Judge rejects Ensey recall

YAKIMA, Wash. -- The recall petition filed against Yakima Councilman Rick Ensey was denied by a Yakima County Superior Court judge Monday morning, but that denial may lead to an appeal to the Washington Supreme Court.

In a three-page ruling, Judge Michael McCarthy wrote that the recall petition lacked proof that Ensey violated the state Open Public Meetings Act by working with other council members to pass a change in city budget policy.

"It is not the court's role to decide whether Mr. Ensey is a saint or a sinner or whether his actions were clever or deceitful," McCarthy wrote. "The court acts as a gatekeeper to make sure the recall process is not used to move forward unsub-stantiated charges. In this case, on the very technical point that proof of a quorum is lacking, the court believes these charges cannot be substantiated."

The recall petitioners, Charlotte Jones and Gene Rupel, had hoped to force a recall election of Ensey, who they believe violated the public meetings act by lining up votes outside of the public eye in April.

While e-mails show that Ensey did communicate about the matter with Council members Kathy Coffey and Micah Cawley, as well as Yakima Valley Business Times editor and publisher Bruce Smith, it failed to show that they were ever all in a meeting or e-mail chain together, McCarthy wrote.

"There is a clear failure of proof of an essential element of the petitioner's case," he wrote. "They cannot show a quorum of the City Council acted in violation of the OPMA."

Ensey's attorney, Gary Lofland of Yakima, cheered the ruling as confirmation that the petitioners had put too much stock in e-mails that didn't explicitly state the four council members worked together.

"They were trying to fill in the gaps by speculation and conclusions rather than evidence ... They had to establish that there was a violation of the OPMA to be able to go forward with this recall, and they couldn't establish that," Lofland said.

While the e-mails proved some of the council members discussed the policy change, they didn't prove that a quorum of four or more ever actively participated in making policy outside of the public eye, he said.

"That's how politics works," Lofland said. "It's an unrealistic view to think politicians can't talk about what's going on."

Ensey saw the ruling as vindication.

"I've said all along that there was never any violation of the OPMA," he said.

He also reiterated his belief that the recall effort was politically driven and that he was being targeted by his adversaries Ron Bonlender and George Fearing. Ensey defeated Bonlender, an active member of the county Democratic Party, in a contentious 2007 City Council race marked by partisanship.

Fearing, a Kennewick attorney who ran as a Democrat last year against U.S. Rep. Doc Hastings, R-Pasco, was the petitioners' original attorney before leaving the case. Richland attorney Doug McKinley picked up the petitioners' case.

Rupel and Jones are both Democratic precinct committee officers and have said that they got copies of the City Council e-mails from Bonlender, who had requested them from the city. The e-mails are public records.

"I don't think it's the Democratic Party; I think it's Bonlender, and I think it's George Fearing," Ensey said.

Rupel said Monday that Fearing initially approached him about the recall effort and that Bonlender had ended up giving him and Jones the e-mails.

"(Bonlender) supplied the information," Rupel said. "He didn't force anybody to set up a petition or anything."

Neither Jones nor Rupel would say Monday whether they planned an appeal. McKinley said it was a decision that would take at least a couple of days. The evidence in the e-mails could well be viewed differently by a different judge, he said.

"Reasonable minds could go either way on that question," McKinley said.

Ensey said he believes the outcome is unlikely to change.

"There might be rattlings, and they might even try it," he said. "But it's not going to get anywhere."

* Pat Muir can be reached at 509-577-7693, or at pmuir@yakimaherald.com.

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