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County council challenges validity of Healthy Children’s Fund repeal initiative

Measure could simultaneously go to ballot and to judge

A clerk at the auditor's office checks signatures from the Repeal Prop 5 (Healthy Children's Fund) ballot initiative on Tuesday, June 4 at the Whatcom County Courthouse. Some members of the county council want a judge to weigh in on whether the initiative is valid. (Hailey Hoffman/Cascadia Daily News)
By Julia Tellman Local News Reporter

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A group of Whatcom County residents are attempting to put a repeal of Proposition 5 — the levy lid lift that established the Healthy Children’s Fund — on the ballot this November, but some members of the Whatcom County Council want a judge to weigh in on whether the repeal initiative is valid.

The political action committee Washingtonians for a Sound Economy collected nearly 10,000 signatures this spring to introduce a ballot initiative that repeals the Healthy Children’s Fund in the November election, in an effort to lower property taxes. 

Passed in 2022 by only 20 votes, Proposition 5 increased property taxes by 19 cents per $1,000 of assessed value. It’s expected to bring in nearly $20 million by the end of this year and a total of $100 million by its renewal date in 2032. The fund has two components: early childhood learning and care, and support for vulnerable children. 

Children with housing insecurity often don’t get enough sleep, don’t have access to basic needs and experience high stress levels, all of which hinder their brain development and impact their readiness to learn. This spring, in the first round of HCF funding, more than $2 million was awarded to organizations that serve homeless and vulnerable children to mitigate those issues.

In early June, the county auditor’s office verified the petition submitted by the group opposing Proposition 5 had more than enough signatures to be included on the 2024 general election ballot.

The Whatcom County Council had three choices in addressing the initiative: do nothing and let it go on the ballot as written; adopt an ordinance that states it will go on the ballot as written; or propose an alternative that deals with the same subject matter and is consistent with the initiative, and both the original and the alternative will go on the ballot.

However, when the council was tasked with taking action at its June 18 meeting, council member Todd Donovan questioned whether the citizens had erred in putting forward an initiative rather than a referendum, which would have required 11,035 signatures instead of the 6,313 needed for an initiative. The citizen initiative process is designed to create new laws or replace existing ones, whereas a referendum gives voters the power to repeal a law, he said.

Donovan said he supported putting the measure on the November ballot, but said the council should recognize that it was being asked to “violate the county charter.”


“We’re essentially providing a cheaper access route by letting a repeal measure qualify through the initiative process, which requires fewer signatures,” he said.

A 2013 memo prepared by Royce Buckingham, who was the county prosecuting attorney at the time, lays out the differences between referendums and initiatives, lists the criteria a court uses to determine if the scope of a measure is proper, and the process used to challenge a proposed ballot measure pre- or post-election.

George Roche, the county civil deputy prosecutor, implied several times during the June meeting that he expects to see a legal challenge of the initiative, but said that post-election challenges to citizen-sponsored ballot measures are more common. He noted that is neither the auditor’s duty nor his office’s duty to determine the legal validity of a measure.

Council chair Barry Buchanan expressed his own frustration with the circumstances by saying, “There are so many holes in this that it’s literally Swiss cheese.”

Many citizens spoke during public comment at the July 9 Whatcom County Council meeting, wearing pinwheels in support of the Healthy Children’s Fund. (Hailey Hoffman/Cascadia Daily News)

When the council revisited the topic on Tuesday, July 9, three members — Donovan, Buchanan and Jon Scanlon — put forward a resolution to request the Whatcom County Superior Court issue a declaratory judgment on the validity of the initiative before it goes to the voters.

Roche told the council members they would need to seek outside counsel if they wanted to take the matter to a judge before the election, to the tune of at least $100,000.

Many community members and nonprofit leaders voiced their support of the Healthy Children’s Fund at the council meeting July 9, citing its downstream benefits for the community.

In a press release put out the same evening, Washingtonians for a Sound Economy denounced the resolution and disagreed with Donovan’s assessment that the repeal should have been a referendum, citing their own analysis of the 2013 memo.

“We find it ironic that the county is complaining about the impacts of the initiative to its budget and deals with it by authorizing expensive litigation by the county attorney,” the group said in its press release. “These are unnecessary costs. We would also like to note the courts frown upon pre-election challenges to initiatives.”

The group urged the council to “honor the voters’ rights to have a people’s initiative on the ballot in November.”

Council members Mark Stremler and Ben Elenbaas expressed their desire to let the voters decide and then let legal challenges occur after the fact, rather than wading into the quagmire.

“When you boil this down, it feels like the people of Whatcom County aren’t being heard,” Stremler said on July 9.

Later that evening, Elenbaas called the request for a declaratory judgment “an attack on democracy.”

The Whatcom County Council listens to public comment during their July 9 meeting. (Hailey Hoffman/Cascadia Daily News)

Council member Kaylee Galloway, on the other hand, said she felt the county could save time, money and public trust in the process by confirming the measure’s validity before the election.

“We have a responsibility to our constituents to make sure the things we’re voting on are legally sound,” she said.

The council voted 4-2 to request a declaratory judgment, with Stremler and Elenbaas voting against it and Tyler Byrd abstaining. The council then voted unanimously to introduce an alternative measure, one that clarifies the difference between an initiative and a referendum, to be put on November’s ballot in tandem with the citizen-penned one. This action had to happen before early August so that the auditor’s office could print the general election ballots.

Julia Tellman writes about civic issues and anything else that happens to cross her desk; contact her at juliatellman@cascadiadaily.com.

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