Oregon Supreme Court Upholds Law Protecting Property Rights

Published April 1, 2006

The Oregon Supreme Court on February 21 unanimously upheld Measure 37, a property rights protection act approved by voters in the 2004 election, determining it does not violate the Oregon Constitution. The Marion County Circuit Court had earlier ruled the measure unconstitutional.

Voters Approved

In November 2004, Measure 37 passed with 61 percent of the vote (1,054,589 to 685,079). It provided that an owner of private property could seek just compensation if a government regulation–whether from a municipal service district, city, county, or state agency–was established that would reduce the fair market value of the land.

Previously, compensation was required only if a government action took a person’s property in its entirety.

When faced with a Measure 37 claim, the government agency that enacted the regulation could, instead of providing monetary compensation, elect to rescind or modify the regulation.

The measure does not cover all government regulations. According to a state of Oregon information packet prepared for voters, “The measure does not apply to commonly and historically recognized public nuisances, public health and safety regulations, [and] regulations required to comply with federal law.”

Courts Differed

Measure 37 was challenged by a group of Oregonians that included farmers, land preservationists, and the activist group 1000 Friends of Oregon. The case, MacPherson v. Department of Administrative Services, was initially heard in the Marion County Circuit Court. That court held Measure 37 violated both the Oregon and U.S. Constitutions in five different ways.

The Oregon Supreme Court rejected all of the lower court’s findings of unconstitutionality.

The state supreme court’s opinion, written by Chief Justice Paul De Muniz, held Measure 37 does not improperly intrude on the legislature’s power to legislate; it does not violate the Oregon constitution’s guarantee of equal privileges and immunities; it does not improperly suspend other laws in Oregon; it does not violate Oregon’s constitutional provision requiring separation of powers; it does not impermissibly waive Oregon’s sovereign immunity; and it does not violate the Due Process Clause of the U.S. Constitution. With respect to the lower court ruling, De Muniz said in the opinion, “We find none of those arguments persuasive.”

De Muniz made clear in his opinion that the court does not necessarily believe Measure 37 is good policy. “Whether Measure 37 as a policy choice is wise or foolish, farsighted or blind, is beyond the court’s purview,” explained De Muniz.

Reactions Mixed

“I am very pleased and not all that shocked by the Supreme Court’s decision,” said Andrew Cook, an attorney with the Pacific Legal Foundation (PLF). Cook wrote PLF’s friend of the court brief that was filed with the Oregon Supreme Court.

Cook said the decision was not a matter of conservative or liberal ideology because the members of the court “are not known to be conservative” and they rarely decide matters unanimously. “This unanimous decision shows just how wrong the lower court got it,” said Cook.

The citizens of Oregon “voted to protect their property rights, and the state supreme court has clearly said that they have this right,” said Cook. “This is an important decision for property rights, and that should send a strong message to state and local officials nationwide.”

Katie Kimball, a spokesperson for 1000 Friends of Oregon, had a very different reaction to the decision. “The supreme court ruled it was legal, but that doesn’t make it fair,” Kimball said. “It is fair to compensate landowners, but it is not fair to give them a windfall.”

Surprised by Quick Decision

Kimball’s organization argues Measure 37 will lead to more development of property in ways that harm other property owners and that it is an unfunded mandate on Oregon’s local governments. She spoke of one landowner who might have a gravel plant next to his property as a result of a Measure 37 claim.

On its Web site, 1000 Friends of Oregon argues Measure 37 “places our communities, family farms and forests at risk.”

Both Kimball and Cook were surprised by the speed of the court’s decision. Kimball said the court “really expedited the result,” and Cook said the court “moved at lightning speed.”

Kimball said 1000 Friends of Oregon and the other plaintiffs have not decided whether to appeal the decision to the U.S. Supreme Court.

Michael Coulter ([email protected]) teaches political science at Grove City College in Grove City, Pennsylvania.

For more information …

The Oregon Supreme Court decision is available online at http://www.publications.ojd.state.or.us/S52875.htm.