GOLD BEACH The Curry County commissioners plan to petition the Supreme Court on the redistricting plan came to a halt Wednesday when they learned that governments cannot do so.
The petition will instead be filed by Brookings voter Ed Gray, who is also a port commissioner for the Port of Brookings Harbor. (See related story on this page.)
The commissioners had been asked by city and port officials Tuesday to take the lead in petitioning the Supreme Court on Secretary of State Bill Bradburys redistricting plan.
They continued their regular meeting to Wednesday morning to allow County Counsel Jerry Herbage time to find out what the commissioners could legally do.
When the meeting reconvened, Herbage told the commissioners that according to article 4, section 6 of the Oregon Constitution, only voters can initiate a petition to the court on redistricting. He said appellate law agrees with that.
Herbage also said it would not be appropriate to send a letter composed by Commissioners Rachelle Schaaf and Marlyn Schafer to the Supreme Court as it would constitute ex parte contact in the case.
Herbage said it looks like some petitions will be filed by citizens. He said the commissioners would then have the option of filing an amicus curiae brief in the case.
That would allow the commissioners to advise the court on the issue through a short document, which could contain the points made in the letter. No oral argument would be allowed, and there would be no filing fee.
Because of temporary rules recently adopted by the Supreme Court, said Herbage, the amicus curiae would probably have to be filed by Sept. 21.
Herbage said he spoke with various entities and found that a certain number of counties have expressed an interest in the redistricting issue, but it appears the Association of Oregon Counties will play no official role.
He said Clackamas County agreed that counties cannot directly file petitions. Marion County offered to send copies showing what an amicus brief could look like. Herbage said he could file the brief with the court if directed to do so.
Commissioner Lucie La Bont asked Herbage if hed filed such a brief with the Supreme Court before, and if so, how much of his time it might take.
He said he hadnt, and couldnt estimate the time needed.
It would be kind of a first time thing for me, he said, though he indicated he had filed similar items with other courts.
He said it would be up to the court to allow or not allow the countys brief, but said the court has always allowed them.
La Bont said she believed similar challenges to redistricting were filed with the court in 1990. She asked Herbage if hed looked into those yet.
He said hed researched the procedural aspects of the issue so far, not case law.
Schaaf asked what options were open to the commissioners. Herbage said they could make an expression of their position to the public. He said they could also wait and see who files petitions. He warned that could be complicated by a tight time frame, since the petitions are due the same day the amicus brief would be.
He said an amicus brief goes with someone elses case, which doesnt exist yet. He said the commissioners would need to see someones petition in advance.
Schaaf asked what action the commissioners could take at that meeting. She asked if anyone in the room intended to file a petition as an individual, but no one answered. Herbage said the commissioners could make a motion, but they wouldnt know what would be filed. He said it might be possible to network to see what others are doing and obtain some petitions.
I want a document in front of me to know what we are attaching a brief to, said La Bont. She said the court may have thrown some petitions out in 1990.
Herbage said he could look into cases on the Internet and phone other county counsels. He said someone local may file a petition. At that point Gray, who introduced himself as a voter from Brookings, said he would petition the Supreme Court and would begin work on it immediately.
Schafer said she would provide him with the commissioners letter to the court, and also with a letter from former state representative Walt Schroeder making more points in the case.
Ill share my files with you, said Schaaf, and Schafer offered to do the same.
Gray, in turn, said he would provide the commissioners with a draft of his petition.
La Bont said she would continue to reserve judgment until she saw the petition.
Citizen Olive Wooldridge reminded the commissioners that Curry County is made up of a lot of people, and that many of them dont necessarily care what happens in the port districts, which are independent entities. Schafer disagreed and said governments and the county commissioners have supported each other to show unity.
Wooldridge said the word lockstep used by Mike Nielson, manager of the Port of Gold Beach in the previous meeting, frightened her. She said there are differences of opinion on the issue.
Schafer said the commissioners are just showing leadership. La Bont said since she holds a different view of the issue, it would not be showing leadership for her to follow others decisions.
Schaaf said she researched the issue thoroughly, and that as a Democrat, she had received all kinds of flak, for her stand.
She said her letter to the court is not partisan. She said the bottom line for her is that Bradburys plan divides communities of common interest.
It is not in the best interest of Curry County, she said.
La Bont asked Schaaf if shed researched past Supreme Court cases to see if those arguments had been thrown out.
Schaaf said she hadnt.
Schafer told La Bont to look closely at the Oregon Revised Statutes cited in the letter and tell her what was not correct.
La Bont said as far as the communities of common interest argument goes, if Newport and Yamhill County can be considered communities of common interest, Curry and Douglas counties are more so.
She said that is the kind of argument the Supreme Court will be looking at, not at whether or not people in Curry County like the plan.
I know how courts work, said La Bont. I want to make sure our case is solid.
When asked if the commissioners had directed Herbage to spend his time on the issue, or if such direction was necessary, he said his client is Curry County, and he assists the board of commissioners with day-to-day things.
He said if the commissioners direct him to file an amicus brief, they will do so in an open meeting.
La Bont said, Rather than spending county resources now, maybe we should wait until a brief is filed.
Schafer said she didnt wish to discuss the issue further until the commissioners had more information.
But do we need a motion for him to do preliminary research? said Schaaf.
No, said Schafer.