Appellate court upholds Spokane initiative restricting homeless encampments

The measure passed with nearly 75% voter support during the Nov. 7 election, but its future was clouded pending the outcome of a dispute over the legality of the initiative.

Published: December 7, 2023 11:00pm

(The Center Square) -

A Washington state appellate court on Thursday upheld Proposition 1, a local ballot initiative to ban homeless encampments within 1,000 feet of schools, public parks, playgrounds and licensed childcare facilities within Spokane city limits.

The measure passed with nearly 75% voter support during the Nov. 7 election, but its future was clouded pending the outcome of a dispute over the legality of the initiative.

Following oral arguments heard on Oct. 25, three judges on the Division III Court of Appeals stated in Thursday’s published opinion that Washington voters have a statutory right to “directly participate in local initiatives, (and) courts should be hesitant to frame an issue in a way that strips away this right.”

“Doubts as to whether a matter is legislative or administrative should be resolved in favor of allowing the voters to have their say,” wrote Judge Rebecca Pennell. Fellow Judges Robert Lawrence-Berrey and Tracy Staab concurred.

The decision affirmed a lower court ruling dismissing the initiative challenge from two plaintiffs: Jewel’s Helping Hands, a Spokane-based nonprofit that provides support and services to unsheltered persons, and former city council president Ben Stuckart, who directs a low-income housing consortium.

Proposition 1 was spearheaded by Spokane attorney Brian Hansen and Jonathan Bingle, a businessman and current city council member. In a pre-election statement in the local voters’ guide, they described the initiative as “a step in the right direction to help reduce the dangerous, dirty, and disruptive behavior inherent in homeless encampments around areas where our children learn, play, and grow.”

In an emailed reply to The Center Square, Hansen said, “I am pleased with the court's published and unanimous opinion -- which, quite frankly, I expected. I now will defer to the city’s authorities to carry out the will of the overwhelming percentage of citizens who voted in favor of the measure by enforcing the new code in good faith.”

Julie Garcia, executive director of Jewel’s Helping Hands, said an appeal to the Washington State Supreme Court is under consideration.

As proposed, the measure calls for amending Spokane’s municipal code to prohibit unauthorized encampments – including storage of personal property or paraphernalia – in public spaces where children might gather. Violations would be considered misdemeanors subject to citation and appearance in community court. The measure would expand current city code which bans camping within 50 feet of any railroad viaduct within Spokane’s downtown police precinct and within three blocks of any congregate shelter.

Supporters of the initiative say homeless encampments foster problems with illegal drug use, indecent exposure, violent crimes and high volumes of trash while costing taxpayers for policing and cleanup efforts.

Opponents believe the proposition is “fear-mongering” and unfairly targets disadvantaged and homeless persons who aren’t criminals or breaking any laws.

During the Oct. 25 hearing, the plaintiffs’ attorney, Knoll Lowney of Seattle, argued that the appellate court should invalidate the initiative and prevent any election action on it. Unlike the state initiative process, Lowney insisted Proposition 1 was “beyond the scope of the local initiative power.”

Hansen, as the respondent, was represented by Mark Lamb, also a Seattle attorney. Lamb objected to the timing of the case, both at the initial and appellate level, and said there is a rule governing “finality of pre-election” status.

Lamb contended that city council decisions establishing municipal codes are subject to “the people’s right to initiative” and that invalidating the proposition and election results would be “an extraordinary act of judicial activism.”

Others have questioned the constitutionality of the initiative. Lowney said Spokane updated its municipal code last September in response to a federal court ruling in the case, Martin v. City of Boise, which said camping could not be prohibited on city property if shelter space is not available for homeless persons. That ruling was upheld by the 9th District Court of Appeals and applies to West Coast states.

The City of Spokane, Spokane County, and county auditor Vicky Dalton were also named as defendants in the appeal, but they did not participate in the court arguments in October.

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