001) and In re Recall of Pepper, 189 Wn.2d 546, 403 P.3d 839
(2017) in support of the proposition that a public official may be subject to
recall even without technically violating the law. Even if true, the point is
inapposite, as Petitioners have alleged throughout this process that Mayor
Durkan violated a range of laws. See CP 12-13. If Petitioners no longer
allege that Mayor Durkan violated any laws, the Petition should plainly be
dismissed. To the extent Petitioners suggest that they may show a
violation of Mayor Durkan’s oath of office without having to show
evidence of unlawful intent, such reasoning is, at best, circular, as Mayor
Durkan’s oath of office is essentially an oath to uphold the law. See CP 30
(“I, Jenny A. Durkan, swear that I possess all the qualifications prescribed
in the Seattle City Charter and the Seattle Municipal Code for the position
of Mayor; that I will support the Constitution of the United States, the
Constitution of the State of Washington, and the Charter and Ordinances
of the City of Seattle; and that I will faithfully conduct myself as Mayor
for the City of Seattle.”).

11

 her support for Chief Best’s decision to prohibit the use of CS gas except
in life safety circumstances.
Moreover, the cases upon which Petitioners rely provide no
support for this Court inferring intent to violate the law here. Instead, they
only reinforce that this Court will not lightly infer unlawful intent in the
context of a recall petition.
For example, in the primary case upon which Petitioners rely, In re
Recall of Davis, 164 Wn.2d 361, 370-71, 193 P.2d 98 (2008), this Court
held that it could infer that a port commissioner understood the legal
necessity of voting in a public session before obligating the port to a
monetary agreement, but nonetheless intentionally violated the law by
entering into an agreement without a public vote to pay more than
$230,000 to an outgoing employee. Here, there is no evidence of any
“legal necessity” that Mayor Durkan disregarded, let alone an action or
failure to act in violation of such a legal necessity. See also, In re Recall
of Pearsall-Stipek, 141 Wn.2d 756, 779, 10 P.3d 1034 (2000) (holding
there was sufficient evidence to infer official’s intent to violate the law
where she was administered an oath on page one of a trial transcript and
made an untruthful statement on page two); In re Recall of Sandhaus, 134
Wn.2d 662, 671-72, 953 P.2d 82 (1998) (finding that official’s intent to
improperly exceed budget appropriations could “probably” be found in
evidence showing that official knew he was overspending and did so even

12

 after the Board of County Commissioners and auditor warned him to stop,
but nonetheless finding charge legally insufficient).
D.

Petitioners fail to identify any action or inaction sufficient to
justify recall.
Petitioners conflate Mayor Durkan declining to adopt their

preferred policy proposals with a failure to act in violation of a specific
legal duty that would justify recall. Mayor Durkan does not dispute that,
as Petitioners argue in their Response, where there is a duty to act, a
failure to do so may be a basis for recall. As this Court recognized in
Matter of Recall of Riddle, 189 Wn.2d 565, 570, 403 P.3d 849 (2017), a
charge is factually sufficient where it alleges a “failure to act which
without justification would constitute a prima facie showing of
misfeasance, malfeasance, or a violation of the oath of office.”

For

instance in Riddle, the petition was factually sufficient where a court clerk
knowingly failed to perform her statutorily mandated duty to enter child
support and temporary restraining orders for up to eight months. Id. at
575.
Where, as here, the allegations do not implicate a specific duty to
act, the failure to act cannot be a factually sufficient basis for recall. See
In re Recall of Lindquist, 172 Wn.2d 120, 134, 258 P.3d 9 (2011) (holding
that charge of failure to investigate was legally and factually insufficient,
as the prosecuting attorney does not perform investigations); Matter of
Recall Charges Against Seattle School District Board of Directors, 162
Wn.2d 501, 511, 173 P.3d 265 (2007) (charge was legally insufficient

13

 where directors had no legal duty to hold the hearing petitioners claimed
they failed to timely hold); see also Sandhaus, 134 Wn.2d at 670
(“Balancing priorities in a public office with limited funds and personnel
is a matter within the discretion of the office supervisor, and whether [a
public official] is doing a good job of managing [the] office is a
quintessential political issue which is properly brought before the voters at
the next election.”).
Here, Petitioners fail to allege that any purported failure of Mayor
Durkan to act was in violation of a specified legal duty.7
Initially, Petitioners misconstrue Mayor Durkan’s recitation of the
underlying facts, claiming she depicts protestors as being “typically the
aggressors.” Response at 17. To the contrary, Mayor Durkan’s briefing
throughout this recall process has emphasized the peaceful nature of most
of the protestors:
Seattle residents powerfully took to the streets to mourn
Mr. Floyd, rightfully proclaim that Black lives matter, and
demand an end to systemic racism. The vast majority of
protestors exercised their First Amendment rights in a
peaceful manner. Indeed, on June 12, 2020, alone, more
than 60,000 people peacefully marched in an event
organized by Black Lives Matter Seattle-King County. In
certain instances, however, individuals disrupted otherwise
peaceful protests by engaging in acts of violence against

7

Petitioners’ attempt to distinguish Recall of Kelley, 185 Wn.2d 158, 369
P.3d 494 (2019) on this point is unpersuasive. Petitioners’ vague
reference to Mayor Durkan’s purported “inaction in the face of her
assigned duties under the City Charter” does not satisfy Kelley’s
requirement that a petition state “specific facts” showing how the public
official deficiently performed her duties. Id. at 169. For the reasons
discussed above, Petitioners fail to identify such specific facts here.
14

 community members and police officers, and causing
widespread property damage in Seattle’s downtown core.
CP 122-123.
Petitioners, however, paint a starkly one-sided version of recent
events, in which police officers were the --sole aggressors, and civil unrest
posed no safety risks to peaceful protestors, bystanders, or surrounding
businesses. Some of the very materials Petitioners rely upon reflect a far
more complex and chaotic scene, including the Seattle Times’ description
of events outside the East Precinct on June 6, 2020:
The protest had remained peaceful throughout the
afternoon and evening, with police initially remaining far
back from the crowd in the area around the Seattle Police
Department’s East Precinct.
Tensions rose throughout the night as some demonstrators
advanced past a line of barricades that police had installed,
ignoring repeated admonitions by a police commander,
whose warnings on a loudspeaker drew boos. By the time
of the shooting, the crowd had torn down the barricades,
throwing a line of metal barriers up the street to create a
new perimeter closer to the precinct.
‘Many of you are proclaiming to be peaceful, and yet you
continue to advance well beyond the barrier that we set up
so everybody could stay safe,’ the SPD commander at the
scene warned at around 10:20 pm as the crowd inched
closer to the line of police in riot gear.
Throughout the night, demonstrators shouted back that it
was the police who had stoked conflicts, as some demanded
the authorities clear the way for a march. “Whose streets?
Our streets!” they shouted. While some organizers with
bullhorns urged the crowd to back up, others kept pushing
toward the line of officers, drawing further warnings.
CP 12, n.40.

15

 Likewise, on page 7 of the Response, Petitioners claim that at 9:10
p.m. on June 1, 2020, police deployed blast balls and chemical irritants
“on a group of peaceful protestors.” The very Clerk’s Papers (66-69)
Petitioners rely on, however, again paint a more complicated and chaotic
scene, including the following entries:


3:53 pm: Officer struck by rock/unknown injury



4:46 pm: Male in orange jersey picking up rocks at
516 James Street



5:05 pm: Man attempting to break into a medic van



5:40 pm: Crowd now approximately 7000, crowd
talking about marching to East Precinct



6:34 pm: Sneaker City just looted



9:04:16 pm: they are attempting to push through
barricade



9:04:28 pm: we need more units they are pushing
hard



9:04:37 pm: need support 11/pine



9:06 pm: Group pushed through fence line, activate
cameras, threw 1 bottle



9:22 pm: Taking bottles, rocks & pyro



9:29 pm: Car tried to hit an officer



9:31 pm: Rolling dumpsters down the hill in front
of Hugo House at 11 ave



9:34 pm: Individuals throwing rocks & bottles
pushing north

16

 

9:48 pm: Group at Pine and Boren confrontational,
throwing things, jumping on things



9:50:58 pm: Assault rifle @ the iHop parking lot in
grey car



9:52:30 pm: 1 injured officer being treated @ East
Precinct

Moreover, Petitioners’ “matrix” (Response at 25-29) does not
provide a basis for recall. Of the 13 “requests,” seven refer primarily to
requests to ban CS gas and other chemical irritants, which Petitioners have
already conceded Mayor Durkan had no duty to effectuate. Three refer to
non-specified reforms of SPD tactics (i.e., a coalition of tech leaders
demanding implementation of “CPC police reforms”). The remainder
provide recitations of facts without discussion of any particular policies.8
The legality and propriety of law enforcement and protestor
actions will continue to be reviewed by the appropriate entities, likely for
years to come. Moreover, in litigation, public discourse, and in the halls
of government, debates will continue regarding whether, as Petitioners
believe, the police response went too far, or whether, as others believe, it
did not go far enough. At the very least, however, the record is clear that
8

Notably, Judge Jones also declined to adopt an outright ban on chemical
irritants. Instead, his order did not “preclude 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.” Black
Lives Matter Seattle-King County, 2020 WL 3128299, at *5 (W.D. Wash.,
June 12, 2020). Judge Jones further permitted Chief Best to authorize CS
gas in life-safety situations. Id. No federal court nationwide has ordered
an outright ban on chemical irritants relating to the recent demonstrations.
See Appellant’s Brief at 30-31 (citing cases).
17

 these were difficult, unprecedented circumstances, requiring City
leadership to make complex policy decisions in real time based on rapidly
unfolding public safety risks in city streets. Petitioners have not identified
and cannot identify an action or failure to act from Mayor Durkan that
violated a particular legal duty.
RESPONSE TO CROSS-APPELLANT’S BRIEF
III.

INTRODUCTION

The trial court appropriately dismissed Charges C and E of the
Petition. This Court should affirm the dismissal of both charges. Charge
C is insufficient because Mayor Durkan cannot be subject to recall for
purported actions of her subordinates without her knowledge, direction.
Moreover, even accepting Petitioners’ factual allegations as true, there is
no evidence that Mayor Durkan intended any of the allegations described.
Charge E, as the trial court held, is duplicative of Charge B and fails for
the same reasons discussed above.
IV.

STATEMENT OF THE CASE9

Charge C alleges:
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 U.S. Const.,
Amend. 4, Washington Constitution, Art. 1, Sec. 3
and 5, 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
9

To avoid duplication, Mayor Durkan incorporates by reference the
Statement of the Case provided in her Opening Brief.
18

 attempting to treat the injured, destroyed medical
supplies, and deliberately did not use appropriate
de-escalation techniques.
CP 6. Charge E alleges:
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
10.020.010A, and hear oath to uphold U.S. Const.,
Amends. 1 and 4, Washington Constitution, Art. 1,
Sec. 3-5, when she wrongfully subjected bystanders
to chemical weapons and crowd control measures.
Id.
On July 10, 2020, the trial court dismissed both charges. CP 301.
With regard to Charge C, the trial court held that “Mayor Durkan is not
accountable by way of recall for the actions of her subordinates without
her knowledge, not at her direction.” Id. (citing Morrisette, 110 Wn.2d at
936). Charge E, the trial court further held, was duplicative of Charge B.
On July 21, 2020, Petitioners purported to file a Cross-Motion for
Reconsideration asking the trial court to re-consider its dismissal of
Charges C and E. CP 596, 621. The trial court did not request that Mayor
Durkan respond. CP 640; see KCLCR 59(b) (stating that a party shall not
respond to a motion for reconsideration unless requested to do so by the
court). On July 29, 2020, the trial court stated that Petitioners’ crossmotion was not noted for hearing and therefore was not properly before
the court for consideration. CP 793.
On August 12, 2020, Petitioners filed a motion for an expedited
briefing schedule in this Court, emphasizing the limited trial court record:

19

 “[t]he record can be designated as only briefing, if required, and exhibits,
and no transcripts need be generated.” Emergency Motion at 3. Three
days after this Court imposed an expedited briefing schedule, however,
Petitioners filed a Motion to Supplement the Record with New Evidence,
seeking to supplement the record primarily with additional declarations
filed in Black Lives Matter Seattle-King County v. City of Seattle. On
August 28, 2020, this Court denied Petitioners’ Motion to Supplement.
Despite this denial, in their briefing, Petitioners include nearly 20 news
articles, social media posts, and YouTube videos as factual support for
their claims, none of which are part of the trial court record. Response at
n. 2, 6 (two previously uncited YouTube videos), 12 (three previously
uncited news articles), 13 (two previously uncited news articles), 14, 15,
31, 37, 58, 59, 74, 76, 81.
V.
A.

ARGUMENT

The trial court appropriately dismissed Charge C.
Petitioners fail to identify any basis for this Court to impute

alleged actions of any individual police officers to Mayor Durkan.
Washington law is clear that an official cannot be recalled for an act of a
subordinate where the official did not direct or have knowledge of the act.
For example, in Morrisette, 110 Wn.2d at 936, petitioners sought to recall
a sheriff in part based on the actions of one of his deputies. The Court,
however, held that the allegations were insufficient, stating:
[A]ppellants do not allege that Sherriff Morrisette knew of
these incidents or that he directed the deputy’s actions.
Appellants contend Sherriff Morrisette is legally
20

 responsible for the actions of his subordinates. While this
may be true as a principle of tort law, appellants cite no
authority for the proposition that a public official may be
recalled for the act of subordinates done without the
official’s knowledge or direction.
See also In re Heiberg, 171 Wn.2d 771, 780, 257 P.3d 565 (2011)
(holding that for recall purposes, mayor was not responsible for the clerk’s
destruction of a document simply by virtue of the mayor’s supervisory
capacity over the clerk).
Here, Petitioners allege that police officers violated the Seattle
Municipal Code and SPD policies in their interactions with medics and
media members, as well as a general failure to de-escalate.

Even

accepting that individual officers violated Seattle Municipal Code or SPD
policies, Petitioners fail to establish that Mayor Durkan had prior
knowledge of, directed, or intended any of the allegations of misconduct
described in their briefing. Indeed, elsewhere in their briefing, Petitioners
criticize Mayor Durkan for not assuming control of SPD. Mayor Durkan
has consistently stated that any use of force should be consistent with law
and SPD policies. See CP 462 (“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 hands-on
force or pepper spray or tear gas should only be done as circumstances
require.”).

21

 There is simply no basis in the record for this Court to conclude
that Mayor Durkan directed or intended for any individual officer to
engage in any
- misconduct, including violating the Seattle Municipal Code
or SPD policies. See Mayor Durkan’s Opening Brief at Section IV(B)(2).
B.

Charge E fails for the same reasons as Charge B.
As the trial court acknowledged, Charge E is duplicative of Charge

B. Charge E therefore suffers from the same deficiencies identified herein
and in Mayor Durkan’s Opening Brief with regard to Charge B.
Moreover, Petitioners’ suggestion that this Court should “expand [Charge
B] with language from the incorrectly-dismissed Charge E” is contrary to
law. Response at 50. Pursuant to RCW 29A.56.140, “[a]ny decision
regarding the ballot synopsis by the superior court is final.”
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22

 VI.

CONCLUSION

For the foregoing reasons, Mayor Durkan respectfully requests that
this Court (1) deny Petitioners’ cross-appeal and (2) dismiss the Petition.
DATED this 17th day of September, 2020.
SCHROETER GOLDMARK &
BENDER

K&L GATES LLP

By: /s/ Rebecca J. Roe
Rebecca J. Roe, WSBA # 7560
810 Third Avenue, Suite 500
Seattle, WA 98104-1657
Telephone: (206) 622-8000
Email: roe@sgb-law.com

By: /s/ G. William Shaw
G. William Shaw, WSBA # 8573
Ryan J. Groshong, WSBA #44133
Matthew P. Clark, WSBA # 55570
925 Fourth Avenue, Suite 2900
Seattle, Washington 98104-1158
Telephone: (206) 623-7580
Email: bill.shaw@klgates.com
Email: ryan.groshong@klgates.com
Email: matt.clark@klgates.com

Attorneys for City of Seattle Mayor Jenny A. Durkan

23

 CERTIFICATE OF SERVICE
I, Sabrina Mitchell, declare under penalty of perjury of the laws of
the State of Washington that on this 17th day of September, 2020, I caused
the foregoing document to be filed with the Clerk of the Supreme Court
and served on petitioners/respondents, via email and U.S. Mail, First Class
postage prepaid, addressed as follows:
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

24

 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 17th day of September, 2020.

/s/Sabrina Mitchell
Sabrina Mitchell
Sr. Practice Assistant

25

 K&L GATES LLP
September 17, 2020 - 2:46 PM
Transmittal Information
Filed with Court:
Appellate Court Case Number:
Appellate Court Case Title:

Supreme Court
98897-8
In Re the Matter of the Recall Charges Against City of Seattle Mayor, Jenny
Durkan

The following documents have been uploaded:

• 988978_Other_20200917144407SC087899_7343.pdf
This File Contains:
Other - Reply and Response Brief
The Original File Name was Reply and Response Brief.pdf
A copy of the uploaded files will be sent to:

• charliehorsepower26@gmail.com
• courtneykscott@me.com
• elliottgraceharvey@gmail.com
• janine.joly@kingcounty.gov
• jennifer.atchison@kingcounty.gov
• matt.clark@klgates.com
• nullagent@gmail.com
• paoappellateunitmail@kingcounty.gov
• roe@sgb-law.com
• ryan.groshong@klgates.com
• solomon.lm@gmail.com
Comments:
Sender Name: G William Shaw - Email: bill.shaw@klgates.com
Address:
925 4TH AVE STE 2900
SEATTLE, WA, 98104-1158
Phone: 206-623-7580
Note: The Filing Id is 20200917144407SC087899