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 The first is that in granting authority directly to the council, the state legislature has superseded the people’s right of initiative.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….
I hereby propose initiative #666: To place all matters, large and small and odoriferous, within the legal scope and parlance of initiatives. Entitled the “eyman for a better dystopia” initiative. (“…because elected officials cannot be trusted to conduct the important business of elected officials…”)
@1 Eyman already ran that initiative. It lost, with little fanfare, last November.
What will be really interesting is when Google Cars go into production negating the traditional taxi jobs, Uber jobs AND bus jobs.
http://en.wikipedia.org/wiki/Google_driverless_car
One thing I’m not following in your argument, Goldy, and I’m hoping you can spell out: What if the proposed referendum is both administrative AND legislative? You’ve argued – and Pete Holmes ha agreed – that absent this ordinance the rideshare industry is operating illegally. Wouldn’t legalizing it be legislative in nature? Or is it simply that the rideshares are illegal because they’re refusing to comply with the current administrative structure?
@4 It’s the latter. Under the existing ordinance, the TNCs are operating as for-hires, and thus operating illegally. The existing policy is to regulate for-hires. The new ordinance merely expands for-hire regulations in order to accommodate TNCs. But they are still for-hire.
@3 That’s just what our anemic economy needs…less jobs and more long term unemployed.
@6. I agree, but it’s not possible to fight technological change. It will happen. It’s happening right now.
The elephant in the room question is, what do we do with the unemployable people who cannot find meaningful work that pays a living wage. And this will grow every year. Will our society be socialist and pay for a floor they cannot go below, or be greedy and have a small number of wildly wealthy and a huge starving unstable underclass?
So, if they block enacting the TNC legislation do they pick and choose what parts get put on hold or will you also suspend the release of additional taxi licenses too ?
The plaintiffs have a strong case. In addition to the reasons Goldy cited, the new TNC rules are part of a two year pilot program, which makes these revisions temporary and therefore admnistrative.
According to this Washington State Initiative and Referendum Guide:
“This of course raises the question of what is an administrative action and what is a legislative action. The courts have applied two tests in making this determination. First, actions relating to subjects of a permanent and general character are usually regarded as legislative matters, and actions taken on subjects of a temporary and special character are usually regarded as administrative matters. Second, the power to be exercised is legislative in 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 or some power superior to it.”
For-Hire laws have of course been part of RCW and SMC for decades. The City Council just passed revisions to the existing SMC.
https://www.mrsc.org/publications/irg06.pdf
@8, the referendum just says yes or no to all the revisions to the existing law passed by the City Council. The fact that Uber and Lyft took the referendum route rather than an initiative shows that they really don’t want any regulation at all.
This approach of throwing out the baby with the bathwater ticked off the council members such as Tom Rasmussen who opposed the caps but supported the insurance requirements.