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Lawyers: Law cited in illegal mailer doesn’t apply to candidates, but …

Post by Lewis Kamb / The News Tribune on Nov. 2, 2009 at 3:29 pm |
November 2, 2009 4:30 pm

If you needed any further proof that a law cited in an illegal mailer distributed late last week in the Tacoma mayor’s race doesn’t apply to candidate Jim Merritt (as the mailer claims it does), two lawyers — including the attorney representing the development at the heart of the issue — told me separately today that it does not.

“Of course, it doesn’t apply to someone who hasn’t been elected,” said Aaron Laing, who represents Northshore Investors, LLC.

scales of justice“It doesn’t mean anything until you’re elected,” added David Bricklin, a noted Seattle land use attorney, who is not involved in the matter.

But Laing added that doesn’t mean Merritt isn’t putting the city at risk of a lawsuit if he — or any other would-be or current city council member — doesn’t properly follow other relevant laws when ultimately voting on the land-use issue.

“We reserve the right to challenge any council member or would-be council-member who would ignore due process rights or property rights when making a decision,”  Laing said.

The direct mail ad, which I wrote about here, claims that if elected, Merritt would not be able to vote on the controversial North Shore development issue in Northeast Tacoma because he publicly has stated his position against the project.  A spokeswoman for the state’s Public Disclosure Commission separately has said the mailer broke political advertisement laws because it doesn’t identify who is responsible for its distribution.

The mailer, which urges recipients to vote for Marilyn Strickland, cited the “appearance of fairness doctrine” as the law governing the issue. That law precludes officials on decision-making bodies from publicly stating positions on land-use issues that eventually could come before them. Citing the law, Strickland — a sitting Tacoma City Council member — has appropriately declined to publicly state a position on the North Shore project.

But part of the law notes that the “appearance for fairness doctrine” doesn’t apply to candidates who are running for office, which seems to cover Merritt’s public opposition to the project:

while campaigning for public office … no public discussion or expression of an opinion by a person subsequently elected to a public office, on any pending or proposed quasi-judicial actions, shall be a violation of the appearance of fairness doctrine.

Just to be sure, I checked first with Bricklin, whose practice is devoted to land-use issues, and later with Laing.  I didn’t tell Bricklin anything about the candidates or the race I was referring to, but rather simply asked him if the “appearance for fairness doctrine” applies to candidates running for office.

“No,” he said.  “It’s a doctrine that covers government conduct.”

Already, we reported that Merritt’s campaign had checked with an attorney and gotten the same legal opinion.  Likewise, Strickland, who said she had nothing to do with the mailer, told me last week that the law doesn’t apply to Merritt, either.

Laing agreed that, on its face, the doctrine doesn’t apply to Merritt’s opinions as a candidate. But he  also noted that if Merritt or anyone else acts purely on opinion — and ignores prevailing land-use law or due process rights — when officially deciding the North Shore development issue, they’re certain to draw a legal challenge.

“The fact is, the city council will be acting in a quasi-judicial manner on the North Shore development, and so that raises the question:  On what basis is it appropriate for a city council member or a would-be city council member to pre-judge the case?,” Laing said.

“At a minimum, this particular candidate’s public statements about the project, which are well known, are improvident,” he added. “It’s precisely the kind of thing that leads to lawsuits when poor decisions are made.”

(Regardless, if the City Council — with or without Merritt — decides against the project, the Northshore group may challenge the decision anyway. Laing noted today he believes that property rights law is clearly in his client’s favor.)

I raised Laing’s point today to Merritt, asking him if he does win election, would his personal feelings against the development as he’s already publicly stated them color his ability to be fair?

“I will be professional, just as I have been throughout my career. But right now, I have my opinion as a private citizen,” he said.

I pressed Merritt a bit further: “Does that mean you can conceive of a scenario in which you’d approve the project on its legal merits, even if that decision conflicts with your personal feelings,” I asked.

“I think I have to be prepared to cross that bridge when I get to it,” Merritt said.

“I still feel it is wrong for the city to have that project up there,” he added. “I will have a perspective that I will bring with me, and that will bring great scrutiny to the process.  I’ll have to be very professional, and I intend on getting all the information I can on it.  But I still have doubts that the city should have this project, and I don’t think I can be convinced or swayed to have a different opinion.  I’m not moving away from that.”

After our phone call ended, Merritt called me back a few minutes later.

“We talked about a lot of speculation and what-ifs,” he said. “I just want to make sure there’s no confusion. At this point, I’m staying the course. I can’t see how that kind of speculation is something I should even be getting into.”

OK, Jim. Got it.

On a side note, I asked Tacoma City Attorney Elizabeth Pauli today if she’d gotten any calls about the mailer.  As a way to bolster its claims, the mailer told recipients they could “confirm” statements about the appearance of fairness doctrine by calling Pauli (though the mailer misspells her name as `Pauley.’), and it gave a general city phone number.

Pauli told me as of this afternooon, only one or two people have called about the mailer, and those callers were routed to a city spokesman.  Pauli added she doesn’t recall speaking to anyone recently about the appearance of fairness doctrine (other than city council members, who she speaks to about the issue as a matter of course).

“I was not aware of the flyer,”  Pauli said. “Even now I haven’t seen it.”

In regards to the mailer’s legality, the fact that no sponsorship is noted on the glossy-stocked flyer already shows it to be afoul of state political advertisement laws requiring such identification.

In addition, no campaign finance report has so far been filed with the state to claim it as an independent expenditure, as is also required under campaign finance laws.pdc_logo

I checked in again today with the state Public Disclosure Commission. Under law, whichever group or person sponsored the independent expenditure has until the close of business today to meet state campaign finance compliance guidelines by filing such a report, a spokeswoman told me.

But don’t hold your breath: PDC spokeswoman Lori Anderson added again today there’s not much the PDC can do about the mailer’s illegality unless someone actually comes forward and claims responsibility for it.

When I pressed the PDC as to why it couldn’t investigate the issue (I wondered if they could make inquiries of local printing shops, etc) Assistant Director Doug Ellis told me the commission simply doesn’t have the staff.

“Somebody should do something about this,” Ellis said. “But we just don’t have the people to pursue something like this.”

The PDC is now operating with a reduced statewide staff of 3.85 investigators, who, along with probing officially-filed complaints, also are responsible for educating campaigns about compliance issues and fielding calls and questions during election season, Ellis said.

“If someone finds some information, we’re not adverse to following up,” Ellis added. “You know, if someone found out which printer printed it or where these were mailed, you bet we would go and try to investigate that. But to go around kind of blindly on our own, we just don’t have the manpower.”

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