Judge Colbert on Property Rights
From Judgepedia
Justice Colbert concurred in the majority opinion of Justice Yvonne Kauger, which invalidated a property-rights based voter initiative what would have protected private property from economic-development and regulatory takings.
ISSUES:
In this case, the court considered whether an initiative that (1) prevents government from taking private property to transfer it to a private party; and (2) requires government to pay compensation to owners of private property whose property values are adversely affected by newly-enacted government regulations violated Oklahoma's broadly-construed requirement that all ballot initiatives contain a single subject.
HOLDING:
The majority of the Court, led by Justice Kauger, held that that the Initiative consisted of two unrelated provisions.
REASONING:
In arriving at that decision, the court reasoned as follows:
- (1) The Initiative runs afoul of Oklahoma's "single-subject rule," the purpose of which is "to prevent the practice of assuring the passage of a law by creating a proverbial 'Hobson's choice,' [("take it or leave it")] in which a legislator or voter is forced to assent to an unfavorable provision provision to secure passage of a favorable one, or conversely, forced to vote against a favorable provision to ensure that an unfavorable provision is not enacted."
- (2) "Zoning laws and takings are mutually exclusive."
- (3) The initiative seeks to erase the delineation between zoning laws and takings, instead of addressing two separate types of takings.
- (4) "Whether we explicitly stated it or not, the issue is not how similar or related any two provisions in a proposal are, or whether one can articulate some rational connection between the provisions of a proposed law, but whether it appears that either the proposal is misleading or provisions in the proposal are so unrelated that many of those voting on the law would be faced with an unpalatable all-or-nothing choice."
- (5) "Because [the concern over eminent domain] continues, voters might approve of limitations on the power of eminent domain contained in [the initiative]. However, those who might approve of the first subject would by no means necessarily approve of the unrelated second subject, which would seem to make most zoning laws, with a few exceptions, unworkable. To present the voters with such an all-or-nothing choice is clearly an attempt at logrolling, which violates the basic purpose of the single subject rule."
POTENTIAL FLAWS IN THE COURT'S REASONING:
- (1) Oklahoma's "single subject rule," prior to this case, had been construed extremely broadly; so broad, in fact, that it an initiative (1) proposing ad valorem taxes for public schools; (2) outlining how those taxes would be used; (3) increasing the debt limit for school districts; (4) removing certain limits on school contracts; and (5) providing additional funds for schools districts and improvements at state institutions. See Rupe v. Shaw, 1955 OK 223, 286 P.2d 1094.
- (2) The Court acknowledges that the single subject rule is "broad, liberal, and satisfied by all proposed laws but those with the most scattered and disconnected provisions." Given that both prongs of the initiative tackle the regulation of property, one could make the argument that they constitute a single subject.
- (3) Arguably, a very a powerful case can be made, particularly in light of the court's broad application of the single subject rule prior to this case, that the Initiative merely constituted an effort to regulate takings: both physical takings through eminent domain, and regulatory takings through land use regulation.
- (4) Many have made the observation that a physical taking is merely a regulation "that goes to far." See Pennsylvania Coal Co. v. Mahon (1922), 260 U.S. 393. This prior acknowledgment by the U.S. Supreme Court would appear to indicate that regulatory takings and physical takings constitute a "single subject."
- (5) The court's primary concern appears to be that voters who approve of the eminent domain restriction may also then end up voting for the provision regarding compensation for land use regulations. This concern, as the court voices it (see above), appears to paternally assume that unwitting supporters of eminent domain reform will also support compensation for land use regulation. Alternatively, the court may be presuming that supporters of the eminent domain provision will be forced, against their will, to support the land use provision even though they disagree with it. Either of these presumptions appears faulty. Firstly, it may be equally, if not more, likely that supporters of the eminent domain provision are apt to support other types of property rights, such as those encroached upon by land use regulation. Secondly, one vehemently opposed to compensation for land use regulation is free to vote against the Initiative on the basis. There is no compulsion to do otherwise, as the court appears to indicate. Unfortunately, the only way to discern such preferences would have been to pose the issue to the voters, and the Court's decision, even though sufficient signatures were obtained for ballot access, denies that opportunity.
