Clacky bond theory stretches law to its breaking point (Jack Bog's Blog)

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."

Comments (9)

" the county can borrow money under ORS 271.390 and hand it out in grants to anyone it wants"

Uh, hello - How do you think Homer and Gerding-Edlen get their best deals?

In the end it doesn't matter, instead of the county buying it for someone else, they'd just buy it and then gift it.

Posted by Steve | September 5, 2012 8:56 AM

When was the last time any claim against an upper echelon Portland area government body for malfeasance or corruption NOT been thrown out? The Eisenhower administration? Don't forget, everything here is perfect, nothing to see, move along. Michael Francke also asked too many questions.

Posted by Mr. Grumpy | September 5, 2012 9:44 AM

One more example of the post-rule-of-law world in which we live.

We have been taken over by a clan of insiders that do as they wish.

A circle of jerks that know better than the rest of us.

The only remedy is to flush the toilet and only vote for candidates that vow to destroy this heartless and incestuous insider machine.

Posted by Tim | September 5, 2012 9:45 AM

Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual.
Thomas Jefferson

Posted by clinamen | September 5, 2012 10:13 AM

This just makes it even easier on choosing who to vote for this November.

Posted by Kathe W. | September 5, 2012 10:43 AM

Wow -- "needed," eh? Now Harvey Rogers & Clackamas County counsel are making some perverted "eminent domain"-based argument about their short-circuited process of borrowing and disposing of public funds under ORS 271.390. Just more bogus sleight of hand.

All eyes on the appeal of yesterday's chicken-livered ruling to the higher court....

Posted by Mojo | September 5, 2012 11:09 AM

Kathe W.
You must live in Clackamas County if you have a choice. In my opinion, we have choke-hold in Multnomah County that makes it very difficult for someone outside the "insiders" choice to be acknowledged or heard.

Posted by clinamen | September 5, 2012 11:10 AM

Mojo & Jack

Isn't law based primarily on precedent? Any other basis other than helping out the good'ol boys in the Metro Party for this goofy ruling?

Why would the legal question not have been considered?

Posted by BoBo | September 5, 2012 11:50 AM

As far as I know, Rogers's theory is untested in court. Portland is selling Tri-Met bonds right now, with Rogers as bond counsel, and it is not taking this aggressive position. Portland duly authorized its bonds in April and subjected them to the possibility of a citizen referendum.

Posted by Jack Bog | September 5, 2012 12:04 PM

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Wednesday, September 5, 2012

Clacky bond theory stretches law to its breaking point

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