|
Q&A Regarding the Recent Decision by the Marion County
Circuit Court holding that Ballot Measure 37 (2004) is Unconstitutional
1. When did the Court issue its decision?
October 14th, 2005
2. On what legal theories did the Court hold Ballot Measure 37 to be
unconstitutional?
The legal theories upon which the Court rested its opinion are:
A. First, the Court said Measure 37 was unconstitutional because the
measure infringes on the “general police powers” of the state. This
argument is difficult to follow, but it can be boiled down to this: The
State of Oregon has a general constitutional police power to regulate
private property, subject only to the limitations found in Article I,
Section 18 of the Oregon Constitution. This argument follows that
Measure 37 infringes on this “constitutional” right of the state to
regulate property.
B. Second, the Court held that because Measure 37 infringed upon the
general police powers of the state, Measure 37 also violated Article I,
Section 20 of the Oregon Constitution because Measure 37 creates a
“class” of landowners who receive a benefit under Measure 37, and
creating the class based upon an unconstitutional limitation on the
state’s police powers is not rationally related to a legitimate state
interest.
C. Third, and continuing to build upon the fallacious arguments in (A)
and (B), above, the Court held Measure 37 unconstitutionally suspended
the laws of the state of Oregon. The Court said that even though Article
I, Section 22 permits the legislative assembly (and the people via the
initiative) to suspend the laws, Measure 37 was still unconstitutional
because Article I, Section 22 of the Oregon Constitution must be read in
conjunction with Article I, Section 20 (see discussion (B), above) and
the analytical results under each section cannot conflict. Therefore,
the Court concluded, Measure 37 must be unconstitutional under this
theory as well.
D. Fourth, the Court said Measure 37 is unconstitutional because the
legislature (or the people via the initiative) cannot delegate authority
they do not have. The Court held that because of reasons (A), (B) and
(C), above, Measure 37 (being unconstitutional) cannot purport to allow
the government to exercise power it didn’t have.
E. Fifth, and finally, the Court said that Measure 37 violated the 14th
Amendment to the United States Constitution because Measure 37 did not
provide sufficient procedural due process protections to property owners
who neighbor Measure 37 properties. The Court held that neighbors of
Measure 37 claimants have a substantial interest in protecting their
property from the alleged negative effects of Measure 37 development.
Interestingly, the Oregon Courts have never recognized a property
owner’s right to be protected from the obvious negative effects of land
use planning.
3. What counties and cities are affected by the Court’s decision?
There were four counties that were parties to the action: Marion County,
Washington County, Clackamas County and Jackson County. The Court’s
decision most certainly affects these county’s ability to process
Measure 37 claims.
4. What effect does the Court’s decision have on cities and counties
who were not parties to the lawsuit?
Oregon law requires that challenges to initiated measures be brought in
Marion County Circuit Court. Although not entirely clear, the law seems
to suggest that the Court’s decision is binding on all cities and
counties in the state of Oregon.
5. How are cities and counties processing Ballot Measure 37 claims
made after the Court’s decision?
Some cities and counties are continuing to accept and process claims.
Some cities and counties have decided to suspend operations under
Measure 37 pending resolution of this case by the Oregon Supreme Court.
And finally, some cities and counties are going to process claims until
the judge enters the judgment, which is expected to be done sometime
during the week of October 24th, 2005.
Check with your local city hall or county courthouse to find out how
your local government is responding to the Marion County Court’s
decision.
6. I think I have a claim under Ballot Measure 37 to have my rights
restored, what should I do?
Proceed with caution. 1000 Friends of Oregon’s lawsuit has throw
Oregon’s system into a sea of uncertainty. The one certainty is that no
one is sure what the legal effect of the judge’s decision is on the
remainder of the state of Oregon.
While the case makes its way through the appellate process, we suggest
potential Measure 37 claimants proceed with caution. If you want to make
your Measure 37 claim, know that if Measure 37 is ultimately invalidated
by the Oregon Supreme Court, then any money you spend preparing your
claim will be wasted without any chance for you to recover that money.
7. Can I still file a claim under Ballot Measure 37 even though the
Court has not signed the judgment?
Some cities and counties are still accepting claims, some are not. You
should contact your local city hall or county courthouse for more
information.
8. Is Oregonians In Action going to appeal the Court’s decision? Is
the decision going to be appealed directly to the Oregon Supreme Court?
Yes, the Oregonians In Action Legal Center, which currently represents
the chief petitioners of Ballot Measure 37, will appeal the Marion
County Court’s decision as quickly as possible.
The decision will be appealed directly to the Oregon Supreme Court. The
statute requires that when a judge invalidates a law adopted by the
voters, the appeal must be made directly to the Oregon Supreme Court,
and the Oregon Supreme Court must hear the appeal.
UPDATE: On Tuesday, October 25th, 2005, the
Oregonians In Action Legal Center, on behalf of its clients Dorothy
English and Barbara and Eugene Prete filed a Notice of Appeal with the
Oregon Supreme Court.
9. When will the Supreme Court make a decision on the appeal?
It is unclear. However, given the urgency and popularity of the Measure,
hopefully the Supreme Court will publish a briefing schedule and date
for oral argument as quickly as possible.
10. Is it true 1000 Friends of Oregon is trying to force a 93
year-old widow (Dorothy English) to pay its attorney fees?
REVISED
We’ll let you be the judge.
Here is the first form of judgment that
1000 Friends first asked the Court to sign. Notice 1000 Friends sought
attorneys fees against all the defendants in the case, including Dorothy
English and Barbara and Eugene Prete.
Since this issue was brought to light, 1000 Friends attorney now states
his clients “may” seek attorneys fees against Dorothy English and
Barbara and Eugene Prete. The Marion County Circuit Court signed the
judgment in this matter on October 24th, 2005. However, 1000 Friends
asked the Court for an extension of time until December 31st, 2005, with
which to file their petition for attorneys fees with the Court. We will
see then if 1000 Friends will seek attorneys fees against a 93 year-old
widow on social security, or not. |
|
Protect
Your
Vote!
 |