West urges justices to toss recall petition

Mayor Jim West’s private life shouldn’t be a cause for his ouster from public life, the mayor’s attorneys argued in a brief filed Thursday with the state Supreme Court.

A proposed recall petition is poorly written and badly documented, and a trial court judge overstepped his authority by giving the allegation of misusing the mayor’s office a wholesale rewrite, contends the appeal that seeks to toss the recall effort.

“This case illustrates why the private conduct of public officers should not be sufficient for recall,” the three attorneys argue. “Mayor West’s sexuality, private affairs and presumptively private online conversations and e-mails have nothing to do with the performance of his official duties.”

But that’s the real focus of the recall, attorneys Bill Etter, Susan Troppmann and Carl Oreskovich wrote.

Although West, 54, has admitted using a gay chat line and has described himself at various times as gay or bisexual, recall sponsor Shannon Sullivan said Thursday evening the effort has nothing to do with the mayor’s sexuality. His attorneys should be “ashamed” of couching the effort in those terms, she said.

“It is a moral issue, period,” Sullivan said. “It wouldn’t matter if it was an 18-year-old girl instead of an 18-year-old boy.”

In releasing the brief, the attorneys said they don’t feel it’s appropriate to comment on the appeal while it is pending before the Supreme Court.

Sullivan based her petition on allegations of sexual misconduct and West’s misuse of his political office that began appearing in The Spokesman-Review on May 5. The complete collection of articles regarding the allegations against West and the recall effort can be found on the Internet at www.spokesmanreview.com.

As part of the in-depth investigation, the newspaper hired a forensic computer expert to confirm an 18-year-old Spokane resident’s allegations that he met West on a gay chat line, agreed to meet him in person and had consensual sex with him. The computer expert used the name Brock Stewart and the e-mail identity “Moto-Brock” with West.

The mayor’s appellate brief concedes that West “had an online relationship with the fictional ‘Mr. Stewart,’ ” which the lawyers said consisted of “e-mails and internet chats during which they discussed personal issues.” But there’s no proof that West was chatting online from his City Hall office or on a city computer, they add.

“Mayor West merely invited someone he met online to apply for an internship. Inviting a friend, relative or acquaintance (in this case an imposter hired by The Spokesman-Review) to apply for an unpaid, short-term internship cannot be deemed manifestly unreasonable. Such an innocuous act should not subject a public official to recall.”

Sullivan had no firsthand knowledge of West’s actions and based the petition on the newspaper accounts, the lawyers said. But the transcript of the conversation between West and Moto-Brock was incomplete, and the newspaper acknowledged that a technical problem prevented the recording of the portion in which the internship was offered.

“Thus, Ms. Sullivan’s ‘knowledge of identifiable facts’ comes primarily from newspaper stories containing online transcripts prepared by an unknown person,” the lawyers argue. “Unverified information from an unnamed source contained in newspaper articles is not sufficient basis to support a recall election.”

As part of their appeal, the attorneys included copies of an editor’s note explaining the technical problem with the March 8 transcript, and a “Fact Check” published on July 3 that also says a portion of that day’s conversation was lost. But the “Fact Check” the attorneys provided the court primarily takes West to task for inaccurate assertions he had made about The Spokesman-Review’s investigation.

Sullivan said she found it hypocritical that West’s attorneys were saying her knowledge was insufficient because it came from the newspaper, then using the newspaper to try to make their case and giving the Supreme Court information about West’s misstatements.

“I’ve gone to great lengths not to slam the mayor, because I believe he’s doing a good job of that himself,” she said.

Another reason to dismiss the recall petition is the changes Judge Craig Matheson made to Sullivan’s petition, West’s attorneys argue.

State law allows a judge to correct inadequacies in a recall petition. But Matheson did more than that by adding details and dates he gleaned from information Sullivan submitted at a hearing in Spokane County Superior Court, and exceeded his authority, West’s attorneys argue.

“A ‘corrected’ ballot synopsis should provide no more information than the petition presents in the statement of charges,” they contend. “In this case, the Superior Court composed an entirely new charge.”

The fact that Matheson rewrote the synopsis without giving West a chance to object to the new wording was also improper, they add.

Jerry Davis, one of the attorneys helping Sullivan, has said Matheson was merely following the law in rewriting the ballot synopsis.

While West’s attorneys cite a long list of cases as precedents for their arguments, Sullivan said Thursday most of those were cases she expected to see. “I’ve got precedents, too,” she added.

Sullivan’s reply is due Aug. 5, and West’s attorneys will have until Aug. 15 to respond. The state Supreme Court will hear the case on Aug. 24, which Spokane election officials said this week is too late to put the recall on the Nov. 8 ballot, even if the court decides immediately in Sullivan’s favor and the required 12,600 signatures are gathered quickly.

A city election solely for the recall would have to be held either late this year or sometime next year if the signatures are gathered, which would cost $140,000 or more.