by Lois Krafsky-Perry, Citizen Review Online

Port Angeles, WA - 9/27/01 -  John A. Bennett, a Sequim physician, went to court today in Clallam County to defend his interest as a private citizen, “ to make sure the rule of law proceeds in this country,” he told the court.

Approximately 15 people attended the proceeding, conducted at the Clallam County Courthouse by visiting judge, Thomas J. Majhan.

Bennett was the plaintiff,  versus Clallam County Commissioner Steve Tharinger  as the defendant. The issue was the Recall of Tharinger because of the breach of his Oath of Office. Tharinger represents Bennett’s voting district in Sequim.

According to Clallam County Home Rule Charter, “The fourth power to the people is that of recall. The holder of any elected office may be recalled as provided by law.” (Section 8.90. Recall.)

A letter submitted September 14, 2001 by Bennett, to Clallam County Auditor, Cathleen McKeown explains the reasons for the Recall efforts. (See http://www.citizenreviewonline.org/sept_2001/recall_complaint_by_bennett.htm) for Charges of Violation of Oath of Office Against Steve Tharinger, Clallam County Commissioner, District 1.

The charges as written by Bennett follow:

Dear Mrs. McKeown;

“Per RCW 29.82.010, I hereby advise you of my desire to initiate Recall proceedings against Steve Tharinger, Clallam County Commissioner, District 1. I am a voting resident of District 1 and hereby make the following charge against Commissioner, Tharinger, which documents the Breach of his Oath of Office.

On July 24, 2001, you presented Inititiative 6 to the Board of Commissioners. You certified that the petitions were adequate in form and number and so notified the Board of Commissioners.

The Clallam County Home Rule Charter, Section 8.50 mandates that the Commissioners shall hold a public hearing and ‘shall adopt or reject the petition on a roll call vote.’

Commissioner Chapman moved to such a public hearing, but that motion died for a lack of a second. Commissioner Tharinger argued against allowing the initiative to proceed despite Commissioner Chapman’s reference to the Charter’s mandate.

Commissioner Tharinger knew that the Charter required a public hearing, yet arrogantly decided to defy the mandate of the Charter.

I have publicly expressed my intention to proceed with recall proceedings and several members of the community have written letters to both of our local newspapers regarding their distress over Commissioner Tharinger’s reticence. Over a month has passed and there is no indication that Commissioner Tharinger has any intent to adhere to the Charter which he has sworn to uphold. My intent has always been to have the system proceed according to the Charter, but clearly Commissioner Tharinger is an impediment to the proper function of our county government. I see no alternative to charging Commissioner Tharinger with violation of this Oath of Office and demanding his Recall.

I therefore demand the action, per sections 33 and 34 of Article 1 of the Constitution of Washington State, Section 8.90 of the Clallam County Home Rule Charter, RCW 29.82.010 & RCW 29.82.015, and that you ‘promptly (1) serve a copy of this charge upon Commissioner Tharinger and (2) certify and transmit this charge to the Clallam County Prosecuting Attorney to prepare the ballot synopsis as provided in RCW 29.82.021.

Per RCW 29.82.021 (2) the Clallam County Prosecuting Attorney (the preparer) ‘shall certify and transmit the exact language of the ballot synopsis to *John A. Bennett (the person making the charge) and to Commissioner Tharinger. ‘The preparer shall additionally certify and transmit the charges and the ballot synopsis to the superior court of the county in which the officer subject to recall resides and shall petition the superior court to approve the synopsis and to determine the sufficiency of the charges.’

Per RCW 29.82.023 ‘The court shall not consider the truth of the charges, but only their sufficiency.’

I verify under oath that I believe the charges to be true and have personal knowledge of the alleged facts upon which the stated grounds for recall are based.”


John A. Bennett


Back to the courtroom

The judge was late and Craig Ritchie, a local attorney secured for Tharinger, made several telephone attempts to connect with the court. He finally got through and the proceedings started approximately 20 minutes late.

Bennett was allowed to make opening statements. “The charges are simple,” said Bennett, who referred the court to Section 8.50 of the Home Rule Charter. He pointed out the word, ‘shall’, which is a mandatory word in law. 

Bennett referred to the transcript of the July 24, Commissioners' regular meeting, where Chris Melly, Chief Deputy Prosecutor, during a discussion of initiative 6, recommended that the Commissioners proceed with the official hearing. “They [Commissioners] rejected that legal advice and elected to have a hearing. The county charter proceeded to take another direction,” said Bennett.

Ritchie, via telephone, argued several points that were countered by Bennett. 

Bennett was concerned that Tharinger did not second a motion, when he should have at the July 24 meeting of the Commissioners. 

As Ritchie presented arguments to the court, Bennett corrected Ritchie’s apparent lack of understanding of the case. The attorney was also not clear on a Mandamus that was filed at another date, and that it was not a matter in this case. 

After Ritchie rather vaguely cited other cases, ( based on referendum and not initiative) and also referred to a case by a local hyper-environmental group, Bennett said, “I will reply to Mr. Ritchie’s misunderstandings.” He clarified that there was no connection with the time of filing prior to the Mandamus hearing. “There is no relationship there,” affirmed Bennett. He stated that his main emphasis was to proceed to the ballot.

Majhan questioned Bennett about the July 24 Commissioners’ meeting. “The motion was to set a date to set a hearing?” he asked. He continued with, “they had a duty to hold that meeting.” Majhan referred to Section 8.50. He referred back to the word, “shall”---if they don’t, then on to the ballot,” stated the judge.

Bennett answered, “My argument at the Mandamus was, if they don’t approve in 60 days, it goes to the ballot. The days are up, that is correct. I have given up on the issue on the ballot. That is going on to the Supreme Court.”

The judge pointed out that Steve Tharinger failed to second a motion to hold a public hearing. “Whether they second is purely discretionary, right?” Majhan asked. 

Bennett answered, “they are required to consider it.” He continued to point out Melly’s comments about the code, from the July 24th transcript of the Commissioners’ meeting. (read complete transcript http:/www.citizenreviewonline.org).

July 24, meeting. Commissioner Mike Chapman asks the question, “we have a ballot petition that has been delivered to us for a public hearing within thirty days---is that correct?” Melly responds, “that’s according to the code---correct.”

Chapman, “I make another motion, I think we should call for a public hearing gentleman and move on.”

Majhan listened and stated that was Mr. Melly’s opinion and not the code” He argued that shall is not a mandatory word if they don’t have a public hearing.

Bennett added, “the county charter says that you shall hold a public meeting.”

Majhan said, “given that position you would have to recall all three.”

Bennett said that this motion is to recall one. “I am not familiar...I am not an attorney. It is more difficult for all three. This commissioner represents the district that I live in,” he answered.

The judge said that the court takes notice and accepts Dr. Bennett’s transcript of the last hearing. 

Lauren Erickson, representing the Prosecuting Attorney’s office, (Chris Melly was at the hearing) protested, saying that she had not seen the transcript of the last hearing. 

“I thought you [Erickson] were not taking a position. They are properly transcribed,” said Bennett.

When questioned before the hearing by Bennett about why Melly was not there and she was representing the case, Erickson reminded Bennett of the, ”Chinese Wall” that was referred to by Melly at the July 24 Commissioners meeting. (see transcript).

Ritchie said, “I think it needs to rise or fall on what the petition says that sets forth sufficient facts.” Majhan agreed, “you are right. This is a hearing for sufficiency of charges--- he violated his Oath of Office is sufficient.”

The voice on the phone [Ritchie] referred to a law in 1984, that changed because elected officials were subjecting counties the cost of recall, “and now allegations must be legally sufficient. Look at the face of it---it must be legally sufficient.” said Ritchie. 

Ritchie pointed out that they did not allow it to proceed, but sought a Declaratory Judgment. Bennett insisted that there should have been a second motion at the July 24 meeting of the commissioners.

Ritchie contended that the petition was legally flawed (referring back to another matter) and that this is “frivolous litigation.” 

Bennett reminded him that this is not about the lawsuit, “it has to do with a public hearing.” he said. 

Bennett led the court back to the point by saying, “I see no reason to hold the commissioners to hold or call for a public hearing at that time. I gave them every opportunity to proceed with the Charter- mandated meeting.”

Majhan asked, “he did not second the motion?” 

Bennett responded, “it was made twice.” Bennett added that a discretionary act can be a basis for a recall. He stated that it would take three commissioners to do that. Bennett reminded the court that RCW 29.82.023 is written in such a way --- “you are required to judge whether they are sufficient. Those three are misfeasance, malfeasance, and failure to abide by Oath of Office. It is up to the voters to decide. I thank you for your patience,” said Bennett.

Ritchie voiced, “I request that you sign the charges as frivolous.” Ritchie also stated that the charges were, “in bad faith.”

Bennett answered, “the idea that this is in bad faith is totally ludicrous.. The law says---I am not doing this out of malice (pause) as a lone citizen---to make sure the rule of law proceeds in this country. It is not malice or bad faith. I totally object to this.”

After a few moments of decision, Majhan offered his opinion.

1. The acts stated in the charge do not satisfy the criteria for which a recall petition may be filed.

2. The recall petition is neither factually nor legally sufficient.

3. The ballot synopsis is therefore unnecessary.

4. The recall petition is dismissed.

The side of the defendant asked for attorney fees to be paid by the plaintiff. Chris Shea, Prosecuting Attorney later asked that it be reconsidered.

Bob Forde, a Sequim businessman, was concerned that they are still missing the point. He later stated, “you can’t get a fair court hearing in Clallam County.”

Mikel Chapman, a young wife and mother from Sequim, reacted  when she heard the verdict  by saying, “we are on a slippery road to tyranny.”

John Bennett walked directly over to Tharinger after the hearing and shook his hand.

Steve Tharinger chatted with the judge after the proceeding, thanked him, and left the courtroom smiling.

Eloise Kailin, who represents Protect the Peninsula’s Future (PPF), smiled during the hearing and hung around the courthouse afterwards doing whatever she does. You might get lucky and read her opinions this next week in other publications.


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