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 Letter from Senator Doug Whitsett, 10/19/05

Gail and I are becoming more and more concerned about what we believe to be judicial activism. Iím certainly not a lawyer, and may not understand the intricacies of some of the law, but recent court decisions at all levels have raised my concerns about the preservation of the constitutionally reserved rights of our citizens. It seems that with each passing week another judge at some level has made another ruling that further restricts the freedoms protected by our constitutional.

Last Friday Marion County District Court Judge Mary James invalidated Measure 37 in Marion County, ruling that the voter passed land use initiative is unconstitutional five separate ways. Measure 37 requires government to either compensate a property owner for reduced property value caused by land use regulations passed after they acquired their property or allow the restricted property use. Although Judge Jamesí ruling is only legally binding on the counties that were party to the suit, I am concerned that most counties will stop processing Measure 37 claims until the Appellate Court rules on her decision.

The judge ruled that the measure:

1.)           Violates the equal protection clause of the Oregon and United States Constitution.

2.)           Violates the State Constitution ban on suspending laws.

3.)           Violates the separation of powers between branches of government.

4.)           Intrudes on legislative authority.

5.)           And violates due process protections under the U.S. Constitution.

The judge essentially agreed with every novel interpretation of the law proposed by the plaintiffs. Does she believe that compensating selected individuals for government caused loss of property value violates the constitution but that selectively taking the value of their private property does not? Does she believe that our constitutionally reserved right to create law by the initiative process is unconstitutional?  Measure 37 is codified into Oregon Revised Statutes. The 73rd Legislature had full opportunity to change the law and declined to take any action. Instead, one district court judge has taken it upon herself to create law. In my opinion, that action is what is unconstitutional.

Last month U.S. District Court Judge James Singleton Jr. ruled in California that essentially all activity allowed on Forest Service land is subject to congressional guarantee of public notice, comment and appeal, except for activities like building maintenance and lawn mowing. His ruling effectively eliminated public access to Forest Service land for mushroom harvest, Christmas tree harvest, wood cutting, moss gathering and any other activity that would remove anything from our public forests. Unless the judge stays his ruling pending Forest Service appeal, a mushroom gathering industry worth tens of million dollars in Oregon, and some 65,000 Christmas tree permitees will be banned from those activities immediately. This is starting to sound like the old English Kingís forests where the king controlled the forest and everything in it under penalty of law.  Only here in the United States, Judge Singletonís ruling essentially gave control of all use of our National Forests to environmentalist groups like the Western Environmental Law Center by virtue of their ability to appeal all forest use decisions.

Last week the Oregon Supreme Court ruled 4 to 3 that the Portland Public School District did not have authority to outsource it custodial work to private firms. Citing a 1937 statute the Court said that only public employees may be paid with funds allocated to public schools in Oregon. The ruling, that overturned decisions by the Employee Relations Board and the Appellate Court, reversed a school board management decision that has saved millions of dollars. The public employee unions that brought the suit are ecstatic. Oregonís highest court has essentially forbidden the state to pay for private competition to the government school system monopoly.

Finally, last summer the United States Supreme Court ruled in the Kelo decision that government has the right to transfer private property taken through eminent domain to another private entity that the government believes is better qualified to use that property. This decision turns more than two centuries of private property rights on its head. Following that ruling, no private property in the United States is safe from forced government acquisition if another private entity with enough wealth and political influence wants the property. In my opinion, this is one of the worst Supreme Court decisions in our nationís history. The sanctity of private property is the cornerstone upon which all our other freedoms are based.

I believe that we all must start paying much closer attention to who are elected or appointed to judgeships at all levels. We must examine each judicial candidate to determine their legal ability, philosophy, and commitment to interpreting the law. Then, we must elect judges that will interpret the law---not create law to fit their personal opinion.

Above all remember that if we do not stand up for rural Oregon no one will.


Best regards,







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