9th Circuit Upholds Measure 49

By Brian Hines of Salem, Oregon. Brian describes himself as "a progressive blogger who has been involved in Marion County land use issues for some time." He typically blogs at Hines Sight. Previously, he contributed "Marion County charter change loses, but isn't lost"

It's laughable how right-wingers will decry "judicial activism" until they don't like a law passed by a vote of the people. While Measure 37 supporters decried it when a judge initially blocked the measure's application, the same supporters begged a federal judge to undo what democracy produced when Oregonians voted in Measure 49.

Last week, a three judge panel of the 9th Circuit Court of Appeals reversed a lower court decision in a case that affects over 7,500 Measure 37 claims throughout Oregon.

Sixty-two percent of Oregon voters approved Measure 49 in 2007, which saved our land use laws from being decimated by the meat-ax of Measure 37. Then a group called Citizens for Constitutional Fairness filed a lawsuit in Jackson County -- arguing that waivers of regulations allowed by Measure 37 were contracts between the county and landowners that couldn't be broken.

In 2008, federal District Court Judge Owen Panner agreed with the plaintiffs, producing what has been called "a collective forehead slap among land use attorneys." Panner himself must have had second thoughts about his ruling, because he put a stay on it after an appeal was filed in the 9th Circuit Court of Appeals.

In a blunt memorandum opinion, a three judge panel of the 9th Circuit rejected the case brought by Measure 37 claimants and the newly-formed, self-anointed group Citizens for Constitutional Fairness (which is part of the Jackson County Tea Party movement), who demonstrated their ill-founded constitutional theories by citing a case from 1927.

This is a big slap on the cranium for the folks who appear to simply believe that the constitution says what they say it says. It only took the panel one double-spaced page to reverse Panner's original ruling, ending with:

Indeed, the waivers disavow any promise to the property owners: “Jackson County does not promise Claimant(s) that Claimant(s) will eventually be able to put the property to any particular use.” ER-63-7. Because there is no contract, appellees fail to state a Contracts Clause violation. Nor does Measure 49 implicate separation of powers doctrine. The waivers were administrative decisions, not court judgments.

Great news for Oregon.

Public interest environmental attorney Ralph Bloemers of the Crag Law Center represented local citizens and landowners in an appeal of the lower court ruling. The 9th Circuit agreed with the arguments presented by Bloemers, who joined with Jackson County counsel to obtain the reversal.

When the opinion was announced on July 20 he talked about what it meant for our state.

One of the many [Measure 37] claims involved in the suit proposed a large destination resort next to the Cascade Siskiyou National Monument. Other claims proposed developments on farmland in the Applegate River, on forestland along the Rogue River and were spread throughout Jackson County.

If the ruling had been upheld, the State’s land use system would have been in disarray. Over 7,500 claims were filed under Measure 37, and the ruling threatened to re-instate all of these claims despite the passage of Measure 49.

Not to be deterred from their unwavering faith and belief that they know what the Constitution says, the so-called Citizens for Constitutional Fairness are not going to let a fairly conservative panel of the 9th Circuit deter them from throwing more of their money after a hopeless cause.

Reportedly the plaintiffs are planning to ask the 9th Circuit to rehear the case or try to beg the U.S. Supreme Court to do so. The one-page slap down doesn’t suggest the odds are good for them.

Nor does the fact that the three 9th Circuit Court of Appeals judges who dismissed Panner's ruling in a mere twelve lines were all appointed by Republican presidents: Chief Judge Alex Kozinski was appointed by Ronald Reagan; Judge Andrew Kleinfeld by George H.W. Bush; Judge Sandra Ikuta by George W. Bush.

The 9th Circuit may have a reputation for being a hothouse of political liberalism, but perhaps every citizen should consider this:

We must avoid being knee jerk reactionaries who simply respond to the results of legal opinions rather than actually taking the time to read them or understand how the law works. In my view, the rule of law is effective in helping temper the influence of personal politics in our court system.  I am not naïve about how the judiciary has been politicized, but I prefer to avoid using the label judicial activism.

The three judges who affirmed the constitutionality of Measure 49 and rejected the legal claims made by Citizens for Constitutional Fairness cannot fairly be criticized for exercising their judicial power.

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    No dog in the fight. However it is not without a wry grin that I note the 9th circuit is the most overturned of all the circuits. I believe they beat all of the others combined.

    Agree that the term, judicial activism is overused.

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    Brian - thank you for your thoughtful analysis of this decision.

    Kurt, since when has the oft-repeated statistic that the 9th is the most "overturned" of all circuits been measured? How useful is this statistic? I have never seen it verified - to me it is just lore - a generic statement that people make to impugn results people do not like without making any effort to look at the substance of the case or to actually look at the record of the particular three judges on the panel.

    Adios, Ralph

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