Out of Control Policy Blog

Recall Sought for Measure 37 Judge

Proponents of Measure 37 (Oregon's regulatory takings measure) have filed a recall petition against Judge Mary Mertens James, who ruled the measure unconstitutional two weeks ago:

    Proponents of Measure 37, a voter-approved ballot measure that allows property owners to seek waivers from land-use zoning laws or get compensated, are seeking to recall a judge who ruled that the law was unconstitutional.

    Silverton businessman Tom Steffen, 37, the owner of a graphic-design company, filed the petition Wednesday with the support of the Constitution Party of Oregon.

    Steffen said the move should come as no surprise to Marion County Circuit Judge Mary Mertens James, who said the law unfairly gives some people rights that others aren't entitled to, violating the equal-protection clause of the Oregon Constitution.

    "If a judge is going to overturn 1.6 million Oregonians' votes, she can't be surprised there's going to be action," Steffen said.

    He said his motivation for filing for James' recall was to show the state and national governments that citizens are serious about keeping judges working within the voters' will.

As Randal O'Toole notes on the American Dream Coalition blog:

    Measure 37, which was passed by more than 60 percent of Oregon voters last November, provides that anyone whose property values have been reduced by land-use rules imposed since they purchased the property may apply for compensation or have the rules waived. Judge James rules that the measure was unfair because it treated people who purchased their property before the rules were passed differently from those who purchased it afterwards. Economically, there is a difference between these people: the ones who purchased it before expected to be able to use it in certain ways that were later proscribed by the rules, while the ones who purchased it afterwards did not expect to use it in such ways, and presumably paid less for the property.

    Advocates of measure 37 say that the measure's different treatment of different property owners is no different than zoning's treatment of the owners of land on two different zones. Under Judge James' reasoning, all zoning and urban-growth boundaries should be ruled unconstitutional. Unfortuately, Oregon judges seem to have a strong prejudice in favor of zoning and planning and against property rights, so a ruling against zoning and urban-growth boundaries is unlikely.

Leonard Gilroy is Director of Government Reform


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