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3/7/2011
Washington City Files Lawsuit to Block Anti-Camera Referendum
Wenatchee, Washington lawsuit contends the public can do nothing to stop photo enforcement for the duration of its contract.

Steve D SmithWenatchee, Washington is suing to stop the public from circulating a petition that would thwart the use of red light cameras and speed cameras in the city of 28,000. In March 2009, Wenatchee officials signed a contract with American Traffic Solutions (ATS), and they claimed this agreement would be "impaired" if voters had a say in whether or not the program should continue, according to the complaint filed last Tuesday in a Chelan County court.

"The city seeks a declaration that the proposed Wenatchee Initiative No. 1 is invalid because it is beyond the scope of the initiative power and violates the Contract Clause of the United States Constitution and the Washington State Constitution," Steve D. Smith, attorney for the city, wrote.

The proposed initiative circulated by BanCams.com, Voters Want More Choices and the Washington chapter of Campaign for Liberty would not nullify the contract between ATS and Wenatchee. Instead, the ballot measure states that the city may not "install or use" automatic ticketing cameras without the prior approval of the voters and a two-thirds vote of the city council. In the event that such approval is given, the cost of a photo ticket would be reduced from the current $124 to an amount of the least expensive parking ticket. Nothing in the initiative prevents Wenatchee from paying ATS the agreed-upon $4800 per intersection monthly fee until the contract's expiration on March 26, 2014. The city's argument contends that the public may have no say whatsoever in the use of cameras.

"Washington state law specifically vests the local legislative authority with the power to enact ordinances governing the local government's use and operation of automated traffic safety camera systems," Smith wrote. "Proposed Wenatchee Initiative No. 1 would improperly interfere with the exercise of a power delegated by state law to a local legislative authority."

The latter sentence appeared verbatim in a filing by a law firm hired by ATS in a case that unsuccessfully attempted to block last year's referendum in Mukilteo where 70 percent of residents imposed limitations on the use of traffic cameras. The judge rejected the arguments of ATS (view judge's order).

The contract between Wenatchee and ATS contains a general force majeure clause nullifying the contract when performance is prevented by "causes beyond [a party's] reasonable control and without its fault or negligence." The document does not, however, contain more specific language found in other contracts that anticipate the possibility of changes in state law prohibiting the use of cameras.

The Chelan County court will be asked to decide whether the initiative would cause an impairment of a contract, or a breach of contract. Federal court precedents have upheld the right of states and other government entities to breach contracts as long as the same damages are paid as would apply if a private party breached the contract.

"The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it -- and nothing else," wrote Oliver Wendell Holmes in 1897.




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