Uplift Local: One recall petition dismissed against council member

It was a reversal of his Aug. 27 decision, when he said that the second recall petition against Lauser could move forward.

“We’re pleased with the court’s decision to dismiss the recall petition,” Adrien Leavitt, an attorney with the ACLU of Washington, which is representing Lauser in both recall cases. “That’s the right outcome.”

But Kathleen Fitzgerald, the Stevenson resident who filed both petitions, felt the dismissal rested on a technicality. “It’s been an education,” she said. 

Fitzgerald sought to recall Lauser after the city council member took off her shirt in public. Lauser maintains her actions were political speech and constitutionally protected.

Why the judge changed his mind

Washington law lays out possible legal grounds for recalling an elected official, primarily misfeasance, malfeasance, or knowingly violating an oath of office. 

Misfeasance and malfeasance both cover “wrong conduct that affects, interrupts, or interferes with the performance of official duty,” the law says. Each has additional legal definitions as well: misfeasance means performing duties improperly and malfeasance means doing something illegal.

Judge Krog’s original ruling on the second recall petition allowed it to move forward because, he said, the actions Fitzgerald described in it met the definition of malfeasance. The petition focused on a July 4 protest, when Lauser was arrested for indecent exposure. 

But Fitzgerald had not mentioned malfeasance in the petition, claiming only misfeasance and that Lauser violated her oath of office. So Lauser’s lawyers asked the judge to reconsider his decision, saying it rested on an allegation that Fitzgerald hadn’t made. 

Before reconsidering though, the judge asked both sides whether Lauser had waived her right to a reconsideration on such grounds, due to a conversation in court. During the Aug. 27 hearing Judge Krog had asked Lauser’s attorney whether Fitzgerald’s petition was “deficient just because it’s alleging acts of misfeasance rather than malfeasance?”

La Rond Baker, legal director with the ACLU of Washington, who represented Lauser in court that day, replied that the petition was “deficient for many reasons,” and the facts did not sustain either charge. But she didn’t argue that leaving malfeasance out of the petition meant the recall should be dismissed.

Lauser’s attorneys did make that argument in both their Sept. 3 motion to dismiss the case and their Sept. 17 response to Judge Krog’s request, writing that the courtroom exchange about malfeasance did not mean Lauser had waived any rights. 

“This was simply error, for which counsel for Ms. Lauser sought to immediately correct through filing a Motion for Reconsideration,” the ACLU’s Sept. 17 brief said.

Fitzgerald countered, saying that dismissing her petition on “hyper-technical” grounds harms voters. “To dismiss on the basis that the petitioner did not use the right word would elevate form over substance and undermine the constitutional recall power.“ Fitzgerald wrote. 

After reviewing the paperwork submitted by both sides, he judge concluded that Lauser’s arguments for reconsideration won, and dismissed Fitzgerald’s second petition

First recall still in play

Krog had previously approved the first recall petition filed against Lauser, who has appealed that decision to the Washington State Supreme Court. 

If the higher court upholds Krog’s decision and allows the first petition to move forward, the next step for recall supporters would be to gather enough signatures to get it on a ballot for voters to decide. 

There is no clear timeline for the Supreme Court’s decision.

Both recall petitions were based on incidents when Lauser took off her shirt in public. The first was at a gathering in downtown Stevenson on March 31, a day designated to raise awareness of transgender people. Police responded to complaints but left after speaking with Lauser. 

The second incident was at a July 4 protest, also in downtown Stevenson. That time, Stevenson police arrested the council member. So, in addition to the one remaining recall petition, Lauser is facing a criminal charge of indecent exposure.

She has pleaded not guilty. The case was first delayed due to a conflict of interest — Stevenson contracts with the Skamania County prosecutor’s office for legal services, but Lauser is on the city council. Now Lauser plans to file what’s called a Knapstad motion, essentially arguing that there is not enough evidence to prosecute and requesting dismissal.

What’s next

Council member Lauser told Uplift Local that as far as she understood, Fitagerald could appeal Judge Krog’s dismissal of the second recall, or file an amended petition. 

But Fitzgerald said she is unsure of her next steps. “I would really like for all of this to be behind us,” she told Uplift Local. “I’m actually hoping that someone will pick up the torch from here,” suggesting that a legal organization like Liberty Counsel could be interested. 

Liberty Counsel is a national group with publishing and litigation arms that “advocates, supports, advances and defends” Christianity. The Southern Poverty Law Center says the group fights against LGBTQ rights “under the guise of religious liberty.” 

Lauser has previously said that the recall efforts were a waste of time and money, and that she has received significant community support. 

Lauser was elected to the Stevenson City Council in November 2023. Her term runs through December 2027.

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Emily Harris is a co-founder and Uplift Local’s Community Journalism Director, overseeing the local newsroom network and the Documenters program.