By Jack Roberts
Published: Thursday, April 5, 2012 in The Oregonian
Questions about the secretary of state’s decision to move the election for commissioner of the Bureau of Labor and Industries from May to November keep popping up. Just when you think everything has been said, an article or editorial appears, fanning the flames.
And, yes, this is another example.
There has still been no explanation for why the secretary of state’s office made no attempt to notify either of the candidates for labor commissioner that the election date was being moved. One of the candidates, Bruce Starr, didn’t find out about the switch until 10 days after the filing deadline, when a campaign staffer made a routine call to check on the status of his voter’s pamphlet filing. Even then, Brad Avakian, the incumbent commissioner and candidate for re-election, didn’t find out until he was contacted by the press three days later.
While Secretary of State Kate Brown says the legal basis for the decision was “clear” and elections director Stephen Trout says it was “routine,” no one else seems to share that view. After the move was finally made public, Legislative Counsel issued a four-page written opinion that concluded, “We believe that current law applicable to the nomination or election of nonpartisan candidates requires the office of commissioner to be placed on the ballot for the nominating election to be held on the date of the primary election in May 2012.”
After Starr’s request for a temporary restraining order to prevent the secretary of state from moving the election to November was denied, however, Brown lost no time claiming that her legal interpretation of the statute had been upheld. “Judge rules in favor of Secretary of State Kate Brown” was the headline posted on the secretary of state’s website.
In fact, the judge specifically declined to rule on the correct interpretation of the statute. Instead, he based his ruling on the fact that Starr could not prove that irreparable harm would result from moving the election to a different date and that Starr hadn’t demonstrated that he was likely to prevail if the case went forward because by the time the case was decided it would be too late to print the ballots for the May election.
What I only learned last week from Starr and his attorney, Greg Chaimov, however, is that the parties could have agreed to an expedited hearing on the merits of the case — that is, they could have received a judicial ruling of the correct interpretation of the statute in time for the May primary — but Brown refused. Her refusal is the only reason the case could not be resolved in time for the May ballots to be printed and is the reason the judge did not get to rule on the substance of the law.
This didn’t stop Brown from claiming on her website, “In his ruling this afternoon, Marion County Circuit Court Judge Steven Price agreed with the Election Division’s implementation of the statutes governing the BOLI commissioner election in 2012. … I appreciate the timely judicial review and am pleased that it ultimately showed that our Elections Division acted in accordance with the law and in the best interest of Oregon’s voters.”
In reality, the judge neither agreed nor disagreed with Brown’s implementation of the statutes and there was no judicial review of her decision, only denial of a request that the process be stopped until judicial review could be completed.
Now one might normally excuse a politician from getting confused on technical legal issues except for one thing: Brown is a lawyer. She knows that the judge didn’t rule on the merits and that the reason he didn’t is because she wouldn’t agree to an expedited hearing.
Willamette Week has called the secretary of state’s handling of this matter “inept.” To a public that was locked out of the process from the beginning and continues to be misled about what occurred, that label may seem much too generous.
Jack Roberts is a Eugene businessman and former Oregon labor commissioner.