IN THE SUPREME COURT OF THE STATE OF WASHINGTON
SPOKANE ENTREPRENEURIAL ) CENTER, SPOKANE COUNTY, ) DOWNTOWN SPOKANE PARTNERSHIP, GREATER SPOKANE INCORPORATED, ) THE SPOKANE BUILDING OWNERS ) AND MANAGERS ASSOCIATION, ) SPOKANE ASSOCIATION OF ) REALTORS, THE SPOKANEHOME ) BUILDERS ASSOCIATION, THE INLAND) PACIFIC CHAPTER OF ASSOCIATED ) BUILDERS AND CONTRACTORS, ) AVISTA CORPORATION, PEARSON ) PACKAGING SYSTEMS, WILLIAM ) BUTLER, NEIL MULLER, STEVE ) SALVATORI, NANCY McLAUGHLIN, ) MICHAEL ALLEN, and TOMPOWER, ) Petitioners, v. SPOKANE MOVES TO AMEND THE CONSTITUTION, ENVISION SPOKANE, VICKY DALTON, SPOKANE COUNTY AUDITOR, inher official capacity, THE CITY OF SPOKANE, Respondents. ) ) ) ) ) ) ) ) ) ) )



# ____________________________) No. 91551-2 EnBanc

Filed 

## FEB 0**i~t** 

## 2016Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend No. 91551-2 OWENS, J. -Courts generally avoid reviewing ballot initiatives before they have been enacted into law, but a few limited types ofchallenges canbe appropriately reviewed priorto election: procedural challenges (such as sufficiency ofsignatures and ballottitles) and challenges asserting that the initiative is not withinthe scope of the legislative authority granted to local residents. The first issue in this case is who has standing to bring those types ofchallenges. The Court ofAppeals created new limits onwho can bring such challenges, but we reverse and adhere to our existing standards because they adequately ensure that only those affected by an ordinance may challenge it. Applying those existing standards, we find that petitioners in this
case had standing to bring this challenge. The second issue in this case is the substance ofthe petitioners' challenge: whether the initiative's subject matter falls within the scope ofauthority granted to local residents. This initiative attempts to regulate a variety ofsubjects outside this scope ofauthority, including administrative matters, water law, and constitutional rights. Therefore, we affirm the trial court's finding thatthis local initiative exceeds the scope oflocal initiative power and should not be put on the ballot. FACTS In 2013, Envision Spokane gathered enough signatures to place a local initiative onthe ballot that would establish a "CommunityBill ofRights" (referred to herein as the "EnvisionInitiative"). Clerk's Papers (CP) at 39. The Envision

2Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend No. 91551-2 Initiative would amend the city ofSpokane's charter to add a "Community Bill of Rights" that contained four primary provisions relating to zoning changes, water rights, workplace rights, and the rights ofcorporations. CP at 39-40. First, the initiative would require any proposed zoning changes involving large developments to be approved by voters in the neighborhood. Second, it would give the Spokane River the legal right to "exist and flourish," including the right to sustainable recharge, sufficient flows to support native fish, and clean water. 

### ld. at 40. Itwould also give Spokane residents the right to access and use water inthe city,
as well as the right to enforce the Spokane River's newrights. Third, it attempts to give employees the protections ofthe Bill ofRights against their employer inthe workplace. Fourth, it would strip the legalrights ofany corporationthat violated the rights secured inthe charter. 

### ld. Petitioners filed this declaratoryjudgment action challenging the validity ofthe Envision Initiative. The petitioners include Spokane County, individual residents of Spokane (including two city council members acting in their individual capacities), for-profit corporations and companies in Spokane (including Pearson Packaging Systems and the utility companyAvista Corporation), and nonprofit associations (including the Spokane Association ofRealtors, the Spokane Building Owners and Managers Association, the Spokane HomeBuilders Association, and local chambers ofcommerce). 

### See id. at 8-13.

3Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend No. 91551-2 The trialjudgeruled that (1) petitioners had standing to challenge the initiative and (2) the initiative exceeded the scope ofthe local initiative power. She therefore instructed that it be struck from the ballot. Envision Spokane appealed, and the Court ofAppeals held that petitioners lacked standing and ordered the initiative be put on the next available ballot. Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend Constitution, noted at 185 Wn. App. 1039,2015 WL 410344, at *8-9. We granted review. Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend Constitution, 183 Wn.2d 1017, 355 P.3d 1153 (2015). ISSUES 1. Do petitioners have standing to bring this challenge? 2. Does the Envision Initiative exceedthe scope oflocal initiative power? ANALYSIS 1. Under OurExistingStandingRequirements, Petitioners Have Standing This case involves the intersection ofourrules regarding standing in declaratoryjudgment actions and our rules regarding preelection challenges to initiatives. The Court ofAppeals found these rules to be in tension with each other, noting that our liberal standing requirements seemed to conflict with limits on preelectionjudicialreview ofinitiatives. Spokane Entrepreneurial Ctr., 2015 WL 410344, at *4. Because ofthis conflict, the Court ofAppeals applied heightened standing requirements for this type ofaction.

4Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend No. 91551-2
As explained below, we decline to adopt heightened standing requirements for this type ofaction. Our case law has consistently applied existing standing requirements for declaratoryjudgment actions, and we believe the concerns regarding preelection review ofinitiatives are properly addressed by our limits onthe types of challenges that courts will reviewpriorto elections. A. Existingstanding requirements limit who can bringdeclaratoryjudgment actions To challenge the Envision Initiative, petitioners filed an action under the Uniform Declaratory Judgments Act, chapter 7.24 RCW. That statute allows a person whose rights are affected by a statute or municipal ordinance to "have determined any question ofconstruction or validity" ofthat statute or ordinance, and to "obtain a declaration ofrights, status or other legal relations thereunder." RCW 7.24.020. At issue in this case is whetherpetitioners had standing to file that declaratoryjudgment action."The standing doctrine prohibits a litigant from raising another's legal rights." Walker v. Munro, 124 Wn.2d 402, 419, 879 P.2d 920 (1994). This court's test for standing in declaratoryjudgment actions has two requirements. First, the interest sought to be protected must be '"arguablywithinthe zone ofinterests to beprotected
or regulated by the statute or constitutional guarantee in question.'" Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 802, 83 P.3d 419 (2004) (internal quotation marks omitted) (quoting Save a Valuable Env 'tv. City of Bothell,

5Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend No. 91551-2 89 Wn.2d 862, 866, 576 P.2d 401 (1978)). Second, the challenged action must have caused '"injuryin fact,' economic or otherwise, to the party seeking standing." Id. (quoting Save a Valuable Env 't, 89 Wn.2d at 866). B. Existing rules strictly limitpreelection judicial review of initiatives As apreliminary issue, it is important to distinguish statewide and local initiatives. The right ofthe people to file a statewide initiative is laid out in the Washington Constitution. CONST. art. II, 

### § 1(a). Because it is a constitutional right, Washington courts interpret the rules regarding statewide initiatives to facilitate this right. Coppernoll v. Reed, 155 Wn.2d 290, 296, 119 P.3d 318 (2005); In re Estate of Thompson, 103 Wn.2d 292, 294-95, 692 P.2d 807 (1984). However, the right to file a local initiative is not granted in the constitution. Instead, state statutes governing the establishment ofcities allow the cities to establish
a local initiative process. See RCW 35.22.200 ("The [city] chartermay provide for direct legislationbythe people through the initiative and referendum upon any matter within the scope ofthe powers, functions, or duties ofthe city."). We have expressed great concern about reviewing initiatives priorto enactment. This concernhas been attributed to both "the constitutional preeminence ofthe right ofinitiative," Coppernoll, 155Wn.2d at 297, as well as general concerns that "the courts should not interfere in the electoral and legislative processes, and that the courts should notrender advisory opinions." Seattle Bldg. & Constr. Trades

6Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend No. 91551-2 Councilv. City of Seattle, 94 Wn.2d 740, 746, 620 P.2d 82 (1980). To address these concerns, we strictly limitthe type ofpreelection challenges courts will review. Courts will not consider a challenge to the substantive validity ofa statewide initiative priorto the election. Coppernoll, 155 Wn.2d at 297. Courts will generally review only two types ofchallenges-procedural challenges (such as sufficiency of signatures and ballot titles) and whetherthe subject matter is proper for direct legislation. !d. at 298-99. As we have explained, this second type ofchallenge is typically aimed at local initiatives because ofthe "more limited powers ofinitiatives under city or county charters." Id. at 299. Thus, while "[g]enerally,judicial preelectionreview ofinitiatives and referendums is disfavored
... courts will review local initiatives and referendums to determine, notably, whether 'the proposed law is beyond the scope ofthe initiative power."' City of PortAngeles v. Our Water-Our Choice!, 170 Wn.2d 1, 7, 239 P.3d 589 (2010) (quoting Seattle Bldg. & Constr. Trades Council, 94 Wn.2d at 746). Based on our court's concerns about preelection review ofan initiative, the Court ofAppeals concluded that even in the context ofan allowable challenge to an initiative, petitioners must meet heightened standing requirements. We now clarify that these rules address different concerns and should notbe conflated. "'Thekernel ofthe standing doctrine is that one who is not adversely affected by a statute may not question its validity."' Grant County, 150 Wn.2d at 802 (quoting Walker, 124 Wn.2d

7Spokane Entrepreneurial Ctr. v. SpokaneMoves to Amend No. 91551-2
at 419). In contrast, our limits onpreelection review ensure that we do not address the substantive validity ofa statutebefore it is enacted. Requiring challengers to meet heightened standing requirements does nothing to help the court avoid addressing the substantive validity ofa statute before it is enacted, it only limits the groups ofpeople who can challenge initiatives. Therefore, ifa case involves one ofthe few types of allowablepreelectioninitiative challenges, petitioners shouldhave to meet only our traditional standing requirements. C. Applyingour existingstanding requirements,petitioners hadstanding to challenge the EnvisionInitiative Applying those existing standing requirements, weholdthatpetitioners in this
case have standing to bring their challenge. First, petitioners must show that the interest they are seeking to protect is arguably within the zone ofinterests that the initiative will protect orregulate. As the Court ofAppeals noted, one ofthe petitioners' strongest argumentsregarding this prong relates to the initiative's provision giving the Spokane Riverwaterrights. Two ofthepetitioners actively use the Spokane River-Spokane County (which maintains a sewage treatmentplant on the river) and Avista Corporation (autility company that, among other things, stores water in Lake Coeur d'Alene that might otherwise flow into the Spokane River). The Court ofAppeals found that these would arguablyputthepetitioners within the zone ofinterests regulatedbythe initiativebutthat this was not sufficient inthe context of
apreelection challenge. SpokaneEntrepreneurial Ctr., 2015 WL 410344, at *5. In

8Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend No. 91551-2 light ofour holding that petitioners are not subjectto heightened standing requirements, we hold thatpetitioners are certainly within the zone ofinterests that the initiative protects or regulates. The initiative gives the Spokane River its ownwater rights, including the rights to sustainable recharge, sufficient flows to support native fish, and cleanwater. This protects or regulates the water ofthe Spokane River, whichpetitioners use pursuantto state and federal law. Similarly, housing builders and developers would be withinthe zone ofinterests regulated by the initiative's provision requiring an additional level ofapproval from neighborhoodresidents for all major developments. Petitioners meetthe first standing requirement. Second, petitioners must show injury in fact, economic or otherwise. Ifwe
were to require that a petitioner showthat an injury had already occurred, no challenger could evermeet this requirement for an initiative that had notyet been enacted. However, we have not required challengers to local initiatives to show that
an injury has already occurred. Instead, we have allowed petitioners to showthatthey would suffer an injury in fact ifthe law were to pass. For example, in Grant County,
we held that property owners "clearly" met the "actual injury" standing requirement because they "face different taxrates following annexation." 150 Wn.2d at 802-03. Similarly, inMukilteo Citizensfor Simple Government v. City of Mukilteo, 174 Wn.2d 41, 46, 272 P.3d 227 (2012), we found that an association ofcity residents had

9Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend No. 91551-2 standing to challenge a proposed initiative because the individual members had standing as "Mukilteo residents who are eligible to vote." In this case, petitioners will face injury ifthe initiative passes. The clearest examples arise from the provisions ofthe initiative that (1) assign waterrights that conflict with water rights heldpursuant to state law and (2) create a new zoning approval process. Petitioners include a utility company and a county entity that use the Spokane River pursuantto existing state law who would certainly suffer harm if others were given conflicting waterrights related to the Spokane River. Similarly, the petitionerbuilders and developers would suffer harm by having to go through an additional zoning approval process. Regardless ofwhether these harms might be justified or offset by other societal benefits, these petitioners will suffer harm. Therefore, they meetthe secondrequirement for standing and can bring a challenge to the initiative. 2. The Envision Initiative Exceeds the Scope of LocalInitiative Power Having found that petitioners have standing to challenge the Envision Initiative, the next question is whether the initiative exceeds the scope ofthe local initiative power. As described below, the local initiative power is limited to legislative matters that are withinthe authority ofthe city. In this case, we affirm the trial court's ruling that all four provisions ofthe Envision Initiative were outside the

10Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend No. 91551-2
scope ofthe local initiative power, as they either dealt with nonlegislative matters or
were outside the authority ofthe city. There are multiple limits on the local initiative power, three ofwhich apply in this case. First, "administrative matters, particularly local administrative matters, are not subject to initiative or referendum." Our Water, Our Choice!, 170 Wn.2d at 8. "Generally speaking, a local government action is administrative ifit furthers (or hinders) a planthe local government or some power superior to it has previously adopted." 

### !d. at 10. We have noted that "[d]iscerning whether aproposed initiative is administrative or legislative in nature can be difficult." 

### !d. Inone case, we described the question as "whetherthe proposition is one to make new law or declare a new policy, or merely to carry out and execute law or policy already in existence." Ruano
v. Spellman, 81 Wn.2d 820, 823, 505 P.2d447 (1973). Similarly, a local initiative "is beyond the scope ofthe initiativepower ifthe initiative involves powers granted bythe legislature to the governing body ofa city, rather thanthe city itself." City of Sequim v. Malkasian, 157 Wn.2d 251, 261, 138 P.3d 943 (2006). As this court has explained, a grant ofauthority to the city's legislative body means the city council or mayor, not the electorate. 

### !d. at 265. Finally, the provisions ofa local initiative must be within the scope ofthe authority ofthe city itself. As we have explained, "While the inhabitants ofa municipality may enact legislation governing local affairs, they cannot enact

11Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend No. 91551-2 legislation which conflicts with state law." Seattle Bldg. & Constr. Trades Council, 94 Wn.2d at 7 47. In that case, wereviewed a Seattle initiative that would have halted certain Interstate 90 construction projects. !d. at 742. We struck down the initiative-priorto it being put onthe ballot-holdingthat it dealt with matters that the city had no authority to regulate: "the location and construction ofstate limited
access facilities." Id. at 749. Thetrial court found that all four ofthe Envision Initiative provisions were outside the scope ofthe initiative power. We discuss each provision in turn. The first provision would require any proposed zoning changes involving large developments to be approved by voters in the neighborhood. The trial courtruled that this provision dealt with administrative matters and was thus outside the scope ofthe initiative power. We affirm this ruling. The city ofSpokane has already adopted processes for zoning and development. This provisionwould modify those processes for zoning and development decisions, which falls under our description ofan administrative matter since it deals with carrying out and executing laws orpolicies already in existence. SeeRuano, 81 Wn.2d at 823. The second provision would give the Spokane River the legal right to "exist and flourish," including the rights to sustainable recharge, sufficient flows to support native fish, and cleanwater. CP at 40. Itwould also give Spokane residents the right to access and use water in the city, as well as the right to enforce the Spokane River's

12Spokane Entrepreneurial Ctr. v. SpokaneMoves to Amend No. 91551-2

newrights. Id. Thetrial courtruled that this provision was outside ofthe scope ofthe local initiativepowerbecause it conflicted with state law, which already determines the waterrights for the Spokane River. The trial courtnoted that this provision was particularlyproblematicbecause it dealt with an aquifer that is actually located in Idaho, which is outside ofthe city's authority. The trial court also ruled thatthis provisionwas administrative in naturebecause it would deal with how an existing regulatory scheme is implemented. We affirm. This broadprovision is directly contraryto the waterrights system establishedbythe State and is outside the scope of the city's authority. The thirdprovision attempts to give employees theprotections ofthe Bill of Rights against their employer in the workplace. Thetrial courtruled that this provision was outside ofthe scope ofthe local initiative powerbecause (1) municipalities cannot expand constitutional protections and (2) this provision would conflict with state and federal labor laws. We affirm. Expanding the Bill ofRights to apply to privatepersons and entities, notjust state actors, is a federal constitutional issue that is outside the scope oflocal authority. See Ford v. Logan, 79 Wn.2d 147, 156,483 P.2d 1247 (1971) ("Amendmentofour constitution is not a legislative act andthus is not within the initiative powerreserved to the voters."). The fourth provisionwould strip the legalrights ofany corporation that violated the rights secured inthe charter. This appears to be aresponse to the United

13Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend No. 91551-2 States Supreme Court's decision in Citizens Unitedv. FederalElection Commission, 558 U.S. 310, 342-43, 130 S. Ct. 876, 175 L. Ed. 2d753 (2010), which held that corporations have rights underthe federal constitution. The trial courtruled that this provision was outside ofthe scope ofthe local initiative powerbecause it directly conflicts with federal and state law. We affirm this ruling because municipalities cannot strip constitutional rights from entities and cannotundo decisions ofthe United States Supreme Court. CONCLUSION While preelection challenges to initiatives are disfavored, two types of challenges can be broughtprior to election. Forthose allowable challenges, we continue to apply our existing standing rules. Underthose rules, petitioners had standing to challenge this initiative. As to the underlying issue, we holdthatthe initiative exceeded the scope oflocal legislative authority and thus should not be put
on the ballot.

14Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend. No. 91551-2

WE CONCUR:



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