Judge approves 2nd recall effort against Sheriff Fortney

EVERETT — A second group seeking to recall Snohomish County Sheriff Adam Fortney will be allowed to gather signatures to get on the ballot in the coming year, a judge signaled Tuesday, in an effort further accusing the sheriff of misconduct in his brief time in office.

Both petitions were sparked by Fortney’s public criticism of Gov. Jay Inslee in April, when he stated in a viral Facebook post that Inslee’s stay-home order amid the coronavirus pandemic was unconstitutional, in the sheriff’s opinion, and that his deputies would not enforce it.

“As your elected Sheriff I will always put your constitutional rights above politics or popular opinion,” Fortney wrote on April 21. “We have the right to peaceably assemble. We have the right to keep and bear arms. We have the right to attend church service of any denomination. The impacts of COVID 19 no longer warrant the suspension of our constitutional rights.”

San Juan County Superior Court Judge Kathryn Loring heard more than 1½ hours of argument Tuesday via the video meeting app Zoom, by a committee of four local attorneys advocating for Fortney’s removal from his elected position.

“This is not simply political speech made by a candidate for office,” said one of the petitioning attorneys, public defender Colin McMahon. “These are attacks made on the rule of law, made by the very person who is charged with the duty of enforcing that law.”

McMahon argued Fortney incited people to violate the order, and thereby violated his oath of office.

“Think, for example if a city puts up a speed limit sign, and says the speed limit is 25 miles per hour,” McMahon said. “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?”

The judge heard arguments from Fortney’s counsel, Mark Lamb, asserting the sheriff acted within his lawful discretion. The sheriff wrote in a statement to the judge that he has told sheriff’s staff “to focus on voluntary compliance and education,” in line with Inslee’s guidelines and actual actions when confronted with public protests.

Lamb argued Fortney deemed it unconstitutional to arrest people for exercising constitutional rights, and that the sheriff refused to make mass arrests.

Another one of the petitioning attorneys, Samantha Sommerman, countered that arrests aren’t the only way police can enforce the law. A sheriff’s deputy can give out a ticket, or issue a warning, or order crowds to disperse, or otherwise urge voluntary compliance.

After taking a 45-minute break to weigh the facts, Loring rejected Fortney’s assertions that he was exercising discretion, as police officers do all the time — suggesting instead that Fortney had done the opposite of making case-by-case decisions, by releasing a blanket statement that he would not enforce the order at all.

The judge also noted that while Fortney was posting on what had been a Facebook page for his election campaign, he was not speaking in a personal capacity but “as your elected Sheriff.”

The final ballot language still needs to be confirmed. An official order approving the new petition is expected by next week.

Unless there’s an appeal, the group will have six months to gather 44,494 signatures to get their recall effort on the ballot. Actual signature gathering is not expected to begin until late June, at the earliest.

Loring’s tentative ruling echoed another by a different judge in a separate petition for Fortney’s recall, filed by Monroe resident Lori Shavlik. Cowlitz County Superior Court Judge Stephen Warning allowed Shavlik’s recall effort to go forward on May 15. So far the two groups have acted independent of each other.

The petition at issue on Tuesday had accused Fortney of further bad conduct meriting recall: his handling of the coronavirus at the county jail; his rehiring of three deputies — Fortney’s friends and “political cronies” who had been fired for misconduct by the previous sheriff; and his swiftly and publicly absolving a deputy of misconduct, within hours of learning that the white sheriff’s employee tackled an African American medical worker who was accused of jaywalking. Sheriff’s office reports say the woman had been detained, then ran off without permission and without providing her identity. The recall committee argued Fortney could not have possibly conducted an adequate investigation into alleged misconduct in a matter of hours.

Loring did not find sufficient facts had been presented to put the jail question on the ballot, but will allow all of the other allegations to be included in the measure before the public.

“Ultimately,” Loring said, “it’s up to the voters to decide if the charges are true.”

In April, Snohomish County Prosecutor Adam Cornell denied Fortney’s request to spend taxpayer money to fight the first recall effort. Cornell likened Fortney’s public post to “yelling ‘fire’ in a crowded theater.”

Other sheriffs, including Riverside County Sheriff Chad Bianco in California, vocally refused to enforce similar stay-home orders. Fortney applauded Sheriff Bianco in a Facebook post on May 17.

“He clearly thinks this has now become political and he refuses to make criminals out of law abiding citizens trying to make a living for their families,” Fortney wrote. “Sound familiar? I wonder if Mr local prosecutor also thinks this is ‘screaming fire in a crowded theater’ or an elected Sheriff standing up for the people in his county?”

As evidence supporting a recall, both petitions cited a Snohomish barber’s widely reported statement that he had been emboldened to reopen in defiance of the Democratic governor’s order, because of Fortney’s post. During his run for sheriff in 2019, then-Sgt. Fortney hosted a campaign event at the Stag barbershop, where owner Bob Martin, 79, is an outspoken supporter of President Donald Trump. Fortney spoke at a conservative rally protesting — and actively defying — the governor’s order on May 23.

Sheriff is a nonpartisan elected position in Washington.

“I am facing a recall election for being an elected Sheriff and speaking in support of our constitutional rights,” the sheriff wrote May 27. “This is not republican vs democrat, left vs right, or liberal vs conservative issue, this is an American issue!”

Fortney had been in office less than five months when Shavlik’s effort had its hearing. The second group of four attorneys — McMahon; Sommerman, a criminal defense lawyer; immigration attorney Terry Preshaw; and civil attorney Brittany Tri — filed for a recall on the same day. Judges from opposite corners of the state were called to hear the two cases in Snohomish County Superior Court in an effort to avoid a conflict of interest.

After Shavlik’s recall petition moved forward, Fortney’s attorney filed a motion seeking a new judge for Tuesday’s hearing, stating a “fair and impartial hearing in this case cannot be had before Judge Warning.”

The court hearing Tuesday was streamed live on YouTube — part of a new policy in Snohomish County Superior Court, a reflection of precautions taken by local courts to limit the number of people in the courthouse during the ongoing pandemic. The sheriff’s office is on the fourth floor of the building.

Both recall efforts have signed up with the state Public Disclosure Commission to collect donations to fund their efforts.

Shavlik registered as “Recall Adam Fortney.” A gofundme page set up in Shavlik’s name had raised $4,200 as of Tuesday.

The four attorneys registered as “Committee to Recall Snohomish County Sheriff Adam Fortney, 2020.” The committee is accepting donations at recallfortney.nationbuilder.com.

“We have no doubt that Snohomish County citizens recognize that Fortney is not who we thought he was,” McMahon said in a written statement Tuesday. “He has done so much damage to Snohomish County in his only six months in office. I am confident Snohomish County citizens will say, ‘Enough.’”

Fortney has said he’s back in campaign mode and preparing to fight to keep his job. One online fundraiser had raised about $70,000 to support him as of Tuesday. The sheriff is also asking for donations through the website defendsherifffortney.com.

“While I think the recall effort is ridiculous, frivolous and a distraction away from the important job of public safety in Snohomish County, I have to plan for the worst,” Fortney wrote in late May. “I did not want this fight, but I will not shrink from it!”

Caleb Hutton: 425-339-3454; chutton@heraldnet.com. Twitter: @snocaleb.