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Was Ruston’s gambling referendum a legally binding vote?

Post by Lewis Kamb / The News Tribune on Jan. 3, 2011 at 1:43 pm with 2 Comments »
January 3, 2011 1:43 pm

As we reported on Saturday, the Town of Ruston appears to be reconsidering a new town ordinance that specifically banned casino-style card games.

According to a recent letter from the town’s attorney, the Town Council is expected to take up a measure seeking to repeal the new ordinance that effectively outlaws Black Jack and other “house banked” social card games like those once offered at the only mini-casino in town, the Point Defiance Cafe and Casino (The law didn’t extend to “bona fide charitable or nonprofit organizations,” which are still allowed to carry out such card games).

In August, the council passed the gambling ordinance, contingent upon the outcome of a referendum posed to town voters that was ultimately placed on November’s ballot. A statement for the measure, included in November’s Pierce County Voters’ Guide, said:

Voting ‘Yes’ on Ruston Referendum Measure 1 will end house-banked card rooms (casinos) in Ruston
forever. Finally, “We the people of Ruston” will decide the fate of casinos in our community and not have it decided by business people who don’t live in Ruston.

Ruston voters approved the referendum to ban the card games by a count of 184 to 168 — or 52 to 48 percent. The new ordinance was supposed to take effect when the election results were certified.

But after Steve Fabre, the Point Defiance Cafe and Casino’s owner, filed suit against the town on Dec. 13, the Town Council now “appears to be in the process of repealing” the gambling ordinance — as detailed in this Dec. 28 letter from Town attorney David Britton to Fabre’s lawyer.

Ruston Gambling Ordinance Repeal Letter

(Despite what Britton’s letter states, the gambling ordinance repeal isn’t included on the Town Council’s agenda for tonight’s meeting.)

Among their legal arguments, Fabre and his attorney, Joan Mell, contend in the lawsuit that the Town of Ruston — a fourth class municipal corporation — had no legal authority to enact a citizens referendum under Washington law.

But are they right?

Pat Mason, a lawyer for the nonprofit Municipal Research and Services Center of Washington, thinks so. While not specifically talking about the Ruston lawsuit, Mason explained that, in general, state law affords such referendum powers to municipalities classified as first class or “code” cities.

“The formal powers of initiatives and referendums are not available to citizens of fourth class municipalities, what we call `towns,'” Mason said. “Also, second class cities don’t have the powers of initiatives or referendums.”

Municipal governments in Washington are generally classified by their populations at the time of incorporation. This link details each classification, but in general, first class cities have more than 10,000 residents; second class cities have at least 1,500 residents, and towns — such as Ruston — have fewer than 1,500 residents.

Washington also provides municipalities an optional “code” classification, which provides an alternative to the basic classification system. As MRSC’s website explains, the optional code classification:

was designed to provide broad statutory home rule authority in matters of local concern. Any unincorporated area having a population of at least 1,500 may incorporate as an optional municipal code or “code city,” and any city or town may reorganize as a code city. Optional municipal code cities with populations over 10,000 may also adopt a charter.

So what’s the take-away for what this all means to Ruston’s gambling initiative? It appears that it wasn’t binding.

“In terms of a formal power of initiative or a referendum, towns are not included in the `enabling’ statute,” Mason said. “If they want to get a sense of what their voters feel about a particular issue, (towns) could run an advisory ballot. But an advisory ballot is not binding.”

Mason added that the restrictive powers of municipal initiatives in Washington “frankly is why some (towns and second class cities) have changed into `code cities.'”

So, if Ruston didn’t have the authority to pass a binding ballot referendum, why did the Pierce County Auditor’s Office include the town’s gambling measure in the county’s voters’ pamphlet, put it on the ballot and certify the results in November?

These are questions Fabre told me last week that he raised to the auditor’s office (and town officials) before the November Election.

“I was in contact with them before the Nov. 2 election, yet they went ahead and certified that referendum,” Fabre said.

“You would think that they had some guidelines when they certify or even allow a referendum to be put to the public,” he added. “I knew that Ruston didn’t have the power. How come the Auditor’s Office didn’t know that a town didn’t have the power of initiative or referendum?”

Mike Rooney, the county’s elections manager under Auditor Julie Anderson, told me today that Fabre did contact him.

“I talked to him,” Rooney said. “But those questions were primarily raised after the election, as to whether we were going to certify the results or not.”

“Ballots had already gone out, ballots had been returned and ballots had been counted,” Rooney added. “We conducted the election and at that point, we didn’t have any other option. We were going to certify it.”

Rooney added the Ruston Town Council called for the resolution to be placed on the ballot, and the town’s attorney finalized the ballot title and its language (My calls and emails to town officials have yet to be returned).

“The resolution was forwarded on to our prosecuting attorney, and he inidicated that it complied with the law in terms of the way a ballot title needs to be written,” Rooney said.

“… Our attorney does a review mainly as to the title,” he added. “But it’s really the responsibility of the district that’s holding the election to determine they’re following law. We serve more of a custodial duty.”

In all, Pierce County finance officials have yet to determine the total costs for conducting November’s general election, Rooney said. He estimated that once they do, total costs will probably come in at $1.2 million to $1.3 million.

As for the costs passed along to taxpayers in the Town of Ruston, for holding a referendum that now appears to be legally meaningless?

“Probably under $1,000,” Rooney said.

Leave a comment Comments → 2
  1. annamiter says:

    There’s Steve, lookin all grumpy about his business being thwarted by the bluenoses in Ruston. Interesting bacground.. No not the sign so hated by the bn’s. The pink and yellow Chinese Christian business mall.

  2. sharkie69 says:

    Let me think this through.

    Conservatives say that the vote of the people is what counts – i.e. Eyman’s initiatives.

    Why wouldn’t the vote of the people be the issue here?

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