08/09/2007: "Gaylord Warns SJC May Be Sued Over Referendum"

Having originally advised the Council to sue to resolve a question on the legality of the referendum, Gaylord has now warned that “If this referendum should pass, the county could be open to a lawsuit by a third party.”

Gaylord does not name who that third party may be, but The Friends of The San Juans have a history of entering into lawsuits to stop County actions and legislation they do not agree with; even when citizen support is overwhelmingly in support of the action or legislation.

Based on some correspondence from the Friends to the County, it is clear they are already looking at ways to fight the referendum, both through normal legal means and through the shaping of public opinion.

The County has now issued a Press Release that claims that “Gaylord had already initiated meetings with County staff and individual members of the Council to discuss various options, including that ( dismissal of its lawsuit ) possibility”.

This has come as a surprise to at least two of the Councilmember. We called Councilman Alan Lichter, who had originally voted for the suit, and Councilman Rich Peterson, who had voted against it, to ask if they had been contacted by Gaylord about the possibility of dropping the suit.

Lichter said that Gaylord had “never initiated a discussion or contacted me on the possibility of dropping the suit” and then added that he “was quite surprised to read this, since it was Gaylord that offered the emphasis to enter into this court case”. Peterson said that while he and Gaylord had discussed the case in some detail, “Gaylord had not suggested to the Council, or to me personally, the possibility of dropping the suit”

Gaylord is quoted as saying ““It was clear that so many issues – ranging from the rationale for the fee itself, to the intent of the freeholders, the initial handling of the petition submission and the timing of the lawsuit – had become so emotionally and publicly inter-twined, that prospects for an outcome that all parties would consider untainted, were dim.”

But he then goes on to directly criticize Gavora, and indirectly the 2000 plus register voters who signed the petition to put the question of how the “fee”, or the “tax” -depending on who you ask- to a vote of the people, by stating “Alexandra Gavora is an attorney who is attempting to overturn an ordinance that was adopted after more than six months of research and deliberation by a citizens committee, hundreds of hours of County staff time, consultation with experts in the field, and an extensive publicity campaign – including news coverage and paid advertising – that gave the public an opportunity to participate in the outcome,”

While Gavora was the named sponsor of the drive (there has to be a name), she was just one of many who helped obtain signatures, and, as it turned out for her, unfortunately the one whose name appeared on the county’s legal documents .

Why Gaylord choose to sue her instead of utilizing the inter-government process of simply going to court to obtain a temporary restraining order against the referendum appearing on the ballot, is not addressed in the press release. Mr Gaylord had threaten to file such a restraining order when arguing in Superior Court that Gavora should have less time than normally allowed to respond to the suit; a request that the Court turned down .

In response to questions from the County Council as to why it was necessary to sue a citizen, Gaylord had said that it was simply a suit asking the court to look at a legal issue, and because Gavora was the one that signed and filed the signature petitions, that was the one that had to be named.

But in the press release Gaylord goes after Gavora by stating that “I felt it is reasonable to expect the person who presents an action seeking to invalidate all of that work ( coming up with a fee schedule) and potentially take the county out of compliance with state Growth Management law, should be in a position to defend her legal standing.”

Gavora said she last practiced law 20 years ago, and then only did tax law, and so was hardly in a position by experience, training or financially to take on her own government in a law suit. She also noted that even when Gaylord loses a case, he has a history of appealing and continuing legal action.

Gaylord had also asked that the County be awarded legal fees in the case, so had Gavora lost, she would have been personally liable for her own legal fees, but also may have had to pay the legal fees and costs of her County that sued her.

Gaylord is quoted as stating he “made a point to call Ms. Gavora and agreed to work around her personal schedule and to work quickly to try to avoid disrupting the political campaign, if the county did not prevail.” Gavora does not agree with this, and points out that he did not contact her when he could have, but only when a newly created deadline was near.

As for her being served papers on a Wednesday night at 9:40 at her home, Gaylord states “Frankly, I found comments made about how ashamed we should be for having standard legal notices delivered to the petitioner, an attorney who knows how the process works, to be disingenuous at best.”

One of the complaints made by the County council, and by Gavora, against Gaylord’s handling of the case was the fact that it was Gaylord who wrote the text of the petition, and then later said that the referendum was not legal, but had said nothing at the time. One of the councilmen stated that he felt like this was “pulling the rug out from under” the referendum process.

Gaylord is quoted as saying that he will work with the council to create a fair and clear process for dealing with citizens who wish to exercise their right to petition for a vote on initiative or referendum issues. “It makes sense that this process includes fair warning to referendum sponsors that they may have to appear in court and tell a judge why their proposal is consistent with the law,” said Gaylord.