STATE EX REL. MANDATORY BUSSING v. BrooksSTATE EX REL. MANDATORY BUSSING v. Brooks
Petitioners filed recall charges in King County against all seven members of the Seattle School Board. Defendants, King County election officials, refused to issue ballot synopses on the ground that the charges are not legally sufficient to support recall. Petitioners thereupon commenced this action for a writ of mandamus compelling issuance of the ballot synopses. In response, defendants assert the legal insufficiency of the charges and, as an affirmative defense, that issuance of the requested synopses
The trial court denied the writ, concluding that the allegations of the recall charges fail to assert grounds for recall and that the allegations were fatally vague. Motions for evidentiary hearing on the affirmative defense and challenges thereto were denied without reaching the merits.
Our constitution establishes a very broad right of the electorate to recall elective public officials.1 In compliance with this constitutional mandate, the legislature enacted
any legal voter or committee or organization of legal voters of the state or of any political subdivision thereof
by preparation of
a typewritten charge, reciting that such officer, naming him and giving the title of his office, has committed an act or acts of malfeasance, or an act or acts of misfeasance while in office, or has violated his oath of office, or has been guilty of any two or more of the acts specified in the Constitution as grounds for recall, which charge shall state the act or acts complained of in concise language, without unnecessary repetition, ...
Upon presentation of such charge to the election officials it is incumbent upon them,
If the acts complained of in the charge are acts of malfeasance or misfeasance while in office, or a violation of the oath of office, as specified in the Constitution, ... [to] formulate a ballot synopsis of such charge ...
[1] This court has on numerous occasions interpreted and applied these constitutional and statutory provisions. Some basic rules may be gleaned from these prior cases. First, in determining the validity of recall charges, courts are limited to examination of the charges stated and cannot inquire into factual matters extraneous to the allegations. E.g., State ex rel. LaMon v. Westport, 73 Wn.2d 255, 438 P.2d 200 (1968). Second, courts must assume the truth of the charges in determining whethеr legally sufficient grounds for recall have been stated. E.g., Skidmore v. Fuller, 59 Wn.2d 818, 370 P.2d 975 (1962). Third, just as there can be no inquiry into the truth or falsity of the charges, there can be no inquiry into the motives of those filing the charges. Roberts v. Millikin, 200 Wash. 60, 93 P.2d 393 (1939). Fourth, recall charges are sufficiently specific if they are definite enough to allow the charged official to meet them before the tribunal of the people. E.g., State ex rel. LaMon v. Westport, supra. Finally, any one sufficient charge requires the holding of a recall election. E.g., Morton v. McDonald, 41 Wn.2d 889, 252 P.2d 577 (1953).
With this Washington concept of recall as prologue, we proceed to examine the sufficiency of the recall charges. These charges are:
(1) That acting as a member of the Board of Directors of Seattle School District No. 1, he did conspire and agree with remaining members of said Board of Directors and others, within five (5) years immediately preceeding [sic] the filing of these charges, to destroy and abandon the neighborhood public school concept, which has been in existence since the creation of said Seattle School District and relied upon by the citizens thereof, and to substitute therefor large school complexes to separate children from their families and neighborhood environments and to destroy and break down rights of parents to supervise the guidance of their children, and to make obsolete and useless existing capital improvements including school structures and facilities of said school district. He did the above acts knowing that they would require the construction of new facilities costing millions of dollars of taxpayers’ money over and above the currently existing cost of making ample provision for the education of all children in said district. At public meetings of said Seattle School Board and in press releases, he willfully and knowingly misrepresented to the citizens of the school district the true nature of the above program by stating it was only a program for desegregation of the Seattle Public Schools.
(2) That, acting as a member of and in concert with other members of the Board of Directors of Seattle School District No. 1, he has knowingly and wilfully retained one Forbes Bottomly as Superintendent of said school district despite knowledge that he is unqualified to carry out the duties of such position as evidenced by the steady decline in the quality of education in said district since the appointment of said Forbes Bottomly approximately five years prior to filing this charge.
(3) Within five (5) years immediately preceeding [sic] the filing of this charge, acting as a member of, and in concert with other members of the Board of Directors of Seattle School District No. 1, he did knowingly establish
and officially impose segregation of students by race (dejure [sic] segregation) within said school district and particularly in the Meany and Madrona schools thereof. (4) That on or about November 11, 1970, as a member of the Board of Directors of Seattle School District No. 1, he did conspire with the remaining members of the school board and with others to transfer approximately 600 white students from their established attendance areas of Lincoln and Roosevelt High Schools to the remote Garfield High School attendance area for the 1971-1972 school year, and thereafter to effect massive student transfers throughout the entire school district. The race of the students was the criterion used to determine which students in the school district would be transferred and which schools they would attend, contrary to the Constitution of the State of Washington.
(5) That on or about November 11, 1970, as a member of the Board of Directors of Seattle School District No. 1, he did conspire and agree with the remaining members of said Board of Directors and with others to transfer approximately 600 non-white students from their established attendance areas of the Garfield High School area to the remote Lincoln and Roosevelt High School attendance areas for the 1971-1972 school year, and thereafter to effect massive student transfers throughout the entire school district. The race of the students was the criterion used to determine which students in the school district would be transferred and which schools they would attend, contrary to the Constitution of the State of Washingtоn.
(6) That on or about November 11, 1970, as a member of the Board of Directors of Seattle School District No. 1, he did conspire and agree with the remaining members of said board and with others to provide school transportation only for students participating in the mandatory transfer program between the Lincoln and Roosevelt areas and the Garfield area of said school district, and to deny other students equal treatment with regard to providing school transportation during the 1971-1972 school year.
(7) That on or about November 11, 1970, acting as a member of the Board of Directors of Seattle School District No. 1, he did conspire and agree with remaining members of said Board of Directors to abdicate their
duty to exercise their best and honest judgment with regard to the budget and cost of a program of student transfers between schools in said school district for the 1971-1972 school year.
We will treat these charges in two general groups: those which pertain to the proposed school desegregation and bussing program, and those which do not purport to have that reference. As to the first group of charges, we believe the recent case of Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 28, 28 L.Ed.2d 554, 91 S.Ct. 1267 (1971), has controlling significance. In that case, the court upheld a court-ordered desegregation plan which incorporated mandatory bussing in a “Southern” school district which was infected with “de jure” rаcial segregation.2 The court said:
The remedy for such segregation may be administratively awkward, inconvenient and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the
interim period when remedial adjustments are being made to eliminate the dual school systems.
In a companion case, the court rejected the notion that school authorities cannot consider the race of students in formulating and implementing desegregation plans:
Just as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy. To fоrbid, at this stage, all assignments made on the basis of race would deprive school authorities of the one tool absolutely essential to fulfillment of their constitutional obligation to eliminate existing dual school systems.
North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 28 L.Ed.2d 586, 589, 91 S.Ct. 1284 (1971).
Although the Swann court rather clearly limited the authority of federal courts to impose desegregation plans on school authorities to situations involving “de jure” dual systems, that court also observed (Swann, 402 U.S. at 16):
School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; ...
[2] Petitioners argue that these federal precedents have no application in this case because any segregation in the Seattle schools is “de facto” and thus beyond the purview of those cases. We disagree. For our present purpose of testing the sufficiency of recall charges, the nature of segregation within Seattle schools as “de facto” or “de jure” is of no consequence. Reason impels the conclusion that, if the constitution supports court directed mandatory bussing to desegregate schools in a system which is dual “de jure,” then such bussing is within the appropriate exercise of the discretion of school authorities in a system which is dual “de facto.” In this connection, it is important to note that
[3] The remaining charges do not, on their face, have reference to the bussing plan. Charge 2 asserts that the school board members knowingly and willfully retained an unqualified superintendent of the school district “as evidenced by the steady decline in the quality of education in said district.” In State ex rel. LaMon v. Westport, 73 Wn.2d 255, 438 P.2d 200 (1968), and Morton v. McDonald, 41 Wn.2d 889, 252 P.2d 577 (1953), charges of employing officials known to be incompetent were held to be legally sufficient for recall purposes. On its face, charge 2 is also legally sufficient, assuming its truth, to support recall. The trial court erred in ruling this charge insufficient on the grounds that the facts of the case do not bear it out. The charge may ultimately prove to be unfounded, even frivolous, but courts are not empowered to make that determination. E.g., Skidmore v. Fuller, 59 Wn.2d 818, 370 P.2d 975 (1962). Defendants’ reference to the statute and rules setting forth qualifications for obtaining the office of superintendent is of no avail here, since the charge does not pertain to eligibility, but to performance while in office. As a majority of this court is unwilling to overrule the Westport and Morton cases as to what constitutes “misfeasance, malfeasance or violation of oath of office,” we must hold that charge 2 states a legally sufficient allegation.
We turn to the legal sufficiency of the remaining charge, charge 3. Here, thе parties engage in an interesting turnabout.
[4, 5] Defendants’ argument on this point has lost efficacy in light of the United States Supreme Court‘s decision in Swann v. Charlotte-Mecklenburg Bd. of Educ., supra. We find, in the language of Swann, the essence, if not the express existence of a rule expanding the meaning of the term “de jure segregation” to comprehend any situation in which the activities of school authorities have had a racially discriminatory impact contributing to the establishment or continuation of a dual system of schools, and a corresponding limit on the meaning of “de facto segregation” to include only that which is inadvertent and without the assistance or collusion of school authorities.3 The formality of a legal mandate is no prerequisite. The charge states a violation of constitutional rights and, if true, would support recall.
The trial court indicated that, should any charge be found legally sufficient, defendants would be entitled to an evidentiary hearing on their assertion that the recall campaign is for the purpose of blocking desegregation and that issuance of a ballot synopses would constitute “state action” violative of the equal protection clause. With reference to charges numbered 2 and 3, defendants’ argument is unconvincing. Neither chаrge has any express relevance to the bussing plan and there is nothing intrinsic therein which would have a discriminatory effect. Of course, the recall process is not invalid state action per se.
[6] Defendants cite Reitman v. Mulkey, 387 U.S. 369, 18 L.Ed.2d 830, 87 S.Ct. 1627 (1967), and similar cases to support their position that a political process, such as recall, cannot be used to thwart
Affirmed as to charges 1, 4, 5, 6 and 7. Reversed as to charges 2 and 3, and remanded for proceedings in accordance hеrewith.
HAMILTON, C.J., FINLEY, ROSELLINI, STAFFORD, and WRIGHT, JJ., and RYAN, J. Pro Tem., concur.
HALE, J. (concurring in part; dissenting in part)
This is not a school segregation,
In my judgment, the people wrought better than the court allows when they adopted the eighth amendment to the state constitution. The amendment rests upon what seems to be the sound proposition that, in the long run, the people are capable of governing themselves; that they know or will ultimately learn what is the best course to take and that, if mistakes must be made, they reserve for themselves the primary right to make them. The Eighth Amendment was and is one of a trinity of devices, along with the initiative (
The point to be reemphasized here, therefore, is that this is a recall election matter and not a school segregation,
The court strikes down charges 1, 4, 5, 6 and 7 of the recall petitions on the assumption that they do no more than assert that the Seattle School Board should be punished by recall for discharging its duties under the
The state constitution accords to the courts no special powers either to endorse or to repudiate the Seattle School Board in the discharge of its office. Whether the board members carried out their offices superbly and with great dedication and industry or poorly and with indifferent competence is none of this court‘s affair in the case before us. Nor are we concerned with the motives of those who would recall the board — whether they acted from a high sense of
The people, speaking in the manner provided by law, may discharge their public officers for any cause, or without any cause, as their laws may provide. Indeed, the people‘s rights are as complete in that respect as when they choose such officer. In other words, as against the people, a public officer, their servant, has no rights whatever, so far as his possession of the office is concerned, which may not be ignored by the people speaking in a lawful manner. While it seems true that, under this constitutional provision, an officer is to be removed for cause only; yet, the question being purely a political one, unless expressly provided otherwise by statute or constitution, it is manifest that the tribunal before whiсh the sufficiency of the cause is to be tried is that of the people. It may be that the courts have jurisdiction to determine the sufficiency of the statement of the allegations made as cause for removal if presented in a proper proceeding involving the question of the calling of the election, but the trial of the question of whether such cause actually exists, and as to whether the officer shall be discharged, is to be had before the tribunal of the people and decided by them at the polls.
Under the recall amendment, therefore, this court is not concerned with and should not inquire into the motives of the sponsor of the recall movement, nor examining the truth or falsity of the charges upon which the recall depends, nor weigh the motives of the sponsors of the recall or the electors in voting to recall or retain the public officers against whom the recall is directed, or whether, in
We repeated that statement in Roberts v. Millikin, 200 Wash. 60, 67, 93 P.2d 393 (1939), where a state senator was charged in recall petitions with agreeing, in exchange for the votes of other state senators on measures he favored, to vote for a bill to which he was in principle opposed. Holding that this conduct sufficiently charged malfeasance and referring to the above quotation from Cudihee v. Phelps, supra, this court said:
Now, if the cоurts are without power to inquire into the truth of the charges, they are, with much greater reason, without power to inquire into the motive of the persons filing the charges.
As the court in the instant case says, we have never departed from any of these principles in a long line of decisions.
Our only concern in this case, therefore, is whether the charges are legally sufficient to meet the requirements of the recall amendment (
Each of the charges here, I think, describes conduct in office constituting either malfeasance or misfeasance or violation of oath — either separately or in combination. Malfeasance means the doing of an act that is unwarranted; an act one has contracted not to do; that is legally unjustified, or positively wrongful or contrary to law, whereas misfeasance
I agree that malfeasance, misfeasance and violation of oath mean misconduct amounting to more than mere irregularity (43 Am. Jur. Public Officers § 195 (1942)), but a reading of the charges seriatim in this case will, I think, show that these deleted charges assert much more than mere irregularity. Charge No. 1, inter alia, says that board members conspired to “destroy and break down rights of parents to supervise the guidance of their children” and to waste public money by making existing school buildings and facilities obsolete and that they intentionally misrepresented this process as a means of achieving racial desegregating оf the schools. These charges, I think, charge malfeasance, misfeasance and violation of oath.
There is little difference beween this charge and charge No. 3 as upheld by the court. Thus, a reasonable reading of charge No. 3 will lead one to conclude that it says that board members, acting in concert with other members, imposed racial segregation within the district, and particularly in the Meany and Madrona schools. Racial segregation is wrong, I believe, and to assert it charges either malfeasance or misfeasance or violation of oath, and probably all three.
Charges Nos. 4 and 5 similarly say that the board members conspired with the other members of the board to compel 600 white children to transfer their attendance
Whether the asserted actions of the board in ordering selective compulsory bussing were designed to curtail racial segregation in the schools, or, if carried out, will have a salutary effect on racial integration does not affect the legal sufficiency of the charges. Those are questions to be decided by the voters when validly put to them — or by a court of competent jurisdiction at another time. Since the court cannot under the constitution look beyond the face of the charges to test their sufficiency, it should not give legal effect to a defense which under the constitution must be presented only to the voters.
Charge No. 6, while possibly repetitious of charges 4 and 5 with respect to mandatory racial segregation, goes further to say that in practicing racial discrimination the board also denied children equal transportation privileges on account of their race; and charge 7 says that the board members did conspire and agree with the other members not to use their honest and best judgmеnt in providing the budget and expenses for student transportation by bus during the 1971-72 school year. If failure to use both honest and best judgment when making up the budget and calculating the costs of a school program does not charge malfeasance or misfeasance or violation of oath, I do not know what conduct, short of charging a serious crime, does do so.
At the risk of being repetitious, it should be said that accusations may be wholly false, maliciously inspired and malevolently stated. But we are not the judge of that. The people are the judges both of the truth of the accusations and the motives which inspired them. So final and all conclusive and so broad is the discretion vested in the electorate by the state constitution that the people might well believe the charges true, and yet in their analysis and balancing of the equities nonetheless elect to retain the
This court has steadfastly held to the rule that, if the charges assert wrongful acts or substantial misconduct, then it is the people and not the courts who make the decision. Thus, in Cudihee v. Phelps, 76 Wash. 314, 330-31, 136 P. 367 (1913), we said:
[U]nder this constitutional provision, an officer is to be removed for cause only; yet, the question being purely a political one ... it is manifest that the tribunal before which the sufficiency of the cause is to be tried is that of the people.... [T]he truth of the charges upon which the officer is sought to be recalled is triable befоre the people rather than before the courts.
Vote swapping, as earlier noted, although completely legal, without regard to the merits of the issues under consideration, was considered sufficient misconduct to permit the people to judge it in a recall election. Pybus v. Smith, 80 Wash. 65, 141 P. 203 (1914); Roberts v. Millikin, 200 Wash. 60, 93 P.2d 393 (1939). This court has stood foursquare upon the proposition that, if the recall charges describe “any wrongful conduct that affects, interrupts, or interferes with the performance of official duty,” it is conduct amounting to malfeasance or misfeasance or violation of oath of office and is sufficient ground for recall. Danielson v. Faymonville, 72 Wn.2d 854, 435 P.2d 963 (1967). I would stay with that rule.
Therefore, I concur that charges 2 and 3 are sufficient, but I would go further and hold the others are likewise sufficient to constitute grounds for recall.