Community Rights Amendment Language
This draft version is based on the January 28, 2019 draft of LC 2625 proposed for the 2019 Regular Session of the Oregon Legislature.
Whereas all power is inherent in the people and all free governments are founded on the people’s authority and instituted for the people’s peace, safety and happiness, and therefore the people have a fundamental and inalienable right of local community self-government in each county, city, town or other local governments; and
Whereas Oregon courts have not generally recognized that this right includes the right of local community self-government, even though our constitution already provides that “all power is inherent in the people, and all free governments are founded on their authority” (Article I, Section 1);
Whereas, inherent rights such as this one should be codified when government threatens a right that the people had never imagined that it would be necessary to expressly state; now, therefore,
Be It Resolved by the Legislative Assembly of the State of Oregon:
PARAGRAPH 1. The Constitution of the State of Oregon is amended by creating a new section 47 to be added to and made a part of Article I, such section to read:
SECTION 47. Right of local community self-government.
(1) The people have an inalienable and fundamental right of local community self-government. The people may exercise this right through direct democracy, such as by ballot initiatives, or their local representatives in each county, city, town, or other general-purpose local government, which the state may not destroy or weaken.
(2) The people and their governments may exercise any power not prohibited by this constitution or by a state law that meets the requirements of Subsection (3) of this section. This power includes, but is not limited to, the power to enact and enforce local laws through direct or representative democracy, that:
(a) Protect health, safety, and welfare by recognizing or establishing the rights of natural persons, local communities, and ecosystems; and
(b) Secure those rights using prohibitions and other means deemed necessary by the community, including measures to establish, define, alter, or eliminate competing rights, powers, privileges, immunities, or duties of all corporations and other business entities operating, or seeking to operate, in the community.
(3) Local laws enacted pursuant to subsection (2) of this section shall be immune from preemption or nullification by state or federal law and shall not be subject to limitation or preemption under section 1 (5), Article IV, section 10, Article VI, or section 2, Article XI of this Constitution, or ORS 203.035 (2017 Edition), provided that such local laws do not:
(a) Restrict fundamental rights of natural persons, local communities, or ecosystems secured by this Constitution, the Constitution of the United States, or international law; or
(b) Cause a material impediment to enforcement or adherence to expressly-stated and equitable state, federal, or international law that protects natural persons, local communities, or ecosystems, when that law protects workers, the environment, public health, privacy, antidiscrimination, civil rights, or access to housing, food, water, medicine, medical care, and education.
(4) Courts must resolve any doubt as to the existence of a power of the people and their local governments in favor of their power; this section abrogates all the judicial doctrines limiting local democracy: limited municipal authority, Dillon’s Rule, subject matter limitations on legislation, required statutory delegation of authority, prohibitions on establishing new causes of action, limitations on fiscal and monetary authority, matters of local, mixed, or statewide concern, state immunity from local government lawsuit, territorial limitations, traditional government functions, private law exception, implied preemption, uniformity justification for preemption, and all other doctrines that prevent the exercise of the rights and powers in subsections (1) and (2) of this section.
(5) All provisions of this section are severable.