### FILED 

### JAN. 29,2015 In the Office ofthe ClerkofCourt W A State Court ofAppeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE SPOKANEENTREPRENEURIAL CENTER, ) SPOKANE COUNTY, DOWNTOWN ) SPOKANEPARTNERSHIP, GREATER ) SPOKANE INCORPORATED, THE ) SPOKANE BUILDING OWNERS AND ) MANAGERS ASSOCIATION, SPOKANE ) ASSOCIATION OF REALTORS, THE ) SPOKANE HOME 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, ) ) Respondents, ) 

### v. ) ) SPOKANEMOVES TO AMEND THE ) CONSTITUTION, ENVISION SPOKANE, ) VICKY DALTON, SPOKANE COUNTY ) AUDITOR, in her official capacity, THE ) CITY OF SPOKANE, ) ) Appellants. No. 31887-7-111

UNPUBLISHED OPINION

KORSMO, 

### J.

- This case involves apre-election challenge to a Spokane initiative

measure by a large number ofindividuals and organizations. We concludethat apreelection challengeto a local initiative byprivate citizens can be brought only in very
narrow circumstances and that this initiative does not constitute one ofthose occasions. Therespondents lackthe strong showing ofstanding necessary to prosecutethis case as a pre-election challenge. Wereverse.No. 31887-7-II1 Entrepreneurial v. Spokane Moves
FACTS The respondents are 17 individuals, associations, businesses, and county government who initially brought this action in 2013 againstthe proponents oftwo separate Spokane initiatives. The first ofthose initiatives, sponsored by Spokane Moves to Amend the Constitution (SMAC), soughtto address the Citizens Unitedl decision by prohibiting corporations from lobbying public officials or making contributions to political campaigns. The second initiative was sponsored byEnvision Spokane, the appellant in this action. The Envision initiative soughtto amend the city charter to create or guarantee individual rights.2 Itincludes (I) a Neighborhood Rights provision that requires a neighborhoodvote on zoning changes in conjunction with a "majorcommercial, industrial, orresidential development;" (2) an Environmental Rights provisionthat gives the Spokane River and the Spokane Valley

- Rathdrum Prairie Aquiferrights and grants standing to the city, citizens ofthe city, and groups ofresidents to enforce these rights; (3) a Workplace Rights initiative that adopts the federal and state3 Bill ofRights and purports to extend them to the workplace and also gives unionized workers the rightto collective bargaining; and (4) a Corporate Rights provision that strips corporations of

1 Citizens Unitedv. Federal Election Comm'n, 558 U.S. 3lO, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010). 2 The entire initiative can be found as an appendix to this opinion. 3 The initiative does not explain what constitutes the state Bill ofRights. 2No. 3 I887-7-II1 Entrepreneurial

### v. Spokane Moves

their legal status shouldthey violate any ofthe otherthree provisions ofthe initiative. The initiative also contains a severability clause. Envision had brought the same initiativetothe ballot in 20II, and a much differentversion had appeared onthe ballot in 2009. Both failed with the voters of Spokane, although the 2011 initiative had received 49.1 percent ofthe vote. The SMAC proposal likewise had failed at the ballot in 2011. Both initiatives again qualified for the ballot in 2013. The Spokane CityAttorney prepared a memorandum for the City Council suggestingthatthe initiatives were invalid. The City Attorney also obtained a memorandum from a private law firm reaching the

same conclusion. However, when presentedwith the two initiatives, the City Council on June 3, 2013, declined to take legal action4 and, instead, forwarded the two initiatives by resolution to the Spokane County Auditor for inclusion on the 2013 general election ballot. The respondents filed actions to enjoin both initiatives andto obtain declaratory judgments invalidatingthem. The initiative sponsors, the City ofSpokane, andthe Spokane County Auditorwere named as defendants. Therespondents filed numerous affidavits describing their disagreement with the two initiatives as well as the potential repercussions on their business interests ifthe initiatives were enacted. Envision answered the complaint and challenged standing, the availability ofa declaratoryjudgmentas a

4 The Spokane Municipal Codepermits the City Council, by a five vote supermajority, to challenge an initiative after forwarding it to the ballot. SMC 2.02.11S(C). 3No. 31887-7-111 Entrepreneurial 

### v. Spokane Moves remedy, the merits ofthe complaint, and raised an anti-SLAPP defense. 5 The County Auditor answered the complaint, recognized that she was sued only in her professional capacity, and askedthatthe trial court act rapidly with clear directions since time was of the essence. The City's answer is not part ofthe record ofthis appea1. 6 In response to the request for a preliminary injunction, Envision filed a motion to strike pursuantto RCW 4.24.525 ofthe anti-SLAPP statute. In the course ofits argument, Envision contended, inter alia, that the plaintiffs lacked standing to pursue the injunction. The trial court denied the preliminary injunction that sought to keep both initiatives offthe 2013 ballot, concluding that respondents had not established imminent irreparable harm. The two initiatives then proceeded to a declaratoryjudgmenthearing the following month. Because the two initiatives werejoined for hearing, respondents' memorandum and affidavits addressed both. Respondents' contentions in support ofstanding largely addressed free speech rights imperiled by the SMAC initiative. Clerk's Papers (CP) at 222-29. Envision challengedjusticiability, arguing respondents had no genuine controversy prior to adoption ofthe initiative and had not been harmed simply by placing the issue on the ballot. The County Auditor advised the court that after September 4, 2013, it would be impossible to remove the initiatives from the ballot.

5 Strategic Lawsuits Against Public Participation, RCW 4.24.500-.525. 6 The City'sposition at the declaratoryjudgmentwas to advise the court that ifany initiatives were invalid, they should not be put on the ballot lest city tax money be wasted. 4No. 31887-7-111 Entrepreneurialv. Spokane Moves

Thetrial courtheard argument August 23,2013, and orally ruled at the conclusion ofthe hearing. With respect to the issue ofstanding, the court indicatedthat it stoodby its earlierruling on the injunctionrequest that the parties had standing and that ajusticiable controversy existed.7 The court struck down both the SMAC initiative and theEnvision initiative. The trial court concluded that the entire subject matter ofboth initiatives was outside the scope ofthe initiativepower.8 The County Auditor was directed not to place them on the ballot. Written findings offact and order on declaratoryjudgmentwere entered August 29. Envision promptly appealed to this court. 9 Envision also sought an emergency stay ofthe ruling in an effortto maintain its position onthe ballot. Bywritten order entered September 3,2013, a commissioner ofthis court declined to grantthe stay. In light ofthe fact that the following day was the deadline for inclusion on the ballot, no motionto modify theruling

was filed.

7 Thetranscript ofthe injunction hearing is notpart ofthe record ofthis appeal. While the absence ofthe transcript is understandable in light ofthe issues argued by the parties, that fact complicates our review. 8 The trial court concludedthat the Neighborhood Rights provision was administrative rather than legislative in nature and also attempted to exercise power delegated to a legislative body; the Environmental Rights provision failed because it was administrative rather than legislative in nature, it attempted to exercise powernot granted to cities, and it conflicted with state or federal law; the Workplace Rights provision failed because it exercisedpowernot grantedto cities and conflictedwith state orfederal law; and the Corporate Rights provision conflicted with state or federal law. 9 The ruling onthe SMAC initiative was not appealed. 

### 5No. 3 I887-7-III Entrepreneurial 

### v. Spokane Moves

In its brief, Envision briefly argued that the respondents lacked standing to pursue injunctive relief, butdid have standing to pursue the declaratoryjudgmentaction.to It reiterated that opinion at oral argument. ANALYSIS The sole issue we address is whetherthe respondents had standing to bringthis pre-election challenge. 11 After looking generally at standing andrelated issues governing judicial review ofthe pre-electionprocess, wewill address respondents' standing claims. We conclude that a heightened showing ofstanding is in order for pre-trial election challenges and the respondents have not satisfiedthat standard in this case. Efforts to derail prospective legislation through a lawsuit necessarily bring the judicial and legislative powers into conflict. When the legislative process in question involves the constitutionally or statutorily protected right ofcitizens to initiate legislation, courts have an additional reason to step gingerly. In orderto avoid significant separation ofpowers problems, courts have recognizedboth substantive andprudential limitations

on the exercise of judicial authority when addressing potential legislation. One substantive limitation, applicable to all litigation, is the standing doctrine. In actions under the Uniform Declaratory Judgment Act (UDJA), the Washington Supreme

10 In view ofthe fact thatEnvision prevailed on the injunction and, therefore, is not an aggrieved party within the meaning ofRAP 3.1, we need not discuss standingto pursue the injunction. 11 We express no opinion concerning the trial court's ruling that theEnvision initiative is invalid. 6No. 31887-7-II1 Entrepreneurial v. Spokane Moves

Court "has established a two-part test to determine standing." Grant CountyFire Prot. Dist. 

### v. Moses Lake, 150 Wn.2d 791, 802, 83 P.3d 419 (2004). First, the test asks "whetherthe interest sought to be protected is arguably within the zone ofinterests to be protected orregulated by the statute" in question. 

### Id. (internal quotation and citation omitted), Second, "thetest considers whether the challenged action has caused injury in fact, economic orotherwise, to the party seeking standing." 

### Id. (internal quotations omitted). The issue ofstanding is reviewed de novoby appellate courts. Knight v. City of Yelm, 173 Wn.2d 325,336,267P.3d 973 (2011). Standing is ajurisdictional concern that can bepresented for the first time on appeal. RAP 2.5(a)(I); Int'lAss'n of Firefighters, Local 1789 v. SpokaneAirports, 146 Wn.2d 207,212-13 n.3, 45 P.3d 186 (2002). An appellate court can even raise the issue sua sponte. 12 In re RecallofWest, 156 Wn.2d 244, 248, 126 P.3d 798 (2006); Branson v. Port of Seattle, 152 Wn.2d 862,875 n.6, 101 PJd67 (2004). Justiciability is another substantive doctrine applicable to declaratoryjudgment actions. Broadly speaking,justiciability requires that there be a genuine controversy between two parties. As defined for purposes ofa declaratoryjudgmentaction, justiciabilityrequires (I) an actual, present and existing dispute (2) between parties

12 When the parties do notpresent evidence or argument onthe issue, an appellate court typically will allow the parties the opportunity to briefor otherwise be heard on an issue. RAP 10.l(h). Here, the parties did develop the standing issue in the trial court and discussed it in their briefing in that court andthis one. 7No. 3 I887-7-II1 Entrepreneurial v. Spokane Moves having genuine and opposing interests (3) that are substantial rather than potential or theoretical (4) that a court can conclusively resolve. Coppernoll v. Reed, 155 Wn.2d 290, 300, 119 P.3d 318 (2005). "Justiciability is a threshold inquiry and must be answered in the affirmative before a court may address the merits ofa litigant's claim." 

### ld. Various prudential doctrines also have shaped thejudicial approach to pre-election litigation. Washington courts have long declined to issue advisory opinions. 

### ld. at 297-98; State ex rei. Campbell v. Superior Court of Pierce County, 25 Wash. 271, 274, 65 P. 183 (190I). Courts also have a longhistory ofavoiding political questions sincethose matters may require a court to interfere with the political authority ofanother branch ofgovernment. Brown v. Owen, 165 Wn.2d 706, 719, 206 P.3d 310 (2009); State v. Manussier, 129 Wn.2d 652, 670-71, 921 P.2d 473 (1996) (expresslyrecognizing a challenge to the initiative process as presenting a political question); Parmeter v. Bourne, 8 Wash. 45, 50,35 P. 586 (1894) (declining to consider challenge to election results). Accordingly, courts must also respect, and not interfere with, the legislative process, including the initiative process. Coppernoll, 155 Wn.2d at 296-97. Consideration ofthese prudential doctrines led the Coppernoll courtto authoritatively address the role ofthejudiciary in responding to pre-election challenges to an initiative or referendum. 

### Itconcluded that pre-election challenges could be entertained only when they involved either (1) procedural challenges to placingthe initiative on the ballot or (2) the subject matter ofthe initiative was beyond the initiativepower. 

### ld. at 297. The court



### 8No. 31887-7-111 Entrepreneurialv. Spokane Moves
characterized these as "prudential" exceptions to the non-involvement doctrine. 

### Id. at 301. Two years later, the court nicely summarized its Coppernoll decision: Preelection review ofinitiative measures is highly disfavored. The fundamental reason is that 'the right ofinitiative is nearly as old as our constitution itself, deeply ingrained in our state's history, and widely revered as a powerful check and balance on the otherbranches of government.' Given the preeminence ofthe initiative right, preelection challenges to the substantive validity ofinitiatives are particularly disallowed. Such review, ifengaged in, would involve the court in rendering advisory opinions, would violate ripeness requirements, would undermine the policy ofavoiding unnecessary constitutional questions, and would constitute unwarrantedjudicial meddling with the legislative process. Thus, preelection substantive challenges are notjusticiable. Further, substantive preelection review could unduly infringe on the citizens' right to freely express their views to their elected representatives. We will therefore consider only two types ofchallenges to an initiative prior to an election: that the initiative does not meet the procedural requirements for placement on the ballot (a claim that appellants do not make here) and that the subject matter ofthe initiative is beyond the people's initiative power. Ifan initiative otherwise meets procedural requirements, is legislative in nature, and its 'fundamental and overriding purpose' is within the State's broadpower to enact, it is not subject to preelection review. Thatthe law enacted by an initiative might be unconstitutional does not mean that it is beyondthe power ofthe State to enact. Therefore, a claim that an initiative would be unconstitutional if enacted is not subject to preelection review. Futurewise v. Reed, 161 Wn.2d 407,410-411, 166 P.3d 708 (2007) (internal citations and footnote omitted). "Standing requirements tend to overlap the requirements forjusticiability under the UDJA." Am. Legion Post v. Dep'to/Health, 164 Wn.2d 570,593, 192 P.3d 306 (2008). This observation highlights the heart ofthe problempresented in this case. UDJA standing

9

### No. 31887-7-111 Entrepreneurial

### v. Spokane Moves

andjusticiability inthe pre-election context bothrequire thatthere be an existing actual dispute that is substantial rather thanpotential. Coppernoll, 155 Wn.2d at 300. Standing typically is liberally granted in UDJA actions. However, the notedprudential concerns require courts to narrowly construe the scope ofthe UDJA in pre-election challenges, putting the liberal standing oftypical declaratoryjudgmentcases and the limited justiciability ofpre-election challenges in tension, ifnot in conflict. With these issues in mind, it finally is time to tum to the standingproblem in this case. In their motion for declaratoryjudgment, the plaintiffs claimed standing to challenge the Envision initiative under the zone ofinterests test in this manner: TheEnvision initiative seeks to regulate zoning, riverrights, employment relationships, and corporate rights, each ofwhich affects Plaintiffs' interests. Plaintiffbusiness associations' and owners' abilities to continue or launch developmentprojects will beregulated by the zoningprovision, which purports to overturn the process for obtaining zoning variances

.... The initiative'sriver rights provisionwill impairthe present sanitary sewage collection, treatment, and disposal system operations ofPlaintiffSpokane County, and thehydroelectricpower operations ofPlaintiffAvista

.... The workplaceprovisionwill preventPlaintiffs from enforcing workplace policies and from communicating effectively withtheir employees

.... CP at 225-26 (internal citations to supporting documents omitted). Theplaintiffs also claimedthat the public importance ofthe two initiativesjustified standing. CP at 224, 229. In terms ofperceived injury from the initiatives, the plaintiffs primarily stressed an infringement on free speech and communication. CP at 226-29.

10No. 31887-7-111 Entrepreneurialv. Spokane Moves Notably, the plaintiffs did not argue to the trial court their standing to challenge the Corporate Rights provision. Their remaining assertions ofinterestvaguely allege fear of potential litigation. The best developed arguments involved the effect ofthe Environmental Rights provision on use ofthe Spokane River. 13 Spokane County's interest in the Environmental Rights provision stems from its assertion that the initiative will "impair" its sewage collection and treatment operations. Its supporting declaration shows that it maintains a sewage treatmentplantonthe Spokane River andthatpassage ofthe Envision initiative might increase costs by subjecting the County to additional litigation. Avista Corporation made similar claims, citing the potential for litigation as one ofits

concerns about the Environmental Rights provision. 14 It gave as an example the possibility that it mightbe sued overthe storage ofwater in Lake Coeur d'Alene, as required by its federal licensing agreement, by someone who prefers a stronger river flow. Liberally construed, the fact that both Spokane County and Avistause the Spokane River might "arguably"putthem "withinthe zone ofinterests" ofthe Environmental Rights provision since it addresses the same river. However, in the context ofa pre-election challenge, we think that more should be required than simply

13 Forthis reason, wewill only address the standing claims involving the Environmental Rights provision. Other assertions included contentions that the Workplace Rights provision would make it impossible for employers to talk to employees oreven more generalized complaintsthat the initiatives were bad for business. 14 Avista was the only plaintiff/respondent to assert standing with respect to all four provisions ofthe Envision initiative. 11No. 31887-7-111 Entrepreneurialv. Spokane Moves
the fact that those plaintiffs can hypothesize someone asserting a claim against them on behalfofthe river system. The initiative must, in our opinion, more directly relate to Spokane County or Avista's use ofthe river. 15 An example ofa directrelationship is found inAm. Traffic Solutions v. Bellingham, 163 Wn. App. 427, 260 P.3d 245 (2011), review denied, 173 Wn.2d 1029 (2012). There the City ofBellingham had entered into a contract with American Traffic Solutions (ATS) to install an automatic traffic safety camera system ("red light cameras"). Id. at 430. Opponents filed an initiative to prohibituse ofthe cameras and ATS sued to block the initiative from the ballot. 

### Id. at 430-31. On appeal, the opponents contended ATS lacked standing to bring the action, thus rendering the matter non-justiciable. Id. at 432. Division One ofthis court concludedthatbecause ATS was "aparty to the contract," it "clearly"had standing to challengethe initiative. Id. at 433. In ourview, ATS was in the center ofthe

zone ofinterests since it had a contract with the city that would be affected ifthe initiative passed. This aspect ofstanding was satisfied. The other aspect ofstanding is whether the party has suffered an "injury in fact, economic or otherwise." Grant County, 150 Wn.2d at 802. Here, while both Avista and Spokane County express a fear ofpotential litigation, they can point to no direct harm

15 A different situation would bepresented ifthe initiative had, for instance, expressly attempted to authorize litigation concerning waterreturned to the river following use for hydroelectric generation or sewage treatment. Those examples would specifically target current usage and bring Avista and Spokane County squarely within the zone ofinterests ofthe initiative. 12No. 31887-7-111 Entrepreneurial v. Spokane Moves
from the initiative. There is no existing projectthat is named in the initiative or that specifically would be impacted by the broad and very general terms ofthe initiative. We believe a more concrete showing oflikely harm is necessary to establish an injury in fact that wouldjustify apre-election challenge. Once again,American Traffic provides an example. There an existing contract would be impaired immediately upon passage ofthe initiative, leaving very little time in which to seek relief. That is a sufficiently direct injury to supply standing. In contrast here, post-election litigation still would be a practical remedy for Spokane County or Avista were the Envision initiative to pass. Either could bring apostelection declaratory action or defend a suit against it on the basis ofthe initiative's invalidity. Until the initiative passes, any harm to the respondents is necessarily speculative and would be dependent upon someone trying to use the initiative against them. This is too indefinite tojustifypre-electionjudicial intervention. None ofthe existingpre-election standing cases require a different result. One such case is Mukilteo Citizens v. City a/Mukilteo, 174 Wn.2d 41,272 P.3d 227 (2012). That case involved another challenge by one group ofcity residents to an anti-automatic traffic safety camera initiative offered by another group ofcity residents. 

### Id. at 43-44. The trial court denied the opponents' request for an injunction, the initiative was enacted at the ensuing election, and the opponents appealed. 

### Id. at 44-46. The initiative proponents challenged the standing ofthe opponents, who were acting as an association.

13No. 31887-7-111 Entrepreneurial v. Spokane Moves
Id. at 46. The court determined that there was associational standing. Id. The first prong ofthe test for associational standing is whether the individual members ofthe group have individual standing. 16 Id. In answering that question in Mukilteo, the court stated that the "members have standing to sue in their own right as it consists ofMukilteo residents who

are eligible to vote." Id. We do not believe that the Mukilteo court was conferring standing to challenge an initiative on any person who could vote on the initiative. In addition to being a roadmap to detouring every local initiative to the courtroom, it simply was not the issue before the court inMukilteo. The court conducted no analysis ofthe issue ofindividual standing in accordance with its traditional zone ofinterest test and cited no relevant authority in support ofits statement. Instead, the statement seems simply to indicate that the association's members had standing and, therefore, the association could act in their behest. Ifthe court meant more, it will undoubtedly develop its reasoning in terms of individual standing in a future case. Most other cases ofpre-election standing involve actions brought by the local government against proponents ofan initiative. E.g., City of Longview v. Wallin, 174 Wn. App. 763, 301 P.3d 45 (2013) (city blocked red light camera initiative). The

16 

### It is for this reason we need not address standing claimed by the business association respondents. Their membership cannot establish individual standing, so the association cannot. We do not address whether the associations' participation in this lawsuit was "germane to the purpose" ofeach association. Am. Legion, 164 Wn.2d at 595-96. 14No. 3 I887-7-III Entrepreneurial v. Spokane Moves
effected government typically will have standing to challenge an initiative due to the expense ofholding the election and the need to defend the initiative should it pass. In

some private party cases, our courts have rejected pre-election challenges without addressing the party's standing. E.g., Futurewise, 161 Wn.2d at 407 (determining challenges were substantive and could not be consideredpre-election); Coppernoll, 155 Wn.2d at 290 (ruling that initiative did not exceed scope oflegislative power). In still other cases, the basis for private party standing was not explained. E.g., Seattle Bldg. and Constr. Trades Council v. Seattle, 94 Wn.2d 740,620 P.2d 82 (1980); Fordv. Logan, 79 Wn.2d 147,483 P.2d 1247 (1971). One basis that might have applied in Seattle Building and in Fordis public interest standing, an argument also raised by the respondents in their briefing to the trial court. 17 In general, public interest standing is granted when the case presents an issue ofgreat significance that needs court resolution. Farris v. Munro, 99 Wn.2d 326, 330, 662 P.2d 821 (1983) (upholding standing to challenge constitutionality ofstate lottery due to tax importance ofthe lottery). Citing the proliferation ofred light traffic camera challenges,

17 Although not raised in the trial court briefing, several ofthe respondents claimed taxpayer standing in their declarations. However, taxpayer standing is not appropriate unless the "properpublic official," typically the Attorney General, first declines a request to bring suit on behalfofall taxpayers. Farris v. Munro, 99 Wn.2d at 329. Accord, Friends o/North Spokane CountyParks v. Spokane County,

_ Wn. App. _, 336 P.3d 632,640 (2014). There was no such request in this case and we, therefore, do not consider this as a case oftaxpayer standing. 15No. 31887-7-III Entrepreneurialv. Spokane Moves
Division One stated that public interest standing was an alternative basis for finding standing inAmerican Traffic Solutions. Am. Traffic Solutions, 163 Wn. App. at 433. We conclude this is not a case for grantingpublic importance standing. While the Envision initiative is recurring in Spokane, there do not appear to have been several similar initiatives in other localjurisdictions nor any evidence suggesting that this initiative presents questions ofconcern outside ofthe Spokane area. Thus, the situation presented byAmerican Traffic Solutions is not involved in this case. Similarly, we are not convinced that a pending local initiative is equivalent to a voter approved state constitutional provision. The critical fact in Farris was that the constitutional provision had become law and was not merely a potential law. Fewproposed laws present an issue ofpublic importance priorto adoption. While there certainly may be local initiatives that present questions ofpublic importance 18 priorto adoption by the voters, this is not one of those cases. 19 Accordingly, we conclude that the respondents lacked standing to prosecute this pre-election challenge. They were not so clearly situated in the center ofthe zone of interests, nor as certainly to suffer immediate harm from adoption ofthe initiative, that

18 In contrast, an effort to rescind a county's charter by initiative does provide an example ofa question ofpublic importance. See Ford, 79 Wn.2d at 157. 19 While there may have been several reasons for its decision, the failure ofthe Spokane City Council to challenge the initiative despite the legal advice ofthe City Attorney, can also be viewed as evidence that the initiative did not present an issue of public importance. Local governments are the local policy making bodies and have a betterview than thejudiciary concerning which issues are ofpublic importance. 16

### No. 31887-7-111 Entrepreneurialv. Spokane Moves they have demonstrated standing to pursue this action. Similarly, the public importance standing doctrine does not extendto this potential local lawpriorto its adoption by the voters. There thus was nojusticiable question presented. This case, however, does contrast nicely with the situation presented by the SMAC initiative. As previously noted, that initiative attempted to impose limits on corporations by controlling their ability to contribute to elections or lobby public officials. Since the thrust ofthe initiative was to limit corporate speech as defined in part by the Citizens Uniteddecision, the corporate respondents in this case-andthose who dealt with them-were easily in the center ofthe zone ofinterests ofthat initiative. Additionally, those respondents faced an immediate harm from the initiative in the form ofrestriction

on free speech rights that could nothavebeen timely parriedby a post-election lawsuit. There was standing to challenge the SMAC initiative.20 The plaintiffs were not similarly situatedwithrespect to the Envision initiative. In summary, we conclude that, in order for aprivateparty to bring apre-election challenge to a local initiative, the party must establish both that it is in the center ofthe

zone ofinterests affected by the initiative andthat the certainty ofimmediate specific harm to thatparty is such that a post-election lawsuit is not a practical remedy for the party. In the absence ofthis strong showing ofstanding, the pre-election challenge is not

20 The ease with which the respondents could demonstrate standing in the SMAC case may be the basis why the standing ruling is not as well-developed in Envision. In a sense, the Envision caserode on the coattails ofthe SMAC case in the trial court, but cannot do so here. 

### 17

### No. 31887-7-111 Entrepreneurial v. Spokane Moves justiciable. Speculative standing based on fears about how a provision, ifadopted by voters, might potentially be used in some future litigation is too unspecific a fear to justifyjudicial intervention in the electoral process. A court would have to give an advisory opinion on a political question-two practices that courts generally attempt to avoid. The need for a strong showing ofstanding is highlighted by cases-such as this one-whereboth parties now preferjudicial approval for theirposition. The respondents understandably want to avoid yet a third election campaign and putthis matter to rest for good. Envision, having been denied a place onthe 

### 2013 ballot, equally understandably

now would like to have a courtprospectively inform the electorate that its initiative, in whole or in part, is valid. These desires should not unnecessarily draw thejudiciary into deciding apolitical question that might not actually present itselfifthe voters again decline to adopt the Envision initiative. Instead, the prudential concerns that limit justiciability should also apply to ensure that would-be plaintiffs have undisputable standing to raise their challenge before they are allowed to derail an election. The City ofSpokane had standing to challenge the Envision initiative ifit had desired to do so. However, respondents could not obtain that same standing simply by making the same arguments that the City could have presented.21 There needed to be a

21 We do not opine on the respondents' post-election standing otherthan to note that the standards ofpre-election standing do not apply. 

### 18No. 31887-7-111 Entrepreneurialv. Spokane Moves showing that the respondents would truly be affected by the initiative and that the harm from the initiative would require immediate court intervention. That has not happened here. The order granting the declaratoryjudgment against Envision is reversed and this matter is remanded for the City ofSpokane to place the initiative on the next available ballot in accordance with its June 3, 2013 resolution. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

# ~lxorsmo, J. WE CONCUR:

Lawrence-Berre

19

### APPENDIX A CITY CHARTERAMENDMENT ESTABLISHING A COMMUNITY BILL OF RIGHTS Whereas, the people ofthe City ofSpokane wish to build a healthy, sustainable, and democratic community; Whereas, the people ofthe City ofSpokane wish to build that community by securingthe rights, freedoms, and well-being ofresidents, workers, neighborhoods, and the natural environment; Whereas, the people ofthe City ofSpokane recognize theirresponsibility to be well-informed and involved citizens ofthe City ofSpokane, to be stewards ofthe natural environment, and to assume the responsibility for enforcingtheirrights and the rights ofothers; Whereas, the people ofthe City ofSpokane have adopted a Comprehensive Plan for the City of Spokane, which envisions the building ofa healthy, sustainable, and democratic community, but the people recognize that the Comprehensive Plan is not legally enforceable inmany important respects; Whereas, the people ofthe City ofSpokane wish to create a Community Bill ofRights which would, amongother goals, establishlegally enforceable rights and duties to implementthe vision laid out in the Comprehensive Plan; and Whereas, the people ofthe City ofSpokane wish to create a Community Bill ofRights, which would elevate the rights ofthe community overthose ofcorporations. NOW, THEREFORE, THE PEOPLE OFTHE CITY OF SPOKANE HEREBY ORDAIN: Section 1. A new sectionbe added to the beginning ofthe Charter ofthe City ofSpokane, which shall be known as the "CommunityBill ofRights," and which provides as follows: FIRST, NEIGHBORHOOD RESIDENTS HAVE THE RIGHTTO DETERMINEMAJORDEVELOPMENT IN THEIRNEIGHBORHOODS. Neighborhood majorities shall have the right to approve all zoning changesproposed for theirneighborhood involving major commercial, industrial, or residential development. Neighborhood majorities shall meanthe majority ofregistered voters residing in an official city neighborhood who voted in the last general election. Proposedcommercial or industrial development shall be deemed major ifit exceeds ten thousand square feet, andproposed residential development shall be deemed major ifitexceeds twenty units and its construction is not financed by governmental funds allocated for low-income housing. It shall bethe responsibility ofthe proposer ofthe zoning change to acquire the approval ofthe neighborhood majority, and the zoning change shall not be effective without it. Neighborhood majorities shall also have a rightto reject major commercial, industrial, orresidential development which is incompatible with the provisions ofthe City's Comprehensive Plan orthis Charter. Approval ofa zoning change orrejection ofproposed development under this section shall become effective upon the submission ofa petition to the City containingthe valid signatures ofneighborhood majorities approving the zoning change orrejecting the proposed development, in apetition generally conforming to the referendum provisions ofthe Spokane municipal code. SECOND, THERIGHTTO A HEALTHY SPOKANE RIVER AND AQUIFER. The Spokane River, ittributaries, and the Spokane Valley-Rathdrum Prairie Aquifer possess fundamental and inalienable rights to exist and flourish, which shall include the right to sustainablerecharge, flows sufficientto protect native fish habitat, and clean water. All residents ofSpokane possess fundamental and inalienablerights to sustainably access, use, consume, and preserve water drawn from natural cycles thatprovide water necessary to sustain life within the City. The City ofSpokane, and any resident ofthe City orgroup ofresidents, have standing to enforce andprotectthese rights. THIRD, EMPLOYEES HAVE THE RIGHT TO CONSTITUTIONAL PROTECTIONS IN THE WORKPLACE. Employees shall possess United States and Washington Bill of Rights' constitutional protections in every workplace within the City of Spokane, and workers in unionized workplaces shall possess the rightto collective bargaining. FOURTH, CORPORATE POWERS SHALL BE SUBORDINATE TO PEOPLE'S RIGHTS. Corporations and other business entities which violate the rights secured by this Charter shall not be deemed to be "persons," nor possess any other legal rights, privileges, powers, or protections which would interfere with the enforcement ofrights enumerated by this Charter. Section 2. Effective Date ofAmendment to City Charter. Ifapproved by the electors, this City Charter amendment shall take effect and be in full force upon issuance of the certificate of election by the Spokane County Auditor's Office. Section 3. All ordinances, resolutions, motions, or orders in conflict with this City Charter amendment are hereby repealed to the extent ofsuch conflict. Ifany part or provision ofthese Charter provisions is held invalid, the remainder ofthese provisions shall not be affected by such a holding and shall continue in full force and effect.