Prosecutor Comments on Decision to Drop Referendum Lawsuit

Prosecutor Comments on Decision to Drop Referendum Lawsuit

On August 7, 2007, the County Council abruptly changed direction and called for the dismissal of its lawsuit challenging the validity of a referendum that would rescind the County's Stormwater Utility fee. Though neither County Prosecutor Randy Gaylord, nor most of the Council Members expected the issue to be raised at that meeting, Gaylord had already initiated meetings with County staff and individual members of the Council to discuss various options, including that possibility.

"It was clear that so many issues - ranging from the rationale for the fee itself, to the intent of the freeholders, the initial handling of the petition submission and the timing of the lawsuit - had become so emotionally and publicly inter-twined, that prospects for an outcome that all parties would consider untainted, were dim," said Gaylord.

However, the core legal issue is not resolved and the Prosecutor warns there could be problems ahead because, according to Gaylord, the power of referendum does not appear to apply to this type of issue. "The courts have ruled that when the state legislature specifically requires elected local officials to do something, local voters are not allowed to prevent them from doing it," said Gaylord. "If this referendum should pass, the county could be open to a lawsuit by a third party."

Challenges filed after referendum or initiative elections elsewhere in the state, have invalidated elections, he noted.

Gaylord defends the council's initial decision to challenge the referendum. "A court decision would have settled the issue before the election," said Gaylord.

He argues that the stakes in this election are high and the petitioner in this case should have been in a good position to defend her stand. "Alexandra Gavora is an attorney who is attempting to overturn an ordinance that was adopted after more than six months of research and deliberation by a citizens committee, hundreds of hours of County staff time, consultation with experts in the field, and an extensive publicity campaign - including news coverage and paid advertising - that gave the public an opportunity to participate in the outcome," Gaylord said.

"I felt it is reasonable to expect the person who presents an action seeking to invalidate all of that work and potentially take the county out of compliance with state Growth Management law, should be in a position to defend her legal standing."

"Frankly," he added, "I found comments made about how ashamed we should be for having standard legal notices delivered to the petitioner, an attorney who knows how the process works, to be disingenuous at best."

At each step of the suit, the prosecutor added, he made a point to call Ms. Gavora and agreed to work around her personal schedule and to work quickly to try to avoid disrupting the political campaign, if the county did not prevail.

With the County's legal action now ended, but the legal question still pending, Prosecuting Attorney Gaylord says that he will work with the council to create a fair and clear process for dealing with citizens who wish to exercise their right to petition for a vote on initiative or referendum issues.

"It makes sense that this process includes fair warning to referendum sponsors that they may have to appear in court and tell a judge why their proposal is consistent with the law," said Gaylord.

For additional information Contact:

Randy Gaylord, San Juan County Prosecuting Attorney, ph. 360-378-4101

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