IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON THE CITY OF MONROE, a Washington Municipal Corporation, Appellant,

v. WASHINGTON CAMPAIGN FOR LIBERTY, a Washington non-profit corporation, Defendant, SEEDS OF LIBERTY, an unknown entity, Respondent, VOTERSWANTMORE CHOICES.COM, an unknown entity; BANCAMS.COM, an unknown entity, Defendants. No. 68473-6-1 DIVISION ONE UNPUBLISHED OPINION

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### Grosse, J. — An initiative is beyond the scope ofthe local initiative power 

### if itinvolves powers granted by the legislature to the governing body of a city, rather than the city itself. In RCW 46.63.170, the legislature granted to local 

### legislative bodies, not the electorate, the exclusive power to legislate on the subject of the use and operation of automated traffic safety cameras. The subject matter of automated traffic safety cameras is therefore beyond the scope of the local initiative power. Section 3 of proposed Monroe Initiative No. 1, 

### mandating that any ordinance authorizing the use of automated traffic safety cameras be put to an advisory vote, has as its subject matter automated trafficNo. 68473-6-1 / 2 

### safety cameras. Accordingly, Section 3 ofproposed Monroe Initiative No. 1 is invalid as beyond the scope of the local initiative power. We reverse the trial court's order denying the city of Monroe's motion for summary judgment with 

### regard to Section 3 and the order granting Seeds of Liberty's special motion to strike. We vacate the trial court's award ofattorney fees, costs, and the statutory penaltyto Seeds of Liberty. FACTS 

### In 2007, pursuant to authority granted by RCW 46.63.170, the city of 

### Monroe (City) enacted an ordinance authorizing the use of automated traffic 

### safety cameras within the City. Theprovisions regarding automatedtraffic safety
cameras are codified at chapter 10.14 of the Monroe Municipal Code (MMC). The code defines an "automated traffic safety cameras" as:
a device that uses a vehicle sensor installed to work in conjunction 

### with an intersection traffic control system, a railroad grade crossing 

### control system or a speed measuring device, and a camera 

### synchronized to automatically record one or more sequenced 

### photographs, microphotographs orelectronic images of the rear of a motor vehicle at the time the vehicle fails to stop when facing a 

### steady red traffic control signal or an activated railroad grade crossingcontrol signal, orexceeds a speed limit in a school speed 

## zoneasdetectedbyaspeed measuringdevice.111 In January 2011, Respondent Seeds of Liberty and three other 

### organizations commenced a petition for an initiative, Monroe Initiative No. 1,to 

### repeal the automated traffic safety cameras ordinance, impose voting and approval requirements for any future useby theCity oftraffic cameras, limitthe

1MMC 10.14.020(D).No. 68473-6-1 / 3
amount offees for traffic camera infractions, and require an advisory vote on the 

### use oftrafficcameras.2 Theproposed initiative reads as follows:
BE IT ENACTED BY THE PEOPLE OF THE CITY OF MONROE: Section 1. New Chapter 10.14. A new chapter 10.14 is hereby added to the Monroe Municipal Code to read as follows: 10.14.110 Automatic Ticketing Cameras: The City of Monroe and for-profit companies contracted by the City of Monroe may not install or use automatic ticketing cameras to impose fines from camera surveillance unless such a system is approved by a twothirds vote of the City Council and a majority vote of the people at an election. 1. For the purposes of this chapter, "automatic ticketing cameras" means a device that uses a vehicle sensor installed to work in conjunction with an intersection traffic control system, or a speed measuring device, and a camera synchronized to automatically record one or more sequenced photographs, microphotographs, or electronic images of the rear of a motor vehicle at the time the vehicle fails to stop when facing a steady red traffic control signal, orexceeds a speed limit as detected by a speed measuring device. 

### 10.14.120 Fines: [l]ftwo-thirds of the City Council and a majority of Monroe voters at an election approve a system of automatic 

### ticketing cameras to impose fines from camera surveillance, the fine for infractions committed shall be a monetary penalty of no more than the least expensive parking ticket imposed by law enforcement inthe city limits ofMonroe. Section 2. Chapter 10.14 (Ordinance No. 002/2007 allowing automaticticketing cameras) is hereby repealed. 

### Section 3. Advisory Vote: Anyordinancethat authorizes the use of automatic ticketing cameras enacted after January 1, 2007, must 

### be put on the ballot as an advisory vote ofthe people at the next general election. 

### Section 4. Severability: Ifany provision of this act or its application 

### to any person or circumstance is held invalid, the remainder of the

2 

### The other sponsors of the initiative are BanCams.com, Washington Campaign for Liberty, and VotersWantMoreChoices.com.No. 68473-6-1/4
act or the application of the provision to other persons or circumstances is not affected. In June 2011, the Snohomish County Auditor certified the sufficiency of the petition. A few days later, the Monroe City Council passed a resolution finding that Monroe Initiative No. 1 was invalid because itexceeded the scope of the local initiative power under state law. In the resolution, the Council directed thatthe Citytake no action to include the proposed initiative on any ballot in2011 and authorized the Mayor to file a declaratoryjudgment action as to the validity of the proposed initiative. InJuly 2011, the City filed a complaintfor declaratory reliefagainst Seeds of Liberty and the other sponsors of Monroe Initiative No. 1. The City sought a declaration that the initiative, "in its entirety, is invalid because it is beyond the scope ofthe local initiative power, and therefore nulland void." 

### In August 2011, the City moved for summary judgment. The following month, Seeds of Liberty filed an opposition to the City's motion for summary 

### judgment and also filed a special motion to strike the City's complaint under 

### RCW4.24.525, theanti-SLAPP statute.3 By order entered February 13, 2012, the trial court granted the City's motion for summaryjudgment with regard to Sections 1 and 2 of the proposed initiativeand denied the motion withregard to Section 3. The court also granted 

### Seeds of Liberty's special motion to strike with regard to Section 3 and awarded



### 3"SLAPP" stands for Strategic Lawsuits AgainstPublic Participation. Of thefour sponsors of Monroe Initiative No. 1, only Seeds of Liberty is a party to this appeal.No. 68473-6-1 / 5 Seeds of Liberty attorney fees and the penalty provided for in the anti-SLAPP statute. The City appeals. ANALYSIS Scope ofLocal Initiative Power Whether an initiative is beyond the scope of local initiative power is a 

### question oflawthat wereviewdenovo.4 "An initiative isbeyondthe scope ofthe initiative power ifthe initiative involves powers granted by the legislature to the 

### governing body of a city, rather than the city itself."5 A grant ofpower to the governing body of a citymeans a grant exclusively to the mayor and city council, 

### not theelectorate.6 "Wherethelegislatureenacts a general lawthat grants such authority to the legislative body of a city, the exercise of that authority by the legislative body is not 'subject to repeal, amendment or modification by the 

### people through theinitiative orreferendum procedure.'"7 To determine whether the legislature granted authority to the legislative body of a city, we look to the 

### languageoftherelevantstatute.8 Applying the foregoing principles, the courts in both Mukilteo Citizens for Simple Government v. City of Mukilteo9 and American Traffic Solutions, Inc. v.

4City of Port Angeles v. Our Water-Our Choice!. 170 Wn.2d 1, 7, 239 P.3d 589 (2010). 5CitvofSequimv.Malkasian. 157 Wn.2d 251, 261, 138 P.3d 943 (2006). 6Malkasian, 157 Wn.2d at 265. 7American Traffic Solutions. Inc. v. Citv of Bellinqham. 163 Wn. App. 427, 433, 

### 260 P.3d 245 (2011) (quoting State ex rel. Guthrie v. Citv ofRichland, 80 Wn.2d 382, 384, 494 P.2d 990 (1972)), reviewdenied, 173 Wn.2d 1029 (2012). 8American Traffic Solutions, 163 Wn. App. at 433. 

### 9174Wn.2d41, 272 P.3d 227 (2012).No. 68473-6-1 / 6 

### Citv ofBellinqham10 considered whetherthe subject ofautomated traffic safety
cameras is beyond the scope of local initiative power. In both cases, the courts concluded that RCW 46.63.170, by its grant ofauthority to the "appropriate local legislative authority" with regard to the use and operation of automated traffic 

### safety cameras, granted authority to thelocal legislative body.11 Accordingly, in both cases, the courts held that the subject matter of automated traffic safety
cameras is beyond the scope of the local initiative power and that the initiatives
at issue were therefore invalid. The initiative measure held invalid in Mukilteo Citizens is virtually identical to Monroe Initiative No. 1 in all respects, including the inclusion in both initiatives 

### ofaprovision calling foranadvisoryvote.12 We agreewith theCitythatMukilteo Citizens is dispositive ofthe issues presented here. We disagree with Seeds of 

### Liberty's argument that the case is not dispositive because the court in Mukilteo Citzens did not severthe section ofthe initiative mandating an advisory vote and 

### specificallyaddress the validity of that section apartfrom the othersections of the initiative. In both Mukilteo Citizens and American Traffic Solutions, the courts held that the subject matter ofautomated traffic cameras is beyond the scope of 

### 10163Wn. App. 427. 11 Mukilteo Citizens, 174Wn.2d at 52 (noting further that "[t]he legislature's grant ofauthority does not extend to the electorate"); AmericanTraffic Solutions, 163 Wn. App. at 434 ("'It is well-settled thatin the contextofstatutory interpretation, a 

### grant of power to a city's governing body ("legislative authority" or "legislative 

### body") means exclusively the mayor and city council and not the electorate.'") 

## (quoting Malkasian, 157Wn.2dat265). 

## ^2 In a few places, the Mukilteo initiative uses the term "automated ticketing machines" where the proposed Monroe initiative uses the term "automated 

### ticketing cameras." But, the definition of "automated ticketing machine" in the Mukilteo initiative is identical to the definition of "automated ticketing camera" in the proposed Monroe initiative.No. 68473-6-1 / 7 the local initiative power and that the exercise of a legislative body's authority with respect to that subject matter is not subject to repeal, amendment, or modification by local initiative. The subject matter of Section 3 of Monroe Initiative No. 1, mandating an advisory vote on any ordinance authorizing the use ofautomated traffic safety cameras, is automated traffic safety cameras. Section 3 modifies the legislative body's authority with regard to automated traffic safety
cameras by requiring that any ordinance on the subject be put to an advisory 

### vote. Section 3isthereforebeyondthe scopeofthelocal initiativepower.13
Anti-SLAPP Sanctions 

### A party bringing a special motion to strike a claim under the anti-SLAPP statute has the burden of showing by a preponderance ofthe evidence that the 

### claim is based on an "action involving public participation and petition," as that 

### term is defined in the statute.14 "If the moving party meets this burden, the burden shifts to the responding party to establish by clear and convincing 

### evidence aprobability ofprevailing on theclaim."15 Assuming, withoutdeciding, that the trial court was correct inconcluding that the City's declaratoryjudgment 

### action was an action involving public participation and petition, the City met this burden based on the case law establishing that the subject matter ofautomated 

### traffic safety cameras is beyond the scope of the localinitiative power. The trial court erred as a matter of law in granting Seeds of Liberty's special motion to 13 Becausewe concludethat Section 3 is invalidas beyond the scope ofthe local 

### initiative power, we need not and do not reach the City's argument that Section 3 is invalidbecause it would compel the City to perform an administrative act. 

### 14 RCW 4.24.525(4)(b). The term "action involving public participation and petition" isdefined at RCW4.24.525(2). 

### 15RCW4.24.525(4)(b).No. 68473-6-1 / 8 

### strike and awarding it attorney fees, costs, and the statutory penalty. We vacate that award. We reverse the trial court's order denying the City's motion for summary judgment with regard to Section 3 of proposed Monroe Initiative No. 1 and the order granting Seeds of Liberty's special motion to strike. We vacate the award ofattorneyfees, costs, and the statutory penaltyto Seeds of Liberty.

WE CONCUR: 

# ^cket

8The Citv ofMonroe v. Seeds ofLiberty No. 68473-6-1 Dwyer, J. (concurring)

— Keeping in mind the concerns expressed in Eyman v. McGehee, No. 67908-2-1 (Dwyer, J. concurring and dissenting), I
concur inthe majority's resolution ofthis matter.

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