Mukilteo Citizens for Simple Gov't v. City of Mukilteo

• Decision Date: 08 March 2012
• Docket Number: No. 84921–8.,84921–8.
• Citation: 174 Wash.2d 41,272 P.3d 227
• Court: Washington Supreme Court
• Parties: MUKILTEO CITIZENS FOR SIMPLE GOVERNMENT, an unincorporated association of Mukilteo residents, Appellants, v. CITY OF MUKILTEO, a Washington municipal corporation; Christine Boughman, in her official capacity as City Clerk for the City of Mukilteo; Snohomish County, a political subdivision of the State of Washington; Carolyn Weikel, in her official capacity as Snohomish County Auditor, Respondents,Nicholas Sherwood; Alex Rion; and Tim Eyman, Respondents/Intervenors.

174 Wash.2d 41

272 P.3d 227

MUKILTEO CITIZENS FOR SIMPLE GOVERNMENT, an unincorporated association of Mukilteo residents, Appellants,

v.CITY OF MUKILTEO, a Washington municipal corporation; Christine Boughman, in her official capacity as City Clerk for the City of Mukilteo; Snohomish County, a political subdivision of the State of Washington; Carolyn Weikel, in her official capacity as Snohomish County Auditor, Respondents,Nicholas Sherwood; Alex Rion; and Tim Eyman, Respondents/Intervenors.

No. 84921–8.

Supreme Court of Washington.

March 8, 2012.

Vanessa Soriano Power, Leonard J. Feldman, Gloria S. Hong, Stoel Rives LLP, Seattle, WA, for Appellants.

Angela Summerfield Belbeck, Ogden Murphy Wallace, Seattle, WA, Gordon Walter Sivley, Civil Div. Snohomish County Prosecutor's, Everett, WA, for Respondents.

Richard M. Stephens, Groen Stephens & Klinge LLP, Bellevue, WA, for Respondent Intervenor.John Benjamin Kerr Schochet, Seattle City Attorney's Office, Seattle, WA, Amicus Curiae on behalf of City of Seattle.MADSEN, C.J.

[174 Wash.2d 43] ¶ 1 This case involves a preelection challenge to an initiative measure, Proposition 1, which repealed an ordinance governing the use of automated traffic safety cameras in the city of Mukilteo. The trial court declined to grant an injunction, and Proposition 1 was placed on the November 2, 2010, Snohomish County general election ballot.

¶ 2 We hold that because the legislature expressly granted authority to the governing body of the city of Mukilteo to enact ordinances on the use of automated traffic safety cameras, the subject matter of Proposition 1 is not within the initiative power.

FACTS

¶ 3 Mukilteo is a noncharter code city that operates under Title 35A RCW. The city has adopted the code city initiative and referendum power provided under RCW 35A.11.080–.100. Mukilteo Municipal Code (MMC) 1.14.010; see Clerk's Papers (CP) at 42. Under RCW 35A.11.100, the powers of initiative and referendum in noncharter code cities are to be exercised as set forth in RCW 35.17.240–.360.

¶ 4 In 2005, the Washington State Legislature authorized local governments to enact ordinances that allow the use of automated traffic safety cameras to issue notices of traffic infractions. Former RCW 46.63.170 (2005). On May 17, 2010, the city of Mukilteo enacted Ordinance 1246, authorizing and setting forth the guidelines for use of automated traffic safety cameras. On the same day, the city council authorized the mayor to enter into a contract with American Traffic Solutions to supply the city with automated traffic cameras.

¶ 5 In June 2010, a petition for Mukilteo Initiative 2 was commenced. Shortly thereafter, residents of the city of Mukilteo submitted Initiative 2 to the Mukilteo city clerk for inclusion on the ballot. Initiative 2 forbade the city of Mukilteo from installing an automated traffic safety camera system unless approved by two-thirds of the voters, limited the amount of fines that could be imposed for infractions arising from camera surveillance, and repealed the existing ordinance allowing automated traffic safety cameras. Initiative 2 also provided that any new automated traffic safety ordinance had to be put on the ballot for an advisory vote. The petition's proposed ballot title was Mukilteo Initiative 2.

¶ 6 On June 21, 2010, the Mukilteo City Council rescinded its authorization for the mayor to enter into a contract on behalf of the city with American Traffic Solutions. At a July 19, 2010 meeting, the Mukilteo City Council approved Resolution 2010–22, which directed the Mukilteo city clerk to provide the Snohomish County auditor with a certified copy of the resolution and asked the auditor to place Initiative 2 on the November 2, 2010, city ballot. The resolution included a recital that states “the City Council desires to hear from the qualified electorate on the issues addressed in the Initiative Petition, regardless of whether the subject matter is subject to the initiative process.” CP at 84.

¶ 7 After the July 19, 2010 meeting, the Mukilteo Citizens for Simple Government (MCSG), an unincorporated association of Mukilteo residents, filed a complaint in Snohomish County Superior Court against the city of Mukilteo, the city clerk, Snohomish County, and the county auditor seeking a declaration that an initiative was beyond the scope of the local initiative powers and an injunction preventing the inclusion of the measure on the ballot. The initiative's sponsors were permitted to intervene in the action.

¶ 8 The superior court ruled that the challenge to the initiative was premature and denied the motion for injunction. Mukilteo Citizens filed a notice of direct appeal of the court's ruling and an emergency motion for accelerated review. We declined accelerated review but granted the request for direct review.

¶ 9 In the meantime, Initiative 2 was placed on the November 2010 city of Mukilteo ballot as Proposition 1.¹ The measure passed with a 70.71 percent favorable vote.² On April 25, 2011, the Mukilteo City Council adopted Ordinance 1275, repealing Ordinance 1246 (chapter 10.05 MMC). ³ The council enacted chapter 10.06 MMC, which revoked authorization for the use of automated traffic safety cameras in Mukilteo.

ANALYSIS

¶ 10 As a threshold issue, we are asked to decide whether MCSG has standing to challenge the validity of this ballot measure. “An organization ‘has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.’ ” Am. Legion Post No. 149 v. Dep't of Health, 164 Wash.2d 570, 595, 192 P.3d 306 (2008) (quoting Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)). MCSG's members have standing to sue in their own right as it consists of Mukilteo residents who are eligible to vote. The interest MCSG seeks to protect (use of red-light cameras) is germane to a stated organizational purpose (public safety), and the relief requested (invalidation of Proposition 1) does not require the participation of individual members. Accordingly, we hold MCSG has standing to bring this challenge.

¶ 11 Several of the arguments raised in this case turn on whether Proposition 1 was an initiative or an advisory vote. MCSG contends that Proposition 1 was an invalid initiative, while the city of Mukilteo argues it was an advisory vote. An initiative is direct legislation by the people, while an advisory vote is a nonbinding poll of the citizen population. See RCW 35.17.260; RCW 29A.72.290. RCW 35.17.260 establishes rules governing initiatives that, when satisfied, require a city to either pass the proposed ordinance without alteration or submit the proposed ordinance to the registered voters. There are no statutory or constitutional provisions imposing a duty on a city council to call for an “advisory” vote.

¶ 12 To discern the nature of Proposition 1 we begin with the language of the measure. The petition that was submitted to the Mukilteo City Council stated: “We, the undersigned voters of Mukilteo, require that, unless passed by the City Council, this ordinance Mukilteo Initiative No. 2—be submitted to a vote of the registered voters of the City of Mukilteo, subject to the requirements of RCW 35.17.260.” CP at 82 (emphasis added). RCW 35.17.260 is, as mentioned, the statute governing requirements for submission of a local initiative. Under this statute, a city council has only two options when an initiative petition is submitted to it; either enact the measure as an ordinance or submit it to the voters to determine whether to enact the measure. The statute provides no other course. By invoking the statute, the petitioners called for enactment of the measure as an initiative.

¶ 13 Initiative 2 would add a new chapter to the municipal code to be “ENACTED BY THE PEOPLE OF THE CITY OF MUKILTEO” (“[a] new chapter 10.06 is hereby added to the Mukilteo Municipal Code ”). CP at 82 (emphasis added). Mukilteo Initiative 2 expressly sets out the language of a proposed new ordinance and unquestionably contemplates a vote of the people to enact it by initiative. The measure submitted to the council establishes procedural bars for the council to hurdle, should it wish to enact another ordinance allowing camera tickets, and provides for the repeal of Ordinance 1246.

¶ 14 Upon receipt of Initiative 2, the city council proceeded in accord with procedures for submitting an initiative to the voters. The city council passed Resolution 2010–22, which stated that the council had been presented with an “Initiative Petition requesting enactment of an ordinance to prohibit use of automated traffic safety cameras,” and resolved: “Pursuant to RCW 35.17.260,” the council requests the Snohomish county auditor “to place upon the general election ballot ... a proposition for the purpose of submitting to the qualified electors ... whether or not to enact an initiative ordinance.” CP at 84–85 (emphasis added). The city council explicitly stated that Proposition 1 was an initiative and directed the Snohomish County auditor to place the proposition on the ballot pursuant to RCW 35.17.260.

¶ 15 Proposition 1 included a ballot title and explanatory statement mirroring the language of Mukilteo Initiative 2. It required the Mukilteo City Council to repeal Ordinance 1246 and restricted the council's ability to act with respect to future ordinances governing automated traffic safety cameras. Proposition 1's ballot title states:

Mukilteo Initiative No. 2 concerns automatic ticketing machines. This measure would prohibit Mukilteo from using camera surveillance to impose fines unless two-thirds of the Council and a majority of the voters approve, limit fines, repeal Ordinance 1246 allowing the...