Initiative 6 Transcript: Court of Appeals Tacoma Washington

September 4, 2002

Case # 28487-1-11

Forde, Respondent Vs Clallam County, Appellant

(Transcribed by Lois Perry from the audio tapes of the court appearance, and who was present at the hearing.)

Good Morning:

Bob Forde---”Good morning your honors. Thank you for the opportunity to come before you this morning. My name is Bob Forde. I’m not an attorney. I have a few remarks I would like to read to you and reserve the rest of my time for the Amicus and for the BIAW, if that’s alright.”

Judge Christine Quinn-Brentnall--- “That would be alright.”

My name is Bob Forde - a Clallam County voter - and the son of Irish immigrants, who taught me that government by consent of ordinary citizens is the cornerstone our democratic republic. I was taught that unless the cornerstone is sound, no freedoms can stand - not even those guaranteed by the Bill of Rights.

I thought that in Clallam County, we citizens had reinforced that corner stone by reserving to ourselves the right to take direct legislative action on local matters - an additional safeguard to overcome local legislative action that disregards the collective will of the citizenry.

I thought that state policy would be set by state elected leaders.

I thought that state policy was required to be clearly and uniformly set out in state laws so that state citizens could legislate their will over the resistance or neglect of indifferent state-elected legislators.

I thought that citizens controlled, not just indirectly by voting for elected leaders, but directly, through a citizen vote on important policy questions that affect their work, their homes, their businesses, and their families.

I thought that the reason the power of direct legislative action is rarely invoked - especially at the local level - is because elected legislators respect the ultimate citizen power, and that it is the mere existence of the power, more than its use, that makes elected leaders attentive to the will of the voters.

I used to be right about these things, but am told that now I'm wrong. I don't remember a constitutional amendment or citizen vote that changed things. I am told that the state legislature, the governor - and the courts - agree that things are different from now on, and that where land use regulations are concerned, the cornerstone has been eliminated.

I don't remember voting for members of any Growth Management Hearings Board, but learn that they have been given power to invalidate our local laws. I understand that the Growth Management Hearing Boards issue orders to my elected leaders - eliminating policy options that were adopted with widespread citizen participation and support. I can't find the Board's preferred policies expressed in the GMA. I am told that state legislators did not adopt express land use policy, but that local elected leaders are no longer free to legislate the local public will. I am told that land use policy disputes are now determined by litigation in the GHBs and the Courts, rather than by elected leaders and citizen vote.

I remember when the GMA was sold as "bottom-up" planning. We now recognize that for the lie it was. The question is, what is the truth? I would not like, but could accept, "top-down" planning, for at least land use policy set by the state legislature would be built upon the cornerstone of citizen control, including direct citizen legislative action. But that is not the case, either. The GMA has evolved into "middle-out", planning, with the "middle" occupied by non-elected GHB members. It shapes public policy in an adversarial proceeding that involves hostile interest groups on the one side and on the other side, a parade of public officials willing to trade public policy power for "peace".

I was joined by 3,800 other Clallam County citizens who grew tired of hearing excuses from our local elected leaders that their previously approved policies were "off the table," that they had no choice but to legislate unpopular and devastating policy, and that to resist the policy demands of the GHB meant economic ruin for the County (in the form of sanctions) and its citizens (in the form of development moratoria). We began with a critical areas ordinance that enjoyed widespread citizen acceptance, but evolved into a piece-meal and patchwork ordinance, adopted over time to please the Growth Hearings Board. Needless to say, all pretext of "public participation" in the planning was abandoned, for the public will no longer mattered.

Our initiative would have repealed the critical areas ordinance. It would not have required that local legislators abandon all of their previous work, but would have required them to engage with the public in comprehensive planning, to be responsive, to be personally accountable to the voters for their ultimate policy decisions. Because of the ruling below, we are left with a patchwork ordinance that satisfies nobody, with the possible exception of the GHB.

I don't think that anyone can seriously argue that the loss or abandonment of policy-making power by elected leaders is a loss for public officials. The loss is the voters' loss, for the ballot box is meaningless if elected leaders are powerless to work the voters' will. Extinction of initiative / referendum rights is the final nail in the voters' coffin.

I think the Supreme Court would never have driven that nail had it known at the time that the loss of direct voter control it condoned would be followed by a loss of indirect voter control by subsequent legislative action. I do not believe that the Supreme Court intended to eliminate the cornerstone. Government by consent of the governed is that cornerstone.

Forde---”I would like to thank you for letting me read that and I would like to yield the balance of my time to the BIAW and to Amicus.

Brentnall--- “Thank you Mr. Forde.”

Bob Rowley--- “Good morning. My name is Bob Rowley of Rowley and Clausen, speaking on behalf of the Amicus parties. The brief, I think is self-explanatory. In the short amount of time that I am allotted, I would like to forego the temptation to question the Supreme Court’s reasoning when it issued its opinions on the Anderson and Whatcom briefings---Brisbane cases. And quite frankly...”

Judge David Armstrong--- “Let me interrupt you because that gets to one of the issues that is troublesome to me on this case for us---everybody on your side petitioned the Supreme Court to hear that. Your arguments are largely addressed through the Supreme Court. Even if they change their decision within the Anderson and the Brisbaine case as I recall it, you of course understand, we are bound by the Supreme Court authority. We have no power to change the decision that was made by our Supreme Court, but as a very practical matter, what do you expect from our Court? What remand do we have to do...”

Rowley--- “O.K. that was precisely what I wanted to address. First of all, let me correct the record. Amicus did not participate in the petition to the Supreme Court. We entered the fray after it was referred back to this Court by the Supreme Court.The briefs that were submitted in support of that petition were supported by BIAW and absence in those briefs of the subsequent legislative changes is one of the reasons why you see such broad and solid Amicus support at this time because we think that that issue is critical.

Our primary premise is that, when the Supreme Court decided Anderson and Whatcom versus Brisbane---I’ll just shorten that to Brisbane---it was not faced with a choice between a direct control by the voters through Initiative control on the one hand, and no control by the voters on the other hand.

Our second premise is that---had the court been faced with that choice, it would have decided those cases differently. That the terrain has changed through what I referred to as the 'evolution of the revolution'---land use planning revolution - in two specific legislative amendments that occurred after the Court enunciated its opinions and issued them on Anderson and Brisbane.

When the Court decided those cases it---first case was Anderson---and basically it said, alright, the legislature chose the language to delegate the power under RCW 36.78.210 to the legislative authority, and under prior Supreme Court opinions, that was a limited delegation to the elected officials, elected legislative officials, to the exclusion of direct legislative action by the people.

Brisbane did not involve RCW 36.78.210--- it involved the Critical Area Ordinance statute. That section of the GMA, which is what brings us here today, and in that case, the Court strove for consistency, and even though the semantics that the legislature chose in 1990, when adopting Critical Area provision, predated the 36.78.210 legislative body delegation the following year in 1991, and so the Supreme Court basically concluded---well they must have meant the same thing in all of their delegations, so we are not going to recognize a delegation authority to the citizens under any provision of the Growth Management Act.

Now that’s an oversimplification, but I think it accurately summarizes the Supreme Court’s reasoning and what occurred back then. But since then, when there has been, when those decisions were given, the court assumed inherent in its opinion, was that the delegation that did occur, was made to the elected local legislative officials.

And it had to assume that because it was the truth, that is where the delegation lay over policy power.

It wasn’t until after the issuance of those decisions that the legislature subsequently amended the GMA and by enacting RCW 36.78.302, which gave the Board the power of validity. That delegation of legislative power got extended to the Growth Hearings Boards.

Now this specific language, and before I quote from Section 302, let me just direct the Court’s attention towards 36.78.030, which is the enumeration of goals and so originally adopted, the legislature very clearly said that these goals are to be guidelines only. And that’s what they are to be used for.

But, years later after the Supreme Court issued the opinions in Anderson and Brisbane, the legislature adopted 302--- Section 30--- The Growth Management Act and the critical language that changed things is in Sub section 11 b-c and Subsection 2.

And for the first time, the Growth Hearings Boards were now given the power. It may determine that part of the Comprehensive Plan or Development Regulations are invalid if the Board that Sub section b includes in the final order, a determination supportive of findings of fact and conclusions of law, that the continued validity of part or parts of the plan or regulation would substantially interfere with fulfillment of the goals of the chapter.

Now what that did, was it empowered the Growth Hearings Boards to itself apply the goals and to determine what policy local policies do and do not further those goals. Moreever, it gave the Board the power of invalidity -which unlike a Court’s power to invalidate a law -simply voids it for a Constitutional defect. It acts exactly like a legislative repeal, because when you go again to section 202, it says a determination of invalidity is prospective.

We, in affect, only, which is exactly and precisely the affect that a legislative appeal has---unlike a judicial determination that is void for violating the Constitution or a specific prohibition of a state statute which renders it invalid from the date of its inception.

It is very clear that what the legislature was contemplating here was some legislative powers in the hands of an appointed Board, over whom citizens neither locally or at the state have any control.

Now one other change that was made by the legislature that amplifies and underscores this are the changes that were made in RCW 36.78.140, and that’s the public participation requirements. As originally enacted, the legislature said that the local governments must provide for a continuous and---I forgot what the exact language is---but continuous and meaningful public participation at all stages.

When we get down to the creation of the power of invalidity, the legislature changed Section 140 of the Growth Management Act, that now says in pertinent part in enacting legislation in response to the Board’s decision pursuant to RCW 36.78.300, declaring part or all of the Comprehensive Plan or Development Regulation invalid, the county or city shall provide for public participation, that is appropriate and effective under the circumstances presented by the Board’s order.

In other words, you don’t have to go back and allow for some kind of public participation that you had in the original enactment of these Ordinances. Public participation is now not very important, and the reason it is not very important is Growth Management Hearings Board has already made the policy decisions, and the local legislative body is simply going to rubber stamp the decree of the Growth Hearings Board.

Now, had the Supreme Court been faced with this kind an elimination of voters' control, and the taking of the policy power from the voters that elect those leaders, we don’t have the power of a Republican form of government in order to turn warm bodies. We have a Republican form of government to affect the voters will, regarding the policies that are acceptable or not acceptable to the citizens who go out and vote.

And so to take it away---that policy power from your elected leaders---take it away from the voters---just as clearly and as dramatically and as affectively as if the election of local leaders was simply removed from the voters agenda. Because if you can’t change the policies it is irrelevant that you are changing your elected leaders. And there are I think--- I think that compels a different result.

Now very quickly, the county makes three arguments and I am not going to have any rebuttal time, so I would just like to say why I don’t think they are valid arguments.

It compares the GMA to the SMA [Shorelines Management Act], but the two statutes are not comparable. There is no Referendum issue under the Shoreline Management Act because the delegation is made to the entities throughout, and so very clearly, in a Home Rule County that preserves Initiative and Referendum rights, there is no argument for a limited delegation such as you have under the Growth Management Act.

Secondly, the Shoreline Management Hearings Board doesn’t review the policy decisions of local government. They have no power to validate Shoreline Management program provisions. Their Appellant jurisdiction is limited to reviewing permit decisions and administrative decisions that get made, so that is just an inappropriate argument.

The other argument is, well, bring a statewide Initiative repeal and repeal the Growth Management Act. Now, how does that accord with Republican principles that local elected leaders and the policies that they adopt be under the control of local voters? It doesn’t. It is a totally and ineffective method usurping the control that is Constitutionally guaranteed under the Republican principles. Why, for example, would I want to bring a state Initiative to eliminate a state planning goal, that I may favor as the sole methodology for attempting to influence a local policy that I find to be outrageous?”

Brentnall--- “Thank You.”

Judge Brentnall --- “Mr. Melly.”

Christopher Melly--- “If it please the court. My name is Christopher Melly.

I am here on behalf of Clallam County. Amicus raises very interesting issues. But, regrettably, those issues were not raised below when Amicus was introduced to this Court. Issues that were never presented to the Trial Court, the Constitutionality of the GMA, for example in its entirety was never for the Trial Court. There were very limited issues before the Trial Court and the issues presented by Amicus were not there.

It is inappropriate for Amicus to introduce new issues that were not briefed or addressed by the Trial Court. It is inappropriate to introduce for the first time before the Appellant Court.”

Brentnall--- “isn’t it an exception to a Constitutional challenge to the statute? That doesn’t have to be raised for the first time in the Trial Court.”

Melly --- “As a general proposition between parties, I would agree but, with the Amicus stepping in, I think it’s a different scenario. No matter where the case is, say where with Constitutional issues, Amicus gets to raise new issues. That’s certainly the case for example, with Mr. Forde and I, between our perspective positions. If he had a Constitutional issue, um, he could raise that issue himself. Anew, afresh for the first time, before this Court, but I don’t think Amicus gets to step into the same shoes...”

Brentnall--- “What’s your authority for that proposition?”

Melly---“I don’t have that authority. I don’t have any authority for that. With regard to the parties, certainly there is authority, but I am not aware of authority on the other hand.”

The issue presented in this case is really quite simple, and that is, do the people have the ability through the Initiative or referendum, direct legislation---have the ability to repeal a local ordinance that’s adopted in fulfillment of the State Growth Management Act?

And it is also very clear there’s a simple answer to that question. The answer is, “no”.

The Supreme Court has already addressed that issue on two prior occasions in the Brisbane case and the Anderson case. And Brisbane and Anderson, both Charter counties, like Clallam County, both provide for rights of direct legislation in their Home Rule Charters with Initiative and Referendum like Clallam County.

The Brisbane case is almost identical to Clallam County because this is a Critical Area Ordinance in this case, as it was in the Brisbane case. And the Supreme Court determined that when the legislature granted the authority to plan for growth management issues, transportation, housing, urban development, that sort of thing---it was a power that was granted to the county and legislative authority, the elected officials, not the body corporate, not Clallam County in its corporate capacity, through which the people get to speak, but the power was even to the elected officials, the officials exclusively.

There is nothing in the statute; there is nothing in the case law, that would limit that interchangeability between county and county legislative authority to any specific section.

When you read the GMA in its breadth, it is very clear that the legislature used county and county legislative authority in various and sundry places in the statute. And I think that the Supreme court reached the right conclusion because when you read that statute in its entirety, there are a number of provisions that apply to quote, counties that could not be adequately addressed by the people acting through Initiative.

For example, one of the requirements that’s imposes upon the county is the requirement, that in the development of regulations, Comprehensive Plans, or what not---a written record be maintained so that it can be reviewed. How can the people through Initiative generate that written record for review? How could the people show their work -another requirement under the Growth Management Act- that when something is done there is a substantive for that decision so that it could be explored, reviewed or challenged or critiqued by the appropriate judicial bodies?

I don’t think that the legislative changes have any impact at all, quite frankly. Mr. Rowley argued that if the Court was struggling with Anderson and Brisbane for some consistency, it would appear to me that consistency in judicial decisions is a good thing to have. The public participation that is provided for, as Mr. Rowley indicated, when there is some kind of a limited participation on a remand back from a Growth Board, makes somewhat good sense. If you have voluminous ordinances that goes before the Growth Board, and just say that is 100 long with 1,000 separate sections, but only one section is challenged and the Growth Board finds that there’s some problems with that one section, it makes no sense to have public a participation process when there are a remaining 999 sections.

So that section only recognizes, I think, the obvious. When Hearings Board does make a suggestion, when the Hearings board does find a problem, when it does go back before the legislative body, that body does not have to open up public participation on the Ordinance in its entirety---just on that limited, on those limited things that are referred back by the...”

Brentnall --- “Well, you are assuming that the Growth Hearings Board would find only a portion invalid. There have been instances, in which the growth Management Hearings Board found the entire Comprehensive Plan invalid...”

Melly --- “But, I’m...”

Brentnall--- “Are you asserting under those circumstances that it wouldn’t be necessary to have public participation?”

Melly--- “No, not at all, under those circumstances, you’re basically starting from scratch.

I think you back to the public participation that’s contemplated when the Ordinance was first proposed and you go through all those hearings proceedings. You take the public comment, letters, anything that comes in. So I think the language, the amendatory language, dealing with the scope of the public process only addresses how big does it have to be if you completely invalidated the Ordinance. Then it goes back and you are completely starting over with the public participation process Would go up--- the participation process that is contemplated in the statute--- is opened up again.”

Judge Armstrong--- “Mr. Melly, do these, do the legislature changes that Amicus has pointed out, give us authority to do anything with regard to the Supreme Court cases?”

Melly --- “I don’t believe so.

Aside from the fact that I believe that new issues are being introduced ---that this should not be introduced at this level.

I think that this Court is bound by the decisions in Brisbane and Anderson and that there’s been nothing presented by way of distinguishing argument or anything else that would permit this court to essentially reason Brisbane and Anderson and see they don’t apply here for these reasons.

I think we’re on all four corners of the Brisbane case. The only difference I see is this is an Initiative rather than a Referendum in the Brisbane case.

So I think that this Court is bound by the two decisions, and I don’t think there is any basis for this Court to do anything other than affirming the decision of the Trial Court.

The issue was raised about whether or not Shorelines Statute was appropriate or comparable. There was a general criticism as I read it in the Amicus Brief with regard to just the entire process of GMA. What, how it’s structured, who does what, what hearings are held by whom, what the impact of those things are, and when you look at the statutes generally the legislature has addressed that type of process in other statutes---the Shorelines Act, for example.

The Shorelines Act was adopted by the people back in 1970 so that statute contemplates that there are some restrictions that have to be dealt with to protect the waters of the state as well as local waters. The waters of the state being a defined term.

And I will---let me rephrase this---the issue was whether with a comment made, whether or not the Shoreline Hearings Board had the authority to review Shoreline Master Programs. And it may be that the Shorelines Hearings board does not have the authority. but the Department of Ecology does have the authority to review Shoreline Master Programs proposed by local jurisdictions.

So in terms of review by a state agency, established by the state legislature, to review a local adoption under a state plan, that’s been done before. It’s been done at least two times. I didn’t review the statutes exhaustively, but at least with regards to water and trees, that’s the type of process the state legislature has proposed. Something very comparable to what the legislature has done with Growth Management. Identified the statewide problem--- came up with a correct or general corrective.

These are some things a local government---you have to address and from those local Ordinances that address those stated goals, there is an opportunity for challenge or review or critique by another body at the state level. Another agency of the legislature.

The people have the ability to initiate legislation with regard to Growth Management. They just lack the ability to initiate legislation at the local level.

They can certainly initiate legislation under article 2 Section 1 of the Constitution at the state level. They can do that in a variety of ways.

If the citizens are dissatisfied with Growth Management in its entirety they could propose repeal of that. If they are dissatisfied with some aspects of it such as power given to Growth Board decisions or what the affect on invalidity is, they could certainly initiate changes to that. If they wanted local governments, not only Charter counties, but if they wanted the remaining 34 non-charter counties in the state to have Initiative Referendum power, with regard to growth matters, they could propose that to the state level as well.

The citizens have a broad opportunity to address what they perceive to be the shortcomings in the Growth Management scheme and there is nothing to preclude the people through the Initiative, which they have done on numerous occasions in the past. From proposing what they believe will be a corrective or um, a, a restoration of rights or however you want to characterize it. You’ve got the ability to address the problems through legislation, but it’s legislation at the state level, not the local level.

I don’t have anything further. If the Court has some questions...”

Brentnall --- “Thank you very much, Mr. Melly.”

Brentnall--- “Mr Tim Ford. There are 5 minutes remaining on your side. Mr. Bob Forde. Do I understand correctly that you are waiving your time on to Mr Tim Ford?” Affirmative gesture by Bob Forde (nothing was on tape).

Tim Ford--- “Thank you very much. I will try to make this very brief.

To answer your first question about what kind of relief we are expecting or hoping for, from this Court, considering that we’re not asking you to overturn a Supreme Court ruling. We are looking specifically for a remand, and I’m going to take a minute or two here to try to give you some reasons why this case from Clallam county is distinguishable from the case of Whatcom County versus Brisbane. And so hopefully you can provide the same relief in that respect.

There are some similarities between the Brisbane case and this case. Theirs is a case of Referendum. This is an Initiative. The Brisbane case was over a Growth Management Act, a local Ordinance, and of course this is also related to Critical Area Ordinance, which is required for counties to plan under the Growth Management Act.

But that is where the similarities end. There are striking differences between the Charters pf Whatcom County and Clallam County, and I would direct your attention to the analysis that was made in the case of Brisbane, where the Supreme Court did not say that all local entities were invalid. What they did was an analysis.

They proposed that the Whatcom County Referendum process was valid and then they went on to analyze whether that Referendum would be inconsistent and conflict with the goals of the Growth Management Act.

And they concluded that it did, and therefore they could not invalidate or prohibit that Whatcom County Referendum.

But in order to make that analysis, they really had to look at the language of the Charter, and that’s what I would ask this Court to do for the Clallam County Charter---is look at the language---is that analysis applicable to this case?

And I think it's not because when you look at the Whatcom County Charter language, the Supreme Court cites that language and says that the people of Whatcom County reserve to themselves the power to make certain proposals for themselves, independent of the County Counsel.

Now that is not the case here in Clallam County. Under Article V111 of the Charter, there is a provision where an Initiative is a proposed Ordinance to the Board of Commissioners, and the Board is required to hold public hearings just as it would if it were passing a Critical Area Ordinance.

And the Board is given the option---three choices of legislative action.

The first legislative action that they could take is to adopt the proposed Ordinance and not send it on to the voters.

The second choice that they could make for legislative action is to go with an alternative Ordinance, along with the proposed Ordinance, and send them back to the voters and let the voters decide.

The third option is to provide no alternative and merely send along the proposed Ordinance to the voters for a vote.

But in all of these cases, and the language is very explicit, there is action by the Board of Commissioners. They are directly involved, and this is quite distinct from the analysis that was made in the case of Brisbane.

Also, I think that you could create certain absurd results by applying the rule in Brisbane, to this case here, because the Clallam County Charter goes on to state that even the Board of Commissioners could do their own Referendum on a Critical Area Ordinance.

Now I’m not suggesting that the Board of Commissioners would, but you could have an absurd result where the proposed Ordinance would be valid if proposed as a Referendum from the Board of Commissioners, but not if it comes as an Initiative from the people.

I don’t think it would be appropriate or applicable to use the rule in Whatcom County versus Brisbane, because that case really focuses on the process of where legislative power is vested, and they conclude that this legislative power cannot be exercised independent of the County Counsel. And of course, in the Whatcom County Charter, that is not the case---it’s not independent, it is dependent upon---it cannot be done independently.”

Brentnall--- “Excuse me. I thought in Whatcom County, it could be done independently and in Clallam County it could no be done independently.”

Ford--- “Correct, I misspeak there momentarily. I was saying, the Clallam County Charter cannot be done independently of the Board of Commissioners.

I see that my time is up, and I thank you for the extra time to address the court.”

Brentnall--- “Thank you, Mr Ford. Judge Armstrong, do you have any questions that you would like to address to Mr. Melly, or anybody?”

Armstrong--- “No.”

Brentnall--- “Thank you very much, counsel.”

(The judges should be writing their opinion by approximately January 2003.)