MADSEN, J. (dissenting)

I respectfully dissent and would affirm the Superior Court's order dismissing Whatcom County's challenge to the referendum petition filed in this case.

The majority makes three main points to support its decision to reverse the Superior Court, all of which are legally unsupportable. The majority claims that the wording of the statutory grant of power regarding temporary critical areas ordinances is of no significance; that "continuous public participation" in growth management decisions does not include referenda; and that the ordinance at issue was emergency legislation immune from revision by referendum.

I turn first to the majority's contention that under the Growth Management Act, the Legislature used the words "county" or "city" interchangeably with the words "legislative body" and that, therefore, "the power to act under the Growth Management Act was delegated to the 'county legislative body'". Majority, at 349. At issue in this case is not the wording of the entire Growth Management Act, but that of two statutes therein, RCW 36.70A.060 and RCW 36.70A.170. As the County explains, these statutes mandate the passage of temporary critical areas ordinances. RCW 36.70A.060(2) states that "[e]ach county and city shall adopt development regulations that protect critical areas that are required to be designated under RCW 36.70A.170". RCW 36.70A.170(1) provides that "each county, and each city" shall designate critical areas where appropriate. There is no reference to the "county legislative body" in either statute.

The absence of such a reference is key given the Washington case law cited by the majority. As the majority notes, "[A] statutory grant of power to a legislative authority does not generally permit delegation to the voters through an initiative or referendum.'" Majority, at 350 (quoting Citizens for Financially Responsible Gov't v. Spokane, 99 Wn.2d 339, 344-45, 662 P.2d 845 (1983)). The corollary to this rule is that if the grant of power is to the city or county as a corporate entity, direct legislation in the form of a referendum is permissible. Leonard v. Bothell, 87 Wn.2d 847, 852-53, 557 P.2d 1306 (1976); Paget v. Logan, 78 Wn.2d 349, 355, 474 P.2d 247 (1970). Consequently, this court recently found the wording of the statutory grant of power "at the heart" of whether referendum rights were available to challenge a countywide planning policy enacted pursuant to RCW 36.70A.210(2). Snohomish Cy. v. Anderson, 123 Wn.2d 151, 155, 868 P.2d 116 (1994). In construing this section of the Growth Management Act, the Anderson court found that the statute's reference to the "legislative authority" of a county eliminated referendum rights with regard to countywide planning policies. "Referendum rights do not exist when power has been statutorily delegated to the 'legislative authority'." Anderson, at 156 (quoting Neils v. Seattle, 185 Wn. 269, 53 P.2d 848 (1936)).

The Anderson court observed further that the Legislature is presumed to be familiar with judicial decisions of the Supreme Court construing statutory language. Anderson, at 156. "At the time the Legislature enacted RCW 36.70A, case law defined 'legislative authority' and comparable terms in statutory contexts to mean the council and/or mayor only, and not to permit referendum rights." Anderson, at 156; see also Leonard, at 854 ("This court should also presume the legislature was aware of the decisions of this court which preclude a referendum election when the legislature delegated the authority to the legislative body and not to the city as a corporate entity.").

Given this precedent, the majority's conclusion that references to "county" and to the "county legislative authority" in the Growth Management Act are interchangeable is, to say the least, surprising. Having assumed that the Legislature knows the consequences of granting authority to a "legislative authority" in a statute, this court also should assume that the Legislature knows the differing consequences of granting authority to a "county". Since the grant of authority to enact critical areas ordinances is to the county under RCW 36.70A.060(2) and RCW 36.70A.170(1)(d), the conclusion must be that the Legislature intended no interference with the referendum rights conferred upon Whatcom County voters by that county's home rule charter.

Part of the majority's confusion may stem from its belief that the elimination of referendum rights in Anderson requires the elimination of referendum rights in this case. Neither the language nor the purpose of the relevant statutes mandates such a result.

As stated above, the statute at issue in Anderson was RCW 36.70A.210, which requires counties to enact planning policies that set forth general goals governing, among other things, the development of urban areas; the siting of public facilities of a countywide or statewide nature; transportation facilities and strategies; and affordable housing. RCW 36.70A.210(3); see Anderson, at 154. RCW 36.70A.210(7) also authorizes multicounty planning policies adopted by two or more counties. The Anderson court recognized that county home rule is intended to further self-governance in purely local affairs so long as those exercising their rights to self-governance do not "run counter to considerations of public policy of broad concern, expressed in general laws.'" Anderson, at 159 (quoting Henry v. Thorne, 92 Wn.2d 878, 881, 602 P.2d 354 (1979)). The Anderson court understandably concluded that allowing the referendum under challenge would run counter to such considerations, given the broad range of policies required to be included in plans enacted pursuant to RCW 36.70A.210 and the possibility of multicounty plans. "Permitting the referendum would jeopardize an entire state plan and thus would extend beyond a matter of local concern." Anderson, at 159.

By contrast, RCW 36.70A.060(2) is much more limited in scope, and the temporary critical areas ordinances enacted pursuant thereto are purely local in concern. The ordinance at issue is concerned solely with Whatcom County and addresses the development of specific environmental areas and the permit processes relevant thereto. It does not appear that the referendum provisions proposed to the Whatcom County ordinance "would jeopardize an entire state plan". Thus, neither the language nor the intent of the statutes authorizing critical areas ordinances is thwarted by recognizing the applicability of referendum rights.

The majority next points out that Whatcom County voters should have contented themselves with the early participation in the ordinance process authorized by RCW 36.70A.140. This statute provides that each affected county shall establish procedures providing for early and continuous public participation in the development of comprehensive land use plans and of development regulations implementing such plans. These procedures are to provide for, in part, "broad dissemination of proposals and alternatives". RCW 36.70A.140. The majority apparently interprets RCW 36.70A.140 as authorizing "continuous public participation" before, but not after, the enactment of an ordinance, and does not see a referendum as a legitimate means of disseminating alternatives. In a similar vein, the County states that cooperation in comprehensive land use planning is required under the Growth Management Act and "[t]he referendum is not a cooperative or coordinated effort in planning". Br. of Appellant, at 22. Apparently, enactment of a critical areas ordinance with which a significant portion of its population disagrees is an example of a cooperative effort in planning, whereas a referendum seeking to demonstrate that disagreement is not.

More importantly, the County, as well as the majority, misconstrues the nature of referendum rights in discussing public participation. A referendum is not simply an effort to participate in, or contribute to, discussion; rather, the enactment of a referendum measure "is an exercise of the same power of sovereignty as that exercised by the legislature in the passage of a statute". Philip A. Trautman, Initiative and Referendum in Washington: A Survey, 49 Wn. L. Rev. 55, 66 (1973). Initiative and referendum provisions reserve to voters "the fundamental right of a governed people to exercise their inherent and constitutional political power over governmental affairs". Paget, at 352. Therefore, to say that public discussion of the proposed content of an ordinance is somehow equivalent to the right to challenge that ordinance by referendum, and that the public must be contented with such discussion, is a mischaracterization of the significance of the referendum power.

I next disagree with the majority's statement that the critical areas ordinance at issue "is merely execution of a policy already in existence". Majority, at 352. Initially I am concerned because this statement is hard to reconcile with the majority's earlier statement that permitting the referendum would jeopardize the entire state plan. See majority, at 351 (citing Anderson, at 159). The greater issue, however, is the confusion created by the majority's failure both to support its conclusion and to adhere to it.

As stated earlier, the critical areas ordinance at issue here is of lesser magnitude than the countywide planning policy at issue in Anderson. However, I do not see the ordinance as merely execution of a policy already in existence. If viewed in this light, the ordinance presumably would be an administrative rather than legislative action and so not subject to referendum. The rule in Washington is that the referendum power extends only to matters legislative in character and not to merely administrative acts. Heider v. Seattle, 100 Wn.2d 874, 875, 675 P.2d 597 (1984); Citizens, at 347. Two tests used to distinguish between administrative and legislative matters are as follows:

Actions relating to subjects of a permanent and general character are usually regarded as legislative, and those providing for subjects of a temporary and special character are regarded as administrative. . . . Another test has been whether the proposition is one to make new law or to execute law already in existence.

(Citation omitted.) Heider, at 876 (quoting Citizens, at 347).

The majority implicitly acknowledges but then ignores this law when it follows its statement that "[t]he ordinance is merely execution of a policy already in existence" (and thus presumably administrative) by stating that enactment of ordinances is a legislative act under the Whatcom County Code. Majority, at 353. Even if the Code did not so state, it would appear that the critical areas ordinance at issue constitutes a legislative act. The ordinance is 145 pages long and clearly establishes new guidelines for evaluating and regulating proposed development in and around critical areas in Whatcom County. Its preamble states that the temporary critical areas ordinance is designed to set standards to protect the public while allowing careful development around critical areas, and that the ordinance seeks to specify the framework that will be applied to define areas considered critical. As such, it appears to be more than an administrative action.

While conceding that the ordinance is a legislative act, the majority maintains that it is not subject to a referendum because the ordinance falls within the public health and safety exception in the Whatcom County Code. As set forth by the majority, article 5, section 5.50 of the code provides as follows:

The second power reserved by the people is the referendum. It may be ordered on any act, or bill, or ordinance, or any part thereof passed by the County Council except such ordinances as may be necessary for the immediate preservation of the public peace, health or safety or support of the county government and its existing public institutions.

(Italics omitted.) Majority, at 353.

The majority then notes that the Whatcom County Council "somewhat routinely" declared that enactment of the Temporary Critical Areas Ordinance would promote the public health, safety and general welfare. Majority, at 353. Without explanation, the majority concludes that "this nevertheless met the requirements for the exception". Majority, at 353. Then, as if anticipating disagreement, the majority explains that the "immediacy" requirement was satisfied "by the September 1, 1993 statutory deadline, which preceded the November 3, 1993 referendum election". Majority, at 353.

There are several problems with this conclusion. In the first place, the statutory deadline for the temporary critical areas ordinance was March 1, 1992. RCW 36.70A.060(2). Whatcom County asked for and received time extensions, and adopted its critical areas ordinance on June 23, 1992. Research has disclosed no deadline of September 1, 1993, that is applicable either to critical areas ordinances or to comprehensive land use plans. If such a deadline does exist, it would appear that adoption of the ordinance in 1992 eliminates any element of immediacy with regard to a 1993 deadline.

Furthermore, if statutory deadlines could be used to meet the "immediacy" requirement, then the power of referendum would be placed in considerable jeopardy and legislative declarations of emergency would be rendered virtually meaningless. This court discussed the purpose of emergent legislation in State ex rel. Gray v. Martin, 29 Wn.2d 799, 809, 189 P.2d 637 (1948):

The purpose of emergent legislation is to enable the legislative body to provide immediate action in order to prevent or remedy a condition or situation which is of such a nature that it demands immediate attention when to postpone such action would result in serious injury or damage to the people, government, or community directly concerned.

The Gray court cited previous cases upholding or denying legislative declarations of emergency and observed that in some it held that, unless the legislative act is in fact immediately necessary, all other factors are irrelevant, and the legislation will not be upheld as emergent. Gray, at 806. The Gray court also cited cases holding that an emergency does not mean expediency, convenience, or best interest, and that "promotion of the public welfare" is not a criterion by which the court may be guided in determining whether or not an emergency exists. Gray, at 807. Another case stated that, with reference to a legislative declaration of emergency, it would "'be scandalous indeed if the constitutional right of referendum could be thwarted by the mere use of false labels . . .'" and that the highly beneficial character of the act does not establish "'that it is necessary for the immediate public peace, health or safety. . . .'" Gray, at 807 (quoting State ex rel. Kennedy v. Reeves, 22 Wn.2d 677, 681-83, 157 P.2d 721 (1945)).

Other authorities agree that a mere statement that passage of the ordinance is necessary for immediate preservation of public peace may not suffice. 5 Eugene McQuillin, Municipal Corporations § 16.56, at 275 (3d ed. 1989); Trautman, at 75. Here, the temporary critical areas ordinance did not even say that its adoption was necessary for the immediate preservation of the public peace, health, or safety. Rather, it simply stated that its enactment "will promote the public health, safety, and general welfare". Clerk's Papers, at 24. Thus, the county council did not characterize the ordinance as emergency legislation immune from referendum under the county code, nor should this court regard it as such. While highly beneficial, the planned development of critical environmental areas does not qualify as emergency legislation. Thus, it is not excepted from referendum under article 5, section 5.50 of the Whatcom County Code.

Finally, I neither agree nor disagree with the majority's analysis of the Planning Enabling Act because I do not see what conclusion the majority draws from that analysis. The majority cites no provision in the Planning Enabling Act that prevents the exercise of referendum rights. Suffice it to say that I, too, think that the Planning Enabling Act and the Growth Management Act can be read consistently and harmoniously to carry out their intended legislative purpose, and that this purpose is not thwarted by allowing referendum rights with regard to critical areas ordinances.

In conclusion, I note that the content of the referendum is not at issue in this case, and I will not comment on it. What is at issue here is the right of the voters of Whatcom County to challenge an ordinance enacted by their county council. I can see no reason why this court should conclude that the referendum rights granted such voters under the Whatcom County Home Rule Charter are in conflict with the statutes governing passage of critical areas ordinances. Accordingly, I would affirm the Superior Court's grant of summary judgment upholding the referendum amending portions of Whatcom County's temporary critical areas ordinance.