Washington State’s Process
The stimulus for this post is the recall petition filed against Spokane County Commissioner Al French on August 27. Aggrieved citizens from Mr. French’s Commissioner District 5 (see map) gathered under the banner of a newly formed group, The Clean Water Accountability Coalition, to assemble the resources and knowhow to mount a recall and press their case. Their petition accuses Mr. French of failing to reveal well test results obtained in 2017 showing PFAS contamination at Spokane International Airport and then using his political clout to block efforts to investigate the spread of the contamination to private wells. Mr. French’s official actions and inactions resulted in a group of his constituents, their families, their livestock, and garden consuming water poisoned with PFAS from Spokane International Airport for seven years longer than necessary. You can read the whole official “Statement of Recall Charges” here. (My commentary of last Wednesday is here if you missed it.)
Here’s an excerpt from page 18 of the “Recall Charges”:
By concealing the presence and source of dangerous cancer-causing “forever chemicals”, County Commissioner French acted recklessly with regard to the health and safety of his constituents and the integrity of his office. Because he owed a political and financial duty to the Airport Board and S3R3, he deprioritized the duties he owed to the people of Spokane County as County Commissioner. This glaring conflict of interest violates his commitment to the County, to his office as County Commissioner, and to his constituents.
On August 27 a news conference announcing the delivery of the Recall Petition to the Spokane County Auditor was held on the lawn in front of the County Courthouse—and gained extremely varied coverage in local media. In the August 28th Spokesman, for instance, the short article was buried on the lower righthand corner of fourth page of the Northwest Section following the Opinion Page and below an article on archeological discoveries in Boise, Idaho. It appeared without the photograph that you see in the online presentation (see above underlined link). The Spokesman editor couldn’t have made the news more obscure if he had ordered the print version buried in the garden.
In contrast, Nate Sanford wrote a comprehensive article published in the online version of The Inlander on August 27. (I did not see that week’s paper version of the Inlander.) Sanford’s article, “Spokane County Commissioner Al French faces recall attempt over PFAS controversy” is free and it’s an engaging read (click on the underlined title to access the article).
A Little Civics
A recall petition/election is, in some ways, the people-powered version of impeachment and trial. Both processes result in removal from office and, at least in that sense, both are fundamentally political rather than judicial processes. The main distinction between these two forms of bringing a government official to account is that the recall process is initiated by an aggrieved citizen or group of citizens, whereas an impeachment and trial occurs at the level of a legislative body.
Like so many aspects of government(s) in our country that make learning civics challenging, each state that provides for impeachment and/or recall seems to have developed its own rules. For example, in every state but Oregon there are rules that allow the state legislature to impeach the state’s governor.
Nineteen states have recall rules allowing for the recall of state level officials. Thirty-nine states have provisions for the recall of local level officials. Understand, though, that the specific rules for recalls vary wildly from state to state as to grounds for recall, petition signatures, votes required to remove, etc., etc. Ballotpedia.org has a great article and table that explores some of the variations (as always, click the underlined text to bring up the article).
(Note: It appears that neither the people nor any state legislature has the power to remove a federal level official from office either by recall or impeachment.)
We in Washington State are among those states that offer a process of impeachment and of recall. The Washington State Constitution in Article V offers the state legislature the power of impeachment over state level officials, while Article I, Section 33, offers a process for citizen-generated recall of “every elected public official” in the state (except “judges of courts of record”).
As citizens in Washington State we have the right to petition for a recall election of any elected official, statewide or local—but the State Constitution and the Revised Code of Washington (RCW 29A.56.110-270) don’t make the process easy—or cheap. Here are the steps as they might apply to the Al French Recall Petition:
- RCW 29A.56.110 requires that a “legal voter” of the political subdivision (in this case Spokane County Commissioner District 5 [map]) that elected the subject of the recall prepare “a typewritten charge”. That’s the 114 page document duly presented to the Vicky Dalton, Spokane County Auditor, on August 27th (RCW 29A.56.120). Ms. Dalton is then required to “promptly” serve a copy of the charge to Mr. French and “certify and transmit the charge to the preparer of the ballot synopsis” who, in this case, is Spokane County Prosecutor Larry Haskell. We might imagine that happened last week, on, say, August 29.
- Mr. Haskell (or, one presumes, someone in the Prosecutor’s office) must then, within 15 days “formulate a ballot synopsis of the charge of not more than two hundred words.” (RCW 29A.56.130). Fifteen days would take us to September 13 (assuming that one gets to count holidays and weekends). Mr. Haskell then certifies and transmits an exact copy of the ballot synopsis he has prepared to the filers of the charge and to the subject of the charge, Mr. French. Then Mr. Haskell also “petitions” the Spokane Superior Court to “approve the synopsis and to determine the sufficiency of the charges.”
- Within the next fifteen days (that moves us up to September 28 at least) “the superior court” (presumably whichever Spokane Superior Court judge is assigned the task) holds a hearing on: a) the sufficiency of the charges (i.e. if the charges meet the State Constitutional standard of “misfeasance, malfeasance, or violation of the oath of office”) and b.) the “adequacy” of the ballot synopsis. The superior court judge’s ruling on the “adequacy” of the ballot synopsis is final, BUT either of the parties may appeal the “sufficiency of the charges” ruling to the Washington State Supreme Court. I don’t know the statistics but some recall petitions in the State of Washington fail at the superior court level when a judge decides that the charges lack “sufficiency”. That said, these charges in the Al French Recall Charge certainly look sufficient to me. (Note: The court [the superior court judge] shall not consider the truth of the charges, but only their sufficiency.) RCW 29A.56.140
- If the charges pass muster with the judge and Mr. French does not file an appeal to the Supreme Court of the sufficiency of charges, the group filing the recall petition can begin gathering signatures “on the sixteenth day following the decision of the superior court.” That would be roughly October 14th, three weeks before the ballot turn-in deadline for the November 5th General Election.
Here we should pause for a minute and make a prediction. Mr. French is the quintessential politician—and he is no stranger to litigation. In the manner of a certain presidential candidate in the upcoming election, using the legal system to delay the progress of the recall (regardless of whether he actually thinks he can win on appeal) would, in this case with an election looming, likely be irresistible to Mr. French, especially since our tax dollars through Spokane County will be paying for the appeal, not he. Mr. French will not want signature gatherers out on the streets spreading this story before the November election. On the other hand, filing a appeal might be a bit of a gamble, since the filing of an appeal itself would likely generate some negative news coverage.
- If Mr. French does appeal to the Washington State Supreme Court, by law (RCW 29A.56.270) the appeal must be “heard and determined within thirty days after the decision of the superior court.” Remember the deadline for Superior Court’s ruling is September 27, so, if appealed, the decision should come down from the Supremes by October 27, still nine days before the November 5 General Election. If Mr. French loses that election to his challenger, Molly Marshall, the recall would be suddenly moot, the case would melt away, and taxpayers would not be on the hook to defend Mr. French.
- Here RCW 29A.56.150 compensates for the time lost in an appeal: signature gathers may commence the day following a favorable decision on appeal. No waiting sixteen days as one is required to do after a not-appealed favorable decision by the Superior Court. Filing an appeal, therefore, would, technically, only postpone the beginning of signature gathering from the October 14 to October 28. (That said, there is a fair amount of gearing up for a signature campaign that might be left with just a few days of gathering before November 5.)
- Once commenced, this particular recall would require 11,535 (per Nate Sanford’s calculation) verified signatures of “citizens and legal voters” registered to vote in District 5 (map). Supporters of the petition would have 180 days to gather signatures. RCW 29A.56.200 specifies the details for verification of signatures and RCW 29A.56.210 specifies how the date for the special election is set. It seems likely that, if Mr. French wins in November, and if all of these hoops are properly jumped through, the recall election would be held some time in the spring of 2025.
Regardless the progress of this recall charge (unless it is summarily swatted down by a Spokane County Superior Court Judge) these recall charges need publicity. If that publicity can be concentrated before the November 5th election it may help save all of us a lot of trouble. Familiarize yourself with the arguments, share with friends, neighbors, and acquaintances.
Keep to the high ground,
Jerry