County commissioners examine ability to preemptively veto ballot initiatives

County commissioners examine ability to preemptively veto ballot initiatives

The unusual ordinance closely mirrors a lawsuit recently dismissed in Lane County Circuit Court

The Register-Guard |

The Lane County commissioners’ decision to pursue an unusual ordinance that would allow them to preemptively veto some local ballot initiatives comes only a few weeks after a lawsuit seeking to do essentially the same thing was dismissed in Lane County Circuit Court.

That lawsuit, filed in ­October, claimed that the Lane County Clerk has the authority, under the state Constitution, to dismiss initiatives before they go to voters or the courts, if they are not “of county concern.” The lawsuit targeted a far-reaching local initiative that would ­allow Lane County voters to ­enact laws to protect “their health, safety and welfare,” even if they conflict with state or federal law. Community Rights Lane County, a local advocacy group, is ­hoping to place that measure on the May 2017 ballot.

Marie Bowers, a local grass seed farmer, was the only listed plaintiff in the lawsuit. But Bowers acknowledged Friday that she didn’t pay for the lawsuit. It was the brainchild of and funded by “a coalition of farm and forestry interests,” Bowers said, though she declined to be more specific.

Bowers said she agreed to be the listed plaintiff on the ­lawsuit because she’s concerned about potential “wasted taxpayer ­dollars” to fight the measure in the courts and possible “negative impacts” on farms such as hers if enacted.

The initiative “wouldn’t recognize the Right to Farm law or any other law (advocates) don’t like,” Bowers said.

Bowers was represented in the lawsuit by Jill Gibson, a high-powered Portland lawyer who also has battled Community Rights groups in court over similar ballot initiatives in Benton and Lincoln counties.

Gibson is perhaps best known in Oregon for spearheading several unsuccessful anti-union “Right to Work” ballot initiatives, with the financial backing of some of the state’s most prominent conservative political donors. She didn’t respond to a request for comment Friday.

On June 3, after months of legal back-and-forth, Lane County Judge Charles Carlson ruled that the county clerk doesn’t have the authority to dismiss an initiative because it is not “of county concern.”

The clerk is limited to ruling on whether an initiative addresses only one subject, as required by the state Constitution.

“The issues the petitioner raises are not ­issues the clerk or the court should consider at this pre-election stage of the initiative process,” Carlson wrote.

“Just as, on the state level, a statute’s constitutionality is evaluated only after its enactment, so too, on the county level, an ­initiative measure’s constitutionality is evaluated only after it has been ­adopted,” he added.

Less than three weeks later, Dennis Morgan, a local small business owner and leader of a local conservative political action committee, brought an ­already-drafted ordinance to the county commissioners. The ordinance would give the board the new power to preemptively block initiatives that they deem not to be “of county concern.”

Morgan said Friday that he was “unaware” of Bowers’ lawsuit or Carlson’s ruling when he first proposed his ordinance to the county board. “I didn’t know anything about a lawsuit going across on this issue,” he said.

Morgan said he got the idea for his ordinance ­after reading a news article about a judge in Josephine County dismissing a voter-approved ban on ­genetically modified crops there because it violated state law. That ruling ­occurred in mid-May.

Morgan said his ordinance’s goal is to prevent the costs associated with elections or litigation for local measures that clearly contradict federal or state law and therefore will be thrown out in court eventually. After receiving letters of support from former city of Eugene and Lane County attorneys Stan Long and Teresa Wilson, Morgan said he drafted the ordinance himself. “By presenting the commissioners with an ­(already-written) ordinance, half the work is already done,” he said. “I thought that would help move the idea forward faster.”

But Ann Kneeland, a Eugene-based attorney for Community Rights Lane County, was skeptical of Morgan’s claims. “Industry-backed groups” have fought the Community Rights’ ballot initiatives, which include proposed bans on GMOs and aerial herbicide spraying, “at every step of the way,” Kneeland said.

After Carlson’s ruling, “they were out of fuel in the courts,” she said. “So they’ve now turned their efforts clearly to the Lane County commission to save their butts from initiatives that they think are going to be damaging to their business interests.”

Citing reasons ­similar to Morgan’s, the Lane County board last week ­directed county attorneys to draft an ordinance on the issue. Commissioners Jay Bozievich, Sid Leiken and Faye Stewart all spoke up in favor of the concept.

Kneeland said she was surprised that county attorneys didn’t bring up Carlson’s ruling during the commissioners’ discussion, because she said it appears to indicate that their proposal may be on shaky legal ground. Lane County was a named party in Bowers’ suit, and its attorneys were therefore in the loop on the case’s proceedings and final ruling.

Even without that recent precedent, citizens’ right to the local ­initiative process is “a bedrock of the state Constitution,” Kneeland added. “It seems like (the county commissioners) are ignoring what doesn’t work for them,” she said. “They’re doing it at their own peril, because they’re walking into unconstitutional territory.”

But Morgan said that he doesn’t think Carlson’s ruling undermines his proposed ordinance. Carlson’s ruling was based on existing law; it doesn’t speak to whether the county board would have the authority to give themselves that power, he added.

As a “home rule” county, Lane County has additional authority to set its own laws in certain policy areas, including elections, Morgan said.

“I don’t see anything in the law that says that examining an initiative’s ­legality has to come ­after it’s been voted on,” he added. “Yes, that’s the order that it has always been done. But that doesn’t mean it can’t be changed.”