Respect Washington v. Burien Communities For Inclusion ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BURIEN COMMUNITIES FOR
INCLUSION, a Washington political No. 77500-6-1
committee,
DIVISION ONE
Respondent,
UNPUBLISHED OPINION
V.
RESPECT WASHINGTON, a
Washington political committee, .
Appellant,
KING COUNTY ELECTIONS; JULIE
WISE, King County Director of
Elections, in her official capacity at
King County Elections; and CITY OF
BURIEN,
Defendants. FILED: September 9, 2019
APPELWICK, C.J. — On September 14, 2017, the trial court granted Burien
Communities for Inclusion (BC') a preliminary injunction, prohibiting Burien
Initiative 1 (Measure 1)from being placed on the November 2017 ballot. Respect
Washington appeals the preliminary injunction, arguing that (1) it violates the free
speech rights of the city of Burien's (City) voters,(2) the trial court erred in altering
the status quo, and (3) BCI failed to show substantial injury. It also contends that
Measure 1 is within the scope of the City's initiative power. We affirm.
No. 77500-6-1/2
FACTS
On January 9, 2017, the Burien City Council passed Ordinance 651
(Ordinance). The Ordinance is now codified at Burien Municipal Code (BMC)
2.26.010-.030. BMC 2.26.020 provides that "a City office, department, employee,
agency or agent shall not condition the provision of City services on the citizenship
or immigration status of any individual," except as otherwise required by law. It
prohibits City personnel from initiating any inquiry or enforcement action based
solely on a person's civil immigration status, race, inability to speak English, or
inability to understand City personnel or officers. BMC 2.26.020(4) And, it forbids
City officials from creating a registry for the purpose of classifying people on the
basis of religious affiliation, or conducting a study related to the collection of such
information. BMC 2.26.030.
On July 7, 2017, Craig Keller, the campaign manager, treasurer, and officer
of Respect Washington, a Washington political committee submitted an initiative
petition to the City. The petition asked that an initiative repealing the Ordinance,
Measure 1,1 be submitted to a vote of the City's registered voters. In addition to
repealing the Ordinance, Measure 1 would add the following chapter to the BMC:
New Chapter 9.20 is hereby added to the Burien Municipal Code
"Public Peace, Morals and Welfare" to read as follows:
9.20 Citizen Protection of Effective Law Enforcement: The City of
Burien shall not regulate the acquisition of immigration status or
religious affiliation unless such regulation is approved by a majority
vote of the City Council and a majority vote of the people at a
municipal general election.
1 Both parties refer to this initiative as "Measure 1."
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No. 77500-6-1/3
Two weeks later, the King County Department of Elections found that a
sufficient number of signatures had been submitted for Measure 1, and issued a
certificate of sufficiency. The Burien City Council then voted to place Measure 1
on the November 7, 2017 ballot.
On September 8, 2017, Burien Communities for Inclusion (BCD, a
Washington political committee, filed a complaint for declaratory and injunctive
relief against Respect Washington, King County Elections, King County Director
of Elections Julie Wise, and the City. It sought a declaratory judgment that
Measure 1 is invalid, arguing in part that (1) it exceeds the scope of the City's
initiative power, and (2) the petition used to gather signatures violates RCW
35.21.005. It also asked the trial court to enjoin Measure 1 from being included on
the November 2017 ballot.
Three days later, BCI sought and obtained a temporary restraining order
(TRO). The TRO prohibited King County Elections and Wise from placing Measure
1 on the November 7, 2017 ballot. As a result, King County removed Measure 1
from the ballot. In granting the TRO,the trial court ordered that, on September 13,
the matter be heard on a motion for a preliminary injunction, at which time the TRO
would expire.2 The deadline for King County Elections to send the ballots to the
printer was the next day, September 14.
2 On September 12, 2017, BCI filed a motion for a preliminary injunction,
asking the trial court to enjoin King County Elections and Wise from including
Measure 1 on the ballot.
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No. 77500-6-1/4
On September 14, 2017, the trial court granted BCI's motion for a
preliminary injunction. In doing so, it ordered the following;
1. City of Burien Initiative Measure No. 1 ("Measure 1") is invalid on
the grounds that(a) Measure 1 exceeds the scope of the initiative
authority granted to the people of the City of Burien, that it is
administrative in nature, and (b) the petition used to gather
signatures for Measure 1 violated RCW 35.21.005 by deviating
from the requirements for the contents and form of a petition, as
set forth in RCW 35.17.240 through 35.17.360;
2. Defendants King County Elections, Julie Wise, King County
Director of Elections, and all agents of King County Elections are
prohibited from including or placing Measure 1 on the November
7, 2017 ballot.
Respect Washington appeals.3
DISCUSSION
Respect Washington makes six arguments.4 First, it argues that BC! is not
entitled to any relief because its complaint is barred by the statute of limitations
3 Respect Washington did not seek a stay of the trial court decision.
Instead, on October 27, 2017, it filed a motion with this court, asking the court to
treat the order as an appealable order under RAP 2.2(a)(3), or, alternatively, to
grant discretionary review. On January 3, 2018, this court ordered that review
would go forward as an appeal. The court explained that, despite not obtaining a
declaratory judgment or permanent injunction, as a practical matter, BCI obtained
the relief it requested.
4 As an initial matter, BCI argues that all of Respect Washington's claims
are moot. This case may be moot, because Measure 1 can no longer be placed
on the November 2017 ballot. See Randy Reynolds & Assocs., Inc. v. Harmon,
193 Wash. 2d 143, 152, 437 P.3d 677 (2019) (finding that an appeal was moot
because the Court of Appeals could no longer offer effective relief). However,
Respect Washington contends that Measure l's placement on another ballot is
relief that this court can provide. Even if a case becomes moot, "the court has
discretion to decide an appeal if the question is of continuing and substantial public
interest." Id. "Washington courts have repeatedly entertained suits involving the
right of initiative or referendum despite possible mootness because the suits entail
substantial public interest." Glob. Neighborhood v. Respect Wash.,7 Wash. App. 2d
354, 379, 434 P.3d 1024 (2019). Accordingly, regardless of whether Respect
Washington's claims are moot, we reach the merits of this case.
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No. 77500-6-1/5
and laches. Second, it argues that the preliminary injunction violated the free
speech rights of the City's voters. Third, it argues that the trial court erred in
granting a preliminary injunction that altered the status quo. Fourth, it argues that
BCI failed to show that substantial injury would result from Measure l's placement
on the ballot. Fifth, it argues that Measure 1 does not exceed the scope of the
City's initiative power, and is legislative in nature. And sixth, it argues that the
petition used to gather signatures did not violate RCW 35.21.005.5
I. Statute of Limitations and Laches
Respect Washington argues that BC! was not entitled to any relief because
its claims were "barred by the statute of limitations or laches." It points out that the
Burien City Council voted to place Measure 1 on the November 2017 ballot at a
public meeting on August, 7, 2017. BC! did not file its complaint until September
8,2017.
5 Respect Washington also argues that the trial court "erred by shortening
the time to respond to motions." It states that, on September 11, 2017, BCI filed
its motion for a TRO,the trial court "scheduled a preliminary injunction hearing two
days later," and this time frame "did not permit any party to comply with the rules
governing the filing of motions." It relies on King County Local Civil Rule 7(b)(4)(a),
which provides that "[t]he moving party shall serve and file all motion documents
no later than six court days before the date the party wishes the motion to be
considered." However, under King County Local Civil Rule 65(b)(2), a preliminary
injunction hearing "shall be set in conformance with the timing requirements of CR
65(b)." Thus, Local Civil Rule 7(b)(4)(a) does not apply. Under CR 65(b), "[in
case a[TRO]is granted without notice, the motion for a preliminary injunction shall
be set down for hearing at the earliest possible time and takes precedence over
all matters except older matters of the same character." And, "[n]o preliminary
injunction shall be issued without notice to the adverse party." CR 65(a)(1).
Respect Washington does not argue that it lacked notice of the preliminary
injunction. As a result, the trial court did not err in setting a preliminary injunction
hearing two days after it granted BCI a TRO.
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No. 77500-6-1/6
Respect Washington asserts first that BCI brought its claims under the
Uniform Declaratory Judgments Act (UDJA), chapter 7.24 RCW. Because the
UDJA does not have its own statute of limitations, it states that "courts are to apply
an analogous statute of limitations." Respect Washington points to three election
related statutes of limitations as examples.
First, a challenge to the ballot title or summary for a state initiative or
referendum must be brought within 5 days from the filing of the ballot title. RCW
29A.72.080. Second, a challenge to the ballot title for a local ballot measure must
be brought within 10 days from the filing of the ballot title. RCW 29A.36.090. Third,
a challenge to the Secretary of State's refusal to file an initiative or referendum
petition must be brought within 10 days after the refusal. RCW 29A.72.180.
This court recently considered an identical argument in Global
Neighborhood v. Respect Washington, 7 Wash. App. 2d 354, 434 P.3d 1024(2019).
There, on February 22, 2016, the Spokane City Council placed Proposition 1 on
the November 2017 ballot. Id. at 369. Global Neighborhood did not file its
complaint addressing the validity of Proposition 1 until May 2017, and did not move
for a declaratory judgment prohibiting Proposition 1 from being placed on the ballot
until July 28, 2017. Id. at 372-73. The trial court declared Proposition 1 invalid
because it was administrative in nature and exceeded the local initiative power and
entered an injunction directing its removal from the ballot. Id. at 374.
On appeal, Respect Washington asserted the statute of limitations as a
defense, and provided this court with the same election related statutes of
limitations. Id. at 380-81. This court stated that "[s]ignificant differences lie
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No. 77500-6-1/7
between a challenge to the title of an initiative and a challenge to the substance of
an initiative." Id. at 381. It explained,
The initiative if adopted will take effect regardless of any defect in its
title. If any lawsuit will remedy the flaw in the initiative's name, the
lawsuit should be brought in advance of the election and in time for
the secretary of state or local government official to place a proper
title on the ballot. A challenge to a refusal to place an initiative on
the ballot also should be brought quickly in order to remedy any
wrongful refusal to consign the measure to the ballot.
A challenge to a local initiative as exceeding the scope of a
municipality's legislative power may be brought after the initiative
election. If the challenge can be brought after the vote, we should
erect no impediment by reason of a statute of limitations applying
before the effectiveness of initiative as an ordinance.
Id.
As a result, it deemed the preelection challenge to a ballot initiative
"analogous to a challenge to an adopted ordinance or statute." Id. In Washington,
"no statute of limitations applies to a challenge to the constitutionality of a statute
or other action." Id. This court held that, similarly, "no statute of limitations should
apply to the challenge of an ordinance that exceeds the authority of the entity
adopting the measure whether by its legislative body or the voters by initiative." Id.
at 382. It also pointed out that many Washington decisions have "entertained
preelection initiative challenges without suggesting a statute of limitations that
applied before the election might bar such a challenge." Id. We adhere to that
decision, and that find that BCI's claims were not barred by a statute of limitations.
Alternatively, Respect Washington argues that BCI's claims should have
been barred by laches.
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No. 77500-6-1/8
"Laches is an implied waiver arising from knowledge of existing conditions
and acquiescence in them." Buell v. City of Bremerton, 80 Wash. 2d 518, 522, 495
P.2d 1358 (1972). The elements of laches are: "(1) knowledge or reasonable
opportunity to discover on the part of a potential plaintiff that he has a cause of
action against a defendant; (2) an unreasonable delay by the plaintiff in
commencing that cause of action;(3) damage to the defendant resulting from the
unreasonable delay." Id. None of these elements alone raises a laches defense.
Id.
Respect Washington also raised a laches defense in Global Neighborhood.
7 Wash. App. 2d at 380. There, the trial court issued its decision prohibiting
Proposition l's placement on the ballot a week before the deadline for printing
ballots. Id. at 384. Respect Washington did not seek accelerated review by this
court. Id. at 385. This court determined that, even if Global Neighborhood's delay
in filing its complaint was unreasonable, the delay did not harm Respect
Washington. Id. at 384.
This court noted that Respect Washington failed to cite authority for the
proposition that a delay in appellate review constitutes harm for purposes of
laches. Id. at 384-85. Its claim also "assume[d] that this court would reverse the
superior court's decision and allow Proposition 1 to be submitted for a vote." Id. at
385. And, it assumed that "it had the right to vote on an initiative that exceeded
the initiative power." Id. This court pointed out that, "[i]f anything, the Spokane
public is prejudiced by the expense incurred by the city of Spokane in conducting
a special election for an initiative beyond the scope of the initiative power." Id.
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No. 77500-6-1/9
Last, it noted that Respect Washington assumed that "this court lacks authority to
direct placement of Proposition 1 on a later ballot," and "fail[ed] to recognize the
possibility of accelerated review by this court." Id.
Similarly here, Respect Washington argues that "[t]he delay until . . . the
eve of printing the ballots—never before done in the context of an initiative
challenge—was an unreasonable delay." Unlike Global Neighborhood, BCI
sought a TRO three days before the printing deadline, sought a preliminary
injunction two days before the printing deadline, and was granted a preliminary
injunction on the same day as the printing deadline. Respect Washington makes
the same assumptions that it did in Global Neighborhood. Its claim of harm
assumes that this court would reverse the trial court's decision, and that it has the
right to vote on an initiative that exceeds the initiative power. And, again, it fails to
recognize the possibility of accelerated review by this court.6
We adhere to our decision in Global Neighborhood and find that Respect
Washington was not harmed by BCI's delay in seeking a TRO and preliminary
injunction.
II. Preliminary Injunction
Respect Washington makes three arguments regarding the trial court's
decision to grant a preliminary injunction.7 It argues that the trial court(1) violated
6 In this case, Respect Washington did not seek accelerated review by this
court, or a stay of the trial court's decision. Instead, on October 27, 2017, it filed a
motion to determine whether the preliminary injunction was an appealable order,
and, alternatively, a motion for discretionary review.
7 Respect Washington also argues that the injunction is invalid because the
trial court did not require BCI to post a bond. Under CR 65(c),"Except as otherwise
provided by statute, no... preliminary injunction shall issue except upon the giving
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No. 77500-6-1/10
the free speech rights of the City's voters, (2) improperly altered the status quo,
and (3)failed to show substantial injury.
This court reviews a trial court's decision to grant a preliminary injunction
and the terms of that injunction for an abuse of discretion. Resident Action Council
v. Seattle Hous. Auth., 177 Wash. 2d 417, 428, 327 P.3d 600 (2013). "A trial court
necessarily abuses its discretion if the decision is based upon untenable grounds,
or the decision is manifestly unreasonable or arbitrary." Kucera v. Dep't of Transp.,
140 Wash. 2d 200, 209, 995 P.2d 63(2000).
A party seeking a preliminary injunction must show '11) that he has a clear
legal or equitable right,(2)that he has a well-grounded fear of immediate invasion
of that right, and (3) that the acts complained of are either resulting in or will result
in actual and substantial injury to him." Tyler Pipe Industries, Inc. v. Dep't of
Revenue,96 Wn.2d 785, 792,638 P.2d 1213(1982)(quoting Port of Seattle V. Intl
Longshoremen's & Warehousemen's Union, 52 Wash. 2d 317, 319, 324 P.2d 1099
(1958)). This listed criteria "must be examined in light of equity including balancing
the relative interests of the parties and, if appropriate, the interests of the public."
of security by the applicant." (Emphasis added.) Respect Washington agrees that
BC! brought its complaint under the UDJA. Under that Act, "The court, in its
discretion and upon such conditions and with or without such bond or other security
as it deems necessary and proper may.. . restrain all parties involved in order to
secure the benefits and protect the rights of all parties to the court proceedings."
RCW 7.24.190 (emphasis added). Accordingly, under RCW 7.24.190, no bond
was required. See Yamaha Motor Corp. v. Harris, 29 Wn. App. 859,865,631 P.2d
423 (1981)(holding that the trial court did not err in failing to require Yamaha to
post a bond where RCW 4.44.480 provides that the court may order a party to
deposit money into the court "with or without security"). The trial court did not err
in failing to require BC! to post a bond.
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No. 77500-6-1/11
Id. If a party fails to establish any one of these requirements, "the requested relief
must be denied." Kucera, 140 Wash. 2d at 210.
A. Free Speech
Respect Washington argues that the preliminary injunction violates the First
Amendment rights of the City's voters. Relying on Coppernoll v. Reed, 155 Wash. 2d
290, 119 P.3d 318(2005), it asserts that the State Supreme Court "has noted that
there are free speech implications in even invalid initiatives."
The Coppernoll court examined the extent to which the Washington
Constitution permits preelection review of a statewide initiative. Id. at 297, 299. In
doing so, it explained that "[b]ecause ballot measures are often used to express
popular will and to send a message to elected representatives (regardless of
potential subsequent invalidation of the measure), substantive preelection review
may also unduly infringe on free speech values." Id. at 298. But, it recognized
that Washington courts have entertained preelection review of two types of
challenges to statewide initiatives: (1) whether a ballot measure fails to comply
with procedural requirements, and (2)whether a ballot measure exceeds the scope
of the legislative power under article II, section 1 of the Washington Constitution.
Id. at 298-99. Thus, the court recognized that some circumstances warrant
preelection review.
Next, Respect Washington attempts to distinguish this case from Port of
Tacoma v. Save Tacoma Water,4 Wash. App. 2d 562, 422 P.3d 917 (2018), review
denied 192 Wash. 2d 1026, 435 P.3d 267 (2019). There, the trial court issued a
permanent injunction preventing Save Tacoma Water (STVV) from placing two
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No. 77500-6-1/12
initiatives on the Tacoma municipal ballot that would limit the availability of
Tacoma's water service. Id. at 566-67. It determined that the initiatives were
beyond the scope of the local initiative power. Id. at 566.
On appeal, SlIN argued that the trial court's determination and issuance of
an injunction violated its free speech rights under the federal and state
constitutions. Id. at 576. This court disagreed. Id. at 577, 579. It explained that
this argument was rejected by the Ninth Circuit in Angle v. Miller, 673 F.3d 1122
(2012),8 and differentiated the injunction from one that classifies speech on the
basis of subject matter or content. Port of Tacoma, 4 Wash. App. 2d at 577-78. It
stated,
[T]he injunction rests on the principles that a measure is beyond the
local initiative power if it is administrative or in conflict with state law.
Neither the injunction nor the principles on which it is based
distinguish among measures or in associated speech activities on
the basis of content or subject matter.
Id. at 578.
Similarly here, the preliminary injunction rests on the principle that a
measure is beyond the local initiative power if it is administrative in nature.
Respect Washington asserts that, unlike Port of Tacoma, "it is the First
Amendment right of the people of Burien which has been violated." This distinction
between Respect Washington's free speech rights, and the rights of the City's
voters, is not meaningful. Respect Washington cites no authority for the
proposition that the City's voters have a free speech right under the federal or state
8 The Angle court held that "[t]here is no First Amendment right to place an
initiative on the ballot." Id. at 1133.
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No. 77500-6-1/13
constitutions to vote on an initiative that exceeds the scope of the local initiative
power. Where no authorities are cited in support of a proposition, this court "may
assume that counsel, after diligent search, has found none." DeHeer v. Seattle
Post-Intelligencer, 60 Wash. 2d 122, 126, 372 P.2d 193(1962). Therefore, we do not
consider this argument. RAP 10.3(a)(6)(requiring arguments to be supported by
legal authority).
The preliminary injunction was based on the initiative exceeding the scope
of the local initiative power, not the substance of the policy stance taken. It does
not violate the free speech rights of the City's voters.
B. Status Quo
Respect Washington argues that the trial court improperly disposed of the
entire case by granting BCI "all that they sought in their [c]omplaint." It states that,
by issuing the preliminary injunction on the same date as the deadline for sending
ballots to the printer, the trial court "ensured that Measure 1 would not appear on
the ballot and thus disposed of the case under the guise of granting a preliminary
injunction." Respect Washington also contends that, by removing Measure 1 from
the ballot, the trial court improperly altered the status quo that existed prior to BCI
filing its complaint.
First, Respect Washington asserts that the trial court erred by effectively
disposing of this case on the merits when it granted the preliminary injunction. It
relies on a proposition from a 1940 State Supreme Court case providing that,
where a preliminary injunction would effectively grant all the relief that could be
obtained by a final decree and would practically dispose of the whole case, it will
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No. 77500-6-1/14
not be granted. State ex rel. Pay Less Drug Stores v. Sutton, 2 Wash. 2d 523, 532,
98 P.2d 680 (1940).
In BCI's complaint, it sought a declaratory judgment that "Measure 1 is
procedurally and substantively invalid," an injunction preventing Measure l's
placement on the November 2017 ballot, attorney fees and costs, and "further relief
as the [c]ourt deems just and proper." On September 14, 2017, the same day as
the printing deadline, the trial court issued a preliminary injunction finding Measure
1 invalid and preventing its placement on the November 7, 2017 ballot. The court
appeared to contemplate future action in the case, stating that "[t]he injury if
Measure No. 1 is placed on the ballot now outweighs any delay in having the
Measure on the ballot at a future point in time; mere delay is not the same as an
outright denial."
After the trial court issued the preliminary injunction, Respect Washington
did not seek a stay of the court's decision, or accelerated review by this court.
Rather, it waited until October 27, 2017 to file a motion with this court, asking us
to treat the order as an appealable order under RAP 2.2(a)(3), or, alternatively, to
grant discretionary review. In January 2018, this court found the order appealable,
and, in July 2018, the trial court proceedings were stayed.
As a practical matter, the preliminary injunction granted BCI the relief it
sought—a determination that Measure 1 is invalid, and an injunction preventing its
placement on the November 2017 ballot. But, the preliminary injunction was not a
final determination on the merits of the case. It was final only in the sense that the
issue did not appear on the November 2017 ballot. But, the trial court appeared
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No. 77500-6-1/15
to contemplate future action in the case by referring to the "delay" in having
Measure 1 "on the ballot at a future point in time." And, we agree that placing the
measure on a future ballot was relief that remained available when the preliminary
injunction issued.
Accordingly, because the preliminary injunction was not a final
determination on the merits, the trial court did not improperly dispose of the case.
Second, Respect Washington argues that the trial court improperly altered
the status quo by granting BCI a preliminary injunction. It states that the status
quo as of August 7, 2017 "was that Measure 1 was to appear on the ballot."
A preliminary injunction is designed to preserve the status quo until the trial
court can conduct a full hearing on the merits. Serv. Emps. Intl Union Local 925
v. Univ. of Wash., 4 Wash. App. 2d 605, 621, 423 P.3d 849 (2018), review granted
192 Wash. 2d 1016, 438 P.3d 111 (2019). But, the State Supreme Court has
repeatedly upheld trial court decisions preventing an initiative's placement on a
ballot. See, e.o., Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend
Constitution, 185 Wash. 2d 97, 100-01, 369 P.3d 140 (2016)(affirming trial court's
instruction that initiative be struck from ballot after enough signatures were
gathered to place it on ballot); Ruano v. Spellman, 81 Wash. 2d 820, 821-22, 829,
505 P.2d 447 (1973)(affirming trial court's decision to enjoin initiative from being
placed on ballot after it was certified that initiative had sufficient signatures).
The status quo was that the Ordinance was in effect. The initiative sought
to alter the status quo. Its placement on the ballot was contingent upon satisfying
the legal requirements for an initiative. Whether it had done so had not been
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No. 77500-6-1/16
established and was the subject of the litigation. Respect Washington does not
cite authority to the contrary. Where a party fails to cite authority in support of a
proposition, this court "may assume that counsel, after diligent search, has found
none." DeHeer, 60 Wash. 2d at 126.
The trial court did not improperly alter the status quo by issuing the
preliminary injunction.
C. Substantial Injury
Respect Washington argues that BCI has not shown "any kind of substantial
injury resulting from Measure 1 on the ballot." It asserts that, in BCI's motion, the
only specific injury it identified was the "vague claim" of fear of and reluctance to
engage with City personnel, offices, and services if Measure 1 becomes law.
In issuing the preliminary injunction, the trial court stated,
The Court has carefully balanced the relative interests of the
parties and the interests of the public. The injury if Measure No. 1 is
placed on the ballot now outweighs any delay in having the Measure
on the ballot at a future point in time; mere delay is not the same as
an outright denial. The Court finds that Plaintiff has established a
clear legal right, a well-grounded fear of immediate invasion of that
right, and that the action sought to be enjoined will result in actual
and substantial injury.
BCI attached to its preliminary injunction motion several declarations
addressing future injury. One BCI member, Hugo Garcia, stated that he has close
friends who shared that "they have stayed home and limited the time they go out
to restaurants or grocery shop due to the anxiety and fear [from] the uncertainty of
the sanctuary city ordinance." Rich Stolz, another BCI member and Executive
Director of OneAmerica, an immigrant and refugee advocacy organization,
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No. 77500-6-1/17
discussed the effects of Measure 1 on the immigrant and refugee community. He
stated that the "polarizing debate over [Measure 1] has raised fears in the
immigrant and refugee community that they should not contact local law
enforcement if they need to report crimes or violations of their own rights or
property."
Sandy Restrepo, another BCI member and attorney, discussed the effect of
Measure 1 on her immigrant clients. She shared that many of her immigrant clients
"have stated that they are afraid to send their children to school, go to the grocery
store and even call the police to report a crime because the anti-immigrant
sentiment has increased since Respect Washington began collecting signatures."
She offered one example: undocumented immigrant parents came to her office
seeking legal advice, because they were afraid to report to City police that their
child was a victim of sexual assault. They went to Restrepo first to see if they
would risk deportation if they spoke to police officers. She asserted that "[i]f these
repeal efforts continue, our community will only continue to grow more afraid and
not be able to access basic services they are entitled to."
Respect Washington argues that, even if BCI's claim of fear is not too
vague, BCI's claimed injury "fails to support an injunction because of a lack of
causation." It relies on Clapper v. Amnesty International, USA, 568 U.S. 398, 133
S. Ct. 1138, 185 L. Ed. 2d 264 (2013).
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No. 77500-6-1/18
In Clapper, the plaintiffs sought an injunction against surveillance
authorized by Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50
U.S.C.§ 1881a. Id. at 401. They argued that they were suffering ongoing injuries
fairly traceable to the law "because the risk of surveillance under§ 1881a require[d]
them to take costly and burdensome measures to protect the confidentiality of their
communications." Id. at 415. The United States Supreme Court rejected this
argument. Id. at 416. It found that "Mespondents' contention that they have
standing because they incurred certain costs as a reasonable reaction to a risk of
harm is unavailing—because the harm respondents seek to avoid is not certainly
impending." Id. Thus,the Court concluded that "respondents cannot manufacture
standing merely by inflicting harm on themselves based on their fears of
hypothetical future harm." Id.
Unlike Clapper, the issue here is not standing, or manufacturing standing.
At issue here is whether residents of the City will be harmed by Measure l's
placement on the ballot and passage. The declarations make clear that harm will
result when residents need to contact City employees regarding services or
assistance they are entitled to receive. Specifically, they make clear that, if
Measure 1 is placed on the ballot,• residents' fear of engaging with City personnel
would persist. The mere possibility of Measure l's placement on the November
2017 ballot made residents fearful of deportation and question whether they should
report crimes to police. Even if the fear of deportation is a hypothetical future harm,
residents' decisions not to report crimes based on that fear would result in harm to
the community. And, if Measure 1 passes, residents risk forgoing City assistance
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No. 77500-6-1/19
they are entitled to receive in order to avoid inquiries into their immigration status.
These harms are neither speculative nor manufactured.
The trial court did not abuse its discretion in finding that Measure l's
placement on the ballot would result in actual and substantial injury.
III. Local Initiative Power
Respect Washington argues that Measure 1 should not have been stricken
from the ballot, because it is within the scope of the local initiative power and
legislative in nature. The trial court determined that Measure 1 is invalid because
it exceeds the scope of the initiative power and is administrative in nature. Whether
an initiative is beyond the scope of the local initiative power is a question of law
that this court reviews de novo. Protect Pub. Health v. Freed, 192 Wash. 2d 477,
482, 430 P.3d 640 (2018).
This court generally disfavors preelection review. Id. But, there are narrow
exceptions to this prohibition. Id. One exception "involves determining whether
the 'proposed law is beyond the scope of the initiative power." Id. (quoting Seattle
Bldg. & Constr. Trades Council v. City of Seattle, 94 Wash. 2d 740, 746,620 P.2d 82
(1980)). While statewide initiatives are subject to the scope of the state legislative
power, local initiatives are subject to the scope of the local legislative power. Id.
"These powers are not equivalent." Id.
Under Amendment 7 to the Washington Constitution, "the people secured
for themselves the right to legislate directly." City of Port Angeles v. Our Water-
Our Choice!, 170 Wash. 2d 1, 7-8, 239 P.3d 589 (2010). However, Amendment 7
does not apply to municipal governments. Id. The scope of the local initiative
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power is instead governed by statutes and county charters, "and preelection
challenges are subject to a different analysis." Protect Pub. Health, 192 Wash. 2d at
482. The State Supreme Court has recognized multiple limits on the local initiative
power, including the limit that "a local 'initiative is beyond the scope of the initiative
power if the initiative involves powers granted by the legislature to the governing
body of a city, rather than the city itself." Id. at 482-83 (quoting City of Sequim v.
Malkasian, 157 Wash. 2d 251, 261, 138 P.3d 943(2006)).
A municipality's governing body, also referred to as its "legislative authority,"
"includes the mayor and the city council, but not the electorate." Id. at 483. "When
the legislature enacts a general law granting authority to the legislative body (or
legislative authority) of a city, that legislative body's authority is not subject to
'repeal, amendment, or modification by the people through the initiative or
referendum process." Mukilteo Citizens for Simple Gov't v. City of Mukilteo, 174
Wash. 2d 41, 51, 272 P.3d 227(2012)(quoting Malkasian, 157 Wash. 2d at 265). This
court looks to the language of the relevant statute to determine the scope of the
authority granted by the legislature to the local governing body. Id.
BCI argues that the legislature has delegated to the City's governing body,
not the City itself, "the powers that Measure 1 seeks to wield through initiative."
The City is a code city. BMC 2.26.010. Under RCW 35A.11.020, "The legislative
body of each code city shall have power to organize and regulate its internal affairs
within the provisions of this title and its charter, if any; and to define the functions,
powers, and duties of its officers and employees." (Emphasis added.)
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Measure 1 seeks to repeal an ordinance that, under RCW 35A.11.020, the
legislature granted the Burien City Council authority to pass—the power "to define
the functions, powers, and duties of its officers and employees." Measure 1 would
also add a chapter to the BMC providing that the City "shall not regulate the
acquisition of immigration status or religious affiliation unless such regulation is
approved by a majority vote of the City Council and a majority vote of the people
at a municipal general election." This provision would further constrain the Burien
City Council from exercising its authority to define the functions, powers, and duties
of its officers and employees on the subject of immigration and religious inquiries.
Respect Washington argues that, in Our Water-Our Choice!, the State
Supreme Court rejected a similar argument regarding RCW 35A.11.020. There,
this court struck two initiatives relating to the regulation of Port Angeles's water
supply on the grounds that the legislature intended Port Angeles's legislative body,
not the city as a whole, to manage its water system. Our Water-Our Choice!, 170
Wash. 2d at 5, 14-15 n.7. It relied on the provision in RCW 35A.11.020 that m[t]he
legislative body of each code city shall have all powers [necessary for] operating
and supplying of utilities and municipal services commonly or conveniently
rendered by cities or towns." Id. at 14 n.7 (alteration in original).
The State Supreme Court affirmed this court on an alternative grounds,
finding that the initiatives were administrative in nature. Id. at 15-16. It did not
reach the issue of whether the legislature intended only for Port Angeles's
legislative body to manage its water system. Id. at 14-15 n.7. But, it observed in
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No. 77500-6-1/22
a footnote that, when read out of context, the citation to RCW 35A.11.020 "could
have unintended consequences." Id. It explained,
Given that the same chapter of the RCW specifically authorizes
noncharter code cities to "provide for the exercise. .. of the powers
of initiative and referendum upon electing to do so," RCW
35A.11.080, reading RCW 35A.11.020 expansively strains the
statutory fabric. In our view, RCW 35A.11.020 grants code cities
broad, though specific, powers. . . and does not necessarily speak
to whether the state legislature intended to grant those powers only
to its municipal counterpart.
Id. (first alteration in original). Thus, the court indicated that the powers the
legislature granted the legislative bodies of code cities in RCW 35A.11.020 may
not be exclusive, and may be subject to a city's initiative power. If that is the case,
BCI's argument fails.
Alternatively, the trial court here found that Measure 1 is invalid because it
is administrative in nature. "[A]dministrative matters, particularly local
administrative matters, are not subject to initiative or referendum." Our Water-Our
Choice!, 170 Wash. 2d at 8. Generally, "a local government action is administrative
if it furthers (or hinders) a plan the local government or some power superior to it
has previously adopted." Id. at 10. The State Supreme Court has noted that
discerning whether a proposed initiative is administrative or legislative in nature
can be difficult. Spokane Entrepreneurial Ctr., 185 Wash. 2d at 107. In one case, it
described the question as "whether the proposition is one to make new law or
declare a new policy, or merely to carry out and execute law or policy already in
existence." Ruano, 81 Wash. 2d at 823-24.
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No. 77500-6-1/23
Measure 1 seeks to repeal the Ordinance, which prohibits City employees
from conditioning services on an individual's immigration status, and prohibits City
personnel from initiating an enforcement action based solely on an individual's
immigration status, race, and other factors. The Ordinance also states,
A goal of this legislation is to foster trust and cooperation between
city personnel and law enforcement officials and immigrant
communities to heighten crime prevention and public safety.
Since 1992, the King County sheriff's office has embraced this goal
and outlined supporting policies in its operations manual, with which
this ordinance is consistent.
Another goal of this legislation is to promote the public health of City
of Burien residents.
On April 22, 2008, King County Superior Court affirmed the principle
that our courts must remain open and accessible for all individuals
and families to resolve disputes on the merits by adopting a policy
that warrants for the arrest of individuals based on their immigration
status shall not be executed within any of the superior court
courtrooms unless directly ordered by the presiding judicial officer
and shall be discouraged in the superior court courthouses, unless
the public's safety is at immediate risk. Shortly after the affirmation's
adoption, the King County Executive and Immigration and Customs
Enforcement agreed to honor this policy.
In Global Neighborhood, this court found that a similar initiative was
administrative in nature, because it hindered a plan previously adopted by the local
government. See 7 Wash. App. 2d at 399-400. There, the Spokane City Council
had enacted two ordinances prohibiting Spokane Police Department officers from
engaging in bias-based profiling, and, unless required by law, from inquiring into a
person's immigration status. Id. at 367-68. These ordinances codified two
previously adopted Spokane Police Department policies. Id. at 367. One month
later, Respect Washington submitted a proposed initiative, Proposition 1, that
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No. 77500-6-1/24
would (1) amend one of the ordinances to eliminate citizenship status from the list
of prohibited factors for city police to consider during investigations,(2) repeal the
other ordinance, and (3) add a new code section that would prohibit Spokane from
limiting any city employee from collecting immigration status information and
sharing that information with federal authorities. Id. at 360, 368.
In March 2017, Proposition 1 was placed on the November 2017 ballot. Id.
at 369. But, before the election, the trial court entered an injunction removing it
from the ballot. Id. at 374. It determined that Proposition 1 was invalid because it
was "administrative in nature and thereby exceed[ed] the local initiative power."
Id.
This court affirmed the trial court on appeal. Id. at 405. In doing so, it
recognized that Proposition 1 had at least one characteristic in common with
legislative acts—it adopted "a rule of government permanent in nature." Id. at 398.
And, it agreed with Respect Washington that Proposition 1 maintained some
legislative character "in that the initiative modifie[d], if not reverse[d] in part,
legislative policy established by the city council." Id. at 398-99. But, this court
stated that in "analyzing the legislative or administrative nature of a municipal act,
courts consider the framework of the action." Id. at 399. It explained that
Proposition 1 challenged a Spokane policy, "whose framework's base consists of
administrative building blocks." jçj.
Specifically, this court noted that Proposition 1 interfered with "Spokane
Police Department policy to limit the circumstances under which law enforcement
officers inquire about immigration and citizenship status." Id. Thus, it determined
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No. 77500-6-1/25
that Proposition 1 hindered a policy previously adopted by the local government.
Id. It also observed that, though it was unaware of any decision expressly holding
that directions to employees constitute administrative policy, logic supports the
conclusion that "directions to employees constitute administrative, not legislative,
policy." Id. at 400. And, it emphasized "the need for expertise on the challenging
and charged question of whether local government agents should question
individuals about immigration or citizenship status." Id. It concluded that
questioning regarding one's citizenship status should "be reserved to the expertise
of law enforcement administrators." Id. at 401.
Here, BCI does not argue that the Ordinance was based on policies adopted
by the Burien Police Department, similar to the ordinances in Global
Neighborhood. But, a goal of the Ordinance is to "foster trust and cooperation
between city personnel and law enforcement officials and immigrant communities
to heighten crime prevention and public safety." The Ordinance is consistent with
policies supporting this goal in the King County Sheriff's Office operations manual.9
The Ordinance also notes that the King County Superior Court has adopted a
policy that "warrants for the arrest of individuals based on their immigration status
shall not be executed within any of the superior court courtrooms unless directly
ordered by the presiding judicial officer." And, it states that the Ordinance is
"intended to be consistent with federal laws regarding communications between
local jurisdictions and federal immigration authorities."
9 Consistency with the King County Sheriff's Office operations manual is
relevant, because the City contracts with the King County Sheriff's Office for police
services.
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No. 77500-6-1/26
Measure l's attempt to repeal the Ordinance and forbid the Burien City
Council from regulating immigration and religious affiliation inquiries is an attempt
to hinder a plan already adopted by the City. Rather than a new law or policy, it is
an obstacle to implementing the Ordinance, which is meant to be consistent with
King County policies and federal law.
The Ordinance also involves directions to City officials, employees, and
agents. It forbids them from taking certain actions. Measure 1 would repeal these
directions. At oral argument, Respect Washington agreed that Measure 1 is
"untying [City staffs] hands," and "saying . . . they are no longer prohibited from
asking about immigration." As this court noted in Global Neighborhood, logic
supports the conclusion that "directions to employees constitute administrative, not
legislative, policy." 7 Wash. App. 2d at 400. Administrative matters are not subject
to initiative or referendum. Our-Water-Our Choice!, 170 Wash. 2d at 8.
And, as this court also noted, there is a need for expertise on the question
of whether local government agents should question individuals about immigration
or citizenship status. Global Neighborhood, 7 Wash. App. 2d at 400. The "need to
weigh conflicting goals before establishing a policy of asking or withholding
questioning regarding one's citizenship status" is recognized in case law and
literature. Id. at 400-01. "Local law enforcement agencies must also navigate
constitutional protections afforded residents before asking for information on one's
status." Id. at 401. Because these factors implicate the success of law
enforcement efforts, "questioning should be reserved to the expertise of law
enforcement administrators." Id.
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Accordingly, we hold that Measure 1 is invalid because it is administrative
in nature.1°
We affirm.
WE CONCUR:
.c.,
10 Because we hold that Measure 1 is invalid, we need not reach Respect
Washington's argument regarding the petition used to gather signatures for
Measure I.
27