Posted on 10/17/2001 10:00:53 PM PDT by Benighted
Oregon voters amended their constitution to stop the state from stealing their land. But then the state’s powerful elite took the case to court. The result: A sordid tale of corruption, bribery, and abuse of power in which the will of the people was subverted and the losing attorney was elevated to a judgeship.
It’s been said that if the Bill of Rights were put to a vote of the people, it would be defeated. Last November, the citizens of Oregon had an opportunity to vote on one of the least popular aspects of the Bill of Rights: the final twelve words of the Fifth Amendment that specify “nor shall private property be taken for public use without just compensation.”
For those who advocate greater government power, this “takings” clause is a serious problem because when government regulates the use of land, it plainly takes its utility and value; and the “takings” clause requires that the government pay the owner “just compensation.” In recent years, as governments have begun to regulate land on a vast scale, the cost of providing that “just compensation” would be huge. So legislators have done what legislators do, and passed regulations on the cheap by ignoring the “takings” clause. And courts have done what courts do and provided elaborate rationales explaining that the Fifth Amendment doesn’t mean what it says, in much the same fashion that legislatures ignored the First Amendment’s prohibition of regulation of speech in the 19th and early 20th centuries and courts worked up elaborate explanations of the First Amendment not meaning what it plainly says.
So a group of Oregon citizens proposed an amendment to the state constitution that “requires state, local governments pay landowner amount of reduction in market value if law, regulation reduces property value.”
The estimated direct financial impact, as set out in the Oregon Voters’ Pamphlet, is $1.6 billion for the state, and $3.8 billion for local governments—every year, if governments want to keep regulating at the same level. Of course, this just means that governments will have to start picking up the tab. The cost is still $5.4 billion a year, only now it is the landowners who have to pay.
Oregon voters took advantage of this rare opportunity to protect the Bill of Rights from legislators and the courts. The measure passed comfortably, with about 54% of the votes cast.
This didn’t sit well with the politicians in power. Having lost at the ballot box, they did just what you’d expect—they filed a pair of lawsuits challenging its constitutionality. The challenges were brought by the widow of a popular former governor, along with a consortium of local governments and government officials that reads like a lobbyist’s private Rolodex of movers and shakers. Because they asked for the same relief from the same defendants, the court combined the challenges into a single case before the trail. [sic]
After carefully reviewing what happened, it is difficult to avoid the conclusion that the governor and various attorneys conspired to have the measure undone in the courts and, when they succeeded, the governor rewarded the deputy attorney general who botched the defense with an appointment to the Oregon Court of Appeals.
This is how Oregon Gov. John Kitzhaber found himself in the curious position of being the lead defendant in a proceeding he wanted to lose. The state is required by law to defend with vigor ballot measures once they have been passed. As chief executive of the state, Kitzhaber was thus required to defend the measure. But as the state’s most powerful politician, Kitzhaber had led the campaign to defeat Measure 7, asserting that it would bankrupt the state.
On a Portland radio show, Attorney General Hardy Myers stated that he did not see any ethical problems with defending Measure 7. When I asked him to walk me through his reasoning, he told me that the Measure 7 scenario is typical of situations in which his office is called upon to defend a ballot measure. Kristen Grainger, spokeswoman for the attorney general’s office, elaborated a bit by saying that whatever the governor may personally feel on the matter is irrelevant because “the state is the Department of Justice’s only client” and “there is no conflict.”
But the governor is the named defendant when a ballot measure is challenged and his presence has to be accounted for. Together, these facts appear to create a conflict of interest for the lawyers at the attorney general’s office. Under the Bar Association’s Disciplinary Rule 5-105(A)(I): “An ‘actual conflict of interest’ exists when the lawyer has a duty to contend for something on behalf of one client that the lawyer has the duty to oppose on behalf of another client.”
Actually, after reviewing Christ’s time records, the suggestion that the attorney general’s office faced a potential conflict of interest seems like a major understatement. Nine days after Measure 7 passed, Gov. Kitzhaber kicked off the very suit in which he was named as a defendant by having his staff attorney, Chip Lazenby, call Tom Christ to set up a meeting.
You can see how strange this looks. Defendants don’t ordinarily initiate things—especially when they don’t have any reason to believe they are going to be defendants. In explanation, Lazenby said that he called Christ because the governor needed to know how the Measure 7 challenge was going to be handled in order to begin working on a legislative response.
Although this may explain the initial contact—assuming Lazenby had some way of knowing that a legal challenge was going to be filed and that Christ would be the lawyer filing it—it does not address the purpose of the meeting. At the time, Christ had not begun preparing his case—which meant he couldn’t have had anything to tell the governor. And a two-and-a-half-hour meeting does not sound like the kind of formal get-together in which a lawyer lays out his position. What it sounds like is a strategy conference in which the participants take off their jackets, kick back, and work out how to solve a mutual problem.
When the meeting was over, Christ returned to his office and began working on the complaint. Again, this makes it look very much like he, Lazenby, and the governor all participated in deciding how the complaint was to be framed. And once the meeting was over, Christ rushed back to his office filled with fire and vinegar and missionary zeal to prosecute the case.
Three days later, on Nov. 20, Lazenby called Christ a second time—to discuss “TIMING OF SUIT AND VENUE,” as Christ’s time sheet puts it. Again, this is a highly unusual, if not unheard-of, thing for a plaintiff’s attorney to discuss with the defense. Again, this suggests the two were collaborating on a mutually agreeable strategy for handling the challenge to Measure 7.
The fact that Schuman personally defended the ballot measure was somewhat unusual. As deputy attorney general, he was responsible for managing, coordinating, and overseeing all the legal work of the department’s 200 lawyers. Ordinarily, a court appearance would have been handled by one of the many fine career litigators in his shop. Moreover, Schuman’s expertise is not in litigation at all, but in theory. Prior to coming to the attorney general’s office, he was an associate professor of law at the University of Oregon. As such, he had well-formed opinions on many legal issues. Among those were his ideas about ballot measures in general. He is on record as opposing the entire initiative process. In 1994, he wrote in the Temple Law Review that:
Today the most obvious use of the initiative is to disempower, to marginalize, to create an economic and political elite, be it through term limits which restrict voters’ options, workfare programs, anti-homosexual amendments. . .He used the article to express his belief that the U.S. Supreme Court should outlaw the initiative system entirely on the grounds that it interferes with the “republican form of government” guaranteed by the Constitution. If you are incline to have thoughts about foxes in henhouses, Schuman is the king fox of our time, let loose among 750,000 chickens who voted for Measure 7. At the very least, David Schuman doesn’t sound like the kind of guy you’d want to defend an initiative from legal attack.
Had Schuman been inclined to bag the defense of Measure 7, the governor had the power to encourage him. On Nov. 7, 2000, Oregonians didn’t just pass Ballot Measure 7. They voted on all sorts of things, including whom they wanted to fill a vacancy on the Oregon Supreme Court. The Supreme Court job went to Judge Paul DeMuniz who had, until then, served on the Court of Appeals. This meant that during the entire time Schuman was conducting his defense of Measure 7, the governor was waiting to fill a vacancy on the Oregon Court of Appeals.
The irreparable harm argument is as close to a slam dunk as any attorney ever gets. All that will happen—all that could possibly happen under Measure 7—is that a government body will have to pay somebody some money. Paying people money is what Measure 7 is all about. But, since injunctions can only be issued to prevent something from happening that can’t be fixed with money, there simply was no basis to issue one. Past that, it’s hard to see how any government body could possibly be damaged by having to obey the Constitution.
The likelihood of prevailing at trial is a closer question. Exactly how far the law controlling the case goes is still up in the air. It may well be that, given favorable rulings at both the appellate level and at the Oregon Supreme Court, plaintiffs would have prevailed. But it may well have shown that they wouldn’t have, and it’s up to plaintiffs to show that they would have. At the very least, this was an obvious—if not mandatory—point for the defense to raise.
So, these being the arguments, how did they fare? It turns out they didn’t fare at all because Schuman never raised them.
Not only did he fail to raise the question of irreparable harm, he did the opposite. He briefed the court that, “It cannot be disputed that the implementation of Measure 7 will have immediate, substantial effects in Oregon that will be difficult, if not impossible, to undo. . . . Measure 7 . . . would immediately cause far-reaching and probably irremediable consequences in the State of Oregon.” This remarkable statement was treated as a concession by the plaintiff’s attorney throughout all subsequent hearings, and was referred to as such by the court.
As to the likelihood of winning at trial, Schuman informed the judge that the plaintiffs had a “moderate to high” chance of prevailing on the merits. This had two immediate and devastating consequences in the case.
The first, of course, is that it handed the preliminary injunction to the plaintiffs. The second was much worse. With the defense on record as believing that plaintiffs would prevail at the trial on the unconstitutionality of Measure 7, the attorney general could no longer argue they wouldn’t. In other words, not only did Schuman give away the preliminary injunction, he made it impossible for his office to defend the challenge to the constitutionality of the measure.
As Donald Joe Willis, an attorney for a pair of private landowners who tried to join in the defense of Measure 7, said in a petition he later filed with the Oregon Supreme Court, “it is clear from these proceedings that the Attorney General is not going to provide any substantive defense of Ballot Measure 7. . .”
When I asked Tom Christ about Schuman’s unusual defense, Christ, whose clients had the most to gain if Schuman lost, claimed that it did not make any difference how Schuman defended the preliminary injunction because the fact that the plaintiffs prevailed at trial proved the injunction was proper.
This is an odd argument.
In the first place, it suggests that an attorney is, somehow, relieved of his duty to zealously represent a client as long as he loses the case in the end.
More important, it ignores the obstacle that losing the injunction put in the way of winning the underlying case. Since injunctions deprive real people of real rights, before he issues one, a judge has to satisfy himself that plaintiffs really are likely to win. Then, having issued the injunction, the judge is committed to that view of the case and it’s difficult for him to rule defendants right—and himself wrong—later.
There’s a third argument Schuman did not raise—and it’s important because Judge Lipscomb gave every appearance he would have taken it very seriously. Schuman should have questioned what difference stopping the votes from being certified would have made. Under the Oregon Constitution, ballot measures go into effect 30 days after being passed by the voters. The Constitution doesn’t say word one about having to wait around for votes to be certified—which means it’s quite possible that Ballot Measure 7 has been in effect for months, and the injunction stopping the votes from being counted didn’t mean anything—which would be embarrassing. Something courts try never to do is issue meaningless orders. That kind of thing undermines their authority.
A fair reading of the transcript of the preliminary injunction hearing shows Judge Lipscomb fairly crying out to the deputy attorney general to raise this argument. Time after time he asks about the propriety of issuing an injunction. Time after time David Schuman fails to suggest there is a problem. At the conclusion of the hearing, Judge Lipscomb is still concerned about this question and refuses to give any indication of how he plans to rule on the injunction. Instead, he tells the lawyers he will issue a ruling six days later.
Forms of proposed orders are what lawyers present a judge once the judge rules in their favor. You cannot write a proposed order in advance when you cannot predict the terms of a ruling. Yet Christ, and his counterpart in the attorney general’s office, discussed this very thing almost a week before Judge Lipscomb ruled on the motion.
To reiterate: It looks very much as if someone at the A.G.’s office called Christ to discuss what to put in the order granting the motion the attorney general was supposed to oppose—at a time neither could have known what the order would be. At the very least, both sides were so confident the judge would rule in favor of the plaintiffs—and that they knew the exact terms of that ruling—that they were already collaborating on the language of the order. This course of action seems absolutely inexplicable to anybody familiar with the way hearings are conducted.
In the end, as he almost had to do in the circumstances, Judge Lipscomb ruled Measure 7 unconstitutional. A few weeks later, Gov. Kitzhaber appointed David Schuman to the vacant seat on the Oregon Court of Appeals.
Now you’d think after something like this Oregon would be flooded with federal prosecutors, local district attorneys trying to make names for themselves, and Dan Rather in his tailored, Great-White-Hunter khakis. But none of these characters has shown up, yet. The reason is pretty clear. This is a scandal that threatens the people sitting on the lid. And they have been piling on harder and harder to keep their goings-on away from public notice. And they’ve done it pretty well, so far.
Until the second week of July, the only thing to come out of this whole, sorry swindle was a complaint for unethical conduct filed with the Oregon State Bar against Chip Lazenby, Tom Christ, and David Schuman. The governor is immune to bar complaints for the same reasons he would never personally defend a ballot measure in court. He’s a doctor, not a lawyer.
Still, he seems to take the charges seriously enough to trot out the usual dismissive slander politicians always trot out when they are found with their hands under somebody else’s wife’s skirt. As Chip Lazenby explained to me, the whole bar-complaint issue is nothing more than “one of those cynical political smears that makes it so hard for people of good will to govern these days.” The part Lazenby did not explain to me was why the man who filed the bar complaint, Bob Swift—a lawyer of almost 40 years standing and a registered Democrat—would want to make it hard form good people of his own party to govern.
None of use outsiders can tell at this point what all of this means. To me, there’s so much quacking and waddling and snuffling of bills through the water that there’s got to be a duck around, somewhere. But I don’t know for sure. And I won’t know until somebody finds out what was discussed in the private meeting between Christ, Lazenby, and the governor. And what was really going on in Schuman’s office when the defense was going down? None of us are going to have a handle on that until somebody comes in armed with a subpoena and the will to use it.
What nobody has explained is, in a situation where the voters have spoken, what is there to compromise? More to the point, who are the voters supposed to compromise with? Who is on the other side with other interests that the voters have to take into consideration? It used to be we had to compromise with those inbred Georges and their gaggle of power-wig fops who tried to call our shots from London—until the better angels of our nature rose up and got rid of them. Still, one supposes, present-day government people think the voters ought to compromise with the government itself to get what they want. Anybody who believes that. . . well, I’ve got a left-over gulag I can let you into for cheap.
The second way the legislature tried to deal with the problem was to try to slip by, on the closing day of the session, an obviously pre-arranged deal to make it much harder to get initiatives on the ballot in the first place.
Both of these snatch-backs would have been a lot scarier if it hadn’t been a bunch of legislators doing the snatching. But one of the glories of our system is that legislators run the legislature, and, being legislators, they’re too busy meddling to get anything done on time. In this case they became so distracted over whether Oregonians should be able to sell chickens to ruffians in other places who enjoy cockfighting, that they lost track of time and the session expired. Now with the doors to the capitol slammed shut, the rest of us are reasonably safe in our persons and property for another year and a half.
This may mean that by the time they come back into session in January of 2003, President Bush’s new federal prosecutor will have come into office, Dan Rather will be sniffing around the state capitol building, Oregon will have a new governor, the new governor will have a new staff attorney, the attorney general will have a new deputy, the Court of Appeals will have a suddenly vacated seat for the new governor to fill and, under minimum sentencing guidelines, the federal corrections system will have four new residents for a very long time to come, the rest of the government will confess their sins and retire to monasteries, and sweet reason will descend upon the land.
One can always hope.
Be it enacted by the People of the State of Oregon: the Constitution of the State of Oregon is amended by adding the following subsections to Section 18 of Article I:(a) If the state, a political subdivision of the state, or a local government passes or enforces a regulation that restricts the use of private real property, and the restriction has the effect of reducing the value of a property upon which the restriction is imposed; the property owner shall be paid just compensation equal to the reduction in the fair market value of the property.
(b) For purposes of this section, adoption or enforcement of historically and commonly recognized nuisance laws shall not be deemed to have caused a reduction in the value of a property. The phrase “historically and commonly recognized nuisance laws” shall be narrowly construed in favor of a finding that just compensation is required under this section.
(c) A regulating entity may impose, to the minimum extend required, a regulation to implement a requirement of federal law without payment of compensation under this section. Nothing in this 2000 Amendment shall require compensation due to a government regulation prohibiting the use of a property for the purpose of selling pornography, performing nude dancing, selling alcoholic beverages or other controlled substances, or operating a casino or gaming parlor.
(d) Compensation shall be due the property owner if the regulation was adopted, first enforced or applied after the current owner of the property became the owner, and continues to apply to the property 90 days after the owner applies for compensation under this section.
(e) Definitions: For purposes of this section, “regulation” shall include any law, rule, ordinance, resolution, goal, or other enforceable enactment of government; “real property” shall include any structure built or sited on the property, aggregate and other removable minerals, and any forest product or other crop grown on the property; “reduction in the fair market value” shall mean the difference in the fair market value of the property before and after application of the regulation, and shall include the net cost to the landowner of an affirmative obligation to protect, provide, or preserve wildlife habitat, natural areas, wetlands, ecosystems, scenery, open space, historical, archaeological or cultural resources, or low income housing; and “just compensation” shall include, if a claim for compensation is denied or not fully paid within 90 days of filing, reasonable attorney fees and expenses necessary to collect the compensation.
(f) If any phrase, clause, or part of this section is found to be invalid by a court of competent jurisdiction, the remaining phrases, clauses and parts shall remain in full force and effect.
For purposes of education and discussion only. Not for commercial use.
Benighted, perhaps you could ship it off to Bill O'Reilly....and Carrie_Okie could write a novel!!!!
I agree.
Doesn't it, though? And a sad "lifetime" at that.
Best wishes in return, nunya. Take good care.
Hmmm.... Seems to put the State in the same league with serial rapists and murderers, doesn't it?
But, of course, they do so disingenuously, don't they? All of the hand-wringing and cries of despair over "low voter turnout"--could they have ever profited otherwise? (rhetorical questions)
It's interesting that Kitzhaber (apparently) decided against a run for the US Senate after the publication of this article. That's a victory not to be overlooked, I suppose (small though it is). Of course, in a perfect world....
...January of 2003, President Bush’s new federal prosecutor will have come into office, Dan Rather will be sniffing around the state capitol building, Oregon will have a new governor, the new governor will have a new staff attorney, the attorney general will have a new deputy, the Court of Appeals will have a suddenly vacated seat for the new governor to fill and, under minimum sentencing guidelines, the federal corrections system will have four new residents for a very long time to come, the rest of the government will confess their sins and retire to monasteries, and sweet reason will descend upon the land.One can always hope.
And then they wonder why the public is becoming apathetic about voting.But, of course, they do so disingenuously, don't they? All of the hand-wringing and cries of despair over "low voter turnout"--could they have ever profited otherwise? (rhetorical questions)
My own thesis is that statist politicians are striving to achieve a pair of divergent goals. On the one hand, they want to represent their deeds as having a mandate from the masses. On the other, they want to prevent those outside their charmed circle from being able to block, oppose, or question their actions. When the subject is voter turnout, this puts them in a position of some discomfort.
If the voter turnout were to fall much lower than it is today -- say, down to the 25% level -- the political class would no longer be able to claim a mandate with a straight face. It would be entirely too obvious that the electorate had despaired of the vote as a tool by which to rectify political problems. All by itself, that might force them to change their agendas, even to introduce real differences between the major parties. (GOP loyalists must swallow hard here, but there has not been a detectable difference in principle between the two major parties in at least sixty years. They work toward the same ends, albeit at different rates, and decorated by different rhetoric.)
But a surge in voter turnout to the 65% or 70% level would mean that the time-tested strategies for manipulating the electorate, upon which the major parties have come to rely, would no longer be reliable. There would be too many independent voters who studied the candidates and the issues closely, too many persons who cast their ballots for reasons other than party affiliation, too many persons who cast their ballots for rather than against. I'll go deeper into this at some later time; check the Palace in a week or two.
So the status quo of roughly 50% participation in national elections and 30% participation in state and local ones is probably the degree of voter turnout the statists want. And though they clamor like champions at voter "apathy," I am persuaded that it's a facade that conceals a satisfaction we must not see.
Who was it who said "If voting could change anything, it would be against the law" -- ?
Freedom, Wealth, and Peace,
Francis W. Porretto
Visit the Palace Of Reason: http://palaceofreason.com
I guess if one must resort to hope, then one might as well hope BIG. ;-)
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