Truth And Consequences
Nothing was finer for Measure 49ers than their unusual path to the ballot.
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[October 10th, 2007]
While voters sort through competing claims over Measure 49, they might also consider the extraordinary lengths to which proponents went to secure a favorable ballot title for the land-use question in the upcoming ballot.
At issue before ballots get mailed Oct. 19 is the proposed fix for Measure 37, the law passed by state voters in 2004 to provide compensation for property owners who alleged losses from land-use regulations enacted after they acquired their property.
After Oregonians filed 7,500-plus Measure 37 claims seeking more than $12 billion, the 2007 Legislature made fixing the measure a top priority.
Legislative leaders appointed lawmakers from both parties to a 10-member “Land-use Fairness Committee,” which held numerous meetings leading up to the Legislature referring the measure to voters in late June. But Tim Nesbitt, deputy chief of staff to Gov. Ted Kulongoski, wrote in an affidavit submitted Sept. 20 that “it became evident as early as January 2007, that any changes to Measure 37 were likely to require the passage of a ballot measure by the voters.”
The affidavit resulted from a lawsuit in U.S. Circuit Court in Eugene by Measure 49 opponents, led by the property-rights group Oregonians in Action, to derail the measure. OIA president Dave Hunnicutt argues that the ballot title and measure summary that the Legislature referred are unfairly favorable to proponents.
“They’ve guaranteed themselves a victory by manipulating a process that is supposed to be neutral and fair,” Hunnicutt says.
Nesbitt strongly defends the process, saying “the result is fair and accurate.”
OIA’s lawsuit failed. But documents the group obtained reveal how Nesbitt orchestrated a strategy to get Measure 49’s backers the ballot title they wanted.
“Beginning in late December 2006, I represented the Governor’s Office in meetings with legislators and other public officials regarding citizen complaints about, and possible changes to, Measure 37,” Nesbitt wrote in his affidavit. “Beginning in January 2007, I, on my own time, represented the Governor’s Opportunity PAC in securing polls and consulting services related to changes to Measure 37.”
That dual role would eventually lead to Nesbitt having to produce his emails under Oregon’s Public Records law. By Jan. 23, those emails show, Nesbitt had joined forces with Bob Stacey, the director of 1000 Friends of Oregon, Stacey wanted to make sure any prospective ballot title would reflect proponents’ views, rather than neutrality.
“This is exactly what I’ve hoped would happen: you pick the best people to draft the title for the measure the legislature refers out and don’t leave it to chance or Legislative Counsel,” Stacey wrote to Nesbitt on Jan. 23.
Ballot-measure campaign veterans say the ballot title is key because voters often distrust both sides and rely instead on ballot titles and explanatory statements.
Typically, those titles and statements are prepared by the attorney general’s office and vetted by both sides. Any party can comment on the result and can appeal to the state Supreme Court. That process is supposed to result in “ neutral” language according to elections law.
“The ballot title is very important,” says public-interest lawyer Dan Meek, who has a long history in the initiative trade. “The right title can move election results 20 percentage points.”
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The Legislature, however, can bypass the standard language-vetting process when it refers measures to voters.
Emails show Nesbitt and Stacey began lining up a team to poll and run focus groups on ballot language in January. Their crew included local pollster Lisa Grove; political consultant Steve Novick, now a candidate in May’s Democratic primary for U.S. Senate; and lawyer Margaret Olney.
The group tested ballot language in March and April to determine which words would have the greatest chance of overturning Measure 37. Nesbitt says the focus groups and polling provided information about exactly how voters felt about Measure 37 and how they would like to see it fixed.
Proponents also discussed other strategies such as deliberately making the ballot summary so long that county elections officers would leave it out of the Voters’ Pamphlet, leaving voters with only the carefully chosen ballot title to consider.
“I don’t see huge advantages to the words added to the summary to expand it,” Measure 49 campaign strategist Liz Kaufman wrote in a June 6 email to Nesbitt and Stacey. “I realize that was done in order to try to make it so long that counties won’t print it, but it doesn’t seem to add much value through it’s [sic] actual meaning.” (Proponents ultimately shaved the summary down to 125 words).
They also debated how neutral the measure’s explanatory statement should be. In a June 6 email to Land Use Conservation and Development Commission director Lane Shetterly, Rep. Greg Macpherson (D-Lake Oswego) and Sen. Floyd Prozanski (D-Eugene), Nesbitt wrote, “We should decide if you want to bypass the process for an Explanatory Statement Committee and draft our own Explanatory Statement as well. I would argue against doing anything differently with the Explanatory Statement process, since that is explicitly provided for both initiatives and referrals and allows for input from both proponents and opponents.”
Ultimately, legislators ignored Nesbitt’s advice. On June 25, the same day they referred Measure 49 to voters, lawmakers passed House Bill 2640 sending a pre-selected ballot title, summary and fiscal impact statement directly to the voters. HB 2640 passed the Democratically controlled Legislature on a party line vote.
Macpherson, who led the Legislature’s revisit of Measure 37 and is now a candidate for Attorney General, defends the process.
“I think the Legislature acted responsibly and that our language accurately and fairly reflects the substance of the measure,” he says. “My understanding is that this process [direct referral] is one that has been followed before.”
Ted Reutlinger, chief deputy legislative counsel, says the Legislature has drafted its own ballot title only five times when it’s referred measures in the past 12 years.
One of those referrals, in 1995, incurred the wrath of Gov. John Kitzhaber. He vetoed it, writing on July 21, 1995, that “I think it is important to preserve the right of Oregonians who may disagree with the Legislature to challenge the proposed ballot title in court.... It is never appropriate to avoid the appeals procedure in an effort to thwart court scrutiny and bypass citizens who may have an alternate point of view on the objectivity of the proposed ballot title.”
Unfortunately there will not be a "next time" unless Measure 49 passes. If it fails, the Legislature will not touch this issue with a 100 ft pole for a long time. As someone who was in Salem lobbying for changes to measure 37, I can GUARANTEE you that this is the case. I can also tell you, from my experience as a legislative aide some years ago, that this kind of insider politics happens all the time. That doesn't make it right - I happen to agree with you for the most part - but it is common no matter who is in charge of the process. At least if M. 49 passes, we will avoid the conversion of farm and forest land - the massive subdivisions - that will start construction this fall. That much is certain
Greg Macpherson just lost my vote for Attorney General. This is what make me cynical, complete abuse of the process.
Making sausage sometimes isn't pretty. No laws were broken, and we elect legislators to craft laws, including referrals to the voters. It's vital we stop the continuing damage of Measure 37, and it's incumbent on us to vote Yes on 49.
The corrosive cynicism of the state government in how Measure 49 was created is inimical to trust in government. A "Yes" vote on Measure 49 will promote a trend to future legislative abuse of our democratic process. The outcome will be even worse government than that which we now suffer under.
I didn't vote for the Ds to take back the legislature so that they could act like Republicans. Since when does the end justify the means? The legislature should pay eminent domain for all those subdivisions which I hate and which are ruining our state, until they go back and do it right. We are destroying paradise in Oregon both environmentally and politically. Measure 37 was a disaster that needs to be repealed but I am voting NO on 49 until the professional pols quit screwing with us.
Everyone knows 1000 Friends of Oregon, and their fat cat millionaire friends orchestrated every move for measure 37 repeal disguised as "reform". Why would anyone expect to get a fair and unbiased ballot title from that bunch. I'm voting no on 49!
Its much ado about nothing. So the side that wants M49 passed polled voters to figure out what they should change, and then the legislators wrote the ballot title to their advantage. So what? The opponents challenged the ballot title in court as being an unfair representation and lost. What about the ballot title is actually misleading or untruthful? Am I missing something?
Voting no because one does not like the process by which the ballot title was written seems to play into the hands of those who want M37 to stand as is. M49 should be supported or rejected based on its merits or demerits, not on the process of writing it. After all, what was the public process that wrote M37 in the first place? There wasn't any, the timber companies who funded it hid behind sympathetic small land owners, and its ballot title was very misleading. When GOVERNMENT pays private landowners, that means TAXPAYERS pay them. Would it have passed if it had said "taxpayers must pay"?
Let's debate the substance of 49.
Dean, I am not surprised at your position but am that you would use your actual name. Dean was on the planning committee and worked with 1000 Friends to put about 37% of Damascus in a green overlay (restricted development). He is also the unbiased writer for the Damascus Observer that always seems to endorse this experimental plan. One last thing, while restricting development on much of the city Dean's property happens to fall into a small group of highly develop able properties. Dean has a partner in this who is also a writer for the Damascus Observer Marcia Sinclair. Not one of their articles mentions the possible profits they will reap from adoption of this plan nor any other conflict of interest.
Thought you should know, Dan Phegley
Dean is also the candidate who got the least votes for Damascus City Council yet is still being appointed to 'represent' Damascus in planning commitees and meetings. The Damascus Observer also had Dean write an 'un-biased analysis' of M-49...pretty funny really.
At several of the informational BS meetings he and Marcia attempted to behave as 'simple citizens' and never outlined their connections to 1000 Thiefs in Oregon. Apparently, honesty and integrety weren't taught in BS Environmental Architechtural School. Sorry if I got your degree title wrong, Dean.
Hey, Dean, in your 'plan' for Damascus, will others be able to use their large properties as you do? Funny how your property 'just happened' to end up being in the high-density development area. Will you sell your property now and forego any future possible profits from development?
Mostly, Dean, sit down and shut up. And pass along the message to Marcia, too.
Well gentlemen (and I use that term loosely), Mr. Apostle got one more vote than either of you did. At least he had the stones to get involved with the process and then actually try to run for office. You both are notorious for just sitting back and popping off when convenient. And just how would you zone your property if you could? I bet you would just gift it to the homeless right? Get a pair, run for office, try to make a difference. Otherwise you are the ones that should shut it.
It's not "much ado about nothing" when the adds actually specifically pointed out the language of the ballot
Ballot title fishing was a practice the liberals in the legislature considered deceitful and dishonest. They took actions to deny this ability to other groups trying to qualify initiatives.
I find it hypocritical and typical that they very people who condemned this practice were oh so willing to embrace it for their initiative.
Can they rationalize their deceit as "the ends justify the means" or " do as I say , not as I do" unfortunately this is typical liberal logic.
VOTE NO no 49!
Willamette Week has gone part way toward exposing this fraud. The next step should be an analysis of the text itself. Unfortunately, most voters will not read the 24 pages of complex language that is in this bill.
It is hard for a layman to decipher what this bill will do. Having an unbiased expert dig into the text and provide the voters with the highlights of what the bill would do would be a great service to the voters.
Interesting. If one can just vist how these self-appointed elistists, were able to get SB100 passed in 1973? Gov. Tom McCall would not sign this bill had not the section of compensation was added. Had the LSDC taken this matter to the Legisture back then, we would not be where we are today. We would have dealt with a much smaller acreage area of less than a million acres insstead of the 25 million acres that we are dealing with now. And we would have saved the real "prime farmland" that existed then instead of building houses on them these past 30 years.
Reason being, the voters would have approved a lessor acreage had it been reasonable. But they weren't given this opportunity. This the entire crex of the deceit of SB100 which put the State into land use regulations. It but bureaucrats in charge, instead of politicans. Consequently, they have taken all property rights from all farmers or landowners by lying about what is "Prime" land verses "High Value" farm and forest land.
In the meantime, these self-appointed
"Experts" have zoned in swamps and marginal farm and forest lands as "High Value." They continued to decieve everyone when the US Soils and Conservation Service came out with their offical soil maps in 1985.
Instead of addressing their misclassified soils designations, the LCDC named all all the soils designated in their erroneous 1979 maps has "High Value." At no point did they ever define what constituted "High Value."
You ask why not? Because they were autocratics that ruled with an iron fist. You nor anyone else would could question their intentions.
If Measure 49 prevails, there will be no houses built. Reason, they have defined "Ban" verses "restrict" in this Measure. Question, does a zone change restrict or ban the building of a house? Or does EFU zoning "restrict" or "ban" the right to sell off segments of your land? And how do compute damages for loss of value, when their specified standard interst rate for loss value is pegged in Measure 49 to the interst rate of US government bonds interest rate that expired in 2001? It will be years before any of these law suits are resolved. Perhaps by then, all of the M37 claimants will have died. This is their ultimate aim to the "Big Fix."
Hey Nigel,
You forgot the part about M 49 opponents taking the same measure to the SOS office to get a ballot title and getting a COMPLETELY different one. One in which was negative.
I am voting Yes on Measure 49. It's just too important. So what if there were, shock, focus groups or polls done! As another poster said, this was challenged in FEDERAL court and the ballot was deemed just fine.
As well, drafting ballot titles "only 5 times" in 12 years seems like quite a bit. So this isn't exactly unique!
Come on WW!
When it comes down to it. The powers that be in Oregon will go to any lenght to deny or stymie the public when they vote for an issue that runs contrary to the wants and needs of special interests that helped them gain and hold office. 49 is just the latest example.
Governor Ted, Secretary of State Bill and Attorney General Hardy are the spin masters of Special interest and could care less about the public. It's all about the money trail of campaigning and these boys have a Masters Degree in rigging election outcomes.
I have always supported what unions do for the working man but I abhore what they have done to Oregon politics. The public has lost it's voice despite what the elected puppets say.
Who needs 37 or 49 anyway, Just cut your State Senator in on the deal and you can divide your property any way you want.
M-49 opponents are acting as if M-37 wasn't grossly misrepresented to the voters (which is laughable). They insist 37 is what Oregonians really want but overlook the simple fact that many who voted in favor are now realizing the unintended and severe consequences of 37. I think 49 will pass for this reason.
I'm all for property rights, but M-37 claimants are violating the rights of their neighbors by cashing in on obscene claims that often devalue their neighbor's property and degrade their quality of life. Next we'll need a measure to compensate the neighbors of m-37 beneficiaries?
On top of it all, m-37 claimants don't have to reimburse the public for money saved in property taxes after their land was re-zoned (which could add up to hundreds of thousands of $$$). M-37 allows a few Oregonians to make out double-time at the expense of all.
M-49 should have gone a different route. That doesn't change the fact that it will be an appropriate fix for 37. I'll vote yes on 49.
I agree wholehearted with Ed. Many landowners received substantial tax breaks as part of the laws enacted in the 1970's to protect forest and farmland. All Measure 37 claimants should be required to include the net present value of 30 years' worth of tax breaks when calculating how regulation has diminished the value of their property. Moving forward, all M-37 claimants should pay the same property tax rate as I do - - $1500 per 1/4 acre lot.
It is required that M37 claimants be required to pay for offsite improvements like roads et, they also are required to pay an increased tax on the increased valuations, they also are required to pay all back taxes that were deferred. You are misinformed.
How much is a property worth without public investments in facilities and services? Not much. Did a landowner who acquired farmland in 1920 have a reasonable expectation that they would ever build a Walmart? Not a chance. Can we afford to keep abusing our land and air quality? I don't want to wait and find out. Vote yes on 49.
Also, the alleged "unintended and severe consequences" mentioned by Ed haven't happened. The development requests have not been acted upon. Most will not be for a variety of reasons, including what Al talks about - paying for offsite improvements lie roads, etc. ...
The "severe" consequences have been seriously overstated time and time again in The Oregonian and other media. There has been almost no development in the three years since M. 37 was passed. What people think of as M. 37 development happened long before that bill was passed.
Also, the claims totalling "$12 billion" only applied if the property owners were not allowed to do what had been legal to do when they acquired their property, because then the government was required to pay that lost value. Most counties simply said, "Go ahead and do it." The claimed lost values were never litigated that I know of, so there is no way of knowing how much the claims really would have cost if the governments had paid the property owners for land value that had been taken away from them.
Finally, anybody who says, "I'm all for property rights, but..." isn't.
For those who support the principles of Measure 49 but are voting against it to protest the back room politics, aren't you cutting off your nose to spite your face?
They're lying Matt.
Measure 49 opponents think this tripe will persuade readers who actually support what Measure 49 does to set aside what the vote is about and register a protest vote.
It's been their strategy from the beginning to blow enough smoke that everyone forgets the insanity of Measure 37.
But then, Nigel also forgot to disclose a Measure 37 close to his heart -- eh "N"
I am a supporter of Measure 49's goals and think that 37 went too far, but I disagree that we are "cutting off our noses to spite our face." If we who supported change in Salem last election don't object to the cynical politics behind this then we are simply part of the problem. We have to stand for something, and a clean Oregon both environmentally and politically should be it- this is progressive politics in the best Oregon tradition.
Measure 49 was written WITHOUT our legislator's involvement or review. We attended the meeting of the Sherwood Representatives and were told by them that the bill was introduced in closed door sessions! Why would this be? Are we a dictatorship? Then the BIG LOOK promise to right the wrongs here in OR were sidetracked to make sure Oregonians did not know the truth in what they were reporting, that OR Land use laws are archaic and have NOTHING to do with what is happening today! We live on a small farm in Sherwood, surrounded by over 30 new homes that were built on PRIME farm land over the past five years...NONE of which were the result of M37. People who are afraid of what M37 will do have to understand...IT HAS ALREADY HAPPENED TO US! What about us?? What about the farmers surrounded by growth from those with money who split tax lots when the county let them, even in EFU zoning? What about us who have had our homes on farms assessed against these homes, and are now asked to support Sherwood Schools, Police, Libraries, Fire, etc... with a percentage tax on this new, very high, assessment? This is NOT tied to 3% limit, like most would think. In a nutshell, we are being asked to provide the open scenery for our new neighbors, support one of the largest growing cities in OR, and play by the rules similar to very small, outlying towns in OR by NOT being able to sell our land and become similar in size like those lots around us that the COUNTY allowed to split within our farm zoning.
This is crazy! Do we think the BIG LOOK will come back if 49 passes? NO, we don't. It was shoved down our throats as an answer to 37, but WILL NOT make a dent in what is wrong with this state zoning. Not one measure has included CONSISTENCY to the area! Not one measure has addressed that it is unfair to let others change your area's use and zoning and leave you with no recourse!
Measure 37? We have already had that here in the hills of Sherwood. What are Oregonians willing to do to make this up to us? Why are we not concerned about what has ALREADY happened to us as much as what MIGHT happen to others??
I beg you to open your eyes. Measure 49 will NOT prevent the abuse some of us on farms have already had! Those of us trying to survive these costs and keep our farms simply cannot afford to! Something must be done to allow us to split some land and conform to what the County has allowed around us!
Please!
Ah, Tom writes the truth. We have already been shafted. I say we because we need our farmers close to us for our food. (remember China) Yet, our farmers are being shoved out being surrounded by already dense housing and using water supply, as well as the inevitable pollution of farm land. Some folks are not getting the message. M49 is not the solution. Focus in on saving our farmland nearby. That means, address the farmers' needs first.
Are you kidding me?!? A bunch of wealthy donors manipulates the political process to deny citizen involvement in the initiative process, and all WW can say is that the measure "took an unusual route to the ballot"??? This is the type of professional political hucksterism that destroys the democratic process. Whether one agrees with the goals of measure 49 or not (and I, for one, do), this abuse of the process is terrible for our state. All of us, and especially WW, should be screaming about this; as for me I am a "no" vote until they come back and do this fairly next session.