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Posted 1:00 AM Eastern

by Staff Writer
March 3, 2006

SALEM, Oregon -- Thanks to a stunning ruling by the state Supreme Court, thousands of Oregon landowners are hopeful they'll soon be breaking ground for new homes as they begin exercising their long-denied property rights.

On Feb. 21 Oregon's high court reversed a lower-court order and unanimously upheld Measure 37, the famous citizen-sponsored initiative voters overwhelmingly passed in Nov. 2004, that was designed to curb "regulatory takings" by requiring county governments either to pay landowners for a loss in value caused by land-use regulations, or remove or waive the regulations and allow them to develop their property.

In a sweeping 22-page opinion, written by Chief Justice Paul J. DeMuniz, the seven-member court dismissed as groundless the legal challenge brought against Measure 37 shortly after its passage and held that for good or ill Oregonians had every right to pass such a law.

"The people, in exercising their initiative power, were free to enact Measure 37 in furtherance of policy objectives such as compensating landowners for a diminution in property value resulting from certain land use regulations or otherwise relieving landowners from some of the financial burden of certain land use regulations."

"And that determination is the only one that this court is empowered to make. Whether Measure 37 as a policy choice is wise or foolish, farsighted or blind, is beyond this court's purview."

The decision clears the way for aggrieved land owners to resume filing claims for compensation or development rights. Since no money was set aside by the measure for compensation and cities and counties are short of cash, it's expected local officials will generally choose to waive the regulations and grant exemptions.

Critics and observers on both sides of the issue were stunned.

"The Oregon Supreme Court's decision to uphold Measure 37 came as a shock both to land-use planning advocates who thought perhaps they had dodged a bullet and to property rights advocates who were sure they would get a raw deal from liberal activist judges," the Medford Mail-Tribune reported.

Former state senator Hector MacPherson (Republican), chief plaintiff of the lawsuit and cosponsor of the original land-use planning legislation, Senate Bill 100 (1973), said he was "disappointed" and "saddened for Oregon."

But folks at Oregonians in Action, the Tigard-based non-profit organization that wrote Measure 37 and defended it in the courts, hailed the ruling as a victory for the people of Oregon and started cheering as soon as they heard the news.

"WE WON" they shouted on their Measure 37 info-page.

"We hope the lawsuits end, the delaying tactics stop and that the claims get to proceed and have them resolved," said David Hunnicutt, OIA's executive director. "For the most part, the people who are making the claims have owned their land for decades and waited years to get back the right to use their property."

Ross Day, director of legal affairs at OIA, discussed the ruling with NewsWithViews.

"Were we surprised? Absolutely. We weren't really expecting it," he said. "Just because you have the law, the facts and common sense on your side doesn't mean you're going to win."

And the surprise wasn't simply because the court decided in OIA's favor.

"We were very surprised by the extent of the ruling," he explained. "It was a real clock-cleaning as my grandfather would say."

Judge James' ruling gets the axe

Indeed, the court performed a complete hatchet job on the ruling Marion County Circuit Judge Mary Mertens James issued last October, which struck down Measure 37 on grounds it was unfair, invalid, and violated the Oregon and federal constitutions.

"It decimated James' ruling on every count. It was not even close," wrote David Reinhold, associate editor and columnist at the Oregonian. "The high court reversal was not only unanimous and reached with unusual swiftness, but the opinion was unequivocal."

As NewsWithViews reported, James' ruling was in response to a lawsuit, MacPherson v. Department of Administrative Services, filed Jan. 14, 2005, by former Republican state senator Hector MacPherson as chief plaintiff, several land owners, five farm bureaus (of Clackamas, Linn, Washington, Marion, and Yamhill counties), and 1,000 Friends of Oregon -- the powerful advocacy group that for three decades has been the driving force behind Oregon's restrictive land use controls. It was 1,000 Friends that spearheaded the opposition to Measure 37, as it had spearheaded opposition to the earlier version, Measure 7, which voters approved in 2000 only to have it shot down on a technicality by the Oregon Supreme Court two years later.

In their brief the plaintiffs offered 14 arguments why (in their view) Measure 37 was unconstitutional. James chose five as a basis for throwing out the new law.

For James and 1,000 Friends, the property-rights measure intruded on the legislature's powers, violated the Oregon Constitution's guarantee of equal privileges and immunities, violated the separation of powers principle, suspended the laws in violation of the state constitution, and violated 14th Amendment of the U.S Constitution.

Included in the mix were notions that Measure 37 created two unequal classes of landowners in Oregon; and "Impairs the Legislative Body's Plenary [i.e., absolute] Power" to govern and regulate.

"There is no provision in the Oregon Constitution that would permit such a limitation," she held. "Because Measure 37 currently imposes limitations on government's exercise of plenary [i.e., absolute, total] power to regulate land use in Oregon, it is unconstitutional."

Particularly egregious for James and the plaintiffs was Measure 37's requirement that government pay compensation "if it wants to enforce valid, previously enacted, land use regulations, i.e., it must pay to govern."

James' "one-woman constitutional convention"

It was a devastating blow to Oregon landowners and the property rights movement. By the time James heard the case on Sept. 13, 2005, local government agencies had received over 2,500 claims and granted hundreds of exemptions. When James banged her gavel all of these were put on hold. Some counties stopped taking applications altogether; others continued accepting them but could not process them until the high court gave the green light.

James had not merely overturned Measure 37, she had -- in Reinhold's words -- "convened her own one-woman constitutional convention to do so."

"This was judicial activism and outcome-based judging pure and simple. She concocted arguments only die-hard opponents of Measure 37 could find compelling or even plausible," Reinhold said.

And DeMuniz made short shrift of these, hacking at them with a thousand cuts. His ruling was as ruthless to James' decision as hers had been to the measure itself -- "We find none of these arguments persuasive," "the trial court misunderstood the nature of the plenary legislative power," "the trial court's contrary conclusion was in error," "not only have plaintiffs failed to ground their argument in the Oregon Constitution, but the premise of their argument is also mistaken," "the trial court's stated reasons . . . were also incorrect," "the trial court's conclusion that Measure 37 unconstitutionally suspended land use regulations was in error," and "the trial court's express reasons . . . were erroneous, because -- the premises on which that court relied were themselves incorrect."

Then came the knockout punch:

"In sum, we conclude that: (1) Plaintiffs' claims are justiciable; (2) Measure 37 does not impede the legislative plenary power; (3) Measure 37 does not violate the equal privileges and immunities guarantee of Article I, section 20, of the Oregon Constitution; (4) Measure 37 does not violate the suspension of laws provision contained in Article I, section 22, of the Oregon Constitution; (5) Measure 37 does not violate separation of powers constraints; (6) Measure 37 does not waive impermissibly sovereign immunity; and (7) Measure 37 does not violate the Fourteenth Amendment to the United States Constitution. The trial court's contrary conclusions under the state and federal constitutions were erroneous and must be reversed."

Resignation or recall

DeMuniz's thorough trashing of James' ruling has caused some to question her qualifications as a judge and revived interest by others in seeking her ousting.

From the Albany Democrat-Herald: "If a judge can be wrong about every important principle in a lawsuit -- especially principles that don't seem obscure or complicated, and be willing to overturn a voter-enacted measure based on such a mistaken understanding -- that would be enough to make voters wonder whether she's right for the job."

Activists with the Recall Judge James petition drive have seized the moment and called on the judge to resign. Due to a clerical error with the petition forms, their campaign begun in November was halted in January. But in the wake of the court decision there's talk of reviving it.

"We stand ready to file a new recall, but first we call on Judge James to save Marion County the cost of a special election by turning in her resignation and voluntarily stepping down," the recall committee announced in a press release. "Since Governor [Ted] Kulongoski appointed Mary James, we also call on him to ask her to resign."

Initiative writer predicted ruling

Bill Sizemore, executive director of the Oregon Taxpayers Union and a contributing writer to NewsWithViews, appears to be one of the few critics of James' order who was not surprised by its reversal. He'd even predicted the outcome publicly on the Lars Larson Show, a popular conservative talk-radio program.

Sizemore is no neophyte when it comes to initiatives. He's placed dozens on the statewide ballot, so many that the Oregon Taxpayers Union has been dubbed an "initiative factory." Measure 7, the 2000 forerunner of Measure 37, was one of these. He'd drafted it, collected signatures to get it qualified, then handed it along to Oregonians in Action which took over the campaign and dealt with the later litigation.

The Measure 37 effort was handled from beginning to end by OIA, though Sizemore has kept a paternalistic eye on it. In a telephone interview he told NWV the reasons for his confidence in the outcome.

"I believe the [Oregon Supreme Court] has been trying to send a message to the practitioners of the initiative process that they don't want us doing constitutional amendments," he said. "They want us doing statutes so the legislature can change them if they don't like them or if there are flaws in the measure."

Measure 7 had been written as a constitutional amendment, but after it was struck down, "on fabricated grounds," OIA rewrote it "statutorally" -- that is, as a statute -- and it was revived as Measure 37, Sizemore explained. "It's basically the same as Seven, but not exactly the same," he said.

In his view the recent ruling was a sound legal decision because Judge James' five reasons for throwing the measure out were "extremely flimsy."

"But I think there was also enough of a political element here to enable me to predict in advance that they would uphold Measure 37 because they dared not overturn it," he added.

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"So while everybody was kind of pessimistic because we've had such bad experience with the court, I felt like the court had kind of boxed itself in on this issue. The voters had approved this measure the first time by something like 53 percent. Then they approved it by 61 percent the second time. There would be nothing but a rebellion to follow if the court was to throw it out the second time and say 'we're not going to allow you to do this constitutionally or statutorally.'"

Earlier NewsWithViews stories

Activist Judge Betrays Million Voters, Stabs Property Owners, Nov. 29, 2005

Property Rights Advocates Seek to Recall Judge, Nov. 18, 2005

Oregon's Measure 37 to the rescue. Jan. 4, 2005

For more information

Oregon Supreme Court Opinion

Judge James' Decision

Text of Measure 37

Opinion pieces

Law isn't unfair, as its foes allege: Dave Hunnicutt, OIA: Statesman Journal

Law lends itself to abuse: Bob Stacey, 1000 Friends of Ore.: Statesman Journal

The Measure 37 ruling: David Reinhard: Oregonian

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In a sweeping 22-page opinion, written by Chief Justice Paul J. DeMuniz, the seven-member court dismissed as groundless the legal challenge brought against Measure 37 shortly after its passage and held that for good or ill Oregonians had every right to pass such a law.