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Ballot initiative on immigration policing in Spokane again shot down by appellate judges

Under an initiative that has now experienced nearly five years of legal review, city employees would be permitted to question anyone about their immigration status and share that information with federal authorities. Proponents say the measure would keep Spokane from becoming a “sanctuary city,” while opponents say the practice would promote racial profiling. The initiative was dealt another blow Tuesday, when appellate court judges in the state shot the initiative down as beyond the scope of state law. (Jesse Tinsley / The Spokesman-Review)
By Kip Hill kiph@spokesman.com(509) 459-5429

A ballot initiative that would empower Spokane city employees to participate in the enforcement of immigration laws was dealt another blow Tuesday, just two days after a high-profile incident involving federal authorities at the bus depot on the east edge of downtown.

The three-member panel of the Washington Court of Appeals unanimously upheld a ruling preventing voters from deciding if citizenship status is within the purview of the Spokane Police Department. It’s the latest rebuke of a beleaguered initiative first suggested in 2014, when city lawmakers codified a department policy prohibiting officers from inquiring about immigration paperwork or arresting them solely on suspicions about their citizenship.

A Spokane Superior Court judge threw out the initiative in the weeks leading up to the 2017 election, after a Western Washington immigration activist leading a group called “Respect Washington” took up the mantle of the ballot proposition when a local sponsor dropped out. The judges Tuesday affirmed that ruling, determining the initiative dealt with administrative policies of the police department, which could not be reversed or changed through a petition-based initiative.

“Proposition 1 interferes with Spokane Police Department policy to limit the circumstances under which law enforcement officers inquire about immigration and citizenship status,” the judges wrote in their unanimous opinion.

The ruling leaves in place an earlier judge’s order prohibiting the question from appearing on a Spokane ballot. If voters had passed such an initiative, they would have repealed the law passed by the Spokane City Council, which lawmakers said was a way to reduce racial profiling in policing, and it would have allowed any city employee – not just police – to ask about immigration status, collect information and share it with federal authorities.

Craig Keller, founder of the group Respect Washington, said in an email Tuesday his group would make a decision “soon” on whether to appeal the ruling to the Washington Supreme Court. He continued to rail against council members and the courts for preventing an up-or-down vote on the subject, though appellate judges argued there is no constitutional right, at the federal or state level, to vote on an initiative that would not be valid if passed.

“The motive of Prop. 1 never was and never will be to promote ‘racial profiling,’ ” Keller wrote.

Supporters of the initiative argued it would protect against Spokane becoming a “sanctuary city,” though city lawmakers and Mayor David Condon have said they don’t believe the bias-free policing policy amounted to granting sanctuary to undocumented residents.

Rick Eichstaedt, the attorney who represented several refugee assistance groups in filing the lawsuit to keep the measure off the ballot, said the issue with Proposition 1 “was in the same ballpark” as the issues raised at the Spokane Intermodal Center with federal authorities conducting warrantless questioning of passengers about immigration status. But unlike that situation, where the city administration has said it doesn’t have the authority to push back on Customs and Border Patrol agents performing duties near the border, the city’s legal team argued in court against putting Proposition 1 back on the ballot.

“To the mayor and (City Attorney) Mike Ormsby’s credit, they were supportive of our position in this case,” Eichstaedt said.

In a brief filed with the court in the case, which was argued in October, city attorneys argued that if the court found the initiative outside what was allowed by state law, it should be kept off the ballot to avoid voter confusion and the added costs of holding an election.

“The City is concerned with having to expend finite resources on an election that may ultimately amount to nothing more than a nonbinding expression of public opinion,” city attorneys wrote.

The decision Tuesday could affect a similar lawsuit filed in King County. Respect Washington appealed a ruling that kept off the ballot in Burien a similar measure seeking to undo a city law prohibiting officials from asking about immigration status. Eichstatedt said he’d sent Tuesday’s ruling to officials in the suburb of Seattle, though no date has been set for arguments in that case.