(The Center Square) – A state appellate court on Wednesday heard oral arguments over a ballot initiative that seeks to restrict homeless encampments within Spokane city limits – even as voters are filling out ballots to decide the measure in the Nov. 7 general election.

The legal dispute brings considerable uncertainty to the fate of Proposition No. 1, which aims to prohibit persons from camping within 1,000 feet of any school, public park, playground or licensed daycare facility. Local attorney Brian Hansen and Spokane Councilman Jonathan Bingle spearhead the measure. In a local voters’ guide, they say it is intended to protect children from dangerous and disruptive behavior “inherent in homeless encampments.”

Opponents believe the proposition is “fear-mongering” and unfairly targets disadvantaged and homeless persons who aren’t criminals or breaking any laws.

Former city council President Ben Stuckart, who now runs a low-income housing consortium, and Jewels Helping Hands, a nonprofit providing services to unsheltered persons, are plaintiffs in a case under review by the state Division III Court of Appeals.

On Wednesday, Judges Robert Lawrence-Berrey, Rebecca Pennell and Tracy Staab listened to arguments from two Seattle attorneys: Knoll Lowney representing Stuckart and Jewels Helping Hands, and Mark Lamb, representing Hansen.

Also named as defendants – but not participating in the arguments – are the city of Spokane, Spokane County and county auditor Vicky Dalton, whose office oversees local elections.

Lowney said the plaintiffs want a court ruling to invalidate the initiative and prevent any election action on it. Unlike the state initiative process, Lowney insisted Proposition 1 is “beyond the scope of the local initiative power.”

He said the proposition impermissibly seeks to expand the city’s existing ordinance, which currently limits camping within 50 feet of any railroad viaduct within Spokane’s downtown police precinct and within three blocks of any housing shelter. Lowney said state courts have already established that altering or amending an existing municipal ordinance is a legislative or administrative function that is not subject to a voter initiative.

Lamb, in turn, asked the judges to “immediately dismiss the case,” saying citizens are already voting while the plaintiffs are seeking to “take the whole election and void it.” Lamb objected to the timing of the case, both at the initial and appellate level, and said there is a rule governing “finality of pre-election” status.

Lamb also contended city council decisions are subject to “the people’s right to initiative” and that it would be “an extraordinary act of judicial activism” to tell people, “Your vote doesn’t count … your opinion doesn’t matter.”

Not so, Lowney later responded, saying, “It’s not extraordinary for an initiative to be subject to judicial review.”

Judge Lawrence-Berry said, “It’s on the ballot. We’re not going to change that.” But if the initiative is deemed to be illegal, said the judge, “It’s the court’s duty to tell the county auditor that.”

The judges did not indicate from the bench when a ruling might be issued, but it’s likely there will be ramifications regardless if it is before or after Nov. 7. If the court upholds the legality of the initiative, it could still be rejected by voters. But there are unanswered questions if the measure passes but is deemed unlawful after the election, or if an injunction is issued before then.

Another issue is the constitutionality of the proposition. If voters do approve it, Lowney said it will likely face future legal challenges. He said Spokane updated its municipal code last September in response to a federal court ruling in the case, Martin v. City of Boise, which said camping could not be prohibited on city property if shelter space is not available for homeless persons. That ruling was upheld by the 9th District Court of Appeals and applies to West Coast states.

“Unhoused people often prevail in these cases because the balancing of interests tips in favor of the health and safety of people living outdoors,” Lowney and fellow attorney Katelyn Kinn wrote in their lawsuit.

However, when questioned by Judge Staub, Lowney agreed that the local initiative’s constitutionality was not part of the analysis before the appellate court.

Judge Pennell said she was not convinced that the dispute was over zoning, but instead pertained to issues of police powers and public safety. But she felt an initiative could be written to exclude the homeless from camping in virtually any public space even though the city’s ordinance said there must be some place where they can go.

“This is a tough decision,” said Pennell.

Lamb said the Martin v. Boise ruling does not allow homeless persons to sleep anywhere they chose. The local initiative, he said, is “a valid policy decision” because it does not remove all camping spaces within the city. Rather, the proposition says “some areas are better than others to allow camping.”

Spokane’s current ordinance considers a violation to be a misdemeanor offense. Individuals are not booked into jail; rather, they are cited and released to appear in community court, which can address available services. Before citing anyone, police must first confirm that low-barrier shelter space is available.