Thursday, March 21, 2013

Why Judge Winkler should rule to allow the referendum

As dozens and perhaps hundreds of volunteers throughout the City busily gather signatures to place the Parking Plot referendum before the voters, they all have one underlying question: Will Judge Winkler allow the referendum to proceed to the ballot?

COAST does not know the answer to that question, but after reviewing the briefs in this matter we know that he certainly should.

The issue is not a political one, for the Judge's job is not to decide whether the Parking Plot was correct.  Rather, his decision is entirely is a legal one -- an interpretation of state law and the City Charter -- and it should be decided entirely independent of the underlying policy issues.

Fortunately for COAST and the broad coalition arrayed against the Parking Plot, the coalition's legal arguments to allow the referendum are correct.

This is so for several reasons, but primarily because the City Charter tells us, unambiguously, that ALL ordinances are subject to referendum.  There is no exception to this provision of the Charter.

The Charter does then proceed to allow emergency ordinances, but it does not tell us that the effect of an emergency ordinance is to avoid referendum.  Indeed, subject to that referendum right of the citizenry, emergency ordinances can go into effect immediately.  But, again, that does not change the right of the people's veto by means of the referendum.  Thus, the Parking Plot can proceed only subject to the vote in November.

Beyond all that, the failure of the Council to follow state law and pass the claimed emergency ordinance by a two-third vote -- as opposed to the parliamentary "trick" of passing an emergency clause only -- dooms the attempt to make it an emergency ordinance.  (This is of course the drama behind Chris Seelbach's entirely dishonest "Judas" act, wherein he voted for the "emergency" to attempt to avoid the public referendum, but then opposed the Parking Plot ordinance itself.  The irony is that Chris Seelbach's betrayal is what ultimately may doom the Ordinance.)

Finally, there is a curious provision of the City Charter allowing that a 3/4 Council vote is needed to reallocate powers of a City Department, which the Parking Plot does.  The Council, of course, never reached that 3/4 threshold on any of its votes, procedural or substantive.

So, please go get signatures on the confident position that the issue will ascend to the ballot, because legally it certainly should.  The coalition's legal arguments are solid and correct, and Judge Winkler certainly should permit ballot access for the issue. 

A copy of the coalition's trial brief is here.

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