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Disincorporation Judge: Decision will only lead to appeal

Lawsuit asks court to overturn election ruling, disincorporate Damascus


Chris Hawes Damascus residents stuffed themselves into Clackamas County Circuit Court Judge Deanne Darling's small courtroom Tuesday, April 15, in Oregon City, filling the chairs, sitting on the floor and steps and lining the corridor outside.

A lawsuit challenging the outcome of the November 2013 election to disincorporate the city of Damascus was before Darling and brought out the crowd.

The judge considered two issues, the first a lawsuit by Damascus resident Chris Hawes against the city of Damascus, Clackamas County and the Oregon Secretary of State, challenging them because although a majority voted in favor of disincorporation, the election was declared invalid and Damascus remains a city. The second issue was a request from the city for a summary judgment against the Hawes' suit, in other words, to throw it out.

Darling heard arguments from city attorney Christopher Reive and Hawes' attorney, Paul Hribineck, but said early on that the only reason for the hearing was to provide a record for an inevitable appeal from either side.

“I believe the legislative dispute is between the citizen (Hawes) and the city of Damascus,” she said. “I will not decide today and it will be appealed either way. The only reason we're doing this is to make a case for appeal. I never had a crowd this big.”

Before dismissing them as defendants, Darling asked why the Secretary of State and Clackamas County were named as defendants.

“We have a train wreck here,” answered Hribineck. “And there are three parties. The city accepted the certification of the (election) results from the county, the county agreed that the super majority rule applied and the Secretary of State declined to do anything.”

“But why do they have to be parties?” Darling said. “I'm not inclined to giving the Secretary of State any advice or telling the county how to run elections. I will grant the request to dismiss them as parties.”

According to the judge, the “fundamental question” became whether the city of Damascus acted in a judicial or quasi-judicial manner in deciding to reject the election results.

“I think it's a form over substance argument,” said city attorney Reive, but Hribineck said the city's action was not in keeping with its charter.

“It was not form over substance and the charter makes that clear,” Hribineck said. He went on to argue that a quasi-judicial hearing requires a public hearing, which the mayor opens and closes and is followed by council deliberations and not as the council, he claimed, did at the end of an executive session.

“They didn't do any of that,” Hribineck said. "This was not a quasi-judicial hearing.”

But the heart of the matter, Judge Darling said, is the petition to contest the election and the request for summary judgment.

Hribineck said he hoped the judge would order a new election on disincorporation.

“The only remedy is that a new election be held,” he said.

Hribineck said he believes Hawes' case is valid because state law “makes absolutlely clear” that a simple majority, not a super majority, is required in disincorporation elections. A simple majority would be a majority of votes cast, while a super majority is a majority of registered voters, not just those who voted in the election. He said his point is illustrated in state legislative history.

“All the city had to do was look at legislative history,” he said. “The Legislature does not have the power to impose a super majority, even if it intended to do so.”

Hribineck cited several cases and 1983 legislation to support his claim and said the city's claim that the election must be decided by a super majority vote is unconstitutional.

“None of the facts set forth by Mr. Hawes have been disputed,” he said. “To the city it's a super majority and to Mr. Hawes it's a simple majority...On Nov. 5, 2013, the city disincorporated and the city is incorrect.”

Reive disputed Hribineck's claim that the city used the super majority standard.

“Over and over and over again we hear the city is requiring a super majority,” he said. “All we're saying is the statute required a majority of electors in the city. They're bootstrapping in saying the city required a super majority.”

Reive told the judge that Hribineck's statement would “require you to insert words that are not there” and that the judge is being asked to define a majority of electors of the city.

“If the city didn't apply super majority and 63 percent voted to disincorporate, why are we all sitting here?” Hribineck said.

Darling said she hoped to have an answer by the early part of May at the latest.

After the meeting, Damascus City Councilor Jim DeYoung said his “big hope” is that the judge grants the summary judgment. But resident Hank Brown said he would keep fighting City Hall to disincorporate.

“They're wasting a lot of our money,” he said. “They've spent a lot of money and nothing has changed.”

Brown and several other Damascus residents stood outside the courtroom and talked about the case. Marlo Dean, a former Damascus city councilor, said the fight against the city has brought residents together.

“I never knew these individuals until now,” he said. “The election to disincorporate was 3 to 1 and the people were basically voting against the mayor.”

Mayor Spinnett sued him twice during his tenure, Dean said, and even once accused the entire City Council of fraud.

But in an editorial piece Hawes published in The Outlook on Oct. 3, 2013, he wrote that the main reason people should vote for disincorporation was the city's failure to produce a comprehensive development plan, which eventually has had enormous consequences, including withholding $300,000 of state funds for planning purposes, and an act of the state Legislature that allows landowners on the edges of the city to leave Damascus and join another jurisdictions.

As campaign manager of the Citizens Committee for Disincorporation, Hawes was lead petitioner to put disincorporation on the ballot last year, because he said citizens felt incorporation had failed and the city had been turned over to politicians.

“They saw their taxes go up, received little and see the politicians wasting their money,” he wrote.

At the end of Hawes' piece, Dean wrote in readers' comments that after he was elected, Mayor Spinnett told the City Council at his first meeting that “he did not like us, agree with us and he defiantly did not have to work with us because he had the power of the people. After two years, name one good thing he has done for the city...Chris Hawes gave me a hard time when (I was) on City Council, but I do appreciate his honesty with the citizens of Damascus.”

Hawes wasn't the only person unhappy with the mayor and council and last year he was among 15 city of Damascus volunteers, about half the city's volunteer force, who resigned en masse at a June 3 council meeting over the council's ouster of former city manager Greg Baker.

Councilor Mary Westcott resigned at the same meeting because of Baker's firing. Hawes had served on the city's budget committee.

Baker received a $321,460 severance settlement on the condition that neither he or the city sue each other. It also included a $10,000 settlement in exchange for his agreement not to sue the city for defamatory statements made by Spinnett.



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