Oregon Takings Amendment Overturned by Judge:

One of the common refrains I hear is that Kelo really wasn't that big of a deal, because citizens can simply act through their state legislatures or amend their state constitutions to regulate takings and just compensation. This assumes, of course, that citizens and legislatures can actually make their views known and enact them into law.

Well, apparently not in Oregon. Tom Blumer at Bizzyblog notes that an Oregon Judge has overturned Measure 37, which although not an anti-Kelo measure, had expanded the circumstances under which a landowner to require compensation when a land-use regulation reduce the value of an individual's property. The measure passed by a statewide 61%-39% vote.

On Friday, a judge overturned the measure as unconstitutional under Oregon's state constitution. Tom quotes one of the lawyers who brought the action to overturn the law:

I will put a couple of enlightened attorneys up against a million Oregonians any day, since the masses do not make right in this Republic, no matter how many you stack up against the wall!!

The state has said it will appeal.

It is not clear to me what kind of similar hurdles may be raised in states with respect to efforts to reverse Kelo via legislative activity, but this case suggests that hurdles indeed will be raised. It also suggests that the mere possibility that a particular decision by the Supreme Court might possibility be reversed by later legislative action may not provide a compelling argument for refusing to enforce a specific constitutional provision in the first place.


A reader sends in a useful comment:

I was upset at the opinion at first and almost blogged about it, but then I saw that the measure created two classes of land, a grandfathered class that got expanded property rights for compensation from regulation (including retroactively), and a non-grandfathered class that was ineligible for the expanded compensation. That may or may not be problematic, but the question appears to be more complex than one of property rights or no property rights.

I think the comment may be aimed more at the piece that I linked to then my riff on it. My simple observation is that the ability of states to craft a legislative fix for Kelo may turn out to be more difficult than assumed, even leaving aside the standard public choice problems that might prevent majority opinion from prevailing.

Drewsil (mail):
Does anyone know offhand what provision of the constitution could make such a measure unconstitutional? More specifically I can't understand why it would be unconstitutional for the government to pay more than strictly necessary for a taking?

10.18.2005 2:43pm
Daniel Chapman (mail):
Could be a problem with the state constitution.
10.18.2005 2:50pm
You think???

10.18.2005 2:59pm
Tom Caso (mail) (www):
I still need to dig a little deeper into the court's opinion (and the Oregon background law not cited in the opinion), but here is what I have gleaned from a first read:
1. The initiative violates the state constitution because it impermissibly intrudes on the police power of the legislative branch;
2. It violates the Oregon constitution's equal "privileges and immunities" requirement because it treats landowners differently based on when they acquired their property (this required the court to find that pre-regulation owners did not transfer their right to use the land that existed prior to the regulation to the new owner);
3. It violates the Oregon constitutional prohibition on suspension of laws ("The operation of the laws shall never be suspended, except by the authority of the legislative assembly.");
4. It violates the Fourteenth Amendment's Due Process Clause --
a) Procedural Due Process is violated because neighboring property owners who otherwise have a right under Oregon law to complain about how you plan to use your property have no right of review in a compensation proceeding (where the local government may decide to suspend the regulation in order to avoid the compensation requirement); and
b) Substantive Due Process because the neighboring property owners may suffer a loss of property value when the regulation is suspended for someone else, but continues to apply against their property (the court said no rational basis because the "compensation provision impedes the exercise of the plenary power.").

Tom Caso
Pacific Legal Foundation
10.18.2005 2:59pm
Master Shake:
Kelo still wasn't a big deal, and this doesn't affect it.
10.18.2005 3:09pm
Dave Hardy (mail) (www):
From the description of the legal basis given above (and in the linked blog reporting the case) this decision is ... a staggering display of "judicial activism." That's not a term I use lightly (too often it's used for "a Plaintiff's win that I dislike"). But cripes -- the people of a state vote that the state shall compensate (i.e., use *their* money) under certain circumstances, and the judge finds this violates a host of constitutional provisions??? The court apparently finds that the people's decision improperly invades the plenary power of their government???? This is indeed proof that, on any fact pattern, a court may issue any ruling (not that I needed any more proof of that, after 30 years of practice).

I wonder how plaintiffs even had much in the way of standing. They're asserting a supposed right of the government, not a right of their own, as to several arguments.
10.18.2005 3:17pm
Daniel Chapman (mail):
Thanks for that, gump...
10.18.2005 3:19pm
Antinome (www):
The opinion can be found here for those that wnat to read it
10.18.2005 3:20pm
SR (mail):
I might agree with you that this decision bodes ill for the body politic except that your presentation of the situation is so dishonest. For starters the quote from the anti-37 lawyer is probably made up. Tom Blumer does not quote the lawyer, rather he links to the Oregonians in Action website publicizing Measure 37, which contains the anonymous quote.

Further, Measure 37 is not about eminent domain and has only a tenuous connection to any of the issues raised in Kelo. Rather it is an anti-land-use provision that set up a ridiculously complex system to inhibit the use such ordinary tools of local government as zoning.

Whatever one might think about the Kelo decision, the debate that it has stirred over the government's power over local development has been a salutory example of democracy in action. Don't ruin it by being hysterical.
10.18.2005 3:41pm
Shelby (mail):
Having moved to Oregon this year, I've been trying to figure out the background on 37 (i.e., exactly what it's supposed to do). The press reports breathelessly on developments but gives no context, and I have to date been too lazy busy with other things (like the Bar application) to actually do the damn research.

The reporting on this decision has focused on the second of Tom Caso's points above, the disparate impact of the law based on when someone acquired the affected property. As he presents the rationales, that appears to me the strongest -- again, without much knowledge of the actual legal or public arguments that have been made.
10.18.2005 3:52pm
The logic of this post is flabbergasting. Measure 37 was not an anti-Kelo measure, but still, the fact that a judge, somewhere, overturned the results of a referendum on some non-Kelo issue because of constitutional defects means that maybe, somewhere, another judge will overturn the results of an anti-Kelo referendum, and this proves that Kelo was wrong to leave the issue to the states!

For the love of God, Prof. Zywicki. If a student made an argument like this, I hope you would give them no better than a C.
10.18.2005 4:11pm
Bryan DB:
Dave Hardy,
Not exactly judicial activism. The "people" tried to amend the Oregon Constitution by changing the definition of a taking, but without going through the Amendment process. They know that the Amendment process is the right way to go, because the earlier version of Measure 37 said: "Amends the Oregon Constitution..."
I'm happy the judge stood up to these folks. Judicial activism is when there's no basis in law for what the judge does (IMHO) and this isn't activism.
10.18.2005 4:11pm
Master Shake:

Sorry, you get a D.

You acknowledge that this was not an anti-Kelo measure, and merely state that because a state judge overturned a random referendum, this proves that the U.S. Supreme Court, interpreting the U.S. Constitution relying on U.S. Constitutional precedent in an unrelated case, was wrong. Steve, a million state judges have overturned a million laws that have violated their own state constitution. Does this fact make every decision of the U.S. Supreme Court where they have refused to find a state action unconstitutional under the U.S. constitution wrong?

I changed my mind, you get a D minus.
10.18.2005 4:26pm
I go back to the federal constitution that bans the govt from taking the property I own, unless for the public use.

This is not a complicated issue. Any 5th grader after a day of study would overturn this judge in an instant, given the chance.
10.18.2005 4:51pm
I guess you get an F, because that was not my argument, it was my paraphrase of Prof. Zywicki's argument.

My own view is that the action of this court in overturning the Oregon ballot measure was (1) probably correct, and (2) completely irrelevant to Kelo.
10.18.2005 4:52pm
Master Shake:

Correct, I get an F. Read your post wrong, sorry. You get an A.
10.18.2005 5:03pm
Gordon (mail):
Tom Caso states:

2. It violates the Oregon constitution's equal "privileges and immunities" requirement because it treats landowners differently based on when they acquired their property (this required the court to find that pre-regulation owners did not transfer their right to use the land that existed prior to the regulation to the new owner);

The problem was much greater than the "transfer of rights" issue. The measure, as written, gave two adjacent property owners wildly different rights. A rural landowner who bought her property in 1950 (or inherited the property from a relative who bought it in 1950) had rights to do anything allowed by local government zoning in 1950 (which was pretty much anything, since most local governments in Oregon didn't have zoning regulations in 1950). Meanwhile her neighbor, who bought his property in 2000, had to live by the local government zoning restrictions as of 2000, which in Oregon can be, as the Pacific Legal Foundation will undoubtedly tell you, quite severe.

The issue of "transfer of rights" unclear in the ordinance was the question of whether our hypothetical long-time property owner, once she validated her rights as of 1950, had the ability to transfer those rights to a new owner.

The measure won so big in Oregon I think primarily because of this particular provision, which was billed as a "fairness" issue for long-time property owners. Ironically, it's what killed off the measure in the eyes of the Circuit Court Judge.

But we'll see what the Oregon Supreme Court eventually says ...
10.18.2005 6:01pm
Gary McGath (www):
You're writing much too hastily. Please proofread.

The measure "had expanded the circumstances under which a landowner to require compensation when a land-use regulation reduce the value of an individual's property." Infinitive in place of present tense, and subject-verb number disagreement.

"It also suggests that the mere possibility that a particular decision by the Supreme Court might possibility be reversed..." Noun in place of adverb.
10.18.2005 6:34pm
Nobody (mail):
Zywicki, you're such a hack. Neither Blumer nor the site to which he links says that your first block quote comes from "one of the lawyers who brought the action to overturn the law."

Prof. Volokh has posted at least half a dozen times complaining that Slate's Bushism-of-the-day column never links to the sources of its hilarious quotes. Yet here you are criticizing a court decision that it took me about 30 seconds to find on-line. Do you link to the decision? No. You link to a short blog post discussing the 23 page opinion. Would you let one of your students get away with that?

Then you mention Kelo in your post, even though it has NOTHING to do with this decision. NOTHING.

I'm no expert on the Oregon constitution, and in any event, a court should not decide the constitutionality of a law based on whether it's a "good law" or a "bad law."

That being said, however, this strikes me as a shockingly bad law. By my reading, it would essentially prohibit (or make prohibitively expensive, which is the same thing) all land use regulation. Say you live on a leafy residential street, filled with 2 and 3 story homes, and one of your neighbors wants to tear his house down and replace it with a coal-fired power-plant. How will that fit into your cul-de-sac? Well you better get used to it, because the government has to either let him build it, or buy him off under Measure 37.

Measure 37 requires the government to pay "just compensation" any time any land use regulation "has the effect of reducing the fair market value of the property."

As those who hysterically opposed Kelo noted a few months ago, ANY property can be put to more valuable use if it is converted from a single family home to some commercial use. Thus, any restriction on commercial use of property, in any residential neighborhood in Oregon, is actionable under Measure 37.

This, my friends, is retarded.
10.18.2005 7:23pm
Mark Rose:
If anyone is interested, here is a link to the Oregon state website regarding this measure:

It has caused quite a stir here since passage.
(I could not figure out how to create a "live" link)
10.18.2005 7:41pm
David Sucher (mail) (www):
I can't quite see where you get to "...the ability of states to craft a legislative fix for Kelo may turn out to be more difficult than assumed.."

Why so? What is the legal difficulty with narrowing the definition of "public use?" Or even adding -- when it comes to blight -- a "least intrusive means" test?
10.18.2005 8:28pm
Lest there be any confusion about the point of this post, Prof. Zywicki's newest tack is to point out all the ways in which it is hard to get a law passed. This point is apparently intended to support a policy argument that the Supreme Court should take the issue out of the hands of voters and their elected representatives altogether, because it's so goshdarned hard to pass a law. This doesn't go for every issue, obviously, just this particular one.

Tomorrow we may see a post about how an Indiana bill regarding sewage treatment plants got bottled up in committee for months, the punch line being "it is not clear whether similar hurdles will interfere with legislative attempts to counteract Kelo, but that might well prove to be the case." This would be no more absurd than the present post.
10.18.2005 8:44pm
David M. Nieporent (www):

That being said, however, this strikes me as a shockingly bad law. By my reading, it would essentially prohibit (or make prohibitively expensive, which is the same thing) all land use regulation.

Wrong! It doesn't change the cost of land use regulation at all. What it does is change who pays those costs. What it does is say that the costs of restrictions on property rights must be spread evenly, rather than being put narrowly on a few people.

This, my friends, is retarded.

Shockingly, the world survived for millions of years (thousands of years, for you Creationists out there) without zoning laws.
10.18.2005 9:05pm
I was surprised by this decision because of the obvious question: why can't the legislature (here, the people themselves) say we want to statutorily provide Takings-like protections that are broader than the Takings Clause itself has been interpreted? Putting aside the wisdom of the legislation as a policy matter, and without being familiar with any idiosyncracies of the Oregon Constitution (the court's opinion suggests the tests and standards at issue here are generally similar to federal), the court's analysis seems to be thinly reasoned and flawed.

The opinion is at

1. The Court says Measure 37 intrudes on the legislature's plenary power. How exactly? In what sense does it tie the legislature's hands in the future? Wouldn't it remain within the legislature's power to repeal it, or scale it back, or carve out an exception if they passed a new health/welfare law that they thought should trump Measure 37? Suppose instead of doing it all at once in Measure 37, the legislature instead took the approach of amending each land use statute individually to include Measure 37-like limiting language. Presumably no one would argue that doing it incrementally like that, engrafting limitations on statutes individually, violates their own plenary power. So what's wrong with doing it more efficiently in one fell swoop? In footnote 5, the court puts the question accurately: "whether a legislature may, in effect, preempt itself." No, it can't, but not for the reason the court gave -- that it's unconstitutional to legislate in a way that affects other legislation -- but because it makes no sense to talk of a legislature "preempting" itself when a future legislature can always change course.

2. The Court said Measure 37 violates the equal privileges & immunities clause, which appears to be akin to federal equal protection analysis. The court applied rational basis review, which is supposed to be extraordinarily deferential, but held that the distinction between pre- and post-owners was not reasonably related to any legitimate state interest. But isn't the logic behind the distinction obvious -- people who bought their property after it was already encumbered by a regulation aren't in a very sympathetic position to complain about it devaluing their property? I thought there was a concept of "nonconforming use" that runs throughout land use law, i.e., it's common for zoning to allow nonconforming uses if they were ongoing prior to when the zoning went into effect. Nobody says that violates equal protection. Why does it flunk rational basis review to incorporate a similar concept in Measure 37?

3. The court says Measure 37 violates the suspension-of-laws clause, "The operation of the laws shall never be suspended, except by Authority of the Legislative Assembly." This is just a gratuitous rehashing of the privileges &immunities holding; the court essentially says this could be an OK suspension because it was indeed by authority of the legislative assembly, but the fact that it's unconstitutional for other, extraneous reasons makes it flunk this clause as well.

4. The court says it violates the separation of powers as an improper delegation of legislative authority but this is another "gimme"; the court just recycles its privileges &immunities analysis.

5. The court says Measure 37 violates procedural due process and substantive due process under the US Const. I believe a full and complete analysis would have started with addressing whether the adjacent landowners possessed a cognizable "property interest" in having land use laws enforced against others in the vicinity of their property. I think the answer would be no, under the long line of cases saying there's no property interest in enforcement of laws, see, e.g., last term's Castle Rock v. Gonzalez. The court fudged this issue by just taking ownership of the real estate as the relevant "property interest" in question. Of course, it's more than a little ironic that the court would read the Due Process Clause so expansively in favor of adjacent landowners, to strike down legislation the public adopted because of discontent over how narrowly the same clause has been read in the cases of the landowners actually affected by the regulations.

And, on substantive due process, the court again takes the intellectually lightweight approach of simply falling back on its other holdings, i.e., it concludes that the statute violates substantive due process because there's no good reason for the statute because, remember, it intrudes on the legislature's plenary power. So it's like a constitutional house of cards, with one flimsy holding propping up another.

The Measure may be demagogued, populist, bad public policy, all that, but the constitutional analysis in the Oregon court's opinion just doesn't withstand scrutiny.
10.18.2005 9:39pm
Nobody (mail):
David Nieporent,
The world survived for billions of years without highways, smoke-belching factories, and six billion + people.

If the argument is that there shouldn't be zoning laws of any kind, you and your ilk should present that argument frontally and debate it on the merits. I take it that if Measure 37 had been presented to the voters of Oregon as "An Act to Abolish All Zoning Laws," it might have faced a different reception at the polls.
10.20.2005 10:52am
David M. Nieporent (www):
I can certainly argue that there shouldn't be zoning laws -- but that's a different law than the one in question, so there's no surprise that it might have faced a different reception at the polls. This law simply says that compensation is required.

And it doesn't do it interpreting the constitution to require it; it does it by statute. And still activist judges interfere.
10.23.2005 5:38pm
Craig Tindall (mail):
There is a very interesting law comment written by a law student at Florida Coastal, Lance Eric Neff, addressing the interpretative power of the court. It is titled "The Keys to the Kingdom: Interpretive Power and Societal Influence During Two Ages". It's available on SSRN.
12.15.2005 10:24pm