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Spokane, Washington  Est. May 19, 1883

Appellate court upholds decision on Spokane’s new anti-camping law, says initiative was legally put on ballots

A cyclist takes pause in front of the tent city outside Spokane City Hall in this photo from December 2021.  (DAN PELLE/THE SPOKESMAN-REVIEW)

A state court of appeals ruled Thursday that the voter-approved Proposition 1 – which banned camping within 1,000 feet of Spokane’s schools, parks, playgrounds and licensed day care facilities – was a legal initiative, upholding the will of local voters.

“We respect the role of the citizen initiative process and the voter’s opportunity to have a voice in that measure,” city spokesman Brian Coddington said. The city had a tangential role in the case, and city attorneys are listed among the counsel for the defense of the initiative.

“The voters spoke very loudly and very clearly about what their desires were,” Coddington added.

Brian Hansen, the Spokane attorney who submitted the ballot initiative earlier this year, had argued the new law was needed to protect children from criminal behavior associated with encampments. He has pointed to reports of open drug use and indecent exposure at Camp Hope, which occupied a city block in the East Central Neighborhood and was once the state’s largest homeless encampment. It closed in June.

Even before the proposition passed in November, it was illegal to camp on any public property in the city, but police could only issue citations for camping in most areas if there are shelter beds available due to a 5-year-old legal precedent.

The U.S. Court of Appeals for the Ninth Circuit in 2018 ruled that cities can ban camping on some but not all public property. A city can only fully ban camping if there are available shelter beds. Prohibiting camping on all public land amounted to criminalizing people for the act of being homeless, which was cruel and unusual punishment in violation of the Eighth Amendment, the court ruled.

Exactly how much public land can be restricted to encampments without violating the Martin v. Boise decision is a matter of ongoing legal debate and periodic court battles. Regardless of shelter space, Spokane police could already enforce a prohibition on camping within 50 feet of any railroad viaduct downtown or within three blocks of any congregate homeless shelter.

Jewels Helping Hands and Spokane Low Income Housing Consortium Executive Director Ben Stuckart sued Hansen in August, arguing the proposition could not be placed on the November ballot because it went beyond the scope of local initiative power, infringing on the city’s administrative powers and thereby usurping the authority granted to the city by the state.

In the lawsuit, Knoll Lowney, one of the Seattle-based attorneys representing the plaintiffs, argued in court that state law gives city councils the exclusive power to craft homeless plans and make land-use decisions. Hansen’s initiative would supersede the Spokane City Council’s authority and was therefore invalid, according to the lawsuit.

Spokane Superior Court Judge Tony Hazel disagreed, and on Aug. 24 denied a request for injunctive relief, allowing the question to go before the voters this November.

Jewels Helping Hands and Stuckart appealed the decision and once again filed to have the initiative pulled before it could appear on the ballot. The appellate court commissioner did initially grant the emergency injunction, allowing the initiative to be pulled the day before ballots were to be printed by the county while the case was being heard; however, Hansen immediately appealed that decision and succeeded in having it reversed in the 11th hour.

As the case continued through state appeals court, election day came and went. Proposition 1 was approved by city voters by a 50-point margin.

In what the appellate court called a “post-election” review, a three-judge panel concurred with the lower court, ruling in favor of Hansen. Proposition 1 was not a land use or zoning decision that could only be made by the City Council, but rather an exercise of police powers, which was an appropriate subject for the electorate to weigh in on, wrote Judge Rebecca Pennell.

The court believes that there was insufficient case law or legal clarity on where local initiative powers begin and end. Prior case law states that administrative matters, as opposed to legislative, are outside the scope of initiatives, but Pennell wrote that the lines between administrative and legislative powers are blurred. Where both parties have equally strong arguments, she added, the party with the burden of proof – in this case, the plaintiffs seeking to undo a vote of the people – cannot prevail.

“Given the statutory right of Washington voters to directly participate in local initiatives, courts should be hesitant to frame an issue in a way that strips away this right,” Pennell wrote. “Doubts as to whether a matter is legislative or administrative should be resolved in favor of allowing the voters to have their say.”

This is unlikely to be the last legal challenge to Proposition 1. Throughout the suit, attorneys for the plaintiffs argued that, even if it was legal to place the initiative on the ballot, the resulting ban on camping regardless of available space in local homeless shelters is unconstitutional under Martin v. Boise.

“We have people dying on the streets right now,” Stuckart said Thursday. “Moving them around is not going to help anybody.”

Garcia has previously stated she will seek to challenge the law on constitutional grounds. However, she noted that this process cannot begin until someone is cited under the new camping ban.

In the meantime, Garcia said she will work with the homeless population to find places where they can legally camp, noting that there are not sufficient shelter beds in the city and that hundreds will remain on the streets.

“I’m looking to our city leadership to give us the parameters to work in,” she said. “We don’t have enough shelter beds, and we don’t really have a solution.”