Doughnut referendum approved

Backers of a petition to put a

referendum on the ballot this fall that would repeal a revised

interlocal agreement for Whitefish’s two-mile planning and zoning

“doughnut” area have until April 12 to gather 707 signatures.

City attorney Mary VanBuskirk informed

the Flathead County election department on Jan. 11 that she had

approved the supporters’ sample petition “as to form” and for

compliance with state law. That started the 90-day clock ticking

for supporters to gather signatures from 15 percent of the city’s

registered voters so the referendum can appear in the Nov. 7

election.

Supporters of an initiative that would

establish a community council for doughnut residents, however,

faced a different outcome. On Jan. 7, deputy county attorney Tara

Fugina informed the election department that the sample petition

for the initiative “is hereby rejected as to form and compliance”

with state law.

According to Fugina, the elector pool

for the proposed initiative cannot be limited to registered voters

in the doughnut area, as stated in the sample petition, because the

local government affected by the initiative is Flathead County. As

a result, all voters in the county should be included in the

elector pool, she wrote.

The sample petition was also rejected,

according to Fugina, because “the initiative power is reserved for

legislative acts only” and “the proposed ordinance that is the

subject of the initiative is administrative in nature.”

Duncan Scott, a Kalispell attorney

whose office “represents various individuals and groups concerned

about the city of Whitefish’s history of heavy-handed control of

the doughnut, when doughnut residents do not enjoy the right to

vote in city elections,” may have had a hand in how the county

attorney’s office ruled.

On Jan. 6, Scott sent a seven-page

letter to the county attorney’s office outlining four reasons why

he believed the initiative should be rejected:

• Citing a Montana Supreme Court test,

Scott argued that the proposed initiative is more administrative

than legislative, and so not in compliance with state law. The

proposed initiative “does not create the community council,” he

said, “but rather, it directs the commissioners to create it.”

• The initiative must be voted on by

all county residents, not just those inside the doughnut area, he

said.

• The proposed initiative calls for the

establishment of an “illegal community council” that would advise

the Whitefish City Council, rather than the county commissioners,

which is in violation of state law.

• By seeking a state attorney general

opinion on the legality of the community council after the election

was over, “the sponsors themselves question the initiative’s

legality,” Scott said.

Marilyn Nelson, one of three doughnut

residents listed as a leader in the initiative effort, said her

group wasn’t sure what their next step would be.

“We’re very disappointed the Flathead

County Attorney’s Office would see our petition that way,” she

said.

For his part, Scott expressed

disappointment that signature-gathering for the referendum was

given the go-ahead.

“I vigorously disagree with the

Whitefish city attorney’s view that the doughnut settlement terms

are subject to referendum,” Scott said. “Initiatives and

referendums are limited to legislative matters, and settling a

lawsuit is an administrative, not legislative function.”

If settlement decisions can be

overturned by referendum, then local governments can’t settle

cases, Scott said.

“The other side will know the

government cannot make a binding decision when it can be overturned

by a later public vote,” he said.

Scott also pointed out that “the city

attorney’s legal view also puts the city in breach of the

warranties it made to Flathead County in settling the lawsuit.”

“Now the city attorney is saying the

agreement she reviewed and approved is not binding on the parties,”

he said. “Instead, it is subject to referendum.”

Part of the city council’s agreement

with the county commissioners included meeting with them in January

to further develop how the new interlocal agreement would

function.

But according to city manager Chuck

Stearns, the city learned about a change of plans from county

administrator Mike Pence on Jan. 12.

“The county commissioners decided it

would be best to wait until after Judge Curtis rules on the pending

motions, as that might clarify the status of the agreement,”

Stearns said.

Those motions could include the city’s

filing to dismiss the lawsuit and the city’s response to objections

by intervenors to the case, he said.

So instead of meeting with the

commissioners, the council met on Tuesday, Jan. 18, in executive

session for its quarterly litigation update by the city attorney,

he said.