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Judge hears arguments in Tualatin elections case

Decision expected by week's end on Tualatin ordinance


TIMES FILE PHOTO - Tualatin Mayor Lou Ogden (here at the 2015 State of the City address in February) and the City Council are at the heart of a lawsuit regarding term limits and the signature-collecting process for initiative petitions.An attorney for the city of Tualatin defended a controversial elections ordinance on Monday, calling it a city effort to address low voter turnout.

Meanwhile, an attorney for a petitioner upset by the ordinance called the measure a “severe restriction” that unfairly impacted his client.

Both sides presented their cases in oral arguments before Judge Eric E. Butterfield during a Monday morning hearing in Hillsboro.

The ordinance in question was adopted by the Tualatin City Council back on May 11, less than two weeks after Tualatin resident Mae Heide had filed paperwork to begin gathering signatures for a ballot initiative that would impose term limits on members of the City Council. After the council passed the ordinance, Heide promptly filed suit, asking the Washington County Circuit Court to compel Tualatin to allow her initiative petition to go forward under the rules that had been in place when she filed it on April 28.

Butterfield heard about 25 minutes' worth of oral arguments Monday, but did not issue a decision on the lawsuit.

Sean Brady, Tualatin's city attorney, argued that the City Council had acted within its right when it passed the ordinance, which came with an emergency clause attached that made it effective immediately. He contended that Heide's suit essentially asks the circuit court “to create new law (out of) whole-cloth” by exempting her initiative petition from the new rules.

The ordinance reduces the amount of time that petitioners such as Heide have to collect signatures from two years to six months. It also requires initiatives that qualify for the ballot to be put before city voters only at general elections (in Oregon, general elections are held only in even-numbered years on the first Tuesday of November).

Heide's attorney, Robert Kellogg, said the changes mark a 75-percent reduction for both signature-gathering and ballot access. He argued that Heide's petition should not be impacted by the new limits, calling it “a simple concept of fairness.”

Brady countered, noting that Tualatin has had its charter amended by initiative within the past few years in low-turnout elections, such as one in 2011 that curtailed the city's ability to make any “major change” impacting public parks without approval from voters.

“The city adopted these issues to address issues related to low voter turnout, as well as to ensure that the issues remain relevant and active going through that initiative process,” he said.

While Brady called the ordinance “non-discriminatory” on Monday, Tualatin city officials have previously acknowledged it was adopted because of Heide's initiative petition.

“There's no doubt in my mind,” Heide said after the hearing.

Kellogg also questioned the City Council's stated intent during his arguments.

“Increasing voter turnout is not the role of the government. The government is the facilitator of elections,” he said. “Its role is not to influence the outcome of the elections or determine how many people show up. That's the right of the citizens, whether they want to come out and vote.”

The attorneys also disagreed on whether the council acted within its normal procedure when it passed the ordinance. The agenda published in advance of the May 11 council meeting did not include the ordinance as an item, and the council did not move to discuss and vote on it until after 9 p.m., when most members of the public had already left. The council then passed the ordinance with an emergency clause, giving it immediate effect.

“This is not a case where my client acted in bad faith to try to get underneath a filing deadline or to work a great advantage in the process. She simply acted under the rules that were in place, submitted a petition that apparently was not favorable in the eyes of the city — and so it acted in an abnormal, emergency manner to change the rules that govern a petition and then make it less likely that it'd get on the ballot,” Kellogg said in conclusion.

Brady countered that emergency clauses are not unusual and there is no requirement that the council stick only to its published agenda at a meeting.

“Everything was normal about the way this was enacted,” he said. “It followed the law. It followed the charter. It followed state law. … Everything was normal about that meeting.”

Summary judgment has been requested in the case, and Butterfield said he would issue a decision by the end of the week.

After the hearing, Heide reiterated her belief that the city is treating her initiative petition unfairly.

“Even a child knows that you cannot change the rules of the game after the game has already started,” she said.

A divided City Council last month rejected the idea of holding a public forum to belatedly gather feedback on the ordinance. Four of the council's seven members said they would not consider revising the ordinance.

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