Jack Swift -- Let There Be Light

LET THERE BE LIGHT

By Jack H. Swift, Esq.
November 25, 2008
NewsWithViews.com

With a single sentence judgment last week, U.S. District Judge Owen Panner cut through all the questions and confusion surrounding Oregon’s Measure 37. The judgment was simply: “Based on this court’s Findings of Fact and Conclusions of Law, it is ORDERED and ADJUDGED that: (1) plaintiffs’ Measure 37 waivers are valid, constitutionally protected contracts with Jackson County; and alternatively, (2) plaintiffs’ Measure 37 waivers are valid, final quasi-judicial orders, which are not nullified or otherwise affected by Measure 49.”

The judgment is based upon the concept acknowledged by the Oregon Supreme Court that Measure 37 was a statute establishing the legal obligation to compensate a landowner when the government regulates the use of his private property in a manner that causes the landowner economic loss. Notably, Measure 37 granted a government agency the statutory authority to avoid payment of that compensation by waiving the application of the regulations causing the harm. In almost all cases, that is what Counties did and their promise to not apply those regulations came to be known as Measure 37 waivers.

Almost from the moment of its enactment the State’s Department of Land Conservation and Development (DLCD) and the measure’s sponsor Oregonians in Action (OIA) have sought to cloud the measure in confusion. With a great deal of reciprocal hand-wringing, they have questioned whether the waivers were transferable. Together they have questioned whether the waivers were personal to the particular claimants or whether they ran with the land. They agonized together over the question of how long the waivers were good. Along the way the DLCD created a rule that the waivers, regardless of what the law said, required a State approval in the form of a State waiver in addition to the County issued waiver. All of this confusion, manufactured by the DLCD and OIA, was effectively used by them to sell the public on the need for Measure 49.

Once one grasps Judge Panner’s judgment that the waivers are contracts and judicial judgments, all this confusion fades away.

Either a contract or a judgment is private property. Either may be personally enforced, or it may be sold, traded, or inherited, like any other property. That is the whole basis for collection agencies buying bad debts and then collecting upon them.

While a contract may have a questionable period of duration, a judgment’s life is specifically defined by statute and it is subject to one renewal.

Finally, Judge Panner’s judgment makes it clear that the State is not a party to the waivers and that the federal Constitution under the doctrine of separation of powers prohibits interference of the legislature or the executive branch of government in the transaction. This is particularly true of the “quasi-judicial orders” part of the judgment. Under Oregon’s doctrines of separation of powers, the other branches of government may not interfere with a final judgment or even the course of a judicial proceeding. This is a privileged sanctuary jealously guarded by the judiciary. In short, the demand by the DLCD, an executive branch of government, for a power of concurrence or veto upon a County’s judgment is simply un-constitutional.

Thanks to Judge Panner and the Constitution, the rights of waiver holders under Measure 37 have been rendered crystal clear.

Did the decision create additional questions? It has been suggested by some that there is a question whether the rights defined by Judge Panner apply in counties other than Jackson. The legal counsel for Linn County has opined that Measure 49 will remain the law of Linn County.

While Judge Panner did not address that question, Article VI of the Constitution does. It provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Perhaps it will come as a surprise in Linn County, but the Constitution is also the law in Linn County and in the case of a conflict, the Constitution will prevail.

A question may exist as to what rights Measure 37 waiver holders have retained who have also made claim for Measure 49 waivers. Those who responded to the stampede orchestrated by OIA and DLCD to rush to submit their Measure 49 claims may have a problem. Buried in the fine print of this lengthy measure there is a provision that “When relief has been claimed under sections 5 to 11 of this 2007 Act: a) additional relief is not due . . . . “ What the full legal significance of that provision might be will be the fodder for Measure 49 litigation. Judge Panner’s decision in no way addressed that issue. Judge Panner specifically avoided ruling that Measure 49 is un-constitutional.

As to Measure 49 claims, it is the law of the State.

Related Article:
Oregon’s Big Land Use Swindle

Jack Swift is an attorney licensed in California and Oregon who was inactive and living semi-retired in rural Oregon until Measure 49 came along. The law was a third career for Swift who began as a high school teacher of Latin and English and then followed a long term career in sales. His law career involved a specialized practice in Admiralty and Maritime Law which gained him experience in the Federal Courts. Along the way he also fell into civil rights controversies always involving Constitutional issues. He has appeared in cases in Australia, Mexico, Florida, Alaska, Louisiana, California, and Oregon and has argued successfully before the 9th Circuit. He was part of the team of lawyers that prosecuted the Judge Panner case in Medford.

He is a graduate of Georgetown University and Thomas Jefferson School of Law. He resides in Grants Pass with his wife Cathy. He has two sons and two grandchildren. He is active in community affairs as the Chapter Coordinator for Josephine County Americans for Prosperity and is the Vice Chairman of Southern Oregon Resource Alliance (SORA).

E-mail: jhswft@earthlink.net