In the Matter of the Recall of Telford & McGregor
The issues are better summed up by the court itself. I will just quote this for your reading pleasure.
West argues that a comprehensive scheme of harbor improvements must be a single document, titled "comprehensive scheme," and asserts the port has no such document. West also alleged Telford approved a lease without first subjecting it to State Environmental Policy Act (SEPA) (ch. 43.21C RCW) review.
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The petitioner also presents a constitutional challenge to RCW 29A.56.110-.140, arguing the requirement that a recall petition be reviewed by a superior court for factual and legal sufficiency is an unconstitutional limit on citizens' right to recall public officials.
Now I don't know about you, but I am very worried that those whacky superior court justices pay no mind at all to the Washington Constitution. I don't think any court should be able to limit my right to recall. In fact, just this morning I set up a soap box down by the waterfront and tried to recall a man I just met after he wouldn't give me any spare change.
Because the current statutory language provides for adoption of the scheme by the port, not by the voters, the current language of the statute does not support West's argument that the legislature intends the scheme to be contained in a single document labeled comprehensive scheme of harbor improvements in order to facilitate the voting process.
Moreover, neither the statute nor the case law requires that the comprehensive scheme must consist of a single document titled "comprehensive scheme." Nothing in the statutory language specifies the required length, content, or title of the comprehensive scheme. Thus, as the commissioners argue, the statutory requirement for a comprehensive scheme of harbor improvements may be met through a single document or a series of documents.
In other words, the Port has some leeway in developing its scheme. As to the charge that the lease was a violation of SEPA, you need to show a little bit more to get to a recall. You need to show that the government official believed he was violating the law in doing so:
While some inferences are permissible in a recall petition, on the whole, the facts must indicate an intention to violate the law. . . . West presents no evidence that Telford intended to violate SEPA except a December 16, 2008 hearing examiner opinion finding that the lease was not exempt from SEPA review, which was rendered months after Telford approved the lease under the belief it was exempt. Moreover, Telford and McGreggor present evidence that the lease did undergo SEPA review. . . . The commissioners point to the port's "response to reconsideration" of SEPA review, which discusses the lease. . . .
The existence of the MDNS shows that at the time he approved the lease, Telford acted under the port's determination that the lease was exempt from SEPA review. The charge is legally and factually insufficient because there is no evidence Telford intended to violate SEPA by approving the lease, and the MDNS provides legal justification for Telford's actions.
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