COLUMN > From the Spindle
BY BRYAN HARNETIAUX
Legal Sufficiency of Recall Petition Against County Sheriff for Remarks Critical of Governor’s COVID-19 Proclamation
In the Matter of the Recall of Fortney, ___ Wn.2d ____ (slip op. #98683-5, decided Jan. 14, 2021), involves the question of the sufficiency of a recall petition against Snohomish County Sheriff Adam Fortney. Washington law allows voters a right to recall non-judicial elected officials who commit acts of malfeasance or misfeasance, or violate an oath of office. See Fortney, slip op. at 4; Wash. Const. Art. I, §33; Ch. 29A.56 RCW. Four Snohomish County voters brought a total of five recall charges against Fortney in May 2020, two of which related to public statements he made regarding Gov. Jay Inslee’s “Stay Home, Stay Healthy” proclamation regarding handling of the COVID-19 pandemic. See Fortney, slip op. at 1-4. The superior court upheld four of the five charges, including the two related to the COVID-19 proclamation. On appeal to the Supreme Court, Fortney did not challenge the sufficiency of the charge based on his stated refusal to enforce the Stay Home, Stay Healthy proclamation.11 This proclamation temporarily closed nonessential businesses and prohibited non-essential travel and activities. See Fortney, slip op. at 6. He did challenge the remaining three viable charges, including one accusing him of inciting the public to violate Gov. Inslee’s Stay Home, Stay Healthy proclamation. See id. at 3, 4. On de novo review, the Supreme Court was required to determine whether the recall charges were legally and factually sufficient. See id. at 5.
In a 6-3 opinion, the court upheld the legal and factual sufficiency of the COVID-19 “incitement” charge.22 The Supreme Court reversed in part the superior court determination on the other two charges unrelated to COVID-19, which are not addressed further here. See id. at 13-22. The majority described Fortney’s anti-proclamation public statements as follows:
Fortney unambiguously proclaimed that the Stay Home, Stay Healthy proclamation was unconstitutional and that the governor’s judgment should be questioned, and he advocated that residents had the right to work. Fortney specifically directed his message to Snohomish “business owners,” declaring that “it is time to open up this freedom [to work]” for “small business owners,” and it was “time to lead the way.”
Id. at 8-9 (record citation omitted).
After extended analysis, the majority concluded that “[w]e agree with the trial court’s determination that a voter could reasonably conclude that Fortney’s specific words ‘incit[ed] folks to violate the stay-at-home order’.” Id. at 9 (record citation omitted). Ultimately, the majority determined it was a question for the voters whether Fortney’s public acts constituted misfeasance, malfeasance, or violation of his oath of office, and allowed this recall charge to proceed to the signature-gathering phase. See id. at 8-13, 22-23.33 The court acknowledged that while a county sheriff has a great deal of discretion in enforcing the laws, he must not exercise that discretion in a “manifestly unreasonable manner,” and that on this record that question was for the voters to resolve. See Fortney, slip op. at 9-10.
A three-justice concurrence/dissent principally asserted that Fortney’s public comments regarding the governor’s proclamation did not amount to incitement to violate or nullify the law, but were mere public pronouncements outlining his enforcement policy. See Fortney, Gordon McCloud, J., concurring/dissenting, slip op. at 7.44 The Supreme Court has also addressed, in two other recent cases, the legal and factual sufficiency of recall charges against public officials based upon criticisms of executive branch proclamations or orders involving the COVID-19 crisis. See In re Recall of White, 196 Wn.2d 492 (2020) (finding recall charge against a city councilman based on criticism of the state’s COVID-19 response insufficient); In re Recall of Snaza, ___ Wn.2d _____ (slip op. #98918-4, decided Feb. 11, 2021) (finding recall charge based upon a county sheriff’s press release that he would not criminally enforce a State Secretary of Health COVID-19 order legally and factually insufficient).
Viability of Tort Claim for Negligent Performance of Law Enforcement Activities
In Mancini v. City of Tacoma, et al., ___ Wn.2d. ___ (slip op. #97583-3, decided Jan. 28, 2021), Mancini brought a civil action against the city for mistakenly executing a search warrant at her apartment. City of Tacoma police officers obtained a search warrant for suspect Logstrom’s person, vehicle, and what was purported to be his apartment. Eight officers executed the search warrant on that apartment using a battering ram, and with guns drawn. As it turns out, the officers executed the warrant on Mancini’s apartment. It was later determined that Logstrom lived in another apartment in a nearby building. See Mancini, slip op. at 1-4. In the course of executing the warrant, the officers handcuffed Mancini, dragged her out of the apartment in her nightgown, and denied her request to put on her shoes. She was released within about 15 minutes and advised that the officers had raided the wrong apartment. See id. at 5.
Mancini sued the city, et al, for negligence and other tort claims. The city apparently successfully argued at the superior court that it breached no duty owed to Mancini, and that, to the extent her claim was based upon “negligent investigation,” such a claim is not recognized under Washington law. The Court of Appeals reversed and remanded, finding viable claims existed centered on execution of the warrant, rejecting the city’s attempt to cast the negligence claim as one for negligent investigation. See id. at 7-8.
On remand, the case was tried to a jury under theories of negligence, invasion of privacy, false imprisonment, and assault and battery. Mancini only prevailed on the negligence claim. See id. at 11. The jury was given a standard instruction defining negligence as the failure to exercise ordinary care, and the verdict form did not include special interrogatories requiring the jury to specify the basis for any negligence finding. The jury returned a verdict for Mancini on the negligence claim and awarded $250,000. See id.
On appeal, the Court of Appeals reversed, concluding that the case was tried as a negligent investigation claim, not cognizable under Washington law. See id. at 11-12. The Supreme Court granted review on whether the city’s CR 50 motion for a directed verdict on the negligence claim should have been granted under the circumstances. See id. at 12.
In an 8-1 opinion, the Supreme Court upheld the negligence verdict against the city. See id. at 15, 28. In the course of its analysis, and despite the fact that Mancini emphasized the inadequacy of the underlying police investigation throughout the trial, the court recognized that Washington law allows for potential tort liability for negligent performance of law enforcement duties, and extended this liability to situations involving negligence in the execution of a search warrant. See id. at 14, 16-17. In so doing, the court held law enforcement officers to a duty of ordinary care. See id. at 17 & n.8.55 The majority disagreed with the dissent that a plaintiff’s proof of negligence must be supported by law enforcement expert testimony, concluding a jury is capable of deciding whether a law enforcement officer’s conduct is unreasonable under the circumstances. See Mancini, slip op. at 27 n.13, & Madsen, J., dissenting, slip op. at 1, 5 (urging “reasonably prudent police officer” standard). The court found there was substantial evidence supporting the jury verdict of negligence based upon the execution of the search warrant. See id. at 21, 25-28.66 In upholding the verdict, the court also rejected the city’s arguments based upon discretionary immunity and application of the public duty doctrine. See Mancini, slip op. at 21-25. In resolving the appeal, the court was careful to leave open the question of whether it will recognize a claim for negligent investigation against law enforcement officers. See id. at 15 & n.7.77 While the Supreme Court recognized that the Court of Appeals has denied recovery based upon a theory of negligent police investigation, it noted that it has not authoritatively ruled on this question outside of the child abuse context. See Mancini, slip op. at 15 n.7.
Post-Conviction Relief—Availability of Equitable Tolling Doctrine to Overcome a Criminal Defendant’s Untimely Personal Restraint Petition
In In re Fowler, ___ Wn.2d ____ (slip op. #97456-0, decided Feb. 4, 2021), petitioner Fowler sought to avoid dismissal of a personal restraint petition seeking post-conviction relief due to untimeliness by invoking the doctrine of equitable tolling. Under Washington law, Fowler had one year from the time his criminal judgment became final to seek habeas-type relief via a personal restraint petition. See Fowler, slip op. at 1; RCW 10.73.090-.100. The Court of Appeals rejected Fowler’s argument that his belated filing should be subject to “equitable tolling” because his former attorney had egregiously failed to pursue timely post-conviction relief on his behalf. It concluded that “equitable tolling applies only when a petitioner asserts bad faith, deception, or false assurances by the opposing party. …” Id. at 5.
The Supreme Court granted review on the unresolved question of whether a claim of equitable tolling can be based upon the conduct of the petitioner’s own legal counsel. See id. at 7-9. In a 6-3 opinion, the court held that equitable tolling can be based on egregious misconduct by the petitioner’s own attorney and that Fowler’s original legal counsel’s complete failure to prepare and file a timely personal restraint petition was an extraordinary circumstance; it further found that Fowler had acted diligently in seeking to remedy this failure. See id. at 10-11.88 In reaching this result, the court clarified that petitioners seeking to establish equitable tolling bear the burden of showing “(1) that they diligently pursued their rights and (2) that an extraordinary circumstance prevented a timely filing.” Id. at 8 (citation omitted). Consequently, Fowler’s belatedly filed personal restraint petition was deemed timely, and the case was remanded for consideration on the merits. See id. at 13.99 The three-justice dissent questioned the substantive equitable tolling standard articulated by the majority, and also disagreed with its determination that Fowler had acted with due diligence. See Fowler, Whitner, J., dissenting, slip op. at 1-2.
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SIDEBAR
What is a ‘Spindle?’
To this day, in the Temple of Justice hallway between the clerk’s office and the courtroom, there’s a spindle on top of a wooden lectern where on any Thursday the Supreme Court’s newly issued opinions are placed for public viewing. This is the paper version of the “slip opinion” of the court. In the “old days,” before the internet, the press and media, or members of the public, would have to check the spindle to quickly access the latest decisions from the court. Although we now all have near-instant access to the court’s decisions via cyberspace, for reasons that seem more ceremonial than practical, the spindle remains—a small relic and enduring symbol of the open administration of justice. Caveat: This column is based on slip opinions of the court, which are not necessarily the court’s final decisions and are subject to change; the official opinions of the court are those published in the Washington Reports.
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NOTES
1. This proclamation temporarily closed nonessential businesses and prohibited non-essential travel and activities. See Fortney, slip op. at 6.
2. The Supreme Court reversed in part the superior court determination on the other two charges unrelated to COVID-19, which are not addressed further here. See id. at 13-22.
3. The court acknowledged that while a county sheriff has a great deal of discretion in enforcing the laws, he must not exercise that discretion in a “manifestly unreasonable manner,” and that on this record that question was for the voters to resolve. See Fortney, slip op. at 9-10.
4. The Supreme Court has also addressed, in two other recent cases, the legal and factual sufficiency of recall charges against public officials based upon criticisms of executive branch proclamations or orders involving the COVID-19 crisis. See In re Recall of White, 196 Wn.2d 492 (2020) (finding recall charge against a city councilman based on criticism of the state’s COVID-19 response insufficient); In re Recall of Snaza, ___ Wn.2d _____ (slip op. #98918-4, decided Feb. 11, 2021) (finding recall charge based upon a county sheriff’s press release that he would not criminally enforce a State Secretary of Health COVID-19 order legally and factually insufficient).
5. The majority disagreed with the dissent that a plaintiff’s proof of negligence must be supported by law enforcement expert testimony, concluding a jury is capable of deciding whether a law enforcement officer’s conduct is unreasonable under the circumstances. See Mancini, slip op. at 27 n.13, & Madsen, J., dissenting, slip op. at 1, 5 (urging “reasonably prudent police officer” standard).
6. In upholding the verdict, the court also rejected the city’s arguments based upon discretionary immunity and application of the public duty doctrine. See Mancini, slip op. at 21-25.
7. While the Supreme Court recognized that the Court of Appeals has denied recovery based upon a theory of negligent police investigation, it noted that it has not authoritatively ruled on this question outside of the child abuse context. See Mancini, slip op. at 15 n.7.
8. In reaching this result, the court clarified that petitioners seeking to establish equitable tolling bear the burden of showing “(1) that they diligently pursued their rights and (2) that an extraordinary circumstance prevented a timely filing.” Id. at 8 (citation omitted).
9. The three-justice dissent questioned the substantive equitable tolling standard articulated by the majority, and also disagreed with its determination that Fowler had acted with due diligence. See Fowler, Whitner, J., dissenting, slip op. at 1-2.