*1 Argued judgment part and submitted March of circuit court affirmed in 25, 1998 part reversed in June ARMATTA; Judith D.
Sheriff Stan Robson; Sidney Lezak; I. Kanter;
Stephen Tate; Jean Kathleen Hagberg; Eyerman, Linda /
Appellants Cross-Respondents,
v. KITZHABER, John Governor of the State of Oregon; Phil Keisling, Secretary State;
and the State of Oregon, Respondents / Cross-Appellants.
(CC S44995) 96C-14060; A96736; CA SC
Thomas M. Christ, ACLU Foundation Inc., argued appellants/cross-respondents. Portland, the cause for With him on the briefs were Carl R. Neil and Katherine A. Oregon, McDowell, ACLU Foundation of Inc., Portland. Timothy Sylwester, Attorney A. Assistant General, argued respondents/cross-appellants. Salem, the cause for Hardy Myers, Attorney On the briefs were General, Michael Reynolds, D. General, Solicitor Kistler, and Rives Assistant Attorney General, Salem. Carson,
Before Justice, Chief Gillette, Van Hoomis Kulongoski, sen, Durham, Leeson, Justices.** CARSON, C. J. opinion.
*3 Durham, J., concurred and filed an decision. [**] Graber, J., resigned March 31, 1998, and did participate in this
251-b *4 CARSON, C. J. appeal involving challenge
This is a certified a direct constitutionality (1996),1 to the of Ballot Measure 40 a “crime rights” approved by victims’ initiative that was the voters at general enjoined the 1996 election. The circuit court defen Oregon (collectively dants Kitzhaber and the State of state”) (2) enforcing referred to herein as “the from concluding Measure revised, after that that section rather Oregon appealed amended, than The Constitution. state Appeals, appeal to the Court of which certified the to this court. presented us,
As this case is the merits of the var policy represented by ious choices Measure 40 are not at only question adopted issue. is whether the measure was validly. For the follow, reasons that that, we conclude although purported single it to be a amendment Oregon Constitution, Measure 40 contains two or more con upon separately stitutional amendments that must be voted XVII, under Article section of that document. We therefore comply that, hold requirements because the measure does not with the adopting amendment, a constitutional it is entirety. modify judgment invalid in its We of the circuit accordingly. court
I. PROCEDURAL BACKGROUND Shortly general plaintiffs after the 1996 election, (1995) present filed the action under ORS 28.010 for declar- atory injunctive seeking ruling relief, that Measure 40 Specifically, plaintiffs was unconstitutional. contended that Oregon Measure 40 violated the Constitution three (1) respects: amendments, it contained two or more in viola- (2) XVII, 1; tion of Article it embraced more than one subject, l(2)(d); IV, in violation of Article it Oregon revised, which, by amended, Constitution, rather than accomplished under section cannot be petition. sought initiative Plaintiffs further a declaration Keisling, Secretary State, defendant violated the law appendix opinion. The text ofMeasure 40 is attached as an to this Measure 40 currently I, is listed as Article section Constitution. *5 that defendant placing the ballot and 40 on Measure by proclaim- Oregon, the law violated Kitzhaber, ing Governor sought Finally, plaintiffs an adoption of the measure. the enforcing Oregon injunction prohibiting from State of the moved answer, and sides an both The state filed Measure 40. summary judgment. February opinion 1997, the on letter issued In a (2) 40 revised of Measure that section court concluded circuit Oregon the section was severable. Constitution, but (2) Accordingly, rest of the court severed left February entered 19,1997, the court the measure intact. On ruling judgment as to its letter with consistent an order and enjoined judgment validity The 40. of Measure “[djefendant the State and his subordinates Kitzhaber “enforcing attempting to enforce or from and its subdivisions” judgment concluded, 40.” 2 of Ballot Measure the law did not violate however, defendant Kitzhaber Finally, adoption proclaimed 40. of Measure he when against plaintiffs’ judgment claims defendant concluded accordingly, Keisling him and, dismissed were time-barred supple 1997, the court entered In June as a defendant.2 attorney judgment awarding plaintiffs in the fees mental $23,677.50. amount of Appeals, appealed contend- Court of
Plaintiffs
concluding
ing
that section
erred in
that the circuit court
(2)
erred
Measure 40 and also
the rest of
severable from
was
challenges
rejecting
the meas-
their other substantive
in
contending
cross-appealed,
circuit
ure. The state
(2)
concluding
the consti-
revised
that section
court erred
errone-
that the court
contended
The state further
tution.
injunction against
ously
Kitzhaber and
defendant
entered an
erroneously
Oregon,
attor-
awarded
and that it
State
Shortly
plaintiffs.
ney
thereafter, the state moved
fees to
concerning
injunction
modify
stay
the circuit court’s
Court of
40. The
Measure
of section
enforcement
pending
injunction August
stayed
Appeals
App 498,
appeal.
Kitzhaber, 149 Or
v.
Armatta
outcome on
(1997).
II. OVERVIEW OF MEASURE 40 Measure 40 was submitted to the initi- voters as an ated amendment to Article I of the Constitution. According preamble, designed pre- to its Measure 40 “is protect rights justice serve and crime victims’ and due process prosecution per- and to ensure and conviction of (Boldface who sons have committed criminal acts.” original.) *6 (1)
The measure contains nine sections. Section lists following rights the to which victims of crime are entitled in prosecutions juvenile delinquency proceed- all criminal and (1) ings: rights relating pretrial to detention and release of (2) right defendants; criminal stages the to be notified of certain proceedings right present of criminal and the to be and (3) right heard; tencing, imprisonment, the conviction, to information about the sen- history, criminal and future release (4) right participate defendants; of criminal the to refuse to (5) discovery requests; right criminal defendants’ the to (6) prompt right restitution; receive the to have all relevant (7) against right defendants; evidence admitted criminal the by jury composed to criminal have defendants tried a jurors registered who are voters and who have not been con- felony felony victed of a or served sentence within the last (8) years; right the to have criminal defendants convicted by jury aggravated 1 in vote of to murder and murder (9) right prepared copies cases; to receive of court tran- (10) scripts; right to criminal have defendants serve their being full, aside, sentences in except through without such sentences set governor’s reprieve, par- commutation, or power, pursuant appellate post-conviction relief; to don (11) or or right to have convicted criminals sentenced consecu- (12) tively against right victims; different to crimes (13) joinder charges against right criminal defendants; during plea negotiations cases; to be consulted (14) in certain and right foregoing rights notification of the as to soon (l)(a) (n). reasonably practicable. §§ Measure to (2) rights set 40 declares that Section of Measure the extent limited to in the measure “shall be out required I, Constitution,” that Article the United States Oregon Constitution, not be “shall 9 and sections broadly States Constitu- than the United construed more validity involving victims, “the tion,” that, and in cases litigated except prior the extent shall not be convictions (3) pro- required Section the United States Constitution.” defen- reduce a criminal that the measure “shall not vides rights Constitution, reduce under the United States dant’s any existing right any existing press, statu- or affect hearsay.” tory relating privilege or rule (4) the decision 40 declares that Section of Measure juvenile delinquency pro- prosecutions initiate criminal attorney ceedings gives the district the district rests with rights attorney authority vic- to assert the conferred (5) (8) define the terms “vic- tims in the measure. Sections purposes ofMeasure tim” and “relevant evidence” for clarify relating rights in the matters conferred various Finally, 40 creates states that Measure measure. no liabilities.
new civil III. CHALLENGES TO MEASURE CONSTITUTIONAL plaintiffs’ dispositive, Because it is we first address amend- that Measure 40 contains two or more contention *7 upon separately ments, voted under Article which must be Oregon XVII, 1, section of the Constitution. power people’s to amend the constitution petition
through 1, IV, arises under Article section initiative Oregon XVII, section addition, In of the Constitution. legis requirements apply procedural if the 1, that sets out proposes other amendments, as well as lature constitutional apply requirements that to amendments submitted petition. by legislative proposal One of or initiative voters those requirements must more amendments” is that “two or “separately” the voters.3 submitted be 3 throughout “separate-vote” requirement provision this that as the We refer to opinion. provisions out in the text below. constitutional are set The relevant
256 that,
Plaintiffs contend the fact despite it was presented to the voters in the single of a constitutional form amendment, Measure actually 40 contains “two or more amendments” the voters must vote separately XVII, under Article 1. section The state responds that the separate-vote applies to only legislatively pro- posed amendments, constitutional not to amendments pro- posed by initiative. Alternatively, the state contends that amendment, Measure 40 contains in only one compliance with the separate-vote requirement.
A. the Application Separate-Vote Requirement of
Initiated Amendments first
We address the state’s contention that separate-vote requirement XWII, of Article section applies amendments by so, proposed legislature. doing we XVII, must consider specific wording of Article 1, the historical circumstances led its creation, the case Pearce, law See 314 surrounding it. Priest v. Or 415-16, P2d out (setting construction methodo logy).4 XVII, provides, part:
“Any amendment or amendments to this Constitution may proposed be of legislative either branch assem- bly, agreed by majority and if the same shall be a of all houses, elected of pro- members to each the two such * * * * * * posed amendment or amendments shall be by referred approval the secretary people of state to the for their * * rejection a majority or *. If of the electors vot- ing any on shall thereof, such amendment vote in favor it thereby shall become part this Constitution. The votes amendment, amendments, against such or severally, for by whether legislative assembly by initiative petition, secretary shall canvassed state XVII, parts adopted We note that certain ofArticle themselves were power. people pursuant (discussing to their at 260 initiative See 327 Or 1). methodology interpreting 1906 amendment to Article Our provision adopted by the text initiative is to examine and context provision, to discern intent. If intent is order the voters’ the voters’ not clear analysis context, history provision. from an text and also we examine the Comm., 551, 559, Lottery Ecumenical v. Ministries State 871 P2d (1994). *8 appear gov- if it shall the and presence governor, of on cast at said election majority the of the votes ernor that amendments, severally, amendment, in or are cast said * * * to declare thereof, duty it shall be his forthwith favor * * * amendments, severally to amendment, have or the said the part as Consti- by people Oregon the adopted been of of in of the thereof, part the effect as a tution same shall be two When proclamation. from the date such Constitution be submitted the manner or more amendments shall election, they state at the same to the voters this aforesaid shall on shall be voted be submitted that each amendment so * * * separately. This article shall not be construed by Constitution right people to amend this impair the (Emphasis petition an therefor.” vote initiative added.) procedure prescribes the for XVII, section Article legislature propose amendments, as the relating requirements con- the amendment well as other analysis purposes case, the most of our this stitution. For significant requirement that, if “two or more amendments” they “so election, must submit- are at the same be submitted separately.” ted shall voted on that each amendment separate-vote the contends that the noted, As state by requirement applies only proposed amendments by legislature, people. In initiated amendments here, relevant can be view, XVII, state’s (1) parts: analyzed sentences, first two as three distinct legislatively voting procedures and referral for which set out (2) proposed amendments; sentence, out the third which sets canvassing proposed procedure on a amend- votes legislative assembly by by or ment, “whether petition”; sentence, which the fourth initiative “[w]hen imposes separate-vote two more or in the manner shall be submitted amendments aforesaid.” added.) (Emphasis that the words “sub- The state contends part the first refer to mitted the manner aforesaid” pro- voting and referral 1, which sets out XVII, (i.e., legislatively proposed amendments cedures for “manner” which “submitted”). such amendments are parsing disagree of Article of the text with that We requirement appears separate-vote First, 1. “pro- the reference in third sentence to amendments after posed legislative assembly petition.” initiative *9 added.) (Emphasis placement separate-vote That requirement suggests requirement applies both by proposed legislature proposed amendments and those by Additionally, initiative. the third of XVII, sentence Article pertains canvassing 1, section which votes, of refers to “[t]he against votes for and amendment, such or amend- severally,” by proposed legislature ments, either the or initia- added.) petition. (Emphasis wording significant tive That by referring for First, two reasons. to “such” amendment or proposed immediately manner, amendments in either after stating procedure referring legislatively proposed for appears incorporate amendments, the third sentence procedures submitting by for constitutional amendments ini- petition, by tiative repeatedly using set IV, Second, out 1. Article section “severally,”
the word the third sentence emphasizes adopt that the voters must vote two or separately, regardless more amendments of the manner of proposal. their support reading
As contextual for its of XVII, Article points l(4)(b), 1, the IV, section state Article section which provides “[initiative that and referendum measures shall provided people by submitted as this section and law provision not inconsistent therewith.” The state that reads clarifying IV, XVII, that Article section 1—notArticle section 1—governs submitting proposed the method for amendments by petition. initiative l(4)(b),
However, the IV, text Article section cuts against argument. Significantly, pro- the state’s that section that vides initiated must amendments be submitted in accord- by IV, with 1, ance therewith.” Article section “and law not inconsistent added.) (Emphasis Thus, IV, Article section l(4)(b), acknowledges requirements itself that certain IV, addition to set those out Article section 1—such as the separate-vote requirement XVII, of Article section 1—also govern the submission initiated Another amendments. l(4)(d)—illustrates part point. of Article IV—section that specifically provides That section initiated laws days amendments shall become effective 30 after their approval, “[notwithstanding 1, section Article XVII this added.) phrase (Emphasis would be sur- That Constitution.” requirements XVII, plusage section in Article if the contained inapplicable Further, it is amendments. to initiated 1, were similarly nothing significant 1, IV, in Article section separate-vote amendments from insulates initiated XVII, 1. ofArticle section specific wording XVII, sum, of Article provided by parts IV, sec- of Article well as the 1, as context incorporates suggest XVII, Article tion by submitting procedures initia- for amendments suggest that, with the text and context further tive. The legislatively proposed specific procedures exception applies amendments amendments, assembly peti- legislative “proposed initiative provides specifically IV, tion,” unless otherwise. *10 development XVII, 1, ofArticle section
The historical
supports
here,
IV,
1,
that con-
and Article
section as relevant
in
went into effect
clusion. When the
Constitution
changing
provided
the
1859,
method
Article XVII
the
constitution—by legislative
original
proposal. The
version of
requirement
separate-vote
is
Article
XVII included
similarly
of
worded
to
current version
at
XVII,
1. See
The 1906 amendment to text of XVII purposes ways. by spe instructive for our First, here in two cifically incorporating people’s recently references acquired power, appears initiative it that the voters intended requirements originally the pertained contained Article which only legislatively proposed amendments, apply by repeatedly Second, to initiated amendments as well. including phrase “amendment or amendments, sever ally,” emphasized the 1906 amendment that “two or more separate amendments” must remain another, from one regardless proposal.5 of the manner of their
Finally, people adopted in 1968, a new version of pursuant legislative proposal. IV, wording IV, new version included the current of Article sec- l(4)(b), tion that initiated measures must be submitted “as provided *11 in this section and law not there- inconsistent l(4)(b) (1968). wording Const, IV, § with.” Or Art That is sim- requirement IV, 1, ilar to the earlier in Article section that guided by submission of initiated amendments must be “general by IV, laws,” noted, as well as Article section 1. As 5 pamphlet any by did voters’ for the 1906 election not contain statements supporters opponents concerning understanding scope or their of the of the amend- XVII, application including separate-vote requirement ment to Article Ministries, (history initiated amendments. See Ecumenical 318 Or 560 n of ini- at against arguments printed tiated amendment includes for amendment vot- pamphlet). ers’ provisions wording suggests XVII, ofArticle sec- that the apply requirement, including separate-vote to ini- 1, tion 1, IV, section dictates amendments, unless Article tiated otherwise.
Turning applicable law, case we note Newbry P2d 576, 200 Or case, al., Baum et one (1954), v. separate-vote attempted to address whether the has proposed by requirement applies to amendments initiative petition. assumed, Baum, without However, in the court requirement applied deciding, separate-vote to ini- that the Baum, at 581. tiated constitutional amendments. analysis helpful here. therefore, is not to our develop- wording specific sum, In and historical pro- as context XVII, 1, ment Article section as well by parts IV, 1, Article indicate that vided of Article section incorporates by implication procedures XVII, section peti- submitting by amendments initiative Additionally, IV, 1, itself section has tion. since provided in some form that the submission of initiated governed by applicable incon- shall laws not amendments separate- Nothing IV, section 1. about the sistent with Article requirement XVII, vote of Article section is inconsistent Accordingly, any provision 1. we IV, with of Article separate-vote requirement applies to con- conclude that the by proposed initiative, well stitutional amendments as legislature. proposed those Requirement Interpretation Separate-Vote B. require Having separate-vote concluded that applies amendments, we ment turn to more amendments initiated constitutional
plaintiffs’ two Measure 40 contains contention that requirement. In of that violation plaintiffs’ challenge, response the state contends separate-vote scope XVII, of Article sec l(2)(d), requires IV, which tion is defined Article merely “one a embrace sub constitutional amendment single ject only.” If a embraces a sub amendment l(2)(d), argues, ject it nec IV, the state under essarily single than amendment, rather constitutes multiple 1. amendments, under Article single subject—either view, Measure 40 embraces state’s *12 262 rights broadly, or,
crime victims’
crime—and, therefore,
more
only single
constitutes
amendment to the constitution.
positions
parties’ respective
require
The
us to exam
meaning
separate-vote requirement
ine both the
of
relationship,
any,
XVII,
1,
Article
section
and the
if
between
requirement
single-subject requirement
that
cle
and the
Arti
of
l(2)(d).
doing
emphasize
IV,
so,
In
that,
section
we
when
interpreting
Oregon Constitution,
must
“that
we
assume
every word, clause and sentence therein have been inserted
purpose.”
Bing
1,
for some useful
School Dist. Mult. Co. v.
al,
601,
et
670,
ham
ing
204 Or
283 P2d
on rehear
modified
(1955);
1. The historical and case surrounding XVII, law by examining begin specific wording We Arti- prescribes procedure XVII, 1, which, noted, cle as amending by legislative proposal, the constitution as well requirements setting legislative out for amendment proposal petition. separate-vote require- or initiative provides: XVII, ment Article “Whentwo or more amendments shall in the be submitted manner election, at the aforesaid the voters this state same they shall be so submitted that each amendment separately.” shall be votedon
Although define 1, does not important amendments,” it is or more meant “two what is potential change upon focuses that the text to note by requiring existing constitu constitution, that two or more Additionally, separately. amendments be voted tional in the matter, “shall be submitted textual words as a added) (emphasis could to the voters” manner aforesaid *13 proposed it speak must take as a amendment the to form up process, through legislative to the passes initiative the or particular people. text That to the time of its submission require separate-vote minimum, that the establishes, at a proposed combining prevents amend of several ment sep inception as from their have been labeled ments, which subject proposed amendment amendments, into one arate proposed single must be sub is, all amendments a vote. That they passed form in which the voters the same mitted to the by petition.6 legislature How circulated initiative or were is all from the text that that construction ever, it is not clear separate-vote requirement. now turn We that is meant surrounding development circumstances historical XVII, 1. ofArticle earlier, Constitution
As noted when provided the Article XVII went into effect amending for the constitution: method
“SECTION NO. amendment, to this Constitution “Any or amendments Legislative Assem- may be in either branch proposed majority of all agreed a bly, and if the same shall be pro- such elected to each of the two Houses the members amendment, ayes, and or amendments shall with posed Journals, thereon, and referred be entered on their nays general Assembly to chosen at the next Legislative chosen, election; if, Assembly so next Legislative and in the amendments, amendment, agreed shall be or proposed such House, to, elected to each by majority a of all the members B, C, A, passed all illustrate, legislature and suppose resolutions To XVII, way. Article purporting Under the constitution in some to amend separate three legislature to the voters as must submit the three resolutions votes, may (A, B, C), subject separate not com- amendments (ABC) subject single vote. to a single proposed that is amendment bine them as duty
then it shall be the Legislative Assembly to sub- amendment, mit such or amendments to the electors of the State, and published cause same to be delay, without at weeks, least four consecutive in several newspapers pub- State, lished this and if majority of said electors shall ratify same, amendment, such amendments, or shall part become a of this Constitution.
“SECTION 2NO. two or more amendments shall be submitted in such “If manner, that the electors shall for, against vote each of such separately, amendments and while an amendment or amendments, agreed which shall have upon by been one Legislative Assembly, awaiting shall be Leg- the action of a Assembly, islative electors, or of the no additional amend- ment, or Const, amendments shall be proposed.” Or Art added). XVII (emphasis originally provided
Thus, XVII, only majority amendment if a of the members of both houses legislatures of two successive amendment voted to submit an people majority approved and a of the voters then it. separate-vote also contained a *14 requirement wording appears that is similar to the that now history in section 1. We have found no concern- ing specific Oregon the intent of the of framers the Constitu- respect they adopted tion ofthat when XVII. genesis provision
The
of the
instructive,
however.
Oregon
Article XVII of the
Constitution of 1859 was based
upon Article XVI of the Indiana
1851,
Constitution of
which
during
was drafted
a constitutional convention held in that
Henry Carey,
Oregon
state in
Constitution and
ed.,
1850. See Charles
The
Proceedings
and Debates
the Constitu-
of
(1926) (Article
tional Convention
481
XVII is identi-
of
cal to Article XVI of the Indiana Constitution of 1851 in all
respects).
material
We have found no Indiana decision ante-
dating adoption
Oregon
might
of the
Constitution that
have
Oregon
regarding
sepa-
influenced the
framers’ intent
the
requirement.
(suggesting
rate-vote
Priest,
See
Although or case law as it is not Oregon revealing of the Constitu- the intent of the framers the intent ofthe framers tion, that demonstrates information when 1851 can be instructive of the Indiana Constitution of pat- interpreting provision Constitution a of the Hale v. Port the Indiana Constitution. See terned after of (1989) (so suggest- P2d Portland, ing). Indiana convention of 1850 thus from the debates analysis may an here, to some extent. We turn to assist our examination of those debates. changing method of
Before by calling any respect a consti- was Indiana Constitution (1816). § Const, VIII, Ind Art A new tutional convention. during convention that allowed article drafted the 1850 was legislature propose people. pro- to the amendments posing article, that new its drafter stated: pres- contained in the
“[S]uppose provision such a had been Constitution, under the the State would not have been ent eighty thousand dollars in the necessity expending of some provi- few of its calling of this Convention. There were but amendment, required and those amendments sions Legislature easily have been made with could they having opportunity approbation people, ** * reject amendments. there accept If change popular a sentiment in relation should be of bank, negro or in relation to the establishment State of women, and rights in relation to the married question, or of any provision that we shall change should be desired calling of any subjects, those instead make in reference of * * *, could be made without a Convention the amendments any expense whatever.” burthening people with Fowler, Proceedings Report H. the Debates and of the Revision the Constitution State Convention (1850) (hereafter Indiana, “Debates and Proceed- 1258-59 added). Read) (statement (emphasis of James G. ings”) *15 pro- suggests the new amendment That statement partic- among things, intended to address cedure, other was single changes specific is, a the constitution. That ular, concerning of a the establishment “amendment,” such as one 266 rights
state bank encompass particular women, or the of married was intended to change. eventually adopted The convention Article XVI of the Indiana Constitution of 1851. incorporated virtually 2 Section of that article separate-vote requirement
the same Oregon 1859, as that contained in the Constitution of as well prohibition against proposing aas new amendments while (1851). pending approval. § Const, XVI, others were Ind Art purpose pro- The convention indicate that the debates of the Fowler, hibition was avoid voter confusion. 2 Debates and Proceedings delegates’ at 1953. The do debates not reveal the separate-vote requirement, intent as to the however. although Thus, the debates from the Indiana consti- clearly tutional convention do not reveal the drafters’ intent they separate-vote requirement, when created the delegates debates do indicate that the viewed the amend- process adopting particular ment as a means of constitu- changes. Having tional exhausted review the our Indiana history, development we return historical of Article Oregon XVII of the Constitution. majority people 1902,
In of the voted to amend response IV, Constitution, proposal Oregon Legislative Assembly, to a to reserve people right to initiate laws and constitutional (1902). peo- § Const, IV, amendments. Or Art ple pursuant power, XVII, amended Article to their initiative making changes implement process. the new initiative The amended version is same as the current version ofArticle previously. § XVII, Const, XVII, described Art (1906). (discussing Or at 260 amend- See also 327 the 1906 ment). purposes significant here, For our it is repeatedly phrase amendment inserted the “amendment or severally,” amendments, into rela- proposed by legislature tion to amendments or initia- petition. Thus, earlier, the tive as discussed text of the 1906 emphasized separate must amendment amendments separate remain pamphlet and distinct from one another. voters’ election contained no statements opponents’ understanding reflecting supporters’ either
267 perhaps XVII, the fore- the amendment to Article because require explanation. going proposition appear did not summary, information that there is no historical specifically the intent of the framers of illuminates they adopted separate-vote Oregon Constitution when However, 1. XVII, of Article debates suggest from the Indiana convention of 1850 that a constitu- intended the framers of the tional “amendment” was particular Indiana Constitution of 1851 to address a consti- change, nothing suggest found tutional the framers ofthe we have
Oregon Constitution had a different under- standing or intent. applicable interpreting turn to the case law
We
separate-vote requirement
of Article
of the
Oregon
applying
require
Constitution. The first case
(1936),
Osbourne,
ment is State v.
153 Or
Finally, Baum, 200 Or the court addressed question IV, whether an initiated amendment to Article legislative reapportionment section which concerned assembly, ofthe assuming, single constituted a amendment. After deciding, separate-vote requirement applied without peti- to constitutional amendments submitted initiative briefly tion, the court stated: separate-vote prohibit peo-
“[The does not requirement] adopting from an amendment which would affect more ple * * * than At it implication. one article or section most prohibits the submission two amendments on two differ- n subjects impossible manner make it ent in such as to fact, one, if it express their will as to each. The voters reapportionment may amendment have amended constitution, more would be imma- than one section of added). (emphasis
terial.” Id. at 581 following principles. Baum stands for the First, it purpose separate-vote require- demonstrates that the of the upon separate ment is to allow the voters to decide constitu- changes separately. differently, tional XVII, Stated Article imposes requirement ensuring aimed at that the express voters are able to their will in one vote as to one change. constitutional analysis That is consistent with our textual separate-vote requirement, which noted that requirement upon change focuses the nature ofthe to the existing procedural constitution, as well as the form that an people. amendment takes when it is submitted to the Second, by implication, single Baum that, demonstrates constitu- may pro- tional amendment affect one or more constitutional offending separate-vote requirement. visions without Finally, suggests separate-vote requirement Baum encompasses, single extent, to some the notion that a amend- single “subject.” ment must contain a specific wording, development, 2. The historical and case l(2)(d) surrounding TV, law Article As noted earlier, the state contends in this case that separate-vote requirement the imposes people’s ability
the same limitation single-subject amend the constitution as the l(2)(d). IV, Therefore, we must examine the single-subject requirement any, relationship, and its if *18 separate-vote requirement. pro- IV,
Article section ofthe Constitution, part: vides, in “(1) legislative power except state, The of the powers people, initiative and reservedto the referendum LegislativeAssembly,consisting
vestedin a ofa Senate and Representatives. a Houseof “(2)(a) people The reserve to themselvesthe initiative power, propose which is to laws and amendments to the reject indepen- Constitutionand enactor themat an election dently LegislativeAssembly. theof
«íjí * * * *
“(c) may the Constitution An amendment initiative quali- by petition signed by a number only proposed percent of the total number equal eight fied voters the election at for Governor at for all candidates votes cast years term of four next was elected for a which a Governor filing petition. of the preceding the “(d) text of shall include the full petition An initiative pro-A to the Constitution. law or amendment proposed embrace to the Constitution shall law or amendment posed therewith. connected subject only properly and matters one “(e) than filed not less petition initiative shall be An proposed law the election at which four months before upon.” is to be voted to the Constitution or amendment added.) (Emphasis 1(2), people the to the IV, section reserves Article adopt power the constitu- amendments to laws and to enact by petition. XVII, section Article Like Article initiative tion 1(2), “amendment.” not define the word IV, section does principal IV, in Article set out restriction substantive 1(2), proposed sub- must “embrace one amendment is that a properly ject only Unlike therewith.” connected and matters requirement requirement, separate-vote the text of by proposed amendment, the content focuses subject. only single requiring In other it embrace requirement single-subject TV, Article words, the proposed l(2)(d), only amendment the text of the concerns proposed amendment isolation, than how a rather viewed change existing might constitution. interplay fully between understand order help- single-subject requirements, separate-vote it is per- single-subject requirement
ful determine whether by proposed only initiative, also to or amendments tains to legislature under amendments TV, the text of is not clear from The answer section 1. l(2)(d). in context with However, viewed when 1(2) (2)(d) the rest of section of subsection first sentence process, only it pertain initiative IV, of Article appears which single-subject IV, in Article pro- amendment[s]” “law[s] l(2)(d), applies posed initiative.
271 support IV, 20, Article section offers further for that provides, part: It conclusion.
“Every subject, and Act shall embrace but one matters therewith, subject properly connected which shall be added.) expressed (Emphasis in the title.” imposes single-subject IV, 20, Because Article section a logical requirement upon legislative enactments, it that, statutory requirement single-subject enactments, l(2)(d), applies only IV, Article section laws enacted ini- single-subject follows, It textual matter, tiative. as a that l(2)(d), applies IV, in Article con- adopted by initiative, stitutional amendments rather than adopted pursuant legislative proposal those under Article XVII, section 1. surrounding
We turn to the historical circumstances development single-subject requirement Article l(2)(d). original IV, the outset, At we note that the Oregon single-subject require- contained Constitution no did, however, ment for amendments. It contain single-subject requirement legislation IV, sec- (1859). § Const, IV, tion 20. Or Art 20 explained people adopted earlier, As a legislatively proposed IV, of amendment to thereby reserving Constitution, to themselves the right to initiate Or laws constitutional amendments. (1902). provision Const, § IV, Art did new not define the single-subject word “amendment” and did a not contain requirement. pamphlet The voters’ for the 1902 did election any provision, concerning not contain statements and we period found have no other sources from that time concerning us inform of the voters’ intent ments” the word “amend provision. as it in the was used new See LaGrande/ PERB, v. n 586 P2d Astoria (demonstrating proponents’ statements can be indica meaning tive of of the measure those statements when public large). are circulated to the at approved legislatively proposed In 1968, the voters repealed IV, amendment extant version Article place. adopted 1, and in its The new new version changes proc made to the initiative and referendum version single-subject imposition ess, of which of a one was *20 requirement upon proposed laws and amendments. Or l(2)(d) (1968); (setting § Const, IV, Art see Or at 270 also 327 1(2)(d)). IV, earlier, out As noted it text of section appears single-subject from its text and context that that requirement pertains only to initiated amend legisla laws, ments, as to initiated than to as well rather tively proposed amendments. explanatory in the statement contained 1968 purpose pamphlet of the 1968 amend-
voters’ stated that one by parts repealing “clean-up” constitution, to ofthe ment was provisions by combining obsolete and the various initiative part powers by people held the into one referendum Pamphlet, Primary the constitution. See Voters’ Official May (setting purposes 28, 1968, Election, out 1968 amendment). history A inference that is that manifest from passed “clean-up” one the that laws element of was ensure pursuant power subject people were the to their initiative essentially single-subject requirement as the same enact- doing, legislature. however, the the In so new ver- ments of imposed requirement IV, 1, also that sion of Article upon initiated constitutional amendments. summary, Oregon origi- then,
In Constitution requirement legislation, nally single-subject a for contained Although people but for constitutional amendments. acquired power in not until the initiative it was imposed single-subject IV, limitation that Article upon ability people’s However, amend the constitution. single-subject imposed has Constitution never requirement upon legislature’s ability propose amend- the constitution. ments to interpreting single- now turn the case law
We l(2)(d), subject IV, which is of Article Phillips, purposes for our here. v. 302 Or well-settled OEA (1986), example, 87, 100, P2d 602 for this court concluded single-subject requirement IV, in Article l(2)(d), single-subject requirement leg is the same as the The court IV, the section 20. noted islation contained that single-subject requirement purpose central prevent practice inserting more unre- was to two or provisions single bill—commonly “log- lated into a known as rolling”—so legislators favoring provision one would be compelled despite opposition for the to vote bill their provisions. log-rolling prohibited, If other eral were not then sev- provisions standing that, alone, could become law could not have succeeded on their own merits. Id. at 95. recently, Beesley,
More
in State ex rel Caleb v.
(1997),
83, 89-91,
Rather, the court must examine the
of the measure to
proposed
determine whether the
law or amendment contains
unifying principle logically connecting
provisions
“a
all
the
[or amendment],
act
such that it can
said that
be
the measure
Ibid, (internal
subject only.”
quotation
embraces one
and
marks
omitted).
Forbes,
brackets
See also McIntire v.
(1996) (setting
approach
426, 443-44,
Finally, that, case, we note in this the state relies heavily concerning Baum, on the discussion in 200 Or at separate-vote requirement, emphasizing that, under requirement prohibits submitting Baum, an amend- subjects.” ment or amendments different In the single- “on two principle view, state’s subject Baum stands for the that the separate-vote requirements impose the same upon people’s ability restriction tion, and, to amend the constitu- single therefore, if an amendment embraces a sub- ject l(2)(d), interpreted OEA, IV, under Article section as single
Caleb, cases, and other then it must be deemed a XVII, amendment under Article section 1. disagree years tYi&tBaum,
We decided 14 which was single-subject requirement initiated amend- before IV, ments was added to Article section must read as urges. suggests purpose state separate-vote separate Baum instead people upon is to allow the to vote
proposed changes separately. Although hypothetical the court in Baum referred to a containing multiple “subjects,” amendment the court did not proposed single that, if state amendment contains a sub- ject, single then it must also be deemed to be a amendment. Summary
3. specific wording,
Our review of historical devel- XVII, opment, surrounding and case law Article section l(2)(d), IV, and Article can be summarized as follows. separate-vote requirement First, matter, as a textual upon proposed Article focuses both change procedural constitution, as well as the form of single- contrast, text submitted amendments. subject requirement l(2)(d), IV, focuses proposed by requiring amendment, the content of a only subject properly it embrace one and matters connected Additionally, single-subject requirement therewith. l(2)(d), applies IV, initiated constitu- legislatively amendments, tional ments. not to amend- development, As to historical Constitu- originally single-subject require- tion, written, contained a separate-vote legislation requirement for ment for and a con- *22 proposed by legislature. the After stitutional amendments process adoption the initiative and referendum the changed implement time to 1902, the constitution was over including imposing process, separate-vote and that the single-subject upon people’s ability pro- requirements pose by petition. amendments initiative How- constitutional single-subject ever, not, been, never has a there is by legislature. requirement proposed for amendments requirement only separate-vote limitation Indeed, the is the upon ability legislature’s to amend the constitution. corresponding provision Additionally, history behind suggests of 1851 constitu- that doc- of the Indiana Constitution intended the framers of tional “amendment” was ument to have found change, particular and we address a constitutional nothing suggest that the framers ofthe understanding different or intent. Constitution had a separate- Turning interpreting the to the case law requirement first that ofArticle section we note vote lacking analysis. However, in detailed as a the cases are whole, purpose the cases demonstrate people upon separate-vote requirement is to allow the to vote changes separately. separate constitutional Finally, interpreting single-subject the case law l(2)(d), requirement IV, of Article section demonstrates that prohibit “log-rolling.” intended to How- conducting single-subject inquiry, ever, when a court must only proposed amendment, examine the content of the might upon existing the effect that the amendment have constitution. Legal Principles
4.
Having specific wording, examined the historical development, surrounding separate-vote and case law requirement requirement ing single-subject Article XVII, section and the l(2)(d), IV,
ofArticle we reach the follow- purposes require- First, conclusions. behind the two ments are similar: Both serve to ensure that the voters will compelled upon multiple “subjects” multiple not be to vote changes single in a vote. significant beginning
However,
that,
it is
from the
single-subject
separate-vote requirements
statehood, differently.
discussed,
have been worded
As we have
the sin-
gle-subject requirement,
initially
only
contained
in Article
IV,
IV,
but
contained in Article
now also
l(2)(d),
focuses
the content of a
law or amend-
requiring
subject
ment,
that it embrace
one
and mat-
properly
Caleb,
ters
connected therewith. See
significantly wording different from single-subject requirement, which focuses isolation upon only proposed requiring the text of a amendment in subject. single it embrace a significant separate-vote
We also think it
that the
requirement applies
only
amendments,
single-subject requirement applies equally
while
to con
legislation.
follows,
stitutional amendments and
It
we
requirement
separate-vote
believe,
that the
of Article
imposes
requirement
than does the
a narrower
sin
l(2)(d).
requirement
gle-subject
reading
IV,
of Article
Such
separate-vote requirement
sense,
makes
amending
significantly
the act
the constitution is
because
enacting
amending legislation.
e.g.,
See,
different from
or
(stating
single-subject
McIntire,
surprise. short, safeguard serves as a that is fundamental to concept of a constitution.
Finally, acknowledge that, Baum, we under 200 Or encompasses separate-vote requirement at single that a constitutional amendment must contain notion single “subject[ ].” what the court there referred to as a proposed different Indeed, if a amendment contained two single subjects, amendment, then it could not be considered a single-subject requirement regardless the existence of the l(2)(d). pro- that a IV, However, the fact of Article subject posed containing more than one would amendment separate-vote single-subject require- violate both the opposite compel also is ments does not the conclusion that the one true, i.e., that a amendment contains separate-vote requirement. subject As would not violate the *24 imposes separate-vote requirement a discussed, have we proposed than the that a narrower restriction subject. follows, therefore, It amendment embrace one proposed that a amendment that satisfies the broad standard single subject may embracing nonetheless violate the for contrary argument separate-vote requirement. The state’s not well taken. remaining question is how to determine whether proposal amend 1, Constitution offends Article
XVII, section because it contains two or more amendments. proper inquiry whether, We conclude that the is to determine adopted, proposal changes if make or more would two closely the constitution that are and that are substantive proposal changes If related. would effect two or more closely proposal related, are substantive and not violates separate-vote requirement XVII, of prevent expressing it because would the voters from their opinions proposed change separately. as to each In some instances, it will clear initia from the text of XVII, tive whether it runs afoul of Article section 1. other necessary implications instances, it will be to examine the of proposal determining before whether it contains two or more amendments.
We turn to Measure to determine whether it con- tains two or more amendments in violation of Article section 1. Application Legal Principles
C. to Measure 40 of Analysis
1. Measure 40 by pur- earlier, terms,
As discussed its Measure 40 by ports Oregon Constitution, to amend Article I of the add- ing procedural a new section to that article that contains rights pretrial, crime victims are entitled in the to which or
trial, prosecution of a criminal post-trial phases and a con by and proceeding, prescribing juvenile delinquency 40 does sections 9 and 12. Measure struction for methodology consti repeal modify any existing expressly not otherwise below, however, the measure explained tutional As provision. Constitution sev existing Oregon implicitly changes eral respects.8 I, rights the victims’
a. Article section 11. Two of I, implicate set out in section of Measure part: which provides, have the prosecutions, “In criminal the accused shall all jury county in the public by impartial trial an right to committed; to be heard the offense shall have been which counsel; to demand the nature and cause of the himself and thereof; him, to meet copy and to have a against accusation face, process compulsory face to and to have the witnesses however, favor; provided, obtaining witnesses his cases, with the person, capital in other than any accused may byjury elect to waive trial judge, consent the trial alone, such elec- judge tried of the court consent to be however, that in the circuit writing; provided, to be in tion jury may guilty render a verdict ten members court *25 guilty guilty, except and a verdict or not save of first murder, only by which a unanimous degree shall found added.) verdict, (Emphasis otherwisel.]” and not (l)(h) 11 1 in a vote of to permits guilty Section of Measure 40 cases, “notwithstanding any murder and murder aggravated Section Constitution.” Oregon] [the other law or provision therefore, the unanimous verdict (l)(h), changes I, 11.9 cases, in Article section currently in murder set out 8 pre- face, appears identify primary purposes. The 40 two On its Measure provides: amble of the measure rights designed preserve protect and crime victims’ initiative is “This persons prosecution
justice process and convictionof and due and to ensure interpreted accomplish these criminal acts. It shall be who have committed (Boldface added.) original; emphasis in ends.” however, wording, significance because our the follows, of that We need not determine changes analysis concerning the extensive constitutional in the text that relationship by between the affected constitu- Measure 40 and the lack of effected question two or more provisions, the measure contains answers the whether tional constitutional amendments. 9 I, 11, refers, murder, first-degree section was to which The crime of 743, 1971, ch repealed replaced crime of murder. Or Laws with the 1971 Further, (l)(g) section of Measure 40 crime grants victims the to insist right upon jury a trial. That section changes a defen dant’s to waive trial ability by I, under Article jury in that it specifies a circumstance—a victim’s desire for a jury trial—in which a criminal defendant cannot waive a jury trial.10 5(l)(a). (Amended),
b. Article VII Section (l)(g) of Measure 40 specifies also certain requirements juror qualification.11 (Amended), Article VII 5(l)(a), provides that Legislative “[t]he Assembly shall provide by * * * law for [sjelecting juries and qualifications jurors.” Thus, section (l)(g) of Measure 40 changes Article VII (Amended), 5(l)(a), it imposes because limitations upon legislature’s authority to enact laws per taining juror qualification criminal cases. (l)(a) I,
c. Article
section 14. Section
of Measure 40
pretrial
allows
release in certain cases only
upon
proper
evidentiary showing.12
I,
section 14, which requires
that crimes other than murder and treason “shall be bailable
sureties,”
sufficient
sets out a standard to determine when
aggravated
432.
§§
The crime of
murder was created in 1977. Or Laws
ch 370.
that,
(l)(h)
literally,
“[t]aken
Plaintiffs contend
[section
40]
of Measure
requires
jurors
verdict,
guilty
finding
offense,
to convict. A not
of a lesser
is
simply
measure,
according
plain
allowed under the
(Emphasis
to its
terms.”
(l)(h)
original.) We do not read section
apparent,
to reach that absurd result. It is
view,
purpose
provision
in our
of that
is to allow a conviction based
jurors
guilty,
juror
votes of 11
agree.
for a verdict of
if one
does not
earlier,
provides that,
pros-
As noted
Measure 40 also
“as to the conduct and
prosecutions
[criminal
juvenile delinquency]
ecution of
district
[measure].”
proceedings,
it
attorney
rights
who is authorized to assert the
conferred on victims
this
(4) (boldface
original).
Measure
§
(l)(g)
grants
right
Section
of Measure
public
crime victims the
to a
trial
“by jury
registered
composed
selected
persons
from
voters and
who have not
felony
felony
been
years.”
convicted of a
or served a
sentence within the last 15
(l)(a)
grants
Section
of Measure 40
crime victims:
right
reasonably protected
“The
to be
from the criminal defendant or the con-
throughout
justice process;
pre-
victed criminal
the criminal
decisions as to the
*26
principle
trial release of the defendant are to be based on the
of reasonable
protection
public; any person
of the victim and the
arrested
a crime
for
for
People
mandatory
which the
have set a
minimum sentence shall not be released
prior
by
to trial
convincing
unless a court determines
clear and
evidence that
person
the
added.)
(Emphasis
will not commit
release[.T
new criminal
while on
offenses
person may
generally
an
trial. See
arrested
be released before
(Article
applies
Priest,
I,
14,
I, section 14. Perhaps I, d. and 12. most sections 9 (l)(f) notably, grants of Measure 40 crime victims the right against have “all relevant evidence admissible (2) provides addition, criminal defendant.” rights by “[t]he [measure] victims this shall be conferred on required to the extent the United States Con limited (boldface original) 9, Article I stitution” and “Section 12, I con and Section Article of this Constitution shall broadly strued more than the United States Constitution.”13 competing interpretations parties offer of sec- specifically phrase pos- that limits tion Measure I, constructions of Article sections 9 and 12. Plaintiffs sible phrase effectively repeals I, that that Article sections contend judicial they currently together exist, with inter- 9 and pretations provisions, replaces those and them with to the United States Consti- Fourth and Fifth Amendments (2) effectively further contend that section tution.14Plaintiffs Constitution, I, Oregon provides: of the right people persons, in their “No law shall violate the to be secure search, seizure; ises, effects, papers, against and no and unreasonable or n rantshall issue cause, oath, affirmation, upon probable supported but or searched, person thing particularly describing place to be and the or seized.” I, Constitution, provides: As of the (sic), person put jeopardy twice for the same offence nor be “No shall be any prosecution testify against
mpelled in criminal himself.” provides: Amendment to the United States Constitution The Fourth houses, papers, people persons, right and “The to be secure in their seizures, violated, ffects, against and and shall not be unreasonable searches n oWarrants shall cause, issue, supported by upon probable affir- Oath or but searched, aation, persons particularly describing place to be things to be seized.” provides, part: Constitution The Fifth Amendment to the United States
281 (Amended), l,15because it limits modifies Article VII section power interpret Oregon judiciary’s the Con the inherent because, III, l,16 at the stitution, as well as Article section principles separation powers set out least, it the of modifies in that section. (2) responds 40 that section of Measure
The state merely scope right sec- of a crime victim’s under clarifies the (l)(f) admis- the measure to have all relevant evidence tion by instructing against defendant, courts sible a criminal they may suppress in violation of the evidence obtained Oregon only if the United States Constitution Constitution differently, require suppression. in the would Stated state’s (2) remedy changes view, section to be afforded for vio- rights Oregon Constitution, in the lation of certain embodied change but does not the nature of state constitutional rights themselves. parties’ competing need not conten- We resolve (2) concerning precise
tions
intended effect of section
reading
Measure 40. Even under the state’s more limited
(2),
conjunc-
particularly
section,
read in
when
(l)(f)
40,
the follow-
tion with section
of Measure
would have
ing
First,
effects.
it would create a constitutional limitation
remedy
I,
Article
sec-
to be afforded for violations of
by requiring
suppressed
12,
9 and
be
tions
evidence
* * *
person
subject
put
jeopardy
be twice
“No
shall
for the same offence to
limb;
compelled
any
witness
of life or
nor shall be
criminal case to be a
against himself!.]”
through
applicable
The Fourth
Fifth
to the states
and
Amendments are made
Ohio,
643,
Mapp v.
US
Due Process Clause of the Fourteenth Amendment. See
367
(1961) (Fourth
655,
1684,
Amendment); Benton v.
81 S Ct
afforded under
section because the
right
tections
I,
afforded Article
include the
have evidence excluded if it is obtained in violation of the
right to be free from unreasonable searches and seizures. See
Dept. Rogers,
State exrel Juv.
v.
114, 119, 836
314 Or
P2d 127
(1992) (the exclusion
I,
of evidence under
section is
personal right
“based on the
to be free from an unlawful
deterring police
search
duct
Or
seizure,”
in contrast to
miscon
(internal quotation
omitted));
marks
Davis,
State v.
(1992) (“If th[e]
246, 253-54,
e. Measure 40 adds a number of crime rights Oregon victims’ I Article ofthe Constitution and also (1) changes following respects: the constitution in the a crim ability jury inal defendant’s to waive a trial under I, by competing right is limited the victim’s new and (2) jury longer required trial; to a a unanimous verdict no is aggravated murder and murder cases under I, sec (3) legislature’s ability pertaining 11; tion to enact laws juror qualifications in criminal cases under Article VII (Amended), 5(l)(a), by is limited new constitutional (4) requirements; right pretrial a criminal defendant’s by I, release under Article is limited new consti requirements; tutional least, and at the the constitutional remedy rights for violation I, set out Article sections 9 and is limited to the remedies available under Fourth Fifth Amendments to the United States Consti consequently, tution, and, evidence obtained violation of rights suppressed only those can be if the United States requires suppression.17 Constitution potentially-affected Plaintiffs contend that sections of the Bill of ‘Tolther Rights (reformation), debt), (imprisonment [section! include [section! to the or more amendments two 2. Measure 40 contains Oregon Constitution adding a number seen, in addition
canAs be changes rights five I, Measure 40 to Article crime victims’ existing (Article I, sec- Constitution sections of (Amended), section 14, and Article VII 9, 11, 12, and tions rights (per- 5(l)(a)), separate, encompassing individual six jury verdicts, taining seizure, unanimous to search jeopardy, jury self-incrimination, and trial, former waiver bail), ability legislature’s limiting to estab- in addition multiple juror qualifications Those criminal cases. lish by changes than 40 are more effected Measure part more the test for “two or that to meet sufficient amendments,” inquires earlier, whether that discussed changes consti- “two or more at issue makes measure test). equally (stating clear, It is we 327 Or at tution.” See think, changes are substan- Measure 40 effected that changes remaining are then, whether those issue, tive. The closely related.” “not provisions
Many
affected
of the constitutional
they pertain to con-
in the
that
40 are related
sense
Measure
during
rights
might
implicated
a criminal
stitutional
prosecution.
investigation
However, not all—such as
jury pool
drawn
in criminal cases be
relationship.
registered
even
from
Further,
voters—share
provisions related in the sense
those
are
even
*29
satisfy
closely enough
the
described are not related
separate-vote
XVII,
1. For
section
of
people
example,
right
unreasonable
to be free from
the
of all
virtually
I, section has
under Article
searches and seizures
criminally
nothing
right
to have
the
accused
to do with the
of
under Article
in a murder case
rendered
a unanimous verdict
separate
provisions
constitu-
involve
I,
11. The two
persons.
groups
rights, granted
Simi-
different
tional
criminally
larly,
right
sufficient
accused to bail
of the
leg-
no relation to
I,
14, bears
under Article
concerning
sureties
jurors
qualification
in criminal
islation
(habeas
murder),
aggravated
and
corpus),
(penalty
for
Tsec-
1section!
rsectionl
(work
inmates).”
claims,
we do
those
not elaborate on
Plaintiffs do
for
tion!
address them.
5(l)(a).
(Amended),
under Article
cases
VII
Those
examples alone are sufficient to demonstrate that Measure
Oregon
40 contains “two or more amendments” to the
Consti-
Accordingly,
tution.
we conclude
measure was not
compliance
adopted
XVII,
with Article
section 1.
emphasize
express
regarding
We
that we
no view
changes proposed by
Indeed,
merits
Measure 40.
court’s case
IV,
this
law makes clear that Article
grants
people
power
change
Oregon
the
they
Constitu
including modifying repealing pro
desire,
tion as
so
or
Rights,
long
proposed change
the Bill
vision of
so
as the
or
changes comply
amending
requirements
with the constitutional
Kerby.,
the constitution.
Ex
See
Parte
103 Or
(1922) (through
power,
616-17,
Kadderly
added).
(1904) (emphasis
Boyd,
See also
IV. remaining case, raised issues this turn to the We cross-appeal. on the state’s
A. Injunction (2) concluding of that section earlier, after
As noted
entered
constitution, the circuit court
Measure 40 revised
“[defendant
injunction against
and his subor
Kitzhaber
an
enjoining them
subdivisions,”
and its
dinates and the State
amending
requirements
or
procedural
this case concerns
Because
severability,
constitution,
question
which was raised as an issue
revising
of
40,
challenge
is not an issue
plaintiffs’
to Measure
“revision”
in relation to
below
superior
challenge,
source
based
Severability relates to a substantive
here.
properly enacted
law,
provisions
that has been
a law or amendment
to certain
(1984);
Paulus,
P2d 1384
see also
adopted.
Hart v.
296 Or
or
(1996)
“from to enforce” section Also as Appeals stayed noted, the Court of the enforcement of the injunction, pending appeal. Armatta, outcome on 149 Or *31 App 498. regardless that,
The state contends of our determi- “permanent injunctive invalid, nation whether Measure 40 is relief is not appropriate against agencies.” the state or its respond any might Plaintiffs that error that have occurred in injunction the issuance moot, of is either because the Appeals already injunction Court of or, “vacated” the if entirety, injunction Measure 40 is declared invalid in its an longer necessary. no agree plaintiffs’ point: injunction
We with latter An necessary light is not in of our determination Measure adopted compliance 40 not in was with Article Oregon Consequently, 1, of the Constitution. need we not propriety enjoining enforcing address the of the circuit court’s order defendants Kitzhaber the State of from of Measure 40. Attorney B. Fees
Finally,
assigns
the state
error to the circuit court’s
plaintiffs attorney
decision to award
fees in the amount of
plaintiffs
$23,667.50.20
view,
In the state’s
have individual
attorney
in
ized interests
the outcome of this case that make
inappropriate
Myers,
fees
under
v.
47, 65-67,
Deras
272 Or
(1975),
Keisling,
P2d
and Vannatta v.
324 Or
(1997).
disputes
548-49,
The court concluded because preservation public the individual “the interest of the infringement against governmental guaranteed liberties attorney reasonable constitution,” he should be awarded Id. at 66-67. fees. issuing infieras, this court has its decision
Since
attorney
principles set
under the
fee award
allowed another
*32
denying
requests, the
has clar
such
court
out in that case.
prerequisites that must be
there are a number of
ified that
fulfilled
pro
appropriate. First, the
such an award is
before
Dennehy Dept.
equity.
e.g.,
ceeding
See,
in
v.
must be one
of
(1989)
attorney
(denying
423, 428,
P2d 346
Rev., 308 Or
equity);
part,
in
Cook
in
the action was not one
fees,
because
(1982)
Employment
398, 401,
We conclude that the factors cited
the state1con-
cerning plaintiffs’
type
interests in
case are
this
“peculiar,”
“pecuniary”
pre-
“individualized,”
interests
attorney
plaintiffs
clude an
fee award. Unlike the
other
attorney
cases which this court denied
that reason,
fees for
plaintiffs
any
gain
particu-
none of the
in this case stands to
lar benefit from a
invalid,
declaration that Measure 40 is
they
other than the benefit that
with
share
all other citizens
having
correctly
Constitution
construed.
Compare
(plaintiffs challenging
Vannatta,
The state next in attor ney plaintiffs, fees the circuit court found that “the relief [plaintiffs] sought Oregon all and obtained benefits residents against equally governmental view, searches.”22In the state’s plaintiffs attorney appeal, argument support On that the reiterate fees award, everyone, contending judgment just [plaintiffs], that the below “saves not against self-incrimination, protections from loss of state constitutional double jeopardy, governmental and and unreasonable searches seizures.” awarding reasoning provide attor- the basis for cannot through ney plaintiffs, voters, their initia- because the fees to change power, consti- to relating the nature of state are free tive protections and seizure. search tutional agree is crux this action not whether that the of
We independent Oregon own, contain its Constitution should against governmental protections intrusions in the form compelled seizures, self- unreasonable searches and of jeopardy placement person in twice for incrimination, of a opinion, clear in this As we have made the same offense. people Oregon power change their constitution have the of change provided they desire, as so amending requirements adopted compliance in with the XVII, constitution, in Article as set out 1. IV, Article primarily filing plaintiffs action,
However, in
this
sought
provisions
Oregon
Constitution
to enforce the
of
document,
ofthat
that relate
amendment and revision
ultimately prevailed
was
on their
that Measure 40
not
claim
separate-vote requirement
passed
compliance
of
with
sought
XVII,
Plaintiffs, therefore,
1.
to benefit
Article
they
integrity
Oregonians,
sought to
all
defend the
of
because
type
processes.
and initiative
That is the
of
amendment
attorney
public
view,
that, in
makes an award of
benefit
our
Engrs.,
appropriate.
Hoisting
fees
See
& Port.
Gilbert v.
(1963),
P2d
130, 138,
237 Or
(1964)
V. CONCLUSION Expressing of the constitu- no on the merits view changes conclude tional effected Measure we amendments, in violation of two or more measure contains Because XVII, Constitution. passed compliance with Measure was entirety. section it is invalid in its We further conclude *34 injunctive necessary Finally, relief is not in this case. we attorney plaintiffs. affirm the award fees to judgment part of the circuit court is affirmed in part. reversed
APPENDIX provides: Measure Ballot “AMENDS CONSTITUTION preserve designed This “PREAMBLE: initiative justice process and due rights to crime victims’ protect *35 of persons and prosecution conviction to the and ensure interpreted to It be criminal acts. shall have committed who accomplish these ends. added, I the to Article of is
“This section Constitution:
“(1) a in the meaningful crime role To ensure victims to accord them due justice system, juvenile criminal and persons who violate respect, and to ensure dignity and con- apprehended, are punishment for of crime laws victed and granted hereby are following rights punished, juve- crimes to prosecutions victims all proceedings: delinquency nile
“(a) reasonably protected to from right The be throughout or the convicted criminal criminal defendant process; pretrial decisions as justice the criminal of principle on the of defendant are to be based release any per- public; of the victim and the protection reasonable People have set arrested for a crime for which son to prior released mandatory minimum sentence shall not be convincing evi- determines clear and trial unless a court not new criminal person will commit dence that release; while on offenses
“(b) and, at, at, to to be heard right present The any of crit- informed in advance upon specific request, to be where the criminal defendant stage proceedings ical of including trial; present, is
“(c) upon request, information about right, The history and sentence, conviction, criminal imprisonment, custody the criminal defen- physical from of future release criminal; or convicted dant
“(d) interview, deposition or an right The refuse defendant, the defendant’s discovery request by the other defendant; attorney, acting on behalf of person other or “(e) The right prompt receive from restitution person persons or convicted of the criminal conduct that injury; caused the victim’s loss or “(f) The right have all relevant evidence admissible against defendant; the criminal
“(g) right, The in a criminal prosecution, public ato delay by trial without a jury registered selected from voters composed persons who have been convicted of a or felony felony served sentence years, within the last except that jury required no court shall hold that a juvenile delinquency court proceedings;
“(h) The right to have eleven members of jury ren- murder, a verdict guilty aggravated der or murder not- withstanding any provision other law or of this Constitution;
“(i) right copy transcript any The to have a of a court if proceeding, one is otherwise prepared;
“(j) right permit that no law shall a sentence imposed by a judge open court to be set aside or otherwise through not carried except commutation, out the reprieve, and pardon power governor pursuant appellate or relief; post-conviction *36 “(k) right The that no law shall limit the court’s authority consecutively to sentence a criminal defendant against victims; for crimes different “(1) right against The all charges have a criminal trial; defendant in a single subject tried regarding rules venue;
“(m) consulted, right request, regard- to be ing negotiations involving plea any felony; violent and
“(n) The to be right rights informed these as soon as reasonably practicable.
“(2) by The rights conferred on victims this section shall required by be limited to the extent the United States Constitution; I Section Article and Section Article I of broadly shall this Constitution the United States Constitution and involving not be construed more than cases criminal victim, validity a shall prior convictions litigated except by not extent required be the United States Constitution.
“(3) a criminal defendant’s shall reduce This section Constitution, any reduce States under the United rights statutory any existing or affect existing right press, of the relating hearsay. or privilege rule “(4) juvenile pro- or criminal As to the decision to initiate pro- prosection of such to the conduct and ceedings attorney who authorized ceedings, it is the district by this rights on victims section. conferred assert financial, “(5) suffered persons who have Victim’ means a a crime social, physical or harm as result of psychological homicide, a offense, includes, case of in the a juvenile or decedent, and, in family the immediate of the member of victim, minor. guardian a legal case of minor a event the criminal defendant considered In no shall victim, involving people In criminal cases not victim. Oregon, Oregon, represented State of of the State on rights conferred this section shall have the same victims.
“(6) tend- having any ‘Relevant evidence’ means evidence against criminal defendant ency prove charge proper sentence for the criminal defendant. establish “(7) ‘dis- prosecuted by municipality, In criminal cases city attorney’ trict as used this section includes attorney.
“(8) juvenile ‘Criminal includes offenders defendant’ juvenile delinquency proceedings. court (Boldface “(9) This creates no new civil liabilities.” original.) *37 concurring. DURHAM, J., majority’s disposition I concur in the of the trial judgment, separately explain court’s and write the basis my attorney concurrence of with award fees. Hoisting Engrs.,
In Gilbert v.
and Port.
(1964),
Myers,
P2d
Congress
fee-shifting legislation govern-
has enacted
ing analogous litigation that vindicates federal constitutional
statutory rights.
§
42 USC 1988. Unlike the rule dis-
Deras,
cussed in Gilbert and
the federal statute does not
depend
showing
protected
rights
a on
action
persons
plaintiff
attorney
other than the
an award of
equitable principles.
fees is consistent with
Legislature
has not enacted a statute
recovery
prevailing party attorney
that addresses the
fees
presented
in circumstances
similar
those
in this case. This
potential subject
legislation.
is a
for state
In the absence of
*38
judge-
legislation,
to administer
continue
courts will
equitable princi-
subject
that reflect
on this
made rules
ples
Deras.
that underlie Gilbert
scrutiny
judge-made
closer
rules bear
of those
Some
example,
equity.
accomplish
they,
For
fact,
in
that
to insure
(1989),
Frohnmayer,
P2d 1028
in
v.
Samuel
issue was:
winning party
attorney fees to the
an award of
“whether
declaratory judgment
in
pursuing
incurred
expenses
statute,
only
when
relief under the
‘proper’ further
may be
court’s
the source of the
relied
as
the statute itself is
364.
308 Or at
authority to make
award.”
specific statute,
182.090, not
ORS
that a
The court concluded
governed
general
Deras,
28.080, or
statute, ORS
a more
attorney
that the
circumstances, and
fees in the
award
pleaded
proven
plaintiff
to an
that he was entitled
had not
attorney
governing
dis-
statute. In
under the
award of
fees
controlling,
cussing why
said:
the court
Deras was not
of a
power
the inherent
Deras] was based on
[in
“The award
fact that the citizen had
in
as the
sitting
equity
court
as well
citizens,
to all
without
right applying equally
vindicated
any monetary
[Deras,] 272
gain peculiar
or other
himself.
Division, 293 Or
Employment
also Cook v.
Or at 65-66. See
(1982).
is not anal
398, 401,
position
Samuel’s
Second, the Samuel quotation passage emphasized in stated accurate. The appears meant court in Deras. If the Samuel in no form above suggest being a “volunteer” under Deras meant that plaintiff any monetary pecu- seek cannot or other relief reading passage himself, liar to ofDeras is incorrect. The in Deras that the Samuel court cited states: correctly points
“[Plaintiff] out equity that courts of have the inherent to award power attorney’s power fees. This fre- quently has exercised in plaintiff been cases where the brings suit in a representative capacity and succeeds in pro- * * * tecting rights of others as much his own. beyond dispute
“It is public the interest of the preservation guaranteed of the individual against liberties governmental infringement of the constitution is even *39 stronger present than in Correspondingly, that Gilbert. case, plaintiff in this at least plaintiffs as much in Gilbert, be required should not to bear the entire cost of this litigation the of equally benefits which to all flow members public.” Or 272 at 66. support That discussion demonstrates that Deras does not plaintiff the statement in that Samuel must seek vin- to rights any monetary dicate the of all citizens without or other gain peculiar to himself. supported by that
Neither is statement the other authority Employment case in Samuel. cited Cookv. Division deciding that, Gilbert, states in Deras and the court power equity. on Cook, relied the inherent of a court of plain- at 401. Cook does mention a not monetary gain peculiar himself, tiff seek no or other suggest recognized does not that Deras or a Gilbert such requirement. any legal support
Aside from absence of for such purported requirement, why explained this court has never equity impose precondition a court of would such recovery attorney fees. The defendants Gilbert and legal Deras enforced unconstitutional or unlawful schemes plaintiffs’ rights. acting defendants, harmed If those pursuant schemes, to the had same unlawful committed even transgressions against plaintiffs, as, more serious such example, depriving property, them for enhance, oftheir fact would plaintiffs’ equities seeking diminish, attorney my equitable Gilbert view, fees under and Deras. prevailing principles, Samuel, determines a not the dictum in attorney party’s under and Deras entitlement to fees Gilbert remedy right any equitable partyA form of never loses merely by seeking complete complaint. relief in the Neither including request complete relief, relief that is should a party, disqualify party peculiar requesting from an attorney under and Deras. Such an award of fees Gilbert impediment support equitable finds no in traditional principles.
Unfortunately,
repeated
three later cases have
with
analysis
suggesting
that Deras
out
the dictum Samuel
required
prevailing plaintiff
impor
to seek vindication of
any
rights
gain peculiar
him
tant constitutional
without
Keisling,
514, 548-49,
self. Vannatta v.
324 Or
I award of fees here principle because, in with the of Gilbert and accordance litigation acknowledge plaintiffs’ has Deras, we must protecting rights of other citi- in the constitutional succeeded plaintiffs’ The zens as much as their own. determination attorney fees in this context is controlled entitlement equitable principles. application In describ- oftraditional identify ing standing bring plaintiffs action, this sev- their they legal interests that do not share with eral diverse majority general public. interests concludes that those recovering disqualify plaintiffs from their are not sufficient to attorney fees. analysis. my apply
I a somewhat different would bringing litigation although plaintiffs’ this view, interests general public in a favorable not mirror the interests ofthe do general public plaintiffs an inter- outcome, do share with the protecting from unlawful Constitution est protecting litigation Plaintiffs’ has succeeded amendment. public’s Moreover, their none of interest as much as own. any plaintiffs’ interests cited defendants invokes diverse attorney principle equitable that would render an award inequitable. Accordingly, on Gilbert reliance fees unfair or party join majority’s prevailing Deras, award of I attorney plaintiffs in this case. fees to
I concur.