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.
Update:
Ben Barros's link to this post alerted me to another post of his, which mentions a forthcoming article that analyzes Measure 37.
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,
Dan
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
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.
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.
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.
http://www.ojd.state.or.us/mar/documents/OpinionOrderMSJ.pdf
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
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.
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.
Bud: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.
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.
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.
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.
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.
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.
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).
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.
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.