09/04/2005: "Gas Tax Litigation: Why are we doing this?"

I just paid $3.28.9 per gallon to gas up my truck. These are tough times to hit people with a new gas tax. But our State Legislators did it anyway. They have made people so mad that the tax may be repealed by initiative 912 (No New Gas Tax).

Polls show that the public has little sympathy for a bunch of big spending Seattle area politicians and their powerful corporate donors who want to raise gas taxes to pay for their pet projects. This group of powerbrokers tried to cut the legs out from under the grass roots supporters of Initiative 912 by filing a lawsuit to stop them. So whom did these big shots use to do their dirty work? Why San Juan County of course!

Our County was duped into filing the lawsuit. It is my belief that San Juan County has no logical reason for bringing this lawsuit and that the negative publicity and cost to the taxpayers far outweighs any benefits. I also believe that the litigation is politically motivated and not, as some say, only about enforcing public disclosure laws.

Here is the background and an update on the latest developments. The initial lawsuit filed by San Juan County claimed that KVI talk radio was raising money and speaking out in favor of the No New Gas Tax campaign during their broadcasts. Their alleged offense was not reporting these activities as "in kind" contributions to the Public Disclosure Commission (PDC). The broadcasting company has since complied by disclosing their contributions to the campaign. So that should be the end of it right? Not exactly.

If San Juan County's lawsuit were only about enforcing the disclosure requirements it would be over now. Instead No New Gas Tax has filed a civil rights lawsuit against San Juan County, and the cities of Kent and Seattle. They claim that the Prosecutor's lawsuit was an attempt to use the power of government to regulate free political speech.

In most places around the islands we can't even get reception on KVI radio but our Prosecuting Attorney, Randy Gaylord, with permission from the BOCC, has gotten us into a jam that could cost the taxpayers dearly in legal fees and will distract from the heavy workload already in the Prosecutor's office (something to remember at budget time).

When I first talked to Randy about the initial lawsuit he said, "It will take less that 10 hours of our time to deal with it". After the counter claim was filed he revised that projection by saying, "Yes, it will cost more now." I agree. It will cost a good deal more.

I think spending even one nickel of the taxpayer's money on this suit is wrong. We don't know how much it will eventually cost. Appeals are likely because constitutional issues are at stake. This could become a protracted legal battle. The BOCC should have taken into account the long-term nature and costs of a fight we have no business being in and been honest about their reasons for it.

When asked why he began this suit in the first place Randy grew noticeably uncomfortable and said, "You should go ask the Commissioners. I am just their attorney."

I Did. I could find no evidence that the lawsuit originated with the Commissioners. Further, in a conversation with Commissioner Ranker, it was clear he thought it was all about transportation budget issues.

I also asked Randy if he was surprised by the Civil Rights counterclaim. " Yes, we were surprised. But you can never underestimate the ingenuity of the opposing council".

The reasons we got involved do not make sense to me. The unpopular tax increase is the start of an $8.5 billion transportation program for big "down sound" projects like the Alaskan Way Viaduct, the Lake Washington floating bridges, construction of big ugly noise-reducing walls on I-5, various road improvements, and mass transit. So what does San Juan County get for leading the charge in this lawsuit?

According to the DOT website no transportation projects are proposed for San Juan County. However, if the gas tax is repealed, low priority items that may affect San Juan County could be eliminated. One example of this is the promised Inter-modal traffic study for Friday Harbor. This was one reason why Commissioner Ranker voted to authorize the lawsuit. (Do we really need a $250K study to find out why it takes traffic so long to get up Spring Street?)

In a telephone conversation I had with Randy Gaylord about the civil rights lawsuit on 8/12 he stated: "I think this is nothing more than a publicity stunt. We did not even receive the documents until late on that day (8/9). They served the media before us. I thought it was over when we got their disclosure. All we were after was to get them to admit their contributions to the campaign." Is Randy just a stickler for the public disclosure laws or was the lawsuit by San Juan County politically motivated?

The No Gas Tax defendants claim that it was. They say, "In this case, prosecutors are, quite simply, using campaign finance laws to strike a blow at the heart of free speech".

Randy Gaylord claims that, "The lawsuit we brought was to enforce the public disclosure laws."

It would seem that if this were all about violation of public disclosure laws the Prosecutors would just refer the offending talk show hosts to the Public Disclosure Commission. After all that is why the PDC exists. At least one of our County Commissioners does not recall this option even being discussed before they voted to authorize the lawsuit.

The Prosecutors could not wait for the PDC to act so they took the law into their own hands. They insist that there was not enough time for the PDC to resolve the matter. San Juan County had to intervene and do something that has never been done before. They went around the PDC to get KVI to play by the rules and change the way they were talking about the campaign on the air. Why would they panic unless they were trying to stop the campaign in its tracks? In this case talk radio was simply too effective.

If this was all about playing by the rules and not politically motivated then how do we make sense of Randy's statement in his initial press release?

"As a county, we have a lot at stake. We depend on a healthy transportation network, and the transportation package is a fair way to pay for it."

Whether you agree with the statement or not, it is obviously not about disclosure rules. It is a political statement in favor of the tax increase.

The public also thought the suit was politically motivated. In this case they clearly saw through this smokescreen to silence the talk show hosts and signed the petitions in droves. In fact, observers of the process said that the lawsuit created a groundswell of support and motivation for the petition drive. So being a stickler about the rules backfired. It had the opposite effect because it was not the only reason for this action and people knew it.

If the PDC can't do their jobs then change may be required in that department. But why drag San Juan County in to do the PDC's job? Perhaps the real reason it was done was to stop the campaign to repeal the gas tax.

The Seattle firm of Foster Pepper & Shefelman is doing most of the legal work for SJC. Their name appears on all the legal documents filed in this case.

The No Gas Tax campaign is represented by attorneys at the Institute for Justice, Washington Chapter (IJ-WA). They believe that the opposing council, Foster Pepper, has a political as well as a financial motivation in this case.

In a recent phone interview with Bill Maurer of IJ-WA he said the law firm has a "substantial self-interest" in the suit's outcome "because as an active opponent of the campaign against the initiative, they stand to gain financially if the initiative campaign is preoccupied and ultimately defeated." The suit claims that this is a violation of due process.

The Institute for Justice found some interesting documents regarding Foster Pepper. For example they are a member and big contributor to Keep Washington Rolling (KWR), the committee opposed to I-912.

It is interesting to note that the press release announcing the lawsuit did not come from the San Juan County Prosecutors office but from KWR (6/22/05) ( LINK )

The firm is also listed as bond counsel for Washington State. IJ-WA claims that if the gas tax is repealed, there is no revenue and no bonds to issue and therefore fewer potential fees for Foster Pepper. They see this as a conflict of interest and evidence of political motivation. (LINK )

Is it all about the PDC rules? Not according to the evidence. The reasons we got into this fight are not valid. The costs are not worth it. The city of Auburn pulled out of the lawsuit. We should too. It is simply not our fight.

I admit that I have been a supporter of Randy for years. He has done heroic work for our County taking on the jet-ski industry and the GMA hearings board. But the reason for taking on this particular case is baffling to me. It seems to be a tremendous waste of the Prosecutor's time and energy in a department that is always complaining about being short-handed and under funded. Perhaps someday we will know the rest of the story.

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See at DOT website