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Measure 37 Upheld!

A few months ago, an Oregon ballot measure 37 was declared unconstitutional by a circuit court. Today the Oregon Supreme Court weighed in and upheld Measure 37!

I got this good news by e-mail from the Cascade Policy Institute; it appears they don't have anything up on their website just yet. But they sure are fast with the e-mail. :) (Prediction: it will eventually appear at this URL.)

Here are a few quotes from the Supreme Court's opinion:

Not only have plaintiffs failed to ground their argument in the Oregon Constitution, but the premise of their argument is also mistaken. Contrary to the assumption underlying their argument, Oregon's legislative bodies have not divested themselves of the right to enact new land use regulations in the future. Nothing in Measure 37 forbids the Legislative Assembly or the people from enacting new land use statutes, from repealing all land use statutes, or from amending or repealing Measure 37 itself. Simply stated, Measure 37 is an exercise of the plenary power, not a limitation on it. (8) The measure does not impair the plenary power of the Legislative Assembly or the people's exercise of their initiative power. The trial court's contrary conclusion was error.

… this court consistently has held that the protection that Article I, section 20, affords is available to only those individuals or groups whom the law classifies according to characteristics that exist apart from the enactment that they challenge. See, e.g., Sealey, 309 Or at 397 (classes that the challenged law itself creates are not considered "classes" for purposes of Article I, section 20). That is so because, "every law itself can be said to 'classify' what it covers [as distinct] from what is excludes." Clark, 291 Or at 240.

Although it is true that neither the state nor the federal constitution requires compensation to individuals who suffer any loss in property value as a consequence of land use regulation, Pennsylvania Coal Co. v. Mahon, 260 US 393, 413, 43 S Ct 158, 67 L Ed 322 (1922); Kroner v. City of Portland, 116 Or 141, 152, 240 P 536 (1925), it is equally true that neither constitution forbids requiring such compensation in the manner provided for in Measure 37. 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. Neither policy is irrational; no one seriously can assert that Measure 37 is not reasonably related to those policy objectives.

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. Our only function in any case involving a constitutional challenge to an initiative measure is to ensure that the measure does not contravene any pertinent, applicable constitutional provisions. Here, we conclude that no such provisions have been contravened.

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.

The judgment of the circuit court is reversed, and the case is remanded for entry of judgment in favor of defendants and intervenors.


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