Judge Watt on Property Rights
From Judgepedia
2006
Justice Watt 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.
2004
Justice Watt concurred in the majority opinion concluding that the state's newly enacted prohibition on cock-fighting did not, amongst other things, constitute and regulatory taking of private property without compensation, or an unlawful interference with the contractual rights of those involved in cockfighting.
ISSUES:
In this case, the court considered whether (1) prohibiting the use of birds for fighting purposes constituted a regulatory taking or damaging of the plaintiffs' property for public use without just compensation; and (2) the act unconstitutionally infringed upon the contractual rights of the plaintiffs by taking immediate effect and nullifying contracts surrounding cockfighting.
HOLDING:
As to regulatory takings challenge, the Court held that the mere outlawing of one use of game-birds, that being fighting, was not sufficient to constitute a regulatory taking of those birds worthy of compensation; (2) the prohibition against using birds for cockfighting is a reasonable and proper use of the police power even though it substantially reduced the value of game-fowl or accompanying property used in cockfighting and had the effect of prohibiting that property's most beneficial use.
As to the impairment of contracts challenge, the Court held that "it is simply not a reasonable expectancy that an existent contract at the time of passage of this Act, which contains terms extending into the future concerning the use or sale of game fowl or gamecocks, would be immune from being overridden by valid police power regulation outlawing or prohibiting cockfighting.
REASONING:
In arriving at that decision, the court reasoned as follows:
- (1) "The prohibition against using birds for fighting purposes is a reasonable and proper exercise of the police power by the electorate acting in its legislative capacity to promote public morals and to ban an activity deemed injurious thereto, rather than a regulatory taking * * *."
- (2) "At a minimum, the Act serves the significant and legitimate public purpose of preventing cruelty to animals and prohibiting human involvement in bird fighting, obviously out of compassion for avian creatures."
- (3) Property interests in game-fowl cannot be said to be entirely legitimate property interests because "[A]bout 40 years ago, our own Court of Criminal Appeals foreshadowed the potential for specifically outlawing cockfighting [because that Court indicated that cockfighting could someday be outlawed]." "[W]e have serious doubts as to whether- given this Oklahoma perspective- the use of birds for fighting, could ever be considered an identifiable property interest subject to protection."
- (4) A second purpose in addition to the prevention of animal cruelty has, thus, seemed to have been recognized for quite some time: to wit, safeguarding the public welfare by protecting our populace against the debasing and brutalizing effects upon those who witness such events.
- (5) "Suffice it so say that government regulation- by definition- involves the adjustment of rights for the public good. Often this adjustment curtails some potential for the use or economic exploitation of private property. To require compensation in all such circumstances would effectively compel the government to regulate by purchase."
- (6) The "denial of one traditional property right does not always amount to a taking. At least where an owner possesses a full bundle of property rights, the destruction of one strand of the bundles is not a taking, because the aggregate must be viewed in its entirety."
- (7) "[L]oss of future profits * * * provides a slender reed upon which to rest a takings claim."
- (8) "[T]he Court has sustained regulations prohibiting the sale of alcoholic beverages despite the fact that individuals were left with previously acquired stocks."
- (9) "[I]t could not reasonably be expected by respondents or anyone else that cockfighting, simply, simply because it was lawful prior to the Act's passage, would always remain so. * * * criminal statutes prohibiting cruelty to animals or instigating fights between animals have been part of Oklahoma since at least the early 20th Century."
- (10) "The Court of Criminal Appeals expressly presaged the potential for future prohibition of [cockfighting] by legislative action."
POTENTIAL FLAWS IN THE COURT'S REASONING:
- (1) Although the court acknowledges that a regulation may amount to a taking of private property when it "goes to far" in destroying the value of the property, it then declines to apply that standard so as to require compensation in this case. The Court acknowledges that the only competent testimony on the diminution in value indicates that (1) the gamecocks have value for only one purpose: fighting each other; (2) they are not fit for consumption; and (3) they would have to be destroyed in order to avoid criminal prosecution under the act. The trial court agreed with this testimony, and actually enjoined the Act from becoming law on that basis. Further, testimony indicated that nearly the entire value of the average gamecock operation, which ranged in value from $75,000 to $100,000, would be destroyed. In aggregate, these factors indicate that, in this case, it could have been appropriate to deem the prohibition on cockfighting a taking, and require that compensation be paid to the owners of the gamecocks and gamecock operations.
- (2) The Court appears to stray, both logically and legally, when it announces that game-fowl should not be considered property because 40 years earlier the Oklahoma Court of Criminal Appeals speculated as to whether cockfighting may, some day, be prohibited. The logical extension of this reasoning would be that if a court today speculated on the topic of whether home ownership may be illegitimate in 40 years, a court 40 years from today would be justified in abstaining from recognizing one's home as property requiring compensation when taken, because homeowners were "on notice." It may be the case that, in an idea-driven society, many propositions can be made regarding the putative prohibition of certain types of properties and activities. The Court's reasoning implies that the mere bantering about of such ideas is sufficient to disgorge property rights. The unpopularity of cockfighting may have contributed to such reasoning, but the popularity of a particular right or ownership interest should probably not determine whether such an interest legally exists.
