Bowers v. Whitman
671 F.3d 905
9th Cir.2012Background
- Measure 37 in 2004 required compensation for reduced land value from regulations and allowed waivers or waivers-to-use under § 197.352.
- Measure 37 waivers were administrative decisions, not contracts or court judgments, and often provided waivers rather than monetary compensation.
- Measure 49 (2007) replaced Measure 37 remedies, limiting monetary relief and waivers and creating a vested-right inquiry for preexisting claims.
- Plaintiffs alleged Measure 49 deprived them of anticipated compensation or land-use rights and violated takings, due process, and equal protection.
- District court proceedings and prior Ninth Circuit decisions held waivers were not cognizable guarantees, affecting railroading to dismissal of certain claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Measure 49 cause a taking of vested Measure 37 interests? | Plaintiffs claim vested rights to compensation or waivers were taken without just compensation. | No vested property interests because waivers were discretionary, not final judgments or contracts. | No taking; interests not vested under Measure 37. |
| Does Measure 49 survive substantive due process scrutiny? | Measure 49 infringes fundamental rights thus triggers strict scrutiny. | Economic rights are not fundamental; rational-basis review applies. | Measure 49 passes rational-basis review. |
| Does Measure 49 create unconstitutional disparate treatment under equal protection? | Remedies are uneven and irrationally distributed among claimants. | Classification is rational and serves legitimate state interests in balancing remedies and resources. | Rational-basis review upheld; no equal protection violation. |
Key Cases Cited
- Engquist v. Oregon Dept. of Agric., 478 F.3d 985 (9th Cir. 2007) (takings inquiry requires property interest certainty)
- Bd. of Regents v. Roth, 408 U.S. 564 (U.S. 1972) (definition of property interests from state law)
- Perry v. Sindermann, 408 U.S. 593 (U.S. 1972) (due process rights without vested property interests)
- Sioux Nation v. United States, 448 U.S. 371 (U.S. 1980) (vested entitlements require explicit promises or consideration)
- Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (U.S. 1981) (government confiscation of interest as taking requires compensation)
- Lynch v. United States, 292 U.S. 571 (U.S. 1934) (government cannot avoid obligations by retroactive changes)
- Holmes v. Clackamas County, 265 Or. 193 (Or. 1973) (Holmes factors for vesting of property rights)
- Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (U.S. 1985) (ripeness and final decision requirement for takings claims)
- English v. Multnomah Cnty., 238 P.3d 980 (Or. 2010) (measure of final judgments extinguishing certain rights under Measure 37)
- Flemming v. Nestor, 363 U.S. 603 (U.S. 1960) (government can alter social security-like benefits under certain conditions)