Judge OK’s petition to recall Fortney; 2nd petition submitted

EVERETT — A Superior Court judge ruled Friday afternoon that a recall effort may proceed against Snohomish County Sheriff Adam Fortney, weeks after the sheriff stated on Facebook that he would not enforce Gov. Jay Inslee’s stay-home order, based on his belief that it was unconstitutional.

Cowlitz County Superior Court Judge Stephen Warning oversaw the telephonic hearing in Snohomish County Superior Court, where Monroe resident Lori Shavlik filed her recall petition.

Through a sheriff’s spokesperson, Fortney declined to provide a comment to The Daily Herald. He wrote on Facebook Friday afternoon that he stood by his comments.

“This afternoon a court determined that an elected Sheriff can be subject to recall for expressing political disagreement with the Governor’s policies,” he wrote. “… Although I did not ask for this fight, I will not shrink from it.”

Two recall efforts have now been sparked by Fortney’s social media post, on a publicly viewable page, “Snohomish County Sheriff Adam Fortney.” On April 21, just after Inslee gave an address outlining how the state planned to reopen the economy, Fortney publicly criticized the plan as too vague and inconsistent, taking an extra step of labeling the order unconstitutional. Within hours, Fortney’s comments went viral, drawing a highly polarized response — including criticism from the governor and state attorney general.

Shavlik moved quickly to file a recall petition against Fortney on April 23, alleging he “used his position as an elected official to encourage citizens to defy the law and violate the Governor’s Emergency Proclamations,” as well as local health directives.

Judge Warning said Friday that the governor’s order is presumed constitutional, and it would remain so unless a court finds it unconstitutional.

“The sheriff’s oath of office requires him to uphold the Constitution and laws of the state, and certainly the statements that are at issue here could be read and heard to say, ‘I will not enforce a law that I disagree with, or that I think runs afoul of the Constitution,’” Warning said.

The judge ruled Shavlik may begin gathering signatures in an effort to get a recall on the ballot later this year. If enough people sign, voters would then decide if Fortney violated his statutory duties; performed his duties in an improper manner; or neglected or knowingly failed to perform his duties faithfully as required by law.

Shavlik asked the judge if the signatures could be gathered online, in light of the extraordinary circumstances of the pandemic — as well as the very order that brought about Fortney’s post in the first place. Judge Warning said he did not have the authority to rewrite the law, and denied that request. The judge asked that both sides file any additional motions by 4 p.m. Monday.

Fortney’s attorney, Mark Lamb, asked the judge to clarify what it was that allowed the recall to move forward: the sheriff’s words, or the implied policy behind them? Warning said he didn’t make a distinction, and that the voters would have to decide.

Meanwhile on Friday, a separate group of four attorneys, in diverse legal practices, filed another petition to recall the sheriff, citing the Facebook post and other controversies since Fortney took office.

The second petition argued Fortney committed several acts of “malfeasance and misfeasance” and has violated his oath of office since becoming the county’s top cop in January. The petition noted Fortney’s handling of the jail during the virus outbreak; his decision to reinstate three deputies who were fired by the previous sheriff for alleged policy violations; and his unusually quick turnaround time in clearing a deputy of wrongdoing, after tackling a woman accused of jaywalking.

The second petition was drafted by a group of residents called the Committee to Recall Snohomish County Sheriff Adam Fortney. It was filed Friday, signed by public defender Colin McMahon, criminal defense attorney Samantha Sommerman, immigration attorney Terry Preshaw and civil attorney Brittany Tri.

Fortney is not alone in his stance that police should not actively patrol for violators of Inslee’s order. Since the order was first enacted in March, police brass around the state have said they would not arrest people for public gatherings, instead opting for an educational approach outlined by the Washington Association of Sheriffs and Police Chiefs. According to the governor, the majority of Washingtonians have complied voluntarily. A violation of the stay-home order is considered a gross misdemeanor.

Snohomish County Prosecutor Adam Cornell denied the sheriff’s request that the county pay legal fees to fight Shavlik’s recall effort. In a letter to the sheriff, Cornell said he too interpreted the post as a call to defy public health officials and the governor.

“By directly or indirectly encouraging people to disobey data-driven, science-based lawful orders handed down expressly to limit the spread of COVID-19 and to protect our health and well-being during this pandemic emergency, your statement is fairly construed to support behavior that puts all citizens at greater risk of harm and death,” Cornell wrote. “Put simply your words were akin to yelling ‘fire’ in a crowded theater.”

Fortney has denied that he ever asked people to rebel against the order.

“I have never encouraged defiance of the law,” he wrote in a May 4 Facebook post. “To the contrary, I have encouraged residents and business owners to exercise their rights under the law by reaching out and contacting their local leaders and state representatives.”

McMahon said he was aware of the first petition submitted by Shavlik, but had no plans to change course. He hoped the additional charges that his group brought would make a stronger case. There also is the possibility of merging the two petitions if they both reach the signature-gathering stage, he said.

“I believe we have a strong case and we believe it will be up to the voters very soon,” said McMahon, chair of the recall committee. “It is clear the law is on our side. Sheriff Fortney has refused to protect our health and safety.”

McMahon’s group said Fortney’s public statements went “beyond merely declining to enforce Governor Inslee’s order” and “were designed to, and in fact did, incite members of the public to willfully violate” the law.

Bob Martin, owner of The Stag Barber shop in Snohomish, said he felt emboldened by Fortney to reopen. He continued to defy the stay-home order this week, even as the state suspended his cosmetology operator license, and as the sheriff’s office served him with a cease and desist letter. Shavlik, acting as her own attorney, cited the barber’s position in her arguments Friday.

Last August, when he was still a night shift patrol sergeant aspiring to elected office, Fortney held a campaign event at The Stag.

“Sheriff Fortney is prescribing active rebellion against a legitimate public health order and, in doing so, has abdicated his right to hold the office of Snohomish County Sheriff,” the second petition states.

The petition dealt at length with the sheriff’s approach to jail bookings, as COVID-19 swept through the county. While the sheriff’s office temporarily imposed some booking restrictions, the petition alleges Fortney continued to promote arrests for nonviolent crimes, contributing to a high turnover of inmates. Between April 2 and April 16, 344 new inmates were booked into the jail, according to the statement of charges. By April 20, only 39 of those remained — largely due to the efforts of the prosecutor’s office to reduce the jail population, in an attempt to decrease exposure to coronavirus.

One man who tested positive for COVID-19 was arrested on a warrant for failing to pay court fines, from a judgment issued in 2000. It was unclear if he was confirmed positive before or after his booking.

“That man was released 24 hours later after encountering an indeterminate number of staff and inmates,” the petition says.

Meanwhile, the second petition alleged the jail hadn’t properly implemented social distancing, nor had they provided enough personal protective equipment to inmates. The petition noted several reports of inmates having to share inhalers, with no apparent sanitation protocol in place.

On April 21, the sheriff’s office lifted booking restrictions related to COVID-19. In a memo, Fortney wrote there was capacity to increase the jail population while keeping inmates in their own cells. He added the jail had exceeded guidelines for corrections facilities set forth by the Centers for Disease Control. Corrections Bureau Chief Jamie Kane noted there was enough personal protective equipment for both inmates and staff.

Also at question are Fortney’s decisions to reinstate three deputies who had been fired under former Sheriff Ty Trenary.

Trenary concluded Deputy Art Wallin violated department policy when he pursued and then fatally shot Nickolas Peters, 24, in October 2018. Just before his election loss, Trenary also found deputies Matt Boice and Evan Twedt covered up a warrantless search that was performed in 2017.

All three deputies were fired in the fall, during a heated campaign. Fortney has said any violations that may have been committed didn’t rise to the level of outright firing the deputies. He also has suggested the terminations were politically motivated. Before becoming sheriff, Fortney supervised the three deputies, who all expressed support for their sergeant’s campaign.

The second group of petitioners called Boice and Twedt’s rehiring “nothing more than cronyism,” and Wallin’s reinstatement a display of “poor judgment, reckless decision making and a complete lack of accountability.”

Lastly, the statement of charges considered the case of Sharon Wilson, a black woman who reportedly was tackled by a sheriff’s deputy for jaywalking — and reportedly when she was trying to catch a bus. She was booked into the Snohomish County Jail on March 21 for investigation of obstructing a law enforcement officer and resisting arrest. Less than a week later, and just a day after news of the arrest surfaced, Fortney defended the deputy’s actions on Facebook, saying the full context of the encounter hadn’t been given. The petition writers accused Fortney of not properly following up the complaint with a thorough investigation.

“Instead, Sheriff Fortney continued his pattern to defend his deputies against any and all allegations of misconduct in the apparent belief that his deputies are incapable of misconduct,” the petition says. “This failure to discharge his duties required by law and his department’s own policies promote the very corruption the well-written policies were intended to prevent.”

Before any signature-gathering can begin on the second petition, a Superior Court judge has to determine that the statement of charges appears sufficient to move forward, without opining on the truth of those charges. A court hearing has not yet been scheduled.

Zachariah Bryan: 425-339-3431; zbryan@heraldnet.com. Twitter: @zachariahtb.