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!
