City may still fight light rail petition

Vancouver's attorney says proposal violates city charter, state law

By Stephanie Rice, Columbian Vancouver city government reporter

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Clark County Auditor Greg Kimsey on Thursday certified a petition for an anti-light rail initiative, a day after a judge struck down a state law that initially had prompted Kimsey to invalidate hundreds of the signatures.

What the Vancouver City Council will do next, however, isn't clear.

Regardless of the signature issue, Vancouver City Attorney Ted Gathe has advised the city council that the proposed ordinance violates the city charter and state law and it should not go to a public vote.

Gathe told the council last month that the proposed ordinance, crafted by a group of people who oppose the Columbia River Crossing project, falls outside the scope of the city's initiative powers and would not be legally defensible.

The ordinance would prohibit any city resources from being used to extend TriMet's MAX line from Portland to Vancouver as part of the CRC project.

Given Wednesday's ruling by Cowlitz County Judge Stephen Warning, Gathe said Thursday the city council will have to decide what

to do next. The council could file in Clark County Superior Court for a declaratory judgment that the proposed ordinance isn't legal. Or the council could agree to put the ordinance on the ballot as an advisory vote. The council could also decline to take action and see if the petitioners take them to court.

In a Wednesday email to councilors, Tim Eyman, a state initiative activist who has been serving as a consultant to the petitioners, threatened legal action.

Eyman said the council can do one of only three things: "pass it into law, put it on the ballot, or put it and a city-written alternative on the November ballot," he wrote.

"We all know your biases against this particular initiative and your agreement with us that it will be overwhelmingly approved by voters. But your opposition to the initiative and your belief that the voters will approve it do not give you the right to violate the law," Eyman wrote.

He then referenced Everett attorney Stephen Pidgeon, who represents petitioners. The council needs to act once Kimsey certifies the petition, he wrote.

"Mr. Pidgeon stands ready if you don't. We can do this the easy way or the hard way, but one way or the other, (Larry) Patella's initiative will be on the November 2013 ballot," Eyman wrote.

Gathe disagrees with Eyman's contention that the council only has three options.

There's precedence for declining to put a certified ordinance on the ballot, Gathe said, citing a 1998 case from the state Court of Appeals, Division Three, called Priorities First v. City of Spokane.

In that case, judges said the Spokane City Council was within its rights to reject a proposed ordinance because it conflicted with state law and dealt with an issue beyond the city's authority.

Gathe said the earliest the council will take up the subject would likely be May 6.

The agenda has been set for the April 22 meeting, and the council doesn't meet April 29.

Other problems

On Wednesday, Warning deemed unconstitutional a state law that says all signatures by people who signed more than once, including the original, must be stricken.

In a Thursday letter to Vancouver City Clerk Carrie Lewellen, Kimsey wrote that in light of Warning's ruling, the petition now has 6,046 valid signatures.

The petition needed 5,472 valid signatures to qualify for the ballot.

A total of 7,719 signatures were ruled invalid for a variety of reasons, such as the person wasn't registered to vote or didn't live within city limits.

Signatures aside, Gathe's written opinion that he distributed to the city council last month listed more than a dozen ways the petition violates the city charter and state law.

For example, the ordinance seeks to limit "light-rail-related City Council legislative authority, city staff administrative work, City Council budgeting authority, and past expenditure of city resources," Gathe wrote.

All of those limitations, he wrote, "are beyond the permissible scope of the local initiative power."

The wording was problematic, too. For example, the initiative said, "Whereas, Article 1, Section 4 of the Washington State Constitution states that the people's right to petition shall never be abridged."

But that section of the state constitution does not apply to the initiative and referendum process, Gathe wrote. Article II of the state constitution governs the state initiative process.

During the March 18 city council meeting, Councilor Jeanne Stewart asked Gathe why city attorneys didn't help the petitioners with the wording.

Nothing in the city charter directs city attorneys to help with the wording, Gathe said.

Patella, who sponsored the initiative with Debbie Peterson, Ralph Peabody, Charlie Stemper, Steve Herman and Don Yingling, said last month the petition did have to be submitted to the city attorney's office before it could be circulated.

But that's for a city attorney to verify the form, not give a legal opinion on the content, Gathe told Stewart.

Even if the city council doesn't put the ordinance on a ballot this year, there still could be a public vote on the CRC. Clark County Commissioners Tom Mielke and David Madore want a countywide advisory vote, but have not settled on when that would happen.

Stephanie Rice: 360-735-4508 or stephanie.rice@columbian.com.