For anti-tunnel die-hards pushing or signing the referendum to block city participation in the project, the road to the ballot leads through the courtroom. It's going to be a very twisting road.
Seattle City Councilmember Mike O'Brien, who cast the lone no vote when the council overrode Mayor Mike McGinn's veto of an ordinance accepting three memoranda of agreement with the state, makes that very clear. (The memoranda cover design review, permitting, environmental remediation, City Light work, and other basic project details.) At the contentious council meeting on February 28 — the 10th anniversary of the Nisqually quake that made viaduct safety both a genuine issue and a stalking horse for real estate redevelopment schemes — at which the mayor got slapped down 8-1, O'Brien said, "I guess I head out to the streets and try to collect signatures" for the referendum.
But he says he has also been collecting informal legal opinions, since he realizes that legal challenges are inevitable. He's not sure who will ultimately win. He's not even sure who will wind up on which side.
First, tunnel opponents must collect 16,503 signatures by the end of March. If they hit that magic number, the measure could reach the ballot on August 16.
Or not. The city council has to vote to put it on the ballot. If the council does, tunnel backers will presumably sue to block the action, and the city attorney, defending the city's action, will argue that the people should have a chance to vote. If the council votes to keep it off, tunnel opponents will sue, and the city attorney will argue that the people should not get to vote. “I'm pretty certain there will be a legal challenge,” OBrien says. “The question is which side will the city attorney be on.”
Should the referendum make it to the ballot and pass — one shouldn't bet against its passage — it would undoubtedly face a post-election challenge. Neither side will go down without a fight.
People have tried to keep initiatives and referenda off ballots for years. They have seldom succeeded. “Preelection review of initiative measures is highly disfavored,” the state supreme court explained four years ago in Futurewise v. Reed (167 Wn.2d 407), when it rejected a suit to keep Tim Eyman's Initiative 960 off the ballot before the people had a chance to vote.
But courts have decided that some issues are not subject to referendum. (They're not “referendable,” if you like.) Any decision that is legislative in nature can be challenged. But a decision that is merely administrative cannot. The ordinance in question states clearly that the council acted under its legislative authority. But that doesn't mean it acted legislatively.
“I would argue that [February's 8-1 vote] was a policy decision,” OBrien says. But he knows that other people disagree. In fact, he concedes, there's “some momentum behind” the opposite view. One can argue that the city council had already made its basic policy decision.
The February 28 ordinance itself noted that “in October 2009, the City Council passed and the Mayor signed Ordinance Number 123133, which established the Bored Tunnel Alternative as the City's preferred alternative and which authorized a memorandum of agreement between the State of Washington and the City of Seattle; and . . .In August 2010, the City Council passed Resolution Number 31235, which expressed the City Council's intent to authorize additional agreements with the State.” One can argue that by February 28, the policy decision was a done deal, and the council was just just settling a few administrative details.
Legal thinking on the subject of what a referendum can and can't attack has been shaped by the state supreme court's Ruano decision (Ruano v. Spellman, 81 Wn.2d 820) of 1973. This concerned the building of the Kingdome, the concrete domed stadium, in which the Mariners, the Seahawks, and the Sounders of the old North American Soccer League once played, south of Pioneer Square. It was imploded in 2000 to make room for Qwest Field.
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