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Real World Litigation

August 22, 2013

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On July 21st, Lewis & Clark’s Earthrise Law Center scored another courtroom victory when Judge Michael Simon issued an order granting their clients’ motion for summary judgment and dismissing all claims against all defendants. The ruling came after over two years of work in which Earthrise represented a Mt. Hood area Community Planning Organization which was being sued in federal court by a developer.

Earthrise provides law students with the opportunity to be involved with real world environmental disputes and gain practical experience. Students are given the chance to do as much of the case work as possible under the guidance of Earthrise attorneys. Third-year Earthrise clinic student Laura Hagen did excellent work during the discovery phase of the case fall semester 2012, and third-year student Nick Lawton wrote much of the summary judgment briefs—as well as argued the summary judgment motion before the court. Nick drew praise from Judge Simon for both his written and oral advocacy in the case.

Nick describes his experience working on the case below.

Can you describe the case?

Nick: This was a case in which a property developer on Mount Hood felt slighted by Clackamas County and an organization called the Mt Hood Citizen Planning Organization (CPO). The developer owns some land along the Sandy River and hoped to develop it and build homes on the property, but he had some trouble getting the necessary permits. In response to a flood in 2009, he built a wall along the river without getting the necessary permits from Clackamas County.

Eventually the developer landed in trouble for not having permits for the rock wall, so he started a retroactive permit process to allow the wall. The Mount Hood CPO and its officers filed comments with the county opposing permits for the rock wall and subsequent home building. The developer was ultimately unsuccessful, for a variety of reasons. Unhappy with the decision, he sued Clackamas County in county court and lost. Then he sued the county again, along with the CPO and its officers in federal court. It was a classic strategic lawsuit against public participation, known by its acronym as a SLAPP suit.

We represented the CPO and its officers. We were able to get most of the officers dismissed from the case using Oregon’s anti-SLAPP statute, but the judge didn’t dismiss the claims against the CPO itself and one of its officers. This was mostly on the grounds that the developer alleged that the officer improperly communicated with a hearings officer for the county to prevent the permitting. That’s why we had to proceed to summary judgment.

How did you first get involved with the case?

Nick: When I signed onto Earthrise they shared their upcoming docket with all of the students, and we were able to rank the cases we were most interested in participating in. There were two cases which caught my attention; this SLAPP suit, and another case protecting bald eagles. In that case we were on the plaintiff’s side, suing to protect a population of bald eagles in the Sonoran Desert. It was great to work on both of those cases this year because I was able to see both sides of litigation, the plaintiff and defendant, which isn’t a common experience coming out of law school.

I was excited to be able to work on this case, because it seemed like such a rank abuse of the legal system. I didn’t want to see the plaintiff browbeat these citizens who had legitimate environmental concerns into silence through the tremendous cost of legal representation. The developer’s case was without merit, but they might have been banking on these people not being able to get low cost legal representation and having to go away. The Sandy River is beautiful, it’s an important habitat for endangered species, and our clients were doing the sort of laudable environmental work that we want to see the public doing.

What was your argument?

Nick: Our motion for summary judgment exposed a number of fatal weaknesses in the plaintiffs’ case, including a total lack of evidence. For example; the central argument was about whether there was improper ex parte communication between the CPO officer we represented and a county hearings officer. They alleged with a fair amount of detail that our client had said a number of things, but they didn’t actually hear him say any of it. The plaintiffs’ case also had a number of legal deficiencies, so even if they had the evidence it wouldn’t have been a viable claim. The law they sued our client under is supposed to protect people against government action that violates their civil rights, not the action of private citizens. So the plaintiffs had a heavy burden to even prove they could sue our client under the law. Our brief argued that he wasn’t subject to suit under the law, and the court agreed.

The plaintiffs also had a weak case against the county, which we argued against in our brief because if the county didn’t do anything wrong, our client also couldn’t have done anything wrong. The plaintiffs had to show that the county’s behavior was egregious, and didn’t further any legitimate government interest. The government did have legitimate interests however: protecting the river, preventing damage to downstream homes, and preserving important salmon habitat.

What were the oral arguments like?

Nick: Well, honestly, I was really nervous up until I entered the courtroom. Maybe it was all of the mahogany inlay in the courthouse. In any case, once I actually stood up and started speaking I wasn’t nervous. I was in high school theater so I’ve done things in public far more embarrassing then than anything I could do in court.

I prepared extensively. The Earthrise attorneys were really helpful as I was preparing, I had several rounds of practice arguments with different professors and attorneys. In the end I practiced answering more questions than the judge even could throw at me. The judge was very professional and gave me a chance to lay out my argument and give cogent answers. At the end he did something that was unusual and said that since I was a student he would give me feedback. He gave both positive feedback on the brief and my oral arguments, and he also gave me some constructive criticism on some of the stylistic aspects of the brief, which I really appreciate.

Several Earthrise attorneys attended the arguments, as well as a number of other law students from outside the clinic. Afterwards our clients took us out to lunch. The judge said the ruling would take up to 30 days, but it was only 11 days in the end. We already had some idea that it would be a favorable decision though. He didn’t rule from the bench but he did say a few things that we thought were a good sign. He praised the first sentence of the brief, and also said his opinion would be long, which usually means that a judge will grant the motion for summary judgment.

What was it like when you learned about the ruling? Earthrise professor Dan Rohlf noted that the court’s opinion cited most of the cases you discussed in the briefs.

Nick: It was a real kick. It was a lot of fun to see arguments that I had made and case law that I had researched be cited, indicating that the federal court did agree with the way that I had read and applied the law. I was impressed with the judge’s opinion. It was very thorough, very dispassionate, and even-keeled. It did a very good job of addressing the plaintiffs’ claims while maintaining judicial neutrality. The opinion really tracked our arguments very closely, so that was really gratifying.

What’s next for you?

Nick: This experience was an excellent window into what litigation is actually like. I got to work through all of the stages of a common lawsuit except for trial, since it didn’t go to trial, but then again many don’t. I saw how to answer a complaint, go through the discovery process, and draft declarations from various people in the case. So it really was a very thorough encounter with real world litigation. I’m really grateful to Dan and the clients for the faith they put in me, and to be able to vindicate that faith with a good result.

I think that there are a number of legal careers that I would find satisfying, litigation being one as long as I think I can be on the right side. This experience taught me that yes I can litigate, and that Lewis & Clark and Earthrise have really prepared me well to litigate in the future if that’s what I want to do. I could also be happy doing policy work, which I’m actually getting the opportunity to do now with the Green Energy Institute at Lewis & Clark. So it’s been great to have all of these options.

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