Tuesday, February 19, 2013

Recap Of The Day In Court

Today's court hearing regarding the Charter Propositions began at 10:30 am and ended at 5:00 pm. The lawyers arguing the case were Stephanie Johnson O'Day for the plaintiffs and Randy Gaylord and Jeff Even (Washington State Solicitor General) for the defense. Of the named parties, those in attendance were Jeffrey Bossler and Jerry Gonce (two of the three plaintiffs); Council members Marc Forlenza, Rick Hughes, Patty Miller, and Rich Peterson (Jarman is still recovering from surgery); and candidates Greg Ayers, Lisa Byers, and Lovel Pratt. Reporters were present from the Island Guardiansanjuanislander.com, Sound Publishing (Journal, Sounder, Island Weekly), and Orcas Issues. In the morning, there were about 40 people in attendance, dwindling down to about half that by the end of the day. The audience included former Councilman Richard Fralick, Bob Gamble of Kwiaht and the Planning Commission, Tim Blanchard of CSA and the Planning Commission, Bill Wright of CAPR, and others.

The court made no rulings. It left open the possibility of a future evidentiary hearing, but no one is really expecting that to happen. However, the judge allowed one week to accept further declarations and input from the necessary parties. After that, the judge promises to rule promptly well before the general election.

As for who "won" today, that seems to be unclear. Each side made best use of the tools that it had. For example, O'Day is getting high marks for persuasively presenting evidence about unconstitutional elements, damage to the Council members who lost out on their terms, points of policy regarding unequal size districts, conflicting ballot language, the "Lopez effect", and other matters related to standing and/or voter confusion.

On the other hand, Gaylord and Even were said to be polished and prepared, and according to many, they mounted effective legal defenses backed by substantial case law. In effect, they argued that regardless of the evidence presented by O'Day, no law was broken.

Who won seems to depend on whether you were persuaded more by O'Day's evidence than by Gaylord/Even's polish and case law (or the other way around).

A few things are clear, however. For example, it seems highly unlikely that the plaintiffs' case could ever be considered frivolous (an allegation made by Gaylord prior to this hearing). Just the fact that the judge held a hearing for 6.5 hours would seem to negate that possibility. On the other hand, frivolous or not, the burden of proof on the plaintiffs multiple causes of action is still quite high.

The bottom line is that the whole shootin' match is still in play for both sides, and Gaylord asked the court to consider remedies in the event that the judge is likely to side with the plaintiffs.


  1. The big news in the sounder is that the san juan county public works departments pollution prevevention specialist is writing a news letter telling us when the dump is open. Also that we have a new solid waste program administrator joining the staff. I am sure this will lead to alot of meetings and new thoughts on grants that maybe the staff was not aware of before.

  2. As mentioned before...too much hope is being placed on this "Hail-Mary Pass" - pro-active, determined hard working people can make it a moot point by winning the election, odds of a lower court over-turning state law is a long shot.

  3. There are plenty of tools in the toolbox.

    We recall that the prior council were all opposed to the CRC propositions (with the exception of Lovel for reasons now really clear ...)

    Apparently (can someone verify?) early last summer, Chair Miller asked Gaylord for advice as to the council's options, could they put their own measure on the ballot as well? The idea died on the vine and apparently Gaylord was not "proactive."

    We still have initiative and referendum. You can't use referendum to overturn a ballot initiative or a Critical Areas Ordinance ... however you can gather signatures to place a NEW initiative and even push for a special election in August to wind back all the harm that's been done now that the voters have had a chance to really learn what they were not informed of last Fall.

    The winter council it if chose can set these wheels in motion. They have the power to push a measure to the ballot. Of course the next council I suppose would have the same power to take it off the ballot. However, we have an unused tool called the "mini-initiative" which requires fewer signatures than a formal initiative, and directs the sitting council to hold deliberations within 60 days on the matter, and take an up or down vote or submit their own version of proposed ordinance as a ballot measure for voter approval.

    So we can attack this on several fronts affordable. The more the citizens learn about this whole deal the worse its going the smell and the more annoyed people will become over being snookered last fall. Hell hath no fury. This think is now on simmer, slowly bring to rolling boil.

  4. I hope this case prevails but it is drawing to an inside straight at best.

    Thanks Gordy. We will be nominating you for some sort of recognition.

  5. ***State of Wa. HB 1224*** proposed changes up for executive session and discussion. Changes allow small counties to opt out of GMA.

    Can one of the wiser posters here take a quick look and see if it applies to SJC. Scheduled for hearings this week.

    1. HB 1224 is not A GMA related bill. It relates to cooperative agreements with DNR.

      Are you sure you have your bill # correct?

    2. I stand corrected! I had the number wrong!

      According to the bill, yes, San Juan County would meet the criteria for exemption.

      The bill has bi-partisan sponsorship, but only east of the mountains. Interesting to see if it will get any local support.

  6. For the next set of staged League of Women Voters funny forums with the public, I proposed Susan Dehlendorf ask the collective question of the League to each of the candidates:

    "Please prove you're not a robot?"

    While all heads turn from time to time to watch her lovely husband's head explode.

  7. Bumper sticker?

    Trojan Heron is not a Robot

  8. Perhaps you were looking at HB 1167, introduced by Rep. Taylor?

    A certain well-informed candidate from Lopez mentioned this Bill publicly at the Cattle Point Forum.

    I think he was pointing out a "rearranging chairs while the ship is sinking" problem with the Council.

  9. Here, bi-partisan sponsorship, possible executive session today.

    HB 1224 - 2013-14

    Providing a process for county legislative authorities to withdraw from voluntary planning under the growth management act.


    and here


  10. Can some smart person post who to communicate with to encourage reps to support that possibility? The islands are unique and don't fit the recommended growth patterns of the GMA... unless perhaps people want one large city covering everything not owned by the land bank.

  11. Judgement delivered about an hour ago. All seven points denied. Plaintiffs on the hook for massive case and trial fees and possibly more.

  12. Hmmm ... seems rather a fishy anonymous post about the proposition lawsuit ... especially when the judge allowed to Monday for further input.

    Must be a posting by a sand lance or some pyrethrin disturbed citizen.

  13. I suspect at this point there are a number of "false flag" operations taking place in the Comments section of the Trojan Heron.


    1. Besides the bs comment above, what other ones are you referring to.

  14. On the HB 1224 thread, it is interesting, because although San Juan County would be allowed to exempt themselves, it would be too little too late : we're already compliant.

    1224 would have still required a CAO review, but eliminated numerous other requirements. The question now is - would an exemption allow us to go back and eliminate some of the burdensome requirements that have otherwise been heaped on us over the last decade.

    This is a great candidate question!

    Would you (Candidate) support HB 1224? Would you be willing to engage in the process of reviewing the impacts of the GMA and possibly removing some of those impacts which are adverse to the good of SJC residents?

    Any takers on that one?

  15. I am no longer a candidate, but I would say that I will always support the concept of creating an option to allow small counties manage our own land use, and opt out of the GMA.

    I think opting out of the GMA should include some form of specific criteria, and with some form of community input (up and maybe including a vote of the people). The GMA was created as a result of larger counties (and cities within them) not following good and well accepted policies and procedures related to planning. It was felt they required some form of State oversight and hence the GMA was born.

    We are not a large community, nor do we want to be larger or more urban. We want a rural island community without excessive regulations. We are ready to and can control our own destiny. We all love our environment. We want our open spaces. We are also a very smart group of people, who with a bit of true, un-biased and relevant information, can and should be allowed to come to ways to protect these islands we love, and love to live in.

    I can not comment specifically on HB1224 as from my reading it does not even include SJC, nor am I sure it will ever be enacted. Conceptually we must allow for exit, for departure from a regulation that was not ever intended to be applied to rural communities with a population the size of our county. Time has come to have the State allow small counties to correct their mistakes and take over their own "planning destiny" with local control.

  16. I never thought I'd miss California...