/ / N THE CRCUT COURT FOR THE STATE OF OREGON FOR THE COUNTY OF WASHNGTON STATE ex rei MAE HEDE, chief ) Cl53006 Case No. petitioner of nitiative Petition ) 2015-01 i (City of Tualatin) ) MANDAMUS PROCEEDNG ) v. ) ALTERNATVE WRT OF ) MANDAMUS CTY OF TUALATN, an Oregon ) municipal corporation; and ) Not subject to mandatory arbitration SHERL YN LOMBOS, Elections ) Officer, City of Tualatin ) Prayer: $ 0.00 ) Defendants. } cv 1 TO: City of Tualatin, Sherilyn Lombos (as Elections Officer of the City of 2 Tualatin) and their attorneys: 3 From the petition of the State of Oregon on the relation of Mae Heide, the 4 following facts appear: s JURSDCTON 6 1. 7 This Court has jurisdiction over this mandamus proceeding pursuant to ORS 8 34.120(1). The Court issues this Writ pursuant to ORS 34.130(3). 9 PARTES 10 2. 11 Realtor Mae Heide is chief petitioner of nitiative Petition 2015-01 i, an initiative 12 petition to amend the charter of the City of Tualatin, Oregon, and is seeking to require Page 1 ALTERNATVE WRT OF MANDAMUS ROBERT E. KELLOGG, P.C. 503.486.5041/ROBERT@REKPC.COM
1 Defendants to administer nitiative Petition 2015-01 i pursuant to the version of Tualatin 2 Municipal Code, Chapter 1-24 (regulating the manner of exercising initiative powers for 3 municipal initiative petitions) in effect at the time her prospective petition was filed and 4 certified by Defendants under ORS 250.270(1). 5 3. 6 Defendant City of Tualatin is an Oregon municipal corporation located within 7 Washington County, Oregon. Defendant Sherilyn Lombos is the City of Tualatin's Chief 8 Elections Officer, as that role is defined in ORS 254.005. 9 QUESTONS PRESENTED 10 4. 11 (a) Whether Realtor's filing of a prospective initiative petition created a vested 12 right in Realtor for Defendants' administration of nitiative Petition 2015-01 i pursuant to 13 the version of Tualatin Municipal Code, Chapter 1-24 (regulating the manner of 14 exercising initiative powers for municipal initiative petitions) in effect at the time her 15 prospective petition was filed? 16 (b) Whether the certification of Realtor's prospective initiative petition by 17 Defendant Lombos pursuant to ORS 250.270(1) enjoins Defendant City of Tualatin from 18 administering nitiative Petition 2015-01 i under a different, more restrictive set of 19 municipal regulations enacted subsequent to the certification of Realtor's prospective 20 initiative petition? 21 MATERAL FACTS 22 5. 23 On April 28, 2015, Realtor submitted a prospective initiative petition to Defendant 24 Lombos (the "Petition"). The Petition was filed in an effort to initiate a ballot measure 25 that would, if approved, amend the City of Tualatin's charter to impose term limits on the 26 City's elected officials. Page 2 ALTERNATVE WRT OF MANDAMUS ROBERT E. KELLOGG, P.C. 503.486.5041/ROBERT@REKPC.COM
1 6. 2 Prior to submitting the Petition, Realtor made substantial, good faith efforts in 3 planning and organizing the initiative campaign represented by the Petition. 4 7. 5 On the date the Petition was submitted, Defendant City of Tualatin regulated the 6 municipal initiative and referendum process pursuant to Tualatin Municipal Code 1-24 7 ("TMC 1-24"). On the date the Petition was submitted, TMC 1-24 provided that, in 8 relevant part, the City's regulation of the municipal initiative and referendum process 9 was administered pursuant to ORS 250.255 et seq. 10 8. 11 By letter to Realtor dated May 5, 2015, Defendant Lombos certified, pursuant to 12 ORS 250.270(1), that the Petition met the requirements of (i) Article V, section 1(2)(d) 13 (the "single subject" rule), and (2) Article V, section 5 (the City's regulation of the 14 "manner of exercising" the initiative power by citizens). A copy of the May 5, 2015, 15 letter is attached to this Writ as Exhibit A and is incorporated in its entirety into this Writ. 16 9. 17 On May 11, 2015, the Tualatin City Council convened a scheduled executive 18 session, work session and Council meeting. Following the completion of the Council 19 meeting agenda, Tualatin's Mayor, Lou Ogden, announced that he was adding an item 20 to that agenda. The item added to the agenda was the consideration of an ordinance, 21 number 1381-15, amending TMC 1-24 (the "Ordinance"). A copy of the draft Ordinance 22 was then circulated to the members of the Council. Thereafter, the Council deliberated 23 and, ultimately, voted to approve the Ordinance. A copy of the Ordinance is attached to 24 this Writ as Exhibit B and is incorporated in its entirety into this Writ by reference. A 25 video recording of the May 11 Council meeting is submitted with this Writ as Exhibit C 26 and the content of that recording is incorporated in its entirety into this Writ by 27 reference. Page 3 ALTERNATVE WRT OF MANDAMUS ROBERT E. KELLOGG, P.C. 503.486.5041/ROBERT@REKPC.COM
1 10. 2 The provisions of the Ordinance deviate significantly from those of ORS 250.255 3 et seq. n relevant part, the Ordinance: (a) reduced the time frame for collecting 4 signatures on an initiative petition from the two years allowed by ORS 250.265(7) to 180 5 days (Ordinance at 1-24-050), and (b) declared that "an initiative measure that qualifies 6 for the ballot will be placed on the ballot at the next available statewide general 7 election," or once every two years (Ordinance at 1-24-070), as opposed to ORS 8 221.230 (as amended by HB 2957, signed by the Governor on April 22, 2015), which 9 allows for "city measures" to be placed on the ballot in an election held in May or 10 November of every year. 11 11. 12 The Ordinance included an emergency clause stating that it was "necessary for 13 the immediate protection of the public peace, health, safety and welfare and takes effect 14 immediately upon adoption" (Ordinance, section 4). The Ordinance also included an 15 "Applicability" section, stating that "[T]he provisions of this ordinance apply to any 16 petition initiated or referred after the effective date of this ordinance and for which the 17 City Manager has not approved the petition for circulation of signatures" (Ordinance, 18 section 2). 19 12. 20 By letter to Realtor dated May 12, 2015, Defendant Lombos provided a copy of 21 the ballot title prepared by Tualatin's City Attorney. The ballot title was printed in the 22 Tigard-Tualatin Times on May 14, 2015, and the May 21 deadline for filing an objection 23 to the ballot title passed without the filing of an objection. The May 12 letter did not 24 include any mention of the Ordinance and the significant changes made to TMC 1-24. 25 A copy of the May 12, 2015, letter is attached to this Writ as Exhibit D and is 26 incorporated in its entirety into this Writ by reference. 27 ll Page 4 ALTERNATVE WRT OF MANDAMUS ROBERT E. KELLOGG, P.C. 503.486.5041/ROBERT@REKPC.COM
1 13. 2 By letter to Realtor dated May 28, 2015, Defendant Lombos informed Realtor 3 that the Petition was now designated as nitiative Petition 2015-01 i, and that Realtor 4 was authorized to circulate nitiative Petition 2015-01 i for signatures. The letter also 5 stated the required number of verified signatures required for placing nitiative Petition 6 2015-01 i on the ballot was 2,1 09, which figure was determined as of the April 28 date of 7 the filing of the Petition. The May 28 letter also noted that, pursuant to the recently- 8 amended TMC 1-24, the signatures must be gathered within 180 days, which the letter 9 states is no later than November 24, 2015. A copy of Defendant Lombos's May 28 10 letter is attached to this Writ as Exhibit E and is incorporated in its entirety into this Writ 11 by reference. 12 BASES FOR RELEF 13 14. 14 Articles V 1 (5) and X 2 of the Oregon Constitution, read together, 15 reserve the initiative and referendum rights to amend a municipality's charter to the 16 qualified voters of that municipality. This right, granted by the Oregon Constitution, is, 17 by definition, a fundamental right of all the qualified voters of a municipality. Petitioner, 18 therefore, has a fundamental right to submit an initiative petition to amend the charter of 19 the City of Tualatin. 20 15. 21 Realtor's filing of the Petition was a legally significant act. ORS 250.265(1) requires the 22 city elections officer to "immediately date and time stamp the prospective petition" and 23 to "retain the prospective petition." The actions required of the elections officer upon 24 the filing of a prospective petition are not merely ministerial, but trigger a rigid schedule 25 of actions to be completed by the city elections officer and city attorney, including: 26 27 (a) the requirement of the city elections officer under ORS 250.270(1) to "determine in writing whether the initiative measure meets the Page 5 ALTERNATVE WRT OF MANDAMUS ROBERT E. KELLOGG, P.C. 503.486.5041/ROBERT@REKPC.COM
1 2 3 4 5 6 7 8 9 (b) (c) requirements of section 1 (2)(d) and (5), Article V of the Oregon Constitution" no later than the fifth business day after receiving a prospective petition for an initiative measure;" the requirement of the city elections officer, after certifying the prospective petition pursuant to ORS 250.270(1), to send two copies of the prospective petition to the city attorney for preparation of a ballot title no later than the sixth business day after the prospective petition has been filed (ORS 250.275(2)); and the requirement of the city attorney to provide and certify the ballot title 10 for the city measure to be initiated no later than the fifth business day 11 after receiving the prospective petition from the city elections officer 12 (ORS 250.275(3)(a)), and to furnish a copy of that ballot title to the 13 chief petitioner (ORS 250.275(3)(c)). 14 16. 15 ORS 250.270(4) grants any elector, including the chief petitioner, the right to 16 challenge the determination of the city elections officer's certification under ORS 17 250.270(1) that the prospective petition "meets the requirements of section 1 (2)(d) and 18 (5), Article V of the Oregon Constitution." 19 17. 20 Coupled with Realtor's substantial, good faith efforts to organize the campaign 21 represented by the Petition, the rights granted to Realtor under Articles V 1 (5) and X 22 2 of the Oregon Constitution and under ORS 250.255 et seq. operate to grant Realtor 23 a vested, fundamental right in the administration of nitiative Petition 2015-01 i pursuant 24 to the version of TMC 1-24 in effect at the time the Petition was filed. Defendant City of 25 Tualatin's attempt to retroactively apply TMC 1-24 to the administration of nitiative 26 Petition 2015-01 i violates Realtor's vested, fundamental right in contravention of the 27 common law of the state of Oregon and the Due Process clause of the XV Amendment 28 of the Constitution of the United States. 29 18. 30 Defendant Lombos's May 28 letter stating that nitiative Petition 2015-01 i will be Page 6 ALTERNATVE WRT OF MANDAMUS ROBERT E. KELLOGG, P.C. 503.486.5041/ROBERT@REKPC.COM
1 administered pursuant to TMC 1-24, as amended after the date of the filing of the 2 Petition, violates Realtor's vested, fundamental right in contravention of the common 3 law of the state of Oregon and the Due Process clause of the XV Amendment of the 4 Constitution of the United States. 5 19. 6 Defendant Lombos's certification of the Petition pursuant to ORS 7 250.265(1) as meeting the requirements of Article V 1(5) (the City's regulation of the 8 "manner of exercising" the initiative power by citizens) acts to enjoin the Defendants 9 from administering the nitiative Petition 2015-01 i under a version of TMC 1-24 different 10 than the version of TMC 1-24 that was in effect on the date that the Petition was 11 certified by Defendant Lombos. 12 20. 13 For any or all of the above grounds, Realtor is entitled to the relief she seeks in 14 this Writ. 15 21. 16 Realtor has no plain, speedy or adequate remedy at law. Realtor's time period 17 for gathering signatures on nitiative Petition 2015-01 i, as reduced by the Ordinance, is 18 151 days from the filing of this Petition. f the relief requested herein is denied, Realtor 19 must proceed under ORS 28 (Declaratory Judgment). There is a reasonable likelihood 20 that the resolution of such a proceeding, much less any appeals, would not occur within 21 those 150 days. 22 ALTERNATVE WRT 23 WHEREFORE, immediately after the receipt of this Writ, Defendants are 24 commanded as follows: 25 (1) to administer nitiative Petition 2015-01 i pursuant to the provisions of Tualatin 26 Municipal Code, Chapter 1-24, in effect on April 28, 2015, and Page 7 ALTERNATVE WRT OF MANDAMUS ROBERT E. KELLOGG, P.C. 503.486.5041/ROBERT@ REKPC.COM
1 (2) to return this Writ with a certification of compliance no later than 2 -;:_( ~ 2015, at L : :2 c2~ or pm) in Roomjo /Ut the 3 Washin ton County Courthouse, or to appear before this Court and show cause why 4 they have not done so. 5 PRAYER 6 Petitioner prays for the relief requested above and any other relief the Court 7 deems just and equitable. Dated this d..jt!h day of June 2015. Submitted by: Washington County Circuit Court ~~-rarn::. Kellogg, OSB# 060786 8215 SW Tualatin-Sherwood Road Suite 200 Tualatin, OR 97062 0: (503) 486-5041 F: (503) 296-2307 robert@rekpc. com Of Attorneys for Realtor Page 8 ALTERNATVE WRT OF MANDAMUS ROBERT E. KELLOGG, P.C. 503.486.5041/ROBERT@REKPC.COM
1. City of T ualattn www.ci.tualatin.or.us May 5, 2015 Mae Heide 10375 SW Kiowa Street Tualatin, Oregon 97062 RE: Prospective nitiative Petition for Tenn Limits. Dear Ms. Heide: As the City Elections Official for the City of Tualatin, certify the following: 1 lr received a prospective initiative petition for a Charter amendment, entitled ~ :~~::: ::~:~:::.~~::~d::::::p::o:::: :::you measure meets the requirements of Article V, section 1(2}(d) and (5) of the Oregon Constitution.. prep ration of the ballot title. ha e assigned the petition the following identification number: 2015-01i. 1 Sinc+rely, ~~~ Sherilyn Lombos City Manager/City Elections Official EXHBT A page 1 of 1 18880 SW Martfnazzi Avenue Tualatin, Oregon.97062 709fJ.. 503.09fJ...2000 l~-- - -- -- - ----- - - --- - - ------- - ------- ------------- ---- - ---- -- - -
-!!! \ 1 i l l i i ; l i l l May 12.2015 Mae Heidi 10375 SW Kiowa Street Tualatin, OR 91062 City of Tualatin www.ci.tualatin.or.us RE: Prospective nitiative Petition. 2015-0li. Ballot Title As required. am providing you a copy of the ballot title for prospective initiative petition 2015-0li which was prepared by the City Attorney. have provided notice to the Times for publication of the required language in the next available edition(which will be Thursday, May 14). The deadline to file a petition to review the ballot title is no later than the 7th business day after the ballot title is filed with me, i.e., 5 p.m., May 21, 2015. Sincerely~ -~~~- Sherilyn Lombos City Manager City Elections Official enclosure! : EXHBT B page 1 of 2 18880 SW MarHnazzi Avenue Tualatin, Oregon 9706.2-709! 1503.69.2.2000 - - - -------- --- - --- ----- -- ----- - --- --------
.J i CERTFED BALLOT TTLE TO CTY ELECTONS OFFCAL NTATVE 2015-01i C± tion: Charter Am. endment Establishing T enn Limits for Members of City Counctl Q tlon: Should members of City Council be term limited to serving no more than 12 y rs in any 20 year period? Sul mary: The measure would amend the City Charter to impose term limits on all me~rs of City Council. The measure would restrict a person from serving on City C~ncil to no more than 12 years in any 20 year period. The 12-year term limit would a ly to the total time served on City Council, regardless of whether a person served as Ma or, Councilor, or both, during the 20 year period. The measure would also prohibit a pe on from serving on City Council if the person coufd possibly exceed the 12-year te limit by completing another term of office, despite the person having actually ed less than 12 years. The measure would apply term limits retroactively, including current members of City Council. The measure would not prohibit current me bers of City CouncB from fulfilling their current terms of office. f voters approve the m 1 sure, the current Mayor and two current Councilors would be term limited upon co elusion of their current terms. The measure would calculate a year of service to me n 365.25 days. l EXHBT B page 2 of 2 May 12, 2015 ~ 1 of 1. : r
ORDNANCE NO. 1381-15 AN ORDNANCE RELATNG TO ELECTONS, NTATVES, REFERENDUMS, AND REFERRALS; AMENDNG TUALATN MUNCPAL CODE CHAPTER 1-24; AND ADDNG NEW PROVSONS. WHEREAS, pursuant to Article X. section 2 of the Oregon Constitution, the City of Tualatin has "home rule" authority over the civil affairs of its City; and WHEREAS, pursuant to Chapter, section 4, Chapter ll, section 6, Chapter V, section 23, and other relevant provisions of the Charter, the Council has the power to provide for the manner of elections and the process of initiatives, referendums, and referrals; and WHEREAS, the Council wishes to regulate the manner of elections and the process of initiatives, referendums, and referrals in the City of Tualatin. THE; CTY OF TUALATN ORDANS AS FOLLOWS: Section 1. Tualatin Municipal Code Chapter 1-24 is deleted and replaced with the following: 1-24-010 nitiative and Referendum. The initiative and referendum powers reserved to the legal voters _of Tualatin by Article V, section 1 (5) and Article X, section 2 of the Oregon Constitution must be exercised as provided by state law, except to the extent modified by the Charter and this Chapter. 1-24-020 Council Referral of Measures. (1)The Council may submit a measure to amend the Charter or propose an ordinance to the legal voters of the City by resolution of the Council without an initiative petition. (2) The Council may submit an advisory question or measure to the voters by resolution without an initiative petition. The vote on the advisory question or measure does not enact the matter into law and has no binding effect on the actions of the Council. (3} A resolution of the Council to submit a measure to the voters must call for an election on the measure, state the specific date the election is to be held, and provide the full text of the measure to be considered by the voters. The date the election is held may be any general, primary, or special election as determined by the Council. 1.. 24-030 Proposal of nitiative and Referendums by Elector. Any elector qualified to vote in the City is authorized to propose an initiative or referendum. nitiatives or referendums proposed by persons who are not qualified to vote in the City will not be considered. EXHBT C page 1 of 3
1-24-040 Number of Signatures Required. {1) nitiative petitions to propose a new Charter, Charter amendment, or ordinance must be signed by not less than 15 percent of the registered voters of the City. {2) Referendum petitions against any ordinance or measure must be signed by not less than 1 0 percent of the registered voters of the City. (3) Only registered voters of the City are qualified to sign a petition for initiative or referendum. (4) All signatures gathered must be original signatures. 1-24-050 Filing Signatures. ( 1) All signatures for an initiative must be filed with the City Recorder for signature verification within 180 days after the initiative petition is approved for circulation. (2) All signatures for a referendum must be filed with the City Recorder for signature verification within 30 days after adoption of the ordinance sought to be referred. (3) All signatures filed will be forwarded to the appropriate County elections official for verification of the number arid authenticity of signatures. 1-24-060 Ad!Jption of Measures; Conflicting Provisions. (1) A measure is not adopted unless it receives the affirmative majority of the total number of legal votes cast. (2) f, at the same election, voters approve two or more measures on the same subject matter, or where two or more measures contain conflicting provisions, the measure receiving the greater number of affirmative votes is the law adopted. 1-24-070 Election Dates for nitiatives and Referendums. (1) An initiativ~ measure that qualifies for the ballot will be placed on the ballot at the next available statewide general election. (2) A referendum measure that qualifies for the ballot will be placed on the ballot at the next available statewide primary or general election, unless the Council finds that the public interest in a prompt resolution outweighs the costs associated with a special election. f the Council calls for a special election, the Council by resolution must specify the date upon which the special election is to be held. 1-24-080 Ballot Title and Explanatory Statement. The City Manager or City Attorney will prepare and submit the ballot title and explanatory statement for any municipal EXHBT C page 2 of 3 ~ ~ l
legislation referred by Council, or initiated by petition, consistent with this Chapter and state law. 1-24-090 Separate Vote Requirement for Charter Amendment. Every amendment to the City Charter must be separately stated. Whenever two or more amendments are submitted to the electors at a single election, they must be separately voted upon, and the votes in favor and against must be cast separately. This requirement for a separate vote is to be interpreted to have the same meaning as the separate. vote requirement set forth in the Oregon constitution, and cases interpreting it. Section 2. Applicability. The provisions of this ordinance apply to any petition initiated or referred after the effective date of this ordinance and for which the City Manager has not approved the petition for circulation of signatures. Section 3. Severability. Each section of this ordinance, and any part thereof, is severable. f any part of this ordinance is held invalid by a court of competent jurisdiction, the remaihder of this ordinance remains in full force and effect. Section 4. Emergency. This.ordinance is necessary for the immediate protection of the public peace, health, safety and welfare and takes effect immediately upon adoption. Adopted by the City Council this Jj_ Day of _JV/-+ = -"fy-, 2015. :~~ OREGON Mayor APPROVED AS TO FORM ATTEST: BY ~ EXHBT C page 3 of 3
Exhibit D A video recording of the May 11 Council meeting is enclosed with this petition. The video is also available at: http://tualatinoregon.pegcentral.com/player.php?video=ff2 76399dde14d794eddfd9f3c5ee999
City of Tualatin www.ci. tualatin.or. us May 28, 2015 Mae Heide 10375 SW Kiowa Street Tm~latin, OR 97062 RE: Circulation ofpr(llil2ective City nitiative Petition, 2015-0li As the City Elections Official for the City of Tualatin, do hereby certify that the following is true: have contacted the State Elections Division who verified that a Statement of Organization has been filed. have reviewed the text of the initiative petition and have verified that the text reads exactly the same and is formatted the same as the text submitted with the prospective petition on April28, 2015. have reviewed the cover sheet and have determined that it incorporates all of the requirements, including formatting and is therefore approved for circulation. have reviewed the signature sheet and have determined that it incorporates au of the requirements, including fmmatting and is therefore approved for circulation. Tualatin Municipal Code 1-24-040 dictates that the number of signatures required is 15% of the registered voters of the City on the date the prospective initiative petition was submitted (Apri128, 2015). Therefore, the total number of signatures required is 2,109 and is based on the following calculation: Washington County total number of registered voters = 12,165 x 15% = 1,R25 Clackamas County total number of registered voters = 1,892 x 15% = 284 Tualatin Municipal Code 1-24-050 dictates that all signatures for an initiative must be filed with the City Recorder for verification within 180 days after the initiative petition is approved for circulation. Therefore, the last day to submit signatures for verification is November 24, 2015. ' ~ ',, f; H.! ~ i' Please be reminded that ifthe residence address ofthe chief petitioner changes or if the circulators pay status changes., new cover and signatures sheets with the con ect infmmation must be submitted for approval. Sincerely, Sherilyn Lombos City Manager City Elections Official EXHBT E page 1 of 1 18880 SW Martinazzi Avenue Tualatin, Oregon 9706.2-709.2 503.69.2..2000