Opinion Information Sheet

			

Mukilteo Citizens for Simple Government v. City of Mukilteo, No. 84921-8
Dissent by J.M. Johnson, J.

                                         No. 84921-8

       J.M. JOHNSON, J. (dissenting) -- This appeal asks us to consider a pre-

election challenge to city of Mukilteo Proposition 1 (Prop 1), an advisory vote 

opposing automated traffic safety cameras ("red-light cameras") in that city.  

Prop 1 was  placed  on the November 2010 general election ballot and 

endorsed by over 70 percent of Mukilteo voters.  The Mukilteo City Council 

then voted to repeal the red-light cameras ordinance.   The parties do not 

dispute the status of the law in Mukilteo; red-light cameras are no longer 

authorized.  The majority does not claim anything unlawful was done here.  

The people exercised their right to petition.  The city council put a relevant 

advisory issue on the ballot.  The voters expressed a strong position and the 

city  council repealed a disfavored ordinance.  As  there is no justiciable 

controversy for us to resolve, the appeal is moot.  Thus, I respectfully dissent.

A.     The Appeal Is Moot 

Mukilteo Citizens for Simple Government v. City of Mukilteo, No. 84921-8

       We may reach the merits of a trial court's decision to deny declaratory 

relief  only  if there  is a "justiciable controversy" for the court to resolve

pursuant to chapter 7.24 RCW.  Walker v. Munro, 124 Wn.2d 402, 411, 879 

P.2d 920 (1994); Fed. Way Sch. Dist. No. 210 v. State, 167 Wn.2d 514, 529, 

219 P.3d 941 (2009).  Otherwise, the case is moot and should be dismissed.1

       We have defined "justiciable controversy" as:

       (1)  . . . an actual, present and existing dispute, or the mature 
       seeds of one, as distinguished from a possible, dormant, 
       hypothetical, speculative, or moot disagreement, (2) between 
       parties having genuine and opposing interests, (3) which 
       involves interests that must be direct and substantial, rather than 
       potential, theoretical, abstract or academic, and (4) a judicial 
       determination of which will be final and conclusive.

Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137

(1973).

       Here, there is no longer an actual, present and existing dispute.  Prop 1 

was placed on the ballot and an election was held.  Red-light cameras were 

opposed by voters, and the city council has repealed Ordinance 1246 (chapter 

1 Klickitat County Citizens Against Imported Waste v. Klickitat County, 122 Wn.2d 619, 
631, 860 P.2d 390, 866 P.2d 1256 (1993).  "An appeal is moot where it presents purely 
academic issues and where it is not possible for the court to provide effective relief."  Id. 

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Mukilteo Citizens for Simple Government v. City of Mukilteo, No. 84921-8

10.05   MMC), which had  authorized the use of red-light                       cameras.  

Additionally, the actual state of the law in Mukilteo is not in dispute 

(Mukilteo Initiative 2 differs from Ordinance 1275).2  Both parties concede 

Ordinance 1275, which repealed Ordinance 1246, represents the current state 

of the law in Mukilteo, whether that is because Prop 1 was not effective as an

initiative3 or because Prop 1 was an initiative outside the scope of the local 

initiative power.4   An injunction to prevent Prop 1 from being placed on the 

ballot would have no effect years after the election was final.

       The only issue that conceivably remains is whether the subject matter 

addressed by Prop 1 (the use of red-light cameras) is outside the scope of the 

local  initiative power.  We  should not reach this issue because the issue 

placed on the ballot was  avowedly  an advisory vote, not an initiative.  

Rendering a judgment on a hypothetical issue, therefore, would be tantamount 

to issuing an advisory opinion.  This court, however, is not authorized by the 

Uniform Declaratory Judgments Act (chapter 7.24 RCW) to render advisory 

2 This difference may have a legal effect only  on hypothetical issues not raised in this 
lawsuit.

3 See, e.g., Br. of Resp'ts City of Mukilteo and Christina Boughman at 3.

4 See, e.g., Appellant's Opening Br. at 8-15.

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Mukilteo Citizens for Simple Government v. City of Mukilteo, No. 84921-8

opinions or pronouncements upon abstract or speculative questions.  Munro, 

124 Wn.2d at 418 (citing Wash. Beauty Coll., Inc. v. Huse, 195 Wash. 160, 

164, 80 P.2d 403 (1938)).  Any remaining issue is academic, and it is not 

possible for the court to provide effective relief.  Thus, such issue is also 

moot.  Klickitat County Citizens Against Imported Waste v. Klickitat County, 

122 Wn.2d 619, 631, 860 P.2d 390, 866 P.2d 1256 (1993).

B.     Prop 1 Was an Advisory Vote

       RCW 29A.32.241 requires local voters' pamphlets to include the text 

of each ballot measure, an explanatory statement, and the arguments for and 

against each measure.  RCW 29A.32.241(4),  (5).  The purpose of this 

requirement is straightforward: citizens should not be bound by a measure 

that they did not have the opportunity to examine thoroughly prior to voting 

on it.  

       Prop 1 did not include the text of Mukilteo Initiative 2.  Prop 1, 

therefore, could not have been effective as an initiative.  This was instead an 

advisory vote.    As explained above, this conclusion renders moot the issue of 

whether the subject matter addressed by Prop 1 is outside the scope of the 

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Mukilteo Citizens for Simple Government v. City of Mukilteo, No. 84921-8

local initiative power. 

       Finally, the record does not disclose why the Mukilteo City Council 

voted to place Prop 1 on the ballot rather than Mukilteo Initiative 2.5  

However, no party sought to compel Mukilteo Initiative 2 to be placed on the 

ballot.  Any Mukilteo residents who are concerned about such detail have 

available  political remedies.  Because the ordinance authorizing red-light 

cameras has been repealed per the wishes of Mukilteo voters, these issues 

have all been resolved politically rather than through judicial processes.  Our 

system accommodates and relies on such resolution.

                                         Conclusion

       I would hold that Mukilteo Citizens for Simple Government's appeal is 

moot.  Prop 1, an advisory vote opposing red-light cameras, was placed on 

the  November  2010  ballot  and endorsed by over 70 percent of Mukilteo 

voters.  The city council has repealed the ordinance allowing the use of red-

light cameras in Mukilteo.  The matter was appropriately and constitutionally 

resolved through the political process.  Not every issue requires judicial 

5 The notable differences would have restricted adoption of red-light cameras by later 
councils.

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Mukilteo Citizens for Simple Government v. City of Mukilteo, No. 84921-8

resolution.  There is no justiciable controversy for us to resolve, and an 

injunction at this point would have no effect.  Thus, I would affirm the trial 

court and respectfully dissent.  

AUTHOR:

        Justice James M. Johnson

WE CONCUR:

        Justice Charles W. Johnson

        Justice Tom Chambers

        Gerry L. Alexander, Justice Pro Tem.

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