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.
County government, too, is subordinate to the state. That was the gist of the court decisions that tossed out a referendum on King County's controversial critical areas ordinances, passed in 2004. The court said that the county was merely following the dictates of the state Growth Management Act, and county voters couldn't weigh in on a duty imposed by the state: “The sovereignty of the people of individual localities gives way to the people of the State's greater sovereignty.”
That isn't a new concept. Seattle voters ran up against it back in 1980, after they passed Initiative 21 to block construction of additional I-90 car lanes across Lake Washington into the city. (A floating bridge for westbound lanes hadn't yet been built, so traffic was still crammed into four lanes between Mercer Island and Mount Baker.) The courts tossed Initiative 21 out. “The fundamental proposition which underlies the powers of municipal corporations is the subordination of such bodies to the supremacy of the legislature,” the supreme court said in Seattle Building Council v. Seattle (94 Wn.2d 40).
“The obvious intent and thrust of Initiative 21," it explained, “is to forbid continuation of that [I-90] project and all other limited access facilities which might be proposed across Lake Washington. This it is not within the power of the City to do. As between state and local governments, the State has plenary control over its limited-access facilities, and local governments have only those rights and powers which the legislature has seen fit to accord them.” The court added that “[t]hose rights and powers are administrative in nature.”
O'Brien is well aware of all this. He figures the state can do anything it wants. But he thinks that the referendum would be a way for Seattle citizens to send a message. That, of course, has always been one function of referendums and initiatives. Six years ago in Coppernoll v. Reed, (155 Wn.2d 290), the state supreme court said that “[b]ecause 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.” If it passed, the anti-tunnel referendum would certainly send a message.
And that just might carry the day. ”Legally, could they make [the tunnel project] happen” even if the voters said no? O'Brien asks. “Yeah, probably,” but at that point, it wouldn't just be a matter of law. “It's also very much a political question,” he says. And he can't believe state politicians would force a city to accept a multi-billion-dollar project that its citizens didn't want. “What governor or legislature basically wants to ram a project down a city's throat?”