A petition to recall Thurston County Sheriff John Snaza from office for not enforcing the state masking mandate can move forward, a judge ruled in the county's superior court Wednesday.
After hearing arguments, visiting Judge Jeanette Dalton decided charges filed by petitioner Arthur West met the legal standard for recall -- she was not tasked with deciding whether the charges are true or false. Dalton rejected arguments from the lawyer representing Snaza, who said the sheriff was exercising his discretion.
"An absolute, unilateral refusal to honor the legislators and the secretary of the Department of Health is a classic violation of the oath to follow the law," Dalton said while issuing the ruling. "So, for that reason, I am granting the petition."
How the sheriff responded to the masking mandate
The statewide order requires citizens to wear face coverings in most public spaces, with a few exceptions, as part of the state's ongoing efforts to slow the spread of COVID-19. Under the order, violators could face a fine up to $100 or up to 90 days in jail.
In a statement posted to social media June 24, the Thurston County Sheriff's Office said it recommended that everyone exercise "safe and precautionary measures," including "wearing masks around those in high-risk groups," but that it won't criminally enforce the order.
Deputies would instead engage with people "when appropriate" and educate them, according to the statement.
"Due to the minor nature of this offense, and the possibility for a negative outcome during an enforcement encounter and various ways in which the order may be violated, it would be inappropriate for deputies to criminally enforce this mandate," the statement reads.
Several other law enforcement agencies, including the Olympia Police Department, have announced similar policies. County Prosecutor Jon Tunheim told The Olympian in an interview that he initially consulted with five local law enforcement agencies and all said they'd educate and ask for cooperation before criminally enforcing the order.
Reached by phone after the ruling, Sheriff Snaza told The Olympian he felt "sick to his stomach," hopes he didn't let anyone in the community down, and hopes what's said about him doesn't reflect on other sheriffs and police chiefs.
"I've been in law enforcement for over 28 years, and for someone to say or mention that I don't enforce the laws breaks my heart," he said.
His intent was never to not enforce the law, he said, but to educate people on why to wear masks in public rather than arresting them. He feels it's an issue with the way the statement was worded, he said.
The allegations against Snaza
In his charge filed with the Thurston County Auditor July 2, West alleges that Snaza's "refusal to perform the duties of his office impedes State, City, emergency management, and hospital officials in their efforts to protect the public during a worldwide pandemic" and meets the bar to demand his recall.
Combined with the widespread "politicization of the mask issue," West's charge reads, the sheriff's actions "must be viewed as a political effort to undermine the rule of law and our national and statewide efforts" to combat COVID-19.
Snaza's oath of office requires adherence to the law, West writes, but he instead "in effect exercised improper veto power over the enforcement provision of a State Order in a manner that has and will encourage citizens to disregard it."
He also mentions that the sheriff issued the statement about the same time his twin brother, Lewis County Sheriff Robert Snaza, told a crowd "Don't be a sheep," seemingly encouraging people to defy the order.
"The actions of our Sheriff must be taken in the context of not only the improper statements of his twin brother, but of a nationwide improper politicization of mask wearing that seriously undercuts our nation's ability to effectively combat this dangerous pandemic," the charge reads.
West reiterated his charges in a prepared speech at Wednesday's hearing, which took place via video conference, accusing Snaza of unilaterally writing sanctions out of a law due to a belief that it's a minor offense.
As in a document West filed earlier this week, he also compared this recall to petitions facing Snohomish County Sheriff Adam Fortney, who's in part accused of endangering community safety by saying in a Facebook post he won't enforce Gov. Jay Inslee's stay-home order, according to The Everett Herald's reporting.
Fortney's lawyers have appealed a superior court judge's decision to approve charges to the state Supreme Court.
Arguments in Snaza's favor
Senior Deputy Prosecuting Attorney Rick Peters, who represented Sheriff Snaza at Wednesday's hearing, argued that the conduct of his twin brother is irrelevant, and that the events in Snohomish County also aren't "particularly relevant."
There's no evidence Snaza exercised his discretion in a way that indicated he wouldn't actually enforce the mask mandate, Peters argued. But Judge Dalton pushed back, reading from the sheriff's office press release that says deputies would not be criminally enforcing the mandate.
"As I read that, the sheriff is publicly declaring that he will not have his deputies enforce the Department of Health's mandate, which, if not enforced, is a crime," Dalton said.
Peters later clarified there was no anecdotal evidence of deputies choosing not to enforce the mandate based on the sheriff's statement.
Dalton also said the first sentence of the release, which states that the office recommends people exercise "safe and precautionary measures" such as "wearing masks around those in high-risk groups," gives a mixed message.
The Department of Health's order requires everyone to wear a mask in most situations. Dalton questioned if the sheriff has the authority to "countermand" or "reinterpret" that order.
Peters also argued that in Wiesman's order the word "may" -- in the phrase "violators may be subject to criminal penalties" -- gives the sheriff discretion. The way Snaza exercised that discretion, Peters argued, wasn't "manifestly unreasonable" because the sheriff stated he intended to educate and wasn't hostile toward the mandate.
He also added that the sheriff was making the decision in part because it's not practical to enforce the mandate. The jail would be full at a time when they need to keep its population down and prosecutors couldn't handle such a heavy caseload, Peters said.
West later countered, in his response, that law enforcement officers and prosecutors have discretion in individual cases, but that a general statement of refusal to enforce the law isn't a discretionary act, but a policy act. Even if it were discretionary, West argued, it's "manifestly unreasonable" to tell people it's OK not to wear masks unless you're around someone who's high risk.
Judge Dalton's ruling
Judge Dalton in her ruling compared the discretion that's at play to the "shoplifters may be prosecuted" signs at convenience stores. The discretion isn't in willingness to enforce the law, she said, but in the ability to prove a case. It's case by case, she said, not unilateral.
Only legislators can define what is or is not a crime, Dalton said. And the statute on which the order relies says a person who violates it is guilty of a misdemeanor and subject to a fine and/or imprisonment.
"Here, the question is, is the declaration made by Sheriff Snaza a reflection of the legal discretion he does have? Or is he by his declaration saying 'I'm not going to enforce this law?'" Dalton said in the lead-up to her decision.
In his news release, Dalton said the sheriff is clear that deputies aren't going to enforce the law by arresting people, which isn't the mandate by the Department of Health. The sheriff's declaration then "runs counter to the mandate by the legislators and the clear mandate by the Secretary of Health."
West's charge alleges sufficient basis for a recall, Dalton ruled. It will be for the voters to decide whether the sheriff did their bidding, she said.
With the judge's ruling, the clock will soon start ticking for West to collect the signatures needed for the petition to go to voters in a future election. He'll have 180 days to file a petition with at least 23,027 signatures, according to an Auditor's Office timeline. The Auditor's Office would then need to verify the signatures before placing it on a ballot.
However, the sheriff could decide to file an appeal, which could disrupt the timeline.
Prosecutor Tunheim and county commissioners had approved using county resources to represent the sheriff for this first hearing, but had not, as of Tuesday, decided whether Senior Deputy Prosecuting Attorney Rick Peters will represent him in the case going forward.
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