Tuesday, October 18, 2005

Politicizing (and Trivializing) the Oregon Constitution

Last week Marion County Judge Mary James added to politicizing the Oregon constitution. She found Measure 37, a land compensation law passed by 60% of Oregon voters in 2004, unconstitutional.

This is one of several slaps to Oregon voters issued by Oregon courts in recent years. This kind of ruling gives the clear message that initiative petitions should be framed as constitutional amendments rather than state measures. Otherwise they are more likely to face defeat in the courts whatever the outcome at the ballot box. This trivializes the Oregon Constitution. It becomes more and more a compilation of state laws and codes rather than the ruling legal framework a constitution was meant to be.

Judge James ruled that Measure 37 was unconstitutional because it favored land owners who bought their property before land use regulations were enacted thus violating equal protection by applying different standards to different property owners. She also ruled that it was unconstitutional in restricting the power of the legislature to make rules to protect public health, welfare and safety.

According to this ruling tons of Oregon statutes and regulations must be unconstitutional.

1. Applying different standards. The tax code is riddled with different standards based on, oh, if you own a home, are married, give to non-profit organizations, are disabled, elderly, have dependents, etc. This doesn’t even touch the Multnomah County income tax which doesn’t apply to PERS retirement earnings but does apply to other retirement earnings.

Then there are DEQ vehicle standards which only apply to people who live in certain areas – as do most land use planning laws.

What is strangest of all is that Judge James seems to be saying that the measure would have been constitutional only if it had effectively done away with all land use planning by requiring compensation to every property owner. I’m sure there are lots of property owners who might agree with that. But, the framers of the initiative and the voters who approved it thought limiting the claims on local government to those owners who bought their property without any possibility of knowing that their use would later be restricted were the ones most entitled to compensation for their loss.

2. Restricting the power of the legislature. This is a “one size fits all” argument. One could reasonably argue that the entire Oregon Constitution, with the possible exception of parts of Article IV Legislative Department, is unconstitutional in restricting the power of the legislature to make rules which might protect public health, welfare and safety. But, those rules would be at the expense of personal liberty, or the powers of the Executive branch, or even the Judicial branch.

The fear that Oregon courts might rule a mere measure passed by initiative petition unconstitutional is one reason the policy establishing marriage in Oregon as being between one man and one woman was sent to the voters as a constitutional amendment (Article XV, Section 5a) rather than a normal state measure.

Judge James’ ruling is not the first step towards trivializing the Oregon Constitution and the “Oregon System” (referendum, initiative and recall) by finding inventive ways of striking down initiative petition measures and constitutional amendments passed by the people.

The Oregon Supreme Court struck down Measure 40, a crime victims' rights amendment passed in 1996, because it included more than one change to the Oregon Constitution. Any change to the state constitution must be restricted to a "single-subject". The Court found that Measure 40, though not "expressly" changing more than one part of the Oregon Constitution, "implicitly" touched other parts of the constitution. Thus, it was unconstitutional.

The trouble with that, of course, is that almost all constitutional amendments implicitly impact other parts of the constitution. If nothing else, they can be seen both to touch on whatever article and section they expressly address as well as implicitly impact the global Section 33 of Article I:

Section 33. Enumeration of rights not exclusive. This enumeration of rights, and privileges shall not be construed to impair or deny others retained by the people.—

One might even say that since Section 33 expressly alludes to all the other areas it is unconstitutional.

What the ruling against Measure 40 did was to warn that any amendment to the Oregon Constitution that had any complexity (such as the first amendment to the US Constitution has), might be found unconstitutional. In dealing with any issue, no matter how complex, the simplest of wording has the best chance of being found constitutional. Thus, the one-man-one-woman definition of marriage is composed as directly and simply as possible.

Section 5a. Policy regarding marriage. It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.

Can't get much simpler than that. Still there are challenges to its constitutionality because it implicitly impacts more than one section of the Oregon Constitution.

What a pity to push the Oregon Constitution toward being an ever growing number of statutory codes because judicial interpretation has become a political “gotcha” game.

One plays the political game by the rules set down. In finding new parameters, which are not applied evenly to all amendments, laws and codes, Oregon judges are constructing a political playing field which both politicizes and trivializes the Oregon Constitution and the courts themselves.

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