Isaac Laquedem

R. Lee Johnson: legislator, attorney general, judge, and admiral of the Oregon Navy (1930-2009)

During World War I, the federal government formed a corporation to log and mill spruce for the war effort, calling it the United States Spruce Production Corporation.  In 1920, a transplanted New Yorker named Clarence D. Johnson, who had done well in the timber business in Louisiana, came to Toledo, Oregon, bought the Lincoln County holdings of the federal business, and started doing business as C.D. Johnson Lumber Corporation.  The new company prospered.  When C.D. Johnson died, the business was successfully carried on by his three sons, C.D. (called Dean), Ernest, and Robert.

On August 24, 1951, a United Airlines plane crashed on approach to Oakland Municipal Airport, killing all aboard, including the brothers Dean and Ernest Johnson, who were returning from a business trip east.  A few months later the surviving family members sold the enterprise to Georgia-Pacific.  The surviving brother became a director of Georgia-Pacific and the other family members retired from the timber business.

This left Dean Johnson's sons without a family business to join.  Dean's son Lee, a college senior at the time of the tragedy, finished college and went to law school.  He returned to Oregon, practiced law for a few years, and as other men of means have done, decided to enter public service, winning election to the Oregon House as a Republican in 1966.

Lee Johnson, who died this Sunday at 79, wanted to accomplish more than he could as one of the 60 house members.  A staunch Republican, in 1968 he challenged the longtime incumbent Democratic attorney general, Robert Y. Thornton, in a campaign that set an Oregon record for spending in a statewide race.  A bitter election resulted in a solid victory for Mr. Johnson, but Mr. Thornton challenged the election on the ground that Mr. Johnson had spent too much of his own funds on the campaign and had filed a false report of his campaign expenses.  A trial panel barred Mr. Johnson from taking office, but the Oregon supreme court reversed the decision and allowed Mr. Johnson to take office in May 1969, five months after his term was to have started.

Despite this awkward start, he easily won re-election four years later.  In his two terms as attorney general, he modernized the office and reworked it to operate it much like a private law firm.  His staff started to keep time records and to bill other state agencies for their advice.  He played an active part in implementing Oregon's early public records laws and in general made the office more efficient and responsive to the state agencies that were its clients.  He also had the confidence to keep his address and home telephone listed and available to the public, at least to that portion of the public who knew that the "R." in his name stood for Robertson.

At the end of his second term as attorney general, he was elected to the Oregon court of appeals.  He served part of a term, resigning to become Governor Atiyeh's chief of staff.  Governor Atiyeh later appointed him to the Multnomah County Circuit Court, where he served until retiring in 1995.

He occupied his offices in an unconventional order, and this led to some unexpected rulings.  One day he was hearing a matter involving the public records law, with the contestants arguing about what the legislature intended the law to mean.  His ruling was swift:  "When I drafted that law, this is what I meant."  Later the chief judge assigned him to the probate court, which to that time had been mostly a dreary procession of attorneys coming to the courthouse with routine procedural motions, each of which required a courtroom, a hearing, and a court reporter.  He saw no reason to sit in court for hours to listen to this, and he didn't see why probate lawyers should have to take every motion to court in person, wait for a turn, and then drone into the record, all with their meters running.  So he instituted probate-by-mail, directing lawyers to mail uncontested motions and orders to the court, for him to read and approve or reject.  Other county courts quickly adopted the Johnson system, and it's a rare probate lawyer in Oregon today who actually goes to the courthouse.

His most interesting public office was awarded as a sort of jest.  In 1974 Governor McCall looked into buying a destroyer to enforce the exclusive fishing zone off of Oregon's coast.  When the news broke, Mr. Johnson (then the attorney general) wrote to the governor, asking to become an admiral of the Oregon navy.  (I think he had in mind something like the military duties of a Kentucky colonel.)  "I am frankly tired of being called general," he wrote, "but Oh, to be an admiral of the Oregon navy!" he wrote.  Two months later, at the Republican party's Dorchester Conference in Seaside, he was -- to his surprise and great delight -- informally commissioned as an admiral of the Oregon navy, the first and so far the only.

Lee Johnson didn't get enough credit for what he accomplished, but then he didn't ask for any.  Somewhere among the icons of that lost era of bipartisanship -- McCall, Straub, Hatfield, Redden (and in an impish way, E.D. Potts) -- there should be a little room to remember Lee Johnson also.

Why Oregon doesn't need a sales tax

I read with great interest this opinion piece in the Oregonian of July 6.  The author, E. Walter Van Valkenburg, is a prominent Portland lawyer and the chairman of the Oregon Economic and Community Development Commission.  He suggests, very mildly, that Oregon should add a sales tax to its financial arsenal.

His mild argument is not, on examination, very compelling.  Mr. Van Valkenburg writes, "While we compete with states that draw revenue from property taxes, income or gross receipts taxes and sales taxes, Oregon stubbornly clings to a system that generates revenue from only two of those three sources. . . we simply can't generate enough revenue from the two sources we do tax to make up for the loss from not taxing the third."

Let's look at the facts.  From 1971 to 1990, Oregon's local governments raised in property taxes an amount about equal to five percent of Oregonians' personal income.  (The actual percentage paid by most Oregonian individuals would be lower, because property tax revenues include taxes on property owned by businesses and non-residents, but personal income doesn't include income attributed to incorporated businesses and non-residents.)  Measures 5 and 50, the tax limit initiatives, combined with increases in personal income, cut the property tax bite to about 3.5% of personal income.  Exhibit 6 in this document from the Department of Revenue shows the property tax trend.  The fact is that we did generate enough revenue from these two sources to make up for not having a sales tax; it's just that in 1990 we chose to cut property taxes and not replace the lost revenue.  The state itself didn't and doesn't generate any revenue from property taxes; it all goes to local governments.

Mr. Van Valkenburg (who despite our differences on tax policy is a very likable and engaging guy) adds that not having a sales tax "seems a particularly ill-advised strategy for a state in which tourism is a leading industry," implying that we are missing out on tax revenues by not nicking (nickeling?) tourists on their purchases here.  Again, let's consider some facts.

How much retail spending comes from tourists?   The Census Bureau estimates that total retail spending in Oregon in 2002 (the latest year I could find) was $37 billion.  A fair guess is that it's above $40 billion now, but let's say $40 billion to be conservative.  A study for the Oregon Tourism Commission estimated that in 2006, visitors spent $1.6 billion in restaurants and bars in Oregon, and that this was 23% of total visitor spending.  This would put total visitor spending at about $6.5 billion a year.  "Visitor spending" includes imported dollars (dollars from visitors to Oregon) and domestic dollars (dollars from Oregonians on vacation within Oregon). For example, the dollars that I spend at an Astoria restaurant are "visitor spending" even though they're not coming from out of state.  I couldn't find a breakdown of how much of Oregon's visitor spending comes from out of state, so let's say that three quarters does.  That makes the out-of-state tourist dollars about $4.8 billion a year, or about 12% of retail spending. 

Allowing that these are rough estimates, they indicate that "let's tax the tourists" is a poor reason to adopt a general sales tax.  Seven-eighths of the tax burden falls on Oregonians; one-eighth hits the tourist pocketbook.  Indeed, the opposite should be true; if high income taxes discourage high-income persons from moving to Oregon, then high sales taxes should discourage tourists from spending in Oregon.  A state in which tourism is a leading industry should, to encourage tourism, avoid enacting a general sales tax and play up this difference as a reason to visit.

Let's take up one more of the arguments for a sales tax.  Mr. Van Valkenburg phrased it as follows: "If Oregon continues to position itself as a high income tax state, jobs will ultimately be lost to states that have a tax structure more favorable to businesses and the people who run them."  I agree; however, we also have to consider the jobs that will be lost if Oregon adopts a sales tax. 

Oregon has an unusually high level of retail sales per capita.  The Census Bureau estimated that in 2000 Oregon's retail sales per capita was 1% above the national figure even though Oregon's personal income per capita was 3% below the national figure.  This is not because we're profligate consumers, but because our border areas -- principally Astoria, Portland, Hermiston, and Ontario -- attract shoppers from the neighboring states who want to avoid paying the Washington or Idaho sales tax.  In 1993 an economist who opposed the sales tax proposal of the day estimated that Oregon would lose 16,000 retail jobs if it adopted a 5% general sales tax, based on his estimate that Oregon picked up about $1.6 billion in retail sales and that retailers had 1 employee for each $98,000 in sales. 

We don't need a sales tax.  We need to do a better job of exploiting our freedom from a sales tax.

What is the sound of no one leaking?

One salient feature of the attorney general's office under its new management is that information doesn't leak out.  The Knower of All Things asked about this, and was told that the new management has made it clear to his staff  -- sometimes as often as daily -- that leaking to the press, or anyone else, is inconsistent with continuing in state employment.  (That's one reason so little informed speculation about Mayor Adams's prospects appears in the newspaper.)

Elected officials often say they will stamp out leaks of sensitive information, or that they will try to, but they inevitably seem to find some benefit in leaking information themselves.  It's refreshing to see the AG's office maintain a dignified silence from the top down.

Endorsements IV: Ballot measures 54, 58, 59, 60, 63, 64, 65

Now, a romp through the rest of the state ballot measures:

Measure 54 allows voters aged 18 to 20 to vote in school board elections.  Oregon law allows 18-year-olds to vote in all elections except school board elections, for which the minimum age is 21.  The age limit became obsolete when the United States adopted the 25th amendment, which prohibits the state from denying the vote to anyone 18 years or older on account of age.  Oregon hasn't enforced this law for the last 30+ years.  Vote yes.

Measure 58 prohibits teaching public school students in languages other than English for more than two years, with an exception for courses that teach foreign languages.  I have to admit that I voted "yes" for this measure, because I think it's a good idea -- the nation should speak a common language -- before I read the description of current law.  Current law, according to the ballot summary, requires classes to be in English (again excepting classes that teach foreign languages) and requires schools to provide English courses for students who can't learn in English. Here's the actual statute, ORS 336.074:

      336.074 Teaching in English required; exceptions. Instruction in all subjects in public, private and parochial schools shall be conducted primarily in English, except:

      (1) Instruction in foreign languages.

      (2) Instruction may be conducted in more than one language in order that pupils whose native language is other than English can develop bilingual skills to make an early and effective transition to English and benefit from increased educational opportunities. [1971 c.326 §2]

As I read it, this statute prohibits schools from having classes that teach a substantive subject in a foreigh language only; each class, except for classes in foreign languages, must be taught at least in part in English.  It's not legal to teach a science or math class entirely in Spanish or French. 

The current law prohibits what the sponsors of Measure 58 are complaining about, and on reflection I would vote "no."

Measure 59 would allow Oregon taxpayers to take their federal income tax payments as an itemized deduction, without limit, from their Oregon income.  At present Oregon taxpayers may deduct all of their Oregon taxes from their federal income, if they itemize, but may deduct no more than $5,500 of their federal income tax payments from their Oregon income.  The sponsors argue that the income of Oregonians is unfairly double-taxed to the extent that their federal income taxes exceed $5,500.  The measure would reduce state revenues by about $1 billion per year.  Much as I would like to see my taxes go down, I don't want to see $1 billion cut from the state budget, an amount that because of its size would have to come from schools and prisons.  I recommend rejecting Measure 59.

Measure 60 would require school districts to make teacher pay depend on performance and not on seniority.  This is another good idea that fell victim to bad drafting.  It makes sense to pay teachers, and anyone else, based in part on merit, but this measure isn't the way to do it.  (Any school board that had the courage could insist on merit pay in its next union bargaining session.)  One of the worst features about this measure is that it requires local school districts to eliminate seniority as a criterion for raises.  This is a bad idea because it takes a fair amount of experience for a novice teacher to grow into a master teacher.  Not all make it -- many don't -- but the increased pay that comes from seniority is what keeps teachers in the occupation.  Vote no on Measure 60.

Measure 63 would exempt owners of houses and farms from obtaining building permits for improvements under $35,000.  They would still have to comply with zoning codes, and electrical work would have to be approved by a licensed electrical contractor.  In contrast to Measure 63, this is a bad idea with good drafting.  You can do a lot of work -- badly -- for $35,000.  Vote no on Measure 63.

Measure 64 prohibits the use of public resources to collect political funds.  (I'm simplifying it a bit.)  The sponsors want to prohibit public employee unions from collecting PAC money through a checkoff or payroll deduction, and from using rooms in public buildings to raise money for political campaigns.  The measure is a lot broader, however; as written it would prohibit presidential candidates from holding rallies in Waterfront Park or Pioneer Square if they charged admission, sold merchandise, or sought donations.  Instead of cutting off the incidental use of the payroll system for raising PAC money, the proponents should fight back in the marketplace and raise their own money.  I voted no on Measure 64.

At last, Measure 65.  This would change Oregon's partisan primaries to be top-two, regardless of party.  Every candidate for an office would appear together on the primary ballot.  The top two finishers would face each other in the general election.  Third parties oppose this measure, saying that it would make it harder to get their candidates on the ballot.  Nonsense.  It would make it harder to get their candidates on the general election ballot, but they would have a fair shot, along with everyone else, on the primary ballot.  I think the minor parties have got this wrong: they get to put their candidates on the primary ballot instead of having to hold nominating conventions.  I voted yes on Measure 65 with enthusiasm.

Endorsements III - Ballot Measures 55, 56, 57, 61, and 62

And now, a run through some of the ballot measures:

Measure 55 changes the timing of how legislators are assigned to districts after redistricting.  Every 10 years, after the census, the state redraws district lines for state senate and house seats.  It sometimes happens that two senators or representatives land in the same new district.  One of them is reassigned to some other district, if another district lacks a representative.  This happens in between elections.  This measure allows the redistricting to take effect as of an election, rather than in between elections.  It's the most innocuous measure on the ballot and deserves a "yes" vote.

Measure 56 would change Oregon's double-majority rule.  Back in the days when we had actual polling places, local governments -- especially school districts -- developed the unattractive practice of scheduling their tax levies and bond measures for special elections, in the hope that they could rally their supporters to go to the polls while their opponents snoozed.  The voters adopted an initiative in response, which says that local tax measures that are on the ballot any time other than at a primary or general election in an even year (that is, at any time other than the two important election dates) fail unless (i) a majority of the registered voters actually vote, and (ii) a majority of those voting vote "yes." 

It seems to me that local governments shouldn't have emergencies that require raising taxes or issuing bonds more often than once every two years.  I don't see a compelling reason to change the double-majority rule, and I'm voting "no" on Measure 56.

Measures 57 and 61 are the Dostoyevsky measures, dealing with crime and punishment.   I easily voted "no" on Measure 61, which requires minimum prison sentences for certain crimes including some drug crimes, none of which carry minimum prison sentences at present.  The problem is that we can't afford, or don't want to pay for, the prison space that would be required.  Measure 62 tries to patch that hole in Measure 61 by allocating 15% of lottery proceeds toward public safety.  Measure 62 is a bad idea (see below), which means that Measure 61 is an unfunded mandate; vote "no" on Measure 61.

I wrestled with Measure 57 much longer before deciding to vote "yes."  Measure 57 increases sentences for certain drug crimes but also requires the state to provide drug addiction treatment for certain offenders.  A drug addict can commit 50+ property crimes a year to support his or her habit; getting one person off drugs thus prevents 50 crimes a year.  That's a lot more cost-effective than locking people up.  I'm not perfectly pleased with Measure 57, but it's well thought out and deserves a try.  Vote "yes" on Measure 57.

Measure 62, which I think of as the Producers measure, requires the state to spend 15% of lottery proceeds on public safety.  It's a great goal.  The trouble is that every worthy cause looks on lottery dollars as a honeypot of free cash, because the lottery money doesn't run through the general budget.  Originally the lottery profits were to support economic development.  Then education and salmon got into the act.  At the rate we're allocating slices of the lottery pie to this and that, in about 10 years, we will have allocated more than 100% of the lottery profits to specific causes.  It's time to stop making special allocations of the lottery money to anything other than economic development and public education.  I voted "no" on Measure 62.

I'll discuss Measures 58 (English in the schools), 59 (tax deductions), 60 (teacher merit pay), 63 (no building permits required for cheap construction), 64 (public money to collect political funds), and 65 (top-two primaries) in my next post.

Endorsements III - The Salem "Which" Trials

So what if it's not a great pun?

This year we select a secretary of state, a state treasurer, and an attorney general.  Bill Bradbury leaves the secretary of state's office because of term limits.  Democrat Kate Brown, who has served in the legislature since 1991, deserves the nodto succeed him over Republican Rick Dancer and Pacific Green candidate Seth Allen Woolley.  The duties of the secretary of state aren't onerous, and could likely be handled by any of the candidates.  The main policy difference between Senator Brown and Mr. Dancer is that Mr. Dancer supports an open primary (Measure 65 on the ballot this year) and Senator Brown opposes it.  The difference for me lies in one odd fact about the office: although the attorney general is in charge of enforcing the state's laws, the secretary of state administers the election laws.  For this reason Senator Brown, who has a law degree, is a better choice than Messrs. Dancer and Woolley, who don't.  She gets my vote this year.

The state treasurer's race draws three candidates: Allen Alley, a Republican businessman and investor; Michael Marsh of the Constitution Party, who opposes merging the banks with the federal and state treasuries into one entity, and Ben Westlund, a Democratic business owner who's served in the legislature since 1997.  In view of the current economic mess, it's particularly important this year that Oregon elect a treasurer with a sound grasp of money and the national financial system.  Allen Alley is clearly that person, and I recommend him.

Four candidates are on the ballot for attorney general: J. Ashlee Albees of the Working Families Party, Walter F. Brown of the Pacific Green Party, John Kroger, who won the Democratic nomination over Greg MacPherson and who won the Republican nomination on write-in votes, and James Leuenberger of the Constitution Party.  Mr. Leuenberger boils his philosophy down to "slavery bad - liberty good."  (I'm not making this up.)  Mr. Brown, who served 12 years in the Oregon senate, offers some good ideas and has put much thought into his candidacy; he would serve competently.  Ms. Albees also offers some good ideas, but has been a lawyer for less than four years and it's unlikely she's acquired the experience necessary to handle the demands of this job.

The star of the panel is John Kroger, a former federal prosecutor who now teaches law at Lewis & Clark Law School.  The attorney general wears a lot of hats; he's identified five in his voter's pamphlet statement on which he intends to concentrate: fight meth, hold polluters responsible, go after deadbeat parents for child support, protect consumers and senior citizens from scams, and defend civil rights.  Anyone who believes that the attorney general should be chosen for reasons other than his views on abortion (Professor Kroger is pro-choice) should vote enthusiastically for John Kroger as the candidate best suited by temperament and experience to use the office to protect the citizens of Oregon.

A Republican senator complains about a Democrat buying furniture to last

One story that awaited me when I returned to town was that of Senator Gordon Smith criticizing his opponent, Oregon house speaker Jeff Merkley, for supporting an expensive remodeling of the Oregon legislative building. I gathered that Senator Smith thought this to show that Mr. Merkley is fiscally irresponsible -- why, the legislature even got leather couches.

One of the similes used to great effect by Jesus of Nazareth was to compare people who complain about others having faults that they themselves share to one who notices and criticizes the mote (speck) in someone else's eye, but is blind to the beam in his own. It seems to me surprising for a Republican senator who has generally supported President Bush's budget proposals -- the most fiscally reckless of the current generation -- to complain about a fellow Solon having the public fisc pay for some good-quality furniture that will outlast everyone now in office -- at least, not unless Senator Smith's criticism of Mr. Merkley included some reference to the fiscal waste of his own party. I'd welcome some comment from the Senator, or his staff, in the unlikely event that he reads these pages.

Endorsements III: the statewide races

Three state senators and an independent-minded Democrat want the nomination for secretary of state.  The secretary of state's main duties are to publish the Oregon Blue Book, manage elections, and register corporations.  It's not an onerous position.  The main practical task of most secretaries of state is to plan a run for the governorship.  The secretary of state is also one of the three members of the State Land Board, a position with a lot of theoretical power that's not often visibly exercised.

Any of Senators Kate Brown, Rick Metsger, and Vicki Walker would serve the state well.  I give the edge this year to Senator Walker principally because of her recent record in bringing to public attention matters that the political establishment had ignored or set aside.  She can more easily continue her whistleblowing as a statewide official with a department than as one of 30 state senators.

The attorney general's race presents two fine candidates in Greg Macpherson and John Kroger, each a possessor of a Harvard law degree.  Rep. Macpherson serves in the Oregon House and was active in promoting Measure 49.  Professor Kroger teaches law at Lewis & Clark Law School and was formerly a federal prosecutor.  Professor Kroger stresses four priorities he would have as attorney general, including most interestingly pursuing polluters.  (Have you swum in the Willamette lately?)  Rep. Macpherson's campaign rhetoric started by playing up his long ties to Oregon and his experience in the legislature and as a pension lawyer in private practice, but has been moving toward that of Professor Kroger.  (Compare their pages in the Voter's Pamphlet to see how close they have come to each other.)

Either man would serve with distinction.  I favor Professor Kroger, very slightly, for two reasons.  First is that the current attorney general has administered the office safely and efficiently, but without great flair, and I believe that Professor Kroger is better suited to "wake up" the office.  Second is that the incumbent came to the job from Rep. Macpherson's law firm, and the state is better served by having officeholders come from a variety of cities, backgrounds, and employers.  (This is akin to the concept of it being time for the Clintons and Bushes to give someone else a chance.) 

Ben Westlund is unopposed for the Democratic nomination for state treasurer.  The Republican party found only one candidate each for secretary of state and state treasurer, and no one at all for attorney general, and I make no recommendation in those races.

The University of Oregon goes where Paul Allen's lenders feared to tread

In its special session this month, the Oregon Legislature showed that a new basketball arena for the University of Oregon is more important to the state than is replacing the Interstate Bridges between Portland and Vancouver.  I say this not because of the time allocated to the two subjects, but because of the money allocated: the Legislature voted $200 million toward the arena based on a promise from Nike founder Philip Knight and his wife to contribute $100 million toward the project.

The state will issue bonds to fund the $200 million.  The University projects that the bonds will be paid back from revenues at the arena.

Comparisons are individious, but it strikes me that a $300 million basketball arena is a project about the size of the Rose Garden in Portland, and the Rose Garden's owner couldn't make his debt service payments even with a major league anchor tenant taking up 41+ nights a season.  It seems unlikely, then, that the University will be able to pay the debt service, but I might be wrong -- the University may have a financial secret that was not known to Paul Allen.

Isaac saves time for the Legislature on raising the tort liability cap

State law limits the government's liability for personal injuries caused by the government's negligence to $200,000 ($100,000 general damages and $100,000 special damages).  For persons injured by the negligence of Oregon Health Science University, "general damages" means damages for pain and suffering and "special damages" means medical expenses, the cost of care, loss of income, and other out-of-pocket costs.

Last year the Oregon supreme court held that the liability cap protects OHSU but not its employees, meaning that an injured patient can recover no more than $200,000 from OHSU directly, but can recover an unlimited amount from a careless doctor.  The wrinkle is that OHSU by contract covers the liabilities of its doctors for negligence, meaning that if a patient is awarded $1 million against OHSU and a physician, OHSU ultimately ends up paying the $1 million.  (In the specific case, the injured patient was awarded $17 million.)

Everyone agrees that the cap on liability is too low.  The Oregonian reports, however, that our legislative leaders say they don't have the time to fix this problem in the month-long special session that's about to start, mainly because OHSU and the association of trial lawyers haven't agreed on a limit.

I don't recall the public electing OHSU and the trial lawyers to the legislature.  We did, however, elect the senators and representatives to look out for the interests of public agencies and of the people hurt by the negligence of the government.  (I'm leaving aside the question of whether OHSU is the government, because Oregon law says that for purposes of the limit on awards to the injured, OHSU is the government.)  I would like to see some brave soul in the legislature (maybe Senator Prozanski or Senator Walker) introduce the measure I've posted in the continuation and call for an up-or-down vote.  The legislature and the rest of the state know about this problem.  Even if our elected representatives can't make the problem go away to the satisfaction of OHSU and the trial lawyers, they can make it a smaller problem, and they should do so.  Just because a solution may not be perfect doesn't mean that ignoring the problem is better.