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Taking offense

At the opening of its sound decision Friday in Edward Gathright v City of Portland, the 9th Circuit Court of Appeals got it wrong.

Its opening line defined the issue at stake this way: "This case concerns the intersection of two First Amendment rights: on the one hand, the classic right of an individual to speak in the town square; on the other hand, the interest organizations have in not being compelled to communicate messages not of their choosing." The first is correct, the second is not, and - even if ironically - that is why the decision, sustaining free speech, was spot on.

Gathright is a well-known Portland character often seen preacing his version of the Word of God in downtown area locations, including two spots usually considered public squares, places where people periodically do stand and speak: Tom McCall Waterfront Park, on the Willamette River, and Pioneer Square, in the middle of downtown. Both also are often used for arts and other events. (more…)

Kulongoski’s state

Astate of the state speech delivered to something other than a legislature may be useful (whether or not required), but it functions quite differently than a normal statehouse annual speech. Inevitably, it is delivered in a governance vacuum, and - in its most pertinent sense - to a political audience.

Ted Kulongoski preparing his addressFriday, instead of reaction from legislators on the prospects for passage of a governor's program, Oregonians heard reviews from the men who would like to replace Ted Kulongoski as governor.

Everything enunciated Friday was predictable. The governor said the state of the state was good, better than it was four years ago: Even in the overtly governance parts of the speech, it evidently was delivered with a direct view to the campaign ahead. As at the beginning: "And together, we have done things, things that have improved the lives of thousands of Oregon families. So today I say to you: The heartbeat of our state is stronger – and hope burns brighter. Oregon is back!"

There was, scattered through the speech, some acknowledgement of problems (notably a weak job market - though not framed that way; he spoke instead of individuals job seekers or holders who need help). But the overall tenor was of solutions in the works.

Is Kulongoski basing his campaign on the proposition that people are upbeat about the state? Sounds that way; and if so, it could be an iffy strategy.

So too, however, could be gloomy opposition campaigns. As the other candidates for governor were canvassed in news reports, you heard a lot of "too little, too late," "why didn't he act earlier on?" and similar. Problem is that those points have no emotional resonance for most voters, who tend to respond better to upbeat optmists.

That seems to be where Kulongoski is positioning himself. His gamble is that enough Oregonians are happy enough to buy in. It seems likely to work to this extent: His opponents will have to be careful how they frame their ongoing response to it.

The spectrum

Before we get back into that nonsensical mess of figuring out who's more "liberal" or "conservative" than who, among the candidates for office, let's pause and reflect on how little those standards mean.

Today's lesson comes from the National Journal, one of the best political publications in the country, rigorously nonpartisan and usually about as fair as any you'll find. Annually, it publishes a set of rankings of members of Congress, from one end of the spectrum to the other, and the new one is just out. (It does two lists, actually, one noting most and least liberal, the other most and least conservative. In the interest of efficiency, we'll just use the "most liberal" one here - the measures are easy enough to follow from either end).

You could argue forever what criteria should determine "conservative" and "liberal" rankings, but the Journal's are considered roughly mainstream. So: Here are how the six senators from the northwest rank among the 100, in terms of liberal standing: (more…)

Strong benchmark

Starting point in figuring the chances for an independent candidate for major office is, well, behind the major-party candidates, if only because that's what history tells us. If Oregon has previously elected an independent to governor, as it has, then it is also true it has not in 76 years. It never has to the U.S. Senate. (Wayne Morse doesn't count; his switch from R to I came after one election, and he switched again to D before the next one.)

But such considerations are starting points only, and newly-minted Independent Ben Westlund of Tumalo is sprinting in his new governor's race.

A news release from his campaign touts that he "attracted significant support in his first week as financial pledges and contributions passed the $100,000 mark Wednesday afternoon. Over 100 volunteers have also registered online to help gather over 18,000 valid signatures he needs by August 2006 to qualify for the ballot. The financial support came from over seventy contributors including $4,000 raised through Westlund’s website ( www.benwestlund.com). The petition sheets to place him on the November ballot are available on his website."

That's not a bad start; a couple of strong fundraising months at somewhere near that level could put him in a competitive position financially. And the 100 volunteers are not a bad beginning either.

Could there be more than first met the eye? Let's see what sort of consistency the Westlund campaign develops this spring.

Reincarnated

Measure 37 is back in full, and not. Legally, it has returned to status as functional and operative law of Oregon. Politically? That may be another matter.

Its constitutionality was upheld firmly in today's decision by the Oregon Supreme Court in Hector McPherson v. Department of Administrative Services - it left no part of the legal attack on the land use law standing. Most basically, the court held that a lower court judge and the plaintiffs misunderstood the relationship between the measure and the nature of legislative power in Oregon.)

The summary paragraph read this way: "In sum, we conclude that (1) plaintiffs' claims are justiciable; (2) Measure 37 does not impede the legislative plenary power; (3) Measure 37 does not violate the equal privileges and immunities guarantee of Article I, section 20, of the Oregon Constitution; (4) Measure 37 does not violate the suspension of laws provision contained in Article I, section 22, of the Oregon Constitution; (5) Measure 37 does not violate separation of powers constraints; (6) Measure 37 does not waive impermissibly sovereign immunity; and (7) Measure 37 does not violate the Fourteenth Amendment to the United States Constitution. The trial court's contrary conclusions under the state and federal constitutions were erroneous and must be reversed."

Every challenge posed so far was rejected, and that probably means Measure 37 will not be thrown out by the courts, period.

There may be other meanings as well, though. (more…)

Not having to say you’re sorry

It may help to know that the chief lobbyist working on the new Idaho doctor-apology legislation is also one of the key figures, stretching back some years, behind the state's "tort reform" legislation - attorney Ken McClure.

But that may mean more than one thing.

Here's the skeptical take. When you get legislation in hand which blocks prospectively important evidence in cases of medical malpractice, as is the case with House Bill 634, now on the House floor, careful consideration is called for. And bear in mind that "tort reform" means limiting the scope of what can be sued about, and for. Is this simply a device to allow malpracticing physicians to slip out of legitimate lawsuits?

That would be the dark view; a reasonable counter view (which McClure clearly notes) is that fear of lawsuits has chilled a great deal of honest discussion between physicians and patients. It has led to all manner of unfortunate results, from dispensing drugs which probably aren't needed but will serve to cover a doctor's behind, to an inability to say the simple but highly important words, "I'm sorry." A great deal of civilization has been lost to our lawsuit-happy ways - a fact no less real than the malpractices that do occur and should be litigated.

When we attended journalism conferences in years past, we often heard a piece of advice from gurus on media litigation. It was this: If you did something wrong, apologize. Very often, that simple response is all someone is looking for, and often it will end the prospect of lawsuits before it begins.

No less could be true in medicine. And that could be helpful all around.

Post Script - Note the medical/legal deal just announced at the Washington statehouse, a component of which is a similar version of the "no-fault apology" provision.

Not having to say you’re sorry

It may help to know that the chief lobbyist working on the new Idaho doctor-apology legislation is also one of the key figures, stretching back some years, behind the state's "tort reform" legislation - attorney Ken McClure.

But that may mean different things.

When you get legislation in hand which blocks prospectively important evidence in cases of medical malpractice, as is the case with House Bill 634, now on the House floor, careful consideration is called for. And bear in mind that "tort reform" means limiting the scope of what can be sued about, and for. Is this simply a device to allow malpracticing physicians to slip of legitimate lawsuits?

That would be the dark view; a reasonable counter view (which McClure clearly notes) is that fear of lawsuits has chilled a great deal of honest discussion between physicians and patients. It has led to all manner of unfortunate results, from dispensing drugs which probably aren't needed but will serve to cover a doctor's behind, to an inability to say the simple but highly important words, "I'm sorry." A great deal of civilization has been lost to our lawsuit-happy ways - a fact no less real than the malpractices that do occur and should be litigated.

When we attended journalism conferences in years past, we often heard a piece of advice from gurus on media litigation. It was this: If you did something wrong, apologize. Very often, that simple response is all someone is looking for, and often it will end the prospect of lawsuits before it begins.

No less could be true in medicine. And that could be helpful all around.

Ahead, Tuesday

Not much attention to this elsewhere yet, so be it noted: The Oregon Supreme Court decision on Measure 37 is expected to be released on Tuesday morning.

That is courtesy of the McMinnville News Register, which quietly broke the story Saturday.

No word yet, of course, what that decision will be. We'll be watching.

Fact checking

Our political discourse could use a lot more fact checking. On the national level, a number of well regarded sites (FactCheck.org for one) have made it their business to check the accuracy and reasonableness of statements, allegations and articles. The Northwest has nothing like that.

This site has tried to do such work occasionally, and will continue to. More emphatically, it will try to link to fact checks on other sites, and do what it can to encourage the practice.

With that in mind, first up: A piece on Washblog, "WA Farm Bureau misrepresents facts to support ballot Initiative." Writer Noemie Maxwell parsed the remarks of Steve Appell, president of the Washington Farm Bureau, as he pitched the case for an initiative (tagged the Property Fairness Initiative) intended generally to match Oregon's Measure 37 in its intent of allowing certain property owners to bypass land use regulations.

Maxwell turned to committee minutes, official filings, recorded statements and other original material to conclude that important parts of the Appell speech were misleading at best. It is worth a read.