Since January 2014, Whatcom Watch has been reprinting articles from issues printed 20 years ago. The below article is from the January 2000 issue, more than 20 years ago. We are reprinting two articles because the managing editor and staff feel they are pertinent to the article on the Lake Whatcom Watershed Advisory Board that appeared in last month’s issue of Whatcom Watch. Both articles discuss unwitten rules in the initiative process that allowed city interference. At the May 1, 2006 City Council meeting, they added to the Bellingham Municipal Code, Chapter 1.02. The chapter lists 11 procedures that were designed to provide clear guidance to petitioners, city and county employees.
by Tim Paxton
In September of 1999, prior to the general election, the City of Bellingham brought forward a lawsuit funded with the public’s tax dollars, against the Drinking Water Initiative (Proposition One). What was at stake was summarized by attorney Rand Jack representing the citizen initiative.
“At stake in this lawsuit is whether the people of Bellingham have a right to initiate a program to protect the watershed that delivers to them safe and essential drinking water.”
The city argued that only it had this right. The city also was in court because it apparently continued to refuse to even hold public hearings on land acquisition proposals or to take effective action to protect the drinking water reservoir. The Drinking Water Initiative (Proposition One) would have forced the city to begin buying up land in the watershed for protection.
Differing Rules for Initiatives
The City of Bellingham, Whatcom County, and the state of Washington all have different ways of managing the citizen initiative process. The county and state have many specific rules for the fair consideration and handling of this key citizen right: the right of direct legislation by voter initiative.
The initiative processes in Whatcom County and the state of Washington have many ordinances implementing the detailed setting of ballot titles upon filing, a check of the wording for legalities called code review, numbering of ballot measures, and the general fair handling of citizen initiatives.
The Bellingham City Charter has none of these safeguards. It is vague:
• Nothing requires that the city set a mutually agreeable ballot title upon filing.
• Nothing requires that the City Attorney must agree to review the ballot wording for legalities as the county and state do.
• Nothing requires that the city refrain from filing a lawsuit based on information it may have withheld from initiative proponents.
• Nothing requires that the city refrain from using the threat of a lawsuit to attempt to extract concessions from initiative proponents.
• Nothing requires that the city refrain from making misleading statements about a citizen initiative, even if it is before the court.
• Nothing requires that the city refrain from suing an initiative’s proponents before it is voted on.
In brief, the city has many avenues to abuse and misuse the citizen initiative process with your tax dollars. The 1999 Drinking Water Initiative (Proposition One) is a prime example of how far the city can go to oppose the citizen initiative process.
Drinking Water Initiative Election Results
The 1999 Bellingham Drinking Water Initiative (Proposition One) had exactly 226 more No votes than Yes votes. A total of 21,097 voters participated in the city election. Significantly 4,407 voters didn’t know what to think about the initiative and declined to vote yes or no. The 1999 Drinking Water Initiative has been closely (a 1.36 percent difference), but fairly voted down by the public. Or has it?
The following question arose from a Bellingham voter. Considering all of the actions and money spent by the city to defeat the Drinking Water Initiative (Proposition One), do you think their actions affected the close election and the initiative process? Here is one perspective. You can decide if you believe the city treated fairly this grassroots effort to protect our children’s drinking water. We welcome a city perspective and response.
Here is a brief list of events regarding the city’s treatment of the 1999 Drinking Water Initiative (Proposition One).
The 1999 Drinking Water Initiative (Proposition One) text (with proposed ballot title) was filed with City Attorney Dawn Sturwold and the county auditor. The Initiative Group requested, in writing, from the City Attorney, any information on whether the city could see any problems with the form or content of the initiative.
This is similar to a “code reviser” process required by the county and state upon filing initiatives so that initiatives are in proper form and are less likely to be sued by the county or state.
Initiative proponents wanted to be sure that they were following all the City Charter rules and state law correctly. The request was declined by the city attorney. No City Council vote was taken on this matter.
The initiative proponents assumed city’s silence was a green light. Several attorneys experienced with initiatives who had reviewed the wording saw no problems with the wording or intent.
No new ballot title was produced by the city prior to signature gathering. One thousand color copies of the Drinking Water Initiative (Proposition One) with a simple 30 word title were printed. No new ballot title or objection was filed by the city attorney or mayor.
Volunteer signature gathering began all across Bellingham. The proposal was received with enthusiasm by Bellingham voters.
Several City Council members reported that they had been “warned” not to discuss the Drinking Water Initiative. City Council members also were told not to sign the initiative. None did.
This apparent warning seemed to have the result that the City Council was effectively gagged on this issue while signatures were still being gathered.
Were Bellingham citizens denied representation by their City Council members due to a “gag rule” being in place? Did someone in the city government have the power to silence the City Council at will by perhaps calling any issue “pending litigation?” What was it about protecting Lake Whatcom that caused our city to want to take draconian measures against a grassroots citizen action?
On July 21, 1999, the Citizen Drinking Water Initiative (Proposition One) was certified by the Whatcom County auditor for the ballot. More than 5,400 Bellingham and regional adults signed their names and agreed to the democratic idea of voting on public land ownership to protect Lake Whatcom.
In an apparent attempt to force the withdrawal of the now certified citizen Drinking Water Initiative (Proposition One), the City Attorney, Dawn Sturwold, informed proponents that they will be named personally in a taxpayer-funded lawsuit.
The city attorney proposed that the proponents accept a non-binding vote on a watered down “compromise version” in exchange for the city not suing the initiative.
No public City Council vote had been taken at this point. No agreement was reached. The city refused to use their charter option to put up its own “compromise version” on the ballot as a binding measure.
September 20, 1999
The city delayed more than the 30 days allowed by the City Charter after the July 21 certification by the County Auditor, to pass or reject the measure or put up their own alternative.
By belatedly rejecting it, the measure forced its own way onto the ballot. Was this delay a violation of due process under section 10 of the Bellingham City Charter?
September 20, 1999
Late in the evening meeting, the city created a new, longer, more negative, and confusing ballot title, and named the initiative “Proposition One” only days prior to ballots being printed. The likely effect of this last-minute ballot title change probably was that many of the signatories no longer recognized the original initiative as the same as Proposition One on the ballot.
The Bellingham City Council meeting did not allow for public testimony or a sufficient appeal process for the new, mostly negative, confusing, and very long ballot title. The new title was generated within days of absentee ballots being printed so no appeal before the Whatcom Superior Court would even have time to change the printing.
The City of Bellingham voted to pursue a taxpayer-funded lawsuit (declaratory judgment) prior to the election and possibly prejudiced the democratic election process. The mayor and city did not offer to fund the legal defense of the citizen initiative. Was this a hostile lawsuit filed by the city to possibly defeat the initiative before voters had a chance to cast one ballot on the matter?
The city had unlimited tax funds to pursue suing the initiative into oblivion. The citizen initiative proponents luckily found volunteer attorneys who argued that Bellingham citizens do have a right to protect their drinking water when the city will not act to do so.
The Bellingham mayor and city attorney continued making public statements about the facts regarding Bellingham’s drinking water quality and the ballot proposition. The city continued with its claims that the initiative probably was illegal, invalid, or would likely be thrown out. These statements had the potential effect of undermining support for the ballot measure. Was this activity an improper attempt to influence the Court on a pending legal matter prior to a hearing by the judge?
Whatcom County Superior Court Judge, Honorable Steven Mura, deferred a ruling on the city’s lawsuit saying it would probably affect the election. Was that a possible attempt by the city to use the court to prejudice the voters?
On November 2, the 1999 Drinking Water Initiative was defeated by a slim margin of 226 votes out of 16,690 votes on the proposition.
Initiative Process Needs Better Rules
You can decide. Did the city’s actions possibly affect the outcome of this close election? Should the city have informed proponents that they were planning on suing the initiative, before signatures were even being gathered? Was the citizen initiative process treated fairly by the city? Should the rules regarding citizen initiatives be changed by the city?
The Drinking Water Initiative proponents will be proposing adoption of additional simple rules to prevent future abuse of the citizen initiative process. These rules are the same as those used by Whatcom County and the state and will substantially reduce the chances that future initiatives will be challenged on such grounds by the City of Bellingham. They also will protect your rights as a citizen to retain your right to vote on issues.
Tim Paxton was a former president of the North Cascades Audubon Society.