Judge Hargrave on Property Rights
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2006
In re Initiative Petition No. 382, State Question No. 729 (2006)
Justice Hargrave, along with Justices Lavender and Opala dissented from the majority opinion of Justice Yvonne Kauger and five others, 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:
For a discussion of potential flaws in the court's reasoning, see this link to the discussion page, or click the discussion tab at the top of this page.
2004
Edmondson v. Pearce (2004)
Justice Hargrave 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:
For a discussion of potential flaws in the court's reasoning, see this link to the discussion page, or click the discussion tab at the top of this page.
