The Oregonian‘s Molly Harbarger reports that a group of activists in Clackamas County, opposed to the Milwaukie MAX project, is seeking to place a referendum on the ballot to prevent the county from contributing any money to “finance, design, construct or operate” the project. The petition, approved by the Board of Commissioners, will be reviewed by the county district attorney within five days, and if it passes legal muster, petitioners will then be able to start collecting signatures. Nearly 10,000 signatures is needed to put the matter on the ballot.
Assuming that a petition drive is successful–given how recent votes in Clackamas County have gone, I suspect it would be, passage of such a measure would bring about many questions:
Could it pass?
Given the past two years of ballot returns in Clackamas County, I’d say the answer to this is a definite “yes”. The TriMet funding measure on the November 2011 ballot was defeated by a 2/3-1/3 majority. The rescinding of the $5 motor vehicle fee for the Sellwood Bridge, and the recent urban-renewal initiative, also passed easily–it’s safe to say that there is a backlash against spending money on public works projects, especially those perceived to be beneficial to transit. In addition, were the petition to be successful, it would appear on the May ballot, not the November one–given that most of the primary action will be on the GOP side (I don’t expect a primary challenge to Rep. Schrader), a more conservative electorate is likely to show up at the polls.
A more interesting question concerns the make-up of the Board of Commissioners itself; quite a few commissioners, including the chair, are up for re-election in November. It is possible that the current pro-smart-growth majority on the county commission could be ousted. On the other hand, this will happen in the November 2012 election, which will undoubtedly attract a more liberal electorate; despite the “red wave” in November 2010, the pro-transit majority was not displaced.
Is it legal?
There’s a chance that the district attorney might declare the petition as written to be out-of-bounds, or require revision–an unusual maneuver which would provoke its own fight. I’m going to assume, however, that this does not happen, and that any substantial inquiry on the legality of such a proposal would be deferred until after it passes.
The position of the Board of Commissioners of Clackamas County is that in 2010, the County executed a contract with TriMet to provide funds to build MLR, and that this is an obligation legally binding on the county which cannot be undone by referendum. There is ample case law to support this opinion: the so-called Contract Clause of the US Constitution prevents states and their political subdivisions from passing any law “impairing the Obligation of Contracts”. The purpose of the Contract Clause was to prevent the states from passing bills granting “private relief” to parties in a contract–in particular, laws forgiving debtors. However, the Contract Clause (or the Contracts Clause–both forms are widely used) has been interpreted more generally than that; one major consequence is that governments cannot pass laws (either via direct legislative act or via popular referendum) which undo its own contractual obligations. In Fletcher v. Peck, the Supreme Court held that even blatantly-one-sided contracts entered into in bad faith by corrupt government officials (in this case, selling public lands to speculators for pennies on the dollar) may not be rescinded by subsequent reform-minded legislatures.
Based on this, a good argument can be made that an attempt by the citizens of Clackamas County to cancel the MLR contract (or to abrogate the County’s obligations) is not valid. On the other hand, the County has not enjoyed the bulk of the benefit(s) of the contract–construction of the MLR line between the Park Avenue station and the Multnomah county line–so if Clackamas County voters were to block the County’s performance of the contract and TriMet were to sue, it’s not clear that TriMet would be entitled automatically to payment of the full amount, given that they haven’t performed the bulk of their obligations under the contract.
What could happen to MLR?
If the initiative passed and were upheld, meaning Clackamas County’s share of funding were rescinded, what would happen? As Harbarger notes, it’s unlikely that this would result in the cancellation of the project–Clackamas County’s contribution is less than 2% of the overall project budget. But a couple of obvious possibilities:
- Construction of the MOUS (minimum operationally usable segment) to Milwaukie As part of the NEPA process, planners designated a MOUS for the project–a subset of the full project which could be done as a scaled-back version, if financing for the full project were reduced. The MOUS, in this case, eliminates only one stop–the Park Avenue Park-and-ride–and that’s in Clackamas County; instead, the line would terminate in downtown Milwaukie. Given that an expensive viaduct is needed to cross OR99E to reach the Park Avenue station, elimination of Park Avenue would probably more than make up the gap. A downside is that it would eliminate a major park-and-ride on the line, making MLR less attractive to Clackamas County commuters. (The question of park-and-rides is a controversial one, but given that much of Clackamas County is lower-density development that can’t be easily served by transit, a P&R is probably a necessary compromise)
- Construction of the line only to Tacoma Street. This is probably not a viable option, as this alignment is not considered in the EIS, and thus would require significant amounts of additional review to get federal funding. It would have the “advantage” that the project would no longer cross into Clackamas County, but it would also severely compromise the viability of the project.
- Reduced funding for county highway projects. Another possible outcome would simply be that Metro or other regional actors makes up the funding shortfall, transferring the money from some other Clackamas County project down the line. The Regional Transportation Plan project list contains many projects in the County which are eligible for regional funding. Were Metro to do this, it might further inflame already tense relations, particularly if a Metro-hostile board were to be elected. Similar maneuvers might also occur at the state level, with the Oregon Legislature appropriating funds to make up the difference, and deleting a corresponding amount of funding from county highway projects.