For those readers who merely want the bottom line, the Oregon Supreme Court concluded as follows:

“In sum, we conclude that:

(1) Plaintiffs' claims are justiciable;

(2) Measure 37 does not impede the legislative plenary power;

(3) Measure 37 does not violate the equal privileges and immunities guarantee of Article I, section 20, of the Oregon Constitution;

(4) Measure 37 does not violate the suspension of laws provision contained in Article I, section 22, of the Oregon Constitution;

(5) Measure 37 does not violate separation of powers constraints;

(6) Measure 37 does not waive impermissibly sovereign immunity; and

(7) Measure 37 does not violate the Fourteenth Amendment to the United States Constitution. The trial court's contrary conclusions under the state and federal constitutions were erroneous and must be reversed.”

An electronic copy of the opinion can be obtained here: http://www.publications.ojd.state.or.us/S52875.htm.

The Details: Measure 37, the Oregon land-use Initiative, became law December 2, 2004 and is codified at ORS 197.352. In short, “Ballot Measure 37 adds a new statute whereby the owner of private real property is entitled to receive just compensation when a land use regulation is enacted after the owner or a family member became the owner of the property if the regulation restricts the use of the property and reduces its fair market value. If a property owner proves that a land use regulation restricts the use of the owner’s property, and reduces its value then the government responsible for the regulation will have a choice: pay the owner of the property an amount equal to the reduction in value or modify, change or not apply the regulation to the owner’s property.

Last year, Marion County Circuit Judge, Mary Mertens Jones, ruled Measure 37 was unconstitutional. (Click here: http://www.ojd.state.or.us/mar/documents/Measure37.pdf.

On direct appeal to the Oregon Supreme Court oral arguments were heard January 10, 2006, and, in record time, the Supremes issued their unanimous decision February 21, 2006. One by one the Supreme Court opinion discharged each of the seven challenges against Measure 37.

1. Justiciability of the Measure 37 case. After a brief review of the facts leading to the passing of the Measure 37 Initiative, the Court dealt with issues of justiciability. Essentially, the pro-Measure 37 parties were challenging the right for the anti-Measure 37 Plaintiffs to bring their legal action against Measure 37’s constitutionality. The Court held that since it was clear that Measure 37’s implementation would have definite consequences to neighboring property holders and others, it was appropriate for their constitutional challenge to be litigated.

2. Intrusion on the Plenary Power to Legislate. One justification for the Marion County Circuit court’s (trial court), conclusion that Measure 37 was invalid, stated it unconstitutionally imposed “limitations on [the] government's exercise of plenary power to regulate land use in Oregon[.]" Essentially, the Marion County Circuit Court said Measure 37 was an unconstitutional infringement on the “general police powers” of the state. In other words, the State of Oregon has a general constitutional police power to regulate private property and Measure 37 infringed on this right to regulate property. The Oregon Supreme Court stated, “The trial court misunderstood the nature of the plenary legislative power.” And, “Contrary to the assumption underlying their argument, Oregon's legislative bodies have not divested themselves of the right to enact new land use regulations in the future. Nothing in Measure 37 forbids the Legislative Assembly or the people from enacting new land use statutes, from repealing all land use statutes, or from amending or repealing Measure 37 itself. Simply stated, Measure 37 is an exercise of the plenary power, not a limitation on it. The measure does not impair the plenary power of the Legislative Assembly or the people's exercise of their initiative power. The trial court's contrary conclusion was error.”

3. Violation of Equal Privileges and Immunities. The Court summarized, “the trial court held that Measure 37 violated Article I, section 20, of the Oregon Constitution because the measure favored what the trial court characterized as a ‘true class’ comprised of property owners who obtained their properties before the relevant land use regulations became effective.” Essentially, the trial court was saying Measure 37 had created a “class” of landowners who received a benefit under Measure 37, and a law that provides such a “privilege or immunity” to a "fixed" or "closed" class must be invalid. The Court refuted this argument. “…Plaintiffs' theory would mean that the legislature would be precluded from enacting a law benefitting, for example, Vietnam veterans or Gulf War veterans, both closed classes.” Thus, the Court held Measure 37 did not violate the provisions Article I, section 20 of Oregon’s Constitution.

4. Impermissible Suspension of the Laws. Regarding this issue the Supreme Court’s decision stated, “In the trial court's view, Measure 37…also violated Article I, section 22, because the suspension clause set out in that constitutional provision "must not [be used] to provide a privilege or immunity that is not available to all." Here, the trial court continues building on its erroneous arguments for issue numbers 1 and 2 above by saying Measure 37 creates an impermissible suspension of some land-use laws for some land-owners, but not others. The Supreme Court dismisses the trial court’s reasoning as follows: “Measure 37 does not ‘cause to cease for a time,’ ‘delay,’ or ‘interrupt’ any land use regulation. Instead, it authorizes a governing body to ‘modify, remove, or not * * * apply’ certain such regulations in specific situations. The measure is, in effect, an amendment of the land use regulations in those particulars. No law is ‘suspended’; all laws not amended remain in effect."

5. Violation of Separation of Powers Principles. On the issue of whether or not Measure 37 was an unconstitutional delegation of legislative powers, the Court held as follows: “…the trial court's separation of powers holding explicitly relied on its earlier conclusions that Measure 37 impermissibly intruded on the legislature's plenary power, violated Article I, section 20, and violated Article I, section 22. We already have concluded that Measure 37 does none of those things. It follows that the trial court's stated reasons for holding that Measure 37 violated Article III, section 1, were also incorrect. There is considerable discussion of variations on this argument, but in every case the Court makes it clear that Measure 37 did not violate the separation of powers principles encompassed in Article III, section 1 of the Oregon Constitution."

6. Impermissible Waiver of Sovereign Immunity. In many instances the State or its political sub-divisions are immune from having to pay damages. This doctrine of “sovereign immunity” has been a part of civil law for centuries. Here, “Plaintiffs contend that ORS 197.352 impermissibly waives sovereign immunity. That section authorizes a Measure 37 claimant to bring an action for compensation, including reasonable attorney fees, expenses, and costs, if a challenged land use regulation continues to apply to the subject property more than 180 days after the claimant filed a written Measure 37 claim. ORS 197.352. In response to the plaintiff’s argument on sovereign immunity, the Supreme Court concluded, “Article IV, section 24, does not bar Oregon's legislative bodies from waiving immunity as the people have chosen to do in enacting Measure 37.”

7a. Violation of Procedural Due Process clause of the U.S. Constitution. Next the Supreme Court turned its attention to issues relating to procedural rights of “Due Process” under the 14th Amendment. To summarize this issue, the Court stated, “The trial court held that, because nearby property owners may suffer ‘irreparable harm’ as a result of a governmental decision to modify, remove, or not apply a land use regulation, property owners so affected ‘must be given notice and an opportunity to be heard before a public entity decides the Measure 37 claim.’ In so ruling, the trial court asked more of Measure 37 than the measure was required to deliver. While it is true that Measure 37 does not expressly provide the predeprivation procedures that the trial court outlined, it does not follow that that omission renders Measure 37 unconstitutional under the Fourteenth Amendment.” Although The Court refrained from stating whether or not hearings would be required for Measure 37 claims, it noted that provisions were already contemplated for State Measure 37 claims hearings. Since the plaintiffs failed to carry their burden of showing “that no set of circumstances exists under which [the statute] would be valid,” Measure 37 does not “violate plaintiffs' procedural due process rights.”

7b. Violation of Substantive Due Process clause of the U.S. Constitution. The Plaintiff’s final argument in support of the trial court’s opinion was that the compensation provisions of Measure 37 impede exercise of the government’s plenary power; therefore, Measure 37 cannot withstand the federal “rational basis review”, since Measure 37 was not “reasonably related to a legitimate state interest.” In response the Supreme Court again eviscerated the trial judge’s logic. The Court held, “…neither [the state or federal] constitution forbids requiring such compensation in the manner provided for in Measure 37. The people, in exercising their initiative power, were free to enact Measure 37 in furtherance of policy objectives such as compensating landowners for a diminution in property value resulting from certain land use regulations or otherwise relieving landowners from some of the financial burden of certain land use regulations. Neither policy is irrational; no one seriously can assert that Measure 37 is not reasonably related to those policy objectives. And, that determination is the only one that this court is empowered to make.” Did you note the final sentence just quoted from the Oregon Supreme Court? To hear a unanimous Oregon Supreme Court state, “And, that determination is the only one that this court is empowered to make,” should be music to the ears of all Oregonians who love liberty. It is time the judiciary limits itself to interpreting the law.

The Court concluded correctly by restating its limited authority in reviewing the Marion County Circuit Court’s Measure 37 decision when it said: “Whether Measure 37 as a policy choice is wise or foolish, farsighted or blind, is beyond this court's purview. Our only function in any case involving a constitutional challenge to an initiative measure is to ensure that the measure does not contravene any pertinent, applicable constitutional provisions. Here, we conclude that no such provisions have been contravened.”

Thus, the Oregon Supreme Court took a major step toward restoring public trust in our state appellate judiciary. There are many issues relating to Measure 37 that will need legislative attention in the years ahead, and by over-turning the clearly erroneous circuit court decision, the Supreme Court will allow such land-use issues to be resolved in the Legislature where they belong.

Sincerely,

Dennis Richardson
State Representative
Speaker Pro Tempore

Missed a Newsletter? Download all past newsletters for the 2005 Session at http://www.leg.state.or.us/richardson/news.htm

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