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corporate dominance | energy & nuclear | government oregon elections 2004

Attorney Tom Nelson leads effort to return Willamette Electric PUD to November ballot

WEPUD has a new attorney who is suing to get the PUD measure back on the ballot in November.
Portland, OR - Attorney Tom Nelson, regarded as one of the top utility lawyers in Oregon and recently profiled in the Willamette Week, will represent the Willamette Electric People's Utility District campaign in the effort to return the PUD vote to the November 2004 ballot. For many years, Nelson worked for the law firm of Stoel Rives and represented Pacific Power, often working against the interests of people's utility districts.

Now Nelson has his own independent law practice, and explained his decision to represent the Willamette Electric PUD campaign. "My wife and I happen to live in the proposed district, and we believe that we should have the right to vote on this important issue. I've reviewed the potential economics for the PUD's customers, and they look quite attractive, particularly compared to some other proposals I've seen over time. PGE and Enron made some very bad decisions that we're all paying for today, and so I think that the voters deserve a chance to explore alternatives."

The Willamette Electric People's Utility District campaign is an attempt to establish a PUD in eight precincts which voted a majority in favor of the Multnomah County PUD in November 2003. On Friday, July 16, Circuit Court Judge Janice Wilson issued a permanent injunction to remove the Willamette Electric People's Utility District vote from the November ballot. This decision was in response to a lawsuit on the PUD's consitutionality filed by Charles Hinkle of Stoel Rives on behalf of four plaintiffs, who include a PGE employee and outspoken PUD opponents. Hinkle's argument centers on a provision formerly in the Oregon State Constitution banning PUDs from forming in parts of municipalities. That provision was inserted by the 1931 State Legislature, but was later removed by the 1979 Legislature.

Unfortunately, Multnomah County was the defendant in the case, rather than the Willamette Electric PUD campaign. County Attorney Agnes Sowle made no attempt to defend the case or even inform the Willamette Electric PUD campaign of the court schedule. In fact, Sowle's formal response to the plaintiff's motion stated that the "defendants take no position with respect to the plaintiff's constitutional argument." The case also went to trial one week after being filed, far sooner than expected. As a result, no party in the hearing was willing to challenge Hinkle's arguments, resulting in Judge Wilson issuing the injunction to remove the PUD from the ballot.

On Friday, July 30, attorney Tom Nelson filed motions to intervene and for relief from judgment on behalf of the Willamette Electric PUD campaign in response to the injunction. Nelson asserts that the judgment was invalid because neither of the two parties in the previous litigation were genuinely "adverse" to one another's arguments, and because the real party of the interest (the Willamette Electric PUD campaign) was not joined in the proceedings.

Nelson also refutes the merits of Hinkle's original complaint. He notes that the Oregon legislature clearly authorized the formation of people's utility districts in ORS 261.110, which states: "People's utility districts may consist of territory, contiguous or otherwise, within one or more counties, and may consist of one or more cities, or a portion of a city, with or without unincorporated territory." Hinkle's argument about historical context involving the actions of the 1931 legislature fails to include the fact that that legislature was openly hostile to the formation of people's utility districts, which is why a constitutional ballot initiative had to be passed by the public. The statement forbidding formation of people's utility districts in parts of municipalities was inserted by the 1931 legislature, in direct contradiction to the ballot title of the 1930 initiative, which read: "To authorize creation of people's utility districts within and/or without municipalities to develop, dispose of and sell water, water power and electric energy."

Willamette Electric PUD campaign manager Jeff Cropp notes, "If we'd had the opportunity to present these facts to Judge Wilson on July 16, then I have no doubt that Hinkle's complaint would have been dismissed. I'm grateful that we have a prominent expert on utility law as our legal counsel in this matter. Our campaign has full confidence that Tom Nelson's efforts will result in a swift resolution of this issue and allow us to be placed back on the November 2004 ballot."

homepage: homepage: http://www.wepud.org