Newberg Graphic: Judge delays ruling in Grum vs. Newberg

By editor • May 27th, 2010

Government — Lawsuit by local man charges that the city wrongfully turned down his initiative petitions

By: Amanda Newman
Published: 5/26/2010 12:00:00 PM

There was no ruling Monday in Hank Grum’s lawsuit against the city of Newberg, when the parties involved gave their oral arguments in Yamhill County Circuit Court.
After Ross Day, representing the plaintiff, and Tom Sponsler, representing the city, gave their best arguments, Judge Cynthia Easterday said she wanted to take the case under advisement, a legal term for deliberation. She did not say when a ruling could be expected.
Grum submitted five similar initiative petition proposals to the city last year, each proposing a referendum system for increased city taxes, fees and charges. All five were rejected. Elections officer Dawn Wilson said they violated the one-subject rule in the Oregon Constitution and did not qualify as municipal legislation.
In December, Common Sense for Oregon, an Oregon advocacy group that fights what it sees as challenges to Oregon’s initiative and referendum system, filed a lawsuit against the city on Grum’s behalf. Wilson was also named in the suit.
In court Monday, Day, executive director of Common Sense for Oregon, insisted that the proposed initiatives did meet the one-subject rule. The subject was referring revenue increasing methods, he said, and the fact that taxes, fees and charges are all addressed does not affect that.
Day pointed to state legislation, such as last year’s Transportation Act and Measure 67, approved by voters in January, which include both tax and fee increases. “If legislation which addresses taxes, fees and charges violates the single-subject rule, then (that legislation) also violates the rule,” he said. “The single-subject test is not a high hurdle to climb, it isn’t, but the city wants to think that it is.”
On the claim that the proposed initiative was not the proper subject of municipal legislation, Day argued that the initiative wouldn’t reverse any city council decisions or restrict council authority.
There might be political reasons to not allow the petition, he said, but those should be saved for an election campaign.
Sponsler, who helped craft the League of Oregon Cities’ model charter on which Newberg’s charter is based, cited several of the same cases, but said, “We have a very different way of looking at the argument.”
He maintained that there are “many more than one subject in the proposed petition,” citing the taxes, fees and charges addressed as well as the fact that the petition would affect different sections of the city charter. As the petition is retroactive, potentially affecting decisions back to Jan. 1, 2009, it could affect four fees or charges already in place, he said.
“The legal implications of this are unclear and unknown — and probably unknowable in advance,” he said. He also pointed out that some sections of the initiative would be unworkable, such as a clause referring to putting revenue increases to a vote of the people within 30 days. Elections cannot be held at that short notice, he said.
“I think Mr. Day confuses the legal authority voters have when it comes to city charters,” Sponsler continued. Voters and the council have the same legislative authority, he said, but only the council has administrative authority.
Day later countered that fees and charges are only administrative changes because “that’s how the city has deemed them.”
Sponsler’s final argument came as a surprise to Day and Easterday. The proposed petition would amend six sections of the charter and add 1,025 words, he said — about one-third of the size of the whole existing charter. That, he said, made it a revision rather than an amendment … and state process does not allow for voter revisions of city charters.
Day raised an objection, saying that issue had not been raised in his talks with the city or in the city’s legal brief. Easterday said she, too, had not seen the argument before.
But after the three conferred, they agreed that the point was nearly moot. If Easterday finds that the petition addresses multiple subjects, that’s nearly the same as finding it to be a revision … but Grum will be out either way. If she finds that the petition does meet the one-subject rule, it won’t be considered a revision.
Easterday said she wanted to take the case under advisement to have time to read through the various cases cited by both sides.