STATE'S HIGH COURT TO BE TESTED IN COMING WEEKS

September 27, 2001 11:00 pm

By James Sinks#

Observer Capitol reporter

SALEM Well-dressed lawyers, lobbyists and the curious jammed the third-floor chamber of the Oregon Supreme Court, watching and whispering as the legal arguments unfolded, waiting for the slightest hint of how the justices might lean.

The drama playing out on Sept. 10: whether Measure 7, the anti-property taking initiative passed by voters almost a year ago, passes constitutional muster.

For the states top judges, the oral arguments were the first act in a series of high-profile and politically charged cases this fall, a slate that could bring unprecedented public attention to the states high tribunal.

The courts Measure 7 ruling could fundamentally change Oregons land-use system. In wading into the debate over redrawing Oregons legislative boundaries in October, the court could alter the balance of power in the statehouse. And if it agrees with a lower court judge that Oregons 1992 term limits law is unconstitutional, it could free term-limited lawmakers to run again for office and open the door for challenges of dozens of voter-approved laws.

It is, Chief Justice Wallace Carson Jr. said, the first time in years to see so many high-stakes issues in front of the court at the same time which offers an opportunity to focus the spotlight on what he considers his vitally important branch of state government.

You dont see members of the court recognized on the street and thats probably good because were better off not having celebrity status, said Carson, the former pilot, state legislator and county judge selected as chief by his peers a decade ago. But my concern is there seems to be a fundamental lack of understanding of the role of the court in the state.

But no matter how the court decides on the hot-button issues, some observers will come away disappointed. And their voices could join critics who say the Oregon court is too political or just out of touch.

The court is made up of good people, but people are people and theyre biased, said Senate President Gene Derfler, R-Salem, who believes the justices go too far in their decisions and are making law, not interpreting it.

He points to a 1999 ruling in which the court said state management workers were due millions of dollars in overtime pay because of a syntax mistake in a bill passed by the Legislature even though lawmakers clearly didnt intend to pay overtime or budget for it.

If the court cant use common sense in making decisions, then theres something wrong with the process, he said.

The court has also overturned several voter initiatives, including popular campaign finance reform and victims rights measures earning the wrath of some initiative-rights backers.

Prolific initiative author Bill Sizemore, whose Oregon Taxpayers United group helped put both the term limits and anti-takings measures on the ballot, said the high court is at a critical crossroads, particularly following a decision a year ago that released convicted child murderer Scott Harberts from death row because he didnt get a speedy trial.

The Supreme Court is in danger right now of people losing confidence, he said.

As a result, the public could soon see a number of ballot measures to reform the court and the way justices are selected. Theres a lot at stake right now and if the court finds a way to throw out Measure 7 at all, there will be a backlash, he said.

But Carson said the court isnt swayed by the political reality that people will be upset.

The higher the stakes the more likely the criticism, no matter which way we go, he said. The only

goal we have is to make the right decision.

A LITTLE-KNOWN BODY

In recent years, the Oregon Supreme Court reached the front page only infrequently, in stark contrast to the U.S. Supreme Court. Even Oregon law school students spend much more time studying the federal high court and its decisions than the state one, said Claudia Burton, a retired professor from Willamette University law school.

Yet when it comes to laws that actually affect the daily lives of Oregonians, the state court and its decisions play a much more influential role, said Steve Kanter, a professor and former dean of the Northwestern School of Law at Lewis and Clark College in Portland.

Most law is still at the state level, he said.

For instance, Oregon justices have gone beyond the federal Constitution and granted basically unfettered freedom of expression, a standard that has prevented state campaign finance limits and stopped zoning laws geared to exclude sex-oriented businesses.

But unlike the federal Supreme Court, where the political and legal slants of the justices are well-known, it is difficult to predict how the Oregon judges may lean in any given cases.

This is a fairly pragmatic court and coalitions that form tend to shift over time, case by case, Kanter said. It isnt easy to pigeonhole the court. Thats a good thing.

David Fidanque, director of the American Civil Liberties Union of Oregon, said the Carson-led court appears to favor the interests of individual citizens as guaranteed by the states bill of rights - but added that he is surprised sometimes.

I dont think this court is predictable at all, he said. It is very thoughtful and the justices do their homework always, but personally I dont always agree with every decision handed down.

Portland attorney John DiLorenzo Jr., who has argued several cases in front of the court, said a recent trend toward unanimous decisions has made it harder to see how individual justices debate the merits of cases. When no dissenting opinion is offered, theres no clues what happened once the black robes come off behind the scenes.

How they get from disparate points of view to a unified position is somewhat of a mystery, he said.

Carson said the court is unanimous about 95 percent of the time, and that it takes time to massage opinions to ensure everybody is on board. But by agreeing, the decisions of the court are stronger, he said.

TAKING THE INITIATIVE

Much of the angst this fall is due to the still-unsettled arena of initiative law.

From a legal standpoint, the term limits and Measure 7 cases are closely related because they hinge on arguments about whether the measures were too broadly written. The stage was set by the 1998 Armatta decision, in which the court ruled that ballot measures could only amend one subject in the Constitution.

The proponents of both the term limits and anti-takings measure say each is narrowly written, but trial court judges ruled this year that the measures go too far.

Initiative-rights advocates worry that the decision on the term-limits law could weaken Oregons system of direct democracy. If the court retroactively applies the Armatta decision to the 1992 law, it could prompt challenges to dozens of initiative measures going back decades.

For Sizemore and other ballot measure sponsors, the recent lower court decisions only reinforced what they see as hostility toward voter initiatives by the branches of

government.

I think the Oregon Supreme Court has an opportunity to clear up a tremendous amount of confusion caused by activist judges at trial and appeals court levels, Sizemore said. A lot of people are raising eyebrows right now and wondering of this court is going to be judicious or political in its decision.

But the ACLUs Fidanque said the criticism and pressure on the court is coming mostly from a narrow segment of activists.

The folks who see the court as their enemy are the die-hard populists who feel the initiative process is superior to every branch of government, and theyre just flat out wrong, he said.

Larry George, lobbyist for Oregonians in Action, the property-rights group that campaigned for Measure 7, said its hard to swallow when activists gather the thousands of signatures to qualify an initiative for the ballot and then pass it, only to see it overturned by judges.

There hasnt been a feeling that this court, even though its liberal, has played politics, he said. But that may be changing. If the court plays politics with term limits and measure 7, the court is going to find itself a very politicized body and there is going to be a lot more competition for those seats.

In other states, judge races are becoming expensive and partisan. Oregon already may be moving in that direction even though judges officially are nonpartisan.

Portland business attorney Greg Byrne, who has represented Sizemore, received money for a 2000 Supreme Court campaign from conservative donors.

Byrne called himself an outsider and said the court did the bidding of entrenched special interests and criticized the record of his opponent, former appeals court Judge Paul DeMuniz, on criminal cases.

DeMuniz ultimately won the post, but he worries about public trust of the Supreme Court if races evolve into knock-down fights with such political overtones.

Informed public criticism is important to public accountability, he said. But there is a difference between informed criticism and criticism based solely on political disagreement with a decision.