Whatcom County v Brisbane :: 125 Wn2d 345
Category: Initiative and Elections
The elected officials of Whatcom County sued the individual citizens who filed a referendum. On 23 Jun. 1993, the Whatcom County Council adopted the Temporary Critical Areas Ordinance, ordinance 92?032. Respondent Brisbane (citizens) conducted a successful referendum campaign to eliminate portions of the ordinance and the referendum was certified with the County Auditor. 12 Jan 93, the County Council filed a declaratory judgment action. On 14 May 93, the Whatcom County Superior Court granted a judgment in favor of the respondent (citizens) and dismissed the complaint. The appeal was then moved to the Supreme Court.
The sole question before the Supreme Court was whether a critical areas ordinance adopted pursuant to the GMA is subject to referendum under the home rule charter of the county.
Using Snohomish County v Anderson (which was a similar case decided just two months earlier 124 Wn2d 834. However, most of the dictum referring to Anderson was cited from the expedited hearing 123 Wn2d 151) as their model the court held that:
1. “Local governance is generally the province of home rule counties. . . . However, this principle does not entirely negate the State’s ability to successfully challenge home rule charter rights.” [at 349, quoting Anderson 123 Wn2d 151, 158]. The court continues to ignore that the right of petition is constitutional, not only within the Whatcom and Snohomish County charters, but also the federal and State constitutions. The State legislature does not have the constitutional authority to delegate powers which by their nature would null a constitutionally protected right.
2. “Referendum rights do not exist when power has been statutorily delegated to the ‘legislative authority’.” [quoting Anderson, 123 Wn2d 151, 156]. “Therefore, a statutory grant of power to a legislative authority does not generally permit delegation to the voters through an initiative or referendum.” [at 350]. The court once again affirms that statute can preempt our constitutional rights. In effect, this means that a statute or ordinance can amend our Constitution. This Court may be confused about our Constitution, the role of government and the rights of the people. For the legislature does not delegate to us, nor can it constitutionally remove, the right to petition the government. Our State (art. 1, sec. 1) and federal constitutions (limited throughout and rights reserved in amendments 1 & 9) are clear, we the people have delegated authority to our governing bodies. As an accountability measure, we have reserved the right of initiative and referendum (State art. 1, sec. 4 & art. 2, sec. 1). This has become twisted by activist judges and their decisions cannot be constitutionally supported.
3. “The purpose of the Growth Management Act . . . would be frustrated if the people . . . were permitted by referendum to amend an ordinance adopted to implement the goals of a comprehensive land use plan.” [at 351]. The Court went on to cite Anderson again and the holding that a local referendum would thus jeopardize the entire state plan, making it a matter beyond local concerns. So if an ordinance is adopted under the color of State law, the local people affected by the ordinance have lost their ability to control their government through their right of petition. This affirms one premise within the book, Under the Tower of Babel (Dean Isaacson, Cominus Books, Inc. p. 123), “If precedent was ever established that the GMA is a violation of the supremacy clause, the whole foundation upon which it is built would collapse.”
Justice Madsen’s dissent is interesting [at 355ff]. She argues against the majority using similar claims that the citizens used in Snohomish County v Anderson. However, she is careful to differentiate between the two.
She opens her dissent by asserting that the Court has made three main points that she does not believe are legally supportable. “The majority claims
1. that the wording of the statutory grant of power regarding temporary critical areas ordinances is of no significance;
2. that ‘continuous public participation’ in growth management decisions does not include referenda; and
3. that the ordinance at issue was emergency legislation immune from revision by referendum.”
She notes that the GMA “used the words ‘county’ and ‘city’ interchangeably with the words ‘legislative body.’” However, she argues that the statutes (RCW 36.70A.060(2) & .170(1)) do not refer to the city or counties as “legislative bodies” and as such can include the citizens. So just as the Court held that “A statutory grant of power to a legislative authority does not generally permit delegation to the voters through an initiative or referendum,” she contends that, “The corollary to this rule is that if the grant of power is to the city or county as a corporate entity, direct legislation in the form of a referendum is permissible.” [at 356]. She gave further argument and concluded that she found it surprising that the Supreme Court would confuse “county” with “county legislative authority.” [at 357].
She demonstrates an understanding of the basic principles of constitutionally protected rights reserved to the people. “Initiative and referendum provisions reserve to the voters ‘the fundamental right of a governed people to exercise their inherent and constitutional political power over governmental affairs.’” [at 359].
Justice Madsen argued that it could never have been the intent of the legislature to interfere with local referendum rights. She was careful, however, to distance that assertion from the Anderson case. She claimed that Anderson dealt with RCW 36.70A.210, requiring counties to enact planning policies, while this case dealt with RCW 36.70A.060(2), which “is much more limited in scope” because it deals with the temporary critical areas ordinances. Planning policies affect the entire State, but critical areas are local concerns. She failed to clarify that both Anderson and Brisbane deal with State statute and both are under mandated deadlines. Why is it that critical areas can be modified by the people, but planning cannot? The logic does not hold up. She should have defended the right of the people to petition in both cases.
Regarding the emergency provision, she states that, “unless the legislative act is in fact immediately necessary, all other factors are irrelevant. . . . it would ‘be scandalous indeed if the constitutional right of referendum could be thwarted by the mere use of false labels (State ex rel Gray v Martin, 29 Wn2d 799, 807).’” [at 362].
Rating the Usual Suspects:
| pass | Groen, John M | |
| pass | Madsen, Barbara | |
| pass | Moynihan, Michael | |
| pass | Rivett, Robin | |
| pass | Zumbrun, Ronald | |
| fail | Dolliver, James | |
| fail | Durham, Barbara | |
| fail | Guy, Richard | |
| fail | Johnson, Charles | |
| fail | McEachran, David | |
| fail | Smith, Charles | |
| fail | Smith, Catherine | |
| fail | Utter, Robert | |
| fail | Watts, Randall |