Various parties representing Seattle’s taxi and for-hire industry will be filing suit today in King County Superior Court seeking to block a referendum submitted by the so-called “ride-share” companies Uber, Lyft, and Sidecar. The referendum seeks to overturn Seattle’s recently passed ordinance that would legalize these app-based “transportation network companies,” but subject them to regulation and caps. The taxi industry argues that the referendum is outside the scope of the initiative process.
And they have a pretty damn strong case.
To win the relief they seek, the plaintiffs need to prevail on two points: that pre-election review of local initiatives and referenda is both proper and ripe, and that this referendum is outside the scope of local initiative powers.
The first point is a no-brainer. As Tim Eyman knows, local initiatives are blocked all the time. And since simply certifying the TNC’s referendum for the ballot blocks the ordinance from going into effect, there is no question about ripeness. Further, there is plenty of legal precedent for challenging a measure on scope once the ballot title has been assigned. Ripeness is an easy win for the plaintiffs.
On the second point, the plaintiffs make two arguments, one stronger than the other. The first is that in granting authority directly to the council, the state legislature has superseded the people’s right of initiative. That was the argument that killed Eyman’s local red light camera initiatives. But in the red light camera case, that exclusive authority was granted explicitly to local legislative bodies, where as the plaintiffs in this case argue that the exclusive authority is implicit based on the sort of administrative powers granted. There is legal precedent for this sort of implicit exclusivity, but it’s not an open and shut case.
But the second argument is much stronger. Initiatives and referenda are limited to subjects that are legislative only, whereas the recently passed taxi and for-hire ordinance is clearly administrative, seeking to carry out policy already enacted by the legislature and the city. In Seattle Bldg. & Constr. Trades Council v. City of Seattle, the court laid out the following test:
The power to be exercised is legislative in its nature if it prescribes a new policy or plan, whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it.
Both the state and the city had already adopted the policy to regulate the taxi and for-hire industry. Inspection, licensing, insurance, and caps are all currently in place. Indeed, under existing law, TNC operators are clearly defined as for-hire drivers. So there is little question that the recently passed ordinance seeks to administer existing policy rather than define a new one.
I’ve spent a lot of time covering such scope challenges (including that of my own “Horse’s Ass” initiative). The plaintiffs here have a very compelling case. If I had to bet money, I’d say the plaintiffs prevail.
And that’s something that Mayor Ed Murray and the city council should consider before caving in to TNC demands. Right now they are negotiating a compromise with the TNCs under threat of a referendum that would upend the entire ordinance. But if the referendum is outside the scope, then the TNCs have no leverage.
As for how the city should deal with the TNCs continued refusal to obey the law, well, Miami has an interesting solution….
