Politics & Other Mistakes: Legally Blind


I’m not saying the city of Portland has the worst lawyers in existence.

Portland’s corporation counsel and her staff aren’t nearly as incompetent as the Texas defense attorney who was accused last year of forgetting his client’s name during jury selection, dozing during his trial and failing to call a single witness in his defense. He also neglected to inform anyone that the defendant wanted to accept a plea deal that would have saved him years in prison.

Then there’s Orly Taitz, the California lawyer responsible for numerous lawsuits over President Obama’s birth certificate and other conspiracies, mostly imaginary. Taitz has been fined for violating the law in a manner a Georgia judge ruled was “willful and not merely negligent.” You can’t say that willful part about the legal team that works for Portland.

Readers of Franz Kafka’s novel “The Trial” will agree that they’d rather have the city’s jurists on their side than Herr Huld, the lawyer helping to railroad poor Josef K in a nameless court for unspecified crimes. K eventually concludes, “[I]t is an essential part of the justice dispensed here that you should be condemned not only in innocence but also in ignorance.”

Portland city councilors are hardly innocent. They’ve ignored the Constitution’s First Amendment, ignored the city’s comprehensive plan for development and ignored the rights of citizens to vote to overturn unpopular decisions. But the councilors do seem to be wallowing in legal ignorance. Portland has lost a series of significant cases in recent months, most of which wouldn’t have ended up in court if the city had gotten good advice from its attorneys – and paid attention to it.

Take, for instance, the issue of panhandling in median strips. There’s ample precedent from other states indicating that banning people from standing on traffic islands with signs asking for money is difficult to do because it restricts free speech. Several courts have indicated that such bans can’t single out panhandlers, because that would be restricting a particular kind of speech, something the Constitution doesn’t usually allow.

You don’t need a law degree to understand this stuff. Governments can’t outlaw people begging for handouts on public property, while allowing political protests or campaign signs in the same spots. But Portland’s ordinance, passed by the City Council last year without a dissenting vote, ignores this clear warning. It applies to homeless bums, but not political ones.

Earlier this month U.S. District Court Judge George Singal overturned the panhandling ban for reasons that should have been obvious. “The ordinance favors one category of speech, campaign signs, over all others and permits only those messages in the traditional public forum,” the judge wrote. “A law may no more favor one type of message because of agreement with it than it may disfavor a message because of disapproval.”

I’m pretty sure they teach that stuff in the first year of law school.

Then there’s the question of which City Council decisions are subject to repeal by citizen referendum, something state law seems to indicate is nearly all of them. After councilors voted last year to sell a portion of Congress Square Park to a developer, opponents of that decision organized a petition drive to halt the sale and institute tougher restrictions on the disposal of public property. Portland’s legal team twisted law and logic to conclude that the council vote couldn’t be overturned by referendum because it was an “administrative” matter. The petitioners sued, and a Superior Court justice decided the city attorneys’ alleged restriction on popular votes was so much lawyer manure. After unseemly delay, the matter of the sale will now be decided at the polls.

According to Portland’s legal experts, the councilors’ decision to allow commercial offices in an historic church in a residential area of the city’s West End was fully in accordance with municipal zoning laws. Unfortunately, a state judge ruled just the opposite, a decision that may have implications for another major project. A group that fought against a high-rise development in the Bayside neighborhood – a proposal that got the it’s-all-cool-with-us nod from Portland’s law team – is going to court attempting to reverse the planning board’s approval. The opposition argument is based in part on the West End case.

Meanwhile on Congress Street, anti-abortion protesters are awaiting a U.S. Supreme Court decision on whether buffer zones around Planned Parenthood offices in Massachusetts are constitutional. Portland could have delayed passing a similar law until after the justices ruled, but with the immense legal expertise the city commands, why not yield to political pressure and act prematurely.

Many wits have noted that the law is an ass. If so, its stable – badly in need of mucking out – is the office of Portland’s corporation counsel.

Court is adjourned. The parties may email additional evidence to aldiamon@herniahill.net.