Local court rules against initiative of the people;
Anne Wagner, Citizen Review Online
Clallam County, WA - 9/19/01 -Pro-tem judge William Knebes, who usually hears family court matters, thanked the parties in the Critical Areas Code Repeal Initiative case today for allowing him an education in the matter. He explained that he's grateful to go back to hearing family court matters after putting in a difficult two weeks of reviewing documents pro and con for placing Initiative 6 on the ballot.
After hearing both side of the argument, Knebes ruled that the issue will not go on the ballot because of his interpretation of two other court cases involving referendums in other counties.
Knebes, a county employee, was hearing the case because the two Superior Court judges had recused themselves for "conflict of interest".
Clallam County is one of five counties in Washington State which has a home rule charter. In the charter, as in the state constitution, the people have granted authority to the legislature, but reserved to themselves the right of the initiative and referendum as a method of assuring themselves that the legislators won't get too far out of line.
Initiative 6 - Repeal of the Critical Areas Code - met the criteria as far as ballot title and number of signatures. It got stopped on its way to the ballot box, however, by County Commissioners Steve Tharinger (D) and Mike Doherty (D), who chose to send it to the courts, rather than to the people for a vote.
Assistant Prosecuting Attorney Chris Melly represented the county, and Gerald Steel, P.E., was the attorney representing 1000 Friends of Washington and Protect the Peninsula's Future (PPF), who had joined the county's side to try and keep the people from voting on the matter.
Bob Forde, a citizen and one of the 3,700 individuals who had signed Initiative 6 defended his position without benefit of a lawyer. He was sued by Clallam County for a declaratory judgment to keep the initiative off the ballot based on the argument the issue is "outside of the scope of the initiative power" of the people. Forde was named as the only defendant in the lawsuit on behalf of the "committee to repeal the Critical Areas Code" because he had turned in the signatures to the county auditor.
Standing beside him was Tim Ford, representing the BIAW (Building Industry Association of Washington), to argue in favor of the initiative process.
Essentially, the argument the county brought forth dealt with two court cases that had been heard by the state Supreme Court covering referendums that had been initiated by the citizens of Whatcom and Snohomish Counties to amend their critical areas codes. In one of the cases, the people had won at a lower court, only to have the verdict overturned at the higher court.
"The Brisbane case [Whatcom County] is almost identical to this one," stated Melly. "Whatcom County is identical to this case today," he continued as he talked about the referendum process.
Melly continued, saying that the GMA proposed that there be an "extreme amount of participation in these schemes statewide." He pointed out that there had been public hearings, referring to a written statement made by Bob Martin, director of the county community development department. "There was a huge amount of public participation in the development of this law."
There is no reference in the GMA to the right of the people or initiative power of the people, Melly said. They "cannot have direct legislation under the GMA," he added. He talked about the flood control statute and managing flood areas. One of the components of flood management is that the minimum standard has to be met via the flood insurance program, he explained.
If the county was "out of compliance", there would be penalties, he argued.
He then referred to the argument that the issue couldn't call for a declaratory judgment because it wasn't on the ballot.
"The [state] Supreme Court has said the CAO [critical areas ordinance] is not within the scope" of the initiative power of the people, argued Steel. The Growth Management Act is a "statewide" concern, delegated to the legislative body.
Legislature authorized cannot be carried out by initiative or referendum - a "yes" or "no" vote is too simplifed; it can't be done that way, Melly argued. (The county code - 37.01.170 - states that a declaratory judgment action can be brought in which a proposed ordinance is "on the ballot", and that such action shall not "stay the election.")
The only rational reading is to read 37.01 if it's not within the scope of the people, Melly said, adding his own interpretation to the way the code was written.
"Does the power lie with the people, or does the power lie" with the county commissioners? Melly queried.
Melly then asked the court to rule based on the two Supreme Court decisions and the interpretation of 37.01 by the county.
Steel, representing PPF and 1000 Friends, stated "we concur with the analysis of the county on these issues." He said the legislature appears to be satisfied with the Brisbane decision, since they address this issue every time, and haven't seen fit to overturn it.
The GMA is a "statewide concern," Steel said, delegated to the legislative body. Legislative authority cannot be carried out by initiative or referendum. He argued that you can't use the initiative or referendum "permission" to go against a "general" law. The GMA is a "general" law, he added.
Bob Forde argued that there was a vast difference between an initiative and a referendum, and that the two cases heard by the Supreme Court were referendums, not initiatives.
"The only prohibition to the initiative process is clearly written in the [Home Rule] charter," he said. This issue is not excluded from the initiative process. He referred to the initiative authority of the people reserved under the Washington State Constitution.
"The GMA is a series of components - timber, etc. - these are guidelines," Forde argued. "The critical areas framework in the GMA is not a 'mandate'... the repeal of the CAO would not damage the GMA. He continued that the two supreme court cases "do not apply" to this case.
"A waste of time and money is already in the process," Forded added. "The CAO is a burden on the people - an extreme burden," he articulated.
"This is, in fact, a political protection of individual rights; ours here in Clallam County is the initiative process," Forde argued. "How can the power of the case law be greater than the Constitution? I don't think it can."
The people were adamantly opposed to this critical areas ordinance, said Forde. “I was present at most of the public hearings, and the people were against the way the ordinance was written. It was passed anyway,” he said.
"Let the people exercise their right to vote on the initiative," Forde pleaded. Then, if the county sees fit, it can bring a lawsuit. Let's see what the people think. This issue will probably go to the state Supreme Court, he added.
Knebes said that allowing it to go to the voters wouldn't affect the supreme court's decision in the matter.
Tim Ford argued aspects of the two court cases being used as the premise for denying the people's right of imitative in this one. He asked the judge to look at the language in the home rule charter of the other two counties, and compare it with the language in the referendums. Each case is different, he said. The language in their charters may be different than our charter; the language in their referendums were different than our initiative. “Please take these into consideration,” he requested of the judge.
The judge, a county employee, listened to the arguments, and in the end, ruled in favor of the county. "Is this initiative in conflict with "general" laws? he pondered. Even though we have a constitution, you can file a repeal initiative for that, he said. "Funny how these charter counties find themselves in the courts," he concluded.
The courts have not distinguished between the initiative and referendum, Knebes continued. He said that the Brisbane case went to election and the voters overwhelmingly voted for it. "Talk about dashed hopes for the electorate," he pontificated.
Knebes said the GMA "allows you to have 'input'". He then ruled in favor of the county.
Steel requested that the county commissioners be prohibited from ever placing the initiative on the ballot. Knebes denied the request.
Forde requested that the judge deny the attorney's fees that Steel had requested from Forde and BIAW. Knebes said if he had the power to rule, he ruled against Forde having to pay the attorney's fees.
In a statement after the hearing, Forde said that this issue is not dead. "It was no real surprise in this ruling," he stated. "At this level, we've got a county-paid judge, a county-paid prosecuting attorney, and county-paid commissioners, versus the taxpayers who pay their salaries. We'll be taking it to a higher court."