Law of the Land

[September 19th, 2007] When Measure 37 was on the ballot in 2004, supporters promised it would benefit longtime landowners who had seen their property values eroded by years of burdensome land-use regulations.

But some of the biggest winners since Oregon voters passed the controversial land-use initiative have been lawyers hired to file hundreds of Measure 37 claims on those landowners’ behalf.

With Measure 49 on the November ballot to roll back Measure 37, WW combed through records of 7,614 Measure 37 cases statewide to see which lawyers were filing the most claims.

One of the busiest Measure 37 law firms may come as a surprise—Schwabe, Williamson&Wyatt, which has the fourth-most claims among Oregon law firms. The firm filed 42 in all—an average of more than one a month since Measure 37 took effect.

Schwabe Williamson—the state’s second-largest firm—stands out because it has close ties to Gov. Ted Kulongoski, one of Measure 37’s most vehement critics and one of Measure 49’s most prominent supporters.

In fact, the head of Schwabe’s Portland office, managing partner Mark Long, gave $500 last week to support Measure 49. Others among Schwabe’s 160 lawyers to donate to Measure 49 are James Finn and Donald Williams, the firm’s chief operating officer. Finn gave $150 and Williams $250.

Long says Schwabe’s long history of working property-rights cases led to its involvement with Measure 37 claims.

“I don’t think my political leanings on the issue are widely known throughout the firm,” Long told WW. “I certainly hope that the people we represent on Measure 37 claims are successful in those efforts.”

According to a database of Measure 37 claims compiled by Portland State University, lawyers filed 1,837 of the 7,000-plus claims. And 282 of those claims were filed by five firms across the state, including Schwabe (see chart).

To opponents who see Measure 37 as a threat to farming and the environment, taking those cases is the equivalent of ambulance chasing for a land-use lawyer.

“That’s not the most ethical way to build a law practice, particularly given how poorly Measure 37 was written. It’s opened up a huge lane for unethical attorneys to drive big trucks through,” says Eric Stachon, spokesman for the environmental group 1000 Friends of Oregon.

Bruce Chapin, a member of the Oregon Farm Bureau state board of directors, which opposed Measure 37 and supports Measure 49, is equally critical.

“That’s very short-sighted and very self-serving, and I’m sure it’s probably pretty profitable for them right now,” Chapin says.

Lawyers typically charge a minimum of $1,000 to file a Measure 37 claim, according to several lawyers interviewed for this story. But that’s just the beginning. Once land-use regulations are lifted under Measure 37, landowners will often keep the same lawyer to steer them through developing the property.

Among Schwabe’s 42 Measure 37 claims was that of Dorothy English, the then-92-year-old woman who became the sympathetic face of the Measure 37 campaign in 2004. Schwabe’s claims also include one for a 40-acre illegal junkyard in Washington County operated by Howard Grabhorn (see “Grapes of Trash,” WW, July 18, 2007).

Schwabe’s Measure 37 claims were filed by two lawyers with the firm—Donald “Joe” Willis in the Bend office and Jill Gelineau in Portland. Gelineau, a member of the “Big Look” committee to recommend statewide land-use reforms, says she was appointed to the committee (whose work has been put on hold) to represent the interests of private ownership. “I certainly have that perspective,” Gelineau says.

Gelineau, who says she voted for Measure 37 and will vote against Measure 49, says political differences with her boss and “close friend” Mark Long don’t affect her work. “Our firm is known for protecting property rights, and we advertise that,” she says. “It doesn’t mean to me that my partners have to be denied their rights to free speech.”

More curious in view of Schwabe’s active Measure 37 work are the firm’s close ties with Kulongoski.

Earlier this month, Kulongoski appointed Schwabe lawyer Jay Waldron to the Oregon Health&Science University board, where he joined fellow Schwabe lawyer Roman Hernandez. Membership on the 10-member board can lead to high-level contacts, and stacking it with two Schwabe lawyers was a rare move by the governor. Schwabe lawyers also gave $2,500 to Kulongoski’s 2004 primary campaign, and Hernandez recently contributed $175 to Kulongoski’s Opportunity PAC.

Kulongoski spokesman Rem Nivens declined to comment. But the relationship between Schwabe and the governor is nothing unusual, says Don Schellenberg, a lobbyist for the Oregon Farm Bureau.

“I’m sure they have the capability of representing their clients in spite of their personal position on the issue,” Schellenberg says. “When you get involved with lawyers and with politicians, you have to have the ability to do that.”

The top firm for Measure 37 claims was Bryant, Emerson&Fitch in Redmond. Its lead Measure 37 lawyer, Edward Fitch, is a Democrat-turned-Republican who served as mayor of Redmond from 1998 to 2001.

Fitch claims he never actively recruited clients to file claims—something Stachon says has happened in rural parts of the state. “A lot of them were existing clients,” Fitch says. “We’ve been around for 100 years, and we’ve got a lot of clients we’ve worked with for decades.”

Fitch voted against Measure 37 in 2004 because he says it swung too far toward property owners’ rights. That didn’t stop him from filing 82 claims on behalf of clients. Most recently, he wrote an argument in opposition of Measure 49 for the state Voters’ Pamphlet.

“I don’t think Measure 49 puts us back in balance,” Fitch says. “It swings back to the other side again. It is just a nightmare of bureaucratic control.”

News intern Paul Leonard contributed to this story.