The Gristle

Queasy-Judicial
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QUEASY-JUDICIAL: Stakes in the November election could not be higher, as the Whatcom County Council of the next four years faces significant land-use decisions of enormous impact, totaling hundreds of millions of dollars.

The first of these is the famous one, brought into focus last week by the release of the scope of environmental review for the proposed Gateway Pacific coal export terminal at Cherry Point. The three “co-lead” agencies—the federal Army Corps of Engineers, the state Dept. of Ecology, and Whatcom County planners—set a high bar for that review, requiring a detailed assessment of rail transportation on other representative communities in Washington and a general analysis of out-of-state rail impacts; an assessment of how the project would affect human health in Washington; a general assessment of cargo-ship impacts beyond Washington waters; and an evaluation and disclosure of greenhouse gas emissions and coal combustion effects at all stages of transport.

A second land-use decision may be equally profound in consequences to the community, but remains a bit of a sleeper issue in this election—a proposal for a new jail facility that continues to bloat into a multi-million-dollar regional corrections center, and the escalation of related criminal justice administration costs on the whole.

Each laden with impacts on land values and rates of taxation, neither the coal pier nor the jail fit easily or at all into the vertical silos of the standard left-right divide on public issues. Each has proven stubbornly resistant to simple framing.

On these matters and others, a public forum last week might have shed light on the candidates and the issues they must consider. Unfortunately, the debate was canceled when a bloc of candidates effectively boycotted the event.

Two candidates—Bill Knutzen and Ben Elenbaas—outright refused to attend. Knutzen’s remarks to The Bellingham Herald bordered on unintended satire, as the council member invoked his Fifth Amendment right to remain silent, Mirandizing himself. Two others—Michelle Luke, chair of the Planning Commission, and Kathy Kershner, chair of the County Council—more passively refused to commit to the scheduled forum.

They should reconsider.

The decision of this bloc continues a sorry trend in Whatcom County, one initiated in 2010 by “Tea Party Tony” Larson. Larson boycotted public debates, performing the calculation that he could stiff the 38 percent of county votes locked up in Bellingham precincts and ignore similar voters throughout the county. In this expedient Larson was rewarded with election, setting a new, grim standard; and only so famous a political personality as Pete Kremen could unseat Larson’s pekoe-stained calculation in the following year by a handful of votes.

Perhaps nothing is so corrosive to representative democracy than for aspirants to public office to perform the calculation that large numbers of voters can be shoved aside and ignored.

An emergent theme in this election is that candidates cannot talk about their views on the coal port because they may be required at some future point to render an impartial, quasi-judicial decision on its permitting. The prohibition is nonsense under RCW 42.36.040, which does explicitly permit candidates to express their positions on such matters; and, moreover, ignores what all real judges understand, which is they are certainly free to publicly discuss the intellectual processes that allow them to sort and arrive at decisions, weigh evidence and laws they will apply, and describe what it means in their view to judge something. In describing the atmosphere they desire to foster, judges often express “the right to be heard” as the essential, indelible component, without which there can be no justice. None would openly stiff-arm oppositional views.

The public has a right to know what concerns these candidates consider compelling, what concerns they consider competing, and the processes by which they arrive at decisions. Indeed, these four candidates are already on record, stating that they consider landowner development rights sacrosanct and beyond dilution by other competing concerns. In their role as planning commissioners, two candidates asserted these rights actually nullify applicable state law and recommended that County Council should ignore the law in pursuit of those rights; on County Council, the other two candidates agreed with this position in answer to a state hearings board.

In remarks to the media and at other forums, these candidates have expressed disdain for groups who “regularly sue” over county land-use decisions, along with their belief that these appeals are not representative of the wider public.

We’ve noted before that the process by which county land-use decisions are challenged by the public is litigious by design. Under RCW 36.70A.320, county decisions are presumed valid, with the burden of proof on challengers to prove those decisions are clearly erroneous. Overarching this is the understanding by these citizens that hearings boards and courts receive their challenges with open-minded civility, they thoroughly read and listen to arguments, they weigh evidence over anecdote, and they rigorously apply the law with the thoroughness of a judge. Small wonder challengers prefer that over tyrannical close-minded ideologues on County Council and the planning commission, who are already on record as having contempt for the law and governance, answerable only to the narrow bandwidth of public interest they consider legitimate.

Judge these candidates as they will judge.


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