Transcript of Initiative 6 Discussion at Clallam County Commissioners' Meeting
transcribed and edited
by Lois Krafsky-Perry, News Editor
Port Angeles, WA - At the July 24, 2001 Clallam County Commissioners' meeting, the topic of the Critical Areas Code (CAC) Repeal was an agenda item. It was previously discussed at a special executive session the day before by the commissioners. Clallam County Deputy Prosecuting Attorney Chris Melly was present at that secret executive meeting, along with county commissioners Mike Doherty (D), and Steve Tharinger (D). Director of the Department of Community Development, Bob Martin, was also present.
The topic was Initiative 6, which is planned by local citizens to go on the November 6 ballot for the voters to decide the fate of the Critical Area Code (ordinance). This privilege is given to the citizens by the county constitution, the Clallam County Home Rule Charter.
The required signatures to place Initiative 6 on the ballot were 3,126. The signatures that were turned in to the auditor were 3,781. After the count there were still enough signatures to take it to the ballot. The Clallam County Auditor, Cathleen McKeown, put her seal on a letter verifying her decision and it was read to the commissioners by Patty Rosand, Deputy Auditor.
Editor's Note: Note in the transcript that the reference to Initiative 6 and also the court cases referred to by Mr. Tharinger and also Mr. Melly are identified in their words as a referendum. This term was substituted and baited the other local media, who continue with his words by defining Initiative 6 as a referendum.
Note also that Mr. Melly continues to admit that Initiative 6 should be allowed to go to the ballot. Witness the personal opinions of Tharinger as he attempts to wrestle the suggestion of Melly. Doherty cooperates with Tharinger in the match.
Doherty (the chair) calls for the county auditor to submit the letter about the Critical Areas Code Repeal Initiative No.6, which was read by Rosand
“In the 2000 gubernatorial election, Clallam County had 31,762 votes cast for the office of governor. C.C.C. 37.01.100 requires that in order to be valid, petitions must contain signatures of 10% which is 3,176 of the registered voters who cast votes in the last gubernatorial election.
"In accordance with C.C.C. 37.01.110, I have compared the signatures on the petition to those of the voter registration file. I have found that there is a sufficient number of valid signatures upon the petitions knows as Critical Areas Code Repeal, Initiative No. 6, presented by Robert Forde, a registered voter of Clallam County. Dated this 18th day of 2001 signed Cathleen McKeown, Clallam County Auditor. I will present these to the clerk at the board.”
Doherty--- “Thank you Patty.
Transcript of tape.
Chapman---”According to Clallam County Code 37.01.120 Point number one and I will read directly from it. At the regular meeting of the board at which the report of the auditor is received upon the validation of the petition, the board shall call for a public hearing on the proposed ordinance to be held not more than 30 days thereafter. I would move that the board call for that public hearing to be held not more than 30 days from today.”
Doherty--- “Is there a second? That motion dies for lack of a second.” (interruption by Tharinger)
Tharinger--- “ Please I have some questions of the auditor.”
Doherty--- “Ah well that motion dies for lack of a second.” Any questions for the auditor’s representative?”
Tharinger--- Um,Yeh, I have a question as to form--- and in our work session yesterday as we were discussing these petitions as they were submitted um, my understanding although I haven’t actually looked at them, some of the petitions actually didn’t have the ordinance attached, is that correct?”
Rosand---”There is nothing other than what is on the face of the petitions.”
Rosand--- “There is nothing attached and” (interrupted by Tharinger)
Tharinger---“And and I noticed in the submittal letter from the auditor there is validation to the number of signatures required and the number of signatures that um have been turned in meeting that requirement, but I haven’t seen anything that discusses the validity of actually the form of the petition itself. Particularly this issue of whether the um actual ordinance was attached to the-- the-- to the paper the--the forms that were signed. So in other words, it is possible that someone signed the petition without actually reading the ordinance? Is that, and I guess my question is um, is there some question to the appropriate form of these petitions?”
Rosand--- “There has been a question raised and I spoke with Cathleen yesterday and she has decided to accept the form of the petitions and submit them as presented.”
Tharinger--- “Ok and I guess I then have a question to our prosecutor, or our civil deputy as to whether that is an appropriate action for the board to accept these petitions with this question” (interruption by Melly)
Melly---“Chris Melly, Prosecutor's office. There is a nothing in the ordinance that requires a or mandates this board take any action once the auditor presents the report to you, she simply presents the results of her findings a that’s been done, she’s presented the report, the conclusion of the auditor is that there are sufficient number of signatures a of registered voters to validate the initiative. When you read through the process of the ordinance, the only way that an ordinance a signatures can be counted is as it appears on a document that is an appropriate form, so by virtue of the fact that there has been a report from the auditor that there are three thousand and some odd valid signatures a that is an indication for the auditor that the form of the document or the form of the petition submitted um satisfied the ordinance standards.”
Tharinger---”And is as our legal council (cough cough), is your judgment that that is correct?”
Melly--- “I’m also council for the a auditor. Her determination at this point is that it is a valid petition and my purpose is, I won’t construe it as such, my responsibility would be to defend that decision um so for my purposes, yes that is an appropriate decision at this point. She has determined that the form of the document as appropriate. “Even if, even if, let me just continue this on, even if the forms were not um appropriate that simply allows the petitioners or whoever to go out and start the process over again. A, so it simply postpones the day of reckoning if you will to the determination of whether there should be some action taken by the board according to the merits of the petition. So it simply delays that decision to some future point in time. It doesn’t ultimately answers the question as to whether this is in fact a valid petition or ultimately presented to the voters for their action.”
Tharinger--- “But isn’t it possible there are some legal questions as to whether the forms of these petitions are in fact legal and therefore um you know were um just the and and therefore should be accepted by or is your rec and what would be your recommendation?”
Melly--- “My recommendation is that the board simply, and I’m hesitant to use the word accept- because there is nothing in the ordinance that says the board accepts or rejects. A presentation was made by the auditor with regard to findings and that’s it. The next step to process, once that presentation is made, and once that presentation um asserts and concludes that there are a valid number of signatures then the next step in the process is to have the board call for a public hearing. That, it doesn’t require you to accept the petitions accept the report or reject the petitions reject the report it simply has been made and the next step in the process is call for a public hearing if the boards inclined to do that.
Tharinger--- “ But, might the board be illegal in its action to call for a public hearing on a fact a fact the petition is not legal because it is not legal to form?”
Melly: “The board, the auditor has determined that it is in fact a legal document at this point. She has determined that the form of a the petition is appropriate and if the board has some question as to whether or not the form of the a petitions was not appropriate and the auditor erred then the board can certainly bring some sort of action to the court to establish whether or not the auditor made an appropriate judgment or not. Which would of course entail problems from my office because one individual would represent the board and one individual would represent the auditor. We would have to build what is called by the courts, a Chinese wall a so the two individuals in the same office could represent two separate entities. It’s not a a process that I would recommend that the board bring an action against the auditor to determine whether or not these a petitions were appropriate. Because all it does is postpone the question on the merits of the petition. If the court were to agree yes the form is not right, it allows somebody to to out and start all over again.”
Tharinger--- (chuckles) “Every time I talk to an attorney he (ha ha) gets more confusing (proceeds with gutteral laugh).
Chapman--- “We have a ballot petition that has been delivered to us according to Clallam County Code, our next step is to call for a public hearing within thirty days---is that correct?”
Melly--- “That’s according to the code---correct.”
Chapman--- “I make another motion, I think we should call for a public hearing gentleman and move on.”
Audience member, “thank you commissioner.” Applause by 95% of the approximately 40 attendees.
Doherty---“I think that it is not as simple as that---I think that there is a possibility of a thir”
Chapman--- “I think there is.”
Doherty--- “Is there a second on the motion?”
Doherty--- “The motion dies.
“There are two issues, one is on point and one is close to being on point regarding this issue. So, I think the board should be cautious in the procedure that we do take, so I don‘t know if there is anyone else thinking about this but I suppose we should talk about the process rather than just the hearing. Is there something else that we want to do um including a declaratory judgment? That the two cases considered by court as they apply or may not apply to this initiative because a, we have word that one way or the other-there is a chance that the county might be in a lawsuit whether it is on the ballot or off the ballot. So, I think to be prudent with public money we should look at that issue, and at least discuss it before we go down the road and do a public hearing. So if you have an if Mr. Chapman has an opinion on the application of those cases, I would be interested in hearing that.”
Chapman--- “My opinion is rooted in the code, which doesn’t ask us to make a get a declaratory judgment with the court. It tells us to have a public hearing which what is wrong with having a public hearing? (clamor from the area of Tharinger) That is all we are doing, we are not saying to the board today---we accept or reject this petition, we are saying, we are going to give the public their chance to come forward both pro and con---and listen, listen and so this rush to judgment this rush to seek a declaratory judgment, in my opinion as one elected official---what is wrong with call”(interrupted by Melly)
Melly--- “Well have you read the cases?”
Chapman--- “Yeah I was fully briefed yesterday...”(interrupted by Melly)
Melly “then you understand there Constitutional issue and statutory law implications?”
Chapman--- “There is nothing in here---all it says is call for a public hearing. Why wouldn’t we as a board, who support open government have that public hearing continue to get the research, we all continue to research the issue. I don’t know what the fear of public hearings is (interrupted by Melly)
Melly--- “We can do that but, you could do that alone or you have a declaratory judgment or you could do both or you could do another combination of things. There are three options that I’m considering are those three. Now if somebody else has another one...”(Tharinger interrupts)
Tharinger--- “Well I don’t think it is the question of having ear of a public meeting this is a code that has been in the process for a decade. (snickers from the audience). The process for the Critical Areas Code started in 1992 so there’s been ten years of public process around the issue. What the charter asks us to do is a have a public hearing on this referendum and I for one have some question as to the legality of the referendum as as evidenced by two supreme court cases, one is Whatcom vs Brisbane and one is Snohomish vs Anderson and so I think it’s prudent for us as as the legislative body and also as the executive body of the county to to manage the dollars and resources of this county and to go down the road of a public hearing on an issue of a referendum that in fact has been shown to be not this particular referendum but has shown to be similar to it, have been shown to be unconstitutional. so it seems to me that there’s some value in getting that declaration of--of--of its validity with the state supreme court or with the state law before we move to the public hearing otherwise I think that we are actually giving some false impressions or some false hopes that a, we’re having this public hearing. we’re discussing something, that in fact could be illegal. So it seems to me that it is not an issue or a question of public process. There's been a decade of public process on this issue. The real question is whether the referendum as presented to us is legal and there seems to be as is evidenced by the two cases that were submitted to us from our prosecutor, that the legislative authority that is designed to define Critical Areas Code under the GMA a cannot be carried out by initiative or referendum. And that’s what the supreme court says. So, until we get that declaratory judgment, I think it’s inappropriate for us to have a public hearing on the referendum, which is what this is public hearing would be about. It’s certainly not a referendum on the Critical Areas Code that’s been a decade of process. And so it seems to me that a more prudent and responsible action for us to take is to have our prosecutor pursue a a declaratory judgment with the court and I would move to do that.”
Doherty--- “A, so, I’ll second, It’s been moved and seconded---any other discussion?”
Chapman--- “Ha, I’ll just quote from Clallam County Code 37.01.170. Not less than 45 days prior to any regular special election in which a proposal ordinance is on the ballot the prosecuting attorney or any of the legal voters of Clallam County may pursue unto RCW 7.24 to seek a declaratory judgment . The Clallam County Code directs the commissioners to hold a public hearing that allows the prosecutor or a legal voter to seek a declaratory judgment, I believe this order would be in violation of the Clallam County Code, to direct the prosecutor to do so.”
Audience Member--- “Amen” (loud applause from the audience)
Tharinger--- “It might be appropriate for our prosecutor to comment.”
Doherty--- “If the audience could hold it’s applause. I would appreciate that.”
Audience Member--- “The people have spoken.”
Doherty--- “Mr. Melly.”
Melly--- “Yeah, the court cases---that, there is a long history of supreme court cases on the initiative and the referendum process, the direct legislation process in the state of Washington. The courts have generally a shied away from considering the validity an initiative or a referendum prior to the vote of the people. Um, what they’ve typically done, say it goes on the ballot and it’s voted upon by the people. Even if it’s unconstitutional, even if it’s unlawful, it has to be on the ballot, voted upon and then passed, then challenged in court. There is an exception to that rule and that is when the initiative or referendum proposed is not within the power of the people in the first instance and the supreme court has routinely said that when the initiative or referendum the direct legislation proposed is does not rest with the people a in their, in their a legislative capacity. Then the court can entertain um an action to determine whether or not it’s valid before it goes on the ballot, before it is voted upon by the people.”
Tharinger--- “And it seems to me that looking at the Whatcom case and the court rulings is that the Whatcom County temporary Critical Areas Code having been enacted pursuant to legislative mandate under the gm, Growth Management Act is not subject to referendum and so, it seems to me that that falls under the latter category but, I’m certainly not an attorney or a judge and and it makes sense for us I think, to get that legal opinion.” (clatter) interrupted by Melly.
Melly--- “There, there a after 23 years of practicing law there are precious few cases that seem to address the question very directly. I usually have to interpret, I usually have to figure the argument, and craft your argument to fit your facts. Um, This particular case is apparently right on the mark, a , it’s a growth management case, a it’s a Critical Areas Ordinance that was being proposed, it was a bit of direct legislation, a referendum rather than an initiative, but the end result is that the supreme court included that the direct legislation process did not rest with the people with regard to a a Critical Areas a Code, that was adopted pursuant to the Growth Management Act.”
Tharinger--- “I mean, also with the Whatcom versus Brisbane, it goes on to say that the legislative authority cannot be carried out by initiative or referendum, for example the statute directs the legislative authority convene meetings and establish process, these responsibilities can not performed by the exercise of a yes or no vote. So it it really seems, as you say, that this case speaks directly to what’s in front of us but, I’m not in a position to reject this effort by citizens, and it’s a very, you know, well a meaning and and focused and concerned effort (laugher from audience) but it does seems to have some-legal questions so, a it seems that it’s um appropriate for us to get it cleared up in the courts as to whether it’s a a legal process or not and that’s why I made the motion I did.”
Doherty---“The other thing I would add to it, what commissioner Chapman didn’t read was the following bottom section of .170, which says and I believe this shows the people that made this county law contemplated these sorts of situations and it takes off from where Mr. Chapman ended. to seek a declaratory judgment as to whether the proposed ordinance is in contravention of the Clallam County Home Rule Charter the laws and or Constitution of the state of Washington or the United States constitution so this mechanism is available through the county code as the proper way to address this dilemma to get the opinion of the courts is this proper and since the evidence so far from the courts is that it would not be good to go forward with this, why would we want to spend tax payer money proceeding along when we can get an opinion from the courts regarding the interpretation of this, so”
Chapman--- “What taxpayer money would we be spending. You’re the ones that want to go to court. The elections gonna be held in November, and I don’t see ----(interrupted by Melly)
Doherty--- “The potential, I think is because people on both sides of this issue would probably sue the county one way or the other. If it’s is on ballot there will be some folks who would sue the count, if it’s off the ballot, there’s some people, so either way probably the best way is to get a declaratory judgment, it is not uncommon to use this mechanism in the courts to alleviate a bigger lawsuits later to challenge the outcome of that case of course and that‘s much more difficult decision to make for either party that‘s on the side a that loses.”
Tharinger---”I guess my question (interrupted by Chapman)
Chapman--- “The charter directly tells the commissioners what to do, that now, I don’t understand...”(interrupted by Tharinger)
Tharinger--- “Mr. Chapman, I guess I would ---”
Chapman--- “ I’m sorry but, I am speaking. The charter directly tells the commissioners what to do, and we are violating the charter, now I don’t , it’s not about whether you’re pro or against the Critical Areas Ordinance, it’s whether you believe, the, the county charter that we’re here to uphold. The charter does not tell the commissioners to seek a declaratory judgment. It says hold a public hearing.”
Tharinger--- “I, I guess my question to you commissioner Chapman, is what happens if this public hearing and then what happens, if if you do not believe that there is some question about the legal validity of this referendum and, and, then you would have this public hearing ah fine but, if you do feel, as these two supreme court cases tend to indicate that there is some question about the legal validity, when would you have that question answered?”
Audience member--- ““Let the courts do it.”
Chapman--- “I’m here to uphold the Clallam County Charter” (interrupted by Tharinger)
Tharinger--- “You are not answering my question.”
Chapman--- “I’m not answering that today, I don‘t need to” (interrupted) Doherty--- “Let me just add, I think in the oath of office, we all took, we not only the county charter but state laws, federal laws and two or three constitutions, federal, state, and our charter, which is some sort of a constitution. So, we also took the oath to uphold those laws and to hang your hat on the lower law, to me is not the appropriate analysis, I think you also have to look ahead to the other laws, particularly when these two court cases say that those two other levels of law can trump, the lower level, in certain matters, and one of those matters is this subject matter.”
Chapman--- “I don’t think those two court cases say that you can’t have a public hearing.”
Tharinger--- “But, don’t you think it’s somewhat disingenuous to have a public hearing on a matter that in fact, might be illegal, as these supreme court cases tend to indicate.?”
Audience member “Might, might”
Tharinger--- “And so aren’t you in fact sorta leading folks down a path that is in fact giving them false hopes at some sort of action. And, it, it would be certainly worthwhile if we were to be talking about the code itself but, we’ve been talking about that code and the science and value of that code for a decade. So there, really the public hearing is about the issue of the referendum and the referendum process as it applies to critical GMA code is in question by the two rulings of the supreme court. So it seems to me, that it is prudent on this body as the executive legislative body of the county to get that declaration. And you could certainly have a hearing, I’m not opposed to a hearing, but it seems to me, it is somewhat disingenuous.”
Doherty--- “Any other discussion?” I guess for me the other complication is, the legislature did not act on the deadlines for our county as with others to revisit the comprehensive planning process. And so there is a deadline of September of 2002 to revisit comprehensive planning and one of the items that has to be included is the Critical Areas Ordinance. If you look at the wording of the charter as it’s applied to this initiative, if the initiative is adopted as law, it says we can’t change that subject matter except by following init, a further initiative or referendum for a period of two years. So if that would be held to be the law, and I see a couple of heads nodding, then we would be out of compliance with the state’s planning process which affects growth management planning dollars, which help local governments have some reasonable planning. Whether it’s a shorelines or other matters (interruption outburst in audience) we put that in jeopardy. I know to some folks that is not important but when people are trying to cut local government budgets, state government budgets, I think where lo, where governments can work together for reasonable planning it is a goal we all should achieve, try to achieve. And within the next two years, this county will be revisiting comprehensive planning and I don’t see I , for me I don’t want to risk that.” (interruption from audience)
Audience member--- “If anything is breaking the budget, it’s the Critical Areas Code.”
Doherty--- “Any other comments on this?
Tharinger spoke quietly.
Doherty--- “It has been moved and seconded, those in favor say aye,”
Doherty--- “aye, opposed, no!”
Doherty--- “It carries moved, any other comments?”