OLYMPIA, Wash. (Legal Newsline) - A Seattle-area county sheriff who loudly criticized Washington Gov. Jay Inslee’s stay-at-home orders and said he wouldn’t enforce them can face a recall campaign, the Washington Supreme Court has ruled.
A month after the governor issued statewide emergency rules for controlling the spread of COVID-19 in February 2020, Snohomish County Sheriff Adam Fortney stated on his official Facebook page that the rules were unconstitutional and his office “will not make any arrests or take anybody to jail for violations.”
Sheriff Fortney’s actions were sufficient to support recall charges that he had incited citizens to break the law, the state Supreme Court ruled. The majority rejected the opinion of a dissenting judge that Fortney had merely criticized the governor’s policy and publicly announced he would exercise his discretion on whether to arrest violators, much as law enforcement in other Washington counties decided against arresting violent protesters over the summer.
In his Facebook post, Sheriff Fortney objected specifically to the exemptions Gov. Inslee made for certain businesses including marijuana vendors and said citizens should be free to make a living if they felt it was worth the risk.
“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,” the sheriff wrote in his March 23 post. “If pot shops are essential, then why aren’t gun shops essential?”
Soon after he made those comments, a 79-year-old barber reopened his shop, reportedly to a line of unmasked customers. In May, several residents of the county north of Seattle filed recall charges against the sheriff, accusing him of refusing to enforce the law, inciting others to break it, rehiring deputies that had been fired for various allegations of breaking the rules and failing to investigate a deputy who tackled and injured a black woman for jaywalking.
Fortney agreed to face recall for failing to enforce the stay-at-home order but fought the other charges in court. A trial court allowed most of the recall charges to proceed, and Fortney appealed to the state Supreme Court.
In its decision, the court noted that it doesn’t review the truth of recall charges but only makes sure they aren’t frivolous or unsubstantiated. Elected officials can be recalled for misfeasance, malfeasance or violating the duties of their office. Recall petitioners must state the rule or law the official violated and back the claim up with specific supporting facts.
Sheriff Fortney argued he shouldn’t face recall for criticizing the governor’s emergency measures. The court ruled he had gone beyond mere criticism, using his “discretionary power to refuse to enforce” the law “with the objective of inciting noncompliance in the midst of a pandemic.”
“That reasonable minds may disagree about the interpretation of Fortney’s words is precisely why this charge should proceed to the voters,” the majority ruled.
While the sheriff didn’t mount a First Amendment challenge to the recall, the court went on, that wouldn’t matter anyway. The First Amendment protects citizens against the government, not government officials against citizens.
Judge Gordon McCloud dissented in part, saying a sheriff could be recalled for inciting people to break the law, but Fortney hadn’t done that. At the same time as he was criticizing the governor and saying he wouldn’t enforce the COVID restrictions, the sheriff said he believed education and persuasion were more effective and urged voters to contact their elected leaders.
“Taken together, these facts do not show a blanket refusal to enforce or an incitement to violate the law,” the dissenting judge wrote. “They show a decision to focus on education and persuasion to comply with the law, while also expressing disagreement with the law, and then making those decisions very public.”
The court also allowed the recall to proceed over rehiring three deputies that had been fired by his predecessor for various alleged violations, including one case in which a deputy shot and killed a driver because his “spidy sense” told him the driver was armed. The victim had a handgun in his glove compartment.
The court rejected a fourth charge that Fortney had failed to investigation an incident where a deputy chased and tackled a woman who ran away after being accused of jaywalking. The petitioners didn’t provide enough facts to support their allegations, the court ruled.