Smejkal v. STATE EX REL. DAS.
239 Or. App. 553
Or. Ct. App.2010Background
- Plaintiff Smjkal obtained Measure 37 waivers from state and Washington County to apply post-acquisition regulations to various properties.
- Measure 49, adopted in 2007 and effective December 6, 2007, narrowed Measure 37 relief and repealed/altered previously granted waivers.
- Plaintiff asserted impairment of contract and separation of powers claims arising from Measure 49's effects on the waivers.
- Trial court granted summary judgment for defendants, concluding no merit to plaintiff's claims.
- Court of Appeals reviews whether waivers were contracts and whether Measure 49 unlawfully impaired them or violated separation of powers.
- Court concludes no contract was formed by Measure 37 waivers, and Measure 49 does not violate contract impairment or separation of powers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Measure 37 waivers contracts? | Smjkal asserts waivers created contractual rights to forebear regulation. | Waivers are not contracts; statutory duties are not inherently contractual. | Waivers do not constitute contracts. |
| Did Measure 49 impair the obligation of a contract with waivers? | Measure 49 extinguishes contractual waiver rights. | No contract existed, so no impairment occurs. | No impairment claim viable because no contract formed. |
| Does repeal of waivers under Measure 49 violate separation of powers? | Legislation interferes with judicial‑created waivers. | Legislature may alter relief; waivers are not judicial judgments. | No separation‑of‑powers violation; legislature may alter relief. |
Key Cases Cited
- Hughes v. State of Oregon, 314 Or. 1 (1992) (two‑part test for contractual impairment claims; governs implied contracts with the state)
- MacPherson v. DAS, 340 Or. 117 (2006) (Measure 37 does not contract away the legislature's plenary power to enact future regulations)
- K.R.A.M. Corp. v. City of Vernonia, 95 Or. App. 534 (1989) (permits do not create irrevocable rights; can be modified or revoked by later law)
- Campbell et al. v. Aldrich et al., 159 Or. 208 (1938) (statutes may contain contractual obligations only if clearly intended to be irrevocable)
- Eckles v. State of Oregon, 306 Or. 380 (1988) (principles on when statutory commitments constitute contracts)
- FOPPO v. State of Oregon, 144 Or. App. 535 (1996) (examination of whether statute creates a contractual commitment against repeal)
- Rooney v. Kulongoski (Elections Division #13), 322 Or. 15 (1995) (separation of powers considerations for executive vs judicial functions)
- LaGrande/Astoria v. PERB, 281 Or. 137 (1978) (autonomy principles for home-rule entities in local government)