Global Neighborhood v. Respect Washington

FILED
JANUARY 29, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
GLOBAL NEIGHBORHOOD; )
REFUGEE CONNECTIONS OF ) No. 35528-4-III
SPOKANE; SPOKANE CHINESE )
ASSOCIATION; ASIAN PACIFIC )
ISLANDER COALITION – SPOKANE; )
SPOKANE CHINESE AMERICAN )
PROGRESSIVES; and the SPOKANE ) PUBLISHED OPINION
AREA CHAPTER OF THE NATIONAL )
ORGANIZATION OF WOMEN, )
)
Respondents, )
)
v. )
)
RESPECT WASHINGTON, )
)
Appellant, )
)
VICKY DALTON, SPOKANE COUNTY )
AUDITOR, in her official capacity; and )
the CITY OF SPOKANE, )
)
Respondents. )
FEARING, J. — In this well briefed and astutely argued appeal by both sides, we
face the intimidating and humbling task of classifying, as either administrative or
legislative, a city initiative that authorizes without restriction city employees to question
individuals as to immigration status. This classification determines the eligibility of the
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initiative for vote by the people of Spokane. The appeal raises other issues, including the
mootness of the suit after the city council amended a city ordinance referenced in the
initiative, the standing of challengers to obtain an injunction removing the initiative from
the ballot, the imposition of a statute of limitations to a suit challenging a proposed
initiative, the application of laches to preclude a suit challenging an initiative, the legality
of the initiative in light of state and federal law, and the implication of the initiative
backers’ First Amendment rights. Because the proposed initiative arises from an
administrative framework, because the initiative entails directions to city employees,
because the initiative meddles in the administration of the city’s police force and may
interfere in effective law enforcement, and because the initiative runs contrary to state, if
not, federal law, we declare the initiative administrative in nature. We affirm the trial
court’s grant of an order enjoining placement of the initiative on the ballot.
FACTS
This appeal concerns the validity of “Proposition 1,” a proposed City of Spokane
initiative originally scheduled for placement on the November 2017 ballot. The gist of
the initiative would allow Spokane city employees, including law enforcement officers,
to question without any restriction individuals about their immigration status and
citizenship status, permit employees to assemble information on residents’ immigration
status, and share the information with others. The background to the lawsuit precedes the
filing of the initiative and begins with state law and continues with Spokane Police
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Department internal policy and Spokane ordinances adopted by the Spokane City
Council. We review, but heavily redact for purposes of shortening an already lengthy
opinion, state law, police department policy, and city ordinances before identifying the
history and content of Proposition 1.
We begin with some background to the challengers of Proposition 1, which
challengers initiated this declaratory suit to declare Proposition 1 invalid. Plaintiff
Global Neighborhood, a nonprofit organization, operates under the mission statement to
“‘provide former refugees with opportunities for holistic development.’” Clerk’s Papers
(CP) at 7. Global Neighborhood serves former refugees living in the city of Spokane by
engaging in activities aimed at improving quality of life, such as providing employment
at a thrift shop it owns and operates.
Plaintiff Refugee Connections of Spokane, also a nonprofit organization, develops
projects, programs, and resources that benefit refugees and immigrants and their
communities in Spokane. In support of the suit, Amina Abdul-Fields, Chair of the Board
of Directors of Refugee Connections, submitted a declaration. Abdul-Fields averred that
Refugee Connections’ many services to refugees and immigrants include the Harvest
Project, Patient Passports, and Interpreter Training. The organization promotes civic
engagement through police potlucks, law and justice workshops, and the World Refugee
Day Celebration. Refugee Connections understands that many immigrants arrive from
nations wherein authority symbolizes a threat. The law and justice workshop seeks to
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foster a positive view of the United States legal system, explain how the American
criminal justice system functions, identify key civil liberties, and provide written
information on where to seek assistance in protecting those rights.
Amina Abdul-Fields declared that members of the immigrant and refugee
community served by Refugee Connections will become targeted and injured by changes
to law enforcement profiling resulting from the passage of Proposition 1. The immigrant
community will be subjected to additional stops by Spokane police officers solely on the
basis of the person’s appearance, accent, or mannerisms. Increased contact with law
enforcement based solely on immigration status will increase fear and reluctance on the
part of refugees to contact police or seek protections from the legal system. Abdul-Fields
concluded that adoption of Proposition 1 will challenge Refugee Connections’ ability to
serve the immigrant and refugee community.
Spokane Chinese Association, a nonprofit association, was formed by people of
Chinese cultural heritage residing in the Spokane area. The organization strives to
advance communication and friendship among its members and to enrich their lives and
local culture by organizing activities related to Chinese culture or common interests. The
plaintiff Asian Pacific Islander Coalition—Spokane promotes equitable access to
culturally competent and linguistically accessible health and human services, economic
development for small businesses, civil and human rights, and equal access to education
for Asian Pacific Americans, including immigrants, refugees, and citizens.
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Each plaintiff organization contends it serves members of the community that will
be adversely targeted by changes to law enforcement profiling resulting from the passage
of Proposition 1. We refer to the plaintiffs collectively as “Global Neighborhood.”
The parties agree that this appeal poses no direct question as to whether city
employees’ seeking and sharing of the immigration status of individual constitutes racial
profiling. Nevertheless, this appeal in part embodies the relationship between racial
profiling and enforcing immigration law. Global Neighborhood claims that Proposition 1
promotes racial profiling. RCW 43.101.410, enacted in 2002, directs local law
enforcement agencies to address racial profiling. The statute declares, in part:
(1) Local law enforcement agencies shall comply with the
recommendations of the Washington association of sheriffs and police
chiefs regarding racial profiling, as set forth under (a) through (f) of this
subsection. Local law enforcement agencies shall:
(a) Adopt a written policy designed to condemn and prevent racial
profiling;
(b) Review and audit their existing procedures, practices, and
training to ensure that they do not enable or foster the practice of racial
profiling;
(c) Continue training to address the issues related to racial profiling.
Officers should be trained in how to better interact with persons they stop
so that legitimate police actions are not misperceived as racial profiling;
(d) Ensure that they have in place a citizen complaint review process
that can adequately address instances of racial profiling. The process must
be accessible to citizens and must be fair. Officers found to be engaged in
racial profiling must be held accountable through the appropriate
disciplinary procedures within each department;
(e) Work with the minority groups in their community to
appropriately address the issue of racial profiling; and
(f) Within fiscal constraints, collect demographic data on traffic
stops and analyze that data to ensure that racial profiling is not occurring.
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In explaining the 2002 law, the legislature declared:
[R]acial profiling is the illegal use of race or ethnicity as a factor in
deciding to stop and question, take enforcement action, arrest, or search a
person or vehicle with or without a legal basis under the United States
Constitution or Washington [S]tate Constitution.
LAWS OF 2002 ch. 14, § 1(1) (emphasis added).
The legislature recognizes that the president of the United States has
issued an executive order stating that stopping or searching individuals on
the basis of race is not an effective law enforcement policy, that it is
inconsistent with democratic ideals, especially the commitment to equal
protection under the law for all persons, and that it is neither legitimate nor
defensible as a strategy for public protection.
LAWS OF 2002 ch. 14, § 1(2).
We move to policies and ordinances of the city of Spokane, Washington State’s
second city with a 2017 estimated population of 217,300. The Spokane City Council
delegated the authority to adopt police department policy to the city police department
and its chief. Spokane Municipal Code (SMC) 3.10.010(B)(1) provides:
The chief of police administers the Spokane police department and
the police reserve force and has the authority to make rules and issue orders
for the proper functioning of the division, consistent with law, council
policy, and the rules of civil service commission.
Presumably to comply with RCW 43.101.410, the Spokane Police Department
adopted policies 402 and 428. Policy 402 reads, in part:
Bias-Based Policing
402.1 PURPOSE AND SCOPE
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This policy provides guidance to department members and
establishes appropriate controls to ensure that employees of the Spokane
Police Department do not engage in racial-or bias-based profiling or violate
any related laws while serving the community.
402.1.1 DEFINITION
Definitions related to this policy include:
Racial-or bias-based profiling - An inappropriate reliance on
factors such as race, ethnicity, national origin, religion, sex, sexual
orientation, economic status, age, cultural group, disability or affiliation
with any other similar identifiable group as a factor in deciding whether to
take law enforcement action or to provide service.
402.2 POLICY
The Spokane Police Department is committed to providing law
enforcement services to the community with due regard for the racial,
cultural or other differences of those served. It is the policy of this
department to provide law enforcement services and to enforce the law
equally, fairly and without discrimination toward any individual or group.
Race, ethnicity or nationality, religion, sex, sexual orientation,
economic status, age, cultural group, disability or affiliation with any other
similar identifiable group shall not be used as the basis for providing
differing levels of law enforcement service or the enforcement of the law.
402.3 RACIAL-OR BIAS-BASED PROFILING PROHIBITED
Racial-or bias-based profiling is strictly prohibited. However,
nothing in this policy is intended to prohibit an officer from considering
factors such as race or ethnicity in combination with other legitimate
factors to establish reasonable suspicion or probable cause (e.g., suspect
description is limited to a specific race or group).
SPOKANE POLICE DEPARTMENT, POLICY MANUAL §§ 402.1-402.3 at 238 (adopted Feb. 9,
2016. https://static.spokanecity.org/documents/police/accountability/police-policy-
manual-2016-02-09.pdf. (Emphasis added).
Spokane Police Department Policy 428 declares in part:
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Immigration Violations
428.1 PURPOSE AND SCOPE
The immigration status of individuals alone is generally not a matter
for police action. It is incumbent upon all employees of this department to
make a personal commitment to equal enforcement of the law and equal
service to the public regardless of immigration status. Confidence in this
commitment will increase the effectiveness of the Department in protecting
and serving the entire community.
428.2 DEPARTMENT POLICY
The U.S. Immigration and Customs Enforcement (ICE) has primary
jurisdiction for enforcement of the provisions of Title 8, United States Code
(U.S.C.) dealing with illegal entry. When assisting ICE at its specific
request, or when suspected criminal violations are discovered as a result of
inquiry or investigation based on probable cause originating from activities
other than the isolated violations of Title 8, U.S.C., §§ 1304, 1324, 1325
and 1326, this department may assist in the enforcement of federal
immigration laws.
....
428.3.1 BASIS FOR CONTACT
Unless immigration status is relevant to another criminal offense or
investigation (e.g., harboring, smuggling, terrorism), the fact that an
individual is suspected of being an undocumented alien shall not be the sole
basis for contact, detention or arrest.
....
428.3.3 ICE REQUEST FOR ASSISTANCE
If a specific request is made by ICE or any other federal agency, this
department will provide available support services, such as traffic control
or peacekeeping efforts, during the federal operation.
Members of this department should not participate in such federal
operations as part of any detention team unless it is in direct response to a
request for assistance on a temporary basis or for officer safety. Any
detention by a member of this department should be based upon the
reasonable belief that an individual is involved in criminal activity.
....
428.3.7 NOTIFICATION OF IMMIGRATION AND CUSTOMS
ENFORCEMENT
If an officer believes that an individual taken into custody for a
felony is also an undocumented alien, and after he/she is formally charged
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and there is no intention to transport to the county jail, ICE shall be
informed by the arresting officer so that they may consider placing
immigration hold on the individual.
Whenever an officer has reason to believe that any person
arrested for an offense other than a felony may not be a citizen of the
United States, and the individual is not going to be booked into the
county jail, the arresting officer may cause ICE to be notified for
consideration of an immigration hold. In making the determination
whether to notify ICE in such circumstances, the officer should, in
consultation with a supervisor, consider the totality of circumstances
of each case, including, but not limited to:
(a) Seriousness of the offense.
(b) Community safety.
(c) Potential burden on ICE.
(d) Impact on the immigrant community.
Generally, officers will not need to notify ICE when booking
arrestees at the county jail. Immigration officials routinely interview
suspected undocumented aliens who are booked into the county jail
on criminal charges and notification will be handled according to jail
operation procedures.
428.4 CONSIDERATIONS PRIOR TO REPORTING TO
ICE
....
All individuals, regardless of their immigration status, must
feel secure that contacting law enforcement will not make them
vulnerable to deportation. Members should not attempt to determine
the immigration status of crime victims and witnesses or take
enforcement action against them absent exigent circumstances or
reasonable cause to believe that a crime victim or witness is involved
in violating criminal laws. Generally, if an officer suspects that a
victim or witness is an undocumented immigrant, the officer need
not report the person to ICE unless circumstances indicate such
reporting is reasonably necessary.
SPOKANE POLICE DEP’T, POLICY MANUAL §§ 428.1-428.4, at 282-85
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In October 2014, years after the Spokane Police Department adopted
Policies 402 and 428, the Spokane City Council enacted two ordinances. The
ordinances codified the department policies respectively into former SMC §§
3.10.040, .050 (2014). Until 2017 amendments, the two code sections read:
3.10.040 Biased Free Policing
....
B. Spokane Police Department Officers and all officers
commissioned under the Spokane Police Department shall be prohibited
from engaging in bias-based profiling.
C. Bias-based profiling is defined as an “act of a member of the
Spokane Police Department or a law enforcement officer commissioned by
the Spokane Police Department that relies on actual or perceived race,
national origin, color, creed, age, citizenship status . . . or any characteristic
of protected classes under federal, state or local laws as the determinative
factor initiating law enforcement action against an individual, rather than an
individual’s behavior or other information or circumstances that links a
person or persons to suspected unlawful activity.”
3.10.050 Immigration Status Information
A. Unless required by law or court order, no Spokane City officer or
employee shall inquire into the immigration status of any person, or engage
in activities designed to ascertain the immigration status of any person.
B. Spokane Police Department officers shall have reasonable
suspicion to believe a person has been previously deported from the United
States, is again present in the United States, and is committ[ing] or has
committed a felony criminal-law violation before inquiring into the
immigration status of an individual.
C. The Spokane Police Department shall not investigate, arrest, or
detain an individual based solely on immigration status.
(Emphasis added.)
On November 26, 2014, one month after the Spokane City Council adopted former
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SMC 3.10.040 and .050, Jackie Murray, on behalf of Respect Washington, submitted a
petition for a proposed initiative with the Spokane city clerk. The proposed initiative
would amend former SMC 3.10.040 to eliminate citizenship status from the list of
prohibited factors for city police to consider during investigations, would repeal former
SMC 3.10.050, and would add a new code section that would prohibit the city from
limiting any city employee from collecting immigration status information and sharing
the information with federal authorities. SMC 3.10.060 would read:
Respect for Law: The City of Spokane shall not limit the ability of
any city employee from collecting immigration status information,
communicating immigration status information and cooperating with
federal law enforcement authorities unless such regulation is approved by a
majority vote of the City Council and a majority vote of the people at an
election.
CP at 172.
On December 8, 2015, Jackie Murray sent two separate e-mails that declared she
formally withdrew her sponsorship of the initiative petition. The Spokane County auditor
continued with the initiative process anyway and certified that Murray submitted the
requisite number of signatures for a vote. On February 22, 2016, the Spokane City
Council placed the initiative on the November 7, 2017 ballot as Proposition 1. The
Spokesman Review and the Spokane Journal of Business thereafter penned editorials
lamenting the filing of an anti-immigrant initiative.
On March 27, 2017, after placement of Proposition 1 on the November 2017
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ballot, the Spokane City Council passed Spokane Ordinance C35485, which repealed
former SMC 3.10.040 and .050, the two code sections that Proposition 1 sought to amend
or repeal. The city council adopted the ordinance ostensibly because it wished to
consolidate various sections and chapters of the city code into a new Title 18 that
addressed human rights. Before the creation of Title 18, the municipal code scattered
human rights provisions throughout various code sections. Spokane Ordinance C35485
recodified similar, but not identical, language from the repealed sections into the new
Title 18. The ordinance reads in part:
ORDINANCE No. C35485
An ordinance relating to human rights protections; repealing
chapters 01.06, 01.08, 10.08E, and 10.18; sections 03.10.040, 03.10.050,
and 03.10.060; enacting a new Title 18; and amending sections 01.05.210,
04.10.040 and 04.10.050 of the Spokane Municipal Code.
WHEREAS, human rights provisions are scattered throughout the
Spokane Municipal Code; and
WHEREAS, protections for human rights are fundamental to the
welfare of all people in Spokane; and
WHEREAS, the City Council recognizes the utility of grouping all
provisions which contain and describe the human rights protections of the
Spokane Municipal Code in the same title; and
WHEREAS, the City of Spokane reaffirms its commitment to the
protection of the human rights of all those living in Spokane.
NOW THEREFORE, the City of Spokane does ordain:
Section 1. That chapters 01.06, 01.08, 10.08E, and 10.18, and
sections 03.10.040, 03.10.050, and 03.10.060 of the Spokane Municipal
Code are hereby repealed.
Section 2. That there is enacted a new Title 18 of the Spokane
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Municipal Code to read as follows:
Title 18 Human Rights
Chapter 18.01 Law Against Discrimination
Section 18.01.010 Findings
The City of Spokane finds that discrimination based on race,
religion, creed, color, sex, national origin, marital status, familial status,
domestic violence victim status, age, sexual orientation, gender identity,
honorably discharged veteran or military status, refugee status, the presence
of any sensory, mental or physical disability as defined by the Americans
with Disability Act, 42 U.S.C., § 12101 et seq., and/or the Washington
State Law Against Disability, Chapter 49.60 RCW, or the receipt of, or
eligibility for the receipt of, funds from any housing choice or other subsidy
program or alternative source of income poses a substantial threat to the
health, safety and general welfare of the citizens of Spokane. The City
deems it necessary and proper to enact a local ordinance to address these
issues.
....
Section 18.01.030 Definitions
....
D. “Discrimination” means different or unequal treatment because of
race, religion, creed, color, sex, national origin, marital status, familial
status, domestic violence victim status, age, sexual orientation, gender
identity, honorably discharged veteran or military status, refugee status,
disability, the use of a guide dog or service animal, or the use or eligibility
for the use of housing choice or other subsidy program or alternative source
of income. “Discriminate” means to treat differently or unequally because
of race, religion, creed, color, sex, national origin, marital status, familial
status, domestic violence victim status, age, sexual orientation, gender
identity, honorably discharged veteran or military status, refugee status, the
presence of any sensory, mental or physical disability as defined by the
American with Disability Act and/or the Washington State Law Against
Discrimination, [chapter 49.60 RCW], or the use or eligibility for the use of
housing choice or other subsidy program or alternative source of income.
....
U. “Profiling” means actions of the Spokane Police Department, its
members, or officers commissioned by the Spokane Police Department to
rely on actual or perceived race, religion, national origin, color, creed, age,
citizenship status, immigration status, refugee status, gender, sexual
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orientation, gender identity, disability, socio-economic status, housing
status, or membership in any protected class under federal, state or local
law as the determinative factor in initiating law enforcement action against
an individual, rather than an individual’s behavior or other information or
circumstances that links a person or persons to suspected unlawful activity.
V. “Refugee status” means the status of a person who, under the
provisions of 8 USC 1101(a)(42), is outside a country of that person’s
nationality or, in the case of a person having no nationality, is outside any
country in which that person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or herself
of the protection of, that country because of persecution or a well-founded
fear of persecution on account of race, religion, nationality, membership in
a particular social group, or political opinion.
....
Chapter 18.07 Police Practices
Section 18.07.010 Bias-Free Policing
A. The City of Spokane is committed to providing services and
enforcing laws in a professional, nondiscriminatory, fair and equitable
manner.
B. The Spokane Police Department, its officers, employees, and all
officers commissioned under the Spokane Police Department are prohibited
from engaging in profiling as the term is defined in this SMC 18.01.030[U].
C. The Spokane Police Department shall maintain policies
consistent with this section.
Section 18.07.020 Immigration Status Information
A. Unless required by law or court order, no officer, agent, or
employee of the City of Spokane shall inquire into the immigration or
citizenship status of any person, or engage in activities designed to ascertain
the immigration status of any person.
B. Spokane Police officers may not inquire into the immigration or
citizenship status of an individual unless they have reasonable suspicion to
believe a person: (i) has been previously deported from the United States,
(ii) is again present in the United States, and (iii) is committing or has
committed a felony criminal law violation.
C. The Spokane Police Department shall not investigate, arrest, or
detain an individual based solely on immigration or citizenship status.
D. The Spokane Police Department shall maintain policies
consistent with this section.
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Spokane Ordinance C35485 (Mar. 27, 2017) (emphasis added).
PROCEDURE
In May 2017, Asian Pacific Islander Coalition-Spokane, Global Neighborhood,
Refugee Connections of Spokane, Spokane Area Chapter of the National Organization of
Women, Spokane Chinese American Progressives, and Spokane Chinese Association
filed this lawsuit to address the validity of Proposition 1. Defendants include Spokane
County Auditor Vicky Dalton, the City of Spokane, and Respect Washington. The
county auditor takes no position on the merits of the suit. Respect Washington actively
opposes the suit. The City of Spokane takes no position on the merits of the lawsuit, but
asks that, if Proposition 1 is invalid, we enjoin its placement on the ballot. In its answer
to the complaint, Spokane noted that it will pay for the cost of the Proposition 1 election,
and the city did not wish to pay for an election for an invalid measure.
On July 28, 2017, Global Neighborhood moved the trial court for a declaratory
judgment prohibiting Proposition 1 from being placed on the November 2017 ballot.
Global Neighborhood raised at least three arguments in support of its motion for relief.
Global Neighborhood claimed that Proposition 1 was invalid due to two procedural
violations of the SMC. First, Proposition 1 lacked a sponsor in contravention of the
Spokane Municipal Code, since Jackie Murray withdrew her sponsorship before the
validation of signatures. Second, the petition for the initiative contained inflammatory
and prejudicial language contrary to SMC 2.02.060(D)(5). In fact, the city clerk
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informed Respect Washington that language in the petition conflicted with the
requirements of the municipal code, and the clerk directed the group to remove the
language. Respect Washington did not comply with the request. On the merits, Global
Neighborhood argued that the subject matter of Proposition 1 was administrative in
nature and thus not a proper subject for an initiative.
The trial court granted Global Neighborhood’s request for declaratory judgment.
In doing so, the trial court declared that a justiciable controversy existed, that plaintiffs
held organizational standing and standing through their respective members, and that
laches did not bar the suit. The superior court ruled Proposition 1 invalid because the
measure seeks to repeal portions of the Spokane Municipal Code previously rescinded.
The superior court also declared Proposition 1 invalid because the measure is
administrative in nature and thereby exceeds the local initiative power. The trial court
entered an injunction directing the removal of Proposition 1 from the November 2017
ballot.
LAW AND ANALYSIS
The primary issue on appeal and on which our decision rests is whether
Proposition 1 is administrative or legislative in nature. Nevertheless, Respect
Washington raises defenses and other hurdles to Global Neighborhood obtaining relief,
which defenses and arguments include laches, the statute of limitations, lack of harm for
purposes of an injunction, and violation of Respect Washington’s and its members First
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Amendment rights by reason of the legal attack on Proposition 1. In turn, Global
Neighborhood asks that this court decline to address the merits of Respect Washington’s
appeal because of the moot nature of the case. Global Neighborhood does not seek to
dismiss the appeal on the ground that the initiative’s sponsor withdrew her sponsorship
before certification for the ballot. Since we would not need to address the merits of the
appeal if some event rendered the appeal moot, we address mootness first. We also
review, before entertaining the merits of the appeal, defenses asserted by Respect
Washington.
Mootness
After the certification of Proposition 1 for the November 2017 ballot, the Spokane
City Council, through Spokane Ordinance C35485, repealed former SMC 3.10.040 and
.050, code sections that Proposition 1 sought to amend or repeal. Proposition 1
specifically identified the two code sections as the initiative’s target. With Spokane
Ordinance C35485, former SMC 3.10.040 and .050 no longer exist. According to Global
Neighborhood, the repeal of former SMC 3.10.040 and .050 in Spokane Ordinance
C35485 renders Proposition 1 moot, because revoking or amending nonexistent code
sections serves no purpose. Global Neighborhood does not contend that the passing of
the November 2017 election leaves the initiative moot.
Global Neighborhood’s contention ignores the existence of the substantive
provisions, previously found in former SMC 3.10.040 and .050, within Title 18 SMC.
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One could read Proposition 1 as now targeting SMC 18.01.010 and .030(D), (U), and (V),
SMC 18.01.040, SMC 18.07.010 and .020, which sections continue to define prohibited
“profiling” as including acting on another’s perceived or actual citizenship status. The
new sections, like the former sections, also generally prohibit a law enforcement officer
from asking a person about his or her citizenship status. Global Neighborhood’s
contention also ignores Proposition 1’s attempt to add a new section, SMC 3.10.060, to
the Spokane code. The passing of Spokane Ordinance C35485 does not render irrelevant
the addition of this new section to the code by an initiative.
As a general rule, this court will not review a moot question. Citizens for
Financially Responsible Government v. City of Spokane, 99 Wash. 2d 339, 350, 662 P.2d
845 (1983). A case is moot when it involves only abstract propositions or questions,
when substantial questions in the trial court no longer exist, or when a court can no
longer provide effective relief. Spokane Research & Defense Fund v. City of Spokane,
155 Wash. 2d 89, 99, 117 P.3d 1117 (2005).
The Washington Supreme Court directs this court to consider mootness because
mootness challenges the jurisdiction of the court. Citizens for Financially Responsible
Government v. City of Spokane, 99 Wash. 2d at 350. According to our high court, the
reviewing court should first address whether an issue is moot as opposed to immediately
resolving the merits of an issue. Rosling v. Seattle Building & Construction Trades
Council, 62 Wash. 2d 905, 907-08, 385 P.2d 29 (1963).
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The parties forward two conflicting Washington Supreme Court decisions on the
subject of mootness within the setting of an initiative or referendum: Citizens for
Financially Responsible Government v. City of Spokane, 99 Wash. 2d 339 (1983), and City
of Yakima v. Huza, 67 Wash. 2d 351, 407 P.2d 815 (1965). We review each decision to
discern whether we should declare the validity of some or portions of Proposition 1 moot
because of Spokane Ordinance C35485.
In City of Yakima v. Huza, chapter 5.50 City of Yakima Municipal Code imposed
a tax on the gross receipts of electricity, telephone, water, sewer, and garbage utilities in
the city of Yakima. In November and December 1961, the city respectively enacted
Ordinances 300 and 308. The ordinances increased the permanent tax rate for the
telephone utility receipts, enacted a temporary surtax for the calendar year 1962 on
electricity and telephone utilities’ receipts, and enacted a tax on the gross receipts for the
calendar year 1962 received by the natural gas company. In April 1962, Stephen Huza
filed an initiative petition with the city clerk. The proposed initiative would repeal the
increased tax rates on the gross receipts of the electricity and telephone utilities, repeal
the tax on the gross receipts of the natural gas company, allow tax credits on future taxes
equal to all increased taxes collected under Ordinances 300 and 308 before their
revocation, and reduce taxes for water, sewer, and garbage services. The initiative
proposed to accomplish its purposes by expressly repealing Ordinances 300 and 308.
On July 3, 1962, the city of Yakima commenced legal action to challenge Stephen
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Huza’s initiative petition on the ground that only the city council held authority to amend
tax measures. On October 29, 1962, before any trial, the Yakima City Council passed
Ordinance 390 that essentially adopted the same measures as Ordinances 300 and 308,
but for the calendar year 1963. Ordinance 390 never mentioned Ordinances 300 or 308.
Ordinance 390 instead directly referenced chapter 5.50, City of Yakima Municipal Code.
On appeal, the City of Yakima argued that newly enacted Ordinance 390 rendered
moot the right to vote on Stephen Huza’s proposed initiative since Ordinance 390
repealed Ordinances 300 and 308, the two ordinances the initiative sought to repeal. The
Supreme Court agreed. The Court reasoned that the proposed initiative would repeal the
tax measures implanted in Ordinances 300 and 308, but those same taxes would continue
based on Ordinance 390 despite the repeal of the earlier ordinances. The proposed
initiative could have sought to directly repeal provisions of chapter 5.50 of the municipal
code, but failed to expressly mention the code chapter. Although the initiative sought to
repeal the tax increases, the court deemed the initiative worthless because the initiative
did not mention the recently enacted ordinance number or the code sections that then
referenced the taxes. In effect, a city could renumber the ordinance or code section
sought to be repealed by an initiative in order to escape the initiative.
Three dissenters, in City of Yakima v. Huza, characterized the City of Yakima’s
action as legislative shenanigans, a frustration of the initiative process, and a flagrant
abuse of the judicial process. We agree with the dissenters that a city should not be
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allowed to enact later ordinances that readopt the same substantive measures but under
different numbering or coding, in order to obstruct a proposed initiative.
In Citizens for Financially Responsible Government v. City of Spokane, 99 Wash. 2d
339 (1983), citizens filed a referendum with the city of Spokane city clerk, which
referendum would repeal Ordinance C25792, an ordinance imposing a business and
occupation tax. One month later, the Spokane City Council passed Ordinance C25832,
which amended Ordinance C25792. We do not know the nature of the amendments. The
clerk refused to accept the referendum based on the city attorney’s advice that only the
city council held authority to adopt or repeal a tax measure and the measure was
administrative rather than legislative in nature. The citizens sought a writ of mandamus
to compel the filing and processing of the referendum. The superior court granted the
writ.
On appeal to the Supreme Court, the City of Spokane, while relying on City of
Yakima v. Huza, argued that the proposed initiative became moot with the adoption of
Ordinance C25832, which amended Ordinance C25792, the subject of the initiative. The
Citizens court distinguished Huza on the basis that the later adopted Yakima ordinance
was complete in itself and never referenced the two ordinances sought to be repealed by
the initiative. The later adopted Spokane ordinance merely amended the earlier
ordinance sought to be revoked. The later adopted Spokane ordinance did not stand
alone.
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Despite distinguishing Huza, the Citizens court wrote that it agreed with the Huza
dissenters that a repealing or reenacting ordinance should not be allowed to frustrate the
initiative process. Accordingly, the Supreme Court will frown on the deliberate efforts
by a legislative body to circumvent the initiative rights of the electorate. The Citizens
court, however, declined to reconsider Huza because of the differences in the effect of the
respective Yakima and Spokane later adopted ordinances.
We do not know if the Spokane City Council deliberately adopted Spokane
Ordinance C35485 for the purpose of evading Proposition 1. But we need not rest our
decision on any deliberate evasion.
We doubt the validity of City of Yakima v. Huza after Citizens for Financially
Responsible Government v. City of Spokane, but deem this appeal more aligned with the
facts of Citizens, not Huza. The Citizens court wrote that Huza must be limited to its
unique facts, a comment that may politely overrule Huza. Like the Yakima amending
ordinance in Huza, Spokane’s Ordinance C35485 is complete in itself. Nevertheless,
unlike the Yakima ordinance and similar to the Spokane amending ordinance in Citizens,
Ordinance C35485 refers to the previously enacted code sections, which are the objects
of Respect Washington’s initiative. Although Proposition 1 does not identify the current
code sections that prohibit profiling based on and questioning about one’s citizenship
status, a court or a city official could deem Proposition 1 to now target code sections
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found in Title 18 SMC. Since a new ordinance should not frustrate the initiative process,
we hold that the validity of Proposition 1 is not moot.
Spokane Ordinance C35485 added refugee and immigration status to citizenship
status as forbidden subjects of questioning and profiling by law enforcement officers.
These additions raise the problem of whether Proposition 1, if passed, would allow
questioning detainees about citizenship status, but not about refugee or immigration
status, despite the three statuses being interrelated. Because we rest our decision on other
grounds, we need not resolve this anomaly.
Despite the Supreme Court directing us to address mootness first because
mootness impacts the jurisdiction of the courts, mootness does not necessarily preclude
court review. This court may review a moot issue of continuing and substantial interest
that presents a question of a public nature likely to recur. Citizens for Financially
Responsible Government v. City of Spokane, 99 Wash. 2d at 351. Washington courts have
repeatedly entertained suits involving the right of initiative or referendum despite
possible mootness because the suits entail substantial public interest. Philadelphia II v.
Gregoire, 128 Wash. 2d 707, 712, 911 P.2d 389 (1996); Citizens for Financially
Responsible Government v. City of Spokane, 99 Wash. 2d at 351; Leonard v. City of Bothell,
87 Wash. 2d 847, 849, 557 P.2d 1306 (1976); Save Our State Park v. Hordyk, 71 Wash. App.
84, 89, 856 P.2d 734 (1993). In Citizens for Financially Responsible Government v. City
of Spokane, the high court ended its opinion by stating that, even if the appeal became
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moot, it would still consider the validity of the initiative because the case presented an
issue of continuing and substantial interest to the public.
The principle that mootness impacts the court’s jurisdiction conflicts with the rule
allowing this court to hear moot appeals impacting a substantial public interest. If we
have no jurisdiction, we have no authority to hear and determine the case. Bour v.
Johnson, 80 Wash. App. 643, 646-47, 910 P.2d 548 (1996). Nevertheless, assuming this
appeal to be moot, we would proceed to the merits anyway.
Statute of Limitations
As defenses, Respect Washington asserts both the statute of limitations and the
doctrine of laches. Respect Washington contends either or both should bar Global
Neighborhood’s request for declaratory relief. Respect Washington highlights that, on
February 22, 2016, the Spokane City Council placed Proposition 1 on the November 7,
2017 ballot. Global Neighborhood did not file its complaint until more than one year
later, May 1, 2017. Global Neighborhood did not file its summary judgment motion for
declaratory relief until July 28, 2017.
We address first the defense of the statute of limitations. Global Neighborhood
brought suit seeking a declaratory judgment. Washington’s version of the Uniform
Declaratory Judgments Act lacks any statute of limitations. The Supreme Court has
announced that a declaratory judgment action must be brought within a reasonable time.
Automotive United Trades Organization v. State, 175 Wash. 2d 537, 541-42, 286 P.3d 377
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(2012). This court has four times stated that, when assessing a reasonable period of time,
we look to an analogous limitation period allowed for an appeal of a similar decision as
prescribed by statute, rule of court, or other provision. Schreiner Farms, Inc. v. American
Tower, Inc., 173 Wash. App. 154, 159-60, 293 P.3d 407 (2013); Cary v. Mason County,
132 Wash. App. 495, 501, 132 P.3d 157 (2006); Brutsche v. City of Kent, 78 Wash. App. 370,
376-77, 898 P.2d 319 (1995); Federal Way v. King County, 62 Wash. App. 530, 536-37,
815 P.2d 790 (1991). The Washington Supreme Court has never adopted this principle of
adoption by analogy.
Respect Washington forwards three election related statutes of limitations. A
challenge to a statewide initiative or referendum ballot title must be commenced within
five days. RCW 29A.72.080. The deadline for a challenge to a local ballot title is only
ten days. RCW 29A.36.090. A judicial challenge of a refusal by the Washington
Secretary of State to file a statewide initiative must be filed in court within ten days.
RCW 29A.72.180.
Significant differences lie between a challenge to the title of an initiative and a
challenge to the substance of the initiative. 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
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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 the initiative as an ordinance.
We deem the preelection challenge to a ballot initiative analogous to a challenge
to an adopted ordinance or statute. Under state law, no statute of limitations applies to a
challenge to the constitutionality of a statute or other action. Automotive United Trades
Organization v. State, 175 Wash. 2d at 542-43 (2012); Viking Properties, Inc. v. Holm, 155
Wash. 2d 112, 117, 118 P.3d 322 (2005); DeYoung v. Providence Medical Center, 136
Wash. 2d 136, 146-47, 150, 960 P.2d 919 (1998). 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. When a plaintiff
challenges the substance of an agency decision as exceeding statutory authority, no
statute of limitations applies until agency action adversely impacts the plaintiff. Aguayo
v. Jewell, 827 F.3d 1213, 1226 (9th Cir. 2016), cert. denied, 137 S. Ct. 832, 197 L. Ed. 2d
69 (2017). Many Washington decisions have entertained preelection initiative challenges
without suggesting a statute of limitations that applied before the election might bar such
a challenge.
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Laches
We move to the doctrine of laches. Laches is an implied waiver arising from the
knowledge of existing conditions and acquiescence in them. Buell v. City of Bremerton,
80 Wash. 2d 518, 522, 495 P.2d 1358 (1972). One who relies on a laches defense bears the
burden to prove: (1) knowledge or reasonable opportunity to discover on the part of a
plaintiff that he or she has a cause of action against a defendant, (2) an unreasonable
delay by the plaintiff in commencing that cause of action, and (3) damage to the
defendant resulting from the unreasonable delay. King County v. Taxpayers of King
County, 133 Wash. 2d 584, 642, 949 P.2d 1260 (1997). Damage to a defendant can arise
either from acquiescence in the act about which plaintiff complains or from a change of
conditions. Lopp v. Peninsula School District No. 401, 90 Wash. 2d 754, 759-60, 585 P.2d
801 (1978).
Generally, laches depends on the particular facts and circumstances of each case.
Schrock v. Gillingham, 36 Wash. 2d 419, 428, 219 P.2d 92 (1950). We regard the nature of
the case to be one factor to consider when determining whether laches should be applied.
Lopp v. Peninsula School District No. 401, 90 Wash. 2d at 759. Other factors include the
circumstances, if any, justifying the delay, the relief demanded, and the question of
whether the rights of defendant or other persons, such as the public, will be prejudiced by
the maintenance of the suit. Lopp v. Peninsula School District No. 401, 90 Wash. 2d at 759.
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Laches is an extraordinary defense that is appropriately applied only when a party,
knowing his rights, takes no steps to enforce them and the condition of the other party has
in good faith become so changed that the party cannot be restored to his or her former
state. Ward v. Richards & Rossano, Inc., 51 Wash. App. 423, 435, 754 P.2d 120 (1988).
Absent unusual circumstances, the doctrine of laches should not be invoked to bar an
action short of the applicable statute of limitation. In re Marriage of Capetillo, 85 Wn.
App. 311, 317, 932 P.2d 691 (1997).
Global Neighborhood contends that all three elements of laches are missing in this
appeal. Global Neighborhood first contends that the record does not show that it had any
knowledge of the existence of Proposition 1 until it filed suit. We reject this contention
since actual knowledge is not necessary. The first element of laches extends to a
reasonable opportunity to discover on the part of a plaintiff a potential cause of action.
The record shows that the Spokane City Council publicly addressed the placement of
Proposition 1 on the ballot. The record further shows Proposition 1 to be well publicized
in the Spokane environs. The record includes editorials by the Spokesman Review and
the Spokane Journal of Business ruing the anti-immigrant initiative.
Global Neighborhood waited until May 1, 2017, to file suit despite the Spokane
City Council, on February 22, 2016, placing Proposition 1 on the November 2017 ballot.
Global Neighborhood comments that it filed suit one month after the Spokane City
Council recodified the Spokane Municipal Code’s racial profiling prohibitions into other
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sections in the code. But Global Neighborhood does not suggest that it delayed filing suit
in order to determine if the city council would recodify the provisions. Global
Neighborhood also lacks an explanation for delaying its challenge for more than one
month after passage of Spokane Ordinance C35485. Therefore, we cannot assess the
reasonableness of the delay and, for purposes of this appeal, we assume
unreasonableness. Nevertheless, we find no harm to Respect Washington by reason of a
delay.
Respect Washington relies on Lopp v. Peninsula School District, 90 Wash. 2d 754
(1978), wherein the Supreme Court held that the challengers’ one-month delay after the
special election for a school district bond constituted an unreasonable delay. The
challenger contended that the school district failed to give proper notice of a board
meeting during which the board amended the title to a bond measure submitted to the
voters. Nevertheless, the court found the public to have been harmed by the delay in
challenging the vote approving the bond measure. The school district had received a
favorable bid on the bonds, and, if the district could not accept the bid, it would need to
commence the entire bond offering procedure again. The district would also lose three
months of interest income, and construction plans would be delayed. The delay in
construction would further exacerbate the already congested condition of classroom
facilities.
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Respect Washington complains that the delay in filing suit harmed it because the
delay ensured that the organization could not receive appellate review of a decision prior
to the November 2017 election, and, in turn, Respect Washington could not benefit by the
initiative being on the 2017 ballot. Respect Washington observes that the superior
court’s decision was issued on August 29, 2017, one week before the September 5, 2017
deadline for the ballots to be printed.
Although we recognize Respect Washington’s right to appellate review, Respect
Washington cites no case that a delay in appellate review constitutes harm for purposes of
laches. Also, Respect Washington’s claim of harm assumes that this court would reverse
the superior court’s decision and allow Proposition 1 to be submitted for a vote. The
claim of harm also assumes that it had the right to a vote on an initiative that exceeded
the initiative power. If 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, such that this court should not dismiss the suit on
laches. The claim of harm also assumes that this court lacks authority to direct placement
of Proposition 1 on a later ballot.
Respect Washington’s contention also fails to recognize the possibility of
accelerated review by this court. Respect Washington never sought accelerated review.
This court recently granted accelerated review and expeditiously issued an opinion in In
re February 14, 2017, Special Election on Moses Lake School District No. 161
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Proposition 1, 2 Wash. App. 2d 689, 413 P.3d 577 (2018), because of complications
surrounding a vote to approve a school district bond.
Injunctive Relief
Respect Washington claims that Global Neighborhood and other plaintiff
organizations lack standing to obtain an injunction enjoining the placement of
Proposition 1 on the Spokane ballot. In so arguing, Respect Washington does not
challenge the plaintiffs’ standing to bring this suit. Respect Washington challenges
whether the organizations suffered sufficient harm to gain standing for the issuance of an
injunction. We are unaware of any decision that delicately slices a party’s standing in
this manner.
Respect Washington challenges the trial court’s ruling that the plaintiffs suffered
“organizational harm.” Respect Washington downplays any harm suffered by the
organizations in diverting resources to assist members in the event Proposition 1 passed.
Respect Washington observes that someone always must change activities if an initiative
passes.
Respect Washington’s observation that someone always must change activities
when an initiative passes because such is the nature of an initiative does little to bolster
its argument that plaintiff organizations lack standing in our appeal’s context. Respect
Washington apparently contends that, since an initiative always impacts someone, no one
deserves standing to challenge the validity of the initiative. Respect Washington fails to
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consider that someone impacted by the initiative always has standing. The doctrine of
standing generally permits someone injured or impacted by an enactment to challenge the
enactment.
One who seeks relief by temporary or permanent injunction must show: (1) that he
or she possesses a clear legal or equitable right, (2) that he or she 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. Washington Federation
of State Employees v. State, 99 Wash. 2d 878, 888, 665 P.2d 1337 (1983). Because all three
of these criteria must be satisfied to warrant preliminary injunctive relief, the failure to
establish any one or more of the criteria dictates that we deny the requested relief.
Washington Federation of State Employees v. State, 99 Wash. 2d at 888.
All plaintiffs are organizations or associations. A nonprofit organization may
represent its members in a proceeding for judicial review so long as it shows that one or
more of its members are specifically injured by a governmental action. Save a Valuable
Environment v. City of Bothell, 89 Wash. 2d 862, 867, 576 P.2d 401 (1978). Organizations
possess standing to assert the interests of their members, so long as the members would
otherwise have standing to sue, the organization serves a purpose germane to the issue,
and neither the claim nor the relief requires the participation of individual members. Five
Corners Family Farmers v. State, 173 Wash. 2d 296, 304, 268 P.3d 892 (2011);
International Association of Firefighters, Local 1789 v. Spokane Airports, 146 Wash. 2d
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207, 213-14, 45 P.3d 186, 50 P.3d 618 (2002). An organization also has standing in its
own right with concrete and demonstrable injury to its activities caused by a drain on the
organization’s resources. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S. Ct.
1114, 71 L. Ed. 2d 214 (1982); Fair Housing of Marin v. Combs, 285 F.3d 899, 905 (9th
Cir. 2002). Reading these principles together, we conclude that an organization may gain
standing to sue by either an impact on its own resources or by asserting the rights of or
wrongs to its members.
We conclude that at least one of the plaintiff organizations has standing on its own
right and through its members. If one plaintiff has standing, the court will not address
whether other challengers have standing. Huff v. Wyman, 184 Wash. 2d 643, 649, 361 P.3d
727 (2015); League of Education Voters v. State, 176 Wash. 2d 808, 817 n.3, 295 P.3d 743
(2013). A declaration from the chairman of the board of Refugee Connections of
Spokane identifies its mission and the refugee and immigrant community the
organization serves. The declaration explains how Proposition 1 will subject the
organization’s community of service to stops solely because of race or looks despite
community members being present legally in the United States. The declaration explains
that Proposition 1 will impact the organization’s programs and limited resources.
In addition to holding that the plaintiff organizations possess standing, we
conclude that the City of Spokane also has standing and its standing would alone allow
the suit to proceed. The City of Spokane is a named defendant, not a plaintiff.
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Nevertheless, Spokane sought relief from the superior court and this court. Spokane
takes no position on the merits of the challenge to Proposition 1, but the city does not
wish to incur the cost of an election for an invalid measure. Thus, the City of Spokane
asks this court, as it did the superior court, to enjoin Proposition 1 from the ballot,
assuming the initiative to be outside the scope of the local initiative power. We find no
case that bases standing on the interests of a defendant, but granting standing on such
circumstances is reasonable when the defendant, as does Spokane, seeks relief.
Case law supports a city’s standing to seek an injunction precluding placing an
invalid initiative on the ballot. In Philadelphia II v. Gregoire, 128 Wash. 2d 707 (1996), the
Supreme Court noted that preelection review of a statewide initiative was proper to
prevent public expense on measures that are not authorized by the constitution. Our court
has observed:
We have recognized that requiring a city to place an invalid initiative
on the ballot would result in an undue financial burden on the government.
City of Longview v. Wallin, 174 Wash. App. 763, 782, 301 P.3d 45 (2013).
We recognize a ruling contrary to granting Global Neighborhood standing by
Division One of this court in American Traffic Solutions, Inc. v. City of Bellingham, 163
Wash. App. 427, 260 P.2d 245 (2011). The court held a proposed initiative exceeded the
scope of the local initiative power. The initiative sought to prohibit the use of automated
traffic safety enforcement cameras. A state statute expressly delegated to the city
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No. 35528-4-III
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legislative authority the power to adopt such camera systems. Remarkably, the court
refused to grant the initiative challengers injunctive relief to prevent a vote on the
initiative. The court reasoned that the challengers were not injured by the adoption of the
initiative because its adoption would be void.
American Traffic Solutions, Inc. v. City of Bellingham may be distinguished from
City of Longview v. Wallin in that the challenger in Wallin was the city who needed to
incur the expense of the ballot election. Nevertheless, we consider American Traffic
Solutions, Inc. contrary to other decisions and principles of standing.
Free Speech
In response to Global Neighborhood’s lawsuit, Respect Washington argues that
Global Neighborhood’s preelection action attempt to invalidate Proposition 1 breaches its
and its members’ right to free speech and redress from the government as protected by
both the United States and Washington Constitutions. Respect Washington relies on
Coppernoll v. Reed, 155 Wash. 2d 290, 119 P.3d 318 (2005) for the proposition that
substantive preelection review may unduly infringe on free speech values.
In Coppernoll v. Reed, our Supreme Court examined whether and under what
circumstances preelection review of a statewide initiative violated article II, section 1(a)
of the Washington Constitution, which provides the power of initiative to Washington
citizens. In considering this issue, the court delineated three distinct and separate
categories of preelection challenges. The Supreme Court categorized challenges to
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statewide initiatives and then determined which categories suffice for a preelection
challenge. In so doing, the court observed:
Because 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.
Coppernoll v. Reed, 155 Wash. 2d at 298. Nevertheless, the Supreme Court announced no
rule that proponents of initiatives hold a First Amendment right to the advancement of the
initiative to the ballot box. Instead, the court recognized the validity of preelection
challenges under some circumstances.
In City of Longview v. Wallin, 174 Wash. App. 763 (2013), this court rejected a First
Amendment argument identical to the one raised by Respect Washington in this appeal.
Mike Wallin sponsored a local initiative proposing restrictions on the use of traffic safety
cameras. The superior court granted the city’s declaratory judgment request to withhold
the initiative from the ballot because the initiative exceeded the scope of the local
initiative power. On appeal, Wallin argued the trial court’s ruling violated his First
Amendment rights, and he similarly relied on the sentence from Coppernoll v. Reed for
support. This court deemed Wallin’s reliance on Coppernoll unpersuasive, particularly
because the initiative in Coppernoll was a statewide initiative, whereas the initiative
sponsored by Wallin was a local initiative. The local initiative power does not derive
from our state constitution; rather, a statute authorizes this power. The constitutional
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preeminence of the right of initiative discussed in Coppernoll does not enjoy the same
vigilant protection with respect to municipal initiatives. This court also limited Wallin’s
First Amendment right to free speech to the gathering of signatures on his initiative
petition. The right did not extend to placing the initiative on the ballot.
In Port of Tacoma v. Save Tacoma Water, 4 Wash. App. 2d 562, 422 P.3d 917
(2018), this court recently again addressed a First Amendment argument in favor of
placing a local initiative on the ballot. The proponents of an initiative to limit the
availability of a municipality’s water service contended that the removal of the initiative
from the ballot violated its right to free speech under the First Amendment of the United
States Constitution and article I, sections 4 and 5 of the Washington Constitution. This
court observed that the United States Supreme Court held that the circulation of an
initiative petition involves the type of interactive communication concerning political
change that entails core political speech. Nevertheless, barring an initiative from the
ballot does not violate the constitution when the initiative lies outside the scope of the
local initiative’s power.
Other courts have rejected a constitutional right to place an initiative or
referendum on the ballot. Angle v. Miller, 673 F.3d 1122, 1133 (9th Cir. 2012); State ex
rel. Bolzenius v. Preisse, 2018-Ohio-3708, ___ N.E.3d ___ (Sept. 14, 2018). This
rejection follows the principle that a state may entirely decline to grant a right to legislate
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through ballot initiatives. Idaho Coalition United for Bears v. Cenarrusa, 342 F.3d 1073,
1077 n.7 (9th Cir. 2003).
Validity of Proposition 1
We move to the merits of the appeal and address the validity of Proposition 1.
This appeal concerns a municipality’s proposed initiative. The law treats a statewide
initiative different from a local government initiative. Protect Public Health v. Freed,
No. 95134-9 (Wash. Dec. 6, 2018), http://www.courts.wa.gov/ Opinions/
pdf/951349.pdf; Coppernoll v. Reed, 155 Wash. 2d at 297 (2005); City of Longview v.
Wallin, 174 Wash. App. at 790 (2013); Philadelphia II v. Gregoire, 128 Wash. 2d at 712
(1996). The Seventh Amendment to the Washington State Constitution establishes the
people’s right to statewide initiative, and the courts interpret this power broadly to favor
this right. Coppernoll v. Reed, 155 Wash. 2d at 297.
Our constitution does not extend the initiative or referendum power to cities, but
the legislature has enacted enabling legislation authorizing municipal initiatives and
referenda. City of Longview v. Wallin, 174 Wash. App. at 791. The Washington
Legislature granted charter cities the opportunity to afford city voters the initiative
process. RCW 35.25.200. The City of Spokane exercised this privilege in sections 81
and 82 of the Spokane City Charter. CITY OF SPOKANE CHARTER §§ 81, 82.
Global Neighborhood filed suit before Spokane residents could vote on
Proposition 1. The law disfavors judicial preelection review of initiatives. Protect
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Public Health v. Freed, No. 95134-9 at 463; Spokane Entrepreneurial Center v. Spokane
Moves to Amend Constitution, 185 Wash. 2d 97, 104, 369 P.3d 140 (2016). Courts will,
however, review, before the election, a local initiative to determine whether the proposed
law exceeds the scope of the initiative power. Spokane Entrepreneurial Center v.
Spokane Moves to Amend Constitution, 185 Wash. 2d at 104. Washington courts more
readily bar a local government initiative or referendum, than a state initiative or
referendum, from the ballot box since the state constitution authorizes such state ballot
measures.
No constitutional or statutory provision expressly limits the scope of local
government initiative in Washington State. Neither the Spokane City Charter nor the
Spokane Municipal Code explicitly imposes restrictions on the subject of an initiative.
Nevertheless, case law impresses at least three restraints on a local initiative. First, the
initiative must be “legislative,” not “administrative,” in nature. Second, the initiative
may not interfere with state or federal law. Coppernoll v. Reed, 155 Wash. 2d at 297
(2005). Third, the law must grant the municipality as a whole, rather than a board or
council of the municipality, the power to adopt the provision. City of Sequim v.
Malkasian, 157 Wash. 2d 251, 261, 138 P.3d 943 (2006). With regard to these restrictions
on citizen rights, a referendum is no different from an initiative, and we treat decisions
involving referenda the same in our discussion.
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A court may strike the initiative from the ballot if the initiative violates any of the
three limitations. Global Neighborhood relies on the first and second bases. We base our
decision on the distinction between administrative and legislative measures.
A city council or a county commission, unlike the state legislature, exercises
executive and quasi-judicial functions in addition to legislative functions. Margolis v.
District Court, 638 P.2d 297, 303 (Colo. 1981). At the same time, the power of the
people to enact ordinances by initiative or referendum implicates only the legislative
power of the municipality. Thus, the majority American rule permits ballot initiatives or
referenda only with regard to acts legislative in temperament. City of Aurora v.
Zwerdlinger, 194 Colo. 192, 571 P.2d 1074, 1076 (1977). Otherwise ballot initiatives
could bring the machinery of government to a halt. City of Aurora v. Zwerdlinger, 571
P.2d at 1076.
The right to act directly through referendum or initiative is not an inherent power
of the people. Ballasiotes v. Gardner, 97 Wash. 2d 191, 195-96, 642 P.2d 397 (1982).
Under our state constitution, municipal governments are not fully sovereign and derive
their authority to utility the initiative process from statute, rather than the constitution.
City of Port Angeles v. Our Water-Our Choice!, 170 Wash. 2d 1, 8, 239 P.3d 589 (2010).
RCW 35.22.200 declares, in part:
The legislative powers of a charter city shall be vested in a mayor
and a city council, to consist of such number of members and to have such
powers as may be provided for in its charter. The charter may provide for
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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. . . .
(Emphasis added.) In conformance with the statute, Washington case law limits the local
initiative power to legislation or “legislative matters” within the authority of the city.
Spokane Entrepreneurial Center v. Spokane Moves to Amend Constitution, 185 Wash. 2d at
107. In turn, the case law distinguishes between “legislative” and “administrative”
measures and precludes administrative matters as the subject of an initiative or
referendum. Spokane Entrepreneurial Center v. Spokane Moves to Amend Constitution,
185 Wash. 2d at 107.
When drawing a distinction between administrative and legislative measures, the
Washington Supreme Court, like other state high courts, has adopted two tests entailing
various factors enumerated in the leading treatise, Eugene McQuillin’s The Law of
Municipal Corporations. City of Port Angeles v. Our Water-Our Choice!, 170 Wash. 2d at
11 (2010); Heider v. City of Seattle, 100 Wash. 2d 874, 875-76, 675 P.2d 597 (1984);
Citizens for Financially Responsible Government v. City of Spokane, 99 Wash. 2d at 347
(1983); Ballasiotes v. Gardner, 97 Wash. 2d at 195-96 (1982); Seattle Building &
Construction Trades Council v. City of Seattle, 94 Wash. 2d 740, 748, 620 P.2d 82 (1980);
Ruano v. Spellman, 81 Wash. 2d 820, 823-24, 505 P.2d 447 (1973); Leonard v. City of
Bothell, 87 Wash. 2d at 850-51 (1976); Durocher v. King County, 80 Wash. 2d 139, 152-53,
492 P.2d 547 (1972). The latest revision of the McQuillin treatise, from 2013, reads in
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relevant part:
Actions relating to subjects of a permanent and general character are
usually regarded as legislative, and those providing for subjects of a
temporary and special character are regarded as administrative. In this
connection an ordinance which shows an intent to form a permanent rule of
government until repealed is one of permanent operation. Obviously,
details which are essentially of a fluctuating sort, due to economic or other
conditions, cannot be set up in and by an ordinance to be submitted to the
vote of the people.
The test of what is a legislative and what is an administrative
proposition, with respect to the initiative or referendum, has further
been said to be whether the proposition is one to make new law or to
execute law already in existence. The power to be exercised is
legislative in its nature if it prescribes a new policy or plan; whereas,
it is administrative in its nature if it merely pursues a plan already
adopted by the legislative body itself, or some power superior to it.
Similarly, an act or resolution constituting a declaration of public
purpose and making provision for ways and means of its
accomplishment is generally legislative as distinguished from an act
or resolution which merely carries out the policy or purpose already
declared by the legislative body. In applying the “legislative” versus
“administrative” test distinguishing on the basis of “new policy or
plan” versus “pursuit of plan already adopted,” the court will apply a
liberal rule of construction so that, for example, a resolution
approving an annexation has been construed as municipal legislation
in that it was characterized as a new law to which referendum
powers apply. The distinction between “legislative” and
“administrative” matters is the distinction between making laws of
general applicability and permanent nature, on the one hand, as
opposed to decisions implementing such general rules, on the other.
....
Whether a particular municipal activity is administrative or is
legislation often depends not on the nature of the action but the
nature of the legal framework in which the action occurs.
5 EUGENE MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 16.53 (3d ed. 2013)
(footnotes omitted).
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This excerpt from § 16.53 begs several questions, some of which loom important
in our analysis of the validity of Proposition 1. What if the subject of the initiative is
permanent but limited, not general, in character? Where lies the dividing line between an
action general in nature and specific in character? Is an act general in nature because it
applies throughout the entire geographic boundaries of the municipality and limited when
only applying to certain neighborhoods? Or is the act general in nature if it applies to all
persons despite a limited geographical reach and limited if it applies only to a subset of
persons? Is the act administrative in nature if it applies only to the conduct of municipal
employees? If the initiative proposes to reverse recent law does it create new law? If the
initiative proposes to reverse a recent ordinance does it create new law even if the initial
ordinance was administrative in nature? What if the initiative has some characteristics of
an administrative action and some attributes of a legislative act?
Some principles announced in Washington cases partially answer these questions.
In distinguishing between administrative and legislative proposals, we look at the
fundamental and overriding purpose of the initiative, rather than mere incidentals to the
overriding purpose. Coppernoll v. Reed, 155 Wash. 2d at 302 (2005). An initiative is
administrative in nature if it hinders or furthers a plan the local government, or some
power superior to it, has previously adopted. City of Port Angeles v. Our Water-Our
Choice!, 170 Wash. 2d at 11. An initiative may be administrative in nature if it conflicts
with state law’s directions to government employees or entities. Seattle Building &
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Construction Trades Council v. City of Seattle, 94 Wash. 2d at 749 (1980).
The most learned treatment of the difference between administrative and
legislative municipal actions comes from the Kansas Supreme Court. City of Wichita v.
Kansas Taxpayers Network, Inc., 255 Kan. 534, 874 P.2d 667 (1994); City of Lawrence
v. McArdle, 214 Kan. 862, 522 P.2d 420 (1974). The Kansas high court recognizes that
whether a proposed initiative is legislative or administrative is often a difficult question
to answer in part because no single act of a governing body is solely legislative or
administrative. McAlister v. City of Fairway, 289 Kan. 391, 212 P.3d 184, 193-94
(2009). The question can be fact specific. McAlister v. City of Fairway, 212 P.3d at 194.
No one factor necessarily controls over the others. McAlister v. City of Fairway, 212
P.3d at 195. The court will give consideration to each factor before reaching a final
decision. McAlister v. City of Fairway, 212 P.3d at 195. But in doing so, the weight
given to any one factor may be enough under a particular factual situation to decide that a
proposed ordinance intrudes too far into a city’s administrative arena and thereby
becomes administrative in nature. McAlister v. City of Fairway, 212 P.3d at 195.
In addition to the traditional factors of general or specific and creating or
implementing policy, the Kansas high court added the technical nature of the proposal as
another consideration. McAlister v. City of Fairway, 212 P.3d at 194. A decision that
requires specialized training and experience in municipal government and intimate
knowledge of the fiscal and other affairs of a city in order to make a rational choice
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should be deemed administrative, even though the choice may entail some characteristics
of establishment of policy. McAlister v. City of Fairway, 212 P.3d at 194.
The Washington Supreme Court, without expressly adopting the specialized
complexion of a municipal ordinance or initiative as a factor, commented on the technical
nature of a measure in Leonard v. City of Bothell, 87 Wash. 2d 847 (1976). The Supreme
Court declared as administrative a proposed referendum on a municipal ordinance that
would rezone property from agricultural to community business and would modify the
city’s comprehensive plan to allow a regional shopping center. The court observed:
Amendments to the zoning code or rezone decisions require an
informed and intelligent choice by individuals who possess the expertise to
consider the total economic, social, and physical characteristics of the
community. Respondent’s planning commission and city council normally
possess the necessary expertise to make these difficult decisions. The State
Environmental Policy Act of 1971 (SEPA), RCW 43.21C, emphasizes this
need for carefully planned land-use decisions. . . . SEPA requires a
sophisticated understanding of the environmental problems of the project.
Leonard v. City of Bothell, 87 Wash. 2d at 854.
We now analyze the complexion of Proposition 1. In doing so, we consider
Proposition 1 as repealing or modifying the earlier sections of the Spokane Municipal
Code, former SMC 3.10.040, .050, which addressed the same subject matter, the
questioning by police of an individual’s immigration and citizenship status. We
recognize that current Spokane policy allows a law enforcement officer to question a
suspect about his or her immigration status, but limits the circumstances under which a
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police officer may question an individual as to the individual’s immigration status,
citizenship status, or refugee status. The officer may question about status if the officer
holds reasonable suspicion that the person was previously deported from the United
States and is committing or has committed a felony. Current Spokane law and policy
limits the circumstances under which a police officer should forward immigration status
information to the United States Immigration and Customs Enforcement Agency.
Proposition 1 removes any restrictions on any officer or other employee of Spokane to
question one about his or her immigration status or to forward immigration status
information to others.
We recognize at least one characteristic of Proposition 1 in common with
legislative acts. Proposition 1 adopts a rule of government permanent in nature. An
initiative showing an intent to form a standing rule of government, until it is repealed, is
one of permanent operation. McAlister v. City of Fairway, 212 P.3d at 196.
Respect Washington argues that Proposition 1 is legislative in nature because of
the additional feature that the initiative seeks to reverse or change city policy. Respect
Washington also contends that, although the subject matter at issue originated as Spokane
Police Department policy, the adoption of the policy by the Spokane City Council
transformed the policy from administrative in nature to legislative in nature.
Respect Washington analogizes to Citizens for Financially Responsible
Government v. City of Spokane, 99 Wash. 2d at 347 (1983), in which citizens wished to
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repeal a business tax after the city council enacted the tax. When conducting the
administrative versus legislative analysis, the Washington Supreme Court analyzed
whether the original ordinance, rather than the citizens’ referendum, was administrative.
The court concluded that the city ordinance was legislative in nature and subject to
referendum. In reaching this conclusion, the court noted that the city ordinance could not
be viewed as an execution of policy already in existence. Rather, the tax ordinance set a
new policy. The Supreme Court did not expressly avow that an initiative that revokes an
ordinance legislative in nature also renders the initiative legislative in nature, the court
ruling implies such. Thus, we agree with Respect Washington that Proposition 1,
assuming the underlying former SMC 3.10.040 and .050 to be legislative, maintains some
legislative character in that the initiative modifies, if not reverses in part, legislative
policy established by the city council.
Other characteristics of Proposition 1 share features in common with
administrative acts. SMC 3.10.010(B)(1) delegates to the Spokane Police Department
police chief authority to issue rules for the proper functioning of the police department.
The Spokane City Council did not adopt former SMC 3.10.040 and .050 in a vacuum.
The Spokane Police Department had already adopted standing policies with regard to
questioning individuals about immigration and citizenship status. The Spokane City
Council, when adopting former SMC 3.10.040 and .050, merely codified existing police
department policy.
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We recognize the argument that, if the city council adopts a department’s
administrative policy, the policy transforms into a legislative policy. Nevertheless, no
case law supports that contention. If other actions by the city legislative body constitute
administrative action, the adoption of a city department’s administrative regulations can
remain administrative in character. When analyzing the legislative or administrative
nature of a municipal act, courts consider the framework of the action. Proposition 1
challenges a Spokane policy, whose framework’s base consists of administrative building
blocks.
Proposition 1 interferes with Spokane Police Department policy to limit the
circumstances under which law enforcement officers inquire about immigration and
citizenship status. To repeat, an initiative is administrative in nature if it hinders or
furthers a plan the local government previously adopted. City of Port Angeles v. Our
Water-Our Choice!, 170 Wash. 2d at 11. Proposition 1 hinders a policy previously adopted
by the local government similarly to the proposed initiative that interfered in the building
of the King County stadium in Ruano v. Spellman, 81 Wash. 2d 820 (1973).
We recognize that the state Supreme Court, in State ex rel. Pike v. City of
Bellingham, 183 Wash. 439, 48 P.2d 602 (1935), held the fixing of salaries of firefighters
and police officers to be legislative in nature. One might argue that the decision suggests
that administrative affairs of a police department may be legislative in nature.
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Nevertheless, the city of Bellingham measure did not directly impact how to administer
services provided by the police department.
We are unaware of any decision that expressly holds that directions to employees
constitute administrative, not legislative, policy. Nevertheless, logic supports such a
conclusion. Directions to government employees may come from a legislature but
generally derive as administration actions by department heads.
We observe that the language in former SMC 3.10.040 and .050, in their code
section replacements at SMC 18.07.010 and .020, and in Proposition 1 lack any
declaration of policy. McQullin on Municipal Corporations and impliedly Ballasiotes v.
Gardner, 97 Wash. 2d 191 (1982) state that a declaration of policy, or the lack of a
declaration of policy, influences the action as being respectively legislative or
administrative in nature. Since a declaration of policy generally functions as a formality,
we deem this factor of limited assistance. Still, the lack of a declaration of policy in our
operative ordinances and Proposition 1 bolsters our conclusion.
In addition to relying on Proposition 1 countering a Spokane Police Department
policy, we emphasize the need for expertise on the challenging and charged question of
whether local government agents should question individuals about immigration or
citizenship status. United States legislative policy dictates the removal of those illegally
in the United States, and the federal government operates an agency and a separate court
system to fulfill this dictate. If and when a local law enforcement agency seeks to
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question an individual as to his or her legal status inside the nation’s borders involves a
different query. Case law and literature recognizes the need to weigh conflicting goals
before establishing a policy of asking or withholding questioning regarding one’s
citizenship status. Local law enforcement agencies must also navigate constitutional
protections afforded residents before asking for information on one’s status. These
factors implicate the success of law enforcement efforts and thus questioning should be
reserved to the expertise of law enforcement administrators.
We discern from its name that Respect Washington seeks respect for all law,
including immigration laws and laws demanding deportation of those unlawfully within
the United States, including within the city of Spokane. Respect for all law is a noble
standard and deporting those unlawfully in the nation a legitimate end to this principle.
But a law enforcement agency that allows officers free reign in questioning anyone as to
his or her citizenship status, such as proposed in Proposition 1, can encounter negative
side effects from such a policy.
Proposition 1 allows city of Spokane employees to collect information on
immigration status. The collection of data assumes the right to question individuals of
their status. Proposition 1 provides no limits on when a law enforcement officer, or for
that matter any employee of the city of Spokane, can question others about citizenship
status. Spokane Police Department policy and Spokane city ordinances already allow
police officers to question those reasonably suspected to be committing a crime by
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returning to the United States unlawfully after being deported. If law enforcement
officers can already question those for whom probable cause of this federal felony exists,
one wonders under what circumstances city employees will seek information from other
city residents about their status when no probable cause exists. We do not expect law
officers to ask everyone encountered as to his or her status. Our extensive reading of
literature and case law teaches, however, that, without any guidelines, some officers will
inevitably target those persons who look foreign or speak a different language, regardless
of citizenship, for questioning. The practice of questioning some and not others leads to
racial profiling. During oral argument, Respect Washington agreed that asking one his or
her immigration status or citizenship status can be racial profiling under some
circumstances. Wash. Court of Appeals oral argument, Global Neighborhood v. Respect
Washington, No. 35528-4-III (Oct. 23, 2018), 34.55 to 35.15 (on file with court).
As noted in Parada v. Anoka County, 332 F. Supp. 3d 1229 (D. Minn. 2018):
A substantial number of Latinos−both U.S. citizens and foreign-born
residents—are less likely to contact the police or report crimes, even when
they are victims, because they fear that police will inquire about their
immigration status. While the U.S. immigrant population is extremely
vulnerable to crime, police mistrust is common within immigrant
communities. In Minnesota, law-enforcement agencies fear that the
immigrant community’s distrust of police results in increased crime against
immigrants and decreased reporting of such crimes.
332 F. Supp. 3d at 1235-36 (footnotes omitted) (citing NIK THEODORE, INSECURE
COMMUNITIES: LATINO PERCEPTIONS OF POLICE INVOLVEMENT IN IMMIGRATION
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ENFORCEMENT 5-6 (2013); Mai Thi Nguyen & Hannah Gill, Interior Immigration
Enforcement: The Impacts of Expanding Local Law Enforcement Authority, 53 URB.
STUD. 14-16 (Feb. 2016); Jill T. Messing, et al., Latinas’ Perception of Law
Enforcement: Fear of Deportation, Crime Reporting, and Trust in the System, 30 J.
Women & Soc’y. 328, 330 (2015); INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE,
POLICE CHIEFS GUIDE TO IMMIGRATION ISSUES 28 (2007); Sam Torres & Ronald E.
Vogel, Pre and Post-Test Differences Between Vietnamese and Latino Residents Involved
in a Community Policing Experiment: Reducing Fear of Crime and Improving Attitudes
Towards the Police, 24 POLICING: INTERNATIONAL J. POLICE STRAT. & MGMT. 40, 53
(2001)).
A police chief or sheriff deputy deserves the opportunity to adopt administrative
policies deemed best for his or her jurisdiction in combatting crime, protecting victims,
and allocating limited law enforcement resources. One city police department, in
furtherance of an administrative policy of strict enforcement of all law, may liberally
direct its officers to question about immigration status. Another city police department,
pursuant to other legitimate law enforcement concerns, may direct its line officers to
strictly limit questioning of citizenship status. The populace and law enforcement
sometimes criticize persnickety courts and the legislature for micromanaging methods of
law enforcement. Proposition 1 would further micromanagement.
Washington case law recognizes as a separate exception to the power of a local
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government, to adopt an initiative, a proposal that conflicts with federal or state law.
Spokane Entrepreneurial Center v. Spokane Moves to Amend Constitution, 185 Wash. 2d at
108; Coppernoll v. Reed, 155 Wash. 2d at 299; Seattle Building & Construction Trades
Council v. City of Seattle, 94 Wash. 2d at 746 (1980). This rule fulfills the principle of
primacy of federal and state over local law. Nevertheless, sometimes the separation
between this exception borne of conflict of law blurs with the exception based on
administrative measures or policies. Administrative acts include acts that result from
governmental powers properly assigned to the executive department and necessary to
carry out legislative policies and purposes already devolved on a municipal body by the
law of the state. In re Referendum Petition to Repeal Ordinance 04-75, 388 N.J. Super.
405, 908 A.2d 846, 850 (2006), aff’d [and judgment modified], 192 N.J. 446, 931 A.2d
595 (2007). When a municipal government complies with and places into execution a
state or local legislative mandate in adopting an ordinance, the municipality exercises a
ministerial and administrative function not subject to referendum. In re Referendum
Petition to Repeal Ordinance 04-75, 908 A.2d at 851. Therefore, if a proposed initiative
covers a direction from state law but conflicts with that direction, the initiative might also
be considered administrative in nature.
As indicated in the opening of the factual section, RCW 43.101.410 precludes law
enforcement agencies from racial profiling. Racial profiling of any kind is anathema to
our criminal justice system. Chavez v. Illinois State Police, 251 F.3d 612, 635 (7th Cir.
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2001). Global Neighborhood also forwards RCW 10.40.200(1), which prohibits the
collection and dissemination of immigration information during the plea stage of a
criminal proceeding. Proposition 1 would place city employees, such as city prosecutors
and public defenders, in a situation that conflicts with the statute.
The current Spokane Police Department policy limiting questioning of individuals
about immigration status and citizenship status also fulfills strictures of federal law.
Under federal constitutional law, an officer may not rely solely on the appearance of an
individual in questioning about immigration status. United States v. Montero-Camargo,
208 F.3d 1122, 1131-32 (9th Cir. 2000). Instead questioning must be based on individual
suspicion. United States v. Montero-Camargo, 208 F.3d at 1133. Proposition 1 would
allow an officer to approach anyone of his or her choosing on the street and ask the
person as to his or her immigration or citizenship status.
A law enforcement officer does not breach the Fourth Amendment when the
officer’s questioning of a detainee’s immigration status does not prolong the stop.
Muehler v. Mena, 544 U.S. 93, 101, 125 S. Ct. 1465, 161 L. Ed. 2d 299 (2005).
Nevertheless, a law enforcement officer violates one’s rights by delaying one’s release
from a stop in order to ascertain the detainee’s immigration status. Illinois v. Caballes,
543 U.S. 405, 407, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005). One wonders how a law
enforcement officer can inquire about one’s immigration status without prolonging the
stop when inquiring about the status necessarily prolongs the detainment.
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An individual's race, standing alone, is not an appropriate factor for assessing
reasonable suspicion in the immigration enforcement setting. United States v. Salinas,
940 F.2d 392, 394 (9th Cir. 1991). An individual's difficulty in speaking English also
does not constitute a valid race-neutral basis for initiating an immigration investigation.
Farm Labor Organizing Committee v. Ohio State Highway Patrol, 308 F.3d 523, 539
(6th Cir. 2002). The Equal Protection Clause prohibits a police officer from selecting one
for a consensual interview solely on the basis of the person's race. Farm Labor
Organizing Committee v. Ohio State Highway Patrol, 308 F .3d at 539.
CONCLUSION
We affirm the superior court's grant of an injunction precluding the placement of
Proposition 1 on the ballot for a vote by Spokane voters.
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No. 35528-4-III
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Appendix
APPENDIX
We list in reverse chronological order and tersely discuss Washington cases that
address the validity of an initiative and that inform our decision.
In Protect Public Health v. Freed, No. 95134-9 (Wash. Dec. 6, 2018), the
Supreme Court held that a proposed initiative to ban public funding for community health
engagement sites went beyond the scope of the local initiative power. The sites would
afford a safe location for injecting drugs. The initiative interfered with the budgetary
authority of the King County Council. RCW 36.40.080 and .250 granted to the county
council the authority to fix each item of the budget. RCW 70.12.025 directed each
county legislative authority to annually budget and appropriate sums for public health.
In Port of Tacoma v. Save Tacoma Water, 4 Wash. App. 2d 562 (2018), a political
committee submitted two initiative petitions. One initiative proposed an amendment to
the Tacoma City Charter and the other sought to enact a new municipal ordinance. The
two initiatives contained similar text that would require a vote of Tacoma residents
before the city extended water service to applicants seeking at least one million gallons of
water daily. Corporations that violated the provisions would be deemed nonpersons. The
Court of Appeals denied the measure a vote on the basis that the proposition was
administrative and conflicted with state law. The Tacoma Municipal Code already
outlined a process for applications for water service. The initiative would impose
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Appendix
additional application requirements on certain large users. A state statute required that a
municipal water supplier provide retail water service under certain conditions. The
initiative would deny service to some potential customers under additional circumstances.
In Spokane Entrepreneurial Center v. Spokane Moves to Amend Constitution, 185
Wash. 2d 97 at 101, 110 (2016), the state high court held a local measure that would require
any proposed zoning changes involving large developments to be approved by voters to
be contrary to established water rights system and thus administrative. The court
declared the initiative invalid.
City of Longview v. Wallin, 174 Wash. App. 763 (2013), the city brought an action
for a declaration that the ballot initiative proposing restrictions on the use of traffic safety
cameras was beyond the scope of the local initiative power. This court agreed. A state
statute expressly delegated to the city legislative authority, rather than the city as a whole,
the power to adopt such camera systems.
In American Traffic Solutions, Inc. v. City of Bellingham, 163 Wash. App. 427
(2011), this court held a proposed initiative exceeded the scope of the local initiative
power. The initiative sought to prohibit the use of automated traffic safety enforcement
cameras. A state statute expressly delegated to the city legislative authority the power to
adopt such camera systems. Remarkably, the court refused to grant the initiative
challengers injunctive relief to prevent a vote on the initiative. The court reasoned that
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Appendix
the challengers were not injured by the adoption of the initiative because its adoption
would be void. This decision might be distinguished from City of Longview v. Wallin in
that the challenger in Wallin was the city who needed to incur the expense of the ballot
election.
In City of Port Angeles v. Our Water-Our Choice!, 170 Wash. 2d 1 (2010), the
Supreme Court declared an initiative attempting to reverse implementation of a city water
fluoridation program to be administrative. The court emphasized that the city council’s
decision to fluoridate potable water was made pursuant to an existing water management
plan and detailed state administrative regulations governing water. Both state and federal
government promulgated water regulations.
In Futurewise v. Reed, 161 Wash. 2d 407, 166 P.3d 708 (2007), challengers sought
declaratory and injunctive relief to prohibit the Washington Secretary of State from
placing, on the general election ballot, Initiative 960 (I-960), which if enacted would
amend state statutes to require two-thirds legislative approval or voter approval for the
raising of taxes. The initiative would also require advisory votes on tax increases enacted
without voter approval. The Supreme Court denied relief. A unanimous court held that
the initiative was not subject to preelection review on the ground that, if enacted, it would
conflict with, and therefore improperly “amend,” the state constitution without complying
with procedures for amending the state constitution.
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Appendix
In City of Sequim v. Malkasian, 157 Wash. 2d 251 (2006), the Supreme Court
precluded placement on the ballot an initiative that would impose additional requirements
on revenue bonds. The pertinent statutory scheme assigned authorization for issuing
revenue bonds to the city council.
In Coppernoll v. Reed, 155 Wash. 2d at 293 (2005), the Supreme Court addressed a
statewide initiative that would restrict noneconomic damages in claims for negligent
healthcare to $350,000, shorten time limits for filing suit, and limit attorney fees for
claimants. Challengers to the initiative claimed the initiative to be unconstitutional under
settled Washington law. The court refused to address the constitutionality of the
initiative. The court also deemed the initiative to be within legislative powers in that it
addressed a general subject matter that being causes of action and the practice of law.
In Maleng v. King County Corrections Guild, 150 Wash. 2d 325, 76 P.3d 727 (2003),
the King County prosecutor filed suit to enjoin the placement on the ballot of a proposed
initiative to reduce the size of the county council. The court held the process of
amending a city charter to be legislative in character and thus subject to an initiative.
In Priorities First v. City of Spokane, 93 Wash. App. 406, 968 P.2d 431 (1998), a
political action committee petitioned for a writ of mandamus directing the city of
Spokane to place on the ballot an initiative that would require the city to obtain voter
approval before pledging parking meter revenue to fund a parking garage. This court
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Appendix
denied relief because the initiative conflicted with the authority delegated by state statute
to a city’s legislative body.
In Snohomish County v. Anderson, 123 Wash. 2d 151, 868 P.2d 116 (1994), the court
stopped an initiative that would impact a county’s planning scheme. The court observed
that RCW 36.70A.210(2) authorized the county legislative authority to adopt countywide
planning policy.
In Heider v. City of Seattle, 100 Wash. 2d at 876 (1984), the Supreme Court held a
proposed change of a city street name to be administrative in nature and thus not a proper
subject for an initiative. The court deemed the first test of legislative versus
administrative helped little since a street name change is of a permanent character and not
general in character. Also, the change could be deemed as “‘special’” but not
“‘temporary.’” The second test helped, however. The name change ordinance merely
amended Seattle’s comprehensive street names ordinance. Therefore, the ordinance
should be characterized as administrative, since it was enacted pursuant to a plan already
adopted by the legislative body itself.
In Citizens for Financially Responsible Government v. City of Spokane, 99 Wash. 2d
339 (1983), the city passed an ordinance enacting a business and occupation tax.
Through a referendum, city citizens sought repeal of the tax. When conducting the
administrative versus legislative analysis, the court analyzed whether the original
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ordinance enacting the tax was administrative. The court did not analyze, as most other
case law does, whether the citizens’ referendum was administrative in nature. The court
ultimately concluded that the city ordinance was legislative in nature and subject to
referendum. In reaching this conclusion, the court noted the city ordinance could not be
viewed as an execution of policy already in existence. Rather, the court viewed the
ordinance as setting a new policy. The ordinance never referenced a policy already in
existence.
In Ballasiotes v. Gardner, 97 Wash. 2d 191 (1982), Pierce County adopted an
ordinance that converted the existing lever machine voting equipment to punch card and
computer tabulating voting equipment. The ordinance affirmed a previous decision made
by the executive power of the county to change to a punch card system. Nevertheless, the
county council ordinance declared it to be the policy of the county to implement the
punch card system. Citizens sought a referendum to return the county to the lever
machine system. The Supreme Court held the measure to implement a punch card voting
system to be “legislative” in character and referendable. Affirming an executive decision
did not render the decision administrative. The court also held that the act of funding the
new punch card system was legislative in character.
In Seattle Building & Construction Trades Council v. City of Seattle, 94 Wash. 2d
740 (1980), the Supreme Court held that a proposed city initiative that sought to prohibit
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expansion of Interstate 90 facilities on a lake went beyond the scope of the initiative
power. A state statute declared the interstate highway a state route. The State held title
to the highway and assumed full jurisdiction, responsibility, and control of the roadway.
A city held power over a state highway only to the extent authorized by the state
legislature. Thus, any such powers constituted administrative powers.
In Leonard v. City of Bothell, 87 Wash. 2d 847 (1976), citizens sought to compel a
referendum election on a municipal ordinance that would rezone property from
agricultural to community business and would modify the city’s comprehensive plan to
allow a regional shopping center. The Supreme Court held that the ordinance was
administrative in nature and not subject to referendum election. The municipality acts in
a legislative capacity when adopting a zoning code and a comprehensive plan, but in an
administrative capacity when enacting amendments to the zoning code or rezones and
amendments to the comprehensive plan because the municipality then implements the
earlier plans. Also, a rezone is quasi-judicial in character and thus not subject to a
referendum. Finally, under statute the legislature granted to the city council, not the
municipality as a whole, the power to adopt and implement zoning.
In Ruano v. Spellman, 81 Wash. 2d at 825 (1973), the King County Council voted to
build a county stadium and sold bonds to finance the construction. Citizens filed an
initiative to repeal the resolution authorizing the project, to revoke the bonds to finance it,
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and to prohibit spending funds for further development. The Supreme Court noted that,
while the original decision to build the stadium was legislative, all that remained was for
the county and its agents to execute an already adopted legislative determination. Under
these facts, the court held only administrative decisions remained in connection with the
stadium project, decisions not subject to the initiative process.
In State ex rel. Guthrie v. City of Richland, 80 Wash. 2d 382, 494 P.2d 990 (1972),
the city of Richland adopted an ordinance that extended its water and sewer system to
annexed land and issued bonds to pay for the extension of the system. Citizens then
sought a referendum to overturn the ordinance, but the city clerk refused to validate the
petitions for the referendum. The Supreme Court denied a writ of mandamus directing
the city to submit the referendum to a vote. The court held that an ordinance providing
for additions, betterments, and extensions to a municipally owned waterworks, financed
by revenue bonds, was not subject to a referendum vote. A statute delegated to the
governing body of the city the authority to construct and finance a sewer and water
works.
In Durocher v. King County, 80 Wash. 2d 139 (1972), the King County Council
granted companies an unclassified use permit with conditions for a tract of land.
Thereafter, the council decided to submit the issuance of the permit to the voters in a
referendum. The Supreme Court held the issuance of a use permit to be administrative
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primarily because the Washington Constitution and King County Charter delegated the
power to issue the permits to the county council.
In Paget v. Logan, 78 Wash. 2d 349, 474 P.2d 247 (1970), the Supreme Court held
the selection of a public stadium site constituted a legislative rather than administrative or
executive act. The court emphasized that a statute declared the acts of locating,
financing, constructing, and operating public stadium facilities to be for public purposes
and another statute conferred the power of eminent domain on the county to accomplish
the public purpose. Significant and inherently legislative problems revolving about
streets, traffic, parking, public transportation, utilities, and service facilities become
necessarily entwined and interrelated with the choice of any given site. Challengers to
the initiative argued that rendering the stadium site selection a legislative rather than an
administrative function would frustrate the efficiency of government and promote endless
debate and indecision with respect to finalizing any chosen site. The court qualified its
ruling by noting that, at some point in time, a proposed stadium project might progress to
a point when only administrative decisions will remain to complete the project such that
any initiative measures concerning site selection would be inappropriate.
In State ex rel. Linn v. Superior Court for King County, 20 Wash. 2d 138, 146 P.2d
543 (1944), the court adopted the rule that amending a city charter is legislative in
character and may be the subject of a referendum. The court, however, denied the
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proponents of the initiative a writ directing the county to place the initiative on the ballot
since the proponents had not followed the correct process.
In State ex rel. Payne v. City of Spokane, 17 Wash. 2d 22, 134 P.2d 950 (1943), the
city of Spokane fire chief sued to compel city commissioners to submit to voters a
proposed initiative to increase the pay of members of the fire department. The Supreme
Court held the fixing of salaries to be a legislative function and subject to an initiative.
The city charter placed the fixing of salaries under an article devoted to “Administration
of City Affairs.” This classification was not controlling because the courts, not the city,
determine the nature of the task.
In State ex rel. Pike v. City of Bellingham, 183 Wash. 439 (1935), the Supreme
Court held the fixing of salaries of firefighters and police officers to be legislative in
nature. Thus, an initiative could establish those salaries.
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