Court Rules that Proposed Initiative Allowing Unfettered Questioning of Immigration Status by City Employees Not Subject to Initiative

This week, the Washington State Court of Appeals, Division III, ruled that the City of Spokane’s Proposition 1, a proposed initiative that would authorize city employees to question individuals as to their immigration status, without restriction, is administrative in nature and thus, not subject to initiative. The case in question is Global Neighborhood v. Respect Washington (1/29/19).

This blog post will summarize the decision, as well as provide links to resources regarding the power of initiative and referendum for Washington cities and counties.

Summary of the Decision

Background

The City of Spokane has an ordinance that delegates authority to the police chief to make rules and issue orders for the proper functioning of the police department. The Spokane police department adopted policies limiting officers from inquiring about a person’s immigration status, with certain exceptions, and then sharing such information with others. Presumably the policies were adopted in response to a state law requiring that law enforcement agencies address and prevent racial profiling (see RCW 43.101.410). Later, the city council passed an ordinance codifying the policies that had been adopted by the police.

Thereafter, Respect Washington filed a proposed initiative with the city that would, if adopted, amend the code to remove the limitation on collecting and sharing immigration status information. Global Neighborhood and other similar organizations filed suit, seeking removal of the initiative from the ballot. The trial court enjoined placement of the initiative on the ballot.

Legislative vs. Administrative

Although many issues were raised on appeal (laches, the statute of limitations, lack of harm for purposes of an injunction, violation of Respect Washington’s First Amendment rights and mootness), the court’s decision was based upon whether the proposed initiative was directed toward administrative or legislative matters.

Unlike statewide initiative powers that are derived from the state constitution, initiative and referendum power for cities and counties are based in statute. For first class cities such as Spokane, RCW 35.22.200 states, 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 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.

Thus, state law expressly limits this power of initiative to legislation. Several cases have addressed whether local initiatives or referendums are legislative or administrative in nature. One factor considered is whether the initiative would make a law of general applicability and permanent in nature, or if it simply provides direction in implementing rules and laws already adopted. If the latter, the initiative is considered administrative. Put another way, the Washington Supreme Court has stated that an initiative is administrative in nature if it hinders or furthers a plan the local government has previously adopted (see City of Port Angeles v. Our Water-Our Choice!).  

In this case, the code provisions that the initiative would change were based on the policies adopted by the police department. The court concluded that the initiative hindered this policy already in place, stating:

“Directions to government employees may come from a legislature but generally derive as administrative actions by department heads.”

The following reflects the court’s reasoning for its decision:

“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,” the initiative is administrative in nature and thus, not subject to initiative.

Resources

The resources below provide more information from MRSC on initiative and referendum powers as these apply to Washington cities and counties, as well as additional background on Global Neighborhood v. Respect Washington.

• Ballot initiative on immigration policing in Spokane again shot down by appellate judges, Spokesman Review, 1/29/2019
• Initiative and Referendum Powers
• Initiative and Referendum Guide

Questions? Comments?

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