To:
King County Elections
919 SW Grady Way, Suite 100
Renton, WA 98057
RE: Statement of Charges
In accordance with
Article 1, § 33 of the Washington State Consitution and provided by
R.C.W. 29A.56.110, I hereby submit this statement of charges, in
pursuit of a recall petition, and declare that:
On or before December 5th, 2020, Councilperson Jennifer Robertson, by intentionally and unlawfully blocking the Twitter account of a local registered voter over political disagreement, and by making a defamatory statement, and while serving as an elected public official within the City of Bellevue, in the County of King, in the State of Washington, committed libelous, unlawful and wrongful conduct that affects, interrupts, or interferes with the performance of official duty, and violated a sworn oath to uphold and/or support the US Constitution, 1st Amendment, and Washington State Constitution, Article 1, § 3 and 5.
I declare under penalty of perjury under the law of Washington that the statements in this document are true and correct.
Signed on the 1st day of February, 2021, at Bellevue, Washington (98007)
On or before December 5th, 2020, Councilperson Jennifer Robertson, by intentionally and unlawfully blocking the Twitter account of a local registered voter over political disagreement, and by making a defamatory statement, and while serving as an elected public official within the City of Bellevue, in the County of King, in the State of Washington, committed libelous, unlawful and wrongful conduct that affects, interrupts, or interferes with the performance of official duty, and violated a sworn oath to uphold and/or support the US Constitution, 1st Amendment, and Washington State Constitution, Article 1, § 3 and 5.
I declare under penalty of perjury under the law of Washington that the statements in this document are true and correct.
Signed on the 1st day of February, 2021, at Bellevue, Washington (98007)
=======
Statements of Fact:
1. A Twitter “user” is an individual who has created an account on the platform. A user can post “tweets,” up to 140 characters in length, to a webpage on Twitter that is attached to the user’s account. Tweets can include photographs, videos, and links.
2. A Twitter user’s webpage displays all tweets generated by the user, with the most recent tweets appearing at the top of the page. This display is known as a user’s “timeline.” When a user generates a tweet, the timeline updates immediately to include that tweet. Anyone who can view a user’s "PUBLIC" Twitter webpage can see the user’s timeline.
3. A Twitter user must have an account name, which is an "@" symbol followed by a unique identifier (e.g. @JenSRobertson), and a descriptive name (e.g. Jennifer Robertson). The account name is called the user’s “handle.”
4. A user’s Twitter webpage may also include the following:
a. a short biographical description;
b. a profile picture, such as a headshot;
c. a “header” image, which appears as a banner at the top of the webpage; and
d. the user’s location;
5. By default, Twitter webpages and their associated timelines are visible to everyone with internet access, including those who are not Twitter users.
6. Although non-users can view users’ "PUBLIC" Twitter webpages, they cannot interact with users on the Twitter platform.
7. Councilperson Robertson created her current Twitter user account, @JenSRobertson, during September, 2015; The Councilperson won the Council position via election that year and began a term in January, 2016.
8. The Twitter user account @JenSRobertson was not originally set to "PRIVATE"; Twitter account "@JenSRobertson" was originally set to "PUBLIC".
9. As of January 21st, 2021 at 5:00PM PST, the Twitter user profile @JenSRobertson retained the following information on the primary user page. This information only shows to the public when an account is not set to "PRIVATE":
"Jennifer Robertson @JenSRobertson - Mom of 3, wife, municipal attorney,
4-term Bellevue City Councilmember. Land use & transportation wonk[sic].
Personal account NOT official city account.
RobertsonForCouncil.com.
Joined September 2015. 465 Following. 388 Followers"
10. A user whose account is "PUBLIC" but who wants to make his or her tweets invisible to another user can “BLOCK” that user. (Twitter provides users with the capability to "BLOCK" other users, but, importantly, it is the users themselves who decide whether to make use of this capability.)
11. An account user may use the "BLOCK" function to prohibit another user from interacting with the first user’s account on the Twitter platform.
12. The account @JenSRobertson was set to "PRIVATE" with "protected" setting applied sometime after January 21st, 2021. This is an example of a notification from Twitter that a Twitter user is no longer allowed to interact with @JenSRobertson without her permission:
13. "PRIVATE" is a Twitter.com website user-setting that allows only users allowed by the account holder to view or respond to any tweets.
14. In addition to the "PUBLIC" user-setting, without using the "PRIVATE" setting, Twitter users may control who responds to their tweets, and "protect" their own tweets by controlling who may see and participate in the conversations, as well as use a "MUTE" setting, which voluntarily prevents but does not "BLOCK" other users' tweets from being viewable by the account holder.
15. Because all Twitter webpages are, by default, visible to all Twitter users and to anyone with access to the internet, users who wish to limit who can see and interact with their tweets must affirmatively “protect” their tweets.
16. Other users who wish to view “protected” tweets must request access from the user who has protected their tweets. “Protected” tweets do not appear in third-party search engines, and they are searchable only on Twitter, and only by the user and her approved followers.
17. Account "@JenSRobertson" did not use any of the available Twitter features providing users these enhanced privacy or "control" options prior to January 21st 2021.
18. If a BLOCKED user attempts to follow the BLOCKING user, or to access the Twitter webpage from which the user is BLOCKED, the user will see a message indicating that the other user has blocked him or her from following the account and viewing the tweets associated with the account. This is an example of a notification from Twitter that a user has been BLOCKED by @JenSRobertson:
19. The word "personal" in the context of Twitter user accounts can be defined as an adjective or noun, and may defined as, "carried on between individuals directly".1
20. The word "private" in the context of Twitter accounts refers strictly to an optional user setting, and may be defined as, "restricted to the individual".2
21. The word "public" in the context of Twitter accounts refers strictly to an optional user setting, and may be defined as, "exposed to general view".3
22. Councilperson Robertson used the account @JenSRobertson to release statements of topics which relate to residents of Bellevue, Washington as shown here before the account was set "PRIVATE"/"protected":
23. A Federal judge in the Southern District of New York ruled on May 23rd, 2018 that the @realDonaldTrump account reflects state action, that the interactive space associated with the President’s tweets constitutes a designated public forum, and that Trump violated the First Amendment.
24. On July 9th, 2019, the Second Circuit affirmed the above. Knight First Amendment Inst., 928 F.3d at 230–38. On March 23rd, 2020, the Second Circuit denied Defendants’ petition for rehearing en banc. 953 F.3d at 226 (2d Cir. 2020).
25. I sent City of Bellevue officials a cease and desist request by e-mail on September 11th, 2020, over now-Deputy Mayor and Councilperson Jared Nieuwenhuis's actions of using the "BLOCK" function against my Twitter account.
26. The Deputy Mayor honored that request and has not repeated the same actions.
27. I have previously sent Cease and Desist requests to other City, County, and State officials regarding the use of the "BLOCK" function against my Twitter accounts, in occurrences beginning in 2015 to present. All requests were honored.
28. Councilperson Jennifer Robertson has refused a request to follow the law, and further, does so after Federal court rulings regarding use of the "BLOCK" function on the website Twitter.*
29. I sent a damage claim over the negligent infliction of emotional distress caused by the defamatory statements made by Councilperson Robertson to the Bellevue Office of Risk Management via the City Clerk, who notified receiving it December 1st, 2020, at 2:25PM PST.
30. On December 28th, 2020 the City of Bellevue's Office of Risk Management denied my valid damage claim for negligent infliction of emotional distress, sought under R.C.W. 7.96.060 "Effect of correction or clarification" under Washington State's "Uniform Correction or Clarification of Defamation Act", which states:
"If a timely and sufficient correction or clarification is made, a person may not recover damages for injury to reputation or presumed damages; however, the person may recover all other damages permitted by law."
31. A Risk Management official replied to my claim, stating:
"We have reviewed the Twitter account of council member Jennifer Robertson and are denying your claim. The Twitter account is Jennifer Robertson’s personal account as she clearly notes on the first page: “Personal account NOT official city account.” This is not a City sponsored social media account."
32. No Twitter accounts are or have been issued to or assigned by the City of Bellevue to any individuals elected to public office.
33. There are no Twitter policy violations, to my knowledge, reported as a complaint to Twitter, in regards to my user account "@Chris425WA" participating in conversations including user account "@JenSRobertson".
34. To my knowledge, there have been no allegations of criminal conduct made against me in relation to my tweets under account "@Chris425WA", in conversations which include user account "@JenSRobertson", and which include my speech on a matter of public concern.
35. I can no longer view Councilperson Robertson’s Twitter feed when log in to my account. I can no longer reply to Councilperson Robertson's tweets. I can no longer participate in the discussions in the replies to Councilperson Robertson’s tweets. Each new tweet by Councilperson Robertson is a piece of information that I am foreclosed from receiving and a potential discussion (in the replies to that tweet) in which I cannot participate.
Claim 1: Misfeasance and/or Malfeasance
39. A Twitter user can also reply to other replies. A user whose tweet generates replies will see the replies below his or her original tweet, with any replies-to-replies nested below the replies to which they respond. The collection of replies and replies-to-replies is sometimes referred to as a “comment thread.” Twitter is called a “social” media platform in large part because of comment threads, which reflect multiple overlapping conversations among and across groups of users.
40. On November 19th, 2020, Twitter.com user @BrettHamil stated:
"There are some real cowards on city council. What a disappointment"
41. I replied to that statement under Twitter.com user account @Chris425WA on Nov 19th, 2020 stating that:
"We have that @bellevuewa http://update-our-city-425.blogspot.com. Not charter city; avoided so #bvue City manager in charge to do what certain people want; like Trump supporters @JenSRobertson @BVUEjared[.] Renewed @bvuepd union contracts to protect cops who support Trump http://FireMylett.blogspot.com"
42. At 8:56AM on November 20th, 2020, Councilperson Robertson, under Twitter.com user account @JenSRobertson, replied directly to a comment, since deleted, made by Twitter.com user @ifxel to include users@Chris425WA @bvuepd @bvuejared @bellevuewa @bretthamil, stating:
"You bit on a twitter troll.
No city councilmember in Bellevue supported Trump.
But keep on trolling."
43. In Internet slang, a troll "is a person who starts 'flame wars' or intentionally upsets people on the Internet"4 or "someone who posts offensive, divisive or argumentative remarks on platforms such as Twitter and Instagram".5
44. This is typically for the "troll's" amusement, or to achieve a specific result such as disrupting a rival's online activities or manipulating a political process.
45. Both the noun and the verb forms of "troll" are associated with Internet discourse, however, media attention in recent years has equated trolling with online harassment; For example, the media have used "troll" to mean "a person who defaces Internet tribute sites with the aim of causing grief to families".6
46. Twitter.com user "Eris Murakami" a.k.a @ifxel replied November 20th, 2020, to @JenSRobertson's tweet made in reply to the deleted comment made by this same user @ifxel. This statement was also addressed to @Chris425WA, @bvuepd, @bvuejared, @bellevuewa, @bretthamil, to wit:
"Um thanks for the info.
I didn't click on any of his [@Chris425WA] links yet.
But remember anyone can be shadowbanned or quieted on here."
47. Approximately 2:54PM on November 20th, 2020, I replied to @ifxel and @JenSRobertson and included @bvuepd, @bvuejared, @bellevuewa, @bretthamil and stated:
"She's lying ... I'm not a troll, but as a 30+ yr resident whose brother was born in our house in Lake Hills, its strange to be treated this way by our elected officials.
http://Update-our-city-425.blogspot.com @425_WA_history is my account.
Not troll."
48. On November 20th, 2020 at 11:12PM PST, I sent an email with the subject "Defamation by Council member Jennifer Robertson - Correction required" to City official e-mails CityAttorney@Bellevuewa.gov and council@bellevuewa.gov .
49. Approximately 9:55PM on November 21st, 2020, I replied to @JenSRobertson, @bellevuewa, @bvuepd, @bvuejared:
"I'm still waiting to hear who each council member voted for, and which party they are registered under. I asked the Secretary of State for the voter registration records. I find it impossible to read peoples minds; you may correct/clarify your statement & stop defaming a citizen"
50. Councilperson Robertson's actions and/or omissions caused, directly and proximately, me to suffer damages. The acts and inactions of Councilperson Robertson caused me damages in that I was prevented from speaking freely on a matter of public concerns, among other injuries, damages, and losses.
51. Between the date of December 1st and December 5th, 2020, my user account was blocked, which made it appear to me that the defamatory Tweet was deleted, and therefore, not viewable, but the Tweet remained without correction or clarification, and in the public view.
52. These actions by Councilperson Robertson, as stated above, are unlawful and/or qualify as misfeasance and/or malfeasance.
Claim 2: Violation of Oath of Office
53. Councilperson Jennifer Robertson, under user account "@JenSRobertson", intentionally used the Twitter "BLOCK" function against my user account ("@chris425WA") on or before December 5th, 2020.
54. Councilperson Robertson's blocking of my account was viewpoint-based. Had I tweeted in support of Councilperson Robertson, Councilperson Robertson would not have blocked me.
55. The blocking imposes an unconstitutional restriction on speech in a designated public forum.
56. By blocking me, Councilperson Robertson prevents me from exercising my First Amendment rights, including a right to petition the government for redress of grievances, as I can no longer reply to Councilperson Robertson's tweets.
57. Councilperson Robertson responded to my First Amendment-protected activity with retaliation, including but not limited to blocking me; Councilperson Robertson’s retaliatory actions were substantially motivated by my exercise of First Amendment rights.
58. In 2017, the Knight First Amendment Institute at Columbia University ["Knight"] sued former President Donald Trump for blocking seven people from @realDonaldTrump because they were critical of his administration.
59. Though the account was technically 'personal', Knight argued that Trump used it for official communication such as announcing policy decisions and describing meetings with foreign leaders.
60. Knight postulated Trump’s account was a public forum, and any attempt to block critical users was an act of government censorship.
61. Councilperson Robertson also uses her 'personal' account to speak about issues of public concern in the City of Bellevue, and advertise her political campaign.
62. When a recall petitioner alleges that an official committed a recallable offense by violating the law, the petition must also articulate the "'standard, law, or rule that would make the officer's conduct wrongful, improper, or unlawful.'"
63. The United States District Court for the Southern District of New York and the United States Court of Appeals for the Second Circuit have both ruled that Trump’s act of blocking individuals is unconstitutional, and, thereby, bars a President from blocking users from his account simply because he dislikes or disagrees with their tweets.
64. While President Trump and Councilperson Robertson are both elected public officials, and while the Councilperson is employed by a municipal corporation, and while the President is employed by the people, both individuals are equally subject to U.S. laws and are bound to honor their oaths of office.
65. The City Manager takes an Oath as described in " Bellevue City Code (Ordinace) 3.04.020 Office full-time job – Oath.":
"... the city manager shall take an official oath in support of the government of the United States, the laws of the state of Washington, the ordinances of the city of Bellevue and the faithful performance of his duties. (1961 code § 3.04.020.)"
I declare under penalty of perjury under the law of Washington that the statements in this document are true and correct.Signed on the 1st day of February, 2021,
at Bellevue, Washington 98007 /s/ Christian Alexander Dorsett
Legal Citations:
To be factually sufficient, the petition must allege facts that establish a "case of misfeasance, malfeasance, or violation of the oath of office." (citing Cole v. Webster, 103 Wn.2d 280, 285, 692 P.2d 799 (1984).
"Although there is no requirement that the petitioner have firsthand knowledge of the facts, he or she must have some knowledge of the facts underlying the charges." (citing In re Recall of Ackerson, 143 Wn.2d 366, 372, 20 P.3d 930 (2001).
To be legally sufficient,"the charge must define substantial conduct clearly amounting to misfeasance,malfeasance or a violation of the oath of office." (citing In re recall of Anderson, 131 Wn.2d 92, 95, 929 P.2d 410 (1997).
If there is a legal justification for the challenged action, the charge is not sufficient (citing In re Recall of Wade, 115 Wn.2d 544, 549, 799 P.2d 1179 (1990).
The petitioner bears the burden of identifying the "`standard, law, or rule that would make the officer's conduct wrongful, improper, or unlawful.'" Inslee, 194 Wn.2d at 568 (internal quotation marks omitted) (quoting Pepper, 189 Wn.2d at 554-55).
In rare cases, an elected official's abuse of discretion may satisfy the threshold requirements for recall. (citing Wilson v. Bd. of Governors, 90 Wn.2d 649, 656, 585 P.2d 136 (1978)
*Elections - Recall - Petition - Factual Sufficiency - Violation of Law - Intent. A recall petition charging an elected public official with violating the law is insufficient if it fails to include facts within the petitioner's knowledge indicating that the official intended to commit an unlawful act. The petition must demonstrate not only that the official intended to commit the act, but also that the official intended to act unlawfully.
*Elections - Recall - Petition - Legal Sufficiency - Lawful Act. A recall charge against an elected public official cannot be sustained on the basis of conduct for which the official has a legally cognizable justification.
*Elections - Recall - Grounds - Violation of Law - Elements - Effect on Official Duties. Under RCW 29.82.010(l)(b), which provides an additional definition of "malfeasance in office" as the commission of an unlawful act, a public official may be recalled for committing an unlawful act while in office whether or not the unlawful act affected, interrupted, or interfered with the performance of an official duty.
Elections - Recall - Grounds - Misconduct During Prior Term - Public Knowledge. A public official may be recalled for misconduct in a prior term of office, whether or not the misconduct was public knowledge at the time of reelection.
Elections - Recall - Petition - Court Review - Costs -CR 11 Sanctions. CR 11 sanctions may not be assessed against a party who has filed an action to determine the sufficiency of a recall petition unless the recall petition was brought in bad faith. For purposes of the rule, "bad faith" means that the petition is intentionally frivolous and was brought for the purpose of harassment.
Elections - Recall - Petition - Court Review - Costs - Attorney Fees - Court's Inherent Equitable Power. The Supreme Court will not exercise its inherent equitable powers to award attorney fees to an elected public official defending against an action to determine the sufficiency of a recall petition unless the recall petition was brought in bad faith. For purposes of the rule, "bad faith" means that the petition is intentionally frivolous and was brought for the purpose of harassment.
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