Measure 37: Justice Compromised — Justice Denied

Oregon’s liberal planning class suffered a major defeat at the hands of the Oregon Supreme Court when the court reinstated Oregon’s popular land use planning reforms embodied in Measure 37. (Measure 37 is the citizen’s initiative which simply requires the government to pay for taking the use of your property or refrain from such taking and which passed by a whopping sixty-one percent of the vote in the 2004 election.) The Supreme Court rejected each and every bizarre theory that Judge Mary Mertens James advanced in her attempt to undermine the vote of the people in adopting Measure 37 for a second time. It is a devastating signal to the left that they may not be able to rely on the Supreme Court to advance their political agenda at the expense of Oregon voters.

But there may be more to the story than that. There is a stench emanating from the Marion County judiciary and it may have grown so noxious that not even Oregon’s notorious liberal supreme court could ignore it. The judicial system in America is based on a fundamental principle that judges come to the bench, unimpeded by their own prejudices, and render decisions based solely on the facts and the law. Further these judges are to scrupulously avoid conflicts of interest and refrain from rendering decisions in which they have a direct or indirect beneficial interest. That requirement is so rigorous that judges are to avoid not only the actual conflict of interest but also any appearance of such conflict. To that end they are required to make disclosures of even tangential events to the litigants such that they can inquire as to the independence of a particular judge. That requirement appears to have been ignored in its entirety by several of the judges in Marion County when they sought to destroy the voters’ choice in Measure 37.

The Marion County circuit courts operate under the iron hand of Chief Judge Paul Lipscomb. In the normal course of things lawsuits are randomly assigned on a rotational basis with each judge taking his or her turn. When a judge is disqualified for any reason, the chief judge then makes the assignment of the case to whomever he decides appropriate. When the environmental groups filed their challenge to Measure 37, Judge Susan Tripp drew the case. Affidavits were filed seeking to disqualify her and eventually notice was sent to the parties that Chief Judge Lipscomb would decide pending motions, including the motion to disqualify.

Judge Lipscomb had a prior history with land use planning litigation – he was the judge that invalidated the original version of Measure 37. Because of this, affidavits were filed to disqualify him. In addition, Judge Lipscomb had at least the appearance of a conflict of interest because he had received notice that landowners who neighbored his vacation property in Deschutes County had filed a Measure 37 claim seeking to develop their property. Any sense that this was not a real conflict of interest disappeared when Judge Lipscomb subsequently filed his own suit challenging the constitutionality of Measure 37 so as to protect his vacation property. Judge Lipscomb failed to disclose this to the litigants and failed to recuse himself from consideration of the pending motions.

After extended periods of silence from the circuit court, all of sudden and without motion or order, Judge Tripp announced that the case had been reassigned to Judge Mary Mertens James. A search of the court records by one of the litigants failed to disclose who was responsible for reassigning the case but it remains the prerogative of the chief judge – Judge Lipscomb. A public records request by Bob Harris for such information has resulted in a letter from Judges Lipscomb, Tripp and James tossing the ball to the Judicial Department’s Legal Department and beginning the bureaucratic shuffle. If Judges Lipscomb, Tripp and James don’t know how Judge James was assigned to the case, who does?

But there is more. Judge James and her husband purchased their “dream home” in rural Marion County. They have insulated themselves from others by purchasing a small acreage in an area that could not be further developed because of land use restrictions. The passage of Measure 37 put their Shangri-La at risk. In fact, three landowners within a four-mile radius of Judge James home filed applications to develop their acreage. Judge James noted in her decision that she was aware of all claims pending in Marion County including those near her home. She, however, failed to disclose this to the litigants or the fact that these claims may create at least the appearance of a conflict of interest. By striking down Measure 37, Judge James protected her “dream home” and denied others the opportunity to attain their dreams.

Impartiality has flown from steps of the courthouse in Marion County and justice in Oregon has suffered. Gratefully, not even the Oregon Supreme Court could stand the stench. As for Judge Lipscomb and Judge James, they should do the honorable thing and resign. They are an embarrassment to the concept of judicial independence and impartiality.