IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
PROTECT WHATCOM KIDS, No. 87627-9-I Respondent,
v. DIVISION ONE
WHATCOM COUNTY, and STACY HENTHORN, in her official capacity, UNPUBLISHED OPINION and WHATCOM COUNTY COUNCIL,
Respondents,
TIM KOETJE,
Appellant.
CHUNG, J. — Tim Koetje sponsored Initiative 2024-01 (the “Initiative”) to repeal a
proposition approved by voters in 2022 that removed a lid on property taxes and
resulted in the Whatcom County Council’s creation of a “Healthy Children’s Fund.”
Protect Whatcom Kids, a political action committee, filed a lawsuit to prevent the
Initiative from appearing on the Whatcom County ballot in November 2024. The trial
court granted a preliminary injunction enjoining the placement of the Initiative on the
ballot, which Koetje appealed.
We hold that the trial court did not err by conducting a pre-election review of the
Initiative to determine whether it was outside the scope of the initiative power. Further,
because the Initiative was administrative rather than legislative in nature and improperly
interferes with the county council’s budgetary power, the trial court properly determined No. 87627-9-I/2
that the Initiative was outside the scope of the initiative power and granted declaratory
and injunctive relief. Therefore, we affirm.
BACKGROUND
On June 7, 2022, the Whatcom County Council adopted Ordinance 2022-045 to
submit for special election a proposition to lift the limit on regular property taxes, also
known as a “levy lid lift,” to create a “Healthy Children’s Fund” (the “Fund”) specifically
for childcare, early learning programs, and increased support for vulnerable children.
The resulting proposition, “Proposition 5,” was placed on the ballot and certified as
approved on November 29, 2022. Following Proposition 5’s passage, the Whatcom
County Council adopted Ordinance 2022-092, imposing the levy lid lift, creating the
Fund, and enacting the implementation plan “as defined in Ordinance 2022-045.”
On June 5, 2024, Koetje, along with “Washingtonians for a Sound Economy,” 1
collected sufficient signatures to place the Initiative on the November 2024 ballot. The
Initiative’s operative language 2 stated as follows:
THEREFORE, BE IT RESOLVED by the citizens of Whatcom County that Ordinance 2022-045 (Proposition 5) be repealed, as it poses a tangible threat to our community. Vote YES to repeal.
Protect Whatcom Kids filed suit seeking declaratory and injunctive relief against
Koetje and Whatcom County “to bar the Initiative from appearing on a future ballot, and
to prevent the County from taking any actions to conduct or certify an election on the
Initiative” based on the Initiative’s improper scope and deficiencies in its ballot title.
1 The Appellant’s briefing describes Washingtonians for a Sound Economy as “initiative
proponents.” 2 The trial court noted, “In evaluating the substance of an initiative, the courts consider only the
operative section of the measure, not the ‘whereas’ clauses or the intent of the sponsors. Thus, the validity of Initiative 2024-01 turns on its single operative sentence.” (footnotes and citations omitted). The parties do not dispute the trial court’s order in this regard.
2 No. 87627-9-I/3
Whatcom County Council filed a response to the petition agreeing with Protect
Whatcom Kids that the Initiative was invalid. 3
The trial court granted declaratory and injunctive relief on September 3, 2024.
Koetje filed a timely appeal.
DISCUSSION
Koetje challenges the trial court’s order granting a preliminary injunction on
several bases. First, he contends the court erred by permitting pre-election review of the
Initiative as the claims were not justiciable. He also argues the court erred by
determining the Initiative exceeded the scope of the initiative power. Finally, Koetje
contends that Protect Whatcom Kids’ procedural challenge was time-barred and that the
injunction was not an appropriate remedy.
I. Propriety of Pre-election Review
“Justiciability is a threshold inquiry and must be answered in the affirmative
before a court may address the merits of a litigant’s claim.” Coppernoll v. Reed, 155
Wn.2d 290, 300, 119 P.3d 318 (2005) (citing To-Ro Trade Shows v. Collins, 144 Wn.2d
403, 411, 27 P.3d 1149 (2001)). This court reviews the justiciability of pre-election
challenges to initiatives de novo. Am. Traffic Sols., Inc. v. City of Bellingham, 163 Wn.
App. 427, 432, 260 P.3d 245 (2011).
“Preelection review of initiative measures is highly disfavored.” Futurewise v.
Reed, 161 Wn.2d 407, 410, 166 P.3d 708 (2007) (citing Coppernoll, 155 Wn.2d at 297).
The “fundamental reason” is that “the right of initiative is . . . deeply ingrained in our
state’s history, and widely revered as a powerful check and balance on the other
3 Because the arguments of the Respondents, Whatcom County Council and Protect Whatcom
Kids, largely overlap, we refer to them collectively as Protect Whatcom Kids.
3 No. 87627-9-I/4
branches of government.” Id. (internal quotation marks omitted) (quoting Coppernoll,
155 Wn.2d at 296-97). “[P]reelection challenges to the substantive validity of initiatives
are particularly disallowed.” Id. Such review “would involve the court in rendering
advisory opinions, would violate ripeness requirements, would undermine the policy of
avoiding unnecessary constitutional questions, and would constitute unwarranted
judicial meddling with the legislative process.” Id. Therefore, our Supreme Court has
held that pre-election substantive challenges to initiatives are not justiciable. Id.
Washington courts recognize only “two narrow exceptions to this general rule
against preelection review.” Coppernoll, 155 Wn.2d at 297. We may consider (1)
whether the initiative meets “the procedural requirements for placement on the ballot”
and (2) whether “the subject matter of the initiative is beyond the people’s initiative
power.” Futurewise, 161 Wn.2d at 411. Indeed, “[t]he idea that courts can review
proposed initiatives to determine whether they are authorized by article II, section 1, of
the state constitution is nearly as old as the amendment itself.” Philadelphia II v.
Gregoire, 128 Wn.2d 707, 717, 911 P.2d 389 (1996). By contrast, a claim that an
initiative would be unconstitutional if enacted is not subject to pre-election review.
Futurewise, 161 Wn.2d at 411. A challenge that facially appears as a challenge to the
subject matter of an initiative may in fact be a challenge to an initiative’s
constitutionality. Id. at 412. The court must analyze whether purported subject-matter
challenges to initiatives are in fact constitutional challenges. Id.
A claim that an initiative is administrative in nature rather than legislative is
appropriate for pre-election review. See, e.g., City of Port Angeles v. Our Water-Our
Choice!, 170 Wn.2d 1, 7-8, 239 P.3d 589 (2010) (considering administrative nature of
4 No. 87627-9-I/5
initiative in pre-election review of whether the initiative was within the scope of initiative
power); Spokane Entrepreneurial Ctr. v. Spokane Moves to Amend Const., 185 Wn.2d
97, 107-08, 369 P.3d 140 (2016) (in pre-election review, considering administrative
nature of initiative in determining it exceeded the scope of the initiative power).
Likewise, a pre-election claim that an initiative is outside the scope of legislative power
is justiciable. See Protect Pub. Health v. Freed, 192 Wn.2d 477, 482-84, 430 P.3d 640
(2018) (upon pre-election review, holding that initiative exceeded initiative power
because it interfered with King County Council’s budgetary authority).
Here, Protect Whatcom Kids alleges that the Initiative exceeds the scope of the
initiative power because it is administrative, rather than legislative, in nature, and
encroaches on the county council’s exclusive budgetary authority. Both allegations are
justiciable, non-constitutional challenges to the Initiative that can be reviewed prior to
election. Accordingly, the trial court did not err in engaging in pre-election review of the
Initiative. 4
II. Scope of the Initiative Power
“The local initiative power is more limited than the statewide initiative power.”
Jewels Helping Hands v. Hansen, 4 Wn.3d 665, 686, 567 P.3d 19 (2025). “[L]ocal
initiatives can accomplish only what falls within the scope of their authorized power.” Id.
A local initiative exceeds its scope “if it (1) is ‘administrative’ . . . instead of ‘legislative in
nature’ or (2) affects issues delegated by the State to a local government’s ‘legislative
4 By contrast, because Protect Whatcom Kids’ argument that the Initiative violated the contracts
clause, WASH. CONST. art. 1, sect. 23, is a substantive challenge to the Initiative, it was error for the trial court to address this argument in its pre-election review.
5 No. 87627-9-I/6
authority’ rather than to the local government as a ‘municipal entity.’ ” Id. at 686-87
(quoting Freed, 192 Wn.2d at 483).
Here, Protect Whatcom Kids contends that the Initiative exceeded the initiative
power both because it was administrative in nature and because it encroached on the
county legislative authority’s exclusive budgetary power. We agree on both alternative
grounds. 5
A. Administrative or Legislative in Nature
Administrative matters “are not subject to initiative or referendum.” Our Water-
Our Choice!, 170 Wn.2d at 8. “Generally speaking, a local government action is
administrative if it furthers (or hinders) a plan the local government . . . has previously
adopted.” Id. at 10. Stated another way, “administrative matter[s] . . . deal[] with carrying
out and executing laws or policies already in existence.” Spokane Entrepreneurial Ctr.,
185 Wn.2d at 108.
In the seminal case on this topic, Ruano v. Spellman, King County voters
approved a proposition authorizing the issuance of bonds to build a multipurpose
stadium. 81 Wn.2d 820, 821, 505 P.2d 447 (1973). Bonds were issued and the King
County Council exercised an option to acquire the property for construction. Id.
Thereafter, an initiative was filed and certified for the ballot that, in essence,
would repeal the resolution authorizing the project and the bonds to finance it; prohibit spending of funds for further development; cause outstanding bonds to be repaid “as soon as practical and at the least cost to King County property owners”; and direct any surplus funds remaining to be transferred to the King County general fund.
5 Given this disposition, we do not address Protect Whatcom Kids’ additional arguments as to
why the Initiative exceeded the initiative power. We also need not address the argument by Protect Whatcom Kids (not joined by the Whatcom County Council) as to alleged defects in the Initiative’s ballot title, nor Koetje’s response that the challenge to the ballot title was untimely.
6 No. 87627-9-I/7
Id. at 822. 6 The Washington Supreme Court held the initiative exceeded the initiative
power. The court acknowledged that, even though the original proposition authorizing
the project, introduced by a Board of County Commissioners resolution, was legislative
in nature, and the initiative would, in essence, “repeal the resolution authorizing the
project and the bonds to finance it[ and] prohibit spending of funds for further
development,” the initiative nevertheless exceeded the initiative power because at the
time the initiative was submitted, “only administrative decisions remained . . . decisions
6 In full, the initiative provided as follows:
‘Initiative Measure No. 5: Repealing Authorization for Multi-Purpose Stadium.
‘BE IT HEREBY ENACTED:
‘Section 1. Resolution No. 34567, dated December 18, 1967, and approved by the voters of King County at an election February 13, 1968, entitled as follows:
‘A RESOLUTION of the Board of County Commissioners of King County, Washington, providing for the submission to the qualified electors of the county at a special election to be held therein on February 13, 1968, of a proposition authorizing the county to issue its general obligation bonds in the principal amount of not to exceed $40,000,000 for the purpose of providing part or all of the funds to pay the cost of acquiring, constructing and equipping a multipurpose public stadium in the county.
be, and the same is hereby repealed.
‘Section 2. King County, and any of its officers or agents are hereby prohibited from expending any funds for the further development of said multi-purpose stadium provided for by Resolution No. 34567.
‘Section 3. Any and all bonds that have been sold and are outstanding shall be repaid to the purchaser as soon as practical at the least cost to King County property owners, thereby leaving no obligation to King County property as it relates to Resolution No. 34567.
‘Section 4. Any and all surplus funds after repayment of the bonds and payment for previously properly authorized services or contracts shall be transferred to the King County general fund.
‘Section 5. The County Council may pass such ordinances or resolutions implementing this ordinance as may be desirable or necessary to effectuate its purpose.’
Id. at 822 n.1.
7 No. 87627-9-I/8
not subject to the initiative process.” Id. at 822, 825. In reaching its decision, the
Supreme Court reasoned,
By its vote the electorate had declared its legislative policy to build a multipurpose stadium, to finance it [with] bonds, and to repay those bonds from specified sources. The legislative decision on site selection had been made. No new law would be involved in expending funds for those declared purposes. The county and its agents in making those expenditures simply were executing an already adopted legislative determination.
Id. at 824.
The facts here closely mirror those in Ruano. In November 2022, Whatcom
County voters approved Proposition 5, introduced by the Whatcom County Council as
Ordinance 2022-045, authorizing the levy lid lift to create the Healthy Children’s Fund.
The Whatcom County Council subsequently took action in December 2022 to
implement the levy lid lift and the Fund by passing Ordinance 2022-092.
Like the initiative in Ruano, the Initiative here seeks to repeal Ordinance 2022-
045 (Proposition 5) authorizing the project and the tax to finance it, as well as to prohibit
the spending of funds for further development of the project. The operative Initiative
language states this purpose even more clearly than the initiative in Ruano:
“THEREFORE, BE IT RESOLVED by the citizens of Whatcom County that Ordinance
2022-045 (Proposition 5) be repealed.” (Emphasis added.)
Koetje attempts to distinguish the Initiative here from those that are
administrative in nature, citing Jewels Helping Hands, 4 Wn.3d at 665. In that case, our
Supreme Court held that an initiative exceeded the initiative power in seeking to expand
the locations in the city where camping was banned. Id. at 690-91. Koetje argues that in
Jewels Helping Hands, “the initiative was improperly administrative because it ‘modifies
8 No. 87627-9-I/9
details of an already enacted general policy scheme,’ ” whereas the Initiative here
“actually repeals the entire policy enacting the tax.”
We are not persuaded by Koetje’s argument. First, the Initiative here did not
repeal a policy enacting a tax—it attempted to repeal Ordinance 2022-045 (Proposition
5), which authorized a special election for a levy lid lift, not Ordinance 2022-092, which
implemented the tax and the Fund.
Moreover, the only remaining portions of Ordinance 2022-045 were indeed
“details of an already enacted general policy scheme”—implementation guidelines for
the scheme actually enacted under Ordinance 2022-092. Ordinance 2022-045
contained nine sections. Section 1 provided for the submission of the proposition
authorizing a new property tax levy to the electorate at a special election “[t]o provide
necessary funding” for a Healthy Children’s Fund. Section 2 provided for the creation of
the Fund and indicated that the levy proceeds would be deposited there and used
exclusively for this Fund. Section 3 outlined the eligible expenditures for the fund.
Section 4 was the Fund’s implementation plan. Section 5 provided for auditing and
oversight of the Fund. Section 6 called for the special election on the levy lift. Sections
7-9 concerned the publishing of the ordinance itself.
Because the special election had already been held, sections 1 and 6 of
Ordinance 2022-045 could no longer be repealed. Consequently, the only “live” portions
of the ordinance concern administrative details such as where the levy proceeds would
be deposited (section 2), how the funds were to be used (section 3), how the Fund will
be implemented and administered by the Department of Health (section 4), and how the
Fund shall be audited (section 5). By the time the Initiative was introduced, the
9 No. 87627-9-I/10
Whatcom County Council had already executed contracts under the fund, passed
various additional ordinances implementing programs and services under the fund, and
committed “more than $1.6 million in funding for services, including a contract for more
than $800,000 to the Bellingham Food Bank and contracts for other health and
wellbeing services.” 7
Thus, like the initiatives in Jewels Helping Hands and Ruano, the Initiative here
“ ‘hinders[ ] [that] plan [that] the local government or some power superior to it has
previously adopted’ ” and thus “falls outside the scope of the local initiative power.”
Jewels Helping Hands, 4 Wn.3d at 692 (quoting Our Water-Our Choice!, 170 Wn.2d at
10). The trial court properly concluded that the Initiative was outside the scope of the
initiative powers.
B. Interference with County’s Budgetary Authority
Protect Whatcom Kids argues in the alternative that the Initiative exceeded its
scope because it interferes with the county council’s budgeting power. “Chapter 36.40
RCW establishes the limits on statutory delegation regarding county budgets and grants
the legislative authority to county councils to ‘fix and determine each item of the budget’
and to enact biennial, supplemental, and emergency budgets.” Freed, 192 Wn.2d at
483-84 (quoting RCW 36.40.080, .250). The authority of county councils to budget,
particularly for public health issues, includes both appropriating funds and determining
the use of such funds. See RCW 70.12.025; RCW 36.40.080. Thus, an initiative that
7 Along with its briefing, Protect Whatcom Kids filed a “Motion for Judicial Notice” and sought to
introduce evidence that was not before the trial court. In response, Koetje filed a “Motion to Strike.” We deny Protect Whatcom Kids’ motion and have not considered the additional information that post-dates the trial court ruling or the portions of their briefs relying on such information. See Jewels Helping Hands, 4 Wn.3d at 683 n.18 (denying motion, in post-election review of initiative, to take judicial notice of information post-dating the trial court proceedings that were unnecessary to resolving the case). Accordingly, we also deny Koetje’s motion to strike as moot.
10 No. 87627-9-I/11
“improperly interferes with the budgetary authority of the [County] Council . . . is outside
the scope of the local initiative power” and may be properly enjoined from the ballot.
Freed, 192 Wn.2d at 487.
In determining whether an initiative exceeds the initiative power by improperly
interfering with the budgetary authority of a county council, courts must consider the
“ultimate goal” of an initiative “[v]iewed in context.” See id. at 486. In Freed, the King
County Board of Health passed a resolution to, among other things, implement
community health engagement location sites across the county, which “would provide
opioid users with a place to safely use drugs, access to medical professionals who can
administer naloxone to help reverse overdoses, a needle exchange program, and a way
to connect to services and treatment.” Id. at 480. Freed filed Initiative 27 (“I-27”), which
“would prohibit the use of public funds for ‘registration, licensing, construction,
acquisition, transfer, authorization, use, or operation of a supervised drug consumption
site’; prohibit anyone from operating or maintaining any building that is used as a
supervised consumption site; and impose civil liability on anyone who violates the
initiative.” Id.
The Washington Supreme Court determined that the initiative exceeded the
initiative power because it interfered with the county’s budgeting power. Id. at 485-87. In
reaching that conclusion, the court first noted that “[o]ne of the five key points of I-27 is
to ‘[p]rotect[ ] taxpayers by prohibiting public financing of drug consumption sites.’ ” Id.
at 485. The resolution that I-27 sought to inhibit was one that “direct[ed] that over
$2,000,000 be used to implement the Task Force public health recommendations.” Id.
11 No. 87627-9-I/12
at 486. The court held that “[b]ecause [the ordinance] indicates how and where money
is to be spent, I-27’s aim is directly at budget appropriation.” Id.
Here, like the ordinance in Freed that I-27 sought to repeal, Ordinance 2022-045
(Proposition 5) indicates specifically how, how much, and where money collected by the
tax levy is to be spent. The Initiative purports to focus on protecting taxpayers by
repealing the “oppressive” and “burdensome tax” implemented under Proposition 5,
which Koetje contends “poses a tangible threat to our community” and “perpetuates an
unyielding cycle of financial strain” that “suffocate[s]” Whatcom County taxpayers. Thus,
as in Freed, where the initiative was not within proper scope of the initiative power
because it interfered with the county’s budgeting power, here too, the Initiative interferes
with the county council’s budgeting power and was properly excluded from the ballot
prior to election.
But Koetje argues that the analysis from Freed does not apply here because I-27
“actually tied the hands of the county council by limiting the permitted use of public
funds, unlike the initiative in this matter which limited the funds themselves.” Further,
Koetje argues that “the initiative at issue [here] does not direct the expenditure of funds
on specific budget items. It simply repeals authority to collect a tax.”
This argument is factually inaccurate, as the Initiative did not purport to “repeal[]
authority to collect a tax,” but instead sought to repeal the ordinance that required a
special election to allow collection of additional property taxes. And, as discussed
above, the only live sections of Ordinance 2022-045 (Proposition 5) directed the
expenditure of funds on specific budget items. Accordingly, the analysis in Freed, 192
Wn.2d at 486-87, applies and supports the conclusion that here, the Initiative interferes
12 No. 87627-9-I/13
with the county council’s budgeting authority and exceeded the scope of the initiative
power.
III. Injunctive Relief
Appellant argues that Protect Whatcom Kids failed to demonstrate a clear right or
an injury and therefore injunctive relief was inappropriate. We disagree.
We review trial court decisions on preliminary injunctions for abuse of discretion.
Huff v. Wyman, 184 Wn.2d 643, 648, 361 P.3d 727 (2015). To be entitled to injunctive
relief, a party must demonstrate “(a) a clear legal or equitable right, (b) a well-grounded
fear of immediate invasion of that right, and (c) that the act complained of will result in
actual and substantial injury.” Id. at 651. “Failure to establish any one of these
requirements results in a denial of the injunction.” Id.
Koetje alleges that Protect Whatcom Kids lacked a clear legal right to the
injunction it sought because the ballot title was accurate and the challenge to the ballot
title was untimely. But Protect Whatcom Kids’ challenge was not limited to the ballot
title. As addressed above, it challenged the Initiative’s scope. To determine whether a
party has a clear legal or equitable right to an injunction, Washington courts “ ‘examine[]
the likelihood that the moving party will win on the merits.’ ” Wyman, 184 Wn.2d at 652
(quoting Rabon v. City of Seattle, 135 Wn.2d 278, 285, 957 P.2d 621 (1998)). Because
there was a high likelihood Protect Whatcom Kids would prevail on the merits of its
scope challenge, it demonstrated a legal right to an injunction.
Koetje further argues, without substantiation, that Protect Whatcom Kids failed to
show substantial injury. We decline to consider this argument, as “[p]assing treatment of
an issue . . . is insufficient to merit judicial consideration.” Palmer v. Jensen, 81 Wn.
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App. 148, 153, 913 P.2d 413 (1996). We also reject Koetje’s suggestion that the
circumstances did not warrant the “transcendent and extraordinary remedy” 8 of an
injunction. To the contrary, when the Washington Supreme Court has held that an
initiative exceeds the scope of the initiative power, it has affirmed the remedy of
injunctive relief preventing the initiative from appearing on the ballot. See, e.g., Freed,
192 Wn.2d at 487; Seattle Bldg. & Const. Trades Council v. City of Seattle, 94 Wn.2d
740, 745, 620 P.2d 82 (1980). The trial court did not err in granting injunctive relief here.
CONCLUSION
We affirm.
WE CONCUR:
8 Wyman, 184 Wn.2d at 648.