We noted last week that the Clackamas County commissioners are claiming that their bond issue for the Tri-Met Mystery Train to Milwaukie -- the rush-rush $20 million of bonds that are scheduled to be sold tomorrow and closed a week from tomorrow -- is exempt from a public referendum because they say it is authorized by Oregon Revised Statutes 271.390, which states in relevant part:

A public body or a council of governments may enter into contracts for the leasing, rental or financing of any real or personal property that the governing body of the public body or council of governments determines is needed, including contracts for rental, long term leases under an optional contract for purchase, financing agreements with vendors, financial institutions or others, or for purchase of any property.

Yesterday, a county judge dismissed on procedural grounds a lawsuit that argued in part that this statute does not authorize the county to borrow the money and hand it over to Tri-Met to fund Tri-Met's construction of its Milwaukie light rail line. The court never got to the legal question of whether the opponents were right about that, but in a memo filed with the court, the county's bond counsel Harvey Rogers revealed his reasoning behind his opinion that the opponents are wrong:

In other words, the county can borrow money under ORS 271.390 and hand it out in grants to anyone it wants, on three weeks' notice and without any opportunity for a public vote, so long as somebody, somewhere, spends the money to buy some kind of property of which the county commissioners are fond. It's an interesting argument, but it creates a breathtaking, open-ended bonding authority that renders at least one whole chapter of the state statute book completely superfluous. It seems awfully cute. The provision in question is contained in the section of the state code that governs public land; its placement there seems a pretty clear indication that it is not referring to property owned by just anyone. If only the Clackistani rebels could find a way to get a judge to consider this key question, they'd have a shot.

Anyway, there's a second lawsuit going now, and reportedly an emergency appeal is being filed of the one that was tossed yesterday, and so further developments are possible. If there's any justice in Clackamas County, the closing of the bond issue will be stopped until after the votes are counted in the referendum election a week from Tuesday. But at this point, it's a big "if."