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### INTHE SUPREMECOURT OF THE STATE OF WASHINGTON

Inthe Matter ofthe Recall of ) ) No. 93522-0 MARC BOLDT, ) Clark County Councilor, ) ) JEANNE STEWART, ) EnBanc Clark County Councilor, ) ) JULIE OLSON, ) Clark County Councilor. ) 

### JAN 12 

## 2011 ) Filed )

GONZALEZ, 

### J. -ClarkCounty Councilor Thomas Mielke filed recall charges essentially allegingthat three fellow council members improperly held a vote in executive session, improperly designated The Columbian as the newspaper ofrecord, and did notprevent the county executive from dissolving a county department. The superior courtjudge dismissed the charges as legally and factually insufficient, which Mielke appealed. We affirm the trial court.

### In re Recall of Marc Boldt, eta!., No. 93522-0 BACKGROUND Clark County's Board ofCounty Councilors (Board) operates under a "home rule charter." A home rule charter is a municipality's organizational plan, analogous to a constitution, drawn by the local government itselfand adopted by popular vote. BLACK'S LAW DICTIONARY 284 (lOth ed. 2014). In 2014, Clark County voters increased the number ofthe Board from three to five members. Underthe charter, the Board is the legislative body and the county manager the executive. CLARK CoUNTY CHARTER§§ 1.5, 2.1, 3.1. Themanagerhas authority to supervise all administrative departments establishedby the charter or createdby the Board, and to execute and enforce all ordinances. Id. 

### § 3.2. The Board adopted a budget in 2015 that included funding for a county Department ofEnvironmental Services. Former Senator DonBenton served as its director. In May 2016, CountyManagerMarkMcCauley "reorganize[d]" the Department, eliminating administrative positions, including Benton's, and reassigning the services to other county departments. Clerk's Papers (CP) at 520. According to McCauley, he basedthis decision onhis authority alone as manager. In 2016, Councilors MarcBoldt and Julie Olson were elected to the Board, joining Councilors Jeanne Stewart, DavidMadore, and Thomas Mielke. Tensions

rose quickly between councilor members. The councilors often disagreed, dividing the Board into two factions: Boldt, Olson, and Stewart againstMadore and Mielke.
2

### In re Recall of Marc Boldt, etal., No. 93522-0 E.g., CP at 193-95,11,24,38 (Mielke characterized Boldt, Olson, and Stewart as Madore's "political rivals"). Madore eventually became suspicious ofDeputy County Prosecutors Chris Home and Christine Cook and Planning Director Oliver Orjiako, accusing them ofproviding false information to the Boardregarding the county's comprehensive planupdate as required by the Growth Management Act, chapter 36.70A RCW. Madore created a document purportedly showing "inaccuracies oftheir testimony and posted itto the County's website." Br. of Appellant at 2 (citing CP at 129-30). On March 1, 2016, Home spoke about Madore's concerns and asked for guidance from the Board about whether an independent investigation was needed. Boldt, Olson, and Stewart statedthat an investigation was notnecessary, while Madore endorsed proceeding with an investigation. On March 2, 2016, a union for county employees threatened to file a grievance against Madore's "defamatory" public allegations naming Home, Cook, and Orjiako. CP at 131-32. 1 

### On March 9, 2016, the Board met again, Horne provided additional background on an independent investigation, and the Board discussed "moving forward" with it. CP at 406.

1Madore accused Clark County staffofmisfeasance at public meetings, in Facebookpostings, in e-mails, in an op-ed article, and in an AprilS, 2016 Clark County Focus television interview. CP at 235. 3

### In re Recall of Marc Boldt, eta!., No. 93522-0 OnMarch 15, 2016, Orjiako submitted a complaint, alleging Madore created

a hostile workplace, to Clark County's director ofhuman resources. In light ofthe Board's discussions, McCauley decided on his own to move forward with an investigation. McCauley directed his staffto locate an independent investigator to look into the allegations made by and against Madore. While the recruitment process was unclear, on March 19, 2016, attorney RebeccaDean sent an engagement letterto the county, agreeing to begin an investigation. McCauley's declaration states that his staffproposed Dean's scope ofwork and he did not discuss it with the Boardbased on his "pastpractice regarding contracts for investigations ofcounty employees." CP at 519. McCauley executed the contract "based on [his] authority as County Manager under the Clark County Home Rule Charter and relatedrules." Jd. 

### The Dean contract was notposted on the county's website. The Board returned to conducting county business despite the allegations from Madore and county staff. On AprilS, 2016, the Board considered bids for the county's newspaper ofrecord. Fournewspapers submitted bids. The county purchasing managerpresented a report comparing the bids and advised the Board thatthe previous newspaper ofrecord, 

### The Reflector, had "compromisedthe County's ability to meetpublishing deadlines and scheduled changes." CP at 443. The purchasing manager also statedthat 

### The Reflector, a weekly newspaper, would 4In reRecall 

## of MarcBoldt, et al., No. 93522-0 require duplicate postings in The Columbian, a dailypaper, concluding that The Reflectorwouldultimatelybe more expensive in total publishing costs. Boldt, Olson, and Stewart voted for The Columbian; Mielke and Madore voted for The Reflector. Meanwhile, at an April20, 2016 board meeting, McCauley explained why "hebelieved that he hadunanimous support from the Board to proceed with an investigation ofCouncilorMadore's allegations" and, because the contract involved "investigations ofone ofthe Board members," why "he decided that it

was not appropriate" to post the Dean contract onthe website. Resp'ts' Br. at 8 (citing CP at 189-90). Interestingly, Mielke seems to confirm that the Boardhad agreed to pursue an investigation, butbelieved therehad beenno agreement regarding its scope. CP at 194 ("I thought we would agree to hire someone, but we hadn't agreed on what's going to be investigated.").Z On June 28, 2016, Mielke filed a recall petition against Boldt, Olson, and Stewart in Clark County Superior Court. He claimed that the councilors: (1) knowingly violated the Open Public Meetings Act of 1971 (OPMA), chapter 42.30

2 Dean completed herinvestigationbyJuly 6, 2016. Herreport concluded that Madore's allegations ofstaffmisfeasanceby Orjiako, Cook, and Horne were "[i]n all materialrespects ... false." CP at 235. She also concluded thatthe staffdid not engage inmisleadingbehavior or deceive the Board ormanipulate data. Dean concluded that Madore attempted to directly micromanagethe Clark CountyPlanningDepartment's work on the 2016 comprehensiveplan and "attempted to pressure Orjiako and Planning staffnot to exercise independentprofessional judgment." CP at 236. 

### 5

### In re Recall of Marc Boldt, et al., No. 93522-0 RCW, byauthorizing the hiring ofDean, (2) grossly wastedpublic funds by awarding thepaper ofrecord contract to 

### The Columbian newspaper, (3) purposefully limited Mielke's and Madore's access to advice from the county prosecutor's office, and (4) abdicated legislative responsibilities byallowing McCauley to dissolve the county's Department ofEnvironmental Services without legislative authorization. 3 A sufficiencyhearing was held onJuly29, 2016. The trial court considered affidavits from theparties and reviewed a video recording ofa board meeting. The court concluded the recall charges were factually and legallyinsufficient, and ruled that Mielke lacked standing to seekrecall ofOlson because he did not reside in her district. Mielke now appeals the superior court's order dismissing the recall petition. ANALYSIS Elected officials in Washington maybe recalled for malfeasance, misfeasance, or violation ofoath ofoffice. WASH. CONST. art. 

### I, §§ 33-34; RCW 29A.56.110. Courts act as a gatewayto ensure that charges are factually and legally sufficient before they are placedbefore the voters, but ourrole is not to evaluate the truthfulness ofthose charges. RCW 29A.56.140; 

### In reRecallofKast, 144 Wn.2d 807, 813, 31 P.3d 677 (2001) (citing

### In reRecallof Beasley, 128

3 Appellant appears to have abandoned the third allegation on appeal. 6

### In re Recall of Marc Boldt, etal., No. 93522-0 Wn.2d 419, 427, 908 P.2d 878 (1996); 

### In re Recallof Pearsall-Stipek, 141 Wn.2d 756, 764, 10 P.3d 1034 (2000)). Recall petitions must be both legally and factually sufficient, and courts must ensure thatpersons submitting the charges "have some knowledge ofthe facts underlying the charges." 

### In re Recall ofWasson, 149 Wn.2d 787, 791, 72 P.3d 170 (2003) (citing

### In re Recallof Ackerson, 143 Wn.2d 366, 372,20 P.3d 930 (2001)). The facts alleged in a petition are sufficientto proceedto a ballot when, taken as a whole, they "identify to the electors andto the official being recalled acts or failure to act which withoutjustificationwould constitute a prima facie showing ofmisfeasance, malfeasance, or a violation ofthe oath of office." 

### Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984). In determining whether a petition is factually sufficient, we assume the veracity ofallegations made so long as they are reasonably specific and detailed. 

### SeeIn re Recall ofSandhaus, 134 Wn.2d 662, 668-69, 953 P.2d 82 (1998). "Voters may draw reasonable inferences from the facts; the fact that conclusions have been drawnbythe petitioner is not fatal to the sufficiency ofthe allegations." 

### In re Recall ofWest, 155 Wn.2d 659, 665, 121 P.3d 1190 (2005). Where commission ofan unlawful act is alleged, the petitioner must show facts indicating the official hadknowledge ofand intent to commit an unlawful act. 

### In reRecall ofTelford, 166 Wn.2d 147, 158,206P.3d 1248 (2006).
7

### In re Recallof Marc Boldt, etal., No. 93522-0 Likewise, a recall petition is legally sufficient ifit "state[s] with specificity substantial conduct clearly amounting to misfeasance, malfeasance or violation of the oath ofoffice." 

### Chandler, 103 Wn.2d at 274. An appropriate exercise of discretion does not constitute grounds for recall. 

### Id. "The sufficiency ofa recall petition is reviewed de novo." 

### Wasson, 149 Wn.2d at 791 (citing 

### Teafordv. Howard, 104 Wn.2d 580, 590, 707 P.2d 1327 (1985)). A reviewing court does not lookto the truthfulness ofthe charges butinstead considers whether, acceptingthe allegations as true, the charges on their face supportthe conclusionthatthe officer abused his orher position. 

### Id. at 792 (citing 

### Teaford, 104 Wn.2d at 586). The superior court makes the initial sufficiency determination, subject to review bythis court. 

### See RCW 29A.56.140; 

### Kast, 144 Wn.2d at 813. The charge, taken as a whole (which may include consideration ofattached documents in certain circumstances) must be specific enough to give the elected official meaningful notice ofthe particular conduct challenged and why it is grounds for recall. 

### West, 155 Wn.2d at 667 (citing

### In re Recall of Lee, 122 Wn.2d 613,618, 859 P.2d 1244 (1993)). 

### I. THE DEAN CONTRACT Mielke argues that Boldt, Olson, and Stewartknowingly violated the OPMA when they allegedly held a clandestine meeting to approve Dean's contract. The OPMA allows closed executive sessions to discuss complaints or charges brought 8In re Recall of Marc Boldt, etal., No. 93522-0 against public officials or employees andto converse with legal counsel about potential litigation. RCW42.30.110(1)(f), (i). Before convening in executive session, the presiding officer publicly announces the purpose for excluding the public and the time whenthe session will conclude. RCW 42.30.110(2). Mielke contends that neither he nor Madore were notified ofthis secretmeeting as mandated by RCW 42.30.060, making any vote taken in such a meeting null and void. Mielke seems to argue thatbecause the Dean contract was executed, Boldt, Olson, and Stewart had to have met secretly to approve it. There is no direct evidence such a secret meeting occurred, but Mielke is correct that the record does not definitively establish whenthe Board discussed hiring an independent investigator, whether this was in a public meeting or executive session, whetherthe Boardheld a formal vote, or whetherthe county manager made the decision. Boldt, Olson, and Stewart's statements as to the nature and timing ofthe discussion appear to conflict.4 Horne statedthathe knew "four members

... specifically voted in favor ofgoing forward withth[e] investigation," but it is not clear whether

4See, e.g., CP at 404 (Boldt, Olson, and Stewart state that "no investigation was needed"), 191, 196-97 (Stewart statedthatthe Board discussed the independent investigator at executive session and that Madore was present), 195 (Boldt statedthat the Board had "talked about th[e] investigation for a month or more ... [;] itwas held in open session"), 202 (Olson noted the contract was preapproved by the Board). 9

### In re Recallof MarcBoldt, et al., No. 93522-0 he meant "voting" inthe context ofthe OPMA. CP at 203. And McCauley states that he alone decided to pursue an independent investigator and hire Dean. Assuming that Mielke is correct that there was an impropervote held in executive session, this alone is not a recallable offense. Where a recall petition alleges that an "official committed an unlawful act, factual sufficiency also requires that thepetition contain a factual basis for boththeproposition that the official intendedto commit the act 

### and 'thatthe official intended to act unlawfully."' 

### In reRecallof Heiberg, 171 Wn.2d 771, 778, 257 P.3d 565 (2011) (quoting

### In re Recallof Pearsall-Stipek, 136 Wn.2d 255, 263, 961 P.2d 343 (1998)). Ifa board member believed that he or she was acting appropriatelyunder the law, he or she is not subject to civil penaltyunderthe OPMA. RCW 42.30.120; 

### see also Cathcart v. Andersen, 10 Wn. App. 429, 436-37, 517 P.2d 980 (1974) (civil penalties not appropriate where uncontroverted affidavits established that attorney general advised law school faculty thatmeetings did not violate the OPMA). 

### But cfIn reRecallof Davis, 164 Wn.2d 361,371-72, 193 P.2d 98 (2008) (a contract entered outside ofa public meeting, when the signatory exceeded the scope ofher legal authority, is a legally sufficient ground for recall). Boldt, Olson, and Stewart's uncontroverted statements establishthatthey relied on the county attorney's advice regarding the "unique" legal situation facing the Board and that they did not thinktheywere violating any rule. CP at 199-203. 10In re Recall of Marc Boldt, etal., No. 93522-0 Because Boldt, Olson, and Stewart relied on legal advice and believedthey were acting in accordance with the law, they did not knowingly violate the OPMA. See Wasson, 149 Wn.2d at 791 ("[T]he facts must showthatthe official intended to violate the OPMA." (citingIn re Recall of Anderson, 131 Wn.2d 92, 95, 929 P.2d 410 (1997))). Mielke also argues thatBoldt, Olson, and Stewart violated their oath of office by allowing McCauley to contravene the county code when he failed to post the Dean contract on the county website as required by Clark County Code 2.09.030(2). Br. ofAppellant at 11. The county code states that (1) The county manager is authorizedto execute contracts in the amounts and subject areas set forth below for:

(a) Contracts for the procurement ofprofessional services notto exceed two hundred thousand dollars ($200,000) upon compliance with all other applicable state and federal laws. Professional service contracts funded by the general fund in an amount exceeding one hundred thousand dollars ($100,000) shall require prior council approval. CLARK COUNTY CODE 2.09.030. The chapter goes onto require that (2) Prior to the execution ofany contract subjectto subsection (1) ofthis section, the county manager willpublish all contracts andstaff reports on the Clark County website including a swnmary ofthe contract purpose, funding sources, and contractterm. The county managerwill also provide a copy ofthe staffreports and/or contracts to county councilors for their review and will not execute the documents for one week to provide any councilor an opportunity to review and request individual consideration ofa document priorto execution. Contracts signaled for individual consideration will be approved by a majority vote ofthe council at a public meeting. 11In re Recall of MarcBoldt, et al., No. 93522-0

CLARK COUNTY CODE 2.09.030(2) (emphasis added). McCauley stated that hebelieved he was notrequired to post the Dean contract onthe county website5 because (1) hebelieved itwas withinhis authority

as executive to execute the contract alone, (2) it contained sensitive and confidential information, and (3) notposting it was consistent withhis past practices involving contracts for investigations ofcounty employees. Mielke asserts that Horne admitted wrongdoing when he stated at a public meeting that the contract "wasn'tposted on the grid, and the Ordinance [Clark County Code 2.09.030(2)] requires it to beposted onthe grid." Br. ofAppellant at 11 (emphasis omitted) (citing CP at 199). However, this mischaracterizes Horne's full statement. Horne went on to explain that the sihlation facing the Board consisted of"unique" issues not contemplated bythe county code. He explained that the code did not require the Dean contract to bepreapproved by the Board and characterized the contract as "pre-approved." CP at 199. Nor did the code contemplate the current legal situation-an employment action against a sitting councilor (i.e., Madore). Although McCauleymayhave exceeded his authorityby failing to postthe Dean contract to the countywebsite, this does not make Boldt, Olson, or Stewart subjectto recall since theybelieved McCauleyhad authority and they relied on

5 Clark Countymaintains a websiteto post documents for public access. This website is referred to as "'The Grid. "' CP at 83 n.2. Two grids exist: one for Board documents and another for proposed contracts. 12

### In re Recallof Marc Boldt, eta!., No. 93522-0 legal advice. 

### CfDavis, 164 Wn.2d at 371-72. We affirm the trialjudge's conclusion that this allegation is insufficient to sustain a recall. II. NEWSPAPER OF RECORD Mielke argues that Boldt, Olson, and Stewart grossly wasted public funds by awarding the county's newspaper ofrecord contractto 

### The Columbian instead of 

### The Reflector "as a reward for the aggressive attacks on their political opponents Madore and Mielke." Br. ofAppellant at 25. Though Mielke did not argue this issue at the sufficiency hearing, we may nevertheless acceptreview ofclaimed

errors not appealed as a matter ofright. CP at 558 (attrial, Mielke's attorney conceded "thatthe case law does establish the discretion" ofthe legal newspaper contract but wishedto preserve the issue for appeal); 

### State v. 

### Blazina, 182 Wn.2d 827, 834-35, 344 P.3d 680 (2015) (citing

### State v. 

### Russell, 171 Wn.2d 118, 122, 249 P.3d 604 (2011)). Counties must designate a newspaperto serve as the official newspaper of record, and the "county legislative authority shall letthe contractto the best and lowestresponsible bidder, giving consideration to the question ofcirculation in awarding the contract, with a view to giving publication ofnotices the widest publicity." RCW 36.72.075. Mielke contends that this provisionprovides "little discretion" to decision-makers in awarding the newspaper contract. Br. of Appellant at 23. He largely focuses on the "lowest" bidder language in the statute, 13

### In reRecall of Marc Boldt, etal., No. 93522-0 arguing that Boldt, Olson, and Stewartvoted for the more expensive newspaper "quidpro quo" for negative editorial coverage ofMielke and Madore. 

### !d. at 23 (citing CP at 433); CP at 96-99. RCW 36.72.075 does not define the term "best and lowestresponsible bidder." '"The determination ofthe municipal officials concerning the lowest responsible bidder will notbe disturbedby the courts, unless it is shown to have been influenced by fraud, or unless it is an arbitrary, unreasonable misuse of discretion."' 

### Chandler, 103 Wn.2d at 275 (quoting 10 EUGENEMCQUILLIN, MUNICIPAL CORPORATIONS§ 29.73, at 398 (3drev. ed. 1981)). This court held in 1939 that counties have discretion in selecting an official newspaper. 

### King County

v. Superior Court, 199 Wash. 591, 

### 92 P.2d 694 (1939) (paper upheld as official county newspaper despite its limited circulation and being publishedby a political group). The plain meaning ofthe statute supports this view. The meaning ofa statute is a question oflaw reviewed de novo. 

### State v. JM, 144 Wn.2d 472,480,28 P.3d 720 (2001) (citing 

### Cockle v. Dep'tof Labor & 

### Indus., 142 Wn.2d 801, 807, 16 P.3d 583 (2001)). Ifa statute's meaning is plain

on its face, courts give effect to that meaning. 

### !d. (citing 

### State v. Chapman, 140 Wn.2d 436, 450, 998 P.2d 282 (2000)). Ifthe language is ambiguous or unclear, courts may lookto the statutory scheme as a whole or related statutes. 

### Dep 't of Ecology v. Campbell & 

### Gwinn, LLC, 146 Wn.2d 1, 10, 43 P.3d 4 (2002). 14

### In re Recall of Marc Boldt, etal., No. 93522-0 RCW 36.72.075 requires thatthe "best and lowest responsible bidder" be selected, while also considering circulation andpublicity. This statute does not require a county to select its newspaper based solely onthe lowest monetary bid. In fact, it requires decision-makers to balance cost with other factors. Here, the Clark Countypurchasing manager informed the Boardthatthe previous newspaper ofrecord, 

### The Reflector, had compromised the County's publishing deadlines, would require duplicate postings in other local papers, and in total would increase publishing costs. In light ofthis information, Boldt, Olson, and Stewart didnot improperly exercise discretion in voting for 

### The Columbian and this allegation was not a basis for recall. 

### In re Recall of Reed, 156 Wn.2d 53, 59, 124 P.3d 279 (2005) ("an elected official cannotbe recalled for appropriately exercising the discretion granted him or her by law" (citing

### Kast, 144 Wn.2d at 815)); 

### Chandler, 103 Wn.2d at 275. This charge was properly dismissed. III. DISSOLUTION OF THE DEPARTMENT OF ENVIRONMENTAL SERVICES Lastly, Mielke argues thatBoldt, Olson, and Stewart abandoned their legislative responsibilities by allowing McCauley to dissolve the county's Department ofEnvironmental Services without requiring a vote by the Board as required by RCW 36.40.100. Essentially, Mielke contends that because the Board sets a department's budget, only the Board can transfer orrevise that department. ButMcCauley 15

### In reRecall ofMarcBoldt, et al., No. 93522-0 testified that as manager, he had authority to reorganize administrative departments such as the Department ofEnvironmental Services andhe did not need the Board's consent even to eliminate the department. Boldt, Olson, and Stewart state that they did not take part in ordirect McCauleyregarding the reorganization. The councilors believed McCauleyhad authority underthe Clark County Charterto dissolve or reorganize administrative departments. Even assuming, without deciding, that McCauley lacked authority to reorganize a county department, there is no evidence that Boldt, Olson, or Stewart intended to violate the law. 

### In re Recall ofCarkeek, 156 Wn.2d 469, 474, 128 P.3d 1231 (2006) ("while some inferences arepermissible, ' [ o]nthe whole, the facts must indicate an intention to violate the law"' (alteration in original) (quoting

### In re Recall ofFeetham, 149 Wn.2d 860, 865, 72 P.3d 741 (2003))). Thus, this charge is not legally sufficient and was properly dismissed. This charge is not legally sufficient to support the recall action. 6

6 Mielke also appeals the trial court's conclusionthathe lacked standing to recall Olson. The Washington State ConstihJtionprovides that apublic official is subjectto recall "bythe legal voters oftbe state, or ofthepoliticalsubdivision oftbe state." CONST. art. I,§ 33 (emphasis added). "Political subdivision" is not defined inRCW 29A.56.110 (codifying CONST. art. I, § 33). Respondents contend that Teaford controls, urging tbis court to conclude tbat a "political subdivision"means an "officer's constituency." 104 Wn.2d at 583. Teaford states that an "officer's constituency can initiaterecall proceedings" under article I, section 33. ld. (emphasis added). Butthe Teaford court did not conclude that only an officer's constituencyin a political subdivision caninitiate a recall action. Indeed, this appears to be an issue offirst impression. As ProfessorHugh Spitzernotes, a ''political st!bdivision" is "aconceptthat is defined differently in at leasthalfdozen statutesbutis used muchmore frequently in an undefined way." Hugh Spitzer,A Local GovernmentByAny OtherName, PROCEEDINGS OFWASH. STATE Assoc. OF MUN. ATT'YS 7-7 to 7-8 (2009), http://mrsc.org/getmedia/D2F2FDF4-·9C9C-4D03-8945- 16In re Recall of Marc Boldt, eta!., 

### No. 93522-0 

### IV. COSTS 

### Boldt, Olson, and Stewart argue that the recall allegations are frivolous and that they are entitledto compensatory damages under RAP 18.9(a). An appeal is frivolous if, considering the whole record, the court is convincedthere are no debatable issues on which reasonable minds may differ and it is totally devoid of merit. Fay v. Nw. Airlines, Inc., 

### 115 Wn.2d 194, 200-01, 796 P.2d 412 (1990) (citing Green River Cmty. Call. Dist. No. 10 v. Higher Educ. Pers. Bd., 

### 107 Wn.2d 427, 442-43, 730 P.2d 653 (1986)). Mielke's allegations, while insufficientto sustain a recall petition, were not so totally devoid ofmerit such that there was no possibility ofreversal. This appeal was not frivolous. Furthermore, "arecall petitioner should not be made to pay an elected official's attorney fees merely because the petitioner has brought a 'frivolous recall petition."' Pearsall-Stipek, 

### 141 Wn.2d at 783 (quoting Pearsall-Stipek, 

### 136 Wn.2d at 267). Boldt, Olson, and Stewart also seek costs under RAP 14.2-14.4 as the substantially prevailing party onreview. Mielke's allegations are legally and factually insufficientto sustain recall charges, and Boldt, Olson, and Stewart substantially prevailed on appeal. See Salomi OwnersAss 'n v. Satomi, LLC, 

### 167 Wn.2d 781, 817,225 P.3d 213 (2009) (citing RAP 14.2). Therefore, we award

OAl07182A50B/wsama534-7.aspx [https://perma.cc/SG6R-9U7V]. It is not necessary for us to resolve this issue here and we decline to reach it. 

### 17In re Recall of Marc Boldt, et al., No. 93522-0 them costs on appeal, to be determined by the commissioner or clerk in accordance with RAP 14.6. CONCLUSION Mielke's recall charges are insufficientto proceed to the voters. We affirm the superior court's dismissal ofthe recall petition and award Boldt, Olson, and Stewmicosts on appeal.

18In re Recall of Marc Boldt, etal., No. 93522-0

WE CONCUR:

19