Is the referendum on Seattle's tunnel legal?
It's bound to touch off lots of lawsuits. It's clear that courts, while reluctant, have barred some measures from these kinds of public votes, but it's far from clear what would happen in this case.
WSDOT
Alice Wheeler
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.
The Seattle establishment decided it wanted a domed stadium that could attract big-league sports to the city, and in 1968, finally got the citizens to vote yes. The question then became where to build the stadium. A state commission chose a site near the Seattle Center. The plan went before King County voters in 1970. The voters said no. Then, the county chose the current Qwest site. It had already decided to buy the land, issue the bonds, etc., when opponents launched an initaitive to force the county to cancel the project and pay back the bonds. They got enough signatures, but the county refused to place it on the ballot. They went to court. The county won. (The Kingdome opened in 1976.)
”The right to act directly through either the initiative or referendum is not an inherent power of the people,” the state supreme court explained. “In the concept of direct participation by the people in the legislative process, there is an inherent limitation that the power extends only to matters legislative in character as compared to administrative actions.”
That being the case, “[t]he question then is whether any legislative determination — subject to the initiative — remained to be made in connection with the [Kingdome] project. Several criteria have been suggested for determining whether an act is legislative or administrative. One such is whether the subject is of a permanent and general character (legislative) or of temporary and special character (administrative). We believe a preferable standard, at least for this case, to be whether the proposition is one to make new law or declare a new policy, or merely to carry out and execute law or policy already in existence.
”There is no doubt,” the court said, “that the original decision to erect a stadium was legislative in nature. … By its vote the electorate had declared its legislative policy to build a multipurpose stadium, to finance it by bonds, and to repay those bonds from specified sources. The legislative decision on site selection had been made. No new law would be involved in expending funds for those declared purposes. The county and its agents in making those expenditures simply were executing an already adopted legislative determination.”
Does that match the current circumstances or not? In general, courts avoid kicking initiatives or referenda off the ballot on grounds that they would just be thrown out later. Let the people vote, the justices have said; then decide. It's kind of like the constitutional doctrine of “prior restraint": you don't prevent people from speaking. You let them speak. Then, if they've broken the law or committed libel, you go after them for that.
Which would clearly happen if the initiative got onto the ballot and passed.
Even if it passed and were upheld by the courts, though, it wouldn't legally bar the state from doing whatever it wanted to do. The fact that the tunnel would run through the incorporated city limits along city-owned rights-of-way wouldn't matter. Cities are creatures of the state. Unlike the runaway computer Hal, in Stanley Kubrick's classic sci-fi movie "2001: A Space Odyssey," they can't turn against those who made them.
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Comments:
Posted Wed, Mar 16, 2:58 a.m. Inappropriate
And that neatly summarizes the entire article. This is one instance in which The Rest of the State is going to lead Seattle, not the other way around. Sorry, folks, State Route 99 isn't going to be replaced with a bike lane, no matter what the city does.
Posted Wed, Mar 16, 8:26 a.m. Inappropriate
If as before 70% of the voters reject the tunnel, the city council may very well sit up and take notice no matter what the legality of the ruling is. In that case, no tunnel may get built.
What is much more interesting is whether the Mayor can get the viaduct shut down in 2012 as the state originally proposed. It's a death trap waiting for a minor earthquake to fall over.
Posted Wed, Mar 16, 8:50 a.m. Inappropriate
Time to recall the City Council. Why wait to vote them out next time around? Is this a democracy, or an autocracy?
Posted Wed, Mar 16, 9:16 a.m. Inappropriate
The polls have looked pretty good for the tunnel lately, i.e. several months ago. Not because a majority love the tunnel, but because enough said "do it anyway" to form a small majority.
(Since the poll, the news has been good with a bid on-budget and a quicker schedule...greately reducing the chance of a "bust" that could have happened at that stage. Put that alongside the need for a solution soon rather than waiting another two years for another solution, and I predict a close win. The futility of the vote might work against it, or might work for it.)
One point the article doesn't touch on is that suburbanites will generally be in favor of capacity in some form. Much as West Seattle tends to have a lot of elevated supporters, so does (presumably) Burien, Edmonds, etc. The State leadership knows this, and that will trump any plan to just get rid of it.
Posted Wed, Mar 16, 9:16 a.m. Inappropriate
The waterfront is great theater but it is serious business as well. Seattle loves public input especially outspoken popular minority opinions. That's admirable but we have a "representative" government. Sorry but it is impossible to have a democracy, where every citizen can make an informed decision. It's way past the time for the unelected to continue to push their opinion and agenda on our elected officials through the referendum process. I hate to say it but when the viaducts comes down while it is in use - those hurt will ve victums of an unending popular paralysis of the action our elected officials should have the right to excersize. We need to move on and quickly...
Posted Wed, Mar 16, 11:02 a.m. Inappropriate
"This is one instance in which The Rest of the State is going to lead Seattle, not the other way around."
Something to think about while driving down the R. H. Thompson Expressway.
Posted Wed, Mar 16, 12:01 p.m. Inappropriate
The legislature can't wait to call a Special Session in August to act on the opinion from Seattle. Just watch TVW, folks from all over the state a being "gaveled" by the Speaker of the House for not speaking to the bill before the body, for wandering off into rants on what the folks in Seattle think about legislation that has already passed. It is sad, really, they love us so much.
The "short" Session next January will be too late to stop what they decided on last year.
Posted Wed, Mar 16, 1:51 p.m. Inappropriate
It's virtually impossible to attack the existing viaduct on any issues except safety, and that was addressed in the three rejected elevated plans. Love it or hate it, the viaduct provides the most capacity and flexibility for traffic mobility for the region.
Perhaps the biggest benefit of a referendum would be to open the process and review the trade-offs and manipulation that resulted in this current mess. The 2+ billion extra dollars for a tunnel that reduces capacity for commuters is related to the 2-3 billion extra dollars being spent for the Montlake friendly Option K solution for I-520. Voters may lay down for some abuse, but we’re talking about game changing amounts of wasted tax dollars here, accompanied with the launch of tolling to try and make up the deficits. Kind of a pay me now. AND, pay me later game.
And unlike issues that pass quickly from voter’s memories, they’ll be constantly reminded of who did what every time they sit gridlocked in the resulting traffic.
Still time to do the right thing.
Posted Wed, Mar 16, 3:18 p.m. Inappropriate
I do not agree that those two things are related in reference and context of the article.
What has happened and when is pretty important.
Posted Wed, Mar 16, 3:46 p.m. Inappropriate
I believe that the surface only option will be a non-starter for obvious, quantifiable reasons no matter who endorses it. The tunnel is a poor choice because of enormous costs, uncertain engineering and poor support everywhere but downtown. So, if someone wakes up and smells the coffee a refurbished viaduct could stay in service for many years and 2 billion dollars could be saved and spent on something else.
As to the connection between our two mega-projects please find this 3-26-2009 Crosscut article by David Brewster titled “When Chopp Speaks, Parse It Closely.
http://crosscut.com/blog/crosscut/18899/When-Chopp-speaks%2C-parse-it-closely/
Pretty accurate so far…still waiting for the rest of the story.
Posted Wed, Mar 16, 5:38 p.m. Inappropriate
Please see this article.
The 2009 story was timely, then.
Posted Wed, Mar 16, 5:51 p.m. Inappropriate
The surface only option is a non-starter, but that will not be on the ballot, neither will a retro, or rebuild if a viaduct. What will be on the ballot is a "no".
Faced with no alternative to the "no" the state will keep going.
If the "no" people are lucky they could get a dialog in next year's short session, but not a discussion.
The "no" folks should be prepared to tell the chairman of the Senate Ways & Means Committee, Ed Murray, what the preferred option is. What is the "yes", and when would that vote take place?
This carnival is about a year late.
520, on the other hand had active state legislation last year, and will have to see more from the state.
There isn't any required state legislation for the tunnel to start construction, even the fee setting is debatable as needed legislation.
Posted Wed, Mar 16, 6 p.m. Inappropriate
Here’s a Crosscut article relating to Mr. Watson’s discussion of about multiple preferences for the AWV from a Jan. 2009 story called, How Jan Drago dragooned a Viaduct solution
In it she takes credit for concocting the million dollar fake referendum designed to confuse the tunnel vs. viaduct issue for the voters. She states in the article that, “Had it been a single vote, tunnel vs. elevated, we [tunnel supporters] would have been dead on arrival.”
You can read it here:
http://crosscut.com/2009/12/27/seattle-city-hall/18780/Best-of-2009:-How-Jan-Drago-dragooned-a-Viaduct-solution/
You can still claim that a surface only option is a viable solution but I would be surprised if anyone will eliminate one of the most successful north/south arterials in the city to find out.
-Mr Baker...it's still happening sir.
Posted Wed, Mar 16, 6:12 p.m. Inappropriate
You should have that discussion with the mayor and proponents of the August vote.
Put all three on a ballot, there isn't a majority "yes".
You, and the folks giving this the Surface treatment, have a majority "no" but not a majority "yes".
Posted Thu, Mar 17, 12:16 p.m. Inappropriate
If keeping the viaduct "viable" as long as possible were really the issue, then repairing the seawall could add years to it's life. If you look at the WSDOT video, the seawall fails first, then the pillars slide toward the sea as the land around them sluffs seaward. Then the viaduct falls, and somehow concrete miraculously explodes into a fireball. The video editors should work for Hollywood.
But seriously the problem with viaduct repair is that it could cost a large amount of money which WSDOT would rather throw at a replacement. (tunnel or viaduct.)
Thing is people use it because it exists. If it didn't exist, people would find another way around. Hence the surface option. I'm with the Mayor, shut it down for a month and see what happens. I bet over 1/2 the traffic just "disappears".
As for voters in Burein, Everett, et.al. they aren't on the list of registered voters for a Seattle petition. Who cares what they think?
Posted Thu, Mar 17, 1:15 p.m. Inappropriate
The question to answer is not whether public disapproval is legal or not.
The question to answer is which AWV replacement alternative fulfills the the objective of managing traffic and justifies the major investment.
The bored tunnel does not achieve this objective because it worsens traffic through Alaskan Way, Lake Union, Queen Anne and Denny Triangle.
An elevated leaves 1st Ave in its current state of too much traffic and an unsightly overhead highway blight on Lower Belltown.
The surface/transit option offers fixes for I-5. It reduces traffic leading to/from the worst access ramps onto dangerously steep surface streets. It improves transit, Seattle's only recourse to deal with its hills. It retains the Battery Street Tunnel. It brings the AWV down soonest.
The 'stacked' 6-lane Cut/cover Tunnel displaces the least amount of traffic onto surface streets. It makes the strongest seawall. It retains the existing access to SR99 in Lower Belltown. It closes Columbia/Seneca ramp access to 1st Ave where there is too much traffic, and further reduces traffic leading to those ramps on the aforementioned dangerously steep sidestreets.
The question to answer is which AWV replacement alternative fulfills the the objective of managing traffic and justifies the major investment.
The answer is building either the surface/transit option or the 'stacked' Cut/cover Tunnel. The surface/transit option does not rule out building the cut/cover eventually or while rebuilding the seawall.
The answer is NOT the bored tunnel nor an elevated. Duuuuh.
Posted Fri, Mar 18, 3:19 p.m. Inappropriate
There is no law preventing Seattle from implemently a surface/transit option. The surface/transit improvements would likely have to be financed by the city anyhow. The real vote should be on Seattle financing surface improvements. If the city were to do that they would show the state a surface option is preferable and workable and that the city is serious about that being their direction. The antitunnel opposition is made up of so many different coalitions that a no vote is almost certain and meaningless. It is made up of viaduct rebuilders, cut and cover nuts, surface/transit supporters, conservatives, environmentalists, liberals, anti car folks, libertarians, suspension bridge supporters, anti toll people, homeless supporters; the list grows daily. All these people have one thing in common, they are Seattle voters, the rest of the region gets shut out. The Tacoma Narrows Bridge vote was more inclusive than this initiative.
Posted Fri, Mar 25, 11:46 a.m. Inappropriate
I think the tunnel is stupid. Without downtown on-ramps and off-ramps it's just a tolled downtown bypass running close to a free downtown bypass (I-5).
So it isn't surprising that I signed the petition to put the tunnel up to a vote.
That said, I think the tunnel is inevitable because the people who want it - for their own profit - are more politically powerful than the rational people who know it is a stupid idea.
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