CASINO v RUSTON -DAY THREE - CLOSING ARGUMENT - JOAN MELL

Wednesday May 19, 2010 11:00 am courtroom 2A Judge Fred Cuthbertson

Please note:
No written or audio recording available. Transcript only on appeal. I have done my best but hard to keep up so post may not contain all testimony/arguments but I believe I have captured major points of interest.

This takes a lot of time be patient. Judge's decision may come before I can finish testimony. Judge very precise on issues both sides. Each side says they have the law on their side but Judge Cuthbertson makes the final determination.

Attorneys:
Joan Mell for plaintiff Steve Fabre. (m)
David Britton for defendant Town of Ruston. (b)

Judge CLOSING ARGUMENTS Ready to proceed?
JOAN MELL (m)
m-Plaintiff exhibits 33 and 34 entered. Pl exh 59 card room rates.
j- Admitted without objection.
m-July 7, 2008 two citizens convinced third to take 400 percent increase in gambling tax rate. Increase allowed them to act outside of power to tax. An oligarchy behind scenes to control local businesses.
No opportunity for Mr. Fabre to be heard to be less detrimental on his business.
There were hearing discussions but not in public. Only June 23 Dan Albertson wanted maximum tax now.
Ruston has limited power to tax due to due process concerns.
Resolution 415 Procedures elected not to follow.Dan Albertson, Jane Hunt and Bradley Huson violated principles two months before deliberations on tax increase.
Ignored WA State regulations under Gambling Act regarding enforcement.Mr. Fabre largest taxpayer in Ruston targeted social card games.
Legislature enabled Gambling tax primarily for enforcement by local police authority not public safety as rejected by legislature. Law enforcement expensive spending on other businesses besides casino.
In the deliberative process no determination of enforcement costs.
Did not contact gambling commission or talk to police chief former deputy director of Gambling Commission, particularly impressive.
Supreme Court decision not need to know primary for law enforcement. To protect Supreme court from Separation of Powers definition of law enforcement.
First instance revenue for law enforcement can spend all.
Second Walla Walla decision - not enforcing Sharon Reese delegating to Gambling commission.
Go beyond to Ruston as public safety. Legislature rejected this argument.
No determination for enforcement or to increase gambling act enforcement.
Police activity logs did not know. Line item for police budget $400 thousand dollars.
Under statute in proceedings or process to increase tax.
More than needed per Kim Wheeler.
Dan Albertson wanted maximum.
Jane Hunt as deterrent. A ban could stay in business two years.
Raised to 20 percent to deter gambling. Not what tax is for to mitigate gambling act only enforcement. Tax was improper.
Walk through procedural violations:
1-Lack of effective date.
2-Not two readings, not enough votes.
3-No public comments.
Essential component for any tax unless you know ordinance effective date. Makes ordinance unenforceable. Council did adopt 414 Procedures page 30 rule 22 rules should specify effective date. Should not shall. Should is a derivative of shall and is mandatory.
California Racing Commission sanctioned party for should.
Dictionary definition of should - must.
No debate effective date is compulsory.If required and none what do we do. City will give effective date if presumptive. None for town - steps into separation of powers. Everding mayor July 14 publication date.
Vague and ambiguous ordinances are void.
Subject to reasonable publication date published on date passed.
Only legislature can do Court needs to send back as void.
Judge- Vague and ambiguous in brief?
m-Did cite law legal effective resolution Ruston.
Dan Albertson resolution not law.
Resolution 415 formally voted on and adopted made available to public requiring law enforcement more than simple guidelines formal resolution.
Resolution under Ruston code have authority of ordinance. Meaning of Resolution.
Parties have litigated over Resolution when effective.
Violation of constitutional rights. Not a wish list.Ambiguity Jane Hunt amended license from Gambling Commission ask for business license.
Ordinance 1253 always had license requirement.
Judge-Testimony was after license from Wa Gambling Commission not underlined. Jane made sure had effective license for gambling Act or local business license.
m-Vague and ambiguous definitely, lack of enforceability.
Section D and C have to do with pull tabs. Added social card games provision without including in enforcement.
No authority for town clerk to make sure taxes paid or collected.
Enforcement and specificity tax B and C by clerk treasurer as adopted by Pierce County or WA State gambling commission.
Pierce County makes effective date. Bypass usual effective date and make emergency makes for unreasonable tax.
Cannot equate Charter and Constitution. Town can operate certain ways, Rules of procedure allowed. They are enforceable.
Judge-Never said what makes emergency.
m-Clearly tell us what is emergency?
Mirror language in 3533091 important statute to look at.
Ability of tax payer to be heard absolute right.
Emergency not defined.
Dan Albertson testimony bypassing second reading.
Judge- Is emergency defined in Ruston Code?
m-Not arguing emergency but what citizens expect. Closest is tax measure. Have to be justified.
Steve Fabre footing large part of tax revenue.
Employing hundreds of people not lobby, send letters, but in open public forum.
Open meetings act people do not delegate authority. People may reclaim control, deliberate, discuss and offer amendments.
Only ordinance amendments on second reading.
Albertson set rate at 20 percent.Did not follow procedures, no public input, emergency. Becomes oligarchy.
Judge-One other question. Assume arguably has been no formal legislative declaration of critical facts seem to be pursuant to 946 that tax is primarily for gambling act enforcement testimony Mrs. Hunt Mr Albertson that was really what it was for.
m-Did not state that.
Judge- Important for court to recognize that if they thought that.
m-Testimony legislative members that is what I was thinking Ruston argued Ruston.
Dan and Jane do not represent Ruston, define what intent was.
Judge-Wrap it up.
m-Vote count is indisputable. May present rule 22 enforcement finaln passage one more than majority of council.
Dan Albertson not a dumb guy.
One more than majority of members or members of majority. Jim Hedrick thought should be argued and debated. Still no logic for two members not good government.
Judge-Interpreting rule 22. Isn't that the province of Mayor Everding? Take us to BROWN if it does interpreting rule 22 discretionary act of mayor.
m-No parliamentary rule. Ruston not mayor council rule 12 no discussion either way.
BROWN not decide whether measure passed. Asked to void due process violation as unconstitutional. Allowed to look at procedural rules. Did not do it right.
Vote count unconstitutional declaratory act not do that.
Under Superior court is certainly in a position to determine if parliamentarian erred. Described as arbitrary and capricious WALKER decision as well as BROWN decision.
Ask court to do, apply what did occur to what required.
Rules allowed to be set aside by motion. Have to be uniform and predictable or discretionary.
Ruston failed to meet it's burden.
11:55 am Judge BREAK for five minutes.

Comment: This is a tedious undertaking. Hard to keep up with counsels speaking, not slowing down as judge recommend so blog may have gaps. Make out of it what you can. So far ahead of Judges's decision.
Judge's comments are notable.

Next David Britton CLOSING and REBUTTALS.
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