1 THE HONORABLE JOHN H. CHUN Responding Party: City of Seattle 2 Hearing Date: August 20, 2015 at 10:00 a.m.

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1 1 THE HONORABLE JOHN H. CHUN Responding Party: City of Seattle 2 Hearing Date: August 20, 2015 at 10:00 a.m IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON 8 FOR KING COUNTY 9 KEEP SEATTLE AFFORDABLE, and FAYE) GARNEAU, ) 10 No SEA Petitioners, ) 11 CITY OF SEATTLE'S ANSWER TO VS. ) PETITION TO APPEAL BALLOT TITLE 12 THE CITY OF SEATTLE, a Washington ) 13 Municipal corporation; and KING COUNTY, ) 14 Respondents. ) 15 I. MOTION TO DISMISS 16 This matter should be dismissed because Petitioners, failed to file their petition within the 17 time prescribed by statute. Because of the failure to timely file, the court lacks jurisdiction over 18 this matter. The City of Seattle ("City") hereby moves to dismiss. 19 RCW 29A requires a ballot title appeal to be filed with the Superior Court "within 20 ten days from the time of the filing of the ballot title, not including Saturdays, Sundays, and legal 21 holidays..." Id. "The time of the filing of the ballot title, as used in this section in determining 22 the time for appeal, is the time the ballot title is first filed with the county auditor." Id. In this case, the ballot title for Seattle Proposition 1 was first filed with King County TITLE - 1

2 1 Elections on July 28, Declaration of Kortney Kinzer. Accordingly, Petitioners were 2 required to file their petition with the court on or before August 11, Petitioners did not file 3 their complaint until August 13, 2015, two days past the deadline. 4 Under its plain language, it is clear that a ballot title appeal brought under RCW 5 29A invokes the Superior Court's appellate jurisdiction. That section states, in pertinent 6 part, as follows: 7 If any persons are dissatisfied with the ballot title for a local ballot measure that was formulated by the city attorney or prosecuting 8 attorney preparing the same; they mu at any time within ten days from the time of the filing of the ballot title, not including 9 Saturdays, Sundays, and legal holidays, appeal to the superior court of the county where the question is to appear on the ballot, by 10 petition setting forth the measure, the ballot title objected to, their objections to it, and praying for amendment of it. The time of the 11 filing of the ballot title, as used in this section in determining the time for appeal, is the time the ballot title is first filed with the 12 county auditor RCW 29A [Emphasis added] 15 "Acting in its appellate capacity, the superior court is a court of limited statutory 16 jurisdiction, and all statutory requirements must be met before jurisdiction is properly invoked." 17 Spokane County v. Utilities and Transp. Com'n, 47 Wn.App. 827, 737 P.2d 1022 (1987), citing, 18 MacVeigh v. Division of Unempl. Comp., 19 Wn.2d 383, 142 P.2d 900 (1943); Lidke v. Brandt, Wn.2d 137, 150 P.2d 399 (1944); See also, City of Seattle v. Public Employment Relations 20 Com'n, 116 Wn.2d 9, 809 P.2d 1377 (1991) (failure of City to serve all parties in a timely 21 fashion in an appeal of Public Employment Relations Commission resulted in failure to invoke 22 the appellate jurisdiction of the Superior Court). TITLE - 2

3 1 Although substantial compliance is all that is necessary to comply with service 2 requirements (Matter of Saltis, 94 Wn.2d 889, 621 P.2d 716 (1980), the missing of a filing or 3 service deadline is not substantial compliance. Fay v. Northwest Airlines, Inc., 115 Wn.2d 194, , 796 P.2d 412 (1990)). Thus, while substantial compliance exists regarding service of 5 process where a party either has actual notice of the appeal, or "the notice of appeal was served 6 in a manner reasonably calculated to give notice," substantial compliance is not accomplished 7 where filing or service is not done within the prescribed statutory time limits. 8 In Fay, the appellant properly filed an appeal of an adverse decision rendered by the 9 Board of Industrial Insurance Appeals in the superior court and served notice upon the Board and 10 her employer within the time period, but "neglected to serve notice upon the Director of the 11 Department within 30 days after receiving notification of the Board's decision." Id., 115 Wn.2d 12 at 196. The court held that the appellant did not substantially comply with jurisdictional 13 requirements and affirmed the dismissal of the appeal. Id., at In this case, Petitioners have failed to substantially comply with the jurisdictional 15 requirement that the appeal be filed within ten days (not including weekends and holidays) of the. 16 filing of the ballot title with King County Elections. The Petitioners have failed to invoke the 17 jurisdiction of this court and the case should be dismissed. 18 II. APPLICABLE LAW TO THE BALLOT TITLE APPEAL 19 A ballot title must be prepared by the City Attorney for any City measure. (The County 20 Prosecuting Attorney prepares the ballot title for other local governments.) See RCW 21 29A The ballot title must conform to the requirements of RCW 29A except that 22 the concise description may be 75 words rather than 30. TITLE - 3

4 1 There are three parts to a ballot title. See RCW 29A The first part is an 2 identification of the enacting legislative body and a statement of the subject matter. "The 3 statement of the subject of a measure must be sufficiently broad to reflect the subject of the 4 measure, sufficiently precise to give notice of the measure's subject matter, and not exceed ten 5 words." RCW 29A The statement of the subject matter can be no more than 10 words. 6 See RCW 29A and RCW 29A By common practice, the word count begins after 7 the word "concerns." 8 The second part is a concise description of the measure. "The concise description must.. 9. be a true and impartial description of the measure's essential contents, clearly identify the 10 proposition to be voted on, and not, to the extent reasonably possible, create prejudice either for 11 or against the measure." RCW 29A The description may be no more than 75 words. 12 RCW 29A By common practice, the word count begins after the word "would." 13 The third part is the question, i.e. "Should this measure be enacted into law?" The ballot 14 title must be filed with King County Elections. RCW 29A In addition, SMC , pertaining to the preparation of a ballot title for a Seattle 16 initiative provides as follows: 17 Upon receipt of such initiative measure, the City Attorney shall prepare and transmit to the City Clerk within five (5) business days 18 after the filing of an initiative petition with the City Clerk a concise statement posed as a question and not to exceed seventy-five (75) 19 words, bearing the serial number of the measure, which shall be filed by the City Clerk with the King County Director of Records 20 and Elections. The statement may be distinct from the legislative title of the measure, and shall contain the essential features of such 21 measure expressed in such a manner as to clearly identify the proposition to be voted upon and giving a true and impartial 22 statement of the purpose of such measure, and shall not be intentionally an argument, nor likely to create prejudice, either for or against the measure. Such concise statement shall constitute the TITLE - 4

5 1 ballot title of the measure unless changed on appeal as provided in RCW Id. 3 RCW 29A allows any person dissatisfied with the ballot title to appeal to the 4 Superior Court whose decision is final. The standard to be applied is as follows: 5 A copy of the petition on appeal together with a notice that an appeal has been taken shall be served upon the county auditor and 6 the official preparing the ballot title. Upon the filing of the petition on appeal, the court shall immediately, or at the time to which a 7 hearing may be adjourned by consent of the appellants, examine the proposed measure, the ballot title filed, and the objections to it 8 and may hear arguments on it, and shall as soon as possible render its decision and certify to and file with the county auditor a ballot 9 title that it determines will meet the requirements of this chapter. The decision of the superior court is final, and the ballot title or 10 statement so certified will be the established ballot title. The appeal must be heard without cost to either party. 11 Id. (Emphasis added) 12 III. ARGUMENT IN REPSONSE TO THE PETITION 13 The City Attorney's ballot title meets the statutory standard. The petitioners take issue 14 with the City Attorney using the concept that Seattle Proposition levy replaces funding 15 that will be lost with the expiration of the "Bridging the Gap" levy approved by the voters in The Bridging the Gap levy provided that $365 million could be collected over nine years 18 for transportation purposes in four program categories: Maintenance; Enhanced Transit Services; 19 Bicycle, Pedestrian and Safety Programs; and Neighborhood Street Fund Program. Seattle City 20 Ordinance No & 6; Declaration of Monica Martinez Simmons, Seattle City Clerk T The last year this levy may be collected is Seattle City Ordinance No ; 22 Decl. Simmons 3. TITLE - 5

6 1 Ordinance , which placed Seattle Proposition 1 on the November 2015 ballot, 2 stated that one of the purposes of the measure was to replace the Bridging the Gap levy. It 3 stated: 4 WHEREAS, the 2006 Bridging the Gap transportation levy contributed approximately $365,000,000 to transportation investment, with a focus on 5 maintenance; and 6 WHEREAS, Bridging the Gap expires at the end of 2015 and the funding it provides needs to be replaced to continue critical maintenance and 7 improvement of Seattle's transportation system; and 8 Decl. Simmons 4. 9 If Seattle Proposition 1 is passed it would allow collection of $930 million over 9 years 10 for transportation purposes in three program categories: Safe Routes ($420 million); Congestion 11 Relief ($303 million); and Maintenance and Repair ($207 million). Ordinance No ; 12 Decl. Simmons 4. Seattle Proposition 1 has essentially the same program categories as the 13 Bridging the Gap levy, except for it contains no enhanced transit. This is in part because the 14 voters approved the Seattle Transportation Benefit District's imposition of increased fees and 15 sales tax for that purpose at the November 2014 election. Ordinance stated: 16 WHEREAS, in 2014 Seattle voters approved Seattle Transportation Benefit District Proposition One, which will provide an estimated $50,000, annually for additional transit service over six years, and in 2016 voters region-wide may be asked to consider a measure to expand light rail by 18 funding Sound Transit 3, and both of these measures can be complemented and leveraged with additional Seattle investment through a 19 levy; and See Decl. Simmons IT 4 & 5. It is fair to make the statement that Seattle Proposition 1 provides replacement funding for the Bridging the Gap levy. Additionally, doing otherwise will make the ballot title inconsistent with the explanatory statement for the November 2015 voters' pamphlet. The first sentence of the explanatory TITLE - 6 (206)

7 statement reads: "Seattle Proposition 1 replaces an expiring transportation levy and funds safety, congestion relief, and maintenance and repair projects, such as bridge seismic upgrades, transit corridor and light rail access projects, pedestrian and bicycle safety projects, synchronized traffic signals, freight projects, and neighborhood street projects." See Decl. Barnett T 3. The time period for appealing the content of the explanatory statement to the Seattle Ethics and Elections Commission has expired. See Decl. Barnett 5. Finally, petitioner Faye Garneau is a member of the committee to draft the opposing argument to be placed in the voters' pamphlet. See Decl. Barnett 4. She can make the arguments about the contrast between the size of the previous levy and the proposed levy in that forum. The City Attorney stands by the original ballot title. IV. CONCLUSION For the aforementioned reasons, the City of Seattle respectfully requests that Petitioner's petition be dismissed and that the Court issue an order preserving the present ballot title for Seattle Proposition No. 1 as established by the City Attorney DATED this 19t' day of August, PETER S. HOLMES By: JEFF SLAYTON, WSBA Assistant City Attorneys Attorneys for Defendant City of Seattle TITLE - 7 (206)

City of Seattle Legislative Department Office of the City Clerk Monica Martinez Simmons, City Clerk Certified Mail #70111150000147890539 March 28, 2014 Ms. Elizabeth Campbell 4027 21 st Avenue West, Suite

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