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’ ruling?

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 work?

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 compensated?

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 Bill 100?

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 it.
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 will work?

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 have here.

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 corner?

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 English?

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?

Hunnicutt: Yes.

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 James’ decision?

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 Supreme Court?

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.