Latest twist in the tunnel tussle, just in from City Attorney Pete Holmes‘ office: As with the referendum petition drive seeking a vote on the City Council’s approval of tunnel-related items, Holmes is also going to court over anti-tunnel Initiative 101, which he believes is “probably beyond the scope of our local initiative power.” News release after the jump:
Earlier this week King County Elections notified the City Clerk’s Office that Initiative 101 (I-101) has received more than the number of valid signatures required by the Seattle Charter. I-101 would prohibit the “construction, operation or use of any City right-of-way or City-owned property wherever situated for a tunnel for vehicular traffic, or tunnel-related facility, to replace in whole or in part the Alaskan Way Viaduct.” As I explained when I filed the City’s declaratory judgment action regarding the proposed referendum petition on the City-State tunnel contracts, the City’s initiative and referendum powers are limited by state law. As with R-1, although for somewhat different legal reasons, I believe I-101 is probably beyond the scope of our local initiative power.
I don’t vote on or veto ordinances, I am personally neutral regarding the ultimate choice for replacing the viaduct, and my obligations as City Attorney are to ensure that the City complies with the law and to look out for the best interests of Seattle and its people. To that end, I have filed a Complaint for Declaratory Judgment in King County Superior Court to determine whether I-101 is within Seattle’s municipal initiative power. As I did two weeks ago with our declaratory judgment action regarding the referendum, I will explain the legal reasoning behind what we’re doing and why.
Nature and Limits of the Local Initiative Power
The Seattle Charter creates an initiative power, meaning that citizens may initiate the City’s legislative process by filing a petition. However, like the referendum power, the scope of the City’s initiative power is limited by state law. As with referenda, initiatives must be legislative rather than administrative, see City of Port Angeles v. Our Water-Our Choice!, 170 Wn.2d 1, 7, 239 P.3d 589 (2010), and “initiatives cannot interfere with the exercise of power delegated by state law to the governing body of a city,” City of Sequim v. Malkasian, 157 Wn.2d 251, 261, 138 P.3d 943 (2006). While I-101 appears to be legislative rather than administrative, it would “interfere with the exercise of power delegated by state law to the governing body of a city” and is therefore likely outside the City’s initiative power.
Local governments only have the powers delegated to them by the State. Most of those powers are delegated to local governments generally, but some are delegated specifically to the “governing body,” “governing authority,” “legislative body,” or “legislative authority” of a local jurisdiction. Delegated powers like this may only be exercised under state law by the City Council (subject to a veto and override) and are not subject to the initiative or referendum powers — even if our charter or city law says they are. See., e.g., Malkasian, 157 Wn.2d at 261.
We have identified two state statutes relevant to this analysis: RCW 47.12.040 and 47.28.140. RCW 47.12.040 specifically delegates to the “legislative authority” or “governing body” of a local jurisdiction authority “lease, sell, or convey by gift…[city] land or any interest therein to the state” when such lands are “necessary to secure any lands for primary or secondary state highway right-of-way or other state highway purposes…” RCW 47.28.140 specifically delegates to the “governing authorit[y] representing…any…municipal corporation” the power to “enter into cooperative agreements” with the Washington Department of Transportation regarding work, materials, cost allocation, engineering, and labor related to locating, constructing, or improving highways.
By attempting to prohibit the use of City property and rights-of-way for a tunnel or “tunnel-related facility,” I-101 would “interfere with the exercise of power delegated by state law to [Seattle’s] governing body.” Malkasian, 157 Wn.2d at 261. As such, according to my reading of state law, I-101 is beyond Seattle’s initiative power.
Declaratory Relief Will Reduce Uncertainty and Save Time and Money
As I did with the referendum petition on the tunnel contract ordinances, I am following the guidance the Washington Supreme Court gave us in Philadelphia II v. Gregoire, 128 Wn.2d 707, 911 P.2d 389 (1996), and bringing a declaratory judgment action so that a court can give us a conclusive answer as to whether I-101 is beyond Seattle’s initiative power. If my reading of the law is correct, a court decision will spare the expense of a campaign overturned post-election. As with the referendum case, if the courts disagree, the City Council will consider I-101 in accordance with Article IV, Sections 1.C-1.D of the Seattle Charter.
I’ve included a list of what I view as the most relevant cases on the “direct delegation” legal issue at the end of this statement. I encourage everyone to read them and learn more about this area of state law.
Administrative/legislative cases:
City of Port Angeles v. Our Water-Our Choice , 170 Wn.2d 1, 7, 239 P.3d 589, 592 (2010)
Bidwell v. City of Bellevue, 65 Wn. App. 43, 45, 827 P.2d 339, rev. denied 119 Wn.2d 1023 (1992)
Heider v. City of Seattle, 100 Wn.2d 874, 675 P.2d 597 (1984)
Citizens for Financially Responsible Government v. City of Spokane, 99 Wn.2d 339, 347, 662 P.2d 845 (1983)
Seattle Bldg. & Constr. Trades Council v. City of Seattle, 94 Wn.2d 740, 620 P.2d 82 (1980)
Leonard v. Bothell, 87 Wn.2d 847, 557 P.2d 1306 (1976)
Ruano v. Spellman, 81 Wn.2d 820, 505 P.2d 447 (1973)
Direct delegation cases:
City of Port Angeles v. Our Water-Our Choice!, 145 Wn. App. 869, 882, 188 P.3d 533, 539 (2008), aff’d 170 Wn.2d 1, 239 P.3d 589, (2010)
City of Sequim v. Malkasian, 157 Wn.2d 251, 265, 138 P.3d 943, 951 (2006)
Whatcom County v. Brisbane, 125 Wn.2d 345, 884 P.2d 1326 (1994)
Seattle Bldg. & Constr. Trades Council v. City of Seattle, 94 Wn.2d 740, 620 P.2d 82 (1980)
Process case:
Philadelphia II v. Gregoire, 128 Wn.2d 707, 911 P.2d 389 (1996)
Links to tunnel-related laws and ordinances
http://clerk.seattle.gov/~archives/Ordinances/Ord_123133.pdf
http://clerk.seattle.gov/~archives/Ordinances/Ord_123542.pdf
http://apps.leg.wa.gov/RCW/default.aspx?cite=47.01.402
When we find the hyperlinks-included version on the city website, we’ll substitute it for this cut-and-pasted-from-e-mail version.
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