THE SUPERIOR COURT OF WASHINGTON, COUNTY OF PIERCE in the matter of: RECALL OF TROY KELLEY, Case No. 15-2-080402 ORDER ON SUFFICIENCY OF PETITION AND BALLOT TITLE 1. The Petitioner's Motion for Judicial Determinations that a Constitutional and Statutory Vacancy has existed in the office of the State Auditor since January 16,2013, is not properly before this court. a. Petitioner? motion would require this Court to retrospectively determine the validity of the Auditor's election and whether Troy Kelly properly appeared on the ballot. b. Petitioner's motion is in effect brought as an action in quo warrantto which would require this Court to remove the Auditor from office. Such matters are beyond the jurisdiction ,of this Court. c. The motion is not properly brought in the context of a petition for recall of the State Auditor. The People, of the State of Washington have a Right to petition for the recall election of statewide public officials including the State Auditor under Art Sec. 33 and 34 of the Washington State Constitution. Washington?s recall process is unique in its statutory requirements. a. Under Washington law the recall petition must show that the elected of?cial engaged in mlsfeasance, malfeasance or a violation of their oath of office. b. The Petition must be both legally and factually sufficient including facts specific to support the allegations and to allow voters to make an informed choice as to their decision to recall or not. 3. The two issues before the court today are (1) whether the Petition for recall is legally and factually sufficient and (2) whether the ballot title prepared by the State Attorney General is adequate. 4. Jurisdiction is proper for this court to?consider the petition for recall as all of the statutory requirements for this matter to proceed have been met by the Petitioner, Secretary of State, and the Attorney General and respondent Kelly maintains a residence in Pierce County, Washington. THE THREE ALLEGATIONS IN THE PETITION ARE LEGALLY AND FACTUALLY INSUFFICIENT 1. Petitioner alleges the Auditor is subject to recall because it "appears" that the Auditordoes not reside in Olympia, the seat of government in Washington State pursuant to Article sec. 24 of the Washington State Constitution. Petitioner claims that Kelley thereby, violated his oath of office. a. The allegation is factually insufficient as Petitioner relies solely upOn inferences drawn from the fact that the FBI served a search warrant on Kelly's home in Pierce County. The petition does not specify whether Kelly also maintains a residence in Olympia and, if so, how often he commutes between Olympia and Pierce County. b. The Constitutional requirement at issue essentially requires that the "seat of government" be within the city limits of Olympia Washington as it existed in 1890 and that all public records and statewide government offices are required to be located there. See, Lemon v. Langlie, 45 Wash.2d 82, (1954). c. The Washington State Supreme Court has acknowledged that statewide elected officials may commute to Olympia. ex rel. O'Connell mile, 51 Wn.2d 594 (1958). [We can conclude that in all of these offices, necessity would demand that the official move to Olympia in order to perform his duties during his four year term, unless he would be able to drive to and from his home to work] Given the Court's ruling, even .if the Auditor does not reside in Olympia his conduct would not be an intentional violation of his oath of office. Therefore the claim is legally insufficient. d. The Auditor has presented credible evidence, through the declaration of Helsdon, that many statewide elected officials, other than the Governor, commute between Olympia and residences in other cities. 2. Second, the Petitioner, Mr. Knedlik alleges that the state Auditor has failed to investigate improper governmental activity, particularly involving Sound Transit; that Sound Transit has engaged in ballot title fraud; and that the Auditor has failed to inform the Attorney general of these irregularities. This second allegation of misfeasance and malfeasance by the Auditor is both legally and factually insufficient. a. included in the briefing is an Audit of Sound Transit by the Office of State Auditor Kelly and his staff dated December 12, 2013. b. There are no facts presented in the petition supporting the claim of misfeasance in the manner the audit was conducted or that the Auditor's staff failed to meet Government Accounting Standards or AICPA standards in conducting the audit. c. Previous Audits of Sound Transit by the State Auditor?s Office conducted during the tenure of the previous State Auditor, Brian Sonntag, found Sound Transit in compliance with audit recommendations. d. Petitioner's factual allegations focus almost exclusively on Sound Transit?s practices rather than malfeasance by Kelly. The conduct of audits falls within the sound discretion of the State Auditor. Discretionary acts are not generally grounds for recall. 3. Petitioner alleges the Auditor pressured members of the professional staff within the Auditor's office to hire Jason Jerue. The claim is factually insufficient. a. Mr. Jerue was a Management level employee, not within the civil service, and was subject to hire at the discretion of the Auditor. b. The State Auditor's HR Director has filed an affidavit refuting the claim that the Auditor pressured his professional staff to hire Mr. Jerue. c. The Court takes judicial notice that Mr. Jerue has since been terminated bythe Acting State Auditor Ms. Jutte. cl. Petitioner fails to specify any facts to support his claim as to hiring Mr. Jerue. CONCLUSION Petitioner, Knedlik?s, motion for this court to declare the Auditor's office vacant ab initio is denied. This Petitioner's claims of malfeasance, misfeasance or violation of the oath of office by the elected Washington State Auditor, Troy Kelly, are factually and legally insufficient to place the recall before the voters. Petitioner?s allegations?of ?additional major wrongdoing? are not supported by evidence. The indictment of Mr. Kelley dated April 15, 2015 is not alleged as a basis for recall in the petition. Governor Inslee?s request that the Auditor resign and for an explanation of how the state Auditor?s Office will Operate during Kelley?s voluntary absence are not alleged as basis for the recall petition. Kelley?s extended leave of absence during which he is not performing the duties of the office is not alleged as a basis for recall and is a discretionary act pursuant to RCW The request that the Court modify the ballot language proposed by the Attorney General Office ?to include his standard modus operandi efforts to cover up the highly substantial substantive bases for charges for recall and for removal from public office and, in this instance, to do so through a taxpayer- financed lie to all state citizens? is denied. Such additional claims are not timely alleged in the petition and are legally and factually insufficient. Dated this 57$ Dayof WM ,2015 Judge Frank E. Cuthbertson