15 Fascinating Oregonians
Kelly Clark Takes On the Big Guys
The great
state of Oregon draws in some of the most fascinating people on the planet.
Whether it’s the awesome mountains, rivers and beaches or the lure
of an inspiring job, they continue to arrive, make their homes, and go
about their lives—their fascinating lives. Many are beckoned by
the freedom the state has come to symbolize. Others have always been here,
born and bred. Look around; you’ll see them. Unsung heroes, working,
producing, making Oregon better, stronger. They’re building a healthier
economy, creating jobs, inventing, growing, striving. Look around; appreciate
them. They are your neighbors and your friends. Or maybe you only need
to look in the mirror.
Family matters to Kelly Clark; you can trace his character through his
roots. But memories of his childhood are mixed. “I didn’t
have a particularly happy childhood,” he says. “And I didn’t
grow up in a home where we read books, or where politics was ever on the
front stage. There was a serious alcohol problem in our family and my
folks divorced when I was 12.”
Still, from each parent an important personal trait can be traced. From
his mother, who still lives nearby —intellectual curiosity. “My
mom was a southerner, not highly educated but, interestingly, she always
had kind of a curious mind, and still does. She’s 84, and she’ll
call me up after watching the Discovery Channel and say, ‘Did you
know this or that…?’”
And from his dad, who passed away a year and a half ago —an instinct
for good business decisions. “He was an incredible man, an entrepreneur,
who started 33 businesses in 16 different industries, everything from
bridge building to vocational school, oil to furniture manufacturing,
insurance to commercial garbage. He’d find an industry that was
fruitful, find somebody that knew the industry, who was under-appreciated
and under-employed, and make them a 20 percent equity partner,”
says Clark. “Only one time did he pick something that didn’t
work out; he had an amazing ability to pick good people.”
Clark is stepdad to Meaghan, 17, Molly, 14, both at Lake Oswego High
School, and Ryan, a seventh-grader at Lake Oswego Junior High. And Clark
is beginning to see traces of that intellectual curiosity blooming in
his daughter Katie, a freshman at Boston College.
“I didn’t really develop any kind of rigorous thinking until
I got to Lewis and Clark College,” admits Clark. “I realized,
okay, there are some really smart people in the world, and I’m going
to have to fight to be one of them.”
Clark went on to earn his law degree from Northwestern School of Law
at Lewis and Clark. And from there, the rest is Oregon history. You’ll
find Kelly Clark’s name on some of the most influential cases affecting
Oregon’s government structure and, most important, affecting the
rights of everyday Oregonians.
How does he pick his cases? “My criteria has been that I want it
to make a difference,” says Clark, “either out there or in
somebody’s life. People don’t walk in here unless they have
to. By the time they come see a lawyer because they were sexually abused
as a child, they have to; they can’t deal with it anymore. It’s
got to come out. Those are cases where I say, this is really going to
matter to this person. This is really going to help change their life.
That’s worth spending time, energy and money on.
“There are a lot of good cases: business one having a conflict
with business two. Yep, that’s a good case, a fair case; there are
legitimate legal and factual issues, a lot of money at stake. But it’s
not the same thing to me. There’s nothing wrong with garden variety
commercial disputes, but it’s not really going to change anybody’s
soul or change the world. It’s not really going to free anybody
up.
“I’ve been thinking about the dynamic of freedom. I think
of it in terms of ‘Is it going to matter? When I shuffle off this
mortal coil, is it going to matter that we did this case? Is it going
to matter in community terms or is it going to matter in somebody’s
life?’”
And that thinking has led Clark to take some very high profile cases
in the last decade, including term limits, Measure 37 land use cases,
Measure 36 (the Defense of Marriage Act), the fight against the Florence
casino, and a long client list of priest abuse victims.
“If there’s a constant theme to the cases,” says Clark,
“it’s generally that we are representing somebody, a business,
family or individual, up against the big guy. It’s almost always
a David and Goliath thing. Once in a while it’s a Goliath-Goliath,
but usually we represent an underdog-type person. And if anybody is an
underdog in this state, it’s a property owner—somebody who
believes that their rights to real property should be given equal priority
with free speech rights or criminal defendants’ rights. To get that
government mentality to move a little bit, so people can exercise their
rights, is a challenge. How much grief would we get in this state if the
government was going to take away just a little bit of our free speech
rights? Just a little infringement—just about 40 percent of your
free speech? That wouldn’t stand for a minute. But somehow when
it’s property rights, it’s like a second tier.”
And so Clark’s firm, O’Donnell & Clark, has stepped in
to help people with Measure 37 claims.
Handling controversial cases doesn’t faze Clark, but what about
others in the office? “We’ve got a rule that if anybody’s
uncomfortable on a particular case, they don’t have to work on it;
we have conscientious objectors. When we did the gay marriage thing, we
had a couple of people who said, ‘We disagree with you on this.’
And I said, ‘Okay, great, you don’t have to work on it.’
But the atmosphere is pretty loose—I don’t want to say fun,
because the stakes are high, but people enjoy really their work. People
really believe in what we do here. They treat it as a vocation, a calling.
“The first Catholic case I had—it was admitted abuse. The
priest admitted abuse,” says Clark. “The victim went into
counseling and the Church was paying for it. The counselor said, ‘You
really need to be in an alcohol and drug treatment program for awhile.’
It cost $25,000 or something, and the church balked at that. This was
admitted abuse, serious abuse. The guy was credible, the priest was alive,
he admitted he abused this kid. And they wouldn’t pay for the treatment.
That’s when he came to see me. That case was on appeal for seven
years.
“The day before the Supreme Court argument, the victim would have
taken the one $100,000 insurance policy they had. And they called the
night before the Supreme Court argument and offered $5,000. They said
the law was on their side in the Court of Appeals. They could have settled
that case with a $100,000 policy; it wouldn’t cost them a dime.
And they offered $5,000. We rejected it.
“The Supreme Court came down on our side, and that is what opened
the floodgates. When they had a chance to do the right thing, and nobody
was looking, and take care of this guy, they didn’t. And then for
him it became about the money. He wasn’t angry, he was just like,
‘I guess I have to take this to trial to in order to get their attention.’
Years later we settled before the trial for a lot of money.
“People say, ‘How do you know people are telling the truth?’
And I say, ‘You know what? Just like you can tell if somebody served
in Vietnam.’ You sit across the table and you talk to ‘em
and you look ‘em in the eye and you see them shake when they start
talking about this, and you see how hard it is for them to say what happened
to them. And you say, either this guy deserves an Oscar, or he’s
telling the truth.
“I’ve had a handful of people come in who were so emotionally
and mentally disturbed that I couldn’t tell what the truth was,”
he says. “So I sent them away because I couldn’t prove the
case. And actually I’ve had one client that I fired because the
further I got into the case and saw the facts, they didn’t match
up. The priest wasn’t at this church when he said he was; the records
didn’t back up the story. I don’t say, ‘I think you’re
lying.’ I just told him I didn’t think I could prove his case.”
A handful of others, says Clark, later on decided they didn’t want
to pursue their abuse cases. “But most people,” he says, “by
the time they come in, it’s like an infection, a boil, it’s
got to come out. And I’m oftentimes the first person they’ve
ever told about what happened to them. It’s sometimes scary. We’ve
got a whole speed dial list of counselors and emergency therapists we
can get in touch with.
“I do say really forcefully to people when they come and see me,
‘You are not going to feel better at the end of this when I hand
you a check, unless you’ve done a whole lot of work between now
and then. I can promise you that it doesn’t make you not hurt. You’re
going to have to do your work or this is going to be meaningless.’”
Clark’s firm does much of its work on a contingency basis, leading
some critics to wonder if money is the motive behind some of Clark’s
David vs. Goliath cases. But Clark says most often money is a symbol to
clients that they were right. “It’s a symbol to them that
society says, ‘We’re sorry,’” says Clark. “They
want some acknowledgement; they want an apology. They want counseling
or therapy, and I’m not just talking about the church cases. We’ve
had cases against schools, sports organizations, the Boy Scouts, other
churches.”
But when victims feel like they have not been taken seriously, then it
becomes about the money for them. “We have an interesting conversation
when we’re picking juries on cases that involve something other
than out-of-pocket losses. It goes something like, ‘How do you feel
about the fact that we symbolize justice in our society with money? Are
you okay with that? If you’re not okay with that, then you shouldn’t
be on this case. You should go be on a business case, a criminal case,
or a real estate case. Because the only system we’ve got is that
you’re going to symbolize what happened to this man, if you believe
him, by putting a dollar figure on it. I didn’t make up that system;
don’t blame me. He didn’t make up that system; don’t
blame him. The fact that the only way he can pay me is if I get a percentage
of the case, don’t blame us for that. Or if you’re going to
blame us, say so now, and excuse yourself from this jury.’
“‘Let’s get honest about what we’re doing here.
We’re trying to symbolize justice. If we had a blue button system
where nine out of 12 of you could agree that this shouldn’t have
happened to him, and you could just press the blue button and go back
in time and undo it, he’d ask you to push the blue button. But we
don’t have the blue button system, so what are you going to do?’
“Boy, they really squirm, at least some people do. And then other
jurors say, ‘I don’t have a problem with that.’”
Lately Clark has taken an interest in the constitutional issues involved
in the so-called “clean money elections.” Apart from whether
or not it’s a good idea, Clark says what the new law really says
is that there are two kinds of political speech. “You’ve got
what I’m going to call a grassroots candidate, which is the kind
the Portland ordinance loves: Birkenstock-wearing, involved in the neighborhood
association for years, has a great network out there, and he can easily
raise 1,000 contributions of $5 and get in the system, boom. You’ve
got another candidate, just as knowledgeable, just as qualified, except
that person has spent his whole career in business. He doesn’t have
that kind of grassroots network. He wants to exercise his political speech
by using money to get his message out, as opposed to using people.
“The city of Portland says A is a better kind of political speech
than B, and has created a whole system of public support for A, from which
B is excluded. That’s a value-based determination of types of political
speech that I just don’t think is going to fly. It’s government
picking and choosing among types of political speech, and I don’t
think you can do that, certainly under the Oregon Constitution, and maybe
not even under the federal Constitution.
“It would be an interesting case,” says Clark.
Clark smiles as he remembers a similar case back in 2000, a case they
won. “We had a whole interesting cross section of clients, all initiative
buffs. The Secretary of State’s office had declared certain categories
of voters as inactive. If you didn’t vote for five years or you
moved and hadn’t immediately re-registered you were declared inactive,
which meant you couldn’t sign an initiative petition. You could
still show up and register before you voted, but in the meantime, you
couldn’t sign an initiative petition. And they never sent you a
notice that you had been deemed inactive; they just took you off the rolls.
So we challenged that on due process grounds and won. We walked into the
courtroom of Judge Marcus in Multnomah County, a bright, bright guy. We,
being Lloyd Marbett, Don McIntire, Ruth Bendl, Dan Meek, Joanne Bauman…even
Bill Sizemore showed up to watch. Marcus looks up and says, ‘This
reminds me of the cantina scene in “Star Wars.”’ Every
kind of political animal was in there—it was odd, very odd.
“Marcus was very interested in the case. He actually wrote his
decision so it was dated on July Fourth. He ruled it unconstitutional;
they had to give notice. Bradbury complied with the ruling—I think
he started sending out postcards or something.”
One thing that sets Clark apart from other lawyers who work hard for
underdogs is a strict rule about clients who have substance abuse issues.
“And a lot of them do,” adds Clark. “I tell them, ‘I’m
in recovery (14 years), and I’m not going to work my ass off for
you here for the next three years and give you a check, just to watch
you snort it away or shoot it away. You either get in recovery and stay
in recovery, or I’m not taking your case.’
“I put that in my fee agreement. If they quit recovery, I quit
their case. I do it for their own protection,” Clark says. “You
put alcohol or drugs on top of some emotional or mental problem, and it’s
out of control. But I don’t think we’ve lost anybody because
I insisted they get sober and stay sober. At least a dozen have gotten
sober. I’ve had guys slip, but the rule is if they actually quit
recovery, not if they screw up. At least during the two or three years
that I was working with them, they cleaned it up. That’s a good
start.”
Clark remembers one case in particular: “I had a guy come to me
one day, good guy, educated guy, worked as a chef in a nice restaurant
here in town, and I could tell that he had been drinking, so I got real
honest with him about it, right up front. I said, ‘You go away and
you come back when you’ve got 90 days clean and sober. When you’ve
done the 12 steps, and your sponsor calls me and says you’ve got
90 days—then I’ll take your case.’ And he came back
92 days later, clean and sober. We represented him; he had a good case
and got a good settlement. He wanted to take care of his mother in her
old age so he set up a trust fund. And then eight weeks later, he got
pneumonia and died in the space of 10 days. But I know he went out in
peace, free of his demons. That makes it all worthwhile.”
By Bridget Barton
BrainstormNW - April 2005
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