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### m CHIEF jusrice This opinion was filed for record at Kdvi^n Susan L.Carlson 

### Supreme CourtClerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter ofthe Recall Petition of JILLRITTER, Respondent. NO. 97305-9
EN BANC 

### Filed SEP 1 ? 2019 STEPHENS, J.—^Two voters in the city of Tonasket, Washington, filed a recall petition, seeking to remove respondent Jill Ritter fr om her position on the Tonasket City Council. As detailed below, the Okanogan County Superior Court determined all six of the allegations in the petition were insufficient to warrant a recall election. One ofthe two petitioners,appellantBrenda Jones,soughtreview in this court. We affirm the superior court's dismissal ofall six charges. BACKGROUND Therecallpetition alleges that Councilwoman Ritter committed the following acts ofmisconduct warranting her recall: 1. Attempted influence over a TonasketPolice Officer's investigation ofher relative's son;In re Recallof Ritter (Jill), 97305-9

2. Improperly questioning the Chief of Police about the same Tonasket Police Officer's investigation under the guise ofa budget meeting; 3. Improperly obtaining a key to and entering the Tonasket Police Department with the Mayor to obtain and review Personnel Files and to install cameras within the Police Department; 4. Falselyandpublicly claiming aTonasketPolice Officerwason aBrad)f^ list; and lying aboutverifying this claim; 5. Conspiring to disband the Tonasket Police Department in favor of a contract for police services with the Okanogan Coimty Sheriff; and compromising the integrity ofinvestigative materials and evidence in the process; and 6. Improperly withholding public records. Clerk's Papers (CP)at 16. In addition to the recallpetition,the trial courtconsidered several declarations 

### submitted by petitioner Jones,Diane MacGregor-Foreman,Jose Perez,John Cruz, Darin Odegaard, and Brittany Wilson. It also considered declarations from respondent Ritter, as well as from Michael Howe and Alice Attwood. After a 

### hearing,the trial court dismissed all six charges,finding them factually and legally insufficient to sustain further action. Jones sought review in this court, assigning error to the trial court's rulings on every charge. Appellant's Br.(App.Br.)at 1.
ANALYSIS A voter who seeks to recall an elected official must charge that the official "committed an act or acts ofmalfeasance,or an act or acts ofmisfeasance while in



### ' Brady v. Maryland,373 U.S.83,83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
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office, or has violated the oath ofoffice." RCW 29A.56.110. The statute defines these terms: (1) "Misfeasance" or "malfeasance" in office means any wrongful conductthat affects,interrupts,or interferes with the performance ofofficial duty; (a) Additionally,"misfeasance"in office means the performance of a duty in an improper marmer;and (b) Additionally, "malfeasance" in office means the commission of an unlawful act; (2) "Violation ofthe oath ofoffice" means the neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law. Id. 

### Before the sponsors ofa recall may seek supporting signatures, the superior court ofthe county in which the officer subject to recall resides must determine that 

### the petition is both factually and legally sufficient. RCW 29A.56.130(2), .140, .150(2);In re Recall of

Pepper, 189 Wn.2d 546, 553,403 P.3d 839 (2017)(citing Chandler v. Otto, 103 Wn.2d 268,274,693 P.2d 71 (1984)). "A recallpetition is legallysufficientifit "'state[s]with specificity substantial conduct clearly amounting to misfeasance, malfeasance or violation ofthe oath of office'" and there is no legal justification for the challenged conduct." Recall of Pepper, 189 Wn.2d at 554 (alteration in original)(quoting/« reRecallofBoldt, 187 Wn.2d 542,549,386P.3d 1104(2017)(quoting Chandler,103 Wn.2d at 274)). The petition must "identify the '"standard, law, or rule that would make the officer's

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conduct wrongful,improper,orunlawful.'"" Id.at 555 (quoting/« reRecallof Bolt, 111 Wn.2d 168, 181, 298 P.3d 710 (2013)(quoting In re Recall ofAckerson, 143 Wn.2d 366,377,20 P.3d 930 (2001))). A petition is factually sufficient ifit alleges acts orfailures to actthat,without justification, would constitute misfeasance, malfeasance, or a violation ofthe oath ofoffice. Id. Ifthe petition alleges that the subject committed an unlawful act,it is factually sufficient only if it also alleges '"facts indicating the official had 

### knowledge ofand intent to commit an unlawful act.'" Id.(quoting Recall ofBoldt, 187 Wn.2d at 549 (citing In re Recall ofTelford, 166 Wn.2d 148, 158, 206 P.3d 1248 (2009))). A petitioner need not have firsthand knowledge of the facts supporting a petition but must present some evidence beyond mere belief or speculation that the charges are true. Id. "The purpose of requiring factual sufficiency is to ensure that charges, 'although adequate on their face, do not constitute grounds forrecall unless supported by identifiable facts.'" In reRecallof Wade,115 Wn.2d 544,549,799P.2d 1179(1990){quoim^Teafordv.Howard,104 Wn.2d 580,585,707P.2d 1327 (1985)). The sufficiency ofa recall petition is reviewed de novo. RecallofBoldt, 187 Wn.2d at 549.

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A. Instead of Identifying Any Specific Error in the Trial Court's Rulings, Jones Argues Broadly That the Court Erred by Considering Any of the Respondents'Factual Pleadings Thetrial courtruled thatthepetition wasboth factuallyand legally insufficient with respectto every charge. In herbriefing in this court,Jones does not specifically identify any single error in the trial court's rulings (with one exception, discussed below). Instead, Jones argues generally that a respondent to a recall petition may file only legal pleadings in the trial court,not factual ones. App.Br. at 6-7. Jones contends that the trial court therefore erred by even considering the respondents' factual pleadings and that this means our "review must be nearly entirely de novo" App. Br. at 7. As noted, this is always the standard ofreview in a recall petition. Undertheumbrella ofthatgeneral argument,Jones "stands on the factual allegations in the initialRecallPetition and the arguments ofcounsel atthe sufficiencyhearing." App.Br.at 7(citation omitted). Jones is correct that the trial court does not determine the truth ofthe charges when itrules on sufficiency. RCW 29A.56.140(ata sufficiencyhearing,"[t]he court shall not consider the truth ofthe charges,but only their sufficiency"). Contrary to her argument,however,a trial court does not err by considering evidence submitted in response to a recall petition; such evidence is admissible "for the purpose of determining whether there is any factual basis for the charges." In re Recall of

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Beasley, 128 Wn.2d 419,427, 908 P.2d 878 (1996);see, e.g., Recall ofWade, 115 Wn.2d at 549-51 (allegations that male candidate was ranked ahead of female candidate "sometime in the selection process," combined with the fact that female candidate was later selected, were not factually or legally sufficient to sustain a charge that school board members violated the law against gender discrimination;in reaching that conclusion, the court could consider the existence of affidavits by school board members attesting to the reasons underlying their decision). As detailed below, none of the trial court's sufficiency rulings rested on a weighing ofconflicting evidence or a determination ofcredibility. Jones therefore fails to identify any grounds for reversing the trial court's rulings on factual sufficiency. Additionally,Jones fails to challenge any ofthe trial court's rulings on legal sufficiency, all independent,adequate bases for dismissing each charge. The following section examines each charge and ruling and explains why the trial court properly dismissed it. B. We Affirm the Trial Court's Dismissal ofEvery Charge In support of charges 1 ("[ajttempted influence over a Tonasket Police Officer's investigation of her relative's son," CP at 16) and 2 ("[i]mproperly questioning the Chief of Police about the same Tonasket Police Officer's investigation under the guise of a budget meeting," id.), Jones alleged that, after

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TonasketReserve Officer John Cruz(R.O.Cruz)stopped a relative ofRitter's (Josh McDaniel)and issued him citations for traffic infractions and failure to obeyapolice officer, Josh McDaniel's father (Bob McDaniel) told Ritter, R.O. Cruz, and two others present at a meeting that he intended to investigate R.O. Cruz's background and report back to Ritter. Id. at 17. Jones also alleged that, about two weeks after this meeting. Mayor Dennis Brown summoned Police Chief Darin Odegaard to a "putative budget meeting,"where Ritter was also in attendance. Id. at 17-18. Jones contended that Ritter used the meeting to inquire into R.O. Cruz's background, admittedly at the request ofBob McDaniel,and that ChiefOdegaard objected to the investigation and refused to answer any questions. Jones argued that this violated RCW 3 5A. 12.100, which vests "general supervision of the administration of government and city interests" in the mayor. Id. at 18. Jones also claimed it was a violation ofRitter's oath to impartially perform her duties. Id. The trial court found both of these charges to be factually and legally insufficient. With respectto charge 1,itnoted thatRitter filed adeclaration attesting that Josh McDaniel was not related to her by blood or marriage,while Jones offered no evidence that the two were related. Without evidence ofa familial relationship, there was nothing to sustain the inference ofimpartiality. The court also concluded that the evidence submitted by Jones in support ofcharge 1 (notes from the meeting

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with Bob McDaniel)failed to indicate any statementsbyRitterrelating to R.O.Cruz, much less an attempt to influence an investigation. Id. at 5. With respect to charge 2,the courtnoted that,according to the petition,the mayor waspresent for all ofthe allegedly inappropriate questioning. Id. at 6. Because the mayor has hiring and firing authority and did not object to any of the questioning and because Ritter allegedly stopped all questioning as soon as Chief Odegaard objected, the court concluded that the petition did not demonstrate any intent to violate the law (RCW 35A.12.100). At the outset, it should be noted that the allegations in the petition are ambiguous as to which McDaniel is actually Ritter's "relative." The enumerated allegation states that Ritter interfered in the investigation of"her relative's son,"CP at 16,while the narrative allegation states thatthis investigation arose from "atraffic stop on Josh McDaniel,arelative ofCouncil woman Ritter's," id.at 17. Presumably, ifone McDaniel is Ritter's relative,then the other is as well. In any event,therecord before this court contains no sworn statements relating to this factual question,only the allegations in the petition itself. The report of proceedings (RP), however, indicates that at some point, the trial court also considered a declaration by Ritter attesting that "there is no relationship, marriage, blood relation at all to . . . Mr. McDaniel." RP at 42. In her brief in this court, Jones takes issue with the trial

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court's consideration ofthis evidence:"It may well be that the Petitioner is incorrect about a familial relationship between Ms. Ritter and Mr. McDaniel . . . [b]ut this rebuttal should not be raised to the Superior Court." App.Br. at 6. The briefdoes not otherwiseraise any specific objection to the trial court's rulings on charges 1 and 2. The trial court did not err. A superior court must consider the evidence underlying an allegation, in order to determine the factual sufficiency of a recall petition. Recall ofBeasley, 128 Wn.2d at 427. With respect to charge 1, the trial court properly found that allegations that Ritter interfered on behalf of a relative were factually insufficient where the only admissible evidence showed Ritter was not related to the person (or persons)in question. This was not an impermissible weighing of evidence; it was a proper determination that the allegations were speculative. SeeRecallof Boldt, 187 Wn.2d at 549. With respect to charge 2,Jones asserts Ritter's questions about R.O. Cruz were improper because only the mayor has authorityto hire and firepolice officers. CP at 18. The trial courtproperlyfound that the record contained no evidence that Ritter sought to supersede the mayor's authority in this area. We affirm the trial court's dismissal ofcharges 1 and 2.

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In support of charge 3 ("[ijmproperly obtaining a key to and entering the Tonasket Police Department with the Mayor to obtain and review Personnel Files and to install cameras within the Police Department," id. at 16), Jones alleged that on December 21, 2018, Mayor Brown directed the clerk and administrator of the 

### TonasketPolice Department to provide him with keys to the police department. Id. at 18. Jones asserted that the next day Officer Jose Perez observed Ritter, Mayor Brown,and a third personuse thekeys to enter the police departmentto install video surveillance equipment. Id. at 19. According to Jones, when the clerk and administrator (MacGregor-Foreman) returned from her Christmas vacation she found thatshe could notsituateherdesk so asto preventthe new surveillance camera from recording her computer screen. Id. MacGregor-Foreman then contacted the 

### sheriffs office and the city prosecutor's office to express concerns that the camera placement violated privacy laws, and the sheriffs office responded by sending a deputy to retrieve the surveillance equipment. Id. Jones alleged that this violated "Chapter 35A.12 or 35A.11 [RCW]," which do not vest the city council with "the authority to regulate the internal affairs of the Police Department, an executive office." Id. Jones also claimed itviolated chapter 10.97RCW, the Washington State Criminal Records Privacy Act.

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The superior court determined this charge to be factually and legally insufficient. The court found it was undisputed that,after Mayor Brown fired Chief Odegaard and R.O. Cruz, city Clerk Alice Attwood and Councilmember Marylou 

### Kriner contacted the city attorney about installing cameras in the police department for security purposes. The court found that the installation was temporary and was 

### removed immediately after officials were notified about privacy concerns. It therefore concluded that the petition did not demonstrate any attempt to violate the law or engage in willful criminal conduct. Id. at 6. The trial court did not err. With respect to this charge, Jones did not even allege any intent to violate a law,let alone support such an allegation with evidence. The petition alleges,at most,a mistake that Ritter and Mayor Brown made together and then corrected as soon as it was brought to their attention. Those allegations do not indicate a knowing and intentional violation of any privacy law, nor do they suggest any attempt to usurp the mayor's authority. They are therefore legally insufficient to sustain the petition. See RecallofBoldt, 187 Wn.2d at 549. We affirm the dismissal ofcharge 3. In support of charge 4 ("[f]alsely and publicly claiming a Tonasket Police Officer was on a Brady list; and lying about verifying this claim," CP at 16),Jones alleged that Bob McDaniel attended a Tonasket City Council meeting on or about

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January 2,2019,where he "implied that Ofc.Perez was on a Brady list in Spokane County." Id.at 20. Jones asserted thatRitter stated she verified this through aphone call to the Spokane CountyProsecutor's Office. Id. Jones further alleged that on or aboutJanuary 15,2019,"such a list was obtained from Spokane County,"which did not contain Perez's name,and that after Ritter was told ofthis fact, at a January 22, 2019 city council meeting, she claimed she had "found the information on the internet." Id. According to Jones, this proves that Ritter made at least one false statement and also invaded the mayor's authority to supervise and administer government and city interests. Id. The superior court determined this charge to be factually and legally insufficient. It found that no minutes or other recording of either city council meeting wasprovided butthat,according to the evidence submitted byJones,several individuals made statements about Perez at the January 2 meeting. The court also concluded that,since all ofthis alleged lying took place after the city council passed Ordinance 798 (discussed below), which disbanded the police department on conditions, the evidence did not suggest that Ritter violated any law or intended to violate her duties as a councilmember. Id.at 7. In other words,the courtdetermined that the evidence suggested, at most, that several people might have made critical remarks about a former Tonasketpolice officer at a January 2,2019public meeting.

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The trial court's ruling is correct. The record before this court contains a declaration by MacGregor-Foreman attesting that Ritter publicly stated, on January 2,2019,that she had "made a call and confirmed"thatPerez was on aBrady list, id. at 56, and then later publicly stated, on January 22, 2019,that "she had found the information on the internet,"id. at 57. Contrary to Jones's allegations,this does not prove that Ritter made a false statement. The lack of context provided makes it impossible to determine whether these two statements are, in fact, mutually exclusive, and this allegation is therefore insufficient to sustain the petition. See Recall ofAcker

son, 143 Wn.2d at 373 (petitioner's sworn statement that she heard respondent admit to pocketing campaign contributions was factually insufficient to sustain a charge ofviolating campaign finance laws where alleged admission was too vague and lacking in context to indicate what actual conduct occurred). We affirm the trial court's dismissal ofcharge 4. In support of charge 5 ("[cjonspiring to disband the Tonasket Police Department in favor of a contract for police services with the Okanogan County Sheriff; and compromising the integrity ofinvestigative materials and evidence in the process," CP at 16),Jones alleged that Ritter "violated her oath to faithfully and diligently perform her duties ofoffice" when she and other councilmembers voted to adoptOrdinance 798,which temporarilysuspended the operations oftheTonasket

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PoliceDepartment. Id.at 21. Jones acknowledged that cities need notmaintain their own police departments and may instead provide police services through contracts with counties. Jones contended,however,that the manner in which Ordinance 798 was adopted was too hasty to constitute good governance, as it forced police department employees to "scramble" to store and delete files in time for the transition. Id. The superior court found this charge factually and legally insufficient. It concluded thatthe city council adopted Ordinance 798 only after MayorBrown fired the chiefofpolice and another officer and the city was therefore "without a viable police force." Id. at 8. The court found this was a proper exercise of the city council's authority,which Ritter initiated onlyafter consulting with the cityattorney. This ruling is correct. The exercise of discretionary authority cannot be grounds for recall unless it is "unreasonable." In reRecall ofKast, 144 Wn.2d 807, 817-18, 31 P.3d 677 (2001). Jones alleged the city council adopted Ordinance 798 too quickly, but the trial court found the undisputed facts established a reasonable basis for the city council's action. Under that circumstance, the petition is legally insufficient. See id. (where responsive pleadings showed officials had legal justification for ejecting an individual from a public meeting;petition based on that ejection was legally insufficient).

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We affirm the dismissal ofcharge 5. In support ofcharge 6("[ijmproperly withholding public records,"CP at 16), Jones alleged that she made two public record requests to Tonasket city agencies: one for "copies of any public records pertaining to the camera installation in the 

### TonasketPolice Department"^ and one for "all cell phone records,to include calls, te[x]ts, Facebook Messenger threads, and other communications with city officials 

### related to city business contained on Councilwoman Ritter's phone(s)."^ Id. at 21. Jones acknowledged that some records were produced in response to these requests but alleged that others must have been withheld. She asserted that some ofthe text

^ Jones's written request for camera-related records read,in relevantpart: I am requesting an opportunity to inspect or obtain copies ofpublic records that pertain to the information regarding the breach of the security of the Police Department. Who authorized the placement ofthe cameras and who paid for the cameras and the installation. Did the placement ofthe cameras violate the privacy ofthe public and/or violate the agreement to Spillman? Who had access to the footage ofthe camera system. Who had keys and who breached the police department other than the Police officers themselves and the Police Clerk. Who authorized the disbursement of the keys to those individuals. CP at 27. ^ Jones's request for cell phone records read,in relevantpart: I am requesting an opportunity to inspect or obtain copies ofpublic records that pertain to city business ALL CELL PHONE RECORDS,INCLUDING CALLS, TEXT MESSAGES, FACEBOOK MESSENGER MESSAGES MADE TO AND FROM CITY OFFICIALS AND ALL CITY BUSINESS CONDUCTED OR DISCUSSED ON YOUR PERSONAL OR FORREST SERVICE WORK CELL PHONES WITHIN THE DATES OF DEC. 17TM THROUGH TO Dec. 30^^ CP at 29. -15-In re Recall ofRitter (Jill), 97305-9

and Messenger threads produced in response to the first request were incomplete, that no call logs at all were produced, and that no receipts or contracts related to equipment or installation were produced in response to the second request. Jones claimed this violated the Public Records Act,chapter 42.56 RCW. CP at 22. The superior courtfound this charge factually and legally insufficientbecause it was based only on "speculative statements and . . .unwarranted conclusions." Id.
at 9. This ruling is correct. Neither the original petition nor Jones's brief in this court explains the basis for the inference that some responsive records must have been withheld,and there are several readily apparentproblems with Jones's theory. For example,Jones complained that no call logs were produced, id. at 21,but she failed to request any such logs, id. at 29. Jones also complained about the response to the camera-related request,id. at 21-22,butthatrequestwasmade to the Tonasket Police Department, id. at 27. There is no indication that Ritter is the custodian of records for that agency. We affirm the dismissal ofcharge 6. CONCLUSION Thetrial courtcorrectlyheld thatJones'srecallpetition is factuallyand legally insufficient. The court did not improperly engage in fact-finding, and there is no

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prohibition against considering factual pleadings by the respondent to a recall petition. We affirm the trial court's ruling in its entirety and dismiss the petition.

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WE CONCUR: 

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