Gas tax put back on city desk.

Byline: Edward Russo The Register-Guard

A court victory on Friday for Eugene's gas station owners will send the city's latest gas tax increase back to where it started in May - the City Council.

After hearing arguments, Lane County Circuit Court Judge Gregory Foote ruled that gas station owners collected enough petition signatures to place a gas tax referendum on the November ballot.

Through the referendum, station owners want voters to prevent a 3-cent-a-gallon increase from taking effect and to knock an additional 2 cents-a-gallon off the city's gas tax.

Foote's ruling overturns a July 12 decision by City Recorder Mary Feldman that the station owners didn't get enough signatures to put the possible repeal before voters.

The judge's decision will force interim City Manager Angel Jones and the City Council to consider options, including whether to appeal Foote's ruling, revoke the council's latest gas tax increase or place the referendum on the ballot.

Foote's ruling also means that the city's latest 3-cents-a-gallon gas tax increase won't take effect on Wednesday as planned, city attorney Jens Schmidt said.

Foote made his ruling from the bench right after hearing arguments from attorneys for the city and the gas station owners.

The legal dispute centered on how city officials calculated the number of petition signatures needed to put the referendum on the ballot. The key detail was whether write-in votes count the same as votes for declared candidates.

"The issue turns on the definition of candidate," Foote said.

To establish the number of petition signatures needed to put the referendum on the ballot, city officials said the station owners had to gather at least 10 percent of the votes cast for "all candidates for mayor" in the November 2004 mayoral election. The total number of votes cast was 63,652, so 10 percent was 6,365, city officials said.

The lone candidate on that ballot, Kitty Piercy, received 53,732 votes. The rest of the votes - 9,920 - were write-ins.

The station owners said the city should not have included the 9,920 write-in votes.

The city erred in including write-ins because the people who received the write-in votes were not official candidates, said Paul Romain, an attorney for the Oregon Petroleum Association and the local gas station owners. To be a candidate, a person has to actively seek or campaign for the office, he argued.

The 2004 write-in votes, which have since been destroyed, could have included votes for "Mickey Mouse, Donald Duck or George Bush," he said.

In that election, the relatively high number of write-in votes for mayor likely included votes for departing Mayor Jim Torrey, who some people wanted to run as a write-in candidate, Romain said. City Councilor Nancy Nathanson, who lost to Piercy in the May primary, also probably received write-in votes, he said.

Neither Torrey nor Nathanson was a candidate for mayor at that time, Romain said.

Without the write-in votes, the minimum number of signatures needed to put the referendum on the ballot would have been 5,373 signatures, which both the station owners and the city have agreed that the station owners collected.

But Schmidt, the city attorney, argued that a write-in vote is the same as a vote for a declared candidate.

"When a person receives a write-in vote they become a nominee for public office and a nominee is a candidate," he said.

If the gas station owners' argument is correct, Schmidt said, "No write-in candidate could win office in the city of Eugene."

But Foote rejected the city's arguments.

The city code is "ambiguous" on defining a candidate, he said. A person could win office by receiving write-in votes, Foote said, but it's impossible to tell if the November 2004 write-in votes were cast for "legitimate or illegitimate" candidates, such as people who lived outside the city.

"I'm saying you are not a candidate unless you say you are a candidate," Foote said.

Jones, the interim city manager, said she likely will discuss the city's options with the City Council on Aug. 8.

Station owners, helped by the Oregon Petroleum Association, sought the repeal after the City Council in May voted to increase the city's gas tax to 8 cents a gallon, from 5 cents. The City Council increased the tax to collect an extra $2 million annually for street repairs.

At 5 cents a gallon, Eugene already had the highest gas tax in Oregon among the 12 cities that have the tax. Gas station owners said the tax puts them at a disadvantage with stations outside the city limits.

Councilors in May also decided to keep a previous 2-cent-a-gallon increase that originally had been set to expire next February.

With the referendum, station owners want voters to undo both council decisions, effectively rolling the city's gas tax back to 3 cents a gallon, the same as Springfield's.