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MEASURE 7 TEMPORARILY DERAILED BY
MARION COUNTY CIRCUIT JUDGE AND ATTORNEY GENERAL’S OFFICE

On December 6, 2000, a Marion County Circuit Court judge issued a preliminary injunction against Ballot Measure 7, termporarily blocking the measure from going into effect.

The injunction was issued by Circuit Judge Paul Lipscomb at the request of Measure 7 opponents, who filed a lawsuit seeking to halt implementation of the measure and thwart the will of the Oregon voters who approved the measure.

Despite a complete lack of evidence or legal reasoning to justify an injunction, Judge Lipscomb issued the injunction, in large part because of the failure by the Oregon Attorney General’s office to adequately defend the interests of the Oregon voters.

 “I’ve never seen anything as ridiculous as this,” commented Bill Moshofsky, President of the Oregonians In Action Legal Center.  “Measure 7 has been reviewed by law professors, land use lawyers and constitutional lawyers on both sides of the issue, and not one of them believes the measure violates the Oregon Constitution.  But when a lawsuit is filed, Hardy Myers and his staff, who are in charge of defending Measure 7, roll over and concede that the injunction should be issued.  It makes you wonder who’s side they’re on.”

That question is really at the heart of the current litigation.  Because the lawsuit is a challenge to a ballot measure passed by the voters, the Oregon Attorney General is required by law to defend the measure.  But Attorney General Hardy Myers is strongly opposed to Measure 7, as are the other defendants in the lawsuit, John Kitzhaber and Bill Bradbury.

“How can the voters be adequately defended by lawyers who don’t want Measure 7 to be implemented in the first place,” commented Moshofsky.  “The same lawyers at the Attorney General’s office who are defending the measure will be defending the state from claims brought by landowners under the measure.  This seems like a complete conflict of interest, and I think it shows in the lack of dedication to the defense shown by the Attorney General’s office to date.”

 Oregonians In Action is just as concerned with the actions of Judge Lipscomb.  “The injunction hearing was held three days after the Measure 7 opponents filed their lawsuit,” continued Moshofsky.  “Before the hearing, lawyers for the chief petitioner of Measure 7 attempted to intervene in the lawsuit, in order to make sure that someone was going to defend the measure.  Judge Lipscomb refused to hold a hearing on the attempt by the chief petitioner to intervene, refused to allow the chief petitioner’s lawyer to argue in the injunction hearing, and has so far refused to allow any lawyer for the chief petitioner or for any landowners to participate in the lawsuit.  It appears to us like the judge wants to make sure that the only parties to the lawsuit are the opponents to Measure 7 and the Attorney General’s office.    How can we defend Measure 7 and stop an injunction if Judge Lipscomb won’t allow us to participate and won’t allow us to be heard, and if the Attorney General won’t put up an adequate defense?”

To date, there are at least three law firms attempting to intervene in the Measure 7 lawsuit on behalf of landowners with Measure 7 claims.  “I think people realize that landowners will get railroaded by the courts if private lawyers aren’t allowed to participate in the lawsuit and represent the interests of the Oregon voter,” said Moshofsky.  “I’ve been a lawyer for over 50 years, and I’ve never seen a situation where a judge has issued an injunction without giving the parties who are affected by the injunction an opportunity to appear and defend themselves.  Landowners will win this lawsuit if they get a chance to appear in court.  Unfortunately, it doesn’t appear that Judge Lipscomb is all that interested in giving landowners that chance.”

“I think people are sick and tired of seeing court decisions that are not based on the rule of law and are instead based on politics or the outcome which the court desires,” continued Moshofsky.  “We are all taught that courts are supposed to make decisions based on the controlling law and the facts presented in the case, and not on the judge’s personal viewpoint or the outcome of the case he desires.  I want to believe what I’ve been taught, but I just don’t know anymore.”

 “If we get an impartial judge and an opportunity to defend Measure 7 and the Oregon voters who supported the measure, I have no doubt we will win,” commented Dave Hunnicutt, Director of

Legal Affairs for the Legal Center.  “The law is on our side.  I just don’t know if we’ll ever get a fair hearing or an opportunity to present the case, however.”

Despite the temporary setback, however, the lawsuit is far from over.  The Oregonians In Action Legal Center is working to make sure that landowners are heard in the litigation.  “We are considering all options at this point,” continued Hunnicutt.  “I will do everything in my power to defend Measure 7, but more importantly, I will do everything in my power to make sure that all defenses are raised and argued, that landowners are adequately represented, and that we have a court process that is fair and impartial.  I also encourage every landowner to keep up to date on this case.  The media, the courts, and the legislature need to understand the message that the voters sent on November 7.”