The state Supreme Court agreed unanimously this morning that a recall petition against five members of the Seattle School Board did not meet the legal standard for a recall. The court, in an opinion written by Chief Justice Gerry Alexander, said that King County Superior Court Judge William Downing was right to reject the petition earlier this year.

The court also said the petition was moot against three of the members because through election defeat and retirements, they won't be on the board after next month.

But there is disagreement on the court about whether the Seattle School District should have intervened on behalf of the elected board members. The recall petition was begun by Eric Dawson, who was upset about proposed school closures. Dawson went to court after the King County Prosecutor's Office rejected the petition in January. Dawson argued that the district, as a public entity, should not be able to join the legal action on behalf of the elected officials. The majority of the court said the district was within its rights to join the lawsuit, saying that court rules say

a party may be permitted to intervene in an action when that party claims an interest in the action that is not adequately protected by the existing parties to the action or when the new party's claim or defense has a question of fact or law in common with the main action. A trial court's decision to allow intervention under this rule is discretionary, and the question on review is whether that court has abused its discretion. Judge Downing granted the intervention motion, under CR 24, after determining that "a) The School District has a separate and distinct interest in these proceedings; and] b) Its participation is likely to be of assistance to the court in focusing on the issues at the sufficiency hearing." In our view, Judge Downing did not abuse his discretion in reaching these conclusions.

But Justice James Johnson, writing in a concurring opinion signed by Justice Richard Sanders, argues that the school district was essentially using public funds to campaign on behalf of the board members. Johnson said that despite laws against use of public funds for political campaigns, Downing's ruling "allowed the District to accomplish the same end — likely with its limited taxpayer funds."

Johnson said there are legitimate roles for local government to play when members of its legislative body face recall. But he said that a majority of the non-conflicted members of the legislative body, and its attorney, have to approve intervention, "To make sure such request is not just a veiled use of public funds to oppose the recall."

That was tough in this case because five of seven board members had conflicts. Johnson wrote:

Here, the District did not follow this procedure before it used (and continues to use) public money to intervene and oppose recall. ...

We ought not turn a blind eye to a government's misconduct or misuse of limited taxpayer resources. Recall in Washington is not just a statutory right, but a constitutional right. When a government illegally spends tax money to oppose exercise of a constitutional right, there is an injustice of constitutional dimension. The courts must diligently guard against such violation.