Petition for Writ of Certiorari — CLEAN v. City of Spokane

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® Supreme Court, U.S.

FILED

J @T1807 NYS 18

No.

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1997

CLEAN (Citizens for Leaders with Ethics

and Accountability Now!), a Washington

non-profit corporation, et al.,

Petitioners,

CITY OF SPOKANE, et al.,

Respondents.

On Petition For Writ Of Certiorari

To The Supreme Court Of Washington

PETITION FOR WRIT OF CERTIORARI

Counsel of Record Additional Counsel for

MicHaAeL. W. GENDLER Petitioners

BrRICKLIN & GENDLER, LLP STEPHEN K. EuGsTER

1424 Fourth Avenue Eucster Haske, P.S.C.

Suite 1015 100 Minnesota Building

Seattle, WA 98101 423 West First Avenue

(206) 621-8868 Spokane, WA 99204-0206

(509) 624-5566

SHAWN TimoTHY NEWMAN

1212 Jefferson Street

Suite 201

Olympia, WA 98501

(360) 357-7437

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Does the First Amendment protect citizens’ state-

created right of referendum against infringement by leg-

islative declarations of emergency which are not sup-

ported by compelling justifications and are not subject to

exacting judicial scrutiny?

PARTIES TO THE PROCEEDING

The petitioners are: CLEAN (Citizens for Leaders

with Ethics and Accountability Now!), a Washington non-

profit corporation; Spokane Research and Defense Fund,

a Washington non-profit corporation, Coalition for a New

Spokane, a Washington non-profit corporation; Priorities

First, a Washington political committee; Richard Adams,

an individual; John J. Talbott, an individual; and Marga-

ret Leonard, an individual.

The respondents are: City of Spokane, a Washington

first class charter city; Spokane Public Development

Authority, a City of Spokane public corporation; Citizens

Realty Company, a Washington corporation; and Lincoln

Investment Company of Spokane, a Washington corpora-

tion.

LIST OF PARTIES, PARENT COMPANIES,

AND NONWHOLLY OWNED SUBSIDIARIES

Pursuant to Rule 14.1(b) and Rule 29.6, petitioners

state that three of the petitioners are Washington non-

profit corporations and that none of them have any par-

ent companies or nonwholly owned subsidiaries.

ili

TABLE OF CONTENTS

Page

SERAMP EMRE. © PMP EIIOD, 65 osc isco es casvccccsncasns i

cemseee? 10) ities PROCEEDING ....... 0550 ccce es. ii

LIST OF PARTIES, PARENT COMPANIES, AND

NONWHOLLY OWNED SUBSIDIARIES.......... ii

I. OPINIONS AND ORDERS BELOW .......... 1

i I oa sees dinias'se ved ose db kew'ee « 1

Ill. CONSTITUTIONAL PROVISIONS AND

ORDINANCES INVOLVED .............2005 1

iv. Santumeems OF THE CASE.........5.6...... 3

V. REASONS FOR GRANTING THE PETITION... 12

ee RNAI ks pu et Ss 4 v'do sv osu e saag bans 21

EE Be any cc ned kee ckdwseccun la

ME MEL GSS Ce res pi Nak oleae kda'e ee ecco. 4la

APPENDIX C (excluding Appendices A and B of

the Order, consisting of the supe-

rior court’s docket sheet and a stip-

ulation pertaining to the contents

er ED yee ceive cececs 42a

8 Re ANGE CaN Rie? aca ay ee Ce na ERE IN 68a

seek Udy abu ioe Ws aw dd dels oA dees 74a

SEN, Bench os 00a 6 ¥ 0 0c eee Re ER inten s rdamaeee 93a

A a eel ss bk oe 100a

ie es 0s Cine ges ae edb bi 4s cle dn’ 104a

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Brown v. Hartlage, 456 U.S. 45 (1982) ......--+.++: 15-16

Buckley v. Valeo, 424 U.S. 1 fb Ge re ene te 15

Carey v. Brown, 447 U.S. 455 (1980)... 2.2. cc avev evens 19

Flood v. Kuhn, 407 U.S. 258 (1972)... 2.2... eee cere eee 15

Marbury v. Madison, 5 U.S. 137 (1803) ....--+++++++:> 20

Meyer v. Grant, 486 U.S. 414 (1988)....... 12, 15, 16, 17

PruneYard Shopping Center v. Robins, 447 U.S. 74

2 RE MUO EMER TET ce LONE te st CT ite 17

Simon & Schuster, Inc. v. New York Crime Board,

502 U.S. 105 (1991) ........ 2c cece eeewnseces 18, 19

Strate CASES

CLEAN uv. City of Spokane, 133 Wn.2d 455, 947 P.2d

We ees ree eter tree eRe Ly, 1, passim

CLEAN v. State, 130 Wn.2d 782, 928 P.2d 1054

Cin, | rT rere eee eee. oe 8-11, 13-15, 19-20

County of Spokane v. Valu-Mart, Inc., 69 Wn.2d 712,

419 P2d 993 (19GB) . 5. cece ec cce see cer esseccses 19

Save Our State Park v. Hordyk, 71 Wn. App. 84,

856 P.2d 734 (1993) ..... 2c crcceesnces 14, 18, 19, 21

State ex rel. Mullen v. Howell, 107 Wash. 167, 181 P.

20 CASTS) oko eines Vann eke 6 haan es ce vaaes 14

State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980) .... 12

Urevich v. Woodard, 667 P.2d 760 (1983)........-----. 17

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTIONAL PROVISIONS

United States Constitution, First Amendment.. i, passim

Washington Constitution Article i Wa ee 9, 10

Washington Constitution Article XXIII, OE kts dv arcs 18

FEDERAL STATUTES AND REGULATIONS

oe OA 8 Se a eas ee 1

City OF SPOKANE REGULATIONS

meena Lary ties, 6 19 ae

Spokane City Charter, TN "a § ROSE terre) y ae tee

sponane City Charter § 19(b)...................... 2, 4

pponene City Charter 685 255 2, 3, 4

Spokane Municipal Code, § 2.02.130................ 4,5

Court Rutes

epee Cee Wa 0 a ee 13

Supreme Court Rule 10(c) ................... 13, 17, 18

apres: Count Rule 06. tla)... oS cs 15

wuprene Tort Bide 103 a ii

Pere SOONER P98 oo ee ce ii

Washington Rule of Appellate Procedure 2.5(a)(3) .... 12

Washington Rule of Appellate Procedure 12.4(d)..... 12

TABLE OF AUTHORITIES - Continued

Page

TREATISES AND OTHER AUTHORITIES

Eule, Judicial Review of Direct Democracy, 99 Yale

L.J. 1503 (1990).....----++e+5: St pS eT TE es ok 18

Hamilton, Federalist Number 78.....+-++++++000crrees 20

Story, Commentaries on the Constitution of the

United States, § 451 (Thomas Cooley ed., 5th ed.

BOOTS 2c. coc vcs Koowapamany choskacs Saw imrn sO cone 19

;

PETITION FOR WRIT OF CERTIORARI

Petitioners CLEAN, et al., petition for a writ of cer-

tiorari to review the judgment of the Washington

' Supreme Court in this case.

I. OPINIONS AND ORDERS BELOW

The opinion of the Washington Supreme Court (App.

A, infra, 1a-40a) is reported at 133 Wn.2d 455, 947 P.2d

1169. The Washington Supreme Court’s order denying

petitioners’ motion for reconsideration (App. B, infra,

4la) is unreported. The order of dismissal of the trial

court (App. C, infra, 42a-67a) is unreported.

II. JURISDICTION

The Washington Supreme Court issued its opinion on

November 13, 1997. Petitioners timely moved for recon-

sideration on December 1, 1997. App. D, infra, 68a-73a.

On February 5, 1998, the Washington Supreme Court

issued its Order Denying Motion for Reconsideration.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(a).

Ill. CONSTITUTIONAL PROVISIONS

AND ORDINANCES INVOLVED

The First Amendment to the United States Constitu-

tion provides, in relevant part:

Congress shall make no law... . 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 griev-

ances.

Section 83 of the Spokane City Charter provides:

Section 83. Referendum.

If, prior to the date when any ordinance shall

take effect, a petition signed by qualified elec-

tors in number at least equal to ten percentum

of the total number of votes cast at the last

preceding general municipal election, shall be

filed with the clerk, protesting against the enact-

ment of such ordinance, it shall be suspended

from taking effect. Thereupon the council shall

reconsider such ordinance and, if it does not

entirely repeal the same, shall submit it to popu-

lar vote at the next municipal election; or, the

council, in its discretion, may call a special elec-

tion for that purpose; and such ordinance shall

not take effect, unless a majority of the qualified

electors voting thereon at such election shall

vote in favor thereof.

Section 19(a)(1) and (b) of the Spokane City Charter

provide:

Section 19. Ordinances — When Effective.

(a) The following ordinances may be passed by

the city council on the first reading by title and

shall take effect immediately upon passage,

unless otherwise provided in the ordinance:

1. An ordinance necessary for the immedi-

ate preservation of the public peace, health or

safety or for the immediate support of city gov-

ernment and its existing public institutions; pro-

vided it has in its preamble or body a statement

ae |

2 Seda

al a dda. scat

of the facts giving rise to the necessity for imme-

diate effectiveness and it is passed by a vote of

one more than a majority of the council;

* + *

(b) All other ordinances enacted by the city

council shall take effect thirty days after the

date of their passage unless a later date is fixed

therein, in which event they shall take effect at

such later date.

IV. STATEMENT OF THE CASE

Petitioners seek review of decisions abridging their

fundamental right of referendum regarding an ordinance

to provide public financial support for a parking garage

and shopping mall project in downtown Spokane, Wash-

ington. App. A, infra, 2a.

As originally proposed, the ordinance committing the

City of Spokane to subsidize this project contained no

“emergency” clause. Accordingly, the ordinance would

have been subject to the public right of referendum

secured in § 83 of the Spokane City Charter. App. A, infra,

15a. However, on the day the ordinance came before the

Spokane City Council for a vote, the mall developer

delivered a letter demanding that the ordinance be

passed with an emergency clause making it “immediately

effective.” App. F, infra, 93a-99a. In response to the devel-

oper’s letter, the City Council of Spokane added a new

section 14 asserting an emergency and enacted Ordinance

No. C31823. App. E, infra, 74a-92a.

The effect of section 14 was to preclude exercise of

the right of referendum which otherwise was available to

the voters of the City of Spokane pursuant to § 83 of the

Spokane City Charter (reprinted on page 2, supra). Pur-

suant to § 83, the submission of a petition signed by ten

percent of the number of voters who voted in the last

preceding general elections suspends an ordinance from

taking effect, if the petition is submitted prior to the

effective date. Id. Upon submission of such a petition, the

City Council may either repeal the challenged ordinance

or submit it to popular vote. Id. The ordinance does not

become effective unless a majority of the voters vote in

favor of it. Id.

Spokane ordinances generally take effect 30 days

after the date of their passage. Spokane City Charter,

§ 19(b) (reprinted on page 3, supra). Accordingly, the City’s

voters have 30 days in which to obtain and submit the

required voters’ signatures for their petition. Here, peti-

tioner Priorities First presented a referendum petition to

the Spokane City Clerk three days after enactment of

Ordinance C31823, on January 30, 1997.1 After discus-

sions with the Clerk and City Attorney, Priorities First's

petition was assigned the number “Referendum Petition

1 This was done in accordance with Spokane Municipal

Code § 2.02.130, Commencement of Referendum, which provides:

A legal resident or political committee begins the

referendum process by requesting from the city clerk

the assignment of a referendum number and

identifying the ordinance, or section[s] thereof,

sought to be referred. If the clerk is satisfied that the

person is entitled to sponsor the petition, and if the

ordinance has not yet taken effect, then the Clerk

assigns the measure a number and furnishes to the

sponsor a copy of the ordinance.

97-1,” thereby certifying the City Clerk’s “satisf[action]

that the person is entitled to sponsor the petition

and ... the ordinance has not yet taken effect.” SMC

2.02.130, reprinted in note 1, supra.

The referendum proponents thereafter secured and

submitted nearly twice the number of signatures required

in support of their petition. Within 30 days, they submit-

ted referendum petitions signed by more than 8,000 elec-

tors, needing but 4,300 to qualify. (A copy of the petition

is reproduced as App. G, infra, 100a-103a. The proponents

submitted 550 pages with signatures.) Notwithstanding

the City Clerk’s prior assignment of a petition number,

the City refused to honor the referendum petition on the

basis that Ordinance No. C31823 had taken effect imme-

diately pursuant to the § 14 “emergency clause” which

was tacked onto the ordinance after the developers sub-

mitted their letter.

Section 19(a)(1) of the Spokane City Charter provides

for the immediate effectiveness of:

An ordinance necessary for the immediate pres-

ervation of the public peace, health or safety or

for the immediate support of city government

and its existing public institutions; . . .

See page 2, supra. Ordinance C31823 recited that

Spokane’s central business district (CBD) “has experi-

enced a serious economic decline . . . adversely affecting

the citizens of the City and causing deterioration of the

public and private investment in improvements and ser-

vices in the CBD...” App. E, infra, 80a. The ordinance

then recited the City’s receipt of the developer’s letter

“containing Project information and a deadline indicating

that time is of the essence concerning the Project and the

Facility, such that immediate assurances must be given by

the City in order for the Developer to proceed with the

Project, ...” App. E, infra, 81a.

These recitals set up § 14 of the ordinance, entitled

“Urgency and Emergency; Effective Date.” App. E, infra,

90a-92a. Section 14 stated that the ordinance will “have

the direct benefit of promoting the creation of employ-

ment in the CBD,” that it will “have the effect of stimu-

lating the economy,” and that it would provide other

recreational, cultural, and economic benefit. Id. Section 14

then stated that the mall and garage project could not

proceed unless the ordinance took effect immediately:

The City further recognizes that the Developer

must immediately execute leases to commit

Nordstrom, plus other major tenants to the Pro-

ject otherwise the Project will not be ready for

occupancy and operation by the dates contrac-

tually required. If this contractual promise can-

not be performed the Project will not be built

and severe economic and other consequences

will ensue.

Id. at 91a. Section 14 concluded:

Based on such facts, the Council finds and

declares that an urgency and emergency exists

such that this Ordinance shall be immediately

effective upon adoption in order to preserve the

public peace, health or safety and provide sup-

port of the City government and its existing

public institutions, facilities, and infrastructure.

Id. at 92a.

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ren Nae Te eee ee

These statements were based on the developer’s let-

ter submitted on the day that the emergency clause was

tacked on and the ordinance adopted. The developer

stated:

If the City’s action in pledging the parking

meter revenue is not effective and finalized

tonight, these retailers will not commit to the

required time schedule to come downtown. A

delay of 30 days or even two weeks is fatal

because the final approval of the HUD 108 loan,

private financing, and issuance of the bonds are

all contingent on each other . . . If these retailers

cannot be assured within the next week that the

City has made its final irrevocable commitment

to the garage through pledging of parking meter

revenues, the other components of the project

cannot be timely finalized in order to begin

Spring demolition and construction to meet Sep-

tember 1997 and March 1999 deadlines. To put it

simply, a delay of 30 days while awaiting effec-

tuation of the off-street parking ordinance will

kill the project.

App. F, infra, 96a-97a.2

? The developer’s statements later proved false. Demolition

did not begin in the spring, but rather began some six months

later (a delay 12 times longer than the developer asserted would

be “fatal” and six times longer than the developer stated

“would kill the project”) on October 14, 1997. In November, 1997

when the Washington Supreme Court wrote that “the project

must begin construction in September 1997” (App. A, infra, 17a)

that date already had passed without commencement of

construction or even demolition.

Similarly, section 14 recited that “the Developer must

immediately execute leases to commit Nordstrom.” The

Petitioners challenged the ordinance in three separate

superior court lawsuits which were consolidated. Peti-

tioners appealed dismissal of their consolidated actions

to the Washington Supreme Court. Petitioners challenged

the City’s financial participation in the mall and garage

project on a number of grounds, relying upon state law

and the Washington Constitution. The Washington

Supreme Court refused to inquire into the City Council's

emergency declaration, instead deferring to that declara-

tion “unless it is ‘obviously false and a palpable attempt

at dissimulation.’” App. A, infra, 17a.

The court quoted the City Council’s findings that

downtown Spokane has “experienced a serious economic

decline” and that the commitments “ ‘must immediately

be received’ by the Developers in order for the project to

be completed on time.” Jd. The court made no inquiry

into whether these statements of urgency established that

immediate effectiveness was necessary “for the immedi-

ate preservation of the public peace, health, or safety,” or

“for the immediate support of city government and its

existing public institutions.” Spokane City Charter,

§ 19(a)(1).

The court held that its decision was controlled by its

recent decision in CLEAN uv. State, 130 Wn.2d 782, 928 P.2d

1054 (1996). App. A, infra, 16a. There, the court had

upheld an emergency clause in a state law passed to

provide public support for a new baseball stadium on the

basis that the Legislature reasonably could believe that

developer announced the signing of a lease with Nordstrom

more than a year later.

: losing the Seattle Mariners major league baseball team

“would produce a detrimental economic effect.” App. A,

infra, 16a. In the baseball stadium case, the court held that

the term “public peace, health, or safety” was coextensive

with the state’s “police power.” CLEAN v. State, 130

Wn.2d at 804, 928 P.2d at 1065. The only limitation on

exercise of the police power, and hence the only restric-

tion on the government's ability to preclude the citizenry

' from exercising their reserved constitutional right of ref-

erendum, was whether an action would “reasonably tend

to promote some interest of the State...” Id. at 804-05,

928 P.2d at 1065.5

Four justices of the Washington Supreme Court

4 expressed their concern that the majority’s decision in

this case, together with the recent decision in CLEAN v.

State, had eviscerated citizens’ right of referendum. Jus-

tice Guy had dissented in CLEAN v. State, but now

acceded to the principle established in the two cases that

“the economic welfare of a region may give rise to the

kind of ‘emergency’ for which emergency legislation may

be validly used.” App. A, infra, 21a. Justice Madsen (who

7 also had dissented in CLEAN v. State) now concurred

because “CLEAN v. State dramatically altered judicial

review.” App. A, infra, 22a. She explained:

* CLEAN wv. State involved the referendum power reserved

to the people of Washington in Washington Constitution Article

II, § 1(b). In this case, the court found that the earlier CLEAN

decision “is controlling” because “Section 19 of the Spokane

City Charter is identical in relevant part to the constitutional

provision interpreted in CLEAN [v. State].” App. A, infra, 16a.

After CLEAN, this Court no longer conducts an

independent analysis of whether a law is neces-

sary for the immediate preservation of the pub-

lic peace, health, or safety within the meaning of

_Const. art. IL, § 1(b). The emergency exception is

now coextensive with police powers.

App. A, infra, 22a-23a.

Justice Sanders (who authored the dissent in CLEAN

v. State) concurred “reluctantly.” He expressed his “great-

est reluctance” with the majority’s “imprimatur to the

preposterous notion that a new parking garage for Nord-

strom’s is ‘necessary for the immediate preservation of

the public peace, health or safety ...’” App. A, infra,

23a. Justice Sanders recognized the effect of the first

CLEAN decision:

But this result is compelled by the majority deci-

sion in CLEAN v. State, 130 Wn.2d 782, 928 P.2d

1054 (1996) wherein this court virtually repealed

the citizens’ constitutional right to referendum

by allowing the Legislature to inoculate itself

against referendums through conclusory emer-

gency clauses not subject to meaningful judicial

review ...

Id. Justice Sanders concluded:

Once the constitutional well has been poisoned,

we all must drink from it lest the incentive to

correct our mistakes in a principled fashion be

lost by inconsistently imposing them.

App. A, infra, 24a. Even Spokane City councilmembers

who voted to include the emergency clause recognized

that there was no true “emergency” in the ordinary

Pe, ae

(“Webster’s definition”) of the word, and that the emer-

gency existed only in the “legalese” established by

CLEAN v. State. App. H, infra, 104a-105a. A second coun-

cilmember found “very troubling” the use of the word

“emergency” outside the context “of public safety,” id.,

107a, but also voted for the clause.

Chief Justice Durham (who had joined in the majority

opinion in CLEAN v. State) dissented. After tracing the

judicial history of cases in which the Washington

Supreme Court had invalidated emergency clauses

because “the factual bases for the alleged emergencies

were not emergent,” App. A, infra, 25a-29a, she quoted

from a 1945 opinion of the court:

We think it too clear to require argument that

the legislature cannot defeat the constitutional

right, reserved by the people . . . by merely

inserting in an act...

“This act is necessary for the immediate preser-

vation of the public peace, health and

safety...”

App. A, infra, 29a (emphasis in court’s 1945 opinion).

Upon completing her review of the case law, Chief

Justice Durham summarized:

Thus, this court has never given conclusive

effect to the assertion of emergency itself. To do

so would be to abdicate our duty to evaluate the

constitutionality of legislative action. It would

be no different than deferring to a legislative

declaration that an act were necessary to further

a compelling state interest. Instead, this court

has upheld declarations of emergency only

when the facts established a need for immediate

response to public peril.

App. A, infra, 38a.

In response to the majority’s decision that emergency

clauses thwarting the fundamental right of referendum

no longer are subject to meaningful judicial review in

Washington, petitioners sought reconsideration. Peti-

tioners’ motion for reconsideration asserted that the

majority decision imposed a new burden on core political

speech in violation of the First Amendment. App. D,

infra, 68a-73a. Petitioners argued that the Washington

Supreme Court’s new deferential standard of review did

not satisfy the standard of this Court’s cases applying

“exacting scrutiny” to state action which burdens core

political speech, quoting Meyer v. Grant, 486 U.S. 414, 420

(1988).4 The Washington Supreme Court called for a

response to the motion for reconsideration pursuant to

RAP 12.4(d), but thereafter deniéd the motion without

opinion. App. B, infra, 41a.

V. REASONS FOR GRANTING THE PETITION

The Washington Supreme Court has changed the

rules by which state and local governments may deny

* Under Washington law, a constitutional right may be

raised for the first time on appeal. State v. Green, 94 Wn.2d 216,

231, 616 P.2d 628 (1980); Washington Rules of Appellate

Procedure (RAP) 2.5(a)(3). Respondents’ response to

petitioners’ motion for reconsideration acknowledged

petitioners’ entitlement to raise the constitutional issue at this

stage of the proceedings.

iota ca al

Washington citizens their fundamental right of referen-

dum. Prior to that court’s decision in this case and in

CLEAN wv. State, supra, the rule was that only those laws

“necessary for the immediate preservation of the public

peace, health, or safety” are excepted from the citizens’

referendum power, and that Washington courts would

look behind legislative declarations of emergency to

determine whether the declared facts truly constitute an

emergency. Now, however, the exacting requirement that

a law must be necessary “for the immediate preservation

of the public peace, health, or safety” before the people’s

fundamental right of referendum could be denied has

been replaced by a rule that any law within the Legisla-

ture’s authority can be excepted by an unreviewable dec-

laration of emergency. CLEAN v. State, 130 Wn.2d at

830-41, 928 P.2d at 1078-83 (Sanders, J., dissenting). As

Justice Sanders stated, the “new rule” is:

If the Legislature says that the legislation is

exempt from referendum, it is.

Id. at 842, 928 P.2d at 1084.

This Court should grant review because the Washing-

ton Supreme Court has decided an important question of

federal law that has not been, but should be, settled by

this Court. Supreme Court Rule 10(c). Because the Wash-

ington court’s decision confirmed that a new constitu-

tional rule has been substituted by that court in place of

the plain language of the provision itself, this is not a case

where the asserted error consists of “the misapplication

of aproperly stated rule of law.” Supreme Court Rule 10.

Moreover, Justice Sanders made clear that the Washing-

ton Supreme Court must now stand by its erroneous new

rule, as correcting the mistake would confirm that the

Constitution had been bent to accommodate baseball.

App. A, infra, 24a.

The Washington court’s new constitutional rule thus

is established in two of the court’s decisions, CLEAN 2.

State and this case. Petitioners believe that the critical

error below worthy of this Court's attention is the substi-

tution of a lax and deferential “police power” standard

for the exacting language of the Washington Constitution

and Spokane City Charter, which demanded that an ordi-

nance be “necessary for the immediate preservation of

the public peace, health, or safety” before the right of

referendum could be abridged. Further, in establishing a

new rule of deference to the Legislature, the Washington

court neglected its own prior recognition that the

reserved right of initiative and referendum is “the first of

all the sovereign rights of the citizen — the right to speak

ultimately and finally in matters of political concern.”

State ex rel. Mullen v. Howell, 107 Wash. 167, 171, 181 P. 920

(1919). The Washington court's new rule of deference fails

to appreciate that the issue “is not a question involving

the separation of judicial from legislative power but the

separation of the power of the people from legislative

encroachment.” CLEAN v. State, 130 Wn.2d at 827, 928

P.2d at 1076 (Sanders, J., dissenting). See also Save Our

State Park v. Hordyk, 71 Wn. App. 84, 91, 856 P.2d 734

(1993) (deference should be given to “the people and

their right of initiative” rather than to the legislative body

seeking to deny that right).

Accordingly, petitioners essentially are asking this

Court to review both of the Washington court’s recent

decisions, as the constitutional error pervades both of

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them.* As Justice Sanders pointed out in this case, “the

constitutional well has been poisoned” by the need per-

ceived in CLEAN v. State to ensure that major league

baseball remains in Seattle. App. A, infra, 24a. Accord-

ingly, a “subsidiary question fairly included” (Supreme

Court Rule 14.1(a)) is:

Is Ken Griffey, Jr. more important than the Con-

stitution?®

Of course, the more important question fairly

included within this petition is whether these fundamen-

tal constitutional rights are protected by the United States

Constitution as well as by state constitutions and local

charters. This Court’s decision in Meyer v. Grant, 486 U.S.

414 (1988) protected on First Amendment grounds citi-

zens’ right to pay initiative signature gatherers in support

of their state constitutional initiative right. The Court

held that signature gathering was “core political speech,”

486 U.S. at 420, such that state restrictions must be subject

to “exacting scrutiny.” Id., citing Buckley v. Valeo, 424 U.S.

1, 45 (1976). See also Brown v. Hartlage, 456 U.S. 45, 60

° Of course, the judgment in CLEAN v. State is final and not

subject to this Court’s direct review. But it is the flawed

constitutional rule established in the two cases which this Court

can and should correct.

® Mr. Griffey is a star player for the Seattle Mariners

baseball team. Petitioners do not presume, as did the

Washington Supreme Court, that this Court has special

expertise with respect to the importance of a major league

baseball team to a community. CLEAN v. State, 130 Wn.2d at 781,

n.8, quoting Flood v. Kuhn, 407 U.S. 258, 266 (1972). Nor will

petitioners speculate as to the expertise and sentiments of this

Court regarding shopping centers, Nordstrom stores, and

parking garages.

(1982) (“the State’s fear that voters might make an ill-

advised choice does not provide the State with a compel-

ling justification for limiting speech”).

The Court in Meyer did not decide whether a state

may restrict not only the manner in which these citizens’

rights are pursued but also the very core of the right,

consistent with the First Amendment. See id. at 424 (“the

First Amendment protects appellees’ right not only to

advocate their cause but also to select what they believe

to be the most effective means for so doing”). However,

several of the Court's statements provide strong support

for petitioners’ contention here that this right is federally

protected. This Court quoted with approval the Court of

Appeals’ en banc decision it was affirming, including that

court’s holding:

Having decided to confer the right, the State

was obligated to do so in a manner consistent

with the Constitution because . . . this case

involves “core political speech.”

Id. at 420.

The Court itself observed two separate restrictive

effects inherent in the Colorado law which it found to be.

of federal constitutional dimension. In addition to limit-

ing the number of voices who can convey the sponsor’s

message:

Second, [the prohibition on paid signature gath-

erers] makes it less likely that appellees will

garner the number of signatures necessary to

place the matter on the ballot, thus limiting their

ability to make the matter the focus of statewide

discussion.

aah ili le ie NL ay

Id. at 422-23. This second consideration demonstrates the

Court’s recognition that the initiative (and referendum)

process itself is deserving of First Amendment protection,

in addition to the protection afforded speech promoting

an initiative measure. The Washington court’s new rule

aliows the state routinely to prevent citizens from placing

matters on the ballot and making them a “focus of state-

wide discussion,” rather than merely “limiting” citizens’

ability or making their measure “less likely” to qualify. Id.

The Meyer Court again linked First Amendment pro-

tection directiy to the initiative process in describing as a

“burden on First Amendment expression” (id. at 423) a

Colorado statute which the Colorado Supreme Court said

“limit[s] the power of the people to initiate legislation.”

Id., quoting Urevich v. Woodard, 667 P.2d 760, 763 (1983)

(holding that statute must be “closely scrutinized”). In

other contexts, this Court has recognized that state con-

stitutional rights of speech and petition can exist on a co-

equal level with federally protected constitutional rights.

See, e.g., PruneYard Shopping Center v. Robins, 447 US. 74,

88 (1980) (state may enforce state constitutional right of

speech and petition against shopping center owner’s

right of private property).

In Meyer v. Grant, this Court stated its agreement

with the Court of Appeals’ conclusion that the Colorado

statute “trenches upon an area in which the importance

of First Amendment protections is ‘at its zenith.’ ” 486

U.S. at 425. That the people’s direct exercise of their

lawmaking authority deserves the highest First Amend-

ment protections demonstrates that the question not yet

decided in Meyer v. Grant should now be settled by this

Court in this case. Supreme Court Rule 10(c).

The right of referendum respecting legislative enact-

ments is secured by the people of 24 states. Eule, Judicial

Review of Direct Democracy, 99 Yale L.J. 1503, 1509 & n.22

(1990). Citizens of 21 states may enact ordinary legisla-

tion directly by initiative. Id. The large number of states

whose citizens’ rights of direct legislative power are

threatened by the prospect of judicial encroachment such

as that in the decision below is further reason why this

case presents an “important question” which “should be

settled by this Court.” Supreme Court Rule 10(c). See

Simon & Schuster, Inc. v. New York Crime Board, 502 U.S.

105, 115 (1991) (granting certiorari because “the Federal

Government and most of the states have enacted statutes

with similar objectives” such that “issue is significant and

likely to recur”).

This case does not raise the question whether a state

may repeal provisions of its Constitution, or add new

restrictions to rights of initiative and referendum through

constitutional amendment, without offending the First

Amendment.” Nor does the case require this Court to cast

about without firm footings to establish a proper consti-

tutional benchmark to secure protection of the citizens’

” An amendment of the Washington Constitution requires

approval of a majority of Washington’s voters. Washington

const. art. XXIII, § 1. Thus, only the people themselves can

restrict this fundamental right. The reservation of the right of

initiative and referendum was adopted as a constitutional

amendment by the people of Washington in 1912 “because they

had become impressed with the profound conviction that the

Legislature had ceased to be responsive to the popular will.”

Save Our State Park v. Hordyk, 71 Wn. App. 84, 89, 856 P.2d 734

(1993) (citation omitted).

‘

;

i ee A ORI aed Nel SAL Wits. Seats

Bieta Ma Botan SE IGF escent hae Se or ea! RRC NTE MITA AAR il DOSE ARE

rights, for the proper standard is stated plainly in the

Washington Constitution and Spokane City Charter.

Had the Washington court applied the standards

stated plainly in the applicable provisions rather than

create a new judicial rule allowing abridgment of referen-

dum rights whenever the Legislature acted within its

“police power,” the court would have been acting consis-

tently with this Court’s First Amendment jurisprudence.

If an action is “necessary for the immediate preservation

of public peace, health, or safety,” Spokane City Charter,

§ 19(a)(1), then the state would be well placed to demon-

strate an “emergency” which provides “compelling justi-

fication” for denying a referendum. Compare Simon &

Schuster, Inc. v. New York Crime Board, 502 US. at 120-21

(compelling state interest in compensating crime victims

does not justify law limiting royalties to criminals

because law did not further the interest); Carey v. Brown,

447 U.S. 455, 461 (1980) (no compelling justification for

law prohibiting peaceful labor picketing of residences). It

is noteworthy that the constitutional and charter standard

here does not include the term “welfare,” the broad term

which almost always accompanies “public health and

safety” in the boilerplate formulation of the scope of a

government's police powers. E.g., County of Spokane v.

Valu-Mart, Inc., 69 Wn.2d 712, 716, 419 P.2d 993 (1966).

These standards should be construed in accordance with

their plain and ordinary meaning, especially because they

are constitutional words. See CLEAN v. State, 130 Wn.2d

at 826 & n.24, 928 P2d at 1075 & n.4, quoting Story,

Commentaries on the Constitution of the United States, § 451

(Thomas Cooley ed., 5th ed. 1891). See also Save Our State

Park v. Hordyk, 71 Wn. App. at 91.

If the Washington court had given these words their

plain and ordinary meaning as anyone who read the

Washington Constitution or Spokane City Charter would

understand them, it would have recognized that these

words demand exacting judicial scrutiny before restric-

tion of the right of referendum can be upheld. The Wash-

ington Constitution and Spokane City Charter already

incorporated this Court’s high standards for protection of

core political speech. The Washington court's “basic fal-

lacy” was its substitution of a much laxer standard which

allowed abridgment of this fundamental right for vir-

tually any reason the legislature might assert. CLEAN v.

State, 130 Wn.2d at 830, 928 P.2d at 1078 (Sanders, J.,

dissenting).

A second and equally basic fallacy which goes to the

heart of the First Amendment protection that should be

provided here is the Washington court’s extreme defer-

ence to the legislative declaration of emergency. Again,

the dissenting and reluctantly concurring decisions below

make clear that this deference is a new rule and not the

misapplication of a properly stated rule of law. E.g., App.

A, infra, 24a (Durham, C. J., dissenting) (“this court has

never granted such deference to a Legislature’s con-

clusory assertion that an emergency exists”). See also

CLEAN wv. State, 130 Wn.2d at 828-29 & nn. 27-28, 928 P.2d

at 1076-77 & nn.7-8 (majority’s new rule of deference is

contrary to principles of constitutional adjudication, quo-

ting extensively from the Federalist Number 78 and from

Marbury v. Madison, 5 U.S. 137, 176-80 (1803)). This

extreme deference is inconsistent with the “exacting scru-

tiny” courts must apply to state action which restricts

core political speech. See App. A, infra, 38a (Durham, ae

dissenting) (criticizing deference by majority here as “no

different than deferring to a legislative declaration that

an act were necessary to further a compelling status

interest”).

The Washington court’s new rule of deference is par-

ticularly disturbing because such deference opens the

door wide to abuse of the referendum right. Fifty years

ago the Washington Supreme Court better appreciated

this concern and “chided the Legislature for what it per-

ceived was an attempt to thwart the people’s constitu-

tional right of referendum” by adopting a “custom of

attaching emergency clauses to all sorts of bills, many of

which cannot by any stretch of the imagination be

regarded as actually emergent.” Save Our State Park v.

Hordyk, 71 Wn. App. at 90, n.6 (citation omitted). That

court has now forgotten its own historical knowledge of

the reasons for zealous judicial protection of the people’s

rights, as well as the rule itself. This Court’s review is

warranted to enable the Court to decide whether the First

Amendment's protection of core political speech against

such legislative (and now judicial) curtailment encom-

passes the exercise of initiative and referendum rights

secured by a state’s constitution.

VI. CONCLUSION

The Petition for Writ of Certiorari should be granted.

Respectfully submitted,

Brickun & GenpDLER, LLP

Micuaet W. GENDLER

Counsel of Record for Petitioners

MAY, 1998

APPENDIX A

CLEAN (Citizens for leaders with Ethics and

Accountability Now!), a Washington nonprofit

corporation; Spokane Research & Defense

Fund, a Washington nonprofit corporation;

coalition for a new Spokane, a Washington

non-profit corporation; Priorities First, a Wash-

ington politicat committee; Richard Adams,

John Talbott, and Margaret Leonard, Appel-

lants,

Vv.

CITY OF SPOKANE, a Washington first class

charter city; the Spokane City Council; and

Spokane Public Development Authority, a City

of Spokane public corporation, Respondents,

and

Citizens Realty Company, a Washington corpo-

ration; and Lincoln Investment company, a

Washington corporation, Respondents.

No. 65262-7.

Supreme Court of Washington,

En Banc.

Argued June 18, 1997.

Decided Nov. 13, 1997.

Eugster & Haskell, Stephen K. Eugster, Spokane, for

Appellants.

Stanley M. Schwartz, Laurie Connelly, Asst. City

Attys., Perkins, Coie, Thomas F. Kingen, Witherspoon,

Kelley, Davenport & Toole, Duane M. Swinton, Spokane,

for Respondents.

DOLLIVER, Justice.

CLEAN et al. challenge by direct review a Spokane

ordinance providing public support for a new parking

garage in downtown Spokane.

Respondents/Intervenors Citizens Realty Company

and Lincoln Investment Company (Developers) own

River Park Square shopping mall and garage in down-

town Spokane. In early 1995, the Developers approached

the City of Spokane (City) asking for assistance with the

renovation and expansion of the mall parking garage as

part of a plan to redevelop River Park Square (RPS). The

redevelopment includes a new Nordstrom store to

replace the existing store on which Nordstrom’s lease will

expire January 31, 1999. Nordstrom has not stated for the

record whether it will remain downtown if the RPS pro-

ject fails to materialize. Project Proponents predict that

the RPS redevelopment will create jobs, increase tax reve-

nue, and improve cultural and recreational opportunities

in downtown Spokane.

The Developers will renovate the parking garage and

then sell it to the Spokane Downtown Foundation, a

nonprofit corporation (Foundation). The Foundation

intends to issue tax-exempt bonds on behalf of the City

payable from garage revenues. The Foundation will lease

the garage to the Spokane Public Development Authority

(PDA), which will operate the facility. The Developers

will lease the land to the Foundation and the Foundation

will assign that lease to the PDA.

When the bonds issued by the Foundation are

retired, the City will acquire ownership of the garage at

no cost. The City has contingently pledged parking meter

revenue to cover the garage operating expenses and the

ground lease payments in the event garage revenues are

insufficient to meet the facility’s expenses.

The City applied for an Economic Development

Grant (EDI) and a section-108 guaranteed development

loan from the United States Department of Housing and

Urban Development (HUD). HUD has awarded the City a

$1 million EDI grant. The section-108 loan application

was still pending as of the date the Respondents’ brief

was submitted to this court. The City has pledged its

future Community Development Block Grant funds to

repay the section-108 loan if the Developers default.

The Developers submitted a State Environmental Pol-

icy Act (SEPA) checklist to the City. The City issued a

Mitigated Determination of Nonsignificance for the pro-

ject on July 2, 1996. This decision was not appealed

administratively.

On January 27, 1997, the Spokane City Council

approved Ordinance C31823 (the Ordinance) which

authorizes City support for the RPS garage. On January

30, 1997, Appellant Priorities First presented a referen-

dum petition to the Spokane City Clerk, seeking to over-

turn the Ordinance. Although referendum proponents

collected over 8,000 signatures, the City refused to honor

the referendum petition because the City Council

declared that an emergency existed when it adopted the

Ordinance, rendering the Ordinance effective imme-

diately and precluding a referendum.

CLEAN et al. (Appellants) brought this action in

Spokane County Superior Court to challenge several

aspects of the City and PDA’s participation in the project,

seeking declaratory and injunctive relief. The trial court

granted summary judgment to the City, PDA and Devel-

opers (Respondents). This court granted direct review on

May 9, 1997.

The standard ot review of a trial court's order grant-

ing summary judgment is de novo. Wilson v. Steinbach, 98

Wash.2d 434, 437, 656 P.2d 1030 (1982). Summary judg-

ment is appropriate where the parties’ pleadings, affi-

davits, and depositions establish that there are no

genuine issues of material fact and that the movant is

entitled to a judgment as a matter of law. Wilson, 98

Wash.2d at 437, 656 P.2d 1030. When considering a

motion for summary judgment, the court shall consider

the evidence in the light most favorable to the nonmoving

party. Wilson, 98 Wash.2d at 437, 656 P.2d 1030.

(1) Has the City acted in excess of its municipal author-

ity under the off-street parking statutes - RCW

35.86.050 and RCW 35.86.010?

Appellants first argue the City violated RCW

35.86.050 because it failed to develop a comprehensive

parking plan before enacting the Ordinance. The statute

provides:

In the establishment of off-street parking

space and/or facilities, cities shall proceed with

the development of the plan therefor by making

such economic and physical surveys as are nec-

essary, shall prepare comprehensive plans there-

for, and shall hold a public hearing thereon

prior to the adoption of any ordinances relating

to the leasing or acquisition of property. .. .

RCW 35.86.050.

Respondents correctly observe that the statute does

not discuss the level of specificity required of a compre-

hensive plan. The only case interpreting RCW 35.86.050 is

In re Petition of City of Auburn, 65 Wash.2d 560, 398 P.2d

723 (1965). In City of Auburn, this court observed that,

“there seem to be no guiding principles for the prepara-

tion of ‘comprehensive plans.’ ” 65 Wash.2d at 563, 398

P.2d 723. Respondents argue that, if the Legislature had

so intended, it could have prescribed a very specific set of

criteria for municipalities to follow when preparing com-

prehensive plans under RCW 35.86.050, as is evidenced

by the specificity called for in the Growth Management

Act (RCW 36.70A.070).

Lacking case law interpreting the level of specificity

required by this particular statute, the trial court relied by

analogy upon Hutchinson v. Port of Benton, 62 Wash.2d

451, 383 P.2d 500 (1963). In Hutchinson, we held the Port

of Benton had satisfied a statutory requirement that it

adopt a comprehensive harbor development plan before

expanding the port because it had given “a fairly detailed

picture” of what the project entailed. Hutchinson, 62

Wash.2d at 457, 383 P.2d 500. We acknowledged that the

plan was not a “model of preciseness,” but upheld the

project because the plan was sufficient to inform the

taxpayers of how their money was to be spent. Hutchin-

son, 62 Wash.2d at 457, 383 P.2d 500.

The trial court in this case held the City had com-

plied with RCW 35.86.050 because the statute does not

require a specific checklist but rather a process that pro-

vides the public with specific information about the pro-

ject. Because the City commissioned both a parking study

and a financial feasibility study and held three public

hearings to elicit comments on the plan, the trial court

found the City had complied with RCW 35.86.050.

Respondents point out that, in addition to these mea-

sures, the City has adopted a Downtown Spokane Devel-

opment Plan (Plan), which addresses downtown parking

needs. In their Reply Brief, the Appellants claim the RPS

facility violates this Plan because the Plan calls for park-

ing at the Davenport Hotel. This assertion is false. The

Plan encourages the development of a parking facility

“near” the Davenport Hotel and the Opera House/Con-

vention Center. Ex. 6 at 13. The RPS garage is two blocks

to the north of the Davenport Hotel.

Appellants’ argument that the City violated RCW

35.86.050 is not persuasive. The City has held hearings

and commissioned studies for the project and has also

established that the facility conforms to the City’s com-

prehensive plan. These steps satisfy the requirements of

RCW 35.86.050, given case law defining “comprehensive

plan.”

Appellants also contend the City lacks the authority

to purchase the parking garage because the RCW requires

city parking facilities to serve, as their primary purpose,

persons who use the park or civic center facilities. RCW

35.86.010 states:

Cities . . . are authorized to provide off-

street parking space and facilities located on

land dedicated for park or civic center purposes,

or on other municipally-owned land where the

primary purpose of such off-street parking facil-

ity is to provide parking for persons who use

such park or civic center facilities. In addition a

city may own other off-street parking facilities

and operate them in accordance with RCW

35.86A.120.

Appellants’ argument is without merit. The second sen-

tence of RCW 35.86.010 plainly authorizes a city to own

“other off-street parking facilities.” Appellants contend

that, because this portion of the statute requires such

facilities to be operated in accordance with RCW

35.86A.120 and because chapter 35.86A RCW allows cities

to establish parking commissions, the City is not allowed

to own “other off-street parking” unless it has created a

parking commission. RCW 35.86.010 merely states that

such facilities must be operated in accordance with RCW

35.86A.120 (which specifies under which circumstances a

city may or may not operate one of its parking facilities),

not that such a facility can be acquired only after a city

appoints a parking commission. The trial court properly

found the City was not required to create a parking

commission as a prerequisite to owning the RPS garage.

(2) Has the City failed to comply with the State Envi-

ronmental Policy Act?

The Developers submitted an environmental check-

list to the City as required by the State Environmental

Policy Act (SEPA) (RCW 43.21C). The City issued a Miti-

gated Determination of Non-significance on July 2, 1996.

Appellants sought review of this determination in supe-

rior court. The trial court barred the SEPA claim after

finding that Appellants failed to appeal the City’s deter-

mination through administrative channels.

A plaintiff alleging noncompliance with SEPA must

exhaust administrative remedies before filing suit. Citi-

zens for Clean Air v. City of Spokane, 114 Wash.2d 20, 26,

785 P.2d 447 (1990). Where an agency has an appeal

procedure in place, an aggrieved person is required to

seek redress under that procedure before seeking judicial

review. RCW 43.21C.075(4). The City of Spokane has

adopted a specific administrative appeal process for

SEPA rulings. See Spokane Municipal Code (SMC)

11.10.170.

Appellants fail to prove or even allege they have

done anything to exhaust their administrative remedies.

There is no evidence in the record that Appellants filed

an administrative appeal. Where the record fails to show

that an aggrieved party has attempted to use the adminis-

trative appeals process, the court will conclude that no

appeal was made. Citizens for Clean Air, 114 Wash.2d at

27, 785 P.2d 447. The trial court therefore properly dis-

missed the SEPA claim.

(3) Has the City failed to comply with the Growth

Management Act?

Appellants assert the City has violated the Growth

Management Act (RCW 36.70A.120) by failing to follow

its comprehensive plan. The City responds it has yet to

adopt a comprehensive plan under the Growth Manage-

ment Act (the Act) and, therefore, cannot have violated

the Act. The trial court agreed and adopted the City’s

reasoning without elaboration.

The Growth Management Act requires first-class

cities to implement comprehensive plans by July 31, 1997.

RCW 35.22.695. As of the date of oral argument, Spokane

had yet to implement a comprehensive plan under the

Act. Because there is no plan in place to violate, the City

cannot be said to have violated the Act.

(4) Has the City failed to comply with its comprehen-

sive plan?

Without citing to a specific ordinance, Appellants

also contend the City has violated its existing comprehen-

sive plan. Spokane adopted a comprehensive plan in

1983. See chapter 11.20 SMC. The plan allows for a broad

range of activities downtown. Appellants argue the RPS

redevelopment project violates the comprehensive plan’s

arterial street plan because it would close Post Street, an

arterial.

The City responds that Appellants have identified no

section of the arterial street plan that would prohibit the

vacation of an arterial. The City contends the RPS project

actually furthers the Spokane comprehensive plan

because the plan encourages development of projects that

attract shopping and entertainment in the downtown

area. The City is correct. The Appellants have failed to

allege any genuine violation of the Spokane comprehen-

sive plan.

(5) Has the City violated the Clean Air Act?

Appellants next assert the RPS project violates the

Washington Clean Air Act (RCW 70.94) because the City

has not obtained an air quality conformity determination.

Although Appellants do not cite which portion of the

10a

statute the City is allegedly violating, they are presuma-

bly referring to RCW 70.94.037, which would prevent the

City from approving the RPS project without first certify-

ing that the project conforms to the State implementation

plan of the federal Clean Air Act. The Respondents claim

that project developers prepared an air quality analysis as

part of the SEPA review process, and that this analysis

concluded that the project and its mitigation measures

will actually reduce carbon monoxide emissions.

Appellants’ argument is completely without merit.

The Developers prepared an air quality analysis (Ex. 85 at

01805-01822), and the City determined the project con-

formed to the Clean Air Act.

(6) Does the Ordinance violate article VI, section 1, of

the Washington Constitution by failing to serve a

public purpose?

Appellants next argue the RPS project violates article

VIL, section 1 (amend.81), of the Washington Constitution,

which states that all taxes “shall be levied and collected

for public purposes only.” Appellants contend the RPS

garage does not serve a public purpose because its expan-

sion is designed solely to meet the retail shopping needs

of the renovated RPS, a private entity.

We recently addressed this issue in CLEAN v. State,

130 Wash.2d 782, 792-93, 928 P.2d 1054 (1996). In CLEAN,

we held that public development of a major league base-

ball stadium serves a public purpose even though the

Seattle Mariners baseball club, a private entity, would

also benefit from the expenditure of public funds.

lla

CLEAN, 130 Wash.2d at 792-97, 928 P.2d 1054. We

explained:

“An expenditure is for a public purpose when it

confers a benefit of reasonably general character

to a significant part of the public.” In re Marriage

of Johnson, 96 Wash.2d 255, 258, 634 P.2d 877

(1981). “Where it is debatable as to whether or

not an expenditure is for a public purpose, we

will defer to the judgment of the legislature.”

Anderson v. O’Brien, 84 Wash.2d 64, 70, 524 P.2d

390 (1974).

The fact that private ends are incidentally

advanced is immaterial to determining whether

legislation furthers a public purpose.

CLEAN, 130 Wash.2d at 793 & 796, 928 P.2d 1054 (citation

omitted). We acknowledged in CLEAN that the degree to

which the baseball stadium would improve the economy

and quality of life was “debatable,” but held that this

question was best resolved by the people’s elected repre-

sentatives. CLEAN, 130 Wash.2d at 796-97, 928 P.2d 1054.

We must therefore defer to the judgment of the

Spokane City Council if the public benefit of this project

is at least “debatable.” The Ordinance contains at least 10

separate paragraphs articulating the reasons why the pro-

ject will benefit Spokane and meet a public need. Based

upon studies, documents, and public testimony, the City

found the project would create jobs, stimulate the econ-

omy, provide cultural opportunities, increase tax revenue,

thwart the economic decline of the downtown area, and

improve the quality of life. Given the fact that the City

12a

relied upon evidence that the project would confer var-

ious benefits, the public benefit of this project is at least

debatable. The project meets the public purpose test of

article VII, section 1, of the Washington Constitution.

(7) Does the Ordinance constitute a gift or a loan of the

credit of the State in violation of article VIII, sec-

tion 7, of the Washington Constitution?

Appellants next contend the RPS project amounts to

a gift of public funds and a lending of credit in violation

of the Washington Constitution. Respondents assert that

public support for the project does not constitute a gift or

a lending of credit because the City will receive a parking

garage in exchange for its assistance.

Article VIII, section 7, of the Washington Constitu-

tion states:

No county, city, town or other municipal

corporation shall hereafter give any money, or

property, or loan its money, or credit to or in aid

of any individual, association, company or cor-

poration, except for the necessary support of the

poor and infirm. . .

Appellants claim the City is violating this constitutional

provision in three ways: (a) the garage lease and ground

lease payments to be paid to the Developers are exces-

sively high, and the difference between the negotiated

prices and the market prices amounts to an unconstitu-

tional gift; (b) HUD assistance to the Developers is an

unconstitutional gift; (c) the pledge of parking meter

revenues is an unconstitutional lending of credit. Because

13a

the HUD assistance comes from the federal government,

not the City or State, this claim is meritless on its face.

CLEAN v. State employed a two-part test for analyz-

ing potential violations of article VIII, section 7. CLEAN,

130 Wash.2d at 797, 928 P.2d 1054. First, the court asks if

the funds are being expended to carry out a fundamental

purpose of the government. If the answer to this question

is yes, then no gift of public funds has been made. If not,

the court focuses on the consideration received by the

public and the donative intent of the appropriating body.

CLEAN, 130 Wash.2d at 798, 928 P.2d 1054.

Because it is highly questionable that the building of

a parking garage for a business district serves a “funda-

mental purpose” of government, we turn to the second

prong of the CLEAN test - whether there was consider-

ation or donative intent. We addressed this issue in City

of Tacoma v. Taxpayers, 108 Wash.2d 679, 703, 743 P.2d 793

(1987):

“Unless there is a proof of donative intent or a

grossly inadequate return, courts do not inquire

into the adequacy of consideration.” (Italics

ours.) Adams [v. University of Wash., 106 Wash.2d

312, 327, 722 P.2d 74 (1986) }. . . . Absent a

showing of donative intent or gross inadequacy,

trial courts should only apply a legal sufficiency

test, under which a bargained-for act or for-

bearance is considered sufficient consideration.

Appellants fail to prove either that the City intended

to donate public funds to the Developers or that the

consideration received for the City’s participation in the

project is “grossly inadequate.” In exchange for its assis-

tance;the City will receive a parking garage - an item

l4a

that would unquestionably constitute legally sufficient

consideration. Although Appellants may view the trans-

action as an unwise use of public funds that unduly

benefits the Developers, the wisdom of the plan is not for

this court to consider. See Louthan v. King County, 94

Wash.2d 422, 427, 617 P.2d 977 (1980).

Appellants next argue that, even if this court finds

the lease payment arrangement is not an unconstitutional

gift, we should still hold that the contingent pledge of

parking meter revenue is an unconstitutional lending of

credit. Again, CLEAN v. State is directly on point. The

appellants in CLEAN argued that the Stadium Act

amounted to an unconstitutional lending of credit

because it was a “ ‘financing conduit for private enter-

prise.” “ CLEAN, 130 Wash.2d at 799, 928 P.2d 1054. We

rejected this argument on the basis that the stadium was

to remain in public hands. In so holding, we distin-

guished the case from Lassila v. City of Wenatchee, 89

Wash.2d 804, 576 P.2d 54 (1978), in which we struck down

the City of Wenatchee’s purchase of property with intent

to sell it to a private party. CLEAN, 130 Wash.2d at 799,

928 P.2d 1054. Because the City of Wenatchee in Lassila

received nothing of value for its expenditure of public

money, it was unconstitutionally acting as a “middle per-

son for a private enterprise.” CLEAN, 130 Wash.2d at 799,

928 P.2d 1054. The Stadium Act, in contrast, provided that

ownership of the facility would remain in public hands.

CLEAN, 130 Wash.2d at 799, 928 P.2d 1054. Because the

State was not acting as a financing conduit for a private

entity, the Stadium Act did not amount to an unconstitu-

tional lending of credit. CLEAN, 130 Wash.2d at 799, 928

P.2d 1054.

15a

Because the RPS facility will ultimately belong to the

City, the City’s pledge of parking meter revenues is not

an unconstitutional lending of credit under CLEAN. The

pledge is clearly not a financing conduit for a private

entity because it was made to the PDA, a public entity, for

the sake of a publicly-owned facility.

(8) Is the emergency clause of the Ordinance invalid?

When the Ordinance was adopted, the City Council

found that “an urgency and emergency exists,” and

accordingly declared the Ordinance “effective upon

adoption in order to preserve the public peace, health or

safety and provide support of the City government and

its existing public institutions, facilities and infrastruc-

ture.” Ex. 142 at 10. The fact that the Ordinance became

effective immediately precluded a referendum on the pro-

ject under section 83 of the Spokane City Charter, which

allows for a referendum where the requisite number of

Signatures are presented to the City “prior to the date

when any ordinance shall take effect.”

Section 19(a) of the Spokane City Charter provides

that certain ordinances “shall take effect immediately

upon passage,” including:

An ordinance necessary for the immediate

preservation of the public peace, health or safety

or for the immediate support of city government

and its existing public institutions; provided it

has in its preamble or body a statement of the

facts giving rise to the necessity for immediate

16a

effectiveness and it is passed by a vote of one

more than a majority of the council[.]

Spokane City Charter § 19(a)(1).

Appellants argue the emergency clause of the Ordi-

nance is invalid and that therefore a referendum is

required. Again, CLEAN v. State is directly on point. In

CLEAN, this court interpreted article Il, section 1(b)

(amend. 72), of the Washington Constitution, which sub-

jects all state legislation to referendum except laws that

are “necessary for the immediate preservation of the pub-

lic peace, health or safety.” Given that section 19 of the

Spokane City Charter is identical in relevant part to the

constitutional provision interpreted in CLEAN, CLEAN is

controlling.

When reviewing legislative declarations of emergen-

cies, we give substantial deference to the Legislature.

“ ‘Legislative declarations of fact, such as the existence of

an emergency, are deemed conclusive unless they are

“obviously false and a palpable attempt at dissimula-

tion.” ’ ” CLEAN, 130 Wash.2d at 808, 928 P.2d 1054 (quot-

ing City of Tacoma v. Luvene, 118 Wash.2d 826, 851, 827

P.2d 1374 (1992)). Where an act is “doubtful” in this

regard, the doubt will be resolved in favor of the declara-

tion of emergency. CLEAN, 130 Wash.2d at 808, 928 P.2d

1054. In CLEAN, we found the emergency clause of the

Stadium Act was valid because the Legislature was acting

on a “clear and present danger” that the Seattle Mariners

would leave the state. CLEAN, 130 Wash.2d at 808, 928

P.2d 1054. Since the Legislature could reasonably believe

such a result would produce a detrimental economic

17a

effect, we deferred to the Legislature’s declaration of

emergency. CLEAN, 130 Wash.2d at 808-09, 928 P.2d 1054.

Appellants assert CLEAN v. State is inapposite

because there is no proof in the record that Nordstrom

will leave downtown if the project does not go forward. It

is true that Respondents have failed to establish Nord-

strom will leave downtown Spokane if the RPS project

fails to materialize. Nevertheless, CLEAN v. State requires

this court to defer to the City Council’s emergency decla-

ration unless it is “obviously false and a palpable attempt

at dissimulation.” CLEAN, 130 Wash.2d at 808, 928 P.2d

1054 (quoting Luvene, 118 Wash.2d at 851, 827 P.2d 1374).

The City Council found, among other things, that

downtown Spokane has “experienced a serious economic

decline.” Ex. 142 at 4. The Council also found that the

RPS project would create jobs, stimulate the economy,

provide cultural opportunities, and improve the quality

of life in the downtown area. Ex. 142 at 4. The Council

further found that commitments from the City and from

prospective RPS tenants “must immediately be received”

by the Developers in order for the project to be completed

on time. Ex. 142 at 5. Because the viability of the RPS

project depends upon Nordstrom’s presence and the pro-

ject must begin construction in September 1997 to accom-

modate the expiration of Nordstrom’s lease in 1999, it

was arguably necessary for the City to render the Ordi-

nance effective immediately. We cannot say the City’s

declaration of emergency is either “obviously false,” or a

“palpable attempt at dissimulation.”

18a

(9) Has the City violated City Charter section 85 by

failing to honor the petition for a referendum?

Appellants next contend the City has violated

Spokane City Charter § 85(a), which requires all “capital

expenditures . . . requiring indebtedness of the tax-

payers” to be approved by a vote of the people. However,

section 85(a) exempts “expenditures of an emergency

nature” from the referendum requirement. Because we

have upheld the declaration of emergency, the RPS pro-

ject is exempt from section 85 of the charter.

(10) Has the City acted in excess of its authority under

RCW 35.21.730 by contracting with the PDA to

operate the garage?

Appellants also claim the PDA lacks the authority to

lease and operate the garage. RCW 35.21.730 allows cities

to create public corporations “to improve the administra-

tion of authorized federal grants or programs, to improve

governmental efficiency and services, or to improve the

general living conditions in the urban areas. . . . ” Appel-

lants argue the PDA lacks the authority to exist because it

serves none of these functions. However, the PDA will

undeniably facilitate the administration of the federal

EDI grant. It arguably serves the other two purposes as

well. Therefore, the City has not acted in excess of RCW

35.21.730.

Appellants also contend the PDA is in violation of

RCW 35.21.730(4), which sets forth three potential func-

tions for a PDA: to administer federal grants, receive

private assistance, and perform any lawful public pur-

pose. Appellants argue the Spokane PDA is violating this

19a

portion of the law because, worded conjunctively, the

statute requires a PDA to perform all three of these

functions. This argument is meritless. The plain language

of the statute states that a city “may” create a public

corporation for these varied purposes. Although it is true

the word “and” appears in the statute, all three statutory

elements need not be present for a PDA to be acting

lawfully. Mount Spokane Skiing Corp. v. Spokane County, 86

Wash.App. 165, 173, 936 P.2d 1148 (1997).

(11) Has the City improperly delegated its authority?

Appellants assert without explanation that the City

has improperly delegated its authority “to consummate

the transactions” identified in the Ordinance. Br. of

Appellants at 55. Appellants fail to identify to whom the

City has improperly delegated its authority and failed to

clarify this point in their Reply Brief, despite the fact that

Respondents argued Appellants’ argument was unclear.

Lacking this basic information, we are unable to address

this claim.

(12) Did the trial court err in allowing the Developers

to intervene in this case?

Appellants next argue the trial court improperly

allowed the Developers to intervene. CR 24(a)(2) allows

an interested party to intervene as a matter of right where

“the disposition of the action may... impair .. . his

ability to protect that interest, unless the applicant's

interest is adequately represented by existing parties.”

20a

Respondents contend that the Developers’ interests

will not necessarily be protected by the City and the PDA

because the interests of the Developers are distinct from

those of the City and the PDA. The Respondents reason

that, whereas the City is charged with representing the

interests of all its residents, the Developers represent a

more narrow private interest. Given that the disposition

of this action could most certainly impair the Developers’

ability to protect their interests, the trial court did not err

in allowing the Developers to intervene.

(13) Did the trial court err in exempting from public

disclosure an addendum to a report prepared by

Coopers & Lybrand?

Appellants also claim the trial court erred in sealing

an addendum to a report prepared for the City by Coop-

ers & Lybrand. After reviewing the documents in camera

the trial court refused to compel the City to produce the

information, finding it was exempt from the scope of the

Public Records Act, RCW 42.17.310. RCW 42.17.310(1)(r)

exempts from public disclosure “(financial and commer-

cial information and records supplied by businesses or

individuals . . . during application for economic develop-

ment loans or program services provided by any local

agency.”

Where the record consists solely of documentary evi-

dence, the standard of review of a trial court’s public

disclosure ruling is de novo. Dawson v. Daly, 120 Wash.2d

782, 788, 845 P.2d 995 (1993). The trial court did not err in

exempting the addendum from public disclosure. The

addendum is exempt from disclosure under RCW

Soar ae

2la

42.17.310(1)(r) because the project’s HUD loan was pend-

ing at the time the trial court made its ruling.

(14) Are Appellants entitled to attorney fees?

Appellants ask this court to “fashion a new equitable

standard for attorneys [’] fees in proceedings of this

kind.” Br. of Appellants at 57. We decline to do so.

Affirmed.

SMITH, JOHNSON, ALEXANDER and TALMADGE,

JJ., concur.

GUY, Justice (concurring).

[ concur in the result of the majority opinion. I write

separately to explain my position on the issue regarding

the emergency clause of the Spokane City Charter. While

I dissented in CLEAN v. State, 130 Wash.2d 782, 928 P.2d

1054 (1996), concerning the Stadium Act and whether

raising money for the building of a new baseball stadium

was an “emergency,” I lost that issue. I now defer to the

decision of the majority on this issue. If the funding of a

new stadium for the Mariners was valid emergency legis-

lation, then a legislative body’s conclusion that the

redevelopment and revitalization of a downtown area

may also be such legislation. The majority of this Court

essentially held in the Mariner’s case that the economic

welfare of a region may give rise to the kind of “emer-

gency” for which emergency legislation may be validly

used. Therefore, we held that when a legislative body

decides that the economic welfare of a region is an emer-

gency in a given setting, then the majority of this court

will defer to the judgment of that legislative body.

22a

I also write separately to disagree with the conclu-

sion of the dissent that the danger to be remedied in

Spokane is not emergent because “the economic decline

has already happened.” That is not so. Elected officials

have a duty to strive to keep alive the economic vitality of

their city. The downtown of Spokane is the center of that

city and surrounding area. To allow a downtown to lose

its business activity is to allow its people to lose their

sense of belonging to the community. It is within the duty

of city officials to attempt to keep their downtown safe,

convenient and economically healthy.

MADSEN, Justice (concurring in the majority).

I agree with Durham, C.J., dissenting, that prior to

CLEAN v. State, this Court repeatedly and consistently

held in its review of emergency legislation under Const.

art. Il, § 1(b) that “the declaration to which deference is

granted [by the Court] is not the assertion of an emer-

gency itself, but the declaration of the facts constituting

the emergency.” Dissent at 1180, 1181. However, CLEAN

v. State dramatically altered judicial review. This Court

declared in CLEAN that it will defer to the assertion of an

emergency as long as the facts relied upon by the Legisla-

ture in declaring an emergency are not “ ‘obviously false

and a palpable attempt at dissimulation.’ ” City of Tacoma

v. Luvene, 118 Wash.2d 826, 851, 827 P.2d 1374 (1992)

(quoting State ex rel. Hamilton v. Martin, 173 Wash. 249,

257, 23 P.2d 1 (1933)).

After CLEAN, this Court no longer conducts an inde-

pendent analysis of whether a law is necessary for the

immediate preservation of the public peace, health, or

safety within the meaning of Const. art. II, § 1(b). The

23a

emergency exception is now coextensive with police

powers. I consider this an unfortunate reading of the

State Constitution. However, because CLEAN is the law, I

must concur with the majority in its result in this case.

SANDERS, Justice (concurring).

Reluctantly I concur with the majority. My greatest

reluctance is with issue seven (Majority at 1174) regard-

ing unconstitutional gifts of public funds and issues eight

and nine (Majority at 1175-1176) which grant this court's

imprimatur to the preposterous notion that a new parking

garage for Nordstrom’s is “necessary for the immediate

preservation of the public peace, health or Safety....”

Spokane County Charter art. III, § 19(a)(1); compare Const.

art. II, § 1(b). But this result is compelled by the majority

decision in CLEAN v. State, 130 Wash.2d 782, 928 P.2d

1054 (1996) wherein this court virtually repealed the citi-

zens’ constitutional right to referendum by allowing the

Legislature to inoculate itself against referendums

through conclusory emergency clauses not subject to

meaningful judicial review, as well as King County v.

Taxpayers of King County, 132 Wash.2d 360, 938 P.2d 309

(1997) which emasculated Const. art. VIIL, § 7’s prohibi-

tion against gifts of public funds to private persons by

adopting a “legally sufficient” consideration test. See

Majority at 1175. Compare Taxpayers, 132 Wash.2d at 393,

938 P.2d 309 (Sanders, J., dissenting). As my objections to

both decisions were stated for naught in the accompany-

ing dissents, I concur this case is within the four corners

of those majorities and agree stare decisis requires like

result in all other cases unless or until these decisions are

appropriately overruled to restore that measure of consti-

tutional protection our citizens are justly entitled.

24a

I agree with all of the observations set forth by the

Chief Justice in her dissenting opinion, save and except

her effort to distinguish CLEAN v. State, which, in my

judgment, is fairly indistinguishable. Once the constitu-

tional well has been poisoned, we all must drink from it

lest the incentive to correct our mistakes in a principled

fashion be lost by inconsistently imposing them.

DURHAM, Chief Justice (dissenting).

I disagree with the majority regarding the validity of

the declaration of emergency in the Spokane ordinance at

issue. Relying on CLEAN uv. State, 130 Wash.2d 782, 928

P.2d 1054 (1996), the majority concludes that a bare legis-

lative assertion of an emergency, unless obviously false,

forecloses the people’s referendum right. This court has

never granted such deference to a Legislature’s con-

clusory assertion that an emergency exists. Rather, defer-

ence is granted only to the declaration of facts that

constitute the alleged emergency. It remains a judicial

question whether those facts indeed constitute an emer-

gency. Because the Spokane ordinance responds only to a

continuing problem of economic decline in the downtown

retail area, it cannot be said to address an emergent

threat. It therefore fails to state an emergency and should

be subject to referendum.

ANALYSIS

The majority relies on some language from CLEAN v.

State that at first blush seems to foreclose any inquiry into

the validity of a legislative declaration of emergency:

‘“Legislative declarations of fact, such as the existence of

25a

an emergency, are deemed conclusive unless they are ‘obvi-

ously false and a palpable attempt at dissimulation.’ ” ’ 1

This language, however, must be considered in light of its

application in the cases from which it was born. As the

forthcoming discussion illustrates, similar language has

been used in many of our emergency clause cases.2 Not-

withstanding such broad language of deference, however,

this court has routinely invalidated legislative declara-

tions of emergency. We have done so without ever con-

cluding that the Legislature had falsely declared an

emergency. This would not be possible were deference

granted, as the majority mistakenly believes, to the mere

legislative assertion that an emergency exists.

SUMMARY OF OUR EMERGENCY CLAUSE CASES

Were it the case that courts must defer to a declara-

tion of emergency itself, courts would never need to

' Majority at 1176 (quoting CLEAN v. State, 130 Wash.2d,

782, 808, 928 P.2d 1054 (1996) (quoting City of Tacoma v. Luvene,

118 Wash.2d 826, 851, 827 P.2d 1374 (1992) (quoting State ex rel.

Hamilton v. Martin, 173 Wash. 249, 23 P.2d 1 (1933)))).

* There are two separate exceptions to the people’s

referendum right: one for laws necessary for the immediate

preservation of the public peace, health, or safety; and another

for laws in support of the state government and its existing

public institutions. See CLEAN v. State, 130 Wash.2d at 804 n. 7,

928 P.2d 1054 (discussing Const. art. II, § 1(b)). Since this case

involves application of the first exception only, my discussion of

our relevant case law will be confined to those emergency

clause cases addressing the first exception. As the majority

correctly points out, the standard for evaluating declarations of

emergency in state legislation is equally applicable to the city

ordinance in the present case.

26a

discuss the factual bases for legislation absent allegations

of legislative deceit. Legislative declarations of emer-

gency would rarely, if ever, be contested since the Legis-

lature would need only declare an emergency to foreclose

virtually any challenge. Instead, deference has been

granted only to the legislative declaration of facts consti-

tuting the emergency. This point was expressly made in

State ex rel. Hamilton v. Martin, 173 Wash. 249, 23 P.2d 1

(1933), which is the original source of the language in

CLEAN v. State regarding the conclusive nature of legisla-

tive declarations of emergency.°*

In Hamilton, this court considered the validity of

declarations of emergency in two depression-era acts pro-

viding relief in response to state-wide unemployment

and poverty.* The Legislature declared that “ ‘[d]iscon-

tent, social unrest and incipient insurrection exist. Acts of

insurrection are occurring.’ “> The appellant did not

argue that insurrection was insufficiently emergent to

suspend the referendum right. Rather, the appellant dis-

puted the Legislature’s factual assertion that there was

such a degree of social unrest. The court made clear that

the courts will defer to legislative declarations of facts

constituting an emergency:

We have always held to the rule that the

legislative declaration of the facts constituting the

emergency is conclusive, unless, giving effect to

3 See supra note 1.

4 State ex rel. Hamilton v. Martin, 173 Wash. 249, 251-54, 23

P.2d 1 (1933).

> Hamilton, 173 Wash. at 256-57, 23 P.2d 1 (quoting

Rem.Stat. § 9992 (Supp.1933)).

PIR ei Sere Xe

27a

every presumption in its favor, the court can say

that such legislative declaration, on its face, is

obviously false and a palpable attempt at dis-

simulation.[®]

Having given conclusive effect to the legislative declara-

tion that insurrection was occurring, it was a simple

matter for the court to conclude that insurrection was a

sufficiently emergent threat to justify suspension of the

referendum right.”

In the next three emergency clause cases, the court

affirmed this principle by taking legislative declarations

of the facts at face value. Yet, the court gave no conclu-

sive effect to the declarations of emergency themselves.

Instead, the court invalidated the declarations of emer-

gency in all three cases because the factual bases for the

alleged emergencies were not emergent.

First, in State ex rel. Robinson v. Reeves, 17 Wash.2d

210, 135 P.2d 75, 146 A.L.R. 280 (1943), the court consid-

ered the validity of a declaration of emergency in an act

relating to public utilities funding and operations. In

holding the declaration of emergency invalid, the court

emphasized that the referendum power is suspended

only upon an immediate threat to the public peace,

health, or safety. The court concluded that the acquisi-

tion and operation of public utilities, while in the public

” Hamilton, 173 Wash. at 259, 23 P.2d 1.

8 State ex rel. Robinson v. Reeves, 17 Wash.2d 210, 215-16, 135

P.2d 75 (1943).

28a

interest, was not an emergency, notwithstanding the Leg-

islature’s declaration that it was.?

“Promotion of the public welfare” is not a

criterion by which we may be guided in deter-

mining whether or not an emergency exists

which defeats the right to refer the act to the

people. ...

To uphold a legislative declaration of emer-

gency such as this would destroy the referen-

dum and would permit the legislature, or a

group of electors barely sufficient to invoke an

initiative, to impose its will upon the majority in

any instance where it is seen fit to attach to an

act a declaration of emergency.[?°]

Next, in State ex rel. McLeod v. Reeves, 22 Wash.2d 672,

157 P.2d 718 (1945), the court invalidated a declaration of

emergency in an act amending the game code. The court

rejected the suggestion that the amendments were emer-

gency measures necessary to correct an alleged constitu-

tional problem with the then existing code.!! Again, the

court emphasized that it is a judicial question whether

the factual bases for legislation constitute an emergency. !2

The court concluded that the need to reorganize the game

9 Robinson, 17 Wash.2d at 216-17, 135 P.2d 75.

10 Robinson, 17 Wash.2d at 217, 135 P.2d 75.

11 State ex rel. McLeod v. Reeves, 22 Wash.2d 672, 675, 157

P.2d 718 (1945).

12 McLeod, 22 Wash.2d at 674, 157 P.2d 718.

29a

commission was not sufficiently emergent to suspend the

referendum right.13

Then, in State ex rel. Kennedy v. Reeves, 22 Wash.2d

677, 157 P.2d 721 (1945), the court invalidated a declara-

tion of emergency in an act regarding the administration

of state timber resources. The court rejected arguments

that the act was immediately necessary as an economic

measure to quash duplicative timber management func-

tions and to consolidate control over timber resources.14

The court expressly held that the referendum right could

not be defeated by the mere declaration of emergency:

We think it too clear to require argument

that the legislature cannot defeat the constitu-

tional right, reserved by the people. . . by merely

inserting in an act... .

“This act is necessary for the immediate

preservation of the public peace, health and

Safety... . “15

Notwithstanding the beneficial nature of the act, it did

not address an emergent threat and was, therefore, sub-

ject to referendum.16

This brings us to State ex rel. Pennock v. Reeves, 27

Wash.2d 739, 179 P2d 961 (1947), in which the court

erroneously stated in dictum that conclusive effect is

‘3 McLeod, 22 Wash.2d at 674-75, 157 P.2d 718.

14 State ex rel. Kennedy v. Reeves, 22 Wash.2d 677, 682-83, 157

P.2d 721 (1945).

'S Kennedy, 22 Wash.2d at 681, 157 P.2d 721 (quoting Laws

of 1945, ch. 202, p- 579) (emphasis in original).

'¢ Kennedy, 22 Wash.2d at 682-84, 157 P.2d 721.

30a

given to a legislative declaration of emergency itself. In

Pennock, the plaintiff sought a writ of mandate to compel

the Secretary of State to accept filings for referendum

against parts of two amendatory welfare acts. The court

held, on the only issue before it, that when any portion of

a law addresses an emergency, the entire law is immune

from referendum.’” Since the plaintiff conceded that the

appropriations provisions of the acts were emergent and

in support of an existing state institution,’® his writ was

necessarily denied. Yet, the court went on to state in

dictum:

In each of the statutes in the cases at bar is a

declaration that the act is necessary for the

immediate preservation of the public peace,

health, and safety. We have consistently held

that such legislative declaration of emergency

and necessity for the enactment is conclusive

and must be given effect, unless the declaration

on its face is obviously false; and, in determin-

ing the truth or falsity of the legislative declara-

tion, we will enter upon no inquiry as to the

facts, but must consider the question from what

appears upon the face of the act, aided by the

court’s judicial knowledge. State ex rel. Hamilton

v. Martin, 173 Wash. 249, 23 P.2d 1. We must give

to the action of the legislature and its declara-

tion of an emergency every favorable presump-

tion.[?9]

17 State ex rel. Pennock v. Reeves, 27 Wash.2d 739, 743, 179

P.2d 961 (1947).

18 Pennock, 27 Wash.2d at 741, 179 P.2d 961.

19 Pennock, 27 Wash.2d at 743-44, 179 P.2d 961.

3la

In doing so, the court misstated the rule it cited from

Hamilton. As discussed earlier, the Hamilton court stated

that the court had always given conclusive effect to legis-

lative declarations of facts constituting an emergency, and

the Kennedy court expressly rejected the suggestion that

the declaration of emergency itself was given conclusive

effect.

Fortunately, there is no precedential effect to this

misstatement because the doctrine of stare decisis does

not apply to language that is unnecessary to the conclu-

sion reached.?° It is well established that the precedential

effect of such general statements is confined to the facts

and issues before the court.2! The plaintiff never chal-

lenged the validity of the declarations of emergency;

indeed, he conceded their validity. He sought only to

subject the nonemergency provisions of the acts to refer-

endum. Thus, the court's misstatement, though often

repeated, is not binding authority.

Unfortunately, this court has often turned, ill

advisedly, to Pennock for the scope of judicial deference in

emergency clause cases. However, subsequent emergency

clause cases purporting to apply this rule from Pennock,

up to and including CLEAN v. State, make clear that the

declaration of emergency itself is given no conclusive

effect. Rather, in order for the court to uphold the validity

of a declaration of emergency, there must be facts that are

legally sufficient to constitute an emergency. This court

20 In re Electric Lightwave, Inc., 123 Wash.2d 530, 541, 869

P.2d 1045 (1994),

*1 In re Estate of Burns, 131 Wash.2d 104, 113, 928 P.2d 1094

(1997).

32a

has not hesitated to hold legislation subject to referen-

dum despite a legislative declaration of emergency when

the facts did not demonstrate an emergent threat to the

public.

In the next emergency clause case after Pennock, this

court struck down a declaration of emergency in a city

ordinance much like the present one. At issue in State ex

rel. Gray v. Martin, 29 Wash.2d 799, 189 P.2d 637 (1948)

was a Tacoma ordinance authorizing the purchase of

property to construct a municipal airport. The ordinance

stated that a public emergency existed and that in order

to provide adequate transportation facilities it was imper-

ative that the ordinance take effect immediately. Like the

Spokane charter in the present case, the Tacoma charter

provided for suspension of the referendum right upon a

declaration of emergency in an ordinance. The City

argued that the declaration of emergency was conclusive

since it was not obviously false on its face and there were

no judicially noticeable facts indicating falsity.22 The ordi-

nance at issue provided in relevant part:

Section 4. That in order to provide adequate

transportation facilities for the inhabitants of the

City of Tacoma and for the support of the City

government it is imperative that the provisions

of this ordinance become effective without delay

and by reason thereof a public emergency is

hereby declared to exist making it necessary

that this ordinance take effect immediately after

22 State ex rel. Gray v. Martin, 29 Wash.2d 799, 805-06, 189

P.2d 637 (1948).

33a

publication and that the same shall take effect

immediately after publication.[23]

The court quoted the Pennock court’s assertion that a

legislative declaration of emergency is conclusive unless

obviously false.24 Nevertheless, the court invalidated the

declaration of emergency, holding that the ordinance

failed to state an emergency.25

In doing-so the court clarified that the declaration to

which deference is granted is not the assertion of an

emergency itself, but the declaration of the facts constitu-

ting the emergency. Therefore, no weight was given the

city council’s opinion that the public transportation need

was emergent. Rather, the court concluded that the ordi-

nance, by failing to declare facts that constituted an emer-

gency, failed to declare any emergency to which

deference could be granted.

23 Gray, 29 Wash.2d at 802-03, 189 P.2d 637 {quoting Tacoma

Ordinance 13082 (Apr. 16, 1947)) (emphasis omitted).

*4“We have consistently held that such legislative

declaration of emergency and necessity for the

enactment is conclusive and must be given effect,

unless the declaration on its face is obviously false;

and, in determining the truth or falsity of the

legislative declaration, we will enter upon no inquiry

as to the facts, but must consider the question from

what appears upon the face of the act, aided by the

court’s judicial knowledge. State ex rel. Hamilton v.

Martin, 173 Wash. 249, 23 P.2d 1. We must give to the

action of the legislature and its declaration of an

emergency every favorable presumption.”

Gray, 29 Wash.2d at 804, 189 P2d 637 (quoting Pennock, 27

Wash.2d at 743-44, 179 P.2d 961).

2° Gray, 29 Wash.2d at 806, 189 P.2d 637.

34a

The Gray court explained that an emergency is that

“which calls for immediate action or remedy; pressing

necessity; exigency; a sudden or unexpected happen-

ing.” Although the ordinance stated facts regarding the

need for public transportation, there were no facts that

explained why public transportation was so inadequate

that emergency measures were required:

[T]he ordinance contains no statement that a

public emergency exists with reference to trans-

portation facilities in Tacoma. True, the state-

ment “to provide adequate transportation

facilities” may be interpreted to imply that there

is a need for such facilities; but the statement

does not declare, nor can it be construed to

mean, that the transportation facilities in Tac-

oma are so insufficient or inadequate as to

require immediate additional facilities.[?7]

The court adhered to this principle in its next emer-

gency clause case by striking down yet another legislative

declaration of emergency. In State ex rel. Humiston v.

Meyers, 61 Wash.2d 772, 380 P.2d 735 (1963), the court

attempted to clarify the ambiguity created by the Pennock

dictum. At issue was the validity of a declaration of

emergency in an act authorizing certain gambling activ-

ities. The court noted that “[i]t would be inaccurate to say

that our former decisions have been consistent in discuss-

ing and announcing the rule to be applied.”28 By way of

26 Id. (quoting State ex rel. Porter v. Superior Court, 145 Wash.

551, 559, 261 P. 90 (1927)).

27 Gray, 29 Wash.2d at 808, 189 P.2d 637 (emphasis in

original).

28 State ex rel. Humiston v. Meyers, 61 Wash.2d 772, 778, 380

P.2d 735 (1963).

35a

example, the court quoted the Pennock court’s overstate-

ment of the rule.?? In holding the declaration of emer-

gency invalid, the court then clarified that no conclusive

effect is given the declaration of emergency itself:

The touchstone of the rule is “ . . . what

appears upon the face of the act, aided by the

court's judicial knowledge.”

The face of the act is patently devoid of any

facts relating to an emergency (with the excep-

tion of the emergency clause itself)... . We do

not indicate that the inclusion of a legislative

declaration of policy in an act would, ipso facto,

remove the emergency clause from the ambit of

the court’s constitutional duty to project and

test the clause upon the backdrop of the consti-

tution.[5°]

The court could hardly have been more clear in its rejec-

tion of the idea that the declaration of emergency itself is

entitled to deference:

“[T]he legislature has no right to tack an emer-

gency clause onto an act in order to prevent the

people from exercising their right of referen-

dum, unless that act is clearly within the excep-

tion set forth in the amendment.” [31]

*° Humiston, 61 Wash.2d at 778, 380 P.2d 735 (quoting State

ex rel. Hoppe v. Meyers, 58 Wash.2d 320, 326, 363 P.2d 121, 100

A.L.R.2d 304 (1961) (quoting State ex rel. Pennock v. Coe, 42

Wash.2d 569, 257 P.2d 190 (1953) (quoting Pennock, 27 Wash.2d

at 743-44, 179 P.2d 961))).

30 Humiston, 61 Wash.2d at 778, 380 P.2d 735.

1 Humiston, 61 Wash.2d at 776, 380 P.2d 735 (emphasis in

original).

36a

The next time (and last time before CLEAN v. State)

that this court considered a challenge to a declaration of

emergency was in an appeal from a conviction for drug

loitering. In City of Tacoma v. Luvene, 118 Wash.2d 826, 827

P.2d 1374 (1992), the defendant challenged the ordinance

on overbreadth, vagueness, and preemption grounds. A

minor issue was the defendant’s novel argument that an

invalid declaration of emergency rendered the drug

loitering ordinance unenforceable. The court stated that

legislative declarations of fact, including declarations of

emergency, are conclusive unless “ ‘obviously false and a

palpable attempt at dissimulation.’ “32 In doing so, the

court repeated the error of the Pennock court by incor-

rectly paraphrasing State ex rel. Hamilton v. Martin, 173

Wash. 249, 23 P.2d 1 (1933). Yet, in upholding the declara-

tion of emergency the court did not simply defer to the

declaration of emergency, but looked to the facts constitu-

ting the emergency. The ordinance provided, in part:

“That time is of the essence in this matter

because the City’s drug problems are increasing

rapidly, causing imminent danger to the public

health and safety and to property in the area

where drug use is taking place. . . . ”[33]

The court concluded that there was no falsehood or dis-

simulation behind the factual assertion of the City’s rap-

idly increasing drug problems. It was clear, therefore, that

32 City of Tacoma v. Luvene, 118 Wash.2d 826, 851, 827 P.2d

1374 (1992) (quoting State ex rel. Hamilton v. Martin, 173 Wash.

249, 23 P.2d 1 (1933)).

33 Luvene, 118 Wash.2d at 851, 827 P.2d 1374 (quoting

Tacoma Ordinance 24167 § 2).

37a

such a threat was sufficiently emergent to validate the

declaration of emergency.

This brings us to CLEAN v. State, 130 Wash.2d 782,

928 P.2d 1054 (1996), upon which the majority relies for

the proposition that a legislative declaration of emer-

gency itself is conclusive. In CLEAN v. State, the court

was asked to evaluate the validity of a declaration of

emergency in a financing act for the new Seattle Mariners

major league baseball stadium. The court cited to both

Humiston and Luvene for the proposition that legislative

declarations of emergency are conclusive unless obvi-

ously false.*4 Yet, as this court had done in every emer-

gency clause case, the inquiry did not end with the

legislative declaration of emergency. Instead, the court

acknowledged “[t]he more knotty question” of whether

the financing act was immediately necessary, before inde-

pendently evaluating whether the factual underpinning

of the declaration of emergency were legally sufficient to

constitute an emergency.°5 The court noted that the Mari-

ners had informed the King County Executive that with-

out a new stadium the Mariners would be offered for sale

after October 30, 1995.36 With only a few weeks to act, on

October 11, 1995, the governor called a special session of

the Legislature solely to address financing for a new

stadium.*” The session concluded a week later when the

Legislature adopted a financing act, which included a

34 CLEAN v. State, 130 Wash.2d 782, 807-08, 928 P.2d 1054

(1996).

3° CLEAN v. State, 130 Wash.2d at 807, 928 P.2d 1054.

36 CLEAN v. State, 130 Wash.2d at 788, 928 P.2d 1054.

37 Id.

38a

declaration of emergency.** The court was satisfied that

the Legislature acted in response to a “clear and present

danger” that the State’s only major league baseball team

would be lost without prompt action.°?

Thus, this court has never given conclusive effect to

the assertion of emergency itself. To do so would be to

abdicate our duty to evaluate the constitutionality of

legislative action. It would be no different than deferring

to a legislative declaration that an act were necessary to

further a compelling state interest. Instead, this court has

upheld declarations of emergency only when the facts

established a need for immediate response to public peril.

THE SPOKANE ORDINANCE FAILS TO DECLARE AN

EMERGENT THREAT

It is apparent that the factual underpinnings of the

Spokane ordinance do not constitute an emergency. Of

course, we should give conclusive effect to the Spokane

City Council’s declaration of the facts constituting the

emergency. We should accept as true that the downtown

area has suffered an economic decline and that the ordi-

nance will revitalize the area.” We should also accept as

true that the developer must immediately execute leases

to commit tenants to the project in order for the project to

38 CLEAN v. State, 130 Wash.2d at 790-92, 928 P.2d 1054.

* CLEAN v. State, 130 Wash.2d at 808-09, 928 P.2d 1054.

*# Majority at 1176 (quoting Spokane Ordinance C31823

(Jan. 27, 1997)).

39a

go forward.*! Yet, the danger to be remedied is not emer-

gent because the economic decline has already happened.

Although the revitalization of downtown, like the

construction of an airport in Gray, may be a project in the

interest of improving the public welfare, it is not necessary

for the immediate preservation of the public welfare. The

failure of the project to proceed would not alter the status

quo; it would be merely a lost opportunity to remedy

what appears to be a long-standing problem. Thus, the

Spokane ordinance is nothing more than an economic

stimulus plan precisely of a type upon which the Spokane

taxpayers should be allowed to vote. As the Gray court

observed:

[The city council] must set forth in the ordi-

nance a statement specifying not a mere conclu-

sion, nor merely the purpose of the ordinance,

but an actual existing public emergency. To hold

otherwise would be to nullify the power with-

held by the people of the city . . . when they

provided for a referendum in their city charter,

for it would mean a waiver of their express right

to referendum whenever their city council chose

to declare a certain situation an emergency. [#2]

CONCLUSION

Despite the majority’s assertion to the contrary, this

case is in stark contrast to CLEAN v. State, where there

was an immediate threat that the State could lose its only

major league baseball team and the Legislature took the

41 Jd.

42 Martin, 29 Wash.2d at 808-09, 189 P.2d 637.

40a

extraordinary action of calling a special legislative ses-

sion solely to address this impending threat. There is no

similarly impending threat in the present case. Even giv-

ing conclusive effect to the Spokane City Council’s con-

cern that the project would fall through without

immediate action, a potentially missed opportunity to

correct a long-standing problem is not an emergency. The

declaration of emergency in the ordinance, therefore, is

legally insufficient to suspend the right of referendum the

citizens of Spokane reserved to themselves in their city

charter.

4la

APPENDIX B

THE SUPREME COURT OF WASHINGTON

CLEAN (Citizens for NO. 65262-7

—— an ogy ORDER DENYING

i apuny ), MOTION FOR

ae RECONSIDERATION

Appellants,

CITY OF SPOKANE, a

Washington first class

charter city, et al.,

Respondents.

and

CITIZENS REALTY

COMPANY, a

Washington corporation,

et al.,

)

Respondents. ‘

The Court having considered the Motion for Reconsideration

of Appellants;

~ Now, therefore, it is hereby

ORDERED:

That the Appellants’ motion for reconsideration is denied.

DATED at Olympia, Washington this 5th day of February,

1998.

/s/ Durham CJ

CHIEF JUSTICE

42a

APPENDIX C

SUPERIOR COURT OF THE STATE OF WASHINGTON

FOR SPOKANE COUNTY

CLEAN (Citizens for Leaders) NO. 96-2-06361-9

yt evr eae ORDER OF DISMISSAL

ccountability Now!), a AND/OR SUMMARY

Washington non-profit E

corporation; SPOKANE a peng teos _ USE

RESEARCH AND DEFENSE

FUND, a Washington non- pil es used

profit corporation; and

COALITION FOR A NEW

SPOKANE, a Washington

non-profit corporation,

Plaintiffs,

CITY OF SPOKANE, a

Washington first-class

charter city;

the SPOKANE CITY

COUNCIL; and SPOKANE

PARKING PUBLIC

DEVELOPMENT

AUTHORITY, a City of

Spokane public corporation,

Defendants

and

CITIZENS REALTY

COMPANY and LINCOLN

INVESTMENT COMPANY

OF SPOKANE,

Intervenors

)

43a

PRIORITIES FIRST, a ) Consolidated with

Washington political action ) ry a

committee, RICHARD D. NO. 97-2061

ADAMS, an individual,

Plaintiffs

—

CITY OF SPOKANE, a

Washington first class

charter city, :

Defendant

and

CITIZENS REALTY

COMPANY and LINCOLN

INVESTMENT COMPANY

OF SPOKANE,

Intervenors Consolidated with

MARGARET LEONARD, an NO. 97-2-00644-3

individual,

Plaintiff

CITY OF SPOKANE, a

Washington first class

charter city,

Defendant

and

CITIZENS REALTY

COMPANY and LINCOLN

INVESTMENT COMPANY

OF SPOKANE,

Intervenors.

)

I. HEARING

1.1 Hearing. This matter came before the Court for

hearing on April 9, 1997, on the Motion for Dismissal or

in the Alternative Summary Judgment on behalf of the

defendants, City of Spokane and Spokane Parking Public

Development Authority, and the Intervenors, Citizens

Realty Company and Lincoln Investment Company of

Spokane.

1.2 Appearances. Thomas F. Kingen appeared on

behalf of Defendants, Spokane Public Development

Authority and the City of Spokane, Duane Swinton,

appeared on behalf of Intervenors, Citizens Realty and

Lincoln Investments, and Stephen K. Eugster appeared on

behalf of plaintiffs, CLEAN, Spokane Reserach and

Defense Fund, Coalition for a New Spokane, Priorities

First, Richard Adams, John Talbott and Margaret

Leonard.

1.3 Evidence. In rendering this order, this Court

has considered the documents and evidence contained in

the court docket for Cause Nos. 96-2-06361-9,

97-2-00645-1, and 97-2-00644-3, attached hereto as Exhibit

“A” incorporated by this reference herein, together with

the Stipulation dated March 18, 1997, attached hereto as

Exhibit “B” and incorporated by this reference herein.

Il. FINDINGS

This court, having considered oral arguments of

counsel, having reviewed the above-mentioned evidence

and pleadings presented, and being fully advised in the

matter, finds that there is no genuine issue as to any

45a

material fact in this action, and therefore, the City of

Spokane, the Spokane Public Development Authority,

and the Intervenors, Citizens Realty and County [sic] and

Lincoln Investment Company are entitled to judgment as

a matter of law.

Il. JUDGMENT

On the basis of the foregoing findings, NOW,

THEREFORE, IT IS HEREBY ADJUDGED, ORDERED

AND DECREED that:

1. The Complaint for Declaratory and Injunctive

Relief dated February 7, 1997, (Amending the Application

for Writ of Prohibition and Complaint for Declaratory

and Injunctive Relief dated October 22, 1996) is hereby

dismissed in Cause No. 96-2-06361-9.

2. The Complaint for Declaratory Relief dated Feb-

ruary 3, 1997, (together with the Amended Complaint for

Declaratory Relief and Application for Writ of Mandamus

in Cause No. 97-2-00645-1 is dismissed.

3. The Complaint for Declaratory Relief dated Feb-

ruary 3, 1997, in Cause No. 97-2-00644-3 is dismissed.

4. The Intervenor’s motion to dismiss the Plaintiff

CLEAN, in Cause No. 96-2-06361-9 is denied.

5. Defendants’ Joint Motion to Strike the Declara-

tion of Stephen K. Eugster is granted as to paragraphs 3

and 4 of the declaration and denied as to all other por-

tions of the declaration.

6. Upholds as exempt from public disclosure the

addendum to the Coopers & Lybrand Report (Item 138 of

46a

the Stipulation dated March 18, 1997) pursuant to RCW

42.17.310(r) and (h).

7. The Court’s Memorandum Decision dated April

11, 1997, attached hereto as Exhibit “C” fully states the

Court’s decision dismissing the actions set forth in para-

graphs 1, 2 and 3 of this judgment.

DONE IN OPEN COURT THIS 16th day of April,

1997.

KATHLEEN M. O’CONNOR

HONORABLE

KATHLEEN O’CONNOR

Spokane County Superior

Court Judge

PRESENTED BY:

PERKINS COIE

/s/

Thomas F. Kingen, WSBA #6692

Attorney for Defendant, Spokane PDA

CITY OF SPOKANE

JAMES C. SLOANE

City Attorney

By: /s/

Stanley M. Schwartz, WSBA #15518

Assistant City Attorney

Attorneys for Defendant, City of Spokane

47a wz

WITHERSPOON KELLEY DAVENPORT & TOOLE

By: /s/

Duane Swinton, WSBA #8354

Attorney for Intervenors

NOTICE OF PRESENTMENT WAIVED:

EUGSTER HASKELL

/s/

Stephen K. Eugster, WSBA #2003

Attorney for Plaintiffs

48a

SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF SPOKANE

CLEAN (Citizens for Leaders _)

with Ethics and Accountability )

Now!), a Washington non-profit )

corporation; SPOKANE )

RESEARCH & DEFENSE FUND,) No. 96-2-06361-9

a Washington non-profit

corporation; and COALITION

FOR A NEW SPOKANE, a

Washington non-profit

corporation,

Plaintiffs,

(Consolidated with

97-2-00645-1 and

97-2-00644-3)

MEMORANDUM

DECISION

VS.

)

CITY OF SPOKANE, a )

Washington first class charter )

city; the SPOKANE CITY )

COUNCIL; and, SPOKANE )

PUBLIC DEVELOPMENT )

AUTHORITY, a City of Spokane)

public corporation,

Defendants, )

and )

)

CITIZENS REALTY COMPANY,

a Washington corporation; and

LINCOLN INVESTMENT

COMPANY, a Washington

corporation,

Intervenors-Defendants.

49a

PRIORITIES FIRST, a Washington )

political action committee;

RICHARD D. ADAMS, an

individual; and, JOHN

TALBOTT, an individual,

Plaintiffs,

VS.

CITY OF SPOKANE, a

Washington first class charter

city; and its CITY COUNCIL,

Defendants,

and

CITIZENS REALTY COMPANY,

a Washington corporation; and,

LINCOLN INVESTMENT

COMPANY, a Washington

corporation,

Intervenors-Defendants.

MARGARET LEONARD, an

individual,

Plaintiff,

Vs.

CITY OF SPOKANE, a

Washington first class charter

city,

Defendants,

and

)

No. 97-2-00645-1

No. 97-2-00644-3

50a

CITIZENS REALTY COMPANY,

a Washington corporation; and,

LINCOLN INVESTMENT

corporation,

Intervenors-Defendants.

)

COMPANY, a Washington )

)

THIS MATTER came before the court for oral argu-

ment on April 9, 1997, on Intervenor-Defendants’ Motion

to Dismiss for Lack of Standing and Intervenor-Defen-

dants’ Motion to Dismiss, or in the Alternative Motion for

Summary Judgment. The court has received the following

pleadings pertinent to these motions:

10.

Note for Hearing - Issue of Law re Motion for S.J.

and Motion to Dismiss

Replacement Memorandum in Support of Inter-

venor-Defendants’ Motion to Dismiss, or in the

Alternative Motion for Summary Judgment

Response to Intervenor-Defendants Motion to

Dismiss for Lack of Standing

Declaration of Stephen K. Eugster (April 1, 1997)

Response of Plaintiffs to Memorandum of Devel-

opers

Brief of Plaintiffs Priorities First et al. (Emergency

Legislation Issue)

Brief of Plaintiff Leonard

Notice of Application

Application for Writ of Mandamus

COPY OF CASE: Clean, et al. v. The State of

Washington, 130 Wn.2d 782

5la

STATEMENT OF THE CASE

The Intervenor-Defendants’ (Developers’) own prop-

erty in downtown Spokane bounded by Spokane Falls

Boulevard, Main Avenue, Lincoln Street and Wall Street.

This property includes the River Park Square shopping

mall and garage. In early 1995 the Developers

approached the City of Spokane seeking their assistance

in the redevelopment of River Park Square. In order to

facilitate expansion, the River Park Square garage should

be expanded from 750 car parks to 1,304 parking spaces.

The retail portion of the project includes construction of a

new building at the corner of Lincoln Street and Main

Avenue to be occupied by Nordstrom, Inc., and addi-

tional retail space. This project will also require the vaca-

tion of a portion of Post Street and an alley between Post

Street and Wall Street.

Pursuant to City Council Resolution 95-73 the City

applied to the Department of Housing and Urban Devel-

opment (HUD) for an Economic Development Grant

(EDI) and a HUD Section 108 guaranteed development

loan. HUD approved a $1,000,000 EDI grant on June 20,

1995. The Section 108 application is currently being eval-

uated by HUD.

The Developers submitted a State Environmental

Protection [sic] Act (SEPA) checklist and the City issued a

Mitigated Determination of Non-Significance on July 2,

1996 (LR 85). Notice of this decision was published. No

appeal was taken from this decision.

The legislative record in this case consists of some

158 documents including a transcript of public testimony

on October 17, 1996, January 13, 1997, and January 27,

52a

1997 (LR 152). The record reflects the changes that were

made in the City’s proposed participation in the project;

specifically, the City decided not to purchase the garage

outright. As Ordinance No. C31823 indicates, the Devel-

opers will build the garage and sell the building, not the

land on which it sits, to the Spokane Downtown Founda-

tion (Foundation). The Foundation is a nonprofit corpora-

tion which intends to issue tax-exempt bonds on behalf of

the City payable over 21 years from the revenues from

the garage.

In turn, the Foundation will lease the garage to the

Spokane Public Development Authority (PDA) which has

been created pursuant to RCW 35.21.730 et seq. which

will operate the facility. In addition, the Foundation will

enter into a ground lease with the Developers and assign

that lease to the PDA. When the bonds issued by the

Foundation have been repaid, the City will acquire title to

the garage at no cost.

Through Ordinance No. C31823 the City also created

a parking meter revenue fund. Parking meter revenue

will be deposited into the fund and “contingently

pledged” to pay the operating expenses of the garage and

the ground lease payments in the event the garage reve-

nues are not sufficient to maintain the garage in a “first-

class condition” (LR 142, Bates 02347).

As of the date of this opinion the Section 108 HUD

loan has not been approved; however, as a condition of

application, the City agrees to pledge its future Commu-

nity Development Block Grants as repayment of the loan

if the Developers default.

—

53a

Ordinance No. C31823 was passed on January 27,

1997. On January 30, 1977 [sic], plaintiffs, Priorities First,

Richard Adams and John Talbott, presented a referendum

petition to the Spokane City Clerk. The City Clerk

assigned a number to the petition and the plaintiffs sub-

sequently collected over 8,000 signatures. The City has

indicated it will not honor the referendum petition.

On February 3, 1997, plaintiffs Priorities First and

Margaret Leonard filed Complaint(s) for Declaratory

Relief, indexed as cause numbers 97-2-00645-1 and

97-2-00644-3 respectively. Plaintiffs CLEAN, et al., filed

an amended Complaint for Declaratory and Injunctive

Relief on February 7, 1997. All three files were consoli-

dated by order of the court on February 21, 1997.

Subsequently, Intervenor-Defendants filed the

Motion to Dismiss for Lack of Standing and a Motion to

Dismiss (CR 12 (b)), or in the Alternative a Motion for

Summary Judgment (CR 56). All of the pleadings are

listed above including a Notice of Application and Appli-

cation for Writ of Mandamus filed by all plaintiffs on

April 1, 1997.

ISSUES

1. DOES PLAINTIFF CLEAN (CITIZENS FOR

LEADERS WITH ETHICS AND ACCOUNTABILITY

NOW!) HAVE STANDING TO BRING THIS

ACTION?

Intervenor-Defendants assert CLEAN, a nonprofit

corporation with headquarters in Tacoma, Washington,

does not have standing to bring this action in Spokane

County because there are no state tax funds implicated

54a

and the City is not using tax funds to participate in the

project.

Plaintiffs assert CLEAN has standing because plain-

tiffs Adams and Talbott (1) are members of CLEAN, (2)

are residents and taxpayers of the City of Spokane, and

(3) park their cars on city streets arid use parking meters.

Mr. Eugster’s Declaration filed April 1, 1997, also indi-

cates he asked the Attorney General of the State of Wash-

ington to take action in this matter and the Attorney

General declined to do so. Thereafter, this private tax-

payer action commenced.

Plaintiffs Adams and Talbott are residents and tax-

payers and are members of CLEAN. I am satisfied there is

a sufficient nexus between CLEAN and this case, through

Adams and Talbott, to allow CLEAN to continue as a

party. Intervenor-Defendants’ Motion to Dismiss for Lack

of Standing is denied.

DOES THE CITY OF SPOKANE (CITY) AND THE

SPOKANE PUBLIC DEVELOPMENT AUTHORITY

(PDA) HAVE THE AUTHORITY TO PARTICIPATE IN

THE RIVER PARK SQUARE PARKING GARAGE

PROJECT?

Plaintiffs contend that the City and the PDA do not

have the ability to acquire and operate a garage as the

City is not in compliance with RCW 35.86 and RCW

35.86A.

RCW 35.86.010 provides:

“Cities of the first, second, and third classes are

authorized to . . . In addition a city may own

io eae ec ec aac nan ecanaet

55a

other off-street parking facilities and operate

them in accordance with RCW 35.86A.120.”

The Supreme Court in In the Matter of the Petition of

The City of Auburn, The City of Auburn v. Roy M. Hawkins,

et al., 65 Wn.2d 560, 398 P2d 723 (1965), confirmed at

page 566:

“The statute was intended to enable cities to

prevent or alleviate traffic congestion and thus

to enable streets to serve the purpose for which

they were primarily intended, i.e. to enable the

traveling public to get from one place to

another. In this age of traffic congestion, the

right to furnish off-street parking is a necessary

adjunct to the right to regulate and control traf-

fic. (citations omitted)”

The City has not elected to use the general provisions

of RCW 35.86A nor is there any authority submitted to

this court that they are required to do so. However, RCW

35.86.010 does require that the operation of a garage be in

accordance with RCW 35.86A.120 which outlines a public

bidding process for soliciting a private entity to operate

the facility.

However, the City must comply with RCW 35.86.050

which essentially requires development of a plan, doing

physical and economic surveys, if necessary, preparing a

comprehensive plan and holding public hearings. This

Statute does not require a specific checklist or statutory

process but rather a process whereby the public can have

specific information on the nature of the proposed acqui-

sition; its cost/benefit to the City; and the financing

mechanisms.

56a

Intervenor-Defendants point to the original Down-

town Spokane Development Plan adopted in 1992 (LR 6)

as a starting point. In addition, the City commissioned a

parking study from Walker Consultants (LR 93) and a

financial feasibility study from Coopers & Lybrand (LR

138 and 140) on the proposed project. Public hearings

were held on October 17, 1996, January 13, 1997, and

January 27, 1997, where the plan and economic issues

were extensively discussed. Ordinance No. C31823 was

passed and its findings address what the City is intend-

ing to do with respect to the garage and what the financ-

ing mechanism is.

In the case of Hutchinson v. Port of Benton, 62 Wn.2d

451, 383 P.2d 500 (1963), cited by both sides, the Supreme

Court reviewed an analogous planning process with

respect to a Port District and looked at the substance of

the information provided to taxpayers. As the court

stated at page 457:

“We think the foregoing comprehensive plan,

while not held to be a model of preciseness, is

sufficient to give the taxpayers a fairly detailed

picture of what the port will do with this land if

and when it is acquired, and informs the tax-

payers of the manner and purposes for which

their money will ve spent.”

In reviewing all of the materials in the record I am

satisfied the City complied with RCW 35.86.050 and pro-

vided a plan, necessary studies and an opportunity for

public comment before the adoption of Ordinance

C31823.

As noted in the Statement of Facts, the PDA was

created pursuant to RCW 35.21. The record also reflects

57a

the incorporation of RCW 35.21 provisions in the Spokane

Municipal Code (SMC) (LR 124) and Ordinance C31810

which amended the SMC to allow the PDA to acquire and

operate off-street parking facilities (LR 125). The plain-

tiffs allege the PDA does not have the authority to engage

in these activities.

However, a simple reading of RCW 35.21.730 indi-

cates that cities do have the authority to create public

corporations for many purposes including the execution

of federal grants. In fact, one of the express purposes of

RCW 35.21.730 is to “improve the administration of

authorized federal grants or programs .. . ”. This court

recognizes the plaintiffs’ primary argument goes to the

issue of “public purpose” which will be addressed below:

however, as a mechanism for the administration of fed-

eral grants, the creation of a PDA is proper under RCW

35.21.730 including the authority of the PDA to acquire

and operate off-street parking facilities.

3. DOES THE RIVER PARK SQUARE GARAGE PRO-

JECT FULFILL A PUBLIC PURPOSE?

Plaintiffs argue the expansion of the River Park

Square Parking Garage will primarily benefit the private

developer who should undertake the financing of the

project themselves. Intervenor-Defendants assert the pub-

lic will benefit from the project and further the use of

City funds is limited and contingent.

In December 1996 the Washington State Supreme

Court decided CLEAN, et al. v. The State of Washington, 130

Wn.2d 782. That case does address the standards a

reviewing court should use when asked to evaluate a

58a

claim of “public purpose”. As a general principle, it is not

the role of the court to substitute its judgment for the

judgment of elected officials acting in their legislative

capacity. In this case it is the Mayor and the City Council

_ who listen to the testimony of all interested parties; com-

mission necessary studies and surveys to evaluate a pro-

ject; review funding mechanisms and articulate the public

benefits of legislation. It is the role of the court to insure

that legislative bodies act within the scope of their

authority as defined by the Washington State Constitu-

tion and Revised Code of Washington.

The CLEAN court at page 792 and 793 reiterates the

basic premise

“ ... that public funds cannot be used to benefit

private interests when the public interest is not

primarily being served. (citation omitted). Pub-

lic expenditures must, therefore, further public

purposes. (citation omitted). An expenditure is

for a public purpose when it confers a benefit of

reasonably general character to a significant

part of the public. (citation omitted) Where it is

debatable as to whether or not an expenditure is

for a public purpose, we will defer to the judg-

ment of the legislature.” Anderson v. O’Brien, 84

Wn.2d 64, 70, 524 P.2d 390 (1974).

The CLEAN court also indicated that the fact a pri-

vate interest may benefit from a public project is not fatal

to the project “. . . as long as a public purpose is being

served. The fact that private ends are incidentally

advanced is immaterial to determining whether legisla-

tion furthers a public purpose. United States v. Town of

North Bonneville, 94 Wn.2d 827, 621 P. 2d 127 (1980).” at

page 796.

59a

As in the CLEAN case, the participation of the City in

the River Park Square Parking Garage project was exten-

sively debated. The record is lengthy and highlights com-

peting philosophical views about the purpose of the

government and the extent of its authority. In addition,

there was significant economic information developed

which is subject to more than one interpretation. But as

the CLEAN case indicates at page 796 and 797:

. The disagreement that underlies that

debate, however, is best resolved by the peo-

ple’s elected representatives in the Legislature.

In our judgment, they are in a superior position

to evaluate the extent to which a public purpose

is served by the realization of the perceived

benefits. In deciding these questions, we believe

it was appropriate for the Legislature to con-

sider that the concept of what is public purpose

is not a static concept. Rather, it is a concept that

must necessarily evolve and change to meet

changing public attitudes. See Bonneville 94

Wn.2d at 833. The Legislature with its staff and

committees is the branch of government better

suited to monitor and assess contemporary atti-

tudes than are the courts.”

Ordinance No. C31823 has thirteen separate para-

graphs articulating the reasons why this project would

benefit Spokane and fulfill a public need. Those reasons

include, but are not limited to, parking for civic activities;

ancillary to an to an [sic] efficient street system; reliable

parking to improve public safety and improve the finan-

cial stability of the City. While these “benefits” are vigor-

ously debated by plaintiffs, they are some of the reasons

why the City Council adopted this ordinance after

60a

lengthy debate. It is not for this court to second guess

those reasons.

4. IS THE CITY AND PDA’S PARTICIPATION IN THE

PROJECT A GIFT OR LOAN OF PUBLIC CREDIT?

The Washington Constitution, Article VIII, Section 5,

states: “The credit of the state shall not, in any manner be

given or loaned to, or in aid of, any individual, associa-

tion, company or corporation.” Section 7 of that same

article provides:

“No county, city, town or other municipal corpo-

ration shall hereafter give any money, or prop-

erty, or loan its money, or credit to or in aid of

any individual, association, company or corpo-

ration, except for the necessary support of the

poor and infirm, or become directly or indirectly

the owner of any stock in or bonds of any asso-

ciation, company or corporation.”

It is well recognized that these provisions “prevent

state funds from being used to benefit private interests

where the public interest is not primarily served.” Japan

Line, Ltd. v. McCaffree, 88 Wn.2d 93, 98, 558 P.2d 211

(1977).

The CLEAN court articulates a two pronged test to be

used to evaluate the expenditure of funds. First, are the

funds being expended to carry out a fundamental purpose

of government? If so, the inquiry ends there. In this case

the Intervenor-Defendant argues furnishing of public

parking is a public purpose and I would agree. RCW

35.86A.010 does support that position; however, the issue

6la

is whether provisions for parking are a fundamental pur-

pose of government. It is questionable whether off-street

parking, in this case, serves a fundamental purpose of

government. Therefore, the second prong of the test

should be analyzed.

What is the consideration for the expenditure of pub-

lic funds and the donative intent of the City? Will a gift

occur? In this case the City has obligated parking meter

revenue on a contingent basis to be used only if the PDA

cannot meet the lease payments on the garage. In return

for this the City will receive title to the garage when the

bond term expires. There is no gift to the Developer, the

Foundation or the PDA. This is a negotiated arrangement

whereby the City will ultimately receive the garage. This

arrangement has both consideration and a public purpose

which is sufficient to withstand scrutiny under Article

VIII, Sections 5 and 7, of the Washington State Constitu-

tion.

Plaintiffs also take issue with the City’s participation

in the EDI Grant and Section 108 HUD Development

Loan process. However, here it is clear no City funds are

implicated. The EDI Grant is federal money which the

City applied for to use for this project. If a Section 108

HUD Development Loan is granted, those are federal

funds which will be used by the Developer.

If the Developer were not to repay the Section 108

HUD Development Loan, the federal government would

look to future Community Development Block Grants to

which the City may be entitled to repay the loan. How-

ever, these CDBGs are not City monies, they are federal

entitlements which the City may receive in the future.

62a

Certainly, putting those monies (if they could be

received) at some risk in this process is a factor the City

Council weighed in evaluating the value of the project to

the City; however, it does not rise to the level of an

extension of the City’s credit which would violate the

Washington State Constitution.

5. IS SECTION 14 (EMERGENCY CLAUSE) OF ORDI-

NANCE C31823 VALID?

Plaintiffs strongly take issue with Section 14 of the

Ordinance which is the Emergency Clause. Again the

CLEAN case is instructive on this issue.

44a

- such legislative declaration of emergency

and necessity for the enactment is conclusive

and must be given effect, unless the declaration

on its fact is obviously false; and, in determining

the tru'th or falsity or the legislative declaration,

we willl enter upon no inquiry as to the facts but

must consider the question from what appears

upon the face of the act, aided by the court's

judiciall knowledge. We must give to the action

of the legislature and its declaration of an emer-

gency every favorable presumption.’ ” CLEAN v,

State, at page 807, citing State ex rel. Humiston v.

Myers, 61 Wn.2d 772, 776, 380 P.2d 735 (1963).

In short, undess the declaration of an emergency is “obvi-

ously false and a palpable attempt at dissimulation’,

CLEAN at page 808, the legislative determination will be

given deference.

In this case plaintiffs assert there was no real emer-

gency and tthat Section 14 was “tacked on” to the Ordi-

nance at the last minute to prevent a referendum. Section

63a

14 does articulate reasons for the emergency including

the need to create additional jobs in the Central Business

District and the corresponding need to commit to Nord-

strom and other project tenants soon. The record reflects

that the expansion of the parking garage is a critical

component to the redevelopment and that tenants needed

a commitment quickly in order to meet construction

deadlines. in

The court cannot go behind the City Council’s emer-

gency declaration and reasons therefor unless there is a

showing the reasons are obviously false. The plaintiffs

cannot meet that burden. While they may debate whether

the Developers’ assertions that “time is of the essence”

are valid, the record reflects there is evidence upon which

the City could justifiably declare an emergency.

6. DOES SECTION 85 OF THE CITY CHARTER

REQUIRE A REFERENDUM ON THE CITY’S PAR.

TICIPATION IN THE RIVER PARK SQUARE PARK-

ING GARAGE PROJECT?

Section 85 of the Spokane City Charter requires that a

vote of the people be required for all capital expendi-

tures. Subsection (b) defines capital expenditures as fol-

lows:

“(b) Capital expenditures for capital projects

requiring a vote of the people shall include but

not be limited to coliseums, convention centers,

stadiums, planetariums and new proposed pro-

jects not currently the obligation of the tax-

payers and property owners.”

64a

Plaintiffs assert the lease between the Foundation

and the PDA is a capital expenditure. However, the City

is making a contingent pledge of funds from a dedicated

source, parking meter revenue; the City is not obligating

general taxpayer revenue but rather the user fees col-

lected from the parking meters.

The initiative which forms the basis of Section 85 of

the Spokane City Charter was interpreted by the Wash-

ington State Supreme Court in the case of The City of

Spokane v. The Taxpayers of the City of Spokane, 111 Wn.2d

91, 758 P.2d 480 (1988). The court indicated at page 98:

‘

‘... The City contends the initiative ordinance

applies only to capital expenditures which

required indebtedness of the taxpayers, .. . The

City is correct in its analysis that the project will

not create indebtedness for the taxpayers... .

repayment of the City’s obligations will not

come from general taxes, but rather from speci-

fic sources such as revenues of the solid waste

disposal system . . . We have recognized the

difference between indebtedness which obli-

gates the taxpayers and the property owners

and that which obligates a special fund. Pay-

ments from special revenue funds are not gen-

eral obligations of the City.”

If the obligation is not a general obligation of the City it is

not subject to Section 85.

This court is mindful that the right of in‘tiative and

referendum in the State of Washington has a long history.

As many commentators have stated, these processes

include citizens in the legislative process directly and

complement the work of their elected representatives.

However, it is also recognized that not every legislative

¥ ys eee a hoc ee: bot si, a ts acs

Se ERLE eT eee — S42 y

65a

decision can be put to a vote of the people. Section 85 was

itself created through the initiative process and is limited

to situations which implicate the direct expenditure of

taxpayer funds in non-emergency situations. In this case -

there is not a direct expenditure of taxpayer funds. Fur-

ther, Ordinance No. C31823 does include a valid emer-

gency provision which was discussed above.

Finally, the plaintiffs assert the fact the City Clerk

gave them a number for their referendum petition some-

how validates their position the garage expansion project

is required to be on the ballot. That is simply not the case.

The actions of a city employee do not take priority over

the plain meaning of Section 85 of the City Charter nor

the case law interpreting that section.

7. HAS THE CITY COMPLIED WITH THE FOLLOW-

ING STATUTES:

A. STATE ENVIRONMENTAL POLICY ACT (SEPA)

- RCW 43.21C?

B. GROWTFRMANAGEMENT ACT - RCW 36.70A?

WASHINGTON CLEAN AIR ACT - RCW 70.94?

D. COMPETITIVE BIDDING LAWS — RCW 35.22:

SMC 7.06?

With respect to plaintiffs’ allegations under RCW

43.21C (SEPA) and RCW 70.94 (Washington Clean Air

Act), their action is time barred. As indicated in the

Statement of Facts, the Developers submitted a SEPA

checklist and the City issued a Mitigated Determination

of Non-Significance on July 2, 1996. No appeal was taken

from this decision. There is no indication the physical

eT eT Te EEE See

66a

characteristics of the garage expansion project are mate-

rially different today.

The proposed vacation of a portion of Post Street is

exempt from EIS requirements under WAC 197-11-800

(2)(h).

Currently the City does not have a Growth Manage-

ment Plan in place so there is no GMA plan to comply

with. This project has been addressed within the context

of the current Downtown Spokane Development Plan.

Finally, the proposed project does not implicate RCW

35.22 nor SMC 7.06. The City is not entering into a con-

tract to perform a public work or purchase goods either

of which would require competitive bidding. The City is

not contracting to construct the garage expansion. The

City is not purchasing the garage now or later. Rather, in

return for the City’s assistance in the Section 108 HUD

Development Loan process and a contingent pledge of

parking meter revenues in the event the PDA cannot

meet the operational costs of the garage and the ground

lease; the City will take title to the garage free and clear

when the bond obligations are retired. The PDA will put

the operation of the garage out to bid as required by

RCW 35.86A.120 and Internal Revenue Ruling 63-20.

SUMMARY

This issue is an emotional one for both sides. The

quality of the legal work amply demonstrates how dedi-

cated all parties are to their vision of Spokane and their

view of the role of government in our community. The

City Council had the opportunity to hear and view the

67a

many diverse opinions and concerns raised by citizens

both for and against the project. That is as it should be,

for it is in the legislative arena, where there is the open

give and take of ideas, that our elected representatives

can thoughtfully consider all positions and do what they

believe to be in the best interest of the citizens of the City

of Spokane. Whatever disagreements the plaintiffs may

have with the decision, it is the hope of this court that

they recognize the process is fair, open, and democratic

and that they have had the opportunity to express their

views and provide relevant information to the City Coun-

cil.

Intervenor-Defendants’ Motion for Summary Judg-

ment is granted and the plaintiffs’ Application for Writ of

Mandamus is denied.

DATED this 11th day of April, 1997.

/s/ Kathleen M. O’Connor

KATHLEEN M. O’CONNOR

Superior Court Judge

68a

APPENDIX D

Cause No. 65258-9

SUPREME COURT

OF THE STATE OF WASHINGTON

CLEAN (Citizens for Leaders with Ethics and

accountability Now!), a Washington non-profit

corporation; SPOKANE RESEARCH & DEFENSE

FUND, a Washington non-profit corporation;

COALITION FOR A NEW SPOKANE, a Washington

non-profit corporation; PRIORITIES FIRST, a

Washington political committee; RICHARD ADAMS,

an individual; JOHN J. TALBOTT, an individual; and,

MARGARET LEONARD, an individual,

Appellants,

vs.

CITY OF SPOKANE, a Washington first class charter

city; SPOKANE PUBLIC DEVELOPMENT

AUTHORITY, a City of Spokane public corporation,

Respondents,

and

CITIZENS REALTY COMPANY, a Washington

corporation; and LINCOLN INVESTMENT

COMPANY, a Washington corporation,

Intervenors-Respondents.

MOTION FOR RECONSIDERATION

OF APPELLANTS

69a

Stephen K. Eugster, Shawn Timothy Newman,

WSBA #2003 WSBA #14193

Eucster Haske, P.S.C. Attorney for Certain

Attorneys for All Appellants

Appellants 1212 Jefferson St.,

100 Minnesota Building Suite 201

423 West First Ave. Olympia, Washington

Spokane, Washington 98501

99204-0206 (360) 357-743 [sic]

(509) 624-5566

I. Ipentiry of Movinc Parties

Appellants ask for the relief designated in Part 2.

Il. Statement or Rewer

Appellants seek the Court’s reconsideration of its

decision in this matter regarding the validity of the emer-

gency language in City of Spokane Ordinance C-31823

adopted on January 27, 1997.

III. Facts Revtevant to Motion

Prior to the vote on Ordinance C-31823, the Spokane

City Council passed a motion to tack emergency clause

language onto the Ordinance. In conjunction with this,

the Developers (Intervenors-Respondents) submitted a

letter outlining their emergency. Stipulation, 150.

On January 30, 1997, Priorities First and others pre-

sented a Referendum Petition to the City Clerk. Stipula-

tion, 149. After discussions with the City Clerk and City

Attorney, a referendum petition number was assigned - it

70a

became Referendum Petition 97-1. Stipulation, 151. There-

after, the proponents secured the signatures of over 8,000

electors of the City of Spokane.

Referendum Petition 97-7,:together with the signa-

tures was presented to the City Clerk on February 25,

1997 — within the necessary 30 day period for a referen-

dum petition. Stipulation, 153 and 154. The number of

valid signatures met the requirements of City Charter

§ 83. Only 4,300 or so were necessary. Id. See also, Election

Statistics for City of Spokane November 1995 — Spokane

County Auditor. The City refused to comply with the

Referendum Petition.

The Court has held that the emergency language in

Ordinance C-31823 was valid and that Appellants did not

have a right of referendum with respect of the Ordinance.

IV. Grounps For Revert AND ARGUMENT

Appellants respectfully request that the Court recon-

sider its decision regarding the validity of the emergency

language in Ordinance C-31823.

The decision effectively prevents Appellants from the

exercise of their constitutionally protected right of refer-

endum under the Spokane City Charter.

The right of referendum is political speech which

occupies the core of the protection afforded by the First

Amendment and the Due Process Clause of the Four-

teenth Amendment. See, e.g., McIntyre v. Ohio Elections

Commission, 514 U.S. 334, 346 (1995); Meyer v. Grant, 486

U.S. 414, 421 (1988); Bank of Boston v. Bellotti, 435 U.S. 765,

776-777 (1978).

7la

The First Amendment provides that Congress

shall make no law . . . abridging the freedom of

speech, or of the press; or the right of people

peaceably to assemble, and to petition the Gov-

ernment for a redress of grievances.

The Fourteenth Amendment makes that prohibition

applicable to the State of Washington. As the Supreme

Court explained in Thornhill v. Alabama, 310 U.S. 88, 95

(1940),

[t]he freedom of speech and of the press, which

are secured by the First Amendment against

abridgment by the United States, are among the

fundamental personal rights and liberties which

are secured to all persons by the Fourteenth

Amendment against abridgment by a State.

The First Amendment “was fashioned to assure

unfettered interchange of ideas for the bringing about of

political and social changes desired by the people.” Roth

v. United States, 354 U.S. 476, 484 (1957). As the Supreme

Court has said this reflects our “profound national com-

mitment to the principle that debate on public issues

should be uninhibited, robust, and wide open.” New York

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). See also,

Buckley v. Valeo, 424 U.S. 1, 14-15 (1976).

Appellants seek, by referendum, to achieve political

change in Spokane; their right freely to engage in the

referendum and in discussions concerning the need for

that change is guarded by the First Amendment and the

Fourteenth Amendment.

In Meyer v. Grant the Supreme Court said that “both

the expression of a desire for political change and a

72a

discussion of the merits of the proposed change” are

“core political speech.” Meyer v. Grant, supra, 486 U.S. at

421.

Where a challenged practice, here preventing a refer-

endum on an ordinance by calling it an emergency,

imposes a severe burden on political expression, courts

must review the practice with strict scrutiny. Cf. Burdick v.

Takushi, 504 U.S. 428, 434 (1992). The instant case

“involves a limitation on political expression subject to

exacting scrutiny.” Meyer v. Grant, 486 U.S. 414, 420

(1988).

The Supreme Court has said “[w]hen a law burdens

core political speech, we apply ‘exacting scrutiny,’ and we

uphold the restriction only if it is narrowly tailored to

serve an overriding state interest.” First Nat’l Bank of

Boston v. Bellotti, 435 U.S. 765, 786 (1978).

Here, the decision of the Court (and the decision of

the City of Spokane) burdens Appellants’ right of referen-

dum, Appellants’ right of core political speech. McIntyre

v. Ohio Elections Commission, 514 U.S. 334, 346 (1995).

When subjected to the exacting scrutiny required by

the First and Fourteenth Amendments to the United

States Constitution the decision of the Court falters.

Decision making regarding the validity of emergency

language must meet the exacting scrutiny test. Here, the

test is not met because the decision of the Court imposes

no standards. It simply gives the legislative body arbi-

trary authority to say what is, or is not, an emergency

and thus prevents Appellants from engaging in their

constitutionally protected rights.

73a

Appellants respectfully request that the Court recon-

sider its decision.

December 1, 1997.

Respectfully submitted,

Eucster Haske.t, P.S.C.

/s/ Stephen K. Eugster

Stephen K. Eugster, WSBA #2003

Attorneys for Appellants — All

/s/ S. Newman by SKE

Shawn Timothy Newman

WSBA#14193

Attorney for Appellants - CLEAN,

Spokane Research & Defense Fund,

and Coalition for a New Spokane

74a

APPENDIX E

ORDINANCE NO. C31823

AN ORDINANCE OF THE CITY COUNCIL OF

THE CITY OF SPOKANE RELATING TO OFF

STREET PARKING FACILITIES; PROVIDING

FOR THE DEVELOPMENT AND ACCEP-

TANCE OF FULL LEGAL AND UNENCUM-

BERED TITLE TO THE RIVER PARK SQUARE

PARKING GARAGE LOCATED ADJACENT

TO CIVIC CENTER FACILITIES; CREATING

THE PARKING METER REVENUE FUND;

CONTINGENTLY PLEDGING MONEY IN

SAID FUND TO MAKE CERTAIN PAYMENTS

TO THE CITY’S PUBLIC DEVELOPMENT

AUTHORITY; DECLARING AN URGENCY

AND EMERGENCY AND PROVIDING FOR

OTHER MATTERS PROPERLY RELATING

THERETO

OFF-STREET PARKING FACILITIES

THE CITY OF SPOKANE DOES ORDAIN:

WHEREAS, the City of Spokane, Washington (the

“City”), is a first-class charter city duly organized and

existing under and by virtue of the Constitution and the

laws of the State of Washington and the Charter of the

City;

WHEREAS, the Council of the City (the “Council”)

recognizes the public interest in sustaining the Spokane

Downtown Central Business District (the “CBD”) as

described in the Downtown Spokane Development Plan

prepared November 20, 1990, as the region’s economic,

cultural and civic activity center;

ees amiainciie Incnaitchasaesmeaesie ieee

75a

WHEREAS, the City has committed public finances

and resources to the CBD by constructing, maintaining

and operating numerous civic center facilities such as: (i)

the Spokane City Hall, (ii) the main branch of the

Spokane Public Library, (iii) Riverfront Park, (iv) the

Spokane Agricultural Trade Center, (v) the Spokane Con-

vention Center and Opera House and (vi) other infra-

structure and service improvements in or adjacent to the

CBD, which improves the character, role and function of

the CBD for Spokane citizens, employers, employees and

visitors;

WHEREAS, the provision of convenient, accessible,

and attractive off-street public parking in the CBD will

provide a benefit to the civic center facilities, prevent and

alleviate traffic congestion, improve vehicular access and

circulation, directly and indirectly improve public safety

and promote the use of municipal streets by facilitating

the movement of vehicles in the CBD, all of which serves

a public purpose;

WHEREAS, the most efficient use of the CBD street

system requires the availability of conveniently located

off-street parking for vehicles where large numbers of

persons congregate;

WHEREAS, the inability to temporarily park vehicles

discourages the public from: (i) travel to and within the

City, (ii) congregating at public events and (iii) using civic

center facilities;

WHEREAS, off-street public parking is a necessary

extension and ancillary to an efficient street system in the

CBD;

76a

WHEREAS, the City is authorized by chapter 35.86

RCW to provide off-street parking facilities as a public

purpose;

WHEREAS, on June 12, 1995, the Council adopted its

Resolution 95-74, which authorized and directed the City

Manager to proceed with the development of a proposal

for the acquisition and development of a public parking

facility, recognizing the public benefit that would accrue

as a result of the City acquiring off-street parking facili-

ties;

WHEREAS, on June 10, 1996, the Council adopted its

Resolution 96-77, which further directed City staff to

represent the City in meetings with Lincoln Investment

Company of Spokane and Citizens Realty Company (col-

lectively, the “Developer”), as owners of the River Park

Square Parking Garage and to prepare a report for the

Council on the economic feasibility and legal authority of

the City acquiring said parking garage;

WHEREAS, the Council authorized the City Manager

to commission into a financial feasibility study and a

condition assessment with Walker Parking Consultants /

Engineers (the “Walker Report”), with the City receiving

a report from Walker plus an addendum on October 16,

1996, concluding that additional off-street public parking

is required to serve the Project and civic center facilities;

WHEREAS, the Developer owns certain real property

situated in the City which is proposed to be redeveloped

into a two block mixed-use project containing, in addition

to public parking facilities, approximately 300,000 square

feet of gross area available for lease for new retail stores,

restaurants and entertainment uses (the “Project”), which

PTR Sasi

77a

will improve the CBD by promoting economic activity,

increasing public safety and revenue to the City;

WHEREAS, the acquisition of off-street parking facil-

ities will provide convenient public parking for users and

visitors to City Hall, Riverfront Park, and the main

branch of the Spokane Public Library as well as other

municipal and governmental offices and civic center facil-

ities, some of which are connected to the existing off-

street parking facilities by a pedestrian skywalk system;

WHEREAS, the Developer intends to design and con-

struct off-street parking facilities to consist of an existing

parking garage, plus an additional underground and

above ground parking structure connected to the existing

parking garage, with 1,304 public parking spaces to serve

the civic facilities and the parking needs of the CBD (the

“Facility”);

WHEREAS, the provision of safe and reliable public

parking will increase downtown activity and improve

public safety;

WHEREAS, the Spokane Downtown Foundation (the

“Foundation”) has been formed as a nonprofit corpora-

tion of the State of Washington which anticipates issuing

tax-exempt bonds on behalf of the City payable over 21

years from the revenues from the Facility;

WHEREAS, the Foundation will enter into a ground

lease (the “Ground Lease”) with the Developer for the

lease of the land upon which the Facility will be situated;

WHEREAS, the Public Development Authority (the

“Authority”), a duly created public corporation pursuant

78a

to RCW 35.21.730 through 35.21.757, inclusive, is autho-

rized as a public purpose to own and acquire property

and property rights by purchase, gift, devise, or lease for

the construction, maintenance, or operation of off street

parking facilities, including the acquisition of the Facility

in order to improve governmental efficiency and services,

the general living conditions in the City, which neces-

sarily includes the City transportation system;

WHEREAS, development of the Facility will promote

the growth and development of retail businesses and

office uses in the CBD which will increase payrolls, busi-

ness productivity, and property values thereby benefiting

the public health, safety and welfare;

WHEREAS, the City has been advised by the Devel-

oper that the Foundation will acquire the Facility from

the Developer to provide off-street public parking;

WHEREAS, the City has been advised by the Foun-

dation that the Foundation anticipates leasing the Facility

and assigning the Ground Lease to the Authority;

WHEREAS, on October 17, 1996, the Council held a

public hearing on the Facility pursuant to the require-

ments of RCW 35.86.050;

WHEREAS, the City has been advised that the

Authority will publicly bid the operation of the Facility;

WHEREAS, after the payment of the principal of and

interest on bonds issued by the Foundation (the

“Bonds”), full legal and unencumbered title to the Facil-

ity will pass to the City without cost;

WHEREAS, the City has determined it is in the best

interests of the City and its inhabitants, ratepayers and

79a

taxpayers that the Facility be maintained and operated in

a first-class condition;

WHEREAS, RCW 35.21.730(1) authorizes the City to

transfers [sic] its funds to the Authority with or without

consideration;

WHEREAS, the Council is desirous of creating a

parking meter revenue fund, into which parking meter

revenue will be deposited and contingently pledged to

pay Operating Expenses of the Facility and Ground Lease

Payments in the event that Facility revenues are insuffi-

cient, thereby ensuring the Facility is maintained in a

first-class condition;

WHEREAS, chapter 35.59 RCW authorizes the City to

combine two or more facilities in a single multi-purpose

community center in order to more effectively and eco-

nomically provide municipal services. City Hall, Riv-

erfront Park, and the main branch of the Spokane Public

Library, constitute the multi-purpose community center

system for the downtown area;

WHEREAS, the acquisition, development and opera-

tion of the Facility will reduce costs, avoid duplication of

off-street parking facilities that serve the existing down-

town system and make off-street parking more conve-

nient and useful to the residents of Spokane;

WHEREAS, chapter 35.71 RCW, authorizes the Coun-

cil to establish pedestrian malls and related facilities in

rights-of-way, including off-street parking facilities in the

vicinity of a pedestrian mall when the right-of-way is

proposed to be vacated;

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80a

WHEREAS, the Council, upon receipt of a petition to

vacate a portion of Post Street from Spokane Falls Boule-

vard to Main Avenue, adopted Resolution 95-75 declaring

the intent of the Council to proceed with the street vaca-

tion as set forth in Ordinance C31403 which will facilitate

the development of a pedestrian mall area for the River-

park Square project as set forth above:

WHEREAS, the Developer, on May 7, 1996, submitted

to the City an Environmental Checklist (pursuant to

SEPA), including a Traffic Impact Analysis-Riverpark

Square Expansion (including Level of Service Work-

sheets) and an Air Quality Analysis plus Study Update

(“Environmental Reports”) with the City through its

responsible official issued a Mitigated Declaration of

Nonsignificance;

WHEREAS, the CBD has experienced a serious eco-

nomic decline which affects the built environment and

climate for civic facilities with remaining business opera-

tors facing reduced employment, all adversely affecting

the citizens of the City and causing deterioration of the

public and private investment in improvements and ser-

vices in the CBD, including the downtown multi-purpose

community center system comprising of City Hall, Riv-

erfront Park and the main branch of the Spokane Public

Library;

WHEREAS, the Project is expected to contain 300,000

Square feet of new retail, entertainment and other busi-

ness uses, preserving and creating approximately 2,800

jobs in Spokane;

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WHEREAS, the Project will improve public safety in

the CBD, including the financial Stability of the City, by

adding an estimated $3 million in tax revenues per year;

WHEREAS, the Walker Report, the Environmental

Reports, other reports, analyses and testimony indicated

that the Facility will aid downtown vehicle and pedes-

trian circulation by efficiently removing vehicles from the

street system, promoting improved vehicle movements

and providing for the parking demand created by the

downtown multi-purpose community center system;

including City Hall, Riverfront Park and the main branch

of the Spokane Public Library;

WHEREAS, the Council has received reports and tes-

timony from individuals and experts that support the

acquisition of the Facility for public purposes, reviewed

plans for development of the Project, as well as listened

to and considered public testimony and received reports

concerning the parking needs in the CBD, projected Facil-

ity revenue, benefits to the City and its citizens and the

transfer to the City of the Facility and related property

interests;

WHEREAS, the City will acquire full legal and unen-

cumbered title to the Facility without cost or other con-

sideration upon payment of the Bonds;

WHEREAS, the City has received a letter from the

Developer containing Project information and a deadline

indicating that time is of the essence concerning the Pro-

ject and the Facility, such that immediate assurances must

be given by the City in order for the Developer to pro-

ceed with the Project, including the Facility, thereby serv-

ing a public purpose;

82a

WHEREAS, the Developer has stated that for the

Project to proceed commitments must immediately be

received from tenants and lenders so that preparations

for demolition and construction can commence in order

to timely complete the Project as represented to Devel-

oper’s lenders and other project participants, including

the City, the Foundation, the Authority and the major

Project tenants;

WHEREAS, without a commitment from the City to

immediately contingently pledge its parking meter reve-

nue to Operating Expenses and Ground Lease Payments,

tenants and lenders are not assured that there will be

adequate public parking to serve the Project and civic

facilities, thus placing the Project is jeopardy; and

WHEREAS, the City finds, based on studies, docu-

ments and public testimony presented to the Council,

that the Project will: (i) provide new jobs to the Spokane

area, (ii) stimulate the economy, (iii) provide cultural

opportunities and (iv) improve the quality of life through

a reinvestment in the CBD which will generate additional

tax revenue and that the failure of the Project to proceed

will cause the City to suffer economic decline;

NOW, THEREFORE, IT IS FURTHER ORDAINED, as

follows:

Section 1. Definitions.

All words and terms as used in this Ordinance and

the preambles hereto shall have the following meanings

unless the context or use clearly indicates another or

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83a

different meaning or intent. Words of the masculine gen-

der shall be deemed and construed to include correlative

words of the feminine and neuter genders. Words impart-

ing the singular number shall include the plural number

and vice versa unless the context shall otherwise indicate.

“Authority” shall mean the Spokane Public Develop-

ment Authority duly created by Ordinance No. C-2924]

of the City of Spokane, adopted by the Council on

November 7, 1988.

“Bonds” shall mean the bonds issued by the Founda-

tion to finance the cost of acquiring the Facility.

“City” shall mean City of Spokane, Washington.

“Council” shall mean the City Council, as the same

may be duly constituted from time to time.

“Developer” shall mean, collectively, Lincoln Invest-

ment Company of Spokane and Citizens Realty Company.

“Facility” shall mean the seven-level above ground

and one-level below ground off-street parking facility in

the vicinity of Spokane Falls Boulevard and Post Street.

“Foundation” shall mean the Spokane Downtown

Foundation.

“Ground Lease” shall mean the Ground Lease

between the Developer and the Foundation regarding the

real property underlying the Facility.

“Ground Lease Account” shall mean the account by

that name created by the Authority within its Revenue

Fund from which the Authority shall make Ground Lease

Payments.

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“Ground Lease Payments” shall mean all payments

the Foundation is required to make under the Ground

Lease.

“Operating and Maintenance Account” shall mean

the account by that name created by the Authority within

its Revenue Fund from which the Authority shall pay

Operating Expenses.

“Operating Expenses” shall mean all of the Author-

ity’s expenses incurred with respect to operating and

maintaining the Facility. The term “Operating Expenses”

shall not include any extraordinary, nonrecurring

expenses, any costs or expenses for new construction,

interest, amortization, any allowance for depreciation or

any taxes or payments in lieu of taxes upon the properties

or earnings of the Facility payable to the City.

“Ordinance” shall mean this Ordinance No. C31823.

“Parking Meter Revenue Fund” shall mean a special

fund of the City created by Section 4 of this Ordinance.

“Parking Meter Revenues” shall mean all income,

receipts and revenues, except revenue derived from the

enforcement of City parking laws, received by the City

through its ownership and operation of its system of

parking meters.

“Parking Revenues” shall mean all income, receipts

and revenues received by the Authority through the own-

ership and operation of the Facility, including invest-

ments earnings on money in the Revenue Fund.

“Project” shall mean, in addition to the Facility, an

approximately 300,000 square fee of gross feasible area

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85a

for new retail stores, restaurants and entertainment uses

in the project area.

“Revenue Fund” shall mean the Authority’s Parking

Facility Revenue Fund, which includes the Ground Lease

Account and the Operating and Maintenance Ac

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