October 17, 2005

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TO: The 1,054,000 Oregonians who Voted for Measure 37

FROM: Oregonians In Action

DATE: October 17, 2005

RE: Marion County Decision on Measure 37

As you are no doubt aware, a Marion County Circuit Court Judge – Mary Mertens-James (Kulongoski appointee) – declared on her own last Friday that Ballot Measure 37 was unconstitutional. The judge accepted the novel legal theories presented by property rights opponents who filed the lawsuit – all of whom actively opposed Measure 37 during the 2004 campaign.

Essentially, the judge’s decision can be distilled into this one argument: she didn’t think Measure 37 was fair. Fair to whom it is unclear, but the primary argument of the property-rights opponents was that Measure 37 was unfair, and the judge apparently bought into that specious argument.

Measure 37 Impairs the Legislative Body’s Plenary Power

The court’s decision is built upon a house of cards. The foundation of which is the argument that Measure 37 impairs the plenary power of the state of Oregon.

“Plenary power” is legalese for “police power”, and it describes the authority of the state to protect the public welfare, health and safety through the imposition of laws such as zoning regulations. Of course, no constitution, state or federal, grants Oregon or any other state a “police power.” Linde, Hans, Without Due Process: Unconstitutional Law in Oregon, 49 Or. L. Rev. 125, 147 (1970). As Justice Linde reminds us:

There simply is no such thing [as the police power]. What Oregon has, as a state, is plenary power to make and administer law, by means of constitutional institutions and subject to constitutional limitations. A state constitution distributes power, it does not create it…But where in any constitution is the state granted a “police power?” Or power to define property rights? Or family relationship? Or commercial transactions? Or to define and punish crimes? Or to levy taxes? Or to build roads?

These and all other possible objectives of law are simply part of “the legislative power of the state” that in turn is allocated by Article IV. The state has that legislative power, not because of any grant, but because it is a state.”

Id. at 147-148.

Justice Linde says, “It [the term ‘police power’] ought to be completely abandoned, shunned in opinions, proscribed from briefs, and blue-penciled whenever it threatens to creep into sight.” Id (emphasis added).

Undeterred, the court claims the question presented by the anti-property rights interests is whether the legislative branch (here, the people via the initiative) can impose limits on the government’s ability to use its “police power”. Even though there is no such thing as “police power”, the Marion County judge says that if Measure 37 prohibits the legislative branch from exercising its police power, then Measure 37 is unconstitutional.

At this point in the opinion the judge has already gotten sidetracked, creating a rule of law that has long ago been dismissed. But even under the judge-created standard, Measure 37 should have survived. The test the judge said she was going to apply was whether Measure 37 prohibited the legislative branch from enacting land use regulations.

The judge then correctly states:

Measure 37 does not purport to restrict the power of government to enforce current land use regulations or the power of legislative bodies to enact new ones.

Bob Stacey, executive director of 1000 Friends of Oregon, also testified that nowhere in Measure 37 is the ability of government to pass new land use laws – or enforce new laws – prohibited. So even under this judge’s erroneous standard Measure 37 should survive, right?


After announcing the test she would apply is whether Measure 37 prohibits the legislature from enacting land use regulations, the judge (apparently realizing her new test wouldn’t get her the result she wanted) applied a new, but undefined, test. Judge James states:

Measure 37 requires government to pay if it wants to enforce valid, previously enacted land use regulations, i.e. it must pay to govern. This is legislative body cannot do, and the possibility that a later legislature could decide to repeal that condition on enforcement does not make it permissible.

This makes no sense whatsoever. The judge states that requiring government to pay if it wants to enforce valid, previously enacted land use regulations is impermissible. Of course, the judge cites absolutely no legal authority whatsoever for this proposition, She also does not explain why she announced the legal standard she would apply to Measure 37 and then failed to apply it.

The court then tries to rationalize its decision by using hypothetical examples to justify the court’s conclusion. First, The court says that if Measure 37 is allowed to remain law:

[B]y future regulation, public entities could be forced to choose between enforcing Department of Environmental Quality regulations or paying citizens whose cars do not meet emissions requirements for the cost to repair their cars.


[B]etween enforcing school attendance policies and paying parents for the costs of clothing, food and other privately borne costs associated with sending their children to school.

As irrational as these examples are, both would satisfy the test the court said it would apply to Measure 37 – that is, whether the law prohibits the legislative assembly from exercising its “police power”. In the examples presented by the court, neither compensation regulation would have prohibited the government from passing new – or enforcing current – land use regulations. In other words, both hypothetical compensation schemes posed by the court would have satisfied the court’s own test!

Nevertheless, the court ruled that Measure 37 infringes on the government’s imaginary “police power”. It is from this false conclusion that the court rests the remainder of its decision.

Measure 37 violates Equal Privileges and Immunities

The Plaintiffs in this case alleged that Measure 37 violates the “privileges and immunities” section of the Oregon Constitution, Article I, Section 20. The Plaintiffs asserted that “Early Oregon cases recognized that this provision [Art. I, Sec. 20] bars legislative favoritism by precluding laws that benefit special interests.” The Plaintiffs based the entirety of their “privileges and immunities” argument on the conclusion that Measure 37 “benefits special interests.”

This overly simple argument by the Plaintiffs exposed their own weaknesses – the reason the Plaintiffs filed this lawsuit in the first place is because they believe Measure 37 “gores their ox,” so to speak. Under Oregon’s land use system, farmers are benefitted in any number of ways. The result of which is cheap and abundant land. Depo of Vanasche, pg. 22-26 (Aff. of Day, Ex. 6, pg. 6; Ex. 14, pgs. 3-6). Oregon’s land use system itself is designed to “benefit special interests” – farmers! Would the Plaintiffs and the Court agree then, that Oregon’s land use laws equally “benefit special interests” and should therefore be invalidated? Doubtful.

The law on Oregon’s “equal privileges and immunities” clause of the Constitution is well defined. Essentially, legislation that targets or excludes a suspect class of citizens is unconstitutional. Whether or not a class of citizens is “suspect” depends on whether the class possesses certain immutable characteristics such as race, creed, religion, or sexual orientation. Further, a class cannot be created by the law itself. The class must exist outside the operation of the challenged law.

A law that targets or excludes a class of citizens not determined to be “suspect” is subject only to rational review. In constitutional law parlance, “rational review” is unbelievably easy for the government to satisfy. In practice, when court’s invoke “rational review”, the challenged regulation will always survive judicial scrutiny.

But not in this case. The court held that Measure 37 discriminated against a class of citizens, but the class was not suspect. Nevertheless, the court held, because (in the court’s opinion, analyzed above) Measure 37 unconstitutionally restricts the legislature’s authority to regulate property, Measure 37 cannot withstand scrutiny under the “rational review” standard.

Measure 37 Violates Suspension of Laws

Article I, Section 22 of the Oregon Constitution which states:

The Operation of laws shall never be suspended, except by Authority of the Legislative Assembly.

The text of the cited constitutional provision could not be more clear. The operation of laws should not be suspended, except by the authority of the Legislative Assembly. In their argument in support of this claim, the Plaintiffs purposefully ignore the plain and unambiguous language of this section of the Oregon Constitution. Assuming for the moment that Measure 37 “suspends the laws”, the voters of Oregon, by approving Measure 37 (acting with their co-equal authority with the Legislative Assembly), authorized such a suspension, consistent with the requirements of the Constitution. What could be more clear?

Nevertheless, the court held that Measure 37 violated this section of the Oregon Constitution. Why? Because, according to the court, this section of the constitution must be read in conjunction with the other sections of the Constitution, and that to the extent a law violates the equal privileges and immunities section of the constitution, it must also violate the “suspension of laws” section of the Constitution as well.

The house of cards gets taller the farther one reads into the opinion. Let’s summarize:

• Even though there is no such thing in the Oregon Constitution as the “police power”, and even though Measure 37 doesn’t prohibit the legislative assembly from enacting or enforcing new land use regulations, Measure 37 nevertheless infringes the “police power” of the legislature by prohibiting the legislative assembly from enacting or enforcing new or existing land use regulations.

• Because Measure 37 violates the non-existent “police power” of the legislature, Measure 37 violates the equal privileges and immunities section of the Oregon Constitution because violating a non-existent constitutional power cannot possibly be rationally related to a legitimate governmental interest.

• Because Measure 37 violates the equal privileges and immunities clause of the Oregon Constitution by violating a non-existent “police power” not contained in the Oregon Constitution, Measure 37 must also violate the “suspension of laws” section of the Oregon Constitution.

Measure 37 violates Oregon’s Separation of Powers

The fourth floor of the court’s house of cards claims that because Measure 37 is an impermissible prohibition on the legislature’s “police power”, Measure 37 represents an impermissible delegation of authority, and therefore violates the separation of powers principles embodied in the Oregon Constitution.

Measure 37 Violates the 14th Amendment to the U.S. Constitution

The penthouse level of the court’s house of cards comes in the court’s conclusion that Measure 37 violates the due process guarantees of the the 14th Amendment to the United States Constitution.

First, the court argues that Measure 37 does not provide procedural protections for persons such as the plaintiffs. The court correctly identifies the review process available to property rights opponents as the Writ of Review process. ORS 34.010 et. seq. A writ of review allows a person affected or aggrieved by a decision (including a Measure 37 decision) to go into court and have the court review the local government’s decision. This is a review process that has been used by parties affected by local government decisions for decades in Oregon.

Judge James called the process “too little, too late.”

Finally, the court says that because Measure 37 impedes upon fundamental rights of those opposed to property rights, Measure 37 necessarily violates the substantive due process rights of the Plaintiffs. This part of the court’s opinion is the icing on the cake because the court recognizes what it calls “the fundamental rights of neighboring property owners”, but refuses to recognize the fundamental rights of Oregonians like Dorothy English who have had everything taken from them through the exercise of the state’s non-existent “police power”.


The court’s decision in this case is factually and legally flawed in several respects, beginning with the most fundamental aspects of the operation of government. Boiled down, the court’s decision means that the state government has an affirmative obligation to regulate the use of land! Talk about judicial activism! No where in the Oregon Constitution does it say that the legislature must regulate the use of land.

But even more disturbing is, if allowed to stand, the court’s decision will eliminate the ability of the legislature, or the people of the state of Oregon, to limit the power of state government in any respect (subject only to limits in the Oregon Constitution).

Tell ’em where you saw it. Http://www.victoriataft.com