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Originally published Wednesday, March 30, 2011 at 8:45 PM

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Independent actions of the City Attorney

One day after Seattle City Attorney Pete Holmes sued to block a referendum against the Highway 99 tunnel, Mayor Mike McGinn questioned whether...

Seattle Times transportation reporter

One day after Seattle City Attorney Pete Holmes sued to block a referendum against the Highway 99 tunnel, Mayor Mike McGinn questioned whether Holmes had the authority to bring the case.

The mayor wondered whether Holmes had filed the lawsuit on his own, or at the urging of the City Council. If the council did ask Holmes, McGinn mused at Wednesday news conference, then how or when did council members meet to seek the legal challenge.

"Who is the city attorney's client?" McGinn asked.

The council never took an open vote to try to legally block the referendum.

Holmes is an independently elected official, not the council's employee. He says the referendum is illegal, and that he would save the public millions of dollars by resolving that question now instead of allowing a citywide vote.

Under the city charter, the mere filing of a referendum suspends the ordinance being targeted. In this case, the Protect Seattle Now has gathered nearly 29,000 signatures to force a referendum to undo city-state agreements on the tunnel.

Holmes wants a quick "declaratory judgment" in part to avoid costly delays to this year's tunnel groundbreaking.

McGinn said that, as of now, Seattle transportation engineers continue to work with the state, and he's not pulling them off the project.

"I believe they're doing so, in a direct manner," the mayor said. The staffers have cooperated for years; city and state engineering managers have even embraced after a few state pro-tunnel announcements.

But McGinn cautioned, "We'll be looking closely to see we don't take any irrevocable action, or act outside our authority." He didn't yet have examples.

The state already has signed a $1.4 billion construction contract with private companies to build the four-lane tunnel by the end of 2015. The first payment of $20 million went out last week, and about $186 million was previously spent on tunnel engineering, contract documents, real estate and other expenses.

McGinn repeated his longtime view that the City Council is saddling citizens with a risk of paying future tunnel-related cost overruns.

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Earlier this week, Holmes and Council President Richard Conlin say, they discussed the legal tactics and the issue came up during closed executive sessions.

Pro-tunnel Councilmember Sally Clark told The Seattle Times on Tuesday that she hadn't sought Holmes' help, nor witnessed a council committee doing so. Holmes says that ultimately, the decision was his.

This whole debate goes to the matter of "standing" — judges consider whether someone has the right to sue, before looking at the law and then the facts of a case.

Holmes' spokeswoman, Kimberly Mills, said, "The City Attorney's Office files hundreds of lawsuits a year. There is no requirement that we have a full council vote in public to do so."

Holmes has cited state estimates that delaying the tunnel agreements until August could cost $54 million, and $20 million a month beyond that.

To reach a Seattle Times political editor, call 206-464-2204.

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