In the Matter of the Recall of Cathy Pearsall-Stipek, Pierce County Auditor, 141 Wash. 2d 756

Madsen, J. — Dale Washam (Washam) has filed a petition to recall Cathy Pearsall-Stipek (Pearsall-Stipek) from her position as Pierce County Auditor, alleging two substantive charges. The first is that Pearsall-Stipek committed perjury or false swearing by misrepresenting her educational background while under oath on three separate occasions. The second is that she failed to fulfill the duties of her office while conducting the 1997 referendum election relating to a new professional football stadium.

The Pierce County Superior Court dismissed the petition, finding all charges factually and legally insufficient, and Washam appealed directly to this court.' We find one of Washam’s false swearing allegations factually and legally sufficient and, therefore, we reverse on that claim. The trial court is affirmed on all other grounds. FACTS On May 18, 1999, Washam filed a recall petition against Pierce County Auditor Cathy Pearsall-Stipek, and on June 4, he filed a supplemental petition. The petition contains two substantive charges.

The first is that Pearsall-Stipek committed perjury or false swearing by misrepresenting her educational background on three separate occasions while under oath. The second relates to Pearsall-Stipek’s conduct of the 1997 statewide referendum on a new professional football stadium. The first charge contains three “counts,” all relating to Pearsall-Stipek’s misrepresentation of her educational background.

Pearsall-Stipek did not graduate from college; however, she has misrepresented this fact, claiming she received a degree in 1954 from the University of Washington with a concentration in business administration and home economics. An official statement from the University of Washington Registrar indicates she was “registered for the period 09/50 to 6/52” and that she “did not declare a major and no degree was awarded.” Clerk’s Papers (CP) at 339. Counts one and three of charge I relate to a discrimination suit brought in 1994 by Sally Riccobono, a former auditor’s employee.

The first count of charge I is based on the following interrogatory and answer, which was submitted on May 12, 1994: Interrogatory No. 4: Describe in full the educational background, including the following, for Cathy Pearsall-Stipek: a. Name of all institutions attended; b. Dates of attendance at each institution; c. Whether she graduated; d. What course of study was pursued. . . .

Answer to Interrogatory No. 4: Jefferson Kindergarten - Tacoma, Washington Jefferson Elementary - Tacoma, Washington Edison Elementary - Tacoma, Washington Mason Junior High School - Tacoma, Washington Stadium High School - Tacoma, Washington University of Washington, 1954; bachelor’s degree, Business Administration; minor, Home Economics. Do not remember grade point average. CP at 59-60. Pearsall-Stipek did not sign this interrogatory answer. It was signed by her lawyer in the case, who attested under oath that he “believe [d]” the answers to be true. CP at 312.

The third count of charge I is based on Pearsall-Stipek’s testimony given at trial in the same case, the Riccobono lawsuit. On January 3,1996, shortly after being sworn in as a witness, the following colloquy occurred between Pearsall-Stipek and defense counsel: Q: Now, following your graduation from Stadium, did you go on to school? A: Yes, I went on to the University of Washington. Q: And did you graduate from the University of Washington? A: Yes, I did. Q: And what year was that? A: 1954. Q: And did you - what was your degree in? A: Business administration and home economics. CP at 10.

The second count of charge I is based on testimony given in a deposition in a federal civil rights lawsuit brought by Sherry Bockwinkel against Pierce County and Pearsall-Stipek. The lawsuit stemmed from the eviction of Bockwinkel and another person from a county ballot counting facility. On July 3,1997, Pearsall-Stipek testified to the following: Q: After graduating from high school, what did you do? A: I went to the University of Washington. Q: What years did you attend the University of Washington? A: ’51, ’52, ’53, and ’54. Q: Did you receive a degree from the university? A: No.

Q: What was the field of study that you pursued? A: Home economics and business administration. CP at 66. Pearsall-Stipek’s testimony in the Bockwinkel deposition is the only statement at issue in this case in which Pearsall-Stipek conceded that she did not earn a degree. In this statement she misrepresented only her years of college attendance. She attended the University of Washington from September, 1950 to June, 1952, not “ ’51, ’52, ’53, and ’54.” CP at 66.

Charge II of Washam’s petition concerns Pearsall-Stipek’s conduct of the statewide referendum on funding for a new professional football stadium, which was held in 1997. Washam alleges that despite a requirement that the team affiliate (the Seattle Seahawks) pay the full cost of the election, Pearsall-Stipek conducted the entire election in Pierce County by mail-in ballot without charging the team affiliate for return postage on the ballots. According to Washam, Pearsall-Stipek should have provided prepaid return envelopes to the voters and then billed this cost to the team affiliate.

By failing to do so, Washam charges that Pearsall-Stipek failed to fulfill the duties of her office. In response to Washam’s petition, the Pierce County prosecutor prepared a ballot synopsis and filed a petition in superior court to determine the sufficiency of the charges and the synopsis. After hearing arguments, the superior court found the charges factually and legally insufficient for submission to the voters. The sufficiency of the synopsis was therefore not addressed. Washam appealed directly to this Court pursuant to RCW 29.82.023 and .160.

ANALYSIS I The right to recall elected officials is a right of the people guaranteed by

article I, sections 33 and 34 (amendment 8) of the Washington Constitution. In re Recall of Pearsall-Stipek, 136 Wn.2d 255, 262, 961 P.2d 343 (1998).

Section 33 contains the substantive right of recall and provides that “[e]very elective public officer of the state of Washington ... is subject to recall and discharge by the legal voters of the state ....”

Section 34 permits the Legislature to “pass the necessary laws” to carry out

section 33. Pursuant to this authority, the Legislature adopted

chapter 29.82 RCW, which was enacted “to provide the substantive criteria and procedural framework for the recall process.” Pearsall-Stipek, 136 Wn.2d at 262-63. In 1984, the “Legislature amended

chapter 29.82 RCW to provide for judicial review of the sufficiency of recall petitions in order to ‘free public officials from the harassment of recall elections grounded on frivolous charges or mere insinuations.’ ” Id. at 263 (quoting Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984)). We perform a limited gatekeeping function in the recall process, using the same reviewing criteria as the superior court. In re Recall of Shipman, 125 Wn.2d 683, 684, 886 P.2d 1127 (1995).

Our responsibility is simply to ascertain whether a recall petition meets the threshold standards necessary to proceed to the signature gathering phase of the recall process. See RCW 29.82.060. The fundamental requirement is that the charges be factually and legally sufficient. In re Recall of Sandhaus, 134 Wn.2d 662, 668, 953 P.2d 82 (1998). To be factually sufficient, the petition must state in detail the acts complained of, and the petitioner must have knowledge of identifiable facts that support the charges. RCW 29.82.010; Pearsall-Stipek, 136 Wn.2d at 263.

Legal sufficiency requires the charge “state with specificity ‘ “substantial conduct clearly amounting to misfeasance, malfeasance or violation of the oath of office.” ’ ” Id. (quoting In re Recall of Wade, 115 Wn.2d 544, 549, 799 P.2d 1179 (1990) (quoting Teaford v. Howard, 104 Wn.2d 580, 584, 707 P.2d 1327 (1985))). The critical language (misfeasance, malfeasance, or violation of the oath of office) is defined by statute: (1) “Misfeasance” or “malfeasance” in office means any wrongful conduct that affects, interrupts, or interferes with the performance of official duty; (

a) Additionally, “misfeasance” in office means the performance of a duty in an improper manner; and (

b) Additionally, “malfeasance” in office means the commission of an unlawful act; (2) “Violation of the oath of office” means the wilful neglect or failure by an elective public officer to perform faithfully a duty imposed by law. RCW 29.82.010. These

definitions, as well as the rest of the recall statute, are to be construed in favor of the voter, not the elected official. Pederson v. Moser, 99 Wn.2d 456, 462, 662 P.2d 866 (1983). The above criteria have been further developed by case law. When an official is “charged with violating the law, the petitioner [] must have knowledge of facts indicating that the official intended to commit an unlawful act.” Pearsall-Stipek, 136 Wn.2d at 263 (citing Sandhaus, 134 Wn.2d at 668).

This means that for the factual sufficiency requirement to be satisfied, the petitioner is required to demonstrate “not only that the official intended to commit the act, but also that the official intended to act unlawfully.” Id. at 263. Additionally, “[ojfficials may not be recalled for their discretionary acts absent, manifest abuse of discretion.” Id. at 264. “A legally cognizable justification for an official’s conduct renders a recall charge insufficient.” Id. While a court should not attempt to determine if the charges are true or false, it may examine whether there is a factual basis to the charges.

In re Recall of Anderson, 131 Wn.2d 92, 95, 929 P.2d 410 (1997). In the first charge of Washam’s petition, it is alleged that Pearsall-Stipek committed perjury or false swearing in three separate instances, which he refers to as “counts” of malfeasance. One statement was made in an answer to an interrogatory, another while testifying at trial in the same case, and the last in a separate deposition. In each instance it is alleged that Pearsall-Stipek lied about her educational background while under oath. Such conduct implicates the crimes of first degree perjury and false swearing.

RCW 9A.72.020 defines the crime of peijury in the first degree, which is a class B felony:

(1) A person is guilty of peijury in the first degree if in any official proceeding he makes a materially false statement which he knows to be false under an oath required or authorized by law;

(2) Knowledge of the materiality of the statement is not an element of this crime, and the actor’s mistaken belief that his statement was not material is not a defense to a prosecution under this section. RCW 9A.72.020. False swearing is a gross misdemeanor, defined by RCW 9A.72.040:

(1) A person is guilty of false swearing if he makes a false statement, which he knows to be false, under an oath required or authorized by law. RCW 9A.72.040. Washam argues that a violation of either of these statutes constitutes malfeasance on the part of Pearsall-Stipek and is grounds for a recall election.

Pearsall-Stipek contends, in an argument applicable to all three “counts,” that even if she committed perjury or false swearing such illegal activity is not malfeasance or misfeasance, as defined in RCW 29.82.010, because it did not “affectn, interruptl], or interfereO with the performance of official duty.” RCW 29.82.010(1); Br. of Resp’t at 17. Pearsall-Stipek fails to note, however, that this statute also provides that “ [additionally, ‘malfeasance’ in office means the commission of an unlawful act.” RCW 29.82.010(l)(b).

To accept Pearsall-Stipek’s position we must find that the Legislature intended the provision “[Additionally, ‘malfeasance’ in office means the commission of an unlawful act,” (emphasis added), to be modified by a separate statutory clause that broadly defines “ ‘[m]isfeasance’ or ‘malfeasance’ in office [as] any wrongful conduct that affects, interrupts, or interferes with the performance of official duty.” RCW 29.82.010(1). “ ‘When the words in a statute are clear and unequivocal, this court is required to assume the Legislature meant exactly what it said and apply the statute as written.’ ” In re Custody of Smith, 137 Wn.2d 1, 8, 969 P.2d 21 (1998) (quoting Duke v.

Boyd, 133 Wn.2d 80, 87, 942 P.2d 351 (1997)). We further recognize that “[t]he drafters of legislation . . . are presumed to have used no superfluous words and we must accord meaning, if possible, to every word in a statute . .. .” Greenwood v. Department of Motor Vehicles, 13 Wn. App. 624, 628, 536 P.2d 644 (1975). The meaning of the term “additionally” is very well understood by people generally, as being something that is added to or put onto a thing already in existence.

It embraces the idea of joining or uniting one thing to another so as to form an aggregate; but it has also been said that the word does not serve to amalgamate two things to which it is applied into a single whole but rather relates to them as separate entities. Ex parte Boddie, 200 S.C. 379, 21 S.E.2d 4, 8 (1942).

Applying these principles to RCW 29.82.010(1), “wrongful conduct,” whether illegal or not, “that affects, interrupts, or interferes with the performance of official duty” may constitute “misfeasance or malfeasance.” However, “[additionally, malfeasance in office means the commission of an unlawful act.” RCW 29.82.010(l)(b) (emphasis added). These are distinct statutory

definitions. Indeed, any construction that links these two provisions together would render RCW 29.82.010(l)(

b) wholly unnecessary. Any “unlawful act” is clearly “wrongful conduct.” If the commission of an unlawful act were required to “affect □ , interrupt□, or interfere!] with the performance of official duty” the conduct specified under RCW 29.82.010(l)(b) (“unlawful act”) would already be encompassed by RCW 29.82.010(1), the provision relating to “wrongful conduct.” RCW 29.82.010(1). We are not so quick to assume redundancy on the part of our Legislature. The Legislature “does not engage in unnecessary or meaningless acts, and we presume some significant purpose or objective in every legislative enactment.” John H.

Sellen Constr. Co. v. Department of Revenue, 87 Wn.2d 878, 883, 558 P.2d 1342 (1976). Thus, we conclude that the only statutory and Constitutional requirement relating to an “unlawful act” is that it be “in office.” Here, Pearsall-Stipek is accused of committing perjury or false swearing in the context of her official duties as auditor. Each statement was made in a lawsuit brought against the Pierce County Auditor’s office or Pearsall-Stipek in her capacity as auditor.

Given the allegations presented in this case, we need not determine whether the phrase “in office” contemplates only acts committed by a public officer in their official capacity, or whether it might include private acts committed outside of an officer’s official duties, committed during their term of office. See Dissent (Talmadge, J.) at 790, n.10. Contrary to the rhetoric contained in Justice Talmadge’s dissent, our

interpretation of RCW 29.82.010 does not mean that every “illegal act” of a public officer will culminate in a recall election. Dependent upon the office and location, a recall petitioner must obtain the signatures of 25 or 35 percent of the total number of votes cast in the prior election to initiate a recall election. See RCW 29.82.060. The right of recall is guaranteed to the citizens of this State, and it is for the people to decide if an “illegal act” is of sufficient severity to warrant a recall election. This is a duty wisely entrusted by the Constitution to our citizens, not this court.

There may be members of this court who would refrain from signing a recall petition based upon some minor “illegal act” committed by an elected officer, yet the majority of us are unwilling to deny thfe right to the very people we are entrusted to serve. Turning to the first “count,” Washam alleges that Pearsall-Stipek committed perjury or false swearing by stating in a July 18, 1994, interrogatory answer that she graduated from the University of Washington with a bachelor’s degree in business administration and a minor in home economics. CP at 59-60.

This false statement was made in the context of an employment discrimination suit filed by a former auditor’s employee, Sally Riccobono. Washam has failed to show that this statement constitutes either perjury or false swearing because to constitute either unlawful act the statement must be made under oath by Pearsall-Stipek. The only person who signed the interrogatory answer was Pearsall-Stipek’s attorney. Counsel presented the following declaration, made before a notary public, along with the interrogatory answer: Jack F.

Nevin, being first duly sworn, on oath, deposes and says: That he is the attorney for defendant, above-named; that he has read the foregoing answers to interrogatories; knows the contents thereof; and believes the same to be true. /s/ Jack F. Nevin CP at 312. Pearsall-Stipek, in an affidavit, maintains that she did not play a role in the untruthful interrogatory answer, stating: I was enrolled in a bachelor’s degree program in Business Administration; the attorney may have assumed I graduated but I did not sign any answer to interrogatory saying that I received such a degree. CP at 197.

Washam, who is not an attorney, appears to argue that the interrogatory answer signed by counsel should be imputed to Pearsall-Stipek as her sworn statement made under oath. He offers no legal basis for such a finding. In fact, not even counsel attested to the accuracy of the interrogatory answers, only to his “belief’ that they were true. As such, we hold that count one of charge I is legally insufficient. The statements involved in the other two “counts” took place during testimony given by Pearsall-Stipek while under oath, one at a trial and the other at a deposition.

In the Riccobono trial, Pearsall-Stipek untruthfully stated that she graduated from the University of Washington in 1954 with a degree in business administration and home economics. In her deposition in the Bockwinkel case, Pearsall-Stipek admitted that she had not received a degree, but claimed she had attended the University of Washington from 1951 to 1954. She attended only from September, 1950 to June, 1952. Both of the above statements occurred during preliminary questioning regarding Pearsall-Stipek’s background.

A charge of perjury in the first degree requires that the untruthful statement be made in the course of an “official proceeding” and that the statement be “material.” It is undisputed that Pearsall-Stipek’s statements occurred during an official proceeding. See RCW 9A.72.010(4). Therefore, the principal issue is whether the statements were material. A statement is material if it “could have affected the course or outcome of the proceeding. . . .” RCW 9A.72.010d).

With respect to the Bockwinkel deposition, in which Pearsall-Stipek misrepresented only her years of attendance at the University of Washington, it is quite clear that this falsehood was not a material statement. The deposition was not introduced at trial and could not have “affected the course or outcome of the proceeding.” RCW 9A.72.010(1). The Riccobono case was a discrimination suit brought by a former auditor’s employee, while the Bockwinkel case was a civil rights lawsuit arising from the ejection of two persons from the county’s ballot-counting facility.

Washam contends, in his recall petition, that Pearsall-Stipek’s educational background was a material issue in these cases because her “leadership abilities [were] in question in the . . . lawsuit [s], and her formal education is a material issue in regards to her qualifications.” CP at 19. Washam presents no facts to support this contention. In fact, two attorneys involved in the lawsuits have submitted affidavits stating that Pearsall-Stipek’s educational background was not material to either of the suits. CP at 190-93; see also Riccobono v. Pierce County, 92 Wn. App. 254, 966 P.2d 327 (1998).

Washam also contends that Pearsall-Stipek’s untruthful claim that she received a college degree was material in the Riccobono case because it bolstered her credibility before the jury. Issues affecting credibility can be material matters, if the witness testifies regarding material issues in a case. As we noted in State v. Carpenter: “The matter sworn to need not be directly and immediately material.

It is sufficient if it be so connected with the fact directly in issue as to have a legitimate tendency to prove or disprove such fact by giving weight or probability to the testimony of a witness testifying thereto, or otherwise. “Peijury may be assigned upon false statements affecting only a collateral issue, as the credit of a witness, this being material to the main issue .... But perjury cannot be assigned on the testimony of a witness on cross-examination affecting only his credit, where his evidence on direct examination was immaterial.” State v.

Carpenter, 130 Wash. 23, 26-27, 225 P. 654 (1924), quoted in State v. Daniels, 10 Wn. App. 780, 781, 520 P.2d 178 (1974). Pearsall-Stipek argues that credibility cannot be a material issue because “if witness credibility is always material, then the materiality requirement is meaningless. All testimony would be material.” Br. of Resp’t at 18. Pearsall-Stipek has misconstrued Washam’s argument. Washam is not arguing that credibility is always material, but rather that credibility can be material when a witness is testifying to material matters. Washam’s contention is in line with our statement in Carpenter.

It is unclear whether Pearsall-Stipek testified as to a material issue in the Riccobono trial. She was the first defense witness called in a discrimination lawsuit, so it is possible that she did testify regarding such matters. However, Washam has not supplied a trial transcript (other than a small excerpted portion of testimony), so an assessment of this issue is impossible. Based on the record, we cannot determine whether Pearsall-Stipek’s testimony “could have affected the course or outcome of the proceeding.” RCW 9A.72.010(1).

For this reason, we hold that Washam’s petition is legally insufficient to support a charge of perjury in the first degree. Even though we find that Washam has failed to demonstrate that the statements in counts two and three were material, and thus these charges are legally insufficient for a charge of perjury, we nonetheless find that these same statements do support a charge of false swearing. Pearsall-Stipek contends, however, that the false swearing statute implicitly requires an element of materiality, even though the statute, by its terms, makes no mention of the point.

Pearsall-Stipek cites RCW 9A.72.050 as evidence of legislative intent in this regard. That statute provides:

(1) Where, in the course of one or more official proceedings, a person makes inconsistent material statements under oath, the prosecution may proceed by setting forth the inconsistent statements in a single count alleging in the alternative that one or the other was false and known by the defendant to be false. In such case it shall not be necessary for the prosecution to prove which material statement was false but only that one or the other was false and known by the defendant to be false.

(2) The highest offense of which a person may be convicted in such an instance as set forth in subsection (1) of this

section shall be determined by hypothetically assuming each statement to be false. If peijury of different degrees would be established by the making of the two statements, the person may only be convicted of the lesser degree. If peijury or false swearing would be established by the making of the two statements, the person may only be convicted of false swearing. RCW 9A.72.050. Pearsall-Stipek reasons that because subsection (1) requires two or more “material” statements to be alleged, and subsection (2) speaks of false swearing, false swearing must require an element of materiality.

We find this argument unpersuasive. In assessing legislative intent, we look first to the language of the statute: In re Custody of Smith, 137 Wn.2d 1, 8, 969 P.2d 21 (1998). The false swearing statute makes no mention of materiality. In fact, it is evident that the Legislature was aware of how to make materiality an element of a crime, as they did with perjury, yet they omitted the term from the false swearing statute. See State v.

Jackson, 137 Wn.2d 712, 723, 976 P.2d 1229 (1999) (fact that Legislature in several statutes has made omission to act a crime but did not include omissions in the accomplice liability statute means the Legislature deliberately chose not to make failure to act a basis for accomplice liability). RCW 9A.72.050 is not inconsistent with this

interpretation. The statute simply provides that the State may charge successive false statements that are alleged to be material, but if it fails to prove that one of the statements is material, then the defendant may be convicted only of false swearing. Pearsall-Stipek also relies on State v. Jacobson, 74 Wn. App. 715, 876 P.2d 916 (1994). In Jacobson, the Court of Appeals held that a charge of “[fjalse swearing does not require the statement to have been made in an official proceeding.” Id. at 726.

In that case, where materiality was not at issue, the court held that an affidavit given in aid of a judicial proceeding comes within the definition of “official proceeding.” RCW 9A.72.050. Pearsall-Stipek argues that Jacobson stands for the proposition that the requirement of an “official proceeding” is the only distinction between perjury and false swearing. Id. Contrary to Pearsall-Stipek’s assertion, Jacobson did not even suggest such a point. The unambiguous language of the false swearing statute leads us to conclude it does not contain a materiality requirement.

In his dissent, Justice Talmadge does not dispute this point. Nevertheless, even though the argument has not been raised by either party, the dissent concludes the false swearing statute is applicable only to circumstances other than “official proceedings.” We believe this

interpretation to be untenable. First, and most significantly, the false swearing statute itself contains no such limitation. See Multicare Med. Ctr. v. Department of Soc. & Health Servs., 114 Wn.2d 572, 582, 790 P.2d 124 (1990). Second, this construction would yield unlikely results.

When the Legislature added the crime of false swearing, it also expanded the definition of “official proceeding” to include: a proceeding heard before any legislative, judicial, administrative, or other government agency or official authorized to hear evidence under oath, including any referee, hearing examiner, commissioner, notary, or other person taking testimony or depositions .... Laws of 1975, 1st Ex. Sess., ch. 260, at 849; RCW 9A.72.010(4). This definition contemplates not only in-court statements subject to attack by an adversary, but also statements made in nonadversarial settings.

In the latter instance, the statement’s truth will often go unchallenged. Under the construction advanced in Justice Talmadge’s dissent, a misstatement made in an “official proceeding” is punishable by law only if “material.” But all misstatements, material and nonmaterial, would be false swearing if made in any setting other than an official proceeding. The flaw in this construction is obvious. An affiant would be free to lie about nonmaterial matters in a sworn affidavit submitted to a judge. See Jacobson, 74 Wn.

App. at 725 (official proceeding includes written documents submitted in aid of an official proceeding). However, a person could be criminally punished for all misstatements, no matter how insignificant, if made under an oath authorized by law in any setting other than an official proceeding, such as in an application for a state license. See RCW 18.210.120(1) (water treatment designer license application “must contain statements, made under oath, demonstrating the applicant’s education and work experience”).

The dissent opines that “we cannot condone lying under oath by any witness,” but at the same time would grant witnesses the right to lie with impunity about nonmaterial matters in a courtroom. Dissent (Talmadge, J.) at 788. Our respect for the judicial system runs too deep, and our appreciation of the risks apparent in such a rule are too acute, to adopt such a construction. State v. Wilson, 83 Wash. 419, 145 P. 455 (1915), does little to support the position taken by the dissent. In Wilson, this Court construed the former second degree perjury statute as limited to statements made in extrajudicial proceedings.

The Wilson court reasoned that absent some limitation, the second degree perjury statute (similar to the current false swearing statute) would serve no purpose, as both it and the first-degree perjury statute could be applied to the same “state of facts.” Id. at 423.

The court rejected an argument that the second degree perjury statute could still be applied to immaterial statements made in judicial proceedings, noting that it is no defense “for perjury in the first degree that the defendant did not know the materiality of his false statement, if it was indeed material and might have affected such proceeding.” Id. at 425. The Wilson court assumed materiality was an element of both first and second degree perjury under the former statutes. This assumption was well founded, for at common law, the term “perjury” included only material misstatements. Id. at 421.

In 1975, the Legislature created a new crime in Washington, “false swearing,” and did not include an “official proceeding” or “materiality” requirement in the statute. These considerations lead us to conclude that the proper construction of the current false swearing statute is to treat it as a lesser included offense of first degree perjury. See State v. Devitt, 82 Wis. 2d 262, 272, 262 N.W.2d 73, 78 (1978) (“while false swearing alone cannot be perjury, perjury can be false swearing”).

At least two Washington commentators have endorsed the view we adopt today: Although knowledge of materiality is never an element, materiality is an element of perjury, although not of false swearing. In accordance with its plain language, the false swearing statute should be applied to all knowingly false statements under oath, whether made in or out of official proceedings, whenever these statements do not fit the definition of perjury. 13A Seth A. Fine & Douglas J. Ende, Washington Practice: Criminal Law § 1905, at 399 (1998).

Considering the significant differences between the 1915 second-degree perjury statute and the current false swearing statute, we conclude that Wilson has no application to this case.

In finding Washam’s recall petition insufficient, the superior court relied in part on RCW 9A.72.060, the perjury or false swearing retraction statute, which states: No person shall be convicted of perjury or false swearing if he retracts his false statement in the course of the same proceeding in which it was made, if in fact he does so before it becomes manifest that the falsification is or will be exposed and before the falsification substantially affects the proceeding.

Statements made in separate hearings at separate stages of the same trial, administrative, or other official proceeding shall be treated as if made in the course of the same proceeding. RCW 9A.72.060. The superior court’s rationale was that Pearsall-Stipek’s statement in the Bockwinkel deposition — that she did not receive a degree from the University of Washington— served as a retraction of her statement that she did receive a degree, which was given in the Riccobono trial a year and a half earlier.

As noted before, in the Bockwinkel deposition Pearsall-Stipek was untruthful only about her years of attendance, not whether she had earned a degree. The superior court misapplied RCW 9A.72.060. The two statements were made in separate proceedings, which were not part of the same trial. Even though we find that Washam’s petition is legally sufficient to show Pearsall-Stipek committed false swearing in two instances, for the factually sufficient requirement to be satisfied Washam must additionally show that Pearsall-Stipek intended her actions, and that she specifically intended to violate the law.

Pearsall-Stipek, 136 Wn.2d at 263. We are not persuaded that the testimony in the Bockwinkel deposition satisfies the test for factual sufficiency. During this testimony, Pearsall-Stipek conceded that she had not earned a college degree. She merely stated that she had attended the University of Washington in “ ’51, ’52, ’53, and ’54,” when in fact she had attended from September 1950 to June 1952. CP at 66.

This misstatement, which omitted one of the years, 1950, that Pearsall-Stipek actually attended the University of Washington bears the mark of simple mistake and is insufficient to show that Pearsall-Stipek “intended to violate the law. . . .” In re Sandhaus, 134 Wn.2d at 670. Nevertheless, we do believe there is sufficient evidence by which to infer intent on the part of Pearsall-Stipek to commit false swearing in the Riccobono trial and we therefore hold that this charge is factually sufficient.

Id. at 671 (“wilfulness [in violating RCW 36.40.130] can probably be found in evidence showing that [the prosecutor] knew he was overspending and did so even after the Board and the auditor warned him against doing so.”). In the Riccobono trial Pearsall-Stipek was administered an oath at page one of the trial transcript. Her untruthful statements appear at page two. During her testimony she claimed to have received a college degree when, in fact, she had not. Pearsall-Stipek was untruthful only a short moment after the oath reminding her of her legal obligation to tell the truth was administered.

Pearsall-Stipek’s final contention is that Washam’s petition should fail on grounds of “staleness.” Specifically, Pearsall-Stipek argues that because the voters of Pierce County were already aware that she had misrepresented her educational background when they reelected her on November 3, 1998, the petition should fail. The Tacoma News Tribune published an

article exposing Pearsall-Stipek’s misrepresentations regarding her educational background on October 30, 1998, five days prior to her reelection.. In Janovich v. Herron, 91 Wn.2d 767, 776, 592 P.2d 1096 (1979), we held that “the constitutional and statutory provisions . . . recognizing in the people a broad right to recall their elected officials, contemplate that officials may be recalled for misconduct during a prior term of office.” In Janovich the conduct at issue was not made public until after the reelection of the official had occurred. We expanded Janovich’s holding in Pederson v.

Moser, 99 Wn.2d 456, 464, 662 P.2d 866 (1983), holding that “[r]ecall may be based on misconduct in a prior term of office whether or not the misconduct is public knowledge at the time of reelection.” Underlying our decision in Pederson was the fact that an opposite holding “would regularly enmesh the courts in factual linedrawing as to just what constitutes ‘public knowledge’ of prior misconduct.” Id. As we noted, “[i]n other contexts we have studiously avoided such involvement. . . and we do so here.” Id. (citing State ex rel. Citizens Against Mandatory Bussing v.

Brooks, 80 Wn.2d 121, 124, 492 P.2d 536 (1972), overruled on other grounds by Cole v. Webster, 103 Wn.2d 280, 692 P.2d 799 (1984)). Several facts in this case aptly illustrate the difficulty of “factual linedrawing,” which was of concern to us in Pederson. Pederson, 99 Wn.2d at 464. First, the Tacoma News Tribune

article exposing Pearsall-Stipek’s lack of candor was published on October 30, 1998, only a few days prior to the November 3,1998, election. It is difficult to infer a broad awareness of Pearsall-Stipek’s conduct on the part of voters within this limited time frame. Second, and most importantly, the October 30, 1998,

article does not state that Pearsall-Stipek’s untruthful statements were made while under oath. Even if the voters were aware of Pearsall-Stipek’s misrepresentations about her educational background, it is very unlikely they were aware she had lied under oath about the topic. The Tacoma News Tribune

article did make extremely vague references to the fact that Pearsall-Stipek may have lied in court proceedings, stating in part: The true extent of her college education was unraveled Wednesday and Thursday in a series of interviews and through examination of court records and of her transcript on file at the UW. Bockwinkel provided the paper with a copy of a year-old deposition in which the auditor testified that she had no degree but had attended the UW from 1951 to 1954. CP at 99, ex. 4.

Of course, the above statements show only that Pearsall-Stipek lied about her years of attendance in the Bockwinkel deposition, not that she lied under oath about receiving a college degree (i.e., in the Riccobono trial). And finally, a portion of the ballots (mail-in) had likely been received by October 30, 1998, the day the Tacoma News Tribune story was published. Obviously voters mailing their ballots in by that time would have been unaware of the newspaper

article reporting Pearsall-Stipek’s misrepresentations. In fact, Pearsall-Stipek, in her campaign literature, claims to have succeeded “in increasing voter turn-out from 24 percent to 76 percent with over 54 percent voting by mail.” CP at 106. By her testimony in the Riccobono trial, Pearsall-Stipek violated the false swearing statute and this “unlawful act” constitutes malfeasance under RCW 29.82.010(l)(b), providing an adequate legal basis for a recall charge. We hold that the third count of charge I (the testimony in the Riccobono trial) is factually and legally sufficient for submission to the voters.

Counts one and two are insufficient. II Charge II of Washam’s recall petition concerns the manner in which Pearsall-Stipek conducted the June 1997 vote on the statewide referendum for a new professional football stadium. Pearsall-Stipek conducted the election in Pierce County entirely by mail, with voters supplying postage for the return of ballots. Washam charges that Pearsall-Stipek should have provided voters with postage prepaid return envelopes and charged the cost to “team affiliate,” the advocate of the new stadium.

Washam bases this argument on the legislation authorizing the referendum, which provided that the legislation would be null and void unless the team affiliate “enter[ed] into an agreement with the secretary of state to reimburse the state and the counties for the full cost of the special election ....” Laws of 1997, ch. 220, § 606 (emphasis added). Washam argues that the “full cost” of the special election includes those costs absorbed by the voters of Pierce County in having to provide postage to return their ballots.

Charge II of Washam’s petition fails on grounds of legal insufficiency, as the petition does not show that Pearsall-Stipek had a duty to provide postage prepaid return envelopes with the ballots. The authorizing legislation required reimbursement of the “counties” for the cost of the election. Washam presents no authority suggesting that the individual voters’ costs constituted a cost to the “county.” The legislation specifically authorized county auditors to conduct the election by mail utilizing the procedures set forth in RCW 29.36.121 through 29.16.139. Laws or 1997, ch. 220, § 607(4).

None of the listed provisions require county auditors to supply postage prepaid return envelopes for mail-in ballots. The only statute that refers to postage is RCW 29.36.045, which deals with absentee ballots. The statute directs auditors to instruct voters to physically return absentee ballots to the auditor “or attach sufficient first class postage, if applicable, and mail the ballot to the appropriate county auditor. . ..” RCW 29.36.045. Auditors may provide postage prepaid return envelopes to voters in elections, but there is nothing requiring them to do so.

Indeed, Pearsall-Stipek has submitted undisputed evidence that 27 county auditors, out of 30 surveyed, did not provide return postage for their mail-in ballots in the 1997 referendum election. CP at 217-48. The decision not to provide postage prepaid return envelopes was thus a reasonable discretionary act on the part of Pearsall-Stipek. It is well settled that “[o]fficials may not be recalled for their discretionary acts absent manifest abuse of discretion.” Pearsall-Stipek, 136 Wn.2d at 264. We hold that charge II of Washam’s petition is legally insufficient.

Ill Pearsall-Stipek has requested attorney fees pursuant to CR 11. In Pearsall-Stipek we held that a recall petitioner should not be made to pay an elected official’s attorney fees merely because the petitioner has brought a “frivolous recall petition.” Pearsall-Stipek, 136 Wn.2d at 266 (“potential chilling effect could undermine the Legislature’s intent that citizens be able to freely initiate recall efforts”). However, we also held that under our inherent equitable powers and CR 11 “attorney fees may be awarded against a petitioner who brings a recall petition in bad faith.” Id. at 267.

Bad faith in this context refers to “intentionally frivolous recall petitions brought for the purpose of harassment.” Id. at 266. Regardless of Washam’s motives, which are not known, his petition is not frivolous. It is based in part on undisputed charges of false testimony given by Pearsall-Stipek while under oath, one of which we have found to be factually and legally sufficient. Pearsall-Stipek’s request for attorney fees is denied.

CONCLUSION We affirm the superior court with respect to counts one and two of charge I (Riccobono interrogatory and Bockwinkel deposition), as well as charge II (referendum election), holding that these claims fail to meet the test of factual and legal sufficiency. We reverse as to count three of charge I (Riccobono trial), holding that this charge is factually and legally sufficient. Accordingly, this matter is remanded to the superior court for further proceedings consistent with this opinion. See RCW 29.82.060 (25 percent of total number of votes cast for the position in the preceding election).

Pearsall-Stipek’s request for attorney fees is denied. Guy, C.J., and Smith, Alexander, Sanders, Ireland, and Bridge, JJ., concur. Washam has been a longtime foe of Pearsall-Stipek, bringing recall petitions against her prior to the one at issue in this case. See In re Recall of Pearsall-Stipek, 129 Wn.2d 399, 918 P.2d 493 (1996) (concerning petitions brought by Washam); In re Recall of Pearsall-Stipek, 136 Wn.2d 255, 961 P.2d 343 (1998) (petitions brought by another party, but containing many of the same charges as Washam’s petitions).

Much of Washam’s briefing focuses on the fact that Pearsall-Stipek misrepresented her educational background during her political campaigns. However, Washam has not based his recall petition on any violation of campaign laws. Second degree peijury is the giving of a materially false statement in an examination under oath under the terms of an insurance contract or with the intent to mislead a public servant in the performance of his or her duty. RCW 9A.72.030(1). There has been no allegation that Pearsall-Stipek made false statements under these circumstances.

In his dissent, Justice Johnson accepts that a reading of the statute “could lead one to believe any unlawful act may be grounds for recall,” but goes on to conclude that the “amendment’s legislative history reveals a contrary intent.” Dissent at 787. We disagree. The originally proposed version of RCW 29.82.010 came from the Senate.

When it was sent to the House its definitional component read: For the purposes of this chapter: (1) “Malfeasance in office” means an unlawful act committed wilfully by any elective public officer; (2) “Misfeasance in office” means the fulfillment of a statutorily imposed duty in an unlawful or improper manner by any elective public officer; (3) “Violation of the oath of office” means the wilful neglect or failure by an elective public officer to perform faithfully a duty imposed by law. 1st Engrossed Substitute S.B. 3984, at 2 (Jan. 11, 1984).

The House Committee on Constitution, Elections and Ethics amended the proposed bill to its current form, which states: (1) “Misfeasance” or “malfeasance” in office means any wrongful conduct that affects, interrupts, or interferes with the performance of official duty; (

a) Additionally, “misfeasance” in office means the performance of a duty in an improper manner; and (

b) Additionally, “malfeasance” in office means the commission of an unlawful act; H.B. Rep. (S.S.B. 3984), 48th Leg., Reg. Sess. at 4 (Feb. 17, 1984). The House Bill Report describes the committee change, stating that it “[a]lters the

definitions of “misfeasance” and “malfeasance” in office and applies these terms to any wrongful conduct that affects the performance of official duty. References to duties being statutorily imposed and unlawful acts being wilfully committed are deleted.” H.B. Rep. at 3. The original Senate bill did not include general “wrongful conduct” within the definition of either malfeasance or misfeasance. The House greatly expanded these

definitions by “appl lying] these terms to any wrongful conduct that affects the performance of official duty.” Id. By doing so the House made conduct that was originally not sufficient to constitute malfeasance or misfeasance (e.g., general “wrongful conduct”) sufficient only if it “affects, interrupts, or interferes with the performance of official duty.” We also note that the dissent relies on case law from this court defining the terms misfeasance and malfeasance. Each of the opinions relied upon were written prior to the Legislature’s creation of statutory

definitions for these terms. See, e.g., State ex rel. Nisbet v. Coulter, 182 Wash. 377, 47 P.2d 668 (1935); State ex rel. Knabb v. Frater, 198 Wash. 675, 89 P.2d 1046 (1939); Danielson v. Faymonville, 72 Wn.2d 854, 435 P.2d 963 (1967) (overruled on other grounds by Cole v. Webster, 103 Wn.2d 280, 692 P.2d 799 (1984)). While we do not quarrel with the dissent’s analysis of these cases, they have no relevance in defining terms that have subsequently been defined by the Legislature.

In his dissent, Justice Talmadge refers to the recall procedure of Arizona, citing with approval their system of requiring payment by recall petitioners for every subsequent recall election held against a public officer after a first, and unsuccessful, recall election is held during an officer’s term of office. Dissent (Talmadge, J.) at 797, n.12.

What Justice Talmadge fails to note is that Arizona, like many other states that allow recall elections, permits the recall of elected officers without cause, even “to get rid of an obnoxious and unsatisfactory officer with whom, for any or no reason whatever.. . they have become displeased.” Abbey v. Green, 28 Ariz. 53, 235 P. 150, 154 (1925) (citations omitted); see also, Elizabeth E. Mack, Comment, The Use and Abuse of Recall: A Proposal for Legislative Recall Reform, 67 Neb. L. Rev. 617, 625-32 (1988).

The inevitable state of turmoil predicted by the dissent has apparently not crippled Arizona’s political system. The dissent states that “the Legislature could hardly have intended every impeachment of a witness to be false swearing.” Dissent (Talmadge, J.) at 796. Case law establishes the general principle that extrinsic evidence may normally be used to impeach a witness only with respect to material, as opposed to collateral, matters. State v. Babich, 68 Wn. App. 438, 443, 842 P.2d 1053 (1993); State v. Lubers, 81 Wn. App. 614, 623, 915 P.2d 1157 (1996); State v. Alexander, 52 Wn.

App. 897, 901-02, 765 P.2d 321 (1988) (“Contradictory or impeaching testimony is collateral if it could not be shown in evidence for any purpose independent of contradiction.”). If a witness lies about a collateral matter, the opposing party may cross-examine the witness as to this point, but if the witness adheres to the fabricated testimony, the inquiry must end. Crisp v. Nursing Homes, Inc., 15 Wn. App. 599, 604, 550 P.2d 718 (1976); Alexander, 52 Wn. App. at 901. In contrast, with respect to a material matter, extrinsic evidence may be brought in to challenge the testimony. Babich, 68 Wn. App. at 443.

Under the dissent’s construction, the latter form of impeachment would often form the basis for a first degree perjury conviction. But the former would most often be subject to no penalty, despite the fact that it is the only circumstance in which the opposing party must rely solely upon a witness’ legal obligation to tell the truth. If that obligation is nonexistent there is no incentive for the witness to tell the truth, there is no chance the truth will be gleaned from an external source, and in the end, the truth will lie hidden from the trier of fact.

In our opinion, the Legislature could not have intended this result. See Bour v. Johnson, 122 Wn.2d 829, 835, 864 P.2d 380 (1993) (We avoid statutory

interpretations that are “[s]trained, unlikely or unrealistic .. ..”). The reliance on Jacobson by Justice Talmadge’s dissent is similarly misplaced. Apart from other potential problems with Jacobson’s holding, it does not appear to stand for the proposition the dissent claims. In Jacobson, the materiality of the defendant’s misstatement was undisputed and the court appears to have determined as a matter of law that the statement was made in an official proceeding. State v. Jacobson, 74 Wn. App. 715, 726, 876 P.2d 916 (1994).

Since the two factors that distinguish first-degree perjury and false swearing were established (materiality and official proceeding), the evidence could not “support an inference that only the lesser crime was committed.” Id. (emphasis added) (citing State v. Rodriguez, 48 Wn. App. 815, 818-19, 740 P.2d 904 (1987). The only issue for the court to resolve was whether a lesser included offense instruction was warranted. The court concluded it was not. Contrary to the dissent’s view, the court did not hold that false swearing can only occur outside of an official proceeding.

Washam, in his reply brief, states that approximately 60,000 mail-in ballots had already been received by Pierce County on October 30, 1998, the day the Tacoma News Tribune

article was published. He also notes that out of the 196,580 votes cast for the position of Pierce County Auditor, Pearsall-Stipek received only 90,160. Reply Br. at 11. The source of Washam’s figures is not in the record before this Court.