Oregon Supreme Court Reinstates Measure 37:

I few months ago I noted that an Oregon trial judge invalidated Oregon's Measure 37 unconstitutional under the state's constitution. The Measure, enacted by referendum, expanded the circumstances under which landowners could seek compensation for Takings when government regulation reduced the value of their property. Geoff Manne reports that the Oregon Supreme Court has now weighed in and reversed the lower court, holding the Measure to be constitutional.

The opinion is here.

Steve Plunk (mail):
A common sense ruling to uphold the initiative power of the Oregon voters.

The trial judge's position that the measure violated the plenary power to legislate was interesting. The Supreme Court pointed out clearly that the legislature shares power to legislate with the people of Oregon through initiative and referendum. A welcome surprise.
2.21.2006 4:24pm
snowball (mail):
Seems like a perfect example of Holmes's saying, "If my fellow citizens want to go to hell, I will help them. It is my job."

The law may be a bad one, but that's not sufficient reason to 'gin up spurious reasons to invalidate it. Voters should be made to live with the dunderheaded laws they enact. Once they realize the stupidity of Measure 37, they can either live with the consequences or repeal it.
2.21.2006 6:31pm
I think the trial judge's ruling was more that initiatives that he disagreed with violate the legislature's plenary power. There has been several movements in both Washington and Oregon to try to restrict or abolish the initiative because of the people misusing them to pass laws that the legislature doesn't want. There have been several initiatives struck down in Washington because of very narrow readings of the "single subject", including one (that was reversed) because the preamble discussed the motivation behind reducing the car tab tax.

This is off topic, but is germane to Kelo, the Wash. Supreme Court ruled last week that a web posting was sufficient notice that a hearing would be held to sieze land for a light rail project. They also ruled that once the hearing was held the couple had no right to have a judical review of the siezure.
2.21.2006 6:45pm
J Hoffa (mail):

Why do you think M37 was bad law? SB100 which M37 just finalizes was bad law. The people spoke (61% of the voters or 1 million plus) thank you.

Once again the obvious must be pointed out. That the purpose of a Democracy is to protect the majority from a minority. In this case it was the majority of Oregonians who were tired of centralized bureaucrats and nimbyesque environmentalists who wanted their space/view shed at the expense of their fellow citizens' property rights.

As well, Kazinski makes my point about the "people" doing what the legislature doesn't want.

The fact of the matter is, liberals and their causes can't win at the ballot box, in the legislature/congress or in the court of public opinion. Therefore they turn to the judiciary to enact their agenda.

Finally, they are being defeated as common sense and the rule of law is correctly applied.
2.21.2006 7:17pm
Bryan DB:
J Hoffa,
Your response was misguided on many levels. I'll just point out a few:
M37 is bad law because it will bankrupt Oregon; alternatively, it will turn Oregon into an overdeveloped wasteland.
Democracy is not there to protect the majority from the minority; it's quite clearly the opposite of your sentiment.
Liberals and their causes do, quite often, win at the ballot box. Here two from Oregon's neighbor: a retention of the gas tax, which many conservatives would happily have discarded, and a nearly-complete ban on indoor smoking.

In this particular case (M37), I'll happily predict that this Measure doesn't last more than a couple election cycles, as most citizens start seeing the law of unintended consequences come into play.
2.21.2006 7:40pm
KeithK (mail):
Democracy is most certainly *not* designed to protect the minority from the majority, as Bryan suggests. Democratic rule means that the will of the majority is enacted. From

Main Entry: de·moc·ra·cy
1 a : government by the people; especially : rule of the majority

We have constitutional limits on democratic power in order to protect the minority from the majority. But this is a different thing.

As for whether Measure 37 is bad law or not, I'm not sure. I totally agree with the sentiment - the government should not make your land valueless by passing laws or regulations. This law may end up being a rather blunt instrument, however. We'll see.
2.21.2006 7:53pm
Sure M37 is a blunt instrument, it was basically the voters thowing a tantrum and breaking a bunch of crockery and then telling the legislature to clean it up. That's a good thing. That's how we got the Three Strikes laws. Now once the legislature cleans up the mess and crafts a workable solution that doesn't make property owners think they are endangered, and make non property owners think they'll never be able to afford property, then maybe the voters will rethink put in something slightly more reasonable.

We need for the lawmakers in this country to be looking over their shoulders worrying about who they are pissing off, and wondering what they are going to do about it.
2.21.2006 8:19pm
Surely everyone understands we don't live in a big-D Democracy, right?
2.21.2006 8:32pm
Kazinski---------That is worse than Boss Hogg in Dukes of Hazzard.
2.21.2006 8:54pm
Kazinski seems to feel that the people would be better off if they'd just shut up and let the enlightened legislators do their holy work. The less polite form: the people should shut up and do exactly what the legislature says without complaint.
2.21.2006 10:05pm
No, you've got it exactly the opposite, I think that the voters should throw tantrums when they get pissed off. If voters passed something well thought out and well balanced the legislature would never figure out how pissed off they were. When something as extreme as M37 gets voted in with a huge majority then it really gets the legislatures' attention, and they are so busy figuring how to mitigate it that it will keep them out of new mischief.

Same thing in Pennsylvainia where the voters threw out a supreme court justice because of the pay raises the legislature gave the ruling classes. It wasn't completely fair, but it sure got everybody's attention, and they recinded the pay raise.
2.22.2006 12:39am
snowball (mail):
Shorter Kazinski:

Mob rule rules.
2.22.2006 1:17am
pdxnag (mail) (www):
The so-called supporters of property rights that pushed M37 inverted the whole notion of property to convert it all to a personal contract, one for which no one matches against the inherent and as yet unresolved conflict with the rule against perpetuities.

Apply the sellout that is authorized in M37 for a few to all Oregonians, via individually negotiated contracts, then ask what is left of property rights other than the ceremonial remnant of ones name on some historical document.

Speaking of alienation as a key and essential feature of any description of property, is the contract for development rights that are purchased by the government a document that can then be resold to a third party, a private party? If it itself cannot be traded then it is not property and thus cannot have a market determined value. Its' sale to a private party would then place two private parties against each other, one as the old owner with no remaining development rights, as they were sold to the government, and the purchaser from the government of the development rights, as a commodity, that was earlier sold. The very simple notion that development rights are inalienable from the land itself in perpetuity is placed at risk by the clowns at the Oregonians In Action that are the pretenders . . . pretenders as much as in a silly Archie cartoon.

Prof. Huffman . . . feel free to respond here . . you participated in drafting it.
2.22.2006 10:58am
Steve Plunk (mail):
I'm not sure how many of the posters live in Oregon and have seen the results of it's land use laws. SB100 was something of an experiment that has been screwing up the state for years. Not only are property owners getting the short end but things such as transportation planning are fouled up by the rules that do not permit roads through farmland, even though it may be the best route and best choice for a community.

Voters did not grab torches and pitchforks and go write measure 37. It was written by a property rights group's legal team after years of research and the invalidation of a voter passed constitutional admendment on the same subject.

To call this bad law is merely a statement of preference. To predict bankruptcy of the state is silly. The state has a choice to waive restrictions rather than pay for the lost value. Restrictions dealing with public health and safety cannot be waived.

Likewise, predicting an overdeveloped wasteland is alarmist. The small number of properties involved will not make that much difference in the long run. Besides, who decides what is overdeveloped? Certainly not the young couple buying their first house in a new subdivision.

The voters did not throw a tantrum. The initiative process has been used all through the history of Oregon. The legislature's inability to break through on contentious issues forces the hand of people who want things done. Getting the signatures to bring issues to the ballot is hard and must be organized properly. It takes years to get an initiative passed into law.

It's not mob rule democracy either. The constitutional protections prevent such nonsense. It is simply a law put into place by the governed themselves. Good for us.
2.22.2006 11:15am
pdxnag (mail) (www):
Mr. Plunk,

"To call this bad law is merely a statement of preference."

That is like saying that liberty is merely a matter of preference, and that a judge thus has no role in isolating in upon an "individual's" right against the whim of the majority.

I took a course from Prof. Huffman and so too from each of two of the other folks submitting briefs. I would like to think that I am at least familiar with the issues.

Will you assert too that the whole case and all the matters discussed, in court, were in total nothing more than a statement of preference?

"It's not mob rule democracy either. The constitutional protections prevent such nonsense. It is simply a law put into place by the governed themselves. Good for us."

Bizarre. But that is your candid belief.
2.22.2006 11:50am
Since when are voters using the initiative process, expressing the clear will of the people "mob rule"? I'm sure a lot of the legislators feel that way. And certainly the judge that struck down the initiative did.
2.22.2006 11:56am
pdxnag (mail) (www):
Mr. Kazinski,

Since when are voters using the initiative process, expressing the clear will of the people 'mob rule'? I'm sure a lot of the legislators feel that way. And certainly the judge that struck down the initiative did."

I hope that you are not suggesting more than the court did when they said that the legislature and the initiative powers are coterminous, the same authority. Your wording allows for the ambiguity that minority protection role of a court would vanish were a measure to originate from an initiative rather than the legislature.

The scariest part of the case was the treatment of equal privileges and immunities. Legislators and initiative sponsors can grant all manner of special privileges to classes of folks, all day long, unless the court is willing to bite the bullet and say that such a routine practice has reached the point of absurdity. To conclude otherwise, as to a grant of special privileges, would have opened a can of worms that would include consideration of special tax breaks to folks like Intel which can meet the threshold of a 100 million dollar new investment and by threatening to leave the state and thereby obtain a tax-break upon a factual finding only as to the voracity of their threat to leave.

The absurdity here will be the malleability of the speculative valuations to cover claims.
2.22.2006 1:15pm
James Huffman (mail) (www):
In response to PDXNAG, I want to clarify that I had no role in drafting Measure 37. I did argue the case in the Oregon Supreme Court on behalf of the Chief Petitioners. Whatever folks may think about Measure 37 as policy, I suspect there are few willing to argue that the Oregon Supreme Court got it wrong on the law.
2.23.2006 11:28am
pdxnag (mail) (www):
I recall reading that one of the petitioners had defensively noted that they communicated with Mr. Huffman on the wording in advance. Regardless, the later advocacy is enough ratification of the proposal to debate whether it is or is not supportive of property rights. I contend that it is not.

The whole posture of the case, Measure 37, is that of class action with a clear description of a class.

This is little different than with the 1995 legislation pertaining to PERS that created multiple classes of public employees. Those public employees hired before January 1, 1996, are tier one.

The whole point of the inclusion of equal privileges and immunities clauses in constitutions is to remove the caustic effect of the lack of equality. There is no mistaking that the caustic effects of Measure 37 are a distinct problem unto itself quite apart from the challenge of designing some sort of workable land use plan.

Will the local government's negotiate some sort of pay offer, in lieu of waiver of restrictions, that includes a clause that demands that the money be returned (with interest) in the event of passage of a more general law, one without the taint of possible violation of equal privileges and immunities, that generally repeals SB100 and related legislation?

My parents, by the way, divided their farm land between the time of passage of SB100 and the time when county plans became acknowledged by LCDC. They never developed the land, but could have this whole time. So too could any of the other owners, if they were on the ball. Suppose I were to argue that this foresight of theirs would actually prevent them being able to obtain the cash that other less insightful folks could now obtain?

I really have little disagreement about the conclusion that government has attacked property rights. I just think that splitting folks into classes is bad here, just as with multiple tiers among PERS beneficiaries and between public employees and non-public employees. The date of transfer is just really weird in that it is wholly dismissive of the notion that the transfer of property is between two private parties.

I need only advocate that later buyers claim mistake of fact, between them as to the legal rights that had been transfered such that the original owner can get it back and then avail themselves of the ability to get cash instead, then share it with the person who had bought it later.

The converse proposition is that the mere knowledge of a restrictive law is sufficient to bind any future buyer to a lower level of claims as to their property rights, at least between them and the government. This creates the economically perverse incentive for an ambitious government to race to lock in more aggressive restrictions fast. Then they could couple it with a clause that 90 days after passage that any subject property shall be considered a date of transfer, even without an actual transfer, but offered only so as to meet some minimum level of due process. If a 30 year delay is OK is 90 days OK too? THe need for a time limit might be justified as necessary and proper precisely because of the exposure to some future son-of-Measure-37 claims well into the future. Apparently the date of transfer is not a problem for the court, and the heart of the date of transfer thing was relevant only by reason of ascribing some presumed knowledge by a later buyer of the mere existence of restrictions.

I find it surreal that the Measure 37, and now the resulting court ruling, are sold as if they are a vindication of property rights when on their face they are an affront to property rights.
2.26.2006 2:14am