This post is going to begin with, what is a state interest?
State legislatures pass laws to address matters of public interest and concern.
A law that sets speed limits on public highways expresses an interest in protecting public safety.
A statute that requires high school students to pass competency examinations before being allowed to graduate advances the state's interest in having an educated citizenry.
A statute which addresses regulatory matters is a state interest.
Well as I have previously shown there are regulatory laws of a state interest which this city is not following.
So how do I determine what the courts would rule were I to challenge them?
Well there are 2 tests that the courts must use.
The rational basis test.
The strict scrutiny test.
In this case both tests apply as not only does this deal with violations of state laws on the books but our very charter has been violated.
The rational basis test is a judicial standard of review that examines whether a legislature had a reasonable and not an arbitrary basis for enacting a particular statute.
The term arbitrary describes a course of action or a decision that is not based on reason or judgment but on personal will or discretion without regard to rules or standards.
An arbitrary decision is one made without regard for the facts and circumstances presented, and it connotes a disregard of the evidence.
In many instances, the term implies an element of bad faith, and it may be used synonymously with tyrannical or despotic.
The strict scrutiny test is a standard of judicial review for a challenged policy in which the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy.
Now I am going to provide links.
These links are legal opinions on what home rule is today and where and if a city can conflict with state law.
These links in fairness to the city will show both the for and against arguments although the final outcome is the same.
This first link deals with land use but it defines home rule.
http://www.law.uoregon.edu/org/olr/archives/85/853burgundy.pdf
This link deals with criminal and civil home rule authority.
https://scholarsbank.uoregon.edu/xmlui/bitstream/handle/1794/9754/Diller.pdf?sequence=1
Although this is a lot of reading I ask each of you;
Now that the city is fully aware that they are in fact violating the law.
Exercising power in which they do not in fact have.
Should the 5% right of way fee be repealed, along with should all other uses of electrical funds for other municiple uses be stopped without delay?
Should this be done by this sitting council?
Should the city have to repay these misused funds back into the electrical fund?
In fairness I invite the city to weigh in on this as well.
Cody
12 comments:
Yes to all questions. One more item to discuss is a refund to the customers for being overcharged.
Thank you Cody for all of your research.
Alot of reading but well worth it.
Yes to all here as well.
They'd be bigger fool's not to.
I also want a refund.
I also thank you for your research.
P.W.D
"Now that the city is fully aware that they are in fact violating the law."
Sorry, but I can't let you slide on this one.
This statement suggests that ignorance of laws is what causes the city to violate laws. I don't think anything could be further from the truth.
The city currently determines what it wants irregardless of laws, ordinances, public opinion ect. ect.
The only time law becomes part of the discussion is if it's brought up by the public during a meeting. That's when the city relies on its attorney for absurd opinions like "The absence of an increase in property taxes is the same as a reduction in property taxes" ( our city attorney in 2009 regarding the ORS requirement that excess earnings from municipal electrical utilities be used for the reduction of local property taxes)
These type of opinions give an ethically challenged council member an excuse to follow staff recommendations. The recent decision by the Oregon Ethics Board show how reliable/accurate our current attorney's advice really is.
Don't think for a minute everyone doesn't have some responsibility for our city's ethical bankruptcy. Who hasn't stood by and watched jobs be created and filled based on political influence? How does the saying go, Silence is consent?
Forget about the current council addressing this, you couldn't even get it on the agenda.
Forget about a refund, we haven't even gotten them into compliance with the law yet.
I'm optimistic that the new council is going to at least try and do what's best for all the citizens of Cascade Locks. Let's set aside for once what might be "in it for me or my friends" or trying to show everyone "I was right all along" and help the new council focus on decisions that reflect the best interests of all the shareholders of our city.
Otherwise we will be in the same predicament 2 years from now.
"an ethically challenged council member?"
What a sweet way of putting it.
"The city is fully aware", means not just the council but the city as a whole.
The Jack is out of the box or so to speak.
"The city currently determines what it wants irregardless of laws, ordinances, public opinion ect. ect."
Oh how right you are.
"The only time law becomes part of the discussion is if it's brought up by the public during a meeting."
Do not forget written correspondence and meetings outside of council chambers.
Yet they do not care might I add.
I cannot disagree with you concerning our city attorney.
I myself question these opinions.
In reference to the opinion you spoke of might I add that the opinion referred to the law of 1934.
That opinion made council believe that this law had not been reviewed since 1934 and that certain measures of the 90's handicapped government.
Yet if you look at that specific law, you will see that it had been reviewed many times since 1934 and in 1999 in fact, not only was it amended, but a public law was enacted in 1999, where cities could use electrical funds for generation and conservation of electricity, not otherwise allowed.
I do not expect this council to put this on the agenda.
That is their choice.
My choice is then to meet with the sheriff and the D.A. on the 3rd of January to lodge a criminal complaint for abuse of public office.
It is not about me or mine or proving anything.
In hopes that criminal charges can be avoided.
It is giving this council a chance to fix their own wrongs.
Concerning the new council I have those same hopes.
Yet I have had those hopes election after election and it just gets worse.
Rest assured I will give them a fair chance as your hope is the best hope we all have.
I have that same hope as well.
Thank you for your opinion as I agree but hope I can shed some light on my side as I do not think you fully understand the whys of it all.
Cody
Well put.
P.W.D.
Has anyone else heard that BS has applied for a job with Wood Village? Guess he want two failed casinos on his record...
I hope Bernard gets that job and takes Mayor (soon to be ex) Lorang back with him.
Okay, here's how to do it. Bernard takes the job at Wood Village, Brad goes with him, the Indians develop the dog track casino and Chuck gets to develop a Port of Wood Village while Mimi puts a lighthouse in Blue Lake. John Morgan just leaves.
;)
Then I woke up.
But with a smile.
Chuck couldnt develop anything. All he wants to do is buy up property to take it off the tax roles.
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