Noteworthy Case Histories

Kelly Clark has been a successful attorney in many different areas. His long list of case histories can be found here:

Property Rights & Eminent Domain
Other Property Rights Cases
Mental Health System
Election Officials
Taxing Agencies
Charter Schools
Voting and Initiative Rights
The Dignity of Life
Religious Liberty
Campaigns
Other Constitutional and Appellate Cases

Property Rights. Eminent Domain.

Kelly Clark, along with the entire O’Donnell Clark & Crew litigation team, beat the City of Portland in eminent domain ("takings") in 2003. Richard and Gayanne Courter — and Gayanne’s 93 year-old mother — had fought the City for 10 years to get a fair deal on the City’s forced taking of 1.6 acres of the Courters’ property in the West Hills of Portland. The City claimed that it needed this prime piece of development property for its water storage facilities, a claim hotly disputed by the Courters and neighbors. Taking the case over just weeks before the trial, we obtained a verdict after a two-week jury trial, of over five times the City’s last offer. The City was also forced to pay the Courter’s legal fees and court costs; with interest, the final payment by the City would eventually approach nearly one million dollars.

Kelly Clark and Kristian Roggendorf of O’Donnell Clark & Crew successfully battled the City of Portland’s attempts to expand light rail at the expense of a family owned industrial business. Legal strategy included attacking the entire Interstate Avenue North-South light rail project in federal court. City of Portland v. Van Raden Industries, Multnomah County case number 0101-00985 and Van Raden Industries v. City of Portland, Secretary of Transportation, et. al., CV 01-233-BR 2001 U.S. District LEXIS NYS (Or. D. 2001).

Mr. Clark and O’Donnell Clark & Crew associate, Ross Day, successfully stopped local land use planners and government officials from arbitrarily using stop work orders, refusing building permits, and otherwise retaliating against a family-owned marina. The US District Court ruled that the County violated the constitutional property rights of the marina by a "temporary taking," without due process of law. The case settled immediately afterwards; the settlement required the government to process the marina’s expansion and building permits, reverse long standing restrictions on the marina’s property land use, and pay the marina’s legal fees and court costs. Frevach Land Company v. Multnomah County, et. al, 2001 U.S. District LEXIS 22255.

Other Property Rights Cases

Upon the passage of 2004 Ballot Measure 37 ("partial takings" law) Mark O’Donnell and Kelly Clark handled approximately two dozen of the first Measure 37 cases to be filed in early 2005. Amidst the legal and political controversy and chaos, their experience and tenacity has been recognized repeatedly, as landowner after landowner seeks their assistance in obtaining a just result. Watch this space for further developments.

Kelly Clark successfully sued the Oregon Division of State Lands on behalf of a family-owned marina for civil and constitutional rights violations, when DSL terminated the marina’s long term lease after the agency discovered the marina was six feet outside the lease lines. This, despite that the marina had existed at that exact location for 20 years, that the DSL itself had prepared the original lease, and that the marina had requested a hearing (unsuccessfully) to contest the matter. Case resulted in a settlement whereby the State agreed to reimburse the marina’s legal fees, yield its position, and grant the marina a new 20 year lease on favorable terms. Brown’s Landing Marina v. Division of State Lands, Columbia County Circuit Court case number 94-2086.

Mr. Clark and O’Donnell Clark & Crew in 2000 filed an amicus brief before the Oregon Supreme Court in the "Measure 7 Case" a property rights measure, in an attempt to persuade the Court to modify or reverse its trend toward usurping citizen authority over constitutional questions through such mechanisms as "single subject" or "multiple amendment" rulings. League of Oregon Cities v. State, 336 Or 593, 87 P3d 672 (2004).

Kelly Clark and Kristian Roggendorf represented United We Stand Oregon, a group of property owners who were concerned about Portland’s proposal to protect urban waterways with the so-called "Healthy Streams Initiative." This initiative would have restricted virtually all development in the West Hills, Fanno and Johnson Creek areas. In all 14,000 property owners would have been affected. In fighting the City’s drastic scheme, O’Donnell Clark & Crew were instrumental in forcing the City to shelve the entire plan.

Mental Health System

Mr. Clark successfully advocated for the family of a young caseworker in a mental health facility who was murdered by one of her former patients, a man repeatedly adjudicated as seriously mentally ill and dangerous. Kelly successfully sued the State Mental Health Division, Washington County, Portland Adventist Medical Center, and a private physician for the premature release of the mental patient from civil commitment despite clear warnings of his dangerousness. The case was settled just after jury selection, a settlement (amount confidential) which included significant change in the policies in the defendant institutions and in legislative review of state mental health statutes. Cuenca v. State of Oregon Mental Health Division et al., Multnomah County Circuit Court case number 9509-06470.

Elections Officials

Along with O’Donnell Clark & Cew associates, Ross Day, Eric Winters and Matt Lowe, Mr. Clark represented initiative advocates Don McIntire, Lloyd Marbet and others in a challenge to the Secretary of State’s practice of disenfranchising certain voters. On behalf of so-called inactive voters, O’Donnell Clark & Crew defeated, as unconstitutional, attempts by Secretary of State Bill Bradbury to prevent certain citizens from signing initiative petitions, on a constitutional theory of due process of law. The victory resulted in an agreement by the government to change its practices and court-ordered attorney fees against the government. McIntire, et. al v. Bradbury, et. al., Multnomah County Circuit Court case number 0006-06252.

Taxing Agencies

Earlier in his career, Mr. Clark challenged and defeated, on constitutional grounds, Oregon’s system of tax foreclosures for its failure to provide due process protections to lien holders before foreclosure. The case included successful argument before the Oregon Court of Appeals. Seattle-First Nat. Bank v. Umatilla County, 77 Or App 283, 713 P2d 33 (1986).

Charter Schools

Long an advocate for choice within public schools, since 1999 Kelly Clark successfully represented almost all of the first charter schools in their battles to obtain charters, including: The Village School (Eugene), McCoy Academy (Portland), Portland Arts and Science Academy (Portland), Willamette Valley School (Corvallis), Three Rivers Charter School (West Linn), and Trillium Charter School (Portland). These cases often required a mixture of legal strategy and public relations, administrative appeals, marshaling of community and newspaper support, negotiations, and litigation or threatened litigation-to force reluctant or hostile school districts and teachers unions to follow the law.

Voting and Initiative Rights

Kelly Clark, Ross Day and Eric Winters represented US Term Limits in fighting the growing practice of Oregon’s courts to invalidate on hyper-technical grounds (e.g., single subject challenges), citizen-sponsored constitutional amendments, fighting for the right of citizens to exercise their initiative power to amend their constitution without undue interference by the courts. Kelly argued the case before the Supreme Court. Lehman v. Bradbury, 333 Or. 231, 37 P. 3d 989 (2002).

The Dignity of Life

On behalf of poor and disenfranchised terminally ill patients, Mr. Clark has fought against Oregon’s euthanasia law by co-authoring an amicus brief in support of the U.S. Department of Justice’s attempt to outlaw assisted suicide. Oregon v. Ashcroft, 192 F Supp2d 1077 (D.Or. 2002) rev granted, 368 F3d 1118 (9th Cir 2004), cert. granted sub nom, Gonzales v. Oregon, U.S. 125 SCt. 1299, 161 LEd.2d 104 (2005).

Religious Liberty

Earlier in his career, Kelly Clark fought for the constitutional rights of high school students to compose and offer a nonsectarian at prayer at graduation ceremonies. Mr. Clark argued the case before the Oregon Supreme Court. Kay v. David Douglas School Dist. No. 40, 303 Or 574, 738 P2d 1389 (1987).

Mr. Clark represented a religious organization in a First Amendment fight against the State Employment Department’s attempt to tax religious organizations on employment decisions. Employment Div., Dept. of Human Resources v. Rogue Valley Youth for Christ, 307 Or 490, 770 P2d 588 (1989). And on the same issue, Kelly represented 23 religious schools around the state in a longstanding dispute with the State Employment Department for the school’s constitutional right to be free from arbitrary taxation.

Campaigns

Since leaving the Legislature in 1993, Kelly has represented numerous ballot measure campaigns, as well as federal, or statewide campaigns including: Defense of Marriage Campaign (2004), Jack Roberts for Governor (2002), Rob Kremer for Superintendent (2002), The House Majority Caucus Campaign Committee (2002), Molly Bordonaro for Congress (1998), No on Gas Tax (2000), Campaign to Outlaw Child Pornography (1994).

Other Constitutional and Appellate Cases

When Multnomah County, Oregon began issuing same-sex marriage licenses in March, 2004 without prior notice, without hearing, in violation of both marriage laws and the state’s public meetings law — Kelly Clark, Kristian Roggendorf and the entire O’Donnell & Clark team were asked by the Defense of Marriage Coalition to stop the County’s illegal actions. When it became apparent that the State Attorney General’s office was not prepared to defend the constitutionality of Oregon’s laws recognizing traditional marriage, we expanded our work to advocating for traditional marriage laws as well. In a case that generated national and international attention, Kelly and O&C, along with co-counsel, prevailed upon the Oregon Supreme Court to declare the County’s actions illegal, which the Court did in April, 2005. Li v. State, 338 Or 376, 110 P3d 91 (2005).

Kelly Clark authored a "Friend of the Court" brief which helped uphold ORS 163.680, Oregon’s child pornography statute (which Kelly co-sponsored in 1991 while he was a member of the Legislature), against constitutional attack. The case was significant because it carved out an exception to Oregon’s "absolute free-speech policy" specifically to protect children from being exploited by pornographers. State v. Stoneman, 323 OR 536, 920 P2d 535 (1996).

In 1999, Kelly won a major victory from the Oregon Supreme Court in a tort case on behalf of child abuse victims. The case received national attention for its impact on the liability of "institutions of trust" in child abuse cases. His was the first in what became a wave of litigation regarding priest sex abuse of minors. Since then, Kelly has represented over 100 adults who were abused as minors. Fearing v. Bucher and the Archdiocese of Portland, 328 Or 367, 977 P2d 1163 (1999) and Lourim v. Swensen and the Boy Scouts of America, 328 Or 380, 977 P2d 1157 (1999).