Earlier this month, King County Elections certified that a charter amendment proposed by a coalition hoping to amend Seattle’s plan of government to add new directives regarding homelessness had qualified for the ballot, though barely. Within days of that announcement, the Seattle City Council placed the amendment before voters to consider this autumn, setting the stage for what was expected to be this year’s highest profile ballot measure battle.
Yesterday, however, several groups opposed to Charter Amendment 29 filed a lawsuit in King County Superior Court, arguing that CA 29 exceeds the scope of the local initiative power and should be blocked from consideration.
The plaintiffs include the American Civil Liberties Union, the Transit Riders Union, and the Seattle/King County Coalition on Homelessness. They are represented by Seattle attorney Knoll Lowney, who is also counsel for Washingtonians For Ethical Government, a nonprofit of which I serve as president of.
The complaint submitted by Lowney — which names King County and King County Elections Director Julie Wise as a defendant in her official capacity, in addition to Compassion Seattle, the coalition hoping to pass the measure — contends that the subject matter of Charter Amendment 29 falls outside the scope of what a charter amendment originated by a coalition can address.
It cites prior cases that Lowney himself has been involved in, including one several years ago that resulted in a measure backed by now-King County Republican Chair Joshua Freed being blocked from the ballot by the Washington State Supreme Court. (The measure in question tried to exploit fears about safe injection sites to constrain Seattle-King County Public Health’s authority.)
If the lawsuit is successful, CA 29 would be removed from the ballot, and would not be considered by Seattle voters this autumn along with races for Mayor, City Attorney, and City Council (At-Large). NPI’s polling, which Compassion Seattle cited in its response to the lawsuit, indicates that the measure has an early lead with Seattle voters. 61% of respondents surveyed by Change Research for NPI last month expressed support, while 24% expressed opposition.
Whichever side loses at the trial court level (King County Superior Court) is almost certain to appeal to the Washington State Supreme Court, given the stakes.
The Supreme Court usually takes these types of cases, and whatever ruling it hands down will be final. King County Elections needs to mail ballots for the November general election by mid-September, so the courts (trial and appellate) will collectively have about one month to hear this case and return a verdict.
The complaint can be read in its entirety below.Complaint against Charter Amendment 29
It’s unclear how far the lawsuit will go in the courts.
Hugh Spitzer, a University of Washington law professor, said he’s been on the losing end of similar lawsuits.
“The courts tend to avoid interfering with local choices,” Spitzer said, and beyond that, courts don’t like to rule on “nonexistent” legislation. “It’s too early. They say you gotta wait until it either passes or doesn’t pass.”
But Knoll Lowney, the attorney representing the plaintiffs, feels confident the lawsuit will be successful, because he filed a similar one against a safe injection site ban in King County that was struck down by a judge in 2017, and the state Supreme Court upheld that decision.
“These cases happen all the time,” Lowney said. “It’s pretty hard to defend a local initiative or referendum, and this one is unlikely to survive.”
Knoll Lowney is correct: these cases actually do happen on a surprisingly frequent basis, and they often result in measures being nixed from the ballot.
Aside from the aforementioned King County measure that got unceremoniously nixed in 2017, there are cases in Tacoma and Spokane from the last few years that come to mind, which Lowney’s complaint logically cites.
Spitzer’s comments correctly describe how courts typically handle preelection challenges to statewide initiatives. The courts rarely agree to set aside a statewide initiative, although it has happened a couple of times. Just as Spitzer says, the courts will usually say, It’s too early. You gotta wait.
But local initiatives are different. Local initiatives often fall victim to scope challenges, whether those are brought by governments or measure opponents.
Statewide and local initiatives are kind of like apples and oranges: they are similar in some respects, just like those two kinds of fruits are, but also have important distinguishing characteristics that make them impossible to compare 1:1.
Having closely followed litigation surrounding ballot measures in Washington for over twenty years, I rate the plaintiffs’ chances of getting a favorable verdict as good to excellent. They have precedent working for them. I have no doubt Compassion Seattle will be well represented, and will make the best, most effective arguments they can, but the body of case law is simply not on their side.