Washington State Court of Appeals rules against Initiative 6

 

Washington State Court of Appeals
1/10/03

Tacoma, WA - The Washington State Court of Appeals issued their response to the hearing concerning Initiative 6 - Repeal of the Critical Areas Code. It follows:

DO NOT CITE. SEE RAP 10.4(h).

Court of Appeals Division II
State of Washington

Opinion Information Sheet

Docket Number: 28487-1-II
Title of Case: Clallam County Etal, Respondents V. Bob Forde
Etal, Appellants
File Date: 01/10/2003

SOURCE OF APPEAL
----------------
Appeal from Superior Court of Clallam County
Docket No: 01-2-00611-1
Judgment or order under review
Date filed: 09/18/2001

JUDGES
------
Authored by David H Armstrong
Concurring: Christine Jan Quinn-Brintnall
Elaine Marie Houghton

COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Bob Forde (Appearing Pro Se)
PO Box 3457
Sequim, WA 98382

Timothy Dunning Ford
Attorney at Law
111 W 21st Ave
PO Box 1909
Olympia, WA 98507-1909

Counsel for Respondent(s)
Christopher Melly
Attorney at Law
Clallam County Courthouse
223 E 4th St
Port Angeles, WA 98362-3098

Gerald Barclay Steel
Attorney at Law
2545 NE 95th St
Seattle, WA 98115-2427

Amicus Curiae on behalf of Washington State Farm Bureau
James J Klauser
Rowley & Klauser LLP
Seattle Business Center
557 Roy St Ste 160
Seattle, WA 98109-4259

Robert Clayton Rowley
Rowley & Kauser LLP
557 Roy St Ste 160
Seattle, WA 98109-4259

Amicus Curiae on behalf of Evergreen Freedom Foundation
James J Klauser
Rowley & Klauser LLP
Seattle Business Center
557 Roy St Ste 160
Seattle, WA 98109-4259

Robert Clayton Rowley
Rowley & Kauser LLP
557 Roy St Ste 160
Seattle, WA 98109-4259

Amicus Curiae on behalf of Sheldon, Tim Hon
James J Klauser
Rowley & Klauser LLP
Seattle Business Center
557 Roy St Ste 160
Seattle, WA 98109-4259

Robert Clayton Rowley
Rowley & Kauser LLP
557 Roy St Ste 160
Seattle, WA 98109-4259

Amicus Curiae on behalf of Buck, Jim Hon
James J Klauser
Rowley & Klauser LLP
Seattle Business Center
557 Roy St Ste 160
Seattle, WA 98109-4259

Robert Clayton Rowley
Rowley & Kauser LLP
557 Roy St Ste 160
Seattle, WA 98109-4259

Amicus Curiae on behalf of Mulliken, Joyce Hon
James J Klauser
Rowley & Klauser LLP
Seattle Business Center
557 Roy St Ste 160
Seattle, WA 98109-4259

Robert Clayton Rowley
Rowley & Kauser LLP
557 Roy St Ste 160
Seattle, WA 98109-4259

DIVISION II

CLALLAM COUNTY, a Political No. 28487-1-II
Subdivision of the State of
Washington,

Respondent,

PROTECT THE PENINSULA'S FUTURE
& 1000 FRIENDS OF WASHINGTON,

Respondent/Intervenors,

v.

BOB FORDE, as representative of UNPUBLISHED OPINION
the Committee to Repeal the
Critical Area Ordinance,

Appellant,

BUILDING INDUSTRY ASSOCIATION
OF WASHINGTON,

Appellant/Intervenor.

ARMSTRONG, J. -- As the Growth Management Act requires, the Clallam County
commissioners passed a critical areas ordinance designating critical areas
of the county. In response, Bob Forde filed an initiative to repeal the
ordinance. The County then sought declaratory relief, contending that the
ordinance was outside the scope of local initiative authority. The Clallam
County Superior Court agreed and granted summary judgment to the County.
Forde and intervenor Building Industry Association of Washington (BIAW)
petitioned the Washington Supreme Court for direct review, urging the court
to overturn two cases that hold that such ordinances are not subject to
citizens' initiative. The Supreme Court transferred the case to this court
and we affirm.

FACTS

In 1999, the Clallam County Board of Commissioners adopted a critical
areas ordinance (CAO) as required under Washington's Growth Management Act
(GMA). In response, Bob Forde sponsored a signature drive, attempting to
repeal the CAO through a citizen initiative. Clallam County is a Home Rule
Charter county, which provides for citizen initiatives.
In 2001, Forde submitted 3,176 petition signatures to the Clallam
County Auditor for validation. The Auditor verified the signatures and
submitted the petition known as Initiative 6 to the Board of Commissioners.
Clallam County commissioners voted against holding public hearings on
the petition, concluding that the proposed repeal was not within the
initiative power of the people. The county subsequently moved for and was
granted relief on summary judgment.

ANALYSIS

I. County Initiative Authority and the GMA Ordinance
Forde and BIAW argue that they were denied the right of referendum as
allowed under the Clallam County Charter when the court declared that the
CAO was not subject to repeal by initiative. This is a question of law,
which we review de novo. Mountain Park Homeowners Ass'n, Inc. v. Tydings,
125 Wn.2d 337, 341, 883 P.2d 1383 (1994).

The Washington Supreme Court has dealt with the issue raised by Forde1
in Whatcom County v. Brisbane, 125 Wn.2d 345, 349-50, 884 P.2d 1326 (1994),
and Snohomish County v. Anderson, 123 Wn.2d 151, 156-57, 868 P.2d 116
(1994).

In Anderson, citizens began a referendum campaign under the Snohomish
County Charter to repeal council-adopted, countywide land use planning
polices required by the GMA. See RCW 36.70A.210(2); Anderson, 123 Wn.2d at
155. The Court held that the planning policy ordinance was not subject to
referendum because the legislature had delegated the power to enact GMA
mandated planning policies specifically to the "legislative authority" of
each county. Anderson, 123 Wn.2d at 156-59. And the Court had long held
that local referendum power does not extend to matters statutorily
delegated to local legislative authority. See Neils v. City of Seattle,
185 Wash. 269, 53 P.2d 848 (1936). Although the county charter provided a
referendum process, the Washington State Constitution expressly relegates
home charters to an inferior position, vis- -vis "the Constitution and laws
of this state{.}" Anderson, 123 Wn.2d at 158 (quoting Wash. Const. art.
XI, sec. 4). Thus, the court concluded that the planning policy ordinance
was not subject to referendum. Anderson, 123 Wn.2d at 159.
In Brisbane, the court struck down a referendum effort to repeal a GMA
required CAO similar to the CAO here. The GMA section mandating critical
area ordinances used the terms "city" and "county," rather than
"legislative bodies" when referring to who was compelled to act under the
statute. Brisbane, 125 Wn.2d at 349. The Court, however, held that the
legislature used the terms interchangeably under the Act and concluded that
the power to enact critical area ordinances was still delegated to the
"county legislative body" and not subject to the local referendum process.
Brisbane, 125 Wn.2d at 349-50. As in Anderson, the court reasoned that the
purpose of the GMA would be frustrated if county citizens could amend or
repeal by referendum an ordinance adopted to implement goals of the Act.
Brisbane, 125 Wn.2d at 351.

Forde argues that the holdings in Brisbane and Anderson were overly
broad in suggesting that the initiative or referendum process could not
fulfill GMA requirements. He urges us to examine Clallam County's specific
initiative process before determining whether the process is insufficient
to deal with planning processes. In addition, he takes issue with the
Anderson Court's conclusion that to allow a local initiative to repeal GMA
mandated ordinances would disrupt statewide growth management goals.
Finally, he argues that Brisbane is wrong in holding that the GMA uses the
phrase "legislative authority of a county" interchangeably with the term
"county."

But only the Supreme Court can address Forde's arguments as to the
reasoning of Anderson and Brisbane. And as Brisbane is directly on point,
it binds this court.

II. Limitations On Initiative Powers and the Right To Vote
Forde contends that the Supreme Court's holdings in Anderson and
Brisbane defeat the constitutional guarantee of the free exercise of the
right of suffrage under article I, section 19 of the Washington
Constitution. He argues that the court failed to consider voting rights
when it denied citizen challenges to ordinances implementing GMA
requirements. We question whether we have authority to consider a
constitutional challenge to the effect of a Supreme Court decision. But
even if we do, Forde's argument fails.

Article I, section 19 of the Washington Constitution states, "All Elections
shall be free and equal, and no power, civil or military, shall at any time
interfere to prevent the free exercise of the right of suffrage." Any
statute that infringes on or burdens the right to vote is subject to strict
scrutiny. City of Seattle v. State, 103 Wn.2d 663, 670, 694 P.2d 641
(1985). Furthermore, "{t}he right to vote is fundamental, and article I,
section 19 provides greater protection for a free and equal vote than does
the federal constitution{.}" Brower v. State, 137 Wn.2d 44, 68, 969 P.2d
42 (1998); Foster v. Sunnyside Valley Irrigation Dist., 102 Wn.2d 395, 404,
687 P.2d 841 (1984).

But article I, section 19 protects only voter rights directly
implicated during an election. For example, in Malim v. Benthien, the
Court held that persons living outside a water district, but subject to
district assessments, were improperly denied the right to vote in district
elections. Malim v. Benthien, 114 Wash. 533, 538-39, 196 P. 7 (1921).
More recently, the Court reached a similar conclusion when considering an
irrigation district voting scheme in Foster v. Sunnyside Valley Irrigation
District. Foster, 102 Wn.2d at 409-10. And in City of Seattle v. State,
the Court held that article I, section 19 requires "that otherwise
qualified voters who are significantly affected by the results of an
election be given an opportunity to vote in that election." City of
Seattle, 103 Wn.2d at 673; see also Brower, 137 Wn.2d at 68 (no violation
of article I, section 19 by requiring party to reimburse state for
referendum costs). Thus, article I, section 19 protects voters' rights in
a regular election; it "does not mean that voters may go to the polls at
any time and vote on any question they see fit, but only at the stated
times provided by the statutes relating to elections." State v. Wilson,
137 Wash. 125, 132-33, 241 P. 970 (1925).

The Supreme Court has upheld limits on a citizen's right to hold
elections by referendum. In Philadelphia II v. Gregoire, the Court held
the state initiative process was unavailable to establish a federal
initiative process. Philadelphia II v. Gregoire, 128 Wn.2d. 707, 911 P.2d
389 (1996). Citizens can not use the initiative process to overturn local
zoning decisions. Leonard v. City of Bothell, 87 Wn.2d 847, 850-52, 557
P.2d 1306 (1976). And the initiative process is available to challenge
legislative decisions, not administrative actions. Ruano v. Spellman, 81
Wn.2d 820, 824-25, 505 P.2d 447 (1973). Nor can a citizen use the
initiative process to repeal a county charter. Ford v. Logan, 79 Wn.2d
147, 154-55, 483 P.2d 1247 (1971).

Forde does not contend that he and his supporters were denied the
right to vote in an election. Rather, he sought to create a local election
on an ordinance the GMA required. But Anderson and Brisbane hold that
local initiative procedures must give way to the statewide GMA provisions.
And article I, section 19 does not guarantee Forde the right to schedule an
election and vote on any question at any time. Wilson, 137 Wash. at 132-
33. We find no violation of article I, section 19.

Affirmed.

A majority of the panel having determined that this opinion will not
be printed in the Washington Appellate Reports, but will be filed for
public record pursuant to RCW 2.06.040, it is so ordered.

Armstrong, J.
We concur:

Houghton, J.
Quinn-Brintnall, A.C.J.

1 We refer to Forde and BIAW together as Forde.