Judgment Day

by: Posted on: September 08, 2013

A Court Ruling and Changes to the Initiative Process Raise Questions about the People’s Right to Petition

By Heidi Groover, The Pacific Northwest Inlander

August 28, 2013. Onlookers kept whispering, “It looks like a wedding,” with each family on one side of the aisle.

On the left, in dark colors and suit jackets, were lawmakers and business advocates. Across the aisle, spilling into seats normally reserved for a jury, local activists in plain clothes braced for defeat. In the stuffy room at Spokane County Superior Court, the group watched a tepid legal back-and-forth that lasted barely longer than an hour, but, some say, was the latest in a series of blows to citizen involvement in local government.

“What you saw on Friday was one of several hammers used to pound us back into submission,” says Brad Read, board president of Envision Spokane, one of two groups whose initiatives were blocked from the ballot last week.

Envision’s Community Bill of Rights would expand neighborhood powers over development, workers’ rights and protections for the Spokane River. The second initiative, from Spokane Moves to Amend the Constitution, would have outlawed corporate contributions to local campaigns and mandated that any conversations between elected officials and employees of corporations happen in public meetings — with criminal punishments for those in violation.

The challenge to the initiatives came from a coalition of county leaders, City Council members Steve Salvatori, Mike Allen and Nancy McLaughlin, and business interests, including Greater Spokane Incorporated, the Downtown Spokane Partnership and the Spokane Home Builders Association. In a motion filed with the court, the group’s attorney, Rob Maguire, wrote that the initiatives attempted to “usurp authority delegated exclusively to local and county legislative authorities; and/or criminalize constitutionally protected speech.”

Last week, the judge agreed. Barring a successful appeal from either group (SMAC says it won’t try; Envision will), the measures won’t appear on the November ballot.

Attorneys from Envision and SMAC fought to distinguish their initiatives, though the challenge tied the two together in ways they weren’t during signature gathering or early campaigning. Envision’s Michael Whipple told Superior Court Judge Maryann Moreno his clients were “bringing up issues that would not be heard otherwise” and warned of “disastrous” results if she blocked them from the ballot. Challenges like this, he argued, should come after the election when new laws have actually been created, instead of as part of speculation before a vote. Terry Sawyer, representing SMAC, argued his clients’ measure was within the scope of city power because cities can, and have, set their own campaign spending caps, and have the right to use time and place restrictions on free speech.

“If you can do some, you can do more,” Sawyer said. “If you can do more, you can do all.” But the judge’s focus was narrow. Moreno told the sponsors she admired their advocacy, but believed they were overstepping their bounds. She said the measures exceeded city initiative powers by attempting to regulate areas, like the environment, already governed by state and federal law, or restricting First Amendment rights by limiting speech and campaign contributions, which the Supreme Court has protected.

Precedents for the case are mixed. Both sides cited cases in Washington where governments or corporations challenged citizen initiatives to keep them off the ballot. In Philadelphia II v. Gregoire, the Washington Supreme Court used a twoprong test to determine that a measure which would have established a federal initiative system and “world meeting where representatives from participating countries will discuss global issues” exceeded the scope of state initiative power. To be valid, the court wrote, the initiative “must be legislative in nature and enact a law that is within the state’s power to enact.” But in that case and later in Coppernoll v. Reed, the court said it could not rule on the constitutionality of a proposed initiative (in that case, one that would have restricted claims for negligent health care). So the fine line falls between a court interpreting scope and judging constitutionality.

Open Hostilities

In another hearing on the local initiatives last month, as proponents argued voters should be able to voice their opinions even if the measures would be found illegal or unconstitutional in a post-election challenge, Maguire shot back.

“The ballot is not about sending messages,” he said. “It’s about enacting laws.”

In Spokane, some say, that may be especially true. Changes to the local initiative process over the past two years have added city attorneys and a hearing examiner to the citizen-led process, causing some to predict a chilling effect on future initiatives.

“I’m unaware, really, of a city with more apparent hostility to initiatives than Spokane,” says local attorney Breean Beggs, who represented the group No-Coal Bellingham in a case concerning a Community Bill of Rights there, which would have outlawed any corporation from transporting coal through the city and was blocked by a judge after the city and BNSF Railway Co. sued. Beggs says last week’s ruling won’t amount to a precedent for future initiative challenges in Spokane unless the decision is upheld on appeal, but could add to a perception of hostility.

The stripped-down direct democracy of the initiative process is a point of pride in Washington, one of the first states to adopt it and one that has since been a testing site for new laws, attracting national money and interest. In Spokane and other chartered cities across the state, citizens are given initiative power at the local level in which, if enough of their fellow citizens agree, they can address their frustration with their elected representation at the ballot box.

Before last spring, initiative sponsors in Spokane had two choices for filing their ballot measures: file directly — turn the initiative in to the city and start collecting signatures — or ask the city attorney’s office for help drafting the measure to be sure it was legal, says Spokane City Council legal counsel Mike Piccolo. In a move first proposed after Envision’s initial attempt at the Community Bill of Rights and finally passed last year, the City Council got rid of the first option. (This year, Envision and SMAC filed before the new rules took effect, so it’s yet to be seen exactly how the new rules will play out.) Today, as a result of the rule changes, the city attorney writes ballot titles and summaries before proponents can start collecting signatures, and the city drafts a fiscal impact statement to estimate the law’s cost before the election. This year, the council tweaked the process again to task a hearing examiner — instead of the city attorney — with a legal review of each initiative. If the examiner finds an initiative illegal, the decision is made public, but proponents can still gather signatures.

“My analysis of the changes is they are not game-changers,” Beggs says, “but behind them is a hostility to the citizens petitioning their government for change.” McLaughlin says the initial changes were a direct response to Envision. Before the group emerged, she says there was “no question” that if an initiative got enough signatures, qualified for the ballot and passed, the city would make it law.

“Things changed with Envision’s first initiative,” she says.

“The concern was this is creating new rights and taking away other people’s rights given at a much higher level [than city government]. We don’t think this is even legal.”

Councilman Jon Snyder, along with every other councilmember, opposes both initiatives based on their content. But he didn’t support last year’s changes to the process or a city-led court challenge this year.

“The problem is it’s become a gray area, where under the guise of trying to find out the validity, we grant the council and the city powers to stifle subjects or initiatives that they just don’t like,” he says. “That’s an area I don’t want to see us getting into.”

Unlikely Alliances

The fight over initiative power has forged some unlikely alliances. Conservative anti-tax activist Tim Eyman has testified and sent out mass emails in support of local initiatives, including Envision’s, despite his opposition to the laws they would actually create. At the state level, he’s pushing for Initiative 517, which would guarantee that any state or local initiative that gathers enough signatures would appear on the ballot.

Since the ruling last week, Eyman, Salvatori and McLaughlin have been sparring in an email chain addressed to a list of local media. Eyman called the initiative process an “empty promise” if measures could be blocked from the ballot by “politicians and special interest groups.”

“SMAC and Envision were not taken off the ballot to curtail citizen rights,” Salvatori shot back. “They were taken off because they would interfere with previously granted rights. And they were not found invalid by critics, power brokers or The Man, they were found to be beyond the scope of local initiative by a judge.”

Ask initiative proponents and they’ll paint a picture of a broad power structure bent on suppressing citizen input. It’s a structure that includes politicians and courts, they say. So while they fought to keep their measures on the ballot, their reactions to the ruling are barely tinged with surprise. It’s just the way this system is set up, they say.

It’s an irony that Envision’s Read acknowledges: using a system you believe is broken to try to bring change to the very same system. But he likens his group to abolitionists or women who fought for the right to vote, spending years fighting before succeeding. They’re not going away, he says.

In fact, the challenge and loss may have brought more attention to both fights, and the groups are looking to capitalize on that. Envision will rally support under the banner of losing to the city’s elite, while SMAC members say they plan to focus on gathering signatures for a 2014 statewide initiative calling for a U.S. constitutional amendment limiting corporate campaign spending.

“What we were doing locally, I believe, was trying to wake people up a little bit about how the public has become sidelined in our democratic process,” says SMAC member Pam Larratt. “Things just happen, and we go along with them.”


Copyright, The Pacific Northwest Inlander. Reprinted with permission.

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