NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Thursday, August 12th, 2021

Lawsuit filed to block Charter Amendment 29 from the November 2021 Seattle ballot

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

The Seat­tle Times’ Scott Green­stone spoke to the UW’s Hugh Spitzer to get his take on the law­suit, as well as Lowney, for an arti­cle that ran this morn­ing:

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.

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