Pro tem judge rules to hear Initiative 6 case - 
denies citizen's request for dismissal
Two environmental organizations, one property rights group, allowed into case

by Anne Wagner and Lois Krafsky-Perry for Citizen Review Online

Clallam County, WA – Sept. 7, 2001 – The stage was set as the Clallam County historic courtroom filled up quickly as approximately 100 people came to witness the courtroom action over the fate of Initiative 6 – Repeal of the Critical Areas Code.  At stake was the right of the people to exercise their initiative rights as reserved in the state and county constitutions – “the first reserved by the people is the right of initiative.”  The initiative was scheduled to go on the ballot for the people’s vote in November.

Pro tem Judge William Knebes, who usually issues judgment over family court matters, was presiding, after the two elected Superior Court Judges, Ken Williams and George Wood, has recused themselves.  (See Judges recuse story.)

The players in the courtroom drama: Clallam County, the plaintiff, who is suing for a declaratory judgment at the request of County Commissioners Steve Tharinger (D) and Mike Doherty (D).  Tharinger questioned whether the initiative process was legal.

Asking to join in the lawsuit on the side of the county:  1000 Friends of Washington, funded heavily by the Bullitt Foundation out of Seattle; (see 1000 Friends) and Protect the Peninsula’s Future, led by Eloise Kailin, known for their lawsuits costing county taxpayers thousands of dollars in further restricting their rights of land and water usage. Their joint attorney is Gerald Steel from Seattle.

Bob Forde, individual citizen, Plaintiff.  Forde helped gather signatures on the initiative, and turned them in to the county auditor for validation.  Forde is without the resources to hire legal counsel, and is therefore defending himself and the right of initiative in the matter.

BIAW (Building Industry Association of Washington) represented by Tim Ford, attorney, asking to join the suit on the side of Forde and the approximately 3,800 citizens who signed the petition, to represent the hundreds of builders in Clallam County.

There was an air of apprehension as the hearing began, and then began again, after a brief recess because attorney Steel was not present in time to start the hearing.  During that brief period, attendees were requested to leave the courtroom while the judge heard another case – and there was a sense of energy as people spoke quietly, and sometimes animatedly, about the issue at hand. Reporters were busily taking photos and notes as they interviewed individuals around the stately hall.  When the doors of the courtroom were finally opened by the bailiff, on more than two occasions, tried to quiet the nosy people in the halls, without much success.

The other attorney arrived a few minutes later, the doors opened, and the room filled once again. As the hearing began again, the bailiff warned citizens that this was “not a public hearing” and to maintain quiet in the courtroom: no cameras, no tape recorders.

Judge Knebes advised Forde that a court reporter would not be available, as Forde had requested, until a few hours later.  Forde agreed to continue with only a tape recording of the hearing.

Dressed in a sports coat and slacks, carrying a large athletic bag filled with books, papers overflowing the top of it, Forde prepared to present his case.  He first handed a new motion to the judge, calling for Judge Ken Williams, who had recused himself from hearing the case, to disclose any and all information relating to the violations of judicial or professional conduct which he [Williams] felt necessitated his recusal from the case. Judge George Wood, the other elected judge, had also recused himself, on the grounds that his impartiality might reasonably be questioned.

The motion was based upon the recusal form that Judge Williams had signed, where he cited “Canon 3C of the Code of Judicial Conduct” as the reason he could not hear the case.  Canon 3C states that a judge knows of another judge or an attorney who has committed a violation of the Code or Rules of Professional Conduct.  Forde said in his motion that “Judge Williams’ recusal is an admission that there is some ‘funniness’ going on in this case.  The interests of justice and simple fairness demands that it be exposed and reported to the appropriate authorities as required…”

There were several motions to be heard before the court.  The first was Forde’s motion to dismiss the case, and send the initiative to the polls for the people’s vote.  He was allowed to speak first, but allowed the county to present its case first. 

Lauren Erickson, the county prosecuting attorney, claimed that the case could not be dismissed because the “scope” of the initiative power did not cover this particular issue (the critical areas code), and that even though this is a “political” issue as Forde had claimed, the court still has the right to get involved.

She also pointed out that because he completed the affidavit to submit the initiatives to the county auditor, he was the one person who was named in the lawsuit as a defendant, as “representative” of all the signers. 

She talked about court ruling on the validity of the initiative, and her interest in the court viewing the initiative to see if it is beyond the scope of the initiative. “Once the issue is before the court, some other judge may disagree---people don’t have the authority...,” she rambled.

She then argued that “Forde has not been injured.” She stated that he held himself out as representative for the signers of the petition.

Forde then presented his case, arguing that the county code clearly states that an initiative cannot go to court for a declaratory judgment unless the proposed ordinance is on the ballot. 

“This is clearly a violation of CCC.37.01.170, as it has not yet been placed on the ballot,” said Forde.  (37.01.170 states that a declaratory judgment action can be called for in which a proposed ordinance is “on the ballot”).

Forde referred to citizens’ rights under the Constitution and pointed out the wording in the Washington State Constitution which states “the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls, any act, item, section or part of any bill, act or law passed by the legislature.”  He said the state constitution clearly gives the right of the initiative process to the people, as does the county home rule charter.  Forde added that this is a “political issue, not a legal issue.” And that the case should be dismissed. 

“I’m the son of immigrant parents, trying to earn a living and do a decent thing,” Forde stated.  “I was taught to obey the law.  Men died to protect those rights.  There is an erosion of those God-given rights of the Constitution and also the Constitution of Washington,” he continued fervently.

Forde then asked the judge to instruct the auditor to place the matter before the people and stated that the county has no position to intervene.

Judge Knebes, who had listened to Forde’s dissertation with his head down, occasionally glancing over at the county attorney, and rarely looking in Forde’s direction, said, “It is a political issue, that is true.”  He said that courts are involved in all types of issues, and used Al Gore as an example.  He stated that the interest of the parties is substantial – the Critical Areas Code is substantial enough, and that all parties have had their “ox’s gored.”

Knebes referred to the matter of jurisdiction and all signers of the petition, which was addressed by Forde’s concern in representing all of the initiative signers in the case.  He complimented Forde by saying it not frivolous for him to be defending himself, in that he had the “same quality as I get from attorneys.”  (Forde had brought out the point that in practicing law without a license, which he believed county attorney was asking him to do by naming him as “representative” of the almost 3,800 people who had signed the initiative, carried fines in excess of $37,000 and almost 3,800 years in jail.)  Knebes said he didn’t think the county prosecutor would pursue Forde on the matter.  “You are an adequate representative of the group,” Knebes stated.  “You are not here practicing law.”

The judge ruled in favor of the county, disregarding the county code, and stated that even though it was unusual for a case to go to court before it went on the ballot, that there was sufficient reason, in his opinion, to go forward with the court case.  He denied Forde’s motion to dismiss the case.

Forde then stated that he object to 1000 Friends of Washington and Protect the Peninsula’s Future “intervening our position.  They do not have greater rights than other citizens,” he said. 

The two organizations claimed that they have been involved in participating in the implementation of by the Growth Management Act and the Critical Areas Codes, and that they want to make sure the codes are “properly” carried out. 

Forde argued that the members of their organizations have the same rights as every other citizen, and that they could vote on the issue at the polls. Forde continued that the county prosecuting attorney could adequately defend the rights of the members of these organizations. 

The county prosecutor pleaded on behalf of the environmental groups.  She reminded the judge that PPF and 1000 Friends of Washington had expended their energies for implementation of the Growth Management Act (GMA), including the Critical Areas Ordinance.  She declared that they were the key parts of a process in adopting the Critical Areas Ordinance.  They were on administrative boards from counties and cities, she said, which gave them a special interest in the case.

At issue is that the environmental groups are stating that the adequately signed petition was improperly filled out.

Forde asked the judge how the repeal could possibly affect the Growth Management Act.  “Luckily, I don’t have to answer those questions,” Knebes remarked.

The judge said he felt the environmental organizations had a right to be involved in the case.  He overruled Forde’s objection, and allowed both environmental groups into the case to “protect their interests.” 

Tim Forde, attorney for BIAW (Building Industry Association of Washington), asked to be allowed in the case to represent the hundreds of builders who are affected by the Critical Areas Code in the Clallam County area.  He said they seek permits to build within the Critical Areas, and must comply to get those permits.  “Bob is in car sales.  Our interest permits that we adequately represent those builders.  They can’t be adequately represented by 1000 Friends of Washington, PPF, or Bob Forde,” he said.

The judge asked Forde if he had any objection to the building industry getting involved in the case.  Forde replied, “No, Your honor, I need all the help I can get, even a manual typewriter and a box of crayons would be welcome at this point.”  The judge chuckled because he had previously complimented Forde’s writing and motions, because many of the pro se litigants come before the court write with crayons.  The judge allowed BIAW into the case.  As a result, there are now five parties involved in the lawsuit.

After some discussion and a brief recess, the parties agreed to set the next hearing for Sept. 18, when the parties will present their legal briefs and the judge will issue a summary judgment.
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