Testimony Before the Clackamas County Commissioners – July 18, 2019
Greetings, Chair Bernard and Commissioners of Clackamas Co. I’m James De Young
This is my third appearance before this commission this month. I’m coming back to remind you of the rebirth of the City of Damascus of which I am the duly appointed (not elected) Mayor, according to the City Charter of Damascus.
Again I wish to remind you that the current LAW of the State of Oregon is the Appellate Court decision in De Young v. Brown rendered on May 1, 2019. The sum of this decision is to “reverse and remand” the Circuit Court’s decision not to give me summary judgment that would have declared the disincorporation vote of May 17, 2016, a nullity. The Court found that the vote on Referendum 93 failed to meet 3 standards of statutory law. And with the words that the Court used, namely that the people of Damascus “could resume their home rule constitutional right to self-governance,” the Appellate Court was implicitly acknowledging that the vote of 2016 also violated the Oregon Constitution. In its decision the Ap Ct declared three times that the “plaintiff is entitled to prevail as a matter of law.” Note the word “LAW” that occurred three times!
I understand that these words from the Appellate Ct mean that their decision is the LAW of the State (since none of the defendants–Governor Brown, the State, Clackamas Co and the City of Damascus–pursued an appeal to the Supreme Court). The LAW is that Damascus never disincorporated; it continues to exist; it did not surrender its charter (both in fact and in theory).
But it is an amazing thing that people in government such as State Legislators and Clackamas Co Commissioners can ignore the law and pretend that the vote in May, 2016, was legitimate. Now when people ignore the law—such as speed limits on the highways—or violate the law—such as committing acts of theft, murder, and mayhem, people are held accountable. There is a price to be paid: it may be monetary, incarceration—some punishment in some form.
But when government people in high places break the law they often get away with it. Or so they think! Eventually an attitude of being above the law breeds general contempt for the law in the general populace, and ultimately anarchy and rebellion break out. The rationale is: “Well, if Gov Brown can violate the law why can’t I?” Another example: why should Damascus yield to the new SB 226 if the County and State won’t yield to the reversal of HB 3085 and 3086?
This County may blame the Legislature for the vote of 2016 and its fallout. This County may blame the State for taking $8.1 million from Damascus, along with property, several vehicles, a backhoe, office equipment, and all our legal documents (both hard copies and digital—I’ve asked Atty Stephen Madkour more than once for a return of these but he has refused). But this County is also liable: it could have refused to participate in this charade; or it could have put everything in escrow until my lawsuit (known to all) was settled. It didn’t have to join sides with the Legislature in its letter of June to the Legislature.
Right now the State Legislature by HB 2001 is over-ruling cities and counties by decreeing that single-family zoning cannot be tolerated. The Governor and Legislature want Oregon to be the first state in the nation to so decree. Is this Commission going to yield to this tyranny?
You should enlist all the cities of this County to join you in support. And you should turn from your own tyranny toward Damascus. Damascus wants to be reconciled—that’s the key word. The time for an equitable solution (for example, my 5-Point Plan) is now, if the County will stop breaking the LAW as the Ap Ct has determined it for Damascus. The county needs all the cities including Damascus as an ally not an enemy. Thank you.
Mayor’s Minute #9 – July 6, 2019
The previous Mayor of Damascus has claimed that she is the real Mayor if the Court’s decision about restoring Damascus to the City it was in 2016 is true. But the problem with this logic is that not everything could be restored as it was in 2016. For example, some people have died, and land use and annexations into Happy Valley have taken place (and statutory law prevents these from being reversed after one year). The former mayor annexed into Happy Valley two years ago, so she is not in Damascus (unless she wants to re-annex into Damascus). She is disqualified from the office by the City Charter standards for residency: the Mayor must reside in the City.
And, note that the Court did not say that all the details had to be restored. It uses broad terms such as “the people” and “the city” and “other councilors.” The only specific person referred to is myself. So, following the City Charter, the City Council has met, filled vacancies that have occurred, and is moving forward as a functioning City again—in accord with the decision of the Appellate Court.
So the real issue at stake is: what is to prevail? The rule of law, or the rule of the mob where people decide for themselves what is to prevail?
Mayor’s Minute #8 – June 25, 2019
I introduced last time the concept of the “home rule constitutional right to self-governance” which is what the Appellate Court cited as restored to Damascus in their decision of May 1, 2019. This right is all important and basic to the whole debate about the right of Damascus to exist.
Since the early 1900’s, the Oregon Constitution guarantees to individual cities the sovereign right to govern themselves apart from outside influence—including interference coming from the executive branch (the Governor) or from the legislative branch (the Oregon Senate or House). Every city in Oregon is protected by a home rule charter, including Damascus.
This right has been the basis for reversing the previous attempts to disincorporate Damascus in 2013-14, to interfere in the City by HB 4029 in 2013, and by again a vote to disincorporate in 2016. On all three occasions the Courts have defeated all such attempts on the basis of the Oregon Constitution or statutory law based on the Constitution.
Mayor’s Minute #7 – June 24, 2019
Recently much has been alleged in Damascus that the present Mayor and City Council are “phonies” and even that the Mayor is “impersonating a public official” who should be investigated and criminally charged.
Well let me give you, who really want to know, the basis of the council’s resumption of its leadership of Damascus. The following is a quote of the Appellate Court’s words that we gave in our brief with the Ap Court (p 362). These are my attorney’s words that our brief was not moot.
Plaintiff responds that his appeal is “neither factually nor legally moot.” Contending that the act of “surrendering” a charter is, essentially, a “legal fiction,” plaintiff argues that we could reverse that act “by the stroke of this court’s pen.” That is, if we were to invalidate the results of the special election, Damascus and its residents would be restored to the status quo ante: The city would reacquire its corporate existence (and related obligations to its tax payers), plaintiff would regain his position as a city councilor, and the residents of Damascus “could resume their home rule constitutional right to self-governance.” Plaintiff further contends that he “and any of the other city councilors could meet and resume the operations of the city.”
And the Appellate Court ruled for us. It invalidated the election. On three occasions in its decision the Court said that the “plaintiff is entitled to prevail as a matter of law” (pp 364, 370, 371). The decision of the Appellate Court “reversed and remanded” the Circuit Court’s decision not to grant to me “summary judgment” in 2016 that the vote in May was invalid. Thus all the elements in the quoted paragraph above have occurred. The City was restored to its status before the vote: the Charter was not surrendered; the City reacquired its corporate existence; the councilors could meet and resume operations of the city; and, most importantly, the residents of the city have resumed their “home rule constitutional right to self-governance.”
What is the “home rule constitutional right to self-governance”? This is for the next Mayor’s Minute.
Mayor’s Minute #6 – June 21, 2019
Much water flowed under the bridge of the City of Damascus when it was presumed dead during the three years of 2016-2019. The laws enacted in 2015 by the State Legislature (and rejected by the Appellate Court on May 1, 2019) forced the transfer of (1) over $8 million to Clackamas County that the people of Damascus had saved in its treasury, (2) all of the City’s property and possessions, (3) all of its documents, and (4) many of its personnel. The City was left with zilch, nada, nothing.
While the media repeatedly report that the City surrendered its charter, the truth is that it never did. The State Constitution gives the right to create or dissolve a city charter only to cities themselves; no other entity can coerce, demand or otherwise force a city to give up its charter (as the Legislature tried to do by a vote on a Referendum in 2016). After the vote to disincorporate on May 17, 2016, the City Council of Damascus never took a vote during a Council meeting to surrender its charter—not then or ever since. Not even a majority vote of the people can force a council to give up its charter unless the vote meets the statutory three requirements, including the support of the majority of electors in a city.
The City of Damascus never ceased its existence—which is exactly the point that the Appellate Court decided on May 1, 2019.
Mayor’s Minute #5 – June 21, 2019
So how was the City of Damascus reborn/resurrected?
The Court of Appeals ruled on May 1, 2019, in De Young v. Brown, that the vote on disincorporation on May 17, 2016, violated state law. The State legislature created HBs 3084, 3085, and 3086 which Governor Brown signed into law in 2015. The State Legislature sent a referendum (Measure 93) to the people of Damascus and forced us to vote on a law we didn’t create. While the vote on May 17, 2016, received 40% of the registered voters, state law requires 50% plus one. In addition, the laws of the State require the vote to take place in November (but this was held in May) and that a city must originate a vote on disincorporation (the legislature initiated this vote). So on three counts based in State Law the Appellate Court ruled in favor of the plaintiff (the Mayor of Damascus) and against Governor Brown, the State of Oregon, and Clackamas County.
This is the first time in Oregon history that a city has been thought dead for three years but then revived—all because State law was violated. This is the third time the same group has tried to disincorporate the City, and all three have violated the Law. Until they are properly changed, laws and constitutions hold sway over people; it is not the other way around, thankfully. The latter leads to despotism or anarchy.
Mayor’s Minute #4 – June 18, 2019
This Thursday, June 20, is the first budget committee meeting of the renewed Damascus. Several volunteers have spent many hours getting the proposed budget together. It is a very frugal budget and proposes a very low tax rate. Come and find out the details and make comment. Everyone is welcome.
On Friday, June 28, the City Council will have a public hearing on the budget and make final decisions adopting it and the tax rate. Both meetings occur at 6:30 pm at Sunnyside Community Church, 16444 SE Hwy 212, near the Anderegg Community.
Mayor’s Minute #3
There are significant challenges in trying to resurrect a city. It’s never happened before in Oregon history, as far as I know. Such an enterprise demands the help of everyone. We invite even our most ardent opponents to join us in the effort. We promise to do things differently to earn your respect and help.
Mayor’s Minute #2
There is much confusion and concern for the rebirth of Damascus. Some who wish the city to disappear, who support disincorporation, have aggravated the public discourse by talking in extremes and in a derogatory manner about the present city government. This is not necessary nor helpful for understanding. I appeal to all our citizens to take it slow, learn the facts, and be skeptical of anyone who resorts to name calling and abuse.
Mayor’s Minute #1 – June 11, 2019
I am beginning today to put out every other day or so some facts for the people of Damascus that will help to offset the misunderstanding and distortion often taking place in the media.
Today I write that the Appellate Court decision (De Young v. Brown) of May 1, 2019, is final. There are no further instructions to come from the Circuit Court that somehow are going to tell Damascus how to apply it. No court has such jurisdiction.
The decision (p. 362) states that Damascus returns to the “status quo” before the vote on disincorporation — to May 16, 2016. Thus, it is a “legal fiction” that the city ever disincorporated or that the city charter was surrendered to Clackamas County.
Unfortunately, moneys were transferred to Clackamas County and expended, and property owners annexed into Happy Valley about 1,400 acres, but this was inappropriate. What should be done to rectify these matters? This question I take up in the next Mayor’s Minute.