Burien Cmtys. for Inclusion v. Respect Wash.

BURIEN COMMUNITIES FOR INCLUSION, a Washington political committee, Respondent, v. RESPECT WASHINGTON, a Washington political committee, Appellant,

KING COUNTY ELECTIONS; JULIE WISE, King County Director of Elections,

in her official capacity at King County Elections; and CITY OF BURIEN, Defendants.

No. 77500-6-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

September 9, 2019

UNPUBLISHED OPINION

APPELWICK, C.J. — On September 14, 2017, the trial court granted Burien Communities for Inclusion (BCI) a preliminary injunction, prohibiting Burien Initiative 1 (Measure 1) from being placed on the November 2017 ballot. Respect Washington appeals the preliminary injunction, arguing that (1) it violates the free speech rights of the city of Burien's (City) voters, (2) the trial court erred in altering the status quo, and (3) BCI failed to show substantial injury. It also contends that Measure 1 is within the scope of the City's initiative power. We affirm.

FACTS

On January 9, 2017, the Burien City Council passed Ordinance 651 (Ordinance). The Ordinance is now codified at Burien Municipal Code (BMC) 2.26.010-.030. BMC 2.26.020 provides that "a City office, department, employee, agency or agent shall not condition the provision of City services on the citizenship or immigration status of any individual," except as otherwise required by law. It prohibits City personnel from initiating any inquiry or enforcement action based solely on a person's civil immigration status, race, inability to speak English, or inability to understand City personnel or officers. BMC 2.26.020(4) And, it forbids City officials from creating a registry for the purpose of classifying people on the basis of religious affiliation, or conducting a study related to the collection of such information. BMC 2.26.030.

On July 7, 2017, Craig Keller, the campaign manager, treasurer, and officer of Respect Washington, a Washington political committee submitted an initiative petition to the City. The petition asked that an initiative repealing the Ordinance, Measure 1,¹ be submitted to a vote of the City's registered voters. In addition to repealing the Ordinance, Measure 1 would add the following chapter to the BMC:

New Chapter 9.20 is hereby added to the Burien Municipal Code "Public Peace, Morals and Welfare" to read as follows: 9.20 Citizen Protection of Effective Law Enforcement: The City of Burien shall not regulate the acquisition of immigration status or religious affiliation unless such regulation is approved by a majority vote of the City Council and a majority vote of the people at a municipal general election.

Two weeks later, the King County Department of Elections found that a sufficient number of signatures had been submitted for Measure 1, and issued a certificate of sufficiency. The Burien City Council then voted to place Measure 1 on the November 7, 2017 ballot.

On September 8, 2017, Burien Communities for Inclusion (BCI), a Washington political committee, filed a complaint for declaratory and injunctive relief against Respect Washington, King County Elections, King County Director of Elections Julie Wise, and the City. It sought a declaratory judgment that Measure 1 is invalid, arguing in part that (1) it exceeds the scope of the City's initiative power, and (2) the petition used to gather signatures violates RCW 35.21.005. It also asked the trial court to enjoin Measure 1 from being included on the November 2017 ballot.

Three days later, BCI sought and obtained a temporary restraining order (TRO). The TRO prohibited King County Elections and Wise from placing Measure 1 on the November 7, 2017 ballot. As a result, King County removed Measure 1 from the ballot. In granting the TRO, the trial court ordered that, on September 13, the matter be heard on a motion for a preliminary injunction, at which time the TRO would expire.² The deadline for King County Elections to send the ballots to the printer was the next day, September 14.

On September 14, 2017, the trial court granted BCI's motion for a preliminary injunction. In doing so, it ordered the following:

1. City of Burien Initiative Measure No. 1 ("Measure 1") is invalid on the grounds that (a) Measure 1 exceeds the scope of the initiative authority granted to the people of the City of Burien, that it is administrative in nature, and (b) the petition used to gather signatures for Measure 1 violated RCW 35.21.005 by deviating from the requirements for the contents and form of a petition, as set forth in RCW 35.17.240 through 35.17.360;

2. Defendants King County Elections, Julie Wise, King County Director of Elections, and all agents of King County Elections are prohibited from including or placing Measure 1 on the November 7, 2017 ballot.

Respect Washington appeals.³

DISCUSSION

Respect Washington makes six arguments.⁴ First, it argues that BCI is not entitled to any relief because its complaint is barred by the statute of limitationsand laches. Second, it argues that the preliminary injunction violated the free speech rights of the City's voters. Third, it argues that the trial court erred in granting a preliminary injunction that altered the status quo. Fourth, it argues that BCI failed to show that substantial injury would result from Measure 1's placement on the ballot. Fifth, it argues that Measure 1 does not exceed the scope of the City's initiative power, and is legislative in nature. And sixth, it argues that the petition used to gather signatures did not violate RCW 35.21.005.⁵

I. Statute of Limitations and Laches

Respect Washington argues that BCI was not entitled to any relief because its claims were "barred by the statute of limitations or laches." It points out that the Burien City Council voted to place Measure 1 on the November 2017 ballot at a public meeting on August, 7, 2017. BCI did not file its complaint until September 8, 2017.

Respect Washington asserts first that BCI brought its claims under the Uniform Declaratory Judgments Act (UDJA), chapter 7.24 RCW. Because the UDJA does not have its own statute of limitations, it states that "courts are to apply an analogous statute of limitations." Respect Washington points to three election related statutes of limitations as examples.

First, a challenge to the ballot title or summary for a state initiative or referendum must be brought within 5 days from the filing of the ballot title. RCW 29A.72.080. Second, a challenge to the ballot title for a local ballot measure must be brought within 10 days from the filing of the ballot title. RCW 29A.36.090. Third, a challenge to the Secretary of State's refusal to file an initiative or referendum petition must be brought within 10 days after the refusal. RCW 29A.72.180.

This court recently considered an identical argument in Global Neighborhood v. Respect Washington, 7 Wn. App. 2d 354, 434 P.3d 1024 (2019). There, on February 22, 2016, the Spokane City Council placed Proposition 1 on the November 2017 ballot. Id. at 369. Global Neighborhood did not file its complaint addressing the validity of Proposition 1 until May 2017, and did not move for a declaratory judgment prohibiting Proposition 1 from being placed on the ballot until July 28, 2017. Id. at 372-73. The trial court declared Proposition 1 invalid because it was administrative in nature and exceeded the local initiative power and entered an injunction directing its removal from the ballot. Id. at 374.

On appeal, Respect Washington asserted the statute of limitations as a defense, and provided this court with the same election related statutes of limitations. Id. at 380-81. This court stated that "[s]ignificant differences liebetween a challenge to the title of an initiative and a challenge to the substance of an initiative." Id. at 381. It explained,

The initiative if adopted will take effect regardless of any defect in its title. If any lawsuit will remedy the flaw in the initiative's name, the lawsuit should be brought in advance of the election and in time for the secretary of state or local government official to place a proper title on the ballot. A challenge to a refusal to place an initiative on the ballot also should be brought quickly in order to remedy any wrongful refusal to consign the measure to the ballot.

A challenge to a local initiative as exceeding the scope of a municipality's legislative power may be brought after the initiative election. If the challenge can be brought after the vote, we should erect no impediment by reason of a statute of limitations applying before the effectiveness of initiative as an ordinance.

Id.

As a result, it deemed the preelection challenge to a ballot initiative "analogous to a challenge to an adopted ordinance or statute." Id. In Washington, "no statute of limitations applies to a challenge to the constitutionality of a statute or other action." Id. This court held that, similarly, "no statute of limitations should apply to the challenge of an ordinance that exceeds the authority of the entity adopting the measure whether by its legislative body or the voters by initiative." Id. at 382. It also pointed out that many Washington decisions have "entertained preelection initiative challenges without suggesting a statute of limitations that applied before the election might bar such a challenge." Id. We adhere to that decision, and that find that BCI's claims were not barred by a statute of limitations.

Alternatively, Respect Washington argues that BCI's claims should have been barred by laches.

"Laches is an implied waiver arising from knowledge of existing conditions and acquiescence in them." Buell v. City of Bremerton, 80 Wn.2d 518, 522, 495 P.2d 1358 (1972). The elements of laches are: "(1) knowledge or reasonable opportunity to discover on the part of a potential plaintiff that he has a cause of action against a defendant; (2) an unreasonable delay by the plaintiff in commencing that cause of action; (3) damage to the defendant resulting from the unreasonable delay." Id. None...