Getting Real - Real Estate and Land Use Hotsheet - February 22, 2001
OREGON CIRCUIT COURT STOPS MEASURE 7
On Thursday, February 22, 2001, Oregon Circuit Court Judge Paul J. Lipscomb issued his
opinion on Ballot Measure 7 in a suit for declaratory judgment brought by Audrey McCall,
Hector McPherson, the League of Oregon Cities, and many other supporters of Oregon’s existing
land use planning program. Judge Lipscomb concluded that the preliminary injunction he issued
on December 6, 2000, should be made permanent and formally declared that Measure 7 was not
validly enacted in accordance with procedures required by the Oregon Constitution. Judge
Lipscomb emphasized that his opinion did not address the merits of Measure 7.
What Were the Arguments?
The plaintiffs made four arguments to Judge Lipscomb. He agreed with just two:
1. The “Full Text” Challenge. Article IV, Section 1(2)(d) of the Oregon Constitution provides,
in relevant part: “An initiative petition shall include the full text of the proposed law or
amendment to the Constitution.” The purpose of this requirement is to give voters fair notice of
all of the legal changes which would follow from the enactment of the proposed amendment.
The plaintiffs argued that because some of the new subsections added by Measure 7 to Article 1,
Section 18 of the Oregon Constitution actually modified the effect of existing provisions, and the
voters were not informed of this prior to voting, the voters had not seen the full text. The judge
agreed. He noted that the new provisions contained in Measure 7 would apply to and change the
original condemnation provisions in Article 1, Section 18. He gave several examples, including
two which he deemed to be particularly significant: (1) “just compensation” in the original
provisions would be changed to include “reasonable attorney fees and expenses necessary to
collect the compensation” whenever the compensation was “not fully paid within 90 days of
filing” of a claim; and (2) payment for personal services would apparently also have to be made
within the 90-day time frame or additional amounts would become due for attorney fees and
costs. The judge observed that the “full text” problem is not without a solution. The opinion
says that “providing the voters with notice of the additional direct changes to the substance of the
Constitution made by the amending language would have required only the addition of a single
paragraph to the measure. Alternatively, a one word change in the language of the measure to
confine its impact to the new subsection rather than applying it to the entire section would have
avoided the problem entirely.”
2. The “Separate Votes” Challenge. The Oregon Constitution, Article XVIII, Section 1
provides, in part: “When two or more amendments [are] submitted [to the voters] at the same
election, they shall be so submitted that each amendment shall be voted on separately.” The
Oregon Supreme Court recently interpreted this language to require a determination of whether,
if adopted, the proposal would make two or more changes to the Oregon Constitution that (1) are
substantive; and (2) are not closely related. After quickly concluding Measure 7 would make
two or more substantive changes to the constitution, Judge Lipscomb focused on the “closely
related” test. This test was recently interpreted by the Oregon Court of Appeals to say that
political support for one proposed change must “necessarily imply” support for the others before
Page 1 of 2
the amending changes were sufficiently linked. That interpretation is on appeal to the Oregon
Supreme Court by the state, which advocates a different test: two or more changes to the Oregon
Constitution are “closely related” if they are so logically interrelated as to present “one specific,
discrete, cohesive policy choice” and “accomplish a single, specific unifying purpose.” Judge
Lipscomb concluded that regardless of which test is used, the changes effected by Measure 7 are
not closely related. He specifically mentioned (1) changing the process of establishing and
paying “just compensation” when government takes property for public use, or demands the
particular services of any person; (2) the establishment of a wholly new requirement for
compensating citizens for restrictions on the use of their property; (3) exempting regulatory
restrictions applied to drug and liquor stores, adult businesses, casinos, and gambling parlors;
and (4) exempting nuisance laws, as “narrowly construed.”
Now What?
The supporters of Measure 7 can be expected to appeal Judge Lipscomb’s ruling, but this may
not be their primary focus. The February 13, 2001, Oregon Attorney General’s opinion
interpreting Measure 7 raised issues and discussed impacts that were not discussed prior to
passage, and which are problematic even for many supporters. The real action should shift to the
Legislature. Supporters of Measure 7 will argue that the people have spoken, and their wishes
should be honored, perhaps through a legislative “fix.” Opponents will argue that Measure 7 is
doomed, and since the voters did not fully understand it on Election Day, it doesn’t merit
salvage.
As always, we will be closely monitoring the situation and looking for opportunities to assist our
clients whenever possible.
Because of the changing nature of this area of the law and the importance of individual facts, this information is not
meant to provide legal opinions and is not a substitute for the advice of legal counsel.
For more information on the issues discussed in this hot sheet, please contact the Real Estate, Environmental and
Land Use Practice Group at:
realestate@lanepowell.com
(503) 778-2100 Portland
(206) 223-7000 Seattle
or visit our website at
www.lanepowell.com
Page 2 of 2