Vous êtes sur la page 1sur 17

1

2
3

IN THE SUPERIOR COURT OF WASHINGTON


IN AND FOR YAKIMA COUNTY

TONY SANDOVAL, a Washington resident, Case No.: 09-2-01619-3


Plaintiff,
vs.
PETITION FOR A
CITY OF YAKIMA, a Washington municipal WRIT OF MANDAMUS
corporation. OR FOR INJUNCTIVE RELIEF
Defendants

INTRODUCTION

COMES NOW the Plaintiff, TONY SANDOVAL, through his undersigned attorney, and

brings this claim for declaratory judgment pursuant to RCW 7.24 regarding the powers and

duties of the Yakima City Council to place charter amendments on the ballot upcoming

elections, along with corresponding injunctive relief. Plaintiff is a life-long Yakima resident who

collected signature and campaigned in favor of the charter amendment, and makes the following

allegations is support of his claim:

II. PARTIES

2.1 Plaintiff, TONY SANDOVAL, is a Yakima resident who collected signature and

campaigned in favor of the charter amendment

2.2 Defendant, CITY OF YAKIMA, is a municipal corporation organized and existing as a

First Class City under the laws of the State of Washington.

Schoenrock Law
6 South 2nd Street, Suite 903
Complaint for Declaratory Judgment - 1 Yakima, WA 98901
509.728.3901
tim@schoenrocklaw.com
1
2
3
2.3 Potentially Interested Party Central Washington Progress civic engagement organization

located in Yakima and primarily responsible for generating and submitting the charter

amendment at issue. (The amendment is attached as Exhibit A.)

III. JURISDICTION AND VENUE

3.1The Court has jurisdiction pursuant to RCW 7.24, Civil Rule 65, and Article XI, Section 10

of the Washington State Constitution. Venue is also proper in Yakima County Superior

Court.

IV. FACTS

4.1Prior to April 14, 2009, Yakima City Council officially decided to study the possibility of

implementing Yakima County's policies and procedures for budgeting.

4.2On April 14, 2009, the City convened a regularly scheduled meeting regarding the City

budget. Part of the scheduled agenda for the meeting was a discussion about the

possibility of adopting Yakima County's budget policy and procedures.

4.3Instead of having such discussion, Councilman Rick Ensey opened the meeting by saying:

“I'm gonna make this short and simple, I have a motion to immediately adopt the

county's policies and procedures on their budget.”

4.4In an interview with KIMA-TV news reporter Melissa Wagner, Councilman McClure

alleged that Respondent Rick Ensey orchestrated the majority vote with the help of co-

Respondents Bill Lover, Kathey Coffey, and Micah Cawley before the public meeting

so that he was sure that he had the commitment of enough votes to guarantee the

success of his motion.

Schoenrock Law
6 South 2nd Street, Suite 903
Complaint for Declaratory Judgment - 2 Yakima, WA 98901
509.728.3901
tim@schoenrocklaw.com
1
2
3
4.5In a separate recorded interview with Ms. Wagner, Respondent Rick Ensey admits to

talking privately with fellow Council members and co-Respondents Bill Lover, Kathy

Coffey and Micah Cawley prior to the public meeting that was specifically designated

for discussion of the topic. A section of the interview proceeds as follows:

Melissa Wagner: “So does this then become your mission, to do what you want to do
regardless what other council members want to do?”
Rick Ensey: “Well, I don't know if it's my mission because I didn't start it. Bill has
been the one looking to change the budget system since he's been on
council, Micah Cawley is the same way, Kathy Coffey has wanted to do
this for the 2009 budget, so it's been going on for a long time. It's just no
one's taken the initiative to get it moving, and I decided if I've got three
other people then I'm going to do it.”
4.6 In his own separate interview with Ms. Wagner, Respondent Bill Lover also
admits to violating the law by having worked for some time to persuade and
solidify the necessary votes through private conversations with fellow Council
members, thereby avoiding the possible complication that might come with open
public meetings. Respondent Lover states: “This wasn't an absolute blind side.
Maybe council member McClure thought there'd be more study but that was the
problem with some of us - more study would put it off for another year.”
4.7 On Sunday April 7, 8, 12, 2009, through a series of emails either sent or received by
Respondent Rick Ensey, the collusion between Rick Ensey, Kathy Coffey, Micah Cawley, and
Bill Lover, along with private citizen and non-Respondent Bruce Smith, is readily apparent.
Exhibit A.
V. ARGUMENT

5.1 General Law


Plaintiffs have followed all of the requirements to bring the amendment to an election
found in the Washington State Constitution, the Revised Code of Washington, and the Yakima
City Charter. The language of the charter is clearly a mandate on the Council to act when an
amendment has completed all the preparatory items it shall be placed upon a ballot in the next
scheduled election. Councils failure to follow its own procedures clearly defined in the City
Charter violates the procedural due process rights of over five hundred people who signed the
amendments.
A writ of mandamus may be issued to “compel the performance of an act which the law
especially enjoins as a duty resulting from an office.” RCW 7.16.160. A writ is appropriately
granted in cases where there is not a “plain, speedy and adequate remedy in the ordinary course
of law,” upon affidavit of a beneficially interested party. RCW 7.16.170; Paxton v. City of
Bellingham, 118 Wn. App. 439, 444, 119 P.3d 373 (2005).
Courts possess inherent power to protect individual citizens from arbitrary actions that
occur when governing statutes and policies are not followed, even though a constitutional right is
Schoenrock Law
6 South 2nd Street, Suite 903
Complaint for Declaratory Judgment - 3 Yakima, WA 98901
509.728.3901
tim@schoenrocklaw.com
1
2
3
not violated by the arbitrary actions. Williams v. Seattle Sch. Dist. No. 1, 97 Wn.2d 215, 222,
643 P.2d 426 (1982). The right of mandamus “to protect the rights, interests, and franchises of
the state, and the rights and interests of the whole people, to enforce the performance of high
official duties affecting the public at large” State ex rel. Malmo v. Case, 25 Wn.2d 118, 123, 169
P.2d 623 (1946)). In order to determine whether mandamus will lie, we must determine not only
whether the duty is discretionary, but also the authorized boundaries of discretion. Mandamus
issues to compel an officer to perform a purely ministerial duty. It can not be used to compel or
control a duty in the discharge of which by law he is given discretion. The duty may be
discretionary within limits. He can not transgress those limits, and if he does so, he may be
controlled by injunction or mandamus to keep within them. The power of the court to intervene,
if at all, thus depends upon statutory discretion. Work v. United States ex rel. Rives, 267 U.S.
175, 177, 45 S. Ct. 252 (1925).

5.2 The Open Public Meetings Act


The basic mandate of the Open Public Meetings Act (hereinafter “the Act”), RCW is simple:
government meetings must be both open and public. The Act contains a statement of purpose as
follows:
All meetings of the governing body of a public agency shall be open and
public and all persons shall be permitted to attend any meeting of the
governing body of a public agency, except as otherwise provided in this
chapter.

RCW 42.30.020(1)(b). The Act applies to “meetings” of a “governing body” of a “public


agency.” A “public agency” includes a city, county, and special purpose district. RCW
42.30.020(1)(b). A “governing body” means the multimember board, commission, committee,
council, or other policy or rule-making body of a public agency, or any committee thereof when
the committee acts on behalf of the governing body, conducts hearings, or takes testimony or
public comment.” RCW 42.30.020(1)(c). There must be a “meeting” of a governing body for the
Act to apply. Sometimes it is very clear that a “meeting” is being held that must be open to the
public, but other times it isn't. To determine whether a governing body is having a “meeting” that
must be open, it is necessary to look at the Act's definitions. The Act defines “meeting” as
follows: “’Meeting’ means meetings at which action is taken.” RCW 42.30.020(4). “Action,”
means the transaction of the official business of a public agency by a governing body including
but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews,
evaluations, and final actions. “Final action” means a collective positive or negative decision, or
an actual vote by a majority of the members of a governing body when sitting as a body or entity,
upon a motion, proposal, resolution, order, or ordinance. RCW 42.30.020(3). Since a governing
body can transact business when a quorum (majority) of its members are present, it is conducting
a meeting subject to the requirements of the Open Public Meetings Act whenever a majority of
its members meet together and deal in any way with city, county, or special purpose district
business, as the case may be. This includes simply discussing some matter having to do with
agency business. Because members of a governing body may discuss the business of that body
by telephone or e-mail, it is not necessary that the members be in the physical presence of each
other for there to be a meeting subject to the Act. Wood v. Battle Ground School Dist., 107
Schoenrock Law
6 South 2nd Street, Suite 903
Complaint for Declaratory Judgment - 4 Yakima, WA 98901
509.728.3901
tim@schoenrocklaw.com
1
2
3
Wn.App. 550, 562 (2001). Lastly, the governing body must take “final action” for a “meeting”
to fall under the Act. RCW 42.30.020(3) defines “final action” as “a collective positive or
negative decision, or an actual vote by a majority of the members of a governing body when
sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.” RCW
42.30.070; In re Recall of Roberts, 115 Wn.2d 551, 554 (1990). Wood v. Battle Ground School
Dist., 107 Wn. App. 550, 562-63 (2001). hough, at least one local government in this state has
held an online meeting of its governing body, providing notice under the Act and giving the
public the opportunity to “attend.” Id. At 564-65.
It does not matter if the meeting is called a “workshop,” a “study session,” or a “retreat”,
so long as a quorum of the board is addressing the business of the municipality, a meeting is
subject to the Open Public Meetings Act. However, if a governing body just meets socially or
travels together, it is not having a meeting subject to the Act as long as the members do not
discuss agency business or otherwise take “action.” Whenever a majority of the members of a
governing body discuss official business by telephone or e-mail, those actions can qualify as a
“meeting” subject to the Act. Wood v. Battle Ground School Dist., 107 Wn. App. 550, 562-63
(2001). Since the members of a governing body can discuss city, county, or district business
together by telephone or by e-mail so as to be taking “action” within the above definition, the
governing body can conduct a meeting subject to the Act even when the members are not in the
physical presence of one another. Id. The type of meeting may take many different forms, from a
conference call among a majority or the board to a telephone “tree” involving a series of
telephone calls, or an exchange of e-mails. Unless the public is noticed and allowed to attend
these types of “meetings,” they must be held as violating the Act. See Municipal Research and
Service Center, The Open Public Meetings Act: How it Applies to Washington Cities, Counties,
and Special Purpose Districts (2008). Based upon the language discussion of the Open Public
Meeting Act and its interpretation by the Courts, it is clear that Respondents Rick Ensey, Bill
Lover, Micah Cawley, and Kathy Coffey violated the Act by conducting meaningful discussions
about budget accounting process and procedures in the time period leading upon to the Council
meeting and vote of April 14, 2009. The discussions between Council members occurred outside
the public view, without public notice, and met none of the qualifications for a closed executive
session under the Act. Yakima City Council clearly falls under the ambit of the Open Public
Meetings Act. As such, the Council is already subject to a mandate that its “meetings” must be
open to public. The Petitioner seeks a writ from the Court compelling Yakima City Council to
comply with its preexisting mandate to follow the laws of the state while making important
decision and conducting official business.

5.3 Clear Entitlement to the Writ


As the facts demonstrate, the Yakima City Council should have at the very least held
open public meetings with discussion on April 14, 2009 as intended. Instead, Respondents
violated the Act and came to a final action of the budgetary issue through private discussions and
emails.

5.4 No Alternative Means of Relief


There is no alternative mean of relief for the violation other than the writ as is before the
court.
Schoenrock Law
6 South 2nd Street, Suite 903
Complaint for Declaratory Judgment - 5 Yakima, WA 98901
509.728.3901
tim@schoenrocklaw.com
1
2
3
5.5 Preliminary Injunction
A party seeking relief through a temporary injunction must show a clear legal or
equitable right, that there is a well-grounded fear of immediate invasion of that right, and that the
acts complained of have or will result in actual and substantial injury. Tyler Pipe Indus., Inc. v.
Department of Revenue, 96 Wn.2d 785, 792, 638 P.2d 1213 (1982). Also, since injunctions are
within the equitable powers of the court, these criteria must be examined in light of equity,
including the balancing of the relative interests of the parties and the interests of the public, if
appropriate. Id. Rabon, 135 Wn.2d at 284.

VI. RELIEF REQUESTED

6.1Petitioner seeks the issuance of a writ of mandate that the Yakima City Council shall hold
open and public hearings on the budgetary issue.
6.2Petitioner seeks that a preliminary injunction be issued forestalling the use of the
budgetary policies and procedures that were illegally approved on April 14, 2009.
6.3Petitioner seeks that an order to show cause be issued for the Respondents for May 5th,
2009 if they fail to comply with the above two conditions.
6.4All other reasonable and equitable relief as the Court shall see fit.

Dated this May 7, 2009

_________________________________________
--------- ---------
WSBA #40029

Schoenrock Law
6 South 2nd Street, Suite 903
Complaint for Declaratory Judgment - 6 Yakima, WA 98901
509.728.3901
tim@schoenrocklaw.com
1
2
3

A municipal charter governs the manner in which a city is operated. WASH. CONST., art. XI, §

10; SPOKANE CITY CHARTER § 3. It grants power to the city government. WASH. CONST.,

art. XI, § 10; SPOKANE CITY CHARTER § 4. The Spokane City Charter creates a Civil

Service Commission and grants the Commission the authority to "classify" city positions.

SPOKANE CITY CHARTER §§ 52, 53(a).

51 Wn.2d 810 (1958)


322 P.2d 763
G.W. BURNS, Appellant,
v.
JOE K. ALDERSO
38 Wash. L. Rev. 743 (1963)

Legislative Control of Municipal Corporations in Washington; Trautman, Philip

79 Wn.2d 147 (1971)


483 P.2d 1247
ROBERT FORD, Respondent,
v.
ED LOGAN

We determine that this case involves an issue of "substantial public interest" and reach the
merits. Each of the three factors weighs in favor of review. The issue is of a public nature, it
would be desirable to provide guidance to the Attorney General for future actions, and the issue
is likely to recur. Not only are these factors present, but review will also avoid a situation in
which the Attorney General could prevent initiatives from ever appearing on the ballot simply by
refusing to prepare the ballot title, knowing 392*392 that the case would be moot by the time it
was reviewed by this court. We find these reasons adequate to justify review of the substantive
issues.
Turning to an analysis of the merits of the case, we first consider whether the Attorney General
had the authority to refuse to prepare a ballot title and summary for the Philadelphia II initiative.
Schoenrock Law
6 South 2nd Street, Suite 903
Complaint for Declaratory Judgment - 7 Yakima, WA 98901
509.728.3901
tim@schoenrocklaw.com
1
2
3
Although we have not previously addressed the precise issue before us, statutory language and
analogous case law compel the conclusion that the Attorney General does not have discretion to
refuse to prepare a ballot title due to the initiative being beyond the scope of Washington's
legislative power.
The duties of the Attorney General regarding initiative ballot titles and summaries are set forth in
RCW 29.79.040:
Within seven calendar days after the receipt of an initiative or referendum measure the attorney
general shall formulate and transmit to the secretary of state the concise statement [posed as a
question and not to exceed twenty words], bearing the serial number of the measure and a
summary of the measure, not to exceed seventy-five words, to follow the statement.
RCW 29.79.040 (emphasis added).
Use of the term "shall" by the Legislature indicates that the Attorney General must prepare a
ballot title and summary regardless of the content of the initiative. The statutory term "shall" is
presumptively imperative unless a contrary legislative intent is apparent. State v. Krall, 125
Wash.2d 146, 148, 881 P.2d 1040 (1994) (quoting Erection Co. v. Department of Labor &
Indus., 121 Wash.2d 513, 518, 852 P.2d 288 (1993)). No contrary legislative intent has been
cited by the Attorney General. Furthermore, this presumption is strengthened where, as here,
other sections of the same statute contain the word "may." Krall, 125 Wash.2d at 148, 881 P.2d
1040; compare RCW 29.79.040 (Attorney General "shall" prepare title) with RCW 29.79.150
(Secretary of State "may" refuse to file initiative petition if not in proper form). There is simply
no indication that the Legislature intended the Attorney General to review the petition for its
substance.
Our determination that the Attorney General lacks discretion in preparing a ballot title and
summary is consistent with prior Washington cases. In Ballasiotes v. Gardner, we held that a
county prosecutor overstepped the bounds of his authority by refusing to prepare a ballot title for
a referendum because he believed the subject matter to be exempt from the county charter
authorizing referendums. 97 Wash.2d 191, 195, 642 P.2d 397 (1982). As here, the authorizing
statute used the term "shall" in describing the prosecutor's duties to prepare a ballot title. Id. at
195, 642 P.2d 397. See also State ex rel. O'Connell v. Kramer, 73 Wash.2d 85, 88-89, 436 P.2d
786 (1968) (holding that Secretary of State could not refuse to transmit initiative to Attorney
General); Save Our State Park v. Hordyk, 71 Wash. App. 84, 91, 856 P.2d 734 (1993) (holding
that county auditor had no authority to refuse to put an initiative on the ballot).
Moreover, the Attorney General's argument that if an initiative exceeds the scope of initiative
power, it is not an initiative at all and that the Attorney General therefore has neither the duty nor
the authority to prepare the ballot title and summary begs the question of whether the Attorney
General or the courts should be determining the validity of the proposed measure. It is true that a
court may review the substance of a proposed initiative to determine whether it exceeds the
scope of initiative power described in article II, section 1, of the Washington State Constitution.
[1] See, e.g., Seattle Bldg. & Constr. Trades Council v. City of Seattle, 94 Wash.2d 740, 746, 620

P.2d 82 (1980); Ford v. Logan, 79 Wash.2d 147, 152, 483 P.2d 1247 (1971). However, the
construction of the meaning and scope of a constitutional provision is exclusively a judicial
Schoenrock Law
6 South 2nd Street, Suite 903
Complaint for Declaratory Judgment - 8 Yakima, WA 98901
509.728.3901
tim@schoenrocklaw.com
1
2
3
function. State ex rel. Munro v. Todd, 69 Wash.2d 209, 213, 417 P.2d 955 (1966) (interpreting
article IV, section 1, of the state constitution), amended on other grounds by 426 P.2d 978
(1967); Washington State Highway 393*393 Comm'n v. Pacific Northwest Bell Tel. Co., 59
Wash.2d 216, 222, 367 P.2d 605 (1961) (interpreting article IV, section 1, of the state
constitution). Accordingly, we hold that courts, not the Attorney General, should determine
whether a proposed initiative exceeds the power reserved to the people in article II, section 1, of
the state constitution. See also Fischnaller v. Thurston County, 21 Wash.App. 280, 285, 584 P.2d
483 (1978) (holding that county auditor could reject declaration of candidacy only if not required
to interpret constitutional or statutory language), review denied, 91 Wash.2d 1013 (1979).
Finally, we note that this result accords with the majority of our sister states addressing this
issue. See Schmitz v. Younger, 21 Cal.3d 90, 577 P.2d 652, 653, 145 Cal.Rptr. 517, 518 (1978)
(describing preparation of ballot title by attorney general as purely ministerial); deBottari v.
Norco City Council, 171 Cal.App.3d 1204, 217 Cal.Rptr. 790, 792 (1985) (holding that city
council had mandatory duty to place referendum on ballot and citing other California cases
holding that city registrar, county clerk, county board of supervisors, and the secretary of state
similarly had mandatory duties) review denied, December 19, 1985; Wyman v. Secretary of
State, 625 A.2d 307, 311 (Me.1993) (holding that secretary of state had no discretion to
determine potential invalidity of initiative); Williams v. Parrack, 83 Ariz. 227, 319 P.2d 989, 991
(1957) (holding that city council had ministerial duty to place initiative on ballot); Fried v.
Augspurger, 164 N.E.2d 466, 468 (Ohio Com.Pl.1959) (stating that board of county
commissioners had mandatory duty to place referendum on ballot once sufficient, valid
signatures obtained); but see Paisner v. Attorney General, 390 Mass. 593, 458 N.E.2d 734, 737-
38 (1983) (holding that attorney general has discretion to determine whether initiative would
enact "law" before certifying petition); State ex rel. Brant v. Beermann, 217 Neb. 632, 350
N.W.2d 18, 21 (1984) (stating that secretary of state cannot pass on validity of initiative unless
the subject of the initiative is invalid or unconstitutional on its face).
This does not leave the Attorney General without recourse to prevent an initiative from reaching
the ballot. If the Attorney General believes an initiative exceeds the scope of the initiative power,
she should prepare the ballot title and summary in accordance with her statutory duty and then
seek an injunction to prevent the measure from being placed on the ballot. See Save Stanislaus
Area Farm Economy v. Board of Supervisors, 13 Cal.App.4th 141, 16 Cal.Rptr.2d 408, 412-13
(1993) (holding that public official must comply with ministerial duties even if initiative invalid;
official could then bring court action to enjoin the initiative); cf. Ford v. Logan, 79 Wash.2d 147,
483 P.2d 1247 (1971) (affirming court order to enjoin initiative from being placed on the ballot).
Because the parties have fully briefed and argued the substantive issues in detail, and the validity
of the initiative itself was the ground for the denial by the superior court of the petition by
Philadelphia II, we proceed to the substantive question of whether the Philadelphia II initiative
did in fact exceed the scope of the initiative power. Additionally, there is every reason to believe
that the Attorney General would seek an injunction if we were to remand the case. Therefore,
judicial economy compels us to address this issue here. See also deBottari v. Norco City
Council, 171 Cal.App.3d 1204, 217 Cal.Rptr. 790 (1985) (reaching merits of pre-election judicial

Schoenrock Law
6 South 2nd Street, Suite 903
Complaint for Declaratory Judgment - 9 Yakima, WA 98901
509.728.3901
tim@schoenrocklaw.com
1
2
3
review despite holding that city council had breached mandatory duty to submit initiative to
vote), review denied, December 19, 1985.
The initiative power was created in 1911 by constitutional amendment. The amendment provided
that "[t]he legislative authority of the state of Washington shall be vested in the legislature ... but
the people reserve to themselves the power to propose bills, laws, and to enact or reject the same
at the polls, independent of the legislature...." Wash. Const., art. II, § 1. Generally, courts are
reluctant to rule on the validity of an initiative before its adoption by the people. This reluctance
stems from our desire not to interfere in the electoral process or give advisory opinions. Seattle
Bldg. & Constr. 394*394 Trades Council v. City of Seattle, 94 Wash.2d 740, 746, 620 P.2d 82
(1980).
However, an established exception to this rule in Washington is that a court will review a
proposed initiative to determine if it is beyond the scope of the initiative power. Id. at 746, 620
P.2d 82 (citing, inter alia, Leonard v. City of Bothell, 87 Wash.2d 847, 557 P.2d 1306 (1976);
Ruano v. Spellman, 81 Wash.2d 820, 505 P.2d 447 (1973); Ford v. Logan, 79 Wash.2d 147, 483
P.2d 1247 (1971)). The reasoning behind the exception was stated as follows:
A fundamental limit on the initiative power inheres in its nature as a legislative function reserved
to the people.... It is clear from the constitutional provision that the initiative process, as a means
by which the people can exercise directly the legislative authority to enact bills and laws, is
limited in scope to subject matter which is legislative in nature.
Ford v. Logan, 79 Wash.2d 147, 154-55, 483 P.2d 1247 (1971).[2]
The idea that courts can review proposed initiatives to determine whether they are authorized by
article II, section 1, of the state constitution is nearly as old as the amendment itself. See State ex
rel. Berry v. Superior Court, 92 Wash. 16, 159 P. 92 (1916) (enjoining printing and distribution
of proposed initiative measure due to preamble being improper argument and not legislative in
character). Recognizing the importance of the initiative power, however, this court has allowed
for pre-election review only in rare circumstances, consistently making the distinction that while
a court may decide whether the initiative is authorized by article II, section 1, of the state
constitution, it may not rule on the constitutional validity of a proposed initiative. Seattle Bldg.
& Constr. Trades Council, 94 Wash.2d at 745-46, 620 P.2d 82. We adhere to that distinction and
review the Philadelphia II initiative only to determine whether it is authorized by article II,
section 1, of the state constitution.
Petitioners urge us to overrule Ford v. Logan and subsequent case law to hold that no pre-
election review is proper, provided that procedural requirements have been met and there is no
indication of fraud.[3] However, the rationale of the Ford court in distinguishing review of the
constitutional validity of a proposed measure and whether the measure is authorized by our state
constitution is sound and finds support among commentators and other jurisdictions. See James
D. Gordon III & David B. Magleby, Pre-Election Judicial Review of Initiatives and
Referendums, 64 Notre Dame L.Rev. 298, 313, 320 (1989) (recommending distinction and
stating that most courts allow pre-election review of procedural and subject matter limitations).
The distinction recognized by Ford allows a sensible balance between allowing a court to
prevent public expense on measures that are not authorized by the constitution while still
Schoenrock Law
6 South 2nd Street, Suite 903
Complaint for Declaratory Judgment - 10 Yakima, WA 98901
509.728.3901
tim@schoenrocklaw.com
1
2
3
protecting the initiative power from review of an initiative's provisions for possible constitutional
infirmities. We thus decline to overrule Ford and consistent cases.
As we have discussed, the initiative process is limited to acts that are legislative in nature. Ford,
79 Wash.2d at 154, 483 P.2d 1247. For example, in Ford, we held that an attempt to repeal the
King County charter by initiative was beyond the scope of permissible authority as it was more
in the nature of a constitutional amendment than the mere legislative act authorized in the state
constitution. Id. at 156-57, 483 P.2d 1247. We have affirmed Ford's reasoning numerous
395*395 times in distinguishing initiatives proposing legislative acts from those proposing
administrative acts, enjoining the latter. See, e.g., Heider v. City of Seattle, 100 Wash.2d 874,
675 P.2d 597 (1984); Ruano v. Spellman, 81 Wash.2d 820, 505 P.2d 447 (1973).
Not only must the proposed initiative be legislative in nature, but it must be within the authority
of the jurisdiction passing the measure. Seattle Bldg. & Constr. Trades Council, 94 Wash.2d at
747, 620 P.2d 82. In that case, we affirmed an injunction preventing a vote on a citywide
initiative because it conflicted with state law. Id. at 745, 748, 620 P.2d 82. We reasoned that the
initiative attempted to achieve something that was not within its power and was thus invalid. Id.
at 748, 620 P.2d 82.
Therefore, in order to be a valid initiative, Philadelphia II must be legislative in nature and enact
a law that is within the state's power to enact. With these restrictions in mind, we examine the
Philadelphia II initiative and conclude that it goes beyond the scope of Washington State
initiative power as it attempts to exercise authority that goes beyond the jurisdiction of the state.
______________-

80 Wn.2d 382 (1972)


494 P.2d 990
THE STATE OF WASHINGTON, on the Relation of George Guthrie, Appellant,
v.
THE CITY OF RICHLAND et al., Respondents.
No. 42128.
The Supreme Court of Washington, En Banc.
March 16, 1972.
Bennett & Carroll, by Richard H. Bennett, for appellant.
Donald B. Stancik, for respondent City of Richland.
Critchlow, Williams, Ryals & Schuster, by Rembert Ryals, for respondent Meadow Springs
Development Corporation.
ROSELLINI, J.
The City of Richland annexed 1,400 acres 383*383 of contiguous territory and, after making
preliminary studies, enacted an ordinance entitled:
Schoenrock Law
6 South 2nd Street, Suite 903
Complaint for Declaratory Judgment - 11 Yakima, WA 98901
509.728.3901
tim@schoenrocklaw.com
1
2
3
AN ORDINANCE specifying and adopting a system or plan of additions to and betterments and
extensions of the waterworks utility of the City, including the system of sewerage as a part
thereof; declaring the estimated cost and expense of said system or plan as nearly as may be;
providing for the issuance of "Water and Sewer Revenue Bonds, 1971," in the amount of
$1,100,000.00 to obtain the funds with which to pay the cost of carrying out said system or plan;
fixing the date, form, maturities, terms and covenants of such bonds; and providing for the
calling of bids for the sale thereof.
Within 30 days of the effective date of the ordinance, as required by the Richland city charter,
the appellant and others petitioned to have the ordinance referred. Their petitions contained the
required number of signatures, but the city clerk refused to validate them. The appellant then
sought a writ of mandamus to compel the submission of the ordinance to referendum vote, or, in
the alternative, a declaration that the ordinance was void for any one of five reasons.
The superior court heard oral arguments and granted the respondents' motion to dismiss. We
granted a request for an expedited appeal.
The one question of substance before the court is: Is an ordinance providing for additions,
betterments and extensions to a municipally-owned waterworks, financed by revenue bonds,
subject to a referendum vote?
The Richland city charter provides that all legislative ordinances are subject to the power of
referendum. The respondents successfully contended in the superior court that this provision
conflicts with RCW 35.92.070. They further argue, in support of the judgment, that the
ordinance in question is an exercise of the administrative power of the city council, rather than
its legislative power. We are of the opinion that the trial court reached the correct result upon the
first ground argued. We therefore assume, without 384*384 deciding, that the ordinance
constituted an exercise of the municipal legislative power.
The position which the appellants take in support of their right to require submission of the
measure to the voters, through the referendum procedure, is that the legislature granted to the
municipal corporation as an entity the power to improve and extend its waterworks, while it is
the position of the respondents that the power was granted to the corporate authorities.
It is concededly the general rule that where a statute vests a power in the city as a corporate
entity, it may be exercised by the people through the initiative or referendum process. State ex
rel. Haas v. Pomeroy, 50 Wn.2d 23, 308 P.2d 684 (1957). In the cited case, we held that the
power to change water rates was impliedly vested in the corporate authorities, under the
provisions of Laws of 1953, ch. 231, § 1, p. 559, and that consequently a provision of the Seattle
city charter authorizing the referendum could not be invoked.
[1] It is settled that any charter provision which has the effect of limiting or restricting a
legislative grant of power to the legislative authority or other officer of a city is invalid. Neils v.
Seattle, 185 Wash. 269, 53 P.2d 848 (1936).
As we said in Dahl v. Braman, 71 Wn.2d 720, 430 P.2d 951 (1967), the principles established by
that case and the cases cited therein are that, where there is a conflict between a general law
Schoenrock Law
6 South 2nd Street, Suite 903
Complaint for Declaratory Judgment - 12 Yakima, WA 98901
509.728.3901
tim@schoenrocklaw.com
1
2
3
enacted by the legislature and a freehold charter provision, the general law is superior to and
supersedes the charter provision; and where the general law grants authority to the legislative
authority of a city, that authority may not be exercised by the city as a corporate entity, nor is the
exercise of that authority by the legislative authority subject to repeal, amendment or
modification by the people through the intiative or referendum procedure. Accord, State ex rel.
Haas v. Pomeroy, supra.
The constitution of this state, article 11, section 10, amendment 40, dictates this result. It
provides that all 385*385 charters of municipal corporations shall be subject to, and controlled
by, general laws.
Thus it is seen that the initiative and referendum may be invoked if these procedures do not
thwart the legislative purpose. The basic principle is that the intent of the legislature must
govern, and that conflicting charter provisions must yield to that intent.
When we look to the statute under consideration here with this principle in mind, we find it
unnecessary to decide where the power to make additions, betterments and extensions was
placed by the legislature, since the procedure for the exercise of that power is provided in the act.
RCW 35.92.010 grants to cities and towns the power to construct, condemn and purchase,
purchase, acquire, add to, maintain and operate waterworks, for the purpose of furnishing the city
and its inhabitants, and any other persons, with an ample supply of water for all purposes.[1]
The procedure to be followed is set forth in RCW 35.92.070 which provides:
When the governing body of a city or town deems it advisable that the city or town purchase,
acquire, or construct any such public utility or make any additions and betterments thereto or
extensions thereof, it shall provide therefor by ordinance, which shall specify and adopt the
system or plan proposed, and declare the estimated cost thereof, as near as may be, and the
ordinance shall be submitted for ratification or rejection to the voters of the city or town at a
general or special election, except in the following cases where no submission shall be
necessary:
(1) When the work proposed is an addition to, or betterment of, or extension of, or an increased
water supply for, existing waterworks, or an addition, betterment, or extension of an existing
system or plant of any other public utility for which no general indebtedness is to be incurred by
the city or town;
(2) When in the charter of a city or town a provision 386*386 has been adopted authorizing the
corporate authorities thereof to provide by ordinance for acquiring, opening, or operating any of
such public utilities, for which no general indebtedness is to be incurred; or
(3) When in the judgment of the corporate authority, the public health is being endangered by the
discharge of raw or untreated sewage into any river or stream and the danger to the public health
may be abated by the construction and maintenance of a sewage disposal plant for which no
general indebtedness shall be incurred by the city or town responsible for such contamination.
If a general indebtedness is to be incurred, the amount and terms thereof shall be included in the
proposition submitted to the voters and such proposition shall be adopted by three-fifths of the
voters voting at such election.

Schoenrock Law
6 South 2nd Street, Suite 903
Complaint for Declaratory Judgment - 13 Yakima, WA 98901
509.728.3901
tim@schoenrocklaw.com
1
2
3
If no general indebtedness is to be incurred the proposition may be adopted by a majority vote.
Ten days' notice of the election shall be given in the newspaper doing the city or town printing,
by publication in each issue of the paper during such time.
When a proposition has been adopted, or in the cases where no submission is necessary, the
corporate authorities of the city or town may proceed forthwith to purchase, construct, and
acquire the public utility or make additions, betterments, and extensions thereto and to make
payment therefor.
(Italics ours.)
[2] This provision presents no ambiguity. It expresses a legislative intent that the initial
acquisition of a utility must be approved by the voters before the project is undertaken, except in
certain circumstances, enumerated therein. After the proposed ordinance has been submitted to
popular vote and approved, or without such submission where no such submission is required,
the corporate authorities shall have power to "proceed forthwith to purchase, ..."
To restate the statutory scheme, the proposition must be submitted to the voters in every instance
where a general indebtedness is to be incurred; the initial acquisition must be submitted to the
voters (even though no general indebtedness 387*387 is to be incurred) if there is no charter
provision giving the corporate authorities authority to provide by ordinance for acquiring,
opening or operating the utility in question, unless the corporate authorities find that the public
health is endangered and no general indebtedness is to be incurred under the plan adopted.
Proposed additions, betterments or extensions need not be submitted to the voters if no general
indebtedness is to be incurred.
Once the approval of the voters has been obtained, or without such approval if it is not required
under the statute, the corporate authorities are authorized to proceed forthwith to acquire or
construct the utility and make payment therefor. This means they are authorized to enter into
contracts and issue bonds. These are things which cannot be effectively done until it is known
that the city has authority to proceed. If the ordinance in question is subject to the referendum, its
validity cannot be assured until the period for filing petitions has expired. And, of course, if the
referendum is invoked, the authority to proceed cannot be determined until after an election is
held.
Manifestly, then, the corporate authorities cannot "proceed forthwith," as they are authorized to
do under the provisions of the statute, if the ordinance in question is subject to the referendum.
The charter provisions authorizing the referendum and the provisions of RCW 35.92.070 are in
irreconcilable conflict. Furthermore, the legislature quite obviously intended to substitute for the
referendum procedure the procedure of submitting proposed ordinances to the voters in the first
instance. According to the provisions of the statute, where the corporate authorities are required
to submit a measure to the voters, the latter have a right to approve or reject it; but where no
submission is required, the decision whether to proceed lies entirely within the discretion of the
corporate authorities.
[3] The rule that where a power is granted to the corporate entity the initiative or referendum
may be invoked, is applicable only where these procedures do not conflict with the expressed

Schoenrock Law
6 South 2nd Street, Suite 903
Complaint for Declaratory Judgment - 14 Yakima, WA 98901
509.728.3901
tim@schoenrocklaw.com
1
2
3
legislative intent. It presumes that the 388*388 legislature intended to authorize these procedures
where no contrary intent is expressed. But where, as here, the means of exercising the power
given are expressly set forth in the statute, there is no room for such a presumption.
The appellant relies upon, and his position is supported by the decision of this court in State ex
rel. Harlin v. Superior Court, 139 Wash. 282, 247 P. 4 (1926). In that case, the city council of
Seattle had enacted an ordinance, providing for the acquisition of a street railway system, to be
paid for by the creation of a special fund to be derived from the operation of the utility. A
referendum petition, bearing the requisite signatures, was filed with the city comptroller and suit
was begun to restrain him from submitting the ordinance to the vote of the people. The superior
court's judgment dismissing the action was sustained by this court.
The city contended that it was empowered to proceed without submitting the proposition to the
voters, relying upon Rem. Comp. Stat. § 9489, the provisions of which, insofar as material to this
discussion, are substantially the same as those now contained in RCW 35.92.070. The city's
position was that the second exception contained in that section was applicable, inasmuch as it
had been authorized in its charter to acquire and operate such utilities, and that it was entitled to
proceed with the acquisition without interference by way of referendum. In that case, as in this
one, the city charter provided for referendum of legislative ordinances. Without attempting to
determine the legislative intent in providing exceptions to the submission procedure, this court
held that the grant of power to acquire street railway systems was made to the corporate entity,
and further that the power could be exercised through the referendum process.
The reasoning of the court was contained in these paragraphs:
A reference to the cited sections of the statute show [sic] that the grant in § 9488, supra, is to
"any incorporated city or town," and in § 9213, supra, to "any municipal 389*389 corporation."
These are clearly grants to the corporate entity of the city, as distinguished from the legislative
authority. But it is said that § 9489 gives the grant to the legislative authority under the words
contained in the second section, where it is provided,
"Whenever a proposition has been adopted as aforesaid or the cases mentioned in subdivisions
first and second of this section where no submission shall be necessary the common council or
other corporate authorities of such city or town shall have power to proceed forthwith to
purchase, ..."
But it is plain that § 9489 provides for the procedure and does not embody the grant of power.
This holding is not in conflict with Shorts v. Seattle, 95 Wash. 538, 164 Pac. 241, where we held
that the charter requirement as to special utility bonds was in conflict with § 9491 [P.C. § 1217]
of the statute, which provided that special utility bonds should be "... executed in such manner
and payable at such times and places as the common council or other corporate authorities of
such city or town shall determine, ..." It was there held, that fixing of the date of maturity of the
bonds was left to the legislative authority, and could not be circumscribed by charter provisions.
The granting of authority to the common council or corporate authorities to determine times of
payment of bonds does not necessarily carry with it, nor imply, the grant of power to acquire the
public utility in the first instance.
We think, therefore, the proper construction of this act is that the city, as a corporate entity, has
been granted the power to acquire the street car system, and that § 9489, supra, merely provides
Schoenrock Law
6 South 2nd Street, Suite 903
Complaint for Declaratory Judgment - 15 Yakima, WA 98901
509.728.3901
tim@schoenrocklaw.com
1
2
3
the procedure. To hold otherwise would be to determine two specific grants of power, one to the
city as a corporate entity, when a general indebtedness is incurred, and the other to the legislative
authority of the city, when no general indebtedness is to be incurred.
State ex rel. Harlin v. Superior Court, supra at 286.
There can be no doubt that the opinion was correct in stating that Rem. Comp. Stat. § 9489
provided for the procedure and that the grant of power was contained in §§ 9488 and 9213.
However, this court seems to have overlooked the fact that the question before it concerned the
proper procedure 390*390 to be followed in exercising the power granted. Nowhere has it been
suggested that, when a power is granted to the corporate entity, it may not be exercised through
the enactment of ordinances by the governing body of the city. The question before the court
was: Under the provisions of the statutes under consideration there, were such ordinances subject
to referendum? Had the court applied the principle that the statute must be viewed as a whole
and effect must be given to all of its parts, it would surely have observed that the invoking of the
referendum necessarily thwarted the legislative purpose expressed in the grant to the corporate
authorities of the right to proceed forthwith where no submission of the proposition was
necessary under the statute.
If the case of Shorts v. Seattle, 95 Wash. 538, 164 P. 241 (1917), cited and distinguished by the
court in the Harlin case, is studied, it will be seen that this court had held there that section 9489
means exactly what it appears to mean — that if by charter provision the people of a
municipality have authorized their legislative authority to provide by ordinance for erecting,
purchasing or otherwise acquiring, as the property of the city, a waterworks, the legislative
authority may proceed to do so without submitting the proposition for voter approval.
Another case appearing in the same volume, Shorts v. Seattle, 95 Wash. 531, 536, 164 P. 239
(1917), was cited. That was an injunction suit to restrain the city authorities from selling water
bonds. This court said in that case:
We are convinced that, since the city charter specifically authorizes the city council by ordinance
to acquire, own, and operate a water system such as the city long has had, the city has power,
under the plain terms of the statute, to provide by ordinance for making additions, extensions,
and betterments to that system, and to issue and sell bonds payable solely from the income to be
derived from the system to pay for the same without submitting either proposition to popular
vote for ratification.
Both of these suits, brought by the same plaintiff, contested the validity of city ordinances on the
ground that 391*391 they had not been submitted to the voters for approval. Neither of them
involved an attempted referendum. In that respect, they are distinguishable from State ex rel.
Harlin v. Superior Court, supra. However, the conclusion reached in both of them — that where
a proposition fell under one of the provisos, no submission to the voters was necessary — is
irreconcilable with the result reached in State ex rel. Harlin v. Superior Court, supra, which
permitted the voters to frustrate the legislative purpose through the referendum procedure.
This court in Neils v. Seattle, 185 Wash. 269, 282, 53 P.2d 848 (1936), wherein it was found that
a grant of power to the corporate entity had been superseded by a subsequent enactment granting

Schoenrock Law
6 South 2nd Street, Suite 903
Complaint for Declaratory Judgment - 16 Yakima, WA 98901
509.728.3901
tim@schoenrocklaw.com
1
2
3
the power to the legislative authority, distinguished State ex rel. Harlin v. Superior Court, supra,
saying:
Under the provisions of the city charter, unrestricted by the particular statutes there involved, the
ordinance in that case was clearly subject to referendum.
Unfortunately, this observation overlooked the fact that an issue necessarily involved in that case
was whether the charter provisions were in conflict with the statute. It may be that the issue was
not raised or argued by the parties in State ex rel. Harlin v. Superior Court, supra. However that
may be, the decision as it stands is out of harmony with the sound and well-established principle
that charter provisions which are in conflict with general laws of the state cannot be given effect.
We are convinced that, insofar as it held that an ordinance adopted under the authority of one of
the provisos of the statute which is now RCW 35.92.070 may be subjected to the referendum,
State ex rel. Harlin v. Superior Court, 139 Wash. 282, 247 P. 4 (1926), must be and it is hereby
overruled.
The appellant has listed in his brief four respects in which he contends that the ordinance is
invalid. None of these contentions is supported by citation of authorities. We have examined
them and are not persuaded that they have 392*392 merit. It would serve no useful purpose to set
them forth in this opinion.
The judgment is affirmed.

Schoenrock Law
6 South 2nd Street, Suite 903
Complaint for Declaratory Judgment - 17 Yakima, WA 98901
509.728.3901
tim@schoenrocklaw.com

Vous aimerez peut-être aussi