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2/21/2013
Washington Appeals Court Approves Blocking Of Anti-Camera Initiatives
Divided Washington Appeals Court upholds right of judges to block public vote on traffic camera bans.

Judges Cox and Dwyer
Washington state's second highest court believes the public should never be allowed to vote on red light cameras or speed cameras. In a 2-1 decision handed down Tuesday, the Court of Appeals ruled a lowly clerk could, in effect, decide whether issues should be presented to voters on a ballot.

In this case, Redmond city clerk Michelle McGehee decided in 2011 not to forward the 6050 signatures on a initiative petition banning photo enforcement to the county auditor for verification, even though state law explicitly required the signatures to be turned over. McGehee held back, knowing if the matter was put to voters, cameras would lose. Residents in Bellingham, Longview, Monroe and Mukilteo have voted by as much as 71 percent to outlaw the use of automated ticketing machines. Tuesday's ruling found the clerk was improperly assuming the powers of a judge.

"By failing to transmit the petition, McGehee failed to comply with her mandatory legal duty," Judge Ronald E. Cox wrote for the majority. "As the trial court stated, the clerk's decision was necessarily an assumption of a judicial function. 'To make the decision she did, the clerk had to apply case law and interpret legislation as it relates to the facts at hand. This is a judicial function and is not a city clerk function.'"

The majority in this case, however, sided with Redmond in finding petition organizers is powerless to compel a clerk to do his duty. The majority followed the reasoning of a state Supreme Court ruling insisting camera bans were contrary to the state law placing the decision on whether to use cameras in the hands of the "governing body," not the people (view ruling).

"The initiative here would have required that the use of automated ticketing cameras be approved by both the Redmond City Council and the public," Judge Cox wrote. "It also would have limited the fines that could have been imposed... Redmond Proposition 1 is beyond the scope of the initiative power. Accordingly, the issuance of a writ would have been improper as a vain and useless act."

Judge Stephen J. Dwyer disagreed with his colleagues, noting the law says after the county auditor returns a valid petition to the city council, the council then has the option of either passing the initiative language directly or placing it on the ballot.

"A plain reading of the statute at issue discloses that the proper, lawful processing of this proposed initiative would not have been a useless act," Judge Dwyer wrote. "The city council can -- legally -- adopt 'as is' the ordinance proposed in the initiative. This would be perfectly proper. However, the wrongful acts of the Redmond city clerk deprived both the voters and their elected city council of this opportunity."

Though Redmond officials won the legal battle, they lost the political one. Thanks to public pressure the city stopped using cameras last June. Washington voters will also have a chance to vote on a statewide initiative, I-517, which would overturn the court precedent and force a vote on all properly qualified measures. Redmond initiative co-sponsor Scott Harlan expressed frustration in his testimony in support of I-517.

"As difficult as a municipal initiative is to get on the ballot, if I knew ahead of time that a city could quash the initiative after all of that hard work, I would never begin that campaign," Harlan wrote. "It's hard enough for one citizen to fight Goliath. I'd never do it again unless the rules of the fight are known to everybody and fair. I would bet that the city leaders would also, quietly, appreciate the same level of clarity."

A copy of the decision is available in a 800k PDF file at the source link below.

Source: PDF File Eyman v. McGehee (Court of Appeals, State of Washington, 2/19/2013)



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