DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 46292-0-I
Title of Case: Linda Jordan, Fred Bucke, et al., Appellants
v.
City of Seattle, et al., Respondents
File Date: 09/05/2000
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 99-2-21036-1
Judgment or order under review
Date filed: 09/23/1999
Judge signing: Hon. Suzanne M. Barnett
JUDGES
------
Authored by Walter E. Webster
Concurring: C. Kenneth Grosse
Susan R. Agid
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Michael L. Johnson
Attorney At Law
119 1st Ave S #200
Seattle, WA 98104
Counsel for Defendant(s)
Michael L. Johnson
Attorney At Law
119 1st Ave S #200
Seattle, WA 98104
Counsel for Respondent(s)
Sandra L. Cohen
Seattle Law Dept
600 4th Ave Fl 10
Seattle, WA 98104-1877
Gary E. Keese
10th Fl, Civil Division
600 4th Ave
Seattle, WA 98104
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LINDA JORDAN, FRED BUCKE, )
CITIZENS FOR LEADERS WITH ) No. 46292-0-I
ETHICS AND ACCOUNTABILITY )
NOW, a.k.a. C.L.E.A.N., and ) DIVISION ONE
PEOPLE FOR ETHICS IN )
GOVERNMENT, )
)
)
Appellants, )
) UNPUBLISHED OPINION
v. )
)
CITY OF SEATTLE, JUDITH )
PIPPIN, MARTHA CHOE, RICHARD )
CONLIN, SUE DONALDSON, JAN )
DRAGO, NICK LICATA, RICHARD )
MCIVER, MARGARET PAGELER, )
TINA PODOLODOWSKI, and PETER )
STEINBRUECK, ) FILED:
)
Respondents. )
WEBSTER, J. -- The Seattle City Council failed to act upon a library
development initiative within 45 days as required by the City Charter.
Meanwhile, voters approved the City's proposition authorizing a different
library development plan. Almost a year later, the City Council enacted
the initiative with modifications to the preamble and amendment of a
section that questioned the validity of the initiative. Jordan and other
proponents of the initiative petitioned for a writ of mandamus to compel
the City to submit the initiative in the next election. Jordan also sought
declaratory relief invalidating the ordinance. The trial court dismissed
the claim under CR 12(b)(6) for failure to state a claim upon which relief
can be granted. Jordan appeals arguing that the City violated the City
Charter by (1) failing to act on the initiative within 45 days, (2)
modifying the initiative, and (3) failing to place the initiative on the
ballot. For the first time on appeal, Jordan also makes a claim for
damages in tort for a violation of the Washington Constitution. We dismiss
the case as moot because we are unable to provide effective relief.
FACTS
Initiative 45 directs the City to construct new libraries and renovate
existing libraries. The initiative allocates $87 million for branch
libraries, $47 million for the downtown library, $19 million for computers
and technology, and $4 million for books and materials. There are also
requirements for maintenance, minimum operating hours, and future
appropriations. The City Council received Initiative 45 in August 1998.
After almost a year, the City Council finally took action on the initiative
by enacting it on August 9, 1999.
According to Ordinance 119604, proponents of the initiative did not gather
sufficient signatures in time to mandate submission to the November 1998
election. If they had, the initiative would have competed against the
City's Proposition One that authorized a different construction and
financing plan for library facilities. Voters approved Proposition One in
the November 1998 election. Thereafter, the City Council enacted its plan
into local ordinance.
Nevertheless, the City Council also enacted Initiative 45 with little or no
intention to implement that alternative library plan. In adopting
Ordinance 119604, the City Council modified the preamble and amended
Section 15 to the initiative. Previously, the preamble to the initiative
consisted primarily of criticisms of the City in funding libraries. In
Ordinance 119604, however, the preamble describes the history of
Proposition One and Initiative 45 with concern that some provisions of the
initiative are outside the scope of initiative power. The City Council
also added Section 15 that says each provision or group of related
provisions shall be null and void if a court determines that such
provisions lay outside the power of initiative.
On September 10, 1999, Linda Jordan and others filed a writ of mandamus
against the City, the City Clerk, and the City Council to compel them to
place Initiative 45 on the November 1999 ballot. In addition, Jordan
sought a declaratory judgment invalidating the ordinance that enacted the
initiative. The trial court denied the writ of mandamus and dismissed the
case under CR 12(b)(6) for failure to state a claim upon which relief can
be granted. Jordan appealed directly to the Washington Supreme Court. The
Supreme Court transferred the case to this Court.
DISCUSSION
The City contends that this appeal is moot because the relief
requested by Jordan in her complaint is unavailable. Jordan concedes that
injunctive relief to place the initiative on the November 1999 ballot is no
longer appropriate. Nonetheless, she asks this Court to grant her
declaratory relief that the ordinance is valid except for the preamble and
Section 15. She also seeks remand to the trial court to amend her
complaint to state a cause of action in tort for a violation of the state
constitution. A litigant, however, may not raise an issue or seek relief
for the first time on appeal when she has failed to raise such issue or
request such relief at trial. RAP 2.5(a); Scott v. Goldman, 82 Wn. App. 1,
10, 917 P.2d 131 (1996). Jordan never asked the trial court to declare
that the ordinance is valid and never made a claim in tort. Rather, she
requested the trial court to declare the ordinance invalid as a whole. She
now seeks a more limited declaratory judgment holding that the preamble and
Section 15 are invalid. We consider whether such a declaration is moot.
Generally, an appellate court will dismiss an appeal if the issues
presented are moot. Sorenson v. City of Bellingham, 80 Wn.2d 547, 558, 496
P.2d 512 (1972). Issues are moot when the court can no longer provide
effective relief and only abstract questions remain. Orwick v. City of
Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984); Sorenson, 80 Wn.2d at
558. Here, the City Council enacted an ordinance that adopted all
substantive provisions of the initiative. But, the City Council also
modified the preamble and added Section 15 that, together, questioned the
validity of many provisions as being outside the scope of initiative power.
A preamble, however, has no legislative force and is merely a guide to
legislative intent when the substantive language of the statute is
ambiguous. State ex rel. Berry v. Superior Court, 92 Wash. 16, 32, 159 P.
92 (1916); see also City of Spokane v. Taxpayers of Spokane, 111 Wn.2d 91,
97-98, 758 P.2d 480 (1988) (initiatives construed under rules of statutory
construction). Moreover, Section 15 merely says that initiative provisions
shall be null and void if a court declares that such provisions are outside
the power of initiative. As a result, declaring the preamble and Section
15 invalid would serve no useful purpose because striking them would not
alter the substantive provisions of the ordinance. Granting the limited
declaratory relief Jordan now requests would not provide effective relief.
We find that the issues presented in this case are moot.
Jordan argues that the Court still may grant the relief requested because
it would have great public importance. Even though moot, an appellate
court may decide the merits of a case when it involves matters of
continuing and substantial public interest. Philadelphia II v. Gregoire,
128 Wn.2d 707, 712, 911 P.2d 389 (1996); Sorenson, 80 Wn.2d at 558. To
determine whether an issue has sufficient public interest, we examine the
following criteria: (1) the public or private nature of the issues; (2) the
need for judicial guidance of public officers; and (3) the likelihood of
recurrence. Philadelphia II, 128 Wn.2d at 712. First, whether the City
violated the Charter in adopting the library initiative is a public issue.
The City does not dispute this.
Second, Jordan argues there is a need to provide guidance to the City
Council for future initiatives. In Philadelphia II, the Washington Supreme
Court held that it was desirable to provide guidance to the Attorney
General who refused to prepare a ballot title and explanation of an
initiative after determining that it was beyond the scope of initiative
power. Philadelphia II, 128 Wn.2d at 712. The Court said: 'If the
Attorney General believes that an initiative exceeds the scope of
initiative power, she should prepare the ballot title and summary in
accordance with her statutory duty and then seek an injunction to prevent
the measure from being placed on the ballot.' Philadelphia II, 128 Wn.2d
at 715-16.
Here, however, the City Council enacted the initiative into law, albeit
untimely under Charter provisions that require the City Council to act
within 45 days after receiving the initiative. Seattle City Charter, Art.
IV, sec. 1D. The City admits that it failed to act within 45 days but
contends that the Charter language is not mandatory and that it caused no
harm by acting later. Contrary to the City's position, the language is
mandatory because Seattle City Charter, Art. IV, sec. 1D, states: 'If the
City Council rejects any initiative measure, or shall during forty-five
(45) days after receipt thereof have failed to take final action thereon, .
. . the City Council shall order the measure submitted to the qualified
electors for approval or rejection at the next regularly scheduled
election.' There is a strong presumption that the word 'shall' is
imperative because other sections contain the word 'may' and the City has
shown no contrary intent. Seattle City Charter, Art. IV, sec. 1C;
Philadelphia II, 128 Wn.2d at 713. Here, the City Council failed to act
within 45 days. Nevertheless, the City Council later enacted the
initiative, making submission to election unnecessary. The only remedy
available for violation of the 45-day requirement is submission to
election. But, Jordan concedes that such a remedy is now moot. Therefore,
we cannot provide relief.
Third, Jordan argues that it is likely that in the future the City Council
will not act within the required 45 days regarding an initiative that
competes with its own proposition. The City contends that a successful
proposition followed by a related citizen initiative is unusual and
therefore unlikely to recur. We agree. An appellate court should not
issue an advisory opinion in a moot case that rests on a limited factual
situation. Hart v. Department of Soc. and Health Servs., 111 Wn.2d 445,
449-51, 759 P.2d 1206 (1988). Here, the facts and sequence of events are
unique and pertain only to initiatives proposed under the Seattle City
Charter. We should not issue an advisory opinion in this case and
therefore decline to review the merits.
Finally, Jordan moves for supplemental briefing to bring a
constitutional tort claim for damages. A commissioner for this Court
denied Jordan's motion to submit supplemental briefing because Jordan
failed to justify additional briefing. Upon Jordan's motion to modify the
ruling, another commissioner ruled that the Court would consider the motion
when it reviews the case on the merits. Because Jordan failed to make this
claim for relief in the trial court, we need not review it. Goldman, 82 Wn.
App. at 10; see also State v. Thomson, 123 Wn.2d 877, 884, 872 P.2d 1097
(1994) (constitutional issue in supplemental brief not timely raised in
trial court or in prior briefs).
CONCLUSION
Because we are unable to provide effective relief, we hold that this
case is moot.
We dismiss.
WE CONCUR