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Brower v. Charles

filed: May 1, 1996.

JORDAN BROWER AND LINDA JORDAN, PETITIONERS,
v.
JOHN CHARLES, JUDITH PIPPIN, AND CITY OF SEATTLE, RESPONDENTS.



Agid, J. WE Concur: Baker, C.j., Coleman, J.

Author: Agid

AGID, J. -- On April 3, 1996, the Seattle City Council passed Ordinance 118057 to place Proposition 1 before Seattle's voters in a special election on May 21, 1996. If approved by the voters, Proposition 1 will authorize the City to temporarily lift the statutory 106 percent limit on regular property tax levies pursuant to RCW 84.55.050 to fund the South Lake Union Project, commonly known as the Commons project. Section 9 of the ordinance asks the King County Manager of Records and Elections (Manager), John Charles, to call a special election pursuant to RCW Ch. 29.13, the special elections statute. Under RCW 29.13.020(2) the county auditor, upon the request of a governing body received 45 days before the proposed special election date, may call a special election if he determines an emergency exists. In King County, the county Manager of Records and Elections performs the functions of the county auditor for election purposes. See RCW 29.01.043. In order to comply with the 45-day time limit under RCW 29.13.020(2), the ordinance authorizes and directs the City Clerk to certify Proposition 1 to the Manager no less than 45 days prior to May 21, 1996, the

proposed special election date.*fn1 Mayor Rice approved the ordinance on April 3, the same day the council passed it. Under section 12 of the ordinance, it does not take effect for 30 days after the Mayor's approval; i.e., May 3, 1996.

The Manager received a certified copy of Ordinance 118057 on April 5. On April 9, Jordan Brower and Linda Jordan filed a petition for a writ of prohibition and a complaint for an injunction and declaratory relief in the King County Superior Court seeking to keep Proposition 1 off the May 21 ballot. They contend that the City Clerk's delivery of the ordinance to the Manager on April 5 was null and void because the ordinance, which directs her to certify Proposition 1 to the Manager, has not yet taken effect. They argue that she does not have authority to certify the proposition until the effective date of the ordinance, May 3, and that the Manager should be prohibited from placing it on the May 21 ballot because the City cannot comply with the 45-day time limit under the special elections statute. The superior court denied the writ of prohibition,*fn2 and the petitioners asked this court to review that ruling on an emergency basis. We granted their request for accelerated review and agreed to consider this case without the trial court record.*fn3 We hold that the petitioners have not shown that the Manager is acting in excess

of his jurisdiction, a showing they must make before a court can issue a writ of prohibition. Accordingly, we affirm the trial court.

As a preliminary matter, the City contends this case is not properly before us on appeal because the order denying the writ of prohibition is subject only to discretionary review. The City is wrong. A writ of prohibition is a special proceeding under RCW Ch. 7.16. RCW 7.16.020 provides that a "judgment in a special proceeding is the final determination of the rights of the parties therein." RCW 7.16.350 governs appellate review of rulings on extraordinary writs. It states: "From a final judgment in the superior court, in any such proceeding, appellate review by the supreme court or the court of appeals may be sought as in other actions." A trial court's disposition of an application for an extraordinary writ, therefore, is an appealable final judgment. See State ex rel. Moore v. Houser, 16 Wash. App. 363, 556 P.2d 556 (1976) reversed on other grounds, 91 Wash. 2d 269, 588 P.2d 219 (1978). Accordingly, we resolve this appeal on the merits.

A writ of prohibition is the counterpart to a writ of mandamus. RCW 7.16.290. The superior court has authority to issue writs of prohibition to arrest "the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person." RCW 7.16.290. The statutory writ may be invoked to prohibit judicial, legislative, executive, or administrative acts if the official or body to whom it is directed is acting in excess of its power. Winsor v. Bridges, 24 Wash. 540, 543, 64 P. 780 (1901). Prohibition is a drastic remedy and may only be issued where (1) a state actor is about to act in excess of its jurisdiction and (2) the petitioner does not have a plain, speedy and adequate legal remedy. County of Spokane v. Local 1553, American Federation of State, County & Mun. Employees, AFL-CIO, 76 Wash. App. 765, 768, 888 P.2d 735 (1995); see also Kreidler v. Eikenberry, 111 Wash. 2d 828, 838, 766 P.2d 438 (1989). If either of these

factors is absent, the court cannot issue a writ of prohibition. Kreidler, 111 Wash. 2d at 838.

The dispositive issue here is whether the Manager would be acting outside his jurisdictional authority if he held a special election on May 21. The Manager's authority to call a special election in this situation derives from RCW 29.13.020, the special elections statute.*fn4 It provides that all "city, town, and district general elections shall be held throughout the state of Washington on the first Tuesday following the first Monday in November in the odd-numbered years." RCW 29.13.020(1). Under section (2) of the statute

the county auditor, as ex officio supervisor of elections, upon request in the form of a resolution of the governing body of a city, town, or district, presented to the auditor at least forty-five days prior to the proposed election date, may, if the county auditor deems an ...


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