The petition to recall Sen. Doug Ericksen, R-Ferndale, was dismissed Thursday by Whatcom County Superior Court Judge Raquel Montoya-Lewis.
The recall effort was based “on the way in which some of his constituencies would like him to carry out his duties, but not a legal requirement about how he must carry out those duties,” Montoya-Lewis ruled Thursday. “Therefore, the court concludes that is best answered through the electoral process rather than the recall process.”
Ericksen, who was in Olympia for votes on legislation, didn’t attend the hearing. He was represented by attorney Jackson Maynard.
A group of 42nd District voters began the recall effort against Ericksen on Feb. 9, saying he wasn’t adequately doing his job as a state senator while also working in Washington, D.C., as part of President Donald Trump’s transition team. They criticized him for missing at least 75 percent of the committee meetings he was scheduled to attend this legislative session in Olympia.
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“He’s been paying attention to someone else’s interests,” attorney Stephen Gockley said to the judge prior to her decision. Gockley represented Michael Shepard, one of the people behind the recall effort.
“I don’t think there’s anything that the court can find here that they (legislators) have a legal responsibility to attend a certain number of meetings,” Montoya-Lewis said in her ruling. “For the court to impose some percentage would be completely arbitrary and something that I don’t find that this court has any authority to do.”
Ericksen accepted a job as communications lead at the Environmental Protection Agency on Jan. 21, a temporary position lasting up to 120 days.
The state Legislature started its 105-day session Jan. 9.
He has continued to take his full state Senate salary of $45,474 a year.
Ericksen has said he could do both jobs while flying back and forth, expressing confidence he could keep up with what was going on in his committees in Olympia while he was in D.C.
Shepard, a Democrat and voter in Ericksen’s district, was among those leading the recall effort along with a group named Riveters Collective.
Although the judge dismissed the recall petition, Shepard saw the effort “as a real victory for concerned citizens in the district and throughout the state who are trying to hold our elected officials accountable.”
“We the taxpayers do not need to subsidize his having two jobs and moving up in his career,” Shepard said in an interview.
In Washington state, a judge must first determine whether there are sufficient grounds for a recall to continue to the next phase of gathering enough signatures to put it before voters.
Those grounds are malfeasance or misfeasance – either an unlawful act or conduct that interferes with the performance of duty – while in office, or violation of the oath of office.
Maynard argued there wasn’t a specific rule that Ericksen violated.
“The problem with the allegations, and this goes to the heart of my client’s argument today, is that they cannot point to a standard rule or law that says you have to show up to a certain number of committee meetings, you have to show up if you’re the sponsor of a bill and argue and present that bill to the committee, you have to respond to emails in a certain period of time,” Maynard told the judge Thursday.
The judge acknowledged as much in her ruling.
“There’s no standard that’s laid out in the statutes. There’s no description. There’s no case law that indicates what ‘discharge of his duties under his oath of office’ means,” Montoya-Lewis said.
After the hearing, Shepard said those who initiated the recall would regroup before deciding the next step. They could reword and resubmit the petition.
That was a possibility after they asked to introduce new information to the judge, alleging that Ericksen took his $120 per diem on three days – Jan. 31, Feb. 1 and Feb. 7 – when he wasn’t working in Olympia on legislative business for all or most of the day, in violation of state rules, according to Gockley.
Maynard said Ericksen mistakenly took the per diem on Feb. 7 and has repaid it. As for the other two dates, Maynard told the judge he hasn’t had a chance to talk to Ericksen about them, in part because the new information was filed late Wednesday.
Montoya-Lewis didn’t consider the per diem argument Thursday because its late addition didn’t give Ericksen adequate time to respond to the new allegation.