Eyman v. McGehee, 67908–2–I.

• Decision Date: 19 February 2013
• Docket Number: No. 67908–2–I.,67908–2–I.
• Citation: 294 P.3d 847
• Parties: Tim EYMAN, Appellant/Cross Respondent, v. Michelle McGEHEE, Respondent/Cross Appellant.
• Court: Washington Court of Appeals

294 P.3d 847

Tim EYMAN, Appellant/Cross Respondent,

v.Michelle McGEHEE, Respondent/Cross Appellant.

No. 67908–2–I.

Court of Appeals of Washington, Division 1.

Feb. 19, 2013.

Daniel Frederick Quick, Daniel Frederick Quick PLLC, Seattle, WA, for Appellant/Cross–Respondent.

James Edward Haney, Kristin Nicole Eick, Ogden Murphy Wallace PLLC, Seattle, WA, for Respondent/Cross–Appellant.

COX, J.

¶ 1 A city clerk has a mandatory duty under the statutes governing the filing of initiative petitions to transmit such petitions to the county auditor for determination of sufficiency.¹ But, a court may review the substance of an initiative petition to determine whether it is valid.² Such a determination is “exclusively a judicial function.” ³ Despite a city clerk's mandatory duty, however, a court may decline to grant a writ of mandamus if it determines that ordering compliance is a useless act because an initiative is invalid.⁴

¶ 2 Here, the city clerk failed to transmit to the county auditor a filed initiative petition, as the governing statutes mandate, without first obtaining a judicial determination of the validity of the initiative. Upon the commencement of this action by a sponsor of the initiative, the superior court properly determined that the initiative is invalid and mandamus would not lie. We affirm.

¶ 3 The material facts are not in dispute. In September 2010, the City of Redmond adopted an ordinance establishing a system of automated traffic safety cameras, consistent with RCW 46.63.170. This statute authorizes municipalities to use automatic traffic safety cameras and to issue consequent notices of traffic infractions.

¶ 4 In March 2011, the Redmond mayor and city council received a letter notifying them that a group of town citizens were collecting signatures to put an initiative on the ballot. The initiative was designed to challenge the automated traffic safety camera system.

¶ 5 On September 6, 2011, this court decided American Traffic Solutions, Inc. v. City of Bellingham.⁵ That case held that an initiative regarding automated traffic cameras was invalid and exceeded the scope of the initiative power.⁶

¶ 6 On September 14, the initiative sponsors turned in 6,050 voter signatures in support of the Redmond initiative, Proposition 1. They later contacted the City to ask when the proposed initiative would be transmitted to the county auditor. They learned that the city clerk had decided, presumably on the advice of counsel, not to transmit the petition to the county auditor. ⁷ This action against Michelle McGehee, in her capacity as the Redmond clerk, followed. A proponent of the initiative sought a writ of mandamus requiring McGehee to transmit the initiative to the county auditor.

¶ 7 After a hearing on October 11, 2011 on an order to show cause, the superior court entered an order denying the request for relief. The court gave an oral decision and entered an order that mandamus would not lie.

¶ 8 This appeal by a proponent of the initiative and cross-appeal by the city clerk followed.

MOOTNESS

¶ 9 A threshold issue that neither party addresses is whether this case is now moot. Because the November 2011 election has passed, effective relief may no longer be provided by the courts. But the questions here deal with issues that are of continuing and substantial public interest. Accordingly, we reach the merits.

¶ 10 “Generally, where the substantial question in a case is moot, an appeal will be dismissed. However, when matters of continuing and substantial public interest remain, a court may exercise its discretion and decide an appeal.” ⁸

¶ 11 Here, one question is the extent of a county clerk's duty to transmit an initiative petition to the county auditor. Another is whether a clerk may usurp the exclusive judicial function of determining whether an initiative is valid. These are both issues of substantial and continuing public interest. As in Philadelphia II v. Gregoire,⁹ which dealt with the duty of the attorney general to certify a statewide initiative, these issues are of a public nature. Thus, it is “desirable to provide guidance [to municipalities] for future actions.” ¹⁰

CLERK'S CLEAR LEGAL DUTY

¶ 12 McGehee, the Redmond city clerk, argues that she did not have a duty to transmit Proposition 1 to the county auditor. We hold that in her role as the city clerk, McGehee had a clear legal duty to transmit the initiative petition to the county auditor.

¶ 13 “The primary goal of statutory construction is to carry out legislative intent.” ¹¹ If statutory language is clear on its face, that plain meaning must be given effect.¹² Courts should generally “accord terms their most ‘plain and ordinary meaning’ when interpreting a statute.” ¹³ Thus, when a statute contains the word “shall,” courts have typically interpreted this as a mandated duty.¹⁴ A trial courts interpretation of a statute is a question of law this court reviews de novo.¹⁵

¶ 14 In Philadelphia, the supreme court examined whether the attorney general of Washington could refuse to prepare a ballot title and summary for a proposed initiative.¹⁶ The supreme court analyzed the following statutory language: “Within seven calendar days after the receipt of an initiative or referendum measure the attorney general shall formulate and transmit to the secretary of state the concise statement.” ¹⁷ It held that this language required the attorney general to prepare the ballot title and summary. “Use of the term ‘shall’ by the Legislature indicates that the Attorney General must prepare a ballot title and a summary regardless of the contents of the initiative. The statutory term ‘shall’ is presumptively imperative unless a contrary intent is apparent.” ¹⁸

¶ 15 The court held that reviewing the substance of a proposed initiative is exclusively a judicial function, not a role for other governmental actors. ¹⁹ In so holding, the court rejected the attorney general's argument that “if an initiative exceeds the scope of initiative power, it is not an initiative at all,” and the attorney general may consequently refuse to prepare the ballot title and summary.²⁰ “It is true that a court may review the substance of a proposed initiative to determine whether it exceeds the scope of initiative power described in Article II, Section 1 of the Washington State Constitution.” ²¹ But, the court continued, “[W]e hold that courts, not the Attorney General, should determine whether a proposed initiative exceeds the power reserved to the people in article II, section 1 of the state constitution.” ²² As the court noted:

This does not leave the Attorney General without recourse to prevent an initiative from reaching the ballot. If the Attorney General believes an initiative exceeds the scope of the initiative power, she should prepare the ballot title and summary in accordance with her statutory duty and then seek an injunction to prevent the measure from being placed on the ballot.²³

¶ 16 As in Philadelphia II,RCW 35A.01.040 and RCW 35A.29.170 both require the Redmond city clerk to take specific actions when an initiative is submitted. RCW 35A.29.170 states that “[t]he clerk shall transmit the petition to the county auditor who shall determine the sufficiency of the petition under the rules set forth in RCW 35A.01.040.” RCW 35A.01.040 mandates that “[w]ithin three working days after the filing of a petition, the officer with whom the petition is filed shall transmit the petition to the county auditor for petitions signed by registered voters, or to the county assessor for petitions signed by property owners for determination of sufficiency.” ²⁴ Thus, both statutes in question, like that in Philadelphia II, mandate that the city clerk transmit the petition to the county auditor. There is nothing ambiguous about the use of the words “shall transmit the petition” in the statutes.²⁵

¶ 17 Here, Redmond's initiative process, like all cities that have adopted the optional municipal code, follows RCW 35A.29.170 and 35A.01.040. By failing to transmit the petition, McGehee failed to comply with her mandatory legal duty.

¶ 18 McGehee argues that because the statutory scheme here is different from that in Philadelphia II, the supreme court's holding there is inapplicable. This argument has no merit.

¶ 19 All statutes in question here contain the same word: “shall.” ²⁶ Thus, they create a clear and non-discretionary duty for the clerk to transmit the initiative once received.

¶ 20 McGehee also argues that because the proposed initiative was clearly beyond the initiative powers stated in Title 35A RCW after this court's holding in American Traffic Solutions, it was not “authorized to be filed.” ²⁷ This, too, is an argument without merit. Philadelphia II makes clear that the determination of the validity of an initiative is “exclusively a judicial function.” ²⁸ There, the supreme court noted that the requirement that the attorney general prepare a ballot title and summary did “not leave [her] without recourse to prevent an initiative from reaching the ballot.” ²⁹ She could comply with her statutorily mandated duties and “then seek an injunction to prevent the measure from being placed on the ballot.”

¶ 21 Similarly, here, McGehee was statutorily required to transmit the petition to the county auditor.³⁰ Nothing prevented her from bringing a court challenge, an action which would have permitted a court to exercise its exclusive judicial function of determining the validity of the initiative.

¶ 22 Indeed, the trial court correctly acknowledged that McGehee lacked the authority to refuse to transmit the petition. In its oral decision, the court stated:

There is no authority for the city's position that the clerk had the right [not] to transmit the petition to the county auditor. As pointed out in [ Philadelphia ], even the Attorney General, the highest lawyer in the state, is not allowed to make a legal determination when addressing a statewide initiative.³¹

¶ 23 If the...