Protect Pub. Health v. Freed , 430 P.3d 640 ( 2018 )

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SUSAN L CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
PROTECT PUBLIC HEALTH and
CITY OF SEATTLE, No. 95134-9
Respondents,
V. En Banc
JOSHUA FREED and IMPACTION,
Appellants,
CITIZENS FOR A SAFE KING
COUNTY,KING COUNTY,and
JULIE WISE,in her official capacity.
Defendants.
Filed DEC 0 6 2018
JOHNSON,J.—This case involves the issue of whether a proposed initiative
is beyond the scope of the local initiative power. Proposed Initiative 27(1-27)
would allow King County voters to decide whether to ban public funding for
community health engagement location(CHEL)sites, colloquially known as safe
injection sites, and to create civil liability for any person or entity who operates a
Protect Pub. Health v. Freed, No. 95134-9
site. King County Superior Court granted respondent Protect Public Health's
(PPH) motion for declaratory judgment and injunctive relief and enjoined King
County from placing 1-27 on the ballot. The court reasoned, under preelection
review, 1-27 is outside the scope of local initiative power because it impinges on
the legislative authority of King County and the King County Board of Health.
Initiative sponsor IMPACtion appealed directly to this court.
We affirm the superior court and hold that 1-27 is outside the scope of local
initiative power because it improperly interferes with the budgetary authority of the
King County Council (Council). Therefore, the superior court properly enjoined I-
27 from the King County ballot.
Facts and Procedural History
All parties agree that in recent years, heroin and prescription opioid
addiction has become a public health crisis. To help combat this crisis, in March
2016, Seattle and King County elected officials convened the Heroin and
Prescription Opioid Addiction Task Force (Task Force)to identify strategies and
recommendations to improve access to treatment and services. After months of
research and a series of community meetings to obtain public comment, the Task
Force made eight recommendations, one of which was for the county to establish
CHEL sites. CHEL sites would provide opioid users with a place to safely use
Protect Pub. Health v. Freed,'Ho. 95134-9
drugs, access to medical professionals who can administer naloxone to help reverse
overdoses, a needle exchange program, and a way to connect to services and
treatment. The Task Force recommended a pilot program for the CHEL sites,
which includes operating two initial sites (one in Seattle, one in another area of
King County) on a three-year provisional basis. The CHEL sites would be
continued if the evidence indicated positive outcomes.
On January 19, 2017,the Board of Health unanimously voted to pass
Resolution 17-01, which endorsed the Task Force's recommendations and called
upon city, county, and state actors to implement public health policies consistent
with the recommendations, including the CHEL site pilot program.
In response, IMPACtion, led by Joshua Freed (collectively IMPACtion),
initiated the local initiative process to allow for King County voters to vote on the
issue of CHEL sites. On April 14, 2017,IMPACtion filed the initiative with the
clerk of the Council, who assigned the initiative the number "1-27." After the King
County prosecuting attorney submitted the ballot title and the clerk ofthe Council
approved the form of the initiative petitions, IMPACtion collected in excess of
69,000 voter signatures.
Protect Pub. Health v. Freed, No. 95134-9
1-27 would prohibit the use of public funds for "registration, licensing,
construction, acquisition, transfer, authorization, use, or operation of a supervised
drug consumption site"; prohibit anyone from operating or maintaining any
building that is used as a supervised consumption site; and impose civil liability on
anyone who violates the initiative. Clerk's Papers(CP)at 631.1-27 would not
directly invalidate any other Task Force recommendations, including increased
public and prescriber education about opioids and their possible adverse effects,
promotion of secure opioid medication returns and safe storage, enhanced
screening for opioid use disorders in schools and health care facilities, increased
and enhanced treatment options, innovative prescribing of medications that help
treat opioid addiction, and expanded access to naloxone within the county.
On June 28, 2017, the Council enacted Ordinance 18544, which
appropriated $2,127,000 to implement the Task Force's recommendations. The
ordinance also specifically prohibits the use of funds for the pilot CFGEL sites in
any city that does not elect to allow a CHEL site.
On August 19, 2017, public health professionals and community members
formed the nonprofit corporation PPH to combat 1-27 and defend "evidence-based
public health decisions from interference from the local initiative and referendum
process." CP at 343. Two days later, PPH filed a complaint for declaratory
Protect Pub. Health v. Freed, No. 95134-9
judgment and injunctive relief in King County Superior Court, seeking preelection
review of1-27 and asking the court to enjoin King County from placing 1-27 on the
ballot, arguing it is outside the scope of the local initiative power.'
The superior court engaged in preelection review and held that 1-27 is
beyond the scope of the local initiative power because it interferes with the duties
and obligations ofthe Board of Health and Council and the local legislative
authority to budget. IMPACtion appealed directly to this court. We retained this
case for hearing and decision.
Issue
Whether the trial court properly determined 1-27 is outside the scope ofthe
local initiative power and enjoined it from the ballot.
Analysis
Whether an initiative is beyond the scope of local initiative power is a
question oflaw that we review de novo. City ofPort Angeles v. Our Water—Our
Choice!, 170 Wn.2d 1, 7, 239 P.3d 589 (2010).
Generally this court disfavors judicial preelection review; however, we have
acknowledged narrow exceptions to this general prohibition. Coppernoll v. Reed,
'On September 22, 2017, the city of Seattle (City) filed a motion to intervene, which the
superior court granted on October 2, 2017. The City also filed a separate complaint for
declaratory judgment and injunctive relief to enjoin 1-27 from the ballot, but the superior court
did not separately rule on its complaint, as the City sought the same relief as PPH.
Protect Pub. Health v. Freed, No. 95134-9
155 Wn.2d 290, 297, 119 P.3d 318 (2005). One such exception involves
determining whether the "proposed law is beyond the scope of the initiative
power." Seattle Bldg. & Constr. Trades Council v. City ofSeattle, 94 Wn.2d 740,
746, 620 P.2d 82(1980).
When engaging in preelection review, statewide initiatives are subject to the
scope of the state legislative power, whereas local initiatives are subject to the
scope of the local legislative power. See Coppernoll, 155 Wn.2d at 301. These
powers are not equivalent. The people's right to statewide initiative is established
and set forth in the 7th Amendment to the Washington State Constitution. Our
Water—Our Choice!, 170 Wn.2d at 7-8 (citing CONST, art. II, § 1). As a
constitutional right, courts interpret this power broadly to favor the initiative right
of the people. Coppernoll, 155 Wn.2d at 297.
In contrast, the scope of the local initiative power is governed by statutes
and county charters, and preelection challenges are subject to a different analysis.
See Our Water—Our Choice!, 170 Wn.2d at 8; CONST, art. XI, § 4(allowing
counties to create a "Home Rule" charter for self-governance, subject to the
constitution and laws of the state). In addition to any home rule charter limits, this
court has recognized "multiple limits on the local initiative power." Spokane
Entrepreneurial Ctr. v. Spokane Moves to Amend Constitution, 185 Wn.2d 97, 107,
Protect Pub. Health v. Freed, No. 95134-9
369 P.3d 140 (2016). The most relevant limit in this case is 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." City of
Sequim v. Malkasian, 157 Wn,2d 251, 261, 138 P.3d 943 (2006). We have
recognized that a municipality's governing body, or '"legislative authority,"'^
includes the mayor and the city council, but not the electorate. Malkasian, 157
Wn.2dat265.
In Malkasian, we examined a statutory scheme that specifically delegated to
the legislative authority of a city authority over revenue bonds. The proposed
initiative in question would have imposed additional requirements on revenue
bonds issued by the city. We held that because the statutory scheme specifically
granted authorization over revenue bonds to the city council, an initiative that
interferes with this specific statutory delegation of authority is beyond the scope of
the local initiative power. Malkasian, 157 Wn.2d at 265. We have applied this
same rule to the county council of home rule charter counties, like King County.
See Snohomish County v. Anderson, 123 Wn.2d 151, 868 P.2d 116(1994)(holding
^ We have used "governing body," "legislative body," and "legislative authority"
interchangeably. Malkasian, 157 Wn.2d at 265. We predominantly use "legislative authority" in
this opinion as that is the phrase used in our constitutional provision allowing home rule charter
counties. Const, art. XI, § 4.
Protect Pub. Health v. Freed, No. 95134-9
that statutory delegation to county legislative authority under RCW 36.70A.210(2)
to adopt countywide planning policy is not subject to local referendum power).
As home rule charters are subject to the laws ofthe State of Washington, the
charter initiative process cannot allow for an initiative that impinges on legislative
delegation of authority. Chapter 36.40 RCW establishes the limits on statutory
delegation regarding county budgets and grants the legislative authority to county
councils to "fix and determine each item of the budget" and to enact biennial,
supplemental, and emergency budgets. RCW 36.40.080,.250. Specifically, under
RCW 70.12.025,"[ejach county legislative authority shall annually budget and
appropriate a sum for public health workP (Emphasis added.) This statutory
delegation limits the scope of the local initiative power.
1-27 is separated into four sections that would amend the King County Code
(KCC). Section 1 would add a new section to chapter 4A.650 KCC,prohibiting the
use of public funds for "registration, licensing, construction, acquisition, transfer,
authorization, use, or operation of a supervised drug consumption site." CP at 631.
The proposed section also defines a supervised consumption site and would allow
for "[a]ny person or class of persons to commence a civil action . . . against the
county" if it violates the section. CP at 632.
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Section 2 would add a new section to chapter 12.81 KCC (controlled
substances). This section would make it "unlawful for any person to operate or
maintain any building, structure, site, facility or program" that provides space for
supervised drug consumption. CP at 632. It goes on to again allow for any person
or class of persons to commence a civil action against any person who violates the
section, and defines "person" as "any individual, firm, association, organization,
partnership, corporation, or any other entity," including "King County and any
city, board of health, health department, municipal corporation, and any other
political or civil subdivision." CP at 632.
Section 3 would amend KCC 12.81.040, which currently criminalizes all of
chapter 12.81 KCC,to continue criminalizing violations of sections 12.81.010-
.030, but not any other provisions ofthe chapter. This would exempt the new
section discussed in section 2 from criminal liability^ as it would be added after
.040.
Section 4 is a severability clause that indicates if any portion is found to be
invalid, it does not affect the rest ofthe proposed initiative.
^ In its findings of fact, the trial court found that section 2 creates civil and criminal
liability for anyone who operates a CHEL site. CP at 692. Upon closer inspection of section 2,
read in conjunction with section 3, it appears that it would create only civil liability while
maintaining criminal liability for other sections within chapter 12.81 KCC.IMPACtion does not
challenge this finding of fact on appeal. See Statement of Grounds for Direct Review; Br. of
Appellants.
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Protect Pub. Health v. Freed, No. 95134-9
IMPAction portrays 1-27 as "essentially a binary public policy decision -
heroin injection sites: yes or no." Br. of Appellants at 1. However, the text of 1-27
is more comprehensive and complicated than a simple yes or no public policy
question. This "all or nothing" argument is also undercut because 1-27 does not
seek to modify any other aspect of the CHEL sites except the ability to safely inject
and use heroin and other opioids. Appellants do not raise any issue with respect to
the access to naloxone, access to treatment and services, or the needle exchange as
part ofthe CHEL sites. Thus, section 1 acts as a partial "rollback" of funds
specifically appropriated to the "injection" portion of CHEL sites and does not
specify how the remaining portion of the appropriations would be affected, if at all.
Considering the only ordinance enacted was the appropriation ordinance, if enacted
1-27 would arguably invalidate this appropriation.
IMPAction argues that in determining scope, this court must look at the
'"fundamental and overriding purpose'" of an initiative and not get lost in the
minutiae. Br. of Appellants at 22(quoting Huffv. Wyman, 184 Wn.2d 643, 652,
361 P.3d 727(2015)). However,the budgetary restrictions of1-27 are not
"minutiae." One of the five key points of 1-27 is to "[p]rotect[] taxpayers by
prohibiting public financing of drug consumption sites." Br. of Appellants, App.
(King County Initiative 27: Keep Our Communities Safe). Huff primarily relied on
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Protect Pub. Health v. Freed, No. 95134-9
by IMPAction, concerned a statewide initiative, which, as indicated above, has
different rules regarding scope and gives more deference to inclusion of an
initiative on the ballot. 184 Wn.2d at 646. Because of this. Huffprovides little
guidance in the review of the scope of the local initiative power.
The Council passed Ordinance 18544 amending the 2017-2018 biennial
budget appropriations. Within the expenditure restrictions of the amended
appropriations, the ordinance directs that over $2,000,000 be used to implement
the Task Force public health recommendations, with another expenditure
restriction indicating that no money could be expended to establish a CHEL site in
a city that did not want one. Because this indicates how and where money is to be
spent, 1-27's aim is directly at the budget appropriation. Viewed in context, the
ultimate goal of 1-27 is to eliminate the funding for CHEL sites. While we do not
question whether a different initiative could be used to set policy concerning
CHEL sites, the ability to set the budget and appropriate money to public health
work is a specific delegation by the legislature to the county's legislative authority.
Therefore, the ordinance is not subject to initiative under Malkasian.
IMPAction argues because the Council enacted the clause indicating that
funds would not be expended to build CHEL sites within cities that did not opt in,
this was not merely a budgetary ordinance but created policy. Br. of Appellants at
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Protect Pub. Health v. Freed, No. 95134-9
17. This argument is unpersuasive. A "budget" is "a plan for the coordination of
resources (as of money or manpower)and expenditures." Webster's Third New
International Dictionary 290(2002). The clause specifically references an
expenditure restriction, that funds cannot be used for a stated purpose, which
would certainly be part of a plan for the coordination ofresources. The opt-in
clause is budgetary.
The Council has authority delegated by statute to allocate spending within
the budget. A proposed modification of an enacted appropriation ordinance would
act as an invalidation of that enacted ordinance. Directing the county how it may
use its money, as section 1 does, expressly negates the portion ofthe budgetary
ordinance that establishes funding for all ofthe Task Force's recommendations,
including CHEL sites. Therefore, the proposed budgetary restrictions improperly
interfere with the legislative authority ofthe Council to set budgets and appropriate
money for public health work. We agree with the trial court's holding that the
prohibition on funding falls outside the scope ofthe local initiative power.
Although portrayed as an initiative, 1-27 would take effect after the Council has already
passed the ordinance appropriating the money. Therefore, 1-27's prohibition on the use of public
funds is effectively acting as a referendum to modify the Council's ordinance. This is
problematic under the King County Charter. See King County Charter § 230.40("[a]n
appropriation ordinance ... shall not be subject to a referendum").
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Protect Pub. Health v. Freed, No. 95134-9
Conclusion
We affirm the superior court. 1-27 improperly interferes with the budgetary
authority of the Council. Therefore, 1-27 is outside the scope of the local initiative
power, and the superior court properly enjoined it from the ballot.
WE CONCUR:
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