* Seatac Committee For Good Jobs, Petitioner V. Bf Foods, Llc, Et Al, Respondent

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
FILO FOODS, LLC; BF FOODS, LLC;
ALASKA AIRLINES, INC.; and THE
WASHINGTON RESTAURANT
ASSOCIATION,
Respondents,
v.
CITY OF SEATAC,
Respondent,
SEATAC COMMITTEE FOR GOOD
JOBS,
Petitioner.
No. 70758-2-1
DIVISION ONE
PUBLISHED OPINION
FILED: February 10, 2014
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03
en
Leach, C.J. — The First Amendment to the United States Constitution
protects statutorily created initiative rights. 	It requires this court to subject any
burden on the exercise of these rights to exacting scrutiny. 	Petitioner SeaTac
Committee for Good Jobs (Committee) seeks discretionary review of a trial court
decision 	prohibiting the placement of an initiative measure on the ballot and
striking the signatures of those registered voters who signed supporting petitions
multiple times. 	Because the statute requiring this result impermissibly burdens
the First Amendment rights of these voters, the trial court committed error that
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70758-2-1 / 2
substantially altered the status quo. 	As a result, we previously accepted review
and reversed the trial court. We now explain.
FACTS
In 	June 	2013, 	the 	Committee, 	a 	coalition 	of individuals, 	businesses,
neighborhood associations, immigrant groups, civil rights organizations, people
of faith, and labor organizations, circulated a proposed ballot initiative entitled
"Ordinance 	Setting 	Minimum 	Employment 	Standards 	for 	Hospitality 	and
Transportation Industry Employers" (Proposition One). 	This initiative proposed
an 	ordinance 	setting 	minimum 	employment 	standards 	for 	hospitality 	and
transportation employers, including an hourly minimum wage of $15.
The Committee collected 2,506 signatures on 	supporting petitions and
filed them with the City of SeaTac (City). 	The SeaTac Municipal Code (SMC)
required that the proposed petitions be supported by at least 1,536 signatures to
qualify for the November 2013 general election ballot. 	As required by the SMC,
the City submitted the petitions to the King County Department of Elections, as
ex 	officio 	supervisor 	of 	city 	elections, 	to 	determine 	the 	sufficiency 	of 	the
signatures. 	On June 30, 2013, the King County Elections Supervisor validated
1,780 signatures, enough to qualify Proposition One for the ballot. 	On June 28,
2013, the city clerk issued a certificate of sufficiency.
On July 2, 2013, Filo Foods LLC, BF Foods LLC, Alaska Airlines Inc., and
The Washington Restaurant Association (Challengers) filed a challenge to the
certificate of sufficiency. 	The Challengers could not confirm that the City would
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70758-2-1 / 3
convene its petition review board before the time to seek judicial review of the
certificate of sufficiency expired. 	Therefore, they filed this action on July 8, 2013,
and scheduled a hearing for July 19, 2013. 	The City then confirmed that its
board would convene the afternoon of July 19, 2013. 	As a result, the trial court
denied the Challengers' requested relief without prejudice to return if dissatisfied
with the City's actions.
At the 	board's 	hearing, the Challengers attacked the validity of many
signatures. 	The 	board 	agreed with the Challengers in part 	and 	struck 	201
signatures accepted by King County. 	But the board rejected the Challengers'
attack on 61 signatures of people who signed the petition multiple times. 	The
board determined that 1,579 signatures supported the petition, 43 more than the
minimum 	number required. 	On 	July 	23, 	2013, 	the city clerk 	issued 	a final
certificate of sufficiency.
The City placed the ordinance on the city council's agenda for action on
July 23, 2013. 	The council declined to adopt the ordinance but called for it to be
placed on the November 5, 2013, ballot. 	The Challengers then sought writs of
review, 	mandate, and prohibition in the trial court. 	The Challengers raised a
single issue: 	did RCW 35A.01.040(7) require that the City strike all signatures,
including the original, of each person who signed the petition two or more times?
On August 26, 2013, the trial court entered a detailed order granting the
Challengers' requested writs. 	The trial court characterized the issue before it as
the "constitutionality and enforceability of RCW 35A.01.040(7)." 	The court found
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70758-2-1/4
the statute both constitutional and enforceable. 	Its decision removed Proposition
One from the November 5, 2013, ballot.
The Committee sought emergency discretionary review in this court. 	After
receiving 	briefing 	and 	hearing 	oral 	argument, 	this 	court 	entered 	an 	order
reversing the trial court on September 6, 2013. 	That order stated that an opinion
explaining the reasons for this decision would follow in due course. 	This opinion
provides that explanation.
CRITERIA FOR DISCRETIONARY REVIEW
The Committee seeks discretionary review under RAP 2.3(b)(2): 	"The
superior court has committed probable error and the decision of the superior
court substantially alters the status quo or substantially limits the freedom of a
party 	to 	act." 	The 	parties 	agree the 	superior court's 	decision 	substantially
changed the status quo. 	It removed Proposition One from the ballot, depriving
the voters of SeaTac the opportunity to vote for or against it. 	As explained
below, the trial court erred. 	Therefore, we granted review and reversed the trial
court.
ANALYSIS
The 	Committee 	asks 	this 	court to 	decide 	if a 	statute 	that 	denies 	a
registered voter signing a petition multiple times the right to have one signature
counted violates the First Amendment. 	The City contends the Committee cannot
raise this issue because it failed to do so in the trial court. 	Because RAP 2.5(a)
allows us to consider for the first time on appeal a "manifest error affecting a
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70758-2-1 / 5
constitutional right," we address the constitutionality of RCW 35A.01.040(7) in the
context of the First Amendment.
A statute that voids all initiative signatures of a person signing the initiative
more than once burdens that individual's First Amendment rights.1 	An individual
expresses a view on a political matter by signing an initiative petition.2 	The
signature generally expresses the view that the law proposed by the initiative
should be adopted but may express the more limited political view that the voters
should decide the question.3 	In either case, this expression of a political view
implicates the signer's First Amendment rights.4
Although 	the federal 	constitution 	does 	not 	guarantee 	the 	right to 	an
initiative, once a state creates an initiative procedure, the state may not place
restrictions on the exercise of the initiative that unduly burden First Amendment
rights.5 SeaTac is a noncharter code city. 	Washington has conferred upon code
cities 	the 	right to 	provide 	for the 	exercise 	of the 	powers 	of initiative and
referendum.6 	SeaTac has granted these powers to its voters.7 	RCW 35.17.240-
1 See Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 298
(6th Cir. 	1993) 	(holding a 	Michigan statute excluding 	the signatures of any
person signing a petition twice to be rationally related to Michigan's interest in
protecting against fraud in its initiative system).
2 Doe v. Reed, 561 U.S. 186, 130 S. Ct. 2811, 2817, 177 L. Ed. 2d 493
(2010).
3 Reed, 130 S. Ct. at 2817.
4 Reed. 130 S. Ct. at 2817.
5 Mever v. Grant, 486 U.S. 414, 420, 108 S. Ct. 1886, 100 L. Ed. 2d 425
(1988).
6RCW35A.11.080.
7 SMC 1.10.040.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70758-2-1 / 6
.360 governs the exercise of the initiative power by SeaTac voters.8 	In addition,
RCW 	35A.01.040 	imposes 	requirements 	for 	all 	petitions, 	including 	initiative
petitions, to be signed and filed with a code city. This includes the requirement at
issue in this case: 	"Signatures, including the original, of any person who has
signed a petition two or more times shall be stricken."9 	We must decide if this
provision 	unduly 	burdens the First Amendment rights of SeaTac voters who
signed Proposition One.
United States Supreme Court precedent indicates that we should review
RCW 35A.01.040 under an "exacting scrutiny" standard. 	Three cases provide
this 	direction. 	The 	Court first 	addressed 	the 	standard 	for 	reviewing 	state
regulation 	of 	ballot 	initiatives 	in 	1988. 	In 	Meyer 	v. 	Grant,10 	the 	Court
unanimously applied an "exacting scrutiny" review standard to a Colorado law
prohibiting the payment of initiative petition circulators.
A decade later, the Court again addressed First Amendment issues in a
challenge to post-Meyer Colorado laws regulating ballot initiatives. In Buckley v.
American 	Constitutional 	Law 	Foundation, 	Inc..11 	the 	Court 	considered 	First
Amendment 	challenges 	to 	Colorado's 	registration, 	badge, 	and 	disclosure
requirements for ballot initiative circulators. 	Writing for a five-justice majority,
Justice Ginsburg cautioned, "'[N]o litmus-paper test' will separate valid ballot-
8RCW35A.11.100.
9 RCW 35A.11.040(7).
10 486 U.S. 414, 420, 108 S. Ct. 1886, 100 L Ed. 2d 425 (1988).
11 525 U.S. 182, 183, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999).
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70758-2-1 / 7
access provisions from invalid interactive speech restrictions, and this Court has
come upon 'no substitute for the hard judgments that must be made.'"12 She also
noted that the Court has allowed states "considerable leeway to 	protect the
integrity and reliability of the ballot-initiative process."13
Most 	recently, 	in 	Doe v. 	Reed,14 the Court considered the applicable
standard of review in the context of a First Amendment challenge to a request for
referendum petitions made under the Washington Public Records Act, chapter
42.56 RCW. 	The Court observed the relevancy of the electoral context to its
First Amendment review.15 	It also noted the significant flexibility allowed states in
implementing their own voting systems. 	Following its precedents considering
First Amendment challenges to disclosure requirements in the electoral context,
the Court held the "exacting scrutiny" standard applicable.16
The Reed Court stated that the "exacting scrutiny" standard required "'a
substantial 	relation' 	between 	the 	disclosure 	requirement 	and 	a 	'sufficiently
important' governmental interest."17 	To survive this scrutiny, "'the strength of the
governmental interest must reflect the seriousness of the actual burden on First
12 Buckley, 525 U.S. at 183 (alteration in original) (quoting Storerv. Brown.
415 U.S. 724, 730, 94 S. Ct. 1274, 39 L. Ed. 2d 714 (1974)).
13 Buckley. 525 U.S. at 183.
14 561 U.S. 186, 130S. Ct. 2811,2815, 177 L Ed. 2d 493 (2010).
15 Reed. 130 S. Ct. at 2818.
16 Reed. 130 S. Ct. at 2818.
17 Reed. 130 S. Ct. at 2818 (internal quotation marks omitted) (quoting
Citizens United v. Fed. Election Comm'n. 558 U.S. 310, 130 S. Ct. 876, 914, 175
L.Ed. 2d 753 (2010)).
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70758-2-1 / 8
Amendment rights.'"18 	The Court noted that a state's interest in 	preserving
electoral integrity extended "to efforts to ferret out invalid signatures caused not
by fraud but by simple mistake, such as duplicate signatures."19 	Thus, we must
measure the strength of this interest against the burden RCW 35A.01.040 places
on First Amendment rights.
In Sudduth v. Chapman.20 the Washington Supreme Court measured the
strength of this interest against the burden placed on our state's constitutional
rights of initiative and 	referendum 	by a statute denying voters who signed a
petition more than once the right to have one signature counted and found it
wanting. 	In 	Suddeth. 	the 	court 	considered 	the 	constitutionality 	of 	RCW
29.79.200, which provided, "'Ifthe secretary of state finds the same name signed
to more than one petition[,] he shall reject the name as often as it appears.'"21
Article II, section 1 of the Washington Constitution 	reserves the power of the
initiative to the people. 	The State contended that RCW 29.79.200 especially
facilitated 	the initiative process and therefore did not exceed the legislature's
authority. 	The court rejected this argument.
The court stated,
Were there some showing of facts upon which the legislature
could reasonably have found that this provision was necessary to
facilitate the initiative process and guard its integrity, we would, of
18 Reed. 130 S. Ct. at 2818 (quoting Davis v. Fed. Election Comm'n. 554
U.S. 724, 128 S. Ct. 2759, 2775, 171 L. Ed. 2d 737 (2008)).
19 Reed, 130 S. Ct. at 2819.
20 88 Wn.2d 247, 252, 558 P.2d 806 (1977).
21 Sudduth. 88 Wn.2d at 249.
-8-
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70758-2-1 / 9
course, be obliged to defer to the legislative judgment; but since no
state of facts which would justify it has been proposed, in order to
protect the right of the people which was reserved by them in their
constitution, we must hold this portion of RCW 29.79.200 to be in
excess of the legislative authority granted.[22]
The court noted that the State made no claim the challenged 	provision was
necessary to guard against fraud and mistake.23 	It then observed that while 20
states have constitutions providing for initiative and referendum, its research had
not disclosed any comparable statute.24
The court quoted the following observation:
"In view of the multiplicity of petitions which are circulated
before each election, it is not surprising that some honest citizens
may become so confused by the number of petitions presented to
them that they may inadvertently sign two or more for the same
measure. 	This, of course, is carelessness on their part, but if they
are 	legally 	entitled 	to 	sign, 	we 	think 	one 	signature 	should 	be
allowed and the others stricken."[25]
We find Suddeth controlling. 	While the State's interest in preserving electoral
integrity extends to ferreting out duplicate signatures caused by mistake, striking
all—instead of counting the first and striking the duplicates—overburdens voters'
First Amendment rights.
The trial court distinguished Suddeth on the basis that it addressed a
statute 	burdening 	the 	constitutional 	right 	of 	the 	people 	to 	enact 	statewide
legislation, while RCW 35A.01.040(7) only burdens a statutory right of the people
to enact city or county legislation. 	But the United States Supreme Court has
22 Sudduth. 88 Wn.2d at 252.
23 Sudduth. 88 Wn.2d at 251.
24 Sudduth. 88 Wn.2d at 251.
25 Sudduth. 88 Wn.2d at 252 (quoting Whitman v. Moore. 59 Ariz. 211,
228, 125 P.2d 445 (1942)).
-9-
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70758-2-1/10
recognized First Amendment protection for the exercise of state-created initiative
rights even 	though the 	United States Constitution does not guarantee these
rights.26 	Thus, once a state creates initiative rights by statute, those rights enjoy
First Amendment protection. 	The First Amendment protection does not depend
upon a constitutional origin for the initiative right.
CONCLUSION
The First Amendment protects statutorily created initiative rights. 	Any
burden on the exercise of these rights is subject to exacting scrutiny. 	To guard
against fraud and mistake, the State does not need to deny a voter who signs
petitions more than once the right to have one signature counted. 	Therefore, we
hold the provision of RCW 35A.01.040(7) requiring the striking of all of a voter's
signatures unconstitutional.
J^e^£c<^^ J (-—
WE CONCUR:
J/9<V,Y/~^,\j.
26 Meyer, 486 U.S. at 428.
-10-
 	 	 	 	 	 	 	 	 	 	 	 	 	

Filo Foods, LLC v. City of Seatac, No. 70758-2-1
Dwyer, J. (concurring) — I wholeheartedly agree with the majority opinion.
I write separately to address two remaining, vexing issues, both of which arise
from the city's institution of its Petition Review Board.
At the time of the instant dispute, the city's Petition Review Board
consisted of its mayor, its city manager, and its acting police chief. Both its
method of creation and its membership speak to its existence as a component of
the city's executive branch.
The relevant city ordinance provides that: "The Board shall consider and
act upon any evidence or reports of temporary or permanent alteration of
petitions, or any other matters relating to initiative and referendum petitions which
the Board may determine to warrant investigation, report to the City Council, or
legal action." SeaTac Municipal Code 1.10.170. This is a broad grant of power,
given the ordinance's "or any other matters" language.
From the briefing, it appears that the city's representatives are of the
opinion that the Petition Review Board possesses at least two powers that it can
not lawfully possess.
Initially, the Petition Review Board can not, and therefore does not,
possess the power to rule on the legal sufficiency ofthe subject matter of a
petition. 	To the contrary, "the determination of the validity of an initiative is
'exclusively a judicial function.'" 	Evman v. McGehee. 173 Wn. App. 684, 692,
294 P.3d 847 (2013) (quoting Philadelphia II v. Greqoire. 128 Wn.2d 707, 714,
911 P.2d 389 (1996)). 	"[Rjeviewing the substance of a proposed initiative is
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70758-2-1/2
exclusively a judicial function, not a role for other governmental actors." 	Evman.
173 Wn. App. at 690.
Nor does the Petition Review Board possess the power to second-guess,
countermand, or modify the county auditor's1 determination as to the number of
valid signatures contained on a petition or the validity of any individual voter's
signature set forth thereon. The authority to make these determinations is vested
solely in the county auditor.
The relevant statute provides:
Sufficiency of petitions. 	Wherever in this title petitions are
required to be signed and filed, the following rules shall govern the
sufficiency thereof.
(3) The term "signer" means any person who signs his or her
own name to the petition.
(4) To be sufficient a petition must contain valid signatures of
qualified registered voters or property owners, as the case may be,
in the number required by the applicable statute or ordinance.
Within three working days after the filing of a petition, the officer
with whom the petition is filed shall transmit the petition to the
county auditor for petitions signed by registered voters, or to the
county assessor for petitions signed by property owners for
determination of sufficiency. 	The officer or officers whose duty it is
to determine the sufficiency of the petition shall proceed to make
such a determination with reasonable promptness and shall file with
the officer receiving the petition for filing a certificate stating the
date upon which such determination was begun, which date shall
be referred to as the terminal date. Additional pages of one or
more signatures may be added to the petition by filing the same
with the appropriate filing officer prior to such terminal date. Any
signer of a filed petition may withdraw his or her signature by a
written request for withdrawal filed with the receiving officer prior to
such terminal date. 	Such written request shall so sufficiently
describe the petition as to make identification of the person and the
petition certain. 	The name of any person seeking to withdraw shall
1 In King County, the election-related duties of the county auditor have been assigned by
charter to the Director of the Elections Department. Because the relevant statute references the
county auditor, so will I.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70758-2-1/3
be signed exactly the same as contained on the petition and, after
the filing of such request for withdrawal, prior to the terminal date,
the signature of any person seeking such withdrawal shall be
deemed withdrawn.
RCW 35A.01.040 (emphasis added).
This statute makes clear that, in the case of petitions signed by registered
voters, it is the county auditor who is charged by law with the "duty" "to determine
the sufficiency of the petition." This statute is unambiguous. 	It is found in Title
35A RCW, the title that allows for the establishment of optional municipal code
cities and defines how such cities shall be governed and operated. 	SeaTac is an
optional municipal code city. 	This statute, by its plain language, does not
accommodate a city Petition Review Board sitting as an appellate authority over
the work of the county auditor. 	The city's arguments to the contrary, premised as
they are on statutory provisions found in other RCW titles or on the general
plenary power of optional municipal code cities, are unavailing.
In short, the SeaTac Petition Review Board acts unlawfully when it rules
on the legal sufficiency ofthe subjectof a petition or second-guesses the
determination of the county auditor as to the "sufficiency of the petition."
I have no doubt that the council members of SeaTac are good, well-
intentioned people. They clearly do not fear the popular will—if they did, they
would not have granted their residents initiative and referendum powers in the
first place. I am confident that they will avail themselves of the opportunity to
reconsider the problematic ordinance herein discussed.
"A~^^-^t,