Nearly $100 million hangs in balance as the County Council launches a legal challenge weeks before the deadline to put the measure on the November ballot
The Whatcom County Council’s decision to ask a Superior Court judge to answer questions about the validity of a group’s effort to repeal a countywide child care tax puts the council in new territory as it faces a fast-approaching deadline.
A split county council voted 4–2 on July 9 to turn to the courts, with Tyler Byrd abstaining. Ben Elenbaas and Mark Stremler voted no.
Council member Todd Donovan said it marked the first such legal challenge since he was elected to the county council in 2015 and the first that he recalled in 30 years of living in Whatcom County.
“This is all new to everybody,” Donovan said.
The council needs an answer soon. Aug. 6 is the Whatcom County Auditor’s deadline for placing the repeal measure on the ballot for the Nov. 5 general election.
“The clock is ticking,” Donovan said.
Background
Approved by Whatcom County voters in November 2022 by a razor-thin 20 votes, Proposition 5, also known as the Healthy Children’s Fund, is expected to raise nearly $100 million in property taxes over 10 years for child care, early learning and programs that help vulnerable children.
It raised property taxes by 19 cents per $1,000 of assessed value, meaning the owner of a $500,000 home is paying $95 more annually, starting in 2023.
In June, Washingtonians for a Sound Economy turned in enough signatures for an initiative to repeal Proposition 5. The Lynden-based political action committee couldn’t be reached for comment.
An initiative is for new laws, while a referendum is to change or repeal existing laws, according to numerous sources who point to the county’s charter — akin to a county constitution — as well as an advisory memo, and an initiatives and referendum handbook from the auditor’s office.
One difference is that proponents of an initiative need to gather 6,392 verifiable signatures from voters registered in Whatcom County, while a referendum requires 11,034 such signatures.
“That’s purposeful so that we aren’t enacting, un-enacting, you know flip-flopping,” said Eileen McCracken, president of the League of Women Voters of Bellingham/Whatcom County, of the higher number of signatures for referendums.
The group gave the auditor’s office 9,620 signatures.
McCracken said the league noticed the difference while researching the charter as part of its efforts to educate the public, because this is the year voters will elect people to the county Charter Review Commission.
McCracken described the league as a nonpartisan but political organization. It doesn’t support parties or candidates but does take a stand on issues, such as the Healthy Children’s Fund, which the league supports.
“But this is a process issue for us,” McCracken said.
Going to court
The power to launch a drive for an initiative or referendum rests with voters.
The county charter also lays out what the county council can do when an initiative or referendum is sent to members after the auditor’s office has verified that it has enough signatures.
The council may:
- put the measure on the ballot.
- do nothing, which essentially puts the measure on the ballot.
- put a competing measure on the ballot.
What it can’t do is refuse to put the measure on the ballot because they believe, as Donovan and some of the other council members do, that the wrong process was used.
That, and other concerns noted by the council, will be decided by a Superior Court judge.
To get there, the council has to hire an outside attorney because the prosecuting attorney’s office, which represents the council and the residents of Whatcom County, said representing the council in this matter would be a conflict of interest.
Hiring an outside attorney could cost as much as $100,000, George Roche, a deputy prosecutor for Whatcom County, told the council earlier in July.
How long might it take to get an attorney and a court ruling? No one knows, though everyone agreed the timeline will be tight. But Roche said he believed the courts will try to resolve the legal issue quickly based on case law that prioritizes courts doing so.
A question of trust
“It’s important we know the right process is being used,” said Donovan, a political science professor at Western Washington University. “That’s, at least, my concern.”
But other council members warned against eroding public trust by taking such action prior to an election — the initiative also could be challenged in court after the election — saying Washingtonians for a Sound Economy did their best based on the guidance they were given.
“At the end of the day, it will all get hashed out,” Elenbaas said. “It’s just whether people will feel like they were heard or not.”
About that guidance. County officials said the auditor’s office can’t tell the public whether to focus on an initiative or a referendum, though they do provide written guidelines.
“The county auditor and staff (do) not have the legal expertise to advise citizens on these matters,” Stacy Henthorn, county auditor, said. “Specific questions about legality of a proposed initiative or referendum should be directed to an attorney licensed to practice law in Washington state.”
It’s unknown why initiative sponsors decided to choose an initiative rather than a referendum in their repeal effort.
As for the county council, members also started the process to put the repeal initiative on this November’s ballot by introducing it on July 9.
“What’s it going to hurt to put this on the ballot? Nothing. In fact, that’s our charge, is to put it on the ballot,” Elenbaas said prior to the council’s decision.
Council members will vote on putting the repeal initiative before voters at its next meeting on July 23 — even as they wait on the courts and the auditor’s August deadline looms.
“If this doesn’t happen quickly enough,” Donovan said, “then it likely would be on the ballot.”
— By Kie Relyea
Ed.: Reporter Kie Relyea’s partner works for United Way of Whatcom County, which endorsed the Healthy Children’s Fund.