STATE OF WASHINGTON

SPOKANE COUNTY SUPERIOR COURT

CITY OF SPOKANE,

No. 15-2-03101-0
Honorable Judge Salvatore F. Cozza
Plaintiff,

v.
Response to City of Spokane's
Motion for Preliminary Injunction

DALTON, et al.,
Defendants.
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ENVISION WORKER RIGHTS AND BRAD READ'S

RESPONSE TO CITY OF SPOKANE'S MOTION FOR PRELIMINARY INJUNCTION

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This Court must deny the City of Spokane's preliminary injunction motion because this

action is brought without City Council authorization, Mayor Condon lacks standing to bring this

action, this action violates separation of powers doctrine, the Mayor cannot show that he will

suffer irreparable harm without injunctive relief, nor show a clear legal or equitable right.

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The City agrees that the majority of the Worker Bill of Rights initiative is within the
initiative power. The City takes issue with only a few parts of the initiative, and those sections

Preliminary Injunction Response

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Community Environmental
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only restrict corporations that are violating the law.

Notably, this action is not brought by the City Council (which by City law is the only
City body that may initiate a pre-election challenge).

Facts

On July 6th, 2015, the people of Spokane submitted 3,744 signatures to qualify the

instant initiative onto the ballot. Recognizing a need to expand the rights of employees and

workers within the City, the people of Spokane have proposed an initiative that requires certain

employers to pay a living wage, provides for equal pay for equal work, and requires due process

for termination of employment.

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In three successive votes, the City Council voted to send the initiative for signature

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verification, and then voted unanimously to submit the initiative to the November 2015 ballot.

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The Worker Bill of Rights initiative is thus properly qualified to appear on the November ballot,

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and the City Council has approved its placement onto the ballot. Spokane City Official Gazette,

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vol. 105, p. 783 (Aug. 5, 2015)1; see also SMC 02.02.030-.115.

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At the same hearing at which the City Council unanimously voted to place the Worker

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Bill of Rights initiative on the November ballot, four of the Council members voted to place

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two advisory votes on the same ballot: whether to reduce funding in existing General Fund

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programs to reallocate to implement the provisions of the Envision Worker Bill of Rights and

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whether to pursue additional funding sources, as needed, in order to implement the provisions

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of the Envision Worker Bill of Rights. Gazette, supra, at 784. Those two advisory questions

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were placed on the ballot to give guidance to the Council concerning the implementation of the

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initiative, and to advise voters of the need to fund parts of the implementation of the initiative.

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1 Available at https://static.spokanecity.org/documents/official-gazettes/2015/08/officialgazette-2015-08-05.pdf (last accessed Aug. 9, 2015).

Preliminary Injunction Response
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Community Environmental
Legal Defense Fund
306 West Third Street
Port Angeles, WA 98362
(360) 406-4321

At that July 27th, 2015, meeting, the City Council declined to even vote on whether to

bring a pre-election challenge. See SMC 02.02.115(C). A week later, on August 3rd, without

Council authorization, Mayor Condon brought this lawsuit in the name of the City of Spokane.

Mayor's Statement (Aug. 3, 2015)2; see also Nicholas Deshais, Condon wants Worker Bill of

Rights blocked from ballot, The Spokesman-Review (Aug. 3, 2015)3.

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The involvement of Spokanes business sector in triggering this latest

challenge to the initiative process

Downtown Spokane Partnership, and perhaps other corporate special interests, had been

lobbying Mayor Condon to bring this action. Downtown Spokane Partnership, Call to action in

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response to Envision Spokane (July 13, 2015)4 (asking Downtown supporter[s] to [c]ontact

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the Mayor's office as soon as possible and ask that he take action through his authority granted

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in Spokane Municipal Code to challenge [the initiative's] legality in superior court).

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[Downtown Spokane Partnership's President] says the mayor, whose office did not respond by

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press time, would likely have better legal standing to challenge the Worker Bill of Rights

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initiative. Jake Thomas, Envision This! DSP is fighting the proposed Worker Bill of Rights,

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Inlander (July 22, 2015)5. After Mayor Condon filed this action, a Spokesman reporter

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characterized it as the city of Spokane has, in essence, sued its citizens on behalf of

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corporations. Shawn Vestal: People, not city, should vote on workers' bill of rights, The

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Spokesman-Review (Aug. 5, 2015)6.

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2 Available at https://my.spokanecity.org/news/statements/2015/08/03/mayor-condonstatement-on-protection-of-initiative-process/ (last accessed Aug. 9, 2015).

3 Available at http://www.spokesman.com/stories/2015/aug/03/condon-wants-worker-billrights-blocked-ballot/ (last accessed Aug. 9, 2015).
4 Available at http://www.downtownspokane.org/news-article/61 (last accessed Aug. 9, 2015).
5 Available at http://www.inlander.com/spokane/envision-this/Content?oid=2518639 (last
accessed Aug. 9, 2015).
6 Available at http://www.spokesman.com/stories/2015/aug/05/shawn-vestal-people-not-cityshould-vote-on/ (last accessed Aug. 9, 2015).
Preliminary Injunction Response
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Community Environmental
Legal Defense Fund
306 West Third Street
Port Angeles, WA 98362
(360) 406-4321

Downtown Spokane Partnership is part of a coalition of corporate interests that brought

a pre-election challenge in 2013 against a Community Bill of Rights initiative proposed by

Envision Spokane, after a substantially similar initiative garnered 49.1% of the vote in 2011.

Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend the Constitution, slip op. at 1, 3, No.

31887-7 (Wn. Ct. App., Div. III, Jan. 29, 2015) (unpublished opinion). That action was

dismissed by the Court of Appeals because the challengers did not have standing. Id. passim.

The Court of Appeals held [t]he order granting the declaratory judgment against Envision is

reversed and this matter is remanded for the City of Spokane to place the initiative on the next

available ballot in accordance with its June 3, 2013 resolution. Id. at 19.7

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The Hearing Examiners opinion on the initiative is not binding and it

declared that the initiative was proper for the ballot

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Pursuant to the initiative process, the Spokane Hearing Examiner issues a non-binding

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opinion on the legal validity and effect of the proposed measure. SMC 02.02.040(B). The

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City Hearing Examiner issued an opinion on the Worker Bill of Rights initiative. Ryan Decl. re

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Preliminary Injunction Motion, Ex. D. While approving the initiative for the ballot, the Hearing

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Examiner opined about one section of the initiative, explaining that it was his belief that the

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substance of the provision was not consistent with state law. Id. at 6-7. Realizing that

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substantive legality is relevant only to post-adoption challenges, the Examiner concluded that

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[i]n the Hearing Examiners opinion, the Worker Bill of Rights can properly be adopted by

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initiative. Id. at 9. In addition, the Hearing Examiner did not analyze the critical clause in the

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remedy provision that limits corporate rights only to the extent that [the right] would interfere

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with the rights enumerated in this section, nor did the Examiner analyze that remedy provision

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7 The challengers petitioned the Washington Supreme Court for discretionary review on April
9th, 2015, and the petition for review is now fully briefed and awaiting a decision by the
Court. Sup. Ct. No. 91551-2.
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Community Environmental
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as if it were a strict scrutiny balancing test. Id. at 2, 6-7.

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Argument
A preliminary injunction 'is an extraordinary equitable remedy designed to prevent

serious harm. It's purpose is not to protect a plaintiff from mere inconveniences or speculative

and insubstantial injury.' Kucera v. Dept. of Transp., 140 Wn.2d 200, 221, 995 P.2d 63 (2000)

(quoting Tyler Pipe Indus., Inc. v. Dept. of Revenue, 96 Wn.2d 785, 796, 638 P.2d 1213 (1982)).

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One who seeks relief by temporary or permanent injunction must show (1) that
he has a clear legal or equitable right, (2) that he has a well-grounded fear of
immediate invasion of that right, and (3) that the acts complained of are either
resulting in or will result in actual and substantial injury to him. Since
injunctions are addressed to the equitable powers of the court, the listed criteria
must be examined in light of equity including balancing the relative interests of
the parties and, if appropriate, the interests of the public.

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Id. at 209 (quoting Tyler Pipe Indus., supra, quotation modifications omitted). An injunction is

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distinctly an equitable remedy and is frequently termed the strong arm of equity, or a

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transcendent or extraordinary remedy, and is a remedy which should not be lightly indulged in,

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but should be used sparingly and only in a clear and plain case. Id. at 209 (citation and

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quotation omitted). A preliminary injunction should not issue in a doubtful case. San Juan

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Cnty. v. No New Gas Tax, 160 Wn.2d 141, 153-54, 157 P.3d 831 (2007) (citations omitted).

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This is not a case for a preliminary injunction, both because of the facts discussed above

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that show this is a political dispute to be resolved outside the courthouse, and also because

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Mayor Condon's arguments fail to pass the preliminary injunction legal test, as discussed below.

Preliminary Injunction Response

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Community Environmental
Legal Defense Fund
306 West Third Street
Port Angeles, WA 98362
(360) 406-4321

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I.

Mayor Condons action violates the Spokane Municipal Code, because the Code
requires the Council to authorize a pre-election challenge, and the Council has,
instead, voted unanimously to place this initiative onto the ballot and not to
challenge it.

The Mayor leads the executive branch of the City of Spokane, and is not part of the

legislative branch. See Spokane City Charter art. II, 5(A); accord SMC 02.005.010. The

Council has already approved the Worker Bill of Rights for ballot placement, and declined to

consider a pre-election challenge. In bringing this action, the Mayor seeks to interfere with the

legislative process of both the Council and the people of Spokane, in violation of the theory of

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separation of powers and outside of the Mayor's executive authority.8

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Because of the lack of authority for Mayor Condon to bring this action, and the

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preliminary injunction requirement that all doubts concerning relief be resolved against the

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issuance of an injunction, Mayor Condons motion for preliminary injunctive relief must be

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denied.

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8 Legal Challenge Regarding Legal Validity of Initiative Measure is authorized by SMC

02.02.115, which provides the rule for how the City of Spokane can bring a pre-election
challenge:

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The city council and the city administration may only challenge an initiative or
referendum measure as illegal or unconstitutional after it has adopted a
resolution directing the county auditor to place the measure on the ballot. No
challenge shall be filed by the city council unless at least five members of the
city council vote to challenge the initiative or referendum measure. Any pre- or
post- election legal challenge shall comply with the current jurisprudence
addressing those challenges.
The plain language of this provision requires a supermajority of the Council to authorize a
pre-election challenge in the name of the City of Spokane. The provision requires that both
the city council and the city administration act in concert to file a challenge, and requires a
super-majority of the city council to authorize such an action.
Preliminary Injunction Response
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Community Environmental
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306 West Third Street
Port Angeles, WA 98362
(360) 406-4321

II.

The Mayor lacks standing to bring this action.

The Mayor lacks standing to bring this action because the Spokane Municipal Code

provides only the Citys legislative branch may authorize pre-election intervention into the

initiative process. Separate and apart from that required legislative authorization, however,

Mayor Condon also lacks standing because the challenged action has [not] caused injury in

fact, economic or otherwise, to the party seeking standing. Grant Cnty. Fire Prot. Dist. v.

Moses Lake, 150 Wn.2d 791, 802, 83 P.3d 419 (2004) (quotations omitted). The Mayor rests his

standing primarily9 on the printing costs that will be charged to the City, that are caused by the

initiative. PI Mot. 15. However, this justification cannot serve as an an injury in fact sufficient

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to confer standing because Mayor Condon does not allocate the City's funds, the City Council

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does. Here, the Council already made the unanimous decision to put the Worker Bill of Rights

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initiative on the ballot and declined to bring a pre-election challenge. Thus, the City of Spokane

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has already decided that it wants to incur the financial cost of placing the duly qualified

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initiative on the ballot, and so that cost cannot serve as an injury to Mayor Condon.

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In addition, Mayor Condon while tasked with enforcing the Citys laws has no

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concomitant obligation to enforce this law, because the Worker Bill of Rights plainly declares

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that [n]o action shall lie against the City for failure to enforce the rights contained within this

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section. Ryan Decl., Ex. B (hereinafter Initiative), at 1, 120(C)(2).

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9 Mayor Condon also cites a California case for the proposition that placing an invalid
initiative on the ballot will not only cause voter confusion for all of those Spokane voters
voting in the election, it will also harm the local initiative process itself. PI Mot. 16
(citation omitted). A Spokesman-Review reporter characterized Mayor Condon's action quite
differently: Yet the patronizing, paternalistic efforts to smother [the initiatives] not to win
the debate, but to prevent it offer the most stirring reasons to argue for the quaint notion of
letting the people have a say. Vestal, supra at 3. Bringing long-shot pre-election challenges
is an ironic way to protect the initiative process.
Preliminary Injunction Response
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Community Environmental
Legal Defense Fund
306 West Third Street
Port Angeles, WA 98362
(360) 406-4321

Mayor Condon lacks standing to bring this action and therefore, his motion for

preliminary injunctive relief must be denied.

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III. Mayor Condon lacks actual and substantial injury resulting from the Worker Bill of
Rights initiative going to the ballot, which is a necessary element for a preliminary
injunction.

Mayor Condon cannot obtain a preliminary injunction because neither he nor the City

will suffer irreparable harm, any alleged harm is not caused by the placement of the initiative

onto the ballot, and relief granted by this Court cannot remedy the City's alleged harms.

[O]ne who seeks relief by temporary or permanent injunction must show . . . (3) that

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the acts complained of are either resulting in or will result in actual and substantial injury to

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him. Federal Way Family Physicians, Inc. v. Tacoma Stands Up For Life, 106 Wn.2d 261, 265,

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721 P.2d 946 (1986) (quotation and citations omitted). Monetary injury does not justify recourse

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to the extraordinary remedy of injunctive relief. Kucera, 140 Wn.2d at 210-11, 995 P.2d 63.

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Here, all Mayor Condon has shown is possible monetary harm to the City by putting the

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initiative to the ballot. However, Mayor Condon is already likely spending far more of the City's

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money on this pre-election challenge litigation than would be spent putting another item on the

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November ballot.10 Mayor Condon's effort to protect . . . the public fisc, PI Mot. 2, is really a

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legal farce.

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Mayor Condon also argues his harm will come from defending the purportedly-invalid
initiative provision post-enactment. But this action already provides Mayor Condon with an
10 See Spokane City Gazette, vol. 105, p. 444 (Apr. 29, 2015), available at
https://static.spokanecity.org/documents/official-gazettes/2015/04/official-gazette-2015-0429.pdf (last accessed Aug. 9, 2015) ([A]dding additional funds to the Contract with
Michael K. Ryan and the law firm of K & L Gates LLP (Seattle, WA) to provide special
counsel regarding the legal validity of the Initiative No. 2013-3 and No. 2013-4 and
providing legal options available to the City increase of $10,000. Total Maximum Contract
Amount: $70,000.). In contrast, the County Elections Office estimates the cost to the City
for the November 2015 ballot is $5,500 per ballot item.
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Community Environmental
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opportunity to get the declaratory judgment he thinks he deserves, which would exonerate him

from any post-enactment defense obligation.

Mayor Condon is likely to argue that since the Mayor has [t]he duty to see that all laws

and ordinances are faithfully enforced and that law and order are maintained in the City,

Spokane City Charter art. IV, 24(J), the Mayor is obligated to bring this action. This would

miss a key issue. An initiative is not law. It is more analogous to a bill or proposed ordinance.

See SMC 02.02.100(C) ([T]he filing of an initiative petition has no legal effect unless, and

until, the measure is passed by the city council or by a majority of the City electors.). Thus, the

Mayor's duty does not extend to enforcing laws against initiatives.

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Further, Mayor Condon's central argument here that the Mayor has the authority to

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enjoin a proposed initiative that purportedly conflicts with state and federal laws suggests the

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Mayor could also file an action to enjoin the City Council from considering proposed

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ordinances that purportedly conflict with state or federal laws. Such an absurd result would

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allow interference by the executive directly into the pending legislative process a result that

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the Mayor seeks in this case, to prevent the people of the City of Spokane from acting in their

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own legislative capacity, as envisioned by the initiative process.

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A preliminary injunction is an extraordinary equitable remedy designed to prevent

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serious harm. It's purpose is not to protect a plaintiff from mere inconveniences or speculative

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and insubstantial injury. Kucera, 140 Wn.2d at 221, 995 P.2d 63 (quotation omitted). Mayor

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Condon cannot meet this harm element, and thus the preliminary injunction must be denied.

Preliminary Injunction Response

Page 9

Community Environmental
Legal Defense Fund
306 West Third Street
Port Angeles, WA 98362
(360) 406-4321

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IV.

The City lacks a clear legal or equitable right, which is a necessary element for a
preliminary injunction, because Mayor Condon's claim that the Worker Bill of
Rights initiative is not valid to appear on the ballot is based on his expansion of the
pre-election challenge test, and a misinterpretation of the Worker Bill of Rights
remedy provision.
Only if the Court finds that the City has met all of the above-discussed issues and met

them to the no-doubt standard required for a preliminary injunction should the Court reach the

merits of whether the City has a clear legal or equitable right. See Kucera, 140 Wn.2d at

216-17, 995 P.2d 63; Rabon v. City of Seattle, 135 Wn.2d 278, 285-86, 957 P.2d 621 (1998). For

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this procedural reason alone, we address this issue last.

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A.

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The Worker Bill of Rights remedy provision is within the initiative power and thus
should appear on the ballot.
Under established Washington law, judicial pre-election review of a citizen's initiative is

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narrow. It only examines whether the initiative seeks to exercise a power that has been

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legislatively-delegated to the local legislative body, or whether the initiative is legislative (rather

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than administrative) in nature. It explicitly bars an examination of whether the initiative is

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constitutional or otherwise legal inquiries that must wait until after the initiative is adopted.

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Coppernoll v. Reed, 155 Wn.2d 290, 119 P.3d 318 (2005).

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Here, Mayor Condon encourages this Court to apply an expansive new pre-election

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review test, and to contradict the well-established standard of review, by arguing that questions

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about the substance of an initiative offer sufficient grounds to remove a duly qualified peoples

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initiative from the ballot. This Court should reject Mayor Condons unique constraint on the

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initiative process.

Preliminary Injunction Response

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Community Environmental
Legal Defense Fund
306 West Third Street
Port Angeles, WA 98362
(360) 406-4321

In a pre-election review, the general rules of statutory construction apply.11 Challengers

bear a beyond a reasonable doubt burden of proof. E.g., League of Educ. Voters v. State, 176

Wn.2d 808, 820, 295 P.3d 743 (2013) (citations omitted); State v. Somerville, 67 Wash. 638, 122

P. 324 (1912) (upholding a labor law even against a substantive due process challenge during

the Lochner era). The challenged law is presumed constitutional. E.g., League of Educ. Voters,

176 Wn.2d at 818, 295 P.3d 743; Wash. Ass'n for Substance Abuse and Violence Prevention v.

State, 174 Wn.2d 642, 654, 278 P.3d 632 (2012). Every reasonable presumption will be made

in favor of the validity of a statute. Paramino Lumber Co. v. Marshall, 27 F. Supp. 823, 824

(W.D. Wash. 1939) (quotation omitted).

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Multiple interpretations are resolved in favor of the law's validity. E.g., Parents Involved

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in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 149 Wn.2d 660, 671, 72 P.3d 151 (2003) (citations

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omitted); Poolman v. Langdon, 94 Wash. 448, 457, 162 P. 578 (1917). The court does not

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speculate about possible hypothetical invalid applications of a law. See, e.g., Human Life of

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Wash. Inc. v. Brumsickle, 624 F.3d 990, 1021 (9th Cir. 2010) (citations omitted). Instead, the law

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is justified by merely any valid state of facts. E.g., State v. Kitsap Cnty. Bank, 10 Wn.2d 520,

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526, 117 P.2d 228 (1941) (citation omitted).

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11 The same general rules of statutory construction used for a statute apply when a court
reviews a charter, an initiative, or an ordinance. City of Seattle v. Auto Sheet Metal Workers
Local 387, 27 Wn. App. 669, 679-80, 620 P.2d 119 (1980) (citing Winkenwerder v. Yakima,
52 Wn.2d 617, 632, 328 P.2d 873 (1958)) (additional citations omitted) (applying statutory
construction rules to a charter), overruled on other grounds by City of Pasco v. Public Emps.
Relations Comm'n, 119 Wn.2d 504, 511-12, 833 P.2d 381 (1992); Roe v. TeleTech Customer
Care Mgmt. LLC, 171 Wn.2d 736, 746, 257 P.3d 586 (2011) (citations omitted) (applying
statutory construction rules to initiatives); Am. Legion Post No. 149 v. Dept. of Health, 164
Wn.2d 570, 585, 192 P.3d 306 (2008) (citations omitted) (same); World Wide Video, Inc. v.
City of Tukwila, 117 Wn.2d 382, 392, 816 P.3d 18 (1991) (citations omitted) (applying
statutory construction rules to an ordinance, including rule of construing the law so as to
uphold its constitutionality). There is generally one statutory construction standard
regardless of whether the law is local or state, or created by the people or the legislature.
Preliminary Injunction Response
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Community Environmental
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In addition, as a first class city, Spokane is self-governing. E.g., City of Seattle v. Sisley,

164 Wn. App. 261, 266, 263 P.3d 610 (2011) (citation omitted). Doubt concerning the existence

of power is resolved in favor of first class cities. E.g., State ex rel. Schillberg v. Everett Dist.

Justice Ct., 92 Wn.2d 106, 108, 594 P.2d 448 (1979) (A statute will not be construed as taking

away the power of a municipality to legislate unless this intent is clearly and expressly stated.

(citations omitted)). The court must attempt to harmonize state and local law. E.g., City of

Seattle v. Wright, 72 Wn.2d 556, 559, 433 P.2d 906 (1967) (A state statute is not to be

construed as impliedly taking away an existing power of a city of the first class if the two

enactments can be harmonized. (citing Ayers v. Tacoma, 6 Wn.2d 545, 554, 108 P.2d 348

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(1940))).
[T]he burden is on the challenger of an initiative proposal to show that the people's

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legislative authority to effectuate charter amendments is restricted. Maleng v. King Cnty. Corr.

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Guild, 150 Wn.2d 325, 334, 76 P.3d 727 (2003). These stringent standards apply to protect the

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sanctity of the direct lawmaking process. [T]he right of initiative is nearly as old as our

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constitution itself, deeply ingrained in our state's history, and widely revered as a powerful

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check and balance on the other branches of government. Accordingly, this potent vestige of our

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progressive era past must be vigilantly protected by our courts. Coppernoll, 155 Wn.2d at

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296-97, 119 P.3d 318 (citation omitted); see also State ex rel. Mullen v. Howell, 107 Wash. 167,

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170-72, 181 P. 920 (1919) (refusing a rule of strict construction [that would apply against the

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people's referenda power, because] the power of the whole people is in question).

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Thus, it is this Court's duty to not block proposed law unless an initiative interferes with

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state legislative delegation of authority, or proposes something that is not legislative in nature.12

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12 There have been only two Washington cases that have strayed from this standard,
Philadelphia II and Seattle Building, discussed below.
Preliminary Injunction Response
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Community Environmental
Legal Defense Fund
306 West Third Street
Port Angeles, WA 98362
(360) 406-4321

Judicial restraint demands this. Separation of powers demands this.

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1.

Removal of the initiative from the ballot on the grounds of state and federal
preemption defies settled Washington jurisprudence and would dramatically
expand the role of the judiciary in pre-election initiative challenges.
Pre-election challenges based on an initiative's substance are generally barred.

Coppernoll, 155 Wn.2d at 297, 119 P.3d 318 (It has been a longstanding rule of our

jurisprudence that we refrain from inquiring into the validity of a proposed law, including an

initiative or referendum, before it has been enacted. (citations omitted)). Courts offer a

number of reasons for this rule, among them that the courts should not interfere in the electoral

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and legislative processes, and that the courts should not render advisory opinions. Seattle Bldg.

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and Constr. Trades Council v. City of Seattle, 94 Wn.2d 740, 746, 620 P.2d 82 (1980) (citation

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omitted).

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Courts have created a narrow exception to this rule when state initiatives attempt to

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directly make federal law, or when local initiatives attempt to directly override state agency

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decision-making on state projects. See Philadelphia II v. Gregoire, 128 Wn.2d 707, 718-20, 911

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P.2d 389 (1996) (voiding a state-wide initiative that sought to create a federal initiative

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process because it is simply not within Washington's power to enact federal law); Seattle

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Building, 94 Wn.2d at 741, 744, 620 P.2d 82 (voiding a city initiative that would prohibit

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expansion of [state and federal] highway facilities on Lake Washington).

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Both cases illustrate that this narrowly construed exception to the general prohibition on

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review of substantive invalidity applies only when a local government attempts to wield a

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higher jurisdiction's power, like amending the Federal Constitution or determining the siting

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of a state highway. The Worker Bill of Rights remedy provision does not attempt this, and thus,

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it cannot be removed from the ballot on those grounds.

Preliminary Injunction Response
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Community Environmental
Legal Defense Fund
306 West Third Street
Port Angeles, WA 98362
(360) 406-4321

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2.

In order to make his legal argument work, Mayor Condon asks the Court to
ignore the standards and rules in a pre-election challenge, and turn the narrow
exception created by Philadelphia II and Seattle Building into an expansive rule
that allows pre-election challenges for any possible substantive invalidity, which
makes the pre-election challenge as broad as a post-election challenge.
Mayor Condon argues that Philadelphia II and Seattle Building lead to a pre-election

challenge rule that prohibits initiatives that (3) seek[] to legislate in areas that are simply not

within the local legislative power. PI Mot. 9. Given the extremely high review standards in a

pre-election challenge, and the exceptional nature of Philadelphia II and Seattle Building, this

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Court should not accept Mayor Condon's invitation to expand the pre-election challenge rule.

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Further, this expanded rule goes way beyond issues of the scope of the local initiative power

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and into issues of what is ultra vires for the local government itself. It invites anyone opposed to

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an initiative to challenge it in court pre-election, before it is even a law, thus further burdening

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the people's exercise of their lawmaking powers.

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3.

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The Worker Bill of Rights remedy provision passes the pre-election challenge test.
The only provision of the Worker Bill of Rights that the City seriously challenges as

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lying outside of the initiative power is the remedy provision that subordinates corporate

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violators' rights.13 PI Mot. 10-11. This provision is narrowly tailored to only restrict corporate

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powers to the extent necessary to prevent them from interfering with the law:

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4. Corporate Powers Subordinate To Peoples Rights. Corporations that violate,

or seek to violate, this section shall not be deemed to be persons to the extent
that such treatment would interfere with the rights enumerated in this section,
nor shall corporations possess any other legal rights that would interfere with the
rights enumerated by this section, including standing to challenge this section in
court, the power to assert state or federal preemptive laws in an attempt to
overturn this section, and the power to assert that the people of this municipality
lack the authority to adopt this section.

1
2

13 Whether the remedy provision is facially constitutionally valid is a separate issue, for
another day namely, after the provision has become law.
Preliminary Injunction Response
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Community Environmental
Legal Defense Fund
306 West Third Street
Port Angeles, WA 98362
(360) 406-4321

Initiative (emphasis added). This provision does not redefine the nature of corporations as

persons within the City. Instead, the initiative establishes that corporate persons violating

the Worker Bill of Rights shall not have the authority to evade enforcement of the rights by

asserting competing corporate rights. This remedy provision, which elevates the provisions of

the initiative above the rights of corporations that would otherwise violate the law, does not

attempt to wield a state or federal power, and thus Philadelphia II and Seattle Building are

inapplicable to the instant case.

8
9

Laws are ineffective without a remedy. Remedies frequently involve a loss of a right or
privilege. E.g., CONST. art. VI, 3 (All persons convicted of infamous crime unless restored to

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their civil rights . . . are excluded from the elective franchise.); Adoption of Dobbs, 12 Wn.

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App. 676, 531 P.2d 303 (1975) (revoking a father's right to consent to his child's adoption

12

because he abandoned the child). The police power may even burden fundamental rights when

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the government acts to protect health and safety. E.g., State v. Balzer, 91 Wn. App. 44, 56-58,

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954 P.2d 931 (1998).

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Laws may distinguish between corporations and natural persons. E.g., Adult Entm't Ctr.

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v. Pierce Cnty., 57 Wn. App. 435, 446 n.7, 788 P.2d 1102 (1990) (collecting the long line of

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cases in which the Supreme Court has held that corporations cannot claim the protection of the

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privileges and immunities clause of the Fourteenth Amendment (citations omitted)).

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Corporations are subservient to both the people and their governments. CONST. art. XII, 1 (all

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corporations doing business in this state may, as to such business, be regulated, limited or

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restrained by law).

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In addition to that authority, this provision is limited to only those corporations violating
the rights contained within the initiative: Corporations that violate, or seek to violate, this
Preliminary Injunction Response
Page 15

Community Environmental
Legal Defense Fund
306 West Third Street
Port Angeles, WA 98362
(360) 406-4321

section shall not be deemed to be 'persons' to the extent that such treatment would interfere with

the rights enumerated in this section, nor possess any other legal rights that would interfere

with the rights enumerated by this section . . . . Initiative 1, 120(A)(4). The provision thus

only affects corporations that violate the law, and only to the extent necessary to enable

enforcement of the underlying worker rights. Making its laws effective is a compelling

government interest, and this one is expressly narrowly-tailored to achieve that goal.

The people have the right to express their preferred remedy. The local government has

the authority to enforce its laws by appropriate measures. Limiting a violating entity's rights

only to the extent necessary to provide that people's rights will not be violated is an appropriate

10

measure, expressly narrowly-tailored. Doing so does not wield a state power as corporations

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would maintain their state and federal rights except in the context of their violation of the

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Worker Bill of Rights.

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B.

Even if the Worker Bill of Rights remedy provision was outside the initiative power,
it is severable from the rest of the Worker Bill of Rights.

15

In general, if part of an initiative is within the scope of the initiative power, the

16

governmental entity must place the valid part on the ballot. Priorities First v. City of Spokane,

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93 Wn. App. 406, 412, 968 P.2d 431 (1998) (citation omitted). Courts can engage in extensive

18

redaction of invalid initiative language and still order the initiative onto the ballot. See, e.g.,

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State ex rel. Griffiths v. Super. Ct. Thurston Cnty., 92 Wash. 44, 45-47, 159 P. 101 (1916).

20

Mayor Condon erroneously claims that general rule does not apply here because the

21

purportedly-invalid remedy provision is the heart and soul of the Initiative. PI Mot. 12. But

22

existing laws already contain many remedies to effectuate the worker rights contained here.

23

Envision Worker Rights included the corporate rights provision to insulate the Worker Bill of

Preliminary Injunction Response

Page 16

Community Environmental
Legal Defense Fund
306 West Third Street
Port Angeles, WA 98362
(360) 406-4321

Rights from, for example, a change in the state Minimum Wage Act that expressly preempts

higher local minimum wages.14

3
4
5

Mayor Condon's ballot title argument is also a red herring. RCW 29A.36.090 requires
ten days for a party to appeal a ballot title.
Same for the argument that we cannot know whether petition signers would have signed

without the purportedly-invalid remedy provision. The petition signers want this initiative to

appear on the ballot even [i]f any part or provision of these section provisions is held invalid,

the remainder of these provisions shall not be affected by such a holding and shall continue in

full force and effect. Initiative 3.

10

Even if the Court were to find that the remedy provision is not fit to appear on the ballot

11

which it should not find the Court must place the rest of the Worker Bill of Rights initiative

12

on the ballot.

13
14

Conclusion
A preliminary injunction is an extraordinary equitable remedy designed to prevent

15

serious harm. It's purpose is not to protect a plaintiff from mere inconveniences or speculative

16

and insubstantial injury. Kucera, 140 Wn.2d at 221, 995 P.2d 63 (quotation omitted). This

17

Court must deny the City of Spokane's preliminary injunction motion because this action is

18

brought without City Council authorization, without standing, without actual and substantial

19

injury, and without a clear legal or equitable right. [T]he failure to establish any one or more of

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the criteria generally dictates that we deny the requested [preliminary injunction] relief.

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5
6

14 As more cities in Washington pass higher minimum wage laws, corporate lobbyists are
likely to push for a preemptive state statute to quash all those local laws in one effort. Many
other states' minimum wage statutes expressly preempt local minimum wage laws. See
generally, Note, Darin M Dalmat, Bringing Economic Justice Closer to Home: The Legal
Viability of Local Minimum Wage Laws Under Home Rule, 39 COLUMBIA J. L. & SOC.
PROBLEMS 93 (2005).
Preliminary Injunction Response
Page 17

Community Environmental
Legal Defense Fund
306 West Third Street
Port Angeles, WA 98362
(360) 406-4321

Federal Way Family Physicians, 106 Wn.2d at 265, 721 P.3d 946.

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Respectfully submitted August 10, 2015.

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7

_________________________
Lindsey Schromen-Wawrin
Washington State Bar Number 46352
Community Environmental Legal Defense Fund
306 West Third Street
Port Angeles, WA 98362
phone: (360) 406-4321
fax: (360) 752-5767
e-mail: lindsey@world.oberlin.edu

Preliminary Injunction Response

Page 18

Community Environmental
Legal Defense Fund
306 West Third Street
Port Angeles, WA 98362
(360) 406-4321

1
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CERTIFICATE OF SERVICE
I certify that on this day I sent a copy of the foregoing document by email to:

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For City of Spokane:

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foregoing is true and correct.

Michael Ryan
Aaron Millstein
K&L Gates LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104
michael.ryan@klgates.com
aaron.millstein@klgates.com
angela.oconnor@klgates.com
Nancy Isserlis
Mike Piccolo
City of Spokane City Attorney Office
808 W. Spokane Falls Blvd.
Spokane, WA 99201
nisserlis@spokanecity.org
mpiccolo@spokanecity.org
For Vickie Dalton, Spokane County Auditor:
James Emacio
Spokane County Prosecuting Attorney Office
West 1115 Broadway Avenue, Second Floor
Spokane, WA 99260
jemacio@spokanecounty.org
tbaldwin@spokanecounty.org
I declare under penalty of perjury under the laws of the state of Washington that the

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Lindsey Schromen-Wawrin

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On August 10, 2015 in Spokane, WA

Preliminary Injunction Response

Page 19

Community Environmental
Legal Defense Fund
306 West Third Street
Port Angeles, WA 98362
(360) 406-4321