*1 judgment affirmed in September of circuit court Argued and submitted proceedings to circuit court for further part; case remanded part and reversed 4, 2002 October CITIES, OF OREGON LEAGUE Beaverton, City of County, Benton Junction City, City Eugene, Stein, Katz, Vera Veneta, Bev City Portland, City County, Multnomah County, and Washington Plaintiffs-Respondents,
v. OREGON, OF STATE Kitzhaber, M.D., John and Bill Bradbury, Defendants-Appellants,
and MILLER, Stuart Intervenor-Appellant. (Control))
(CC 00C-20156; A113789; CA SC S48450 Decision) (Consolidated for Briefing, Argument, McCALL, Audrey Swaim, E. MacPherson, Hector Michael and Mark Lewis, Tipperman, James Plaintiffs-Respondents,
v. KITZHABER, M.D., John Bradbury,
Bill of Oregon, and State Defendants-Appellants, MILLER,
Stuart Intervenor-Appellant. S48451)
(CC 00C-19871; CA A113790; SC
Janet A. Metcalf, General, Salem, Assistant Attorney the cause for argued her defendants-appellants. With on briefs Striffler, were Stephanie Counsel the Attor- Special ney General, Myers, Hardy Attorney General, and Michael D. Reynolds, Solicitor General. DiLorenzo,
John A. & Jr., Hagen of Dye Hirschy DiLorenzo, P.C., Portland, argued cause intervenor- With him were K. appellant. Stuckey, briefs Aaron and Burns, Justin J. Portland.
William F. Rudnick, P.C., Gary, Harrang Long Gary Eugene, League Oregon the cause for argued respondents Cities, Benton County, City Beaverton, City Eugene, City, Stein, Katz, Junction Bev Vera City Veneta, Portland, Multnomah and City of County, Washington
648-c E. James Klein, were Glenn With him on briefs County. Marmaduke, Mackey. and Janice L. D. Mountain, Jr., Susan and Attorney, L. Jeffrey Rogers, City were on the briefs Also Attor- City Linda Chief Meng, Deputy Wessel and Madelyn County Multnomah Thomas Portland, Sponsler, and neys, County Attorney, Duffy, Deputy N. Sandra Attorney, Portland. Kester, & Christ, Cosgrave, Vergeer M.
Thomas for respondents filed brief and the cause Portland, argued Swaim, MacPherson, Michael E. McCall, Hector Audrey Lewis, Mark James Tipperman. E. Lake filed the brief Leuenberger, Oswego,
James Mclntire and Fred Hall. amici curiae Don *6 LLP, Groen, of & Stephens Klinge, John M. Groen the brief for amici curiae Pacific Bellevue, filed Washington, Metro- Foundation and Home Builders Association of Legal Rivett him the brief were Robin L. Portland. With politan Foundation, Legal C. of Pacific Benjamin Waggoner, and Bellevue, Washington. Portland, the brief for amicus Byrne, W. filed
Gregory curiae United. Oregon Taxpayers Frank Portland, the brief amici curiae Day,
Ross filed for Fair Eisenzimmer, Limits, Term Oregonians U.S. and Term Limits. the brief for amicus Hunnicutt,
David J. filed Tigard, Oregonians curiae Center. Action-Legal P. the brief for amicus Linder, Hillsboro, Gerald filed him Water With Agencies. curiae Association Clean K. Edward J. Sullivan William on the brief were amici LLP, Portland, Ellis Kabeiseman, Preston Gates & Associa- Association and The curiae The American Planning Agencies. tion of Clean Water Larsen Batson, Swearingen A. of Gleaves
Frederick the brief for amici & filed LLP, Potter Scott Smith Eugene, Betty Dorothy curiae Wiemers and English.
648-d
CARSON, C. J.
Durham, J., concurred in and dissented in part part, filed an opinion.
649 CARSON, C. J. plaintiffs proceedings,
In these two consolidated (2000), 7 set out 334 post, Ballot Measure seek to invalidate Consti- Oregon an initiated amendment 665-67, Or at 2000 election. at the general tution that the voters approved Measure 7 was with agreed plaintiffs The trial court “separate-vote” requirement violation of adopted Constitution, also set section of the XVII, 1, Oregon Article Measure 7 to be trial court therefore declared out post. The state1 entered judgment accordingly. invalid and certified the to the Court of court Appeals, appealed certification. We court, accepted to this and this court appeals court, that Measure 7 was hold, adopted as did the trial now out Arti- set separate-vote requirement in violation of XVII, 1, therefore, is void in its and, entirety. cle section
I. AND PROCEDURAL BACKGROUND FACTS 2000, 7,
On the voters to have appear November 7,2 would have which, generally speaking, Measure approved text I, 18, to Article section Constitution added real governments compensate private property requiring for the cost of “restrict reduce regulations [ive]” owners 2000, 24, On the value of their real November property. Secretary completed canvassing before the of State had on McCall filed their plaintiffs complaint, votes Measure it adopted that the measure was invalid because was alleging Constitution, various of the Oregon in violation of provisions sets out a including XVII, separate- Article section which In their for constitutional amendments.3 requirement vote 1 Kitzhaber, Oregon, name the State of Governor Both actions Bradbury collectively as “the refer to all three defendants State as defendants. We throughout opinion. state” this yet below, completed explained although has not State As county canvassing results contained in election votes Measure official majority approved the measure. demonstrate that a voters the record adopted in violation also contended that Measure was McCall IV, l(2)(d), requirement for initiative sets out Article section which a “full-text” amend petitions “single-subject” requirement constitutional and a for laws and XVII, 2, which sets out proposed by petition, initiative and Article section ments plaintiffs later contended process adopting constitutional revisions. McCall 251.195, violated before the trial court submission Measure also requirements pamphlet proposed constitutional which sets out voters’ *8 McCall
complaint, plaintiffs sought judicial a declaration that Measure 7 not validly and, was three adopted, after days filing their moved complaint, they for preliminary injunc tion of preventing State from canvassing votes on measure and preventing Governor from whether the measure had declaring passed. League Oregon of Cities (League) filed their on plaintiffs complaint December 5, 2000, also before completion essen canvassing, raising tially the same constitutional as McCall challenges plaintiffs and also seeking declaratory judgment; League plaintiffs simultaneously moved for a preliminary injunction. McCall but not plaintiffs, League plaintiffs, also specifically sought fees. In recovery attorney its answer to both complaints, the state asserted that all some or plaintiffs lacked standing and that the trial court lacked matter subject jurisdiction over both actions.
In 2000, December the trial court consolidated the actions and issued a preliminary injunction, enjoining of State from canvassing the votes Measure 7 Governor from declaring results of proclaiming the election. In early January (intervenor), Miller orig- inally the chief of the initiative that ulti- petitioner petition became mately Measure moved to intervene in the consol- actions, idated and the trial court In granted motion. his answer, intervenor contended, that the among things, actions were not ripe adjudication and that all plaintiffs lacked standing. thereafter, all
Shortly plaintiffs filed motions for summary judgment, and state and intervenor cross- filed summary motions for At judgment. summary judgment intervenor hearing, submitted evidence that set out the offi- county cial election results and that Measure 7 demonstrated had received more than 53 percent the vote. amendments, violating thereby IV, l(4)(b), requires also Article section which according initiatives be submitted that section. laws not inconsistent with (in actions) except plaintiff The trial court concluded that all both League Oregon standing plaintiffs, had League Cities collec under ORS 28.020. tively, challenge appeal; accordingly, do not that conclusion on references to future “League opinion plaintiffs” Oregon do plaintiff League in this Cities. include
In the trial court February granted plaintiffs’ and denied summary motions the state’s and judgment intervenor’s cross-motions. The court the state’s and rejected intervenor’s arguments respecting jurisdiction, standing as noted, (except, argument concerning plaintiff League Cities), and also most of ripeness, rejected *9 However, constitutional the court plaintiffs’ arguments. with that Measure agreed 7 violated separate- XVII, vote of Article section of the provision Con- and, stitution was invalid. The court later accordingly, actions, entered both that the measure judgment declaring should not have been submitted to the had voters, not become effective, and was not part Oregon Constitution.5
The state and the Court appealed, certi- Appeals fied the to this appeals court. This court the certifi- accepted cation and consolidated the proceedings purposes appeal.
II. JURISDICTION A. Jurisdiction under the Declaratory Judgments Uniform Act
The state contended below that the trial court did not have matter subject jurisdiction because plaintiffs filed their challenges Measure 7 after the election, but before the Secretary of State had of canvass- completed process the votes and ing the measure. The trial court certifying dis- and agreed jurisdiction assumed under ORS 28.010 to (UDJA). 28.160, the Uniform Act Declaratory Judgments On the state appeal, and intervenor the trial argue court erred in assuming jurisdiction under the UDJA because statute, another 250.044(1), with the provided plaintiffs exclusive method of a ballot measure after the challenging state, election. The intervenor, but not alternatively argues trial require court also concluded that Measure 7 violated the full-text IV, l(2)(d); however, rejected plaintiffs’ arguments ment ofArticle section the court respecting single-subject revision, plaintiffs’ argu and did not rule on McCall respecting according ment submission to election laws. appeal, plaintiffs challenges On neither set of the trial court’s conclusion respecting single-subject requirement. pending All other matters before the above, attorney fees, exception trial court discussed with the have been raised on appeal. upon separate-vote requirement, Because we resolve this case based we remaining do not issues. address the constitutional that, even if ORS did not an provide exclusive method for plaintiffs’ it at least challenge, provided more method for the at appropriate challenges issue here. For the below, reasons set out we with both contentions disagree hold that the trial court did not err in assuming jurisdiction under the UD JA.
ORS 28.010 provides, part: * * * “Courts respective jurisdictions within their shall power status, have rights, declare and other legal rela- tions, whether or not further relief is or could be claimed. * * a trial court has broad
Although
power
provide declaratory
relief, it lacks subject matter
under
if
jurisdiction
ORS 28.010
some other exclusive
exists.
remedy
Alto v. State Fire
(1994).
Marshal,
382, 395,
lenges constitutionality Oregon an amendment to the Constitution ** * (1) by (4), people Oregon initiated under section 1 Article IV Constitution; “(b) The action is commenced on or after the date that the challenged adopted State certifies that the measure has been the electors days measure; and within 180 after effective date of the and
“(c) may The action not be commenced in the Tax Court.” Swett, here did not file their within that plaintiffs challenges 250.044(1) time ORS does not period; consequently, apply their actions. state’s alternative ORS argument —that
250.044(1) nonetheless would have provided a more appro- avenue for priate plaintiffs’ assumes challenges incorrectly — 250.044(1) that ORS an basis cir- provides independent cuit court over a jurisdiction ballot measure In challenge. words, the state that, if had waited argues plaintiffs 250.044(1) certification, until after itself would have conferred jurisdiction trial court over their ballot upon measure challenges jurisdiction under ORS 28.010 therefore would been However, have unnecessary. argu- ment is contrary text of ORS explicit 250.044(2), which provides, part: (1)
“An action under subsection
of this section must be
jurisdiction
within the
circuit
present
courts
must
* * *”
justiciable controversy.
added.)
(2)
its
(Emphasis
By
terms,
subsection
of ORS
(1)
250.044 indicates that subsection
itself does not confer
jurisdiction over a ballot measure
Instead, as this
challenge.
250.044(1)
court
in Swett, ORS
explained
sets out a list
only
of three requirements
“respecting when and where a certain
class of ballot-measure
must
challenges
be filed.”
Ordinarily, jurisdiction would end at this point, is, with our conclusion that the trial court assumed properly jurisdiction statutory under a particular However, below, scheme. because conclude, we as discussed *11 that two McCall under the only plaintiffs standing have UDJA, we must consider the McCall remaining plaintiffs’ jurisdiction 246.910(1), alternative of under ORS theory which concerns the challenges Secretary to actions by
654 if the trial necessary, because, That consideration
State.7 246.910(1), ORS then any under had jurisdiction court have under the UDJA standing do McCall who plaintiffs to assert under ORS standing have the opportunity would 246.910(1). v. Environ. Quality, 290 Dept. See Local No. (1996) (when on stand ruling 1168 565, 919 P2d 559, Or 323 statute at wording particular must focus upon court ing, issue). argu address McCall plaintiffs’ we now Accordingly, 246.910(1). below, the reasons out For set ORS ment under did not have jurisdiction the trial court that we conclude under that statute. 246.910(1) in part: provides,
ORS failure to act by any affected act or adversely “Aperson ** * the may therefrom to appeal by Secretary the of State failure to act in which the act or county for the circuit court * * occurred four allege plaintiffs specifically McCall complaint, In their (or that his predecessor) of State Secretary by acts that resulted Three were “decisions affected them. adversely * * * accepting the ballot [:] on Measure 7 appearing contained that the petition verifying proposed petition, the measure certifying signatures, number of requisite canvass fourth, deciding on the ballot.”8 for placement Measure and against the votes for to canvass and beginning plain- was in when progress election and after the 7, occurred filed their actions.9 tiffs 7 Stein, plaintiffs, lack League Katz and two conclude below We also alternatively However, argue League plaintiffs did not standing 28.020. under ORS 246.910(1). jurisdiction had the trial court 8 (1) began following as Initia Measure 7 judicial facts: notice We take (2) Secretary (2000); originally petition was filed with
tive Petition (3) April Attorney title on 10,1999; certified the ballot General State on March (4) proposed circulation approved initiative for 9,1999; of State (as (5) measure 28, 1999; State certified the ballot May on 201(f) 7) may (judicial 26,2000. generally notice be taken July OEC See Measure 964 P2d Keisling, 559 n proceedings”); v. stage Leo “at surrounding (1998) activity ballot judicial elections (taking notice of earlier issue). at measure That alle they registered voters. alleged were All McCall also sufficient plaintiffs’ opposition to Measure was together gation, with those Secre adversely action of the they “person[s] affected” an were establish 6, 10-11, 725 246.910(1) Roberts, 302 Or State, requires. See Ellis v. tary of as ORS (1986) means that requirement (“adversely of ORS affected” P2d 886 *12 does not address McCall
On
the state
plain-
appeal,
to several distinct acts
the
by
tiffs’
as a
challenge
challenge
Instead,
in the
the
alleged
complaint.
of State as
Secretary
characterizes McCall
as
plaintiffs’ challenge generally
state
initial
to the
of State’s
constitutional
challenge
Secretary
ultimately
of the
initiative
that
proposed
petition
evaluation
7. The
then
that that
argues
challenge
became Measure
state
60
the
days
because it was not filed within
Sec-
untimely
title,
certification of the ballot
as
retary
required by
of State’s
(1986).10
Roberts,
v.
302 Or
by
Secretary of State.
set out in ORS 28.020: ** *
“Any person rights, whose status or other legal by constitution, statute, relations are affected a [or]munic- * * * may any charter determined ipal question have of con- * * * validity any struction or such arising constitu- * * * tion, statute, municipal [or] charter and obtain a rights, legal declaration of status or other relations thereunder.” ORS 28.130 defines the word as
Additionally, “person” used in the UDJA
“* * *
any
joint
person, partnership,
mean
stock com-
society, or
pany, unincorporated
municipal
association or
corporation
character whatsoever.”
Thus,
to establish
a
must show that
standing,
plaintiff
is a
as defined in ORS 28.130 and that the
plaintiff
“person”
status or other
relations are affected”
plaintiffs “rights,
legal
the law or enactment at issue.
In
to establish
identifying
requisite “[e]ffect[ ]”
28.020,
under ORS
this court has held that a
standing
plain
tiff must
or other
rec
injury
impact upon legally
show some
an
in the
beyond
interest
abstract
interest
correct
ognized
or the
of a law. Eckles v. State
application
validity
Oregon,
(1988).
380, 385,
addition,
306 Or
With
requirements
offered before
dence of
or other
injury
impact
Because
are
reviewing
grant
summary
the trial court.
we
inferences
we view the facts and all reasonable
judgment,
them in
may
nonmoving par
be drawn from
favor
case,
the state and intervenor. Robinson v.
ties —in this
455,
B. McCall Plaintiffs the following
McCall included complaint plaintiffs’ that are relevant to our discussion: allegations
659 registered and voters in taxpayers are “Plaintiffs 2000, 7, elec- Oregon. They general in the November voted subject them land in areas that are tion. or all of own Some private property. use of real regulations restricting Mayors and of Salem Lewis are “Plaintiffs Swaim Jacksonville, Their official duties include respectively. and regulations and how to enforce that affect deciding whether real private property.” the value and use of attached, as A” of their com- also “Exhibit McCall plaintiffs of a of voters’ that included a copy page pamphlet plaint, title, a 7, text its ballot and accompanying of Measure of brief estimate financial impact. all as they standing have plaintiffs
McCall
argue
development
the increased
they
landowners because
oppose
However,
7
on summary
that Measure
would
about.
bring
MacPherson,
McCall,
McCall
judgment,
plaintiffs
of their
set out
upon
Swaim rested
the allegations
complaint,
lead
above,
allege
and failed to
or show that Measure 7 would
so,
how,
how it would do
development,
spe
increased
as
increased
would affect them
cifically,
development
McCall,
The only
plaintiffs
landowners.
specific impact upon
MacPherson, and
landowners
that we can discern
Swaim as
that,
7
land
generally
from the text of Measure
is
speaking,
avoid
arguably might
owners would be
for —or
compensated
their
governmental
regulations
pri
altogether —certain
not
vate
That
sufficient
establish
impact
property.
it is
28.020,
sufficiently
under ORS
because
standing
standing
that is central
to the
adverse,
question
quality
v.
Ethical Treatment
Inst.
People
context. See
(1991) (so
Care,
101,
Animal
312 Or
We decline to address that, describing theories according to this case law those intervenor court’s McCall, MacPherson, it. See standing, plaintiffs have failed to establish and Swaim (1967) standing 10-11, Mosser, (plaintiffs had as P2d 97 Hanson v. Or pursu they alleged expenditures public funds taxpayers, that unlawful because burden), questioned their on other would increase tax overruled ant to contract
By Tipperman contrast, McCall Lewis and they submitted uncontroverted affidavits in which offered concerning specifically, how, details Measure 7 would affect (1) Mayor affidavit, them.16In his Lewis avers that he is (2) property there; Jacksonville and owns he has made prevent date, efforts—to successful—to the conditional use of *16 aggregate forest resource land outside Jacksonville as an (3) mine; plaint he has been named as a defendant in a federal com (4) by
filed the owner of the forest land; resource alleged complaint forest resource that, in landowner her federal 7, under Measure she be would entitled to million if $50 County prevents using Jackson her from her land as an (5) aggregate litigation, a mine; as result of Jacksonville reconsidering opposition aggregate is its to mine; and (6) obtaining per if the forest resource landowner succeeds in property, mission to mine her then the value of estate real in including Jacksonville, own, his will decrease. Tipperman, large
Plaintiff a rancher who owns a tim County, ber and cattle ranch in Union avers as followsin his affidavit: my
“In
if the
or
opinion,
county
state were to
or
repeal
law,
‘waive’ or otherwise not enforce land use
to avoid lia-
bility
compensation
7,
for
under Measure
some surround-
ing
nearby parcels
and
developed
land would be
for resi-
possibly
dential and
commercial use. That would diminish
my farm,
the value of
because those other uses
ranch-
and
are
ing
generally
compatible
not
in
proximity
close
one
another.
development
my
Such
would also interfere with
* * *
ability
ranching
to continue
and
would thus jeopardize
my
portion
income.
“If
adopted,
7
utility
[my]
Measure
the value and
* **
* * *
will
diminished.
significantly
[R]ural
ranch
be
by
488,
grounds
Cooper,
(1970);
Or
Smith v.
256
Although consequences result from are certain anticipate Tipperman 7, they plausible, of Measure are concrete implementation intro- Tipperman ramifications. Both Lewis plaintiffs lead to that shows Measure 7 would duced evidence how that increased and how, specifically, increased development them. Because Lewis would development injure that Measure would affect their established Tipperman have status, legal relations, they we conclude rights, Measure 7 under ORS 28.020. standing challenge C. League Plaintiffs following sets out the plaintiffs’ complaint
League *17 standing: allegations respecting City Portland, City, City Eugene,
“Plaintiffs of of Junction City Veneta, City municipal corpo- and are Beaverton Oregon the Con- powers granted rations with home rule County, County stitution. Plaintiffs Multnomah Benton rule Washington County pow- are counties with home and * ** granted by Plaintiffs ers the Constitution. * * * Oregon, and Stein and Katz are citizens of State of taxpayers.” electors and attached the text Measure as well plaintiffs also
League title a brief estimate of finan- as its ballot accompanying The estimate of as A” of their impact, complaint. cial “Exhibit provided: financial impact to billion $1.6
“Direct costs the state are estimated to be year. government costs are estimated to be per Local direct year.” per billion $3.8 did affidavits in further support not submit
League plaintiffs alle- 28.020; consequently, of their under ORS standing material only in their constituted gations complaint before trial court respecting standing on summary judgment.
As Katz, to the Stein and League plaintiffs as with McCall plaintiffs McCall, MacPherson, Swaim, neither in the allegations nor the attached exhibit complaint demonstrates how Measure would affect them. Accord- lack ingly, they to this standing bring challenge.
The local government
consist
plaintiffs
of municipal
plaintiffs and
corporation (city)
plaintiffs.
In
county
respect
of the city plaintiffs,
the UDJA specifically treats municipal
(and
other)
all
as
corporations
“persons”
purposes
act. ORS
28.130.
like
Accordingly,
city,
any person, has
standing to
an action under
bring
the UDJA if that city’s
status
are
“rights,
or
relations
affected.”
legal
In
county
28.010.
this
respect
plaintiffs,
court has rec
relief is
to
ognized
declaratory
available
counties under
the UDJA. See Tillamook
v.Co. State Board
Forestry,
(1986)
404, 416,
Or
because are “mere instrumentalities of the state” not against passed an action the strike initiative the vot “maintain state to down an argues “proprietary government must ers of the state.” He that a local have a
663 IV. RIPENESS turning must address before final issue that we controversy. ripeness Intervenor is the to the merits ripe controversy argues hot is because that yet canvassing completed for and the votes of State has against yet proclaimed has not 7, Measure and the Governor passed. However, the record includes that measure has (the county evidence official abstracts uncontroverted the tally) majority that ofthe vote that shows vot unofficial approved general November 2000 elec ers tion. Measure 7 at the According evidence, to that of State’s can will that Under those vass of the votes not alter result. challenge pre plaintiffs’18 7 is not circumstances, Measure clearly can ultimate, official result be mature, because 446, Bar, 449, See Brown v. State 293 Or forecasted. (1982) (ORS controversy chapter requires 28 P2d 1289 present opposed dispute [s] that facts as to a which is “involve (emphasis hypothetical events based on added)); nature” future Co.et al, Hale v.Fireman’s Fund Ins. (1956) (request declaratory 103-04, P2d 1010 relief not ripe contingent upon happening of that cannot be if event may place). Accordingly, never forecast and take we conclude controversy ripe. that is now the merits. this We turn to XVII,
V. ARTICLE SECTION Principles Legal Respecting XVII, A. Article Section Parties’ Contentions that earlier,
As noted
the trial court concluded Meas
separate-vote requirement
XVII,
ure 7
ofArticle
violated
provides,
part:
section which
may
support of
request
interest”
it
In
at stake before
relief
the UDJA.
contention,
Co.,
Co.,
upon
intervenor relies
Tillamook
McCall and the local standing 28.020, “plaintiffs” sufficiently alleged we term under ORS use the only opinion. this refer to those the remainder of *19 664 * * * “Whentwoor more amendments shall be submitted they
the voters ofthis
election,
state at the same
shall be so
submitted that each amendment shall be voted on
separately.”
part, upon
(1998),
The trial
relied,
court
Armatta v.Kitzhaber, 327
Or
277,
The state and intervenor contend, outset, at the only “change” Measure 7 makes one substantive under the part inquiry consequently, first of the Armatta and, that fur- analysis ther unnecessary. Article XVII, section 1, is Alternatively, the state and intervenor that, contend even if change Measure 7 makes more than one substantive to the Oregon changes “closely Constitution, those are related.” In response, plaintiffs correctly contend that the trial court separate-vote concluded that Measure 7 contravened the requirement multiple, because the measure made substan- changes Oregon tive closely to the Constitution that were related. Changes by
B. Made Measure 7 by begin addressing
We certain of the substantive changes plaintiffs contend that Measure 7 makes to the Oregon Constitution. As noted above, first contend express substantively changes that, its terms, Measure 7 agree, I, Article section 18. The state and intervenor as dowe. parties disagree, concerning however, the effect ofMeas- upon parts including ure 7 Constitution, briefly Article I, section 8. Below, we first summarize the upon effect of Measure I, Article section then 18, and turn to upon the effect that Measure 7 has I, Article section 8.19 VI, Plaintiffs further contend changes that Measure 7 Article section XI, 1(5) (all IV, Article section regarding authority and Article section home-rule I,
1. Article
Section
I,
18, provides,
part:
Article
section
* **
taken
public
not be
use
property
“Private
shall
except
nor
in the case of the
just compensation;
without
first assessed and ten-
state,
compensation
without such
roads, ways
of all
and water-
dered; provided, that the use
necessary
transportation
of the raw
ways
promote
use
mine or farm or forest or water for beneficial
products of
necessary
development and welfare of
drainage
to the
is declared a
use.”
public
the state and
for a
requires payment
“just compensation”
That provision
in the
“taking”
actions that result
variety
governmental
*20
use,
tak
public
including “regulatory”
private property
of
or enforcement of
with
ings by way
application
regulations
v.
certain economic ramifications. Boise Cascade
Board
Corp.
(1997).
185, 197-98,
325 Or
“BE IT ENACTED BY THE OF THE OF PEOPLE STATE OREGON:
“THE OF THE STATE OF OREGON IS CONSTITUTION AMENDED BY ADDING THE FOLLOWING SUBSEC- TO SECTION 18 ARTICLE I: TIONS OF “(a) state, state, If the of the or a political a subdivision government passes regulation
local or enforces a and the private property, restricts use real of the value a reducing restriction has the of effect of property upon imposed; which the restriction is just equal property paid compensation owner shall be the fair market value of the to the reduction in property. (state XI, powers); Article sections 7 and 10 related initiative and referendum and 15(1) (unfunded mandates); limitations); XI, county Article and debt Article section 1(1) (Amended), (judicial IV, (legislative authority); Article VII section section I, III, power); (separation powers); Article section and Article section 1 and (local I, analysis respecting XI, option). light Article sec- of our
Article section In below, plaintiffs’ contentions that Measure 7 we need not address tion set out Swett, Constitution. See changes provisions also several other (following approach). at 607 same “(b) section, adoption of this or enforcement purposes For commonly historically recognized nuisance and not be deemed to have caused a reduction
laws shall phrase “historically property. in the value a commonly recognized nuisance laws’ shall be nar- of a rowly finding just compen- construed in favor under this required sation is section.
“(c) the minimum regulating entity may impose, A required, regulation implement require-
extent payment compensation federal law without ment of Nothing under this section. this 2000 Amendment compensation government reg- due to a require shall property pur- the use of a for the prohibiting ulation selling performing nude danc- pose pornography, beverages or other controlled ing, selling alcoholic substances, operating gaming parlor. or a casino or “(d) if the Compensation property shall be due owner adopted, applied was first enforced or after
regulation owner, property owner of the became the the current days after apply property and continues to to the this applies compensation the owner section.
“(e) section, ‘regulation’ Definitions: purposes For of this rule, ordinance, resolution, any law, include
shall government; goal, or other enforceable enactment any shall include structure built property1 ‘real removable property, aggregate sited on the and other minerals, product crop grown forest or other ‘reduction in the fair market value’ property; on the in the fair market value of shall mean the difference *21 application regu before and after of property the landowner lation, and shall include the net cost to pre obligation protect, provide, of an affirmative areas, wetlands, eco habitat, natural serve wildlife historical, scenery, space, archaeologi systems, open resources, housing; and or low income cal or cultural include, if a claim for com ‘just compensation’ shall days fully paid within 90 pensation is denied or neces attorney expenses fees and filing, reasonable sary compensation. to collect “(f) is found to clause, or of this section any phrase, part If jurisdiction, by competent invalid a court of
be 667 parts clauses and shall remain in phrases, remaining full force and effect.” added.) 7 demonstrates, text Measure As its
(Emphasis
18, in number of
I,
ways.
section
a
Article
changes
explicitly
18,
I,
currently requires
Article
section
significantly,
Most
when a
owner
only
property
of just compensation
payment
has
governmental
regulation
demonstrates
use
economically
all
viable
the owner of
“deprive [d]
** *
beneficial
If
has some substantial
the owner
property.
meet
then the owner fails to
remaining,
use
property
(internal
Although changes Measure other ways, although parties disagree regarding changes, extent ramifications of such we need not dis- so, That we conclude changes cuss such here. because Article I, Measure 7 also sec- implicitly changes below that 8, in and that the substantive way explicit, tion a substantive I, 18, above, closely is not change to Article section discussed 7 makes to Arti- change related to the that Measure implicit I, changes cle section 8. the number Accordingly, I, Measure makes to Article section has no bearing upon 7 (because 607 Swett, in this case. See Or at our decision that were not changes court addressed two substantive to discuss other made related, unnecessary changes closely issue).20 turn to our of the effect of analysis measure at We by I, section 8. Measure 7 Article upon We that the court based its conclusion that Measure violated note trial upon separate-vote requirement primarily determination that Measure 7 made its However, upon I, changes to Article 18. that court relied the Court various section construct, “necessar[y] Keisling, Appeals’ implication]” set out in Dale v. 167 Or (2000), determining App a measure encom 999 P2d whether rejected that passes more This court later construct two or amendments. upon Lehman, “policy relied an alternative at The trial court also 241-42. Lehman, state, rejected this court also advocated which choice” construct id. at 242.
668 I,
2. Article Section 8 (c) Plaintiffs contend that subsection 7 Measure changes argument by I, Article section 8. We address that turning again first to the text of Measure 7. (a), above,
As noted in subsection Measure requires payment just compensation regu- for restrictive private property. lations that reduce tion value of real Subsec- (c) excep- following 7, however, of Measure creates the just-compensation requirement tion to the set out (a): subsection “Nothing in this 2000 Amendment require compensa- shall government tion due to a regulation prohibiting the of a use property for the purpose selling pornography, performing nude dancing, selling beverages alcoholic or other con- substances, trolled or operating gaming parlor.” a casino (c)permits gov- other words, In the state subsection and local pay qualify ernments not a claim to that otherwise would (a), response under subsection regulation if that claim is made in to a subject using property that forbids one of (c) By purposes. terms, then, the enumerated its subsection governments permits pay just the state and local not to com- regulations prohibit pensation explicitly using prop- erty regulations purposes, prop- for those even if such reduce (a). erty value under subsection (c) per- that, contend
Plaintiffs because subsection government pay just compen- mits the state or a local not to private property property to real sation decreases of owners whose regulation prohibiting value because of a the use property among purpose selling por- for, uses, nography, right changes expression Measure free currently guaranteed by I, Article section 8. The state (c) respond merely intervenor that subsection an creates exception right just compensation to the set out in subsec- (a) way, change rights and, in that not 8. cur- tion rently viewed does guaranteed Alternatively, I, Article inter- section (c) operate prevent that, if does venor contends subsection receiving payment property just com- certain pensation, owners from it enforced, such a scheme never could be because permitted I, Therefore, not be section 8. would Article could not effectively “change” view, Measure in intervenor’s that constitutional provision 8, because I, section Article (c) effective in the from becoming subsection prevent would we with below, agree plaintiffs. As explained instance. first statehood, provides, since place section I, Article *23 in part: restraining expression the free passed “No law shall be write, speak, print or restricting right or opinion, subject [.]” whatever
freely any v. Tidyman, in Portland City explained As this court 8, “forbids I, Article section (1988), P2d 242 174, 179, Or any subject directed in terms against of a law the enactment unless the communication or writing, printing,” of speech, exception “a historical falls within well-established question not demonstrably were guarantees the constitutional meant to displace.” 7 that in the text of Measure
There is no suggestion ordinary in other than its is used the term “pornography’ is one form understood, it is clear that pornography sense. So at 179. 306 Or Tidyman, writing, printing.” of “speech, restrictions upon court has determined Further, this adults— involving and obscene sexually expression explicit any not fit forms of within many pornography such as —do 732 P2d 510, 523, State v. 302 Or Henry, historical exception. (1987). as used sub Therefore, term “pornography,” that, no matter includes some forms of (c), expression section Article I, are under protected to many people, how offensive section 8. do not with quarrel and intervenor
The state do law. Neither constitutional statement foregoing of sell- “for the purpose that the use of disagree property they (c), implicates as described in subsection ing pornography,” the state and Instead, noted, as expression. of free right (c) not change does that subsection intervenor argue that property benefit away any it does not take because right currently their to sell property pornography use owners who entitled to not be owners would is, such property That enjoy. described sub- for the type regulation just compensation (c) to it under entitled not be they would today, section to the Therefore, according Measure 7. state and intervenor, Measure 7 those change would owners’ right of free expression.
The state’s and intervenor’s argument mistakenly focuses whether owners use upon property who their prop- to sell erty actually would lose pornography under money Measure 7. That is not the is question. question whether those would owners in the experience constitu- change tional free right to which expression they are currently I, entitled Article 8. section We turn to that question now.
As we have as it explained, currently operates, Arti I, cle section the state or a prohibits government local from is enacting a law directed content against of consti tutionally protected expression. Tidyman, at 179. Thus, the state or a local not enact government may a law that is directed against selling it pornography because However, Id. pornography. protection afforded Article I, section does not end with the protection from regulations that explicitly target As this *24 expression. court v. explained City Miller, 480, in Or Eugene 491, 318 871 of (1994), P2d 454 freedom of expression by as Arti guaranteed I, 8, cle section also means that a local state or govern ment treat may not those who sell material expressive “more than those who sell restrictively” other merchandise. Because is Miller crucial to of the scope understanding freedom 8, of that Article we expression I, guarantees, section that case briefly discuss here.
Miller concerned a
challenge
city
bookseller’s
to a
sale
prohibited
ordinance that
of most forms of merchan-
license)
dise
sidewalks,
“food,
the sale
city
(by
except
On
beverages,
face,
flowers
balloons.”
at 483.
its
ordinance
neither
nor
targeted
expression generally
any par-
ticular
in
expression.
Stated
the words
type
differently,
Or at
Tidyman,
179,
the ordinance was not explicitly
However,
“directed in terms against any subject of speech.”
the ordinance
to restrict
operated
bookseller —someone
who sold
material
under Article
protected
I, sec-
expressive
tion
food,
8—to a
extent
than it did those who sold
greater
restriction,
That
this court
flowers, and balloons.
beverages,
8. The court
I,
explained:
Article
section
held, violated
make its sidewalks available
city chooses to
long as the
“So
* * *,
treat
activity
may
it
general commercial
for some
restrictively than ven-
material more
expressive
a vendor
* *
of other merchandise
dors
in original).
491 (emphasis
318 Or at
burden
that a governmental
Miller demonstrates
“restrain
of expression
[t]”
is one
type
free expression
upon
It is
clear
8,
section
I,
equally
that Article
prohibits.
that allows some per
enactment
that a governmental
Miller
but
others
activity,
prohibits
in a certain
sons to participate
in that same activ
from participating
in
engaged
expression
It fol
upon expression.21
burden
ity,
prohibited
constitutes
that requires payment
scheme
governmental
lows that a
expres
not others
in
engaged
protected
some
but
persons,
I,
8,
section
pro
a burden that Article
sion, also constitutes
govern
if the state or a local
reason,
today,
hibits. For that
owners, it
property
ment is
to offer a benefit
some
required
8, choose not to offer
not,
I,
under Article
section
may
latter
another
owner because
same benefit
property
activity.22
type
expressive
in a
engages
particular
owner
the state and local
contrast,
Measure
Under
that,
just
to do
would be
explicitly
permitted
governments
permissible
might be
noted in Miller that such an enactment
This court
merchandise,
I,
8, if,
it were
vendors of
in the context of
under Article
section
nonexpressive
accompanied by
explanation
material
as to how the sale of
an
ques
expressive
special
material
question
need or how the sale of
“meets a
reasonably justifying
regulation
ven
special problems
gives
tion
rise to
differently
stringently
other vendors.”
expressive
more
than
material
dor of
“special problems” appear here.
“justification” or
We first note 306 Or at Tidyman, 190-91, this court left that a open possibility regulation ostensibly against directed expression might pass constitu- muster, tional that such a was provided regulation fact directed toward effects to be negative sought prevented specified also harm otherwise would arise if the reg- were adopted. ulation not this court Consequently, although a case it yet has decided such involving regulation, that a governmental today, could craft possible entity, reg- [s] ulation use of a for the “prohibit purpose property selling I, without afoul of Article pornography” running 8. section
That said, theory we disagree with intervenor’s not a change a constitutional be enforced is might never as of the “change” separate-vote (c), Subsection purposes. moment of its constitutional passage, carves out explicit an
673 8, Article section now I, that pro- to exception protection (c) sets out a circum- subsection differently, vides. Stated date of Measure in 7, as the effective stance, effective constitutionally and must state local governments which the owners, may to some but decline to a benefit provide property use their to sell property offer it owners who property to other I, material that under Article protected a type expressive a local govern- of whether state or Regardless section 8. to advantage exception ment chooses take set out ever (c), “change” nevertheless is a to in subsection exception I, Article sec- rights currently guaranteed by of the scope of our in this case. 8, separate-vote analysis tion for pin-poses (fact 243 n Lehman, See Or at 8 that one con- generally 333 at prohibited made measure issue was change stitutional separate- States Constitution did affect court’s by United vote analysis). text of 7 sum,
In Measure to although purports I, Article section its inclusion of the change only exception (c) currently set out in subsection nonetheless changes rights I, Article 8. See Coalition guaranteed by generally section 300, 309, Fund. v. Oregon, School State 311 Or Equit. (“When (1991) P2d argues a that a consti- party general from something, forbids the state doing tutional provision be argument may by later-adopted answered constitutional that allows the state to do that For provision very thing.”). reasons, that, written, those we as Measure 7 conclude sub- changes existing provisions: two constitutional stantively (free- I, section 18 and Article section 8 I, Article (takings), dom of expression). XVII, Article
C. Measure 7 under Section Analysis of Armatta, under above, inquiry As noted our makes “two or at to determine Measure 7 277, is whether to the that are “substan more Constitution changes” related.” The foregoing analysis tive” are not “closely at 7 makes least two substantive establishes Measure constitution, is, change to changes existing just compensation property requirements payment Article and a I, separate change under section owners Article restraining I, laws sec- respecting expression turn, then, tion 8. We of Armatta’s application “closely related” prong. Lehman,
In 333 Or at this court a fur- offered as to ther of the explanation application phrase “closely Armatta: related” from
*“* * First, relationship among we examine the the con- affects, that the provisions explic- stitutional measure both If the itly implicitly. provisions existing affected related, likely constitution themselves are not then it is changes provisions separate- to those will offend the * * * requirement. proposed [T]he vote fact that a amend- *27 vote, substantively the to people, change ment asks one Oregon Constitution that are not multiple provisions the proposed themselves related is one indication that might violate the separate-vote requirement. amendment “Next, changes must consider the constitutional we * * * related, they closely themselves. If are the measure XVII, scrutiny consideration survives under Article not, they If are it does not.” section 1. that we to the relation-
Following approach, proceed analyze the two existing provisions between constitutional ship 7, relationship affected Measure as well as the between that the measure changes the substantive constitutional effects. to the constitutional that Measure 7
As
provisions
section 8—we
I,
18,
I,
affects —Article
section
and Article
than their
difficulty
that,
place-
have no
concluding
no relation to
Rights,
ment in the Bill of
those
bear
provisions
I,
Article
to
18,
right
“just
each other.
section
provides
property
to
owners whose
compensation”
private property
contrast,
I,
8, by
taken for
use. Article
section
public
upon
as to
restriction
any
expressly precludes,
person,
to
of
“the
opinion,”
right
the “free
as well as
expression
upon
Those
on
write,
freely
whatever.”
speak,
print
any subject
constitu-
provisions
two constitutional
involve “separate
to
granted
persons.”
tional
different
rights,
groups
“is a
Armatta,
strong
Turning to Article the that Measure 7 makes we that change conclude is, require- an I, 18, just-compensation that expanded section that the value of pri- reduce regulations ment for restrictive to the that it closely change is not related vate real property, an to is, I, 8, creating exception to Article section that makes those that cannot treat the historical laws requirement oth- restrictively” “more than expressive activity engaged at 491. activity, Miller, ers expressive not engaged I, 18, to concerns Article section change generally to obtain just compensation of a real owner ability property that change of certain regulations indeed, enforcement — owners vis-a-vis generally expands rights property contrast, regard. By change in that government limit the I, 7 makes to Article section to operates Measure owners, certain vis-a-vis other rights property property material owners, expressive based content upon Meas- notably, change their More sold on property. I, ure out an to exception 7 makes Article section carves no expres- fundamental law shall restrict principle See 302 Or at any subject Henry, sion “on (Article whatever.” I, “any opin- section covers broadly expression ion” incor- “any subject whatever,” exception). By without that are not changes both substantive porating types related, Measure 7 makes “two or more amendments” closely were required Constitution voters upon separately. have voted
D. 7 Invalid in its Entirety Measure at Armatta, in Or explained
As this court constitu Lehman, in at 250-51, proposed and Or again con must be in with adopted compliance tional amendment requirements: stitutional a proposed long-standing principle
“It is
of law
in compliance
amendment must be adopted
constitutional
procedures
set forth in the
Constitution:
with
“
amend-
its own
provisions
‘The
the constitution for
A
mandatory,
strictly observed.
ment are
must
and
be
in
respect
this
will be
proposed
to a
amend-
failure
fatal
ment, notwithstanding may
it
have been submitted to
and
approved
by the people. The constitu-
ratified
tional provisions are as binding upon the people as upon
the legislative assembly, and the people
give
cannot
legal effect to an amendment which was submitted in
disregard
the limitations imposed by the constitution
* *
***.***
an attempt is made to amend an exist-
constitution,
ing
every requirement
its
regarding its own
observed,
amendment must be substantially
and the
any
omission
one will be
to the amendment. The
fatal
supreme
constitution is the
land,
law of the
binding
all,
upon
and can no
disregarded
more be
in the manner
of its own
amendment than in
respect.
long
As
”
remains,
as it
provisions
its
must be observed.’
Armatta,
VI. ATTORNEY FEES we address Finally, the issue of fees. As attorney noted at the outset of this opinion, McCall plaintiffs, but not League plaintiffs, specifically requested fees in their attorney After the trial complaint. court entered its below, ruling McCall plaintiffs petitioned attorney fees, and the state objected. From our review of record, it appears trial court never ruled on plaintiffs’ or on the petition state’s For that objection. reason, and because the issue of attorney fees further will involve consideration of our holding only Lewis and plaintiffs Tipperman sufficiently alleged standing case, the McCall we remand the case to the trial court for further proceedings.
VII. CONCLUSION (1) In sum, we hold that the trial court did err in not (2) jurisdiction under the assuming the trial court did UDJA; (3) jurisdiction have 246.910(1); Lewis, and the Tipperman, local government League plain- tiffs, but not the remaining McCall plaintiffs League plain- (4) tiffs, established standing UDJA; purposes of *29 (5) Measure 7 encom- is controversy ripe adjudication; in viola- to the Constitution two amendments passes its therefore, is void in 1, and, XVII, Article section tion of (6) to the trial court. the case must be remanded and entirety; affirmed in part of the circuit court is The judgment circuit case is remanded to the in and the and reversed part, court for further proceedings.
DURHAM, J., and concurring dissenting part part. the I all agree
I write because do not with separately, major- and Specifically, conclusions. majority’s reasoning 246.910(1) in the trial concluding ORS ity misconstrues to no under that statute consider court had jurisdiction McCall, Hector Audrey the individual plaintiffs claims of Michael E. Swaim in the McCall case, and MacPherson, Cities case League Oregon Katz and Bev Stein in Vera (hereinafter to as collectively referred “individual plaintiffs”). below, reasons set out ORS supports For the over the individual assumption jurisdiction trial court’s claims. plaintiffs’ OF APPEAL REMEDY
OVERVIEW PROVIDED BY 246.910 ORS 246.910 provides:
“(1) act or adversely by any A affected failure person clerk, citya by Secretary State, county a elections act officer or any or officialunder any county, city other district law, by any order, rule, or directive instruction election made clerk, by State, county city a elec- any county, city or district official tions officer or law, any to the circuit may appeal election therefrom county or failure to act court in which act rule, the order, or in which or instruction occurred directive was made.
“(2) in the circuit Any party appeal proceedings (1) may from appeal under subsection of this section court ofAppeals. the decision ofthe circuit court to the Court “(3) in their Appeals, circuit The courts Court of discretion, dockets may give such their precedence on appeals under this section as the may circumstances require.
“(4) remedy provided this section cumulative any and does exclude other remedy against act or act State, county clerk, failure to citya *30 any officer or county, city elections other or district official any against any order, rule, under election law or directive by Secretary State, or instruction made the county of a city clerk, any or county, city a elections officer other or dis- any trict official under election law.” That provides statute a nonexclusive of remedy, the form court, an the circuit appeal to conduct virtually any the by State, and of Secretary array of an local election officials, that falls the short of of requirements Oregon election law or any official decision to elections made relating to dele- pursuant gated authority. (1)
Subsection statute identifies two broad cat- egories by of conduct election officials an may appeal The first challenge. category “any act or failure to act by Secretary State, clerk, a a county city elections officer or any county, other or district official city under election any * * order, law The second is “any rule, category directive or State, instruction made a by clerk, county a officer city city elections or or district any county, offi- ** cial election law (1) that,
Subsection
an
provides
bring
appeal,
must be
affected
plaintiff
“adversely
by” conduct
that falls
into
or
either one
both of the
described
In
categories
above.
this
all
proceeding,
allege
individual
they are
either
Therefore,
voters” or “electors.”
in chal
“registered
lenging
Secretary of State’s conduct in
Meas
advancing
ure 7 to a
vote
the ballots after the
public
canvassing
election on November
the individual
7,2000,
plaintiffs satisfy
that,
criterion
confers
agrees,
majority
standing
246.910(1).
Ellis
sue
n
under ORS
Or at 654-55
(citing
(1986)).
Roberts,
v.
I
6, 10-11,
The that ORS appeal statute, under that reg- an remedy. By filing appeal icant scrutiny con- judicial istered voter can focus prompt every to make certain that action of election officials duct in all with the complies respects inaction of those officials election law. Oregon requirements OF THE THE CHALLENGED CONDUCT OF STATE SECRETARY the individual com- plaintiffs’ The is whether issue claim the circuit facts that constitute a within state plaints 246.910(1). The majority under ORS court’s jurisdiction the McCall allegations complaint acknowledges State that contravene four acts refer to (1) election law: Oregon accepting proposed petition; (2) contained the number verifying requisite petition (3) on the certifying the measure signatures; placement (4) election, ballot; and after the canvas and deciding for and Measure 7. Id. against to canvass the votes beginning League in the Cities com- allegations at 654. substantively are identical.1 plaint *31 The the court’s majority jurisdic- does not address 246.910(1) acts, or to tion under over the four failures ORS the of State that the act, by Secretary complaints allege. a ref- Instead, majority at the state’s the suggestion, adopts a leaves the allegations ormation of the complaints scarcely recognize. the would plaintiffs state that individual that, “McCall plaintiffs For the states example, majority of constitutional evaluation Secretary the State’s agree 1 substantively identical, alleged complaints I the in the are Because facts two together. Oregon sufficiency complaints League of The Cities address the the of declaration, among things, ultimately requested 7 complaint that Measure a XVII, separate-vote requirement in Article sec is not valid because it violated the authority 1, Constitution, (describing Oregon court to see ORS 28.020 tion of the relief). declaratory request Notwithstanding of the grant for declaration sufficiency by examining complaint invalidity of a of Measure we determine the complaint, to the claim. allegations of not labels used characterize the the the (1989) (“While Knight, a claim relief Or P2d 1000 Sheets v. pleads may plead theory, if it a claim for specific fail it not be dismissed to should (Foot plaintiff theory, the the intended.” relief under some if it was not one even omitted.)). here, may reverse the trial court’s Applying the court note that rule to jurisdiction complaints are sufficient assumption allegations the if the of including theory, the identified ORS plead claim a claim relief under some 246.910(1). initiative proposed that became petition Measure 7 is
the at the ‘act’ heart this Id. at challenge.” 655.
The record no contains genuine the agreement by individual to abandon on reliance three of the four on allegations factual which base their they actions. When read, the fairly complaints contend that each of the Secretary alleged act, State’s four acts or failures to from the earliest recent, to the most because, contravenes election law Oregon other things, Measure 7 among improperly multi- presented ple constitutional the voters but changes them packaged for a vote. The single individual plaintiffs did not waive their about the of State’s complaints Secretary more recent including the of the votes on canvassing Measure actions — after the merely they because also argued that the election — State never should have accepted the proposed view, the first petition place. my In the majority errs in 246.910(1) under determining jurisdiction ORS consider- only one of the ing State’s acts or alleged failures to act in violation of election law.
After effectively reforming complaints and con- cluding that, in reality, only the they challenge Secretary of State’s 1999 initial April evaluation of proposed initia- tive, concludes, Ellis, majority that the individual plaintiffs’ that act under opportunity challenge ORS in June 1999. expired majority What omits from is a analysis its consideration of the text and context of relies, ORS 246.910. The sole case which majority Ellis, similarly failed to construe and apply ORS 246.910. As demonstrates, discussion following unless this court is enforce willing legislature’s under ORS appeal remedy 246.910 as the intended, suffer legislature public will loss an important protection unauthorized against conduct by elections officials.
DETERMINING THE OF ORS MEANING 246.910 whether 246.910 authorized question *32 trial court to the jurisdiction assume over individual plain- tiffs’ the complaints this court to determine inten- requires tion of the In this court legislature. inquiry, first making examines the text and context of the relevant statute. Con- text includes the of other related statutes and case provisions
681 the the of statute at issue. If meaning law that construes disclose the clear of the statute meaning those sources Toevs, further. v. 327 court no State proceeds this question, (1998). P2d Or 525, 532, 246.910(1) “[a] with person ORS begins phrase * * *.” those persons That describes phrase affected
adversely and, seek as statutory appeal remedy, with standing the indi- seen, including it includes persons, we have already electors. Ellis, who are voters or registered vidual plaintiffs, nor any questions 11. Neither the majority party Or at that proposition. describes the of categories
ORS then two As may that an affected adversely person appeal. conduct (1) case, are act or “any to this failure pertinent categories * ** election law” Secretary to act of State under by any (2) made order, rule, by directive or instruction “any ** * * * election law *.” any of State under (1). “any” The word four times in subsection appears The of is “one out of ordinary meaning indifferently that word * * * * * * more : what one, than two no matter one : EVERY * * (una- : Dictionary ALL *.” Webster’s Third New Int’l 1993). bridged ed context, scope those in this definitions
Applying (1) first conduct in subsection category appealable limit. act “any broad to the without The point being phrase or “thing done,” “deed,” or failure to act” embraces “deci- every sion,” “act”), at 20 as well as “omission of every id. (defining * ** task; neglect assigned, of an action or of an performance * * * * * * FAILING, LAPSE or action expected, appropriate ** “failure”). *.” at 815 (defining DEFICIENCY Id. its sweeps scope act or failure to act” within each phrase “any State, act four acts failures to as above, the individual plaintiffs allege described complaint. basis of their in subsec- conduct
The second
category
appealable
(1)
“rule,”
legal
two kinds
tion
includes
“order” or
review
legislature
judicial
action that
has exposed
(APA),
Act
the Administrative
Procedures
judicial
See
(providing
183.550.
ORS 183.400
183.310 to
*33
determination
of
of
validity
rule);
administrative
ORS
183.480-183.490
for judicial review of
(providing
administra-
orders).
tive
However,
the appeal
remedy under ORS
246.910(1) is
in
broader
than
scope
judicial review under the
183.310(8)
APA. For
the definition
example,
of “rule” in ORS
includes an
if
agency
general
“directive”
it is “of
applicability*’
and
or
“implements,
law or
interprets
prescribes
or
policy,
describes
the
or
procedure
practice requirements
of any
[,]” but excludes certain “internal
agency
management direc-
tives” that “do not
the
substantially
affect
interests of the
in relations between or
public”
agencies.
within
The remedy
246.910(1)
in ORS
to any “directive,”
extends
as well as any
“instruction” of the
of
Secretary
State under
election
any
law.
Moreover, the
fact
the APA
and
exposes “orders”
certain
to judicial
“rules”
review does not diminish the
of
remedy
246.910(4)
246.910(1),
described
ORS
appeal
because ORS
provides
the
of
is
of
remedy
appeal
“cumulative”
This court
remedy.
drove home that
OEA
point
v.
Roberts,
(1986),
Or
The foregoing discussion indicates that the text of 246.910(1) ORS clearly the view that the supports legislature authorized the circuit court to action every review official by of Secretary Thus, State Measure 7. regarding according to text, exercise of statutory every Secretary of State’s official 7 is power judicial over Measure review for subject conformity Oregon with election those laws, including establish the of of scope State’s Secretary delegated authority over initiative Because that statute petitions. act failure to act it exposes every statutory appeal, to a to contend that a to a unavailing recent party’s challenge exercise ofthe as the Secretary authority, State’s such can- ballots, also filed vassing could have been some against earlier exercise of over the initiative authority petition. same
This court’s case
con-
construing
law
legislature’s
firms the
intention to
the circuit court
authorize
act
challenges
to consider
to all
failures to
actions or
under
v.
Secretary
Roberts,
State
In OEA
any election law.
an
(1986),
brought
the plaintiffs
721 P2d
State
to compel
ORS 246.910
action
initiative
a proposed
not to process
General
Attorney
it. The
from circulating
the sponsors
prevent
petition
duty
had a
State
that the
contended
initiative
proposed
the election whether
before
determine
IV, sec-
stated in Article
rule
“one-subject”
with
complied
The Sec-
Id. at 230.
Constitution.
l(2)(d),
tion
after the elec-
arose
duty
only
that that
argued
of State
retary
an
the voters
duty,
adopted
had no
before
and that she
tion
initiative for com-
to examine
measure,
proposed
initiative
The court had left
the one-subject provision.
with
pliance
v.
State ex rel
case,
Fidanque
earlier
in an
open
question
*34
(1984).
The court challenged had that the plaintiffs decision particular —the a for circulation —was petition of the prospective approval rule. one-subject under challenge occasion for proper chal- one-subject that a the plaintiffs The court with agreed because at that was stage proper lenge “ oppor- the first provides determination that is this Tilt her official to exercise Secretary of State tunity for the power with If, as petition.
respect
prospective
to the
duty to
a constitutional
contend, there is
Plaintiffs-Relators
pro-
approving
It is in
this time.
act, it would arise at
alleged
comply with
did not
spective petition which
Secretary of
IV,
that
section
requirements of Article
first
statutes
the constitution
authority
State’s
”
duty breached.’
would
exceeded and her
be
OEA,
The court’s determination in OEA—that the Secre- tary State’s approval a prospective was her petition first action in arguable violation of her powers that —confirmed plaintiffs, that contesting action, had not their brought challenge as the prematurely, defendants contended. The defendants’ argument the plaintiffs should have —that their brought claim only after enactment of the measure— was unresponsive to the question whether the Secretary of State’s responsibility apply rule one-subject arose before the election. The plaintiffs’ choice to contest the first exercise of the Secretary State’s authority over the pro- posed initiative was correct procedurally, because, as the court stated, that decision was the first of “several discrete decisions” State in the submission proc- ess, one of “any which bemay challenged.” Id.
The individual plaintiffs similarly argue Oregon Constitution does not authorize the actions and cer- tifications State has employed to advance Measure 7 to a vote and to canvass the votes after the election because they contend, among things, Measure 7 unlawfully makes multiple amendments to the constitution. The majority responds Ellis declined to consider a similar form-of-adoption to a challenge pre- election certification of an initiative petition. majority *35 reasons that, because Ellis announced a 60-day deadline for challenging of State’s Secretary of a approval proposed initiative, and measured the deadline from certification of the ballot title, the Ellis deadline in this expired case in June 1999. Because that would theory restrict significantly appeal remedy I 246.910(1), examine Ellis in detail.
ELLIS v. ROBERTS 246.910(1) Ellis was a challenge under ORS by reg- istered voters to the Secretary State’s certification on July (1986) 16,1986, of Ballot Measure 11 for the November 1986, ballot. The plaintiffs commenced their under ORS appeal 246.910(1) on July 31,1986, and that the argued because Measure was unauthorized certification State’s to Measure 11 purported subject. more than one contained and also taxes from property exemption a homestead create tax to the a sales from referring the legislature prohibited on a the action dismissed The trial court for a vote. people Or at 10-11. Ellis, laches. theory that the plaintiffs determined review, this court On they be in ORS the requirement satisfied voters they registered were affected” because “adversely file an action. voter to any registered the statute permitted the doctrine determined 11. The court also Id. at 246.910(1). under ORS to an action laches had no application statutory the plaintiffs’ The court distinguished Id. at 12. a mandamus case, proceed- Fidanque, from an earlier action Neither of those defense. laches was a pertinent in which ing in this case. controversy in Ellis is in determinations The court thing. then did an odd The Ellis opinion like the “Should actions the following question: itself asked limi- time’ some kind of‘reasonable subject one be to present such imposing the absence of statutes on filing, tation it what acknowledged The court Id. at 13. restraints?” limit on a time regarding vacuum” “legislative described as 246.910(1), legislature because under ORS filing appeals of an filing appeal a time limit for had not enacted vacuum, legislative to that Responding that statute. judicial some provide that “we are required court asserted Id. one.” statutory until the legislature provides framework of such a requirement. the source explained The court never court case, the mandamus Turning Fidanque, the Sec- process required that the submission acknowledged deci- that each decisions, to make a series of State retary exercise and that the to challenge, sion susceptible was first she when authority occurred of State’s Id. at 15-16. initiative circulation. the proposed approved cause might challenges” noted that “eleventh hour The court collecting their resources to waste initiative proponents through “steamroll force courts to might signatures be measures the deadline for issues to meet legal delicate Or at Fidanque, Id. the ballot.” at 16 (quoting placed 718). *36 from the
Proceeding foregoing reasoning, court announced that a “reasonable” time deadline should filing 246.910(1). under ORS apply appeals The court continued by is a announcing “[t]here season for each kind of chal- to the lenge State’s administration of the elec- * * tion laws *.” Id. at 17. The court then that, announced by at the looking statutory appeal period allowed under APA, the court could determine that 60 after days approval the ballot title awas reasonable time period for a one- filing 246.910(1). subject under ORS challenge court held that, because the of State had approved proposed initiative for circulation on August 1985, the “deadline” the court created had nine expired months before the had filed their action. The court then applied its newly announced deadline to the retroactively plaintiffs’ and dismissed it. Id. at 19. appeal
Perhaps most of the striking aspect Ellis opinion that, is due to the court’s that the perception had legislature failed to append filing deadline to 246.910, the court believed that it was by authorized inherent in the something court’s judicial power source of authority the Ellis —a made opinion clear —to manufacture a filing never deadline for a and to dismiss statutory appeal any appeal that a party had filed after that deadline. That reasoning reflects serious error. legal time,
For a
law has
very long
condemned any
arrogation
legislature’s lawmaking
court,
power by
including
guise
statutory
interpretation,
as action in excess of
judicial
lawful
In State ex rel
power.
Simon,
(1891),
v.
“This is a would by necessary pro- to make the mistake otherwise omitted intention, by its but we cannot construc- carry out visions Davies, J., As was said ‘It supply these omissions. tion clearly and always legislature speak for the competent judicial depart- it is safer for the equivocation, without *37 act, meaning the obvious of an plain ment to follow what have been the speculate upon might rather than to have legislature emergency may of in the which views the legislative It to to the arisen. is wiser safer leave supply to a or actual casus omissus department supposed by judicial to to do so v. attempt (People than construction.’ 364.) in Woodruff, supply N.Y. Courts cannot omissions 32 they supposed afford because are to legislation, nor relief Woods, To the Mr. in Hobbs language exist. of Justice adopt 579, provision U.S. a is left of a McLean, v. statute, 117 ‘when out by legislature, design either or mistake of the leg- to it. To be power supply courts have no do so would to ” and not to construe.’ islate Id. at 373-74. in ex rel reflects cur- Everding
That State passage It in rent law. is clear that the court Ellis acted authority of its in fabri- judicial beyond scope legitimate 246.910(1). a deadline for an under ORS cating filing appeal ofjudi- The Ellis court the most fundamental ignored precept for responsibility deciding cial review of a statute: That a as whether dead- policy filing matters particular —such otherwise) (“reasonable” or a rem- govern statutory line shall not the court. exclusively legislature, with the edy —rests there “season” for chal- is, That whether is or should be a 246.910(1) ORS a by solely question lenges permitted the legislature.2 days Ellis, Relying of five on the court deadline has announced different challenge impact
filing
regarding
ORS
statement. State ex
under
246.910
a fiscal
(1986).
relying
Ellis,
Roberts,
72, 82,
Bunn v.
302 Or
P2d 925
Also
rel
petitioner may
timely challenge
held
under ORS 246.910
court has
that a
file a
peti
days
appealing
of an initiative
within 60
of State’s certification
(1990).
Crumpton Roberts,
As
v.
It
be
might
possible
distinguish Ellis from the
which
present appeal,
challenges
conduct
part
by the Sec
retary
State that occurred
the election. Ellis stated
after
it was
a timeline
placing
requirement
“on pre-election
kind,”
of this
challenges
and, as a
the court
consequence,
declined to address whether “a post election
challenge
kind that occurred in
v.
Anthony Veatch,
462, 220
P2d
493[,]
[,]
reh den
The majority, however, has chosen to answer question Ellis did not decide and has extended the Ellis deadline to apply challenges to offi- cial acts both before and occurring an election. The after therefore, question, is whether the court should treat Ellis as *38 a case law precedent and extend the Ellis deadline to chal- to lenges post-election official actions.
In whether determining this court should adhere to Ellis as a precedent, we must look to the standards that this court has established for whether a determining particular case deserves that status. Some of this court’s decisions have repeated what has come to be known as the rule of “prior interpretation.” For example, State v. King, Or 445-46, 852 (1993), P2d 190 this court stated:
“When interprets statute, this court a the interpretation part statute, becomes a subject only a by to revision the legislature. Having once construed the same provisions statute, of this in slightly context, albeit a different to have particular a meaning, we will not now contrary consider a (Citations omitted.) interpretation.”
I have discussed elsewhere
concern that
that
my
statement does not reflect Oregon law and is an unnecessar-
ily
deviation from the
rigid
correct rule that governs this
court’s adherence to case law
rule
precedent: The
of stare
rel
v.
638-
Sawyer,
ex Huddleston
decisis. State
(1997)
J.,
and
(Durham,
part
concurring
Neither Ellis of stare decisis. The court’s unilateral under the principle announcement a statutory of a time limit on appeal, in the text of ORS 246.910 absence of deadline support statute, contextual undermine the any legitimacy other If, chose, a indeed, Ellis as as precedent. legislature asserted, impose opportunity Ellis court to no deadline challenge under ORS 246.910 to official registered voters laws, to acts or failures act under election that choice policy court, judicial this not a by deserves and deference respect veto.
Other of the Ellis court’s rationale indicate aspects a not a valid the act of deadline was manufacturing statute, arguably analogous The did deadline ORS Ellis court refer one 183.484(2), governs appeal an “order in other than a contested case.” which analogy acknowledge purported breaks down under The court failed to 246.910(1) act, any applies broadly analysis, or failure to ORS more act because above, orders, and, only previous under the court’s case law reviewed decisions, made, subject once becomes of State’s various actions and 246.910(1). to review under ORS regarding fil "legislative existed court’s assertion vacuum” Ellis might false, determine the ing court failed to deadlines have been because the potentially statutory Those include ORS applicability deadlines. relevant statute, 30.275, 12.080, liability on a which concerns actions created “tort,” public body against which ORS which concerns actions based on *39 law,” duty imposed that part legal is in to include “the breach defines of a provides specific law a civil injury person persons in to a the “results or for which * * * appli protective remedy.” must the right of for a The court determine action cability any can accu period before it assert other relevant of limitations those filing appeal rately legislature an under ORS to the failed limit the time the potentially would bar applicable the cited above 246.910. Neither of deadlines plaintiffs’ appeals this individual in case.
exercise of and that that judicial power act does not merit def- erence under doctrine of stare decisis. For example, Ellis court’s announced concern resources petition circulators is beside the The must point: court assume instead that the took legislature that concern into account in 246.910(1). enacting ORS It obvious that legislature was even more concerned that registered Oregon voters should have and effective prompt method of challenging every unauthorized official act or failure under to act election laws whenever a default such occur. might
The Ellis court’s concern regarding deleterious effect of “eleventh-hour” on the court’s appeals ability to ana- lyze sensitive an questions before election simi- approaching larly is unfounded. in ORS Nothing any 246.910 requires court an to decide under that appeal statute before an elec- 246.910(3) tion or any election-related event. ORS authorizes “the circuit courts Court of in Appeals, their discretion,” such their “give precedence on dockets to appeals under this section as the may circumstances require.” agree I that subsection anticipates prompt judicial consideration and determination appeals under 246.910(1). However, the Ellis court’s notion that courts are pressure under decide under ORS appeals well goes beyond elections anything before implies. And, the statute that sort pressure applied by to an parties appeal, understandable the context although of pre-election advocacy, way in no appellate justifies judicial deadline to defeat all adoption nonstatutoiy but the earliest challenges assertedly unauthorized official conduct. of an purported pressure impending election is
absent, case, event, in this because filed their appeal after the election. The Ellis court’s concern that “elev- enth-hour” the courts to appeals might place, pressure when, decide haste is irrelevant important legal questions as here, the asserts that State’s appeal alleg- occurred or edly unauthorized conduct continued after election. failed to this court’s
Finally, analyze previous Ellis that, in other cases discussed above determinations *40 is to under subject of State’s official review Secretary power this court give 246.910. Those earlier statements from ORS 246.910 act or fail- “any effect the of that wording full to to either subject analyze to act” is to Ellis failed appeal. ure the statements from this court or inconsis- those previous the deadline and the statute’s between court’s tency promise act of State under any by Secretary that act or failure to the is to subject appeal. an election law of decisis not the court to
The rule stare does require as a law The fore- precedent. to the Ellis deadline case adhere of about the the Ellis deadline legal efficacy concerns going of that dead- expressed reasoning and the court’s support that lead me to conclude the court should reconsider line its Ellis, not broaden to all under application govern appeals ORS 246.910. 246.910, text the
My including review of the of ORS law, and case indicates that each statutory pertinent context of in the Secretary of the State’s actions initiative multiple to first subject occurs, only an as it not the process appeal The trial court did not err in over asserting jurisdiction act. of the individual the Secretary the to challenges plaintiffs 7.1 affirm trial State’s actions Measure would the regarding in that regard. court’s action
CONCLUSION the deadline the court in By by created extending 246.910(1), all the Ellis to to filed under ORS apply appeals that undermined the remedy provided has majority appeal a registered bring a voter longer may judicial statute. No the by to act or to act statute failure challenge his authority. State that exceeds Secretary allegedly to legislature’s the scheme Instead, majority has twisted of State’s challenges solely Secretary to the confine such first illustrates, As this case authority.5 exercise purported reading opinion, majority attempts of its a refute that The in footnote to other, challenges opportunity timely to file to still have the asserts that the voters 246.910, Secretary later, 334 Or at presumably of State under ORS acts cannot, However, square its majority statement with dismissal n 657 13. part complaints allege complaints here. Those of the individual canvassing votes Secretary an of State committed unauthorized act — days plaintiffs filed their regarding before the individual Measure 7—less than why plaintiffs’ majority’s explanation complaints. the individual The
window of file a can opportunity challenge many expire months or of State years before places pro- ballot, measure the votes, counts or certifies the posed measure’s or defeat in an election. Once the court- passage made deadline no voter or other expires, registered adversely may affected citizen use ORS a Sec- challenge retary of State’s later exercises of authority advance pro- ballot, measure to total absence posed despite legal to do authority regardless public so of the costs at stake. law election responsibilities State and other election officials are Constitu- simple. tional initiative care- requirements lawmaking by require *41 ful stages observance at all the initiative process, only at the legislature earliest. The designed appeal remedy an adversely ORS affected citizen to permit pro- test court whenever act or failure to act an election legal official falls short of under laws. requirements election defeats, than majority’s result rather respects, legis- lature’s remedial scheme. concur in I Although majority’s disposition 28.020,1 of the other claims under ORS dissent from the dismissal of the majority’s individual plaintiffs’ 246.910(1). claims
For the concur in dis- foregoing reasons, I part sent from the decision. part majority’s wait, complaints timely act will unfor- about that unauthorized are not filed have tunately, for another case.