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Island Guardian

U.S. Supreme Court Will Not Hear Top 2 Primary Challenge

The U.S. Supreme Court announced Monday morning that it will not hear the challenge by the Washington Democratic and Libertarian parties on the Top 2 Primary. This blog post (link is below) focuses on the high court’s refusal to hear the appeal.

Go here to view the cases that the Supreme Court is refusing to hear. (The Top 2 appeal case is found on page 12.)

The open primary, which allows all voters to select their favorite candidates for each office, without regard to party label, has been successfully used since 2008, when U.S. Supreme Court ruled 7-2 to allow it. The high court ruling four years ago left open the possibility of further challenges based on the way the state administered the winnowing election.

Secretary of State Sam Reed, the state’s top elections officer, let out a cheer when he heard that the U.S. Supreme Court refused to hear the latest legal challenge by the parties.

“This is a victory for the people of the state of Washington,” Reed said. “The Top 2 fits the political heritage of our state. On my first day in office as Secretary of State, in January 2001, I was served with litigation papers regarding Washington’s primary election system. I am relieved that this 12-year litigation will be resolved before I leave office.”

State Elections Division Co-Director Katie Blinn had this response to the high court’s rejection of the parties’ appeal:

“The Top 2 Primary system has been very well received in Washington because it allows voters to focus on candidates, not the political parties,” Blinn said. “We are grateful for the aggressive and strategic defense of our right to vote provided by the Attorney General’s Office.”

US Supreme Court Rules Against The Political Parties

“Even if voters could possibly misinterpret the designations, I–872 cannot be struck down in a facial challenge based on the mere possibility of voter confusion. … And without the specter of widespread voter confusion, respondents’ forced association and compelled speech arguments fall flat.”

In a 7 to 2 vote, and with sometimes strong language, the US Supreme Court has upheld Washington State’s Top Two Primary, known as I-872.

The citizens of Washington enjoyed the freedom to vote for the person, not the party, from 1936 to 2003. This privilege has been a fundamental part of a Washington states populist political culture that held the people, not the parties, ought to control the process of electing their leaders.

Washington Secretary of State Sam Reed said in an email that “I am thrilled to announce that the U.S. Supreme Court upheld the Top Two Primary, I-872! We plan to implement the Top Two in 2008.” Reed also took the opportunity to thank others in the state who fought to retain I-872, adding “I greatly appreciate the ongoing support of the elections community, the Grange, the Attorney General, and many legislators in this long effort to preserve greater choice for the voters.”

The two major political parties were less than pleased, as this will undermine their power and potential influence, since voters will not have to declare any party affiliation, and can vote for any candidate, regardless of the candidate’s political party preference. The Court rejected the political parties’ claims that this type of primary is unconstitutional.

Just as the voters of San Juan County were able to use a local initiative to overturn the County Council stormwater funding ordinance, the voters of Washington in 2004 voted for an initiative that created the so-called Top-Two plan, but it was blocked by court challenges. Challenges that have now in turn been blocked, stopped and struck down by the US Supreme Court.

Click to view the rest of the article ******

Hertel Questions legality Of SJC Voting System

Greg Hertel would like to be Si Stephens replacement as Auditor, and is running against Milene Henley for the position. One of the jobs of the Auditor is running the Elections Department of the Auditor's office, and Hertel has found fault with Si's decision to use a State approved Ballot Tracker system that San Juan County, and thirty other counties in Washington State use.

Just to make things a bit more complicated, Dan Gillespie is Si's man in charge of the Elections office, and Gillespie is currently in his own election race (with Joan White) to be the next County Clerk; but like Si, Gillespie believes Hertel's comments are misguided, and without legal foundation.

Hertel's opponent in the race, Milene Henley, told the Island Guardian that she was aware that questions have been raised by some citizens, and said she had asked County Prosecuting Attorney Randy Gaylord his opinion, and was told that the Secretary of State had found the system to be a legal system. Henley went on to say that if elected she would "request a formal opinion from the State Attorney General".

Si Stephens, who is retiring after having served as the SJC Auditor for twenty-four years, told the Island Guardian that "Ballot Tracker is like the UPS system of tracking packages or mail: UPS can tell you where a package is, but not what is in the package" , Stephens adds that the point that needs to be made is that the system that "San Juan County -and thirty other counties- use, was not only approved by both the Federal government, and the State of Washington, it was paid for by the Federal government" , and the system has been certified by the Secretary of State as meeting all state and federal laws and regulations that govern elections.

Click to view the rest of the article ******

Pro & Con Submissions On I-933

by Mike Carlson:
I-933 Is Fair & Needed

I'm writing in support of Initiative 933, the "Property Fairness Initiative". I rarely take the time to write letters to the editor but I honestly feel this type of law is needed now to protect what rights landowners have left and to help us move past the environmental battles we've been having in this state onto more creative and mutually beneficial solutions to protecting what we all value in our communities.

I believe strongly that as long as a land owner is not polluting or harming neighbors, government shouldn't have the right to take away the ability to use or benefit from your own property.

For four years I served on the citizen's advisory committee for the San Juan Island district to help write our new comprehensive plan to comply with the Washington State Growth Management Act (GMA). I volunteered happily and was enthused by the chance to take part in planning that would follow the goals of GMA which basically was pitched to us as "protecting the environment as well as property rights". I recall at least three versions of a comp plan that were passed by the county commissioners and each one was challenged by lawsuits by a small group of people and an environmental group who did not get what they wanted as far as land use restrictions. These suits were heard and decided by the governors appointed Growth Hearings Board, taking the decisions about land use away from our local elected officials each time the results were more restrictive land use laws. This story has repeated itself time and time again, from farming and timber to the controversial King County Critical areas ordinance, an un fair land use policy certain to spread to other counties in our state.

Having experienced first hand some of the effects of "overboard" land use laws I think that it is time to spread the burden of the cost of these regulations out from the individuals and families who own the land to all of us who demand the restrictions on private property. I strongly feel that we need to protect our environment AND protecting our environment can be done with a more incentive based approach such as Transfer of Development Rights, conservation easements and other means of getting the job done without just taking legal use of private property without just compensation.

I am sure this initiative if it passes will be quite chaotic for those in the environmental industry and to those in the system but I really think it is necessary to get some fairness back to those who have kept their land as part of their livelihood and well being. We have got to stop burdening people who have been good stewards of their land by taking their land use options away . If aspects of a private property are worthy of imposing a regulation the public should either find a means to compensate the private property owner or not impose the regulation.

Please join me in voting for Initiative 933.

Original Guest Column by Frank Penwell:
Stop Stealing!

I was not planning on writing a letter to support I-933, but someone is denying me my free speech by stealing "Vote Yes For I-933" signs from my property.

Those who know me know I support many environmental organizations and causes, financially and with sweat. Few can parallel my support for recycling: I started the ROAR program (Reach Out And Recycle) and Consignment Treasures building on Roche Harbor Road.

So, why am I supporting I-933? Because I-933 won't touch any law, zoning code or rule passed before Jan. 1, 1996, and by that time there were quite a few of them. Since that time many environmental laws have been passed that are over the top, out of control, and they have gone too far. That is why Oregon passed their own form of I-933, and why we should too. The best example I can give you is my brother Fred's situation.

Years ago Fred bought a small lot in a 40 year old subdivision that had 95% of the homes built. Six years ago Fred & Mervie went to build their retirement home and found out their lot was now considered a class 3 wetland.

Because of new laws, Fred & Mervie cannot plant the lawn, or build the house & garage they wanted. They were told the lot was not big enough. That's because the rules say they have to give up 83% control of their lot. He is allowed to use only 17% of his lot, unless he is willing to give King County money for environmental use elsewhere.

Before Fred & Mervie went to build, their lot was worth over $75,000. The King County Assessor has now revalued their property to $1,000. How would you like to have your retirement plans and home ruined, and lose a substantial portion of your retirement investment? In addition, Fred & Mervie's neighbors do not have to have the same regulations on their lots, simply because they built before the new laws were passed.

The harassment Fred & Mervie received was so expensive and threatening that they offered to give King County their property for free, if King County would just leave them alone. Fred & Mervie have now spent 6 years of harassment, as well as a small fortune in permit & legal costs, trying to settle the issues. This is only one example of overbearing and unfair changes in regulations. There are many more.

Politically I-933 is a property rights issue and a reaction to city people's choices to protect wildlife and natural beauty by making property owners pay for it. It has now gone beyond being strictly a rural issue, because my brother's property is hardly rural. It is a small building lot in a sub division. Simply put, this is stealing from some individuals for the benefit of others. Property that is taken by the government from people should be paid for by tax dollars, since it is explained as being a benefit for everyone.

Let's not be a party to theft from our neighbors. At some point, if you choose to be a property owner, it will affect you too. We, as well as the government, need to be respectful and fair to our neighbors. Let's choose actions like the Nisqually agreement. It is a superior alternative to top-down regulation. It is adaptive and flexible rather than bureaucratic, and it lends itself to win-win solutions instead of one group imposing its wishes on another.

Let's all pay for environmental choices with taxes, rather than steal from individuals for them. I-933 is only fair. Vote yes.
A Guest Editorial by Albert Hall:
The Wider Implications Of Initiative 933

The problem that Initiative 933 attempts to correct is that property owners are being arbitrarily restricted from the full use of their land. When a permitting authority requires over 60% of a parcel be set aside "to preserve the environment" or some other ill-defined or undefined public benefit, there is indeed a problem. But lest readers think that this writer is locked into ideological support of property owners, consider the following.

In most American communities, property owners routinely abide by setback regulations for front, side and rear yards. In one sense this is clearly a "taking." However, rather than being opposed, most understand that these setback regulations (1) are reasonable and (2) enhance neighborhoods (and the values of their respective parcels).

The setbacks of my Town of Friday Harbor residential lot consume 37.8% of the total land area; and assuming consistent enforcement throughout my neighborhood, I have no problem abiding by them. Nor do I have any problem with exceptions being granted under a well established procedure for particular circumstances.

The main distinctions between "takings" for long accepted setbacks and those addressed by Initiative 933, lie in the fact that the one is long established, near universally supported and (most important) clearly defined. Area set-asides, on the other hand, are relatively new, and arbitrary.

Initiative 933 will hopefully motivate permitting jurisdictions to articulate succinct and reasonable regulations and, after widespread public debate, seek their approval. It is quite probable that much of the present problems arise from Growth Management Act (GMA) guidelines and attempts to zealously implement their most restrictive outcomes. This is amplified by the fact that GMA appellants seemingly want to cram a one-size-fits-all template throughout the state.

While the intentions of Initiative 933 are laudable, it would be equally nice to revisit the GMA statute; and in particular to restore to local jurisdictions (and not regional hearings boards) the final determination in matters concerning the use, restrictions on and development of private property.
A column by: John Evans
Another View On I-933

I have a little different perspective on I-933 than does my friend and fellow Guardian contributor, Bill Weissinger.

I-933 is not anti environment, or for that matter, pro environment. Bill points out that Puget Sound has serious problems. He is absolutely correct. The combination of over fishing that continues to this day, industrial pollution, toxic laden rivers that flow into the Sound, thousands of two cycle marine motors spewing oil and gas into the water, exotic chemicals that we all seem prone to flush down the drains in our homes and that passes right through the sewage treatment systems into the Sound is but a short list of current problems. Add to this the thousands of tons of chlorine that we use in municipal water and sewer treatment and it is a wonder anything is alive in our waters.

Maybe it is easier for all of us to think in upland terms to visualize what is going on under our waters. When a large expanse of forest is burned in a forest fire or a clear cut, everything changes. Animals, plants insects and birds that had existed in a balance are totally disrupted. Left alone, the first plants and animals that return are the ones that can live on brush or rotted logs that are the start of the re-growth of the forest. Over the next two hundred years, the brush gives way to alders that put nitrogen into the soil. They in turn give way to hemlocks and firs and a mature balanced forest is restored once again. It takes a long time, but nature will restore the land to nature's version of highest and best use. If however, we harvest the alders, and the immature forest again, and again, along the way, or create soil conditions that will not support forest regeneration, the forest of old can never return. That is what we have been doing to Puget Sound for the last 100 years.

The fact is however, that a yes or no vote on I-933 will not make one bit of difference to this human created calamity in Puget Sound. The passage of I-933 will not improve the performance of the Fish and Game bureaucracy or stop the commercial and Indian fishers from sweeping up just about anything that crawls or swims. It will not keep toxics out of the storm water. It will not make us one bit smarter about what chemicals we allow to go down our household drains.

I-933 simply says that those agencies and bureaucrats who are doing land use planning need to be accountable to those who are getting planned. Just as the failure to plan has an environmental, social and economic cost, so does implementing a plan. I-933 says that when government plans, it needs to consider the cost of those plans to those property owners the planners are zeroing in on. If the plan is necessary for the "common good" then everyone should pay a piece of the action, not just those who, through no fault of their own, have the misfortune of being in the line of fire. That is the fairness issue that I-933 addresses, and why you, as a fair-minded person, should vote yes on I-933.

The roots of I-933 are in the rural lands of Washington, but the principle of fairness and fair play is something we all should care about. Former governors and bureaucrats would rather not have to go to the trouble of accounting for the social and economic impact of their grand ideas and notions will have on the family farms, homeowners and small businesses and employers. Being asked what is the cost and who is paying before the plans are implemented is something they have never had to consider. I guess their reluctance is understandable. It is human nature for bureaucrats and office holders to not want someone, (the citizens who employ them) looking over their shoulder. However, I think if they are finally held to account, maybe Puget Sound will be brought back to its former abundance and health. I-933 is one step in that level of accountability.

Have a great day and thank you for listening.

A column by Bill Weissinger:
The Walrus, The Carpenter, And Initiative 933

I've thanked God for fragrant flowers, hot showers and the womb-like embrace of my hot tub; for my life, my wife, and (after a brief nightly grace) for a long series of truly wonderful meals. Last Thursday night I thanked God for Hagen-Dazs chocolate ice cream. But on a more fundamental level, I've thanked God for the beautiful world in which we live.

"Be fruitful and increase in number; multiply on the earth and increase upon it," God told Noah after the Flood. Genesis 9. And certainly for the entire history of the world (well, until now) it has been easy to think of the Earth as an unlimited space meant to nurture and to serve us. And we have gone forth and multiplied. We've multiplied to such an extent that the Earth is now full up with humankind.

But our emotions and our myths take a good long while to catch up with fact. After all, in his 1865 editorial Horace Greeley said "Go West, Young Man." In the 141 years since, Americans in our myths, our dreams, our movies, have pictured the West as the land of wide open spaces John Wayne riding across the limitless prairie. And in our hearts and myths, that is the way it still is.

But the land of wide open spaces is gone. The United States' population grows by a net gain of one person every eleven seconds. Year by year, the quality of the environment gets worse. We all recognize these words from Lewis Carroll's "The Walrus and the Carpenter":

The sea was wet as wet could be,
The sands were dry as dry.
You could not see a cloud, because
No cloud was in the sky:
No birds were flying overhead
There were no birds to fly

This is a scene not of beauty, but of desolation. ("No birds were flying overhead; there were no birds to fly.") And as I look out on our Puget Sound waters day after day, we are edging closer to that scene.

Only ten percent of the seabirds survive on Puget Sound now, than did when I moved here in 1990. The ninety percent which are gone fed on herring and sand lance, the populations of which have also plummeted. Development in the Puget Sound area (along with other factors) has destroyed nursery habitat, and polluted the water so that many of the fingerlings which do hatch are deformed. It isn't just sea birds that feed on herring and sand lance; so do salmon. And while we saw shoals of salmon fifteen years ago, the populations now are only at ten percent of their historical numbers. Dead zones in the Sound are spreading. Hood Canal saw its biggest fish kill in history last month.

But what can we do about it? Something simple, and yet critical. Understand that if we want to live in an environment shared by herring and birds, salmon and whales, we can't just take what we want from the environment, wherever we want it, whenever we want it. It is easy for even the greediest of us to talk the talk of preservation:

"I weep for you," the Walrus said:
"I deeply sympathize."
With sobs and tears he sorted out
Those of the largest size,
Holding his pocket-handkerchief
Before his streaming eyes.

"O Oysters," said the Carpenter,
"You had a pleasant run!
Shall we be trotting home again?"
But answer came there none
And this was scarcely odd, because
They'd eaten every one.

The key is doing something about it, not talking about it. A genial, twinkly-eyed conservative friend of ours thinks that Orca whales will be extinct in 100 years because of development. And the Seattle Post-Intelligence on October 18 page B1, stated that three of the 90 orca whales that call Puget Sound home are missing, and that "experts believe [the] missing adult whales have died of starvation."

Our friend thinks extinction of the whales is unavoidable because of property rights that nothing can be done to stop the inevitable development. We're headed in that direction: "A landmark study in 1992 titled "Pacific Salmon at the Crossroads: Stocks at Risk from CA, OR, ID and WA," identified 214 wild spawning salmon stocks that were at risk of extinction or of special concern, including 17 stocks that were already extinct." Since then, a variety of salmon stocks in Washington State have been listed as threatened or endangered under the Endangered Species Act. It all sounds very depressing, but my twinkly-eyed friend to the contrary, we can do something. We can start by voting against Initiative 933.

Initiative 933 puts government (the State, the Town, the County) to a choice: waive environmental protections, or else pay the property owner for not being able to develop as he wishes. We can't afford to waive good laws for bad development. And it isn't just a question of current law with whales in Puget Sound apparently beginning to starve to death, we need more protection, not less.

Initiative 933 is called by its founders the "Property Fairness Initiative," but it might as easily have been named the "Hurt the Environment Initiative" or the "Kill the Whales Initiative." The environment needs our protection. And as the population of the State continues to increase, it is likely to need more protection, not less.

I know it is tempting to fight back against what appears to be increasing governmental power to regulate and even take private property. But I believe this initiative is horribly wrong.

Waiving environmental regulation (or making governments pay for it) might make sense, perhaps, in a limited way, if we had turned the corner on Puget Sound, if we had done all we needed to do, and the Sound was getting healthier each year. Turning back the clock on environmental enforcement is not the answer, when Puget Sound is in crisis.

Still thinking of voting for Initiative 933? Then consider the dramatic financial burden on the State, the Town and the County that will be imposed by Initiative 933 if it passes. Note from the Voter's Pamphlet the estimated cost over six years: $2 billion to $2.1 billion for State agencies; plus $3.8 billion to $5.3 billion for cities, plus $1.49 billion to $1.51 billion for counties. But consider this additional issue which isn't raised by the Voters Pamphlet. Initiative 933 states that anyone "seeking to enforce" the Act will be entitled to their attorneys fees. This appears to mean that even those with bogus grounds under the Act, who file suit but lose, would still be entitled to attorneys fees! This will do nothing but encourage litigation, and enrich attorneys at the cost of the County, its taxpayers, and the other County programs that will lose funding in order to pay the costs of Initiative 933.

Getting back to Noah and the Flood for a moment, after the Flood was over, Noah lowered the ramp of the ark for all the animals to leave. He said to the animals: "Go forth and multiply!" All the animals left except two snakes who lay quietly in the corner of the ark.

"Why don't you go forth and multiply?" demanded Noah. "We can't," answered the snakes. "We're adders."

If you're an "adder" too, start adding those billions up, and you'll see another reason to vote against I-933. That is what (according to the October 9th edition of the Seattle Post-Intelligencer) all six of the living ex-governors of Washington State including two Republicans will be doing.

Click to view the rest of the article ******

SJC Named In Civil Rights lawsuit

A lawsuit Suit has been filed in Thurston Co against San Juan County, and the Cities of Auburn, Kent and Seattle.

As previously reported in The Island Guardian (Link) the Cities of Auburn, Kent, and Seattle joined with the San Juan County Prosecutor, and the law firm of Foster Pepper Shefelman, to bring a lawsuit against As a result of the suit, Judge Christopher Wickham of Thurston County Superior Court ruled against on July 1st.

Attorneys for NoNewGasTax have now filed a civil rights lawsuit against the Cities of Auburn, Kent and Seattle, and -in their words- the San Juan County Prosecuting Attorney. The suit argues that their rights of free association and free speech, both of which are protected by the United States and Washington State constitutions, have been violated.

A spokesman for the group stated that In fighting the power of the San Juan Prosecutor and the Cities of Kent, Auburn and Seattle we clearly needed help. We are getting that help from the Institute for Justice. The Institute for Justice-Washington (IJ-WA), which Seattle Post-Intelligencer reporter Neil Modie called "A libertarian public-interest law firm, jumping into litigation over anti-gas-tax Initiative 912", is, according to NoNewGasTax the Institute, "a non-profit, public interest law firm that provides its services free of charge".

IJ-WA states in the legal documents it filed in Thurston County Superior Court, that the lawsuit by the cities and the County that attempted to derail the NoNewGasTax initiative, violated the constitutional guarantees of free speech, free association and due process rights of the NoNewGasTax group. IJ-WA also filed a counterclaim against the prosecutors of the cities and San Juan County on behalf of the NoNewGasTax group.

Charity Osborn, an IJ-WA staff attorney wrote."The power to regulate speech is the power to suppress speech. This case proves that politically motivated prosecutors can use campaign finance laws to suppress speech they dont likeThe prosecutors message to the people of Washington is: shut up and pay your taxes"

Bill Maurer of IJ-WA stated that there is also another side to the whole issue that "The prosecutors' action also constitutes a prior restraint on speech because both the media and campaigns will almost certainly refrain from speaking in order to avoid becoming entangled in the campaign finance laws. Whats more, the actions of the prosecutors violate due process because they have delegated their prosecutorial authority to a law firm that is both financially and politically interested in ensuring that the initiative campaign is preoccupied and ultimately defeated."

In a phone interview with Mr. Maurer, he told The Island Guardian "r said he believes they are working for free on this case" and "This raises the implication that Foster-Pepper, as an active opponent of the campaign against the initiative, stands to gain financially if it is defeated."

Mr., Gaylord's office was called for a response to the lawsuit, but Mr. Gaylord was not available. It is expected that Mr. Gaylord will have a different view on the lawsuit . We have requested a response from him, and expect to have one soon, and at that time we will share it with our readers.

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SJ County Democrats Elect Stan Wagner County Chair

STAN_WAGNER-1 (15k image)The San Juan County Democratic Party elected Stan Wagner from Waldron as its County Chair at its April 2, 2005 meeting. He joins the other officers: Marilyn Gresseth of San Juan Vice Chair, Micki Ryan of Lopez Secretary, and Steve Grandle of San Juan Treasurer. With the reorganization complete the group began the hard work of continuing their success in electing progressive county officials and the grass roots organizing required in that effort. They also prioritized Party support of the progressive movement that has been energized in San Juan County by the last election. To pursue these efforts the group voted to meet monthly; the next meeting to be in Friday Harbor on May 14, 2005.

Those interested in joining the democratic effort can contact Stan at:

or Marilyn Gresseth at:

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