HomeMy WebLinkAboutres2024-035Whatcom County
Agenda Bill Report
File Number: AB2024-466
COUNTY COURTHOUSE
311 Grand Avenue, Ste #105
Bellingham, WA 98225-4038
(360) 778-5010
File ID:
AB2024-466
Version:
1 Status: Approved
File Created:
07/03/2024
Entered by:
CHalka@co.whatcom.wa.us
Department:
Council Office
File Type:
Resolution
Assigned to: Council Committee of the Whole Final Action: 07/09/2024
Agenda Date: 07/09/2024 Enactment #: RES 2024-035
Related Files:
Primary Contact Email: chalka@co.whatcom.wa.us
TITLE FOR AGENDA ITEM:
Resolution requesting Whatcom County Superior Court issue a declaratory judgement to determine
whether Initiative 2024-01 is procedurally invalid
SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE:
Resolution requesting Whatcom County Superior Court issue a declaratory judgement to determine
whether Initiative 2024-01 is procedurally invalid
HISTORY OF LEGISLATIVE FILE
Date: Acting Body: Action: Sent To:
07/09/2024 Council Committee of the Whole RECOMMENDED FOR
APPROVAL
Aye: 4 Buchanan, Donovan, Galloway, and Scanlon
Nay: 2 Elenbaas, and Stremler
Abstain: 1 Byrd
07/09/2024 Council APPROVED
Aye: 4 Buchanan, Donovan, Galloway, and Scanlon
Nay: 2 Elenbaas, and Stremler
Abstain: 1 Byrd
Attachments: Proposed Resolution, Memo, Letter from League of Women Voters
Whatcom County Page 1 Printed on 711012024
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PROPOSED BY: BUCHANAN, DONOVAN, SCANLON
INTRODUCTION DATE: JULY 9, 2024
RESOLUTION NO. 2024-035
REQUESTING WHATCOM COUNTY SUPERIOR COURT ISSUE A DECLARATORY
JUDGMENT TO DETERMINE WHETHER INITIATIVE 2024-01 IS PROCEDURALLY
INVALID
WHEREAS, Whatcom County Council recognizes the importance of the initiative
process granted in the County Charter; and
WHEREAS, the Whatcom County Charter Commission, and the Whatcom County
Council and the voters of Whatcom County have moved to facilitate greater access to the
citizens' initiative process in Whatcom County; and
WHEREAS, the initiative process can only be used lawfully and is subject to rules
and limitations imposed by the County Charter and State Law; and
WHEREAS, Washington Courts have recognized that it is appropriate to evaluate a
proposed local initiative to determine whether it is within the limited scope of the local
initiative process; and
WHEREAS, Washington Courts have recognized that the scope of the citizen
initiative process is far more limited at the local level versus the state level; and
WHEREAS, Washington Courts have deliberated over distinctions of legislative
versus administrative matters that may or may not be the subject of citizen initiatives; and
WHEREAS, Whatcom County has an Advisory Memorandum from November 2013
that outlines legal tests and procedures to determine if a local ballot measure is a proper
subject for initiative and referendum; and
WHEREAS, the Advisory Memorandum states that the only way for the validity of
the subject matter of a proposed Initiative to be addressed is in the courts; and
WHEREAS, proposed Initiative 2024-01 has apparent defects that a court must
adjudicate; and
WHEREAS, Initiative 2024-01 appears to be an invalid referendum because it seeks
a referendum on a county ordinance but was not supported by sufficient signatures and/or
concerns subjects exempt from referendum under the County Charter; and
WHEREAS, the petition for Initiative 2024-01 appears to be invalid for violating the
petition form requirements of Whatcom County Code 1.08.060.D, which require that the
ballot title be inserted in the "We, the undersigned" section of the petition itself, yet it is
missing; and
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WHEREAS, Initiative 2024-01 appears to interfere with the County Council's
exclusive authority to refer measures to the ballot under RCW 29A.04.321; and
WHEREAS, Initiative 2024-01 appears to interfere with the County Council's
exclusive authority over County budgets as recognized by the Washington Supreme Court in
Protect Public Health v. Freed, 192 Wn.2d 477 (2018) (removing county initiative from the
ballot for interfering with County Council's exclusive budgetary authority), and interferes
with the County's ability to pass a budget in a timely manner; and
WHEREAS, proposed Initiative 2024-01 appears to exceed the scope of the initiative
process because its single operative sentence seeks only to repeal Whatcom County
Ordinance 2022-045, which cannot be done by local initiative; and
WHEREAS, Ordinance 2022-045 contained two primary components: (1)
temporary/preliminary provisions placing a levy lid lift on the 2022 ballot, and (2)
permanent provisions to take effect if the levy lid lift is enacted, directing levy proceeds
towards children's well-being and protecting taxpayers by requiring planning and
performance audits; and
WHEREAS, the temporary/preliminary provisions of Ordinance 2022-045 have been
superseded by the vote of the people and cannot effectively be repealed; and
WHEREAS, the repeal of the permanent provisions in Ordinance 2022-045 would
harm taxpayers by retroactively removing the voters' restriction on the use of levy proceeds
and accountability measures such as planning and performance audits; and
WHEREAS, the repeal of restrictions on the use of levy funds after the voters have
approved the levy appears to interfere with the statutory scheme governing property taxes,
which authorize a levy lid lift measure to include restrictions on the use of tax proceeds and
allows voters to rely upon the permanence of those restrictions for the life of the levy; and
WHEREAS, Section 5.40 of the Whatcom County Charter expressly gives the County
Council a role in evaluating a proposed initiative, and deciding whether to approve or reject
the initiative or to propose a substitute to place before the voters; and
WHEREAS, the County Council's role under the Charter necessarily requires the
County Council to evaluate both the policy and legality of a proposed initiative; and
WHEREAS, since the County Charter was enacted in 1978, Washington courts have
confirmed that courts and judges should make the decision on whether a proposed initiative
is legal; and
WHEREAS, Initiative 2024-01 has apparent legal defects that must be evaluated for
the County Council to fulfil its duties under the County Charter, and the County Council
believes it is most appropriate for a Court to conduct that legal evaluation; and
WHEREAS, ignoring these apparent legal problems would not make them go away,
since initiatives are subject to post -election challenge; and
100 WHEREAS, Courts have determined that pre -election review of local initiatives is
101 appropriate because placing an invalid initiative on the ballot harms voters and undermines
102 the initiative process; and
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104 WHEREAS, the County Council has the authority to decide which lawsuits the
105 County will bring; and
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107 WHEREAS, the County's advisory memorandum states that "The Prosecuting
108 Attorney must file the lawsuit if the County believes that the subject matter of the initiative
109 or referendum is beyond the scope of the Charter's powers of initiative or referendum"; and
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111 WHEREAS, the County Council believes that Initiative 2024-01 is procedurally
112 invalid and/or beyond the scope of the initiative power, but recognizes that the Court will
113 make that final decision; and
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115 WHEREAS, in rare occasions in the past, when the County Prosecutor has declined
116 to take legal action at the direction of the County Council, the County Prosecutor has
117 approved the County Council's hiring of outside counsel to do so; and
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119 WHEREAS, in passing this resolution, neither the County nor the County Council
120 take a position for or against the policies or merits of Initiative 2024-01.
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122 NOW, THEREFORE, BE IT RESOLVED that, in order to protect the interest of the
123 County, voters, and taxpayers, the County shall bring a declaratory judgment action in
124 Whatcom County Superior Court to determine whether Initiative 2024-01 is procedurally
125 invalid and/or exceeds the scope of the local initiative process for the reasons stated in this
126 resolution; and
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128 BE IT FINALLY RESOLVED that if the County Prosecutor is unable or unwilling to
129 represent the County in bringing this action, the County Council hereby requests that the
130 County Prosecutor authorize the County Council to retain outside counsel to bring such
131 action.
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134P��OO�ti��h day of July , 2024.
1350 ®6 ,
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137 u 00�1 ® WHATCOM COUNTY COUNCIL
138 ATTT WHATCOM COUNTY, WASHINGTON
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140 r�
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142 Cathy Hiibka, Clerk_ of.`th�.,Cbuncil arr B chanan, Council Chair
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145 APPROVED AS TO FORM:
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149 Civil Deputy Prosecutor