 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE CITY OF MONROE, a Washington
Municipal Corporation,                             No. 68473-6-1


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SEEDS OF LIBERTY, an unknown
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                       Respondent,

VOTERSWANTMORE CHOICES.COM,
an unknown entity; BANCAMS.COM,
an unknown entity,
                                                   FILED: February 25, 2013
                       Defendants.



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

if it involves 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 traffic
No. 68473-6-1 / 2


safety cameras. Accordingly, Section 3 of proposed 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 of attorney fees, costs, and the statutory

penalty to 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. The provisions regarding automated traffic 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 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 or an activated railroad grade
       crossing control signal, or exceeds a speed limit in a school speed
       zone as detected by a speed measuring device.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 use by the City of traffic cameras, limit the




1 MMC 10.14.020(D).
No. 68473-6-1 / 3


amount of fees for traffic camera infractions, and require an advisory vote on the

use oftraffic cameras.2 The proposed 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 two-
        thirds 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,
        or exceeds a speed limit as detected by a speed measuring device.

        10.14.120 Fines: [l]f two-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 in the city limits of Monroe.

        Section 2. Chapter 10.14 (Ordinance No. 002/2007 allowing
        automatic ticketing cameras) is hereby repealed.

        Section 3. Advisory Vote: Any ordinance that authorizes the use of
        automatic ticketing cameras enacted after January 1, 2007, must
        be put on the ballot as an advisory vote of the people at the next
        general election.

        Section 4. Severability: If any 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 it exceeded the scope of

the local initiative power under state law. In the resolution, the Council directed

that the City take no action to include the proposed initiative on any ballot in 2011

and authorized the Mayor to file a declaratory judgment action as to the validity of

the proposed initiative.

       In July 2011, the City filed a complaint for declaratory relief against 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 of the local initiative power, and therefore null and 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

RCW 4.24.525, the anti-SLAPP statute.3
       By order entered February 13, 2012, the trial court granted the City's

motion for summary judgment with regard to Sections 1 and 2 of the proposed

initiative and denied the motion with regard 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 Against Public Participation. Of the four
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 of Local Initiative Power

      Whether an initiative is beyond the scope of local initiative power is a

question of law that we review de novo.4 "An initiative is beyond the scope ofthe
initiative power if the initiative involves powers granted by the legislature to the

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

not the electorate.6 "Where the legislature enacts a general law that 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 the initiative or referendum procedure.'"7 To determine whether
the legislature granted authority to the legislative body of a city, we look to the

language ofthe relevant statute.8
      Applying the foregoing principles, the courts in both Mukilteo Citizens for

Simple Government v. City of Mukilteo9 and American Traffic Solutions, Inc. v.




4 City of Port Angeles v. Our Water-Our Choice!. 170 Wn.2d 1, 7, 239 P.3d 589
(2010).
5 CitvofSequimv.Malkasian. 157 Wn.2d 251, 261, 138 P.3d 943 (2006).
6 Malkasian, 157 Wn.2d at 265.
7 American Traffic Solutions. Inc. v. Citv of Bellinqham. 163 Wn. App. 427, 433,
260 P.3d 245 (2011) (quoting State ex rel. Guthrie v. Citv of Richland, 80 Wn.2d
382, 384, 494 P.2d 990 (1972)), review denied, 173 Wn.2d 1029 (2012).
8 American Traffic Solutions, 163 Wn. App. at 433.
9 174 Wn.2d 41, 272 P.3d 227 (2012).
No. 68473-6-1 / 6


Citv of Bellinqham10 considered whether the subject of automated 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 of authority to the "appropriate local

legislative authority" with regard to the use and operation of automated traffic

safety cameras, granted authority to the local 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

of a provision calling for an advisory vote.12 We agree with the City that Mukilteo
Citizens is dispositive of the 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 sever the section of the initiative mandating an advisory vote and

specifically address the validity of that section apart from the other sections of the

initiative.   In both Mukilteo Citizens and American Traffic Solutions, the courts

held that the subject matter of automated traffic cameras is beyond the scope of


10163Wn. App. 427.
11 Mukilteo Citizens, 174 Wn.2d at 52 (noting further that "[t]he legislature's grant
of authority does not extend to the electorate"); American Traffic Solutions, 163
Wn. App. at 434 ("'It is well-settled that in the context of statutory 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, 157 Wn.2d at 265).
^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

of automated 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 3 is therefore beyond the scope of the local initiative power.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 of the 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 a probability of prevailing on the claim."15 Assuming, without deciding,
that the trial court was correct in concluding that the City's declaratory judgment

action was an action involving public participation and petition, the City met this

burden based on the case law establishing that the subject matter of automated

traffic safety cameras is beyond the scope of the local initiative power. The trial

court erred as a matter of law in granting Seeds of Liberty's special motion to


13 Because we conclude that Section 3 is invalid as beyond the scope of the local
initiative power, we need not and do not reach the City's argument that Section 3
is invalid because 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" is defined at RCW 4.24.525(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

of attorney fees, costs, and the statutory penalty to Seeds of Liberty.




WE CONCUR:




                                         ^cket




                                         8
                      The Citv of Monroe v. Seeds of Liberty
                                    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 in the majority's resolution of this matter.



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