In re the Recall of Feetham

Summary

The Washington Supreme Court reviewed the factual and legal sufficiency of three recall charges against Robin Feetham, mayor of Concrete, Washington. The court affirmed the sufficiency of charges involving alleged interference with building-code enforcement and removal of a municipal permit file, but held a third charge involving an alleged misuse of police authority insufficient. The court also denied Feetham’s motions to dismiss and admit additional evidence, granted attorney fees to the recall petitioner, and granted a motion to strike portions of Feetham’s brief.

Holdings

1. The first charge was factually and legally sufficient because it identified the time, place, and conduct alleged and presented a prima facie case of misfeasance or malfeasance based on directing a building official not to enforce building codes, as well as a prima facie violation of RCW 42.23.070(1).
2. The second charge was factually and legally sufficient because it identified the time, place, and conduct and presented a prima facie case of malfeasance and violations of statutes concerning special privileges, municipal records, and theft.
3. The third charge was insufficient because, although specific as to time and place, it did not provide facts supporting the conclusions that Feetham sought a special privilege for himself, acted with official misconduct, or knowingly gave false or misleading information to a public servant.
4. The motion to remove opposing counsel and dismiss the recall petition was denied because Feetham cited no authority permitting removal of opposing counsel or dismissal on the alleged grounds, and the alleged public statements did not prejudice the court's limited sufficiency review.
5. Bergsma was entitled to attorney fees under RAP 18.9(a) because Feetham's motion to dismiss was frivolous and presented no debatable issue or authority supporting dismissal.
6. Feetham's motion to admit additional evidence was denied, and portions of his brief relying on evidence not before the superior court were stricken because he did not satisfy the requirements of RAP 9.11(a), and evidence addressing the truth of the charges was irrelevant to facial sufficiency review.

Questions Presented

1. Whether the first recall charge, alleging that Feetham directed a building official not to enforce building codes and thereby benefited private parties, was factually and legally sufficient.
2. Whether the second recall charge, alleging that Feetham removed and retained a municipal permit file for personal purposes and suppressed reporting of its disappearance, was factually and legally sufficient.
3. Whether the third recall charge, alleging that Feetham ordered police to arrest a resident for trespassing, was factually and legally sufficient.
4. Whether alleged misconduct by opposing counsel warranted counsel removal or dismissal of the recall petition.
5. Whether Bergsma was entitled to attorney fees for defending Feetham's frivolous motion to dismiss.
6. Whether Feetham could introduce additional evidence on review and whether portions of his brief relying on evidence not before the superior court should be stricken.

Disposition

reversed