A judge has ruled that a second recall petition against Snohomish County Sheriff Adam Fortney can move forward. Four local attorneys had filed this petition, alleging that Fortney violated his oath of office when he announced on Facebook in April that he would not enforce Gov. Jay Inslee’s Stay Home, Stay Healthy order.
The judge’s ruling means that three additional recall charges against Fortney in this case can also proceed because he “incited the public to violate Inslee’s order,” he rehired three deputies fired by Fortney’s predecessor, and he did not investigate a white deputy who tackled and injured a black woman for jaywalking.
Fortney has not publicly responded to this ruling. But in reply to an earlier court ruling on another recall petition, the sheriff said: “I stand by my statement that the Snohomish County Sheriff’s Office is not going to arrest people for a gross misdemeanor when they pray, go to church or express their views under the First Amendment.”
San Juan County Superior Court Judge Kathryn Loring heard the case on the second petition by telephone on Tuesday. She is handling it to avoid any conflict of interest issues with Snohomish County judges.
Fortney’s attorney, Mark Lamb, argued that the sheriff had acted legally in all four instances. Fortney sparked the two recall campaigns when he used his Facebook campaign page to publish a letter critical of Inslee’s COVID-19 restrictions. In that Facebook post, the sheriff promised Snohomish county residents his deputies would not enforce the state restrictions; that he believes it is unconstitutional to arrest people for exercising their constitutional rights to run businesses, gather in groups and attend religious services. Lamb also told the judge that Fortney had told his staff “to focus on voluntary compliance and education.”
One of the attorneys who is leading the second recall team warned the court that Fortney’s actions “are attacks made on the rule of law, made by the very person who is charged with the duty of enforcing the law.”
That attorney is Colin McMahon, a public defender. “Think, for example, if a city puts up a speed limit sign, and says ‘the speed limit is 25 miles per hour,'” McMahon told the court, “and then the chief of police puts up another sign right behind that speed limit sign saying, ‘None of our officers are going to enforce this speed limit.’ What’s the result going to be?”
In her ruling, Judge Loring rejected Fortney’s position that he was exercising his official discretion, pointing out that in his statement the sheriff wrote that he refused to enforce the governor’s order at all.
According to a source close to the case who requested anonymity, Fortney may appeal part of Judge Loring’s ruling, claiming that two of the charges against him – rehiring fired deputies and not investigating claims of a deputy assault – do not meet the legal criteria for recall. If he does appeal, next stop would be State Supreme Court. That could delay any recall action for another month.
Snohomish County Prosecutor Adam Cornell has already said the county will not pay for Fortney’s defense. Cornell said that Fortney’s public statements and Facebook page posts “do not warrant a defense at public expense.”
In April, Monroe resident Lori Shavlik drafted the first recall petition, charging that the sheriff “used his position as an elected official to encourage citizens to defy the law.” Three weeks ago, Shavlik’s effort got the go-ahead from another judge. Right now, the two groups continue to work separately on their own recalls.
If both recall groups defeat an appeal, they would have six months to gather nearly 45,000 signatures to get each measure on the ballot. If a recall election happens, it could come late this year or early in 2021.
— By Bob Throndsen