Smejkal v. STATE EX REL. DAS.
239 Or. App. 553
Or. Ct. App.2010Background
- Plaintiff obtained Measure 37 waivers from defendants to exempt his properties from post-acquisition land use regulations.
- Measure 49 was enacted in 2007 to narrow Measure 37 relief and became effective December 6, 2007.
- Plaintiff asserted two claims: impairment of contracts due to Measure 49 and a separation of powers challenge to repeal of waivers.
- Trial court granted summary judgment for defendants, dismissing the contract and declaratory relief claims.
- Court held Measure 37 waivers were not contracts and thus could not be impaired; Measure 49 did not violate separation of powers.
- Remand instructed to declare rights on the second relief claim in light of the opinion; otherwise affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Measure 37 waivers constitute contracts? | Smjkal argues waivers were contracts forming binding obligations. | State and county contend waivers are not contracts and thus not subject to impairment. | No contract formed; impairment claim fails. |
| Does Measure 49 impair contractual obligations if waivers are contracts? | Measure 49 violates Article I, section 21 by impairing contract obligations. | Waivers are not contracts, so no impairment occurs. | Impairment claim rejected on contract nonexistence grounds. |
| Does repeal of waivers under Measure 49 violate separation of powers (Article III, section 1)? | repeal unduly burdens judicially adjudicated waivers. | Legislature may alter relief; executive/local actions are not judicial judgments. | No separation of powers violation; repeal permissible. |
Key Cases Cited
- MacPherson v. DAS, 340 Or. 117 (2006) (Measure 37 does not contract away legislative power)
- Hughes v. State of Oregon, 314 Or. 1 (1992) (two-part contract impairment inquiry)
- K.R.A.M. Corp. v. City of Vernonia, 95 Or. App. 534 (1989) (permits do not create irrevocable rights; subject to change in law)
- Campbell v. Aldrich, 159 Or. 208 (1938) (statutes may create contractual obligations only if unmistakably intended)
- FOPPO v. State of Oregon, 144 Or. App. 535 (1996) (contractual commitment requires clear legislative intent not to repeal)
- Eckles v. State of Oregon, 306 Or. 380 (1988) (contractual effect requires express commitment)
- Robertson v. Kulongoski, 466 F.3d 1114 (9th Cir. 2006) (clear indication of legislative intent required for impairment under federal law)