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AGO 1960 No. 117 - May 03, 1960
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John J. O'Connell | 1957-1968 | Attorney General of Washington

JUSTICES OF THE PEACE - RECALL - SUFFICIENCY OF CHARGES IN PETITION FOR RECALL AS CONSTITUTING MISFEASANCE, MALFEASANCE, OR VIOLATION OF OATH OF OFFICE.

The charges upon which a demand for recall of a justice of the peace is based must relate to the performance of an official act by the justice of the peace and must not be so lacking in particularity as to render the charges vague and unclear.

                                                                  - - - - - - - - - - - - -

                                                                    May 3, 1960

Honorable Charles O. Carroll
Prosecuting Attorney
King County
County City Building
Seattle 4, Washington                                                                                             Cite as:  AGO 59-60 No. 117

Dear Sir:

            This is in reply to your letter of April 14, 1960, concerning the recall proceedings instituted against Municipal Traffic Judge William H. Simmons.  Your letter posed a question which we paraphrase as follows:

            Whether any of the charges upon which the demand for recall of Judge Simmons is based are sufficient to constitute misfeasance, malfeasance, or a violation of the oath of office, on the part of Judge Simmons?

            We answer your question in the following analysis.

                                                                     ANALYSIS

            There can be no doubt, of course, that Judge Simmons, an elected public officer, is subject to recall proceedings upon proper charges.  Washington State Constitution, Art. I, §§ 33, 34 (Amendment 8) and Chapter 146, Laws of 1913 (now codified in Chapter 29.82 RCW).  It is equally clear that the charges upon which the demand for recall is based must constitute acts of malfeasance or misfeasance, or a violation of the oath of office, in order for the county auditor to prepare a ballot synopsis to appear on the petition for recall.  Chapter 146, § 3, Laws of 1913.

             [[Orig. Op. Page 2]]

            Prior to considering each of the four charges contained in the demand for recall of Judge Simmons, we feel that some general observations on the subject of misfeasance and malfeasance on the part of a public officer are in order.  In the case of State v. Miller, 32 Wn. (2d) 149, 152, 201 P. (2d) 136 (1948), the court draws the following distinction between misfeasance and malfeasance:

            "There is a distinction between misfeasance, . . . and malfeasance.  Misfeasance means the improper doing of an act an officer might lawfully do; or, in other words, it is the performance of a duty in an improper manner. . . .  Malfeasance has been defined as follows:

            '"Evil doing; ill conduct; the commission of some act which is positively unlawful; the doing of an act which is wholly wrongful and unlawful; the doing of an act which the person ought not to do at all; the doing of what one ought not to do; the performance of some act which ought not to be done; the unjust performance of some act which the party had no right, or which he had contracted not, to do."  38 C.J. 344.

            '"The terms malfeasance and neglect of duty are comprehensive terms and include any wrongful conduct that affects, interrupts, or interferes with the performance of official duty."  State v. Ward, 163 Tenn. 265, 43 S.W. (2d) 217.'  State ex rel. Knabb v. Frater, 198 Wash. 675, 89 P. (2d) 1046."  (Emphasis supplied)

            It is our opinion that recall of an elected public official is essentially a form of removal by which final determination is left to the elector.  See Jacobsen v. Nagel, (Minn.) 96 N.W. (2d) 569 (1959).  Accordingly, decisions of the Supreme Court of this state concerning the removal of a public officer for official misfeasance or misconduct or malfeasance are applicable to the proposed recall of a public officer.

            In the case of State ex rel. Knabb v. Frater, 198 Wash. 675, 679, 89 P. (2d) 1046 (1939), which concerned the removal of a public officer, the court quoted, and admitted the force of the following rule:

            "'Where the constitution or a statute authorizes a removal for official misconduct or malfeasance, misconduct, or maladministration in office, or similar acts of misbehavior in office, the general rule is, that the officer can be removed only for acts or omissions relating to the performance of his official duties, not for those which affect his general moral character, or his conduct as a man of business, apart from his conduct as an officer.  In such a case, as a learned judge has remarked, it is necessary "to separate the character of the man from the character of the officer."'"  (Emphasis supplied)

             [[Orig. Op. Page 3]]

            We consider the following rule from 51 C.J.S. Justices of the Peace, § 9b (2) p. 28, pertinent:

            "However, in order to warrant the removal of the justice, the acts charged against him must have been done in the discharge of his functions as a justice, and with corrupt, partial, malicious, or other improper motives, and with knowledge that they were wrong, . . ."  (Emphasis supplied)

            In regard to the oath of office which Judge Simmons took as specified in RCW 35.20.080, our court has stated that an oath of office, in its simplest terms, merely requires an office holder to perform the duties of his office honestly, faithfully, and to the best of his ability.  Huntamer v. Coe, 40 Wn. (2d) 767, 772, 246 P. (2d) 489.  In fact, the oath of office which Judge Simmons was required to take was that he would faithfully discharge the duties of the office of the Judge of the municipal court of the City of Seattle, according to the best of his ability.  Therefore, in considering the charges as a violation of the oath of office of the judge, we must be guided by the standard which requires the charges to be acts which are contrary to the faithful discharge of the duties of the office.

            Lastly, this office assumes the truth of the charges for the sole purpose of determining whether the charges are sufficient to constitute misfeasance, malfeasance, or a violation of the oath of office.  See Roberts v. Millikin, 200 Wash. 60, 93 P. (2d) 393 (1939).  However, nothing in this opinion must be construed or inferred as an expression which concerns the actual truth or falsity of the charges.

            With the above observations in mind, we will now consider each of the four charges upon which the demand for recall is based.  For the sake of clear presentation, the numerical order of the charges, as they appear in the demand for recall, has been changed.

            As to Charge No. 3:

            "On or about December 13, 1959, Judge Simmons visited the City Jail.  His actions were of such a grave nature that the Police Department prepared a directive giving special privelege [sic] [[privilege]]to City Officials in that they could not be arrested for breaking the law until a ranking officer could be called to the scene to make the arrest.

            "This act of malfeasance and violation of his Oath of Office also caused the Police Department to violate the Washington State Constitution."

            The acts complained of in Charge 3 are not sufficient to constitute grounds for recall.  Charge 3, read as a whole, is too vague and indefinite to constitute a charge of misfeasance, malfeasance, or a violation of oath  [[Orig. Op. Page 4]] of office of Judge Simmons, because the charge is wholly lacking in particularity as to what actions of a "grave nature" were committed by Judge Simmons in his visit to the City Jail.  Further, there is no allegation, express or implied, that such actions were in any way related to the performance of any official duty of Judge Simmons.

            As to Charge No. 4:

            "On or about July 14, 1959, Judge Simmons visited the Barie Tavern, in the vicinity of Renton, Washington.  He demonstrated to everyone present that He [sic] was the Judge Simmons, of Seattle by handing out his personal business cards.  His other actions were so unlawful in character that a warning citation was issued to the owner of the Tavern, by the Washington State Liquor Board.

            "This action constitutes malfeasance in the deepest respect and in a more important instance violates his Oath of Office in a most flagrant manner by intentionally violating the laws of common decency, which he has sworn to uphold."

            The acts complained of in Charge 4 are not sufficient to constitute misfeasance or malfeasance, because the charge is vague and unclear in that it in no wise specifies what "unlawful actions" were committed by Judge Simmons in the Barie Tavern.  As in Charge 3, there is also no allegation, express or implied, that Judge Simmons was acting in the performance of any official duty.

            As to Charge No. 1:

            "During the late Summer of 1959, Judge Simmons went to the office of City Councleman [sic] [[councilman]], Paul J. Alexander and demanded an increase in his expense account.  This demand in violation of the City Charter, the Washington State Code, The State Constitution, thus, a violation of his Oath of Office."

            The act complained of in Charge 1 is not sufficient to constitute common-law misfeasance or malfeasance.  RCW 35.20.120 is broad enough to provide for an expense account of the Judge.  If Judge Simmons felt that his expense account should be increased, then it was proper for him to place his request before a member of the city council.  The increase of a true, reimbursable expense account during the term of office of an elected state official is not an increase in compensation and is, therefore, not prohibited by the Washington State Constitution.  SeeState ex rel. Todd v. Yelle, 7 Wn. (2d) 443, 110 P. (2d) 162.  Therefore, it follows that the mere demand for an increase in an expense account could hardly be construed as misfeasance, malfeasance, or a violation of the oath of office of Judge Simmons.

             [[Orig. Op. Page 5]]

            As to Charge No. 2:

            "At this same meeting, as described in Charge No. 1, Judge Simmons threatened to reduce the revenue to the City, from his Court, by half a million dollars a year if his demands for an increased expense account and new office equipment were not allowed.

            "This action constitutes malfeasance, misfeasance, and a violation of his Oath of Office."

            This charge in effect alleges that Judge Simmons threatened that if his request for increased expenses and new office equipment were not granted, the exercise of his judicial discretion in imposing fines would be influenced by the fact that his request was denied.  We may assume, for purposes of this opinion, that if such a threat were carried out, it would be a violation of his oath of office and would constitute malfeasance, on the grounds that he was influenced in the exercise of his official discretion by a motive that was clearly improper.  See Commonwealth v. Peoples, 345 P. 576, 27 A. (2d) 792.  However, the only charge is that such a threat was made, not that it was carried out; accordingly, the determinative issue is whether the mere threat constitutes malfeasance, misfeasance, or violation of oath of office.  Applying the rule already quoted from State ex rel. Knabb v. Frater, 198 Wash. 675, 89 P. (2d) 1046, it is our opinion that, although the threat is clearly one which could have been made only because Judge Simmons held the official post that he did, still it does not seem to be an act relating to the performance of his official duties as judge, for there is no charge and no necessary inference from the above charge that the threat actually influenced Judge Simmons in the performance of his official duties.

            We find nothing in the decisions of our Supreme Court, or in those of other jurisdictions, which would alter this conclusion.

            In the event new or revised charges are presented to the Auditor of King County in a future petition for the recall of Judge Simmons, we trust the foregoing will serve as a guide to you in advising the auditor as to the legal sufficiency of the new or revised charges.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP M. RAEKES
Assistant Attorney General

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