Oregon’s engineering board admits fault but doesn’t want to change the law.
Image: Institute for Justice
In September 2014, an electrical engineer living in Beaverton, Oregon, sent an email to the state's engineering board. In the email, he presented a study he'd conducted of his city's traffic lights and called himself an engineer. The Oregon State Board of Examiners for Engineering and Land Surveying ignored the study and fined the man $500 for calling himself an engineer without registering with the state.
Mats Järlström—the engineer—fought back and won the right to temporarily call himself an "engineer" a few months ago. His lawyers successfully argued that the board had violated his first amendment rights.
Since then, Järlström's story has only gotten stranger. "The government did something we've only seen in one other case," J. Justin Wilson, director of communications for the Institute of Justice—a nonprofit that took up Järlström's case—told me via email. "Lawyers for the engineering board have asked the judge to rule against them before we got around to it."
That sounds like good news, but there's a catch. According to a proposed judgement filed by lawyers on behalf of Oregon's engineering board, the board "admit violating Mr. Järlström's [first amendment] rights, but deny the challenged statutes are facially invalid." Which means the board admitted it screwed up, but it doesn't want to take the steps to prevent it happening again.
This whole thing started when Järlström noticed the traffic lights in his city seemed off. He took a year to study the lights and determined the yellow lights didn't last long enough. He sent a letter to Oregon's engineering board and received a $500 fine for calling himself an engineer. In Oregon—as in many other states—people must get a license from a state regulatory agency to operate as an engineer. Järlström hadn't done that, so he paid his fine but decided to fight back.
The board has returned the $500 fine and agreed—in court documents—that it violated his rights, but claims it doesn't need to change the laws. "On its face, it seems like the government is throwing in the towel, but they aren't at all," Wilson told me. "This is bigger than Mats; there are system-wide flaws in the law, which demand a system-wide ruling from the courts.
But the engineering board doesn't want a system-wide fix."
Oregon's engineering board is a big fan of using fines to shut people down. According to the Institute for Justice, it fined a retired engineer who sent the board a letter complaining of flood damage in his home, investigated a Portland area woman and a journalist for similar "crimes," and opened an investigation into a gubernatorial primary candidate for saying he was an engineer in a campaign ad. In the case of Järlström, the board knows it screwed up but wants to reserve the right to fine people in the future.
Järlström's lawyers have filed a suit rejecting the proposed judgement. They want to argue this thing in court and set a precedent that strips the engineering board of its power to fine people. "If the judge were to sign off on their order, the board would argue that the case is closed," Wilson told me. "They are trying to duck judicial review in a way that would preserve as much of their power as possible."
It's a legal tactic with a dark precedent in the United States. Local law enforcement jurisdictions across America use a similar tactic to preserve civil forfeiture laws. Under those statutes—which vary from state to state—law enforcement agencies can seize money and property associated with an alleged crime. Cops can often do this without charging anyone with a crime.
When the practice is challenged in court, law enforcement will often relent, return the cash or property and admit it screwed up...but government's rarely change the laws. Pennsylvania recently reformed its civil forfeiture laws to make them more transparent, but cops can still take an alleged criminal's stuff before they're proven guilty or innocent.
It works the same way as Järlström's case: the offending agency admits it violated someone's rights but doesn't admit that the system is flawed. People with the means to fight the system can do so and use that precedent set to win their case. Those without the means still run up against the law and have little recourse.
"It is a troubling trend," Wilson said. "In both Philly and Oregon, government agencies have taken advantage of unconstitutional laws to violate citizens' rights for years. But the moment someone calls attention to the issue, the government's reaction isn't to try to address the issue meaningfully. Instead, the government tries to sweep the problem under the rug and salvage as much of their power as possible."