"No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions." --Thomas Jefferson to John Tyler, 1804.


Measure 37 is back in full, and not. Legally, it has returned to status as functional and operative law of Oregon. Politically? That may be another matter.

Its constitutionality was upheld firmly in today’s decision by the Oregon Supreme Court in Hector McPherson v. Department of Administrative Services – it left no part of the legal attack on the land use law standing. Most basically, the court held that a lower court judge and the plaintiffs misunderstood the relationship between the measure and the nature of legislative power in Oregon.)

The summary paragraph read this way: “In sum, we conclude that (1) plaintiffs’ claims are justiciable; (2) Measure 37 does not impede the legislative plenary power; (3) Measure 37 does not violate the equal privileges and immunities guarantee of Article I, section 20, of the Oregon Constitution; (4) Measure 37 does not violate the suspension of laws provision contained in Article I, section 22, of the Oregon Constitution; (5) Measure 37 does not violate separation of powers constraints; (6) Measure 37 does not waive impermissibly sovereign immunity; and (7) Measure 37 does not violate the Fourteenth Amendment to the United States Constitution. The trial court’s contrary conclusions under the state and federal constitutions were erroneous and must be reversed.”

Every challenge posed so far was rejected, and that probably means Measure 37 will not be thrown out by the courts, period.

There may be other meanings as well, though.

One is that the legal battle may shift rather than conclude. While the measure has been deemed constitutional, the new decision did not at all seek to address the many interpretive questions around it. Can, for example, a new buyer of land take advantage of the Measure 37 prerogatives a prior owner had? That’s one question in dispute. There are others. And now that Measure 37 clearly is staying on the books, there will likely be many more.

Another point is that the policy debate over land use in Oregon will return to the places where it most properly belongs, in legislatures, local governments, political campaigns and among interested organizations.

Another is that, with the retention of Measure 37, much of the air is likely to go out of the land-use-law-change movement. Whenever a political movement succeeds in its goals, much of the energy and emotion drains, often quickly, and usually transfers to the opposition. (Think of the historic trends in the debate on abortion.) Land use law advocates may find a shot of energy in several of this year’s elections in Oregon.

[ADDED] The half-year or so that the measure has been under legal cloud has brought to a halt the forward momentum, and probably has led to some reflection on the part of a lot of Oregonians. An editorial in the Eugene Register Guard may have brought out some of the next round of thinking as this political year progresses:

“The Oregon Supreme Court ruled Tuesday that Measure 37 was constitutional, but it didn’t rule that it was fair or sound public policy. It is neither, and the new ruling underscores the need for strong leadership from Gov. Ted Kulongoski – the same kind of leadership that former Gov. Tom McCall showed more than three decades ago when he shepherded the current system into existence. Now, that system must evolve if it is to survive. The governor and state legislators must act if Oregon’s unique land-use system is to protect the state’s quality of life for future generations.”

In politics, battles never end. They simply change form, emotion and ground.

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