Opinion
No. 59671-3-I.
October 1, 2007.
Appeal from a judgment of the Superior Court for King County, No. 06-2-19776-3, Palmer Robinson, J., entered August 30, 2006.
Dismissed by unpublished opinion per Appelwick, C.J., concurred in by Becker and Schindler, JJ.
Great Schools for a Great City filed an education spending initiative for the September 2006 ballot. The City of Seattle claimed that the Budget Act for Cities over three hundred thousand population exclusively governs the municipal budget process and renders the initiative beyond the scope of local initiative power. The trial court agreed and removed the measure from the ballot. Great Schools appeals. We determine that the case is moot and does not warrant a decision on the merits.
FACTS
On April 10, 2006, Great Schools filed two initiative petitions with the Seattle City Clerk's Office. Initiative 88, "Property Tax Levy Lid Lift to Support Great Schools," would have lifted the limitations on regular property tax increases found in chapter 84.55 RCW. Initiative 87, "Great Schools for a Great City," would have required the City of Seattle to increase funding to the Seattle School District for specific purposes by an amount at least equal to the property tax lid lift authorized by I-88. Both initiatives were approved as to form and both received enough valid signatures to qualify for inclusion on the ballot.
On June 19, 2006, the City of Seattle filed a suit challenging I-87. The City contended that I-87 conflicted with RCW 35.32A, the Budget Act for Cities over three hundred thousand population. Both parties moved for summary judgment. The trial court granted the City's motion for summary judgment and declared that I-87 was beyond the scope of local initiative power. As a result of the ruling, I-87 was invalid and could not appear on the ballot. Great Schools appealed directly to our Supreme Court which declined direct review and transferred the case to this court.
The City did not challenge I-88. The levy lid lift initiative appeared on the September 2006 ballot. I-88 was defeated by the voters.
DISCUSSION
The City contends that the defeat of I-88 renders I-87 moot. Great Schools contends that it "always intended that the people of Seattle would have the opportunity to vote on Initiative 87 regardless of whether Initiative 88 was approved or not." Great Schools further contends that defeat of I-88 merely renders I-87 an advisory, instead of a mandatory, measure. This issue was not before the trial court, since I-88 had not yet been put before the voters.
Contrary to Great Schools' contention, the language of I-87 shows that the initiative was dependant upon the passage of the levy lid lift. The initiative specifically states, "[s]hould the voters disapprove of that increase in the regular property tax levy, this Ordinance shall not take effect." Since the voters disapproved of I-88, I-87 "shall not take effect." The initiative does not contain any language indicating that the measure survives defeat of I-88. While Great Schools may have intended I-87 to become an advisory measure if its funding source was defeated, the language of the initiative precludes this outcome. By its own terms, I-87 cannot take effect. The trial court ruling is of no consequence and the appeal is moot.
Great Schools urges us to reach the merits of this case and determine if I-87 exceeds the scope of local initiative power. An appellate court "may, in its discretion, retain and decide an appeal which has otherwise become moot when it can be said that matters of continuing and substantial public interest are involved." Sorenson v. City of Bellingham, 80 Wn.2d 547, 558, 496 P.2d 512 (1972). To determine whether to exercise this discretion, the court examines (1) whether the issue is a public or private nature, (2) whether a determination is necessary to provide future guidance to public officers, and (3) whether the issue is likely to recur. Philadelphia II v. Gregoire, 128 Wn.2d 707, 712, 911 P.2d 389 (1996). The court considers the "level of genuine adverseness and the quality of advocacy of the issues," which limits review to cases in which a hearing on the merits has occurred. Westerman v. Cary, 125 Wn.2d 277, 286, 892 P.2d 1067 (1994). Finally, the court can take into account the likelihood that an issue will escape review because of the short-lived nature of the case. Philadelphia II, 128 Wn.2d at 712 (citing Westerman, 125 Wn.2d at 286-87).
The issue is of public interest and we do not doubt that the proponents of the initiative will try again to advance this issue. However, the parties disagree as to whether an advisory opinion is desirable on this issue. Great Schools cites the need for guidance to public officials in the wake of City of Sequim v. Malkasian, 157 Wn.2d 251, 138 P.3d 943 (2006), and 1000 Friends of Washington v. McFarland, 159 Wn.2d 165, 149 P.3d 616 (2006) because "[p]ublic officials might misinterpret those recent decisions as constituting a shift in [the] Court's jurisprudence away from a broad construction of the power of local voters to act as a check on elected officials." Great Schools believes that public officers would benefit from a decision on the implications of 1000 Friends outside of the growth management context. The City contends that the courts have provided adequate guidance.
We agree that the Supreme Court has provided guidance on the scope of initiative power. Based on the briefing and oral argument, we conclude this matter is not ripe for an advisory opinion. We decline to exercise discretion to reach the merits of this case.
We conclude the case is moot and dismiss the appeal.
WE CONCUR: