Homeless camping ban struck down by state Supreme Court

The Washington Supreme Court on Thursday overturned Spokane’s law banning homeless encampments from most of the city.

Voters had overwhelmingly approved the ballot measure, called Proposition 1, in 2023. Justices, however, determined the measure exceeded the legal limits of local initiatives. which voters approved overwhelmingly in 2023.

The city’s previous camping ban, which is enforceable if shelters are not full, remains in effect.

An ordinance making camping unlawful with the city limits that predated Proposition 1 remains in effect and is being enforced by police, Mayor Lisa Brown wrote in a Thursday morning statement.

“We know that enforcement alone is not going to solve homelessness,” she said.

Spokane City Councilmen Michael Cathcart and Jonathan Bingle criticized the court’s decision and called on the council to immediately adopt the provisions of Prop 1 since the justices ruled only that it could not be implemented by a local initiative on the ballot.

“This decision to silence the 75% of Spokane who demanded action to protect our kids and our community must not stand,” Cathcart wrote in a Thursday morning statement. “The people spoke clearly, and they expect their leaders to act without delay.”

He also took aim at the mayor.

“The lack of commitment in the Mayor’s statement this morning to supporting an immediate reinstatement of this policy doesn’t provide much confidence but I remain hopeful that the entire Council will stand with me in honoring the will of the people,” he wrote.

Council members Paul Dillon and Kitty Klitzke, who opposed Prop 1 ahead of the vote, said Thursday they would not support efforts to reinstate the ballot measure’s provisions through local legislation.

“I understand people’s frustration across the political spectrum, but (the legal challenges) make it more challenging to know what ground you’re standing on for citizens, businesses, law enforcement, outreach workers, providers and individuals experiencing homelessness themselves.”

Klitzke added that she wanted to see comprehensive reform of the city’s camping ordinances, calling Prop 1 ineffective and “clunky to enforce.”

“I’m certainly not disagreeing with voter sentiment that we don’t want people camping, I agree, and its had huge impacts on my neighborhood as well, but they’re still there,” Klitzke said. “Prop 1 hasn’t made much of a difference.”

Councilman Zack Zappone, asked whether he’d reinstate the provisions of Prop 1, said he would “continue to work with stakeholders and staff to figure out the best way forward.”

About 75% of Spokane voters approved Proposition 1 in November 2023, banning people who are homeless from camping within 1,000 feet of parks, schools and licensed day cares, which covers most of the city with a few exceptions on the outskirts. Violation of the law was a cite and release offense.

Though overwhelmingly popular with voters, the law sparked a bitter political debate over the city’s management of homelessness and has been ensnared in legal challenges since before it appeared on the ballot.

Jewels Helping Hands and Spokane Low Income Housing Consortium Executive Director Ben Stuckart sued Brian Hansen, the Spokane attorney who submitted the initiative, in August 2023. They argued 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.

Jewels Helping Hands and Stuckart, a former Spokane City Council president, appealed the decision and again filed to have the initiative pulled before it could appear on the ballot. The appellate court commissioner initially granted 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. Hansen, however, immediately appealed that decision and succeeded in having it reversed in time for it to appear on the November 2023 ballot.

As the case went through appeals, election day arrived and voters approved Prop 1 by a 50-point margin.

In a December 2023 “post-election” review, the appeals court 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, Judge Rebecca Pennell wrote.

At the state Supreme Court, justices ruled 6-2 that homeless camping was already regulated in the city of Spokane, and therefore the initiative was not “legislative” in nature, but “administrative,” in that it “administered the details” of an existing regulation rather than created a new policy.

Justice Debra Stephens, who is from Spokane, wrote the dissent, arguing that Proposition 1 was not technical in nature but represented a significant legislative shift in city policy. She wrote that the majority’s broad interpretation of what constituted an “administrative” change “effectively eliminated the local initiative power altogether.” Stephens was joined in her dissent by Justice Helen Whitener.

“The Hansen Initiative moves the public policy in a different direction, expanding the locations where the prohibition on public camping may always be enforced, to include certain areas close to where children gather,” Stephens wrote. “This is a not a technical or a minor administrative adjustment within an existing comprehensive policy. The initiative embodies a new policy decision, the wisdom or constitutionality of which is not before us.”

In a statement, Julie Garcia of Jewels Helping Hands and Stuckart applauded the court’s ruling.

“This decision shows that the courts still matter and going through proper processes matters,” Garcia wrote.

“I’m confident the city will abide by this ruling and respect the court’s decision,” Stuckart added. “Our community and state have the opportunity to be an example of a functioning democracy at a time when respect for the rule of law, and respect for our shared humanity, is under attack from the highest levels of government.”

As challenges wound their way through the courts, the politics and enforcement of Proposition 1 faced a similarly winding path. Even as voters approved the measure with 75% of the vote, they also elected council members and a mayor who in almost every case had opposed it, arguing it would be ineffective at reducing visible homelessness and simply push people from one area to another.

When the law was approved by voters, it also wasn’t immediately clear whether it was legally enforceable.

Brown’s administration maintained for months that enforcing the law was complicated by the 2018 Martin v. Boise federal court decision, which ruled that cities could not criminalize a homeless person sleeping on public property unless shelter space was available. The exact limits of that restriction were a source of regular legal debate. Spokane has for years outlawed camping under or near a viaduct regardless of shelter capacity, for example, considered legally defensible because it covered a small area – but many believed that Proposition 1’s wide-ranging boundaries that included no camping within 1,000 feet of schools, parks and day cares, could drag the city into the courts.

The city’s legal department advised holding off on enforcing the new law pending a U.S. Supreme Court decision. On June 28, that ruling came down, striking down protections afforded in the Martin case. That opened the door for cities like Spokane to enforce wide-ranging laws to ticket people sleeping outside, and by August police were actively issuing citations under the law.

While enforcement of various ordinances outlawing the activities of the homeless surged, political opposition groups continued to claim Proposition 1 was not being enforced, noting the continued proliferation of visible homelessness. Notably, police officials had stated ahead of the vote that there would not be the resources to enforce the law in every case, arguing that the law would be another tool they could use at their discretion when deemed necessary.

While Thursday’s Supreme Court decision was focused solely on the legal power of the local initiative process, a pending lawsuit by the ACLU of Washington challenges the law on its merits.

The ACLU, representing Jewels Helping Hands and two homeless residents, hopes to reinstate the protections that had existed under Martin v. Boise, but this time under the state constitution, rather than the U.S. Constitution. Lawyers point to sections of the state constitution barring cruel punishment and depriving a person of their property without due process of law, arguing that police unconstitutionally discard and destroy the property of homeless people without adequate notice or judicial hearings.

The suit takes issue with three city laws. One allows the city to remove unauthorized encampments or individual camps, while the others prohibit sitting and lying on a sidewalk or unauthorized camping on public property, the last of which was greatly expanded last year by Proposition 1.

If the suit is successful, it could have sweeping consequences for the entire state, potentially again preventing any Washington city, county or other jurisdiction from citing or arresting someone for sleeping on public property.

Dillon said he continues to question the effectiveness of the law, arguing in favor of focusing the city’s efforts on expanding treatment and housing services rather than on enforcement of camping bans.

“I think we can all agree that no one should be sleeping outside, but we keep pushing these issues around without telling people where they can go,” Dillon said. “For the folks chronically homeless or cycling back and forth between the jail and the emergency room, it comes down to better case management and helping them climb out of the ladder of homelessness. That’s where we need to go as a city.”