Constitutional checks and balances

Russell Sadler

The decision by Marion County Circuit Judge Mary Merten James declaring Measure 37 unconstitutional is a timely reminder that initiatives are not mere popularity contests. Initiatives are lawmaking, and the citizens and their lawyers who write initiatives are bound by the same constitutional checks and balances as the Legislature sitting in Salem.

It doesn’t matter that 61 percent of the people approved Measure 37. It wouldn’t matter whether 100 percent of the people voted for it. Initiatives are subject to the same constitutional scrutiny as any statute the Legislature writes. The initiative is simply the legislative power of the state reserved to the people. Initiatives are not omnipotent.

The real victims here are the landowners who heeded the urging of Oregonians In Action -- the people behind Measure 37 -- to file immediate claims and the county commissioners who approved many of those claims with the gay abandon of pederasts handing out lollipops. Both groups knew this radical, controversial measure would be litigated because it was so vague. They should have urged caution and patience.

As a result of county commissioners’ reckless intemperance, people with property involved in Measure 37 claims will find that no bank is likely to loan money to buy land or build a house. No title insurance company is likely to insure a title because litigation casts a cloud over titles involved in Measure 37 claims.

Even people who already own their land and build with their own cash on a Measure 37 claim are in some jeopardy. If the Oregon Supreme Court upholds Judge James, neighbors who can prove damages from an incompatible land use can sue.

Regrettably, few people are likely to blame the reckless urging of OIA to make claims immediately or the irresponsible exuberance of county commissioners in approving those claims for the mess they have created.

Instead, the predictable partisans will blame the judges for doing what we hire judges to do -- make sure legislative bodies toe the line constitutionally -- whether that legislative body is sitting in Salem or the people wielding the initiative.

Judge James ruling says the initiative violates the Oregon Constitution three ways. Measure 37...

-- intrudes on the plenary power of the Legislature,

-- violates the equal privileges and immunities clause,

-- and violates the suspension of the laws clause.

Measure 37 also violates procedural and substantive due process guaranteed by the Fourteen Amendment to the U.S. Constitution.

Whew!

Well, that’s how lawyers talk and judges write.

Let’s try to translate that legalese into something we can all understand.

As every high school student knows, our federal government has “enumerated” powers given to it by the original states. In other words, when Congress wants to pass a law, it has to find a “Mother, may I...” among its enumerated powers in the Constitution. All other powers remain with the states. State constitutions contain the inherent or “plenary” power of a sovereign. State legislatures can pass a law about anything they want unless they run into a “Thou shalt not...” in their own or the federal constitution.

Passing laws to protect the “public health and welfare” is one of the inherent or plenary powers of state legislatures. The courts call it “the police power.”

Measure 37 did not try to restrict the Oregon Legislature’s ability to enforce current land use regulations or its power to enact new ones. Measure 37 is a statute. Restrictions on the Legislature’s plenary power must appear in the constitution. So Measure 37’s authors coyly tried a new, radical tactic. Measure 37 requires Oregon government to pay money if it wants to enforce valid, previously enacted land use regulations. In other words, it must pay to govern. “This,” writes Judge James, “the legislative body (she means the people using the legislative power of the initiative) cannot do,” and cites the cases where Oregon courts have made similar rulings in the past.

If the Oregon Supreme Court upholds James on this one ruling, Measure 37 is doomed because the rest of the measure is meaningless without this radical compensation provision.

This one ruling is also on the safest ground, and the least likely to be overturned. A statute cannot trump legislative powers inherent in the state constitution. The Oregon Supreme Court has said that many times, many ways, over many years.

Next James ruled that Measure 37 violates a provision of the Oregon constitution that prohibits any law granting “privileges and immunities” that aren’t granted equally to everyone else in the same situation.

Measure 37 grants the privilege of compensation or waiving of regulations to one class of people who bought their land before a restrictive land use regulation became effective. Another class of people who bought their land after a restrictive regulation became effective does not have the same privilege of compensation if they want to intensify the use of their land and are denied.

Measure 37 pits two groups of property owners against each other differentiated only by the date the obtained their property. Judge James ruled there is no apparent legitimate state interest in treating pre-owners and post-owners differently. Why should one class get a chance at the loot and not the other?

Kings and dictators arbitrarily suspend laws when they try to keep power in the face of opposition. To make sure this does not happen here, the Oregon Constitution permits a “suspension of the laws” only by an act of the the Legislature. Measure 37 suspends a land use law that that allegedly reduces the value of property unless government pays compensation. But if the initiative is the legislative power of the state reserved for the peoples use, isn’t this suspension of the laws enacted by “the legislature?”

Yes, Judge James concedes in her ruling, but she holds that decision must be read together with other constitutional provisions that protect individuals. Since this suspension of the land use laws allows a privilege to one group of people who owned land prior to 1973 -- compensation for alleged loss of value -- that is not available to people who bought their land after that date -- the suspension is constitutionally invalid.

This is the only hint of novelty in an opinion that interprets the law very strictly, based on the precedent of well-settled law.

The 1973 revision of Oregon’s land use law deliberately made it difficult to subdivide or develop incompatible uses in rural areas on farm and forest land. Local government officials -- particularly county commissioners -- hated those restrictions. County commissioners are elected officials who win reelection by saying “yes.” Oregon’s land use laws suddenly required them to say “no” to many incompatible land uses if land was zoned to protect farm and forest land. So when Measure 37 appeared financially impossible to enforce, county commissioners were only too happy to deny compensation, waive regulations and opened the flood gates to a torrent of claims.

Neighbors who complained their property rights were damaged by incompatible uses had no place to be heard. When they did not have the money to pay the claims county commissioners swiftly waived regulations, gleefully chorusing “Measure 37 made us do it.”

This embarrassing rush to judgment led to Judge James’ last ruling. Because Measure 37 impedes the inherent “police power” of the state to protect the public health and safety, neighbors of Measure 37 claimants who may be adversely affected by incompatible uses had effectively been denied their substantive due process rights under the Fourteenth Amendment to the U.S. Constitution, which prohibits any state from passing a law depriving anyone of life, liberty or property without due process of law.

There are no factual disputes in this case. Both sides asked Judge James to rule only on questions of law, so the appeal of her ruling will likely bypass the Oregon Court of Appeals and go directly to the Oregon Supreme Court.

Comments

  • foxtrot13 (unverified)
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    M37 isn't gone yet, its well and simply drafted and Judge James' logic is suspect. Her arguments about the creation of two classes is ridiculous as the law does not expressly construct seperate classes of people and therefore she can't simply create it out of thin air.

    As for plenary power, the legislature is empowered to limit the plenary power of local governments and in facts does it all the time. To claim that government can't limit its own power and is above the opinion of voters is arrogant and anti-american in its context.

    It has been clearly established throughout the history of our nation and state that the people own the power and delegate it to the government to exercise. The ability to make laws is on loan. The use of the initiative is the highest expresion of the voters exercising their power over their government. The recent spat of initiatives being overturned is a dangerous attack on the people's right to "police the police." Up until recently the courts recognized this power.

    Eventually your party is going to regret this as it will politicize the judiciary. Furthermore, the unwillingness of 1000 Friends to compromise on an escape hatch on land-use laws will end up bringing down the whole system.

    Many conservatives are pro-land-use planning but there needs to be some level of recognition for a taking when it takes place. Tom McCall would have agreed with this as his creation of this system was to protect farmers not strangle their businesses or bully their land-usage. If you aren't willing to compromise thats exactly what you'll get - no compromise with your side losing.

  • PanchoPdx (unverified)
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    This ruling is more than suspect, it is classic ends-justifies-the-means judicial activism. Read the critique of this decision in the Sunday Oregonian by the Dean of Northwestern School of Law at Lewis & Clark. Dean Huffman, a well-respected scholar of constitutional law, describes creativity of the legal theories unveiled in Judge James' decision as " truly breathtaking".

    For progressives to cheer this decision is akin to conservatives cheering the plane crash that killed Sen. Wellstone.

    Huffman critique of M37 decision

  • Ed Bickford (unverified)
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    The cons are going to huff and puff and blo-o-o-o-ow our house down! Well, not by the hair on my chinny-chin-chin!

    How puerile is it to equate the untimely demise of a well-respected opposition leader with the well-deserved demise of end-run by a special interest group on duly-constituted state power to regulate resources.

    Take note that the banner above the 'O' story cited is: Measure 37 is overturned: Two opposing views (Capitalization scheme is theirs, inexplicably)

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    Here is a link to the opinion if those commenting on it are interested in reading it first.

  • dmrusso (unverified)
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    "For progressives to cheer this decision is akin to conservatives cheering the plane crash that killed Sen. Wellstone."

    Explain to me what the death of a Senator has in common with the overturning of a ballot measure?

    That is comparing apples to oranges. I think that Panchopdx needs an education on comparative physics/ politics. It might prove useful.

  • LT (unverified)
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    I concur with some of the above. It is the responsibility of any ballot measure sponsor to clearly write an initiative which will stand up to scrutiny. I say that as the supporter of a ballot measure which was examined by numerous lawyers with expertise in the field, passed in all 36 counties, and thrown out by the Supreme Court. I was as angry at the sight of some legislators grinning when they heard the news as I was at the court decision.

    And yes, I do put more value on human life than on ballot measures, regardless of the comment "For progressives to cheer this decision is akin to conservatives cheering the plane crash that killed Sen. Wellstone. "

    And I would remind those using the analogy to realize how angry some grieving Wellstone's death were when the right wing spin machine attacked a eulogy as being too partisan "given that there were Senators of both parties in the audience" at the memorial service in that large auditorium. I heard the eulogy which was given by a senator from a nearby state. I can imagine Wellstone giving the same eulogy had he survived and the other senator died unexpectedly.

    One thing that made Wellstone such a hero was his energy and cheerfulness. He was a strong minded activist, but he was in the "Happy Warrior" tradition of Hubert Humphrey, not the "destroy your enemies--that is more important than crafting solutions" attitude which is such a problem today.

    Russell Sadler said This one ruling is also on the safest ground, and the least likely to be overturned. A statute cannot trump legislative powers inherent in the state constitution. The Oregon Supreme Court has said that many times, many ways, over many years.

    If someone wants to say that a statute can trump legislative constitional powers, they should say so. And then if that were true all sorts of people could pass all sorts of measures to control the way the way the legislature acts. They could require all meetings incl. caucus meetings to be public. They could prevent perdiem payment for unexcused absence. They could require tax breaks to be examined before budget cuts are made. They could require all budget meetings to be in public (no more closed door negotiations).

    Is that what you really want? Or are you folks with the strong language against the decision just angry at being told some rules apply to everyone, and the court has the right to determine which rules apply to which situations?

    As the granddaughter of a state supreme court justice, I support the right of the Oregon courts to have that oversight role.

  • PanchoPdx (unverified)
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    I won't debate the legal reasoning in this decision with non-attorneys, it's a waste of time.

    You guys got the decision you wanted and don't care if a rookie judge accomplished it with a grab bag of unprecedented theories.

    It would be one thing if the Oregon Sup. Ct had used even one of these rationales to overturn an initiative previously. Judge James demonstrated complete disregard for the people's legislative authority, signing off on the bongpipe legal theories of 1000 Friends.

    This sort of judicial arrogance won't stand.

    She's begging to go back into private practice.

    I imagine the voters of Marion County will accomodate her.

  • dmrusso (unverified)
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    Using the words "judicial arrogance" and "judicial activism" seems to be ignorant to me. What makes a judge a judicial activist, or arrogant? Could it be when they decide against a position that you support?

    I agree with LT. Some ballot measures are very poorly written and ill-concieved. One of the functions of the judicial branch is to balance the laws in question. The supporters of M37 had ample opportunity to have legal experts write their measure and have it tested legally before-hand. Instead, they chose to use "heart-wrenching" cases of old grannies losing their homes to the government.

    If you imagine voters in Marion Country will accomodate her by voting her out of office then you lack imagination.

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    Foxtrot13 and panchopdx have succeeded in hijacking the the thread before any serious discussion gets started. This appears to be a common troll technique on this blog.

    Neither knows much about the law or they wouldn't say the silly -- actually ignorant -- things they do.

    The accusation that Judge James is a "judicial activist"or "actiivist judge" is without foundation. The terms -- which have a particular meaning because there ARE judicial activists -- have been perverted to meaning a judge who write an opinion the wingnuts don't agree with.

    James' decision is --for the most part -- a strictly constructed interpretation of the statute as it was written -- badly written as most commentators now acknowledge.

    From Bill Sizemore to Ross Dey of Oregonians in Action, self-styled conservatives and their national allies have pushed the envelope of the intitiative for the last 20 years. They have stretched traditonal constitutional limits beyond recognition turning initiatives into popularity contests deliberately ignoring the original intent of the I & R founders that the people were only exercising the legislative power of the state -- the initiative was never intended to simply override the constiktution because "the people voted for it."

    The courts allowed this stretching for a long time. Now the lawyers who draft intiatives are being held to account for principles we all learned Constitutional Law 101.

    Predicting appellate courts is a perilous practice, but Jame's holding that a statute can't trump the legislature's inherent power to protect the public health and welfare will almost certainly be upheld by the Supremes.

    If Oregonians in Action wants to force the state to pay blood money to enforce previously enacted laws, they are going to have to do it by the rules, our trolls' fulminating notwithstanding.

    Threatening a Judge with retribution at the pollsor recall can be dismissed as bullying.

  • David English (unverified)
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    The sad part is some cities decided to forgo waiting until this was settled in the courts because of worries they would be hurt financially if people owning land started fiiling massive claims.

    Some of the most beautiful parts of Medford up in the hills will be well developed by the time I get back to the US.

    I have to wonder if in this case Medford jumped the gun.

  • foxtrot13 (unverified)
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    Charlie - Thanks for the link but I've already read the case (read it last saturday in fact). I've also read quite a few of the pleadings before Judge James as well.

    This brings me to LT and dmrusso - acutally the drafters of M37 not only had ample access to expert legal advice they are the experts. Dean Huffman of Lewis and Clark's law school to Ross Day of Oregonian's in action and other significant property rights activists. Their legal respectablity on land-use issues far surpasses that of the rookie Judge who you place so much faith in.

    Of course the democratic party doesn't recognize respectable experience only Harvard, Yale, or Brown degrees regardless of how competant the person is. I just love how democrats find it more important how wealthy your parents are and what your highschool grades get you than your actual character and experience.

    And as for the concept of direct democracy being a "popularity contest," it just shows what you really think of voters. I would like to point out how when M37 passed at the same time the Democrats won every statewide slot on the ballot. Whats that say about your candidates winning - obviously it was their similarity to the father and mother on the OC rather than their tax policy stance.

    I warning you all now - you all fail to grasp how voters actually feel about property rights and the initiative. If 1000 Friends of Oregon keep pushing for a no compromise situation thats exactly whats going to happen. No compromise with them losing.

  • Ron Ledbury (unverified)
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    Panchopdx,

    Blame it on the Penn Central case. I never did like the notion of Tradeable Development Rights.

    It is the same kind of detachment that enables the government to demand the lifetime fruits of someone's labor to cover a private debt between a private lender and private borrower, for educational purposes, but not see it as blatant slavery. Is there a right to charge money to offer legal advice? Or is it a mere privilege? You must know that any group that claims to represent the public interest, with the stamp of approval of government, can easily flip over to become a simple mutual benefit organization.

    Let's start by defining property, and liberty. http://en.wikipedia.org/wiki/Property http://en.wikipedia.org/wiki/Liberty

    You could read my lengthier comment in an update to this post here: http://pdxnag.com/drupal/node/825

    Don't worry too much about the temporary life of the present court ruling. The interest of equal immunities (as in a waiver) could be met by extending the waiver to all. In which case the seemingly essential component (in the judge's analysis) of payment vanishes. It would be no different than if SB100 (and all that followed) were repealed.

    Thanks for the pointer to the opinion piece by a professor to whom I still owe a paper. I was trying to apply my previous studies on natural resource economics to the concept that people are being treated like cattle or timber; but he would not have known. You know -- like the mortgage debtors of today that are told that they are rich owners that need to be taxed. Forget the price level of homes . . . look instead at the net extraction of interest payments, which are not derived from homes, but only from the labor (or infrequent entrepreneurial activity) of the so-called owners to cover debt. The sellers cut and run with the loot and leave the local taxing body with a piece of evidence as to price; not a real price but a price that enables both a larger debt and a larger tax at the same time. Both are a tax on labor, and the poor. It would not have been much different than noting the economic inefficiency and inequity that results from legal tolerance of the extraction of monopolistic rent. But then only someone like judge Posner would have a clue as to what I was trying to say.

    I cringe when the government selectively hands out checks. The price level of homes are far out of whack relative to wage labor, and to the ability of such labor to cover their debt-tax and the government-gifting-tax.

    As to the court opinion:

    I think the court could avoid any wide ranging constitutional debates on property by merely isolating on the notion of whether someone had an opportunity to divide and, in the interest of finality (where have we heard that before?), did not. That would leave the door open to the OIA to get a smarter legal adviser before another round.

  • dmrusso (unverified)
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    If M37 had the legal muster in place before it went on the ballot, it would have REMAINED in place.

    It did not. Rather, there were numerous mixed opinions on the measure which is a pretty clear sign that it was poorly written. If the drafters are lawywers, they need to head back to law school, OR, trust neutral parties to vet measures after they have written them.

  • about that warning (unverified)
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    I warning you all now - you all fail to grasp how voters actually feel about property rights and the initiative. If 1000 Friends of Oregon keep pushing for a no compromise situation thats exactly whats going to happen. No compromise with them losing.

    It is always a mistake to make generalizations about "how voters feel". What if there are voters who didn't vote for particular candidates precisely because they thought them unreasonable on this sort of issue? There certainly weren't the votes in the legislature for Version D of the attempted Measure 37 fix--the one late in the session which lots of people did not understand. Why didn't "the voters" who supposedly are solidly OIA not vote in more friendly legislators?

    What is a "no compromise solution"--one that OIA defines that way?

    Is it possible there are people in this state who are not members of OIA, not members of 1000 Friends, but think that farmland once paved over can never grow crops again?

    What if there were a compromise (didn't I read an editorial about this?) which addressed concrete questions (like building homes on farmland ) without declaring that the public policy of this state is that developers have more rights than farmers?

    I have a friend who says "property rights stop at the boundary line"--no one has the right to do something with their property which could hurt a neighbor's property without the neighbor having the right to complain and take action. He says of the OIA types "they would be the first ones to complain if someone wanted to start a junkyard or a motocross track next to their home". He is not a member of 1000 Friends.

    A reminder about the effectiveness of bullying. Right after the Marion County Measure 7 decision, phone calls started going out seeking support for recalling the judge. Apparently the calls were not well targeted. Phone banks always run the risk of reaching someone who does not agree with the cause. In this case, the phone call reached a neighbor of the judge in the Measure 7 case, and the woman who answered the phone said "BOY! Did you call the wrong house--we voted against Measure 7 and appreciated the court decision". The people in that household were able, after a series of phone calls, to reach someone with connections to check into who might have originated the calls. And the report back was that the calls had been aimed at raising money for some cause. Apparently the group behind the calls was not a Marion County group but a state group. There was no recall attempt on that judge (who after all, was elected by Marion County voters).

    Just a reminder: if the populace is looking for solutions, bullying will not go over well. Neither does name calling. Candidates who campaign on what an awful decision that was in Marion County could well lose the votes of undecided people who don't know a lot about politics, but know they support positive campaigns over name calling.

  • foxtrot13 (unverified)
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    Ron - If it takes a guy as brilliant as Judge Posner to understand your thoughts, your not that brilliant.

    As for voters intentions, I'm not claiming how they will vote at all times. There was a previous post criticising the initiative process as a "popularity contrest" and therefore he was criticising democracy in general. I was aiming at showing that voters who voted democratically also voted for M37 understanding that it cost money but provided a compromise to our landuse system.

    Our landuse system makes sense but it needs a system to recognize individual property rights. Tom McCall and others proposed this system to protect farmers from subdivisions popping up next door and then attempting to curtail what the farmer is required to do to stay in business.

    If there is no compromise that recognizes these property rights the fight will move over to a direct overturning of SB100. Most conservatives don't want to eliminate our land use system. Instead we just want to prevent the heavy handedness of landuse activist preventing even simple alterations to a farm's housing or operations.

    If a farmer wants to add housing to a 160 acre plot of land to make it a more productive piece of farm land by itself, this isn't "condomania." This issue isn't about junkyards or motocross tracks, its about commonsense reform allowing people to live how they want to live.

  • Steve (unverified)
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    Mr Sadler's statement - It wouldn’t matter whether 100 percent of the people voted for it, really makes me wonder what his agenda is.

    I mean this judge gave her one interpretation that M37 is not constitutional, which doesnt make it so. So far she is the only judge to.

    Based on the Sunday Oregonian piece, we have one law prof from UofO who doesn't even touch legal issues beyond saying it is great we have found someone to say M37 is unconstitional. We have a dean of a law school specializing in Environmental Law who says he cant make sense of this judge's constitional argument. So we are back to venue shopping.

    As far as Mr Sadler complaining about having his comments hijacked - if he could more clearly state his point, we could address it better.

  • Kyle (unverified)
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    Hello all,

    First time poster.

    If the people in Salem had any notion of doing the right thing, they will try and pass a version on Mes. 37. It is only a commonsense and fair ballot messure and Im sad to see it was struck down. I also would be in support of a law that says ballot messures passed by the votes trump any and all Oregon state Government powers and bodies.

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    Folks...

    This is a legal discussion about a legal opinion. To play intelligently you have to cite case law that justifies your opinions, just like the judge did. What is your authority for your opinions?

    Judge James cites extensive case law from the Oregin Supreme Court that holds statutes, even by initiative, cannot limit the legislature's inherent powers in the constitution. There are real limits on the voters' exercise of the initiative.

    Do you know what they are?

    May I suggest you start with Kadderly v Portland 44 Or 118, 144-45, 74 P 710, 75 P 222

    BTW, Dean Huffman from Lewis and Clark is apparently not an indepenent expert commenting on Judge James opinion. He was apparently among the lawyers who helped draft Measure 37 and is defennding what has been widely criiticized -- with some justic -- as a poor drafting job.

    In other words, Dean Huffman is part of the problem.

  • Jelly Roll (unverified)
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    Yes -- Dean Huffman was on the Board of OIA's Legal Center for several years. He may still be.

    And the writing of: "Furthermore, the unwillingness of 1000 Friends to compromise on an escape hatch on land-use laws will end up bringing down the whole system."

    Look at the record. 1000 Friends agreed to several compromises, and OIA gives the no credit... Measure 7 and 37 compromises were on the offer from 1000 Friends, and OIA walked away from the table. 1000 Friends agreed to HB 3226 in 1995 which dramatically weakened protections for farmland outside the Willamette Valley. Time and time again, when reasonable proposals are put forward, 1000 Friends has signed off. But reasonable compromise cannot be framed as just cutting the baby in half again and again.

    Look at the history of over 30 years of our land use laws changing. Look at over 45 uses allowed in "Exclusive Farm Use" zones. If you're asking for a "compromise" -- be specific in what needs to be changed, rather than positioning.

    When voters are asked in focus groups on Measure 37 they don't by and large cite actual Oregon land use laws as examples of problems. They cite the Endangered Species Act, or a Wal-Mart that was allowed to be built (and they wanted to be paid for the harm from it), or the Beas' house in the Columbia Gorge.

    But I digress -- this posting is about a court decision about initiatives, and whether a government can be fiscally handcuffed by a law into not being able to act to protect the public welfare. Judge James said no. Others disagree.

  • PanchoPdx (unverified)
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    Already trying to smear the motives of Dean Huffman?

    I'm not surprised, but I'm having trouble coming up with a consistent message in all this spin.

    On one side there is the much-repeated position that M37 was written in crayon by a bunch of legal hacks.

    But on the other side, we are instructed to discount the critique of the M37 decision by one of Oregon's foremost legal minds (Lewis & Clark Law School Dean and Professor of Constitutional Law) because he may have had some influence in drafting M37.

    Doesn't seem like you can have it both ways.

    If Dean Huffman was really involved with drafting this then it the legal hacks theory goes out the window. If he wasn't, then there is no reason to sully his opinion.

    Either way, the insinuation that Dean Huffman offered anything other than his honest opinion on this decision is an unjustified swipe at the integrity of a widely respected constitutional scholar.

    Blue Oregon has some attorneys on its masthead. Why doesn't Marc Abrams or Anne Martens defend Judge James' reasoning rather than leaving it to the political cheerleaders of the group?

    Too bad Professor Bogdanski is no longer a contributor to Blue Oregon anymore. I'd be interested in his reaction to Sadler's swipes at the integrity of the Dean of his law school.

  • Ron Ledbury (unverified)
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    foxtro13 noted -- "Tom McCall and others proposed this system to protect farmers from subdivisions popping up next door and then attempting to curtail what the farmer is required to do to stay in business."

    Hum? That characterization would seem to identify a particular class; those current farmers that wished to continue to farm (at least until they grow old and pass on). The public interest was/is to prevent uncontrolled growth that results in increased public costs to supply urban level services to scattered developments; a process that only incidentally impacts the availability of farmland and the critical mass of people and services tailored to serve agriculture. You can't just skip over the need to hunt for a public purpose.

    No statute or constitutional provision can redefine the fact issue (contrasted with legal issue) that the highest and best use of land is correlated to increased land value. One can see this more clearly in the special reduction, for property tax purposes, for the owners of land that is used for farming. It is assumed, as a fact, that neighbors that are allowed to develop leads to the increase of the potential sale price of undeveloped but adjoining farmland. The tax man would thus increase the tax appraisals of the farmland, but for the exception, and then impose a tax that effectively forces the farmer to abandon farming due to the tax obligation that could not be met by continuing to farm.

    My grandfather, pre-SB100, thought that HE could sell to Fred Meyer and thus quit farming That surely doesn't take Posner-level knowledge of economics and law.

    The farm bureau folks were arguing, absurdly, against their interest in selling their land for a higher and better use, as measured by the price of the land.

    You need to make one more step in your analysis. There is a difference between viewing land as forever tied to the right to develop (but for some government restriction) and severing development rights from the land by treating them as merely a personal right. Suppose that the restrictions that accompanied SB100 (they where largely just "guidelines" BTW) were characterized as the transfer of all development rights, forever, from all land holders to the government.This recharacterization is consistent with the AG's freaky opinion on M37, adopting the notion that the right to develop is instead a mere personal privilege.

    Professor Huffman's objection to the judge's use of the term "windfall" recognizes the impact of the M37-SB100 debate as to the particular, and fleeting, set of folks that have been impacted. But that does not lead directly to the correctness of allowing the government to buy those development rights and then holding them as some sort of easement (or recognized discrete Real Property interest that can be filed in the county recorders office) instead of achieving land use goals though general laws that are applicable to all, on similar terms. In a phrase, Professor Huffman, is all wet too.

    The payment issue, as a distinct development right, that can be severed from the land itself is the very thing that would effectively redefine the nature of property. It goes to the heart of distinguishing public laws from private laws, otherwise known as legislation. The OIA folks were idiots to sponsor a plan to weaken the nature of property itself, by pushing for the option of payment in lieu of restoring development rights to those folks who had been restrained. Once that payment hurdle is understood and dispensed with, almost summarily, then one can view, in isolation, the selective removal of development restrictions upon one class of folks (largely outside of the UGB) but not to another class of folks (again largely outside of the UGB). I will never buy the argument that the date of transfer can be an event that fundamentally alters the nature of property between the private folks and the government. Rather, it is just a transfer of development rights between two private parties, quite apart from the "power" of government to alter the then-existing-restrictions on development. The OIA folks have apparently been infected with the same disease that some folks ascribe only to 1000 friends; that of attacking property rights through the personal sale of development rights.

    The judge reached the right result as to limiting the payment of compensation to a class of folks who failed to avail themselves of the then-existing right to seek to divide property. But that issue can and will be severed from the notion of selectively removing restrictions that have developed from 1973 forward. The selective removal was not an automatic thing in M37 but tied to a legal process to demand the removal. This is just plain weird, unless it is viewed as a lawyer's welfare scheme. M37 could have merely said the post-1973 restrictions are hereby waived, but only where there had been no intervening transfer. In which case, there would have been no occasion to include the option of payment in lieu of exercising such development potential. I must emphasize that it is the OIA folks that have adopted the notion, sort of like accretion, that government can bite into property rights a little at a time, through purchase, and that it is fully consistent with the AG's ludicrous opinion that development rights are personal rather than go with the land.

    Did SB100 transfer all development rights to government? To conclude that it did would smash the very definition of property.

    Again: http://en.wikipedia.org/wiki/Property

    Ironically, it is the progressives (as a proxy for Communist notions that there is no private property) who should, idealistically, allow for the incremental enhancement of public ownership, even if it means tolerating a meager bit of pay to current land holders to effectively remove such property from private ownership. But, the Progressives/Communists have already concluded that there is no private property that necessitates payment of any kind . . . thus the offensive term "windfall."

    Sadly, Professor Huffman's knee-jerk rant on the judge's decision is not a defense of private property rights either, because he appears to support the remedy of payment in lieu of the fair application of equal privileges and immunities to the restrictions placed on private property rights.

    Mr. Sadler is correct, to the extent that the bill of rights expresses individual rights. Expressions of majority will, as expressed through mere legislation, compete with the majority will necessary to support alteration of the state and federal constitution. But that is a process kind of argument and actually supports the notion of the protection of the superior individual property rights that are embedded in the constitution, and are designed precisely to limit legislation, as an expression itself of majority will associated with such limits.

    Panchopdx, is that satisfactory for supporting the result but not the reasoning of the judge's opinion? Left uncertain is whether all landholders should be given precisely the same waiver as that accorded to the class identified in M37. A recent purchaser that also wants to develop would argue that is does, and the absence of such an argument before th e judge is the very thing that makes the lower court opinion look like an advisory opinion because it lacks sufficient adversity to illuminate the full spectrum of issues. There are enough hooks for me to present an amicus and get it accepted. My Agricultural and Resource Econ degree and legal education would make me amply prepared to offer the court something that is in the public interest and in the interest of the court itself.

    foxtro13, Ed Sullivan thought my draft paper on Urban Reserves for Land Use Seminar was "Too Folksy." I take that to mean that it was not clouded by seemingly arbitrary works of legal fiction that are divorced from the prospect of resolving real world issues. The simple nugget I could offer is that development is merely delayed, but not stopped in perpetuity. I suppose that if the government did purchase a distinct development right then they could resell it for a profit later, or merely give such previously purchased development rights out to their preferred set of private clients (thus enabling them to extract huge campaign donations). My argument in the Urban Reserves paper noted that the big loser would be the lowly farmers. M37 is more about graft than it is about land use or vindicating property rights.

    I am just presenting the issues that I believe the Oregon Supreme Court would find are important to consider. You are free to form your own judgment about whether I am expert on the economic and legal issues presented.

  • PanchoPdx (unverified)
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    Ron asked:

    "Panchopdx, is that satisfactory for supporting the result but not the reasoning of the judge's opinion?"

    Not really Ron, but thanks for trying.

    Neither you nor Judge James builds an adequate case for overturning the retroactive protections of M37 under EPI (much less the entirely severable prospective protections).

    Since I know you attended law school, I'm certain that you are familiar with the "bundle of sticks" metaphor for property ownership.

    These metaphoric bundles are held by the (fee simple) owners of every property and each stick within the bundle corresponds to a right to use property. Those sticks may be separately bargained (or given) away by a property owner. Certain sticks are consistently recognized by the law: leases, easements tenancies, etc. Historically, whenever a government wanted to use its sovereign power to acquire a stick from the bundle of a private property owner it had to pay just compensation.

    M37 recognized that land use regulations (at least those not necessary to preserve public health or safety) have the effect of compromising many sticks in a property owner's bundle and should therefore trigger just compensation like any other taking.

    That M37 would treat persons who owned property before the government exercised its sovereign power to acquire certain sticks differently than from persons who bought property wholly without the expectation of those sticks should not be surprising.

    These are different classes of people: the first group lost sticks to the government, the second group did not.

    It strikes me that Judge James windfall rationale would make illegal providing any sort of public reparations to a group of people harmed by government action.

  • dmrusso (unverified)
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    -Kyle states, "I also would be in support of a law that says ballot messures passed by the votes trump any and all Oregon state Government powers and bodies."

    So, let me get this straight: (hypothetical) If a ballot measure comes up on the ballot that says that all gays and lesbians should be burned at the stake and those in support of it manage to convince voters that this law is just and it passes, then all gays and lesbians should be burned at the stake without any judicial review?

    The people... act as an adjunct to the legislature when passing ballot measures and amendments. They do not act as Judge, and Excutioner of the Laws.

    While this may be a quite extreme example, it is apt to the importance of the Judiciary. Anyone who does not understand that needs to do some reading.

  • dmrusso (unverified)
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    Please also read up on "Tyranny of the Majority". A Representative Democracy is supposed to have checks and balances to avoid one side totally dominating the other. You can learn about this in a basic political science or philosophy class.

    It is an ideal is imperfect, but without it we'd be far worse off.

  • Jesse O (unverified)
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    PanchoPdx claims that Huffman is "one of Oregon's foremost legal minds (Lewis & Clark Law School Dean and Professor of Constitutional Law)"

    The evidence that someone can run a law school does not make them a smart lawyer. Got other evidence?

    Huffman did attend Fletcher and University of Chicago, both good schools. But he's not even a member of the Oregon bar, or at least it's not listed in his bio... which lists him as a member of the Montana bar.

    What makes him an expert on Oregon Constitutional law? Or initiatives? Diddly. He's a wacko conservative ideologue who worked at the Heritage Foundation and has ties to OIA, not merely a disinterested observer.

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    two brief points:

    1) It seems to me that interpreting the ruling as preventing the ability of initiatives to curtail government power is off base. Were the ruling that, say, governments may not create zoning regulations to determine what may be built where, that's one one.

    But this is something different that James is saying. Her point is that M37 does not block the law; it simply blocks the government's ability to ENFORCE the law. It seeks to prevent the government from using valid zoning laws to prevent unwanted development. I feel as if certain people are conflating legislative power with police power. My interpretation of that part of the OC is that you cannot vest the legislature with the power to buy a fire hose, but then restrict their ability to decide when a fire is bad enough to necessitate turning it on.

    2) IMO Pancho lets his ideological slip show by using the word "taking" in reference to M37--when he surely knows as well as I that M37 has little to nothing to do with takings. The government is not taking ANYTHING from landowners; they are restricting ecomonic aggrandizement. And in any case, governments certainly aren't enjoined from takings--they are simply required to offer just compensation.

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    'that's one one.' should read 'that's one thing.'

  • foxtrot13 (unverified)
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    Torridjoe-

    Actually, in many states the scenerio M37 is addressing is considered a regulatory taking. There is substantial case law to support this concept. If you buy property that can be developed in a certain way and the state regulates your ability to develop it, taking away market-value, they have to settle it in someway if you sue.

    In most states though its like Oregon, you must show a total economic loss by the regulation in order to get a court to call it a taking.

    And I would also like to offer an update, I've been polling attorney's and law professors I know, turns out there are substantial issues with Judge James' opinion. Her "plenary power" argument is the weakest part of the opinion. I'll bet anyone here a case of PBR this section of the opinion goes down in big fat flames.

  • Ron Ledbury (unverified)
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    panchopdx,

    If the government holds a contract that represents the full bundle of rights, as to development, what is left of the value of the deed that is recored and sets out the boundaries of a piece of land? Nothing. The government would surely record such contracts.

    Suppose that M37 did not seek compensation for reduced development rights but rather made the government buy the whole property, inclusive of the pointless piece of paper that sets out the boundaries and the evidence of transfers and encumbrances. Who then would have value upon which to pay taxes?

    There is land that some people cannot even park an RV on without subjecting themselves to land use restriction based fines. Suppose a M37 claimant sought just the right to park an RV on the land for a month or two out of each year. This angle is posed specifically to be a demand that is less than a demand that represents the maximum possible highest and best use scenario. It would almost seem silly to not seek compensation based on the highest and best use, to take the money, and move on. This is a perverse incentive that fully distorts their choice of action (an economic kind of thing) if all they wanted to do was to occasionally park their RV.

    Let's cut out the equal privileges and immunities angle altogether.

    Suppose the M37 waive-or-pay demand applied to all land outside the UGB.

    Suppose the M37 waive-or-pay demand applied to all land outside and inside the UGB.

    I could wax philosophic on these two suppositions endlessly until they bring me back to the federal right to just compensation for land that is taken for a public use. Or I could merely note the pragmatic reality that the waive-or-pay thing, if applicable to all, is not financially sound. Which then brings us back to the simple notion of fair restrictions upon the use of land, or land use laws.

    The waive or pay thing simply works a violence on the very notion of property, quite apart from common land use laws. It divorces the right to develop from land -- all land -- and hands it off to the folks who get elected, and who are the very class of scoundrels against whom the constitutionally outlined individual rights exist to limit.

    The institution of property, and the linking of development to the land itself, is of much greater importance than one single initiative. If the OIA is the advocate of dismembering development rights from land, then that puts the OIA in a rather embarrassing philosophic bind.

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    whoa, Pacncho pdx!

    You almost had me convinced you were a lawyer until that last post.

    You'd be convicted of malpractice for that last post.

    Actually, in many states the scenerio M37 is addressing is considered a regulatory taking. There is substantial case law to support this concept. If you buy property that can be developed in a certain way and the state regulates your ability to develop it, taking away market-value, they have to settle it in someway if you sue.

    Not.

    In Oregon, as in most states and federal court, a taking occurs if government:

    1. Takes title to private property;

    2. Grants access to private property;

    3. or denies the property owner "substantial beneficial use" of private property.

    There are a lot of cases defining "substantial beneficial use.

    Dean Huffman belongs to a school of legal activists who thing that's not enough.

    They believe that government should pay business to enforce any regulation that "interferes" with their profits -- ranging from land use restrictions to the minimum wage.

    Their problem is that no court has really endorsed this extreme definition of "taking.'

    Measure 37 tries to use a statute to set a much lower bar for constitutional "taking."

    Judge James says, correctly, that oregon's high courts have not endorsed this extreme version of "taking." It isn't in the Oregon Constitution and, in any case, such a change takes a constitutional amendment, not voter approval of a mere statute.

    Well settled law, guys. Not controversial.

    i didn't suggest Dean Huffman lacked integrity. I said the newspapers that present hims as an independent , dispassionate legal scholar, instead of an interested participant, are either careless or lachk professional integrity.

    Since there are some poeple who are debating credentials on this blog, let me set the record straight on credentials:

    My degree is in journalism from the University of Oregon -- 1967.

    During my studies for a Master Degree in Public Administration i made special arrangements with the late Law School Dean Eugene Scoles to take some courses for credit at the UO Law School.

    I took Constitutional Law from Hans Linde, later an Associate Justice on the Oregon Supreme Court.

    I took Administrative Law from Dave Frohenmeyer, later Oregon Attorney General and now President of the University of Oregon.

    I took Labor Law from Don Brodie.

    I took State and Local Government Law from Ed Harms, former City Attorney for Springfield.

    And I took Legislative Drafting from Bud Titus.

    I am not a lawyer and make no pretense to being a lawyer. But I do speak lawyer -- which is why I write this stuff.

    I have served as a member of the Board of Visitors at the University of Oregon Law School -- one of the few non-lawyers to serve in that position.

    I also successfully sued the Oregon State Bar to make its disciplinary proceedings public.

    That precedent-setting case still defines the boundary between the Legislature's power to regulate the Judiciary and the Judiciary's constitutionally inherent power to regulate the practice of law, a 1976 case, still bears my name -- Sadler v. State Bar.

    For those folks who have written arguing any vote of the people ought to override the Oregon Constitution, I recommend reading Sadler v. State Bar. That case is one more precedent that explains why you and Dean Huffman have a bit of homework to do on Oregon law.

  • foxtrot13 (unverified)
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    Ron-

    M37 does apply to all land inside and out of the UGB. There are quite a few urban claims being brought forward where a city had curtailed zoning to reduce density or business usage.

    Here's a short post about a Portland claim in St. Johns (I used to live a block from this claim, its a dense neighborhood filled with new row-houses and older apartments). http://www.landusewatch.com/?adwords&paged=3

    Usually in these scenerios the city is fighting against a highest and best use for some other reason. You can't take the city's reasons at face value becuase its usually a pet project of a city commissioner or aesthetics debate. If a city wants to prevent development its costing them money up front regardless of paying the owner for lost value as they can't assess highest and best use on it.

  • Ed Bickford (unverified)
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    In addition to being arrogant ("I won't debate the legal reasoning in this decision with non-attorneys, it's a waste of time."), it seems PanchoPDX is insensible to irony.

    His "bundle of sticks" metaphor for property ownership is the very symbol of the fascist state! You know, the corporate propertied-class would-be-dictators' dream come true.

    His philosophy seems to be that the only value in land-use is the cash that can be stripped from it.

    It strikes me that Judge James windfall rationale would make illegal providing any sort of public reparations to a group of people harming government itself by their avarice.

  • PanchoPdx (unverified)
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    Sorry Ron, I'm usually a little more game to decipher your take on an issue, but you've lost me here.

    "....[T]he pragmatic reality [is] that the waive-or-pay thing, if applicable to all, is not financially sound...."

    That's a political judgment (not unlike the one issued by Judge James).

    The rest of your argument appears to be a neo-natural law critique of the relief granted to property owners under M37 wedded (unnaturally) to a utilitarian economic legal theory.

    Forgive me if I'm not able to make any more sense of it at this point.

    Torrid:

    My "ideological slip is showing" when I submit that land use laws under M37 can now rise to a taking?

    Well let me flash you a full frontal.

    1) If the ultimate sovereignty in Oregon is inherent in the people (check Art. I, Sec. 1 of the Oregon Constitution), and

    2) If the initiative power is a reservation of legislative power derived that source of sovereignty (check Art. IV, Sec 1), then

    3) The people of Oregon can define a "taking" any way they see fit.

    Why should a regulatory taking only exist if all the economic use is removed from a piece of property?

    If the people want to recognize a taking when half the value or a tenth of the value is removed, why isn't it their perogative to do so?

    Sadler:

    The post you attributed to me came from someone else.

    I don't want to take credit for it, although it is accurate.

    As to your other comments: although I keep my identity private in blogs, I will disclose that I've been an attorney in Oregon for a decade and I've never been sued for malpractice.

    You, on the other hand, have played the role of layman legal expert for Blue Oregon's spin purposes long enough, you are clearly out of your element.

    Here is a recent Oregon Supreme Court case that outlines when a land use regulation crosses the line to become a "regulatory taking".

    "As a general rule, regulation in pursuit of a public policy is not equivalent to taking for a public use, even if the regulated property is land. Regulation, however, can go too far and become tantamount to a governmental appropriation of property. Courts have employed different tests in attempting to determine when a regulation that reduces the subject property's economic value crosses that line.

    The foregoing test for regulatory takings looks to the owner's ability to use the whole parcel and asks whether the remaining interests have any economically viable use. of the Oregon Constitution, a court should consider a property owner's ability to use the whole parcel that he or she owns in determining whether the property retains any economically viable use." COAST RANGE CONIFERS v. STATE OF OREGON, 339 Ore. 136; 117 P.3d 990 (2005) (emphasis added).

  • Ron Ledbury (unverified)
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    panchopdx, I'll supply the missing deduction:

    The logical extreme of the legal acceptance of the waive-or-pay thing would make all land use irrelevant as it would instead be accomplished by contracts between government and any private party that had at one time held title to property. Every property would thus, at the extreme, have such a contract recorded, so as to assure that any new buyer has notice of such contract. The notice thing is the whole reason, by the way, for the 1973 break between classes. Mere notice of the government's assertion that all development rights are instead privileges necessarily vanquishes all private property. I call it encroachment into the arena of what I call rights that must be forever tied to land. (It would be an exception that could grow to swallow the whole, so to speak.)

    It is really, really weird. But not as weird as the OIA's failure to vet such an effect from their own initiative.

    Generally applicable laws pertaining to land use that recognizes that development rights are forever tied to land, not haphazard government contracts to separately buy development rights at a snapshot in time, but which face dynamic adjustments to government restrictions more effectively preserves the liberty interests associated with the existence of private property.

    If government held a contract for the development rights then they would not even need to go through the hassle of a "public purpose" inquiry, as they are already the real owner of the land, or rather the use of such land, subject only to the whims of a common owner as to potential uses. The courts are already loath to let any citizen challenge any judgment of an elected body. Read together, we have what is best characterized as anarchy. (I could inject a raft of pointers to concepts from a study of Comparative Economic Systems, but I would lose all readers but the econ geeks.)

    I would prohibit the government from entering into contracts that cover development rights as they are inalienable from the land itself (except as between purely private parties).

    Suppose the government obtained vast piles of such development rights contracts. Could they then act as little monopolists to change the so-called land use for such parcels to enable development? What if they simultaneously denied development applications to land for which they did not yet hold a development right contract? What if the State Treasurer said whoopee, the prospective exploitation of such government held development right contracts could be used as collateral for a whole new category of bonds? Do you want all our land to become managed just like PERS?

  • (Show?)

    Pancho:

    "As a general rule, regulation in pursuit of a public policy is not equivalent to taking for a public use, even if the regulated property is land."

    Well, glad that's settled. I assume you wouldn't stand on a table made of the phrase "tantamount to," either. :)

    In any case, your cite also indicates that the onerousness of land regulation is related to the ability to use the whole parcel--NOT to use the whole parcel as the owner sees fit, in violation of regulation. Can you farm on Dottie English's land? You bet. Can she sell it? You bet.

    Finally, regarding the right of Oregonians to declare a taking: I wasn't commenting on the theoretical suppositions of Oregon voters; I was commenting on your own use of the word to apply to situations that are quite clearly not literally takings, and suggesting that it gives a key indication as to your frame of reference on the matter. Which is OK--you're certainly entitled to your opinion--but I'm not ready to have you extrapolate it to either Oregon law or accepted legal parlance for this situation. I only wish I and others had been granted the right to their opinion by you, but your fairly typical "We've written the laws in code that you laypeople can't understand, so don't think you do" lawyer response makes it clear it wasn't so granted. For a minute, actually, I thought Jack Bog had stolen your login ID. :)

  • PanchoPdx (unverified)
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    Torrid:

    The case law makes clear that Oregon courts already recognize "regulatory takings" to include circumstances where government regulation has removed all viable economic use from a property.

    M37 essentially changed the "all" in that statement to an "a" (with exceptions for health and safety).

    As for my dismissiveness of laymen discussing legal opinions, I lack the patience to explain the framework of legal analysis necessary to understand the problems with this case to people who simply regurgitate "checks and balances" or "tyranny of the majority" references and pass them off as justifications for judicial activism.

    And make no mistake this decision is a result of activism. Her rationale will not withstand apellate scrutiny (even with oregon's political courts). I wonder if she'll still be on the bench by the time her decision is overturned.

  • (Show?)

    Pancho--I certainly follow your logic, but as you've established, "an" economic use is not what constitutes taking. It has to be "all," and as such M37 backers would be incorrect to frame the status quo as such.

    Regarding your defense of impatience: I hope then that you will continue to engage me, since I've not used either phrase. Assuming your continued grace, what is your response to the allegation that the 'violation of plenary power' argument concerns not the ability of Oregonians to enact or repeal laws, but the ability of Oregonians to tell government how to apply valid laws on the books?

    Finally, I'm cheered to see a local example of "activism" being equated with "a ruling I don't agree on." We must truly be a cosmopolitain bunch, if that spurious framing has filtered down to our humble local politics!

  • jesse O (unverified)
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    PanchoPdx: Your arrogance certainly betrays a legal training, but as they say, get two lawyers in a room and you'll end up with three opinions. So ease off on the "I have no patience with those who think this will be upheld." Certainly, lay people don't necessarily get all the legal principles. But then, neither do lawyers.

    The opinion is groundbreaking, but many lawyers believe it is pretty solid. I'd happily put money on it being upheld.

  • Ron Ledbury (unverified)
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    Panchopdx,

    "M37 essentially changed the 'all' in that statement to an 'a' (with exceptions for health and safety)."

    Just compensation does not split development from the owner.

    M37 divorces, via pay in lieu of waiver, all development from the land. The value of having one's name attached to a particular described property in the recorder's office has become about as valuable as having one's name placed on a brick in the middle of Pioneer Courthouse Square.

    Suppose the "a" above was a desire to park, and use, an RV on some farm/forest zoned land for about month each year?

    Suppose further that the "owner" accepted a M37 payment of 100,000 dollars because the government elected to make such payment rather than waive the restriction.

    My calculator does not contain a function to calculate the present value of a infinitely-long stream of payments (forever and ever) that would correspond to the value of the annual use for parking the RV. The functions don't have variables for dynamic levels of property taxation (like taxing the name on the Pioneer Square bricks). The functions don't have variables to accommodate factoring in inflation as measured by the official CPI.

    But I do know that at the outer limit there is the notion of the rule against perpetuities.

    ORS 105.950 through 105.975 provides in part:

    105.950 Statutory rule against perpetuities. [title copyrighted by the legislative counsel] (1) A nonvested property interest is invalid unless: (a) When the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive; or (b) The interest either vests or terminates within 90 years after its creation. [etc.]

    I could pretend I am like a PERS hired actuary and claim that I can see into the future 90 years with sufficient certainty to forgo the need for offering a guarantee on results or even suggest that the PERS trustee get a performance bond on my projections. I could now do the math based on some rental value, my 'a' use, even though it is far below the highest and best use as measured by an undisturbed market.

    When the 90 years are up then the development rights revert to some private entity, I just don't know who. But if there is no such limit, then we have a definitional problem. If the development rights (every last one, other than ceremonial claim of ownership) are a real property interest then the transfer is valid for purposes of the rule against perpetuities. If there is no such 90-year limit, and the personal contract for the development rights is declared to be permanent, then it is invalid at the outset. Hum?

    Apply the rule first to the "waiver" and then to the "payment."

    The AG says that for purposes of the AG's advocacy, which is tied exclusively to determinations of "good faith" for actions by government officials, that the "waiver" is personal. (Can I presume then that he envisions the expiration of the personal waiver in 90 years?)

    I say that the "payment" is personal, but invalid.

    Let's play Back To The Future and roll the clock ahead 100 years. Who are the ceremonial owners? There would be no living memory of the antics of the present government efforts to purge all private property rights (even by the confused folks at the OIA). Would the process of restoring private property look like Peristroika and/or Glasnost? [I am forced to insert wild jabs at folks like the OIA so that the OSB does not get all huffy and say that I am advocating for any particular party. While I'm at it, the OSB is always good for a jab too.]

    A constitutional law expert would know that freedom must be defended in perpetuity. The tendency is toward increasing concentration and centralization of control of stuff. Even speech, though that might be last on the list.

    Also see Chapter 128 — Trusts; Charitable Activities http://www.leg.state.or.us/ors/128.html McMillan v. Follansbee/Northern Trust Corporation http://www.publications.ojd.state.or.us/A116881.htm

  • country boy (unverified)
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    And now the really out there fringe folks headed up by Bob Ekstrom and the Constitution Party are mounting a recall effort in Marion County.

    As Bob Ekstrom says at the end of his rant "God Help Us."

  • Tom Steffen (unverified)
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    Chief petitioner for the Recall effort checking in:

    Greetings Blue Oregon,

    I still prefer face to face communication to the blogosphere, but I just dropped in to read what you've been posting. I'll read the thread tonight, and check back within a few days.

    If anyone wants to add anything other than the whole fringe/nutcase/rightwing/bible-thumping/angry/reactionary etc. hate game then I'll be glad to review it. Remember: tolerance is a virtue of the Leftcoast.

    Your neighbor,

    Tom Steffen near Silverton in Marion County, Oregon

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