No. _________
`
`
`
`In the
`Supreme Court of the United States
`___________________
`
`
`
`RESPECT WASHINGTON,
`Petitioner,
`
`v.
`
`BURIEN COMMUNITIES FOR INCLUSION,
`et al.,
`
`
`Respondents.
`
`____________________
`
`On Petition for a Writ of Certiorari to the
`Washington Court of Appeals Division I
`____________________
`
`
`
`PETITION FOR WRIT OF CERTIORARIPETITION FOR WRIT OF CERTIORARIPETITION FOR WRIT OF CERTIORARI PETITION FOR WRIT OF CERTIORARI
`____________________
`
`
`
`
`
` RICHARD M. STEPHENS*
` *Counsel of Record
`Stephens & Klinge LLP
`601 108th Avenue N.E.
` Suite1900
`Bellevue, WA 98004
`Telephone: (425) 429-2532
`E-mail: stephens@sklegal.pro
`
`Counsel for Petitioner Respect Washington
`
`
`
`
`
`
`
`
`
`
`
`

`

`i
`
`
`
`
`
`
`
`
`
`QUESTION QUESTION QUESTION PRESENTEDPRESENTED QUESTION PRESENTEDPRESENTED
`
`
`
`
`
`Twenty four states allow citizens to propose state
`local
`legislation through the
`initiative and
`or
`referendum process—a remnant reminder of that
`consent from which just powers derive. Over 30 years
`ago this Court expressly recognized that the initiative
`process rests at the heart of the First Amendment’s
`protection because it involves communication about
`governmental policies and constitutes core political
`speech. Nonetheless, after an initiative has met all
`time, place and manner restrictions, a routine
`practice has developed for political opponents to seek
`an injunction prohibiting people from expressing their
`views at the ballot box and courts have repeatedly
`issued such injunctions expressly based on the subject
`matter of the initiatives.
`
`Question:
`
`Whether the First Amendment protects the right
`of citizens to vote on an initiative that meets all time,
`place and manner requirements for the initiative to
`qualify for placement on the ballot.
`
`
`
`
`

`

`
`
`ii
`
`
`LIST OF ALL PARTIESLIST OF ALL PARTIES
`
`LIST OF ALL PARTIESLIST OF ALL PARTIES
`
`The parties to this proceeding are Petitioner
`Respect Washington and the Respondents are Burien
`Communities for Inclusion; King County Elections;
`Julie Wise, King County Director of Elections and the
`City of Burien.
`
`
`
`CORPORATE DISCLOSURE STATEMENTCORPORATE DISCLOSURE STATEMENTCORPORATE DISCLOSURE STATEMENT CORPORATE DISCLOSURE STATEMENT
`
`
`
`
`Petitioner has no parent corporations or any
`publicly held corporations that own 10% or more of
`the stock of any parties to this proceeding.
`
`
`RELATED CASESRELATED CASESRELATED CASES RELATED CASES
`
`
`
`
` Burien Communities for Inclusion v. Respect
`Washington, No. 17-2-23799-0-KNT, Superior Court
`for King County, Washington. Order entered on
`September 14, 2017.
`
` Burien Communities for Inclusion v. Respect
`Washington, No. 77500-6-1, Division I of the
`Washington Court of Appeals. Judgment entered on
`September 9, 2019.
`
` Burien Communities for Inclusion v. Respect
`Washington, No. 97755-1, Washington Supreme
`Court. Order denying petition for review entered on
`January 8, 2020.
`
`
`

`

`
`
`iii
`
`TABLE OF CONTENTSTABLE OF CONTENTSTABLE OF CONTENTS TABLE OF CONTENTS
`
`
`
`
`
`
`QUESTIONS PRESENTED……………….. ……..……i
`
`LIST OF ALL PARTIES……………………………....…ii
`
`CORPORATE DISCLOSURE STATEMENT…….…..ii
`
`RELATED CASES……………………………………..…ii
`
`TABLE OF CONTENTS…………………………….….iii
`
`TABLE OF CITED AUTHORITIES………………......vi
`
`PETITION FOR WRIT OF CERTIORARI…………….1
`
`OPINIONS BELOW……………………………………...1
`
`JURISDICTION ………………………………………….1
`
`CONSTITUTIONAL PROVISIONS AT ISSUE…..….2
`
`STATEMENT OF THE CASE………………………..…3
`
`ARGUMENT……………………………………….………7
`
`REASONS FOR GRANTING THE WRIT……...……..7
`
`I.
`
`This Court should grant the Petition because the
`Washington state court has decided an important
`question of federal law in a way that conflicts with
`
`

`

`
`
`iv
`
`this
`of
`relevant First Amendment decisions
`Court..................................................................................7
`
`
`A. The decision below conflicts with this Court’s
`decisions that the First Amendment protects the
`initiative process..................................................10
`
`B. The Washington court uses an impermissibly
`vague standard for determining whether people
`can vote on a proposal steeped
`in civic
`controversy........................................................13
`
`
`
`C. Injunctions against initiatives before an election
`implicate the First Amendment right of voters to
`express their views through the election...........16
`
`D. The opportunity to vote on an initiative serves
`important First Amendment interests beyond
`adopting legislation.............................................19
`
`
`II.
`
`This Court should grant this Petition to resolve the
`conflict between the decisions of the First and Sixth
`Circuits and the decisions of the District of Columbia
`and Tenth Circuits on an important question of First
`Amendment law…………………………………………..22
`
`CONCLUSION………………………………..…………27
`
`Appendix A—Opinion of the Court of Appeals for the
`State of Washington, Division I……............App. 1a
`
`
`Appendix B—Decision of the Washington Court of
`
`

`

`
`
`v
`
`Appeals Division I Court Commissioner ordering
`that review will go forward as an appeal of the
`Superior
`Court
`of
`King
`County,
`Washington………………………….…….....App. 32a
`
`
`Appendix C—Order Granting Plaintiff’s Motion for
`Preliminary Injunction of Decision of the Superior
`Court
`of Washington
`in and
`for King
`County.………………………………………...App. 41a
`
`
`Appendix D—Order of the Washington Supreme
`Court denying petition for review…...…...App. 44a
`
`
`Appendix E—Constitutional Provisions at Issue
`……...…………………………………………..App. 45a
`
`
`Appendix F—Specification Regarding Federal
`Question…………………………………….…App. 26a
`
`
`Appendix G—Respect Washington’s Opposition to
`Motion for a Preliminary Injunction.….....App. 47a
`
`
`Appendix H—Initiative Petition to Repeal Burien’s
`“Sanctuary City” Ordinance 651…..……...App. 65a
`
`
`
`

`

`vi
`
`
`
`
`
`
`
`
`
`
`
`
`TABLE OF TABLE OF CITED TABLE OF TABLE OF CITED CITED AUTHORITIESAUTHORITIES CITED AUTHORITIESAUTHORITIES
`
`
`
`Page(s)
`
`
`
`
`
`Cases
`
`Advisory Opinion to the Attorney General – Limited
`Marine Net Fishing,
`620 So.2d 997 (Fla. 1993) ......................................... 8
`Alaska Action Center, Inc. v. Municipality of
`Anchorage,
`84 P.3d 989 (Alaska 2004) ...................................... 16
`Amador Valley Joint Union High Sch. Dist. v. State
`Bd. of Equalization,
`583 P.2d 1281 (Cal. 1978) ......................................... 8
`Amalgamated Transit Union Local 587 v. State,
`11 P.3d 762 (Wash. 2000) ....................................... 20
`Biddulph v. Morham,
`89 F.3d 1491 (11th Cir. 1996) ................................. 24
`Buckley v. American Constitutional Law Foundation,
`525 U.S. (1999) ....................................................... 11
`City of Port Angeles v. Our Water-Our Choice!,
`239 P.3d 589 (Wash. 2010) ............................... 13, 14
`Coppernoll v. Reed,
`119 P.3d 318 (Wash. 2005) ............................... 17, 19
`Filo Foods, LLC v. City of SeaTac,
`357 P.3d 1040 (Wash. 2015) ..................................... 7
`First Nat’l Bank of Boston v. Bellotti,
`435 U.S. 765 (1978) ................................................. 10
`Forsyth County v. Nationalist Movement,
`505 U.S. 123 (1992) ........................................... 12, 14
`Friends of Congress Square Park v. City of Portland,
`91 A.3d 601 (Me. 2014) ..................................... 14, 17
`
`
`
`

`

`
`
`vii
`
`Fritz v. Gorton,
`517 P.2d 911 (Wash. 1974) ....................................... 8
`Gallivan v. Walker,
`54 P.3d 1069 (Utah 2002) ....................................... 16
`Global Neighborhood v. Respect Washington,
`434 P.3d 1024 (Wash. Ct. App.) ............................. 12
`Heider v. City of Seattle,
`675 P.2d 597 ............................................................ 13
`Herbst Gaming, Inc. v. Heller,
`141 P.3d 1224 (Nev. 2006) ...................................... 17
`Initiative and Referendum Institute v. Walker,
`450 F.3d 1082 (10th Cir. 2006) ......................... 24, 25
`Interstate Circuit, Inc. v. City of Dallas,
`390 U.S. 676 (1968) ................................................. 14
`Kafka v. Montana Dept. of Fish, Wildlife and Parks,
`201 P.3d 8 (Mont. 2008) ............................................ 8
`Lee v. State,
`374 P.3d 157 (Wash. 2016) ......................... 16, 18, 20
`Legislature v. Deukmejian,
`669 P.2d 17 (Cal. 1983) ........................................... 16
`Marijuana Policy Project v. United States,
`304 F.3d 82 (D.C. Cir. 2002) ....................... 22, 23, 24
`McAlister v. City of Fairway,
`212 P.3d 184 (Kan. 2009) ....................................... 13
`Meyer v. Grant,
`486 U.S. 414 (1988) ................................. 9, 10, 11, 19
`Miller v. Town of Hull,
`878 F.2d 523 (1st Cir. 1989) ................................... 21
`Mills v. State of Alabama,
`384 U.S. 214 (1966) ................................................. 10
`Noh v. Cenarrusa,
`53 P.3d 1217 (Idaho 2002) ...................................... 16
`People v. McKnight,
`446 P.3d 397 (Colo. 2019) ......................................... 8
`
`
`
`

`

`
`
`viii
`
`Police Dept. of Chicago v. Mosley,
`408 U.S. 92 (1972) ................................................... 17
`Reed v. Town of Gilbert,
`576 U.S. 155, 135 S. Ct. 2218, (2015) ..................... 12
`Roth v. United States,
`354 U.S. 476 (1957) ................................................. 10
`State ex rel. Montana Citizens for Preservation of
`Citizens' Rights v. Waltermire,
`729 P.2d 1283 (Mont. 1986) .................................... 16
`Taxpayers United for Assessment Cuts v. Austin,
`994 F.2d 291 (6th Cir. 1993) ............................. 23, 24
`Texas v. Johnson,
`491 U.S. 397 (1989) ................................................. 21
`Utah Safe to Learn-Safe To Worship Coalition, Inc. v.
`State,
`94 P.3d 217 (Utah 2004) ............................. 16, 17, 20
`Vagneur v. City of Aspen,
`295 P.3d 493 (Colo. 2013) ....................................... 17
`Winkle v. City of Tucson,
`949 P.2d 502 (Ariz. 1997) ....................................... 16
`Wirzburger v. Galvin,
`412 F.3d 271 (1st Cir. 2005) ....................... 22, 23, 25
`
`Statutes
`
`28 U.S.C. § 1257(a) ....................................................... 1
`
`
`Other Authorities
`
`Editing Direct Democracy: Does Limiting the Subject
`Matter of Ballot Initiatives Offend the First
`Amendment?,
`107 COLUM. L. REV. 1437 (2007) ............................. 19
`
`
`
`

`

`
`
`ix
`
`Loading the Dice in Direct Democracy: The
`Constitutionality of Content—and Viewpoint—
`Based Regulations of Ballot InitiatIVES,
`64 N.Y.U. ANN. SUrv. Am. L. 129 (2008) ................ 25
`
`
`

`

`
`
`1
`
`PETITION FOR PETITION FOR PETITION FOR WRIT OF CERTIORARIWRIT OF CERTIORARI PETITION FOR WRIT OF CERTIORARIWRIT OF CERTIORARI
`
`
`
`
`
`
`
`Respect Washington respectfully petitions this
`Court for a Writ of Certiorari to review the decision of
`the Washington Court of Appeals, Division I.
`
`
`OPINIONS BELOWOPINIONS BELOWOPINIONS BELOW OPINIONS BELOW
`
`
`
`
`The opinion below was issued by a panel of the
`Washington Court of Appeals, Division I and is
`reprinted as Appendix (App.) A. The Court of Appeals’
`Commissioner issued a decision allowing Petitioner’s
`appeal to proceed, reprinted as App. B. The panel
`upheld a decision of the Superior Court for King
`County, Washington, which is reprinted as App. C.
`
`in the Washington
`Petitioner sought review
`Supreme Court, but that Court denied review. A copy
`of the order is reprinted as App. D.
`
`
`
`
`
`
`JURISDICTIONJURISDICTIONJURISDICTION JURISDICTION
`
`
`The Court of Appeals decision was issued on
`September 9, 2019. A petition for review was timely
`filed in the Washington Supreme Court, which was
`denied on January 8, 2019. App. D. Accordingly, this
`Court has jurisdiction of this matter under 28 U.S.C. §
`1257(a).
`
`
`
`
`
`

`

`
`
`2
`
`CONSTITUTIONAL CONSTITUTIONAL CONSTITUTIONAL CONSTITUTIONAL
`
`
`
`
`
`
`
`
`
`PROVISIONPROVISIONPROVISIONSSSS AT ISSUEPROVISION AT ISSUEAT ISSUEAT ISSUE
`
`
`interpretation and
`the
`concerns
`case
` This
`application of the First Amendment to the United
`States Constitution which provides:
`
`
`Congress shall make no law respecting an
`establishment of religion, or prohibiting
`the free exercise thereof; or abridging the
`freedom of speech, or of the press; or the
`right of the people peaceably to assemble,
`and to petition the government for a
`redress of grievances.
`
`This case also concerns Section 1 of the Fourteenth
`Amendment that makes the provisions of the First
`Amendment applicable to the states.
`
`
`No state shall make or enforce any law
`which shall abridge the privileges or
`immunities of citizens of the United
`States; nor shall any state deprive any
`person of life, liberty, or property, without
`due process of law; nor deny to any person
`within its jurisdiction the equal protection
`of the laws.
`
`
`
`
`
`
`
`
`
`

`

`
`
`3
`
`STATEMENT OF THE CASESTATEMENT OF THE CASESTATEMENT OF THE CASE STATEMENT OF THE CASE
`
`
`
`
`The City of Burien in the State of Washington is a
`city of approximately 53,000 people in the greater
`Seattle area. But it is far from the sleepy suburb from
`times past. The people of Burien are now on the front
`lines of gang related violence and other criminal
`activity. In January of 2017, the Burien City Council
`enacted an ordinance to send a political message
`opposing federal immigration policy by prohibiting
`city personnel
`from participating
`in
`federal
`immigration enforcement. App. A at 2a. In common
`parlance, Burien was establishing
`itself as a
`“Sanctuary City.” As in other communities, Burien’s
`Sanctuary City status was a subject of substantial
`local controversy.
`
`
`In response to the City Council’s enactment of the
`Sanctuary City ordinance, an informal group of
`citizens in Burien opposed to the Sanctuary City
`ordinance began gathering signatures on an initiative
`to repeal the recent enactment. Using an existing
`organization, Respect Washington, they submitted
`signed petitions to the City to propose an initiative
`which was later identified as Measure 1. Just two
`weeks
`later, the King County Department of
`Elections notified the Burien City Clerk that Measure
`1 had received sufficient voter signatures to be placed
`on the November 2017 ballot. At that point, the
`Burien City Council had the option of enacting the
`proposal or placing it on the ballot.
`
`Because the City Council took no action regarding
`Measure 1, Respect Washington officer, Craig Keller,
`
`

`

`
`
`4
`
`filed a complaint and application for writ of mandate
`to compel the Burien City Council to comply with
`state law and either enact Measure 1 or place it on
`the November 2017 ballot. App. G at 62a. On August
`7, 2017, the Burien City Council voted to place
`Measure 1 on the ballot. App. B at 34a.
`
`Over a month later, on Friday, September 8, 2017,
`Burien Citizens for Inclusion (BCI), a group formed to
`oppose Measure 1, sued Respect Washington, the
`City, the King County Elections Department and the
`Director
`of Elections
`seeking an
`injunction
`prohibiting placement of the initiative on the ballot.
`App. A at 3a. The complaint alleged that Measure 1
`exceeded the scope of the initiative power and that
`the form of the petition was invalid. App. A at 3a.
`
`The King County Election Department’s deadline
`to send the final November 2017 ballot to the printer
`was Thursday, September 14th. App. A at 4a. BCI
`filed its motion for a temporary restraining order on
`Monday, September
`11th, prior
`to Respect
`Washington being served with the complaint. App. A
`at 3a-4a. A Superior Court Commissioner granted
`that motion on September 11th and ordered a hearing
`for a preliminary injunction to be held two days later
`on Sept. 13, 2017. BCI filed its motion for a
`preliminary injunction on September 12, 2017.
`
`Accompanying BCI’s motion for a preliminary
`injunction were declarations of individuals claiming
`injury from the mere placement of the initiative on
`the ballot. See, e.g., App. A at 19a (referencing “the
`polarizing debate over [Measure 1] has raised fears in
`
`

`

`
`
`5
`
`the immigrant and refugee community”). BCI argued
`that having polarizing debate and fear were sufficient
`injuries to enable it to ask the Court to strike the
`initiative from the ballot.
`
`On the very morning of the deadline for sending
`ballots to the printer, September 14, 2017, the
`Superior Court issued an order granting Respondents
`a preliminary injunction prohibiting Measure 1 from
`being placed on the November 2017 ballot. App. at
`41a.
`
`Because the issuance of a preliminary injunction
`was not an appealable order, Respect Washington’s
`only recourse to obtain appellate review was to file a
`Notice and Motion for Discretionary Review in the
`Washington Court of Appeals. Washington Rules of
`Appellate Procedure, Rule 5.2. Petitioner successfully
`persuaded the Court of Appeals to treat the Motion
`for Discretionary Review as an appeal because the
`granting of a preliminary
`injunction blocking
`Measure 1 from appearing on the ballot on the very
`day ballots were scheduled to be printed essentially
`decided the entire case and gave BCI all the relief it
`sought in its complaint. App. B.
`
`The Court of Appeals ultimately issued the
`Decision attached as Appendix A, affirming the trial
`court decision.1
`
`
`1The Court of Appeals did not reach the question as to
`whether the petitions used to obtain signatures on
`petitions were
`invalid because
`they contained
`campaign rhetoric. App. A at 31a, n.10.
`
`

`

`
`
`6
`
`Relying on numerous decisions of this Court,
`Respect Washington argued to the appellate court,
`that an injunction that prohibits people from voting
`on an initiative based on the subject matter of the
`initiative violates the First Amendment. See App. G
`at 52a-54a. While the state legislature is free to
`circumscribe the law-making power of initiatives and
`exclude certain subject matters, any decision as to
`whether the initiative is within the proper scope of
`the initiative power can and should be made after
`people have had the opportunity to voice their
`support, opposition or indifference to the issue at the
`ballot box.
`
`The Court of Appeals concludes on this First
`Amendment issue:
`
`
`The preliminary injunction was based on
`the initiative exceeding the scope of the
`local initiative power, not the substance
`of the policy stance taken. It does not
`violate the free speech rights of the City's
`voters.
`
`App. A at 15a.
`
` Petitioner filed a timely petition for review in the
`Washington Supreme Court which was denied
`without further comment on January 8, 2020. App. D
`at 44a.
`
`
`From the Washington Court of Appeals, Division
`II’s decision, Petitioner submits this Petition.
`
`
`

`

`7
`
`
`
`
`
`ARGUMENTARGUMENTARGUMENT ARGUMENT
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`
`
`
`
`REASONS FOR GRANTING THE WRITREASONS FOR GRANTING THE WRITREASONS FOR GRANTING THE WRIT REASONS FOR GRANTING THE WRIT
`
`
`
`
`
`
`
`I.I.I.I.
`because the This Court should grant the PThis Court should grant the PThis Court should grant the Petietietietitiontiontiontion because the This Court should grant the P because the because the
`
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`
`
`
`
`
`
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`
`
`
`important Washington Washington Washington sssstate court has decided anWashington tate court has decided antate court has decided antate court has decided an important important important
`
`
`
`question of federal law in a way that conflicts with question of federal law in a way that conflicts with
`
`question of federal law in a way that conflicts with question of federal law in a way that conflicts with
`
`
`
`
`
`
`
`
`
`
`relevant relevant First Amendment First Amendment relevant relevant First Amendment First Amendment decisiondecisionssss of this Courtdecisiondecision of this Courtof this Courtof this Court....
`
`
`
`Twenty four states and the Virgin Islands have an
`initiative process whereby citizens may petition to
`have a proposed statute or ordinance placed on the
`ballot
`for voters’
`rejection or approval. See
`http://www.ncsl.org/research/elections-and-campaigns
`/chart-of-the-initiative-states.aspx.
`The
`related
`referendum process
`involves a voter-initiated
`proposal to veto recently enacted legislation. These
`common examples of direct democracy have rigorous
`signature requirements; nonetheless, heightened
`levels of public controversy over governmental policy
`or action are typically the catalyst necessary to meet
`those requirements.
`
`
`Historically, people have submitted initiatives on
`a wide variety of subjects, indicating the subject
`matter of initiatives fall indiscriminately on the
`political or ideological map. A small sampling of
`initiative subjects includes: increasing the minimum
`wage,2 a changing property tax laws,3 limiting marine
`
`
`2 See, e.g., Filo Foods, LLC v. City of SeaTac, 357 P.3d
`1040 (Wash. 2015).
`3 Amador Valley Joint Union High Sch. Dist. v. State
`
`

`

`
`
`8
`
`fishing,4 legalizing marijuana use,5 changing wildlife
`policy,6 creating open government rules,7 and, as in
`the present case, repealing sanctuary city status. Like
`the earlier town hall, the initiative process is expected
`to be open to any political or ideological point of view.
`
`Consequently, the opportunity for people to vote
`on a change or criticism of controversial government
`policy is inherently political in nature. The more
`controversial the issue, the greater the incentive of
`political opponents to thwart efforts to bring the issue
`to a vote.
`
`
`initiative or
`lawsuit to strike an
`A
`referendum from a ballot is one of the
`deadliest weapons in the arsenal of the
`measure’s political
`opponents. With
`increasing frequency, opponents of ballot
`proposals
`are
`finding
`the weapon
`irresistible and are suing to stop elections.
`
`
`John D. Gordon III and David B. Magleby, Pre-Election
`Judicial Review of Initiatives and Referendums, 64
`NOTRE DAME L. REV. 298 (1989). Judicial injunctions
`prior to the election silence the people’s views that
`
`
`Bd. of Equalization, 583 P.2d 1281 (Cal. 1978)
`(addressing tax initiative).
`4 Advisory Opinion to the Attorney General – Limited
`Marine Net Fishing, 620 So.2d 997 (Fla. 1993).
`5 People v. McKnight, 446 P.3d 397, 407 (Colo. 2019).
`6 Kafka v. Montana Dept. of Fish, Wildlife and Parks,
`201 P.3d 8 (Mont. 2008).
`7 Fritz v. Gorton, 517 P.2d 911 (Wash. 1974).
`
`

`

`
`
`9
`
`would otherwise be expressed—and counted—at the
`polls.
`
`While this Court has long protected the initiative
`process, even from content-neutral restrictions that
`might prevent matters from getting to the ballot, like a
`prohibition on using paid circulators of petitions,8 this
`Court has not addressed whether the First Amendment
`extends to further steps in the process, specifically
`whether it protects the right to vote when opponents
`use judicial processes to prohibit the election based on
`the subject matter of the proposal.
`
`Washington, like other states, has created a rule for
`access to the ballot that focuses on the content of the
`message and is governed by a subjective, unclear
`standard. The importance of protecting expression of
`views about government policy call for this Court’s
`granting of this Petition.
`
`
`A.A.A.A. The d
`
`The decision below conflicts with this Court’s ecision below conflicts with this Court’s
`
`
`
`The dThe decision below conflicts with this Court’s ecision below conflicts with this Court’s
`
`
`
`the decisions decisions that the decisions decisions that the that the First Amendment protectsFirst Amendment protects the that the First Amendment protectsFirst Amendment protects the the
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`initiative pinitiative pinitiative processrocess. . . . initiative processrocess
`
`This Court long ago recognized the role of the First
`Amendment
`in protecting
`the opportunity
`for
`individuals to voice criticism of government policies or
`actions. Given the conditions that led to the American
`revolution, this
`is no surprise. Bernard Bailyn,
`Ideological Origins of the American Revolution 5
`(1967).
`
`
`8 Meyer v. Grant, 486 U.S. 414 (1988).
`
`

`

`
`
`10
`
`Distilling the essential purposes of the Free Speech
`Clause, this Court concludes “there is practically
`universal agreement that a major purpose of [the First]
`Amendment was to protect the free discussion of
`governmental affairs.” Mills v. State of Alabama, 384
`U.S. 214, 218 (1966).
`
`This led to application of free speech principles to
`the initiative and referendum process and a recognition
`that these processes are “at the heart of the First
`Amendment’s protection” because the speech occurring
`is about governmental policies. First Nat’l Bank of
`Boston v. Bellotti, 435 U.S. 765, 776 (1978) (law
`criminalizing financial support for a referendum
`proposal violated the First Amendment). Initiatives by
`their very nature concern governmental affairs.
`
`While there is no federal requirement that states
`provide an initiative process, a state that chooses to
`permit citizen initiatives is “obligated to do so in a
`manner consistent with the Constitution.” Meyer, 486
`U.S. at 420. The initiative process, as a whole, is
`protected
`political
`speech under
`the First
`Amendment. Id. at 421.
`
`It is self-evident that “[t]he First Amendment ‘was
`fashioned to assure unfettered interchange of ideas for
`the bringing about of political and social changes
`desired by the people.’ ” Id. (quoting Roth v. United
`States, 354 U.S. 476, 484 (1957)). The initiative process
`is about political and social change, regardless of the
`result of the election and regardless of any actual law-
`making function of the vote itself.
`
`
`

`

`
`
`11
`
`As to the manner in which political speech was
`burdened in Meyer, this Court explains that the
`challenged state
`law
`(prohibiting paid signature
`gatherers) made “it less likely that [the initiative
`proponents] will garner the number of signatures
`necessary to place the matter on the ballot, thus
`limiting their ability to make the matter the focus of
`statewide discussion.” Meyer, 486 U.S. at 422.
`Therefore, the speech at issue in initiatives reaches
`further than just the petition signer attaching his or
`her signature to a petition.
`
`Not only does allowing an initiative to be placed on
`the ballot
`encourage
`the
`free discussion
`of
`governmental affairs generally, but it also specifically
`allows people to express their views on the ballot and
`have their voice counted one way or the other on the
`particular governmental issue. The Washington Court’s
`last-minute injunction—issued on the day of ballot
`printing—prohibiting a vote despite compliance with
`all time, place and manner restrictions conflicts with
`the foundational decisions of this Court on an issue at
`the core of the First Amendment.
`
`Notably, Meyer recognized that a state law was an
`impermissible restriction on speech even though it had
`nothing to do with the subject matter of the initiative.
`See also Buckley v. American Constitutional Law
`Foundation, 525 U.S. 192 (1999) (law requiring petition
`circulators to wear identification badges and report the
`identify of circulators, regardless of initiative content
`was subject to strict scrutiny as implicating freedom of
`expression).
`
`
`

`

`
`
`12
`
`At issue here, however, the Washington Court has
`prohibited an election on an initiative that met all
`time, place and manner restrictions precisely because
`of its content—that the matter to be voted upon was
`administrative and not legislative in nature. App. A
`at 14a.9 While the phrasing of the administrative/
`legislative standard appears on
`its face to be
`viewpoint neutral,
`it
`is clearly content-based.
`“Government regulation of speech is content based if a
`law applies to particular speech because of the topic
`discussed or the idea or message expressed.” Reed v.
`Town of Gilbert, 576 U.S. 155, 135 S. Ct. 2218, 2227,
`(2015). “A law that is content based on its face is
`subject to strict scrutiny regardless of the government's
`benign motive.” Id. at 2228.
`
`Here, the initiative was removed from the ballot
`because the topic was deemed to be an administrative
`topic—not because of noncompliance with signature
`requirements or filing or timing rules. App. A at 15a.
`
`Injunctions prohibiting a vote are also clearly prior
`restraints on the voter’s speech, which calls for a
`rigorous level of scrutiny. See Forsyth County v.
`Nationalist Movement, 505 U.S. 123, 130 (1992).
`Because of the state court’s manifest conflict with this
`Court’s First Amendment jurisprudence, this Court
`should grant this Petition.
`
`
`9 A different division of the Washington Court of
`Appeals reached a similar decision regarding a
`similar initiative. Global Neighborhood v. Respect
`Washington, 434 P.3d 1024 (Wash. Ct. App.), cert.
`denied. __ U.S. ___, 140 S. Ct. 638 (2019).
`
`

`

`
`
`13
`
`
`
`B.B.B.B. The Washington court uses an impermissibly The Washington court uses an impermissibly The Washington court uses an impermissibly
`The Washington court uses an impermissibly
`
`vague standard for determining whether people vague standard for determining whether people
`
`vague standard for determining whether people vague standard for determining whether people
`
`
`can vote on a proposal can vote on a proposal steeped steeped
`
`
`
`in civicin civicin civic in civic
`
`can vote on a proposal can vote on a proposal
`
`steeped steeped
`
`
`
`controvercontrovercontroversy. sy. sy. sy. controver
`
`the
`of
`The apparent viewpoint neutrality
`administrative versus legislative distinction provides
`little
`comfort
`to
`initiative proponents because
`Washington, like others, uses an ambiguous criterion
`for determining whether a measure is placed on the
`ballot—whether the measure is legislative and not
`administrative in nature. Underlying this criterion is
`the law in Washington that a government entity can
`enact an ordinance, but that ordinance may be viewed
`as administrative and not legislative in nature. See,
`e.g., Heider v. City of Seattle, 675 P.2d 597 (Wash.
`1984)
`(city
`ordinance
`renaming
`street was
`administrative and not legislative).
`
`The Washington Supreme Court has recognized
`that the distinction between administrative and
`legislative nature is a thin line. “Discerning whether a
`proposed initiative is administrative or legislative in
`nature can be difficult.” City of Port Angeles v. Our
`Water-Our Choice!, 239 P.3d 589, 594 (Wash. 2010)
`(citations omitted). Other courts have made similar
`observations. See, e.g., McAlister v. City of Fairway,
`212 P.3d 184, 194 (Kan. 2009) (“[N]o single act of a
`governing body is ever likely to be solely legislative or
`solely administrative;” … “courts have struggled to
`separate” them), cited in Friends of Congress Square
`Park v. City of Portland, 91 A.3d 601, 605 (Me. 2014).
`
`
`

`

`
`
`14
`
`Washington’s legislative/administrative standard is
`so vague that a state court can declare nearly any
`measure to be administrative and, therefore, subject to
`being excluded from the ballot. Reinforcing the
`vagueness of the standard, the Court of Appeals
`concluded that elections may be prohibited because an
`initiative is administrative if it “furthers (or hinders) a
`plan the local government previously adopted.” App. A
`at 25a (citing Our Water-Our Choice!, 239 P.3d at 594
`(emphasis added).
`
`Because every measure that changes policy is likely
`to hinder or further some related city plan, Washington
`has created a vague standard that allows judges to
`prohibit a public vote using an unanchored standard—
`a situation long recognized to pose danger to the
`freedom of expression. See, e.g., Forsyth County, 505
`U.S. at 130-31 (discretionary condition for access to
`public forum); Interstate Circuit, Inc. v. City of Dallas,
`390 U.S. 676 (1968) (vague standard affecting First
`Amendment rights not cured by judicial review).
`
`
`The overwhelming precedents of this Court indicate
`that to provide a forum for public discussion on the
`ballot and deny access based solely on the content of
`the proposal violates the First Amendment rights of
`initiative sponsors in making the issue a focu