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The challenge to Spokane’s voter-passed initiative that expanded restrictions on camping on public property may have more lives than a cat.
After initiative sponsors gathered enough signatures to put it on the November 2023 ballot, opponents filed an 11th-hour request asking a Superior Court judge to keep it off because, they contended, it ran afoul of state law. He disagreed, and said the initiative could stay.
With time running out before those ballots had to be printed, opponents took the case to the Court of Appeals. A court commissioner initially ordered a pause, but the Court of Appeals moved quickly to say the measure shouldn’t be kept off the ballot. Questions about conflicts with state law would have to wait until after the election — if the measure passed.
It passed by a margin of nearly 3-to-1, and a month later the Court of Appeals rejected arguments that the new city ordinance conflicts with state law.
Opponents appealed that ruling to the state Supreme Court. Supporters countered that the Appeals Court was right that the initiative doesn’t violate state law, but was wrong for not tossing the whole thing out under a separate election law that says any last-minute challenge decided by a superior court on a ballot measure is final and can’t be appealed.
This long odyssey might surprise many Washington voters, who over the years have become accustomed to all manner of ideas showing up on their ballot. The state has a pretty expansive initiative law, although the city initiative is a bit more restrained. Or as Chief Justice Steven Gonzalez put it last week when the two sides got their 20 minutes of court time to recycle their arguments:
“On the statewide level, if the Legislature can do it, the people can do it by initiative. But on the local level, just because the City Council can do it doesn’t mean the people of the city can do it (by initiative).”
And that’s what’s keeping the challenge to the public camping initiative alive — a question of whether the change voters approved was a legislative change, which the law allows, or an administrative change, which only the council can do.
Knoll Lowney, attorney for the opponents, argued that the Legislature gave the city council authority to find ways to ameliorate homelessness. The council, not the voters, would have had to enact restrictions for camping on public property within 1,000 feet of parks, schools, playgrounds or day cares. The state gives the city council the responsibility to administer homelessness policy and voters can’t change rules set up by the council any more than they could change a zoning law.
Mark Lamb, the attorney for the sponsors, countered that the city council had earlier restricted camping in certain types of public property. The initiative merely expanded those areas, he said. It also doesn’t ban homelessness per se, but makes camping on public property a misdemeanor. That means it’s not controlled by the state’s Homeless Housing and Assistance Act, but comes under the city’s police powers, in which voters can have a say.
Gonzalez said he didn’t find many cases in which the Supreme Court said a local initiative was within the power of the people to enact, and wondered why. Probably because local initiative laws are so limited, Lowney replied: “The cases that come to you are the ones where people didn’t follow the rules.”
The state Supreme Court rarely rules from the bench and usually hands down decisions weeks or months after hearing arguments. Based on their questions, the justices seemed to be honing in on whether the initiative is a legislative or administrative change.
But if the sponsors of the 2023 camping ordinance followed the rules, that’s almost certainly the last challenge opponents can mount. Just three weeks after the state Supreme Court decided to take the Spokane case, the U.S. Supreme Court ruled homeless camping bans are constitutional, overturning a decision limiting such laws by the 9th U.S. Circuit Court of Appeals, which oversees federal cases in Washington and other western states.
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