COLUMN > From the Spindle
BY BRYAN HARNETIAUX AND VALERIE MCOMIE
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Legal Sufficiency of Recall Petition Against Gov. Jay Inslee for Proclamations Issued in Response to the COVID-19 Pandemic
In the Matter of the Recall of Inslee, 199 Wn.2d 416 (April 28, 2022), the Supreme Court considered the sufficiency of a recall petition asserting a number of challenges to proclamations issued by Gov. Jay Inslee in response to the COVID-19 pandemic. Under Washington law, an elected official may be subject to voter recall if he or she commits acts of misfeasance or malfeasance or violates the oath of office. Id. at 424. When an official exercises discretionary authority, such discretionary acts are subject to recall only upon a showing that the discretion was exercised in a manifestly unreasonable manner. Id. at 425.
Petitioner C. Davis asserted that Gov. Inslee exceeded his authority in issuing numerous executive proclamations. Id. at 420-21 & nn.1-6. The ballot synopsis prepared by the Washington state attorney general summarized the charges as follows:
1. Governor Inslee violated constitutional religious freedom guarantees by issuing Proclamation 20-25 (Feb. 20, 2020), “Stay Home – Stay Healthy,” which prohibited gatherings in Washington in response to the COVID-19 pandemic.
2. Governor Inslee violated the constitutional separation of powers by issuing Proclamation 20-19 (March 18, 2020), “Evictions,” which prohibited landlords from initiating judicial actions for writs of restitution involving dwellings for failure of tenants to timely pay rent.
3. Governor Inslee violated constitutional rights to petition the government for redress of grievances and to peaceably assemble by issuing Proclamation 20-28 (March 24, 2020), which prohibited public agencies from conducting in-person meetings and suspended certain provisions of the Open Public Meetings Act.
4. Governor Inslee violated the constitutional right to peaceably assemble by limiting the size of in-person gatherings through Proclamations 20-05 (Feb. 29, 2020), 20-06 (March 10, 2020), 20-07 (March 11, 2020), and 20-11 (March 13, 2020), and subsequent proclamations.
5. Governor Inslee issued emergency proclamations related to the COVID-19 pandemic without finding that a public disorder, disaster, energy emergency, or riot existed in Washington State due to COVID-19.
Id. at 423.
The superior court deemed all the charges factually and legally insufficient. Id. Davis sought direct review, and, in a unanimous opinion by Justice Stephens, the Supreme Court affirmed. See id. at 419. Davis abandoned charge 1 in the Supreme Court, so the court only reviewed the validity of charges 2 through 5. See id. at 424. It found the petitioner’s remaining challenges lacking under governing standards, concluding:
Governor Inslee has used his discretion to navigate this pandemic, making difficult decisions in an effort to balance the health and safety of Washingtonians with their individual liberties. While reasonable minds may disagree with the governor’s discretionary decisions, such disagreement is insufficient to support a recall. We hold the charges are legally and factually insufficient and affirm the superior court order dismissing the recall petition.
Id. at 434 (citation omitted).
Constitutional Validity of Requirement of Certificate of Merit in RCW 7.70.150 for Medical Negligence Actions Asserted against State Defendants
In Martin v. State (slip op. # 100103-7, decided May 26, 2022), the Supreme Court considered whether the requirement in RCW 7.70.150 that plaintiffs filing medical negligence actions provide a “certificate of merit”—which the court previously invalidated in a case involving a private defendant in Putman v. Wenatchee Valley Med. Ctr., 166 Wn.2d 974, 977-78 (2009)—could be constitutionally applied to a suit against a state defendant.11 Valerie McOmie is one of the co-coordinators of the Washington State Association for Justice Foundation Amicus Program. As co-counsel, she submitted an amicus curiae brief in the Washington Supreme Court in Martin on behalf of the Foundation. Ms. McOmie’s comments in this article are purely her own and do not reflect the views of the Foundation. Timothy Martin, an inmate at a state correctional institution, sued the Washington State Department of Corrections. Martin asserted federal civil rights claims and a state medical negligence claim based on injuries he allegedly suffered as the result of negligent medical care while incarcerated. Martin, slip op. at 3-6. After removing the case to federal court, the State moved for summary judgment on a number of bases, including that Martin failed to file a certificate of merit. Id. at 6. Ultimately, the district court certified questions of state law to the Washington Supreme Court regarding the constitutionality of RCW 7.70.150, either facially or as applied to a state defendant. Id. at 7.
Enacted in 2006, RCW 7.70.150 requires a plaintiff in a medical negligence action to file a certificate of merit, executed by a health care provider who qualifies as a medical expert, attesting that in his/her/their opinion “there is a reasonable probability” that the defendant in the action failed to comply with the accepted standard of care. RCW 7.70.150; see also Martin, slip op. at 7-8. In Putman, a medical negligence action brought against a private health care provider, the court invalidated this requirement on two grounds. First, it held that the provision violated the right of access to courts guaranteed by Wash. Const. art. I, § 10, because it threatens to extinguish potentially meritorious claims without allowing discovery, an essential tool for pursuing a cause of action. Putman, 166 Wn.2d at 979. Second, the court held that the requirement violated the separation of powers principle implicit in the Washington Constitution. Id. at 985. This principle recognizes that the court, not the Legislature, is generally authorized to establish procedural rules governing causes of action. Because the certificate of merit requirement constituted a legislative procedural rule that conflicted with the court’s procedural rules, it violated this principle. The court in Putman did not reach the question of the constitutionality of the statute as applied to a state defendant.
Before the Supreme Court in Martin, the State urged that Putman should be read as a limited decision applying only to claims against private defendants. It cited Wash. Const. art. II, § 26, which authorizes the Legislature to “direct by law, in what manner, and what courts, suits may be brought against the state.” The State argued that while the certificate of merit requirement as applied to private defendants was properly deemed invalid, the principle of sovereign immunity embodied in art. II, § 26, permits the Legislature to set rules governing suits against the State.
In a unanimous opinion authored by Justice Johnson, the Supreme Court held that the certificate of merit requirement is facially invalid. Martin, slip op. at 2. Regarding the State’s sovereign immunity argument, the court reasoned that whatever authority the Legislature may have to impose a certificate of merit requirement on plaintiffs asserting claims against state defendants, here there is no evidence of legislative intent to craft a particular rule uniquely applicable to such actions. Id. at 12-13. The court noted that the Legislature’s broad waiver of sovereign immunity subjects the State to actions based on its tortious conduct “to the same extent” as private entities. RCW 4.92.090. It concluded that
“[b]ecause the statutory language does not apply explicitly to State defendants,” slip op. at 14, art. II, § 26-type immunity is inapplicable, and the certificate requirement is unconstitutional as to all defendants, private or governmental. Id.
Proper Standard for Determining Whether a Criminal Defendant was “Seized” Under Wash. Const. Art. I, § 7, and Whether the Analysis Should Include the Race and Ethnicity of the Defendant
In State v. Sum (slip op. # 99730-6, decided June 9, 2022), Palla Sum, an Asian/Pacific Islander, was charged and convicted of unlawful possession of a firearm in the first degree, attempting to elude a pursuing police vehicle, and making a false or misleading statement to a public servant. Slip op. at 6. Prior to trial, Sum unsuccessfully moved to suppress certain evidence, arguing that at the time the evidence was obtained, he had been “seized” by the law enforcement officer, and that the evidence collected therefrom must be suppressed because the officer lacked a warrant or reasonable suspicion. Id. at 7. The superior court held no seizure occurred, and the Court of Appeals affirmed by unpublished opinion. Id.
Sum sought review in the Washington Supreme Court, reiterating his arguments below and urging, for the first time, that the race of the person detained by police is a relevant factor in evaluating whether the police contact constituted a seizure under Wash. Const. art. I, § 7, prohibiting unlawful searches and seizures. The court granted review. Id. at 7-8.
In a unanimous opinion authored by Justice Yu, the court first acknowledged that “[i]t is long past time for this court to explicitly determine whether the race and ethnicity of an allegedly seized person are relevant to the determination of whether a seizure occurred.” Id. at 12. The court concluded that, under art. I, § 7, a defendant’s race and ethnicity are proper considerations under the objective test developed by previous case law. See id. at 2, 12, 18, 31.22 The court did not address this issue under the Fourth Amendment to the United States Constitution. See Sum, slip op. at 8-9 & n.2. The court addressed the merits of the issue despite the State’s concession that, under art. I, § 7, the seizure determination must include consideration of the person’s race and ethnicity. See id. at 12-13. The court held:
[W]e now clarify that a person is seized for purposes of article I, section 7 if, based on the totality of the circumstances, an objective observer could conclude that the person was not free to leave, to refuse a request, or to otherwise terminate the encounter due to law enforcement’s display of authority or use of physical force. For purposes of this analysis, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in disproportionate police contacts, investigative seizures, and uses of force against Black, Indigenous, and other People of Color (BIPOC) in Washington. Finally, in accordance with our precedent, if the person shows there is a seizure, then the burden shifts to the State to prove that the seizure was lawfully justified by a warrant or an applicable exception to the warrant requirement.…
[W]e hold that an allegedly seized person’s race and ethnicity are relevant to the question of whether they were seized by law enforcement for purposes of article I, section 7.
Id. at 2-3, 12. In reaching this result, the court’s analysis drew upon the protections provided in Washington State Court Rule GR 37, addressing the issue of implicit racial bias in the exercise of peremptory challenges in jury selection. See id. at 15-16, 18, 24-31.
Having clarified that the objective “totality of the circumstances” test must include consideration of race and ethnicity, the court examined the facts in this case and determined that Sum had been unlawfully seized, requiring that certain evidence be suppressed. The court reversed the Court of Appeals and remanded the case to the superior court for further proceedings consistent with the opinion. See id. at 3, 35-36.
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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.
NOTES
1. Valerie McOmie is one of the co-coordinators of the Washington State Association for Justice Foundation Amicus Program. As co-counsel, she submitted an amicus curiae brief in the Washington Supreme Court in Martin on behalf of the Foundation. Ms. McOmie’s comments in this article are purely her own and do not reflect the views of the Foundation.
2. The court did not address this issue under the Fourth Amendment to the United States Constitution. See Sum, slip op. at 8-9 & n.2. The court addressed the merits of the issue despite the State’s concession that, under art. I, § 7, the seizure determination must include consideration of the person’s race and ethnicity. See id. at 12-13.