Judge Slams Voters' Will
Oregonians In Action Sharply Criticize Overturn of Measure 37
An interview with Dave Hunnicutt, executive director of Oregonians In Action
by Jim Pasero
In an unexpected decision last month, October
2005, Marion County Judge Mary James overturned Measure 37, creating a
wave of dissent throughout the state. Oregonians In Action (OIA), the
group that originally drafted the property rights measure, plans to continue
the struggle, while also assisting other states in adopting similar measures.
OIA Executive Director Dave Hunnicutt has recently helped craft similar
measures for the Oklahoma, Nevada, Arizona, Michigan, Idaho, and Missouri
legislatures. Shortly after James pronounced Measure 37 in violation of
the Oregon Constitution, Hunnicutt’s schedule took him to South
Carolina to speak to a group that included realtors, legislators and the
governor about the importance of the measure.
BrainstormNW spoke candidly with Hunnicutt the week of the James’
decision regarding the direction that OIA will pursue.
BNW: Why is there such interest across
the nation about Measure 37? Is there a national strategy behind the interest?
Hunnicutt: The strategy behind 37 on the
national level is to build momentum in enough states to eventually have
Congress enact a compensation provision for the United States code. This
has already happened with the U.S. House of Representative efforts this
year to reform the Endangered Species Act. The Eugene Register Guard ran
an editorial about how awful the House’s ESA reforms are because
it has a compensation provision similar to Measure 37.
BNW: Were you surprised by Judge James’
Hunnicutt: Characterizing her decision
as novel is putting it mildly. I don’t think anybody, including
the council for the plaintiff, thought they had a chance of prevailing.
BNW: And her reasoning in making the decision?
Hunnicutt: She used multiple theories.
Her main idea is that legislature has no authority to limit its police
power. They have no authority to place limitations on their ability to
adopt or alter land use regulations. And a requirement that they compensate
a property owner is a limitation on their regulatory authority, and therefore
a limitation on their police power – which is unconstitutional,
at least according to James.
BNW: What is she throwing out here, the
fifth amendment of the U.S. Constitution?
Hunnicutt: I think she throws out the initiative
process. For example a spending cap would be unconstitutional. The current
statutory spending cap would be unconstitutional. Non-conforming uses,
a use that wouldn’t be allowed under current law, but was allowed
when it was built, would not be allowed under Judge James’ ruling.
In addition, talking about the police power, she said that any regulation
that distinguishes between property owners based on the time they purchased
their property would also be unconstitutional.
BNW: Were your members mad about the ruling?
Hunnicutt: I don’t think it is just
our members who are mad. It is the public as a whole, KGW took a poll
that showed more than 80 percent disagreed with the decision.
BNW: How does this decision compare with
Judge Lipscomb’s ruling to throw out Measure 7?
Hunnicutt: It is worse than what they did
with Measure 7, because this time if the judge is right there is no way
to create a compensation law in the state of Oregon. It is impossible.
Property owners in this state have no way to protect themselves from changes
in the land use laws.
BNW: How will this ruling affect your national
Hunnicutt: It won’t. I think this
is the only state where we would have this kind of problem, because you
have a very activist judiciary here. Obviously Judge James’ ruling
wasn’t about whether Measure 37 was constitutional or not, it was
about how she was going it find it was unconstitutional.
BNW: And they used the same tactics in
throwing Measure 7?
Hunnicutt: There is a small minority of
people in this state who will do anything to keep the current land use
system. Measure 7 was declared unconstitutional under the separate votes
provision of Oregon constitution – because Measure 7 distinguished
between the owners of porn shops and everybody else. The court said that
because we didn’t allow compensation to porn shop owners we implicitly
amended the free speech provision of the Oregon constitution.
BNW: Did the state of Oregon do a better
job of representing the voters with Measure 37 compared to Measure 7?
Hunnicutt: Yes. The attorney general has
done better of defending Measure 37 than 7. There is no connection between
Judge James and the governor. This time, there wasn’t any meeting
between the governor, the AG’s office and people filing the lawsuit
as there was before Measure 7.
BNW: What are OIA Members saying?
Hunnicutt: They are obviously outraged,
but more than that they are galvanized.
They are ready, and I think the public is ready as well, to go forward
if we have to with other initiatives. But if they keep throwing them out,
the only action to take will be steps to change the judiciary, so that
you’ll have a judge who actually interprets the law rather than
making it up.
BNW: What is the message that this decision
sends to the Oregon voting public?
Hunnicutt: The message to voters is it
doesn’t matter what you say or how you feel about a particular issue,
there is a class of enlightened elitists who think they know better and
are willing to legislate from the bench. In my mind, this ruling, the
Measure 7 ruling, the ruling on term limits, the ruling on PERS, the ruling
on free sex acts, combined with other constitutional measures the court
has thrown out, cast some real doubt on their ability to judge impartially.
BNW: Is this the most activist judiciary
in the country?
Hunnicutt: Yes. Look at the patterns of
decision is this state, starting with Armatta decision—the decision
used to strike down the crime victims bill of rights. It becomes apparent
to me that the outcome of the decision is based on whether the court likes
the decision. I am not alone in that thinking. This isn’t part of
a vast right-wing conspiracy. There is an interesting Law Review piece
put out by Professor Lowenstein of UCLA that talks about how Armatta gives
the Supreme Court the authority to invalidate ballot measures that its
individual members don’t like.
BNW: What is the condition of democracy
in the State of Oregon?
Hunnicutt: I think democracy is threatened
by an over-reaching judiciary. They are the branch that is the least understood,
yet the most powerful because they are last in the process.
BNW: What can people if they are part of
the 61 percent who voted for Measure 37 do?
Hunnicutt: We will read the judge’s
opinions and craft another initiative if we have to. The other thing people
of this state ought to do is pay closer to attention to their judges.
BNW: What do you expect to happen in appeal
with Judge James’ decision?
Hunnicutt: There will be an appeal to Oregon
Supreme Court, which will take at least a year, and probably more like
18 months before this is resolved.
BNW: Will you have a parallel strategy?
Hunnicutt: Absolutely, the public has demonstrated
over and over that they believe in property rights. It is not a rich versus
poor issue. It is not a right versus left issue. It is not a not young
versus old issue. Property rights cut across all classifications, and
so every time the court takes away a measure that was approved by the
people, the people become more cynical, and it strengthens their belief
in the measure they just voted for.
BNW: Why do property owners need to be
Hunnicutt: Because we have a statewide
land use system that is widely acknowledged as the most regulated system
in the country. There are countless examples of property owners who bought
land with a certain set of rights and regulations. They knew what they
were getting when they bought the land. But after they purchased the land,
the rules and regulations changed, which limited their rights. If the
government wants to take your property to benefit the public, the government
ought to pay compensation for that.
BNW: How angry were you personally about
Judge James’ decision?
Hunnicutt: I’m not sure it was anger;
it was more shock. As I said before, nobody including the plaintiff’s
lawyer, thought they would win. I was stunned that we would get a trial
judge who would make up theories to invalidate a measure.
BNW: We read the decision to say that Measure
37 was illegal because the government can’t be forced to compensate
property owners to carry out the regulations on land they want to adopt
for the public good.
Hunnicutt: That is what the takings clause
of the U.S. and Oregon Constitutions are all about. The Founding Fathers
thought it would be unfair to take property either by physical occupation
or by regulations. But for the fact that we have those pieces in our constitution,
Judge James thinks it is unconstitutional to limit the legislature’s
ability to regulate at all. She believes that a requirement that the state
pay for what it wants to take would be unconstitutional.
BNW: So she just made that up?
Hunnicutt: Yes, she made that up. What
Judge James says is that you can’t do anything to limit the legislature’s
ability to take property.
BNW: Who loses politically in the end because
of this ruling?
Hunnicutt: Ultimately, 1000 Friends of
Oregon will suffer. Because I think this decision will galvanize the public.
I heard from ten times the number of people about this decision in the
first few days following the ruling than I did when Measure 7 was overturned.
BNW: What has been the immediate effect
on some of your members?
Hunnicutt: We got a call from one of the
chief petitioners of Measure 37 who owns 20 acres near Sisters. The couple
had their house on the market because they now had the right to build
on their 20 acres. It was a place they really wanted to live. The claim
had been approved. They put their house on the market. Now it is all in
jeopardy. She cried.
BNW: What are the options for Oregon citizens
after this ruling?
Hunnicutt: To continue to believe in some
semblance of separation of powers. That the people of this state and the
ones they elect will do the legislating, not some judge from Marion County
who was elected by the citizens of Marion County to decide cases and not
act like some politician in a black robe.
BNW: What else can citizens do?
Hunnicutt: Again, as I said before, we
can do two things. OIA will read Judge James’ opinion carefully,
and we will be ready to go and draft a Measure 38. But I don’t know
what it will look like. If the James’ ruling stands, the new measure
won’t have the compensation clause. And if the public can’t
protect itself through compensation and the government has the ability
to regulate, alternatively you will have to directly limit their (government’s)
ability to regulate by placing limitations on zoning authority.
BNW: Are you talking about repealing Senate
Hunnicutt: There is discussion of doing
that. Frankly, doing that would put us back in line with the other 49
states. We are the only state that has a statewide, centralized land use
system. We have lived with it for 32 years, and not one state has copied
Returning planning decisions back to the local government would put us
in line with the rest of the country.
BNW: Are voters mad enough to repeal SB
100 or consequently LCDC?
Hunnicutt: I think the answer to that is
yes. Replacing our current system with a local system doesn’t weaken
land use planning. It makes it stronger. It gives people of the community
a much better ability to get fair decisions.
BNW: Explain, again, how the appeal process
Hunnicutt: Measure 37 will go the Oregon
Court of Appeals.
BNW: Will you win there?
Hunnicutt: Yes, we are right on the law,
but probably wrong on the politics for that court.
BNW: How bad is the Oregon court of appeals?
Hunnicutt: I have worries about the outcome
of property rights in this state because of the activist judiciary we
BNW: So once again worrying about our activist
judiciary leads back to have the voters or the legislature repeal SB-100?
Hunnicutt: We believe very strongly that
a repeal of SB 100 would strengthen the planning system. It would make
things better. This whole theory that Oregon has saved itself by adopting
a centralized planning system is contradictory to every state in country.
BNW: Didn’t SB-100 originally call
for compensating landowners?
Hunnicutt: Yes. SB-100 has a provision
in it calling for a compensation clause. They knew this problem existed
32 years ago, and it has only gotten worse in the years since. The legislature
has been unwilling or unable to do anything to address the problem in
subsequent years, so why would anybody in their right mind think a “special
session” now is going to solve the problem.
BNW: Then why do you think some Oregon
leaders are calling for a “special session?”
Hunnicutt: I think it’s posturing.
What good would a special session do when the judge has just said the
legislature can’t pass any new law that limits their ability to
adopt and implement land use regulations? I think the Democrats and their
leadership, Peter Courtney and Charlie Ringo, don’t believe there
should be a special session. They know they would be stuck. The only way
you could solve the problem based on Judge James’ ruling is to alter
the land use regulations. The Democrats’ traditional cry in response
to the passage of Measure 37 has been let’s figure a new tax to
pay people not to use their land. Now Judge James says you can’t
do that. The only way now to solve what everybody recognizes as inequities
in our land use system is to change the land use system.
BNW: Has the public been backed into a
Hunnicutt: I think this ruling is going
to wind up being a curse to 1000 Friends of Oregon, who have said/admitted
since Measure 37 passed that property owners have been treated unfairly
by our land use system. 1000 Friends has now been saying that instead
of giving property owners the right to use land, we ought to compensate
for the land that has been taken from them. Well, Judge James just took
that ability away.
BNW: Do you expect 1000 Friends to change
their position, again, with this ruling?
Hunnicutt: Maybe they are back to saying
that the land use system doesn’t treat anybody unfairly, but I don’t
think the public will agree.
BNW: You once said that Bob Caldwell, the
Oregonian’s Editorial Page editor, has a comic book view of Oregon’s
land use system. What did you mean by that?
Hunnicutt: Well, Saturday’s editorial
(10/15) was typical. The Oregonian’s view is that Oregon’s
land use system is great, and that anybody who challenges or believes
in revision is against planning. Not the case. Their editorial defending
Judge James’ decision agreed with the judge but then said that our
land use system needs to be fairer, but then the paper doesn’t offer
suggestions. That’s what I mean by comic book view. Superficial.
BNW: What do attorneys in Oregon think
of the decision?
Hunnicutt: I haven’t heard from any
attorney who agrees with the decision.
BNW: Are you and property owners in a fight
with the Oregonian?
Hunnicutt: Yes, because the Oregonian refuses
to go beyond the surface for fear that if they do even a cursory examination
they will find things that need revision, and that tears apart their theory
that we have a great system. Again, their version is that land use planning
is good and that the critics are bad. They never go beyond the sound bites
put forward by 1000 Friends and the Oregon Planning Association to take
a critical look at our land use system. Ultimately it comes down to a
battle between the enlightened elite and the majority rest of us. But
most of the public doesn’t believe the deep thoughts of the Oregonian.
People can think for themselves; they don’t need to be told what
to do by the New York Times of the west coast. This is a battle between
those who trust their own ability to use their land, and those who believe
they should control not themselves, but others.
BNW: How would you characterize the Oregonian’s
coverage of Measure 37 in the last year?
Hunnicutt: It has been an extension of
the “No on 37” campaign. Since the election, their intent
has been to undermine the public’s confidence in their vote. Before
the election, I had to personally call on the Oregonian editorial board
and ask to meet with them about Measure 37 before the election. My interview
consisted of 15 minutes with Mary Kitch. She said, “Look, I understand
that there are problems with Oregon’s land use system, but I don’t
think Measure 37 solves them.” Okay, Oregonian editorial board,
what are the problems and how would you solve them? In other words, quit
bitching and offer something concrete. It is the same with 1000 Friends;
they never offer solutions.
BNW: How does Bill Moshofsky feel about
this ruling will affect the people he’s worked so hard to represent
in the past twenty years?
Hunnicutt: We all feel the same way; walk
a mile in the shoes of a property owner who has lost everything they own.
I pray every night for Dorothy English after all the years she has fought
for her property that she will get some relief from the regulations that
have taken everything. Decisions like Judge James’ take her back
to square one. Nobody who has been to Dorothy’s property would say
that the current regulations on her property make any sense.
BNW: And are there a lot of others in the
same spot, the maybe not as charismatic or as attention-getting as 93-year-old
Hunnicutt: There are a number of folks
in the exact same spot. Some of them are more unique than others. The
Pretes, for example, in Sisters. Their land can’t be used for farming,
so why did they zone it farm land?
BNW: You take a dim view of the elitism
of our planning system?
Hunnicutt: It comes to, what is your viewpoint
of your fellow citizen? We believe that you give people freedom and opportunity
and choice, and the majority of the time they will make good decisions.
Planning elites believe that unless government controls their ability
to use their land, people will go out and screw it up.
BNW: Are planners working more cooperatively
with the public in other parts of the country?
Hunnicutt: Yes. In South Carolina they
want to make sure that their legislature steps up and takes responsibilities
for their land use regulations. It was the same when I met with the Georgia
Senate a couple of weeks ago. They will have a compensation bill in 2006.
Ross Day of OIA met with the Wisconsin legislature three weeks ago and
the process was the same. These bills that we are helping direct across
the country are Measure 37 compensation for regulatory takings. These
legislators are proactive.
BNW: Does it look like these compensation
bills will pass in these states?
BNW: You must be frustrated with the blind
stubbornness of our judiciary culture?
Hunnicutt: I feel really bad for the people
who filed 37 claims, who have had their land taken away from them, and
I think the public does as well. This is about having your vote count.
Whenever a decision is made that strikes down the public vote, people
ask, “Why should I even vote?”
BNW: How vetted was this Measure 37? How
careful were you to make sure it was constitutional?
Hunnicutt: Multiple lawyers worked on the
draft of Measure 37. I don’t think there was a lawyer, even the
plaintiff’s lawyer, who thought this had a chance of success.
BNW: Then why would they bring it?
Hunnicutt: They did it to have leverage
for the legislative session. Remember, the lawsuit was filed just before
the session started in January.
BNW: What do you know about Judge James?
Hunnicutt: She was appointed to her seat
by Governor Kulongoski. Before that, she worked for the law firm Harrang
Long that represented some of the plaintiffs in the challenge to Measure
7. I don’t think her background prior to sitting on the bench was
representing hard-working Oregonians.
BNW: The end loser to judicial overreach
may be SB-100?
Hunnicutt: Absolutely. SB-100 was touted
as a national model, but nobody has followed that model in 32 years. Yet,
last year, voters of this state passed a property rights measure that
has already been copied in a number of states. What gets me is that the
Oregonian and the Register-Guard talk about our nationally recognized
model. Nationally recognized by whom? It is sort of the theory that if
you say it often enough, people will start to believe it.
BNW: Bill Moshofsky said last summer that
passing Measure 37 was a bigger accomplishment for OIA than winning the
Dolan case in ’94 before the U.S. Supreme Court. Do you agree?
Hunnicutt: Yes. Because Dolan v. City of
Tigard only applies in a narrow set of circumstances, while Measure 37
applies to every property owner. People get the rights they pay for when
they bought the land.
BNW: Just how poor is the quality of Judge
Hunnicutt: The assistant attorney general
said the decision gets worse with every page. Steve Bushong told me that
“every time you turn the page you think it can’t get worse,
but it does.” He was representing the millions of Oregonians who
voted for the measure.
BNW: What happens if you lose in Oregon’s
Hunnicutt: If we lose, then a number of
state laws will be subject to challenge. Her opinion is broad enough that
it doesn’t just effect Measure 37. And, of course, if we lose, we
will go forward with another ballot measure.
BNW: And the word, again, may be that this
is the beginning of the end of Oregon’s statewide land use system
as created by SB-100?
Hunnicutt: There is a fair amount of talk
about getting rid of SB 100. It is time for planning decisions to be made
by people in their own communities. Portland can plan for Portland and
can make their own wacky decisions just for Portland. And John Day can
plan for John Day. What kind of planning system is it where decisions
are made by a seven-member commission of political appointees (LCDC).
I have been around the country since Measure 37, in states that are just
as beautiful as Oregon, and they have friendly people, and none of those
states have had to rely on taking people’s property, the way they
do here in Oregon, to obtain their objectives.
BNW: Last word?
Hunnicutt: The silver lining in the dark
cloud of this decision is that people bringing the challenge never get
what they anticipated. All they end up doing is turning the public opinion
away from their political viewpoint. And that’s exactly what is
going to happen here.
BrainstormNW - November 2005