Healthy Children’s Fund repeal is legally flawed

We thank the Whatcom County Council for their decision to seek preelection Judicial Review of Initiative-2024-01, which aims to repeal the Healthy Children’s Fund and reduce total property tax by about 2% to 3%.

While we support the Healthy Children’s Fund (more on that later), this decision was about following the County Charter and protecting the initiative and referendum powers of the people. We see this as a defense of direct democracy as outlined in the County Charter.

This is a complex issue where reasonable people may disagree, so we’d like to share our view to inform civil discourse as this progresses.

We believe I-2024-01 raises legal issues that are best addressed before it goes on the ballot:

1. Initiative vs. referendum: I-2024-01 should be a referendum, not an initiative. Initiatives are for new laws and amendments, while referendums repeal laws and have stricter rules, requiring more signatures and timely filing within 45 days of the law they seek to repeal. I-2024-01 does not meet these requirements.

2. Problems with the petition form: I-2024-01 does not follow the correct petition form as required by county code. It omits the ballot title in the section starting with, “We the undersigned …” and includes inflammatory language and misinformation about property taxes. Such elements should not be on the ballot.

3. Exceeds the scope of authority: I-2024-01 exceeds the scope of a local initiative. State law and the Whatcom County Charter give the county council the authority to place items on the ballot, levy taxes and adopt budgets. I-2024-01 seeks to interfere with this authority, which is beyond the scope of a local initiative.

4. Slush fund or tax repeal: At the June 21 county council meeting, the deputy prosecutor suggested I-2024-01 might “lift the guard rails on the money,” leading to potential misuse. We agree this is likely, as it would remove the requirement to spend on children, end oversight and accountability, but probably not eliminate the tax itself, leaving a slush fund.

Only a judge can determine if I-2024-01 is legal, and judicial review happens only if the county or citizens file a lawsuit. The 2013 Advisory Memo, “The Power of Initiative or Referendum as pertains to Whatcom County,” states: “The Prosecuting Attorney must file a lawsuit if the County believes the subject matter of the initiative or referendum is beyond the Charter’s powers of initiative or referendum.”

Why not place it on the ballot and contest it afterward if it wins? Voters reasonably expect that anything on their ballot is legal. Placing an initiative with numerous legal and procedural problems before voters undermines their confidence in the importance of their vote, especially if the initiative wins and is later overturned in court.

One critical reason for supporting the county’s decision to seek preelection judicial review is the need for higher standards and tighter timing for referendums. Referendums must be filed promptly before the county invests time, money and resources that can’t be recovered, signs contracts that would have to be breached, or sets plans that would need reversal. Not challenging I-2024-01 could make it easy to challenge every ordinance passed by the county council, with no time limit, complicating effective governance, especially for long-term projects addressing significant problems. 

We are physicians, educators and business owners who sponsored and supported the Healthy Children’s Fund. We believe that over its 10-year life, the fund will significantly impact children, families, our economy and our community. The science is clear: Investing in children’s health and their families’ health benefits their entire lives, improves career opportunities, reduces issues like addiction, homelessness, crime and incarceration, and leads to better health. It also boosts our economy, as reliable, high-quality child care allows parents to work consistently with less stress.

If I-2024-01 proceeds to the ballot after judicial review, we will campaign hard to protect the health of Whatcom County children and the Healthy Children’s Fund, which is already benefiting pregnant mothers, families with young children and vulnerable children. Ongoing programs include expanding child care countywide, preventing homelessness among vulnerable children, providing prenatal care for at-risk families, and expanding behavioral health resources for parents and young children.

We are confident that the Healthy Children’s Fund will withstand this challenge, thanks to voters who believe in early learning and support for vulnerable kids and families. We believe voters will once again say yes to Healthy Children — we certainly will. 

Ying Wu is an intern and former board member at the Chuckanut Health Foundation. Co-signers to this letter are: Chao-ying Wu MD, family physician; Suzanne Wu, MEd, early childhood educator; Kirsten Barron, attorney and business owner; Ken Gass MD, pediatrician; Barbara Lupo, child abuse prevention advocate and former business owner; David Lynch MD, family physician; Anne-Marie Faiola, business owner; Patti Imhof, business owner; Ted Mischaikov, developer, and Rand Jack and Dana Jack.