Citizens’ initiative power riddled with exceptions

Spokane Valley residents who don’t like the city’s proposed Sprague-Appleway Revitalization Plan have talked about a referendum.

But talk is all they can do.

The same goes for those who might like to repeal the city’s new 6 percent telephone utility tax.

Although residents persuaded the City Council to give them the right of initiative and referendum in 2005, state law and the courts impose major restrictions.

Some of the things city residents might like to control the most – such as zoning codes and utility taxes – are exempt from initiative and referendum.

City officials say the proposed Sprague-Appleway zoning code and Spokane Valley’s new telephone tax aren’t subject to initiative and referendum.

However, the city attorney’s office declined to elaborate.

“The city’s consistent position has been to not comment in a way that provides a legal opinion to people outside the city organizational structure,” Assistant City Attorney Cary Driskell said.

Other attorneys describe a complicated system in which city residents may control some taxes but never zoning.

Washington residents may pass statewide legislation tying the state’s tax structure in knots, regulating land development and telling the Department of Transportation how to control traffic.

Locally, however, citizens have only as much authority as the Legislature gives them. Cities are subdivisions of the state government, and not even the right of initiative and referendum is automatic.

“Code” cities such as Spokane Valley, which operate under direct state authority, must follow procedures established by the Legislature.

State law says city councils may grant initiative and referendum rights if they wish. Citizens can seize the power for themselves only if they can muster signatures equaling 50 percent of the turnout in the previous general election.

Some Spokane Valley civic leaders cited lack of initiative and referendum rights under the Spokane County government as reasons to incorporate the city in 2003.

“We promised them they would be able to control their own destiny by getting the vote and the basic right to petition their government through the initiative and referendum process,” businessman Chuck Hager told the Spokane Valley Council in July 2005.

Hager and others were surprised, when they considered fighting a proposed utility tax, to discover the City Council hadn’t adopted the optional state law giving citizens initiative and referendum rights.

Council members, some reluctantly, agreed to adopt the law.

Subject to amendment by the Legislature, the law allows a public vote on issues if requested by a petition equaling 15 percent of the turnout in the previous general election.

Cities that establish constitution-like “charters” may adopt their own standards for getting an initiative or referendum on the ballot.

In Spokane, for example, residents may force a referendum with a 10 percent petition and an initiative election with a 5 percent petition.

Either way, the power is restricted by state law.

The law for cities like Spokane Valley rules out citizen action on ordinances establishing local improvement districts, appropriating money, approving labor agreements, controlling the pay and working conditions of city employees, or repealing some taxes.

Other exceptions spring from a group of court cases in which judges have interpreted the law.

The case law is well-established and has been cited by the state Supreme Court, according to Bob Meinig, legal consultant for the nonprofit Municipal Research and Services Center.

According to a guide published by the center, the case law establishes two tests for whether a city ordinance is subject to initiative and referendum.

The first is whether the action is administrative or legislative. Only the creation of ordinances is subject to direct voter control. Citizens can’t vote on the administration of existing laws.

Thus, one might suppose – correctly – that citizens can’t force an election on zone changes by the public officials who administer zoning codes.

It would be wrong, though, to conclude that the legislative act of establishing a zoning code is subject to initiative or referendum.

“You can’t zone by initiative,” said Jeffrey Even, deputy solicitor general in the state attorney general’s office.

The reason lies in the second test outlined by the Municipal Research and Services Center: Did the Legislature grant the authority to local governments as a whole or just to their elected officials?

If a law empowers a “legislative authority” such as a city council, then the courts say citizens can’t intervene with a referendum or an initiative. Not even if the action is legislative instead of administrative.

Creating zoning codes is just such a power, granted only to elected officials.

Even though Spokane has a charter, city attorneys say the judicial restrictions apply there, too.

Sometimes, however, the Legislature specifically requires voter approval to enact a tax or it allows voters to cancel a tax. A recent example is the state law allowing cities and counties to impose a vehicle license tax.

If the tax is $20 or less, citizens have no control. If more than $20, the tax requires voter approval. No tax beyond $100 is allowed.

Another example is government salaries set by a salary commission. The law allowing creation of salary commissions gives voters initiative and referendum rights they wouldn’t otherwise have.

That’s why Spokane Valley voters were able, in November 2005, to override city salary increases they found excessive.