The OC Blog Back Issues Our Mission Contact Us Masthead
Sudsy Wants You to Join the Oregon Commentator

Through the looking glass and into the slot

And so the Measure 37 ride begins . . .

Fed up with contributing to hay fever in the grass seed capitol of the world, two brothers in Marion County have filed with the county to be allowed to build a casino, hotel and golf course on part of their 285-acre farm. If the county does not allow it, Mark and Dean McKay claim $3 billion in compensation.

The Oregon Constitution prohibits casinos. However, the McKay family has owned the land since before Oregon became a state. It would seem, then, that they have a valid Measure 37 claim if the prohibition is enforced against them, as they attained ownership prior to the regulation. If you’re like me, right now you’re screaming “Why doesn’t Measure 37 have a constitutional exception?” But it doesn’t, so here we are.

But there is a hitch. Measure 37 does not allow claims against regulations “restricting or prohibiting activities for the protection of public health and safety,” in other words, those regulations coming within a state’s traditionally recognized police powers. The state can make a strong case that prohibiting casinos is done legitimately for the protection of public health and safety.

But how about a hitch to that hitch? The language in the section that refers to public health and safety gives as examples restrictions “such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations.” No mention of public morals regulations. Meanwhile, another exception to Measure 37 does specifically mention public morals regulations — those “restricting or prohibiting the use of a property for the purpose of selling pornography or performing nude dancing.” Porn and strippers, but not gambling? It’s a good place to apply the old expressio unius est exclusio alterius principle, don’t you think, and conclude that there is no gambling exception to Measure 37?

Oh, but wait, I just found another hitch. Measure 37 does not apply to restrictions enacted prior to inheritance, as well as purchase, of property. So it doesn’t matter that the McKay family has owned the land since time immemorial, because the present owners inherited it well after Oregon adopted its constitution. Right? Well, that depends on what “inheritance” means. Strictly put, one only “inherits” property if it is passed down in the absence of a will pursuant to the instestacy statutes. If you take property pursuant to a will, the property is devised to you and you do not inherit it. And don’t even get me started on trusts.

So who freakin’ knows how this claim will go?

Isn’t this fun? Thanks, Oregon voters!

  1. Marc says:

    Just love your blog!

  2. Pete says:

    Yeah, that was me. Sorry.

  3. Anonymous says:

    Dude, I just spent ALL day researching 37 and I’m still scratching my head. I think in order for this to even be considered the brothers would need to show a paper trail that demonstrates that they previously applied and subsequently been denied for the rights to build a casino. Otherwise you could simply brainstorm dozens of developments that you potentially COULD have done were in not for those darn regulations, and if just one sticks you could get a huge government check. You wont find wording like that anywhere in measure 37, but then you wont find much of anything in 37 that addresses how ANY of this should be implemented. At the moment every city and county is figuring out how to process the claims… and theyll probably be different standards everywhere. At some point the legislature may introduce a bill that clarifies 37 while keeping the spirit intact. If that doesnt happen, a court case somewhere down the line will probably set precedent for this particular issue.

    This morning I talked with Oregonians in Actions, the lobby group behind 37, and dude said that the porn bit is in there because it was one of the reasons measure 7 was invalidated in 2002. There was concern that the measure could usher in hundreds of waivers or reimbursements for potential porn shops that had been forced to close because of zoning.

    And I could be a little off on some of this, but Im really tired. Good stuff though. Oregon– Hell, Well Pass Anything.

  4. Timothy says:

    As an Oregon voter it was always my policy to vote against all ballot measures unless they were obviously completely benign. Like allowing denturists to do partials or changing out-of-date language and spelling errors in the Oregon Constitution.

  5. Josh M. says:

    I think the idea behind Measure 37 makes sense, but there were way too many things left unconsidered before this was rushed to we, the voters. And I’VE learned that voting for a measure because hippies are against it is not always the best policy.

  6. Andy says:

    so are you against the letter or the intent of the law? 🙂

  7. Casey says:

    I wish someone would start a referendum on ending the referendum. I imagine it would be a hard sell to convince people that they are too stupid to understand most of the finer points of complex issues like land use management, but someone should at least give it a try. Hopefully when the fat rendering plant goes in next to Pioneer Courthouse Square, people may get the idea. For Christ’s sakes, make the legislators do the legislating and leave it at that.

Sorry, the comment form is closed at this time.