Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Port of Tacoma v. Save Tacoma Water

Court of Appeals of Washington, Division 2

July 25, 2018

PORT OF TACOMA, a Washington State Municipal Corporation; ECONOMIC DEVELOPMENT BOARD FOR TACOMA-PIERCE COUNTY, a Washington State NonProfit Corporation; TACOMA-PIERCE COUNTY CHAMBER, a Washington State Non-Profit corporation, Respondents,
v.
SAVE TACOMA WATER, a Washington political committee, Appellant, DONNA WALTERS, sponsor and Treasurer of SAVE TACOMA WATER; JON AND JANE DOES 1-5; (Individual sponsors and officers of SAVE TACOMA WATER); CITY OF TACOMA, a Washington State Municipal Corporation; and JULIE ANDERSON, in her capacity as PIERCE COUNTY AUDITOR, Defendants.

          Bjorgen, J.

         Save Tacoma Water (STW) appeals from the superior court's declaratory judgment and permanent injunction preventing it from placing two initiatives on the Tacoma municipal ballot. STW argues that the superior court did not have the authority to conduct a preelection review of the proposed initiatives, that the superior court erred by determining that various provisions were beyond the scope of the local initiative power and conflicted with state law, and that the injunction violated STW's right to free speech.

         We hold that the superior court had the authority to review whether the proposed initiatives exceeded the scope of the local initiative power and that its review did not offend separation of power principles. We also hold that the superior court properly determined that the challenged provisions were beyond the scope of the local initiative power and that one of the provisions conflicted with state law. Finally, we hold that the injunction preventing the initiatives from appearing on the ballot did not violate STW's right to free speech. Consequently, we affirm the superior court.

         FACTS

         In 2016, STW, a political committee, began circulating two initiative petitions among Tacoma residents in order to place the proposed initiatives on the upcoming municipal ballot. One initiative proposed an amendment to the Tacoma City Charter (Charter Initiative) and the other sought to enact a new municipal ordinance. The two initiatives contained text that was substantially identical in effect. The following are the provisions of common effect that are of significance to this appeal.

[From the Charter Initiative]
(A) People's Vote on Large Water Use Applications [(Water Provision)].
. . . . Before providing water utility service to any applicant for 1336 CCF [(centum cubic feet)] (one million gallons), or more, of water daily from the City, the City shall place the applicant's request for water utility service before the voters on the next available General Election Ballot, in a manner substantially conforming to the rules for Section 2.22 of this Charter. The applicant shall pay for the costs of the vote of the people. Only if a majority of the voters approve the water utility service application and all other application requirements are met may the City provide the service. . . .
(B) Sustainable Water Protection is an Inviolable Right that Government Cannot Infringe [(Preemption Provision)].
. . . . The People's Right to Water Protection vote provides a democratic safeguard, on top of the City's existing application process, to ensure that large new water users do not threaten the sustainability of the people's water supply. To prevent subsequent denial of the People's Right to Water Protection by state law preemption, all laws adopted by the legislature of the State of Washington, and rules adopted by any state agency, shall be the law of City of Tacoma only to the extent that they do not violate the rights or mandates of this Article.
(C) Water Protection supersedes Corporate Interests.
As the People's Right to Water Protection is foundational to the people's health, safety, and welfare, and must be held inviolate, no government actor, including the courts, will recognize as valid any permit, license, privilege, charter, or other authorization, that would violate the rights or mandate of this Article, issued for any corporation, by any state, federal, or international entity. [Subordination of Judicial Review Provision]. In addition, corporations that violate, or seek to violate the rights and mandates of this Article shall not be deemed "persons" to the extent that such treatment would interfere with the rights or mandates enumerated by this Article, nor shall corporations possess any other legal rights, powers, privileges, immunities, or duties that would interfere with the rights or mandates enumerated by this Article [(Subordination of Corporate Rights Provision)]. . . .
(D) Enforcement.
The City or any resident of the City may enforce this section through an action brought in any court possessing jurisdiction over activities occurring within the City of Tacoma, including, but not limited to, seeking an injunction to stop prohibited practices. . . .
[From the initiative amending Tacoma ordinance]
(E) Severability and Construction.
The provisions of this Ordinance shall be liberally construed to achieve the defined intent of the voters. The provisions of this Ordinance are severable, and the petitioners intend that all valid provisions of the initiative be placed on the ballot and enacted into law even if some provisions are found invalid.

Clerk's Papers (CP) at 28-31.

         On June 6, 2016, the Port, the Economic Development Board for Tacoma-Pierce County, and the Tacoma-Pierce County Chamber filed a complaint in superior court for declaratory judgment and injunctive relief against STW, various sponsors of that organization, the City and the Pierce County Auditor. The City filed an answer to the complaint, which included cross- claims against STW and the additional parties named as defendants. The City then filed a motion for a preliminary and a permanent injunction to prevent STW's initiatives from appearing on the municipal ballot.

         On July 1, the superior court granted the Port's motion for declaratory judgment and permanently enjoined the Pierce County Auditor from placing the initiatives on the 2016 ballot. The court determined that the Water Provision, Part A in the excerpt above, concerned an administrative matter beyond the scope of the local initiative power. The court further ruled that the Water Provision conflicted with state law and determined also that the Preemption Provision, Part B above, was beyond the scope of the local initiative power because the provision attempted to subordinate all other law to the Water Provision. The court additionally determined that the Subordination of Corporate Rights Provision, part of Part C above, was beyond the scope of the local initiative power because it attempted to alter corporations' rights under existing law. Similarly, the court ruled that the Subordination of Judicial Review Provision, part of Part C above, was beyond the scope of the local initiative power because it conflicted with existing law. Finally, the court concluded that the remaining initiative provisions were not severable and that no portion of the initiatives could be placed on the ballot.

         According to the declaration of Sherry Bockwinkel, STWs signature collection effort "stalled when people heard that [STW] was being sued for circulating the petition" and its "signature turn-ins" went down. CP at 585. The Bockwinkel declaration also states that "[m]any volunteer signature gatherers were now afraid that they would be named individually in a lawsuit" for their efforts. CP at 585.

         On July 29, STW filed an appeal of the superior court's grant of a permanent injunction and declaratory ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.