Anti-light rail group plans to sue city

City attorney says initiative fails to comply with charter

By Stephanie Rice, Columbian Vancouver city government reporter

Published:

Updated: April 23, 2013, 5:59 PM

 

A group of petitioners determined to get light rail on the November ballot will sue Vancouver over the city’s charter, Tim Eyman said Tuesday.

Eyman, a state initiative activist who has been serving as a consultant to the petitioners, said Tuesday he couldn’t be specific about when a lawsuit would be filed in Clark County Superior Court, just that it would be filed “very soon.”

Last week, a Cowlitz County Superior Court judge struck down a state law that initially had rendered invalid hundreds of signatures on a petition to get an anti-light-rail initiative on the ballot.

The petition has since been certified, but Vancouver City Attorney Ted Gathe is standing by his March opinion that the initiative falls outside the scope of the city’s initiative powers and would not be legally defensible.

The proposed ordinance, sponsored by Larry Patella, Debbie Peterson, Ralph Peabody, Charlie Stemper, Steve Herman and Don Yingling, would prohibit any city resources from being used to extend TriMet’s MAX line from Portland to Vancouver as part of the CRC project.

According to a March 12 memo to the council, Gathe wrote, “Overall, the initiative as drafted is ambiguous and susceptible to multiple interpretations. The ambiguity itself means that the initiative fails to comply with the basic requirement of the charter: ‘The proposed ordinance shall be expressed in clear and unambiguous language and so that its entire effect is apparent on its face.’”

Also, Gathe wrote, the initiative proposes to limit “light-rail-related City Council legislative authority, city staff administrative work, City Council budgeting authority and past expenditure of city resources.” All of those limitations, he said, “are beyond the permissible scope of the local initiative power.”

On Tuesday, Eyman sent an email to the council titled, “Vancouver’s second phase of litigation begins now.”

“We’re moving full steam ahead with the second phase of litigation,” Eyman wrote. “Following his impressive legal victory successfully getting a state law found unconstitutional, pit-bull attorney Stephen Pidgeon has set his sights on Vancouver’s city charter, which the mayor and city council are claiming stands in the way of the initiative being put on the ballot. In an email …, he outlines his legal strategy. It’s simply brilliant,” Eyman wrote.

Pidgeon wrote that his “strategy mirrors the successful strategy we employed in the first phase: we are challenging the constitutionality of Vancouver’s city charter which, the mayor and city council claims, prevents them from placing the initiative on the ballot. Within the same lawsuit, we are asking the court, in the alternative, to find the initiative clear and unambiguous under the charter so it can be placed on the ballot. I have thoroughly reviewed the operative provisions of the initiative … and I find none of them unclear, inappropriate, or outside the scope of the initiative power. Nonetheless, thanks to the initiative sponsors smartly putting a severability clause in the initiative (section 5), we are telling the court: ‘If some provisions of the initiative are unclear or inappropriate, then sever them and put the remaining provisions on the ballot.’ This approach provides the court with three ways to ensure the initiative, or the key provisions in it, such as section 3, appear on the November 2013 ballot,” Pidgeon wrote.

City’s response

In the Cowlitz County case regarding multiple signatures, the defendant, Clark County Auditor Greg Kimsey, agreed with the plaintiffs that the state law was unconstitutional. The law said all signatures by people who sign a petition more than once, including the original, must be stricken. Judge Stephen Warning ruled in favor of the plaintiffs, and Kimsey went back and counted the original signatures.

If the group sues the city, however, the defendants will put up a fight.

Gathe said Tuesday that the charter requirements in question were adopted in 1952. The requirements were enacted “to ensure that when (citizens) do vote on an initiated ordinance, that ordinance is clear and readable and they can understand its impacts. These types of safeguards have been part of citizen-voted initiatives for generations,” Gathe wrote in an email.

Attacking the city charter overlooks two “significant problems,” with the proposed ordinance, Gathe added. First, the ordinance proposed by the initiative “attempts to legislate on matters that are beyond the scope of local initiative under a century of case law. Attacking the City Charter does not avoid the fundamental problem with an initiative that legislates on matters reserved by state law for the local legislative authority, specifically in the areas of municipal finance,” he wrote.

And second, the Columbia River Crossing and light rail aren’t city of Vancouver projects, Gathe said.

In a written response Tuesday to Eyman’s announcement of a lawsuit, Vancouver Mayor Tim Leavitt said, “Fortunately for the citizens of Vancouver, we have a city charter, state law and decades of court rulings that provide us all protections from extremist actions. I feel sorry for those that have contributed their monies to this effort, as they really have been duped. Interesting that none of the messages and pleas for money to support their legal (smear?) effort have acknowledged that their initiative is poorly written and violates laws of our land,” he wrote.

Leavitt wrote that it would be “entirely irresponsible to allow a matter on the ballot that violates the laws of the land. Yet, these folks seem to feel that the laws don’t apply to them, and apparently will attempt to do whatever it takes, including threats and rhetoric to community leadership, to attempt to get their way.”

In response, Eyman said, “This is a qualified, certified initiative and the law requires the city council to adopt it or put it on the ballot. No judge is going to validate the city violating the law; we won litigation round 1 and we’re confident we’ll win round 2 so that voters can vote this November.”

According to emails on Tuesday, the petitioners have raised $11,962 of the $20,000 they wanted to collect to pay Pidgeon. Pidgeon wrote that he’s willing to waive the rest of his fee and move on to the second phase of litigation.

Eyman wrote that people can now make a tax-deductible donation to the Citizens in Charge Foundation, a Virginia-based organization operated by Paul Jacob. By law, any group that solicits money in Washington needs to register either with the Secretary of State’s office or the Public Disclosure Commission.

Jacob said Tuesday he will file the appropriate paperwork with the Secretary of State’s office.

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.