1 2 3 HON. JIM ROGERS Noted for Consideration without oral argument 2020 SEP 28 02:03 PM October 9, 2020 KING COUNTY FILED SUPERIOR COURT CLERK E-FILED CASE #: 20-2-13314-1 SEA 4 5 6 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING 7 8 IN RE THE MATTER OF RECALL CHARGES AGAINST CITY OF SEATTLE COUNCIL MEMBER KSHAMA SAWANT 9 No. 20-2-13314-1-SEA MOTION FOR RECONSIDERATION OF ORDER ON THE SUFFICIENCY OF CHARGES 10 11 12 INTRODUCTION AND RELIEF REQUESTED 13 Pursuant to CR 59(a)(7) and (9), City of Seattle Councilmember Kshama Sawant 14 (Sawant) respectfully requests that this Court reconsider its September 16, 2020 Order on the 15 Sufficiency of Charges Brought by Petitioner (“Order”), Dkt. 19. Even in light of facts alleged 16 by Petitioner outside of the face of the Petition, including through 86 pages of supplemental 17 materials provided to the Court on September 11, 2020, the content of which Sawant has not 18 previously had the opportunity to address in writing, Charges A, B, C, and E, are factually 19 insufficient because they lack facts that demonstrate that the Petitioner has knowledge of facts 20 which indicate an intent to act unlawfully. 21 As has been repeatedly stated by the Washington State Supreme Court, beyond the 22 baseline requirement to allege misfeasance, malfeasance, or the violation of the oath of office, a 23 recall petitioner who is alleging that recall is appropriate on the basis that the alleged conduct 24 violated the law is required to demonstrate “not only that the official intended to commit the act, MOTION FOR RECONSIDERATION OF ORDER ON THE SUFFICIENCY OF CHARGES – Page 1 1 but also that the official intended to act unlawfully.” In re Recall of Pearsall-Stipek, 141 Wn.2d 2 756, 765, 10 P.3d 1034 (2000) (Pearsall-Stipek III) (emphasis added). Thus, in a recall case, 3 “recall petitioners should at least have knowledge of facts which indicate an intent to commit an 4 unlawful act.” Estey v. Dempsey, 104 Wn.2d 597, 605, 707 P.2d 1338 (1985) (emphasis in 5 original). Accord: In re Recall of Sandhaus, 134 Wn.2d 662, 668, 953 P.2d 82 (1998) (“When an 6 official is charged with violating the law, the petitioners must have knowledge of facts indicating 7 the official intended to commit an unlawful act.”); In re Recall of Wade, 115 Wn.2d 544, 549, 8 799 P.2d 1179 (1990) (“Moreover, where the petition charges the official with violating the law, 9 the petitioners must at least have knowledge of facts which indicate an intent to commit an 10 unlawful act.”). 11 The trio of Pearsall-Stipek decisions is especially on point. In the first, the Court 12 considered a charge that Ms. Pearsall-Stipek willfully and intentionally altered and falsified a 13 document submitted to the Public Disclosure Commission, omitting information from that 14 version of the document that was included in the her office’s copy. In re Recall of Pearsall- 15 Stipek, 129 Wn.2d 399, 403-404, 918 P.2d 493 (1996) (Pearsall-Stipek I). In finding that charge 16 factually insufficient, the Court took into account an affidavit submitted by Pearsall-Stipek, 17 explaining that the alteration was a mistake. Id. The petitioner’s lack of knowledge of any facts 18 showing that Ms. Pearsall-Stipek “willfully and intentionally” violated the law rendered 19 petitioner’s charge “purely conjectural,” and it “therefore provides no basis for recall.” Id. at 404. 20 The Court similarly disposed of a charge that Pearsall-Stipek had intentionally violated the law 21 by destroying official ballots before it was legally permissible to do so. That charge was found to 22 be factually insufficient because the petitioner had no knowledge of any facts showing that 23 24 MOTION FOR RECONSIDERATION OF ORDER ON THE SUFFICIENCY OF CHARGES – Page 2 1 Pearsall-Stipek intended to violate the law or violate her oath of office, even though the 2 petitioner alleged that a supply clerk had warned Pearsall-Stipek not to destroy the records. Id. 3 When addressing the sufficiency of a second recall petition against Ms. Pearsall-Stipek 4 two years later, the Court found factually insufficient a charge that, as County Auditor, Pearsall- 5 Stipek violated the free speech rights of candidates for city council by refusing to print their 6 candidate statements. Matter of Pearsall-Stipek, 136 Wn.2d 255, 264, 961 P.2d 343 (1998), as 7 amended (Oct. 17, 2000) (Pearsall-Stipek II). Addressing the requirement that the petitioner 8 allege facts that the official intended to act unlawfully, the Court noted that Ms. Pearsall-Stipek’s 9 belief that her actions were consistent with the law provided a legally cognizable justification 10 that rendered the charge insufficient. Id. 11 In the third Pearsall-Stipek opinion, the recall petitioners alleged that Pearsall-Stipek’s 12 statement at a deposition constituted the offense of false swearing, and the Court found that this 13 claim was legally sufficient. 141 Wn.2d 756. However, the Court rejected the argument that this 14 allegation was factually sufficient, because it lacked any allegation, or facts supporting such, that 15 the requisite intent to violate the law was present. Id. at 778-80. The Court wrote: 16 17 18 19 20 21 22 Even though we find that Washam’s petition is legally sufficient to show PearsallStipek committed false swearing in two instances, for the factually sufficient requirement to be satisfied Washam must additionally show that Pearsall-Stipek intended her actions, and that she specifically intended to violate the law. Pearsall-Stipek, 136 Wash.2d at 263, 961 P.2d 343. We are not persuaded that the testimony in the Bockwinkel deposition satisfies the test for factual sufficiency. During this testimony, Pearsall-Stipek conceded that she had not earned a college degree. She merely stated that she had attended the University of Washington in “ ’51, ‘52, ‘53, and ‘54,” when in fact she had attended from September 1950 to June 1952. CP at 66. This misstatement, which omitted one of the years, 1950, that Pearsall-Stipek actually attended the University of Washington bears the mark of simple mistake and is insufficient to show that Pearsall-Stipek “intended to violate the law…” 23 24 MOTION FOR RECONSIDERATION OF ORDER ON THE SUFFICIENCY OF CHARGES – Page 3 1 Id. at 779 (quoting In re Sandhaus, 134 Wn.2d at 670).1 2 In re Sandhaus is similarly instructive. In that case, the elected official allegedly “fail[ed] 3 to obtain a bond to insure the performance of his duties,” in violation of RCW 36.16.050. This 4 charge was found factually insufficient on the grounds that “respondents present[ed] no facts 5 within their knowledge showing Sandhaus intended to violate the law or wilfully failed to 6 perform his duty to secure a bond.” 134 Wn.2d at 670. 7 In re Recall of Ackerson, 143 Wn.2d 366, 20 P.2d 930 (2001) confirms the point. In that 8 case, Ackerson was accused of violating election laws by improperly converting campaign funds 9 for personal use. While that allegation was presumably legally sufficient, the petitioner “[gave] 10 no facts that show intent to commit the wrongful act as required.” Id. at 373. Because, as the 11 Court stated, “When an official is accused of a crime, the recall petitioner must 12 have knowledge of facts indicating intent to violate the law,” id. at 371 (emphasis in original), 13 this charge had to be dismissed and the grounds of factual insufficiency. 14 Respectfully, this Court, in assessing the legal sufficiency of the allegations brought 15 against Sawant, failed to apply this well-established principle to Charges A, B, C, and E. 16 Because the most that can be possibly said about any of these Charges is that they may assert the 17 existence of facts indicating that Sawant allegedly committed an unlawful act, but not the 18 existence of facts within the knowledge of the Petitioner indicating that Sawant subjectively 19 intended to act unlawfully, these Charges lack factual sufficiency and should be dismissed. 20 21 22 23 1 In contrast, the Court found sufficient evidence to infer intent with respect to a second alleged incident of false swearing. In that instance, Pearsall-Stipek was administered an oath, and almost immediately thereafter made the false statement that she had received a college degree. Id. at 780. Factual sufficiency was established because the facts alleged by the petitioner provided a specific basis from which intent to act unlawfully could clearly be inferred. 24 MOTION FOR RECONSIDERATION OF ORDER ON THE SUFFICIENCY OF CHARGES – Page 4 1 In addition, Charge E is legally insufficient, because the Petitioner has identified no law 2 that Sawant could conceivably have violated even if, as alleged, she “led a protest march” to 3 Mayor Durkan’s home, knowing that the address of that home was “protected.” 4 CHARGE A 5 According to the facts alleged by Petitioner, Sawant “effectively delegated decisions 6 regarding the hiring and termination of City of Seattle employees to an outside political 7 employee.” Read most generously, the Petition, read in conjunction with supporting materials, 8 alleges that an employee was at some point laid off from, or had non-renewed, a part-time 9 position in Sawant’s office, and that Sawant allegedly allowed the decision to terminate this 10 person’s employment to be made by Socialist Alternative, instead of herself. 11 In support of this allegation, Petitioner cites two provisions of the Seattle City Charter 12 (Art. IV, Title 4, Sections 2 and 4) and Seattle Municipal Code Ch. 4.16 (the Code of Ethics). 13 This Court, however, cited only the Code of Ethics as supporting its conclusion that this Charge 14 was legally sufficient. Order, at 7.2 15 The problem with this conclusion is that the Code of Ethics is not even remotely clear 16 about what it requires in the context of a councilmember deciding to terminate a City Council 17 employee. The provision cited by the Court in its decision, involving the obligation of a public 18 official to not make a decision in such a manner that it would appear to a reasonable person that 19 the official’s judgement “would be impaired because of a personal or business relationship,” 20 SMC 4.16.070(3), arguably could prohibit a councilmember from “effectively delegating” hiring 21 decisions to a councilmember’s political organization, but this provision in no way places a 22 2 23 The Court was correct in not basing any portion of its analysis on the Seattle City Charter provisions cited by Petitioner, Section 2 of Article IV addresses the composition of the City Council and establishes districts. Section 4 addresses the powers of the Council generally. Neither section makes reference to personnel decisions or other laws that plausibly relate to allegations in Charge A. 24 MOTION FOR RECONSIDERATION OF ORDER ON THE SUFFICIENCY OF CHARGES – Page 5 1 councilmember clearly on notice that that is prohibited by that provision. Most specifically, 2 neither the word “personal” or “business” begins to describe what is unmistakably a political 3 relationship between Sawant and Socialist Alternative, and the fact that one of the meanings of 4 the word “impair” might make this provision apply here elides the fact, which this Court 5 implicitly accepts, that under other meanings of the word “impair,” this provision would not be 6 applicable. For these reasons, the language of SMC 4.16.070(3) is very far from a clear 7 injunction that Sawant was forbidden from consulting with anyone in her political organization 8 as she saw fit or even deferring to Socialist Alternative in her hiring and firing decisions, as she 9 is alleged to have done. 10 This is crucial, because, as set forth above, it is not enough for the Petitioner to have 11 alleged, as he has arguably done, that Sawant breached the Code of Ethics through her actions. 12 Instead, the Petitioner must have alleged, and must have alleged facts in support of the 13 allegation, that Sawant, “not only … intended to commit the act,” but also “intended to act 14 unlawfully.” Pearsall-Stipek III, 141 Wn.2d at 765. Yet the Petition does not, either on its face, 15 or through the supplementary material, even allege that Sawant “intended to act unlawfully,” 16 much less allege facts that would support such a conclusion. 17 Some inferences are permissible in a recall petition, but “on the whole, the facts must 18 indicate an intention to violate the law.” In re Recall of Telford, 166 Wn.2d 148, 158, 206 P.3d 19 1248 (2009). Intent may be inferred from circumstances, but the inference must not be overly 20 conjectural. In re Heiberg, 171 Wn.2d 771, 778-79, 257 P.3d 565 (2011).3 21 22 23 3 Thus, for example, in In re Recall of Carkeek, 156 Wn.2d 469, 128 P.3d 1231 (2006), Carkeek sought an antiharassment order from Snohomish County District Court prohibiting constituents of his from attending future public meetings of said District. These acts were alleged to be an intentional attempt to violate those constituents’ constitutional rights to free speech and to petition the government, and an intentional attempt to violate the Open Public Meetings Act, Chapter 42.30 RCW, and the Anti–Harassment Act, Chapter 10.14 RCW. The Court found 24 MOTION FOR RECONSIDERATION OF ORDER ON THE SUFFICIENCY OF CHARGES – Page 6 1 For this reason, this Court misunderstands the significance of the conclusion reached by 2 Seattle Ethics and Elections Commission (SEEC) Director Wayne Barnett regarding the question 3 of whether Sawant’s alleged deference to Socialist Alternative in certain employment-related 4 decisions misses the point. As set forth in Mr. Barnett’s determination, Sawant’s alleged decision 5 to delegate hiring decisions to Socialist Alternative did not violate the Code of Ethics. (Dkt. 11, 6 at 28-29). This Court is absolutely free to disagree, as it does, with Mr. Barnett’s analysis. 7 However, the very fact that the person primarily entrusted with enforcing the City of Seattle’s 8 ethics laws as they apply to the City’s elected officials does not believe that what Sawant is 9 alleged to have done is unlawful makes clear that the missing element of Charge A, that Sawant 10 intended to violate the law, cannot simply be inferred. 11 In light of the above, and consideration of Sawant’s plausible denial of having any such 12 intent, see Declaration of Kshama Sawant in Support of Motion for Reconsideration (2nd Sawant 13 Decl.) (filed simultaneously herewith), ¶ 4, inferring such intent would be impermissibly 14 conjectural in this case.4 There are, simply, no facts alleged to show that Sawant subjectively 15 intended to violate the Code of Ethics through the actions she is alleged to have taken. Thus, this 16 charge is factually insufficient and should be dismissed. 17 18 19 20 21 22 23 this allegation factually insufficient, however, noting that “there is nothing in the original statement of the charge or the supporting documentation provided by the learned counsel bringing the petition that states, or supports a reasonable inference that, Commissioner Carkeek intended to violate the law.” Id. at 474 (emphasis added). Accord: In re Ackerson, 143 Wn.2d at 373 (inference “too conjectural”). 4 The Supreme Court routinely contrasts the absence of a factual basis for a petitioner’s allegations regarding unlawful intent with denials from the target of the recall petition. See, e.g., Pearsall-Stipek I, 129 Wn.2d at 403-404 (factual insufficiency not established where official submitted affidavit asserting that alternation was a mistake); Matter of Ritter, 194 Wn.2d 85, 93, 448 P.3d 755 (2019) (affirming finding of factual insufficiency where only admissible evidence disproved allegation; “[t]his was not an impermissible weighing of evidence; it was a proper determination that the allegations were speculative.”). Thus, it is fully appropriate for this Court to consider Sawant’s denials of unlawful intent that are contained in this second declaration. 24 MOTION FOR RECONSIDERATION OF ORDER ON THE SUFFICIENCY OF CHARGES – Page 7 1 CHARGE B 2 Charge B is legally insufficient for the same reason. While this Court concluded that 3 Petitioner had alleged “facts indicating that the Councilmember intended to commit an unlawful 4 act,” Order at 10, the facts addressed in the Court’s opinion address only the commission of the 5 allegedly unlawful acts, and do not at all purport to allege a subjective intent to violate the law as 6 factual sufficiency requires. See Order at 10 (discussing alleged facts in Exhibits L and N in 7 support of petition, relating to the spending of $2000 for advertisements related to the Tax 8 Amazon meetings and the production of a webpage in support of the Tax Amazon 2020 9 campaign). 10 Nor can a subjective intent to violate SMC 2.04.300 or RCW 42.17A.555 be inferred 11 based on the facts alleged. While this Court is free to decide, as it has, that SMC 2.04.300 has a 12 more expansive reach than RCW 42.17A.555, such that it prohibits elected officials from using 13 government facilities to promote a ballot proposition even prior to the date that such exists, that 14 is simply a legal opinion. It does not make this reading of the Seattle Municipal Code so clearly 15 true, or inescapable, that it can be inferred that Sawant, if she indeed (as alleged) used city 16 resources to support an incipient effort to prepare the ground for what eventually became the Tax 17 Amazon ballot measure, did so with the requisite knowledge and intent that doing so was 18 unlawful. 19 As the Court is aware, RCW 42.17A.005 defines a ballot proposition as “any 20 ‘measure’….or any initiative, recall, or referendum proposition proposed to be submitted to the 21 voters of the state….from and after the time when the proposition has been initially filed with the 22 appropriate election officer….” (emphasis added). Respectfully, this Court’s attempt to read out 23 of the statute the words emphasized above, to support a conclusion that this provision bans “the 24 MOTION FOR RECONSIDERATION OF ORDER ON THE SUFFICIENCY OF CHARGES – Page 8 1 use of government resources to promote a ballot measure before it is filed or certified” is not 2 supported by the plain language of the provision (which makes clear the point in time when 3 something becomes a ballot proposition), legislative history, or caselaw. 4 Similarly, SMC 2.04.010 defines a ballot proposition as “any measure, question, 5 initiative, referendum, recall, or Charter amendment submitted to, or proposed for submission to, 6 the voters of the City.” (emphasis added). This Court focuses on the words emphasized above, 7 and suggests that this provision is “arguably broader” than the definition contained in the 8 Revised Code of Washington. But the SEEC, the agency tasked with interpreting the City’s 9 campaign finance laws, has expressly rejected both this Court’s interpretation of the RCW and 10 its interpretation of the Seattle Municipal Code provision at issue. The SEEC has explained that 11 under the City’s definition of “ballot proposition,” “[a]n issue of interest does not become a 12 ballot issue, under the law, until some paperwork is in progress to perfect certification. An issue 13 of interest becomes a ballot issue when the first step is taken for certification.” SEEC Adv. Op. 14 94-1E (Sea.Eth.Elect.Com.), Op. Sea. Ethics & Elects Comm’n 1E (1994), 1994 WL 903573 15 (emphasis added). The SEEC explained that: 16 17 18 19 20 21 [RCW 42.17A.555] and SMC 2.04.300 only prohibit use of facilities to promote or oppose a ballot issue, not an issue of interest that has not yet become a ballot issue. Since no ballot title had been submitted to the Secretary of State for a state initiative and no signature gathering had begun to certify a City initiative to prohibit legislation that bars discrimination based on sexual orientation when Hands Off Washington made the request, the issue of interest was not a ballot issue. Therefore, even if the Code did not include an exemption for public officials in this case, using City facilities to oppose the issue of interest would not have violated the state or City law. Id. (emphasis added). 22 Even if one could plausibly contend that Sawant violated one or both of RCW 23 42.17A.555 and SMC 2.04.300, the Petitioner has not contended, and has not alleged any facts 24 that would support a contention, that the Petitioner, in so acting, had the intent of violating the MOTION FOR RECONSIDERATION OF ORDER ON THE SUFFICIENCY OF CHARGES – Page 9 1 law through her actions in this regard. In contrast, Sawant has asserted, and no allegation or 2 evidence in the record contradicts, that during the time period when she is alleged to have taken 3 these acts, she believed that prior to the date that something has been filed with the City Clerk, 4 an “issue of interest” is not and has not become a ballot proposition as defined by city and state 5 law, such that city resources may not be used to support or oppose it without running afoul of 6 RCW 42.17A.555 and SMC 2.04.300. See 2nd Sawant Decl., ¶ 5. For this reason, this charge 7 should be dismissed as factually insufficient. 8 CHARGE C 9 The Court concluded that Charge C’s allegation that Sawant allowed citizens into City 10 Hall on June 9 was legally sufficient because that conduct violated the Governor’s Proclamation 11 which “allowed no gatherings at all at that time.” Order at 13. While finding it a “difficult 12 question” whether Sawant intended to commit an unlawful act in allowing citizens into City Hall 13 on June 9, the Court concluded that “the act of unlocking the building closed due to the 14 pandemic and letting in the protestors inferentially proves the intent needed to allow the 15 charge/allegation to go forward.” Order at 14. 16 The act of unlocking the door, however, does not establish knowledge by Sawant that her 17 conduct violated the Governor’s Proclamation. First, City Hall is presumably always locked at 18 night, yet Sawant undeniably has the lawful right to both enter City Hall after hours and bring 19 guests with her when she does so, so the act of unlocking the building on the night of June 9 does 20 not show an appreciation that allowing citizens into the building would violate the Governor’s 21 Proclamation. It is significant that Sawant asserts, and nothing in record contradicts, that she has 22 routinely entered City Hall after hours, when it is otherwise locked or closed, and has routinely 23 brought guests with her – including for many previous after-hours meetings and political 24 protests, some of which involved hundreds of people; that she was not aware that City Hall’s MOTION FOR RECONSIDERATION OF ORDER ON THE SUFFICIENCY OF CHARGES – Page 10 1 status as “closed” or “locked” after hours on June 9, 2020, was any different than it always is; 2 that she had no reason to believe that she does not have the lawful authority to bring guests with 3 her into City Hall after hours, including in the numbers that were involved on June 9, 2020; and 4 specifically is aware of no City of Seattle rule or regulation stating anything to the contrary. See 5 2nd Sawant Decl., ¶ 6. 6 Equally significant, regardless of whether one agrees with this Court’s conclusion that 7 Sawant’s actions did in fact violate the Governor’s Proclamation, or whether that Proclamation 8 “allowed no gatherings at all” (including political demonstrations, which the Governor himself 9 spoke favorably of), it simply cannot be said that the Court’s interpretation of the Proclamation is 10 so inescapable that Sawant can be inferred to have acted in a way that violated it. To the 11 contrary, a reasonable person could well have understood that political demonstrations were not 12 banned by Governor Inslee’s order, as demonstrated by the substantial number of citizens 13 (including many elected officials) across the State that participated in such demonstrations while 14 the Proclamation was in effect. And, in fact, Sawant did reasonably believe that, based on her 15 having routinely participated in political protests during the time period that the Governor’s 16 various emergency proclamations have been in effect, the language of the proclamations, and the 17 ubiquity of Black Live Matters protests that have been occurring throughout the pandemic. 2nd 18 Sawant Decl., ¶ 7. 19 This is not a situation, like that in Pearsall-Stipek III, in which the official could be 20 inferred to have acted with intent because the official violated a law after having just been 21 admonished of a clear and unambiguous legal standard. 141 Wn.2d at 780. 22 This Court correctly framed the question as whether the facts in the Petition allege that 23 Sawant intended to engage in “a demonstration” or “an intentional breach of public health laws 24 MOTION FOR RECONSIDERATION OF ORDER ON THE SUFFICIENCY OF CHARGES – Page 11 1 on the pandemic.” Order at 13. The Petition does not allege facts to support an intentional breach 2 of the Governor’s Proclamation and the charge must be dismissed. 3 CHARGE E 4 In finding that Charge E is factually sufficient, this Court held that the allegation that 5 Sawant knew that Mayor Durkan’s home address was “protected” was “very specific.” Order at 6 15. But the Petitioner at no point identified any facts upon which this particular assertion is 7 based. In light of the authority cited above holding that in a recall case, the recall petitioner must 8 “have knowledge of facts” indicating an intent to commit an unlawful act, the absence of any 9 facts that would support even an inference that Sawant was in the possession of this legally 10 crucial fact is fatal to this charge. 11 Absent facts being alleged that would support a conclusion that Sawant, contrary to her 12 assertions, see 2nd Sawant Decl., ¶ 8, and first Sawant Decl. (Dkt. 12), ¶ 4, did know the 13 Mayor’s address, and knew that disclosing the address would be unlawful, this charge is 14 factually insufficient to show an intent by Sawant to violate the law. See Pearsall-Stipek I, 129 15 Wn.2d at 403-404 (factual sufficiency not established where petitioner alleged no facts showing 16 that official intended to alter a document before submitting it to the PDC and official submitted 17 affidavit asserting that alternation was a mistake). There were no facts alleged contradicting this, 18 and in fact the only evidence produced showed that Mayor Durkan declared afterward that the 19 protest did take place in front of her house. 20 This charge is also legally insufficient. The charge cites, and this Court addresses, the 21 address confidentiality program found in RCW 40.24.030, and proceeds on the assumption that 22 had Sawant done what she is alleged to have done, that would have violated the law. However, 23 RCW 40.24.030, the law which describes Washington State’s address confidentiality program, 24 MOTION FOR RECONSIDERATION OF ORDER ON THE SUFFICIENCY OF CHARGES – Page 12 1 relates exclusively to the criteria for who may be eligible to participate in that program, and does 2 not make disclosing the address of someone in that program a civil or criminal offense. The 3 statute that this Court asserts does that is RCW 9A.46.020. Order at 15. But that statute does not 4 state that “those who criminally violate [the address confidentiality program] are guilty of the 5 class C felony of harassment.” Id. In point of fact, neither RCW 40.24.030 nor RCW 9A.46.020 6 make it a criminal offense to disclose the address of a person enrolled in the address 7 confidentiality program, and it is plain error for this Court to have so ruled.5 8 CONCLUSION For the foregoing reasons, Councilmember Sawant respectfully requests that this Court 9 10 reconsider its prior ruling and dismiss Charges A, B, C, and E of the Petition. I certify that this memorandum contains 4,194 words, in compliance with the Local Civil 11 12 Rules. RESPECTFULLY SUBMITTED this 28th day of September, 2020. 13 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 14 15 16 17 18 19 Attorneys for Councilmember Sawant 20 21 22 23 5 Petitioner has not alleged, and this Court did not find, that Sawant allegedly violated the anti-harassment statute in any way other than through her alleged decision to lead a march to the Mayor’s residence. That is the only allegation, and it is premised entirely on the assertion that knowingly revealing the Mayor’s residence would have been a crime. However, as noted, that would not have been a crime, even had Sawant done it, which she did not. The claim that RCW 9A.46.020 was violated in the manner suggested by the Petitioner is therefore wholly without legal merit. 24 MOTION FOR RECONSIDERATION OF ORDER ON THE SUFFICIENCY OF CHARGES – Page 13 1 DECLARATION OF SERVICE 2 I, Jennifer Woodward, declare under penalty of perjury under the laws of the state of 3 Washington that on the date noted below I caused the foregoing document 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 this 28th day of September, 2020 at Shoreline, Washington. 22 By: 23 Jennifer Woodward, Paralegal 24 DECLARATION OF SERVICE Case No. 20-2-13314-1-SEA 6550-6550-di18h4014r