Coal Free Bellingham: Point Proven?

Questions raised by the Superior Court’s barring of the Bellingham Community Bill of Rights initiative from being placed on the ballot.

Questions raised by the Superior Court’s barring of the Bellingham Community Bill of Rights initiative from being placed on the ballot.

Did the powers-that-be, including the City of Bellingham (COB), Warren Buffet’s Burlington Northern Sante Fe Railway Company (BNSF), and the Whatcom Superior Court System (Court) just prove Coal-Free Bellingham’s (CFB) point?

Is it true that there exists a systemic and structural dysfunction that has turned our government of the people, by the people, and for the people on its head?

Are CFB members correct when they state in their Bellingham Community Bill of Rights that, “the assertion of constitutional rights, including civil rights, by the legal constructions known as Corporations has fundamentally unbalanced our system of government?”

Are the legal tools available to “we the people” inadequate to prevent the destruction of our own communities - leaving us without any genuine local control?

Has the current system enabled certain businesses to decide policies that are supposed to regulate those very same businesses?  Are land use guidelines overly influenced by developers and other businesses that profit from development?  Are energy strategies and regulations determined by energy corporations?  And do financial conglomerates essentially establish our nation’s financial and economic plans?

Has the current system actually placed municipal corporations, like our own COB, on the same side as for-profit corporate entities, thereby requiring our electeds to actually defend the rights of these businesses over our own?

And is our court system really designed to prevent cities like Bellingham from screwing with the laws that place corporations above the people?

These are the claims made by the sponsors of the Bellingham Community Bill of Rights initiative.  And when you consider that on Aug 3rd the Court essentially precluded a duly qualified citizen initiative from appearing on the November ballot, you’ve gotta ask yourself: 

  • Did the powers-that-be just prove CFB’s point?

As CFB emphasizes in its legal filings, under Washington's initiative laws the only “pre-election” challenges allowed are those that involve:

a) whether the proposed ordinance is administrative, as opposed to legislative; or

b) whether the initiative is a power of the municipal government, rather than the municipality as a whole. 

Legal “pre-election” challenges do not include those concerned with whether the initiative will withstand post-election constitutional scrutiny or whether the ordinance potentially conflicts with established federal or state law. 

According to CFB, “The other interest underlying the prohibition on substantive pre-election challenges to initiatives is that such challenges hinder the evolution of the law.  Law changes to reflect new social standards, especially in the recognition of expanded horizons for equality and protection of rights.  Allowing substantive pre-election challenges stunts that process, renders the law static, and places residents entirely at the whim of their elected officials as to moving new laws forward.  Proposals for new laws that are unpopular with governments never emerge from the discussion between people and their elected officials, and necessary movements towards change in legal structures are stillborn.  Waiting for government institutions to act on their own, especially when needed change runs contrary to the vested interests of government officials (and the interests they represent in many locations), would guarantee the doctrines of ‘separate but equal’ and ‘women as property’ would have remained the law of the land.”

Are the actions taken by COB, BNSF and the Court indicative of systemic and structural dysfunction?

Do we need the CFB Bill of Rights initiative on the ballot so that these critical questions can be answered?    

Attached Files

About Larry Horowitz

Commenting member • Member since Jan 16, 2008

Comments by Readers

Douglas Smith

Aug 09, 2012



David Camp

Aug 10, 2012

Good points all, Larry. Why not let the people speak, and then do as they say? Isn’t this what representative democracy is supposed to be about?

How is it that the basic precept of US law, that government flows from the people, has been turned on its head so that the only flow from the people is the taxes to sustain an always-growing government?

Councilor Lilliquist has done us all a service by demonstrating how far our constitutional government has strayed from its governing law. By defending its unconstitutionality, he has explained how we citizens have been rendered inconsequential other than as a source of revenue. Bend over here comes another triple-inflationary increase in your sewer and water tax bill to pay for sewer capacity for fictitious people. Now go back to work so you can continue to pay for it while every day we degrade your city and tell you why you can’t do anything about it. All flowery and legalistic and grammatical.


David MacLeod

Aug 10, 2012

That’s an awful lot of questions, Larry!
No. Yes. Yes. Yes. No. Yes. Yes. Yes. Yes. No. No.

I hope that’s clear. I consider many of the people involved in the Coal Free Bellingham group to be friends and colleagues in sustainability work. Though I believe their hearts are in the right place, I have not been comfortable with the direction of this particular PAC.

I encourage everyone to read Michael Lilliquist’s email letter to constituents.  You can find it in the August issue of the Whatcom Watch, or at the Herald’s Politics blog here:

Slow down, pour a cup of coffee, and read the full text carefully (in non-reactionary mode if possible). I found his reasoning to be cogent and compelling. A few excerpts and summarizing a few of his points below.

Lilliquist writes, “The problem is, as I see it, Prop 2 creates the wrong conflict between the wrong parties. It puts the City government in harm’s way, and will do little of practical effect to stop the coal train and shipping terminal. I say this for two general reasons. First, the initiative is doomed to being overturned in court; and second, the initiative distracts and weakens the ability of the City of Bellingham to deal effectively with this issue. And finally, it is a tactical and political blunder, by forcing a sympathetic City Council to raise procedural and legal roadblocks, rather than strengthening the Council’s hand to act on your behalf.

“In short, in my view, Proposition 2 is legally, practically, tactically, politically, and philosophically flawed. I wish it were otherwise.”

Lilliquist then proceeds to back up each of those points.

It is legally flawed because a) the people can’t pass state or federal laws through municipal ordinance; b) an initiative needs to have just one issue to vote on, not two or three; c) the constitution put interstate commerce in the sole jurisdiction of the federal government; d) “Now you may not care whether it is “legal” or not, but as your elected official I have to care very much about exposing the City to costly and losing lawsuits…Facing the loss of tax-payer dollars to pay the legal bill for both sides, I felt compelled to act.”; e) if passed, this proposition would no doubt be overturned, and where would that get us?

It is practically flawed because the influence of corporations in our political and legal regulatory systems is a national problem that calls for a national solution. This proposition is instead designed as a showdown between local and federal government.

It is tactically flawed because, as pointed out in the quote above, it distracts and weakens the COB from addressing the trains and terminal issue in ways they can be most effective and forces resources to be used dealing with this proposition.

It is politically flawed because it divides those fighting the common cause of coal trains and terminal. [The CFB group in their response to Lilliquist acknowledge that we have one of the most progressive councils in our history, but they take pride in saying their initiative “cleaves the political/legal stuff down the middle and forces people to choose sides.” Living Democracy mentor from Portland, Paul Cienfuegos advised in a letter to Cascadia Weekly that Bellingham residents should elect a new council - ironic that outsiders are advising us how to vote so that we might have local control.] 

It is philosophically flawed because “The central problem with Prop 2 is that it pits one democratically elected government against another democratically-elected government…It creates a constitutional showdown not over the issue of corporate influence or property-based rights, but rather a show-down between federal and local government. This is the wrong constitutional showdown, because a victory will bolster the dangerous states-rights agenda while not directly affecting corporation’s legal status.”

The last paragraph above really gets at the nub of what most concerns me about the CELDF/CFB approach. Even if there was success at achieving local power of the sort they imagine, it would be quite another huge and extraordinary leap to think that would mean we would collectively act to protect our local ecosystems. For example, how is BNSF, or Goldman Sachs preventing us from protecting Lake Whatcom?

I hope you’ll read his full text - I haven’t done it justice here. CFB also wrote a long response, also published in Whatcom Watch. Unfortunately, they only touched on a couple of Michael’s points, and for me did not adequately address his concerns. Even though Michael was open and progressive enough to kindly attend their Democracy School, CELDF Executive Director Thomas Linzey is quoted with unkind words. Unfortunate.

I agree with Michael Lilliquist that there are other means that have a greater chance of success in stopping the coal trains and terminal. And there are better ways to address the issues of corporate influence and the degradation of the biosphere that all of life on earth is dependent upon.


Larry Horowitz

Aug 10, 2012


As always thanks for sharing your articulate comments.

I’m a little disappointed though that you didn’t share Coal-Free Bellingham’s response to Michael’s email.  For those interested, you can find CFB’s response on the CFB website here:

But here’s my problem with Michael’s claims: They don’t address the issue regarding “pre-election” challenges to initiatives, which are very limited as already addressed by CFB’s legal filings.

On the other hand, Michael’s arguments are better suited for dealing with whether to vote in favor of or against the Bellingham Community Bill of Rights AFTER THE INITIATIVE IS PLACED ON THE BALLOT.

The issue is a legal one.  Do any of Michael’s arguments satisfy the 2 tests imposed by WA courts?  I don’t believe they do, and, therefore, none of Michael claims are valid reasons to deny placing a duly qualified citizen initiative on the ballot. 

These 2 tests are described in questions 13 and 14 on page 26 of the “Initiative & Referendum Guide for WA City & Charter Counties” here:

It’s one thing to disagree with - and vote against - an initiative.  It’s another to illegally prevent a valid initiative from being placed on the ballot. 

That’s the issue currently at hand.


John Hatten

Aug 11, 2012

Without much thought, I contacted the City Council several weeks ago to urge them to support the Coal Free initiative. When Michael Lilliquist replied with nearly 3,000 words, I read each one and was impressed with the thought, care and logic of what he wrote.  I appreciated it, and when I saw him a short time later, I told him so and thanked him.

Then, shortly thereafter, I listened to Paul Cienfuegos speak and realized that while the logic of Michael Lilliquist’s argument was sound to a point, it misses a far more critical point:  When our government (city, county, state, federal or international) makes laws or enforces policies that are in violation of basic human and environmental dignities, rights and safety, then every voice needs to be raised to object. For the City of Bellingham to NOT take up the call of the PEOPLE of Bellingham to protect not just the interests of our OWN community, but that of all communities and ecosystems, they are lacking both courage and foresight.

We all need to be courageous as we help to build the movement toward greater justice and against corporate personhood.

I admit that at first I was skeptical of Paul’s point that “We the People” need to make laws within our own communities that buck the laws of state and federal government. I asked, “What about laws that localities or state governments make restricting voting rights of non-whites, and other such laws that restrict freedom?  Doesn’t there need to be a greater law that keeps such local laws in check?” and “What about individual landowners who want local laws that allow them to destroy the habitat of endangered species in order to further their own livelihood?”

The answers aren’t always easy. We sometimes need considerable patience, willingness to listen to and appreciate others who seem to disagree with us, and ability to work together. But the bottom line is that we must never accept injustice human or environmental. We must be willing to actively participate in our communities to ensure our representatives are representing OUR interests.

We, the citizens of Bellingham, and our city council should all be supporting this citizen’s initiative, DESPITE the concerns raised by Michael Lilliquist and others, because it is the right thing to do. We need to let it be known that WE don’t accept corporate personhood despite the current U.S. Supreme Court ruling to the contrary.  WE don’t accept coal burning as a way toward a healthy future for upcoming generations.  WE don’t accept that these battles need to be won just in Olympia or Washington, D.C.  We can and should work to win - right here in our own community.

As far as Paul Cienfuegos being an outsider telling us what to do, Paul’s parents, sister and her family are long-time Bellingham residents, and Paul is a frequent visitor here. I value his insights and don’t consider him an outsider at all. Even if he wasn’t so closely connected to Bellingham, it’s okay to embrace wisdom wherever it comes from.

And to the point of having a very progressive city council - I agree.  Paul’s point here is that if one’s local government loses sight of the underlying principles representative government, even it’s a progressive city council, they need to hear from the voters both immediately, and if necessary, at the ballot.

The challenges of keeping the SSA Marine proposal from being implemented are many. While we don’t want to be fighting ourselves, at the same time, we need to let our voice be heard that WE don’t accept the personhood of BNSF, Goldman Sachs, or any other corporation, nor the rights of corporations to further damage our global environment.

We need to continue to move on ALL fronts for a safe and sustainable city and planet.


John Watts

Aug 11, 2012

So many questions, so little time, particularly in a situation so rife with passion and fraught with non-sound byte answers!
Lilliquist’s answers need to be heard, especially in the context with which the City Council must operate - if it is to fairly represent ALL citizens, consistently and reasonably.
The core backers of CFB knew -and know- they were promising far more than could be delivered, yet they pressed -and are still pressing- a flawed initiative anyway. Isn’t that a wee bit disingenuous?
As relatively progressive as WA laws are, there are always ways to attempt using them to deceive, divide and create dissension, all of which are integral parts of free discussion. [Tim Eyman comes to mind]
But, if there are areas of clear and avoidable problems with any measure advocated, wouldn’t you like to know about them in advance of actually voting on them?
That’s what declaratory judgements are for; to clarify the laws and regulations that have already been duly passed and are essential to continued responsible governance.
It’s always OK to propose changes in law and rights, but to do so must honor existing conditions and not simply deny them! Otherwise, we’re talking about some dysfunctional dictatorship, or worse.
Core CFB backers seem to have invested a little too much ego into their so obviously flawed effort to actually admit any defeat, as evidenced by the appeal they have filed. That, alone should be sufficient reason for the City Council to defer putting any alternate measure on the ballot.
It is mystifying to see the reluctance CFB has in accepting the success it has achieved in raising public opinion, and simply continuing that laudable effort with vigor through other means.
After all, this fight is more like an Olympic team marathon than it is an individual sprint to some wishful result.
What would be most helpful is to generate meaningful input for inclusion in the EIS, then facilitate as many concerned citizens as possible to submit their comments soon. That should become CFB’s next goal!


David MacLeod

Aug 11, 2012

Larry, thanks for adding the link to the CFB response. I had it in email form, and also from Whatcom Watch, this month’s issue not yet available online.

I did stray a little bit from the legal issue as you raised it, but note that I did answer each and every one of your questions! 😊

I appreciated John Stark’s coverage of the legal hearing. Judge Snyder’s process and comments made sense to me. “Snyder contended he was well within established state precedents in blocking an initiative that attempted to give the city legal powers it cannot exercise under state and federal law.

“The city has no right to act illegally,” Snyder said. “The city has the legal right to come to court and say, ‘Don’t make us do something that is against the law.’”

Read more here:

I also think Tim Johnson did a great job covering the hearing and the following city council meeting in his column this week.

“Citizens have the right under the city charter to propose laws that are lawful and are within the city’s authority to enact, Snyder found, but severing the lawful from the unlawful—or just plain awful—parts of Prop. 2 would render the ballot title, the description of what the law proposes, misleading and deceptive. So severed, the law would not do what voters believed it would do if they approved it.
The proposed ban on coal trains differs from last year’s red-light camera ban in two important respects: First, what it proposes is clearly not within the city’s recognized power to decide. Second, city officials took no action and did not ask for injunctive relief to strike the earlier initiative from the ballot.
The Bill of Rights’ nullification strategy—to in effect dismiss federal and state authority and create an entirely new municipal regulatory and enforcement framework—is as constitutionally bankrupt as a Confederate C-note. Even if a small town of citizens could unilaterally unwind the federalist model, would they really want to? The nation’s environmental laws and protections are predicated on constitutional provisions, enforced through the power of Congress to regulate commercial activity. Meanwhile, the state’s shoreline and critical areas protections, despite shortcomings, are among the most robust in the country.”
Read more:

John Hatten, I agree that we need to let it be known that we don’t accept corporate personhood. I differ with CFB on the means to do that that have the higher likelihood of being effective. Again, Tim Johnson also commented about the most effective means to address the deeper issue around corporate power. He said the attempts of CFB are laudable, but “were frankly handled more adroitly earlier this summer by a council resolution and petition to Congress.”

I love the people involved with CFB. We all care deeply about this beautiful corner of the world. I am writing here because I think it is important to consider some additional perspectives than what CFB is offering.

I agree with John Watts’ comment above: “What would be most helpful is to generate meaningful input for inclusion in the EIS, then facilitate as many concerned citizens as possible to submit their comments soon. That should become CFB’s next goal!”

And as Terry Bornemann put it: ““Right now is the time for the community to come together on the scoping process. This is the process that we can work on and we can do.”

Call Dept. of Ecology Director Ted Sturdevant at 360-407-7001 and the Army Corp of Engineers at 202-761-5903. Let them know your position and ask for a full Programmatic Environmental Impact Statement across the region of the dangerous coal export terminals in Oregon and Washington.


Larry Horowitz

Aug 11, 2012

David M.,

Notwithstanding Judge Synder’s contention, there is existing case law that substantive challenges regarding the validity of initiatives are never proper PRIOR to an election.  CFB cites three cases (Coppernoll v. Reed, Seattle Bldg & Const. Trades Council v. City of Seattle, and State ex rel. O’Connell v. Kramer) which:

1) Affirmed the “longstanding rule of our jurisprudence that we refrain from inquiring into the validity of a proposed law, including an initiative or referendum, before it has been enacted;”

2) Declared that “the courts should not interfere in the electoral or legislative processes;” and

3) Declared that the validity of proposed initiatives “should not come before us unless and until the people have enacted the measure into law, for the Supreme Court does not render advisory opinions.”

If you haven’t already, I suggest you read CFB’s “Memorandum in Support of Special Motion to Strike under RCW 4.24.525.”  I would be happy to forward a copy to you if you’ll contact me by email or phone.

(Or perhaps Mr. Servais could upload a copy, which I’ll forward to him, for all to see.)

There seems to be an inordinate number of constitutional experts making all kinds of claims about the validity or invalidity of CFB’s ordinance.  I didn’t realize we were so well endowed with such expertise. 

Here’s another question: For all concerned (both now and in the future), wouldn’t it be better to allow a duly qualified citizen initiative to be voted on BEFORE the pundits make their cases?



Larry Horowitz

Aug 11, 2012

The link to the “CFB Memorandum Supporting Motion to Strike” is now listed under “Attached Files” following my article and before the “Comments” section.  (Thanks to Mr. Servais and Mr. Johnson.)


Paul deArmond

Aug 12, 2012

Larry, the answers to your two final questions are no and no.

Are the actions so far indicative of dysfunction?  No.  The judicial appeal process is underway.  It may not be granted because of the extreme time constraints, but the process is functionally normally.  If you are not getting the result you desire, it’s not a sign that things aren’t working right, only that they aren’t working your way.

Do we need the initiative on the ballot so controversy can be resolved?  No.  First of all because it it was on the ballot, the controversy would continue.  Passed or failed, the initiative is grounded on the principle of nullification in every portion of the ordinance.

The first paragraph of the Findings and Intent of the initiative state it:  “nullifies state and federal laws, constitutional provisions, permits, and other authorizations which interfere with the rights secured by this ordinance.”

At this point, any competent court is done, the plaintiffs get their restraining order and the initiative will not be on the ballot unless they prevail through the appeal process. 

Nullification has a been a dead letter in American law since the 1830s.  Soreheads have tried to revive it twice.  the first time caused the Civil War and the second time was in the 1960s when there was a flurry of southern states nullification legislation attempting to block federal civil rights laws.

The severability clause doesn’t get the initiative off the hook if the actions proposed are not granted by the city charter and state constitution initiative powers.  And nullification of state and federal law is not an initiative power anywhere in the United States.


The Nullification Crisis of 1832:

That’s just at the beginning of the initiative. At the end of the initiative there is a repealer clause that offhandedly says:  “All inconsistent provisions of prior Ordinances adopted by the City of Bellingham are hereby repealed, but only to the extent necessary to remedy the inconsistency.” 

This is not just sloppy and lazy, but it facially invalidates the initiative because the standard of legal practice is the initiative must specify not only the ordinances affected, but propose new language to bring them into line with the initiative. 

It’s messy and takes up a lot of work, time and ink.  But it’s necessary in the text of the initiative so the citizens know what they will get for their vote.

So I’m not surprised that Judge Snyder blocked the initiative from the ballot.

The proponents are pursuing the appeal process and if that doesn’t work, they should continue their organizing and community education, draft another initiative and take another turn in the barrel.


In a later comment, Larry says “There seems to be an inordinate number of constitutional experts making all kinds of claims about the validity or invalidity of CFB’s ordinance.  I didn’t realize we were so well endowed with such expertise.”

If this is sarcasm, it’s misplaced.  I believe it is the duty of every citizen to learn as much of the law as they can.  The sovereignty of a federal republic lies in its citizens.  They are the ultimate repository of legislative, executive and judicial knowledge. As such, the citizens are the ultimate guarantors of the republic.

We delegate these roles to legislators, government departments, judges and attorneys, but that does not relieve the citizenship of their duty and obligation to be knowledgeable, informed and capable of exercising judgement in all matters of government.


Larry Horowitz

Aug 12, 2012

(Until I improve my HTML skills, please pardon my use of CAPS to provide emphasis.)


Thanks for your insights and the education on the nullification issue.

Regarding my comment about the validity, or invalidity, of CFB’s ordinance, I stand by it.  While CFB’s proposed ORDINANCE may turn out to be invalid, such invalidity cannot be addressed until AFTER the INITIATIVE is approved.  If the initiative is not approved, then the point is moot. 

But, we cannot keep duly qualified citizen initiatives from being placed on the ballot as a result of pre-election challenges that fail the two tests established by the courts.  Denying qualified initiatives from being placed on the ballot is more damaging and detrimental than voter approval of an invalid ordinance (which can be challenged after the election).  It is this denial of citizen rights that is dysfunctional.

What’s at stake is the sanctity of the initiative process itself, not whether Bellingham can prevent coal trains from passing through the city. 

Shouldn’t we all fight to ensure citizens retain the power to adopt new legislation?  Would we rather wait (and wait, and wait) for government institutions to act on their own when needed change runs contrary to the vested interest of government officials?


Paul deArmond

Aug 12, 2012

The right of initiative is not threatened by this ruling.

One of the cites (#3 @ 25 on pg 5) in the CFB Memorandum linked in the post very clearly demonstrates that initiatives can be kept off the ballot.  The case is Priorities First v. City of Spokane.


Larry Horowitz

Aug 12, 2012

The following comment is from Rick Dubrow, Chair of Coal-Free Bellingham and the NO COAL! Political Action Committee, in response to the post by John Watts:

Hi John,

Thought I’d share my own take as one the CFB leaders.

You wrote…

“The core backers of CFB knew -and know- they were promising far more than could be delivered, yet they pressed -and are still pressing- a flawed initiative anyway. Isn’t that a wee bit disingenuous?”  and “Core CFB backers seem to have invested a little too much ego into their so obviously flawed effort to actually admit any defeat, as evidenced by the appeal they have filed.”

Is it disingenuous to reach for a goal so far from reach? Do you think Linzey is wrong to state that re-balancing the power of people versus the corporation may take a few decades at best? 

Is it disingenuous for a teenager to watch the Olympics and tell his folks that someday he wants to be amidst the fastest humans on earth?  Do you think Rosa Parks believed her choice of seats would change American culture?

Our work is civil disobedience; it is a huge reach.  And you dare call it disingenuous.  I have yet to meet a group of more committed, intelligent, genuine human beings, your wife amidst them.

And we know that darts from people who disbelieve the relevancy of our work are just like the barbs initiated against suffragists and abolishionists.  Your words resonate with the words we hear from the progressive left who continue to believe in a system that is providing too little, too late.

Yes, our work may be too much, too soon, John, and our appeal seeks to hammer and hammer and hammer against a system that cannot step up to the task at hand… because the system is designed by those who want it to fail by sucking its advocates dry writing letters and who think that awareness will change this insane system. 

CFB does not believe that to continue politely asking Monsanto to stop what it’s doing will find them doing something different.  We’re losing the war at a pace that warrants extreme measures; ours is one of them.

Clearly our work swings too far for you; we’re trying to design teeth that might work.  They are working elsewhere and if our genuine efforts, using these proven tools that have worked elsewhere can somehow find traction on the ground, here, then perhaps nature will find its critically needed rights.  Until human law is aligned with natural law, we’re doomed.

CFB is a group of warriors fighting for mother earth and to call this work disingenuous is very, very weak.

Rick Dubrow, Chairman
NO COAL! Political Action Committee


John Watts

Aug 12, 2012

My response to Rick Dubrow’s response follows:


Thank you for your comments, and your efforts.
I AM considering a different perspective, in fact several besides the path CFB has chosen.
Maybe some of these will actually work, and without creating expectations that are not aligned with reality.
Why not consider using other tools besides a hammer?
As for warriors; President Andrew [Stonewall] Jackson, certainly fought hard against the hot-headed ‘nullifiers’  of his day.
And, thank goodness he did!
All labels and chosen perspectives/methods aside, we don’t disagree on our more immediate goal regarding GPT, do we?
Please remember that.


PS Feel free to share this with whomever you wish.
NY Mayor Ed Koch response to reporter Andrew Kirtzman comes to mind, especially regarding the difficulty some are experiencing in understanding arguments contrary to their wishes:

“I can explain this to you; I can’t comprehend it for you.”


Larry Horowitz

Aug 12, 2012


Your point re: Priorities First is well taken; however, the more recent Coppernoll v. Reed, decided in Sep 2005, appears to be more dispositive.

In Coppernoll, the court found:

“Preelection challenges to statewide initiatives and referenda fit into three categories:
‘(1) the measure, if passed, would be substantively invalid because it conflicts with a federal or state constitutional . . . provision;
(2) the procedural requirements for placing the measure on the ballot have not been met; and
(3) the subject matter is not proper for direct legislation.’

“The first type of challenge, substantive invalidity, is not allowed in this state because of the constitutional preeminence of the right of initiative.

“In further support of this rule, scholars have noted that substantive preelection review, where allowed in other states, ‘involves issuing an advisory opinion, violates ripeness requirements, undermines the policy of avoiding unnecessary constitutional questions, and constitutes unwarranted judicial interference with a legislative process.’

“Because ballot measures are often used to express popular will and to send a message to elected representatives (regardless of potential subsequent invalidation of the measure), substantive preelection review may also unduly infringe on free speech values.”


Paul deArmond

Aug 13, 2012

Since we are now discussing appellate issues, I have to assume that there is not a structural dysfunction that has turned our government on its head.

In Coppernoll, there is a cite to a much more precise analogy to the current controversy:

Philadelphia II v Gregoire (PDF)

It was a Superior Court smackdown on the grounds that local initiatives can’t pass federal legislation and that substantive pre-election review is appropriate in such cases.

My guess is that the appeal will fail and Coal Free Bellingham will pick themselves up and have another go at it.  The initiative has been a tremendous success in putting the issue in the public spotlight.


Todd Granger

Aug 13, 2012

CFB members should read the 14th Amendment; Section 1,“All persons…” also includes Warren Buffet. Section 4
“The validity of the public debt of the United States…shall not be questioned.  be questioned.”

And Lincolns Greenback Dollar?

How much did that education, made in China cost?



Larry Horowitz

Aug 13, 2012


It appears we’ll simply have to agree to disagree.

Note that the “structural dysfunction” has more to do with corporate personhood than the municipal corporation’s attempts to prevent the initiative from being placed on the ballot.  One should not conclude that there is no structural dysfunction because an initiative becomes an appellate issue.  That is hardly the point.

Philadelphia II v. Gregoire was decided in Feb 1996, more than 9 years before Coppernoll.  The court in Coppernoll considered Philadelphia II in its findings and concluded that pre-election challenges for substantive invalidity “is not allowed in this state.”  I’ll stick with Coppernoll’s conclusion since it already considers Philadelphia II.


Tip Johnson

Aug 13, 2012

I doubt we can stop the train from taking anything it wants wherever it wants to.  They have been writing the law for 200 years.  Furthermore, it doesn’t take much considering to wonder whether nullifying the commerce clause might do more harm than good.

If we are going to stop coal exports from Whatcom County, it will be by stopping the terminal or the dock.  Unfortunately, those have some momentum from years of planning and political support.  It sounds hard, but not as impossible as rewriting the US constitution through a local initiative.

There are even advantages to corporations being persons, especially for assigning liability.  The real problem is that they are controlling elections and elected so-called representatives in congress have become a whorporation.

If we could keep contributions coming only from registered voters, half the problem would be solved.


Larry Horowitz

Aug 13, 2012


I agree.  Like any initiative, CFB’s Bellingham Community Bill of Rights, is not perfect.  As I see it, there are two issues:

1) Did CFB’s initiative meet the legal requirements to be placed on the ballot?
2) Is CFB’s initiative worthy of voter approval?

Regarding the first issue, I am reminded of Evelyn Beatrice Hall’s remark concerning freedom of speech:  “I disapprove of what you say, but I will defend to the death your right to say it.”  Whether one agrees with CFB’s initiative or not, it’s essential that we defend CFB’s right to place a duly qualified citizen initiative on the ballot.  Who knows, the next imperfect initiative might just be yours.

Regarding the second issue, you, Michael Lilliquist, David MacLeod, John Watts, and others have valid arguments to vote against the initiative, once it has been placed on the ballot.  That being said, members of CFB, including retired WWU Political Science professor David Maas, Colin Patrick, Morgan McCartor, Stoney Bird, Rick Dubrow and others have valid points as well.

Wouldn’t it be nice to have a robust dialogue about CFB’s initiative?  That’s what we’d have if the initiative was on the ballot. 

Put the damn thing on the ballot, and let the debate begin!


Suzanne Ravet

Aug 17, 2012

Why I support the CFB Community Bill of Rights:


“The best way to get a bad law repealed is to enforce it strictly.”  Abraham Lincoln

I believe this quote sums up one of the main purposes of the CFB Community Bill of Rights. 

We are currently in a situation where our elected officials are required to uphold laws which have been manipulated and molded by ‘piles of money’, not people, for the past 100 plus years.  Many if not most people didn’t sign Prop 2 because they felt that it would be enacted into law, they did it to protest the current structure of law (in hopes of changing that structure in the future).  This uproar exposes the depth or prejudice and the absolute inability for folks to protect their community and even property.  I hear more folks talk about the history of railroad tyranny (especially right wing folks) than ever before.  I hear labor folks talk about how we can’t stop the terminal from coming in, so we might as well ‘pick our poison’.  The second step, after opening to knowledge, is the willingness to ‘shatter’ our existing framework and then change to something that is actually humane. The majority is moving closer to that every day.  Personally, I’ve experienced being called names on the Bellingham Herald site and even had a guy verbally attack me while tabling.  The end results were good in both situations.  People came out of the crowd to my defense.  It called more attention to the issue and more desire to learn about why I was there and why I was willing to endure the assaults of others.  I’m just an average person, one who has spent some time and energy to try to figure out what is going on in this society albeit.  When average folks have the courage to challenge the law, our culture gets the necessary momentum to shift.  Finally, I’ve heard more conversation from retired people, doctors, teachers, accountants,  students, et. al. about their willingness to tie themselves to the tracks, especially after the judge declared in essence that we don’t even have the right to free speech.  That’s powerful stuff.  When we let go of fear, hope, and constructs that no longer fit, amazing things happen. 
Alas, there is a part of me still that wonders if there is a secondary objective of which we have yet to learn about, as these people/corporations are never transparent.  A Community Bill of Rights covers any future intent yet to be uncovered.  Expose away CFB….

2.  Sustainability Law:

“Let us have the candor to acknowledge that what we call “the economy” or “the free market” is less and less distinguishable from warfare.”  Wendell Berry

Transition Whatcom is an indispensable group focused on localization.  I admire what every person in that group is doing.  In reality, the work that Transition Whatcom is doing will make our very survival possible, should a major crisis happen.  However, current law makes what Transition Whatcom is doing illegal.  A culture based on economic Nationalization and Globalization will never be sustainable and never support human life and we all know it.  There’s a major drought in this country right now.  For our very survival, we must be able to supply food and water locally.  Unfortunately, we will never be able to truly secure nor keep safe our food and water under the current national and global laws.  Although I’m a good person and don’t mind helping others in a crisis, I certainly don’t want the Nestle Corporation buying up our water, selling it to Arizona, and then forcing us to purchase water from another city.  I’ve already lived through this very real scenario.  When I lived in Enumclaw, WA, the Nestle Co. wanted our spring water.  Nestle courted the mayor for a year in private.  The mayor didn’t even tell the city council.  The decision to lease the water to Nestle came out in the paper with a decision to be made by the city council within a week’s time.  Of course there were wonderful ads in the paper about a new sports complex, revenue, jobs, etc.  Nestle touted being a transparent and community centered co.  Nestle products were on sale, cheap, out front at the two local grocery stores.  It was an amazing and skillful production.  Fortunately, the folks in Enumclaw rose up and stopped this craziness.  From there Nestle worked on the other towns in South King County and Pierce County.  Unfortunately, city public utility officials told me that Nestle cans still set up a water bottling plant using municipal water in Enumclaw (not the spring water that they had intended to lease).  I hear that Anacortes is now in this same situation.  Sometimes, I wonder if we are just a big experiment for Goldman Sachs – to see how much money it will take to brainwash and immobilize the general public.  If we are to protect our home, we must have laws that support sustainability, because it is currently illegal to protect our community.  The CBR does just that.

3.  Claiming What We Want:

“Happy for us that when we find our constitutions defective and insufficient to secure the happiness of our people, we can assemble with all the coolness of philosophers and set it to rights, while every other nation on earth must have recourse to arms to amend or to restore their constitutions.”—Thomas Jefferson to C. W. F. Dumas, 1787. ME 6:295, Papers 12:113

What I like most about the CFB Community Bill of Rights is that it claims what we want.  We all know what we don’t want, but somehow we lack the courage and responsibility to claim what we do want.  US Law claims to be in place to prevent injustice, which it is sorely lacking in.  The 3 components of the initiative buttress and support one another.  Claiming what we want:  1) Ban coal trains (issue of safety)  2) Place corporate rights as subordinate to community rights (We can’t ban coal trains, unless we do this, as the current structure of law gives corporations more power than living, breathing people)  3) Give nature rights (this is essential, as otherwise we are saying that we think any community can just do whatever it wants,  including implement unjust laws, which isn’t the intention of the initiative.  It’s to claim more rights regarding safety and security and not less – to stop injustice).  These 3 work beautifully together.  For those folks who say, “what about communities banning such things as women’s right to vote”, I would say that is a fear based response lacking in imagination and inspiration.  We can maintain our Federal Civil Laws and even current regulatory systems, while increasing our local rights to safety and security.  In fact, our forefathers, as per the above quote, were very aware that a rigid and stagnant constitution was insufficient.  CFB challenges us to determine what we want for our very survival and then place that into law.
As for those who state that it is someone else’s responsibility to change the laws, change doesn’t come from the top down, it comes from the bottom up.  Susan B. Anthony, Martin Luther King, and Fredrick Douglas, and the list goes on…. didn’t wake up in the morning and say, “I wish somebody with more power would do the right thing”.  They got up every day and did the morally right thing with the knowledge that they were working for future generations.  Who knows what the outcomes of Prop 2 may be?  It’s possible that 10, 100, 1,000 more communities will rise up and claim what they want too, driving us to a place where we will start real change regarding laws that protect our safety and security.  In fact, that is already happening.  Prop 2 is a brilliant examination and voyage into the potential for a utopian future and livable planet.  We deserve so much better and it’s time to claim it.  Real change always begins with toiling and effort as communities rise and then seemingly something appears ‘magically’ to shift from the top down.  Prop 2 is that first stage root struggle and investigation.

4.  The Cost of Coercing a Community:

“I think we’re facing a very strong, almost revolutionary movement to try to get off oil worldwide, and it creates a lot of passion and drive in those revolutionaries that are trying to change the environment in which we work.”  Enbridge CEO, Patrick Daniel, regarding the Tar Sands opposition

The recent coalition of big business for ‘Terminals =  Jobs’ in the Pacific Northwest is scrambling and desperate.  Look at their advertisements on the TV, mailers, corporate sponsored yard signs, hired PR guy, door-to-door paid canvassers, and video at the recent city council meeting.  How much money have they spent on this already?  The reality for these corporations is that they are shelling out big, big money on public relations, only because they must. 
Welcome CFB (and all other groups fighting coal) today, tomorrow, next year, the year after, and so on – as corporate power will be required to pour more and more and more into their forlorn and desolate attempts to persuade a community to buy into its’ own demise and ruin.  No group fighting the impacts of coal is going away, in fact the very struggle makes us all grow stronger, more committed, and more forward thinking.  The quote regarding the Tar Sands above could apply very readily to the same situation with coal in PNW.  In fact, many anti-coal ‘sleeping giants’ along the train route from Montana to Bellingham have yet to weigh in.  This intricate web of coal opposition regulatory, economic, public opinion, corporate power, and/or nonviolent civil disobedience weaves a solid and resilient impediment to those who desire to destroy our community for their greed and profit.  The CBR may be a tactic, but it supports and binds a broader strategy.  I encourage our officials to let it run its’ due course as we watch these parasitic corporations scramble and squander more and more capital. 

Suzanne Ravet

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