1 FILED THE HONORABLE JIM ROGERS 2020 SEP 18 04:11 PM KING COUNTY SUPERIOR COURT CLERK E-FILED CASE #: 20-2-13314-1 SEA 2 3 4 5 6 7 8 9 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING IN RE THE MATTER OF RECALL CHARGES AGAINST CITY OF SEATTLE COUNCILMEMBER KSHAMA SAWANT (SAWANT) 10 No. 20-2-13314-1 SEA COUNCILMEMBER SAWANT’S PROPOSED MODIFICATIONS TO BALLOT SYNOPSIS 11 12 INTRODUCTION 13 On September 16, 2020, the Honorable Judge Jim Rogers issued a decision on the 14 sufficiency of the recall petition charges filed against Councilmember Kshama Sawant by Mr. 15 Ernest Lou. Order on Sufficiency of Recall Petition (Order), Dkt. 19. Prior to making its ruling, 16 the Court reviewed the pleadings filed by Mr. Lou, Kshama Sawant, and the King County 17 Prosecutor’s Office, and heard argument. Of the six charges initially listed in Mr. Lou’s recall 18 petition, the Court found that four were legally and factually sufficient to appear on a ballot in 19 recall proceedings against Councilmember Sawant. 20 Pursuant to RCW 29A.56.130(1)(b), the Prosecutor’s Office formulated a ballot synopsis 21 based on the statement of charges filed against Councilmember Sawant. This ballot synopsis was 22 filed with the Court on September 1, 2020, prior to briefing or oral argument before the Court by 23 either Mr. Lou or Kshama Sawant, and preceding the Court’s determination of the legal and 24 MODIFICATIONS TO BALLOT SYNOPSIS – Page 1 Case No. 20-2-13314-1 SEA 6550-6550-di18kw011y 1 factual sufficiency of the charges included in the initial draft of the ballot synopsis. Petition to 2 Determine Sufficiency of Recall Charges and Adequacy of Ballot Synopsis (Ballot Synopsis), 3 Dkt. 1. 4 The Court granted Councilmember Sawant until the end of the day on Friday, September 5 18, 2020, to present alternative proposed language for the ballot synopsis of the four charges 6 deemed sufficient to be put before the electorate. Order at 16. For the reasons discussed below, 7 the original ballot synopsis must be modified in order to comport with the Court’s September 16 8 Order, the letter and spirit of election and recall law, as well as basic standards of fairness. 9 PROPOSED BALLOT SYNOPSIS 10 As alleged by King County Voter Ernie Lou, shall City of Seattle Councilmember Kshama Sawant be recalled from office for misfeasance, malfeasance, and violation of the oath of office based on the following charges: 11 12 13 14 15 16 17 18 (1) That she effectively delegated city employment decisions for her Council office to a political organization outside city government. (2) That she used city resources to support a ballot initiative. (3) That she disregarded state orders related to COVID-19 by admitting hundreds of people into city hall on June 9, 2020, when it was allegedly closed to the public. (4) That she led a protest march to Mayor Jenny Durkan's private residence, the location of which Sawant allegedly knows is protected under state confidentiality laws. ARGUMENT 19 A. Overview Of The Basis For Councilmember Sawant’s Proposed Amendments To The Previously Prepared Ballot Synopsis. 20 RCW 29A.56.140, governing superior court review of recall petitions, states that “[t]he 21 superior court shall correct any ballot synopsis it deems inadequate.” Chapter RCW 29A.72, 22 governing statewide initiatives and referendums, similarly provides for superior court review of 23 the ballot synopsis, and while not controlling, is instructive as to what should guide the Court’s 24 analysis in weighing the adequacy of a ballot synopsis pursuant to RCW 29A.56.150. RCW MODIFICATIONS TO BALLOT SYNOPSIS – Page 2 Case No. 20-2-13314-1 SEA 6550-6550-di18kw011y 1 29A.72.050 requires that a ballot title must be “a true and impartial description of the measure’s 2 essential contents.” In the present matter, the ballot synopsis filed by the King County 3 Prosecutor’s Office is inadequate and misrepresentative of the four charges that were deemed 4 legally and factually sufficient on several counts. 5 First, the previously prepared ballot synopsis’ inadequacy and misrepresentation is not in 6 dispute, due to the fact that the Court’s September 16, 2020 decision only established the legal 7 and factual sufficiency of four of the six recall charges. Moreover, this Court only established 8 the sufficiency of portions of even those four recall charges. However, “[c]harges must be both 9 factually and legally sufficient.” Recall of Sandhaus, 134 Wn.2d 662, 668, 953 P.2d 82 (1998). It 10 follows logically, then, that only those portions of the charges found by the Court to be factually 11 and legally sufficient be included in the ballot synopsis. 12 Second, the preambulatory language drafted by the Prosecutor’s Office to appear on the 13 recall ballot is impermissibly conclusive and misleading in implying, as written, that Sawant did 14 engage in the conduct described in each of the four enumerated charges. Such an insinuation is 15 extremely prejudicial to Councilmember Sawant, because it will mislead voters into believing 16 that the Court has determined, as a factual matter, that Sawant engaged in the charged conduct 17 (rather than, simply, that Petitioner established the legal and factual sufficiency of the claims 18 alleged, a very different thing), and comports with neither the Court’s decision in this matter nor 19 RCW 29A.56.140, which states that “[t]he court shall not consider the truth of the charges, but 20 only their sufficiency.” Because the court “shall not” and did not consider the truth of the factual 21 allegations set forth in the charges, id., the ballot synopsis wording should be updated to reflect 22 that the charges simply allege conduct which voters must decide the truthfulness of. See also In 23 re Recall of Kast, 144 Wn.2d 807, 31 P.3d 677 (2001) (en banc). 24 MODIFICATIONS TO BALLOT SYNOPSIS – Page 3 Case No. 20-2-13314-1 SEA 6550-6550-di18kw011y 1 Finally, the court should take into consideration the amendments made by the Honorable 2 Judge Mary Roberts to the King County Prosecutor’s Office’s proposed ballot synopsis in the 3 recall matter of Mayor Jenny Durkan, Case No. 20-2-10455-8 SEA. To that end, a copy of Judge 4 Robert’s July 10, 2020, Order on Petition To Determine Sufficiency of Recall Charges and 5 Adequacy of Ballot Synopsis (Durkan’s Amended Ballot Synopsis) is enclosed as Exhibit A. It is 6 a matter of fundamental fairness that the same standard be applied to the ballot synopsis in both 7 recall matters, especially due to their temporal proximity. If the language used in the two ballot 8 synopses were to differ as widely as would result if this Court adopted the approach embodied in 9 the language prepared by the Prosecutor’s Office here, it will give voters the false impression 10 that the underlying factual allegations against Councilmember Sawant have been established as 11 truth, while those against Mayor Durkan are simply alleged. See Durkan’s Amended Ballot 12 Synopsis at 7-8. Because the original synopsis in the Mayor’s recall was “inconsistent with the 13 court’s rulings,” Judge Roberts opted to amend it. Id. at 6-8. Essentially identical amendments 14 should be made to the synopsis in the present matter. 15 A pleading entitled “Proposed Alternative Ballot Language” accompanies this pleading 16 as Exhibit B. It includes both a “redlined” version of the ballot synopsis proposed by 17 Councilmember Sawant, showing how it differs from the ballot synopsis originally prepared by 18 the Prosecutor’s Office (excluding the removal of the allegations which were originally charges 19 (D) and (F)), and a “clean version” of Councilmember Sawant’s proposed synopsis. 20 B. The Previously Prepared Ballot Synopsis Describes Alleged Conduct As If It Has Been Factually Established As Having Occurred. 21 The plain meaning of the previously prepared ballot synopsis wording, as it will be 22 understood by voters, is that Councilmember Sawant has been determined by either the King 23 County Department of Elections or by this Court to have engaged in the conduct described in 24 MODIFICATIONS TO BALLOT SYNOPSIS – Page 4 Case No. 20-2-13314-1 SEA 6550-6550-di18kw011y 1 each of the four charges, and that voters must decide only if her alleged actions, which will be 2 taken as established facts, constituted misfeasance, malfeasance, and violation of the oath of 3 office such that she should be recalled. In fact, however, the Court has only established that 4 Petitioner met his burden to make a prima facie showing of the legal and factual sufficiency of 5 the charged conduct. Instead, it is the voters who must decide both whether they believe the 6 conduct occurred and whether they will vote to recall Sawant for it. Kast, 144 Wn.2d at 813. 7 In particular, this verbiage from the previously prepared ballot synopsis, “Shall City of 8 Seattle Councilmember Kshama Sawant be recalled from office for misfeasance, malfeasance, 9 and violation of the oath of office based on charges that she violated the city charter, city code 10 and state law when she:….” Ex. A (emphasis added), can only reasonably be read as meaning 11 that the promulgator of the ballot or some other impartial entity has determined that the specific 12 instances described thereafter did occur. Which, of course, is simply not the case. 13 For this reason, wording accurately describing the nature of the allegations must be added 14 to signal to voters the truth of the matter—the conduct charged by has not yet been determined as 15 a matter of fact. Analogously to the way Judge Roberts amended the originally prepared ballot 16 synopsis in the Mayor Durkan matter, the perambulatory language should be modified as 17 follows: “As alleged by King County Voter Ernie Lou, shall City of Seattle Councilmember 18 Kshama Sawant be recalled from office for misfeasance, malfeasance, and violation of the oath 19 of office based on the following charges:….” 20 Similarly, section (5) of the previously prepared ballot synopsis (which would become 21 section (4) under Sawant’s proposal herein) states as a matter of fact that Sawant “knows” that 22 the address of Mayor Jenny Durkan is protected under state confidentiality laws. Ballot Synopsis 23 at 4, (5). As this Court is aware, Sawant denies this allegation, and this Court did not (of course) 24 MODIFICATIONS TO BALLOT SYNOPSIS – Page 5 Case No. 20-2-13314-1 SEA 6550-6550-di18kw011y 1 make any factual findings to the contrary. Again, this is a determination that is properly left to 2 the electorate. Kast, at 813. The court should insert the word “allegedly” before “knows” in order 3 to clarify this key distinction. For the same reason, section (3) of the previously prepared ballot 4 synopsis (which would become section (4) under Sawant’s proposal herein), which states as a 5 matter of fact that city hall was closed to the public on June 9, 2020, needs to have the word 6 “allegedly” inserted before the word “closed,” to reflect that neither this Court, nor any other 7 impartial body, has determined as a factual matter that the Petitioner’s allegation in this regard is 8 true. 10 C. The Court’s Decision Does Not Establish Factual And Legal Sufficiency For Certain Charges And Parts Of Charges Currently Included In The Ballot Synopsis. 11 The Court’s Order establishes the legal and factual sufficiency of certain allegations by 12 the Petitioner – charges (A), (B), (C), and (E). Order at pp. 4-16. It does not, however, establish 13 the legal and factual sufficiency of all of the allegations included in the originally proposed 14 ballot synopsis. Id.; Ballot Synopsis at 4. Only the allegations which have been held to be legally 15 and factually sufficient should be included in the ballot language. 9 16 17 First, it goes without saying that charges (D) and (F) cannot be included, given that the Court has deemed those charges insufficient. 18 Second, even as to those charges the Court deemed sufficient, the ballot synopsis as 19 drafted contains certain allegations that were not encompassed within the Court’s sufficiency 20 determination. For instance, with respect to Charge (B), the decision makes no note of the factual 21 or legal sufficiency of the allegation that Councilmember Sawant failed to comply with public 22 disclosure requirements for her alleged support of a ballot proposition. Order 4-9. Additionally, 23 with respect to Charge (C), the Order reached no conclusion on the factual or legal sufficiency of 24 the allegation that Councilmember Sawant endangered the safety of city workers or other MODIFICATIONS TO BALLOT SYNOPSIS – Page 6 Case No. 20-2-13314-1 SEA 6550-6550-di18kw011y 1 individuals by allegedly admitting hundreds of people into City Hall on June 9, 2020. Order 9- 2 12. Because the Court has not held that these specific allegations meet the standard for factual 3 and legal sufficiency, the corresponding language must be struck from the ballot synopsis, in the 4 manner set forth in the ballot synopsis proposed by Sawant herein. Sandhaus, 134 Wn.2d at 668 5 (charges must be factually and legally sufficient). 6 7 D. The Court Should Amend Charge A Of The Ballot Synopsis To Reflect With Specificity The Allegations Found To Meet Legal And Factual Sufficiency Requirements. 8 The Court should amend Charge A to include language specifying that the employment 9 decisions in question relate specifically to staff in Councilmember Sawant’s Council office. This 10 change comports with the specificity requirements set forth in RCW 29A.56.110 which ensure 11 that the public electorate can make informed decisions in the recall process. Herron v. 12 McClanahan, 28 Wn. App 552, 559, 625 P.2d 707 (1981). In the absence of such an amendment, 13 the public electorate will be unable to discern the nature of the staffing decision referenced in the 14 ballot synopsis. CONCLUSION 15 16 For the reasons described above, this Court should adopt Councilmember Sawant’s 17 recommended changes to the ballot synopsis. A copy of Councilmember Sawant’s proposed 18 ballot synopsis is enclosed as Exhibit B. 19 RESPECTFULLY SUBMITTED this 18th day of September, 2020. s/Dmitri Iglitzin Dmitri Iglitzin, WSBA No. 17673 Danielle Franco-Malone, WSBA No. 40979 BARNARD IGLITZIN & LAVITT LLP 18 W Mercer St, Suite 400, Seattle, WA 98119 (206) 257-6003 iglitzin@workerlaw.com franco@workerlaw.com Attorneys for Councilmember Sawant 20 21 22 23 24 MODIFICATIONS TO BALLOT SYNOPSIS – Page 7 Case No. 20-2-13314-1 SEA 6550-6550-di18kw011y DECLARATION OF SERVICE 1 2 I hereby certify that on the date noted below I caused the foregoing COUNCILMEMBER 3 SAWANT’S PROPOSED MODIFICATIONS TO BALLOT SYNOPSIS to be filed with the 4 Clerk of the King County Superior Court via the King County eFiling Application, and true and 5 correct copies of the same to be delivered to the individuals noted below as follows: 6 7 8 9 PARTY/COUNSEL Jennifer Atchison, WSBA #33263 King County Prosecuting Attorney’s Office 900 King County Administration Building 500 4th Avenue Seattle, WA 98104 Jennifer.atchison@kingcounty.com DELIVERY INSTRUCTIONS  Hand Delivery  Certified Mail  Facsimile  E-mail  U.S. Mail  E-Service (via King County Superior Court eFiling application pursuant to LGR 30(b)(4)) Janine Joly, WSBA #27314 King County Prosecuting Attorney’s Office 900 King County Administration Building 500 4th Avenue Seattle, WA 98104 janine.joly@kingcounty.gov  Hand Delivery  Certified Mail  Facsimile  E-mail  U.S. Mail  E-Service (via King County Superior Court eFiling application pursuant to LGR 30(b)(4)) John McKay, WSBA #12935 Chris Morley, WSBA #51918 Jordan Harris, WSBA #55499 Davis Wright Tremaine LLP 920 Fifth Avenue, suite 3300 Seattle, WA 98101 johnmckay@dwt.com chrismorley@dwt.com jordanharris@dwt.com  Hand Delivery  Certified Mail  Facsimile  E-mail  U.S. Mail  E-Service (via King County Superior Court eFiling application pursuant to LGR 30(b)(4)) 10 11 12 13 14 15 16 17 18 19 20 21 DATED this 18th day of September, 2020, at Shoreline, Washington. 22 By: Esmeralda Valenzuela, Paralegal 23 24 DECLARATION OF SERVICE Case No. 20-2-13314-1 SEA 6550-6550-di18kw011y EXHIBIT A To Councilmember Sawant?s Proposed Modifications to Ballot Synopsis 1 2 3 4 FILED 2020 JUL 10 04:13 PM KING COUNTY SUPERIOR COURT CLERK E-FILED CASE #: 20-2-10455-8 SEA 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 To Councilmember Sawant?s Proposed Modifications to Ballot Synopsis 1 THE HONORABLE JIM ROGERS 2 3 4 5 6 7 8 9 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING IN RE THE MATTER OF RECALL CHARGES AGAINST CITY OF SEATTLE COUNCILMEMBER KSHAMA SAWANT (SAWANT) No. 20-2-13314-1 SEA PROPOSED ALTERNATIVE BALLOT LANGUAGE 10 11 12 13 14 15 16 17 Councilmember Sawant proposes that the ballot synopsis previously prepared by the King County Prosecutor’s Office be modified as follows, with additions and deletions reflected in strike-through and underline: As alleged by King County Voter Ernie Lou, sShall City of Seattle Councilmember Kshama Sawant be recalled from office for misfeasance, malfeasance, and violation of the oath of office based on the following charges that she violated the city charter, city code and state law when she: (1) That she effectively dDelegated city employment decisions for her Council office to a political organization outside city government. 18 19 20 21 22 23 (2) That she uUsed city resources to support a ballot initiative and failed to comply with public disclosure requirements related such support. (3) That she dDisregarded state orders related to COVID-19 and endangered the safety of city workers and other individuals by admitting hundreds of people into city hall on June 9, 2020, when it was allegedly closed to the public. (4) That she lLed a protest march to Mayor Jenny Durkan's private residence, the location of which Sawant allegedly knows is protected under state confidentiality laws. 24 6550-6550-di18ky01gx 1 2 3 4 5 The following is a copy of the ballot synopsis proposed by Councilmember Sawant with all the above-mentioned amendments incorporated: As alleged by King County Voter Ernie Lou, shall City of Seattle Councilmember Kshama Sawant be recalled from office for misfeasance, malfeasance, and violation of the oath of office based on the following charges: (1) That she effectively delegated city employment decisions for her Council office to a political organization outside city government. 6 (2) That she used city resources to support a ballot initiative. 7 8 9 10 (3) That she disregarded state orders related to COVID-19 by admitting hundreds of people into city hall on June 9, 2020, when it was allegedly closed to the public. (4) That she led a protest march to Mayor Jenny Durkan's private residence, the location of which Sawant allegedly knows is protected under state confidentiality laws. 11 12 RESPECTFULLY SUBMITTED this 18th day of September, 2020. s/Dmitri Iglitzin Dmitri Iglitzin, WSBA No. 17673 Danielle Franco-Malone, WSBA No. 40979 BARNARD IGLITZIN & LAVITT LLP 18 W Mercer St, Suite 400 Seattle, WA 98119 (206) 257-6003 (206) 257-6038 iglitzin@workerlaw.com franco@workerlaw.com 13 14 15 16 17 18 Attorneys for Councilmember Sawant 19 20 21 22 23 24 6550-6550-di18ky01gx