King County Superior Court Judge Jim Rogers certified four out of six complaints in the recall petition against Councilmember Kshama Sawant. Sawant indicated she will appeal the decision.
A recall certification does not amount to a judgement on the truth of the allegations leveled against Sawant. Rogers based his determination on whether the nature of the complaints, factually and legally speaking, involve an official committing malfeasance, misfeasance, or a violation of their oath of office. If a recall is ultimately certified, and if the campaign gathers 10,000 signatures by early 2021, voters will ultimately decide on the veracity of the allegations.
In a virtual hearing today plagued by audio issues, Rogers heard arguments outlining the complaints in the petition to recall Sawant.
Jim McKay, the lawyer representing recall petition filer Ernie Lou, opened his argument by reading the oath of office Sawant took when she swore in as a council member. He then outlined several complaints against the council member's actions this past summer, as well as previous complaints that had already been investigated by the Seattle Ethics and Election Commission, such as Sawant allegedly allowing Socialist Alternative to make hiring and firing decisions for her office.
In his order on the recall, however, Rogers disagreed with SEEC Director Wayne Barnett's decision on that issue, and said the complaint about the way Sawant runs her office was "factually sufficient" for considering in a recall. Barnett had dismissed the complaint by arguing that elected officials could structure their offices however they'd like, but Rogers wrote that "delegating decision-making to an outside body," if true, would be a violation of the the city's ethics code.
The other complaints in the recall are nearly identical to the ones Mayor Jenny Durkan listed in a letter to the council asking them to investigate Sawant.
Dmitri Iglitzen, Sawant's attorney, called the recall petition a "political screed," and likened it to a campaign event where "people who have political disagreements against Sawant get to level a laundry list against her actions" to establish the basis for a new election.
The first complaint alleges Sawant violated Gov. Jay Inslee's emergency proclamation on gatherings and endangered city workers by allowing a group of protesters into a locked, after-hours City Hall during a Black Lives Matter protest at the end of June. McKay said Sawant "maliciously used her key" to allow the protesters in, and described the offense as an abuse of her official power.
"If a member of the court used their passkey and let protesters into a building secured by county officials that would be highly unusual," McKay argued, grasping for a comparison the judge could understand.
Iglitzen argued that Sawant had the authority to bring people into City Hall for anything she deemed "appropriate," and that no law stated City Hall was "closed because of COVID-19."
Iglitzen said McKay's courthouse comparison wasn't "a legal basis for a recall," but rather an "opinion," and argued that Sawant hadn't violated Inslee's proclamation because the proclamation didn't specify anything about political rallies. If the proclamation prohibited rallies, Inglitzen said, then thousands of people across the state would have violated that order by joining in protests this summer.
Rogers debated in his brief whether Sawant was entering City Hall with protesters as part of a demonstration or "as an intentional breach of public health laws." However, he came to the conlusion that "it is very difficult to ignore the allegation (and underlying facts) that City Hall was locked to the public precisely because of the pandemic" and Inslee's proclamation.
McKay also argued that Sawant "knowingly violated the address confidentially program" when she allegedly "led" a protest to Durkan's private residence in Windermere. Durkan's address is protected under the state confidentiality program because of threats she received while working as a U.S. Attorney, and McKay insinuated that Sawant, as an elected official, had access to that confidential address and so committed an act of "malfeasance" when she "led" protesters to it.
Sawant's defense claimed she didn't know the mayor's address, participated only as an attendee of the event, and said there was no evidence to prove otherwise.
Rogers dismissed two other complaints from the petition that stated Sawant's actions created the Capitol Hill Organized Protest (CHOP), and that she encouraged occupation of SPD's East Precinct.
Iglitzen essentially said the complaints in the recall petition didn't hold water because they needed to "demonstrate not only that the official initiated the act but did so unlawfully and had knowledge of and intent to commit an unlawful act." Iglitzen believed McKay's arguments weren't "enough to demonstrate knowledge and intent."
This is the second recall petition to be certified in Seattle this year. Durkan appealed the decision to certify the recall effort against her, which alleges Durkan failed to curb the Seattle Police Department's use of less-lethal weapons, such as tear gas, against protesters. Durkan's recall certification is currently being heard in the state Supreme Court. Sawant will appeal her recall certification as well.
"We will appeal this court ruling," Sawant said on a conference call today. She added that she'll continue to "fight" the right-wing's effort "to have a 'do-over' of last year's election," and said her seat has never been about herself but for "the working people" and "we will defend it."