Latest on Oregon Takings Initiative:

A couple of months ago, I noted that Oregon's Measure 37 , an initiative that was passed with 61% vote last year, only to be struck down by a state judge under the Oregon constitution. Kimberly Strassel has an update on the situation--including efforts by Oregonians to recall the judge who decided the case and other efforts to intensify scrutiny over judicial elections.

As a big picture matter, there are obviously plenty of interesting questions here about the balance to be struck in elected judicial systems between judicial independence and judicial accountability. This is especially so in light of the fact that Measure 37 was adopted by an overwhelming majority in a popular initiative and does not appear to have the intent or effect of injuring any identifiable minority of the population. Moreover, given the public choice problems inherent in getting governments to tie their own hands (such as is the case here), it is questionable whether there would be any other practical way to bring about this popularly-desired reform without adopting it by initiative.


Ben Barros's link to this post alerted me to another post of his, which mentions a forthcoming article that analyzes Measure 37.

Hmmm ... as I understand it, the grandfathering aspects of the measure may well have the intent and effect of injuring an identifiable minority (or perhaps diffuse majority) of the population. As, if the measure was invalidated because it was unconstitutional, then the alternative remedy is a constitutional amendment.
12.15.2005 8:43am
Dan Cole (mail):

Your presumption that public choice makes it difficult for legislatures to "tie their own hands" is difficult to square with (1) takings legislation adopted by several state legislatures, (2) theories of positive political-economy that predict political bodies would substantially protect private property rights, and (3) English legal history. Under England's unwritten constitution, Parliament never has to pay compensation for any taking, and yet it virtually always does. Why is that? I have a paper on this subject at SSRN: "Political Institutions, Judicial Review, and Private Property." It will be published in 2007 in the Supreme Court Economic Review.

Best regards,

12.15.2005 9:26am
truetanus (mail):
In Short

Kelo was so bad I dont think you could come up with any Kelo law that wouldnt be better then Kelo. We should do whatever it takes to end Kelo. I will spare the tedious repetitions of why Kelo was a tragedy for the law. Living in Missouri Ive experienced the best of all judicial selection systems. Lets hope Oregon comes to their senses and upholds measure thirty seven
12.15.2005 9:38am

But as far as I can tell, Measure 37 isn't a "Kelo law", because it doesn't have anything to do with defining when the state can take property.
12.15.2005 10:24am
Gordon (mail):
does not appear to have the intent or effect of injuring any identifiable minority of the population

One of the most outrageous aspects of this so-called property rights measure is that its proponents claimed that neighboring property owners injured by a Measure 37 claim waiver had no right to sue the offending property owner.

In other words, if my neighbor under Measure 37 got permission to place a rendering plant or a tavern on a residential property next to me because he owned it since before zoning laws went into effect, I would have no right to sue for lost property value.

In other words, the Measure 37 sponsors are rank hypocrites.
12.15.2005 11:32am
Steve Plunk (mail):
Measure 37 is a "regulatory" takings law. If a property owner loses a portion of the value of his property then the government (state, county, city) must compensate the owner or waive the regulation. This only applies to non-nuisance types of regulations.

The application of the law would also only help those who owned the property before the regulation was enacted. You can't buy the property already encumbered and then seek relief.

The judge used the idea that it prevented the state from creating and enforcing a regulatory scheme that would be good for the state (government?) as one of her objections.

First we voted for a constitutional amendment which was thrown out, then we voted in this statute and now look. The frustration of people in Oregon is growing by the day.
12.15.2005 11:33am
bud (mail):
For those who want to read it, here's the link to the actual order and opinion:

The part that gets me is this phrase:
"Thus, if Measure 37 prohibits the legislative
body from exercising its plenary power to regulate for public welfare, health, or safety, it is an
unconstitutional curtailment of legislative power."

IOW, the initiative process is a complete joke, since it can create new law only in areas that the legislature has ignored. Like we're going to see a statewide initative to name a state flower... ooops, nope can't do that, the legislature's already named one.

The Snoregonion had a piece on the Judge who issued this nonsense, and it seems that she aimed her entire career at being a Judge, for whatever that tells you. She is also reportedly surprised at the recall effort. I hope she actually paid attention in those classes about drawing up wills, because it looks to me like she's going to be back in private practice soon.

eamil is human readable - aloud
12.15.2005 11:38am

Although wasn't one of the issues the fact that rather then compensating such an owner for the value lost at the time of the regulation, Measure 37 would require "compensation" based on calculating the current value of the property if the regulation could not be applied to just this one property owner? That does seem to get it backwards: you are getting the value gained by becoming an exception to the regulation, rather than the value lost when you became subject to the regulation.

And that framework ignores the injury done to all the other people who are not entitled to become an exception to the regulation under Measure 37. In other words, Measure 37 itself is going to act like a "regulatory taking" on a wide scale.
12.15.2005 12:11pm
David M. Nieporent (www):
In other words, if my neighbor under Measure 37 got permission to place a rendering plant or a tavern on a residential property next to me because he owned it since before zoning laws went into effect, I would have no right to sue for lost property value.
This is false. Measure 37 doesn't speak to the right of one property owner to sue another under the common law doctrine of nuisance. And, in addition, it explicitly preserves the power of the government to regulate activities that would be recognized as nuisances.

It doesn't allow you to sue the government or an adjacent property owner under a general unspecified "my property is worth less" theory, because there's no such cause of action, any more than a retailer can sue his competitor for outcompeting him and thereby taking business from him.

IOW, the initiative process is a complete joke, since it can create new law only in areas that the legislature has ignored.
The first problem with her "if" is that the measure doesn't do that, since it explicitly doesn't apply to public health and safety measures. The second problem is that your statement isn't strong enough; under her theory, even if the legislature "has ignored" the area, it still possesses the power to legislate in that area, so therefore the initiative would be illegitimate. Her theory would mean that only "positive" initiatives -- we want to spend lots more taxpayer dollars to build an X (bridge, airport, stadium, public daycare system, etc.) -- are allowed. Initiatives which forbid the government from doing something would always be prohibited.
12.15.2005 12:12pm
Bryan DB:
it's funny that you repeatedly mention that Measure 37 must be fine because it was passed by an overwhelming majority of voters. in general, constitutions exist to protect the minority from the whims of the majority, when those whims violate protected rights. Your "most people liked it" argument doesn't wash.
Second, there are all kinds of great things wrong with this law. The rhetoric above all sounds dandy (and I agree with some of it), but lots of the "good sounding rhetoric" is contrary to law, which is rather unfortunate when you're in front of a judge.
The voters can recall this judge, but then they'll just get another one who will rule the same way. And they can recall that one, and the same thing will happen. Maybe one day they'll get a judge who sees it their way, but then they'll lose at the Court of Appeals. And on, and on. Their problem isn't with the judge, it's with the poorly-defined law.
12.15.2005 12:23pm
Gordon (mail):
David, what you say about nuisance law is completely logical.

It is also completely counter to what the proponents of Measure 37, Oregonians in Action, started spouting when the possibility of such nuisance suits was raised. They actually had the gall to say that the property owners devalued by a neighboring Measure 37 claim should actually sue the local jurisdiction forced to grant the waiver!

Despite the stupidity of Measure 37, I disagree with Judge James - it is not unconstitutional. My guess is that the Oregon Supreme Court will reverse her. And we will see the deterioration of the Oregon landscape, and Oregon agriculture, as a result. But those are policy issues, not constittutional issues.
12.15.2005 12:38pm

I find the legislative self-limitation issue very interesting. As I understand it, according to the judge, under Oregon law a limitation on future legislation must appear in the state constitution, rather than in ordinary legislation. And since initiatives are classified as ordinary legislation, they cannot be used to impose limitations on future legislation.
12.15.2005 12:38pm
Zywicki (mail):
I see your point and you may turn out to be right in the end. As I noted a couple of weeks ago, however, despite the public outrage about Kelo (an analogous situation) there has so far been little concrete legislative action around the country, and those states that have acted done so with weak and loophole-ridden exceptions. So despite the rhetoric so far, I have seen little evidence that state legislatures have been willing to tie their hands in any meaningful way.

Significantly, in California (where there is hope for a more effective restriction) the anti-Kelo proposal is by ballot initiative, rather than proposed by the legislature (as in the states that enacted the weaker rules).

Perhaps I will be proven wrong on this—and I certainly hope I am!—but so far the public choice model seems to explain what is going on so far.
12.15.2005 12:43pm
David M. Nieporent (www):
BryanDB: I am certainly no expert in Oregon law (I once visited the state, though), but some of the judge's holdings are so fanciful that I can't believe they're valid. She claims, in effect, that the fact that the government chooses to spend money on X creates near-universal standing to challenge that decision, because a decision to spend money on X means that the government has less money to spend on Y, and one might benefit from Y.

She further claims that a lobbying group has standing to challenge a measure that restricts government regulatory power because that lobbying group wants the government to regulate lots of things, and if the measure passes, then government won't do so, so fewer people will be interested in belonging to the lobbying group.

Those do not sound like legal decisions, nor do they sound like problems with the so-called "poorly-defined law"; they sound like political statements masquerading as legal decisions.
12.15.2005 12:45pm

My recollection is that one can have "taxpayer standing" in federal courts as well for constitutional challenges when the governmental entity in question is local (versus when it is the United States government). Of course, all this is a matter of prudential standing at the federal level, and Oregon could well have a more generous standing doctrine (either prudentially or constitutionally).
12.15.2005 1:07pm
Bryan DB:
David N.,
I agree that some of what the judge says sounds fanciful, but the problem for the Measure 37 proponents is that much of what she says is *not* fanciful, especially regarding equal protection and due process.
As to the standing issue, I agree it sounds a little odd, but in Oregon the requirements for standing are less strict than they are on many other state levels. In Oregon, to attain standing a person must usually just show that they are "adversely affected or aggrieved." Such a standard is purposefully favorable to environmental groups.
Another problem that I think might come up, and which I haven't seen addressed, is the provision in Article IV, Sect. 24 that no act shall ever be passed "making compensation to any person claiming damages against the State."
Anyway, I think there are all kinds of legal problems with Measure 37, so the more times it goes down in flames in the courts, the happier I am. In case there were any question about my feelings on the subject. :-) I'm sure I could spend all day picking apart its provisions, but that's not the kind of law I get paid work with.
12.15.2005 1:08pm
David M. Nieporent (www):
Another problem that I think might come up, and which I haven't seen addressed, is the provision in Article IV, Sect. 24 that no act shall ever be passed "making compensation to any person claiming damages against the State."
The judge addressed that provision and rejected the plaintiff's claim. I haven't read the provision, but if I'm interpreting her decision correctly (and if she's ruling correctly), that provision means that the legislature can't provide for "recovery by special act," not that the government can't waive sovereign immunity for a type of suit.
12.15.2005 1:55pm
Bryan DB:
I saw the portion to which you refer, but the judge didn't address the part of the section I was thinking about. Here's the text: "Section 24. Suit against state. Provision may be made by general law, for bringing suit against the State, as to all liabilities originating after, or existing at the time of the adoption of this Constitution; but no special act authorizeing [sic] such suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed.—"
The portion of the complaint which the judge addressed relates to the first part of Section 24, allowing the State to set up new liabilities. I was thinking of the last provision, which would seem to be contrary to Measure 37's award of fair market value to any person claiming damages. It may be that it's not applicable, which is why it's not in the opinion or complaint.

But hey, I didn't stay at a Holiday Inn Express last night, so I might be a little rusty.
12.15.2005 2:21pm
David M. Nieporent (www):
Bryan, I interpret (again, based on no background information at all) that provision to mean that the legislature can't award compensation to a specific individual, rather than saying that the legislature can't create a compensatory scheme of general application.
12.15.2005 3:00pm
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