Washington State Supreme Court Guts Local Ballot Initiative Process

by: Posted on: March 01, 2016

Editor’s Note: In recent years, citizens’ law making power through local and state ballot initiative processes has been on the receiving end of numerous attacks across the country. Increasingly, states’ preemption of local employer, fracking and other laws has been used as an excuse to refuse local citizens’ power to even propose local ballot measures. This is unprecedented. Local citizens are told by courts that because their local government technically does not have authority over minimum wage, fracking or employer law, for example, they—the local citizens—are not allowed to even vote on a related citizen ballot initiative. The success of this legal argument however is precarious, as it flies in the face of established legal doctrine that holds that the legality of ballot initiatives be determined after citizens vote. State ballot initiative processes are also under attack, but that story will have to wait.

In Washington State, a battle over the local initiative process has been brewing for years. Spokane residents’ efforts to place “Community Bill of Rights” on their ballot have received repeated challenges, culminating in a February, 2016 Washington State Supreme Court decision that will have far-reaching implications for the local initiative process across the state. The following is a statement by the Community Environmental Legal Defense Fund (CELDF) in response to the decision. CELDF is the law firm that represented the Spokane petitioners in the case. Their statement details the history and significance of the WA Supreme Court’s decision and hints at other places where the firm—which assists local governments in drafting and defending “Community Bills of Rights”—has encountered similar attacks to the local initiative process.

 


SPOKANE, WASHINGTON: On February 4, 2016, nearly three years after the Spokane “Community Bill of Rights” citizen initiative qualified for the ballot, the Washington State Supreme Court ruled that the interests of corporations outweigh the democratic authority of the people of Spokane to vote on the measure.

The high court’s decision reversed a 2015 appeals court ruling, which reinstated the Community Bill of Rights to the ballot. This ruling – for corporations and against direct democracy – adds to a growing pattern across the country of corporate interference into not just how we vote, but whether we can vote at all.

In 2011, a nearly identical version of the Community Bill of Rights was qualified for the ballot in Spokane.  It very narrowly missed being adopted by voters.  Corporations sued to prevent voters from having another opportunity to vote on the initiative, acknowledging that if the people of Spokane voted again on the Community Bill of Rights that it would pass.  They used this as justification to take legal action.

The Washington State Supreme Court ruled that the interests of corporations outweigh the democratic authority of the people of Spokane to vote on the measure.

The Community Bill of Rights would have secured rights for residents to be the decision-maker over large development, greater protections for the Spokane River and aquifer, and free speech rights for workers.  As well, it would have limited corporate “rights” when they conflicted with community rights.

This latest denial of the right to vote follows on the heels of an Ohio Supreme Court decision last year, which blocked people from voting on three county-level community rights initiatives, all focused on the oil and gas industry. These rulings in Washington and Ohio come as part of a growing effort by corporations across the U.S. – from Oregon to Colorado, to California, Pennsylvania, and other states – to stop communities from advancing local rights through the initiative process.

Over the past three years in Oregon, corporations have interfered with the citizen initiative, to prevent community members from even beginning the process of qualifying measures for the ballot. Industry in Oregon is now attempting to manufacture new judicial rulings that would quash any use of the people’s “direct democracy” authority to rein in corporate power.

In Oregon, communities are seeking to use their direct democracy authority – whereby they can directly propose and enact law through the citizen initiative process – to address corporate practices such as GMOs and pesticide spraying, as well as fossil fuel shipments.

In Washington State, the Supreme Court’s recent decision ultimately echoed the original trial court’s decision to block the people of Spokane from voting on the Community Bill of Rights initiative. In its decision, the Court agreed with the corporate plaintiffs that the measure would cause them “harm” by, for example, having to undergo an additional zoning review for large development.  In the words of the Court, the corporate plaintiffs would experience injury in such cases, “Regardless of whether these harms might be justified or offset by other societal benefits.”

In addition, the ruling rested on the substance of the initiative, saying that it exceeded both what an initiative can bring forward, as well as what the local government could enforce. The Court’s decision goes against 100 years of judicial precedent, where the courts have restrained themselves on questions of legality or constitutionality until after a measure is voted on and adopted by the people.

The ruling supersedes the right of the people to make law that controls corporate behavior.

“The court made a political ruling not a judicial one,” said Brad Read, president of Envision Spokane, proponents of the Community Bill of Rights.  “With this decision the Court has declared open season on any community in Washington that challenges corporate power.” Read further explained, “It’s plain and simple, the corporations and the courts have violated our right to local community self-government, and it’s from this ground that community rights will continue here in Spokane.”

Envision Spokane filed a motion to reconsider with the Washington Supreme Court on February 24th. The brief asserts that the Court’s decision violates the people’s right of local community self-government.  There is no set date for a reply from the Court.

 

Photo: Wikimedia Commons


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