City of Longview, Mun. Corp. v. Mike Wallin, an Individual, Bancams.Com, an Unknown Entity, Wa Campaign for Liberty, Non-Profit Corp.

• Decision Date: 30 April 2013
• Docket Number: No. 43385–1–II.,43385–1–II.
• Citation: 174 Wash.App. 763,301 P.3d 45
• Court: Washington Court of Appeals
• Parties: CITY OF LONGVIEW, a Washington municipal corporation, Respondent/Cross Appellant, v. Mike WALLIN, an individual, bancams.com, an unknown entity, WA Campaign for Liberty, a Washington non-profit corporation; voterswantmorechoices.com, an unknown entity, Cowlitz County, a municipal corporation and Kristina Swanson, Cowlitz County Auditor, Appellants/Cross Respondents.

174 Wash.App. 763

301 P.3d 45

CITY OF LONGVIEW, a Washington municipal corporation, Respondent/Cross Appellant,

v.Mike WALLIN, an individual, bancams.com, an unknown entity, WA Campaign for Liberty, a Washington non-profit corporation; voterswantmorechoices.com, an unknown entity, Cowlitz County, a municipal corporation and Kristina Swanson, Cowlitz County Auditor, Appellants/Cross Respondents.

No. 43385–1–II.

Court of Appeals of Washington,

Division 2.

April 30, 2013.

Douglas Emry Jensen, Cowlitz Co. Prosecuting Atty–Civil Div., Kelso, WA, for Respondent(s).

Richard M. Stephens, W. Forrest Fischer, Groen Stephens & Klinge LLP, Bellevue, WA, for Appellant/Cross–Respondent.

P. Stephen Dijulio, Roger A. Pearce, Foster Pepper PLLC, Seattle, WA, Stephen Craig Shuman, Attorney at Law, Longview, WA, James J. McNamara, City of Longview, Longview, WA, for Respondent/Cross–Appellant.

VAN DEREN, J.

[174 Wash.App. 768]¶ 1 Mike Wallin sponsored an initiative proposing restrictions on the use of automated traffic safety cameras in the city of Longview. Before the Cowlitz County auditor determined that there were sufficient signatures to place the initiative on the ballot, Longview filed a declaratory judgment action asking the trial court to rule that the initiative was beyond the scope of local initiative power and requesting an order enjoining placement of the initiative on the ballot. In response, Wallin filed a special motion to strike Longview's declaratory judgment action under RCW 4.24.525, the Washington Act Limiting Strategic Lawsuits Against Public Participation (“SLAPP”). Laws of 2010, ch. 118, § 4 (included in the notes following RCW 4.24.525). The trial court denied Wallin's motion and granted Longview's declaratory judgment request except for the portion of the initiative that mandated an advisory vote before the city council could adopt an ordinance authorizing the use of automated traffic safety cameras. Longview moved for reconsideration and, in response, Wallin filed another special motion to strike Longview's motion for reconsideration under RCW 4.24.525. The trial court denied Longview's motion for reconsideration and Wallin's special motion to strike.

¶ 2 Wallin argues that (1) Longview lacked a justiciable controversy when it filed for declaratory judgment and injunctive relief because it could not prove an injury in fact and because the matter was not ripe for review; (2) the trial court erred in concluding that the • initiative was beyond the scope of local initiative power and, thus, the trial court abused its discretion in issuing an injunction prohibiting the initiative from being included on the ballot; (3) the trial court erred in denying both of his special motions to strike; and (4) Longview's preelection challenge to the initiative infringed on his constitutional rights to freedom of speech and to petition the government. Longview cross appeals, contending that the trial court erred in concluding that the advisory vote was within the scope of local initiative power and permitted it to be placed on the ballot.

¶ 3 While the appeal in this case was pending, our Supreme Court held in Mukilteo Citizens for Simple Government v. City of Mukilteo, 174 Wash.2d 41, 52, 272 P.3d 227 (2012) that initiatives concerning the use of automated traffic safety cameras are beyond the scope of local initiative power. Accordingly, we affirm the trial court's ruling that the initiative was beyond the scope of local initiative power but reverse its ruling that the advisory vote portion was within the scope of local initiative power. We also affirm the trial court's denial of Wallin's special motions to strike under RCW 4.24.525 and reject his justiciability claims and his argument that Longview violated his constitutional rights to freedom of speech and to petition the government.

FACTS

¶ 4 Longview is a noncharter code city that operates under Title 35A RCW; Longview Municipal Code (LMC) 1.12.010. RCW 35A.11.080 to .100 allows noncharter code cities to provide for the exercise of initiative and referendum in their cities, and Longview has authorized its citizensto exercise the powers of initiative and referendum in chapter 1.35 LMC.¹

¶ 5 The Washington State Legislature has authorized local governments to enact ordinances providing for the use of automated traffic safety cameras. Former RCW 46.63.170 (2009).² On April 8, 2010, the Longview City Council enacted Ordinance No. 3130, which added a new chapter to the LMC, Chapter 11.04, authorizing the use of automated traffic safety cameras to detect stoplight infractions and school speed zone violations.³ In doing so, the city council adopted the standards in former RCW 46.63.170 governing the use of automated traffic safety cameras. In August 2010, Longview contracted with American Traffic Solutions, Inc. (ATS) to install and monitor automated traffic safety cameras at several intersections in Longview.

¶ 6 In January 2011, Mike Wallin and other petition sponsors notified Longview that they would begin collecting signatures for an initiative (Longview Initiative No. 1) that would (1) prohibit automated traffic safety cameras unless two-thirds of the city council and voters approved, (2) limit fines for traffic violations caught by the cameras, (3) repeal the city ordinance allowing the cameras, and (4) mandate an advisory vote for any ordinance authorizing the use of automated traffic safety cameras.⁴ The number of valid signatures required to place the initiative on the ballot was 2,830, 15 percent of the registered voters in the city. RCW 35A.11.100. On May 23, the petition sponsors submitted petitions to the Longview City Clerk with 3,628 voter signatures.

¶ 7 On May 25, the city council concluded that the proposed initiative was invalid becauseit exceeded the scope of local initiative power under LMC 1.35.020(10), which provides:

Ordinances, where the power of the city to legislate on the subject matter is derived from a grant of power by the state legislature to the city council or other corporate authorities as opposed to a grant of such power to the city as a corporate entity, shall not be subject to initiative or referendum.

Clerk's Papers (CP) at 67. Thus, because Longview's power to legislate on the subject was derived from a grant of power by the state legislature directly to the city council under former RCW 46.63.170(1), the city council adopted Resolution No. 1991, which stated that the ordinance was not the proper subject of an initiative and directed that no action be taken to include the initiative on the ballot.

¶ 8 The city clerk consequently did not transfer the petitions to the county auditor for signature verification within three days of their submission as required by RCW 35.21.005(4)⁵; thus, the petition sponsors filed a petition to compel the city clerk to submit the petitions to the county auditor for signature verification. The petitioners and Longview ultimately agreed to an order that required the city clerk to submit the signatures to the county auditor for verification. But on June 7, before the signatures had been verified, Longview filed for declaratory relief, stating that the initiative was beyond the scope of local initiative power and asking for an order enjoining the petitioners (and consequently, the auditor) from including the initiative on the ballot in August or November 2011.

¶ 9 Without filing an answer to the declaratory judgment action, Wallin filed a special motion to strike Longview's claims under RCW 4.24.525(4). ⁶ He argued that Longview's declaratory action dealt with conduct involving public participation and petition and that Longview failed to show that it would likely prevail in its action because (1) Longview lacked standing because it could not establish an injury in fact, (2) Longview's claim was not ripe because it filed its declaratory judgment and injunctive relief action while the petition sponsors were still gathering signatures, and (3) Longview's action for preelection review of the initiative violated his constitutional rights to free speech and to petition the government.⁷ He also requested statutory costs and penalties.

¶ 10 On June 23, 2011, the county auditor determined that the initiative sponsors had gathered only 1,940 valid signatures and, thus, gave the petition sponsors 10 additional days to gather the sufficient number of valid signatures as required under RCW 35.17.280.⁸ Longview moved to dismiss its declaratory judgment action without prejudiceunder CR 41(a)(1)(B)⁹ and to shorten time so the motion to dismiss would be heard on the same date as the action for declaratory judgment and injunctive relief and the special motion to strike were scheduled to be heard.

¶ 11 At the July 11 motion hearing, the trial court denied Longview's motion to voluntarily dismiss because it characterized Wallin's special motion to strike as a counterclaim and, thus, the action could not be dismissed under CR 41(a)(3).¹⁰ But the trial court also denied Wallin's special motion under RCW 4.24.525 to strike Longview's declaratory judgment action and his request for fees. It concluded that although Longview's claims for declaratory judgment and injunctive relief were based on actions involving public participation and petition under RCW 4.24.525, Longview met its burden to show that it would likely prevail on the merits because the legislature designated the subject matter of the initiative to the legislative authority of the city council and not to Longview generally. See LMC 1.35.020; see also Mukilteo Citizens, 174 Wash.2d at 51, 272 P.3d 227 (“ ‘An initiative is beyond the scope of the initiative power if the initiative involves powers granted by the legislature to the governing body of a city, rather than the city itself.’ ” (quoting City of Sequim v. Malkasian, 157 Wash.2d 251, 261, 138 P.3d 943 (2006))). Wallin filed a motion for reconsideration of the trial court's denial of his special...