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Sunday, October 22, 2006

The rest of the story

I have gone through the rest of the pending ballot once again, and it's time to fill the thing out. Besides Frederick for Multnomah County Commission, Yes on 39, and None of the Above for Governor, here's the rest of where I'm headed:

For State Supreme Court, I'm getting ready to flip a coin, but leaning toward Jack Roberts. I know Jack a bit, and I think he'd be a refreshing change on the court. He's a former tax lawyer, and he had real clients once. But I fear he's not really interested in the high court job so much as he is in keeping his name in voters' minds for the day when he runs again for statewide office. Sort of like "Supreme Court Justice Kulongoski" -- a politician who hardly stayed on the bench long enough for a cup of coffee. Judge Ginny Linder, on the other hand, has spent way, way too much time in Salem for my comfort level; she's a government attorney at heart. They're both smart enough, but neither is all that attractive.

No on all the statewide ballot measures other than 39 and 44:

Measure 44 makes sense -- poor people should be able to get medicine, for Pete's sake.

Measure 40 (state appeals judges elected by district) is the wrong move. We shouldn't politicize the courts any more than they already are. This one will need a strong turnout against it -- it almost passed last time.

Measure 41 (tax deduction vs. credit) is preposterous -- let's start micromanaging the tax code at the ballot box. Measure 48 (state spending limit) is also bad policy, brought to you by the folks who brought you the kicker. No on both.

No on 42. I think insurance companies should use credit ratings in deciding whom to insure and how much to charge.

No on 43. Of course I'd want to know if my daughter was having an abortion, but if I can't get her to trust me enough to tell me about it, too bad. Kids aren't going to do what this law would require, anyway. They'll run away or wind up in an alley.

Term limits for legislators? It's tempting, but I'm going to say no on 45. There are some good people in there who aren't worth losing, and opening up an incumbent's seat doesn't guarantee an improvement. I would like to see a term limit for the state attorney general, though, who ought to be locking some of our more crooked legislators up.

Campaign finance reform? No on 46 and 47. The best remedy for influence peddling is publicity, and lots of it -- not mechanical limits that are going to be struck down as unconstitutional under federal law anyway. If a ballot measure comes up requiring candidates to file campaign finance reports daily in easily searchable databases, I'm all for it.

On the local measures:

Metro parks bonds: Close call, but I'm voting no. Until we stop handing public resources over to sleazy developers, I don't trust this kind of activity -- particularly in a body like Metro, which is full of Goldschmidt-style West Hills sympathizers. Use the money you're going to blow on the Convention Center Hotel on some parkland instead, folks. Or maybe Dan Saltzman and Jeff Cogen will trade you some of Mount Tabor Park.

Portland police and fire fighters pension and disability: It's a Band-Aid on a severed carotid artery, but at least it's something. Voting yes.

Schools and libraries: Yes. The politicians who decide budget priorities in this city, county, and state are doing a terrible job of it, but let's not take it out on education.

So much for the issues; on to the people:

Three of the four Multnomah County judgeship races are interesting. I'm going with Cheryl Albrecht in Position 31; she's the candidate I know the better of the two. And her opponent looks like a machine candidate, with Neilies like Hardy Myers and Mike Schrunk at the top of her endorsement list. You go, Cheryl.

In the nine-way dogpile for Position 28, none of the names is familiar, and I'm not sure I have the energy to weigh all nine. Somebody help me out here.

Position 37 is the real circus race, with Leslie Roberts running unopposed, or rather, running against herself. All the mainstream media are asking voters to write in Charles Henderson. Sounds good to me. Roberts gamed the system for her own advantage, and is that what we want in our judges? On the other hand, she's the only name on the ballot and will probably win. Good for bloggers -- there'll be lots of drama once she shows up for work at the courthouse.

My congressman and state representative are locks for re-election, and so they're not worth the bandwidth to write about.

I think that's everything, but I know that readers will point out what I've missed.

Comments (25)

Metro parks bonds: Close call, but I'm voting no. Until we stop handing public resources over to sleazy developers...

I think this opportunity for saving open spaces from developers --sleazy or otherwise-- is too important to pass up. METRO seems to have done a good job with the last bond sale, and this one also provides some money for Portland Parks in underserved areas. Our lawn signs are up for this one.

Would like to see someone make the case in favor of M 46 and 47 addressing the issues raised here.

And my lawn signs are up for Lew Fredricks -- let Cogen spend the commissioner's term in a West Hills tanning booth.

I might consider voting for Cogen if he could arrange to grant me a little of Council Crest park, though; I want to build a castle there.

Speaking of lawn signs, the Henderson for Judge campaign finally raised enough money to get a few (and some window posters as well), so if anyone wants one, let us know at hendersonforjudge@gmail.com.

And Jack, thanks for the endorsement. I'd encourage people to resist the "anyone-but-
Roberts" urge and actually check our website to get an idea for who Charles Henderson is. We feel that an informed decision is important, and hope anyone reading this will take the time to learn about Charles before writing him in (even though we also think that you should write him in, we also think that responsible democracy outweighs just blindly following the suggestions of others...).

Chris Piekarski
Director, The Committee to Elect Charles Henderson Judge

I just moved here from Tucson in January. I find the idea of voting for judges appallingly stupid. Just what I want, judges having to suck up to people to raise money for campaigns!

jack, there are a lot of write-in options on this ballot i'm holding. any spot you'd like to see your name? judge? how 'bout governor? just being given the option to write someone in is awfully tempting.

I think its interesting that no one contests that the appointment process for picking judges is political and not necessarily on the basis of competency...or as it turns out, even legal qualifications for the job! The main task seems to be to pick someone who will help deliver a particular constituency to the appointing Governor..or win him points with the insiders who support his pick. The other point is that Judges are encouraged to resign in the window allowing their replacement to be picked by appointment ..not election so as to deprive voters of a choice. Its nice that in the Multnomah county races this year we have one WIDE OPEN race (because a sitting judge DIED!) and in another, we have an experienced and competent attorney who is NOT a political appointee..running : Leslie Roberts. You can vote for whomever but you are not stuck with the appointee!

I think I agree with your initiative picks on the substance. But I have become so disenchanted with the initiative process that I plan to vote against even those that I think make sense. To me, it's a hopelessly flawed lawmaking process.

"Metro parks bonds: Close call, but I'm voting no. Until we stop handing public resources over to sleazy developers"

How prescient - METRO wants to fund Mr Ashforth's OCC hotel. If you are stupid enough to think METREO won't use some of that money to lay-off non-park expenses so they can throw more money at the OCC hotel, you are naive.

I suspect the last round of open space bond money wasn't as succesful as billed by the Oregonian and WWeek. Call it a gut feeling. With the whole gainful employment thing and mortgage to pay I haven't had time to follow up.

Metro passed alot of this unrestricted cash off to left/Green party leaning politically active groups (patronage for green purposes is obviously okay). Additionally there are presistent mentions of large chunks of land being bought from Emmert Intl (a company not know for being charitable).

I don't have proof or time to track down the full and verifiable story but I've heard more than once that Terry Emmert (owner of Emmert Intl a large land holder on the East side of Portland) was holding up development by Metro's plan. Emmert was positioned to stop reasonable development by blocking utility and necesary infrastructure from being easily accesible with existing facilities (so the rumor goes).

I can't help but wonder at what price these lands were bought for? There has been no follow up or presentation of the last round of bond monies by the Oregonian. I can't help but wonder what this money has done given how supposedly succesful this is.

Especially considering Metro has the power to regulate land use for watershed as this would be a reasonable regulation under M37 being a health and safety regulation.

I personally agree with the intent of the bond measure for open spaces (this fund could go along way to handle M37 claims in a very progressive and fair way). I just really don't believe Rex Burkholder or David Bragdon have the mental fortitude to not get taken.

If you are stupid enough to think METREO won't use some of that money to lay-off non-park expenses so they can throw more money at the OCC hotel, you are naive.

I'm "stupid enough" to not understand what that sentence means. Can you explain?

I believe Steve meant that if you are against the HQ Hotel you should be against the Open Spaces bond measure.

Metro isn't really overseen or restricted in spending this money. They could easily use monies from the bond to fund positions or expenses that could be crossed over into the OCC Hotel project.

Say, bring on consultants or experts who lean towards the Convention Center line of expertise under other projects paid for by the bond measure. Same thing with gaining support in the "community" by hiring activist non-profit groups for to do "community outreach" projects and therefore bring further staked support for the hotel (or anything Metro whims).

You bet Metro will be restricted in what they can use the bond money for: It's got to go exactly to what the voters approved. Ballot language is LAW.

And if they were even tempted to mess with it, well, that's why we elected a tough and smart new independent Metro Auditor, Suzanne Flynn. . . so vote or don't vote for streams, parks and open spaces, but not because you don't like the convention center hotel idea!


Sarah, as you know, there is "cross-over" of staff, commissions, etc. billable time/expenses in METRO, PDC, CoP, etc. I have observed billable hours and other expenditures from one part of a government entity being used to support another project.

Case in point is North Macadam's planning and actual expenditures for projects. Several times PDOT has used funds from the general funds to expediate planning and actual implementation such as the raising of the whole NM area up to 9 feet in elevation to meet Fed flood zone requirements. Raising the existing streets alone was not a "minor cost" with all the engineering needed in the design and increasing the elevation of all the sewer, water, underground services. The Portland taxpayers paid for this expenditure in large part from the general fund and it wasn't billed to the TIF moneys of NM. And this "mixing" of city expenditures happens all through government. And I could give additional examples from NM.

METRO has "mixed" expenditures with its latest "Wildlife" protection zoning. In the last "open space" bond, METRO has also used funds by giving "grants" to different interest groups that follows METRO's environmental agenda. I'm not against being environmental sensitive, but the bond measure stretched the stated purpose of the last bond measure.

It's all public money, and your supposedly sancrosanct budget compartments are sieves. As a tax lawyer, I can tell you that through one shell game or another, money raised for parks could get spent on the hotel. Easily.

Heck, some of the federal funds sent to Portland for infrastructure improvements for the SoWhat district actually wound up being spent on fundraisers for local politicians' political campaigns. That's a fact.

It's all smoke and mirrors. No on Metro parks bonds.

We shouldn't politicize the courts any more than they already are.

As long as state appeals court judges are (at least nominally) elective positions, what's wrong with more politicization? Why pretend?

M40 would serve to counterbalance the political game that's already in play - the early retirement/interim appointment/incumbent scam.


What about METRO councilor?

Just now getting to this, but on the FPD&R reform, my problem is that we're "fixing" the unfunded retirement liability without fixing the disability problems. We're only going to get reform once, and if this is rejected the City will HAVE to come back with a better proposal.

The City is saying the reformed disability approval process will be in the hands of "independent disability experts." But that's not true. Those "experts" will be bound by FPD&R rules on who qualifies for disability, so they're not independent. And those rules will be set by the FPD&R board. The board is being reformed to take away the union majority, but union members will still hold two of five seats. The other three will be two citizens and the Mayor. Let's be honest -- in union-friendly Portland, does anyone believe the Mayor and Council will appoint citizens who AREN'T friendly to unions? Labor will still control the board, they will still set the rules, and they will still get disability at five times the rate of every other jurisdiction in Oregon.

If this passes, there will be no more reforms for at least 20 years. I agree that it's a SMALL step in the right direction, but we're only going to get one bite at this apple, and this one has a worm in it.

Miles, you are absolutely correct. Your points are the main reason that I am voting NO on FPD&R. It doesn't go far enough. I am tired on these 1/10th at best solutions. Taxpayers need to put their feet down, and just say NO, and require a true remedy. And if City Council won't address it, then use the initiative process to have a vote on a real solution.

what's wrong with more politicization?

Judges and hopeful judges having to seek political sponsors for their campaigns, is the problem -- and if you look at states where appellate judges have to run those kinds of campaigns, the companies who make generous contributions to judicial campaigns tend overwhelmingly to be companies with appeals in the pipeline. And (gasp) the judges wind up ruling in favor of their contributors about 90% of the time. It's absolutely appalling, and we've managed to avoid it here so far; inviting it in is a terrible idea.

Also, because each judge would have to maintain a home in his "district," this means that the only people who could seek an appellate position would be those who are independently wealthy enough to maintain two homes: one in their district, and one in Salem.

And finally because it is a pointless politicization. A judge's job is to apply the law to the facts -- the statutes that the legislators from all over the state created, or the precedent set by years of decisions made by judges from all over the state. It doesn't matter where the judge is from; the state constitution is the same, the statutes are the same, and the case law is the same. What you want is the best and smartest people on the bench. (Also? Gene Hallman won precisely one rural district in May. Not even the rural voters seem to think that what the court really needs is more judges from rural Oregon.)

Measure 39 would require the state to pay the legal costs of any citizen who opposes a regulatory taking of their property regardless of whether the taking is for a Kelo type taking or a taking for public purposes (see Section 7 (4) of the proposed measure). In every case under measure 39 the government’s best offer will be rejected by the landowner. This is because property will continue to appreciate between the time of the government’s first offer and the time the case would end up in front of a jury. The attorney for the property owner will always be able to prove that the property is worth more than the first offer. And all they have to do is prove that the property is worth one dollar more and the taxpayers will have to pay their fees and costs. Measure 39 is not a property rights protection bill- it is an attorney welfare bill. Do not be fooled by the measures title.


Your argument is flat wrong. The amount of fair market value is measured as of the date the lawsuit is commenced, or the date the condemning body enters onto and appropriates the property, whichever comest first. Thus, if the property value increases (or decreases) during the course of the litigation, that increase (or decrease) is not taken into consideration in the award of just compensation.

Valuation of property is measured as of date condemnation action is commenced or date condemnor enters on and appropriates the property, whichever comes first. State By and Through Dept. of Transp. v. Lundberg, 312 Or 568 (1992).

In proceeding by the state to condemn land for a public use, the measure of damages is the actual cash market value of the land at the beginning of the action. State ex. rel. Olcott v. Hawk, 105 Or 319 (1922).

Exactly. The date the lawsuit commences will always be after the first offer to purchase is made by the government. So, there will always be some measurable amount of appreciation for property durring that time period, however small it may be. The language of the measure does not account for this.

Free attorneys fees for any one who will have property taken for any governmental purpose = measure 39. And you are going to pay for those fees.

But that's not what you said Nick. What you said was "This is because property will continue to appreciate between the time of the government's first offer and the time the case would end up in front of a jury." That may (or may not) be a correct statement, but that is not how just compensation is determined for purposes of condemnation law. Under current law, the property owner has 40 days after the government makes its initial offer to accept or reject that offer. Once that time period expires, the lawsuit may commence. If you believe that the possible increase (or decrease) in value of the property during that 40 day period is enough to increase litigation, then I'll respectfully disagree with you. I've represented private citizens my entire career, and have yet to find a client who wants to litigate. Sometimes they are forced to do so, but litigation is about as fun as having your teeth pulled. And giving the property owner the right to recover attorney fees does not create an incentive to litigate, when the best the property owner can do is recapture his/her out of pockets. It seems to me that if you create an incentive to the condemning body to make its best offer up front, you will decrease litigation, rather than increase it. What private citizen would choose to litigate if the first offer is the equivalent of the fair market value of the property?

The fair market value of any property is only an opinion, a reasoned opinion, but still an opinion. Hire any two appraisers to place a value on the same property and -you will get two different opinions of what that fair market value is. It should be close, assuming they both found the same comps and have the same data regarding the property characteristics, but it will be different. The incentive to litigate is not just the recovery of the attorneys/appraisers fees and the difference in the appraisers opinion of FMV but it is also the time that it buys the property owner, to keep living in their house, running their business, or collecting rent. For this very reason, almost every homeowner that is going through a condemnation uses close to that full 40 days to accept or reject the initial offer. Litigation will buy them even more time, and because the attorney is free it will become the logical choice under M39 every time. You could have drafted M37 to just prevent Kelo type takings, but it goes to far. We need road and bridge repair in this state, not more lawsuits. I will vote against M37, and I urge others to do the same.

Well, Jack, Masure 47, which passed, does require far better campaign disclosure and reporting. Here are some of its provisions that will take effect, regardless of the absence of Measure 46:

1 Every campaign advertisement funded by "independent expenditures" must prominently disclose the top 5 contributors to the "independent" campaign, the businesses they are engaged in, and the amounts contributed by each of them. These disclosures must appear in all advertisements, including TV, radio, newspaper, direct mail, billboards, etc. They need not appear on small campaign items, like buttons or bumper stickers.

2 Anyone making independent expenditures during any 2-year election cycle in excess of $200 must publicly report the expenditures in the same manner and schedule as a political committee in Oregon must report to the Secretary of State or local election officer.

3 Every candidate who spends more than $5,000 of personal money on a campaign for public office must disclose in every subsequent campaign ad the amount of personal money being spent on the campaign.

4 Every contributor of more than $500 per year must obtain a "handle" from the Secretary of State, so that his future contributions can be more accurately recorded. [Note: Every registered voter in Oregon already has a handle, consisting of his or her voter registration number. This provision will, however, include also all out-of-state contributors].

5 "Within five (5) business days of receipt, the Secretary of State shall report and make available on the Internet in an interactive database format all contribution and expenditure reports and all handle registrations. The format shall enable the user to determine the sources and amounts of reported contributions:

1 For each candidate committee, political committee, political party, and independent expenditure campaign; and

2 From each contributor who has contributed at least five hundred dollars ($500) during the election cycle."

6 No employer can, directly or indirectly, "require any employee or contractor to make any contribution or independent expenditure to support or oppose any candidate; or provide or promise any benefit or impose or threaten any detriment due to the fact that an employee or contractor did or did not make such contributions or expenditures. Any person subjected to a violation of this "shall have a civil cause of action against the violator and shall, upon proof of violation, recover a civil penalty of not less than $50,000 per incident of violation."

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