Initiative 6 goes to appeals court: Citizens claim right under Constitution has been sidestepped by unelected board

By Sue Forde, Editor
Citizen Review Online

Photos by Nikki Forde

Oct. 2, 2002


Tacoma, WA - 9/4/02 - Citizens' right to vote and participate in their own governance, along with the question as to whether an unelected appointed state hearings board can effectively make laws for counties were the two main issues brought before the Washington State Appeals Court on Sept. 4.

Bob Forde, speaking for himself and the 3,800 people who signed Initiative 6 - Repeal of the Clallam County Critical Areas Ordinance, spoke for five minutes before the State Appeals Court to plead his case which had earlier been submitted by legal briefs. He told the judges that he had always thought that government by the consent of ordinary citizens is the cornerstone of American democracy, as guaranteed in the U.S. Constitution and Bill of Rights, and the Washington State Constitution.

"I don't remember voting for members of any Growth Management Hearings Board(GHB), but
learn that they have been given power to invalidate our local laws," Forde stated. "I understand that the Hearings Boards issue orders to my elected leaders eliminating policy options that were adopted with widespread citizen participation and support," he continued.

"I remember when the GMA was sold as 'bottom-up' planning," Forde explained. "Everyone now recognizes that for the lie it was." He said he wouldn't like, but could accept "top-down" planning, since at least policy set by the state legislature would be subject to citizen control.

"The GMA has evolved into 'middle-out' planning, with the 'middle' occupied by non-elected GHB members," Forde stated. The loss is a "voters' loss", for the "ballot box is meaningless if elected leaders are powerless to work the voters' will," he continued. "Extinction of initiative/referendum rights is the final nail in the voters' coffin."

Forde concluded that he believed the State Supreme Court did not intend to eliminate the cornerstone in its previous rulings.

Acting Chief Judge Christine Quinn-Brentnall presided, with Judges Elaine Houghton and David H. Armstrong listening carefully.

Bob Rowley of Rowley and Clausen spoke next, representing the amicus parties to the lawsuit. He reiterated what Forde had said about the hearings board because "we think that that issue is critical".

Rowley stated his case: "Our primary premise is that, when the Supreme Court decided Anderson and Whatcom versus 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." He said they believe that if the court been faced with that choice, it would have decided those cases differently. "The terrain has changed through what I refer to as the 'evolution of the revolution' - the land use planning revolution."

He explained that when the previous court cases were decided, the legislature had not yet amended the Growth Management Act (GMA) by enacting RCW 36.78.302 where legislative power was extended to the Growth Hearings Boards "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" he asserted. Public participation had been an important part of the GMA before, but after the advent of the Hearings Boards, the counties simply rubber-stamped the decisions that were handed back from the Boards, he said.

"Now, had the Supreme Court been faced with this kind an elimination of voters' control," Rowley stated," 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." To take that policy power from your elected leaders 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, he said. "If you can't change the policies, it is irrelevant that you are changing your elected leaders," he added.

Chris Melly spoke on behalf of Clallam County. He's the assistant prosecuting attorney for the county, and was responsible for bringing the idea of a declaratory judgment against Forde in the first place to prevent Initiative 6 from going to the ballot box. He claimed that it's 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."

Judge Brentnall asked, "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 responded, "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 asked, "What's your authority for that proposition?"

Melly responded, "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".

Melly continued, "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."

"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," Melly said.

Judge Brentnall interrupted to say, "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… Are you asserting under those circumstances that it wouldn't be necessary to have public participation?"

Melly said that the entire process would have to start over in that situation. He continued that the people lack authority at the local level to make changes to an ordinance initiative under the GMA. "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," he stated.

Tim Ford, attorney for the BIAW, spoke next. He addressed the question of what the appeals court could do in this case: a remand. "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," Ford said.

"But, that is where the similarities end. There are striking differences between the Charters of 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."

Ford said the court needs to look at the language in each of the Charters to determine the differences. In Clallam County, he said, 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.

Ford said the County Commissioners are given 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."

The Appeals Court judges will now review the case, and issue their decision within the next three to four months. Ironically, Mr. Melly submitted a subsequent letter to the court to answer the question he could not during the oral arguments. In response, Bob Forde submitted a letter stating that Melly's argument about the fact that the constitutionality issue had not come forward before was incorrect; it was a foundational argument during the first court hearings.

Background:

Initiative 6 - Repeal of the Critical Areas Ordinance (CAO) in Clallam County - was not allowed to go to the voters' booth despite the fact that the required number of validated signatures had been collected to place it on the ballot. The lower court had ruled that the people had no right to repeal any local ordinances passed under the state Growth Management Act (GMA).

Local citizens were fed up with the onerous code, which had been amended and finally repealed by the county commissioners in favor of an even more stringent version, thanks to previous versions being unacceptable to the Washington State Growth Hearings Boards. The Board is appointed by the governor (and therefore not held accountable to the people). It reviews local ordinances passed under the state's Growth Management Act (GMA) to determine whether they comply with the intent of the legislature.

Locals complained that they were losing the use of their property, without being compensated for the loss, due to buffer requirements and arbitrary and confusing language under the CAO. Because of environmental lawsuits, the Growth Hearings Board (GHB) sent the ordinance back to the county several times, stating that it was "unacceptable," but not telling the commissioners what "was" acceptable, leaving the county staff guessing about how far they must go to get the Board's approval.

What began as a simple initiative drive to get a repeal of a local critical areas code on the ballot in Clallam County has turned into a time-consuming and costly battle for one individual, thanks to a county's lawsuit, backed by environmentalist groups.

Last year, Bob Forde gathered approximately 3,800 signatures to place Initiative 6 on the county ballot. Signatures were validated by the county auditor, and the measure prepared to go forward under the county's home rule charter (county constitution).

The county assistant prosecuting attorney, Chris Melly, along with county commissioners Steve Tharinger (D) and Mike Doherty (D) apparently decided that the people shouldn't have the right to vote on the issue, however.

Instead, they sued Forde for a declaratory judgment, knowing he didn't have the resources to fight a court battle. They were joined in the lawsuit by Protect the Peninsula's Future and 1000 Friends of Washington.

Forde didn't give up as anticipated, however. He went forward, defending himself - and was joined by the BIAW [Building Industry Association of Washington]. After four elected judges quickly recused themselves from hearing the case, an appointed judge ruled in favor of the county and the environmental organizations.

Forde believed the local courts were biased in the case, so he appealed to the state Supreme Court. After months of waiting, the Justices decided not to hear the case directly, but referred it down to the Appeals Court. Meanwhile, Forde's story had been told, and several other organizations, individuals and a county joined him, submitting an "amicus" brief to the court. These included two state representatives (Jim Buck and Joyce Mulliken), a state senator (Tim Sheldon), the Evergreen Freedom Foundation, the WA State Farm Bureau, and Ferry County.

The long-awaited oral arguments were held on Sept. 4 at the Tacoma Appeals Court. Speaking for Initiative 6 was Bob Forde, pro se, Tim Ford for the BIAW, and Robert Rowley for the amicus. Chris Melly spoke for Clallam County; the environmentalists did not send their attorney to present their case.

Click here for the entire transcript of the hearing.

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