The City Of Monroe, App. V. Seeds Of Liberty, Res.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE CITY OF MONROE, a Washington
Municipal Corporation,
Appellant,
v.
WASHINGTON CAMPAIGN FOR
LIBERTY, a Washington non-profit
corporation,
Defendant,
SEEDS OF LIBERTY, an unknown
entity,
Respondent,
VOTERSWANTMORE CHOICES.COM,
an unknown entity; BANCAMS.COM,
an unknown entity,
Defendants.
No. 68473-6-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	February 25, 2013
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Grosse, J. — An initiative is beyond the scope of the local initiative power
if it involves powers granted by the legislature to the governing body of a city,
rather than the city itself. 	In RCW 46.63.170, the legislature granted to local
legislative bodies, not the electorate, the exclusive power to legislate on the
subject of the use and operation of automated traffic safety cameras. 	The
subject matter of automated traffic safety cameras is therefore beyond the scope
of the local initiative power. 	Section 3 of proposed 	Monroe Initiative No. 	1,
mandating that any ordinance authorizing the use of automated traffic safety
cameras be put to an advisory vote, has as its subject matter automated traffic

No. 68473-6-1 / 2
safety cameras. 	Accordingly, Section 3 of proposed Monroe Initiative No. 1 is
invalid as beyond the scope of the local initiative power. 	We reverse the trial
court's order denying the city of Monroe's motion for summary judgment with
regard to Section 3 and the order granting Seeds of Liberty's special motion to
strike. 	We vacate the trial court's award of attorney fees, costs, and the statutory
penalty to Seeds of Liberty.
FACTS
In 2007, pursuant to authority granted 	by RCW 46.63.170, the city of
Monroe (City) enacted an ordinance authorizing the use of automated traffic
safety cameras within the City. 	The provisions regarding automated traffic safety
cameras are codified at chapter 10.14 of the Monroe Municipal Code (MMC).
The code defines an "automated traffic safety cameras" as:
a device that uses a vehicle sensor installed to work in conjunction
with an intersection traffic control system, a railroad grade crossing
control 	system 	or 	a 	speed 	measuring 	device, 	and 	a 	camera
synchronized 	to automatically 	record 	one 	or 	more 	sequenced
photographs, microphotographs or electronic images of the rear of
a motor vehicle at the time the vehicle fails to stop when facing a
steady red traffic 	control 	signal 	or an activated 	railroad 	grade
crossing control signal, or exceeds a speed limit in a school speed
zone as detected by a speed measuring device.111
In 	January 	2011, 	Respondent 	Seeds 	of 	Liberty 	and 	three 	other
organizations commenced a petition for an initiative, Monroe Initiative No. 1, to
repeal 	the automated 	traffic 	safety 	cameras 	ordinance, 	impose 	voting 	and
approval requirements for any future use by the City of traffic cameras, limit the
1 MMC 10.14.020(D).

No. 68473-6-1 / 3
amount of fees for traffic camera infractions, and require an advisory vote on the
use of traffic cameras.2 The proposed initiative reads as follows:
BE IT ENACTED BY THE PEOPLE OF THE CITY OF MONROE:
Section 1. 	New Chapter 10.14. 	A new chapter 10.14 is hereby
added to the Monroe Municipal Code to read as follows:
10.14.110 Automatic Ticketing Cameras: 	The City of Monroe and
for-profit companies contracted 	by the 	City of 	Monroe may not
install 	or use automatic ticketing 	cameras to 	impose fines from
camera surveillance unless such a system is approved by a two-
thirds vote of the City Council and a majority vote of the people at
an election.
1. For the purposes of this chapter, "automatic ticketing cameras"
means a 	device that uses a 	vehicle sensor installed to work in
conjunction with an intersection traffic control system, or a speed
measuring 	device, 	and 	a 	camera synchronized 	to 	automatically
record one or more sequenced photographs, microphotographs, or
electronic images of the rear of a 	motor vehicle at the time the
vehicle fails to stop when facing a steady red traffic control signal,
or exceeds a speed limit as detected by a speed measuring device.
10.14.120 Fines: 	[l]f two-thirds of the City Council and a majority of
Monroe 	voters 	at 	an 	election 	approve 	a 	system 	of 	automatic
ticketing cameras to impose fines from camera surveillance, the
fine for infractions committed shall be a 	monetary penalty of no
more 	than 	the 	least 	expensive 	parking 	ticket 	imposed 	by 	law
enforcement in the city limits of Monroe.
Section 	2. 	Chapter 	10.14 	(Ordinance 	No. 	002/2007 	allowing
automatic ticketing cameras) is hereby repealed.
Section 3. Advisory Vote: Any ordinance that authorizes the use of
automatic ticketing cameras enacted after January 1, 2007, must
be put on the ballot as an advisory vote of the people at the next
general election.
Section 4. 	Severability: 	If any provision of this act or its application
to any person or circumstance is held invalid, the remainder of the
2 The other sponsors of the initiative are BanCams.com, Washington Campaign
for Liberty, and VotersWantMoreChoices.com.

No. 68473-6-1/4
act 	or 	the 	application 	of 	the 	provision 	to 	other 	persons 	or
circumstances is not affected.
In June 2011, the Snohomish County Auditor certified the sufficiency of
the petition. 	A few days later, the Monroe City Council passed a 	resolution
finding that Monroe Initiative No. 1 was invalid because it exceeded the scope of
the local initiative power under state law. 	In the resolution, the Council directed
that the City take no action to include the proposed initiative on any ballot in 2011
and authorized the Mayor to file a declaratory judgment action as to the validity of
the proposed initiative.
In July 2011, the City filed a complaint for declaratory relief against Seeds
of Liberty and the other sponsors of Monroe Initiative No. 1. 	The City sought a
declaration that the initiative, "in its entirety, is invalid because it is beyond the
scope of the local initiative power, and therefore null and void."
In August 2011, the City moved for summary judgment. 	The following
month, Seeds of Liberty filed an opposition to the City's motion for summary
judgment and also filed 	a special motion to strike the City's complaint under
RCW 4.24.525, the anti-SLAPP statute.3
By order entered 	February 13, 2012, the trial court granted the City's
motion for summary judgment with regard to Sections 1 and 2 of the proposed
initiative and denied the motion with regard to Section 3. 	The court also granted
Seeds of Liberty's special motion to strike with regard to Section 3 and awarded
3 "SLAPP" stands for Strategic Lawsuits Against Public Participation. 	Of the four
sponsors of Monroe Initiative No. 	1, only Seeds of Liberty is a party to this
appeal.

No. 68473-6-1 / 5
Seeds of Liberty attorney fees and the penalty provided for in the anti-SLAPP
statute. 	The City appeals.
ANALYSIS
Scope of Local Initiative Power
Whether an initiative is beyond the scope of local 	initiative 	power is a
question of law that we review de novo.4 "An initiative is beyond the scope ofthe
initiative power if the initiative involves powers granted by the legislature to the
governing body of a city, rather than the city itself."5 	A grant of power to the
governing body of a city means a grant exclusively to the mayor and city council,
not the electorate.6 	"Where the legislature enacts a general law that grants such
authority to the legislative body of a city, the exercise of that authority by the
legislative 	body 	is not 'subject to 	repeal, 	amendment or modification by the
people through the initiative or referendum procedure.'"7 	To determine whether
the legislature granted authority to the legislative body of a city, we look to the
language ofthe relevant statute.8
Applying the foregoing principles, the courts in both Mukilteo Citizens for
Simple Government v. City of Mukilteo9 and American Traffic Solutions, Inc. v.
4 City of Port Angeles v. Our Water-Our Choice!. 170 Wn.2d 1, 7, 239 P.3d 589
(2010).
5 CitvofSequimv.Malkasian. 157 Wn.2d 251, 261, 138 P.3d 943 (2006).
6 Malkasian, 157 Wn.2d at 265.
7 American Traffic Solutions. Inc. v. Citv of Bellinqham. 163 Wn. App. 427, 433,
260 P.3d 245 (2011) (quoting State ex rel. Guthrie v. Citv of Richland, 80 Wn.2d
382, 384, 494 P.2d 990 (1972)), review denied, 173 Wn.2d 1029 (2012).
8 American Traffic Solutions, 163 Wn. App. at 433.
9 174 Wn.2d 41, 272 P.3d 227 (2012).

No. 68473-6-1 / 6
Citv of Bellinqham10 considered whether the subject of automated traffic safety
cameras is beyond the scope of local initiative power. 	In both cases, the courts
concluded that RCW 46.63.170, by its grant of authority to the "appropriate local
legislative authority" with regard to the use and operation of automated traffic
safety cameras, granted authority to the local legislative body.11 	Accordingly, in
both cases, the courts held that the subject matter of automated traffic safety
cameras is beyond the scope of the local initiative power and that the initiatives
at issue were therefore invalid.
The initiative measure held invalid in Mukilteo Citizens is virtually identical
to Monroe Initiative No. 1 in all respects, including the inclusion in both initiatives
of a provision calling for an advisory vote.12 	We agree with the City that Mukilteo
Citizens is dispositive of the issues presented here. 	We disagree with Seeds of
Liberty's argument that the case is not dispositive because the court in Mukilteo
Citzens did not sever the section of the initiative mandating an advisory vote and
specifically address the validity of that section apart from the other sections of the
initiative. 	In both Mukilteo Citizens and American Traffic Solutions, the courts
held that the subject matter of automated traffic cameras is beyond the scope of
10163Wn. App. 427.
11 Mukilteo Citizens, 174 Wn.2d at 52 (noting further that "[t]he legislature's grant
of authority does not extend to the electorate"); American Traffic Solutions, 163
Wn. App. at 434 ("'It is well-settled that in the context of statutory interpretation, a
grant of power to a city's governing body ("legislative authority" or "legislative
body") means exclusively the mayor and city council and not the electorate.'")
(quoting Malkasian, 157 Wn.2d at 265).
^2 In a few places, the Mukilteo initiative uses the term "automated ticketing
machines" where 	the 	proposed 	Monroe 	initiative 	uses 	the 	term 	"automated
ticketing cameras." 	But, the definition of "automated ticketing machine" in the
Mukilteo initiative is identical to the definition of "automated ticketing camera" in
the proposed Monroe initiative.

No. 68473-6-1 / 7
the local initiative power and that the exercise of a legislative body's authority
with respect to 	that subject matter is 	not subject to 	repeal, 	amendment, 	or
modification 	by local 	initiative. 	The subject matter of Section 	3 	of Monroe
Initiative No. 1, mandating an advisory vote on any ordinance authorizing the use
of automated traffic safety cameras, is automated traffic safety cameras. 	Section
3 modifies the legislative body's authority with regard to automated traffic safety
cameras by requiring that any ordinance on the subject be put to an advisory
vote. 	Section 3 is therefore beyond the scope of the local initiative power.13
Anti-SLAPP Sanctions
A party bringing a special motion to strike a claim under the anti-SLAPP
statute has the burden of showing by a preponderance of the evidence that the
claim is based on an "action involving public participation and petition," as that
term is defined in the statute.14 	"If the moving party meets this burden, the
burden 	shifts 	to the 	responding 	party 	to 	establish 	by clear and 	convincing
evidence a probability of prevailing on the claim."15 	Assuming, without deciding,
that the trial court was correct in concluding that the City's declaratory judgment
action was an action involving public participation and petition, the City met this
burden based on the case law establishing that the subject matter of automated
traffic safety cameras is beyond the scope of the local initiative power. The trial
court erred as a matter of law in granting Seeds of Liberty's special motion to
13 Because we conclude that Section 3 is invalid as beyond the scope of the local
initiative power, we need not and do not reach the City's argument that Section 3
is invalid because it would compel the City to perform an administrative act.
14 	RCW 4.24.525(4)(b). 	The term "action 	involving 	public 	participation and
petition" is defined at RCW 4.24.525(2).
15RCW4.24.525(4)(b).

No. 68473-6-1 / 8
strike and awarding it attorney fees, costs, and the statutory penalty. We vacate
that award.
We reverse the trial court's order denying the City's motion for summary
judgment with regard to Section 3 of proposed Monroe Initiative No. 1 and the
order granting Seeds of Liberty's special motion to strike. 	We vacate the award
of attorney fees, costs, and the statutory penalty to Seeds of Liberty.
WE CONCUR:
^cket
8

The Citv of Monroe v. Seeds of Liberty
No. 68473-6-1
Dwyer, J. (concurring) — Keeping in mind the concerns expressed in
Eyman v. McGehee, No. 67908-2-1 (Dwyer, J. concurring and dissenting), I
concur in the majority's resolution of this matter.
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