Compassion Seattle changes mind, appeals ruling after all

Last Friday, after King County Superior Court Judge Catherine Shaffer removed the “Compassion Seattle” charter amendment from the November ballot, the campaign announced that it would not appeal the ruling given the short amount of time until King County Elections needs to print ballots.  But this morning in a surprising reversal, the campaign went ahead and filed a motion for an emergency stay of Judge Shaffer’s ruling in anticipation of a full appeal to follow.

In a press release accompanying the filing, the Compassion Seattle campaign said:

This morning, Compassion Seattle’s lawyers filed an emergency motion of appeal with the Washington Court of Appeals seeking a stay of last week’s decision to remove Charter Amendment 29 from the November ballot. If granted, voters will have their say on a critically needed measure to address the number one issue facing Seattle — a measure that has majority voter support.

As we said last Friday, we strongly disagree with Judge Catherine Shaffer’s decision to strike Charter Amendment 29, a decision that blocks Seattle voters from being able to voice their opinion about the continuing crisis of homelessness. The Judge’s decision caused an outpouring of support over the weekend from supporters who want us to press on with an appeal. We decided that we must take this action to represent the interests of tens of thousands of voters who signed petitions to put this amendment on the ballot.

The people of Seattle deserve their say on how City Hall should be addressing this worsening crisis, and we will do everything we can to make that happen, whether by fighting for a vote on this Charter Amendment or by holding the candidates for Mayor, City Council, and City Attorney accountable for their positions on homelessness.

Former City Councilmember Tim Burgess, a leader of the campaign, told SCC Insight, “We decided to appeal after further legal review and a better understanding of KC Elections timeline, realizing that we had a few more days. We’ll see what happens.” According to the filing of King County Elections Director Julie Wise, the hard deadline is for overseas ballots to be mailed out by September 18th, as specified by law.

The motion filed today argues that Judge Shaffer made five mistakes in her ruling:

1. She mistakenly applied rules for the “initiative process” to a charter amendment;
2. She mis-applied rules regarding state law pre-empting a city charter;
3. She expanded the boundaries of what qualifies as “administrative” matters ineligible for initiatives or charter amendments, creating a loophole where a local government could use contracts to restrict the people’s initiative powers;
4. She used a test for an “as applied” challenge to a facial challenge to the charter amendment. A facial challenge requires showing that there is no possible way that it could be implemented without creating legal conflicts; the judge (allegedly) did not do that, and instead speculated about how conflicts “could” occur;
5. She ignored the severability clause in the proposed charter amendment to invalidate it in its entirety.

The last issue — the severability clause — is a new issue being raised for the first time on appeal; it wasn’t brought up by either side in Judge Shaffer’s court, nor did Shaffer express an opinion on whether or how it might apply. With limited exceptions, new issues may not be brought up on appeal that were not raised in lower court proceedings, so it’s unclear whether the appeals court will entertain that issue. If they do, it could make a substantial difference in the outcome of the case.

While not cited in their court filing today, the Compassion Seattle campaign pointed out to SCC Insight a separate Court of Appeals ruling from 2016 that is strikingly similar to this case — involving a City of Olympia voter initiative that a lower court struck from a November ballot and which the appeals court reinstated under emergency appeal. There the court argued that so long as there were debatable issues on the merits of the case justice required allowing the measure to stay on the ballot, recognizing that there was insufficient time before the November election to resolve the issues but they (and other issues) could be debated at length in court after the election and before the initiative went into effect. That ruling was handed down on September 2, 2016 — nearly identical timing to the current case. The ruling came from Division II of the state Court of Appeals; the current case is now in Division I, which means that it isn’t a binding precedent that must be followed, but it may be reviewed and cited by the judges.

This afternoon the Court of Appeals swiftly agreed to hear the motion for emergency stay. The plaintiffs will have until noon on Thursday to file their response, and the campaign will file their reply by 9am on Friday. The Court has not scheduled a hearing, and it may not at all: it may choose simply to rule based on the written briefs (and the written record in Shaffer’s court). A ruling could come as soon as Friday afternoon.

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