OREGON – There’s a new house bill that was recently drafted in Oregon that has already had its first reading earlier in January, which aims to amend two standing pieces of Oregon legislation.
These proposed amendments would essentially afford the state’s governor increased authorities with respect to using, and effectively seizing, personal property during a state of emergency.
This bill pending in the Oregon legislature would allow the Governor to take private property in response to an emergency, and do so temporarily without compensation to the owner. We're in a nearly year-long declared emergency so this is no small thing.https://t.co/MFfCNEj1pV
— Jeff Eager (@Jeff_Eager) January 22, 2021
The new bill in question is called HB 2238.
What the summary of the bill hopes to achieve, if it were ever passed, is modify ORS 35.350 and ORS 401.188 – both of which are current law, but these proposed amendments would have some rather generous expansions.
So, we’ll examine both ORS 35.350 and ORS 401.188 in their current form, and then analyze what the proposed additions to the standing laws can translate to – if passed – via getting past all of the legal jargon.
Here’s the current standing of ORS 35.350:
“This chapter does not affect the ability of a public body, as defined in ORS 174.109 (“Public body” defined), to take immediate possession of property in an emergency that poses a threat to persons or property. [2005 c.565 §2]”
The current law is pretty straight forward – in that, a “public body” (like a maybe cop, sheriff, constable and so on) can take effective possession of any item/items that presents a danger “persons or property”. Say, for instance, someone’s crudely constructed meth lab or stockpile of IEDs or IIDs.
And here is what HB 2238 would like to add to that legislation (new bill text in italics):
“…poses a threat to persons or property, including under the direction of the Governor under ORS 401.188.”
“(2) An owner of property that is used or possessed only temporarily under this section is not entitled to compensation except as the owner may prove entitlement to compensation under Article I, section 18, of the Oregon Constitution.”
So that proposed added text to section one, and the addition of section two, to ORS 35.350 wouldn’t even require there to necessarily be an element of “a threat to persons or property” for a government body to “temporarily” use or possess an Oregon resident’s private property.
Furthermore, all the while not even compensating the owner of the property during these state of emergency seizures.
Sure, there’s the citing that someone could make a claim under Article 1, Section 18 of the Oregon Constitution to receive “compensation” for seized and temporarily used property.
With that, I’d say, ‘good luck’.
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Now while the proposed amendment to ORS 35.350 doesn’t specifically mention that any type of personal property can be seized under direction of the state governor, it does mention “under the direction of the Governor under ORS 401.188”.
Which ORS 401.188 just so happens to be the other standing law that HB 2238 wants to alter and would effectively make any and all property able to be seized under a declared emergency.
Here’s the current legal text of the standing ORS 401.188:
“Whenever the Governor has declared a state of emergency, the Governor may issue, amend and enforce rules and orders to:”
“(1) Control, restrict and regulate by rationing, freezing, use of quotas, prohibitions on shipments, price fixing, allocation or other means, the use, sale or distribution of food, feed, fuel, clothing and other commodities, materials, goods and services;”
“(2) Prescribe and direct activities in connection with use, conservation, salvage and prevention of waste of materials, services and facilities, including, but not limited to, production, transportation, power and communication facilities training, and supply of labor, utilization of industrial plants, health and medical care, nutrition, housing, rehabilitation, education, welfare, child care, recreation, consumer protection and other essential civil needs; and”
“(3) Take any other action that may be necessary for the management of resources following an emergency.”
Basically, the current legal standing of ORS 401.188 relates to when there is an active state of emergency declared by the Oregon governor, the governor can effectively mandate most aspects related to entities engaging in general commerce, trade, and services.
Obviously, during the era of the pandemic, Oregon (and many other states, for that matter) saw a whole lot of “control and restrict” when it related to certain types of businesses that were deemed non-essential.
And of course, Oregon has also in the past year declared states of emergency for wildfires, planned rallies, during the election in November, and adding continuations to the state of emergency with respect to COVID.
But as ORS 401.188 stands currently, there aren’t stipulations related an individual’s private property. That’s where this proposed added text to ORS 401.188 would kick in under HB 2238.
Under Section 3 of ORS 401.188, HB 2238 aims to add the following (new bill text in italics):
“(3) Take any other action, including through the seizure, use or possession of any real or personal property, that may be necessary for the management of resources following an emergency.”
That’s about as broad as it can get with regard to what can be used or seized by the government during a state of emergency.
Maybe you have an extra bedroom in your house and the government decides they need it to be utilized to house a person or persons.
Perhaps you have more than one vehicle, and the government decides that your extra car needs to be utilized by them or someone else during a state of emergency.
The aforementioned, and even more, could certainly be possible if HB 2238 were to actually come to fruition.
There needs to serious clarification of this new bill (HB 2238) concerning ‘emergency powers’ by the governor. As a person who participates in emergency management, I am concerned with this language as law. Please address this @duckwilde #orpol #Oregon pic.twitter.com/PhsncpgvoG
— Alex Fast (@alexfastpdx) January 21, 2021
According to the heading among HB 2238, the proposed legislation was sponsored by Representative Marty Wilde – a Democrat representing District 11 within the legislature.
It might be a good time for Oregon residents to email their District 11 representative to share their thoughts on this proposed bill.
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