FILED 

JAN. 29,2015 

In the Office of the Clerk of Court 

W A State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

SPOKANE ENTREPRENEURIAL CENTER, ) 

SPOKANE COUNTY, DOWNTOWN ) 

SPOKANE PARTNERSHIP, GREATER ) 

SPOKANE INCORPORATED, THE ) 

SPOKANE BUILDING OWNERS AND ) 

MANAGERS ASSOCIATION, SPOKANE ) 

ASSOCIATION OF REAL TORS, THE ) 

SPOKANE HOME BUILDERS ) 

ASSOCIATION, THE INLAND PACIFIC ) 

CHAPTER OF ASSOCIATED BUILDERS ) 

AND CONTRACTORS, A VISTA ) 

CORPORATION, PEARSON PACKAGING ) 

SYSTEMS, WILLIAM BUTLER, NEIL ) 

MULLER, STEVE SALVATORI, NANCY ) 

MCLAUGHLIN, MICHAEL ALLEN, and ) 

TOM POWER, ) 

) Respondents, ) 

v. 	 ) 

) 

SPOKANE MOVES 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UNPUBLISHED OPINION 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 a pre-election challenge to a Spokane initiative 

measure by a large number ofindividuals and organizations. We conclude that a preelection challenge to a local initiative by private citizens can be brought only in very 

narrow circumstances and that this initiative does not constitute one ofthose occasions. 

The respondents lack the strong showing ofstanding necessary to prosecute this case as a 

pre-election challenge. We reverse. 
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 against the proponents of two 

separate Spokane initiatives. The first of those initiatives, sponsored by Spokane Moves 

to Amend the Constitution (SMAC), sought to address the Citizens Unitedl decision by 

prohibiting corporations from lobbying public officials or making contributions to 

political campaigns. The second initiative was sponsored by Envision Spokane, the 

appellant in this action. 

The Envision initiative sought to amend the city charter to create or guarantee 

individual rights.2 It includes (I) a Neighborhood Rights provision that requires a 

neighborhood vote on zoning changes in conjunction with a "major commercial, 

industrial, or residential development;" (2) an Environmental Rights provision that gives 

the Spokane River and the Spokane Valley - Rathdrum Prairie Aquifer rights and grants 

standing to the city, citizens of the city, and groups of residents to enforce these rights; 

(3) a Workplace Rights initiative that adopts the federal and state3 Bill of Rights and 

purports to extend them to the workplace and also gives unionized workers the right to 

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 of Rights. 

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No. 3 I 887-7-II1 

Entrepreneurial v. Spokane Moves 

their legal status should they violate any of the other three provisions ofthe initiative. 

The initiative also contains a severability clause. 

Envision had brought the same initiative to the ballot in 20 II, and a much 

different version had appeared on the 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 City Attorney 

prepared a memorandum for the City Council suggesting that the initiatives were invalid. 

The City Attorney also obtained a memorandum from a private law firm reaching the 

same conclusion. However, when presented with 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 and to obtain declaratory 

judgments invalidating them. The initiative sponsors, the City of Spokane, and the 

Spokane County Auditor were named as defendants. The respondents filed numerous 

affidavits describing their disagreement with the two initiatives as well as the potential 

repercussions on their business interests if the initiatives were enacted. Envision answered 

the complaint and challenged standing, the availability of a declaratory judgment as a 

4 The Spokane Municipal Code permits the City Council, by a five vote 

supermajority, to challenge an initiative after forwarding it to the ballot. SMC 2.02.11 S(C). 

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Entrepreneurial v. Spokane Moves 

remedy, the merits of the 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 asked that the trial court act rapidly with clear directions since time was of 

the essence. The City's answer is not part ofthe record of this appea1.6 

In response to the request for a preliminary injunction, Envision filed a motion to 

strike pursuant to RCW 4.24.525 ofthe anti-SLAPP statute. In the course of its 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 declaratory judgment hearing the following month. 

Because the two initiatives were joined for hearing, respondents' memorandum and 

affidavits addressed both. Respondents' contentions in support of standing largely 

addressed free speech rights imperiled by the SMAC initiative. Clerk's Papers (CP) at 

222-29. Envision challenged justiciability, arguing respondents had no genuine 

controversy prior to adoption of the 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's position at the declaratory judgment was to advise the court that if any 

initiatives were invalid, they should not be put on the ballot lest city tax money be wasted. 

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Entrepreneurial v. Spokane Moves 

The trial court heard argument August 23,2013, and orally ruled at the conclusion 

ofthe hearing. With respect to the issue of standing, the court indicated that it stood by its 

earlier ruling on the injunction request that the parties had standing and that a justiciable 

controversy existed.7 The court struck down both the SMAC initiative and the Envision 

initiative. The trial court concluded that the entire subject matter of both initiatives was 

outside the scope ofthe initiative power.8 The County Auditor was directed not to place 

them on the ballot. 

Written findings of fact and order on declaratory judgment were entered August 29. 

Envision promptly appealed to this court. 9 Envision also sought an emergency stay ofthe 

ruling in an effort to maintain its position on the ballot. By written order entered September 

3,2013, a commissioner ofthis court declined to grant the stay. In light of the fact that the 

following day was the deadline for inclusion on the ballot, no motion to modify the ruling 

was filed. 

7 The transcript of the injunction hearing is not part ofthe record ofthis appeal. 

While the absence ofthe transcript is understandable in light of the issues argued by the 

parties, that fact complicates our review. 

8 The trial court concluded that 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 power not granted 

to cities, and it conflicted with state or federal law; the Workplace Rights provision failed 

because it exercised power not granted to cities and conflicted with state or federal law; 

and the Corporate Rights provision conflicted with state or federal law. 

9 The ruling on the SMAC initiative was not appealed. 

5 
No. 3 I 887-7-III 

Entrepreneurial v. Spokane Moves 

In its brief, Envision briefly argued that the respondents lacked standing to pursue 

injunctive relief, but did have standing to pursue the declaratory judgment action. to It 

reiterated that opinion at oral argument. 

ANALYSIS 

The sole issue we address is whether the respondents had standing to bring this 

pre-election challenge. 11 After looking generally at standing and related issues governing 

judicial review of the pre-election process, we will address respondents' standing claims. 

We conclude that a heightened showing of standing is in order for pre-trial election 

challenges and the respondents have not satisfied that 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 of citizens to initiate legislation, 

courts have an additional reason to step gingerly. In order to avoid significant separation 

of powers problems, courts have recognized both substantive and prudential limitations 

on the exercise ofjudicial 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 of the fact that Envision prevailed on the injunction and, therefore, is 

not an aggrieved party within the meaning of RAP 3.1, we need not discuss standing to 

pursue the injunction. 

11 We express no opinion concerning the trial court's ruling that the Envision 

initiative is invalid. 

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Entrepreneurial v. Spokane Moves 

Court "has established a two-part test to determine standing." Grant County Fire Prot. 

Dist. v. Moses Lake, 150 Wn.2d 791, 802, 83 P.3d 419 (2004). First, the test asks 

"whether the interest sought to be protected is arguably within the zone of interests to be 

protected or regulated by the statute" in question. Id. (internal quotation and citation 

omitted), Second, "the test considers whether the challenged action has caused injury in 

fact, economic or otherwise, to the party seeking standing." Id. (internal quotations 

omitted). 

The issue ofstanding is reviewed de novo by appellate courts. Knight v. City ofYelm, 

173 Wn.2d 325,336,267 P.3d 973 (2011). Standing is a jurisdictional concern that can 

be presented for the first time on appeal. RAP 2.5(a)(I); Int'l Ass'n ofFirefighters, Local 

1789 v. Spokane Airports, 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 Recall ofWest, 156 Wn.2d 244, 248, 

126 P.3d 798 (2006); Branson v. Port ofSeattle, 152 Wn.2d 862,875 n.6, 101 PJd 67 

(2004). 

Justiciability is another substantive doctrine applicable to declaratory judgment 

actions. Broadly speaking, justiciability requires that there be a genuine controversy 

between two parties. As defined for purposes of a declaratory judgment action, 

justiciability requires (I) an actual, present and existing dispute (2) between parties 

12 When the parties do not present evidence or argument on the issue, an appellate 

court typically will allow the parties the opportunity to brief or 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 and this one. 

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No. 3 I 887-7-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 of a litigant's claim." ld. 

Various prudential doctrines also have shaped the judicial 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 ofPierce County, 25 Wash. 271, 274, 65 P. 183 

(190 I). Courts also have a long history of avoiding political questions since those matters 

may require a court to interfere with the political authority of another branch of government. 

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) (expressly recognizing 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 of these prudential doctrines led the Coppernoll court to authoritatively 

address the role of the judiciary in responding to pre-election challenges to an initiative or 

referendum. It concluded that pre-election challenges could be entertained only when they 

involved either (1) procedural challenges to placing the initiative on the ballot or (2) the 

subject matter of the initiative was beyond the initiative power. ld. at 297. The court 

8 

No. 31887-7-111 

Entrepreneurial v. 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 of initiative measures is highly disfavored. The 

fundamental reason is that 'the right of initiative 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 other branches of 

government.' Given the preeminence of the initiative right, preelection 

challenges to the substantive validity of initiatives are particularly 

disallowed. Such review, if engaged in, would involve the court in 

rendering advisory opinions, would violate ripeness requirements, would 

undermine the policy of avoiding unnecessary constitutional questions, and 

would constitute unwarranted judicial meddling with the legislative 

process. Thus, preelection substantive challenges are not justiciable. 

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 of challenges 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 of the initiative is beyond the 

people's initiative power. If an initiative otherwise meets procedural 

requirements, is legislative in nature, and its 'fundamental and overriding 

purpose' is within the State's broad power to enact, it is not subject to 

preelection review. That the law enacted by an initiative might be 

unconstitutional does not mean that it is beyond the power of the 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 for justiciability under the 

UDJA." Am. Legion Post v. Dep't o/Health, 164 Wn.2d 570,593, 192 P.3d 306 (2008). 

This observation highlights the heart of the problem presented in this case. UDJA standing 

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No. 31887-7-111 

Entrepreneurial v. Spokane Moves 

and justiciability in the pre-election context both require that there be an existing actual 

dispute that is substantial rather than potential. Coppernoll, 155 Wn.2d at 300. Standing 

typically is liberally granted in UDJA actions. However, the noted prudential concerns 

require courts to narrowly construe the scope of the UDJA in pre-election challenges, 

putting the liberal standing of typical declaratory judgment cases and the limited 

justiciability ofpre-election challenges in tension, if not in conflict. With these issues in 

mind, it finally is time to tum to the standing problem in this case. 

In their motion for declaratory judgment, the plaintiffs claimed standing to challenge 

the Envision initiative under the zone of interests test in this manner: 

The Envision initiative seeks to regulate zoning, river rights, employment 

relationships, and corporate rights, each of which affects Plaintiffs' interests. 

Plaintiff business associations' and owners' abilities to continue or launch 

development projects will be regulated by the zoning provision, which 

purports to overturn the process for obtaining zoning variances .... 

The initiative's river rights provision will impair the present sanitary sewage 

collection, treatment, and disposal system operations of Plaintiff Spokane 

County, and the hydroelectric power operations of Plaintiff Avista .... 

The workplace provision will prevent Plaintiffs from enforcing workplace 

policies and from communicating effectively with their employees .... 

CP at 225-26 (internal citations to supporting documents omitted). The plaintiffs also 

claimed that the public importance ofthe two initiatives justified 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. 

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Entrepreneurial v. Spokane Moves 

Notably, the plaintiffs did not argue to the trial court their standing to challenge the 

Corporate Rights provision. Their remaining assertions of interest vaguely allege fear of 

potential litigation. The best developed arguments involved the effect of the 

Environmental Rights provision on use of the 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 treatment plant on the Spokane River and that passage of the 

Envision initiative might increase costs by subjecting the County to additional litigation. 

Avista Corporation made similar claims, citing the potential for litigation as one of its 

concerns about the Environmental Rights provision. 14 It gave as an example the possibility 

that it might be sued over the storage of water 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 A vista use the 

Spokane River might "arguably" put them "within the zone of interests" of the 

Environmental Rights provision since it addresses the same river. However, in the 

context of a pre-election challenge, we think that more should be required than simply 

13 For this reason, we will 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 

or even more generalized complaints that the initiatives were bad for business. 

14 A vista was the only plaintiff/respondent to assert standing with respect to all 

four provisions of the Envision initiative. 

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Entrepreneurial v. Spokane Moves 

the fact that those plaintiffs can hypothesize someone asserting a claim against them on 

behalf of the river system. The initiative must, in our opinion, more directly relate to 

Spokane County or Avista's use of the river. 15 

An example of a direct relationship is found in Am. 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 prohibit use of the cameras and A TS 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 of this court concluded that because ATS was "a party to the contract," it "clearly" had 

standing to challenge the initiative. Id. at 433. In our view, ATS was in the center of the 

zone of interests since it had a contract with the city that would be affected if the initiative 

passed. This aspect of standing was satisfied. 

The other aspect of standing 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 be presented if the initiative had, for instance, 

expressly attempted to authorize litigation concerning water returned 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 of interests of the initiative. 

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Entrepreneurial v. Spokane Moves 

from the initiative. There is no existing project that is named in the initiative or that 

specifically would be impacted by the broad and very general terms of the initiative. We 

believe a more concrete showing of likely harm is necessary to establish an injury in fact 

that would justify a pre-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 a postelection 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 to justify pre-election judicial intervention. 

None of the existing pre-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 of city residents to an anti-automatic 

traffic safety camera initiative offered by another group of city 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 of the opponents, who were acting as an association. 

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Id. at 46. The court determined that there was associational standing. Id. The first prong 

of the test for associational standing is whether the individual members of the 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 of Mukilteo 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 in Mukilteo. The court conducted no analysis of the issue of individual standing in 

accordance with its traditional zone of interest test and cited no relevant authority in 

support of its statement. Instead, the statement seems simply to indicate that the 

association's members had standing and, therefore, the association could act in their 

behest. If the court meant more, it will undoubtedly develop its reasoning in terms of 

individual standing in a future case. 

Most other cases of pre-election standing involve actions brought by the local 

government against proponents of an initiative. E.g., City ofLongview 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" of each association. Am. Legion, 164 Wn.2d at 

595-96. 

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No. 3 I 887-7-III 

Entrepreneurial v. Spokane Moves 

effected government typically will have standing to challenge an initiative due to the 

expense of holding 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 considered pre-election); Coppernoll, 

155 Wn.2d at 290 (ruling that initiative did not exceed scope of legislative 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); Ford v. 

Logan, 79 Wn.2d 147,483 P.2d 1247 (1971). 

One basis that might have applied in Seattle Building and in Ford is 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 of great 

significance that needs court resolution. Farris v. Munro, 99 Wn.2d 326, 330, 662 P.2d 

821 (1983) (upholding standing to challenge constitutionality of state lottery due to tax 

importance of the lottery). Citing the proliferation of red light traffic camera challenges, 

17 Although not raised in the trial court briefing, several of the respondents claimed 

taxpayer standing in their declarations. However, taxpayer standing is not appropriate 

unless the "proper public official," typically the Attorney General, first declines a request 

to bring suit on behalf of all taxpayers. Farris v. Munro, 99 Wn.2d at 329. Accord, 

Friends o/North Spokane County Parks 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 of taxpayer standing. 

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Division One stated that public interest standing was an alternative basis for finding 

standing in American Traffic Solutions. Am. Traffic Solutions, 163 Wn. App. at 433. 

We conclude this is not a case for granting public importance standing. While the 

Envision initiative is recurring in Spokane, there do not appear to have been several 

similar initiatives in other local jurisdictions nor any evidence suggesting that this 

initiative presents questions of concern outside of the Spokane area. Thus, the situation 

presented by American 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. Few proposed laws present an issue 

of public importance prior to adoption. While there certainly may be local initiatives that 

present questions of public importance 18 prior to 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 of the zone of 

interests, nor as certainly to suffer immediate harm from adoption of the initiative, that 

18 In contrast, an effort to rescind a county's charter by initiative does provide an 

example of a question of public importance. See Ford, 79 Wn.2d at 157. 

19 While there may have been several reasons for its decision, the failure of the 

Spokane City Council to challenge the initiative despite the legal advice of the 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 

better view than the judiciary concerning which issues are of public importance. 

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they have demonstrated standing to pursue this action. Similarly, the public importance 

standing doctrine does not extend to this potential local law prior to its adoption by the 

voters. There thus was no justiciable 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 of the initiative was to limit corporate speech as defined in part by the Citizens 

United decision, the corporate respondents in this case-and those who dealt with 

them-were easily in the center of the zone of interests of that initiative. Additionally, 

those respondents faced an immediate harm from the initiative in the form of restriction 

on free speech rights that could not have been timely parried by a post-election lawsuit. 

There was standing to challenge the SMAC initiative.20 The plaintiffs were not similarly 

situated with respect to the Envision initiative. 

In summary, we conclude that, in order for a private party to bring a pre-election 

challenge to a local initiative, the party must establish both that it is in the center ofthe 

zone of interests affected by the initiative and that the certainty of immediate specific 

harm to that party is such that a post-election lawsuit is not a practical remedy for the 

party. In the absence of this strong showing of standing, 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 case rode on the coattails ofthe SMAC case in the trial court, but 

cannot do so here. 

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justiciable. Speculative standing based on fears about how a provision, if adopted by 

voters, might potentially be used in some future litigation is too unspecific a fear to 

justify judicial 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 of standing is highlighted by cases-such as this 

one-where both parties now prefer judicial approval for their position. The respondents 

understandably want to avoid yet a third election campaign and put this matter to rest for 

good. Envision, having been denied a place on the 2013 ballot, equally understandably 

now would like to have a court prospectively inform the electorate that its initiative, in 

whole or in part, is valid. These desires should not unnecessarily draw the judiciary into 

deciding a political question that might not actually present itself if the 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 of Spokane had standing to challenge the Envision initiative if it 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 other than to note 

that the standards of pre-election standing do not apply. 

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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 declaratory judgment against Envision is reversed and this 

matter is remanded for the City of Spokane to place the initiative on the next available 

ballot in accordance with its June 3, 2013 resolution. 

A majority of the 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 CHARTER AMENDMENT ESTABLISHING A COMMUNITY BILL OF RIGHTS 

Whereas, the people ofthe City of Spokane wish to build a healthy, sustainable, and democratic 

community; 

Whereas, the people of the City of Spokane wish to build that community by securing the rights, 

freedoms, and well-being ofresidents, workers, neighborhoods, and the natural environment; 

Whereas, the people ofthe City of Spokane recognize their responsibility to be well-informed 

and involved citizens of the City of Spokane, to be stewards ofthe natural environment, and to 

assume the responsibility for enforcing their rights and the rights of others; 

Whereas, the people ofthe City of Spokane have adopted a Comprehensive Plan for the City of 

Spokane, which envisions the building of a healthy, sustainable, and democratic community, but 

the people recognize that the Comprehensive Plan is not legally enforceable in many important 

respects; 

Whereas, the people ofthe City of Spokane wish to create a Community Bill ofRights which 

would, among other goals, establish legally enforceable rights and duties to implement the vision 

laid out in the Comprehensive Plan; and 

Whereas, the people ofthe City of Spokane wish to create a Community Bill of Rights, which 

would elevate the rights ofthe community over those of corporations. 

NOW, THEREFORE, THE PEOPLE OF THE CITY OF SPOKANE HEREBY ORDAIN: 

Section 1. A new section be added to the beginning of the Charter ofthe City of Spokane, which 

shall be known as the "Community Bill of Rights," and which provides as follows: 

FIRST, NEIGHBORHOOD RESIDENTS HAVE THE RIGHT TO DETERMINE MAJOR DEVELOPMENT IN 

THEIR NEIGHBORHOODS. 

Neighborhood majorities shall have the right to approve all zoning changes proposed for 

their neighborhood involving major commercial, industrial, or residential development. 

Neighborhood majorities shall mean the majority ofregistered voters residing in an 

official city neighborhood who voted in the last general election. Proposed commercial 

or industrial development shall be deemed major if it exceeds ten thousand square feet, 

and proposed residential development shall be deemed major if it exceeds twenty units 

and its construction is not financed by governmental funds allocated for low-income 

housing. 

It shall be the responsibility of the proposer of the 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 right to reject major commercial, industrial, or 
residential development which is incompatible with the provisions of the City's 

Comprehensive Plan or this Charter. 

Approval of a zoning change or rejection of proposed development under this section 

shall become effective upon the submission of a petition to the City containing the valid 

signatures ofneighborhood majorities approving the zoning change or rejecting the 

proposed development, in a petition generally conforming to the referendum provisions 

of the Spokane municipal code. 

SECOND, THE RIGHT TO A HEALTHY SPOKANE RIVER AND AQUIFER. 

The Spokane River, it tributaries, and the Spokane Valley-Rathdrum Prairie Aquifer 

possess fundamental and inalienable rights to exist and flourish, which shall include the 

right to sustainable recharge, flows sufficient to protect native fish habitat, and clean 

water. All residents of Spokane possess fundamental and inalienable rights to sustainably 

access, use, consume, and preserve water drawn from natural cycles that provide water 

necessary to sustain life within the City. The City of Spokane, and any resident of the 

City or group of residents, have standing to enforce and protect these 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 right to 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 of rights enumerated 

by this Charter. 

Section 2. Effective Date of Amendment to City Charter. If approved 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 of such conflict. If any part or provision of these 

Charter provisions is held invalid, the remainder of these provisions shall not be affected by such 

a holding and shall continue in full force and effect.