Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend the Constitution

NOTICE: SLIP OPINION
(not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the
written opinions that are originally filed by the court.
A slip opinion is not necessarily the court’s final written decision. Slip opinions
can be changed by subsequent court orders. For example, a court may issue an
order making substantive changes to a slip opinion or publishing for precedential
purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits
(for style, grammar, citation, format, punctuation, etc.) are made before the
opinions that have precedential value are published in the official reports of court
decisions: the Washington Reports 2d and the Washington Appellate Reports. An
opinion in the official reports replaces the slip opinion as the official opinion of
the court.
The slip opinion that begins on the next page is for a published opinion, and it
has since been revised for publication in the printed official reports. The official
text of the court’s opinion is found in the advance sheets and the bound volumes
of the official reports. Also, an electronic version (intended to mirror the
language found in the official reports) of the revised opinion can be found, free of
charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential
(unpublished) opinions, slip opinions, and the official reports, see
https://www.courts.wa.gov/opinions and the information that is linked there.
             
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
SPOKANE ENTREPRENEURIAL )
CENTER, SPOKANE COUNTY, ) No. 91551-2
DOWNTOWN SPOKANE PARTNERSHIP,
GREATER SPOKANE INCORPORATED, ) EnBanc
THE SPOKANE BUILDING OWNERS )
AND MANAGERS ASSOCIATION, )
SPOKANE ASSOCIATION OF )
REALTORS, THE SPOKANE HOME ) Filed FEB 0 i~t 2016
BUILDERS ASSOCIATION, THE INLAND)
PACIFIC CHAPTER OF ASSOCIATED )
BUILDERS AND CONTRACTORS, )
A VISTA CORPORATION, PEARSON )
PACKAGING SYSTEMS, WILLIAM )
BUTLER, NEIL MULLER, STEVE )
SALVA TORI, NANCY McLAUGHLIN, )
MICHAEL ALLEN, and TOM POWER, )
)
Petitioners, )
v. )
)
SPOKANE MOVES TO AMEND THE )
CONSTITUTION, ENVISION SPOKANE, )
VICKY DALTON, SPOKANE COUNTY )
AUDITOR, in her official capacity, )
THE CITY OF SPOKANE, )
)
Respondents. )
____________________________)
             
Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend
No. 91551-2
OWENS, J. -Courts generally avoid reviewing ballot initiatives before they
have been enacted into law, but a few limited types of challenges can be appropriately
reviewed prior to election: procedural challenges (such as sufficiency of signatures
and ballot titles) and challenges asserting that the initiative is not within the scope of
the legislative authority granted to local residents. The first issue in this case is who
has standing to bring those types of challenges. The Court of Appeals created new
limits on who can bring such challenges, but we reverse and adhere to our existing
standards because they adequately ensure that only those affected by an ordinance
may challenge it. Applying those existing standards, we find that petitioners in this
case had standing to bring this challenge. The second issue in this case is the
substance of the petitioners' challenge: whether the initiative's subject matter falls
within the scope of authority granted to local residents. This initiative attempts to
regulate a variety of subjects outside this scope of authority, including administrative
matters, water law, and constitutional rights. Therefore, we affirm the trial court's
finding that this local initiative exceeds the scope of local initiative power and should
not be put on the ballot.
FACTS
In 2013, Envision Spokane gathered enough signatures to place a local
initiative on the ballot that would establish a "Community Bill of Rights" (referred to
herein as the "Envision Initiative"). Clerk's Papers (CP) at 39. The Envision
2
             
Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend
No. 91551-2
Initiative would amend the city of Spokane's charter to add a "Community Bill of
Rights" that contained four primary provisions relating to zoning changes, water
rights, workplace rights, and the rights of corporations. CP at 39-40.
First, the initiative would require any proposed zoning changes involving large
developments to be approved by voters in the neighborhood. Second, it would give
the Spokane River the legal right to "exist and flourish," including the right to
sustainable recharge, sufficient flows to support native fish, and clean water. ld. at
40. It would also give Spokane residents the right to access and use water in the city,
as well as the right to enforce the Spokane River's new rights. Third, it attempts to
give employees the protections of the Bill of Rights against their employer in the
workplace. Fourth, it would strip the legal rights of any corporation that violated the
rights secured in the charter. ld.
Petitioners filed this declaratory judgment action challenging the validity of the
Envision Initiative. The petitioners include Spokane County, individual residents of
Spokane (including two city council members acting in their individual capacities),
for-profit corporations and companies in Spokane (including Pearson Packaging
Systems and the utility company A vista Corporation), and nonprofit associations
(including the Spokane Association of Realtors, the Spokane Building Owners and
Managers Association, the Spokane Home Builders Association, and local chambers
of commerce). See id. at 8-13.
3
             
Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend
No. 91551-2
The trial judge ruled that (1) petitioners had standing to challenge the initiative
and (2) the initiative exceeded the scope of the local initiative power. She therefore
instructed that it be struck from the ballot. Envision Spokane appealed, and the Court
of Appeals held that petitioners lacked standing and ordered the initiative be put on
the next available ballot. Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend
Constitution, noted at 185 Wn. App. 1039,2015 WL 410344, at *8-9. We granted
review. Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend Constitution, 183
Wn.2d 1017, 355 P.3d 1153 (2015).
ISSUES
1. Do petitioners have standing to bring this challenge?
2. Does the Envision Initiative exceed the scope of local initiative power?
ANALYSIS
1. Under Our Existing Standing Requirements, Petitioners Have Standing
This case involves the intersection of our rules regarding standing in
declaratory judgment actions and our rules regarding preelection challenges to
initiatives. The Court of Appeals found these rules to be in tension with each other,
noting that our liberal standing requirements seemed to conflict with limits on
preelection judicial review of initiatives. Spokane Entrepreneurial Ctr., 2015 WL
410344, at *4. Because of this conflict, the Court of Appeals applied heightened
standing requirements for this type of action.
4
             
Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend
No. 91551-2
As explained below, we decline to adopt heightened standing requirements for
this type of action. Our case law has consistently applied existing standing
requirements for declaratory judgment actions, and we believe the concerns regarding
preelection review of initiatives are properly addressed by our limits on the types of
challenges that courts will review prior to elections.
A. Existing standing requirements limit who can bring declaratory judgment
actions
To challenge the Envision Initiative, petitioners filed an action under the
Uniform Declaratory Judgments Act, chapter 7.24 RCW. That statute allows a person
whose rights are affected by a statute or municipal ordinance to "have determined any
question of construction or validity" of that statute or ordinance, and to "obtain a
declaration of rights, status or other legal relations thereunder." RCW 7.24.020. At
issue in this case is whether petitioners had standing to file that declaratory judgment
action.
"The standing doctrine prohibits a litigant from raising another's legal rights."
Walker v. Munro, 124 Wn.2d 402, 419, 879 P.2d 920 (1994). This court's test for
standing in declaratory judgment actions has two requirements. First, the interest
sought to be protected must be '"arguably within the zone of interests to be protected
or regulated by the statute or constitutional guarantee in question.'" Grant County
Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 802, 83 P.3d 419 (2004)
(internal quotation marks omitted) (quoting Save a Valuable Env 'tv. City ofBothell,
5
             
Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend
No. 91551-2
89 Wn.2d 862, 866, 576 P.2d 401 (1978)). Second, the challenged action must have
caused '"injury in fact,' economic or otherwise, to the party seeking standing." Id.(quoting Save a Valuable Env 't, 89 Wn.2d at 866).
B. Existing rules strictly limit preelection judicial review of initiatives
As a preliminary issue, it is important to distinguish statewide and local
initiatives. The right of the people to file a statewide initiative is laid out in the
Washington Constitution. CONST. art. II, § 1(a). Because it is a constitutional right,
Washington courts interpret the rules regarding statewide initiatives to facilitate this
right. Coppernoll v. Reed, 155 Wn.2d 290, 296, 119 P.3d 318 (2005); In re Estate of
Thompson, 103 Wn.2d 292, 294-95, 692 P.2d 807 (1984).
However, the right to file a local initiative is not granted in the constitution.
Instead, state statutes governing the establishment of cities allow the cities to establish
a local initiative process. See RCW 35.22.200 ("The [city] charter may provide for
direct legislation by the people through the initiative and referendum upon any matter
within the scope of the powers, functions, or duties of the city.").
We have expressed great concern about reviewing initiatives prior to
enactment. This concern has been attributed to both "the constitutional preeminence
of the right of initiative," Coppernoll, 15 5 Wn.2d at 297, as well as general concerns
that "the courts should not interfere in the electoral and legislative processes, and that
the courts should not render advisory opinions." Seattle Bldg. & Constr. Trades
6
             
Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend
No. 91551-2
Council v. City of Seattle, 94 Wn.2d 740, 746, 620 P.2d 82 (1980). To address these
concerns, we strictly limit the type of preelection challenges courts will review.
Courts will not consider a challenge to the substantive validity of a statewide initiative
prior to the election. Coppernoll, 155 Wn.2d at 297. Courts will generally review
only two types of challenges-procedural challenges (such as sufficiency of
signatures and ballot titles) and whether the subject matter is proper for direct
legislation. !d. at 298-99. As we have explained, this second type of challenge is
typically aimed at local initiatives because of the "more limited powers of initiatives
under city or county charters." Id. at 299. Thus, while "[g]enerally, judicial
preelection review of initiatives and referendums is disfavored ... courts will review
local initiatives and referendums to determine, notably, whether 'the proposed law is
beyond the scope ofthe initiative power."' City ofPort Angeles v. Our Water-Our
Choice!, 170 Wn.2d 1, 7, 239 P.3d 589 (2010) (quoting Seattle Bldg. & Constr.
Trades Council, 94 Wn.2d at 746).
Based on our court's concerns about preelection review of an initiative, the
Court of Appeals concluded that even in the context of an allowable challenge to an
initiative, petitioners must meet heightened standing requirements. We now clarify
that these rules address different concerns and should not be conflated. "'The kernel
of the standing doctrine is that one who is not adversely affected by a statute may not
question its validity."' Grant County, 150 Wn.2d at 802 (quoting Walker, 124 Wn.2d
7             
Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend
No. 91551-2
at 419). In contrast, our limits on preelection review ensure that we do not address the
substantive validity of a statute before it is enacted. Requiring challengers to meet
heightened standing requirements does nothing to help the court avoid addressing the
substantive validity of a statute before it is enacted, it only limits the groups of people
who can challenge initiatives. Therefore, if a case involves one of the few types of
allowable preelection initiative challenges, petitioners should have to meet only our
traditional standing requirements.
C. Applying our existing standing requirements, petitioners had standing to
challenge the Envision Initiative
Applying those existing standing requirements, we hold that petitioners in this
case have standing to bring their challenge. First, petitioners must show that the
interest they are seeking to protect is arguably within the zone of interests that the
initiative will protect or regulate. As the Court of Appeals noted, one of the
petitioners' strongest arguments regarding this prong relates to the initiative's
provision giving the Spokane River water rights. Two of the petitioners actively use
the Spokane River-Spokane County (which maintains a sewage treatment plant on
the river) and A vista Corporation (a utility company that, among other things, stores
water in Lake Coeur d'Alene that might otherwise flow into the Spokane River). The
Court of Appeals found that these would arguably put the petitioners within the zone
of interests regulated by the initiative but that this was not sufficient in the context of
a preelection challenge. Spokane Entrepreneurial Ctr., 2015 WL 410344, at *5. In
8
             
Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend
No. 91551-2
light of our holding that petitioners are not subject to heightened standing
requirements, we hold that petitioners are certainly within the zone of interests that the
initiative protects or regulates. The initiative gives the Spokane River its own water
rights, including the rights to sustainable recharge, sufficient flows to support native
fish, and clean water. This protects or regulates the water of the Spokane River,
which petitioners use pursuant to state and federal law. Similarly, housing builders
and developers would be within the zone of interests regulated by the initiative's
provision requiring an additional level of approval from neighborhood residents for all
major developments. Petitioners meet the first standing requirement.
Second, petitioners must show injury in fact, economic or otherwise. If we
were to require that a petitioner show that an injury had already occurred, no
challenger could ever meet this requirement for an initiative that had not yet been
enacted. However, we have not required challengers to local initiatives to show that
an injury has already occurred. Instead, we have allowed petitioners to show that they
would suffer an injury in fact if the law were to pass. For example, in Grant County,
we held that property owners "clearly" met the "actual injury" standing requirement
because they "face different tax rates following annexation." 150 Wn.2d at 802-03.
Similarly, in Mukilteo Citizens for Simple Government v. City of Mukilteo, 174 Wn.2d
41, 46, 272 P.3d 227 (2012), we found that an association of city residents had
9
             
Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend
No. 91551-2
standing to challenge a proposed initiative because the individual members had
standing as "Mukilteo residents who are eligible to vote."
In this case, petitioners will face injury if the initiative passes. The clearest
examples arise from the provisions of the initiative that ( 1) assign water rights that
conflict with water rights held pursuant to state law and (2) create a new zoning
approval process. Petitioners include a utility company and a county entity that use
the Spokane River pursuant to existing state law who would certainly suffer harm if
others were given conflicting water rights related to the Spokane River. Similarly, the
petitioner builders and developers would suffer harm by having to go through an
additional zoning approval process. Regardless of whether these harms might be
justified or offset by other societal benefits, these petitioners will suffer harm.
Therefore, they meet the second requirement for standing and can bring a challenge to
the initiative.
2. The Envision Initiative Exceeds the Scope ofLocal Initiative Power
Having found that petitioners have standing to challenge the Envision
Initiative, the next question is whether the initiative exceeds the scope of the local
initiative power. As described below, the local initiative power is limited to
legislative matters that are within the authority of the city. In this case, we affirm the
trial court's ruling that all four provisions of the Envision Initiative were outside the
10
             
Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend
No. 91551-2
scope of the local initiative power, as they either dealt with nonlegislative matters or
were outside the authority of the city.
There are multiple limits on the local initiative power, three of which apply in
this case. First, "administrative matters, particularly local administrative matters, are
not subject to initiative or referendum." Our Water, Our Choice!, 170 Wn.2d at 8.
"Generally speaking, 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." !d. at 10. We have noted that "[d]iscerning whether a proposed initiative is
administrative or legislative in nature can be difficult." !d. In one case, we 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
v. Spellman, 81 Wn.2d 820, 823, 505 P.2d 447 (1973).
Similarly, 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). As this court has explained, a grant of authority to the city's
legislative body means the city council or mayor, not the electorate. !d. at 265.
Finally, the provisions of a local initiative must be within the scope of the
authority of the city itself. As we have explained, "While the inhabitants of a
municipality may enact legislation governing local affairs, they cannot enact
11
             
Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend
No. 91551-2
legislation which conflicts with state law." Seattle Bldg. & Constr. Trades Council,
94 Wn.2d at 747. In that case, we reviewed a Seattle initiative that would have halted
certain Interstate 90 construction projects. !d. at 742. We struck down the
initiative-prior to it being put on the ballot-holding that it dealt with matters that
the city had no authority to regulate: "the location and construction of state limited
access facilities." Id. at 749.
The trial court found that all four of the Envision Initiative provisions were
outside the scope of the initiative power. We discuss each provision in turn.
The first provision would require any proposed zoning changes involving large
developments to be approved by voters in the neighborhood. The trial court ruled that
this provision dealt with administrative matters and was thus outside the scope of the
initiative power. We affirm this ruling. The city of Spokane has already adopted
processes for zoning and development. This provision would modify those processes
for zoning and development decisions, which falls under our description of an
administrative matter since it deals with carrying out and executing laws or policies
already in existence. See Ruano, 81 Wn.2d at 823.
The second provision would give the Spokane River the legal right to "exist
and flourish," including the rights to sustainable recharge, sufficient flows to support
native fish, and clean water. CP at 40. It would also give Spokane residents the right
to access and use water in the city, as well as the right to enforce the Spokane River's
12
             
Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend
No. 91551-2
new rights. I d. The trial court ruled that this provision was outside of the scope of the
local initiative power because it conflicted with state law, which already determines
the water rights for the Spokane River. The trial court noted that this provision was
particularly problematic because it dealt with an aquifer that is actually located in
Idaho, which is outside of the city's authority. The trial court also ruled that this
provision was administrative in nature because it would deal with how an existing
regulatory scheme is implemented. We affirm. This broad provision is directly
contrary to the water rights system established by the State and is outside the scope of
the city's authority.
The third provision attempts to give employees the protections of the Bill of
Rights against their employer in the workplace. The trial court ruled that this
provision was outside of the scope of the local initiative power because (1)
municipalities cannot expand constitutional protections and (2) this provision would
conflict with state and federal labor laws. We affirm. Expanding the Bill of Rights to
apply to private persons and entities, not just state actors, is a federal constitutional
issue that is outside the scope oflocal authority. See Ford v. Logan, 79 Wn.2d 147,
156,483 P.2d 1247 (1971) ("Amendment of our constitution is not a legislative act
and thus is not within the initiative power reserved to the voters.").
The fourth provision would strip the legal rights of any corporation that
violated the rights secured in the charter. This appears to be a response to the United
13
             
Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend
No. 91551-2
States Supreme Court's decision in Citizens United v. Federal Election Commission,
558 U.S. 310, 342-43, 130 S. Ct. 876, 175 L. Ed. 2d 753 (201 0), which held that
corporations have rights under the federal constitution. The trial court ruled that this
provision was outside of the scope of the local initiative power because it directly
conflicts with federal and state law. We affirm this ruling because municipalities
cannot strip constitutional rights from entities and cannot undo decisions of the United
States Supreme Court.
CONCLUSION
While preelection challenges to initiatives are disfavored, two types of
challenges can be brought prior to election. For those allowable challenges, we
continue to apply our existing standing rules. Under those rules, petitioners had
standing to challenge this initiative. As to the underlying issue, we hold that the
initiative exceeded the scope of local legislative authority and thus should not be put
on the ballot.
14
             
Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend.
No. 91551-2
WE CONCUR:
7
JwJLCtqt,
15