1a
`
`APPENDIX A
`IN THE COURT OF APPEALS
`OF THE STATE OF WASHINGTON
`
`No. 77500-6-I
`DIVISION ONE
`UNPUBLISHED
`OPINION
`
`
`
`
`
`
`FILED:
`September 9, 2019
`
`
`BURIEN COMMUNITIES FOR
`INCLUSION, a Washington
`political committee,
`
`
`
`
`
` Respondent,
`
`
`
` v.
`RESPECT WASHINGTON, a
`Washington political committee,
`
`
`
`
`
` Appellant,
`KING COUNTY ELECTIONS;
`JULIE WISE, King County
`Director of Elections, in her
`official capacity at King County
`Elections; and CITY OF BURIEN,
`
`
`
`
`
` Defendants.
`
`APPELWICK, C.J.—On September 14, 2017, the trial
`
`court granted Burien Communities for Inclusion (BCI)
`a preliminary injunction, prohibiting Burien Initiative
`1 (Measure 1) from being placed on the November 2017
`ballot. Respect Washington appeals the preliminary in-
`junction, arguing that (1) it violates the free speech
`rights of the city of Burien’s (City) voters, (2) the trial
`court erred in altering the status quo, and (3) BCI
`failed to show substantial injury. It also contends that
`Measure 1 is within the scope of the City’s initiative
`power. We affirm.
`
`
`
`APPENDIX A
`IN THE COURT OF APPEALS
`OF THE STATE OF WASHINGTON
`
`No. 77500-6-I
`DIVISION ONE
`UNPUBLISHED
`OPINION
`
`
`
`
`
`
`FILED:
`September 9, 2019
`
`
`BURIEN COMMUNITIES FOR
`INCLUSION, a Washington
`political committee,
`
`
`
`
`
` Respondent,
`
`
`
` v.
`RESPECT WASHINGTON, a
`Washington political committee,
`
`
`
`
`
` Appellant,
`KING COUNTY ELECTIONS;
`JULIE WISE, King County
`Director of Elections, in her
`official capacity at King County
`Elections; and CITY OF BURIEN,
`
`
`
`
`
` Defendants.
`
`APPELWICK, C.J.—On September 14, 2017, the trial
`
`court granted Burien Communities for Inclusion (BCI)
`a preliminary injunction, prohibiting Burien Initiative
`1 (Measure 1) from being placed on the November 2017
`ballot. Respect Washington appeals the preliminary in-
`junction, arguing that (1) it violates the free speech
`rights of the city of Burien’s (City) voters, (2) the trial
`court erred in altering the status quo, and (3) BCI
`failed to show substantial injury. It also contends that
`Measure 1 is within the scope of the City’s initiative
`power. We affirm.
`
`
`
`2a
`
`FACTS
`On January 9, 2017, the Burien City Council
`
`passed Ordinance 651 (Ordinance). The Ordinance is
`now codified at Burien Municipal Code (BMC) 2.26.010-
`.030. BMC 2.26.020 provides that “a City office, depart-
`ment, employee, agency or agent shall not condition
`the provision of City services on the citizenship or im-
`migration status of any individual,” except as other-
`wise required by law. It prohibits City personnel from
`initiating any inquiry or enforcement action based
`solely on a person’s civil immigration status, race, ina-
`bility to speak English, or inability to understand City
`personnel or officers. BMC 2.26.020(4) And, it forbids
`City officials from creating a registry for the purpose
`of classifying people on the basis of religious affiliation,
`or conducting a study related to the collection of such
`information. BMC 2.26.030.
`
`On July 7, 2017, Craig Keller, the campaign man-
`
`ager, treasurer, and officer of Respect Washington, a
`Washington political committee submitted an initia-
`tive petition to the City. The petition asked that an in-
`itiative repealing the Ordinance, Measure 1,1 be
`submitted to a vote of the City’s registered voters. In
`addition to repealing the Ordinance, Measure 1 would
`add the following chapter to the BMC:
`
`New Chapter 9.20 is hereby added to the
`Burien Municipal Code “Public Peace, Morals
`and Welfare” to read as follows:
`
`
`
`1 Both parties refer to this initiative as “Measure 1.”
`
`
`
`
`
`3a
`
`9.20 Citizen Protection of Effective Law En-
`forcement: The City of Burien shall not regu-
`late the acquisition of immigration status or
`religious affiliation unless such regulation is
`approved by a majority vote of the City Coun-
`cil and a majority vote of the people at a mu-
`nicipal general election.
`
`Two weeks later, the King County Department of
`
`Elections found that a sufficient number of signatures
`had been submitted for Measure 1, and issued a certif-
`icate of sufficiency. The Burien City Council then voted
`to place Measure 1 on the November 7, 2017 ballot.
`
`On September 8, 2017, Burien Communities for
`
`Inclusion (BCI), a Washington political committee,
`filed a complaint for declaratory and injunctive relief
`against Respect Washington, King County Elections,
`King County Director of Elections Julie Wise, and the
`City. It sought a declaratory judgment that Measure 1
`is invalid, arguing in part that (1) it exceeds the scope
`of the City’s initiative power, and (2) the petition used
`to gather signatures violates RCW 35.21.005. It also
`asked the trial court to enjoin Measure 1 from being
`included on the November 2017 ballot.
`
`Three days later, BCI sought and obtained a tem-
`
`porary restraining order (TRO). The TRO prohibited
`King County Elections and Wise from placing Measure
`1 on the November 7, 2017 ballot. As a result, King
`County removed Measure 1 from the ballot. In grant-
`ing the TRO, the trial court ordered that, on September
`13, the matter be heard on a motion for a preliminary
`
`
`
`4a
`
`injunction, at which time the TRO would expire.2 The
`deadline for King County Elections to send the ballots
`to the printer was the next day, September 14.
`
`On September 14, 2017, the trial court granted
`
`BCI’s motion for a preliminary injunction. In doing so,
`it ordered the following:
`
`1. City of Burien Initiative Measure No. 1
`(“Measure 1”) is invalid on the grounds
`that (a) Measure 1 exceeds the scope of
`the initiative authority granted to the
`people of the City of Burien, that it is
`administrative in nature, and (b) the pe-
`tition used to gather signatures for
`Measure 1 violated RCW 35.21.005 by
`deviating from the requirements for the
`contents and form of a petition, as set
`forth
`in RCW 35.17.240
`through
`35.17.360;
`
`2. Defendants King County Elections, Julie
`Wise, King County Director of Elections,
`and all agents of King County Elections
`are prohibited from including or placing
`Measure 1 on the November 7, 2017 bal-
`lot.
`
`Respect Washington appeals.3
`
`2 On September 12, 2017, BCI filed a motion for a prelimi-
`
`nary injunction, asking the trial court to enjoin King County Elec-
`tions and Wise from including Measure 1 on the ballot.
`3 Respect Washington did not seek a stay of the trial court
`
`decision. Instead, on October 27, 2017, it filed a motion with this
`court, asking the court to treat the order as an appealable order
`
`
`
`
`
`
`5a
`
`DISCUSSION
`Respect Washington makes six arguments.4 First,
`
`it argues that BCI is not entitled to any relief because
`its complaint is barred by the statute of limitations
`and laches. Second, it argues that the preliminary in-
`junction violated the free speech rights of the City’s
`voters. Third, it argues that the trial court erred in
`granting a preliminary injunction that altered the
`status quo. Fourth, it argues that BCI failed to show
`that substantial injury would result from Measure 1’s
`placement on the ballot. Fifth, it argues that Measure
`1 does not exceed the scope of the City’s initiative
`power, and is legislative in nature. And sixth, it argues
`
`
`under RAP 2.2(a)(3), or, alternatively, to grant discretionary re-
`view. On January 3, 2018, this court ordered that review would
`go forward as an appeal. The court explained that, despite not
`obtaining a declaratory judgment or permanent injunction, as a
`practical matter, BCI obtained the relief it requested.
`4 As an initial matter, BCI argues that all of Respect Wash-
`
`ington’s claims are moot. This case may be moot, because Measure
`1 can no longer be placed on the November 2017 ballot. See Randy
`Reynolds & Assocs., Inc. v. Harmon, 193 Wn.2d 143, 152, 437 P.3d
`677 (2019) (finding that an appeal was moot because the Court of
`Appeals could no longer offer effective relief ). However, Respect
`Washington contends that Measure 1’s placement on another bal-
`lot is relief that this court can provide. Even if a case becomes
`moot, “the court has discretion to decide an appeal if the question
`is of continuing and substantial public interest.” Id. “Washington
`courts have repeatedly entertained suits involving the right of in-
`itiative or referendum despite possible mootness because the
`suits entail substantial public interest.” Glob. Neighborhood v.
`Respect Wash., 7 Wn. App. 2d 354, 379, 434 P.3d 1024 (2019).
`Accordingly, regardless of whether Respect Washington’s claims
`are moot, we reach the merits of this case.
`
`
`
`6a
`
`that the petition used to gather signatures did not vio-
`late RCW 35.21.005.5
`
`
`Statute of Limitations and Laches
`I.
`Respect Washington argues that BCI was not en-
`
`titled to any relief because its claims were “barred by
`the statute of limitations or laches.” It points out that
`the Burien City Council voted to place Measure 1 on
`the November 2017 ballot at a public meeting on Au-
`gust, 7, 2017. BCI did not file its complaint until Sep-
`tember 8, 2017.
`
`
`5 Respect Washington also argues that the trial court “erred
`
`by shortening the time to respond to motions.” It states that, on
`September 11, 2017, BCI filed its motion for a TRO, the trial court
`“scheduled a preliminary injunction hearing two days later,” and
`this time frame “did not permit any party to comply with the rules
`governing the filing of motions.” It relies on King County Local
`Civil Rule 7(b)(4)(a), which provides that “[t]he moving party
`shall serve and file all motion documents no later than six court
`days before the date the party wishes the motion to be consid-
`ered.” However, under King County Local Civil Rule 65(b)(2), a
`preliminary injunction hearing “shall be set in conformance with
`the timing requirements of CR 65(b).” Thus, Local Civil Rule
`7(b)(4)(a) does not apply. Under CR 65(b), “[i]n case a [TRO] is
`granted without notice, the motion for a preliminary injunction
`shall be set down for hearing at the earliest possible time and
`takes precedence over all matters except older matters of the
`same character.” And, “[n]o preliminary injunction shall be issued
`without notice to the adverse party.” CR 65(a)(1). Respect Wash-
`ington does not argue that it lacked notice of the preliminary in-
`junction. As a result, the trial court did not err in setting a
`preliminary injunction hearing two days after it granted BCI a
`TRO.
`
`
`
`7a
`
`Respect Washington asserts first that BCI brought
`
`its claims under the Uniform Declaratory Judgments
`Act (UDJA), chapter 7.24 RCW. Because the UDJA
`does not have its own statute of limitations, it states
`that “courts are to apply an analogous statute of limi-
`tations.” Respect Washington points to three election
`related statutes of limitations as examples.
`
`First, a challenge to the ballot title or summary for
`
`a state initiative or referendum must be brought
`within 5 days from the filing of the ballot title. RCW
`29A.72.080. Second, a challenge to the ballot title for a
`local ballot measure must be brought within 10 days
`from the filing of the ballot title. RCW 29A.36.090.
`Third, a challenge to the Secretary of State’s refusal
`to file an initiative or referendum petition must be
`brought within 10 days after the refusal. RCW
`29A.72.180.
`
`This court recently considered an identical argu-
`
`ment in Global Neighborhood v. Respect Washington, 7
`Wn. App. 2d 354, 434 P.3d 1024 (2019). There, on Feb-
`ruary 22, 2016, the Spokane City Council placed Prop-
`osition 1 on the November 2017 ballot. Id. at 369.
`Global Neighborhood did not file its complaint address-
`ing the validity of Proposition 1 until May 2017, and
`did not move fora declaratory judgment prohibiting
`Proposition 1 from being placed on the ballot until July
`28, 2017. Id. at 372-73. The trial court declared Propo-
`sition 1 invalid because it was administrative in na-
`ture and exceeded the local initiative power and
`entered an injunction directing its removal from the
`ballot. Id. at 374.
`
`
`
`8a
`
`On appeal, Respect Washington asserted the stat-
`
`ute of limitations as a defense, and provided this court
`with the same election related statutes of limitations.
`Id. at 380-81. This court stated that “[s]ignificant dif-
`ferences lie between a challenge to the title of an initi-
`ative and a challenge to the substance of an initiative.”
`Id. at 381. It explained,
`
`The initiative if adopted will take effect re-
`gardless of any defect in its title. If any law-
`suit will remedy the flaw in the initiative’s
`name, the lawsuit should be brought in ad-
`vance of the election and in time for the secre-
`tary of state or local government official to
`place a proper title on the ballot. A challenge
`to a refusal to place an initiative on the ballot
`also should be brought quickly in order to
`remedy any wrongful refusal to consign the
`measure to the ballot.
`
`A challenge to a local initiative as exceeding
`the scope of a municipality’s legislative power
`may be brought after the initiative election. If
`the challenge can be brought after the vote,
`we should erect no impediment by reason of a
`statute of limitations applying before the ef-
`fectiveness of initiative as an ordinance.
`
`Id.
`
`As a result, it deemed the preelection challenge
`
`to a ballot initiative “analogous to a challenge to an
`adopted ordinance or statute.” Id. In Washington, “no
`statute of limitations applies to a challenge to the
`constitutionality of a statute or other action.” Id. This
`
`
`
`9a
`
`court held that, similarly, “no statute of limitations
`should apply to the challenge of an ordinance that ex-
`ceeds the authority of the entity adopting the measure
`whether by its legislative body or the voters by initia-
`tive.” Id. at 382. It also pointed out that many Wash-
`ington decisions have
`“entertained preelection
`initiative challenges without suggesting a statute of
`limitations that applied before the election might bar
`such a challenge.” Id. We adhere to that decision, and
`that find that BCI’s claims were not barred by a statute
`of limitations.
`
`Alternatively, Respect Washington argues that
`
`BCI’s claims should have been barred by laches.
`
`“Laches is an implied waiver arising from
`
`knowledge of existing conditions and acquiescence in
`them.” Buell v. City of Bremerton, 80 Wn.2d 518, 522,
`495 P.2d 1358 (1972). The elements of laches are: “(1)
`knowledge or reasonable opportunity to discover on
`the part of a potential plaintiff that he has a cause of
`action against a defendant; (2) an unreasonable delay
`by the plaintiff in commencing that cause of action;
`(3) damage to the defendant resulting from the unrea-
`sonable delay.” Id. None of these elements alone raises
`a laches defense, Id.
`
`Respect Washington also raised a laches defense
`
`in Global Neighborhood. 7 Wn. App. 2d at 380. There,
`the trial court issued its decision prohibiting Proposi-
`tion 1’s placement on the ballot a week before the dead-
`line for printing ballots. Id. at 384. Respect Washington
`did not seek accelerated review by this court. Id. at 385.
`
`
`
`10a
`
`This court determined that, even if Global Neighbor-
`hood’s delay in filing its complaint was unreasonable,
`the delay did not harm Respect Washington. Id. at 384.
`
`This court noted that Respect Washington failed
`
`to cite authority for the proposition that a delay in ap-
`pellate review constitutes harm for purposes of laches.
`Id. at 384-85. Its claim also “assume[d] that this court
`would reverse the superior court’s decision and allow
`Proposition 1 to be submitted for a vote.” Id. at 385.
`And, it assumed that “it had the right to vote on an
`initiative that exceeded the initiative power.” Id. This
`court pointed out that, “[i]f anything, the Spokane pub-
`lic is prejudiced by the expense incurred by the city of
`Spokane in conducting a special election for an initia-
`tive beyond the scope of the initiative power.” Id. Last,
`it noted that Respect Washington assumed that “this
`court lacks authority to direct placement of Proposi-
`tion 1 on a later ballot,” and “fail[ed] to recognize the
`possibility of accelerated review by this court.” Id.
`
`Similarly here, Respect Washington argues that
`
`“[t]he delay until . . . the eve of printing the ballots—
`never before done in the context of an initiative chal-
`lenge—was an unreasonable delay.” Unlike Global
`Neighborhood, BCI sought a TRO three days before the
`printing deadline, sought a preliminary injunction two
`days before the printing deadline, and was granted a
`preliminary injunction on the same day as the printing
`deadline. Respect Washington makes the same as-
`sumptions that it did in Global Neighborhood. Its
`claim of harm assumes that this court would reverse
`the trial court’s decision, and that it has the right to
`
`
`
`11a
`
`vote on an initiative that exceeds the initiative power.
`And, again, it fails to recognize the possibility of accel-
`erated review by this court.6
`
` We adhere to our decision in Global Neighborhood
`and find that Respect Washington was not harmed by
`BCI’s delay in seeking a TRO and preliminary injunc-
`tion.
`
`
`II. Preliminary Injunction
`
`Respect Washington makes three arguments re-
`garding the trial court’s decision to grant a preliminary
`injunction.7 It argues that the trial court (1) violated
`
`
`6 In this case, Respect Washington did not seek accelerated
`
`review by this court, or a stay of the trial court’s decision. Instead,
`on October 27, 2017, it filed a motion to determine whether the
`preliminary injunction was an appealable order, and, alterna-
`tively, a motion for discretionary review.
`7 Respect Washington also argues that the injunction is in-
`
`valid because the trial court did not require BCI to post a bond.
`Under CR 65(c), “Except as otherwise provided by statute, no . . .
`preliminary injunction shall issue except upon the giving of secu-
`rity by the applicant.” (Emphasis added.) Respect Washington
`agrees that BCI brought its complaint under the UDJA. Under
`that Act, “The court, in its discretion and upon such conditions
`and with or without such bond or other security as it deems nec-
`essary and proper may . . . restrain all parties involved in order
`to secure the benefits and protect the rights of all parties to the
`court proceedings.” RCW 7.24.190 (emphasis added). Accordingly,
`under RCW 7.24.190, no bond was required. See Yamaha Motor
`Corp. v. Harris, 29 Wn. App. 859, 865, 631 P.2d 423 (1981) (hold-
`ing that the trial court did not err in failing to require Yamaha to
`post a bond where RCW 4.44.480 provides that the court may or-
`der a party to deposit money into the court “with or without
`
`
`
`
`12a
`
`the free speech rights of the City’s voters, (2) improp-
`erly altered the status quo, and (3) failed to show sub-
`stantial injury.
`
`This court reviews a trial court’s decision to grant
`
`a preliminary injunction and the terms of that injunc-
`tion for an abuse of discretion. Resident Action Council
`v. Seattle Hous. Auth., 177 Wn.2d 417, 428, 327 P.3d
`600 (2013). “A trial court necessarily abuses its discre-
`tion if the decision is based upon untenable grounds,
`or the decision is manifestly unreasonable or arbi-
`trary.” Kucera v. Dep’t of Transp., 140 Wn.2d 200, 209,
`995 P.2d 63 (2000).
`
`A party seeking a preliminary injunction must
`
`show “ ‘(1) that he has a clear legal or equitable right,
`(2) that he has a well-grounded fear of immediate in-
`vasion of that right, and (3) that the acts complained
`of are either resulting in or will result in actual and
`substantial injury to him.’ ” Tyler Pipe Industries, Inc.
`v. Dep’t of Revenue, 96 Wn.2d 785, 792, 638 P.2d 1213
`(1982) (quoting Port of Seattle v. Int’l Longshoremen’s
`& Warehousemen’s Union, 52 Wn.2d 317, 319, 324 P.2d
`1099 (1958)). This listed criteria “must be examined in
`light of equity including balancing the relative inter-
`ests of the parties and, if appropriate, the interests of
`the public.” Id. If a party fails to establish any one of
`these requirements, “the requested relief must be de-
`nied.” Kucera, 140 Wn.2d at 210.
`
`
`
`
`security”). The trial court did not err in failing to require BCI to
`post a bond.
`
`
`
`13a
`
`A. Free Speech
`Respect Washington argues that the preliminary
`
`injunction violates the First Amendment rights of the
`City’s voters. Relying on Coppernoll v. Reed, 155 Wn.2d
`290, 119 P.3d 318 (2005), it asserts that the State Su-
`preme Court “has noted that there are free speech im-
`plications in even invalid initiatives.”
`
`The Coppernoll court examined the extent to
`
`which the Washington Constitution permits preelec-
`tion review of a statewide initiative. Id. at 297, 299. In
`doing so, it explained that “[b]ecause ballot measures
`are often used to express popular will and to send a
`message to elected representatives (regardless of po-
`tential subsequent invalidation of the measure), sub-
`stantive preelection review may also unduly infringe
`on free speech values.” Id. at 298. But, it recognized
`that Washington courts have entertained preelection
`review of two types of challenges to statewide initia-
`tives: (1) whether a ballot measure fails to comply with
`procedural requirements, and (2) whether a ballot
`measure exceeds the scope of the legislative power un-
`der article II, section 1 of the Washington Constitution.
`Id. at 298-99. Thus, the court recognized that some cir-
`cumstances warrant preelection review.
`
`Next, Respect Washington attempts to distinguish
`
`this case from Port of Tacoma v. Save Tacoma Water, 4
`Wn. App. 2d 562, 422 P.3d 917 (2018), review denied
`192 Wn.2d 1026, 435 P.3d 267 (2019). There, the trial
`court issued a permanent injunction preventing Save
`Tacoma Water (STW) from placing two initiatives on
`
`
`
`14a
`
`the Tacoma municipal ballot that would limit the
`availability of Tacoma’s water service. Id. at 566-67. It
`determined that the initiatives were beyond the scope
`of the local initiative power. Id. at 566.
`
`On appeal, STW argued that the trial court’s de-
`
`termination and issuance of an injunction violated its
`free speech rights under the federal and state consti-
`tutions. Id. at 576. This court disagreed. Id. at 577, 579.
`It explained that this argument was rejected by the
`Ninth Circuit in Angle v. Miller, 673 F.3d 1122 (2012),8
`and differentiated the injunction from one that classi-
`fies speech on the basis of subject matter or content.
`Port of Tacoma, 4 Wn. App. 2d at 577-78. It stated,
`
`[T]he injunction rests on the principles that a
`measure is beyond the local initiative power
`if it is administrative or in conflict with state
`law. Neither the injunction nor the principles
`on which it is based distinguish among
`measures or in associated speech activities on
`the basis of content or subject matter.
`
`Id. at 578.
`
`Similarly here, the preliminary injunction rests on
`
`the principle that a measure is beyond the local initia-
`tive power if it is administrative in nature. Respect
`Washington asserts that, unlike Port of Tacoma, “it is
`the First Amendment right of the people of Burien
`which has been violated.” This distinction between Re-
`spect Washington’s free speech rights, and the rights of
`
`8 The Angle court held that “[t]here is no First Amendment
`
`right to place an initiative on the ballot” id. at 1133.
`
`
`
`15a
`
`the City’s voters, is not meaningful. Respect Washing-
`ton cites no authority for the proposition that the City’s
`voters have a free speech right under the federal or
`state constitutions to vote on an initiative that exceeds
`the scope of the local initiative power. Where no au-
`thorities are cited in support of a proposition, this court
`“may assume that counsel, after diligent search, has
`found none.” DeHeer v. Seattle Post-Intelligencer, 60
`Wn.2d 122, 126, 372 P.2d 193 (1962). Therefore, we do
`not consider this argument. RAP 10.3(a)(6) (requiring
`arguments to be supported by legal authority).
`
`The preliminary injunction was based on the ini-
`
`tiative 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.
`
`
`
`B. Status Quo
`Respect Washington argues that the trial court
`
`improperly disposed of the entire case by granting BCI
`“all that they sought in their [c]omplaint.” It states
`that, by issuing the preliminary injunction on the same
`date as the deadline for sending ballots to the printer,
`the trial court “ensured that Measure 1 would not ap-
`pear on the ballot and thus disposed of the case under
`the guise of granting a preliminary injunction.” Re-
`spect Washington also contends that, by removing
`Measure 1 from the ballot, the trial court improperly
`altered the status quo that existed prior to BCI filing
`its complaint.
`
`
`
`16a
`
`First, Respect Washington asserts that the trial
`
`court erred by effectively disposing of this case on the
`merits when it granted the preliminary injunction. It
`relies on a proposition from a 1940 State Supreme
`Court case providing that, where a preliminary injunc-
`tion would effectively grant all the relief that could be
`obtained by a final decree and would practically dis-
`pose of the whole case, it will not be granted. State ex
`rel. Pay Less Drug Stores v. Sutton, 2 Wn.2d 523, 532,
`98 P.2d 680 (1940).
`
`In BCI’s complaint, it sought a declaratory judg-
`
`ment that “Measure 1 is procedurally and substan-
`tively invalid,” an injunction preventing Measure 1’s
`placement on the November 2017 ballot, attorney fees
`and costs, and “further relief as the [c]ourt deems just
`and proper.” On September 14, 2017, the same day as
`the printing deadline, the trial court issued a prelimi-
`nary injunction finding Measure 1 invalid and prevent-
`ing its placement on the November 7, 2017 ballot. The
`court appeared to contemplate future action in the
`case, stating that “[t]he injury if Measure No. 1 is
`placed on the ballot now outweighs any delay in having
`the Measure on the ballot at a future point in time;
`mere delay is not the same as an outright denial.”
`
`After the trial court issued the preliminary injunc-
`
`tion, Respect Washington did not seek a stay of the
`court’s decision, or accelerated review by this court.
`Rather, it waited until October 27, 2017 to file a motion
`with this court, asking us to treat the order as an ap-
`pealable order under RAP 2.2(a)(3), or, alternatively, to
`grant discretionary review. In January 2018, this court
`
`
`
`17a
`
`found the order appealable, and, in July 2018, the trial
`court proceedings were stayed.
`
`As a practical matter, the preliminary injunction
`
`granted BCI the relief it sought—a determination that
`Measure 1 is invalid, and an injunction preventing its
`placement on the November 2017 ballot. But, the pre-
`liminary injunction was not a final determination on
`the merits of the case. It was final only in the sense
`that the issue did not appear on the November 2017
`ballot. But, the trial court appeared to contemplate fu-
`ture action in the case by referring to the “delay” in
`having Measure 1 “on the ballot at a future point in
`time.” And, we agree that placing the measure on a fu-
`ture ballot was relief that remained available when the
`preliminary injunction issued.
`
`Accordingly, because the preliminary injunction
`
`was not a final determination on the merits, the trial
`court did not improperly dispose of the case.
`
`Second, Respect Washington argues that the trial
`
`court improperly altered the status quo by granting
`BCI a preliminary injunction. It states that the status
`quo as of August 7, 2017 “was that Measure 1 was to
`appear on the ballot.”
`
`A preliminary injunction is designed to preserve
`
`the status quo until the trial court can conduct a full
`hearing on the merits. Serv. Emps. Int’l Union Local
`925 v. Univ. of Wash., 4 Wn. App. 2d 605, 621, 423 P.3d
`849 (2018), review granted 192 Wn.2d 1016, 438 P.3d
`111 (2019). But, the State Supreme Court has repeat-
`edly upheld trial court decisions preventing an
`
`
`
`18a
`
`initiative’s placement on a ballot. See, e.g., Spokane
`Entrepreneurial Ctr. v. Spokane Moves to Amend Con-
`stitution, 185 Wn.2d 97, 100-01, 369 P.3d 140 (2016)
`(affirming trial court’s instruction that initiative be
`struck from ballot after enough signatures were gath-
`ered to place it on ballot); Ruano v. Spellman, 81 Wn.2d
`820, 821-22, 829, 505 P.2d 447 (1973) (affirming trial
`court’s decision to enjoin initiative from being placed
`on ballot after it was certified that initiative had suffi-
`cient signatures).
`
`The status quo was that the Ordinance was in ef-
`
`fect. The initiative sought to alter the status quo. Its
`placement on the ballot was contingent upon satisfying
`the legal requirements for an initiative. Whether it had
`done so had not been established and was the subject
`of the litigation. Respect Washington does not cite au-
`thority to the contrary. Where a party fails to cite au-
`thority in support of a proposition, this court “may
`assume that counsel, after diligent search, has found
`none.” DeHeer, 60 Wn.2d at 126.
`
`The trial court did not improperly alter the status
`
`quo by issuing the preliminary injunction.
`
`
`
`C. Substantial Injury
`Respect Washington argues that BCI has not
`
`shown “any kind of substantial injury resulting from
`Measure 1 on the ballot.” It asserts that, in BCI’s mo-
`tion, the only specific injury it identified was the
`“vague claim” of fear of and reluctance to engage with
`
`
`
`19a
`
`City personnel, offices, and services if Measure 1 be-
`comes law.
`
`In issuing the preliminary injunction, the trial
`
`court stated,
`
`The Court has carefully balanced the relative
`interests of the parties and the interests of the
`public. The injury if Measure No. 1 is placed
`on the ballot now outweighs any delay in hav-
`ing the Measure on the ballot at a future point
`in time; mere delay is not the same as an out-
`right denial. The Court finds that Plaintiff
`has established a clear legal right, a well-
`grounded fear of immediate invasion of that
`right, and that the action sought to be en-
`joined will result in actual and substantial in-
`jury.
`
`BCI attached to its preliminary injunction motion
`
`several declarations addressing future injury. One BCI
`member, Hugo Garcia, stated that he has close friends
`who shared that “they have stayed home and limited
`the time they go out to restaurants or grocery shop due
`to the anxiety and fear [from] the uncertainty of the
`sanctuary city ordinance.” Rich Stolz, another BCI
`member and Executive Director of OneAmerica, an im-
`migrant and refugee advocacy organization, discussed
`the effects of Measure 1 on the immigrant and refugee
`community. He stated that the “polarizing debate over
`[Measure 1] has raised fears in the immigrant and ref-
`ugee community that they should not contact local law
`enforcement if they need to report crimes or violations
`of their own rights or property.”
`
`
`
`20a
`
`Sandy Restrepo, another BCI member and attor-
`
`ney, discussed the effect of Measure 1 on her immi-
`grant clients. She shared that many of her immigrant
`clients “have stated that they are afraid to send their
`children to school, go to the grocery store and even call
`the police to report a crime because the anti-immigrant
`sentiment has increased since Respect Washington be-
`gan collecting signatures.” She offered one example:
`undocumented immigrant parents came to her office
`seeking legal advice, because they were afraid to report
`to City police that their child was a victim of sexual
`assault. They went to Restrepo first to see if they would
`risk deportation if they spoke to police officers. She as-
`serted that “[i]f these repeal efforts continue, our com-
`munity will only continue to grow more afraid and not
`be able to access basic services they are entitled to.”
`
`Respect Washington argues that, even if BCI’s
`
`claim of fear is not too vague, BCI’s claimed injury
`“fails to support an injunction because of a lack of cau-
`sation.” It relies on Clapper v. Amnesty International,
`USA, 568 U.S. 398, 133 S. Ct. 1138, 185 L. Ed. 2d 264
`(2013).
`
`In Clapper, the plaintiffs sought an injunction
`
`against surveillance authorized by Section 702 of the
`Foreign Intelligence Surveillance Act of 1978, 50 U.S.C.
`§ 1881 a. Id. at 401. They argued that they were suffer-
`ing ongoing injuries fairly traceable to the law “be-
`cause the risk of surveillance under § 1881 a require[d]
`them to take costly and burdensome measures to pro-
`tect the confidentiality of their communications.” Id. at
`415. The United States Supreme Court rejected this
`
`
`
`21a
`
`argument. Id. at 416. It found that “[r]espondents’ con-
`tention that they have standing because they incurred
`certain costs as a reasonable reaction to a risk of harm
`is unavailing—because the harm respondents seek to
`avoid is not certainly impending.” Id. Thus, the Court
`concluded that “respondents cannot manufacture
`standing merely by inflicting harm on themselves
`based on their fears of hypothetical future harm.” Id.
`
`Unlike Clapper, the issue here is not standing, or
`
`manufacturing standing. At issue here is whether res-
`idents of the City will be harmed by Measure 1’s place-
`ment on the ballot and passage. The declarations make
`clear that harm will result when residents need to con-
`tact City employees regarding services or assistance
`they are entitled to receive. Specifically, they make
`clear that, if Measure 1 is placed on the ballot, resi-
`dents’ fear of engaging with City personnel would per-
`sist. The mere possibility of Measure 1’s placement on
`the November 2017 ballot made residents fearful of
`deportation and question whether they should report
`crimes to police. Even if the fear of deportation is
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