                                                                           FILED
                                                                       JANUARY 29, 2019
                                                                  In the Office of the Clerk of Court
                                                                 WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

GLOBAL NEIGHBORHOOD;                           )
REFUGEE CONNECTIONS OF                         )         No. 35528-4-III
SPOKANE; SPOKANE CHINESE                       )
ASSOCIATION; ASIAN PACIFIC                     )
ISLANDER COALITION – SPOKANE;                  )
SPOKANE CHINESE AMERICAN                       )
PROGRESSIVES; and the SPOKANE                  )         PUBLISHED OPINION
AREA CHAPTER OF THE NATIONAL                   )
ORGANIZATION OF WOMEN,                         )
                                               )
                     Respondents,              )
                                               )
       v.                                      )
                                               )
RESPECT WASHINGTON,                            )
                                               )
                     Appellant,                )
                                               )
VICKY DALTON, SPOKANE COUNTY                   )
AUDITOR, in her official capacity; and         )
the CITY OF SPOKANE,                           )
                                               )
                     Respondents.              )

       FEARING, J. — In this well briefed and astutely argued appeal by both sides, we

face the intimidating and humbling task of classifying, as either administrative or

legislative, a city initiative that authorizes without restriction city employees to question

individuals as to immigration status. This classification determines the eligibility of the
No. 35528-4-III
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initiative for vote by the people of Spokane. The appeal raises other issues, including the

mootness of the suit after the city council amended a city ordinance referenced in the

initiative, the standing of challengers to obtain an injunction removing the initiative from

the ballot, the imposition of a statute of limitations to a suit challenging a proposed

initiative, the application of laches to preclude a suit challenging an initiative, the legality

of the initiative in light of state and federal law, and the implication of the initiative

backers’ First Amendment rights. Because the proposed initiative arises from an

administrative framework, because the initiative entails directions to city employees,

because the initiative meddles in the administration of the city’s police force and may

interfere in effective law enforcement, and because the initiative runs contrary to state, if

not, federal law, we declare the initiative administrative in nature. We affirm the trial

court’s grant of an order enjoining placement of the initiative on the ballot.

                                            FACTS

       This appeal concerns the validity of “Proposition 1,” a proposed City of Spokane

initiative originally scheduled for placement on the November 2017 ballot. The gist of

the initiative would allow Spokane city employees, including law enforcement officers,

to question without any restriction individuals about their immigration status and

citizenship status, permit employees to assemble information on residents’ immigration

status, and share the information with others. The background to the lawsuit precedes the

filing of the initiative and begins with state law and continues with Spokane Police

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Department internal policy and Spokane ordinances adopted by the Spokane City

Council. We review, but heavily redact for purposes of shortening an already lengthy

opinion, state law, police department policy, and city ordinances before identifying the

history and content of Proposition 1.

       We begin with some background to the challengers of Proposition 1, which

challengers initiated this declaratory suit to declare Proposition 1 invalid. Plaintiff

Global Neighborhood, a nonprofit organization, operates under the mission statement to

“‘provide former refugees with opportunities for holistic development.’” Clerk’s Papers

(CP) at 7. Global Neighborhood serves former refugees living in the city of Spokane by

engaging in activities aimed at improving quality of life, such as providing employment

at a thrift shop it owns and operates.

       Plaintiff Refugee Connections of Spokane, also a nonprofit organization, develops

projects, programs, and resources that benefit refugees and immigrants and their

communities in Spokane. In support of the suit, Amina Abdul-Fields, Chair of the Board

of Directors of Refugee Connections, submitted a declaration. Abdul-Fields averred that

Refugee Connections’ many services to refugees and immigrants include the Harvest

Project, Patient Passports, and Interpreter Training. The organization promotes civic

engagement through police potlucks, law and justice workshops, and the World Refugee

Day Celebration. Refugee Connections understands that many immigrants arrive from

nations wherein authority symbolizes a threat. The law and justice workshop seeks to

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foster a positive view of the United States legal system, explain how the American

criminal justice system functions, identify key civil liberties, and provide written

information on where to seek assistance in protecting those rights.

       Amina Abdul-Fields declared that members of the immigrant and refugee

community served by Refugee Connections will become targeted and injured by changes

to law enforcement profiling resulting from the passage of Proposition 1. The immigrant

community will be subjected to additional stops by Spokane police officers solely on the

basis of the person’s appearance, accent, or mannerisms. Increased contact with law

enforcement based solely on immigration status will increase fear and reluctance on the

part of refugees to contact police or seek protections from the legal system. Abdul-Fields

concluded that adoption of Proposition 1 will challenge Refugee Connections’ ability to

serve the immigrant and refugee community.

       Spokane Chinese Association, a nonprofit association, was formed by people of

Chinese cultural heritage residing in the Spokane area. The organization strives to

advance communication and friendship among its members and to enrich their lives and

local culture by organizing activities related to Chinese culture or common interests. The

plaintiff Asian Pacific Islander Coalition—Spokane promotes equitable access to

culturally competent and linguistically accessible health and human services, economic

development for small businesses, civil and human rights, and equal access to education

for Asian Pacific Americans, including immigrants, refugees, and citizens.

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       Each plaintiff organization contends it serves members of the community that will

be adversely targeted by changes to law enforcement profiling resulting from the passage

of Proposition 1. We refer to the plaintiffs collectively as “Global Neighborhood.”

       The parties agree that this appeal poses no direct question as to whether city

employees’ seeking and sharing of the immigration status of individual constitutes racial

profiling. Nevertheless, this appeal in part embodies the relationship between racial

profiling and enforcing immigration law. Global Neighborhood claims that Proposition 1

promotes racial profiling. RCW 43.101.410, enacted in 2002, directs local law

enforcement agencies to address racial profiling. The statute declares, in part:

               (1) Local law enforcement agencies shall comply with the
       recommendations of the Washington association of sheriffs and police
       chiefs regarding racial profiling, as set forth under (a) through (f) of this
       subsection. Local law enforcement agencies shall:
               (a) Adopt a written policy designed to condemn and prevent racial
       profiling;
               (b) Review and audit their existing procedures, practices, and
       training to ensure that they do not enable or foster the practice of racial
       profiling;
               (c) Continue training to address the issues related to racial profiling.
       Officers should be trained in how to better interact with persons they stop
       so that legitimate police actions are not misperceived as racial profiling;
               (d) Ensure that they have in place a citizen complaint review process
       that can adequately address instances of racial profiling. The process must
       be accessible to citizens and must be fair. Officers found to be engaged in
       racial profiling must be held accountable through the appropriate
       disciplinary procedures within each department;
               (e) Work with the minority groups in their community to
       appropriately address the issue of racial profiling; and
               (f) Within fiscal constraints, collect demographic data on traffic
       stops and analyze that data to ensure that racial profiling is not occurring.

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In explaining the 2002 law, the legislature declared:

              [R]acial profiling is the illegal use of race or ethnicity as a factor in
       deciding to stop and question, take enforcement action, arrest, or search a
       person or vehicle with or without a legal basis under the United States
       Constitution or Washington [S]tate Constitution.

LAWS OF 2002 ch. 14, § 1(1) (emphasis added).

              The legislature recognizes that the president of the United States has
       issued an executive order stating that stopping or searching individuals on
       the basis of race is not an effective law enforcement policy, that it is
       inconsistent with democratic ideals, especially the commitment to equal
       protection under the law for all persons, and that it is neither legitimate nor
       defensible as a strategy for public protection.

LAWS OF 2002 ch. 14, § 1(2).

       We move to policies and ordinances of the city of Spokane, Washington State’s

second city with a 2017 estimated population of 217,300. The Spokane City Council

delegated the authority to adopt police department policy to the city police department

and its chief. Spokane Municipal Code (SMC) 3.10.010(B)(1) provides:

               The chief of police administers the Spokane police department and
       the police reserve force and has the authority to make rules and issue orders
       for the proper functioning of the division, consistent with law, council
       policy, and the rules of civil service commission.

       Presumably to comply with RCW 43.101.410, the Spokane Police Department

adopted policies 402 and 428. Policy 402 reads, in part:

              Bias-Based Policing

              402.1 PURPOSE AND SCOPE

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             This policy provides guidance to department members and
      establishes appropriate controls to ensure that employees of the Spokane
      Police Department do not engage in racial-or bias-based profiling or violate
      any related laws while serving the community.

             402.1.1 DEFINITION
             Definitions related to this policy include:

             Racial-or bias-based profiling - An inappropriate reliance on
      factors such as race, ethnicity, national origin, religion, sex, sexual
      orientation, economic status, age, cultural group, disability or affiliation
      with any other similar identifiable group as a factor in deciding whether to
      take law enforcement action or to provide service.

              402.2 POLICY
              The Spokane Police Department is committed to providing law
      enforcement services to the community with due regard for the racial,
      cultural or other differences of those served. It is the policy of this
      department to provide law enforcement services and to enforce the law
      equally, fairly and without discrimination toward any individual or group.
              Race, ethnicity or nationality, religion, sex, sexual orientation,
      economic status, age, cultural group, disability or affiliation with any other
      similar identifiable group shall not be used as the basis for providing
      differing levels of law enforcement service or the enforcement of the law.

             402.3 RACIAL-OR BIAS-BASED PROFILING PROHIBITED
             Racial-or bias-based profiling is strictly prohibited. However,
      nothing in this policy is intended to prohibit an officer from considering
      factors such as race or ethnicity in combination with other legitimate
      factors to establish reasonable suspicion or probable cause (e.g., suspect
      description is limited to a specific race or group).

SPOKANE POLICE DEPARTMENT, POLICY MANUAL §§ 402.1-402.3 at 238 (adopted Feb. 9,

2016. https://static.spokanecity.org/documents/police/accountability/police-policy-

manual-2016-02-09.pdf. (Emphasis added).

      Spokane Police Department Policy 428 declares in part:

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             Immigration Violations
             428.1 PURPOSE AND SCOPE
             The immigration status of individuals alone is generally not a matter
      for police action. It is incumbent upon all employees of this department to
      make a personal commitment to equal enforcement of the law and equal
      service to the public regardless of immigration status. Confidence in this
      commitment will increase the effectiveness of the Department in protecting
      and serving the entire community.

              428.2 DEPARTMENT POLICY
              The U.S. Immigration and Customs Enforcement (ICE) has primary
      jurisdiction for enforcement of the provisions of Title 8, United States Code
      (U.S.C.) dealing with illegal entry. When assisting ICE at its specific
      request, or when suspected criminal violations are discovered as a result of
      inquiry or investigation based on probable cause originating from activities
      other than the isolated violations of Title 8, U.S.C., §§ 1304, 1324, 1325
      and 1326, this department may assist in the enforcement of federal
      immigration laws.
              ....
              428.3.1 BASIS FOR CONTACT
              Unless immigration status is relevant to another criminal offense or
      investigation (e.g., harboring, smuggling, terrorism), the fact that an
      individual is suspected of being an undocumented alien shall not be the sole
      basis for contact, detention or arrest.
              ....
              428.3.3 ICE REQUEST FOR ASSISTANCE
              If a specific request is made by ICE or any other federal agency, this
      department will provide available support services, such as traffic control
      or peacekeeping efforts, during the federal operation.
              Members of this department should not participate in such federal
      operations as part of any detention team unless it is in direct response to a
      request for assistance on a temporary basis or for officer safety. Any
      detention by a member of this department should be based upon the
      reasonable belief that an individual is involved in criminal activity.
              ....
              428.3.7 NOTIFICATION OF IMMIGRATION AND CUSTOMS
      ENFORCEMENT
              If an officer believes that an individual taken into custody for a
      felony is also an undocumented alien, and after he/she is formally charged

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      and there is no intention to transport to the county jail, ICE shall be
      informed by the arresting officer so that they may consider placing
      immigration hold on the individual.
             Whenever an officer has reason to believe that any person
      arrested for an offense other than a felony may not be a citizen of the
      United States, and the individual is not going to be booked into the
      county jail, the arresting officer may cause ICE to be notified for
      consideration of an immigration hold. In making the determination
      whether to notify ICE in such circumstances, the officer should, in
      consultation with a supervisor, consider the totality of circumstances
      of each case, including, but not limited to:
             (a) Seriousness of the offense.
             (b) Community safety.
             (c) Potential burden on ICE.
             (d) Impact on the immigrant community.
             Generally, officers will not need to notify ICE when booking
      arrestees at the county jail. Immigration officials routinely interview
      suspected undocumented aliens who are booked into the county jail
      on criminal charges and notification will be handled according to jail
      operation procedures.

             428.4 CONSIDERATIONS PRIOR TO REPORTING TO
      ICE
             ....
             All individuals, regardless of their immigration status, must
      feel secure that contacting law enforcement will not make them
      vulnerable to deportation. Members should not attempt to determine
      the immigration status of crime victims and witnesses or take
      enforcement action against them absent exigent circumstances or
      reasonable cause to believe that a crime victim or witness is involved
      in violating criminal laws. Generally, if an officer suspects that a
      victim or witness is an undocumented immigrant, the officer need
      not report the person to ICE unless circumstances indicate such
      reporting is reasonably necessary.

      SPOKANE POLICE DEP’T, POLICY MANUAL §§ 428.1-428.4, at 282-85




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      In October 2014, years after the Spokane Police Department adopted

Policies 402 and 428, the Spokane City Council enacted two ordinances. The

ordinances codified the department policies respectively into former SMC §§

3.10.040, .050 (2014). Until 2017 amendments, the two code sections read:



              3.10.040 Biased Free Policing
              ....
              B. Spokane Police Department Officers and all officers
      commissioned under the Spokane Police Department shall be prohibited
      from engaging in bias-based profiling.
              C. Bias-based profiling is defined as an “act of a member of the
      Spokane Police Department or a law enforcement officer commissioned by
      the Spokane Police Department that relies on actual or perceived race,
      national origin, color, creed, age, citizenship status . . . or any characteristic
      of protected classes under federal, state or local laws as the determinative
      factor initiating law enforcement action against an individual, rather than an
      individual’s behavior or other information or circumstances that links a
      person or persons to suspected unlawful activity.”
              3.10.050 Immigration Status Information
              A. Unless required by law or court order, no Spokane City officer or
      employee shall inquire into the immigration status of any person, or engage
      in activities designed to ascertain the immigration status of any person.
              B. Spokane Police Department officers shall have reasonable
      suspicion to believe a person has been previously deported from the United
      States, is again present in the United States, and is committ[ing] or has
      committed a felony criminal-law violation before inquiring into the
      immigration status of an individual.
              C. The Spokane Police Department shall not investigate, arrest, or
      detain an individual based solely on immigration status.

(Emphasis added.)

      On November 26, 2014, one month after the Spokane City Council adopted former


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SMC 3.10.040 and .050, Jackie Murray, on behalf of Respect Washington, submitted a

petition for a proposed initiative with the Spokane city clerk. The proposed initiative

would amend former SMC 3.10.040 to eliminate citizenship status from the list of

prohibited factors for city police to consider during investigations, would repeal former

SMC 3.10.050, and would add a new code section that would prohibit the city from

limiting any city employee from collecting immigration status information and sharing

the information with federal authorities. SMC 3.10.060 would read:

              Respect for Law: The City of Spokane shall not limit the ability of
       any city employee from collecting immigration status information,
       communicating immigration status information and cooperating with
       federal law enforcement authorities unless such regulation is approved by a
       majority vote of the City Council and a majority vote of the people at an
       election.

CP at 172.

       On December 8, 2015, Jackie Murray sent two separate e-mails that declared she

formally withdrew her sponsorship of the initiative petition. The Spokane County auditor

continued with the initiative process anyway and certified that Murray submitted the

requisite number of signatures for a vote. On February 22, 2016, the Spokane City

Council placed the initiative on the November 7, 2017 ballot as Proposition 1. The

Spokesman Review and the Spokane Journal of Business thereafter penned editorials

lamenting the filing of an anti-immigrant initiative.

       On March 27, 2017, after placement of Proposition 1 on the November 2017


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ballot, the Spokane City Council passed Spokane Ordinance C35485, which repealed

former SMC 3.10.040 and .050, the two code sections that Proposition 1 sought to amend

or repeal. The city council adopted the ordinance ostensibly because it wished to

consolidate various sections and chapters of the city code into a new Title 18 that

addressed human rights. Before the creation of Title 18, the municipal code scattered

human rights provisions throughout various code sections. Spokane Ordinance C35485

recodified similar, but not identical, language from the repealed sections into the new

Title 18. The ordinance reads in part:

                               ORDINANCE No. C35485

              An ordinance relating to human rights protections; repealing
       chapters 01.06, 01.08, 10.08E, and 10.18; sections 03.10.040, 03.10.050,
       and 03.10.060; enacting a new Title 18; and amending sections 01.05.210,
       04.10.040 and 04.10.050 of the Spokane Municipal Code.

              WHEREAS, human rights provisions are scattered throughout the
       Spokane Municipal Code; and
              WHEREAS, protections for human rights are fundamental to the
       welfare of all people in Spokane; and
              WHEREAS, the City Council recognizes the utility of grouping all
       provisions which contain and describe the human rights protections of the
       Spokane Municipal Code in the same title; and
              WHEREAS, the City of Spokane reaffirms its commitment to the
       protection of the human rights of all those living in Spokane.
              NOW THEREFORE, the City of Spokane does ordain:

              Section 1. That chapters 01.06, 01.08, 10.08E, and 10.18, and
       sections 03.10.040, 03.10.050, and 03.10.060 of the Spokane Municipal
       Code are hereby repealed.

              Section 2. That there is enacted a new Title 18 of the Spokane

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      Municipal Code to read as follows:

              Title 18 Human Rights
              Chapter 18.01 Law Against Discrimination
              Section 18.01.010 Findings
              The City of Spokane finds that discrimination based on race,
      religion, creed, color, sex, national origin, marital status, familial status,
      domestic violence victim status, age, sexual orientation, gender identity,
      honorably discharged veteran or military status, refugee status, the presence
      of any sensory, mental or physical disability as defined by the Americans
      with Disability Act, 42 U.S.C., § 12101 et seq., and/or the Washington
      State Law Against Disability, Chapter 49.60 RCW, or the receipt of, or
      eligibility for the receipt of, funds from any housing choice or other subsidy
      program or alternative source of income poses a substantial threat to the
      health, safety and general welfare of the citizens of Spokane. The City
      deems it necessary and proper to enact a local ordinance to address these
      issues.
              ....
              Section 18.01.030 Definitions
              ....
              D. “Discrimination” means different or unequal treatment because of
      race, religion, creed, color, sex, national origin, marital status, familial
      status, domestic violence victim status, age, sexual orientation, gender
      identity, honorably discharged veteran or military status, refugee status,
      disability, the use of a guide dog or service animal, or the use or eligibility
      for the use of housing choice or other subsidy program or alternative source
      of income. “Discriminate” means to treat differently or unequally because
      of race, religion, creed, color, sex, national origin, marital status, familial
      status, domestic violence victim status, age, sexual orientation, gender
      identity, honorably discharged veteran or military status, refugee status, the
      presence of any sensory, mental or physical disability as defined by the
      American with Disability Act and/or the Washington State Law Against
      Discrimination, [chapter 49.60 RCW], or the use or eligibility for the use of
      housing choice or other subsidy program or alternative source of income.
              ....
              U. “Profiling” means actions of the Spokane Police Department, its
      members, or officers commissioned by the Spokane Police Department to
      rely on actual or perceived race, religion, national origin, color, creed, age,
      citizenship status, immigration status, refugee status, gender, sexual

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       orientation, gender identity, disability, socio-economic status, housing
       status, or membership in any protected class under federal, state or local
       law as the determinative factor in initiating law enforcement action against
       an individual, rather than an individual’s behavior or other information or
       circumstances that links a person or persons to suspected unlawful activity.
               V. “Refugee status” means the status of a person who, under the
       provisions of 8 USC 1101(a)(42), is outside a country of that person’s
       nationality or, in the case of a person having no nationality, is outside any
       country in which that person last habitually resided, and who is unable or
       unwilling to return to, and is unable or unwilling to avail himself or herself
       of the protection of, that country because of persecution or a well-founded
       fear of persecution on account of race, religion, nationality, membership in
       a particular social group, or political opinion.
               ....
               Chapter 18.07 Police Practices
               Section 18.07.010 Bias-Free Policing
               A. The City of Spokane is committed to providing services and
       enforcing laws in a professional, nondiscriminatory, fair and equitable
       manner.
               B. The Spokane Police Department, its officers, employees, and all
       officers commissioned under the Spokane Police Department are prohibited
       from engaging in profiling as the term is defined in this SMC 18.01.030[U].
               C. The Spokane Police Department shall maintain policies
       consistent with this section.
               Section 18.07.020 Immigration Status Information
              A. Unless required by law or court order, no officer, agent, or
     employee of the City of Spokane shall inquire into the immigration or
     citizenship status of any person, or engage in activities designed to ascertain
     the immigration status of any person.
              B. Spokane Police officers may not inquire into the immigration or
     citizenship status of an individual unless they have reasonable suspicion to
     believe a person: (i) has been previously deported from the United States,
     (ii) is again present in the United States, and (iii) is committing or has
     committed a felony criminal law violation.
              C. The Spokane Police Department shall not investigate, arrest, or
     detain an individual based solely on immigration or citizenship status.
               D. The Spokane Police Department shall maintain policies
       consistent with this section.


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Spokane Ordinance C35485 (Mar. 27, 2017) (emphasis added).

                                       PROCEDURE

       In May 2017, Asian Pacific Islander Coalition-Spokane, Global Neighborhood,

Refugee Connections of Spokane, Spokane Area Chapter of the National Organization of

Women, Spokane Chinese American Progressives, and Spokane Chinese Association

filed this lawsuit to address the validity of Proposition 1. Defendants include Spokane

County Auditor Vicky Dalton, the City of Spokane, and Respect Washington. The

county auditor takes no position on the merits of the suit. Respect Washington actively

opposes the suit. The City of Spokane takes no position on the merits of the lawsuit, but

asks that, if Proposition 1 is invalid, we enjoin its placement on the ballot. In its answer

to the complaint, Spokane noted that it will pay for the cost of the Proposition 1 election,

and the city did not wish to pay for an election for an invalid measure.

       On July 28, 2017, Global Neighborhood moved the trial court for a declaratory

judgment prohibiting Proposition 1 from being placed on the November 2017 ballot.

Global Neighborhood raised at least three arguments in support of its motion for relief.

Global Neighborhood claimed that Proposition 1 was invalid due to two procedural

violations of the SMC. First, Proposition 1 lacked a sponsor in contravention of the

Spokane Municipal Code, since Jackie Murray withdrew her sponsorship before the

validation of signatures. Second, the petition for the initiative contained inflammatory

and prejudicial language contrary to SMC 2.02.060(D)(5). In fact, the city clerk

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informed Respect Washington that language in the petition conflicted with the

requirements of the municipal code, and the clerk directed the group to remove the

language. Respect Washington did not comply with the request. On the merits, Global

Neighborhood argued that the subject matter of Proposition 1 was administrative in

nature and thus not a proper subject for an initiative.

          The trial court granted Global Neighborhood’s request for declaratory judgment.

In doing so, the trial court declared that a justiciable controversy existed, that plaintiffs

held organizational standing and standing through their respective members, and that

laches did not bar the suit. The superior court ruled Proposition 1 invalid because the

measure seeks to repeal portions of the Spokane Municipal Code previously rescinded.

The superior court also declared Proposition 1 invalid because the measure is

administrative in nature and thereby exceeds the local initiative power. The trial court

entered an injunction directing the removal of Proposition 1 from the November 2017

ballot.

                                   LAW AND ANALYSIS

          The primary issue on appeal and on which our decision rests is whether

Proposition 1 is administrative or legislative in nature. Nevertheless, Respect

Washington raises defenses and other hurdles to Global Neighborhood obtaining relief,

which defenses and arguments include laches, the statute of limitations, lack of harm for

purposes of an injunction, and violation of Respect Washington’s and its members First

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Amendment rights by reason of the legal attack on Proposition 1. In turn, Global

Neighborhood asks that this court decline to address the merits of Respect Washington’s

appeal because of the moot nature of the case. Global Neighborhood does not seek to

dismiss the appeal on the ground that the initiative’s sponsor withdrew her sponsorship

before certification for the ballot. Since we would not need to address the merits of the

appeal if some event rendered the appeal moot, we address mootness first. We also

review, before entertaining the merits of the appeal, defenses asserted by Respect

Washington.

                                         Mootness

       After the certification of Proposition 1 for the November 2017 ballot, the Spokane

City Council, through Spokane Ordinance C35485, repealed former SMC 3.10.040 and

.050, code sections that Proposition 1 sought to amend or repeal. Proposition 1

specifically identified the two code sections as the initiative’s target. With Spokane

Ordinance C35485, former SMC 3.10.040 and .050 no longer exist. According to Global

Neighborhood, the repeal of former SMC 3.10.040 and .050 in Spokane Ordinance

C35485 renders Proposition 1 moot, because revoking or amending nonexistent code

sections serves no purpose. Global Neighborhood does not contend that the passing of

the November 2017 election leaves the initiative moot.

       Global Neighborhood’s contention ignores the existence of the substantive

provisions, previously found in former SMC 3.10.040 and .050, within Title 18 SMC.

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One could read Proposition 1 as now targeting SMC 18.01.010 and .030(D), (U), and (V),

SMC 18.01.040, SMC 18.07.010 and .020, which sections continue to define prohibited

“profiling” as including acting on another’s perceived or actual citizenship status. The

new sections, like the former sections, also generally prohibit a law enforcement officer

from asking a person about his or her citizenship status. Global Neighborhood’s

contention also ignores Proposition 1’s attempt to add a new section, SMC 3.10.060, to

the Spokane code. The passing of Spokane Ordinance C35485 does not render irrelevant

the addition of this new section to the code by an initiative.

       As a general rule, this court will not review a moot question. Citizens for

Financially Responsible Government v. City of Spokane, 99 Wn.2d 339, 350, 662 P.2d

845 (1983). A case is moot when it involves only abstract propositions or questions,

when substantial questions in the trial court no longer exist, or when a court can no

longer provide effective relief. Spokane Research & Defense Fund v. City of Spokane,

155 Wn.2d 89, 99, 117 P.3d 1117 (2005).

       The Washington Supreme Court directs this court to consider mootness because

mootness challenges the jurisdiction of the court. Citizens for Financially Responsible

Government v. City of Spokane, 99 Wn.2d at 350. According to our high court, the

reviewing court should first address whether an issue is moot as opposed to immediately

resolving the merits of an issue. Rosling v. Seattle Building & Construction Trades

Council, 62 Wn.2d 905, 907-08, 385 P.2d 29 (1963).

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Global Neighborhood v. Respect Washington


       The parties forward two conflicting Washington Supreme Court decisions on the

subject of mootness within the setting of an initiative or referendum: Citizens for

Financially Responsible Government v. City of Spokane, 99 Wn.2d 339 (1983), and City

of Yakima v. Huza, 67 Wn.2d 351, 407 P.2d 815 (1965). We review each decision to

discern whether we should declare the validity of some or portions of Proposition 1 moot

because of Spokane Ordinance C35485.

       In City of Yakima v. Huza, chapter 5.50 City of Yakima Municipal Code imposed

a tax on the gross receipts of electricity, telephone, water, sewer, and garbage utilities in

the city of Yakima. In November and December 1961, the city respectively enacted

Ordinances 300 and 308. The ordinances increased the permanent tax rate for the

telephone utility receipts, enacted a temporary surtax for the calendar year 1962 on

electricity and telephone utilities’ receipts, and enacted a tax on the gross receipts for the

calendar year 1962 received by the natural gas company. In April 1962, Stephen Huza

filed an initiative petition with the city clerk. The proposed initiative would repeal the

increased tax rates on the gross receipts of the electricity and telephone utilities, repeal

the tax on the gross receipts of the natural gas company, allow tax credits on future taxes

equal to all increased taxes collected under Ordinances 300 and 308 before their

revocation, and reduce taxes for water, sewer, and garbage services. The initiative

proposed to accomplish its purposes by expressly repealing Ordinances 300 and 308.

       On July 3, 1962, the city of Yakima commenced legal action to challenge Stephen

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Global Neighborhood v. Respect Washington


Huza’s initiative petition on the ground that only the city council held authority to amend

tax measures. On October 29, 1962, before any trial, the Yakima City Council passed

Ordinance 390 that essentially adopted the same measures as Ordinances 300 and 308,

but for the calendar year 1963. Ordinance 390 never mentioned Ordinances 300 or 308.

Ordinance 390 instead directly referenced chapter 5.50, City of Yakima Municipal Code.

       On appeal, the City of Yakima argued that newly enacted Ordinance 390 rendered

moot the right to vote on Stephen Huza’s proposed initiative since Ordinance 390

repealed Ordinances 300 and 308, the two ordinances the initiative sought to repeal. The

Supreme Court agreed. The Court reasoned that the proposed initiative would repeal the

tax measures implanted in Ordinances 300 and 308, but those same taxes would continue

based on Ordinance 390 despite the repeal of the earlier ordinances. The proposed

initiative could have sought to directly repeal provisions of chapter 5.50 of the municipal

code, but failed to expressly mention the code chapter. Although the initiative sought to

repeal the tax increases, the court deemed the initiative worthless because the initiative

did not mention the recently enacted ordinance number or the code sections that then

referenced the taxes. In effect, a city could renumber the ordinance or code section

sought to be repealed by an initiative in order to escape the initiative.

       Three dissenters, in City of Yakima v. Huza, characterized the City of Yakima’s

action as legislative shenanigans, a frustration of the initiative process, and a flagrant

abuse of the judicial process. We agree with the dissenters that a city should not be

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Global Neighborhood v. Respect Washington


allowed to enact later ordinances that readopt the same substantive measures but under

different numbering or coding, in order to obstruct a proposed initiative.

         In Citizens for Financially Responsible Government v. City of Spokane, 99 Wn.2d

339 (1983), citizens filed a referendum with the city of Spokane city clerk, which

referendum would repeal Ordinance C25792, an ordinance imposing a business and

occupation tax. One month later, the Spokane City Council passed Ordinance C25832,

which amended Ordinance C25792. We do not know the nature of the amendments. The

clerk refused to accept the referendum based on the city attorney’s advice that only the

city council held authority to adopt or repeal a tax measure and the measure was

administrative rather than legislative in nature. The citizens sought a writ of mandamus

to compel the filing and processing of the referendum. The superior court granted the

writ.

         On appeal to the Supreme Court, the City of Spokane, while relying on City of

Yakima v. Huza, argued that the proposed initiative became moot with the adoption of

Ordinance C25832, which amended Ordinance C25792, the subject of the initiative. The

Citizens court distinguished Huza on the basis that the later adopted Yakima ordinance

was complete in itself and never referenced the two ordinances sought to be repealed by

the initiative. The later adopted Spokane ordinance merely amended the earlier

ordinance sought to be revoked. The later adopted Spokane ordinance did not stand

alone.

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       Despite distinguishing Huza, the Citizens court wrote that it agreed with the Huza

dissenters that a repealing or reenacting ordinance should not be allowed to frustrate the

initiative process. Accordingly, the Supreme Court will frown on the deliberate efforts

by a legislative body to circumvent the initiative rights of the electorate. The Citizens

court, however, declined to reconsider Huza because of the differences in the effect of the

respective Yakima and Spokane later adopted ordinances.

       We do not know if the Spokane City Council deliberately adopted Spokane

Ordinance C35485 for the purpose of evading Proposition 1. But we need not rest our

decision on any deliberate evasion.

       We doubt the validity of City of Yakima v. Huza after Citizens for Financially

Responsible Government v. City of Spokane, but deem this appeal more aligned with the

facts of Citizens, not Huza. The Citizens court wrote that Huza must be limited to its

unique facts, a comment that may politely overrule Huza. Like the Yakima amending

ordinance in Huza, Spokane’s Ordinance C35485 is complete in itself. Nevertheless,

unlike the Yakima ordinance and similar to the Spokane amending ordinance in Citizens,

Ordinance C35485 refers to the previously enacted code sections, which are the objects

of Respect Washington’s initiative. Although Proposition 1 does not identify the current

code sections that prohibit profiling based on and questioning about one’s citizenship

status, a court or a city official could deem Proposition 1 to now target code sections



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found in Title 18 SMC. Since a new ordinance should not frustrate the initiative process,

we hold that the validity of Proposition 1 is not moot.

       Spokane Ordinance C35485 added refugee and immigration status to citizenship

status as forbidden subjects of questioning and profiling by law enforcement officers.

These additions raise the problem of whether Proposition 1, if passed, would allow

questioning detainees about citizenship status, but not about refugee or immigration

status, despite the three statuses being interrelated. Because we rest our decision on other

grounds, we need not resolve this anomaly.

       Despite the Supreme Court directing us to address mootness first because

mootness impacts the jurisdiction of the courts, mootness does not necessarily preclude

court review. This court may review a moot issue of continuing and substantial interest

that presents a question of a public nature likely to recur. Citizens for Financially

Responsible Government v. City of Spokane, 99 Wn.2d at 351. Washington courts have

repeatedly entertained suits involving the right of initiative or referendum despite

possible mootness because the suits entail substantial public interest. Philadelphia II v.

Gregoire, 128 Wn.2d 707, 712, 911 P.2d 389 (1996); Citizens for Financially

Responsible Government v. City of Spokane, 99 Wn.2d at 351; Leonard v. City of Bothell,

87 Wn.2d 847, 849, 557 P.2d 1306 (1976); Save Our State Park v. Hordyk, 71 Wn. App.

84, 89, 856 P.2d 734 (1993). In Citizens for Financially Responsible Government v. City

of Spokane, the high court ended its opinion by stating that, even if the appeal became

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No. 35528-4-III
Global Neighborhood v. Respect Washington


moot, it would still consider the validity of the initiative because the case presented an

issue of continuing and substantial interest to the public.

       The principle that mootness impacts the court’s jurisdiction conflicts with the rule

allowing this court to hear moot appeals impacting a substantial public interest. If we

have no jurisdiction, we have no authority to hear and determine the case. Bour v.

Johnson, 80 Wn. App. 643, 646-47, 910 P.2d 548 (1996). Nevertheless, assuming this

appeal to be moot, we would proceed to the merits anyway.

                                   Statute of Limitations

       As defenses, Respect Washington asserts both the statute of limitations and the

doctrine of laches. Respect Washington contends either or both should bar Global

Neighborhood’s request for declaratory relief. Respect Washington highlights that, on

February 22, 2016, the Spokane City Council placed Proposition 1 on the November 7,

2017 ballot. Global Neighborhood did not file its complaint until more than one year

later, May 1, 2017. Global Neighborhood did not file its summary judgment motion for

declaratory relief until July 28, 2017.

       We address first the defense of the statute of limitations. Global Neighborhood

brought suit seeking a declaratory judgment. Washington’s version of the Uniform

Declaratory Judgments Act lacks any statute of limitations. The Supreme Court has

announced that a declaratory judgment action must be brought within a reasonable time.

Automotive United Trades Organization v. State, 175 Wn.2d 537, 541-42, 286 P.3d 377

                                             24
No. 35528-4-III
Global Neighborhood v. Respect Washington


(2012). This court has four times stated that, when assessing a reasonable period of time,

we look to an analogous limitation period allowed for an appeal of a similar decision as

prescribed by statute, rule of court, or other provision. Schreiner Farms, Inc. v. American

Tower, Inc., 173 Wn. App. 154, 159-60, 293 P.3d 407 (2013); Cary v. Mason County,

132 Wn. App. 495, 501, 132 P.3d 157 (2006); Brutsche v. City of Kent, 78 Wn. App. 370,

376-77, 898 P.2d 319 (1995); Federal Way v. King County, 62 Wn. App. 530, 536-37,

815 P.2d 790 (1991). The Washington Supreme Court has never adopted this principle of

adoption by analogy.

       Respect Washington forwards three election related statutes of limitations. A

challenge to a statewide initiative or referendum ballot title must be commenced within

five days. RCW 29A.72.080. The deadline for a challenge to a local ballot title is only

ten days. RCW 29A.36.090. A judicial challenge of a refusal by the Washington

Secretary of State to file a statewide initiative must be filed in court within ten days.

RCW 29A.72.180.

       Significant differences lie between a challenge to the title of an initiative and a

challenge to the substance of the initiative. The initiative if adopted will take effect

regardless of any defect in its title. If any lawsuit will remedy the flaw in the initiative’s

name, the lawsuit should be brought in advance of the election and in time for the

Secretary of State or local government official to place a proper title on the ballot. A



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No. 35528-4-III
Global Neighborhood v. Respect Washington


challenge to a refusal to place an initiative on the ballot also should be brought quickly in

order to remedy any wrongful refusal to consign the measure to the ballot.

       A challenge to a local initiative as exceeding the scope of a municipality’s

legislative power may be brought after the initiative election. If the challenge can be

brought after the vote, we should erect no impediment by reason of a statute of

limitations applying before the effectiveness of the initiative as an ordinance.

       We deem the preelection challenge to a ballot initiative analogous to a challenge

to an adopted ordinance or statute. Under state law, no statute of limitations applies to a

challenge to the constitutionality of a statute or other action. Automotive United Trades

Organization v. State, 175 Wn.2d at 542-43 (2012); Viking Properties, Inc. v. Holm, 155

Wn.2d 112, 117, 118 P.3d 322 (2005); DeYoung v. Providence Medical Center, 136

Wn.2d 136, 146-47, 150, 960 P.2d 919 (1998). Similarly, no statute of limitations should

apply to the challenge of an ordinance that exceeds the authority of the entity adopting

the measure whether by its legislative body or the voters by initiative. When a plaintiff

challenges the substance of an agency decision as exceeding statutory authority, no

statute of limitations applies until agency action adversely impacts the plaintiff. Aguayo

v. Jewell, 827 F.3d 1213, 1226 (9th Cir. 2016), cert. denied, 137 S. Ct. 832, 197 L. Ed. 2d

69 (2017). Many Washington decisions have entertained preelection initiative challenges

without suggesting a statute of limitations that applied before the election might bar such

a challenge.

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                                          Laches

       We move to the doctrine of laches. Laches is an implied waiver arising from the

knowledge of existing conditions and acquiescence in them. Buell v. City of Bremerton,

80 Wn.2d 518, 522, 495 P.2d 1358 (1972). One who relies on a laches defense bears the

burden to prove: (1) knowledge or reasonable opportunity to discover on the part of a

plaintiff that he or she has a cause of action against a defendant, (2) an unreasonable

delay by the plaintiff in commencing that cause of action, and (3) damage to the

defendant resulting from the unreasonable delay. King County v. Taxpayers of King

County, 133 Wn.2d 584, 642, 949 P.2d 1260 (1997). Damage to a defendant can arise

either from acquiescence in the act about which plaintiff complains or from a change of

conditions. Lopp v. Peninsula School District No. 401, 90 Wn.2d 754, 759-60, 585 P.2d

801 (1978).

       Generally, laches depends on the particular facts and circumstances of each case.

Schrock v. Gillingham, 36 Wn.2d 419, 428, 219 P.2d 92 (1950). We regard the nature of

the case to be one factor to consider when determining whether laches should be applied.

Lopp v. Peninsula School District No. 401, 90 Wn.2d at 759. Other factors include the

circumstances, if any, justifying the delay, the relief demanded, and the question of

whether the rights of defendant or other persons, such as the public, will be prejudiced by

the maintenance of the suit. Lopp v. Peninsula School District No. 401, 90 Wn.2d at 759.



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No. 35528-4-III
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       Laches is an extraordinary defense that is appropriately applied only when a party,

knowing his rights, takes no steps to enforce them and the condition of the other party has

in good faith become so changed that the party cannot be restored to his or her former

state. Ward v. Richards & Rossano, Inc., 51 Wn. App. 423, 435, 754 P.2d 120 (1988).

Absent unusual circumstances, the doctrine of laches should not be invoked to bar an

action short of the applicable statute of limitation. In re Marriage of Capetillo, 85 Wn.

App. 311, 317, 932 P.2d 691 (1997).

       Global Neighborhood contends that all three elements of laches are missing in this

appeal. Global Neighborhood first contends that the record does not show that it had any

knowledge of the existence of Proposition 1 until it filed suit. We reject this contention

since actual knowledge is not necessary. The first element of laches extends to a

reasonable opportunity to discover on the part of a plaintiff a potential cause of action.

The record shows that the Spokane City Council publicly addressed the placement of

Proposition 1 on the ballot. The record further shows Proposition 1 to be well publicized

in the Spokane environs. The record includes editorials by the Spokesman Review and

the Spokane Journal of Business ruing the anti-immigrant initiative.

       Global Neighborhood waited until May 1, 2017, to file suit despite the Spokane

City Council, on February 22, 2016, placing Proposition 1 on the November 2017 ballot.

Global Neighborhood comments that it filed suit one month after the Spokane City

Council recodified the Spokane Municipal Code’s racial profiling prohibitions into other

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No. 35528-4-III
Global Neighborhood v. Respect Washington


sections in the code. But Global Neighborhood does not suggest that it delayed filing suit

in order to determine if the city council would recodify the provisions. Global

Neighborhood also lacks an explanation for delaying its challenge for more than one

month after passage of Spokane Ordinance C35485. Therefore, we cannot assess the

reasonableness of the delay and, for purposes of this appeal, we assume

unreasonableness. Nevertheless, we find no harm to Respect Washington by reason of a

delay.

         Respect Washington relies on Lopp v. Peninsula School District, 90 Wn.2d 754

(1978), wherein the Supreme Court held that the challengers’ one-month delay after the

special election for a school district bond constituted an unreasonable delay. The

challenger contended that the school district failed to give proper notice of a board

meeting during which the board amended the title to a bond measure submitted to the

voters. Nevertheless, the court found the public to have been harmed by the delay in

challenging the vote approving the bond measure. The school district had received a

favorable bid on the bonds, and, if the district could not accept the bid, it would need to

commence the entire bond offering procedure again. The district would also lose three

months of interest income, and construction plans would be delayed. The delay in

construction would further exacerbate the already congested condition of classroom

facilities.



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Global Neighborhood v. Respect Washington


       Respect Washington complains that the delay in filing suit harmed it because the

delay ensured that the organization could not receive appellate review of a decision prior

to the November 2017 election, and, in turn, Respect Washington could not benefit by the

initiative being on the 2017 ballot. Respect Washington observes that the superior

court’s decision was issued on August 29, 2017, one week before the September 5, 2017

deadline for the ballots to be printed.

       Although we recognize Respect Washington’s right to appellate review, Respect

Washington cites no case that a delay in appellate review constitutes harm for purposes of

laches. Also, Respect Washington’s claim of harm assumes that this court would reverse

the superior court’s decision and allow Proposition 1 to be submitted for a vote. The

claim of harm also assumes that it had the right to a vote on an initiative that exceeded

the initiative power. If anything, the Spokane public is prejudiced by the expense

incurred by the City of Spokane in conducting a special election for an initiative beyond

the scope of the initiative power, such that this court should not dismiss the suit on

laches. The claim of harm also assumes that this court lacks authority to direct placement

of Proposition 1 on a later ballot.

       Respect Washington’s contention also fails to recognize the possibility of

accelerated review by this court. Respect Washington never sought accelerated review.

This court recently granted accelerated review and expeditiously issued an opinion in In

re February 14, 2017, Special Election on Moses Lake School District No. 161

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No. 35528-4-III
Global Neighborhood v. Respect Washington


Proposition 1, 2 Wn. App. 2d 689, 413 P.3d 577 (2018), because of complications

surrounding a vote to approve a school district bond.

                                      Injunctive Relief

       Respect Washington claims that Global Neighborhood and other plaintiff

organizations lack standing to obtain an injunction enjoining the placement of

Proposition 1 on the Spokane ballot. In so arguing, Respect Washington does not

challenge the plaintiffs’ standing to bring this suit. Respect Washington challenges

whether the organizations suffered sufficient harm to gain standing for the issuance of an

injunction. We are unaware of any decision that delicately slices a party’s standing in

this manner.

       Respect Washington challenges the trial court’s ruling that the plaintiffs suffered

“organizational harm.” Respect Washington downplays any harm suffered by the

organizations in diverting resources to assist members in the event Proposition 1 passed.

Respect Washington observes that someone always must change activities if an initiative

passes.

       Respect Washington’s observation that someone always must change activities

when an initiative passes because such is the nature of an initiative does little to bolster

its argument that plaintiff organizations lack standing in our appeal’s context. Respect

Washington apparently contends that, since an initiative always impacts someone, no one

deserves standing to challenge the validity of the initiative. Respect Washington fails to

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No. 35528-4-III
Global Neighborhood v. Respect Washington


consider that someone impacted by the initiative always has standing. The doctrine of

standing generally permits someone injured or impacted by an enactment to challenge the

enactment.

       One who seeks relief by temporary or permanent injunction must show: (1) that he

or she possesses a clear legal or equitable right, (2) that he or she has a well-grounded

fear of immediate invasion of that right, and (3) that the acts complained of are either

resulting in or will result in actual and substantial injury to him. Washington Federation

of State Employees v. State, 99 Wn.2d 878, 888, 665 P.2d 1337 (1983). Because all three

of these criteria must be satisfied to warrant preliminary injunctive relief, the failure to

establish any one or more of the criteria dictates that we deny the requested relief.

Washington Federation of State Employees v. State, 99 Wn.2d at 888.

       All plaintiffs are organizations or associations. A nonprofit organization may

represent its members in a proceeding for judicial review so long as it shows that one or

more of its members are specifically injured by a governmental action. Save a Valuable

Environment v. City of Bothell, 89 Wn.2d 862, 867, 576 P.2d 401 (1978). Organizations

possess standing to assert the interests of their members, so long as the members would

otherwise have standing to sue, the organization serves a purpose germane to the issue,

and neither the claim nor the relief requires the participation of individual members. Five

Corners Family Farmers v. State, 173 Wn.2d 296, 304, 268 P.3d 892 (2011);

International Association of Firefighters, Local 1789 v. Spokane Airports, 146 Wn.2d

                                              32
No. 35528-4-III
Global Neighborhood v. Respect Washington


207, 213-14, 45 P.3d 186, 50 P.3d 618 (2002). An organization also has standing in its

own right with concrete and demonstrable injury to its activities caused by a drain on the

organization’s resources. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S. Ct.

1114, 71 L. Ed. 2d 214 (1982); Fair Housing of Marin v. Combs, 285 F.3d 899, 905 (9th

Cir. 2002). Reading these principles together, we conclude that an organization may gain

standing to sue by either an impact on its own resources or by asserting the rights of or

wrongs to its members.

       We conclude that at least one of the plaintiff organizations has standing on its own

right and through its members. If one plaintiff has standing, the court will not address

whether other challengers have standing. Huff v. Wyman, 184 Wn.2d 643, 649, 361 P.3d

727 (2015); League of Education Voters v. State, 176 Wn.2d 808, 817 n.3, 295 P.3d 743

(2013). A declaration from the chairman of the board of Refugee Connections of

Spokane identifies its mission and the refugee and immigrant community the

organization serves. The declaration explains how Proposition 1 will subject the

organization’s community of service to stops solely because of race or looks despite

community members being present legally in the United States. The declaration explains

that Proposition 1 will impact the organization’s programs and limited resources.

       In addition to holding that the plaintiff organizations possess standing, we

conclude that the City of Spokane also has standing and its standing would alone allow

the suit to proceed. The City of Spokane is a named defendant, not a plaintiff.

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No. 35528-4-III
Global Neighborhood v. Respect Washington


Nevertheless, Spokane sought relief from the superior court and this court. Spokane

takes no position on the merits of the challenge to Proposition 1, but the city does not

wish to incur the cost of an election for an invalid measure. Thus, the City of Spokane

asks this court, as it did the superior court, to enjoin Proposition 1 from the ballot,

assuming the initiative to be outside the scope of the local initiative power. We find no

case that bases standing on the interests of a defendant, but granting standing on such

circumstances is reasonable when the defendant, as does Spokane, seeks relief.

       Case law supports a city’s standing to seek an injunction precluding placing an

invalid initiative on the ballot. In Philadelphia II v. Gregoire, 128 Wn.2d 707 (1996), the

Supreme Court noted that preelection review of a statewide initiative was proper to

prevent public expense on measures that are not authorized by the constitution. Our court

has observed:

              We have recognized that requiring a city to place an invalid initiative
       on the ballot would result in an undue financial burden on the government.

City of Longview v. Wallin, 174 Wn. App. 763, 782, 301 P.3d 45 (2013).

       We recognize a ruling contrary to granting Global Neighborhood standing by

Division One of this court in American Traffic Solutions, Inc. v. City of Bellingham, 163

Wn. App. 427, 260 P.2d 245 (2011). The court held a proposed initiative exceeded the

scope of the local initiative power. The initiative sought to prohibit the use of automated

traffic safety enforcement cameras. A state statute expressly delegated to the city


                                              34
No. 35528-4-III
Global Neighborhood v. Respect Washington


legislative authority the power to adopt such camera systems. Remarkably, the court

refused to grant the initiative challengers injunctive relief to prevent a vote on the

initiative. The court reasoned that the challengers were not injured by the adoption of the

initiative because its adoption would be void.

       American Traffic Solutions, Inc. v. City of Bellingham may be distinguished from

City of Longview v. Wallin in that the challenger in Wallin was the city who needed to

incur the expense of the ballot election. Nevertheless, we consider American Traffic

Solutions, Inc. contrary to other decisions and principles of standing.

                                        Free Speech

       In response to Global Neighborhood’s lawsuit, Respect Washington argues that

Global Neighborhood’s preelection action attempt to invalidate Proposition 1 breaches its

and its members’ right to free speech and redress from the government as protected by

both the United States and Washington Constitutions. Respect Washington relies on

Coppernoll v. Reed, 155 Wn.2d 290, 119 P.3d 318 (2005) for the proposition that

substantive preelection review may unduly infringe on free speech values.

       In Coppernoll v. Reed, our Supreme Court examined whether and under what

circumstances preelection review of a statewide initiative violated article II, section 1(a)

of the Washington Constitution, which provides the power of initiative to Washington

citizens. In considering this issue, the court delineated three distinct and separate

categories of preelection challenges. The Supreme Court categorized challenges to

                                              35
No. 35528-4-III
Global Neighborhood v. Respect Washington


statewide initiatives and then determined which categories suffice for a preelection

challenge. In so doing, the court observed:

              Because ballot measures are often used to express popular will and
       to send a message to elected representatives (regardless of potential
       subsequent invalidation of the measure), substantive preelection review
       may also unduly infringe on free speech values.

Coppernoll v. Reed, 155 Wn.2d at 298. Nevertheless, the Supreme Court announced no

rule that proponents of initiatives hold a First Amendment right to the advancement of the

initiative to the ballot box. Instead, the court recognized the validity of preelection

challenges under some circumstances.

       In City of Longview v. Wallin, 174 Wn. App. 763 (2013), this court rejected a First

Amendment argument identical to the one raised by Respect Washington in this appeal.

Mike Wallin sponsored a local initiative proposing restrictions on the use of traffic safety

cameras. The superior court granted the city’s declaratory judgment request to withhold

the initiative from the ballot because the initiative exceeded the scope of the local

initiative power. On appeal, Wallin argued the trial court’s ruling violated his First

Amendment rights, and he similarly relied on the sentence from Coppernoll v. Reed for

support. This court deemed Wallin’s reliance on Coppernoll unpersuasive, particularly

because the initiative in Coppernoll was a statewide initiative, whereas the initiative

sponsored by Wallin was a local initiative. The local initiative power does not derive

from our state constitution; rather, a statute authorizes this power. The constitutional


                                              36
No. 35528-4-III
Global Neighborhood v. Respect Washington


preeminence of the right of initiative discussed in Coppernoll does not enjoy the same

vigilant protection with respect to municipal initiatives. This court also limited Wallin’s

First Amendment right to free speech to the gathering of signatures on his initiative

petition. The right did not extend to placing the initiative on the ballot.

       In Port of Tacoma v. Save Tacoma Water, 4 Wn. App. 2d 562, 422 P.3d 917

(2018), this court recently again addressed a First Amendment argument in favor of

placing a local initiative on the ballot. The proponents of an initiative to limit the

availability of a municipality’s water service contended that the removal of the initiative

from the ballot violated its right to free speech under the First Amendment of the United

States Constitution and article I, sections 4 and 5 of the Washington Constitution. This

court observed that the United States Supreme Court held that the circulation of an

initiative petition involves the type of interactive communication concerning political

change that entails core political speech. Nevertheless, barring an initiative from the

ballot does not violate the constitution when the initiative lies outside the scope of the

local initiative’s power.

       Other courts have rejected a constitutional right to place an initiative or

referendum on the ballot. Angle v. Miller, 673 F.3d 1122, 1133 (9th Cir. 2012); State ex

rel. Bolzenius v. Preisse, 2018-Ohio-3708, ___ N.E.3d ___ (Sept. 14, 2018). This

rejection follows the principle that a state may entirely decline to grant a right to legislate



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Global Neighborhood v. Respect Washington


through ballot initiatives. Idaho Coalition United for Bears v. Cenarrusa, 342 F.3d 1073,

1077 n.7 (9th Cir. 2003).

                                  Validity of Proposition 1

       We move to the merits of the appeal and address the validity of Proposition 1.

This appeal concerns a municipality’s proposed initiative. The law treats a statewide

initiative different from a local government initiative. Protect Public Health v. Freed,

No. 95134-9 (Wash. Dec. 6, 2018), http://www.courts.wa.gov/ Opinions/

pdf/951349.pdf; Coppernoll v. Reed, 155 Wn.2d at 297 (2005); City of Longview v.

Wallin, 174 Wn. App. at 790 (2013); Philadelphia II v. Gregoire, 128 Wn.2d at 712

(1996). The Seventh Amendment to the Washington State Constitution establishes the

people’s right to statewide initiative, and the courts interpret this power broadly to favor

this right. Coppernoll v. Reed, 155 Wn.2d at 297.

       Our constitution does not extend the initiative or referendum power to cities, but

the legislature has enacted enabling legislation authorizing municipal initiatives and

referenda. City of Longview v. Wallin, 174 Wn. App. at 791. The Washington

Legislature granted charter cities the opportunity to afford city voters the initiative

process. RCW 35.25.200. The City of Spokane exercised this privilege in sections 81

and 82 of the Spokane City Charter. CITY OF SPOKANE CHARTER §§ 81, 82.

       Global Neighborhood filed suit before Spokane residents could vote on

Proposition 1. The law disfavors judicial preelection review of initiatives. Protect

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Public Health v. Freed, No. 95134-9 at 463; Spokane Entrepreneurial Center v. Spokane

Moves to Amend Constitution, 185 Wn.2d 97, 104, 369 P.3d 140 (2016). Courts will,

however, review, before the election, a local initiative to determine whether the proposed

law exceeds the scope of the initiative power. Spokane Entrepreneurial Center v.

Spokane Moves to Amend Constitution, 185 Wn.2d at 104. Washington courts more

readily bar a local government initiative or referendum, than a state initiative or

referendum, from the ballot box since the state constitution authorizes such state ballot

measures.

       No constitutional or statutory provision expressly limits the scope of local

government initiative in Washington State. Neither the Spokane City Charter nor the

Spokane Municipal Code explicitly imposes restrictions on the subject of an initiative.

Nevertheless, case law impresses at least three restraints on a local initiative. First, the

initiative must be “legislative,” not “administrative,” in nature. Second, the initiative

may not interfere with state or federal law. Coppernoll v. Reed, 155 Wn.2d at 297

(2005). Third, the law must grant the municipality as a whole, rather than a board or

council of the municipality, the power to adopt the provision. City of Sequim v.

Malkasian, 157 Wn.2d 251, 261, 138 P.3d 943 (2006). With regard to these restrictions

on citizen rights, a referendum is no different from an initiative, and we treat decisions

involving referenda the same in our discussion.



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       A court may strike the initiative from the ballot if the initiative violates any of the

three limitations. Global Neighborhood relies on the first and second bases. We base our

decision on the distinction between administrative and legislative measures.

       A city council or a county commission, unlike the state legislature, exercises

executive and quasi-judicial functions in addition to legislative functions. Margolis v.

District Court, 638 P.2d 297, 303 (Colo. 1981). At the same time, the power of the

people to enact ordinances by initiative or referendum implicates only the legislative

power of the municipality. Thus, the majority American rule permits ballot initiatives or

referenda only with regard to acts legislative in temperament. City of Aurora v.

Zwerdlinger, 194 Colo. 192, 571 P.2d 1074, 1076 (1977). Otherwise ballot initiatives

could bring the machinery of government to a halt. City of Aurora v. Zwerdlinger, 571

P.2d at 1076.

       The right to act directly through referendum or initiative is not an inherent power

of the people. Ballasiotes v. Gardner, 97 Wn.2d 191, 195-96, 642 P.2d 397 (1982).

Under our state constitution, municipal governments are not fully sovereign and derive

their authority to utility the initiative process from statute, rather than the constitution.

City of Port Angeles v. Our Water-Our Choice!, 170 Wn.2d 1, 8, 239 P.3d 589 (2010).

       RCW 35.22.200 declares, in part:

              The legislative powers of a charter city shall be vested in a mayor
       and a city council, to consist of such number of members and to have such
       powers as may be provided for in its charter. The charter may provide for

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       direct legislation by the people through the initiative and referendum upon
       any matter within the scope of the powers, functions, or duties of the
       city. . . .

(Emphasis added.) In conformance with the statute, Washington case law limits the local

initiative power to legislation or “legislative matters” within the authority of the city.

Spokane Entrepreneurial Center v. Spokane Moves to Amend Constitution, 185 Wn.2d at

107. In turn, the case law distinguishes between “legislative” and “administrative”

measures and precludes administrative matters as the subject of an initiative or

referendum. Spokane Entrepreneurial Center v. Spokane Moves to Amend Constitution,

185 Wn.2d at 107.

       When drawing a distinction between administrative and legislative measures, the

Washington Supreme Court, like other state high courts, has adopted two tests entailing

various factors enumerated in the leading treatise, Eugene McQuillin’s The Law of

Municipal Corporations. City of Port Angeles v. Our Water-Our Choice!, 170 Wn.2d at

11 (2010); Heider v. City of Seattle, 100 Wn.2d 874, 875-76, 675 P.2d 597 (1984);

Citizens for Financially Responsible Government v. City of Spokane, 99 Wn.2d at 347

(1983); Ballasiotes v. Gardner, 97 Wn.2d at 195-96 (1982); Seattle Building &

Construction Trades Council v. City of Seattle, 94 Wn.2d 740, 748, 620 P.2d 82 (1980);

Ruano v. Spellman, 81 Wn.2d 820, 823-24, 505 P.2d 447 (1973); Leonard v. City of

Bothell, 87 Wn.2d at 850-51 (1976); Durocher v. King County, 80 Wn.2d 139, 152-53,

492 P.2d 547 (1972). The latest revision of the McQuillin treatise, from 2013, reads in

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No. 35528-4-III
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relevant part:

               Actions relating to subjects of a permanent and general character are
       usually regarded as legislative, and those providing for subjects of a
       temporary and special character are regarded as administrative. In this
       connection an ordinance which shows an intent to form a permanent rule of
       government until repealed is one of permanent operation. Obviously,
       details which are essentially of a fluctuating sort, due to economic or other
       conditions, cannot be set up in and by an ordinance to be submitted to the
       vote of the people.
               The test of what is a legislative and what is an administrative
               proposition, with respect to the initiative or referendum, has further
               been said to be whether the proposition is one to make new law or to
               execute law already in existence. The power to be exercised is
               legislative in its nature if it prescribes a new policy or plan; whereas,
               it is administrative in its nature if it merely pursues a plan already
               adopted by the legislative body itself, or some power superior to it.
               Similarly, an act or resolution constituting a declaration of public
               purpose and making provision for ways and means of its
               accomplishment is generally legislative as distinguished from an act
               or resolution which merely carries out the policy or purpose already
               declared by the legislative body. In applying the “legislative” versus
               “administrative” test distinguishing on the basis of “new policy or
               plan” versus “pursuit of plan already adopted,” the court will apply a
               liberal rule of construction so that, for example, a resolution
               approving an annexation has been construed as municipal legislation
               in that it was characterized as a new law to which referendum
               powers apply. The distinction between “legislative” and
               “administrative” matters is the distinction between making laws of
               general applicability and permanent nature, on the one hand, as
               opposed to decisions implementing such general rules, on the other.
                       ....
                       Whether a particular municipal activity is administrative or is
               legislation often depends not on the nature of the action but the
               nature of the legal framework in which the action occurs.

5 EUGENE MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 16.53 (3d ed. 2013)

(footnotes omitted).

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       This excerpt from § 16.53 begs several questions, some of which loom important

in our analysis of the validity of Proposition 1. What if the subject of the initiative is

permanent but limited, not general, in character? Where lies the dividing line between an

action general in nature and specific in character? Is an act general in nature because it

applies throughout the entire geographic boundaries of the municipality and limited when

only applying to certain neighborhoods? Or is the act general in nature if it applies to all

persons despite a limited geographical reach and limited if it applies only to a subset of

persons? Is the act administrative in nature if it applies only to the conduct of municipal

employees? If the initiative proposes to reverse recent law does it create new law? If the

initiative proposes to reverse a recent ordinance does it create new law even if the initial

ordinance was administrative in nature? What if the initiative has some characteristics of

an administrative action and some attributes of a legislative act?

       Some principles announced in Washington cases partially answer these questions.

In distinguishing between administrative and legislative proposals, we look at the

fundamental and overriding purpose of the initiative, rather than mere incidentals to the

overriding purpose. Coppernoll v. Reed, 155 Wn.2d at 302 (2005). An initiative is

administrative in nature if it hinders or furthers a plan the local government, or some

power superior to it, has previously adopted. City of Port Angeles v. Our Water-Our

Choice!, 170 Wn.2d at 11. An initiative may be administrative in nature if it conflicts

with state law’s directions to government employees or entities. Seattle Building &

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No. 35528-4-III
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Construction Trades Council v. City of Seattle, 94 Wn.2d at 749 (1980).

       The most learned treatment of the difference between administrative and

legislative municipal actions comes from the Kansas Supreme Court. City of Wichita v.

Kansas Taxpayers Network, Inc., 255 Kan. 534, 874 P.2d 667 (1994); City of Lawrence

v. McArdle, 214 Kan. 862, 522 P.2d 420 (1974). The Kansas high court recognizes that

whether a proposed initiative is legislative or administrative is often a difficult question

to answer in part because no single act of a governing body is solely legislative or

administrative. McAlister v. City of Fairway, 289 Kan. 391, 212 P.3d 184, 193-94

(2009). The question can be fact specific. McAlister v. City of Fairway, 212 P.3d at 194.

No one factor necessarily controls over the others. McAlister v. City of Fairway, 212

P.3d at 195. The court will give consideration to each factor before reaching a final

decision. McAlister v. City of Fairway, 212 P.3d at 195. But in doing so, the weight

given to any one factor may be enough under a particular factual situation to decide that a

proposed ordinance intrudes too far into a city’s administrative arena and thereby

becomes administrative in nature. McAlister v. City of Fairway, 212 P.3d at 195.

       In addition to the traditional factors of general or specific and creating or

implementing policy, the Kansas high court added the technical nature of the proposal as

another consideration. McAlister v. City of Fairway, 212 P.3d at 194. A decision that

requires specialized training and experience in municipal government and intimate

knowledge of the fiscal and other affairs of a city in order to make a rational choice

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No. 35528-4-III
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should be deemed administrative, even though the choice may entail some characteristics

of establishment of policy. McAlister v. City of Fairway, 212 P.3d at 194.

      The Washington Supreme Court, without expressly adopting the specialized

complexion of a municipal ordinance or initiative as a factor, commented on the technical

nature of a measure in Leonard v. City of Bothell, 87 Wn.2d 847 (1976). The Supreme

Court declared as administrative a proposed referendum on a municipal ordinance that

would rezone property from agricultural to community business and would modify the

city’s comprehensive plan to allow a regional shopping center. The court observed:

             Amendments to the zoning code or rezone decisions require an
      informed and intelligent choice by individuals who possess the expertise to
      consider the total economic, social, and physical characteristics of the
      community. Respondent’s planning commission and city council normally
      possess the necessary expertise to make these difficult decisions. The State
      Environmental Policy Act of 1971 (SEPA), RCW 43.21C, emphasizes this
      need for carefully planned land-use decisions. . . . SEPA requires a
      sophisticated understanding of the environmental problems of the project.

Leonard v. City of Bothell, 87 Wn.2d at 854.

      We now analyze the complexion of Proposition 1. In doing so, we consider

Proposition 1 as repealing or modifying the earlier sections of the Spokane Municipal

Code, former SMC 3.10.040, .050, which addressed the same subject matter, the

questioning by police of an individual’s immigration and citizenship status. We

recognize that current Spokane policy allows a law enforcement officer to question a

suspect about his or her immigration status, but limits the circumstances under which a



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police officer may question an individual as to the individual’s immigration status,

citizenship status, or refugee status. The officer may question about status if the officer

holds reasonable suspicion that the person was previously deported from the United

States and is committing or has committed a felony. Current Spokane law and policy

limits the circumstances under which a police officer should forward immigration status

information to the United States Immigration and Customs Enforcement Agency.

Proposition 1 removes any restrictions on any officer or other employee of Spokane to

question one about his or her immigration status or to forward immigration status

information to others.

       We recognize at least one characteristic of Proposition 1 in common with

legislative acts. Proposition 1 adopts a rule of government permanent in nature. An

initiative showing an intent to form a standing rule of government, until it is repealed, is

one of permanent operation. McAlister v. City of Fairway, 212 P.3d at 196.

       Respect Washington argues that Proposition 1 is legislative in nature because of

the additional feature that the initiative seeks to reverse or change city policy. Respect

Washington also contends that, although the subject matter at issue originated as Spokane

Police Department policy, the adoption of the policy by the Spokane City Council

transformed the policy from administrative in nature to legislative in nature.

       Respect Washington analogizes to Citizens for Financially Responsible

Government v. City of Spokane, 99 Wn.2d at 347 (1983), in which citizens wished to

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No. 35528-4-III
Global Neighborhood v. Respect Washington


repeal a business tax after the city council enacted the tax. When conducting the

administrative versus legislative analysis, the Washington Supreme Court analyzed

whether the original ordinance, rather than the citizens’ referendum, was administrative.

The court concluded that the city ordinance was legislative in nature and subject to

referendum. In reaching this conclusion, the court noted that the city ordinance could not

be viewed as an execution of policy already in existence. Rather, the tax ordinance set a

new policy. The Supreme Court did not expressly avow that an initiative that revokes an

ordinance legislative in nature also renders the initiative legislative in nature, the court

ruling implies such. Thus, we agree with Respect Washington that Proposition 1,

assuming the underlying former SMC 3.10.040 and .050 to be legislative, maintains some

legislative character in that the initiative modifies, if not reverses in part, legislative

policy established by the city council.

       Other characteristics of Proposition 1 share features in common with

administrative acts. SMC 3.10.010(B)(1) delegates to the Spokane Police Department

police chief authority to issue rules for the proper functioning of the police department.

The Spokane City Council did not adopt former SMC 3.10.040 and .050 in a vacuum.

The Spokane Police Department had already adopted standing policies with regard to

questioning individuals about immigration and citizenship status. The Spokane City

Council, when adopting former SMC 3.10.040 and .050, merely codified existing police

department policy.

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No. 35528-4-III
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       We recognize the argument that, if the city council adopts a department’s

administrative policy, the policy transforms into a legislative policy. Nevertheless, no

case law supports that contention. If other actions by the city legislative body constitute

administrative action, the adoption of a city department’s administrative regulations can

remain administrative in character. When analyzing the legislative or administrative

nature of a municipal act, courts consider the framework of the action. Proposition 1

challenges a Spokane policy, whose framework’s base consists of administrative building

blocks.

       Proposition 1 interferes with Spokane Police Department policy to limit the

circumstances under which law enforcement officers inquire about immigration and

citizenship status. To repeat, an initiative is administrative in nature if it hinders or

furthers a plan the local government previously adopted. City of Port Angeles v. Our

Water-Our Choice!, 170 Wn.2d at 11. Proposition 1 hinders a policy previously adopted

by the local government similarly to the proposed initiative that interfered in the building

of the King County stadium in Ruano v. Spellman, 81 Wn.2d 820 (1973).

       We recognize that the state Supreme Court, in State ex rel. Pike v. City of

Bellingham, 183 Wash. 439, 48 P.2d 602 (1935), held the fixing of salaries of firefighters

and police officers to be legislative in nature. One might argue that the decision suggests

that administrative affairs of a police department may be legislative in nature.



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No. 35528-4-III
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Nevertheless, the city of Bellingham measure did not directly impact how to administer

services provided by the police department.

       We are unaware of any decision that expressly holds that directions to employees

constitute administrative, not legislative, policy. Nevertheless, logic supports such a

conclusion. Directions to government employees may come from a legislature but

generally derive as administration actions by department heads.

       We observe that the language in former SMC 3.10.040 and .050, in their code

section replacements at SMC 18.07.010 and .020, and in Proposition 1 lack any

declaration of policy. McQullin on Municipal Corporations and impliedly Ballasiotes v.

Gardner, 97 Wn.2d 191 (1982) state that a declaration of policy, or the lack of a

declaration of policy, influences the action as being respectively legislative or

administrative in nature. Since a declaration of policy generally functions as a formality,

we deem this factor of limited assistance. Still, the lack of a declaration of policy in our

operative ordinances and Proposition 1 bolsters our conclusion.

       In addition to relying on Proposition 1 countering a Spokane Police Department

policy, we emphasize the need for expertise on the challenging and charged question of

whether local government agents should question individuals about immigration or

citizenship status. United States legislative policy dictates the removal of those illegally

in the United States, and the federal government operates an agency and a separate court

system to fulfill this dictate. If and when a local law enforcement agency seeks to

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No. 35528-4-III
Global Neighborhood v. Respect Washington


question an individual as to his or her legal status inside the nation’s borders involves a

different query. Case law and literature recognizes the need to weigh conflicting goals

before establishing a policy of asking or withholding questioning regarding one’s

citizenship status. Local law enforcement agencies must also navigate constitutional

protections afforded residents before asking for information on one’s status. These

factors implicate the success of law enforcement efforts and thus questioning should be

reserved to the expertise of law enforcement administrators.

       We discern from its name that Respect Washington seeks respect for all law,

including immigration laws and laws demanding deportation of those unlawfully within

the United States, including within the city of Spokane. Respect for all law is a noble

standard and deporting those unlawfully in the nation a legitimate end to this principle.

But a law enforcement agency that allows officers free reign in questioning anyone as to

his or her citizenship status, such as proposed in Proposition 1, can encounter negative

side effects from such a policy.

       Proposition 1 allows city of Spokane employees to collect information on

immigration status. The collection of data assumes the right to question individuals of

their status. Proposition 1 provides no limits on when a law enforcement officer, or for

that matter any employee of the city of Spokane, can question others about citizenship

status. Spokane Police Department policy and Spokane city ordinances already allow

police officers to question those reasonably suspected to be committing a crime by

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No. 35528-4-III
Global Neighborhood v. Respect Washington


returning to the United States unlawfully after being deported. If law enforcement

officers can already question those for whom probable cause of this federal felony exists,

one wonders under what circumstances city employees will seek information from other

city residents about their status when no probable cause exists. We do not expect law

officers to ask everyone encountered as to his or her status. Our extensive reading of

literature and case law teaches, however, that, without any guidelines, some officers will

inevitably target those persons who look foreign or speak a different language, regardless

of citizenship, for questioning. The practice of questioning some and not others leads to

racial profiling. During oral argument, Respect Washington agreed that asking one his or

her immigration status or citizenship status can be racial profiling under some

circumstances. Wash. Court of Appeals oral argument, Global Neighborhood v. Respect

Washington, No. 35528-4-III (Oct. 23, 2018), 34.55 to 35.15 (on file with court).

       As noted in Parada v. Anoka County, 332 F. Supp. 3d 1229 (D. Minn. 2018):

              A substantial number of Latinos−both U.S. citizens and foreign-born
       residents—are less likely to contact the police or report crimes, even when
       they are victims, because they fear that police will inquire about their
       immigration status. While the U.S. immigrant population is extremely
       vulnerable to crime, police mistrust is common within immigrant
       communities. In Minnesota, law-enforcement agencies fear that the
       immigrant community’s distrust of police results in increased crime against
       immigrants and decreased reporting of such crimes.

332 F. Supp. 3d at 1235-36 (footnotes omitted) (citing NIK THEODORE, INSECURE

COMMUNITIES: LATINO PERCEPTIONS OF POLICE INVOLVEMENT IN IMMIGRATION


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No. 35528-4-III
Global Neighborhood v. Respect Washington


ENFORCEMENT 5-6 (2013); Mai Thi Nguyen & Hannah Gill, Interior Immigration

Enforcement: The Impacts of Expanding Local Law Enforcement Authority, 53 URB.

STUD. 14-16 (Feb. 2016); Jill T. Messing, et al., Latinas’ Perception of Law

Enforcement: Fear of Deportation, Crime Reporting, and Trust in the System, 30 J.

Women & Soc’y. 328, 330 (2015); INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE,

POLICE CHIEFS GUIDE TO IMMIGRATION ISSUES 28 (2007); Sam Torres & Ronald E.

Vogel, Pre and Post-Test Differences Between Vietnamese and Latino Residents Involved

in a Community Policing Experiment: Reducing Fear of Crime and Improving Attitudes

Towards the Police, 24 POLICING: INTERNATIONAL J. POLICE STRAT. & MGMT. 40, 53

(2001)).

       A police chief or sheriff deputy deserves the opportunity to adopt administrative

policies deemed best for his or her jurisdiction in combatting crime, protecting victims,

and allocating limited law enforcement resources. One city police department, in

furtherance of an administrative policy of strict enforcement of all law, may liberally

direct its officers to question about immigration status. Another city police department,

pursuant to other legitimate law enforcement concerns, may direct its line officers to

strictly limit questioning of citizenship status. The populace and law enforcement

sometimes criticize persnickety courts and the legislature for micromanaging methods of

law enforcement. Proposition 1 would further micromanagement.

       Washington case law recognizes as a separate exception to the power of a local

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No. 35528-4-III
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government, to adopt an initiative, a proposal that conflicts with federal or state law.

Spokane Entrepreneurial Center v. Spokane Moves to Amend Constitution, 185 Wn.2d at

108; Coppernoll v. Reed, 155 Wn.2d at 299; Seattle Building & Construction Trades

Council v. City of Seattle, 94 Wn.2d at 746 (1980). This rule fulfills the principle of

primacy of federal and state over local law. Nevertheless, sometimes the separation

between this exception borne of conflict of law blurs with the exception based on

administrative measures or policies. Administrative acts include acts that result from

governmental powers properly assigned to the executive department and necessary to

carry out legislative policies and purposes already devolved on a municipal body by the

law of the state. In re Referendum Petition to Repeal Ordinance 04-75, 388 N.J. Super.

405, 908 A.2d 846, 850 (2006), aff’d [and judgment modified], 192 N.J. 446, 931 A.2d

595 (2007). When a municipal government complies with and places into execution a

state or local legislative mandate in adopting an ordinance, the municipality exercises a

ministerial and administrative function not subject to referendum. In re Referendum

Petition to Repeal Ordinance 04-75, 908 A.2d at 851. Therefore, if a proposed initiative

covers a direction from state law but conflicts with that direction, the initiative might also

be considered administrative in nature.

       As indicated in the opening of the factual section, RCW 43.101.410 precludes law

enforcement agencies from racial profiling. Racial profiling of any kind is anathema to

our criminal justice system. Chavez v. Illinois State Police, 251 F.3d 612, 635 (7th Cir.

                                             53
No. 35528-4-III
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2001). Global Neighborhood also forwards RCW 10.40.200(1), which prohibits the

collection and dissemination of immigration information during the plea stage of a

criminal proceeding. Proposition 1 would place city employees, such as city prosecutors

and public defenders, in a situation that conflicts with the statute.

       The current Spokane Police Department policy limiting questioning of individuals

about immigration status and citizenship status also fulfills strictures of federal law.

Under federal constitutional law, an officer may not rely solely on the appearance of an

individual in questioning about immigration status. United States v. Montero-Camargo,

208 F.3d 1122, 1131-32 (9th Cir. 2000). Instead questioning must be based on individual

suspicion. United States v. Montero-Camargo, 208 F.3d at 1133. Proposition 1 would

allow an officer to approach anyone of his or her choosing on the street and ask the

person as to his or her immigration or citizenship status.

       A law enforcement officer does not breach the Fourth Amendment when the

officer’s questioning of a detainee’s immigration status does not prolong the stop.

Muehler v. Mena, 544 U.S. 93, 101, 125 S. Ct. 1465, 161 L. Ed. 2d 299 (2005).

Nevertheless, a law enforcement officer violates one’s rights by delaying one’s release

from a stop in order to ascertain the detainee’s immigration status. Illinois v. Caballes,

543 U.S. 405, 407, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005). One wonders how a law

enforcement officer can inquire about one’s immigration status without prolonging the

stop when inquiring about the status necessarily prolongs the detainment.

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No. 35528-4-III
Global Neighborhood v. Respect Washington


       An individual's race, standing alone, is not an appropriate factor for assessing

reasonable suspicion in the immigration enforcement setting. United States v. Salinas,

940 F.2d 392, 394 (9th Cir. 1991). An individual's difficulty in speaking English also

does not constitute a valid race-neutral basis for initiating an immigration investigation.

Farm Labor Organizing Committee v. Ohio State Highway Patrol, 308 F.3d 523, 539

(6th Cir. 2002). The Equal Protection Clause prohibits a police officer from selecting one

for a consensual interview solely on the basis of the person's race. Farm Labor

Organizing Committee v. Ohio State Highway Patrol, 308 F .3d at 539.

                                      CONCLUSION

       We affirm the superior court's grant of an injunction precluding the placement of

Proposition 1 on the ballot for a vote by Spokane voters.



                                              Fea~4?~'
WE CONCUR:




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                                            55
No. 35528-4-III
Global Neighborhood v. Respect Washington
Appendix


                                        APPENDIX


       We list in reverse chronological order and tersely discuss Washington cases that

address the validity of an initiative and that inform our decision.

       In Protect Public Health v. Freed, No. 95134-9 (Wash. Dec. 6, 2018), the

Supreme Court held that a proposed initiative to ban public funding for community health

engagement sites went beyond the scope of the local initiative power. The sites would

afford a safe location for injecting drugs. The initiative interfered with the budgetary

authority of the King County Council. RCW 36.40.080 and .250 granted to the county

council the authority to fix each item of the budget. RCW 70.12.025 directed each

county legislative authority to annually budget and appropriate sums for public health.

       In Port of Tacoma v. Save Tacoma Water, 4 Wn. App. 2d 562 (2018), a political

committee submitted two initiative petitions. One initiative proposed an amendment to

the Tacoma City Charter and the other sought to enact a new municipal ordinance. The

two initiatives contained similar text that would require a vote of Tacoma residents

before the city extended water service to applicants seeking at least one million gallons of

water daily. Corporations that violated the provisions would be deemed nonpersons. The

Court of Appeals denied the measure a vote on the basis that the proposition was

administrative and conflicted with state law. The Tacoma Municipal Code already

outlined a process for applications for water service. The initiative would impose

                                             56
No. 35528-4-III
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Appendix


additional application requirements on certain large users. A state statute required that a

municipal water supplier provide retail water service under certain conditions. The

initiative would deny service to some potential customers under additional circumstances.

       In Spokane Entrepreneurial Center v. Spokane Moves to Amend Constitution, 185

Wn.2d 97 at 101, 110 (2016), the state high court held a local measure that would require

any proposed zoning changes involving large developments to be approved by voters to

be contrary to established water rights system and thus administrative. The court

declared the initiative invalid.

       City of Longview v. Wallin, 174 Wn. App. 763 (2013), the city brought an action

for a declaration that the ballot initiative proposing restrictions on the use of traffic safety

cameras was beyond the scope of the local initiative power. This court agreed. A state

statute expressly delegated to the city legislative authority, rather than the city as a whole,

the power to adopt such camera systems.

       In American Traffic Solutions, Inc. v. City of Bellingham, 163 Wn. App. 427

(2011), this court held a proposed initiative exceeded the scope of the local initiative

power. The initiative sought to prohibit the use of automated traffic safety enforcement

cameras. A state statute expressly delegated to the city legislative authority the power to

adopt such camera systems. Remarkably, the court refused to grant the initiative

challengers injunctive relief to prevent a vote on the initiative. The court reasoned that


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Appendix


the challengers were not injured by the adoption of the initiative because its adoption

would be void. This decision might be distinguished from City of Longview v. Wallin in

that the challenger in Wallin was the city who needed to incur the expense of the ballot

election.

       In City of Port Angeles v. Our Water-Our Choice!, 170 Wn.2d 1 (2010), the

Supreme Court declared an initiative attempting to reverse implementation of a city water

fluoridation program to be administrative. The court emphasized that the city council’s

decision to fluoridate potable water was made pursuant to an existing water management

plan and detailed state administrative regulations governing water. Both state and federal

government promulgated water regulations.

       In Futurewise v. Reed, 161 Wn.2d 407, 166 P.3d 708 (2007), challengers sought

declaratory and injunctive relief to prohibit the Washington Secretary of State from

placing, on the general election ballot, Initiative 960 (I-960), which if enacted would

amend state statutes to require two-thirds legislative approval or voter approval for the

raising of taxes. The initiative would also require advisory votes on tax increases enacted

without voter approval. The Supreme Court denied relief. A unanimous court held that

the initiative was not subject to preelection review on the ground that, if enacted, it would

conflict with, and therefore improperly “amend,” the state constitution without complying

with procedures for amending the state constitution.


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       In City of Sequim v. Malkasian, 157 Wn.2d 251 (2006), the Supreme Court

precluded placement on the ballot an initiative that would impose additional requirements

on revenue bonds. The pertinent statutory scheme assigned authorization for issuing

revenue bonds to the city council.

       In Coppernoll v. Reed, 155 Wn.2d at 293 (2005), the Supreme Court addressed a

statewide initiative that would restrict noneconomic damages in claims for negligent

healthcare to $350,000, shorten time limits for filing suit, and limit attorney fees for

claimants. Challengers to the initiative claimed the initiative to be unconstitutional under

settled Washington law. The court refused to address the constitutionality of the

initiative. The court also deemed the initiative to be within legislative powers in that it

addressed a general subject matter that being causes of action and the practice of law.

       In Maleng v. King County Corrections Guild, 150 Wn.2d 325, 76 P.3d 727 (2003),

the King County prosecutor filed suit to enjoin the placement on the ballot of a proposed

initiative to reduce the size of the county council. The court held the process of

amending a city charter to be legislative in character and thus subject to an initiative.

       In Priorities First v. City of Spokane, 93 Wn. App. 406, 968 P.2d 431 (1998), a

political action committee petitioned for a writ of mandamus directing the city of

Spokane to place on the ballot an initiative that would require the city to obtain voter

approval before pledging parking meter revenue to fund a parking garage. This court


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denied relief because the initiative conflicted with the authority delegated by state statute

to a city’s legislative body.

       In Snohomish County v. Anderson, 123 Wn.2d 151, 868 P.2d 116 (1994), the court

stopped an initiative that would impact a county’s planning scheme. The court observed

that RCW 36.70A.210(2) authorized the county legislative authority to adopt countywide

planning policy.

       In Heider v. City of Seattle, 100 Wn.2d at 876 (1984), the Supreme Court held a

proposed change of a city street name to be administrative in nature and thus not a proper

subject for an initiative. The court deemed the first test of legislative versus

administrative helped little since a street name change is of a permanent character and not

general in character. Also, the change could be deemed as “‘special’” but not

“‘temporary.’” The second test helped, however. The name change ordinance merely

amended Seattle’s comprehensive street names ordinance. Therefore, the ordinance

should be characterized as administrative, since it was enacted pursuant to a plan already

adopted by the legislative body itself.

       In Citizens for Financially Responsible Government v. City of Spokane, 99 Wn.2d

339 (1983), the city passed an ordinance enacting a business and occupation tax.

Through a referendum, city citizens sought repeal of the tax. When conducting the

administrative versus legislative analysis, the court analyzed whether the original


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ordinance enacting the tax was administrative. The court did not analyze, as most other

case law does, whether the citizens’ referendum was administrative in nature. The court

ultimately concluded that the city ordinance was legislative in nature and subject to

referendum. In reaching this conclusion, the court noted the city ordinance could not be

viewed as an execution of policy already in existence. Rather, the court viewed the

ordinance as setting a new policy. The ordinance never referenced a policy already in

existence.

       In Ballasiotes v. Gardner, 97 Wn.2d 191 (1982), Pierce County adopted an

ordinance that converted the existing lever machine voting equipment to punch card and

computer tabulating voting equipment. The ordinance affirmed a previous decision made

by the executive power of the county to change to a punch card system. Nevertheless, the

county council ordinance declared it to be the policy of the county to implement the

punch card system. Citizens sought a referendum to return the county to the lever

machine system. The Supreme Court held the measure to implement a punch card voting

system to be “legislative” in character and referendable. Affirming an executive decision

did not render the decision administrative. The court also held that the act of funding the

new punch card system was legislative in character.

       In Seattle Building & Construction Trades Council v. City of Seattle, 94 Wn.2d

740 (1980), the Supreme Court held that a proposed city initiative that sought to prohibit


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expansion of Interstate 90 facilities on a lake went beyond the scope of the initiative

power. A state statute declared the interstate highway a state route. The State held title

to the highway and assumed full jurisdiction, responsibility, and control of the roadway.

A city held power over a state highway only to the extent authorized by the state

legislature. Thus, any such powers constituted administrative powers.

       In Leonard v. City of Bothell, 87 Wn.2d 847 (1976), citizens sought to compel a

referendum election on a municipal ordinance that would rezone property from

agricultural to community business and would modify the city’s comprehensive plan to

allow a regional shopping center. The Supreme Court held that the ordinance was

administrative in nature and not subject to referendum election. The municipality acts in

a legislative capacity when adopting a zoning code and a comprehensive plan, but in an

administrative capacity when enacting amendments to the zoning code or rezones and

amendments to the comprehensive plan because the municipality then implements the

earlier plans. Also, a rezone is quasi-judicial in character and thus not subject to a

referendum. Finally, under statute the legislature granted to the city council, not the

municipality as a whole, the power to adopt and implement zoning.

       In Ruano v. Spellman, 81 Wn.2d at 825 (1973), the King County Council voted to

build a county stadium and sold bonds to finance the construction. Citizens filed an

initiative to repeal the resolution authorizing the project, to revoke the bonds to finance it,


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and to prohibit spending funds for further development. The Supreme Court noted that,

while the original decision to build the stadium was legislative, all that remained was for

the county and its agents to execute an already adopted legislative determination. Under

these facts, the court held only administrative decisions remained in connection with the

stadium project, decisions not subject to the initiative process.

         In State ex rel. Guthrie v. City of Richland, 80 Wn.2d 382, 494 P.2d 990 (1972),

the city of Richland adopted an ordinance that extended its water and sewer system to

annexed land and issued bonds to pay for the extension of the system. Citizens then

sought a referendum to overturn the ordinance, but the city clerk refused to validate the

petitions for the referendum. The Supreme Court denied a writ of mandamus directing

the city to submit the referendum to a vote. The court held that an ordinance providing

for additions, betterments, and extensions to a municipally owned waterworks, financed

by revenue bonds, was not subject to a referendum vote. A statute delegated to the

governing body of the city the authority to construct and finance a sewer and water

works.

         In Durocher v. King County, 80 Wn.2d 139 (1972), the King County Council

granted companies an unclassified use permit with conditions for a tract of land.

Thereafter, the council decided to submit the issuance of the permit to the voters in a

referendum. The Supreme Court held the issuance of a use permit to be administrative


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primarily because the Washington Constitution and King County Charter delegated the

power to issue the permits to the county council.

       In Paget v. Logan, 78 Wn.2d 349, 474 P.2d 247 (1970), the Supreme Court held

the selection of a public stadium site constituted a legislative rather than administrative or

executive act. The court emphasized that a statute declared the acts of locating,

financing, constructing, and operating public stadium facilities to be for public purposes

and another statute conferred the power of eminent domain on the county to accomplish

the public purpose. Significant and inherently legislative problems revolving about

streets, traffic, parking, public transportation, utilities, and service facilities become

necessarily entwined and interrelated with the choice of any given site. Challengers to

the initiative argued that rendering the stadium site selection a legislative rather than an

administrative function would frustrate the efficiency of government and promote endless

debate and indecision with respect to finalizing any chosen site. The court qualified its

ruling by noting that, at some point in time, a proposed stadium project might progress to

a point when only administrative decisions will remain to complete the project such that

any initiative measures concerning site selection would be inappropriate.

       In State ex rel. Linn v. Superior Court for King County, 20 Wn.2d 138, 146 P.2d

543 (1944), the court adopted the rule that amending a city charter is legislative in

character and may be the subject of a referendum. The court, however, denied the


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proponents of the initiative a writ directing the county to place the initiative on the ballot

since the proponents had not followed the correct process.

       In State ex rel. Payne v. City of Spokane, 17 Wn.2d 22, 134 P.2d 950 (1943), the

city of Spokane fire chief sued to compel city commissioners to submit to voters a

proposed initiative to increase the pay of members of the fire department. The Supreme

Court held the fixing of salaries to be a legislative function and subject to an initiative.

The city charter placed the fixing of salaries under an article devoted to “Administration

of City Affairs.” This classification was not controlling because the courts, not the city,

determine the nature of the task.

       In State ex rel. Pike v. City of Bellingham, 183 Wash. 439 (1935), the Supreme

Court held the fixing of salaries of firefighters and police officers to be legislative in

nature. Thus, an initiative could establish those salaries.




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