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FILED t-

OCT 2 S 2017

WASHINGTON STATE

E / •

SUPREME COURT

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Recall of No. 94788-1

JANELLE RIDDLE, ORDER AMENDmC

OPINION

Yakima County Clerk.

It is hereby ordered that the following change be made to the unanimous opinion

of Yu,J., in the above entitled case (page and line references are to the slip opinion filed

on October 26, 2017):

On page 1, at line 10, the following language is deleted: ", defeating

incumbent Kim Eaton".

DATED this _ day of ,20|'1.

an.

ice I

Chief Justice

APPROVED: For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

/■ ® Li E\.

IN CLERKS OPPICS X

This opinion was filed for record

CHIEF josnce 4' ,

»

^

SUSAN L. r.ARI

SIJRAW I CARLSON

QOM

SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Recall of No. 94788-1

JANELLE RIDDLE, EN BANC

Yakima County Clerk. Filed: OCT 2 6 2M?

YU, J. — Yakima County Clerk Janelle Riddle appeals the trial court's

ruling that five out of the six recall charges filed against her are factually and

legally sufficient. We granted the recall petitioners' motion for accelerated review

and now affirm the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Riddle was elected on November 4, 2014, defeating incumbent Kim Eaton.

Riddle executed her oath of office on December 29 and began her term on January

1, 2015. Riddle's term in office has been a challenging one.

Riddle attributes many of the challenges she has faced to Yakima County's

early adoption of new case management software called Odyssey. Yakima County

had received approval to be "an early adopter site" for Odyssey about a year before For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Recall ofRiddle, No. 94788-1

Riddle's election, Yakima County Superior Court Local Administrative

Rule(LAR)2.1. Odyssey was deemed necessary to replace Yakima's "obsolete"

calendaring software, which posed "a threat to the [Superior] Court's continuing

ability to operate." Id. Odyssey was implemented in November 2015, nearly one

year after Riddle took office. Although most of the early adopter sites for Odyssey

encountered some difficulties in its implementation, the Yakima County Clerk's

Office had the most difficulty making the transition.

Another source of difficulty for Riddle has been her ongoing disagreement

with other Yakima County officials, particularly the superior court judges, about

the scope of Riddle's powers and duties as clerk. This disagreement prompted the

Yakima County Superior Court to pass five new local administrative rules

regarding the powers and duties ofthe clerk on an emergency basis pursuant to GR

7(e). LAR 3, 7, 8, 9, 10. Riddle contends that those rules are void because they

conflict with state law and violate separation-of-powers principles.

In May 2017, about two and a half years into Riddle's four-year term, the

recall petitioners (attorneys Rickey Kimbrough, Robert Young,Bruce Smith, and

Richard Johnson)filed a statement of charges against Riddle, Briefly, the charges

allege that Riddle failed to transmit court orders as required by statute, refused to

perform in-court duties and threatened to shut down the Yakima County Superior For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Recall ofRiddle, No. 94788-1

Court, and failed to properly collect and account for clerk's office revenue. The

facts underlying each charge are discussed as relevant to the analysis below.

As required by ROW 29A.56.130, the Yakima County Prosecuting

Attorney's Office drafted a ballot synopsis based on the charges and petitioned for

a ruling on the sufficiency of the charges and the ballot synopsis in Yakima County

Superior Court. The court ruled that five of the six charges were factually and

legally sufficient and approved an amended ballot synopsis that states, in full, as

follows:

BALLOT SYNOPSIS

The charges that Yakima County Clerk, Janelle Riddle,

committed misfeasance, malfeasance and/or violated her oath of

office allege she:

1. Failed, between October 2015 and November 2016,to

properly and timely transmit to [the Department of Social and Health

Services], Division of Child Support, orders of child support entered

in Yakima County Superior Court, resulting in substantial loss of

revenue to the County and harm to parents;

2. Failed, between February 2016 and October 2016 to properly

discharge her duty to timely transmit to law enforcement agencies

restraining orders entered in Yakima County Superior Court;

3. Refused and/or failed in July 2016 to perform in-court duties

required by law, and threatened to shut down or close the Yakima

County Superior Court and Yakima County Clerk's Office;

4. Failed, between January 2015 and December 2016 to

properly maintain account ofthe monies received by the Yakima

County Clerk's Office; and For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Recall ofRiddle, No. 94788-1

5. Failed, between May 2016 and October 2016 to enact

procedures to collect for jury services rendered to other courts

resulting in a delay of revenue.

Should Janelle Riddle be recalled from office based on these

charges?

Clerk's.Papers(CP)at 2442.

Riddle appealed the sufficiency ofthose five charges to this court pursuant

to RCW 29A.56.270. The insufficient charge is not at issue. We affirm the trial

court and hold that all five ofthe remaining charges in the amended ballot synopsis

are factually and legally sufficient and the recall proceeding may move forward.

ISSUES

A. Are the five remaining charges factually and legally sufficient to

move forward in accordance with RCW 29A.56.140?

B. Is the amended ballot synopsis adequate?

BACKGROUND LAW AND STANDARD OF REVIEW

Washington voters have a constitutional right to recall any nonjudicial

elected official who "has committed some act or acts of malfeasance or

misfeasance while in office, or who has violated his[ or her] oath of office."

Const, art. I, § 33. The statutes governing recall proceedings are RCW

29A.56.110-.270. See CONST, art. I, § 34.

The courts act solely as gatekeepers in the recall process. Our role is "to

ensure that the recall process is not used to harass public officials by subjecting For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Recall ofRiddle, No. 94788-1

them to frivolous or unsubstantiated charges." In re Recall of West, 155 Wn.2d 659, 662, 121 P.3d 1190(2005). It is up to the voters to determine whether the

charges are true and, if so, whether they actually justify recalling the official.

Courts therefore take all factual allegations as true. In re Recall ofBoldt, 187 Wn.2d 542, 549, 386 P.3d 1104(2017). '"The sufficiency of a recall petition is

reviewed de novo.'" Id. (quoting In re Recall ofWasson, 149 Wn.2d 787, 791, 72

P.3d 170 (2003)).

A charge is factually sufficient where the alleged facts, taken as a whole,

"'identify' to the electors and to the official being recalled acts or failure to act

which without justification would constitute a prima facie showing of misfeasance,

malfeasance, or a violation of the oath of office.'" Id. at 548 (quoting Chandler v.

Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984)). A charge "is legally sufficient if

it'state[s] with specificity substantial conduct clearly amounting to misfeasance,

malfeasance or violation of the oath of office.'" Id. at 549 (alteration in original)

(quoting Chandler, 103 Wn.2d at 274). "Misfeasance," "malfeasance" and

"violation ofthe oath of office" are statutorily defined:

(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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Recall ofRiddle, No. 94788-1

(b) Additionally,"malfeasance" in office means the

commission of an unlawful act;

(2)"Violation of the oath of office" means the neglect or

laiowing failure by an elective public officer to perform faithfully a

duty imposed by law.

RCW 29A.56.110. When applying these statutory definitions, we have held that

"[a]n appropriate exercise of discretion does not constitute grounds for recall."

Boldt, 187 Wn.2d at 549. Moreover, where the charge alleges the commission of

an unlawful act,"the petitioner must show facts indicating the official had

knowledge of and intent to commit an unlawful act." Id.

ANALYSIS

Riddle's contentions reflect a misunderstanding ofthe respective roles ofthe

courts and the voters in the recall process. We affirm the trial court's ruling that

each charge is factually and legally sufficient to move on to the signature-gathering

phase of the recall proceeding. We decline to address Riddle's challenge to the

amended ballot synopsis.

A. Factual and legal sufficiency of the charges

Riddle challenges the factual and legal sufficiency of each ofthe five

remaining charges individually, and further raises a general challenge to the recall

proceeding as a whole. We affirm the trial court. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Recall ofRiddle, No. 94788-1

1. Charge One: failure to transmit child support orders

Charge One alleges that for over a year, Riddle failed to transmit child

support orders entered by the Yakima County Superior Court to the appropriate

agency as required by statute. We affirm the trial court's ruling that Charge One is

factually and legally sufficient.

a. Background information

Superior court clerks must transmit child support orders to the Division of

Child Support(DCS)"whhin five days of entry." RCW 26.23.033(2).' Ifthe

Yakima County Clerk complies with this duty, then DCS funds a portion ofthe

clerk's office budget; if not, then DCS must withhold the anticipated funding. CP

at 1153, 1252, 1281. Charge One alleges that Riddle "[f]ailed, between October

2015 and November 2016, to properly and timely transmit to [the Department of

Social and Health Services, DCS], orders of child support entered in Yakima

County Superior Court, resulting in, substantial loss of revenue to the County and

harm to parents." Id. at 2442.

DCS first became aware that there was a problem with transmitting support

orders in January 2016. The problem dated back to November, when Odyssey was

first implemented. On January 11, DCS e-mailed Riddle to notify her that there

'DCS maintains a statewide registry of child support orders to promote uniform

recordkeeping and to help custodial parents and their children obtain support payments. RCW

26.23.010,.033(1). For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Recall ofRiddle, No. 94788-1

appeared to be a problem and to ask if she knew what was causing it. Id. at 1283.

The next day, DCS e-mailed again to say it had confirmed that there was a

problem; it sent a list of cases in which it knew that support orders had not been

transmitted and asked Riddle to investigate and resolve the issues. Id. at 1289.

Riddle responded that "[a]s an 'early adopter' ofthis state courts' program

[Odyssey], we are just to the point of finishing up the workflow process for those

documents to automatically be emailed to the designated staff that [the Washington

State Support Registry] would like to receive them." Id. at 1283. She assured

DCS that her office was "working diligently to get this workflow in place," and

proposed that in the interim, she could "ask staff to email them directly" to DCS.

Id.

However, neither the automatic workflow process nor the direct e-mails

from staff had resolved the problem by February 3, so DCS e-mailed again,

expressing its concerns more forcefully:

While we do understand the difficulties often encountered when

switching to a new system, there must be a 'workaround' in place so

that you can continue to transmit orders to [the Washington State

Support Registry] during this transition period.

Please let [the supervisor fi-om the intake unit] know the status

ofthe automated transmission of orders under the new Odyssey

system and also when all ofthe orders NOT previously sent since

November 1, 2015 will be transmitted. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Recall ofRiddle, No. 94788-1

Also note that the monthly reimbursements you receive from

DCS are payment for the transmission of orders and copy requests.

Since orders are not being transmitted I will likely need to withhold

future reimbursements until all ofthe past orders are received and you

are sending orders regularly again.

Id. at 1282. DCS's e-mails always included offers to help Riddle resolve the issue.

In February 2016, the issue also came to the attention ofthe court services

director for Yakima County. Id. at 1153. Three people had called her to report

that they had not received support payments because the support orders in their

cases had not been transmitted to DCS, and the clerk's office had not returned their

repeated phone calls. Id. at 1153-54. The court services director confirmed that

both the prosecutor's office and DCS were experiencing similar problems, and she

then had her staff prepare a report ofthe missing orders. Id. at 1154-55.

The report stated that only 44.7 percent ofthe child support orders entered in

family law cases between November 1, 2015 and February 17, 2016, were ever

received by DCS. Id. at 1340. A follow-up report revealed that between February

18 and May 31, 2016,the number of orders transmitted dropped to 33.3 percent.

Id. at 1330. By August 2016, 74 percent of orders were transmitted on time, id. at

1125, and as of May 2, 2017, the court services director stated that "it appears that

the child support orders are now being sent to [DCS]." Id. at 1156. However, as a

result of so many orders being transmitted late or not at all, DCS withheld over

$200,000 in anticipated funding for the clerk's office. Id. at 1154. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Recall ofRiddle, No. 94788-1

b. Factual sufficiency

Riddle contends that Charge One is factually insufficient because there is no

evidence that she intended to violate the law. Br. of Appellant at 17. However,

Riddle misreads the intent requirement and the showing necessary to satisfy it.^

Riddle is correct that in recall proceedings "[wjhere commission of an

unlawful act is alleged, the petitioner must show facts indicating the official had

knowledge of and intent to commit an unlawful act." Boldt, 187 Wn.2d at 549

(citing/« re Recall ofTelford, 166 Wn.2d 148, 158, 206 P.3d 1248 (2009)). The

primary purpose of the intent requirement is to shield elected officials from recall

where their actions, though not statutorily compliant, are attributable to a "simple

mistake." In re Recall ofHeiberg, 171 Wn.2d 771, 779, 257 P.3d 565(2011)

(mayor purchased truck under honest but erroneous belief that reserve fund money-

could be used for that purpose and later reimbursed the town when he learned of

his mistake).

The facts in this case, however, allege that Riddle knowingly failed to

perform a statutorily mandated duty in the majority of cases for eight months(from

^ Riddle also contends that Charge One is factually insufficient because it "fails to

mention that the problem with forwarding child support orders has been fixed by Ms. Riddle."

Br. of Appellant at 18. However, Charge One provides a start and end date for the period at

issue, clearly implying that the problem has been resolved. CP at 2442. If Riddle disagrees

about the precise date on which the problem was resolved or who should be given credit for

resolving it, she must take her case to the voters, as we are in no position to resolve that factual

dispute.

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Recall ofRiddle, No. 94788-1

the time she was first notified ofthe problem in January 2016 until it was arguably

mostly resolved in August 2016). The facts also allege that other counties that had

been early Odyssey adopters faced some challenges, but none ofthem had nearly

as many problems, nor did their problems persist for nearly as long. And in light

of Riddle's refusal to accept suggestions or assistance over this extended period of

time, a voter might also rationally infer that Riddle acted willfully and with

unreasonable indifference to the consequences of her failure to transmit child

support orders. See In re Recall ofSandhaus, 134 Wn.2d 662, 671,953 P.2d 82

(1998)("[Wjilfullness can probably be found in evidence showing that Sandhaus

knew he was overspending and did so even after the Board and the auditor warned

him against doing so."). The factual allegations in this case clearly allege much

more than a simple mistake.

Riddle, however, contends that the recall petitioners must have evidence that

she had an unlawful purpose in failing to transmit court orders, such as an intent to

deprive custodial parents of child support payments. It is true that we have

required such evidence where the elected official's actions would have been lawful

but for the official's alleged unlawful purpose. See Boldt, 187 Wn.2d at 551

(charge that officials held a closed meeting for the purpose oftaking action outside

the view ofthe public in violation ofthe Open Public Meetings Act of 1971,

chapter 42.30 ROW);In re Recall ofCarkeek, 156 Wn.2d 469,472-73, 128 P.3d 11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Recall ofRiddle, No. 94788-1

1231 (2006)(charge that official filed antiharassment order for the purpose of

keeping constituents from attending public meetings). In such cases, a showing of

unlawful purpose is necessary to establish an unlawful act constituting

malfeasance.

This case is different. The factual allegations here, if believed, establish a

prima facie showing of"the neglect or knowingfailure by an elective public officer

to performfaithfully a duty imposed by law," that is, a violation ofthe oath of

office. RCW 29A.56.110(2)(emphasis added). We therefore hold that Charge

One is factually sufficient. Boldt, 187 Wn.2d at 548.

c. Legal sufficiency

Riddle argues that Charge One is not legally sufficient because she did not

engage in any wrongful conduct and the problems with transmitting child support

orders were not her fault. We reject these arguments.

First, relying on the same arguments she raises as to factual sufficiency.

Riddle argues that her extended failure to transmit child support orders was not

wrongful at all. We reject this argument for the reasons stated above in the

discussion offactual sufficiency.

Second, as Riddle correctly notes,"[a]n appropriate exercise of discretion

does not constitute grounds for recall." Id. at 549. She is also correct that

becoming an early adopter of Odyssey was an appropriate exercise of discretion.

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Recall ofRiddle, No. 94788-1

which she was not involved in. However, Charge One does not seek to recall

Riddle for the early adoption of Odyssey, but for Riddle's knowing failure to

perform faithfully her mandatory duties.

Riddle may intend to argue that the early adoption of Odyssey made it

impossible for her to fulfill her duties, which could preclude legal sufficiency. See

Greco v. Parsons, 105 Wn.2d 669, 673, 717 P.2d 1368(1986)("Greco's failure to

comply with an ordinance, because it was impossible to comply, amounts to a

legally cognizable justification for his failure. Such justification defeats the legal

sufficiency of the recall petition."). However, impossibility in this case is, at best,

disputed.

Riddle apparently attributes all the problems to Yakima's early adoption of

Odyssey, but the facts alleged by the recall petitioners suggest that other early

adopters had fewer problems, or no problems at all. Compare Br. of Appellant at

21-22, with CP at 1155-56, 1298, 1300, 1302. Moreover, the office manager for

Riddle's predecessor stated that "[t]he process before Odyssey was to fax all no

contact/protection orders to a designated law enforcement agency, as stated in the

order. It was to be done immediately after court, so law enforcement could serve

the paperwork and enter it into their system." CP at 2253. There is no indication

Riddle could not have done the same with child support orders until Odyssey was

functioning properly. We must take the facts alleged by the recall petitioners as

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Recall ofRiddle, No. 94788-1

true and assume that the early adoption of Odyssey did not make it impossible for

Riddle to perform her duties.

Therefore, we affirm the trial court's ruling that Charge One is legally

sufficient, as well as factually sufficient.

2. Charge Two: failure to transmit restraining orders

Charge Two is very similar to Charge One except that Charge Two deals

with restraining orders instead of child support orders. Riddle's challenges to the

factual and legal sufficiency of Charge Two are identical to her challenges to

Charge One. Because the allegations underlying each charge are not materially

different, we affirm the trial court's ruling that Charge Two is factually and legally

sufficient.

a. Background

The superior court clerk must transmit restraining orders entered in a variety

of cases to law enforcement "on or before the next judicial day." RCW

7.92.180(1)(civil antistalking actions); RCW 10.99.040(6)(pending criminal

actions for domestic violence offenses); RCW 26.09.050(3)(final dissolution

decrees),.060(8)(pending dissolution actions); RCW 26.26.130(11)(parentage

actions); RCW 26.50.100(1)(domestic violence protection orders). Charge Two

alleges that Riddle "[fjailed, between February 2016 and October 2016 to properly

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Recall ofRiddle, No. 94788-1

discharge her duty to timely transmit to law enforcement agencies restraining

orders entered in Yakima County Superior Court." CP at 2442.

On July 25, 2016,the Yakima County court services director learned that a

family member of one of her staff could not get law enforcement assistance in

enforcing valid restraining orders because the orders had not been transmitted to

law enforcement. Hoping that this was an isolated incident, the court services

director ordered reports about missing restraining orders. The reports revealed that

between June 1 and July 27, 2016, 40 percent of criminal no-contact orders were

not received by law enforcement. Id. at 1731. Between June 1 and July 21, 2016,

71 percent of domestic restraining orders were not received. Id. at 1735. A

follow-up report spanning January through August 2016 revealed a pattern of

failure to transmit restraining orders. Id. at 1159-60, 1788.

When the court services director sent these reports to Riddle and asked if

they could meet to discuss and sort out the problem. Riddle responded that her

office was running its own reports and did not need assistance. Id. at 1736, 1738.

Although the time period referenced in Charge Two ends in October 2016,the

problem was not in fact fully resolved by then. M at 1751-55. We do not know

what happened after October 2016.

15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Recall ofRiddle, No. 947.88-1

b. Factual and legal sufficiency

Riddle argues that there is no evidence that she intended to violate the law,

that she did not engage in any substantial misconduct, and that the problems were

caused by Yakima's early adoption of Odyssey. She does not distinguish the

arguments pertaining to Charge Two from those pertaining to Charge One. We

therefore reject those arguments for the reasons discussed in the above analysis of

Charge One and affirm the trial court's ruling that Charge Two is sufficient.

3. Charge Three: refusal to perform in-court duties

There have been significant tensions between Riddle and the Yakima

County Superior Court over their respective powers and duties. Charge Three

alleges that Riddle "[rjefused and/or failed in July 2016 to perform in-court duties

required by law, and threatened to shut down or close the Yakima County Superior

Court and Yakima County Clerk's Office." Id. at 2442. We affirm the trial court's

ruling that this charge is factually and legally sufficient,

a. Background

Riddle came into the position of clerk with very different ideas about her

powers and duties than those held by the Yakima County Superior Court and the

Board of Yakima County Commissioners. Riddle felt it was inappropriate for her

deputy clerks to perform in-court tasks they had done in the past, such as operating

the electronic recording equipment that had replaced most ofthe in-person court

16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Recall ofRiddle, No. 94788-1

reporters in Yakima and providing copies ofthose recordings as requested. The

clerk's office had been providing such services to the Yakima County Superior

Court for years in exchange for extra staff and additional funding for the clerk's

office, while the staff and budget for the court were reduced accordingly. Id. at

1177-78.

Although Riddle agreed before she took office that she would continue that

arrangement, after taking her oath of office she stated her intent to withdraw from

it. E.g., id. at 1168. After a tense meeting between Riddle and the superior court

judges on March 30, 2015, the Yakima County Superior Court adopted LAR 3,

which "describes actual current courtroom procedures and the responsibilities of

the Clerk of the Court while in court. The purpose ofthe rule is to maintain and

continue current practice without interruption." LAR 3 was adopted on an

emergency basis effective April 15, 2015, and on a permanent basis effective

September 1, 2015. However, despite the passage ofLAR 3, Riddle again asserted

that her deputy clerks would stop providing the in-court services specified in the

rule. E.g., id. at 1223.

The court services director became sufficiently concerned about Riddle's

assertions, and she brought the issue to the Yakima County Law and Justice

Committee, which caused the Board of Yakima County Commissioners to appoint

an independent review panel in March 2016. The panel's initial report, issued on

17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Recall ofRiddle, No. 94788-1

May 31, 2016, noted an attorney general opinion suggesting that the remedy for a

clerk who refuses to follow a local court rule may be contempt proceedings.

On July 3, 2016, Riddle responded to the panel's report with a written

document that opened,"Dear Family, Friends and Supporters."^ M at 2113. As

relevant to Charge Three, Riddle's document included the following language:

I have been threatened with contempt and going to jail if I don't

do what the County Commissioners and Court want me to do.

Therefore, I have no choice other than to prepare for this possibility

by sending a Clerk's Directive to the Prosecuting Attorney. I don't

believe they realize what the severity ofthe consequences will be. I

would have no choice other than to revoke the deputization[ ]of all my

deputies (staff) and they would not be able to perform my duties in

my absence which would close the Clerk's Office. The Courts will

not be able to hear cases without a Clerk present so the Courts will

shut down. The jail will be overflowing because the Prosecutor will

have no way to prosecute individuals. I would hope they know these

consequences and will choose not to shut down our judicial system by

such an action. I would be given no choice as I must ensure my

mandated responsibilities are being met according to the law.

Id. at 2117. The disputes leading up to this document and the document itself are

the basis for Charge Three.

b. Factual sufficiency

First, Riddle contends that Charge Three is factually insufficient because

there is no proofthat she actually "failed" to perform any in-court duties.

However, Charge Three alleges that she "[rjeflised and/or failed" to perform those

^ The document is dated "July 3, 2015," but the parties agree that the document was

actually written in 2016. CP at 2113.

18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Recall ofRiddle, No. 94788-1

duties. Id. at 2442(emphasis added). The facts clearly allege that Riddle refused

to perform in-court duties and thus that Riddle refused and/or failed to perform

those duties,just as Charge Three states.

Next, Riddle argues that there is no proofthat she actually shut down the

court as threatened. That is true, but irrelevant. Where an official credibly

threatens retaliation in his or her official capacity,"such threats alone would be ...

wrongful by any standard." In re Recall ofLee, 122 Wn.2d 613, 619, 859 P.2d 1244(1993). For instance, we held sufficient a charge that a mayor threatened to

have local law enforcement officers fired if they issued her a traffic citation. Id.

Like Riddle in this case, the mayor in that case argued the charge was "inadequate

because it does not allege that any police officer ever refrained from issuing her a

citation because of what she said." Id. at 618-19.

We rejected that argument and held that "[ejven if no officer ever refrained

from issuing Mayor Lee a citation out of fear for his job,such threats alone would

be a clear abuse of the mayor's position of authority over the police department

and would be wrongful by any standard.'"^ Id. at 619(emphasis added). To the

extent Riddle argues that the document at issue in this case was not a threat but a

Riddle attempts to distinguish this case on the basis that in Lee,"the mayor's threat was

coupled with an action: a directive to subordinates to never issue her a ticket." Reply Br. of

Appellant at 9. However, the decision in Lee was explicitly based on the threat alone, not a

threat coupled with an action.

19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Recall ofRiddle, No. 94788-1

mere expression of opinion regarding a hypothetical scenario, a reasonable person

reading the language Riddle actually used might well reach a different conclusion.

Finally, Riddle argues that the alleged threat to shut down the court cannot

be factually sufficient because it was in a letter "addressed to Ms. Riddle's

supporters, family and friends," not to the court. Br. of Appellant at 27.

However,this letter was delivered to the Board of Yakima County Commissioners

at one of its meetings. CP at 2036. Regardless ofthe opening salutation, the facts

clearly allege that Riddle did not intend for this document to be a private

expression of opinion but a publicly directed statement of her intentions.

We affirm that Charge Three is factually sufficient.

c. Legal sufficiency

Riddle contends Charge Three is not legally sufficient because she had no

obligation to perform in-court duties, and therefore she had a legally justifiable

excuse for refusing to perform them. She also argues that Charge Three cannot be

legally sufficient because she was exercising her First Amendment rights. U.S.

Const, amend I. Riddle misapprehends the scope of her powers, her duties, and

the First Amendment.

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First, Riddle contends that LAR 3 was enacted without authority oflaw and

is therefore void, so she was justified in refusing to follow it.^ An action with a

legally justifiable excuse is not sufficient for recall, but Riddle's position is not

legally justifiable.

While Riddle is correct that she retains authority over the clerk's office, she

fails to recognize that she is,"by virtue of[her] office, clerk of the superior court."

Const, art. IV, § 26. As we have explained,

[t]he duties of a county clerk as clerk of the superior court are defined

both by statute and court rules. Generally speaking, a clerk of court is

an officer of a court ofjustice, who attends to the clerical portion of

its business, and who has custody of its records and files and of its

seal. Such an office is essentially ministerial in its nature, and the

clerk is neither the court nor a judicial officer.

Swanson v. Olympic Peninsula Motor Coach Co., 190 Wash. 35, 38,66 P.2d 842

(1937)(emphasis added). The superior court "has power ...[t]o control, in

furtherance ofjustice, the conduct of its ministerial officers," such as county

clerks. RCW 2.28.010(5). Therefore, when acting as the clerk ofthe superior

court, the county clerk has always been required "[i]n the performance of his or her

duties to conform to the direction ofthe court." RCW 2.32.050(9); see Laws OF

1891, ch. 57, § 3(9). The clerk's general powers and duties as clerk ofthe superior

^ Riddle also argues that her initial agreement to provide in-court services is without force

because she entered the agreement prior to taking office. This is irrelevant because the charge is

that she refused to perform duties required by law—^that is, by statute and court rule.

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In re Recall ofRiddle, No. 94788-1

court are set forth in RCW 2.32.050 and, for Yakima County specifically, LAR 3

and 7 through 10.

Riddle contends that LAR 3, which addresses in-court duties, is void

because the court has no authority to "dictate the personnel functions of a different

County department." Br. of Appellant at 28. However, as the preceding paragraph

explains, a court does have the authority to direct the functions of the clerk when

he or she is acting in his or her capacity as clerk ofthe superior court. Cf. SAR

16(f)(powers and duties of the Clerk of the Supreme Court). Moreover, the

attorney general has opined that a court's rule-making authority in regard to court

clerks is subject to the same restrictions as any other rules: "[T]o the extent that the

court rule relates to practice and procedure rather than to the creation of

substantive law, the rule is within the authority of the court." 2001 Op. Att'y Gen.

No. 6, at 3. LAR 3 is within the scope ofthe court's rule-making authority, and

Riddle has no legally justifiable excuse for refusing to follow it.

Second, Riddle contends that her alleged threat to shut down the court was

an expression of opinion protected by the First Amendment and that such protected

expression cannot be grounds for recall. Riddle appears to be unaware that the

First Amendment prevents governments from restricting or chilling free speech.

16A Am.Jur. 2d Constitutional Law § 400(2008). A recall proceeding is an

action by the voters, not the government. CONST, art. I, § 33. The voters

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In re Recall ofRiddle, No. 94788-1

unquestionably have a right to base their decisions on what a public official says,

the First Amendment notwithstanding.

While Riddle cites authorities, they do not support her position. One ofthe

cases cited, which does not deal with recall, holds that "[t]o be sure, the First

Amendment protects [the plaintiff]'s discordant speech as a general matter; it does

not, however, immunize him from the political fallout of what he says." Blair v.

Bethel Sch. Dist., 608 F.3d 540, 542(9th Cir. 2010), cited in Br. of Appellant at 33.

Another, which also does not deal with recall, notes that "[ojur case law recognizes

that the nature of political debate is rough and tumble." Eaton v. Meneley, 379 F.3d 949, 956(10th Cir. 2004), cited in Br. of Appellant at 33. And the only case

Riddle cites that does involve a recall proceeding dealt with very different

questions about a charge that the official committed perjury and false swearing. In

re Recall ofPearsall-Stipek, 141 Wn.2d 756, 10 P.3d 1034(2000), cited in Br. of

Appellant at 34. The court was required to determine whether the elements of

those crimes were properly alleged by the facts underlying the charge. It did not

engage in any discussion of free speech principles.

Because Riddle's contentions do not have merit, we affirm the trial court's

ruling that Charge Three is factually and legally sufficient.

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In re Recall ofRiddle, No. 94788-1

4. Charge Four: failure to account

Charge Four states that Riddle "[f]ailed, between January 2015 and

December 2016 to properly maintain account ofthe monies received by the

Yakima County Clerk's Office." CP at 2442. We affirm the trial court's ruling

that Charge Four is factually and legally sufficient,

a. Background

The Washington State auditor performed a scheduled audit ofthe Yakima

County Clerk's Office covering the year from January 1 to December 31, 2015.

The audit determined that stronger internal controls and oversight were needed,

noting, among other problems, that several important tasks were not completed

until long after they were due and the clerk's office had failed to maintain proper

documentation needed for an outsider to verify that collections had been performed

correctly.

The audit noted that similar concerns had been raised in two prior audits, but

apparently had not been fixed. The cause of the problems, according to the audit

report, was that "[t]he Clerk's Office has not devoted sufficient time and resources

to ensure proper segregation of duties exists over cash handling and account

reconciliations and has not taken the necessary steps to correct reconciliation items

noted in the previous audit." Id. at 2131.

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b. Factual and legal sufficiency

Riddle's contentions regarding the sufficiency of Charge Four are

indistinguishable from those she raises in regard to Charges One and Two. We

reject these arguments in accordance with the analysis ofthe factual and legal

sufficiency of Charge One, above, and affirm the sufficiency of Charge Four.

5. Charge Five; failure to collect jury service fees

Charge Five alleges that Riddle "[fjailed, between May 2016 and October

2016 to enact procedures to collect for jury services rendered to other courts

resulting in a delay of revenue." Id. at 2442.

a. Background

In addition to the Yakima Counly Superior Court, the Yakima County

Clerk's Office provides jury services for one district court and three municipal

courts. The clerk's office is supposed to bill those courts for jury services once a

month. However,the Washington State Auditor's Office determined that

[t]he Clerk has not established procedures to ensure the Office is paid

for these services. The Office has not billed or collected for jury

services provided to the District Court and two municipal courts from

May 2015 through August 2016. We estimate these services to be

approximately $44,500. In addition, the Clerk provided jury services

for one municipal court without an agreement in place from May 2015

to September 2016. The agreement was subsequently signed and

billed in October 2016 for $52,411, sixteen months after the service

period started.

Id. at 2130.

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In re Recall ofRiddle, No. 94788-1

b. Factual and legal sufficiency

Riddle's contentions regarding the sufficiency of Charge Five are

indistinguishable from those She raises in regard to Charges One, Two, and Four.

We reject these arguments in accordance with the analysis ofthe factual and legal

sufficiency of Charge One, above, and affirm the sufficiency of Charge Five.

6. Challenge based on the timing of the next general election

Finally, Riddle briefly notes that she will be up for election soon anyway,

implying that the recall proceeding is therefore unnecessary. Certainly the recall

petitioners, if unsuccessful, may take solace in the fact that Riddle is up for

reelection soon, but"we do not suggest that the imminence of a regular election

justifies dismissing a recall petition." Sandhaus, 134 Wn.2d at 672. The timing of

the next election is irrelevant to our analysis.

B. Ballot Synopsis

Finally, Riddle challenges the adequacy of the ballot synopsis for its failure

to identify which charges are malfeasance, which are misfeasance, and which are

violations ofthe oath of office. We decline to review this issue because "[t]he

decision ofthe superior court concerning the adequacy ofthe ballot synopsis is

'final.'" In re Recall ofZufelt, 112 Wn.2d 906, 910, 774 P.2d 1223 (1989); see

RCW 29A.56.140.

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In re Recall ofRiddle, No. 94788-1

CONCLUSION

We affirm the trial court's ruling that the five remaining recall charges

against Riddle are factually and legally sufficient, and the recall proceeding may

move forward to the signature-gathering phase.

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In re Recall ofRiddle, No. 94788-1 ,

WE CONCUR:

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