Petition for Writ of Certiorari — Respect Washington, Petitioner v. Burien Communities for Inclusion, et al.

Supreme Court briefApr 7, 2020

Ask Donna

What actually matters in this document.

Text

APPENDIX A

IN THE COURT OF APPEALS

OF THE STATE OF WASHINGTON

BURIEN COMMUNITIES FOR No. 77500-6-I

INCLUSION, a Washington

DIVISION ONE

political committee,

UNPUBLISHED

Respondent,

OPINION

RESPECT WASHINGTON, a

Washington political committee,

Appellant,

KING COUNTY ELECTIONS;

JULIE WISE, King County

Director of Elections, in her

ofﬁcial capacity at King County

Elections; and CITY OF BURIEN, FILED:

September 9, 2019

Defendants.

APPELWICK, C.J.—On September 14, 2017, the trial

court granted Burien Communities for Inclusion (BCI)

a preliminary injunction, prohibiting Burien Initiative

1 (Measure 1) from being placed on the November 2017

ballot. Respect Washington appeals the preliminary injunction, arguing that (1) it violates the free speech

rights of the city of Burien’s (City) voters, (2) the trial

court erred in altering the status quo, and (3) BCI

failed to show substantial injury. It also contends that

Measure 1 is within the scope of the City’s initiative

power. We afﬁrm.

FACTS

On January 9, 2017, the Burien City Council

passed Ordinance 651 (Ordinance). The Ordinance is

now codified at Burien Municipal Code (BMC) 2.26.010.030. BMC 2.26.020 provides that “a City ofﬁce, department, employee, agency or agent shall not condition

the provision of City services on the citizenship or immigration status of any individual,” except as otherwise required by law. It prohibits City personnel from

initiating any inquiry or enforcement action based

solely on a person’s civil immigration status, race, inability to speak English, or inability to understand City

personnel or ofﬁcers. BMC 2.26.020(4) And, it forbids

City ofﬁcials from creating a registry for the purpose

of classifying people on the basis of religious afﬁliation,

or conducting a study related to the collection of such

information. BMC 2.26.030.

On July 7, 2017, Craig Keller, the campaign manager, treasurer, and ofﬁcer of Respect Washington, a

Washington political committee submitted an initiative petition to the City. The petition asked that an initiative repealing the Ordinance, Measure 1,1 be

submitted to a vote of the City’s registered voters. In

addition to repealing the Ordinance, Measure 1 would

add the following chapter to the BMC:

New Chapter 9.20 is hereby added to the

Burien Municipal Code “Public Peace, Morals

and Welfare” to read as follows:

Both parties refer to this initiative as “Measure 1.”

9.20 Citizen Protection of Effective Law Enforcement: The City of Burien shall not regulate the acquisition of immigration status or

religious afﬁliation unless such regulation is

approved by a majority vote of the City Council and a majority vote of the people at a municipal general election.

Two weeks later, the King County Department of

Elections found that a sufﬁcient number of signatures

had been submitted for Measure 1, and issued a certificate of sufﬁciency. The Burien City Council then voted

to place Measure 1 on the November 7, 2017 ballot.

On September 8, 2017, Burien Communities for

Inclusion (BCI), a Washington political committee,

ﬁled a complaint for declaratory and injunctive relief

against Respect Washington, King County Elections,

King County Director of Elections Julie Wise, and the

City. It sought a declaratory judgment that Measure 1

is invalid, arguing in part that (1) it exceeds the scope

of the City’s initiative power, and (2) the petition used

to gather signatures violates RCW 35.21.005. It also

asked the trial court to enjoin Measure 1 from being

included on the November 2017 ballot.

Three days later, BCI sought and obtained a temporary restraining order (TRO). The TRO prohibited

King County Elections and Wise from placing Measure

1 on the November 7, 2017 ballot. As a result, King

County removed Measure 1 from the ballot. In granting the TRO, the trial court ordered that, on September

13, the matter be heard on a motion for a preliminary

injunction, at which time the TRO would expire.2 The

deadline for King County Elections to send the ballots

to the printer was the next day, September 14.

On September 14, 2017, the trial court granted

BCI’s motion for a preliminary injunction. In doing so,

it ordered the following:

City of Burien Initiative Measure No. 1

(“Measure 1”) is invalid on the grounds

that (a) Measure 1 exceeds the scope of

the initiative authority granted to the

people of the City of Burien, that it is

administrative in nature, and (b) the petition used to gather signatures for

Measure 1 violated RCW 35.21.005 by

deviating from the requirements for the

contents and form of a petition, as set

forth in RCW 35.17.240 through

35.17.360;

Defendants King County Elections, Julie

Wise, King County Director of Elections,

and all agents of King County Elections

are prohibited from including or placing

Measure 1 on the November 7, 2017 ballot.

Respect Washington appeals.3

On September 12, 2017, BCI ﬁled a motion for a preliminary injunction, asking the trial court to enjoin King County Elections and Wise from including Measure 1 on the ballot.

Respect Washington did not seek a stay of the trial court

decision. Instead, on October 27, 2017, it ﬁled a motion with this

court, asking the court to treat the order as an appealable order

DISCUSSION

Respect Washington makes six arguments.4 First,

it argues that BCI is not entitled to any relief because

its complaint is barred by the statute of limitations

and laches. Second, it argues that the preliminary injunction violated the free speech rights of the City’s

voters. Third, it argues that the trial court erred in

granting a preliminary injunction that altered the

status quo. Fourth, it argues that BCI failed to show

that substantial injury would result from Measure 1’s

placement on the ballot. Fifth, it argues that Measure

1 does not exceed the scope of the City’s initiative

power, and is legislative in nature. And sixth, it argues

under RAP 2.2(a)(3), or, alternatively, to grant discretionary review. On January 3, 2018, this court ordered that review would

go forward as an appeal. The court explained that, despite not

obtaining a declaratory judgment or permanent injunction, as a

practical matter, BCI obtained the relief it requested.

As an initial matter, BCI argues that all of Respect Washington’s claims are moot. This case may be moot, because Measure

1 can no longer be placed on the November 2017 ballot. See Randy

Reynolds & Assocs., Inc. v. Harmon, 193 Wn.2d 143, 152, 437 P.3d

677 (2019) (ﬁnding that an appeal was moot because the Court of

Appeals could no longer offer effective relief ). However, Respect

Washington contends that Measure 1’s placement on another ballot is relief that this court can provide. Even if a case becomes

moot, “the court has discretion to decide an appeal if the question

is of continuing and substantial public interest.” Id. “Washington

courts have repeatedly entertained suits involving the right of initiative or referendum despite possible mootness because the

suits entail substantial public interest.” Glob. Neighborhood v.

Respect Wash., 7 Wn. App. 2d 354, 379, 434 P.3d 1024 (2019).

Accordingly, regardless of whether Respect Washington’s claims

are moot, we reach the merits of this case.

that the petition used to gather signatures did not violate RCW 35.21.005.5

Statute of Limitations and Laches

Respect Washington argues that BCI was not entitled to any relief because its claims were “barred by

the statute of limitations or laches.” It points out that

the Burien City Council voted to place Measure 1 on

the November 2017 ballot at a public meeting on August, 7, 2017. BCI did not ﬁle its complaint until September 8, 2017.

Respect Washington also argues that the trial court “erred

by shortening the time to respond to motions.” It states that, on

September 11, 2017, BCI ﬁled its motion for a TRO, the trial court

“scheduled a preliminary injunction hearing two days later,” and

this time frame “did not permit any party to comply with the rules

governing the ﬁling of motions.” It relies on King County Local

Civil Rule 7(b)(4)(a), which provides that “[t]he moving party

shall serve and ﬁle all motion documents no later than six court

days before the date the party wishes the motion to be considered.” However, under King County Local Civil Rule 65(b)(2), a

preliminary injunction hearing “shall be set in conformance with

the timing requirements of CR 65(b).” Thus, Local Civil Rule

7(b)(4)(a) does not apply. Under CR 65(b), “[i]n case a [TRO] is

granted without notice, the motion for a preliminary injunction

shall be set down for hearing at the earliest possible time and

takes precedence over all matters except older matters of the

same character.” And, “[n]o preliminary injunction shall be issued

without notice to the adverse party.” CR 65(a)(1). Respect Washington does not argue that it lacked notice of the preliminary injunction. As a result, the trial court did not err in setting a

preliminary injunction hearing two days after it granted BCI a

TRO.

Respect Washington asserts ﬁrst that BCI brought

its claims under the Uniform Declaratory Judgments

Act (UDJA), chapter 7.24 RCW. Because the UDJA

does not have its own statute of limitations, it states

that “courts are to apply an analogous statute of limitations.” Respect Washington points to three election

related statutes of limitations as examples.

First, a challenge to the ballot title or summary for

a state initiative or referendum must be brought

within 5 days from the ﬁling of the ballot title. RCW

29A.72.080. Second, a challenge to the ballot title for a

local ballot measure must be brought within 10 days

from the ﬁling of the ballot title. RCW 29A.36.090.

Third, a challenge to the Secretary of State’s refusal

to ﬁle an initiative or referendum petition must be

brought within 10 days after the refusal. RCW

29A.72.180.

This court recently considered an identical argument in Global Neighborhood v. Respect Washington, 7

Wn. App. 2d 354, 434 P.3d 1024 (2019). There, on February 22, 2016, the Spokane City Council placed Proposition 1 on the November 2017 ballot. Id. at 369.

Global Neighborhood did not ﬁle its complaint addressing the validity of Proposition 1 until May 2017, and

did not move fora declaratory judgment prohibiting

Proposition 1 from being placed on the ballot until July

28, 2017. Id. at 372-73. The trial court declared Proposition 1 invalid because it was administrative in nature and exceeded the local initiative power and

entered an injunction directing its removal from the

ballot. Id. at 374.

On appeal, Respect Washington asserted the statute of limitations as a defense, and provided this court

with the same election related statutes of limitations.

Id. at 380-81. This court stated that “[s]igniﬁcant differences lie between a challenge to the title of an initiative and a challenge to the substance of an initiative.”

Id. at 381. It explained,

The initiative if adopted will take effect regardless of any defect in its title. If any lawsuit will remedy the ﬂaw in the initiative’s

name, the lawsuit should be brought in advance of the election and in time for the secretary of state or local government ofﬁcial to

place a proper title on the ballot. A challenge

to a refusal to place an initiative on the ballot

also should be brought quickly in order to

remedy any wrongful refusal to consign the

measure to the ballot.

A challenge to a local initiative as exceeding

the scope of a municipality’s legislative power

may be brought after the initiative election. If

the challenge can be brought after the vote,

we should erect no impediment by reason of a

statute of limitations applying before the effectiveness of initiative as an ordinance.

Id.

As a result, it deemed the preelection challenge

to a ballot initiative “analogous to a challenge to an

adopted ordinance or statute.” Id. In Washington, “no

statute of limitations applies to a challenge to the

constitutionality of a statute or other action.” Id. This

court held that, similarly, “no statute of limitations

should apply to the challenge of an ordinance that exceeds the authority of the entity adopting the measure

whether by its legislative body or the voters by initiative.” Id. at 382. It also pointed out that many Washington decisions have “entertained preelection

initiative challenges without suggesting a statute of

limitations that applied before the election might bar

such a challenge.” Id. We adhere to that decision, and

that ﬁnd that BCI’s claims were not barred by a statute

of limitations.

Alternatively, Respect Washington argues that

BCI’s claims should have been barred by laches.

“Laches is an implied waiver arising from

knowledge of existing conditions and acquiescence in

them.” Buell v. City of Bremerton, 80 Wn.2d 518, 522,

495 P.2d 1358 (1972). The elements of laches are: “(1)

knowledge or reasonable opportunity to discover on

the part of a potential plaintiff that he has a cause of

action against a defendant; (2) an unreasonable delay

by the plaintiff in commencing that cause of action;

(3) damage to the defendant resulting from the unreasonable delay.” Id. None of these elements alone raises

a laches defense, Id.

Respect Washington also raised a laches defense

in Global Neighborhood. 7 Wn. App. 2d at 380. There,

the trial court issued its decision prohibiting Proposition 1’s placement on the ballot a week before the deadline for printing ballots. Id. at 384. Respect Washington

did not seek accelerated review by this court. Id. at 385.

10a

This court determined that, even if Global Neighborhood’s delay in ﬁling its complaint was unreasonable,

the delay did not harm Respect Washington. Id. at 384.

This court noted that Respect Washington failed

to cite authority for the proposition that a delay in appellate review constitutes harm for purposes of laches.

Id. at 384-85. Its claim also “assume[d] that this court

would reverse the superior court’s decision and allow

Proposition 1 to be submitted for a vote.” Id. at 385.

And, it assumed that “it had the right to vote on an

initiative that exceeded the initiative power.” Id. This

court pointed out that, “[i]f anything, the Spokane public is prejudiced by the expense incurred by the city of

Spokane in conducting a special election for an initiative beyond the scope of the initiative power.” Id. Last,

it noted that Respect Washington assumed that “this

court lacks authority to direct placement of Proposition 1 on a later ballot,” and “fail[ed] to recognize the

possibility of accelerated review by this court.” Id.

Similarly here, Respect Washington argues that

“[t]he delay until . . . the eve of printing the ballots—

never before done in the context of an initiative challenge—was an unreasonable delay.” Unlike Global

Neighborhood, BCI sought a TRO three days before the

printing deadline, sought a preliminary injunction two

days before the printing deadline, and was granted a

preliminary injunction on the same day as the printing

deadline. Respect Washington makes the same assumptions that it did in Global Neighborhood. Its

claim of harm assumes that this court would reverse

the trial court’s decision, and that it has the right to

11a

vote on an initiative that exceeds the initiative power.

And, again, it fails to recognize the possibility of accelerated review by this court.6

We adhere to our decision in Global Neighborhood

and ﬁnd that Respect Washington was not harmed by

BCI’s delay in seeking a TRO and preliminary injunction.

II.

Preliminary Injunction

Respect Washington makes three arguments regarding the trial court’s decision to grant a preliminary

injunction.7 It argues that the trial court (1) violated

In this case, Respect Washington did not seek accelerated

review by this court, or a stay of the trial court’s decision. Instead,

on October 27, 2017, it ﬁled a motion to determine whether the

preliminary injunction was an appealable order, and, alternatively, a motion for discretionary review.

Respect Washington also argues that the injunction is invalid because the trial court did not require BCI to post a bond.

Under CR 65(c), “Except as otherwise provided by statute, no . . .

preliminary injunction shall issue except upon the giving of security by the applicant.” (Emphasis added.) Respect Washington

agrees that BCI brought its complaint under the UDJA. Under

that Act, “The court, in its discretion and upon such conditions

and with or without such bond or other security as it deems necessary and proper may . . . restrain all parties involved in order

to secure the beneﬁts and protect the rights of all parties to the

court proceedings.” RCW 7.24.190 (emphasis added). Accordingly,

under RCW 7.24.190, no bond was required. See Yamaha Motor

Corp. v. Harris, 29 Wn. App. 859, 865, 631 P.2d 423 (1981) (holding that the trial court did not err in failing to require Yamaha to

post a bond where RCW 4.44.480 provides that the court may order a party to deposit money into the court “with or without

12a

the free speech rights of the City’s voters, (2) improperly altered the status quo, and (3) failed to show substantial injury.

This court reviews a trial court’s decision to grant

a preliminary injunction and the terms of that injunction for an abuse of discretion. Resident Action Council

v. Seattle Hous. Auth., 177 Wn.2d 417, 428, 327 P.3d

600 (2013). “A trial court necessarily abuses its discretion if the decision is based upon untenable grounds,

or the decision is manifestly unreasonable or arbitrary.” Kucera v. Dep’t of Transp., 140 Wn.2d 200, 209,

995 P.2d 63 (2000).

A party seeking a preliminary injunction must

show “ ‘(1) that he has a clear legal or equitable right,

(2) that he has a well-grounded fear of immediate invasion of that right, and (3) that the acts complained

of are either resulting in or will result in actual and

substantial injury to him.’ ” Tyler Pipe Industries, Inc.

v. Dep’t of Revenue, 96 Wn.2d 785, 792, 638 P.2d 1213

(1982) (quoting Port of Seattle v. Int’l Longshoremen’s

& Warehousemen’s Union, 52 Wn.2d 317, 319, 324 P.2d

1099 (1958)). This listed criteria “must be examined in

light of equity including balancing the relative interests of the parties and, if appropriate, the interests of

the public.” Id. If a party fails to establish any one of

these requirements, “the requested relief must be denied.” Kucera, 140 Wn.2d at 210.

security”). The trial court did not err in failing to require BCI to

post a bond.

13a

A. Free Speech

Respect Washington argues that the preliminary

injunction violates the First Amendment rights of the

City’s voters. Relying on Coppernoll v. Reed, 155 Wn.2d

290, 119 P.3d 318 (2005), it asserts that the State Supreme Court “has noted that there are free speech implications in even invalid initiatives.”

The Coppernoll court examined the extent to

which the Washington Constitution permits preelection review of a statewide initiative. Id. at 297, 299. In

doing so, it explained that “[b]ecause ballot measures

are often used to express popular will and to send a

message to elected representatives (regardless of potential subsequent invalidation of the measure), substantive preelection review may also unduly infringe

on free speech values.” Id. at 298. But, it recognized

that Washington courts have entertained preelection

review of two types of challenges to statewide initiatives: (1) whether a ballot measure fails to comply with

procedural requirements, and (2) whether a ballot

measure exceeds the scope of the legislative power under article II, section 1 of the Washington Constitution.

Id. at 298-99. Thus, the court recognized that some circumstances warrant preelection review.

Next, Respect Washington attempts to distinguish

this case from Port of Tacoma v. Save Tacoma Water, 4

Wn. App. 2d 562, 422 P.3d 917 (2018), review denied

192 Wn.2d 1026, 435 P.3d 267 (2019). There, the trial

court issued a permanent injunction preventing Save

Tacoma Water (STW) from placing two initiatives on

14a

the Tacoma municipal ballot that would limit the

availability of Tacoma’s water service. Id. at 566-67. It

determined that the initiatives were beyond the scope

of the local initiative power. Id. at 566.

On appeal, STW argued that the trial court’s determination and issuance of an injunction violated its

free speech rights under the federal and state constitutions. Id. at 576. This court disagreed. Id. at 577, 579.

It explained that this argument was rejected by the

Ninth Circuit in Angle v. Miller, 673 F.3d 1122 (2012),8

and differentiated the injunction from one that classiﬁes speech on the basis of subject matter or content.

Port of Tacoma, 4 Wn. App. 2d at 577-78. It stated,

[T]he injunction rests on the principles that a

measure is beyond the local initiative power

if it is administrative or in conﬂict with state

law. Neither the injunction nor the principles

on which it is based distinguish among

measures or in associated speech activities on

the basis of content or subject matter.

Id. at 578.

Similarly here, the preliminary injunction rests on

the principle that a measure is beyond the local initiative power if it is administrative in nature. Respect

Washington asserts that, unlike Port of Tacoma, “it is

the First Amendment right of the people of Burien

which has been violated.” This distinction between Respect Washington’s free speech rights, and the rights of

The Angle court held that “[t]here is no First Amendment

right to place an initiative on the ballot” id. at 1133.

15a

the City’s voters, is not meaningful. Respect Washington cites no authority for the proposition that the City’s

voters have a free speech right under the federal or

state constitutions to vote on an initiative that exceeds

the scope of the local initiative power. Where no authorities are cited in support of a proposition, this court

“may assume that counsel, after diligent search, has

found none.” DeHeer v. Seattle Post-Intelligencer, 60

Wn.2d 122, 126, 372 P.2d 193 (1962). Therefore, we do

not consider this argument. RAP 10.3(a)(6) (requiring

arguments to be supported by legal authority).

The preliminary injunction was based on the initiative exceeding the scope of the local initiative power,

not the substance of the policy stance taken. It does not

violate the free speech rights of the City’s voters.

B. Status Quo

Respect Washington argues that the trial court

improperly disposed of the entire case by granting BCI

“all that they sought in their [c]omplaint.” It states

that, by issuing the preliminary injunction on the same

date as the deadline for sending ballots to the printer,

the trial court “ensured that Measure 1 would not appear on the ballot and thus disposed of the case under

the guise of granting a preliminary injunction.” Respect Washington also contends that, by removing

Measure 1 from the ballot, the trial court improperly

altered the status quo that existed prior to BCI ﬁling

its complaint.

16a

First, Respect Washington asserts that the trial

court erred by effectively disposing of this case on the

merits when it granted the preliminary injunction. It

relies on a proposition from a 1940 State Supreme

Court case providing that, where a preliminary injunction would effectively grant all the relief that could be

obtained by a ﬁnal decree and would practically dispose of the whole case, it will not be granted. State ex

rel. Pay Less Drug Stores v. Sutton, 2 Wn.2d 523, 532,

98 P.2d 680 (1940).

In BCI’s complaint, it sought a declaratory judgment that “Measure 1 is procedurally and substantively invalid,” an injunction preventing Measure 1’s

placement on the November 2017 ballot, attorney fees

and costs, and “further relief as the [c]ourt deems just

and proper.” On September 14, 2017, the same day as

the printing deadline, the trial court issued a preliminary injunction ﬁnding Measure 1 invalid and preventing its placement on the November 7, 2017 ballot. The

court appeared to contemplate future action in the

case, stating that “[t]he injury if Measure No. 1 is

placed on the ballot now outweighs any delay in having

the Measure on the ballot at a future point in time;

mere delay is not the same as an outright denial.”

After the trial court issued the preliminary injunction, Respect Washington did not seek a stay of the

court’s decision, or accelerated review by this court.

Rather, it waited until October 27, 2017 to ﬁle a motion

with this court, asking us to treat the order as an appealable order under RAP 2.2(a)(3), or, alternatively, to

grant discretionary review. In January 2018, this court

17a

found the order appealable, and, in July 2018, the trial

court proceedings were stayed.

As a practical matter, the preliminary injunction

granted BCI the relief it sought—a determination that

Measure 1 is invalid, and an injunction preventing its

placement on the November 2017 ballot. But, the preliminary injunction was not a ﬁnal determination on

the merits of the case. It was ﬁnal only in the sense

that the issue did not appear on the November 2017

ballot. But, the trial court appeared to contemplate future action in the case by referring to the “delay” in

having Measure 1 “on the ballot at a future point in

time.” And, we agree that placing the measure on a future ballot was relief that remained available when the

preliminary injunction issued.

Accordingly, because the preliminary injunction

was not a ﬁnal determination on the merits, the trial

court did not improperly dispose of the case.

Second, Respect Washington argues that the trial

court improperly altered the status quo by granting

BCI a preliminary injunction. It states that the status

quo as of August 7, 2017 “was that Measure 1 was to

appear on the ballot.”

A preliminary injunction is designed to preserve

the status quo until the trial court can conduct a full

hearing on the merits. Serv. Emps. Int’l Union Local

925 v. Univ. of Wash., 4 Wn. App. 2d 605, 621, 423 P.3d

849 (2018), review granted 192 Wn.2d 1016, 438 P.3d

111 (2019). But, the State Supreme Court has repeatedly upheld trial court decisions preventing an

18a

initiative’s placement on a ballot. See, e.g., Spokane

Entrepreneurial Ctr. v. Spokane Moves to Amend Constitution, 185 Wn.2d 97, 100-01, 369 P.3d 140 (2016)

(afﬁrming trial court’s instruction that initiative be

struck from ballot after enough signatures were gathered to place it on ballot); Ruano v. Spellman, 81 Wn.2d

820, 821-22, 829, 505 P.2d 447 (1973) (afﬁrming trial

court’s decision to enjoin initiative from being placed

on ballot after it was certiﬁed that initiative had sufﬁcient signatures).

The status quo was that the Ordinance was in effect. The initiative sought to alter the status quo. Its

placement on the ballot was contingent upon satisfying

the legal requirements for an initiative. Whether it had

done so had not been established and was the subject

of the litigation. Respect Washington does not cite authority to the contrary. Where a party fails to cite authority in support of a proposition, this court “may

assume that counsel, after diligent search, has found

none.” DeHeer, 60 Wn.2d at 126.

The trial court did not improperly alter the status

quo by issuing the preliminary injunction.

C. Substantial Injury

Respect Washington argues that BCI has not

shown “any kind of substantial injury resulting from

Measure 1 on the ballot.” It asserts that, in BCI’s motion, the only speciﬁc injury it identiﬁed was the

“vague claim” of fear of and reluctance to engage with

19a

City personnel, ofﬁces, and services if Measure 1 becomes law.

In issuing the preliminary injunction, the trial

court stated,

The Court has carefully balanced the relative

interests of the parties and the interests of the

public. The injury if Measure No. 1 is placed

on the ballot now outweighs any delay in having the Measure on the ballot at a future point

in time; mere delay is not the same as an outright denial. The Court finds that Plaintiff

has established a clear legal right, a wellgrounded fear of immediate invasion of that

right, and that the action sought to be enjoined will result in actual and substantial injury.

BCI attached to its preliminary injunction motion

several declarations addressing future injury. One BCI

member, Hugo Garcia, stated that he has close friends

who shared that “they have stayed home and limited

the time they go out to restaurants or grocery shop due

to the anxiety and fear [from] the uncertainty of the

sanctuary city ordinance.” Rich Stolz, another BCI

member and Executive Director of OneAmerica, an immigrant and refugee advocacy organization, discussed

the effects of Measure 1 on the immigrant and refugee

community. He stated that the “polarizing debate over

[Measure 1] has raised fears in the immigrant and refugee community that they should not contact local law

enforcement if they need to report crimes or violations

of their own rights or property.”

20a

Sandy Restrepo, another BCI member and attorney, discussed the effect of Measure 1 on her immigrant clients. She shared that many of her immigrant

clients “have stated that they are afraid to send their

children to school, go to the grocery store and even call

the police to report a crime because the anti-immigrant

sentiment has increased since Respect Washington began collecting signatures.” She offered one example:

undocumented immigrant parents came to her ofﬁce

seeking legal advice, because they were afraid to report

to City police that their child was a victim of sexual

assault. They went to Restrepo ﬁrst to see if they would

risk deportation if they spoke to police ofﬁcers. She asserted that “[i]f these repeal efforts continue, our community will only continue to grow more afraid and not

be able to access basic services they are entitled to.”

Respect Washington argues that, even if BCI’s

claim of fear is not too vague, BCI’s claimed injury

“fails to support an injunction because of a lack of causation.” It relies on Clapper v. Amnesty International,

USA, 568 U.S. 398, 133 S. Ct. 1138, 185 L. Ed. 2d 264

(2013).

In Clapper, the plaintiffs sought an injunction

against surveillance authorized by Section 702 of the

Foreign Intelligence Surveillance Act of 1978, 50 U.S.C.

§ 1881 a. Id. at 401. They argued that they were suffering ongoing injuries fairly traceable to the law “because the risk of surveillance under § 1881 a require[d]

them to take costly and burdensome measures to protect the conﬁdentiality of their communications.” Id. at

415. The United States Supreme Court rejected this

21a

argument. Id. at 416. It found that “[r]espondents’ contention that they have standing because they incurred

certain costs as a reasonable reaction to a risk of harm

is unavailing—because the harm respondents seek to

avoid is not certainly impending.” Id. Thus, the Court

concluded that “respondents cannot manufacture

standing merely by inﬂicting harm on themselves

based on their fears of hypothetical future harm.” Id.

Unlike Clapper, the issue here is not standing, or

manufacturing standing. At issue here is whether residents of the City will be harmed by Measure 1’s placement on the ballot and passage. The declarations make

clear that harm will result when residents need to contact City employees regarding services or assistance

they are entitled to receive. Speciﬁcally, they make

clear that, if Measure 1 is placed on the ballot, residents’ fear of engaging with City personnel would persist. The mere possibility of Measure 1’s placement on

the November 2017 ballot made residents fearful of

deportation and question whether they should report

crimes to police. Even if the fear of deportation is a hypothetical future harm, residents’ decisions not to report crimes based on that fear would result in harm to

the community. And, if Measure 1 passes, residents

risk forgoing City assistance they are entitled to receive in order to avoid inquiries into their immigration

status. These harms are neither speculative nor manufactured.

The trial court did not abuse its discretion in ﬁnding that Measure 1’s placement on the ballot would result in actual and substantial injury.

22a

III. Local Initiative Power

Respect Washington argues that Measure 1

should not have been stricken from the ballot, because

it is within the scope of the local initiative power and

legislative in nature. The trial court determined that

Measure 1 is invalid because it exceeds the scope of the

initiative power and is administrative in nature.

Whether an initiative is beyond the scope of the local

initiative power is a question of law that this court reviews de novo. Protect Pub. Health v. Freed, 192 Wn.2d

477, 482, 430 P.3d 640 (2018).

This court generally disfavors preelection review.

Id. But, there are narrow exceptions to this prohibition. Id. One exception “involves determining whether

the ‘proposed law is beyond the scope of the initiative

power.’ ” Id. (quoting Seattle Bldg. & Constr. Trades

Council v. City of Seattle, 94 Wn.2d 740, 746, 620 P.2d

82 (1980)). While statewide initiatives are subject to

the scope of the state legislative power, local initiatives

are subject to the scope of the local legislative power.

Id. “These powers are not equivalent.” Id.

Under Amendment 7 to the Washington Constitution, “the people secured for themselves the right to

legislate directly.” City of Port Angeles v. Our WaterOur Choice!, 170 Wn.2d 1, 7-8, 239 P.3d 589 (2010).

However, Amendment 7 does not apply to municipal

governments. Id. The scope of the local initiative power

is instead governed by statutes and county charters,

“and preelection challenges are subject to a different

analysis.” Protect Pub. Health, 192 Wn.2d at 482. The

23a

State Supreme Court has recognized multiple limits on

the local initiative power, including the limit that “a

local ‘initiative is beyond the scope of the initiative

power if the initiative involves powers granted by the

legislature to the governing body of a city, rather than

the city itself.’ ” Id. at 482-83 (quoting City of Sequim v.

Malkasian, 157 Wn.2d 251, 261, 138 P.3d 943 (2006)).

A municipality’s governing body, also referred to

as its “legislative authority,” “includes the mayor and

the city council, but not the electorate.” Id. at 483.

“When the legislature enacts a general law granting

authority to the legislative body (or legislative authority) of a city, that legislative body’s authority is not

subject to ‘repeal, amendment, or modiﬁcation by the

people through the initiative or referendum process.’ ”

Mukilteo Citizens for Simple Gov’t v. City of Mukilteo,

174 Wn.2d 41, 51, 272 P.3d 227 (2012) (quoting Malkasian, 157 Wn.2d at 265). This court looks to the language of the relevant statute to determine the scope of

the authority granted by the legislature to the local

governing body. Id.

BCI argues that the legislature has delegated to

the City’s governing body, not the City itself, “the powers that Measure 1 seeks to wield through initiative.”

The City is a code city. BMC 2.26.010. Under RCW

35A.11.020, “The legislative body of each code city

shall have power to organize and regulate its internal

affairs within the provisions of this title and its charter, if any; and to deﬁne the functions, powers, and duties of its ofﬁcers and employees.” (Emphasis added.)

24a

Measure 1 seeks to repeal an ordinance that, under

RCW 35A.11.020, the legislature granted the Burien

City Council authority to pass—the power “to deﬁne

the functions, powers, and duties of its ofﬁcers and employees.” Measure 1 would also add a chapter to the

BMC providing that the City “shall not regulate the

acquisition of immigration status or religious afﬁliation unless such regulation is approved by a majority

vote of the City Council and a majority vote of the people at a municipal general election.” This provision

would further constrain the Burien City Council from

exercising its authority to deﬁne the functions, powers,

and duties of its ofﬁcers and employees on the subject

of immigration and religious inquiries.

Respect Washington argues that, in Our WaterOur Choice!, the State Supreme Court rejected a similar argument regarding RCW 35A.11.020. There, this

court struck two initiatives relating to the regulation

of Port Angeles’s water supply on the grounds that the

legislature intended Port Angeles’s legislative body,

not the city as a whole, to manage its water system.

Our Water-Our Choice!, 170 Wn.2d at 5, 14-15 n.7. It

relied on the provision in RCW 35A.11.020 that “ ‘[t]he

legislative body of each code city shall have all powers

[necessary for] operating and supplying of utilities and

municipal services commonly or conveniently rendered

by cities or towns.’ ” Id. at 14 n.7 (alteration in original).

The State Supreme Court afﬁrmed this court on

an alternative grounds, ﬁnding that the initiatives

were administrative in nature. Id. at 15-16. It did not

25a

reach the issue of whether the legislature intended

only for Port Angeles’s legislative body to manage its

water system. Id. at 14-15 n.7. But, it observed in a

footnote that, when read out of context, the citation to

RCW 35A.11.020 “could have unintended consequences.” Id. It explained,

Given that the same chapter of the RCW speciﬁcally authorizes noncharter code cities to

“provide for the exercise . . . of the powers of

initiative and referendum upon electing to

do so,” RCW 35A.11.080, reading RCW

35A.11.020 expansively strains the statutory

fabric. In our view, RCW 35A.11.020 grants

code cities broad, though speciﬁc, powers . . .

and does not necessarily speak to whether the

state legislature intended to grant those powers only to its municipal counterpart.

Id. (ﬁrst alteration in original). Thus, the court indicated that the powers the legislature granted the legislative bodies of code cities in RCW 35A.11.020 may

not be exclusive, and may be subject to a city’s initiative power. If that is the case, BCI’s argument fails.

Alternatively, the trial court here found that

Measure 1 is invalid because it is administrative in

nature. “[A]dministrative matters, particularly local

administrative matters, are not subject to initiative or

referendum.” Our Water-Our Choice!, 170 Wn.2d at 8.

Generally, “a local government action is administrative

if it furthers (or hinders) a plan the local government

or some power superior to it has previously adopted.”

id. at 10. The State Supreme Court has noted that

26a

discerning whether a proposed initiative is administrative or legislative in nature can be difﬁcult. Spokane

Entrepreneurial Ctr., 185 Wn.2d at 107. In one case, it

described the question as “whether the proposition is

one to make new law or declare a new policy, or merely

to carry out and execute law or policy already in existence.” Ruano, 81 Wn.2d at 823-24.

Measure 1 seeks to repeal the Ordinance, which

prohibits City employees from conditioning services on

an individual’s immigration status, and prohibits City

personnel from initiating an enforcement action based

solely on an individual’s immigration status, race, and

other factors. The Ordinance also states,

A goal of this legislation is to foster trust and

cooperation between city personnel and law

enforcement ofﬁcials and immigrant communities to heighten crime prevention and public

safety.

Since 1992, the King County sheriff ’s ofﬁce

has embraced this goal and outlined supporting policies in its operations manual, with

which this ordinance is consistent.

Another goal of this legislation is to promote

the public health of City of Burien residents.

On April 22, 2008, King County Superior

Court afﬁrmed the principle that our courts

must remain open and accessible for all individuals and families to resolve disputes on the

merits by adopting a policy that warrants for

the arrest of individuals based on their immigration status shall not be executed within

27a

any of the superior court courtrooms unless

directly ordered by the presiding judicial ofﬁcer and shall be discouraged in the superior

court courthouses, unless the public’s safety is

at immediate risk. Shortly after the afﬁrmation’s adoption, the King County Executive

and Immigration and Customs Enforcement

agreed to honor this policy.

In Global Neighborhood, this court found that a

similar initiative was administrative in nature, because it hindered a plan previously adopted by the local government. See 7 Wn. App. 2d at 399-400. There,

the Spokane City Council had enacted two ordinances

prohibiting Spokane Police Department ofﬁcers from

engaging in bias-based proﬁling, and, unless required

by law, from inquiring into a person’s immigration status. Id. at 367-68. These ordinances codiﬁed two previously adopted Spokane Police Department policies.

Id. at 367. One month later, Respect Washington submitted a proposed initiative, Proposition 1, that would

(1) amend one of the ordinances to eliminate citizenship status from the list of prohibited factors for city

police to consider during investigations, (2) repeal the

other ordinance, and (3) add a new code section that

would prohibit Spokane from limiting any city employee from collecting immigration status information

and sharing that information with federal authorities.

Id. at 360, 368.

In March 2017, Proposition 1 was placed on the

November 2017 ballot. Id. at 369. But, before the election, the trial court entered an injunction removing it

28a

from the ballot. Id. at 374. It determined that Proposition 1 was invalid because it was “administrative in

nature and thereby exceed[ed] the local initiative

power.” Id.

This court afﬁrmed the trial court on appeal. Id. at

405. In doing so, it recognized that Proposition 1 had

at least one characteristic in common with legislative

acts—it adopted “a rule of government permanent in

nature.” Id. at 398. And, it agreed with Respect Washington that Proposition 1 maintained some legislative

character “in that the initiative modiﬁe[d], if not reverse[d] in part, legislative policy established by the

city council.” Id. at 398-99. But, this court stated that

in “analyzing the legislative or administrative nature

of a municipal act, courts consider the framework of

the action.” Id. at 399. It explained that Proposition 1

challenged a Spokane policy, “whose framework’s base

consists of administrative building blocks.” Id.

Speciﬁcally, this court noted that Proposition 1 interfered with “Spokane Police Department policy to

limit the circumstances under which law enforcement

officers inquire about immigration and citizenship

status.” Id. Thus, it determined that Proposition 1 hindered a policy previously adopted by the local government. Id. It also observed that, though it was unaware

of any decision expressly holding that directions to employees constitute administrative policy, logic supports

the conclusion that “directions to employees constitute

administrative, not legislative, policy.” Id. at 400. And,

it emphasized “the need for expertise on the challenging and charged question of whether local government

29a

agents should question individuals about immigration

or citizenship status.” Id. It concluded that questioning

regarding one’s citizenship status should “be reserved

to the expertise of law enforcement administrators.” Id.

at 401.

Here, BCI does not argue that the Ordinance was

based on policies adopted by the Burien Police Department, similar to the ordinances in Global Neighborhood. But, a goal of the Ordinance is to “foster trust

and cooperation between city personnel and law enforcement ofﬁcials and immigrant communities to

heighten crime prevention and public safety.” The Ordinance is consistent with policies supporting this goal

in the King County Sheriff ’s Ofﬁce operations manual.9 The Ordinance also notes that the King County

Superior Court has adopted a policy that “warrants for

the arrest of individuals based on their immigration

status shall not be executed within any of the superior

court courtrooms unless directly ordered by the presiding judicial ofﬁcer.” And, it states that the Ordinance is

“intended to be consistent with federal laws regarding

communications between local jurisdictions and federal immigration authorities.”

Measure 1’s attempt to repeal the Ordinance and

forbid the Burien City Council from regulating immigration and religious afﬁliation inquiries is an attempt

to hinder a plan already adopted by the City. Rather

Consistency with the King County Sheriff ’s Ofﬁce operations manual is relevant, because the City contracts with the King

County Sheriff ’s Ofﬁce for police services.

30a

than a new law or policy, it is an obstacle to implementing the Ordinance, which is meant to be consistent

with King County policies and federal law.

The Ordinance also involves directions to City ofﬁcials, employees, and agents. It forbids them from

taking certain actions. Measure 1 would repeal these

directions. At oral argument, Respect Washington

agreed that Measure 1 is “untying [City staffs’] hands,”

and “saying . . . they are no longer prohibited from asking about immigration.” As this court noted in Global

Neighborhood, logic supports the conclusion that “directions to employees constitute administrative, not

legislative, policy.” 7 Wn. App. 2d at 400. Administrative matters are not subject to initiative or referendum. Our-Water-Our Choice!, 170 Wn.2d at 8.

And, as this court also noted, there is a need for

expertise on the question of whether local government

agents should question individuals about immigration

or citizenship status. Global Neighborhood, 7 Wn. App.

2d at 400. The “need to weigh conﬂicting goals before

establishing a policy of asking or withholding questioning regarding one’s citizenship status” is recognized in case law and literature. Id. at 400-01. “Local

law enforcement agencies must also navigate constitutional protections afforded residents before asking for

information on one’s status.” Id. at 401. Because these

factors implicate the success of law enforcement efforts, “questioning should be reserved to the expertise

of law enforcement administrators.” Id.

31a

Accordingly, we hold that Measure 1 is invalid because it is administrative in nature.10

We afﬁrm.

/s/ Appelwick, C.J

WE CONCUR:

/s/ Chun, J.

/s/ Verellen, J.

Because we hold that Measure 1 is invalid, we need not

reach Respect Washington’s argument regarding the petition

used to gather signatures for Measure 1.

32a

APPENDIX B

The Court of Appeals

of the

State of Washington

RICHARD D. JOHNSON,

Court Administrator/Clerk

January 4, 2018

DIVISION I

One Union Square

600 University Street

Seattle, WA

98101-4170

(206) 464-7750

TDD: (206) 587-5505

Dmitri L. Iglitzin

Schwerin Campbell

Barnard Iglitzin

18 W Mercer St Ste 400

Seattle, WA 98119-3971

iglitzin@workerlaw.com

Janine Elizabeth Joly

Ofﬁce of the

Prosecuting Attorney

500 4th Ave

Seattle, WA 98104-2337

janine.joly@kingcounty.gov

Laura Elizabeth Ewan

Schwerin Campbell

Barnard Iglitzin

18 W Mercer St Ste 400

Seattle, WA 98119-3971

ewan@workerlaw.com

Jennifer L Robbins

Schwerin Campbell

Barnard Iglitzin & La

18 W Mercer St Ste 400

Seattle, WA 98119-3971

robbins@workerlaw.com

Michael R. Kenyon

Kenyon Disend PLLC

11 Front St S

Issaquah, WA 98027-3820

mike@kenyondisend.com

Katelyn M Sypher

Attorney at Law

18 W Mercer St Ste 400

Seattle, WA 98119-3971

sypher@workerlaw.com

Hillary Evans Graber

Kenyon Disend

11 Front St S

Issaquah, WA 98027-3820

hillary@kenyondisend.com

Richard M. Stephens

Stephens & Klinge LLP

10900 NE 8th St Ste 1325

Bellevue, WA 98004-4748

stephens@sklegal.pro

33a

CASE #: 77500-6-I

Respect Washington, Petitioner v. Burien Communities

for Inclusion, Respondent

Counsel:

The following notation ruling by Commissioner Mary

Neel of the Court was entered on January 3, 2018, regarding Petitioner’s Motion for Discretionary Review:

In this pre-election challenge to an initiative petition,

defendant Respect Washington seeks review of trial

court order granting plaintiff Burien Communities for

Inclusion’s motion for a preliminary injunction, ruling

that the petition is invalid and prohibiting King

County from including or placing the measure on the

November 2017 ballot. Review will go forward.

On January 9, 2017, the Burien City Council on a 4-3

vote adopted Ordinance 651 (codiﬁed at Burien Municipal Code 2.26). The ordinance, titled “Immigration

Inquiries Prohibited,” bars City employees from conditioning services on citizenship or immigration status

and bars law enforcement and City ofﬁcials from making inquiries or taking enforcement actions based only

on a person’s immigration status, race, or inability to

speak or understand English, and prohibits the creation of a registry of religious afﬁliation. Respondent’s

Appendix (RA) at 23- 26. Among the goals of the legislation is to foster trust and cooperation between city

personnel and law enforcement with immigrant communities to heighten crime prevention and public health

and safety, consistent with policies of the King County

Sheriff ’s Ofﬁce and King County Superior Court.

34a

Craig Keller, a West Seattle resident and campaign

manager/treasurer/sole ofﬁcer of Respect Washington,

began an initiative campaign to repeal Ordinance 651

and amend another section of the Burien Municipal

Code to prohibit the City from regulating the acquisition of immigration status or religious afﬁliation without the vote of a majority of the electorate (Measure 1).

The initiative includes language that a “sanctuary

city” breeds disrespect for the law and a “call to action”

based on the premise that the ordinance chills deportation of criminals and threatens the safety of Burien

residents. RA at 34-36. On July 7, 2017, Keller presented elections ofﬁcials with signed petitions and requested that Measure 1 be placed on the November

2017 ballot. On July 21, 2017, the elections director

certiﬁed that enough signatures were veriﬁed. RA at

41-43.

On August 2, 2017, the Council considered its two

options: to adopt Measure 1 as set forth in the initiative petition, or adopt a resolution to place it on the

ballot. RA at 58. On August 7, 2017, at the Council’s

regularly scheduled meeting, it adopted Resolution

395, voting to place Measure 1 on the ballot. RA 50-51.

King County was prepared to place Measure 1 on the

November 2017 general election ballot and was scheduled to send the ballots to the printer on September 14,

2017. RA at 90.

On September 8, 2017, Burien Communities for Inclusion (BCI), a political action committee, ﬁled a complaint for a preliminary injunction. RA at 1-12. Respect

Washington opposed the motion.

35a

Courts generally disfavor reviewing initiatives prior to

enactment and will not consider a challenge to the substantive validity of a statewide initiative prior to the

election. Spokane Entreprenurial Center v. Spokane

Moves to Amend the Constitution, 185 Wn.2d 97, 104,

369 P.3d 140 (2016). But courts will conduct preelection review of local initiatives in two instances: procedural challenges, such as the sufﬁciency of signatures

and the ballot title, and challenges that the subject is

beyond the scope of the local initiative power. Id. An

initiative is beyond the scope of the initiative power if

it involves powers granted by the legislature to the

governing body of a city, rather than the city itself. In

other words, a grant of power to the city’s legislative

authority/body means the mayor and city council, and

not the electorate. Mukilteo Citizens For Simple Government v. City of Mukilteo, 174 Wn.2d 41, 51, 272 P.3d

227 (2012). An initiative is also beyond the scope of the

initiative power if it involves administrative matters.

Spokane Entreprenurial, 185 Wn.2d at 107. Generally,

a local government action is administrative if it furthers or hinders a plan the local government has previously adopted. Id. Accord Port Angeles v. Our WaterOur Choice, 170 Wn.2d 1, 10, 239 P.3d 589 (2010). One

way to phrase the issue is whether the ordinance

makes new law or declares a new policy, or merely carries out or executes existing law or policy. Id.

A preliminary injunction is an equitable remedy, the

purpose of which is to preserve the status quo until the

trial court can conduct a full hearing on the merits of

a claim. Northwest Gas Ass’n v. Wash. Utils. & Transp.

36a

Comm’n, 141 Wn. App. 98, 115-16, 168 P.3d 443 (2007).

To obtain injunctive relief, a party must show (1) that

it has a clear legal or equitable right, (2) that it has a

well-grounded fear of immediate invasion of that right,

and (3) that the acts complained of are either resulting

in or will result in actual and substantial injury. Kucera v. Dep’t of Transportation, 140 Wn.2d 200, 209,

995 P.2d 63 (2000); Tyler Pipe Indus., Inc. v. Dep’t of

Revenue, 96 Wn.2d 785, 792, 638 P.2d 1213 (1982). To

establish a clear legal or equitable right, the moving

party must show that it is likely to prevail on the merits at trial. San Juan County v. No New Gas Tax, 160

Wn.2d 141, 154, 157 P.3d 831 (2007).

On September 11, 2017, a superior court commissioner

granted a temporary restraining order, ruling that

Measure 1 is invalid, prohibiting its inclusion on the

general election ballot, and leaving the TRO in place

until the motion for a preliminary injunction could be

heard by a superior court judge on September 13, 2017.

Respect Washington was ordered to appear and show

cause why the TRO should be not converted to preliminary injunction. RA at 82-83.

On September 14, 2017, the trial court granted the motion for a preliminary injunction:

The Court has carefully balanced the relative

interests of the parties and the interests of the

public. The injury if Measure No. 1 is placed

on the ballot now outweighs any delay in

having the Measure on the ballot at a future

point in time; mere delay is not the same as

an outright denial. The Court ﬁnds that

37a

Plaintiff [BCI] has established a clear legal

right, a well-grounded fear of immediate invasion of that right, and that the action sought

to be enjoined will result in actual and substantial injury.

Being fully advised on the matter, the Court

GRANTS Plaintiff ’s Motion for Preliminary

Injunction and ORDERS that:

City of Burien Initiative Measure No.

1 (“Measure 1 “) is invalid on the

grounds that (a) Measure 1 exceeds

the scope of the initiative authority

granted to the people of the City of

Burien, that it is administrative in

nature, and (b) the petition used to

gather signatures for Measure 1 violated RCW 35.21.005 by deviating from

the requirements of content and form

of a petition, as set forth in RCW

35.17.240 through 35.17.360;

Defendants King County Elections

. . . and all [its] agents are prohibited

from including or placing Measure 1

on the November 7, 2017 ballot.

RA at 86-87.

Respect Washington seeks review of this order under

RAP 2.2(a)(3), or alternatively under RAP 2.3(b)(2).

Respect Washington argues that it has an appeal as of

right under RAP 2.2(a)(3), which provides for appeal of

“[a]ny written decision affecting a substantial right in

a civil case that in effect determines the action and

38a

prevents a ﬁnal judgment or discontinues the action.”

Respect Washington argues that the trial court order

did not merely ﬁnd that BCI was likely to prevail on

the merits, which is the standard for a preliminary injunction, but instead found that Measure 1 is invalid.

Respect Washington argues that the trial court order

granted BCI all of the relief it requested in its complaint, which was to “enjoin Measure 1 from being

included on the November 2017 ballot,” in effect determining and discontinuing the action.

Ordinarily a trial court order granting a preliminary

injunction is not appealable because it is a ﬁnal judgment. See Franklin County Sheriff v. Parmelee, 162

Wn. App. 289, 292-93, 253 P.3d 1131 (2011) (Franklin

County ﬁled notice of appeal/notice of discretionary review of tri court order issuing a preliminary injunction

enjoining release of records until hearing could be held

on request for permanent injunction; appellate court

commissioner ruled the order was not appealable and

granted discretionary review). Review instead is available if the petition meets the criteria for discretionary

review. See Filo Foods LLC v. City of SeaTac, 179 Wn.

App. 401, 405, 319 P.3d 817 (2014) (trial court order

removing initiative from general election ballot substantially altered the status quo by depriving voters

of chance to vote for or against it court of appeals reversed, and measure appeared on ballot). Respect

Washington does not have an appeal of right under

RAP 2.2(a) because there has been no ﬁnal judgment.

BCI sought a declaratory judgment that Measure 1 is

procedurally and substantively invalid and an

39a

injunction preventing Measure 1 from being placed on

the ballot. RA at 11. The trial court declared Measure

1 invalid and prohibited it from being placed on the

ballot. BCI argues that it neither obtained a declaratory judgment nor a permanent injunction. And the

trial court order, referring to mere delay in giving

Burien citizens an opportunity to vote on Measure 1,

appears to contemplate further action. But as a practical matter, BCI obtained the relief it requested. The

trial court enjoined King County Elections ofﬁcials

from placing Measure 1 on the ballot. The superior

court docket shows BCI has no taken further action in

the trial court to obtain a permanent injunction or

other relief. In this particular circumstance, Respect

Washington makes a persuasive argument that the

trial court order in effect determined and discontinued

the action and is therefore appealable under RAP

2.2(a)(3). I need not consider whether the trial court

order is probable error.

As BCI notes, during the same time frame, the City of

Spokane adopted an ordinance similar to Burien Ordinance 651. Respect Washington obtained sufﬁcient

signatures on its initiative petition to delete the ordinance (Proposition 1). The trial court granted Global

Neighborhood’s motion for declaratory relief, declared

Proposition 1 invalid (as administrative and therefore

beyond the scope of the initiative power), and prohibited it from being placed on the November 2017 ballot.

Respect Washington immediately appealed and sought

a stay of the trial court order. Global Neighborhood v.

Respect Washington, No. 35528-4-III. On September 1,

40a

201 Commissioner Wasson denied a stay. I note that

review in No. 35528-4-I is going forward as an appeal.

Therefore, it is

ORDERED that review will go forward as an appeal,

and the clerk will set a perfection schedule.

Sincerely,

/s/ Richard D. Johnson

Richard D. Johnson

Court Administrator/Clerk

lls

41a

APPENDIX C

THE HONORABLE ELIZABETH BERNS

SUPERIOR COURT OF WASHINGTON

IN AND FOR KING COUNTY

BURIEN COMMUNITIES

CASE NO.

FOR INCLUSION, a Washington

17-2-23799-0 KNT

political committee.

ORDER GRANTING

Plaintiff,

PLAINTIFF’S

MOTION FOR

RESPECT WASHINGTON, a PRELIMINARY

Washington political committee; INJUNCTION

KING COUNTY ELECTIONS; (Filed Sep. 14, 2017)

JULIE WISE, KING COUNTY

DIRECTOR OF ELECTIONS,

in her ofﬁcial capacity at

KING COUNTY ELECTIONS;

and THE CITY OF BURIEN,

Defendants.

This matter came before the Court on Plaintiffs

motion for preliminary injunction. The Court heard

oral argument on the matter and considered the following when reaching its decision:

Plaintiff ’s Motion for Preliminary Injunction;

Declaration of Counsel Jennifer Robbins and

exhibits attached thereto;

Declaration of Counsel Katelyn Sypher;

Declaration of Jennifer Fichamba;

42a

Declaration of Hugo Garcia;

Declaration of Sandy Restrepo;

Declaration of Rich Stolz;

Dclaration of Janice Case in Response to Request for Injunctive Relief;

Respect Washington’s Opposition to Motion

for a Preliminary Injunction;

10. Second Declaration of Janice Case in Response

to Request for Injunctive Relief.

The Court has carefully balanced the relative interests of the parties and the interests of the public.

The injury if Measure No. I is placed on the ballot now

outweighs any delay in having the Measure on the ballot at a future point in time; mere delay is not the same

as an outright denial. The Court ﬁnds that Plaintiff

has established a clear legal right, a well-grounded

fear of immediate invasion of that right, and that the

action sought to be enjoined will result in actual and

substantial injury.

Being fully advised on the matter, the Court

GRANTS Plaintiff ’s Motion for Preliminary Injunction

and ORDERS that:

City of Burien Initiative Measure No. 1

(“Measure 1”) is invalid on the grounds that

(a) Measure 1 exceeds the scope of the initiative authority granted to the people of the

City of Burien, that it is administrative in nature, and (b) the petition used to gather signatures for Measure 1 violated RCW 35.21.005

43a

by deviating from the requirements for the

contents and form of a petition, as set forth in

RCW 35.17.240 through 35.17.360;

Defendants King County Elections, Julie

Wise, King County Director of Elections, and

all agents of King County Elections are prohibited from including or placing Measure 1

on the November 7, 2017 ballot.

IT IS SO ORDERED this 14 day of September, 2017.

/s/ Elizabeth Berns

The Honorble Elizabeth Berns

King County Superior Court Judge

Presented by:

s/Jennifer L. Robbins

Jennifer L. Robbins, WSBA # 40861

Dmitri Iglitzin, WSBA #17673

Laura Ewan, WSBA # 45201

Katelyn Sypher, WSBA # 49759

Schwerin Campbell Barnard Iglitzin & Lavitt LLP

18 W Mercer St, Suite 400

Seattle, WA 98119

Phone: 206-257-6008

Fax: 206-257-6043

robbins@workerlaw.com

iglitzin@workerlaw.com

ewan@workerlaw.com

sypher@workerlaw. corn

Attorneys for Burien Communities for Inclusion

44a

APPENDIX D

THE SUPREME COURT OF WASHINGTON

BURIEN COMMUNITIES

FOR INCLUSION,

Respondent,

RESPECT WASHINGTON,

Petitioner.

)

No. 97755-1

ORDER

Court of Appeals

No. 77500-6-I

Filed Jan. 8, 2020

Department II of the Court, composed of Chief

Justice Stephens and Justices Madsen, Wiggins, Gordon McCloud, and Montoya-Lewis (Justice Yu sat for

Justice Madsen), considered at its January 7, 2020,

Motion Calendar whether review should be granted

pursuant to RAP 13.4(b) and unanimously agreed that

the following order be entered.

IT IS ORDERED:

That the petition for review is denied.

DATED at Olympia, Washington, this 8th day of January, 2020.

/s/ Stephens, C.J.

CHIEF JUSTICE

45a

APPENDIX E

Constitutional Provisions at Issue

First Amendment to the United States Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people peaceably to assemble, and to petition the

government for a redress of grievances.

Section 1 of the Fourteenth Amendment to the United

States Constitution:

No state shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

state deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

46a

APPENDIX F

Specification Regarding Federal Question

Petitioner raised the First Amendment issue in its

Opposition to Motion for Declaratory Judgment, attached hereto as Appendix G. This was the only brief

Petitioner ﬁled in the Superior Court which was the

ﬁrst court involved in this proceeding. The Superior

Court did not address the First Amendment-based argument at all. See Appendix C. The First Amendment

argument was also raised in the Washington Court of

Appeals which that Court rejected. See Appendix A. Petitioner also raised the First Amendment argument in

its Petition for Review to the Washington State Supreme Court, which was denied without opinion. See

Appendix G.

47a

APPENDIX G

The Honorable Elizabeth Berns

September 13, 2017 at 8:30 a.m.

SUPERIOR COURT OF WASHINGTON

IN AND FOR KING COUNTY

BURIEN COMMUNITIES

CASE NO.

FOR INCLUSION, a

17-2-23799-0 KNT

Washington political committee,

RESPECT

Plaintiff,

WASHINGTON’S

OPPOSITION TO

MOTION FOR A

RESPECT WASHINGTON, a

PRELIMINARY

Washington political committee; INJUNTION

KING COUNTY ELECTIONS;

JULIE WISE, KING COUNTY

DIRECTOR OF ELECTIONS,

in her ofﬁcial capacity at KING

COUNTY ELECTIONS; and

THE CITY OF BURIEN,

Defendants.

INTRODUTION

Defendant Respect Washington is the sponsor of

Proposition 1 to the City of Burien. Counsel received a

copy of Plaintiffs’ Motion for Preliminary Injunction at

around noon today. The Court should reject Plaintiffs’

demand for a preliminary injunction at the last minute

when Proposition 1 has been in the news and the subject of City Council meeting discussions for numerous

weeks. The harm to Plaintiffs in having the election

48a

and having their issues decided later, and only if the

measure is adopted by the voters, is the better result

than the burden this motion imposes on the Court and

the other parties.

PLAINTIFFS ARE NOT ENTITLED

TO A PRELIMINARY INJUNCTION

The law is clear that a preliminary injunction is

not “proper in a doubtful case.” Tyler Pipe Indus., Inc.

v. Department of Rev., 96 Wash.2d 785, 793, 638 P.2d

1213 (1982) (quoting Isthmian S.S. Co. v. National Marine Eng’rs Beneﬁcial Ass’n, 41 Wash.2d 106, 117, 247

P.2d 549 (1952). Not only must there be a clear legal or

equitable right at stake, there must be a clear showing

of damage based on speciﬁc facts. Kucera v. State Department of Transportation, 140 Wn.2d 200 (2000).

Plaintiffs have not met these requirements.

A. Plaintiffs are not Entitled to an Injunction Because of the Statute of Limitations or Laches

Plaintiffs’ complaint is clear that they are bringing

their claim under the Uniform Declaratory Judgments

Act (UDJA), RCW 7.24.010. The UDJA does not have

its own statute of limitations so Courts are to apply an

analogous statute of limitations. Schreiner Farms, Inc.

v. American Tower, Inc., 173 Wn. App. 154 (2013).

49a

For an election related challenge, the analogous

statutes of limitations are quite short. For instance, a

challenge to a ballot title must be commenced within 5

days. RCW 29A.72.080. A judicial challenge on refusal

to ﬁle an initiative must be ﬁled in court within 10

days. RCW 29A.72.180. A challenge to a ballot title for

a City initiative is only 10 days. RCW 29A.36.090.

The City Council considered Proposition 1 at an

open public meeting on July 31, 2017. It voted to place

Proposition 1 on the ballot at an open public meeting

on August 7, 2017. A challenge to this decision should

have been made within 5 or ten days of August 7. It

was not ﬁled until a month later, at far later than the

proverbial 11th hour.

Additionally, an injunction is an equitable remedy

and laches is an equitable defense. Because laches applies, Plaintiffs are not entitled to an injunction at this

late stage in the election process. There is no question

that his injunction remedy is subject to laches. See

Ronberg v. Smith, 132 Wash. 345, 232 P. 283 (1925).

Laches is particularly applicable in election-related

lawsuits. See LaVergne v. Boysen, 82 Wn.2d 718 (1973).

In Buell v. Bremerton, 80 Wash.2d 518, 522, (1972),

the Court we set forth the general elements of laches.

The elements of laches are: (1) knowledge or

reasonable opportunity to discover on the part

of a potential plaintiff that he has a cause of

action against a defendant; (2) an unreasonable delay by the plaintiff in commencing that

50a

cause of action; (3) damage to defendant resulting from the unreasonable delay.

Lopp v. Peninsula School Dist. No. 401, 90 Wn.2d 754,

760 (1978).

Here, the Plaintiffs should have been aware, there

was certainly a reasonable opportunity to discover that

Proposition 1 would be placed on the ballot given the

City’s public decisions and deliberations over a month

ago. The lawsuit was not ﬁled until September 8, 2017.

The ﬁrst brieﬁng in this case, the ﬁrst ﬁling for the

temporary restraining order was not ﬁled until September 11, 2017 and the preliminary injunction motion

was emailed around noon today. The delay in commencing the case and brieﬁng the motion is unreasonable.

Even if the ﬁve and ten day time limits are not

treated as statutes of limitations for this UDJA claim,

those time limits evidence that the delay in this case

was unreasonable for purposes of laches.

The last minute nature of this action has caused

Respect Washington damage. It was forced to send its

attorney to Kent for a hearing on a TRO with no opportunity to read the moving papers. It submits a motion

for a preliminary injunction in the same last minute

manner, allowing for only minimal last minute brieﬁng

on important issues that impact the opportunity of the

people of Burien to vote. It is far more consistent with

the public interest to allow the vote to go forward and

allow Plaintiffs’ arguments to be thoroughly vetted

51a

after the election, if the measure is even adopted by the

voters.

B. Plaintiffs have not Shown the Requisite

Substantial Injury to Obtain a Preliminary Injunction

While Plaintiffs have made allegations sufﬁcient

to confer standing for a timely ﬁled complaint (which

this is not), the law is clear that injunctive relief requires proof of substantial injuries in order to obtain

the extraordinary relief of injunctive relief. In Kucera

v. State, Dept. of Transp., 140 Wn.2d 200 (2000), the Supreme Court held that Plaintiffs were not entitled to

an injunction to stop a project that was required to undergo environmental review under the State Environmental Policy Act (SEPA), and did not, without proof of

damages.

Here, Plaintiffs have alleged harms related to the

initiative signature gathering stage, which is now over,

alleged harms if the initiative were to be approved by

the citizens of Burien, which are simply unripe and

speculative in that there is no assurance that the

measure will pass, and harms associated with the very

fact that debate is going on in the public square about

the initiative. This last group of harms is what reveals

what this lawsuit is really about—a political device to

shut down the opportunity for people to vote and is an

infringement on free speech.

Plaintiffs have not proven that a mere vote of the

people is damaging and they have timed the ﬁling of

52a

this suit is such a way that it is impossible for their

allegations of harm to be tested. The motion should be

denied.

C. The Initiative Process in Burien is a Public Forum Deserving of Protection under

the First Amendment.

Statewide initiatives are authorized by Article II,

Section 1 of the Washington Constitution. Local initiatives are authorized by state law and, in this case, by

the municipal charter. Regardless of the legal origin of

the right to petition government and have a public vote

on a proposed law, the initiative process is an exercise

of the right in Article I, Section 4 of the Washington

Constitution to petition government. The right to petition government extends to all levels and departments

of the government. In re Marriage of Meredith, 148 Wn.

App. 887, 899 (2009) (citations omitted). The vote constitutes the opportunity for all voters, whether in favor

or opposed to Proposition 1, to petition the City of

Burien with their vote on these policies.

Likewise, the initiative process including the ﬁnal

step of a public vote is imbued with free speech considerations. While there may not be any right to have a

local initiative process, when it does exist, as here, it

must be remembered that it is a public forum for free

speech.

Speech within the initiative and referendum process “is at the heart of the First Amendment’s protection.” First National Bank of Boston v. Bellotti, 435 U.S.

53a

765, 776 (1978) (regarding a referendum proposal submitted to Massachusetts voters to amend the state constitution). As the U.S. Supreme Court said in Mills v.

State of Alabama, 384 U.S. 214, 218 (1966), “there is

practically universal agreement that a major purpose

of [the First] Amendment was to protect the free discussion of governmental affairs.”

Initiatives, by their very nature, typically discuss

governmental affairs. As such, the initiative process, as

a whole, is protected political speech under the First

Amendment. See Meyer v. Grant, 486 U.S. 414, 442

(1988) (“the circulation of a petition involves . . . core

political speech”).

While there is no federal right that a state have an

initiative process, the initiative process, once established, constitutes a public forum. Though the public

forum doctrine ﬁrst arose in the context of streets and

parks, it has been extended to school publications (Rosenberger v. Rector and Visitors of University of Virginia,

515 U.S. 819 (1995)), charitable contribution programs,

(Cornelius v. NAACP Legal Defense and Educational

Fund, Inc., 473 U.S. 788 (1985)), and school mail systems (Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,

460 U.S. 37 (1983)). Like a state funded publication,

the initiative process “is a forum more in a metaphysical than in a spatial or geographic sense, but the same

principles are applicable.” Rosenberger, 515 U.S. at

830.

The free speech implications of prohibitions on

initiative elections was also recognized by the

54a

Washington Supreme Court in Coppernoll v. Reed, 155

Wn. 2d 290, 296-97 (2005).

Because ballot measures are often used to express popular will and to send a message to

elected representatives (regardless of potential subsequent invalidation of the measure),

substantive preelection review may also unduly infringe on free speech values. For example, after voter passage of Initiative 695

requiring $30 vehicle license tabs, it was

ruled invalid by the trial court. A nearly identical measure was quickly passed by the legislature and signed by the governor before an

appeal could be heard.

Id. at 298. While the Court referred to “substantive

preelection review” (which is not allowed), the reality

is that any action which prohibits the vote infringes on

free speech values.

Because of the free speech values at stake, the

Court should be certain that Plaintiffs have proven

sufﬁcient injury to justify the prohibition on an opportunity to vote in addition to proving all other elements

for obtaining the drastic relief of removing a matter

from an election.

D. The City Cannot Collaterally Attack Judge

Bowman’s Prior Order.

It is not clear when the City was served with this

lawsuit and Respect Washington has seen no response

from the City. However, the City cannot join the Plaintiffs’ arguments without collaterally attacking a prior

Court order.

55a

When the City failed to place Proposition 1 on the

ballot by the August 1, 2017 deadline, Respect Washington ﬁled a petition for writ of mandate against the

City and naming the King County Elections Ofﬁcial,

Julie Wise, as an interested party. In response, the City

Council decided to notify the Julie Wise that Proposition 1 should be placed on the ballot and Ms. Wise

agreed to place Proposition 1 on the ballot despite an

August 1, 2017 deadline. Thereafter, Judge Bowman issued an order dismissing the petition for writ of mandate as being moot in light of these representations. A

copy of the order is attached hereto as Exhibit 1.

E. Even if Plaintiffs had Proven Substantial Injury, they are not Clearly Likely to

Prevail on the Merits.

Plaintiffs claim they are entitled to relief on the

grounds that Proposition 1 exceeds the scope of the initiative power. While that is one of the narrow bases for

pre-election review of initiatives, proof that exceeds

the scope of the initiative power is not in itself sufﬁcient to justify removing it from the ballot. There is

plenty of opportunity to for judicial review in a less

rushed fashion to consider these issues after the election.

Proposition 1 is not Purely Administrative.

“Generally speaking, a local government action is

administrative if it furthers (or hinders) a plan the

56a

local government or some power superior to it has previously adopted.” Our Water-Our Choice!, 170 Wn. 2d

at 10. “The power to be exercised is legislative in its

nature if it prescribes a new policy or plan; whereas, it

is administrative in its nature if it merely pursues a

plan already adopted by the legislative body itself, or

some power superior to it.” Our Water-Our Choice, 170

Wn. 2d at 11 (quoting Durocher v. King Cty., 80 Wn. 2d

139, 153 (1972)).

Discerning whether a proposed initiative is administrative or legislative in

nature can be difﬁcult. Justice Brachtenbach suggested that at least for the case before the court at the time, the appropriate

question was “whether the proposition is one

to make new law or declare a new policy, or

merely to carry out and execute law or policy

already in existence.” Ruano [v. Spellman], 81

Wn. 2d [820,] 823 [1973], 505 P.2d 447 (citing

People v. City of Centralia, 1 Ill.App.2d 228,

117 N.E.2d 410 (1953)).

Our Water-Our Choice!, 170 Wn.2d at 10 (emphasis

added). Here, it is quite clear that Proposition 1 seeks

to make a new City law and thus to declare a new City

policy.

In discussing Ruano, the Court in Our Water-Our

Choice!, noted that the bonds for building the stadium

had been authorized as an unchallenged legislative decision, but the initiative related to the implementation

of the decision, namely, the construction of the stadium. Ruano, 81 Wn.2d at 824-25. Selecting a

57a

contractor, the exact price of construction and terms of

payment were administrative decisions implementing

the legislative policy to build the stadium. Id. Here, the

initiative’s proposal about policy is just as much a legislative decision as is the decisions on the same subject

made by the City Council, decisions which were not

made by a City administrator, but only by the adoption

of an ordinance—an inherently legislative act.

Proposition 1 is legislative because it would establish a new policy for the City of Burien if voters choose

to adopt it. See City of Port Angeles, 170 Wn. 2d at 11.

Plaintiffs have not proven a clearly likelihood of prevailing on the merits and the preliminary injunction

should be denied.

The Legislature has not Given the City

Council Exclusive Authority to deal with

issues related to Immigration Status.

Although Plaintiffs complain that Proposition 1

would prohibit the legislative body from repealing the

initiative, if passed, there is plenty of opportunity to

determine the legality of such a provision, if in fact the

measure is adopted by the voters. No statute is cited to

prove such a provision is illegal. Nonetheless, the argument that RCW 35A.11.020 is a legislative direction

that only the City council can make policy decisions regarding personnel activities is unconvincing.

The Court in 1000 Friends of Washington v. McFarland, 159 Wn.2d 165 (2007) made clear that this particular issue is not simply a search for a reference to

58a

the “legislative authority” in the statute to see if initiative and referenda are prohibited.

As Professor Trautman noted:

One wonders whether the state legislature in delegating certain powers to local

governments is very often thinking of the

initiative and referendum when it authorizes the “city council” or the “legislative body” rather than the “city” to do

something, or whether the particular

choice of words is happenstance. One

wonders whether the legislature is not

more likely concerned with the subject

matter of the particular legislation and

the felt need for delegation of authority to

the local level without thinking about

who at the local level should exercise the

power. . . .

If, in reality, the legislature did intend

that only the municipal legislative body

should have power in a particular instance, that must control. The danger, of

course, is that the wording in the statute

will be taken at face value and will substitute for reasoning in the particular instance.

Trautman, supra, 49 Wash. L.Rev.. at 83 (footnotes omitted).

We agree. Reasoning is required. We also note

that the phrase “legislative authority” does

not have a monolithic meaning in our case

law, but rather has long depended on the context and purpose. In State ex rel. Linn v.

59a

Superior Court, 20 Wash.2d 138, 155, 146 P.2d

543 (1944), for example, this court held that

the “legislative authority” of a county could include the people acting in a legislative capacity and proposing an initiative, and thus the

people were bound by the procedures laid

down in the state constitution for the “legislative authority” when attempting to amend a

municipal charter. Id. Again, the entire statutory schema must be read with care to determine the intent of the legislature.

McFarland, 159 Wn.2d at 177-78.

The difﬁculty with the Plaintiffs’ request for an injunction is that there is not sufﬁcient time to review

the entire statutory schema, which is essential to determine whether the legislature intended to prohibit

initiatives such as Proposition 1. The propriety of Proposition 1 on this issue should be deferred to an appropriate time after the election.

3. An Injunction is not Appropriate on the

Grounds that the Petition failed to follow Format Requirements.

Plaintiffs complain that the petition must “include

a concise statement of the action or relief.” RCW

35.21.005(1). They actually do not dispute that Proposition 1 has a concise statement. Instead, they argue

that this requirement means the petitions cannot contain campaign rhetoric. There is no Washington law to

support that position, which is presumably why they

look to cases from Alaska and Oklahoma. In fact, the

Washington Supreme Court has readily acknowledged

60a

that initiative petitions can contains what it euphemistically referred to as “policy ﬂuff.” “A preface or preamble stating the motives and inducement to the

making of [the law] . . . is without force in a legislative

sense. It is no part of the law.” Pierce Cty. v. State, 150

Wn. 2d 422, 434 (2003) (quoting State ex rel. Berry v.

Superior Court for Thurston County, 92 Wash. 16, 3032 (1916)). Despite some language on a petition being

merely designed to induce people to sign petitions or

vote for the measure, there is no authority in the State

of Washington that campaign rhetoric cannot be on an

initiative petition. It often is.

IF A PRELIMINARY INJUNCTION WERE

GRANTED, PLAINTIFFS SHOULD BE

REQURIED TO POST A BOND

The law is clear:

if an injunction is sought at the instance

of a private party, then a bond must be posted

throughout all preliminary injunctive proceedings and until the injunction is ﬁnal.

RCW 7.40.080.

Irwin v. Estes, 77 Wn.2d 285 (1969). If the Court were

to grant the injunction, it should do so only upon the

proper posting of a bond to be determined.

61a

CONCLUSION

As the proponent of Proposition 1 which helped

gather the signatures from thousands of Burien residents, Respect Washington urges the Court to deny the

last minute request for an injunction that would deprive people of the right to vote. Never before has a

court entered an injunction to stop a public vote on a

matter so late in the process. The equitable balance

tips in favor of allowing the citizens of Burien to vote

and to address Plaintiffs’ legal arguments after the

election.

RESPECTFULLY submitted this 12th day of September, 2017.

STEPHENS & KLINGE LLP

By: /s/ Richard M. Stephens

Richard M. Stephens,

WSBA #21776

Attorneys for Defendant

Respect Washington

62a

EXHIBIT 1

IN THE SUPERIOR COURT OF THE

STATE OF WASHINGTON

IN AND FOR THE COUNTY OF ICING

CRAIG KELLER and

CARLOS (CHUCK)

WRANGEL

Plaintiffs,

vs.

CITY COUNCIL of the

CITY OF BURIEN, a

municipal corporation,

Defendant

JULIE WISE, Director of

King County Elections

Department,

No. 17-2-205273

[PROPOSED]

STIPULATED

ORDER ON

APPLICATION

FOR WRIT OF

MANDATE

URGENT

ELECTION-RELATED

MATTER

Interested Party.

Proposition 1 to the City of Burien (City) is an initiative to the City which was certiﬁed by the King

County Elections Department on July 21, 2017 as having sufﬁcient signatures. As of August 1, 2017, the City

Council had not decided whether to adopt the proposed

ordinance or to contact the King County Elections Department to cause Proposition 1 to be placed on the November ballot as provided in RCW 35.17,260.

On August 2, 2017, Petitioners ﬁled a complaint

and application for a writ of mandate to compel the

63a

City of Burien and its City Council to choose under

RCW 35,17,260 either to adopt ‘ Proposition 1 as an

ordinance without alteration or to call for a special

election on Proposition 1 for the November 2017 election. The matter was considered urgent by Plaintiffs

because August 1, 2017 is the “day of the primary” referenced in RCW 29A.04,330(3) for submission by the

City to the King County Elections Department for local

matters to be placed on the November, 2017 ballot,

On August 7, 2017, the Burien City Council voted

to submit Proposition 1 to the ballot and to notify the

King County Elections Department of its decision, Interested Party, Julie Wise, the Director of the King

County Elections Department, has stated that she will

process Proposition 1 to the City of Burien for the November, 2017 ballot pursuant to Chapter 35.17 RCW,

Since the King County Elections Department will

place Proposition 1 on the November ballot, the Court

concludes that the application for a writ of mandate is

moot.

DONE IN OPEN COURT THIS 10th day of August, 2017

/s/ [Illegible]

The Honorable Bill Bowman

King County Superior Court

Judge

64a

Presented by:

STEPHENS & KLINGE LLP

By /s/ Richard M. Stephens

Richard M. Stephens,

WSBA 21776

Attorneys for Plaintiff

By /s/ [Illegible] M. Kenyon

[for] Michael Kenyon,

WSBA 51598

Attorneys for Defendant

By /s/ Janine Joly

Janine Joly, WSBA 27314

Attorneys for Interested

Party, Julie Wise

Director of Kink County

Elections Department

65a

APPENDIX H

Initiative Petition to REPEAL

Burien’s “Sanctuary City” Ordinance 651

TO: The City Council of the City Of Burien:

Concise statement of the action or relief sought:

We, the undersigned registered voters of the City of

Burien, Washington require that, unless enacted by

the City Council, this ordinance – on reverse – be submitted to a vote of the registered voters of the City of

Burien, subject to the requirements of BMC 1.10 and

RCW 35A11.080-.100.

Proposed Ballot Title: Burien Initiative No. 1

concerns immigration inquiries.

Proposed Ballot Summary and Concise Description: This measure would repeal BMC Chapter 2.26

“IMMIGRATION INQUIRIES PROHIBITED” [Ordinance 651], amend Chapter 9 Public Peace, Morals

and Welfare and prohibit City of Burien from regulating the acquistion of immigration status or religious

afﬁliation without majority votes of Council and

voters.

66a

REQUIRED WARNING:

Every person who signs this petition with any other

than his or her true name, or who knowingly signs

more than one of these petitions, or signs a petition

seeking an election when he or she is not a legal

voter, or signs a petition when he or she is otherwise

not qualiﬁed to sign, or who makes herein any

false statement, shall be guilty of a misdemeanor.

I am a legal voter of The City of Burien, State of

Washington. My residence address is correctly

stated. I have personally signed this petition.

67a

68a

Please ask a friend or family member to

join you in SIGNING today and then mail to:

RESPECT WASHINGTON, P.O. Box 66634,

Burien, WA 98166. Petitions must be

received by July 5th. Questions?

Please phone (206) 935-3505.

Sign and mail IMMEDIATELY! Thank you!

CALL TO ACTION: Don’t be fooled by Councilmember doubletalk about Ordinance 651. A mere four of

them blocked our police from investigating whether

criminals and gang members in their custody are

here illegally. “Sanctuary city” ordinances chill the

sharing of such information with U.S. Citizenship

and Immigration Services which works for us to process criminals for deportation. Ord. 651 threatens the

safety of every Burien citizen and legal resident by

allowing criminal aliens, like the one who shot Kate

Steinle in San Francisco, to prey upon others inside

our once peaceful town. You have the right to live in

a Burien which is safe!

Please sign today!

BE IT ENACTED BY THE PEOPLE OF THE CITY OF

BURIEN:

Section 1. New Chapter 9.20 is hereby added to the

Burien Municipal Code “Public Peace, Morals and Welfare” to read as follows:

9.20 Citizen Protection of Effective Law Enforcement:

The City of Burien shall not regulate the acquisition of

immigration status or religious afﬁliation unless such

regulation is approved by a majority vote of the City

Council and a majority vote of the people at a municipal general election.

69a

Section 2. Chapter 2.26 BMC (Ord. No. 651) relating

to the prohibition of immigration inquiries, including

“Findings” propaganda, is hereby repealed.

Chapter 2.26

IMMIGRATION INQUIRIES PROHIBITED

Sections:

2.26.010 Findings.

2.26.020 Prohibition on inquiring into immigration status.

2.26.030 Prohibition on collecting information

regarding religious afﬁliation.

2.26.010 Findings.

The city of Burien is a code city organized under

Chapter 35.02 RCW and Article 11, Section 10 of the

Washington State Constitution. Under its police

powers, the city may exercise any power and perform

any function, unless preempted by state or federal

law, relating to its government and affairs, including

the power to regulate for the protection and rights of

its inhabitants. To this end, the city is dedicated to

providing all of its residents fair and equal access to

services, opportunities and protection.

The enforcement of civil immigration laws have historically been a federal government responsibility

through the Immigration and Naturalization Service. Since 2002, matters of immigration law have

been handled by the Ofﬁce of Immigration and Customs Enforcement, a branch of the Department of

Homeland Security. Requiring local law enforcement

agencies, which are not speciﬁcally equipped or

70a

trained, to enforce civil immigration laws forces local

governments to expend their limited resources to

perform traditionally federal functions.

A goal of this legislation is to foster trust and cooperation between city personnel and law enforcement

ofﬁcials and immigrant communities to heighten

crime prevention and public safety.

Since 1992, the King County sheriff ’s ofﬁce has embraced this goal and outlined supporting policies in

its operations manual, with which this chapter is

consistent.

Another goal of this legislation is to promote the

public health of city of Burien residents.

On April 22, 2008, King County superior court afﬁrmed the principle that our courts must remain

open and accessible for all individuals and families

to resolve disputes on the merits by adopting a policy

that warrants for the arrest of individuals based on

their immigration status shall not be executed

within any of the superior court courtrooms unless

directly ordered by the presiding judicial ofﬁcer and

shall be discouraged in the superior court courthouses, unless the public’s safety is at immediate

risk. Shortly after the afﬁrmation’s adoption, the

King County executive and Immigration and Customs Enforcement agreed to honor this policy.

This chapter is intended to be consistent with federal laws regarding communications between local

jurisdictions and federal immigration authorities,

including but not limited to United States Code Title

8, Section 1373. [Ord. 651 § 1, 2017]

71a

2.26.020 Prohibition on inquiring into immigration status.

Except as provided in this section or when otherwise

required by law, a city ofﬁce, department, employee,

agency or agent shall not condition the provision of

city services on the citizenship or immigration status of any individual.

(1) Nothing in this chapter shall be construed to

prohibit any city of Burien ofﬁcer or employee from

participating in cross-designation or task force activities with federal law enforcement authorities.

(2) The city of Burien personnel shall not request

speciﬁc documents relating to a person’s civil immigration status for the sole purpose of determining

whether the individual has violated federal civil immigration laws. The documents include but are not

limited to: passports; alien registration cards; or

work permits.

(3) The city of Burien personnel may use documents relating to a person’s civil immigration status

if the documents are offered by the person upon a

general, nonspeciﬁc request.

(4) The city of Burien personnel shall not initiate

any inquiry or enforcement action based solely on a

person’s:

(a) Civil immigration status;

(b) Race;

(d) Inability to understand city personnel or its

ofﬁcers.

72a

(5) Except when otherwise required by law, where

the city accepts presentation of a state-issued

driver’s license or identiﬁcation card as adequate evidence of identity, presentation of a photo identity

document issued by the person’s nation of origin,

such as a driver’s license, passport or matricula consular, which is a consulate-issued document, shall be

accepted and shall not subject the person to a higher

level of scrutiny or different treatment than if the

person had provided a Washington State driver’s license or identiﬁcation card. However, a request for

translation of such a document to English shall not

be deemed a violation of any provision of this chapter

and any subsequent ordinance. This provision does

not apply to documentation required to complete a

federal I-9 employment eligibility veriﬁcation form.

(6) This section does not create or form the basis

for liability on the part of the city, its ofﬁcers, employees or agents.

(7) Unless permitted by this chapter or otherwise

required by state or federal law or international

treaty, all applications, questionnaires and interview

forms used in relation to the provision of city beneﬁts, opportunities or services shall be promptly reviewed by each agency, and any question requiring

disclosure of information related to citizenship or

immigration status shall be, in the agency’s best

judgment, either deleted in its entirety or revised

such that the disclosure is no longer required. [Ord.

651 § 1, 2017]

73a

2.26.030 Prohibition on collecting information

regarding religious affiliation.

(1) No Burien ofﬁcial, including any agent or contracted agent, may collect information or establish

or otherwise utilize a registry, database, or similar

for the purpose of classifying any person on the basis

of religious afﬁliation, or conduct any study related

to the collection of such information or the establishment or utilization of such a registry, database, or

similar.

(2) Rule of Construction. Nothing in this section

may be construed as prohibiting the collection of information that is voluntarily provided, including relating to the decennial census. [Ord. 651 § 1, 2017]

Section 3. Construction: The provisions of this measure are to be liberally construed to effectuate the intent, policies, and purposes of this measure.

Section 4. Severability: If any provision of this act or

its application to any person or circumstance is held

invalid, the remainder of the act or he application of

the provision to other persons or circumstances is not

affected.

-ENDLEGISLATIVE HISTORY

Burien City Council passed Ord. 651 on Jan. 9, 2017

Voting “YES”

Berkowitz [sponsor]

Bell

Tosta

Armstrong

74a

“Respect for Law” Realists Voting “NO”:

Edgar

Krakowiak

Wagner

Dear Citizen:

A “sanctuary” city breeds disrespect for the rule of

law. Illegal immigration is not a victim-less crime. It

deprives unemployed citizens and legal residents of

work opportunities, depresses wages, penalizes employers who obey the law, encourages the use of

fraudulent documents and stolen Social Security

numbers – particularly those of children. Please sign

and mail immediately to earn yourself a vote!

INSTRUCTIONS:

STEP 1: Make 2-sided copies of this petition for

friends. Or print 2-sided from a PDF downloaded

from www.RespectWashington.us

STEP 2: Fill signature lines immediately. Signed

petitions must be received at our P.O. Box by July

5th, 2017. Do not procrastinate. Fill petition this

week.

STEP 3: Mail petition and contribution

(checks please, no cash) to:

www.RespectWashington.us

P.O. Box 66634, Seattle, WA 98166

(206) 935-3505

Please help us cover the costs of this petition.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.