October 16, 2005

Kelo and Property Rights Update: Judicial Tyranny in Oregon (Ballot Measure M37 Struck Down)

Filed under: Economy,Environment,Taxes & Government — Tom @ 11:45 am

Dec. 15: New Post Reference–”Kimberley Strassel on Oregon’s M37 and Judicial Tyranny”

Here are the first two provisions comprising the core of Oregon Measure 37:

(1) If a public entity enacts or enforces a new land use regulation or enforces a land use regulation enacted prior to the effective date of this amendment that restricts the use of private real property or any interest therein and has the effect of reducing the fair market value of the property, or any interest therein, then the owner of the property shall be paid just compensation.

(2) Just compensation shall be equal to the reduction in the fair market value of the affected property interest resulting from enactment or enforcement of the land use regulation as of the date the owner makes written demand for compensation under this act.

At first glance, the Measure appears redundant and unnecessary, as the US Constitution’s Fifth Amendment says that the government cannot take “private property …. for public use, without just compensation.” But, apparently it was needed in Oregon, where “land-use planning” has been enshrined into near-sacramental status.

The voters overwhelmingly passed Measure 37 (warning: link is a PDF) last November, by a margin of 61% (1,054,589 votes) to 39% (685,079). It carried in every county except one.

You can probably guess what’s next. On Friday, a judge overturned it:

SALEM — A judge on Friday overturned a voter-passed property compensation law as unconstitutional.

Marion County Circuit Judge Mary James struck down the law as violating five provisions of the state and federal constitutions.

The state will appeal the ruling, said Kevin Neely, spokesman for Attorney General Hardy Myers, whose office defends voter-passed laws

The compensation law — passed as Measure 37 on the November 2004 ballot — requires that state and local governments either compensate land owners when regulations lower property values or waive the rules.

James said the statute violates equal protection provisions of the Oregon Constitution and a state constitutional ban on suspending laws except by authority of the Legislature.

She also ruled that the law breaches the separation of powers between government branches, “intrudes on” legislative authority and violates due process protections under the U.S. Constitution.

Oregonians In Action, which supported the measure, was understandably bitter and angry:


“This is the height of judicial activism,” commented Dave Hunnicutt, President of Oregonians In Action. “It’s another kick in the face to the citizens of this state who want nothing more than protection of their right to use their land as they could when they bought it, to Dorothy English and Gene and Barbara Prete, and to all those people who have bought property over the years, only to have the State of Oregon change the land use rules and take away their rights.”

“How much longer will people have to wait to be treated fairly?” said Hunnicutt. “If Judge James is correct, then Oregon property owners have no way to protect themselves from changes in land use laws.”

…. “With the exception of the plaintiffs, no one in the legal community gave this lawsuit a chance of succeeding. Apparently, they didn’t realize how intent Judge James was on invalidating the law.”

The land-use tyrants at organizations like 1000 Friends of Oregon are, of course, thrilled. After all, they, like their environmentalist brethren, believe that landowners have NO right to compensation, and that the 5th Amendment requirement for compensation is an “entitlement” (in the “handout” sense). Washington, Jefferson, and Madison are spinning in their graves.

Land-use tyrants aren’t even trying to mask their outlook any more. According to the Measure 37 web site (scroll to near the bottom of page), one lawyer sympathetic to M37′s opponents attempting to overturn the law was quoted as saying e-mailed this (form of contact was e-mail, per OIA/M37′s Ron Myers): “I will put a couple of enlightened attorneys up against a million Oregonians any day, since the masses do not make right in this Republic, no matter how many you stack up against the wall!!”

This case appears destined for the US Supreme Court. Is it becoming clearer why having strict constructionist judges there is important?

UPDATE, Oct. 19, 7:30 PM: Another web site questioned the existence and veracity of the quote in the second-last paragraph. Full information on exactly who sent the e-mail containing the quote was just e-mailed to me by Ron Myers of Oregonians in Action/Measure 37. Whereas I originally left it to the reader to decide whether M37′s supporters could be trusted to post an existing and accurate quote from an opponent on its web site, I now don’t doubt the quote’s existence or accuracy at all. Supplement to Update, Oct. 20: Mr. Myers informs me that “The M37 website never states that the attorney in question is for any of the adverse parties to this matter and in fact he is not.” I have changed the above characterization of the quote to reflect that information from Mr. Myers.

UPDATE 2: A commenter at Todd Zywicki’s Volokh post says that the measure grandfathers in certain landowners and leaves newer landowners at the mercy of regulators. I’m only seeing procedural differences in Paragraphs (5) and (6), and nothing that would affect fundamental rights or compensation.



  1. Unbelievable!… Supreme Court here it comes!

    Comment by Zsa Zsa — October 16, 2005 @ 8:37 pm

  2. Interesting story, but with all due respect, it almost certainly will not be headed for the US Supreme Court, and I’m not sure that this says anything at all about the importance of “strict constructionism.”

    As to the first point, the federal judiciary is empowered to hear cases (a) between citizens of different states, or (b) involving a question arising under federal law. I’m assuming the parties are all Oregonians, and this dispute involves (i) a state statute, held to conflict with (ii) the state constitution. There being no federal question, SCOTUS has no jurisdiction and so would deny cert. In this case, the next step is to appeal to a higher state court or amend the state constitution (a reasonable step), not appeal to SCOTUS.

    To the second point: Do you really know what Kelo was about? The dispute was live, to be sure, but in essence the appellants asked the Court to find a right in the Constitution that isn’t clearly there from a textual, originalist or historical basis. The majority who ruled against them reasoned that those who didn’t like it could still appeal to the political process—hardly the hallmarks of an activist Court. And since it wasn’t really clear that “public use” contained the undertones that appellants argued it had, the Kelo majority was far more strict-constructionist than were the dissent, who were willing to interpret meaning that wasn’t clearly there.

    Comment by Jack Roy — October 18, 2005 @ 3:51 pm

  3. Jack Roy:

    So why didn’t the drafters of the Bill of Rights say “public purpose” instead of “public use” if that’s what they meant?

    Comment by Shelby — October 18, 2005 @ 5:19 pm

  4. #2 and #3, I see the difference, but I believe “public use” in the Constitution is more restrictive than if they had used “public purpose.”

    “Public Use” means the public (i.e., whatever governmental entity doing the taking) owns the property after and eminent-domain taking and does not give it up or resell it to another developer. It would involve facilities everyone is allowed to use (roads, bridges)

    “Public purpose,” if they had used it, would have been broader. You could argue that a “public purpose” might include growing the tax base, making the neighborhood “look” nicer, etc. But they didn’t go there.

    I see “public use” as stated in the Constitution as more restrictive, and properly so.

    Comment by TBlumer — October 18, 2005 @ 7:41 pm

  5. #2: “There being no federal question, SCOTUS has no jurisdiction and so would deny cert.”

    From the article, describing the judge’s ruling:

    “…and violates due process protections under the U.S. Constitution.”

    There’s your federal law.

    Comment by Jeff Licquia — October 19, 2005 @ 6:06 pm

  6. #5, thanks, it would appear the judge wants to invite a federal constitutional challenge. Bring it on.

    Comment by TBlumer — October 19, 2005 @ 6:40 pm

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