# Petition for Writ of Certiorari — CLEAN v. City of Spokane > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1505%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 525 U.S. 812 ## Text ® 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 iv 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 Vv 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 vi 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. eu Se PAL ore REN Cire RRA MM ey Line SR AL Rt NET ANY FD ADA Sr GaN RC emai ah A oP ess 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. 10 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 11 (“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 12 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 13 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 14 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 alin eabi cine Rie js oP pa tae RS ees te SEL IWLRUB aA Cod cree ihe ae a 7 15 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. 16 (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 17 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). 18 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). z F : ‘ 4 4 ; = & 2 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 19 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. 20 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 21 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 la 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. 2a 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 3a 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 4a 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. 5a 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 6a 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 7a 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. 8a 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. 9a 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 257, 23 P.2d 1 (emphasis added). ” 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, v. 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, v. 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 — V. 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: \f 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. hN 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 pu [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1505%3A1. Public record. Not legal advice.