Tuesday, February 21, 2006

Breaking: OR Supreme Court Re-Instates Measure 37

Opinion here.

To put it bluntly, a thorough (and unanimous) beatdown for Marion County Judge James.


(on justiciability)
We first address the various justiciability issues that certain intervenors have raised. Intervenor English contends that the trial court erred in holding that plaintiffs have standing to assert their claims because none of the plaintiffs can show an actual, concrete impact stemming from Measure 37. We reject Intervenor English's standing argument for the reasons described below.

As noted earlier, plaintiffs brought this action under ORS 28.020, Oregon's declaratory judgment statute. To establish standing under ORS 28.020 in a case in which there are multiple plaintiffs, only one plaintiff must show "some injury or other impact upon a legally recognized interest beyond an abstract interest in the correct application or validity of a law." League of Oregon Cities v. State of Oregon, 334 Or 645, 658, 56 P3d 892 (2002).

(on abuse of legislative plenary power)
In our view, the trial court misunderstood the nature of the plenary legislative power. In Oregon, the Legislative Assembly and the people, acting through the initiative or referendum processes, share in exercising legislative power. See Or Const, Art IV, ยงยง 1(1), (2)(a), (3)(a) (vesting in both bodies the power to propose, enact, and reject laws). Respecting the nature of that power, this court previously has explained that

"[p]lenary power in the legislature, for all purposes of civil government, is the rule, and a prohibition to exercise a particular power is an exception. It, therefore, is competent for the legislature to enact any law not forbidden by the constitution or delegated to the federal government or prohibited by the constitution of the United States."

Jory v. Martin, 153 Or 278, 285, 56 P2d 1093 (1936). Thus, limitations on legislative power must be grounded in specific provisions of either the state or federal constitutions. See, e.g., State v. Hirsch/Friend, 338 Or 622, 639, 114 P3d 1104 (2005) ("any constitutional limitations on the state's actions must be found within the language or history of the constitution itself" (internal quotation marks and citation omitted)).
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.

(on unfairness by virtue of differential treatment of classes)

After concluding that Measure 37 implicated "true classes," the trial court applied a so-called "rational basis" review and concluded that Measure 37 was not rationally related to any legitimate government interest that would justify treating those "classes" differently. For the reasons set forth below, we disagree with that analysis.

Article I, section 20, provides:

"No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens."

Article I, section 20, guarantees equality of privileges to each individual citizen as well as to "classes" of citizens. See State v. Clark, 291 Or 231, 239, 63 P2d 810 (1981) (Article I, section 20, is a guarantee against unjustified denial of equal privileges as much as against unjustified differentiation among classes of citizens). Some litigants seeking the protection of Article I, section 20, claim -- as do plaintiffs here -- that a particular "class," of which they are not a member, unlawfully has been accorded a special privilege or status. Other litigants claim that they are members of a "class" suffering disparate treatment without legitimate reason. In either situation, 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.
A moment's reflection illustrates that the foregoing refutation of plaintiff's theory must be correct. Were it not, plaintiffs' theory would mean that the legislature would be precluded from enacting a law benefitting, for example, Vietnam veterans or Gulf War veterans, both closed classes. Here, the postowners' inability to "bring themselves within" the class of preowners does not render Measure 37 invalid. We conclude that Measure 37 does not offend Article I, section 20, as plaintiffs contend.

(on impermissible suspension of law)

We first address the wording of the suspension clause of Article I, section 22, which has remained unchanged since the adoption of the Oregon Constitution in 1859. See Charles Henry Carey, The Oregon Constitution and Proceeding and Debates of the Constitutional Convention of 1857 403 (1926) (citing original constitution). A nineteenth-century dictionary defines "suspend," for our purposes here, as "to interrupt; to intermit; to cause to cease for time"; "to stay, to delay; to hinder from proceeding for a time"; or "to cause to cease for a time from operation or effect." Noah Webster, 1 An American Dictionary of the English Language, s.v. "suspend" (Johnson 1828); see also Rico-Villalobos v. Guisto, 339 Or 197, 206, 118 P3d 246 (2005) (when analyzing terms in original Oregon Constitution, court examines meanings of terms as framers would have understood them). Applying those definitions, it is clear that Measure 37 does not "cause to cease for a time," "delay," or "interrupt" any land use regulation. Instead, it authorizes a governing body to "modify, remove, or not * * * apply" certain such regulations in specific situations. The measure is, in effect, an amendment of the land use regulations in those particulars. No law is "suspended"; all laws not amended remain in effect.

(on violation of separation of powers)
Plaintiffs also assert that Measure 37 delegates legislative authority without providing adequate safeguards against "arbitrary and deleterious exercise of the power" so delegated. We continue to take the following view, first expressed by this court nearly a half century ago: "There is no constitutional requirement that all delegation of legislative power must be accompanied by a statement of standards circumscribing its exercise." Warren v. Marion County, 222 Or 307, 313, 353 P2d 257 (1960). Rather, the procedure established for the exercise of that power must furnish adequate safeguards against the arbitrary exercise of the delegated power. Id. at 314. Measure 37 does just that. The measure provides a cause of action for claimants seeking compensation. ORS 197.352(6). Further, avenues exist for both claimants and interested third parties, such as plaintiffs, to obtain judicial review of the decisions that local governing bodies make in accordance with the measure. Those avenues provide adequate safeguards against the arbitrary exercise of power, as Warren requires. We therefore hold that Measure 37 does not violate the separation of powers principles encompassed in Article III, section 1.

(in sum...)

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.