Oregonlive article: Oregon Attorney General Ellen Rosenblum refuses to defend Secretary of State over unprecedented rejection of forestry ballot measures

By Rob Davis
October 30, 2019

Oregon Attorney General Ellen Rosenblum is refusing to defend Secretary of State Bev Clarno in litigation over Clarno’s unprecedented rejection of three proposed ballot initiatives to tighten state forestry laws.

Rosenblum also challenged Clarno’s legal basis for tossing the proposals, which Clarno said violated a state requirement that legislative measures stick to one subject. The rule applies equally to voter initiatives and bills in the Legislature.

“There is no question that, under current law, the legislature could pass a measure such as this one and it would be in full compliance with the ‘single subject’ requirement,” Rosenblum told The Oregonian/OregonLive in a statement. “I do not believe there is any compelling reason to argue for a change in the current law.”

Rosenblum said she couldn’t represent Clarno because the Oregon Legislature is also a client and she didn’t want to make arguments that would impede its work. She said she authorized Clarno to find another lawyer due to the conflicting interests.

Clarno did not respond to a request for comment. Her deputy, Rich Vial, declined to answer questions.

The decision by Rosenblum, a Democrat, is unusual, pitting two of Oregon’s top elected officials against one another.

Clarno, a Republican who has taken $36,000 in donations from timber interests in her career, is not backing down in a suit brought by environmental advocates trying to ensure their original petitions advance.

She will instead be represented by Schwabe Williamson Wyatt, a Portland law firm that advertises itself as “one of the nation’s top timber law practices” and says it is part of the fabric of the timber industry. The firm says on its website it is “involved” with the Oregon Forest & Industries Council, one of the leading opponents to the ballot measures.

Clarno on Sept. 24 rejected Initiative Petitions 35, 36 and 37. The measures are substantially the same, calling for tightening the state’s aerial herbicide spraying laws. They propose more logging restrictions in steep, landslide-prone areas. They would prohibit conflicts of interest for state forestry board appointees.

Clarno rejected the initiatives proposed by environmental advocates, including the group Oregon Wild, saying each of the proposals covered more than one subject. The Oregon constitution says a ballot initiative can only address a single policy topic. The same ballot initiative couldn’t raise the minimum wage and ban the death penalty, for example.

No other ballot measure has ever been rejected by the Secretary of State on single-subject grounds, two election lawyers have said.

Vial, Clarno’s deputy, is a former Republican lawmaker who took $19,000 from timber interests in his career.

Vial would not say how the law firm retained by the Secretary of State was being paid. He would not explain why the Secretary of State is litigating a case the state’s lead attorney has opined has no legal justification.

Former Oregon Supreme Court Justice Michael “Mick” Gillette is representing Clarno’s office for the Schwabe law firm. Gillette declined comment.

As a justice on the Oregon Supreme Court, Gillette wrote the landmark 1997 ruling that eliminated Oregon’s campaign contribution limits. The decision allowed Oregon to become one of the biggest money states in American politics, one where today the timber industry gives more than anywhere else in the nation.

Rosenblum’s full statement is below.

My office represents both the Secretary of State and the Oregon Legislature. Our overarching client is always the State of Oregon, however. As the chief law officer of the state I have reached the conclusion that the Secretary of State is entitled to hire conflict counsel in this matter. This is a brief explanation of this decision.

The Oregon Supreme Court has said that the ‘single subject’ requirement in the Oregon Constitution that governs the initiative process is to be given the same interpretation as the ‘single subject’ requirement that applies to the legislature. There is no question that, under current law, the legislature could pass a measure such as this one and it would be in full compliance with the ‘single subject’ requirement. I do not believe there is any compelling reason to argue for a change in the current law.

Under the circumstances I concluded that we would not want to make arguments detrimental to our legislative branch client (although the legislature is not currently a party to this litigation) in order to defend this executive branch action. I authorized Secretary Clarno to obtain conflict counsel, which will allow her to present her view of the ‘single subject’ requirement to the courts for their consideration.