# Filo Foods, LLC v. City of SeaTac > Court of Appeals of Washington · February 10, 2014 · 179 Wash. App. 401 URL: https://www.frixlaw.com/law-library/cases/4762622 ## Case - **Full name:** Filo Foods, LLC v. The City of SeaTac, SeaTac Committee for Good Jobs - **Court:** Court of Appeals of Washington - **Decided:** February 10, 2014 - **Citations:** 179 Wash. App. 401; 319 P.3d 817 - **Precedential status:** Published - **Opinion:** Concurrence by Dwyer - **Judges:** Dwyer, Leach, Spearman - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4762622 ## Opinion text Dwyer, J. ¶22 (concurring) I wholeheartedly agree with the majority opinion. I write separately to address two remaining, vexing issues, both of which arise from the city’s institution of its Petition Review Board. *411 ¶23 At the time of the instant dispute, the city’s Petition Review Board consisted of its mayor, its city manager, and its acting police chief. Both its method of creation and its membership speak to its existence as a component of the city’s executive branch. ¶24 The relevant city ordinance provides that “[t]he Board shall consider and act upon any evidence or reports of temporary or permanent alteration of petitions, or any other matters relating to initiative and referendum petitions which the Board may determine to warrant investigation, report to the City Council, or legal action.” SeaTac Municipal Code 1.10.170. This is a broad grant of power, given the ordinance’s “or any other matters” language. ¶25 From the briefing, it appears that the city’s representatives are of the opinion that the Petition Review Board possesses at least two powers that it can not lawfully possess. ¶26 Initially, the Petition Review Board cannot, and therefore does not, possess the power to rule on the legal sufficiency of the subject matter of a petition. To the contrary, “the determination of the validity of an initiative is ‘exclusively a judicial function.’ ” Eyman v. McGehee, 173 Wn. App. 684, 692 , 294 P.3d 847 (2013) (quoting Philadelphia II v. Gregoire, 128 Wn.2d 707, 714 , 911 P.2d 389 (1996)). “[Reviewing the substance of a proposed initiative is exclusively a judicial function, not a role for other governmental actors.” Eyman, 173 Wn. App. at 690 . ¶27 Nor does the Petition Review Board possess the power to second-guess, countermand, or modify the county auditor’s 27 determination as to the number of valid signatures contained on a petition or the validity of any individual voter’s signature set forth thereon. The authority to make these determinations is vested solely in the county auditor. *412 ¶28 The relevant statute provides: Sufficiency of petitions. Wherever in this title petitions are required to be signed and filed, the following rules shall govern the sufficiency thereof. (3) The term “signer” means any person who signs his or her own name to the petition. (4) To be sufficient a petition must contain valid signatures of qualified registered voters or property owners, as the case may be, in the number required by the applicable statute or ordinance. Within three working days after the filing of a petition, the officer with whom the petition is filed shall transmit the petition to the county auditor for petitions signed by registered voters, or to the county assessor for petitions signed by property owners for determination of sufficiency. The officer or officers whose duty it is to determine the sufficiency of the petition shall proceed to make such a determination with reasonable promptness and shall file with the officer receiving the petition for filing a certificate stating the date upon which ¡ such determination was begun, which date shall be referred to as the terminal date. Additional pages of one or more signatures may be added to the petition by filing the same with the appropriate filing officer prior to such terminal date. Any signer of a filed petition may withdraw his or her signature by a written request for withdrawal filed with the receiving officer prior to such terminal date. Such written request shall so sufficiently describe the petition as to make identification of the person and the petition certain. The name of any person seeking to withdraw shall be signed exactly the same as contained on the petition and, after the filing of such request for withdrawal, prior to the terminal date, the signature of any person seeking such withdrawal shall be deemed withdrawn. RCW 35A.01.040 (emphasis added). ¶29 This statute makes clear that, in the case of petitions signed by registered voters, it is’the county auditor who is charged by law with the “duty” “to determine the sufficiency of the petition.” This statute is unambiguous. It is found in Title 35A RCW, the title that allows for the *413 establishment of optional municipal code cities and defines how such cities shall be governed and operated. SeaTac is an optional municipal code city. This statute, by its plain language, does not accommodate a city Petition Review Board sitting as an appellate authority over the work of the county auditor. The city’s arguments to the contrary, premised as they are on statutory provisions found in other RCW titles or on the general plenary power of optional municipal code cities, are unavailing. ¶30 In short, the SeaTac Petition Review Board acts unlawfully when it rules on the legal sufficiency of the subject of a petition or second-guesses the determination of the county auditor as to the “sufficiency of the petition.” ¶31 I have no doubt that the council members of SeaTac are good, well-intentioned people. They clearly do not fear the popular will — if they did, they would not have granted their residents initiative and referendum powers in the first place. I am confident that they will avail themselves of the opportunity to reconsider the problematic ordinance herein discussed. Reconsideration denied February 27, 2014. Review denied at 181 Wn.2d 1006 (2014). In King County, the election-related duties of the county auditor have been assigned by charter to the Director of the Elections Department. Because the relevant statute references the county auditor, so will I. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4762622. Public record. Not legal advice.