OLYMPIA, Wash. (Legal Newsline) - Washington’s highest court issued a full explanation of why it rejected an effort to recall Seattle Mayor Jenny Durkan over the city’s response to the summer’s protests, saying petitioners failed to make a case the mayor had acted illegally or even unreasonably.
The state Supreme Court, in a brief ruling in October, reversed a trial court’s order allowing the recall petition to proceed. In a longer opinion by Justice Mary Yu released on Dec. 10, the court said that while the Washington Constitution gives voters broad authority to recall elected officials, state law and legal precedent require them to show an official exercised his or her power in a manifestly unreasonable way. Disputes over policy aren’t enough, the court ruled.
While Mayor Durkan has been criticized by conservatives for suggesting the short-lived occupation of downtown Seattle by protestors resembled a “summer of love,” recall petitioners accused her of allowing city police to use excessive force, pepper spray and tear gas against citizens exercising their First Amendment right to protest.
The mayor’s response to protest was complicated by the city’s settlement with the U.S. Justice Department in 2012 that essentially put the police department under the oversight of a federal judge. The city was declared in compliance with the consent decree stemming from that settlement in 2018, only to fall back under the control of the judge in 2019.
In June 2020 Black Lives Matter’s Seattle chapter sued the city and the court issued a temporary restraining order banning police from “employing chemical irritants or projectiles of any kind against persons peacefully engaging in protests” unless there was “a specific threat of physical harm.” Mayor Durkan couldn’t increase that to a total ban on tear gas without first obtaining federal court approval, the state Supreme Court said.
A trial court rejected most of the charges in the recall petition on July 10 but allowed the petitioners to proceed with claims the mayor “endangered the peace and safety of the community” by failing to rein in the police after learning they had used chemical agents.
The Washington Supreme Court said the allegations against the mayor “are deeply troubling and certainly cannot be considered frivolous.” But “Mayor Durkan, while a very experienced attorney, has no experience in running a police department or being a police officer, and attempting to do so for the first time during an ongoing crisis seems unreasonable.” Further, Chief Carmen Best resigned and has been replaced but the petitioners contend the abuses continue, “indicating that replacing the chief would not have solved the problem.”
The mayor did order the police to comply with the temporary restraining order when closing Cal Anderson Park on July 1, and if that didn’t work, the court said, “it is not manifestly unreasonable to think that another order to comply would not have resolved the situation.” The idea she could order “mediation between the parties” wouldn’t have worked either, the court went on, because most of the violence was committed by people who “appeared to be unaffiliated with the peaceful march.”
The mayor couldn’t change policies, such as banning the use of tear gas and pepper spray, without the approval of the federal court. Had she turned a blind eye to the entire matter, the petitioners might have had a case, the court said, but she took action in numerous ways including expressing support for the protesters.
If the allegations are true, “then those responsible must be held accountable, including Mayor Durkin,” the court concluded. “However our precedent does not allow Mayor Durkan to be held accountable on these charges through the process of a recall election.”
Seattle taxpayers will pay the $240,000 in legal costs Mayor Durkan incurred fighting the recall. Separately, she announced she will not run for reelection.