Thursday, January 14, 2021

COVID- Denying Sheriff Faces Recall For Incitement

The Washington State Supreme Court has held that an elected sheriff  is subject to recall for inciting disobedience of a COVID order

Fortney argues that the incitement charge is legally and factually insufficient because his refusal to enforce the law does not constitute inciting others to violate the law. Appellant’s Opening Br. at 36. Fortney underestimates both the significance of his words and the power of his office. Fortney unambiguously proclaimed that the Stay Home – Stay Healthy proclamation was unconstitutional and that the governor’s judgment should be questioned, and he advocated that residents had the right to work. Fortney specifically directed his message to Snohomish “business owners,” declaring that  “it is time to open up this freedom [to work]” for “small business owners,” and it was “time to lead the way.” 2 CP at 395-96.

Fortney insists that he encouraged individuals only to contact their representatives. Appellant’s Opening Br. at 36. However, the record indicates he said much more, and Fortney’s words can be reasonably interpreted as an exhortation for people to return to work. Moreover, petitioners provided evidence that Fortney’s words had such an effect on a small business owner who opened the doors of his barbershop to a line of unmasked customers. We agree with the trialcourt’s determination that a voter could reasonably conclude that Fortney’s specific words “incit[ed] folks to violate the stay-at-home order.” 1 VRP at 85.


He also will face recall for rehiring dismissed deputies.

But not for an alleged failure to investigate an incident involving the arrest of a black jaywalker.

Justice McCloud

I part ways with the majority because I cannot agree that Fortney’s public statements show complete “refusal to enforce the law” or countywide incitement to violate the law. Id. at 8-9. Instead, taken as a whole, his statements show that he disagrees with the law, that he encourages people to oppose the law—especially by writing to elected officials—and that he chooses to enforce the law through education rather than arrest. Finally, and most critically for the “incitement” charge, Fortney’s statements also show that he chose to make that enforcement decision public and transparent by posting it on social media.

I would therefore reverse the superior court’s decision to allow the incitement charge to move forward. Accordingly, I concur in part and dissent in part.

The court also unanimously  approved the recall petition of a different sheriff in an unrelated matter

The recall petition alleges 26 separate charges that, assuming, as we must, the truth of the allegations, illustrate a toxic and authoritarian culture that Sheriff Hatcher has created since his appointment in 2017.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/01/the-washington-state-supreme-court-has-held-that-a-sherrif-is-subject-to-recall-for-inciting-disobedience-of-a-covid-order-f.html

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