NWV Staff Writer November 18, 2005
NewsWithViews.com

PORTLAND, OR. -- When Judge Mary James, of the Marion County Circuit Court, in an Oct. 16 ruling struck down Measure 37 -- Oregon’s famous voter-approved property rights initiative ­ on constitutional grounds, a group of the initiative’s grassroots supporters, many of whom had worked long hours for its passage, said Enough! It’s time to draw a line in the sand. Their tactic of choice: The recall petition.

“We want to send a message to all judges that they just can’t unmake a law after we’ve made a law,” Camby Collier, Coos County chairman of the Constitution Party of Oregon, told NewsWithViews. “First there was the Kelo ruling by the U.S. Supreme Court, then the decision in California where judges said we can’t protect our children from what they’re being taught in school. What more are they going to do to us? Assign people to live in our homes with us?”

On Oct. 26, Tom Steffin, 37, the owner of a graphic design firm in Silverton, with support from the Constitution Party, filed recall papers at the secretary of state’s office in Salem, the first step towards removing James from the bench.

“By overruling Measure 37, Judge Mary James has disregarded the express will of the people and … has undercut the fundamental God-given right of Oregonians to truly own their property,” he declared in his petition statement.

Measure 37 was perhaps the most popular citizen-sponsored initiative in Oregon history. Despite overwhelming opposition from the mainstream press and the state’s political power structure, 61 percent of the voters in last November’s election gave it thumbs up. And not just in rural areas. The measure passed handily in every one of the state’s 36 counties except Benton County. Even in Marion County ­ where Salem, the state capital, is located and many residents work for the government ­ Measure 37 passed 76,441 to 47,332.

The final statewide vote count --1,054,589 in favor to 685,079 against -- told politicians and bureaucrats in no uncertain terms that Oregonians believe property owners deserve “just compensation” when restrictive regulations prevent them from developing their land.

Specifically, Measure 37 (once it was passed into law) forced government agencies to compensate property owners suffering economic loss as a result of restrictive land use regulations or grant an exemption from the rules. By the time James heard the case on Sept. 13 local government agencies had received over 2,500 claims and granted hundreds of exemptions.

The judge’s 23-page order striking down the measure was in response to a lawsuit, MacPherson v. Department of Administrative Services, filed Jan. 14 by former state senator Hector MacPherson, several land owners, five farm bureaus (of Clackamas, Linn, Washington, Marion, and Yamhill counties), and 1,000 Friends of Oregon ­ the powerful advocacy group that for three decades has been the driving force behind Oregon’s land use controls which are among the most restrictive in the nation. It was 1,000 Friends that spearheaded the opposition to Measure 37, as it had spearheaded opposition to an earlier version, Measure 7, which voters approved in 2000 only to have it shot down by the Oregon Supreme Court two years later.

In its brief 1,000 Friends gave 14 reasons why (in its view) Measure 37 was unconstitutional. The judge chose five and axed the new law.

Then, with a final turn of the thumbscrews she awarded court costs and attorney fees to 1,000 Friends and the other plaintiffs, the money to be paid by the defendants (several state agencies) and the intervenor-defendants, those people who had dared challenge Oregon’s land laws with an initiative: people like 93-year-old Dorothy English, who has waited decades for permission to build a house and sell some land to finance her retirement.

It may be purely coincidental, but James made her ruling on the eve of the 30-year anniversary of 1,000 Friends’ founding. The following night, Saturday, a birthday bash was held at the Oregon Convention Center in Portland.

But while enviros and “smart growth” people celebrated their victory over the people of Oregon, proponents of the invalidated measure were getting ready for the next round. Oregonians In Action, the Portland-based non-profit group that authored Measure 37 and the earlier Measure 7, began the tedious process of appeal.

On Oct. 25, OIA’s Legal Center filed a notice of intent to appeal with the Oregon Supreme Court on behalf of clients Dorothy English and Barbara and Eugene Prete. At the insistence of 1,000 Friends, the appeal schedule has been severely expedited, with opening briefs due Dec. 5, and oral arguments by Jan. 10.

14,402 signatures needed

While OIA defends the measure in the judicial system, the petition drive to recall Judge James is on track and “going great,” reports Bob Ekstrom, state chair of the Constitution Party.

The campaign was launched Nov. 5, and organizers have 90 days from the filing date until Jan. 24 to collect 14,402 voter signatures, the number required to force a recall election. Only Marion County voters can sign the petitions, but signature gatherers can come from anywhere and be of any age, including teenagers. Campaign organizers report people driving in from all parts of Oregon to help, particularly on Saturday.

Ekstrom told NWV he’d been disturbed for a long time about the courts being used to bring about things that could “never fly” with the legislature or the governor because of potential voter backlash. But because judges are “insulated from repercussions,” the courts have been “doing the dirty work.” As an example of judicial activism, James' ruling was completely “over the top” as far as Ekstrom was concerned.

“I spoke with other people, and all seemed to feel the same outrage [about the ruling] and were attracted by the idea of a recall and decided it had to be done,” he said.

Headquarters for the campaign were set up at 4660 River Rd., Keizer, near Salem, and a website launched. The day following OIA’s filing, Tom Steffin submitted his paperwork to begin the recall process.

”Beyond overturning”

But it was not only the killing of Measure 37 that prompted Steffen to take a stand by becoming the Chief Petitioner. His relatives were “split” over the proposition. Some were for it, some were for it “in principle but opposed to the language,” while others were flat out against it. As for himself, he voted for the measure but viewed it as a “flawed but reasonable way to correct some of the unconstitutional laws enacted since the 1970s.”

“So Measure 37 being overturned in and of itself was not enough to motivate me to get involved in this recall effort,” he told NWV.

“But Judge James went far beyond overturning,” he explained. “Her big grounds on which she declares it unconstitutional strike at the heart of the American experiment. She said we can’t limit the power of government, that it’s unlawful for the people to establish a law.”

“All five of her arguments flipped constitutional jurisprudence on its head.”

No limits on government power

Steffen says it was an observation by his young son that spurred him to action. As a home schooling parent he spends a lot of time with his five children, encouraging them to rely on original documents rather than newspaper accounts. When the judge’s order came down it was the “news of the day,” so he printed a copy from the Marion County website and read it aloud at the lunch table.

“When I got to the section [on page 11] where Judge James said Measure 37 was unconstitutional because it limited the power of the government, my 11-year-old said, ‘Dad, I thought the whole purpose of the Constitution was to limit the power of the government.’”

Exactly. In her ruling James said the measure raised the question as to whether the legislature (or the people using the initiative process) “may impose limits on the legislative body’s ability to use this power to regulate,” and she concluded that “There is no provision in the Oregon Constitution that would permit such a limitation. …Thus, if Measure 37 prohibits the legislative body from exercising its plenary [i.e., absolute] power to regulate for public welfare, health or safety, it is an unconstitutional curtailment of legislative power.”

“Because Measure 37 currently imposes limitations on government’s exercise of plenary power to regulate land use in Oregon, it is unconstitutional.”

For Steffen such a view was beyond outrageous. Not only he, but his children, knew from their reading that the state constitution specifically states in Article I, Section 1, that “…all power is inherent in the people, … and they have at all times a right to alter, reform, or abolish the government in such manner as they may think proper. Yet here was a judge saying that the citizenry of Oregon could place no limits on government power, and she said it not once but many times in her ruling.

“That’s largely what motivated me to go down and file a petition to recall: there’s no other recourse in Oregon,” Steffen said. “We don’t do impeachment hearings for public officials, and the only other option in the constitution would be the Oregon Supreme Court giving her some kind of reprimand. But in light of the fact that they struck down Measure 7, which Proposition 37 was in response to, I figured that the chances of that were slim to none.”

Chances for success

As expected, mainstream newspapers in Oregon are biased against the recall of a judge, and this could hurt the effort and influence the outcome of the campaign.

James Leuenberger, an attorney in Lake Oswego, says it’s an “uphill battle,” despite the enthusiasm that’s been generated. Gathering nearly 15,000 signatures is no easy task.

“It’s very hard to get the number of signatures we need to get on the ballot, and the entire power structure -­ that’s the newspapers, the Oregon Bar Association, and so on -­ they’re all beating the same drum, that it’s mob rule, mob rule, mob rule: that somehow the people aren’t in control of their own state,” he told NWV.

Leuenberger pointed out that every official in Oregon is required to take an oath of office in which they swear to support the Oregon Constitution as well as the federal Constitution. “But it would be really nice if they’d actually read them,” he added. “Because if they actually read the Oregon Constitution, the very first article ­ Article I, Section 1 ­ says that the people have all the power, and that they have delegated some power to the governor and to the legislature and to the judges, but they retain the power to initiate law change. They just don’t seem to understand that the people are the sovereigns of the state. It’s not the governor, it’s not the legislators, it’s not the judges, it’s the people.”

And it’s “the people” that Ekstrom, Steffen and others in the Recall Judge James coalition are counting on. According to the Statesman Journal, in the past 20 years 68 petitions have been filed with the secretary of state against state officials, but only 10 were returned with enough signatures to force recall elections.

He emphasizes that this is not simply a Constitution Party project, but a citizen grassroots action of all political loyalties. After all, for Measure 37 to have passed with 61 percent of the vote it needed more than just Republicans or Democrats or Libertarians or the Constitution Party.  

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