Proposed light-rail ordinance won't appear on '13 Vancouver ballot

Council votes after attorney advises that law would exceed city authority

By Stephanie Rice, Columbian Vancouver city government reporter

Published:

Updated: March 18, 2013, 8:59 PM

 
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Analysis of light-rail initiative

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An anti-light-rail ordinance won’t go to city voters this fall, the Vancouver City Council decided Monday.

The decision came at the end of a workshop with Vancouver City Attorney Ted Gathe and Assistant City Attorney Linda Marousek, who explained multiple ways the proposed ordinance, crafted by a group of people who oppose the Columbia River Crossing, violates the city charter and state law.

In a written opinion circulated among the council last week, Gathe recommended declining to place the ordinance on the ballot because it falls outside the scope of the city’s initiative powers and would not be legally defensible.

It was the first time Gathe weighed in on the wording of the ordinance, which has been caught up in a legal challenge over invalidated signatures.

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

Question of timing

Gathe said that if he had given his opinion earlier, the city would have likely been accused of using public resources to try to thwart the initiative process.

Now his timing will be viewed as suspect, he said, because next week a Cowlitz County judge will likely strike down a state law that prompted Clark County Auditor Greg Kimsey to invalidate hundreds of the signatures.

Even Kimsey and a Clark County deputy prosecutor agree the law, which says all signatures from people who sign a petition more than once have to be invalidated, should be thrown out and one signature should count.

“It’s one of those classic ‘damned if you do, damned if you don’t’ scenarios,” Gathe said Monday of the timing of his opinion.

Vancouver Mayor Tim Leavitt and Councilors Jack Burkman, Bart Hansen, Jeanne Harris and Larry Smith voted to take Gathe’s advice.

Councilors Bill Turlay and Jeanne Stewart expressed interest in Gathe’s researching what question could be posed to voters.

“They just wanted to vote on this,” said Turlay, who was involved in the petition effort before he took office.

After Stewart questioned Gathe a bit about potential questions, City Manager Eric Holmes interrupted to remind the council the CRC isn’t a city project.

It’s a state project of national significance, Holmes said, adding that the council can’t ask the public to vote on matters over which the council doesn’t have control.

Stewart expressed frustration with Gathe’s opinion, saying it sounds as if the city is just blocking the citizens’ right to vote on light rail. She asked 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.

Larry Patella, who sponsored the initiative with Debbie Peterson, Ralph Peabody, Charlie Stemper, Steve Herman and Don Yingling, said 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 said.

Burkman said city attorneys don’t give legal advice to citizens because the city would be liable for potentially bad advice.

Burkman and other councilors who voted to decline to put the initiative on the ballot stressed they weren’t doing so because it was about light rail.

“It has nothing to do with the topic, and everything to do with the process,” Burkman said.

Gathe’s written opinion 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.

Patella and his group spent two years working on the petition.

Previous initiative denied

Patella, who attended Monday’s workshop, said Gathe did the same thing a decade ago. Then, Patella unsuccessfully led a group to try and get a public vote on the city’s plans for a downtown hotel-conference center. At the time, that effort was dismissed as ambiguous, confusing and poorly written. That case went on to Clark County Superior Court, and Patella acted as his own attorney. In 2003, Judge Barbara Johnson sided with the city on every issue, ruling Patella’s initiative violated the city charter’s requirement for “clear and unambiguous language.”

Johnson also ruled that a convention center wasn’t a proper subject for a local initiative, as the Legislature had granted cities the power to build convention centers and that power couldn’t be restricted by initiative.

Likewise, Gathe said Washington courts have repeatedly ruled that voters don’t have the authority to restrict city involvement in federal and state projects.

State initiative activist Tim Eyman, who has been serving as a consultant to the local group, sent out an email Monday evening asking the city council not to ignore the initiative altogether. That had never been mentioned as an option, he wrote, saying initiative sponsors thought that if a Cowlitz County judge rules in their favor next week, the city council would either adopt the ordinance, propose an alternative or put it on the ballot.

If they win in court, Eyman wrote, “it will be a horrendous travesty for Vancouver’s mayor and city council to turn around and move the goal posts now. If their initiative qualifies and is certified by the Auditor, haven’t the citizens of Vancouver earned the right to vote on it?”


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


Text of earlier story


Vancouver City Attorney Ted Gathe issued a written opinion saying an initiative written by opponents of the Columbia River Crossing falls outside the scope of the city's initiative powers.

If approved by voters, the ordinance — which has been caught up in a legal challenge for a different reason — would have prohibited any city resources from being used to extend TriMet's MAX line from Portland to Vancouver as part of the massive CRC project.

The Vancouver City Council will have a workshop at 4 p.m. today to discuss Gathe's opinion and his recommendation that the council decline to submit the proposed ordinance to voters.

"This legal analysis concludes that the proposed ordinance by initiative is not within the scope of the local initiative power. In this situation, the Council, in open public meeting, may rely on the advice of its legal counsel and decline to place the proposed ordinance on the ballot or may authorize the filing of a lawsuit to determine the validity of the proposed ordinance," Gathe wrote.

The group that has been working on the ordinance failed to collect enough signatures and filed a lawsuit in February, challenging a state law that invalidated hundreds of the signatures.

People who signed the petition more than once had all of their signatures stricken, and the group argues that one signature by each person should count. Clark County Auditor Greg Kimsey, named as the defendant, agrees that the state law should be deemed unconstitutional. A hearing on the matter is set for March 27 in Cowlitz County Superior Court.

But contested signatures aside, Gathe said the ordinance doesn't comply with most of the requirements of the section of the Vancouver City Charter that deals with initiatives.

Gathe, who until now has withheld his legal opinion of the proposed ordinance, wrote that the language in the ordinance "contains only argument and disputable statements of legal authority and fact. Courts have kept from the ballot initiatives that contain argument or disputable facts," he 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.'"

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 lawsuit filed in Cowlitz County lists 75 plaintiffs, including initiative sponsors Debbie Peterson, Larry Patella, Ralph Peabody, Charlie Stemper, Steve Herman and Don Yingling and people who signed the petition more than once. Those include 44 people who, after a sponsor realized they had already signed, had one of their signatures crossed out.

They fell 32 signatures short.