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In an order riddled with commentary, Judge John Murphy struck down the Golden Spike/occupant tax initiative May 3.Murphy sided with the city of North Platte in its lawsuit against three North Platte residents who circulated the petition to get the initiative on the ballot.
Murphy found that the initiative violates state law in that it could interfere with a contractual agreement. The defendants (William Tilgner, Dallas Dye, and Ed Rieker) argued through their attorney George Clough that the agreement between the city and the Golden Spike amounted to an option agreement, not a contractual obligation.
The judge disagreed.
“The people, acting through their representatives, have determined that referendum may not be used if there is an obligation of contract that will be impaired by the referendum process. That is specifically the situation in this case,” Murphy wrote. “It is not for this Court to second guess the determination of the Nebraska Legislature in adopting such a statute just so some petition circulators may have a feel good vote on a proposal that they endorse.”
Murphy added that the court is bound by state statutes and “will not ignore them based on some dubious claim that democracy is somehow being trampled by the Court’s determination.”
Murphy also addressed the defendant’s counterclaim that the city ordinance dictating that occupant tax money go to the Spike is itself illegal.
The defendants argued that the Spike is an economic development project yet was never put before voters.
Murphy said they may have a point.
“Despite the irony and the mental gymnastics that must be used to understand the defendants’ wish to amend what they believe to be a void ordinance, the constitution does require that industrial and economic development issues be submitted to a vote of the majority of the registered voters of the city before they are adopted,” Murphy wrote.
“Should the city have submitted the Golden Spike to the voters as an economic development?” he queried. “Maybe.”
However, Murphy found that there is insufficient evidence and the Court’s scope is too limited for him to grant an injunction against funding the Spike with tax dollars in this current action.
“There may be a separate action brought by the defendants if they wish,” he noted.
“The only issue presented to this Court," he said, "is whether or not the ordinance as adopted creates a contractual obligation that may not be impaired by the action of a referendum. The Court has reached the conclusion that it is and finds that a referendum is not the proper method to attack the ordinance in question.”
Murphy expressed disbelief at the discontent created by the Golden Spike.
“We are once again faced with a debasement of discourse that plagues our politics and appears to be prevalent throughout our society,” he wrote, echoing the sentiment he expressed concerning Leonard Hiatt’s 2005 lawsuit against the Spike.
“The Court proffers its fervent desire that cooler heads prevail in this issue, that divisive rhetoric be abandoned and that parties set aside their own self-interests and beliefs, whether foolishly held or sincerely believed, to work out what is best for the entire city of North Platte and not for their own ill defined narrow interests,” he wrote.
“Is this development good for the city? Does it bring in tourists who spend their money in the city, thus raising revenues? Does it enhance the general welfare of the community? Is this a proper enterprise for government to engage in? Is this the proper method to be applied to the use of funds raised by taxation? These are the questions that should be debated,” Murphy wrote.
“Had the debate in Philadelphia gone thus, there would be no United States and no democratic principals for the court or anyone else to be concerned about,” he concluded.
A 'no vote' vote
The ballot question of Spike funds will still be on the primary election ballot, which had to be printed weeks ago. Murphy ruled that the county clerk shall not consider the votes cast in the matter, so any votes cast on the question will be ignored.
Defense attorney Clough could not be reached for comment but has previously indicated the intent to appeal an unfavorable verdict.