Can Executive Official Be Removed from Office for "Inciting" Illegal Conduct?

Yes, when it comes to a recall in Washington State, even when the official is just being accused of violating his duties, not committing a crime.

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Under Washington law, executive officials can be recalled if enough voters petition, and then if a majority of voters so vote. But there has to be some allegation of "some act or acts of malfeasance or misfeasance while in office, or … violat[ion of] his oath of office," and courts can reject recall grounds if they don't adequately allege such misconduct. It's not like a normally scheduled election, where voters can throw the bums out for any reason they want. But it's also not like an impeachment process, which is supposed to involve a trial before legislators who decide whether an official's actions fit within the category of "high crimes and misdemeanors." [UPDATE: See the end of the post for some more on how recalls vary from state to state.]

This matter came up in an interesting context in yesterday's decision in In the Matter of Recall of Fortney (written by Justice Mary Yu):

[Snohomish County Sheriff Adam] Fortney's first four months in office were beset by multiple controversies….

The petitioners alleged [among other things]: (1) Fortney refused to enforce the governor's Stay Home – Stay Healthy proclamation, (2) Fortney incited members of the public to violate the Stay Home – Stay Healthy proclamation …. On appeal, Fortney does not challenge the sufficiency of the first charge and agrees to stand for recall on his refusal to enforce the Stay Home – Stay Healthy proclamation….

Washington voters have a constitutional right to recall nonjudicial elected officials who commit acts of malfeasance or misfeasance or violate an oath of office. For the purposes of recall:

(1) "Misfeasance" or "malfeasance" in office means any wrongful conduct that affects, interrupts, or interferes with the performance of official duty;

(a) Additionally, "misfeasance" in office means the performance of a duty in an improper manner; and

(b) Additionally, "malfeasance" in office means the commission of an unlawful act;

(2) "Violation of the oath of office" means the neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law.

The court's role is solely that of gatekeeper in reviewing recall petitions. As such, we do not review the truth of recall charges. It is the voters who must act as fact finders. Our judicial gatekeeping function ensures public officials are not subject to "frivolous or unsubstantiated charges." We therefore review petitions simply to determine if they are "legally and factually sufficient." …

On March 23, 2020, Fortney responded to [Governor Jay Inslee's] Stay Home – Stay Healthy [COVID-19 shutdown order], utilizing the official Snohomish County Sheriff's Office Facebook page. He stated in part, "As your elected sheriff, I have no intention of carrying out enforcement for a stay-at-home directive." On April 21, 2020, Fortney posted a lengthier statement. In that post, Fortney acknowledged the seriousness of COVID-19 but criticized Governor Inslee's response as unconstitutional:

Snohomish County Residents and Business Owners, ….

I can no longer stay silent as I'm not even sure [Governor Inslee] knows what he is doing or knows what struggles Washingtonian's [sic] face right now….

As elected leaders I think we should be questioning the Governor when it makes sense to do so. Are pot shops really essential or did he allow them to stay in business because of the government taxes received from them? That seems like a reasonable question. If pot shops are essential, then why aren't gun shops essential? …

If this Coronavirus is so lethal and we have shut down our roaring economy to save lives, then it should be all or nothing. … [The Governor] is not prepared or ready to make these decisions. If we are going to allow government contractors and pot shops to continue to make a living for their families, then it is time to open up this freedom for other small business owners who are comfortable operating in the current climate. This is the great thing about freedom. If you are worried about getting sick you have the freedom to choose to stay home. If you need to make a living for your family and are comfortable doing so, you should have the freedom to do so.

As I have previously stated, I have not carried out any enforcement for the current … stay-at-home order…. I have received a lot of outreach from concerned members of our community asking if Governor Inslee's order is a violation of our constitutional rights.

As your Snohomish County Sheriff, yes I believe that preventing business owners to operate their businesses and provide for their families intrudes on our right to life, liberty and the pursuit of happiness….

As your elected Sheriff I will always put your constitutional rights above politics or popular opinion. We have the right to peaceably assemble. We have the right to keep and bear arms. We have the right to attend church service of any denomination. The impacts of COVID 19 no longer warrant the suspension of our constitutional rights.

Along with other elected Sheriffs around our state, the Snohomish County Sheriff's Office will not be enforcing an order preventing religious freedoms or constitutional rights. I strongly encourage each of you to reach out and contact your councilmembers, local leaders and state representatives to demand we allow businesses to begin reopening and allow our residents, all of them, to return to work if they choose to do so….

This is not a time to blindly follow, this is a time to lead the way.

Fortney's comments inspired a 79-year-old man to immediately reopen his Snohomish County barbershop in violation of the Stay Home – Stay Healthy proclamation, resulting in several community members lining up for haircuts without wearing masks or social distancing….

Fortney argues that the incitement charge is legally and factually insufficient because his refusal to enforce the law does not constitute inciting others to violate the law. Appellant's Fortney underestimates both the significance of his words and the power of his office.

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."

Fortney insists that he encouraged individuals only to contact their representatives. However, the record indicates he said much more, and Fortney's words can be reasonably interpreted as an exhortation for people to return to work. Moreover, petitioners provided evidence that Fortney's words had such an effect on a small business owner who opened the doors of his barbershop to a line of unmasked customers. We 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."

In combination with Fortney's statements, Fortney's express refusal to enforce the law could be interpreted as a catalyst for action. As the sitting sheriff, Fortney is the chief executive officer and conservator of the peace of Snohomish County. He is statutorily obligated to "defend the county against those who … endanger the public peace or safety" and "make complaint of all violations of the criminal law." Therefore, when Fortney, in his official capacity as "your Snohomish County Sheriff," stated—repeatedly and publicly—that he would not enforce Governor Inslee's proclamation and that it infringed on the right to work, he effectively nullified the law. Though Sheriff Fortney is entitled to a great deal of discretion in his enforcement decisions, he is still subject to recall if he uses his discretion in a "manifestly unreasonable manner." If Fortney leveraged his discretionary power to refuse to enforce the governor's proclamation with the objective of inciting noncompliance in the midst of a pandemic, the voters may determine that this was a manifestly unreasonable use of discretion….

That reasonable minds may disagree about the interpretation of Fortney's words is precisely why this charge should proceed to the voters. This court's gatekeeping is simply to ensure public officials are not subject to "frivolous or unsubstantiated charges," not to actually assess the truth of those charges…. Voters may reasonably conclude that Fortney abused his discretion by inciting Snohomish County residents to violate the law.

Fortney also argues the incitement charge should be reversed because he did not intend for people to violate the law. He contends that the term "incitement" refers to the accomplice liability statute, requiring the petitioners to prove Fortney had "knowledge" others would commit a crime. We disagree.

The petitioners do not accuse Fortney of engaging in criminal conduct …. As they indicate in their briefing, they merely use "incite" according to its plain, ordinary meaning to "move" people to action. The petitioners accuse Fortney of violating his statutory duties rather than of committing any legal crime, and thus, they were not required to demonstrate intent….

Fortney has not simply expressed "disagreement or criticism" of the law, which he is entitled to do as a matter of free speech. Rather, he stands accused of using a professional Facebook account and the official page of the Snohomish County Sheriff's Office to leverage his enforcement authority as "your elected Sheriff" to effectively nullify a state law. Fortney does not have the authority as Snohomish County sheriff to determine the constitutionality of laws. That is the role of the courts. Washington law explicitly forbids a sheriff from practicing law. While Fortney may be entitled to his private opinions as a citizen, he is not protected from the scrutiny of the voters when he uses the power of his office to effectuate his own legal conclusions….

{This court recently addressed a recall charge where a sitting city councilman used social media accounts to criticize the State's COVID-19 response. We concluded that a charge alleging the councilman encouraged citizens to disobey the law was insufficient in part because legislators, unlike those in the executive branch, do not have a duty to enforce public health orders.}

Justice Sheryl Gordon McCloud, joined by Justices Susan Owens and Raquel Montoya-Luis, dissented:

The majority holds that an elected sheriff cannot use his or her executive branch office to "nullify" a law, to enforce his or her own personal opinions about the constitutionality of a law, or to incite countywide disobedience of a law. I agree.

But the majority also recognizes that an elected sheriff can express disagreement with or criticism of a law. I agree with this, also. In addition, as I discuss further below, an elected sheriff possesses discretion about how to enforce the law and may ordinarily choose education or warnings over arrest or citation.

The difficult question in this case is whether Snohomish County Sheriff Adam Fortney's statements fell into the first, impermissible, category—which would make the petition sufficient to support recall for inciting lawlessness—or into the second, permissible category—which would not.

I part ways with the majority because I cannot agree that Fortney's public statements show complete "refusal to enforce the law" or countywide incitement to violate the law. Instead, taken as a whole, his statements show that he disagrees with the law, that he encourages people to oppose the law—especially by writing to elected officials—and that he chooses to enforce the law through education rather than arrest. Finally, and most critically for the "incitement" charge, Fortney's statements also show that he chose to make that enforcement decision public and transparent by posting it on social media….

Fortney stated the following about what he was specifically encouraging others to do:

"Along with other elected Sheriffs around our state, the Snohomish County Sheriff's Office will not be enforcing an order preventing religious freedoms or constitutional rights. I strongly encourage each of you to reach out and contact your councilmembers, local leaders and state representatives to demand we allow businesses to begin reopening and allow residents, all of them, to return to work if they choose to do so.

"The great thing about Snohomish County government is we have all worked very well together during this crisis. I'm not saying we agree all of the time, I'm saying we have the talent and ability to get this done for Snohomish County! This is not a time to blindly follow, this is a time to lead the way."

In other words, he was mainly encouraging people to contact their elected officials….

Fortney did not say that he meant residents should "lead the way" by returning to ordinary business in violation of the order. He did say that he meant residents should "lead the way" by voicing their dissatisfaction to their elected officials[:] "I strongly encourage each of you to reach out and contact your councilmembers, local leaders and state representatives to demand we allow businesses to begin reopening and allow our residents, all of them, to return to work if they choose to do so." …

And Fortney said more than just "lead the way." In context, he also publicly warned that "this virus is very real and sadly, it has taken 97 lives in Snohomish County." He also publicly stated that the virus "is a very serious issue and the appropriate precautions need to be taken to protect our most vulnerable populations." …

When one reads the allegations in context, the first charge alleges that Fortney failed to enforce and the second charge alleges that he publicized and promoted his supposed failure to enforce. The petition does not show that Forney manifestly abused his discretion in a manner that incited disobedience of the law. The second allegation is no more and no less than publication of Fortney's supposed failure to enforce, i.e., the first allegation. I would therefore hold that the incitement recall charge fails.

UPDATE: Joshua Spivak, founder of the Recall Elections Blog and Senior Fellow at the Hugh L. Carey Institute for Government Reform at Wagner College, passed along some perspective on the differences among state recall systems:

While there's a lot of diversity in recall laws, the major divide is between states with Political Recall laws and those, like Washington, that have what I call Malfeasance Standard recall laws, which require a specified statutory cause for the recall to proceed….

Of the states with the recall law for state level officials, 11 have political recall laws, and 9 have some form of a Malfeasance Standard (with wilding diverging rules, including a "Recall Trial" law in Virginia). Of the 45 (or 46, depending how you want to count the Arizona Governor recall/impeachment in 1988) state level recalls that have occurred in the US, only 1 happened in a Malfeasance Standard state. That was in Washington in 1981 over a state Senator who switched parties (which flipped control of the chamber). Washington has a looser Malfeasance Standard than, say, Minnesota (though not as loose as Alaska). So this is a very big barrier to recalls..

Here's a post I just wrote on California's recall law and it explains a little on the Malfeasance Standard. There's also a post about the recall in Missouri that goes in depth on the Malfeasance Standard.

 

 

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  1. Ugh, that dissent is a classic example of the difficulty many judges have of following a lower threshold for something.

    In England you have the same problem in administrative law, when a court is asked to judicially review an executive branch action. Technically, first they have to decide whether the claimant’s case is arguable, in order to give permission for JR, and proceed to the full claim only later. But in practice the permission stage and the merits stage often slip together (or are explicitly joined), because judges struggle to find that a claim is arguable but still wrong.

    1. The weird thing is judges have no problems with this concept at all in the area of sanctions law. There are plenty of arguments that judges think are full of it, but which don’t get you sanctioned.

  2. There’s a difference between “misfeasance” and “malfeasance”? That’s cool. Although I might have to wait decades for an opportunity to pounce on someone in a conversation.

    1. Better hurry; people who read or post here may not be allowed to have conversations soon.

    2. I remember skimming over a long discussion in an appellate case about whether “defalcation” was distinguishable from related forms of financial or fiduciary misconduct. The canon against surplusage says the word wouldn’t have appeared in a list of evil deeds unless it was distinguishable from the others. But it wasn’t obviously different from the other words.

  3. Since law and order has become optional, surprise! Many people now find obeying the law optional.

  4. As Prof. Volokh does not express an opinion here I assume he agrees with the court that the recall should go before the voters.

    No one disputes the sheriff’s right to speak out in dissent of the government position. But sure no one, except the dissenters on the court, believe that a law enforcement official is allowed to use his office to openly resist following the law and to implicitly or explicitly encourage others to do so. That way lies anarchy.

    The proper thing would have been for the sheriff to resign, but that would have required decency and honor and respect for the law. That is not something we expect from an ego driven, I am the law and no one can oppose me person who currently inhabits the office.

    1. ” But sure no one, except the dissenters on the court, believe that a law enforcement official is allowed to use his office to openly resist following the law and to implicitly or explicitly encourage others to do so. That way lies anarchy.”

      Only, I guess not if the nation’s ‘chief law enforcement officer’ does it.

      1. I should think that in any given state the rules may well be different for the sheriff (or whoever does law enforcement) than for the prosecutor. The US president is in charge of both, and things like DACA are about the prosecution power, not the law enforcement power.

    2. Just a minor point. I am not aware of any law enforcement oath of office that pledges to the governor. They pledge to uphold the constitution.

      Exercise for the reader:
      If the governor issued a proclamation that based on “scientific evidence”, the mighty COVID was determined to be spread only by blacks, and therefore all blacks were immediately and indefinitely confined to their residence, should the cops enforce that proclamation?

      1. “the mighty COVID ”

        Science denialism is fun!

        As to your main point, the oath is indeed to the Constitution but the Constitution doesn’t say ‘and each official shall decide what the Constitution says and do accordingly.’ It has a process for determining that. Once determined officials should follow that out (though they can certainly work unofficially to change the law and it’s interpretation within the constitutional framework).

        1. Scientism is more fun, isn’t it.

          1. I’ll cop to liking science better than the alternatives, YMMV.

    3. What about Prosecutoral Discretion?
      For that matter, what about enforcing the Federal ban on Marijuana?

      1. Come back to me about prosecutorial discretion when the Sheriff is a prosecutor.

        1. I’m not sure how things work across the pond, but on this side of the Atlantic the sheriff is usually an elected official, with his own authority derived from that election, including the authority to set enforcement priorities, just like the governor and president have independent authority deriving from their own elections.

          This means that to put someone in jail, you have to get:
          1)the police to agree to arrest them, and
          2)the prosecutor to agree to prosecute them, and
          3)the jury to convict them

          That may require more societal consensus than you like, but I’m OK with it. Making it easier for the government to jail people doesn’t seem to me like something that is a pressing need.

          1. Yes, that is the case in every jurisdiction I can think of atm. But none of that makes him a prosecutor.

            Whether the law gives the police independent authority to take into account wider public interest considerations or not when setting law enforcement priorities is a matter of state law, but to my knowledge such authorisation is usually more constrained than the prosecutor’s public interest considerations.

            You will note that apparently in the state of Washington the sheriff is required to “make complaint of all violations of the criminal law.” Apparently that doesn’t mean he doesn’t have the ability to set enforcement priorities, but there are clearly some limits.

    4. So that applies to DACA too?

      1. The proper resolution here is in the courts, not the unilateral action of a law enforcement officer.

  5. Hero sheriff.

    1. If your heroes are arrogant, lawless yahoos. Oh, it’s Bob, sorry to be redundant there.

      1. We all know you’d be in the Secret Police.

  6. What if it was a clearly illegal law such as Herod’s edict that all baby boys under age two be murdered (Matthew 2:16-18)?

    1. Why do you think you’re an expert in Roman and Judea law such that you can opine on whether that law was illegal?

    2. Murdered strikes Ed as too far, locked in cages, well that’d be fine 🙂

  7. Fortney does not have the authority as Snohomish County sheriff to determine the constitutionality of laws.

    He doesn’t have authority to make a final determination, but his duty to enforce the law includes enforcing the limiting aspects of the constitution. If the Governor’s proclamation was unconstitutional then it isn’t “the law”, and the recall charge that he incited the public to violate the law is legally insufficient. If the courts had previously established the constitutionality of the order that would settle the question, otherwise this court should have addressed it.

  8. So, what /could/ the Sheriff had said that would have made this merely an expression of opinion? Would this have been sufficient:

    “Along with other elected Sheriffs around our state, the Snohomish County Sheriff’s Office will not be making arrests to enforce an order preventing religious freedoms or constitutional rights. Instead, I strongly encourage each of you to educate yourselves and reach out and contact your councilmembers, local leaders and state representatives to demand we allow businesses to begin reopening and allow residents, all of them, to return to work if they choose to do so.”

    1. It would probably have been a good idea to start by not using the sheriff’s office’s facebook page etc. to communicate his views as a private citizen.

  9. The term “executive officers” may not be correct. There may be a “chain of command” issue, at least in some States. Traditionally in this country, Sheriffs are elected by the people of the County; they are not appointed by some higher political authority, such as the King or Royal Governor. They don’t necessarily take orders from the Governor and so may not be “executive officers”. Here in NC where I live some sheriffs have taken the position that they are not required to enforce the orders of the Governor, but may make their own judgments about what to do in their County about what the Governor orders. They distinguish between statutes (that they will enforce) and executive orders, as to which they claim discretion. I don’t know if the sheriffs are right or not in NC, and I certainly don’t know about other States, but I think this aspect of the issue shouldn’t be ignored.

  10. Emboldened by this, the elected Sheriff of liberaltown has decided that he will not stop rioters from exercising their constitutional right to life by removing all guns shops from their jurisdiction.

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