From Stark
The Washington Court of Appeals has rejected American Traffic Solutions Inc.?s bid for an emergency reconsideration of its Tuesday, Sept. 6 ruling that declared an anti-traffic-cam initiative invalid, but left it on the ballot for a meaningless November vote by the Bellingham electorate.
ATS had wanted the court to grant an injunction ordering Whatcom County Auditor Shirley Forslof to pull the measure from the ballot, which obtained more than enough signatures to meet legal requirements.
The judges refused to do that, even though they agreed with ATS that the initiative aimed at restricting the cameras was legally invalid, because it conflicts with state law that gives the city the authority to install the cameras.
The three-judge panel rejected the motion from ATS without additional comment.
There?s no time for further legal maneuvering, because the deadline for getting the November ballots printed is noon tomorrow?Friday, Sept. 9.
On Thursday, Sept. 8, City Council held a short closed session to discuss the legal case, then emerged to announce that council members would follow a recommendation from City Attorney Joan Hoisington and take no further action in the legal case.
I?ll have a full story on line and in Friday?s print edition, although at this point there isn?t a whole lot more to say.
g.h.kirsch Says: September 9th, 2011 at 6:38 AM
Notwithstanding all the great legal advice coming from myriad attorneys, or the obscure reasoning of the appellate court, a vote against the cameras will be binding on ATS.
ATS contracted to abide by outcome of a local initiative ?prohibit[ing] the enforcement of Violations using image capture technology?? (see 12.2 of the contract) This is not a matter of interpreting legislation by the state, but simply understanding the clear language of the contract.
Bellingham will have a lot of explaining to do if the citizens oppose the camera program, and the city doesn?t exercise its contractual right to terminate under the Convenience Clause.
Of course, nothing is stopping the council from passing an ordinance now prohibiting camera use, and preempting the contract ? other than their abject timidity and political maneuvering.
Spooky Action Says: September 9th, 2011 at 7:09 AM
Are you sure about that, Greg? Section 12.2 of the contract (link below) states that ATS ?shall be given the opportunity to petition a court ? to determine the legality of any such state or local legislation, state or local initiative, state or local referendum, BEFORE the city may terminate the Agreement.?
Seems to me ATS is on solid legal ground that a legally invalid initiative will NOT be binding and will NOT allow the city to terminate the contract.
Your thoughts?
Link to contract (see section 12.2):
http://www.cob.org/cob/Contracts.nsf/%28$All%29/177C9146819F955988257888005E174F/$File/20110224.pdf?OpenElement
Spooky Action Says: September 9th, 2011 at 7:16 AM
Note also that Section 12.2 allows ATS to legally challenge the legality of a local (city) ordinance that prohibits the ENFORCEMENT OF VIOLATIONS using image capture technology. It?s no slam dunk. The city cannot unilaterally cancel the contract upon adopting such an ordinance. ATS reserved the right to challenge the legality of any ordinance the city might pass, AND (more importantly) the city contractually consented to ATS? right to do so.
Clearly, the city would have been better with the deleted clause that allowed the city to cancel the contract without cause DURING the first year. Who advised the city to accept the current escape clause rather than insist on the original one?
AFY Says: September 9th, 2011 at 8:02 AM
The more water under this bridge the more obvious it is that our fearless leaders got took by these crooks!
AFY!!theheelotsheepdog!!!
g.h.kirsch Says: September 9th, 2011 at 8:15 AM
Quickly, am preoccupied, my point is a challenge to the ?legality? is one thing. Bellingham?s position is based in the contract, not the legislation. ATS has contracted to accept the results of a local initiative.
The other terms of the agreement must be interpreted consistently with this term. Hence ATS has acknowledged the right of the citizens to decide, regardless of the legislation granting authority to cities, not citizens.
Spooky Action Says: September 9th, 2011 at 8:30 AM
I ask again: Are you sure about that, Greg?
Under Section 12.2, ATS has an equally strong and valid contractual right to prevent the city from canceling the contract IF ATS successfully petitions the court to determine that the state or local legislation, initiative or referendum is not legally valid.
The city consented to ATS? contractual right by signing the contract.
ATS did NOT agree to accept the results of a local initiative (or legislation) outright; instead, ATS reserved the contractual right to challenge the legality of the initiative. Having successfully challenged the legality, ATS can prevent the city from canceling the contract.
When you are no longer ?preoccupied?, you may want to revisit 12.2, focusing on the word ?HOWEVER? in the first sentence (as in ?HOWEVER, the Contractor shall be given the opportunity to petition a court??).
g.h.kirsch Says: September 9th, 2011 at 8:36 AM
Yes, and I?d litigate if it were up to me.
The question will be interpreting the contract not testing the legality of the process.
The court has allowed the process to go forward. I believe that?s prima facie support for the legality.
Spooky Action Says: September 9th, 2011 at 8:44 AM
When this goes to court, I?ll place my bet on ATS? attorneys over the city?s. If I were handicapping this for Vegas, I?d say 9:1 in favor of ATS.
I don?t believe there?ll be much interpretation of the contract. The language is pretty straightforward: the city consented to ATS? right to challenge the validity of any legislation, initiative, or referendum. What is there to interpret?
Spooky Action Says: September 9th, 2011 at 8:48 AM
BTW, the only reason the appeals court allowed the initiative to go forward is because the initiative cannot impair ATS? contractual rights. In other words, the appeals court determined the initiative cannot be used by the city to terminate the contract.
Talk about prima facie evidence in support of ATS!
Greg, are we reading the same stuff (or are you that stubborn)?
g.h.kirsch Says: September 9th, 2011 at 9:53 AM
?In other words, the appeals court determined the initiative cannot be used by the city to terminate the contract.?
Hardly. The court ruled that the initiative cannot create an ordinance relative to this subject matter. Only the legislative body can.
I continue to believe the initiative can serve, under the terms of the contract, as grounds for the city to terminate as a matter of convenience.
john Says: September 9th, 2011 at 10:00 AM
The court specifically stated that the initiative is invalid:
After citing the relevant case law, they conclude: ?The subject matter of the initiative is therefore clearly beyond the scope of the local initiative power ? Because Initiative No. 2011-01 is beyond the scope of the initiative power, it is invalid. Even if placed on the ballot and passed by a majority of the voters the initiative would have no legal force.?
Not a lot of ambiguity there.
Of course, if it IS passed, backers presumably could go to the Supreme Court afterwards to see if the state?s highest judges would overrule the appeals panel.
Not sure how likely that would be. Courts have repeatedly interpreted the local initiative power as severely limited by state law, recognizing a city?s ?broad legislative authority? as beyond the reach of the initiative and referendum process. Nothing new here.
Local example: 10 years ago, Whatcom County Superior Court Judge Steven Mura struck down a referendum on the city?s then-new stormwater fee/tax.
?This is the levy of a tax, and the levy of taxes falls within the legislative authority of the city of Bellingham, ? Mura said at the time.
But before we get all worked up about how oppressive this is for the people, it?s worth pointing out that four members of the City Council?a majority?are up for reelection every two years. Here?s a question for discussion: Instead of putting all this effort into petition drives, would people be better-advised to mount challenges to incumbent council candidates? This year, two of the four candidates on the ballot face no opposition.
Spooky Action Says: September 9th, 2011 at 10:17 AM
John & Greg,
The sentence immediately following what John quoted from the court states:
?Consequently, it [the legally invalid initiative] cannot result in actual and substantial injury to ATS?s contractual interests, and ATS cannot demonstrate any injury justifying injunctive relief.?
In other words, the appeals court found that ATS?s contractual interests are unaffected by the outcome of the initiative, just as I stated previously.
Regarding John?s advice to ?mount challenges to incumbent council candidates,? I believe John overlooks the obvious. In many cases, councilmembers simply follow advice from staff, especially legal staff. John, what makes you think that different councilmembers will act differently when receiving the same legal advice?
Perhaps you?re barking up the wrong tree. Perhaps what we really need is better legal advice.
Your thoughts?
g.h.kirsch Says: September 9th, 2011 at 10:19 AM
God bless you guys, but you?re not listening.
john Says: September 9th, 2011 at 10:36 AM
I?m not advocating voting Terry Bornemann and Jack Weiss off the council?just noting that, if people are unhappy with the current council?s performance, they have ample opportunity to take action and are not doing so this year.
I also can?t accept your premise that the city gets poor legal advice. Seems to me that the city has a pretty good won-lost record in court, based on cases I?ve covered.
It also seems to me that the controversial aspects of the ATS contract involve policy questions, not legal issues. Are robotic cameras an effective and fair way to enforce traffic laws? Should the city enter into a contract that promises a hefty revenue stream to a private company? While fines have always provided a significant source of government revenue, does the ATS deal take a step too far in ramping up traffic enforcement to help pay for government? Will the cameras even deliver the promised returns? Is there solid evidence that these cameras will make intersections safer, or will they cause new problems? Etc.
But if legal advice is the issue, what do you do about that? City Attorney (unlike County Prosecutor) is not an elected office. Again, your recourse as a citizen is at the ballot box, electing mayors and council members who will be more independent-minded?if you think that is needed.
S Says: September 9th, 2011 at 12:26 PM
Anyone feel the 6.7 off Vancouver?
g.h.kirsch Says: September 9th, 2011 at 12:49 PM
?ATS?s contractual interests are unaffected by the outcome of the initiative, just as I stated previously.?
Well then, __________, why do you suppose ATS moved for reconsideration of the court?s decision not to keep the initiative off the ballot? Why go to the trouble to keep the people from voting?
I submit, at least the attorneys from ATS appreciate they could be bound by the contract language giving the city discretion to terminate after a successful public referendum.
john Says: September 9th, 2011 at 12:58 PM
hmmm
Spooky Action Says: September 9th, 2011 at 2:08 PM
John: There is much more to good legal advice than a win-loss record in court. Is it possible there is information you are not aware of regarding legal advice the mayor and council has received? Would you be interested in that information?
As far as the ATS contract is concerned, before the contract was finalized, a prior draft included a clause allowing the city to terminate the contract ?without cause DURING the first year of the Agreement.? Jared wrote about that in his Aug 22nd blog re: ?Lilliquist?*.
The final contract was changed to ?without cause at the END of the first year? with a new clause allowing termination based on legislation, initiative or referendum ? but only if NOT successfully challenged by ATS. If the city was getting good legal advice, it would have insisted on the initial termination clause and never accepted the one they?re stuck with now. That?s a legal issue, not a policy one. Other examples about, assuming you?re interested in hearing them. (As they say, ?you know where I live?.)
It?s true the city attorney is not elected; however, s/he reports to the mayor. The mayor can appoint a new city attorney if the mayor so chooses. I don?t believe the answer is to search for ?independent-minded? councilmembers. As part-timers, they?ll never be in a position to challenge the recommendation of the city attorney. Expecting them to do so will be a hair-pulling exercise.
On the other hand, unless a new city attorney is appointed, an independent-minded mayor may be necessary.
Greg: Clearly the ATS attorneys were trying to kill this thing before the public expressed its views. They ARE certainly bound by the contract language; however, the contract favors ATS?s right to challenge the validity of the initiative. Having already done so successfully, they?re on solid legal ground to prevent the city from cancelling the agreement.
Killing the initiative was only insurance that the issue would never be raised again. Still, if I weren?t a taxpayer having to help fund the cost of a lawsuit, I?d love to be able to place a bet on the outcome.
BTW, it?s a sizable stretch to call a legally invalid initiative a ?successful public referendum.? A successful one would be legally enforceable.
* http://blogs.bellinghamherald.com/politics/politics/lilliquist-if-voters-approve-anti-traffic-cam-initiative-council-will-likely-cancel-ats-contract-asap/#comments
S: No, we didn?t feel it. Did you?
john Says: September 9th, 2011 at 2:38 PM
I am well aware that the mayor appoints the city attorney, and that?s why my last comment suggested ?electing mayors and council members who will be more independent-minded?if you think that is needed.?
Your example of the change in contract language is an interesting one. Is this something that Hoisington advocated or insisted upon? Or is it something that ATS insisted upon, and the council and mayor approved, in their eagerness to make a deal? I don?t know the answer to that. The city attorney gives legal advice; she can?t dictate contract language to the council OR make ATS agree to anything. If you were ATS, would you want a contract that could be overturned in a matter of months by a vote of the citizenry? Isn?t it likely that this would have been a deal-breaker for ATS?and that the mayor and council wanted to make a deal and get the promised revenue? I?m just asking. Maybe we should be asking the council.
BTW Jared is back from vacation and this is really his story.
g.h.kirsch Says: September 9th, 2011 at 3:17 PM
I?m weary of talking past you, _________. I will wait to see a ruling from a court on the city?s rights under the contract to terminate.
Spooky Action Says: September 9th, 2011 at 5:26 PM
John: Yes, as a professional journalist, maybe you (or Jared) should be asking the council, the mayor and the city attorney these difficult questions. As a citizen, I would greatly appreciate it if you would, though I doubt you?ll get any satisfactory answers.
Greg: Not as weary as I am of your stubborn refusal to accept the plain truth. You are not ?talking past me;? you are simply obfuscating.
In the meantime, how ?bout a private wager on the court?s ruling?
g.h.kirsch Says: September 9th, 2011 at 6:03 PM
Spare me your rhetoric, Larry
g.h.kirsch Says: September 9th, 2011 at 6:08 PM
get enough of the stupid wager bs from your comrade in arms, AFY
Spooky Action Says: September 9th, 2011 at 6:22 PM
Spare me your condescension.
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