December 15, 2005

Kelo and Property Rights Update: Kimberley Strassel on Oregon’s M37 and Judicial Tyranny

Filed under: Economy,Environment,Taxes & Government — Tom @ 10:22 am

Original post on M37: Judicial Tyranny in Oregon

OpinionJournal.com’s Kimberley Strassel pens a timely review today of judicial outrages (“In Oregon this land isn’t your land”) and reversals of the voters’ will on property rights in Oregon:

PORTLAND, Ore.–Reformers, take note. There’s a big lesson to be learned from this state’s ongoing, bare-knuckle fight over property rights. Ballot initiatives are all well and good, but they are only half the equation. First, voters must boot judges who legislate from the bench.

….. Two separate judges struck down the property measures on embarrassing legal grounds. And voters can’t count on a state Supreme Court that revels in meritless decisions to right things on appeal.

This is a bitter pill to swallow, especially given how hard Oregonians have fought to get this far. Oregon’s property regime traces back to the 1970s, when elites worried that all the rednecks in the pretty parts of the state might get the uppity idea of developing their land and ruining urbanites’ weekend playground. A new law gave the state control of land use, stripping power from counties that were far better positioned to respond to local needs. The law was also behind “urban growth boundaries,” within which development was fair game. Anything outside was labeled “forest” or “farming” or “open” land and frozen in time.

In addition to its abuse of constitutionally protected property rights, the law has also had devastating economic effects. Property prices inside the boundary artificially skyrocketed, while rural areas were barred from development that would create new jobs. No other state has been foolish enough to pass a copy of the law.

….. In 2000, in the face of this dysfunction, voters took over. A group called Oregonians in Action got a measure on the ballot that would require the state to pay landowners for the value of property they “took” via regulation. Not everyone understood what it would do, and many undecideds were worried about the dollar-cost it would impose on the state, yet “Measure 7″ passed with 53% of the vote.

Opponents soon filed suit in Marion County, home to the state capital and at least a few judges hostile to citizens’ rights. They found just such a soul in the circuit’s presiding judge, Paul Lipscomb. He quickly struck down Measure 7 on a technicality, arguing it was improperly presented to voters.

Oregonians in Action started over and drew up a new initiative, Measure 37, designed to satisfy Judge Lipscomb’s complaints. The new language also solved the money concern, by offering government a choice between compensating property owners and simply exempting them from restrictions. And last year, despite being outspent four-to-one by national green groups, and overwhelming opposition from the press and Democrats, Measure 37 passed by 61%–among the most popular citizen-initiatives in state history.

Not that it mattered. Even as the state moved ahead, receiving thousands of Measure 37 claims and granting exemptions, environmental critics went back to court. And this October, Judge Mary James, also of Marion County, came up with five objections to the law–most insurmountable. At the top of this piece of creative writing was her argument that the law was unconstitutional because it limited the power of the state government over private land. Put another way, Oregonians have absolutely no right to defend against any state use of their property.

The price effects of development restrictions were noted here yesterday.

Okay, what to do? Strassel suggests that voters need to recall the worst judicial offenders and pay much closer attention to judicial elections:

Oregon judges can operate this way because they have near-foolproof job protection. The state still allows its judges to put an “i” (for “incumbent”) next to their names on the ballot, which gives them a huge advantage in elections. Combine this with voters’ traditionally apathetic approach to judicial elections, and it is no surprise that no judge in Oregon has lost a re-election for at least a decade, if not longer.

This may change. Already a local group is collecting signatures to recall Judge James. But more important, voters are pledging to make the judiciary their top priority in upcoming elections. In doing so, they join reformers across the country who in the past year have begun tossing out court incumbents, encouraging real judicial races, and demanding judicial elections be more fair.

In fact, 39 states hold some form of judicial elections. Good-governance types are already arguing that the new partisan focus on judicial candidates threatens the integrity of the courts, and that may be a debate worth having. But for now, the fact remains that it is voters who are tasked with filling the bench. And to that extent, they have a right to choose candidates who respect the law–and the wishes of citizens.

One other thing: Rules about judicial conduct during campaigns, which effectively cause these contests to turn on personality instead of substance, need to be loosened so that judges can tell voters where they stand on core judicial principles.
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