Bruce McCain: Bruce Starr May Lose His Case Against SOS Kate Brown

March 22, 2012

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In short, Bruce Starr faces a gauntlet. He must clear Oregon’s Democrat Party Machine which goes something like this:
  •  Republican Sen. Bruce Starr sues Democrat SOS Kate Brown in Marion County. The initial hearing will be heard by a circuit court judge who almost surely was appointed to the bench by a Democratic governor. 
  • Starr loses there, so he may be able to appeal to the Oregon Court of Appeals,  comprised of ten judges who have been appointed by a Democratic governor, including five by Democrat Ted Kulongoski.  
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  • Or the case may fast track to the Oregon Supreme Court, where seven judges, all but one of whom were initially appointed by a Democratic governor, will decide if Democratic BOLI boss and former Democratic state senator Brad Avakian will have to face Sen. Starr in May, with an expected large GOP primary turnout, or in November, where Obama will GOTV for Democrats. 
  •  Oh… did I mention that Kate Brown’s lawyers will come from the Democratic AG’s office?

The odds are long and the machine is huge. However
, I am hopeful the court(s) will judge this on its merits.  This should be easy to decide. Frankly, the only hope Brown has is judicial partisanship. Again that shows the cumulative effect of 25+ years of Democratic governors, who have literally hand-picked our state’s “independent” judicial branch with no legislative confirmation of any judge at any level. (read my previous post here).  But the body of law re: determining legislative intent is so well-established that for the Supreme Court to agree with Brown, it would literally create a new precedent – something this case doesn’t seem to justify.

Here is the actual language from § 22A of HB 2095, passed in 2009 (Bruce Starr was one of three senators voting No).

 “Notwithstanding section 22 of this 2009 Act and ORS 651.030, the term of office of the Commissioner of the Bureau of Labor and Industries elected at the general election held on the first Tuesday after the first Monday in November 2012 shall be two years.” 

Nothing in that sentence abolished the statutory primary process for statewide, nonpartisan offices. The legislative intent is clearly to reset the term to two years for the commissioner elected in 2012. Kate Brown apparently claims that this requires the election to be held in November, with no primary. Under her interpretation, had more than two candidates filed, they would all be on the November ballot, something never before seen in Oregon elections history.
Bruce McCain is a former Multnomah County Sheriff’s Captain and is an attorney in private practice. 
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