Lead Opinion
In these two consolidated proceedings, plaintiffs seek to invalidate Ballot Measure 7 (2000), set out post,
I. FACTS AND PROCEDURAL BACKGROUND
On November 7, 2000, the voters appear to have approved Measure 7,
In December 2000, the trial court consolidated the actions and issued a preliminary injunction, enjoining the Secretary of State from canvassing the votes on Measure 7 and the Governor from declaring or proclaiming the results of the election. In early January 2001, Miller (intervenor), originally the chief petitioner of the initiative petition that ultimately became Measure 7, moved to intervene in the consolidated actions, and the trial court granted that motion. In his answer, intervenor contended, among other things, that the actions were not ripe for adjudication and that all plaintiffs lacked standing.
Shortly thereafter, all plaintiffs filed motions for summary judgment, and the state and intervenor filed cross-motions for summary judgment. At the summary judgment hearing, intervenor submitted evidence that set out the official county election results and demonstrated that Measure 7 had received more than 53 percent of the vote.
In February 2001, the trial court granted plaintiffs’ motions for summary judgment and denied the state’s and intervenor’s cross-motions. The court rejected the state’s and intervenor’s arguments respecting jurisdiction, standing (except, as noted, the argument concerning plaintiff League of Oregon Cities), and ripeness, and also rejected most of plaintiffs’ constitutional arguments. However, the court agreed with plaintiffs that Measure 7 violated the separate-vote provision of Article XVII, section 1, of the Oregon Constitution and, accordingly, was invalid. The court later entered judgment in both actions, declaring that the measure should not have been submitted to the voters, had not become effective, and was not part of the Oregon Constitution.
The state appealed, and the Court of Appeals certified the appeals to this court. This court accepted the certification and consolidated the proceedings for purposes of appeal.
II. JURISDICTION
A. Jurisdiction under the Uniform Declaratory Judgments Act
The state contended below that the trial court did not have subject matter jurisdiction because plaintiffs filed their challenges to Measure 7 after the election, but before the Secretary of State had completed the process of canvassing the votes and certifying the measure. The trial court disagreed and assumed jurisdiction under ORS 28.010 to 28.160, the Uniform Declaratory Judgments Act (UDJA). On appeal, the state and intervenor argue that the trial court erred in assuming jurisdiction under the UDJA because another statute, ORS 250.044(1), provided
ORS 28.010 provides, in part:
“Courts * * * within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. * *
Although a trial court has broad power to provide declaratory relief, it lacks subject matter jurisdiction under ORS 28.010 if some other exclusive remedy exists. Alto v. State Fire Marshal,
The state first argues that ORS 250.044(1)
The state’s alternative argument — that ORS 250.044(1) nonetheless would have provided a more appropriate avenue for plaintiffs’ challenges — incorrectly assumes that ORS 250.044(1) provides an independent basis for circuit court jurisdiction over a ballot measure challenge. In other words, the state argues that, if plaintiffs had waited until after certification, ORS 250.044(1) itself would have conferred jurisdiction upon the trial court over their ballot measure challenges and jurisdiction under ORS 28.010 therefore would have been unnecessary. However, that argument is contrary to the explicit text of ORS 250.044(2), which provides, in part:
“An action under subsection (1) of this section must be within the jurisdiction of circuit courts and must present a justiciable controversy. * * *”
(Emphasis added.) By its terms, subsection (2) of ORS 250.044 indicates that subsection (1) itself does not confer jurisdiction over a ballot measure challenge. Instead, as this court explained in Swett, ORS 250.044(1) only sets out a list of three requirements “respecting when and where a certain class of ballot-measure challenges must be filed.”
B. Jurisdiction under ORS 246.910(1)
Ordinarily, our discussion of jurisdiction would end at this point, that is, with our conclusion that the trial court properly assumed
ORS 246.910(1) provides, in part:
“A person adversely affected by any act or failure to act by the Secretary of State * * * may appeal therefrom to the circuit court for the county in which the act or failure to act occurred * *
In their complaint, McCall plaintiffs specifically allege four acts by the Secretary of State (or his predecessor) that adversely affected them. Three were “decisions that resulted in Measure 7 appearing on the ballot [:] * * * accepting the proposed petition, verifying that the petition contained the requisite number of signatures, and certifying the measure for placement on the ballot.”
On appeal, the state does not address McCall plaintiffs’ challenge as a challenge to several distinct acts by the Secretary of State as alleged in the complaint. Instead, the state characterizes McCall plaintiffs’ challenge generally as a challenge to the Secretary of State’s initial constitutional evaluation of the proposed initiative petition that ultimately became Measure 7. The state then argues that that challenge is untimely because it was not filed within 60 days of the Secretary of State’s certification of the ballot title, as required by Ellis v. Roberts,
McCall pláintiffs agree that the Secretary of State’s constitutional evaluation of the proposed initiative petition that became Measure 7 is the “act” at the heart of this challenge.
Despite their agreement that the Secretary of State’s constitutional evaluation of the proposed initiative petition that became Measure 7 is the act truly at issue here, McCall plaintiffs nevertheless argue that Ellis does not apply to their challenge. They argue that the 60-day deadline set out in Ellis applies to only challenges under ORS 246.910(1) that seek to keep a measure off the ballot, that is, to challenges brought before the election. Because they brought their challenge after the election, McCall plaintiffs argue, they are not constrained by the 60-day deadline.
We disagree. Respecting a challenge under ORS 246.910(1) to the Secretary of State’s constitutional evaluation of a proposed initiative measure, Ellis sets out a 60-day deadline, following certification of a ballot title.
McCall plaintiffs argue, as noted above, that Ellis— specifically, its 60-day deadline — should apply to only challenges brought before the election. That argument misses the broader point, that is, that the very nature of their challenge is a pre-election challenge to a pre-election Secretary of State decision. As this court explained in Ellis,
“There is a season for each kind of challenge to the Secretary of State’s administration of election laws, whether as to the ballot title, the signature gathering process [,] or constitutional evaluation. * * * The Secretary of State makes— or fails to make — the constitutional decision at the outset. * * * Later actions, such as acceptance of a ballot title from the Attorney General, verification of signatures and certification, do not call for [the Secretary of State] to reassess the original constitutional evaluation that is supposed to be the predicate for placing the entire initiative machinery in operation. It is either done or not at this initial stage. The period of reasonable time commences then.”
(Citations omitted.) The fact that McCall plaintiffs filed their action after the election does not save their challenge for jurisdictional purposes under ORS 246.910(1): The “season” for their challenge occurred before the election, within 60 days after the Attorney General certified the ballot title.
III. STANDING
A. Legal Principles Respecting Standing
Having determined that the trial court appropriately assumed jurisdiction under the UDJA, we now turn to intervenor’s argument that no plaintiff in either action had standing to challenge Measure 7 under that statutory scheme. Although we agree with intervenor respecting three McCall plaintiffs (McCall, MacPherson, and Swaim) and two League plaintiffs (individual plaintiffs Stein and Katz), we conclude that plaintiffs Lewis and Tipperman, among McCall plaintiffs, and the remaining League plaintiffs (local government plaintiffs) have standing to challenge Measure 7.
The requirements for standing under the UDJA are set out in ORS 28.020:
“Any person * * * whose rights, status or other legal relations are affected by a constitution, statute, [or] municipal charter * * * may have determined any question of construction or validity arising under any such * * * constitution, statute, [or] municipal charter * * * and obtain a declaration of rights, status or other legal relations thereunder.”
Additionally, ORS 28.130 defines the word “person” as used in the UDJA
“* * * mean any person, partnership, joint stock company, unincorporated association or society, or municipal or other corporation of any character whatsoever.”
Thus, to establish standing, a plaintiff must show that the plaintiff is a “person” as defined in ORS 28.130 and that the plaintiffs “rights, status or other legal relations are affected” by the law or enactment at issue.
In identifying the requisite “[e]ffect[ ]” to establish standing under ORS 28.020, this court has held that a plaintiff must show some injury or other impact upon a legally recognized interest beyond an abstract interest in the correct application or the validity of a law. Eckles v. State of Oregon,
With those requirements in mind, we turn to the evidence of injury or other impact that plaintiffs offered before the trial court. Because we are reviewing a grant of summary judgment, we view the facts and all reasonable inferences that may be drawn from them in favor of the nonmoving parties — in this case, the state and intervenor. Robinson v. Lamb’s Wilsonville Thriftway,
B. McCall Plaintiffs
McCall plaintiffs’ complaint included the following allegations that are relevant to our discussion:
“Plaintiffs are taxpayers and registered voters in Oregon. They voted in the November 7, 2000, general election. Some or all of them own land in areas that are subject to regulations restricting the use of private real property.
“Plaintiffs Swaim and Lewis are the Mayors of Salem and Jacksonville, respectively. Their official duties include deciding whether and how to enforce regulations that affect the value and use of private real property.”
McCall plaintiffs also attached, as “Exhibit A” of their complaint, a copy of a page of the voters’ pamphlet that included the text of
McCall plaintiffs argue that they all have standing as landowners because they oppose the increased development that Measure 7 would bring about. However, on summary judgment, McCall plaintiffs McCall, MacPherson, and Swaim rested upon the allegations of their complaint, set out above, and failed to allege or show that Measure 7 would lead to increased development, how it would do so, and how, specifically, that increased development would affect them as landowners. The only specific impact upon plaintiffs McCall, MacPherson, and Swaim as landowners that we can discern from the text of Measure 7 is that, generally speaking, landowners would be compensated for — or arguably might avoid altogether — certain governmental regulations of their private property. That impact is not sufficient to establish standing under ORS 28.020, because it is not sufficiently adverse, a quality that is central to the question of standing in any context. See People for Ethical Treatment v. Inst. Animal Care,
By contrast, McCall plaintiffs Lewis and Tipperman submitted uncontroverted affidavits in which they offered details concerning how, specifically, Measure 7 would affect them.
Plaintiff Tipperman, a rancher who owns a large timber and cattle ranch in Union County, avers as follows in his affidavit:
“In my opinion, if the county or state were to repeal or ‘waive’ or otherwise not enforce land use law, to avoid liability for compensation under Measure 7, some surrounding and nearby parcels of land would be developed for residential and possibly commercial use. That would diminish the value of my farm, because those other uses and ranching are generally not compatible in close proximity to one another. Such development would also interfere with my ability to continue ranching and * * * would thus jeopardize a portion of my income.
“If Measure 7 is adopted, the value and utility of [my] * * * ranch will be significantly diminished. * * * [R]uralresidences and hobby farms * * * will sprout on adjoining tracts of land, bringing dogs which will harass the livestock and wildlife on the [r]anch, and unending trespassing and poaching by my new found neighbors and their friends. There will be other adverse consequences including reduction of stream flows (which supply water for our livestock and fish) which are already at precariously low levels during the Summer and early Fall.”
Although the consequences that plaintiffs Lewis and Tipperman anticipate are not certain to result from the implementation of Measure 7, they are plausible, concrete ramifications. Both plaintiffs Lewis and Tipperman introduced evidence that shows how Measure 7 would lead to increased development and how, specifically, that increased development would injure them. Because plaintiffs Lewis and Tipperman established that Measure 7 would affect their rights, status, or legal relations, we conclude that they have standing to challenge Measure 7 under ORS 28.020.
C. League Plaintiffs
League plaintiffs’ complaint sets out the following allegations respecting standing:
“Plaintiffs City of Eugene, City of Portland, Junction City, City of Veneta, and City of Beaverton are municipal corporations with home rule powers granted by the Oregon Constitution. Plaintiffs Multnomah County, Benton County and Washington County are counties with home rule powers granted by the Oregon Constitution. Plaintiffs * * * Stein and * * * Katz are citizens of the State of Oregon, and electors and taxpayers.”
League plaintiffs also attached the text of Measure 7, as well as its accompanying ballot title and a brief estimate of financial impact, as “Exhibit A” of their complaint. The estimate of financial impact provided:
“Direct costs to the state are estimated to be $1.6 billion per year. Local government direct costs are estimated to be $3.8 billion per year.”
League plaintiffs did not submit affidavits in further support of their standing under ORS 28.020; consequently, the allegations in their complaint constituted the only material respecting standing before the trial court on summary judgment.
As to the League plaintiffs Stein and Katz, as with McCall plaintiffs McCall, MacPherson, and Swaim, neither the allegations in the complaint nor the attached exhibit demonstrates how Measure 7 would affect them. Accordingly, they lack standing to bring this challenge.
The local government plaintiffs consist of municipal corporation (city) plaintiffs and county plaintiffs. In respect of the city plaintiffs, the UDJA specifically treats municipal (and all other) corporations as “persons” for purposes of the act. ORS 28.130. Accordingly, a city, like any person, has standing to bring an action under the UDJA if that city’s “rights, status or other legal relations are affected.” ORS 28.010. In respect of the county plaintiffs, this court has recognized that declaratory relief is available to counties under the UDJA. See Tillamook Co. v. State Board of Forestry,
When we examine the text of Measure 7 (Exhibit A of League plaintiffs’ complaint), specifically, subsection (a), we see that, because cities and counties are forms of “local government” that “pass[ ] or enforce [ ] * * * regulation [s] that restrict[ ] the use of private real property,” Measure 7 will have a fiscal impact upon any city or county each time that the city or county chooses to regulate real property in a manner that gives rise to a Measure 7 claim. That impact — officially estimated as a cost of 3.8 billion dollars to local governments generally — is not abstract. Thus, despite its few specific allegations, League plaintiffs’ complaint demonstrates that Measure 7 will have a fiscal impact upon the local government plaintiffs. That impact is sufficient to show that Measure 7 will “affect [ ]” those plaintiffs’ “legal relations”
IV. RIPENESS
The final issue that we must address before turning to the merits is the ripeness of the controversy. Intervenor argues that the controversy is hot ripe because the Secretary of State has not yet completed canvassing the votes for and against Measure 7, and the Governor has not yet proclaimed that the measure has passed. However, the record includes uncontroverted evidence (the official county abstracts and the unofficial vote tally) that shows that a majority of the voters approved Measure 7 at the November 2000 general election. According to that evidence, the Secretary of State’s canvass of the votes will not alter that result. Under those circumstances, plaintiffs’
V. ARTICLE XVII, SECTION 1
A. Legal Principles Respecting Article XVII, Section 1, and Parties’ Contentions
As noted earlier, the trial court concluded that Measure 7 violated the separate-vote requirement of Article XVII, section 1, which provides, in part:
“When two or more amendments shall be submitted * * * to the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separately.”
The trial court relied, in part, upon Armatta v. Kitzhaber,
The state and intervenor contend, at the outset, that Measure 7 makes only one substantive “change” under the first part of the Armatta inquiry and, consequently, that further analysis under Article XVII, section 1, is unnecessary. Alternatively, the state and intervenor contend that, even if Measure 7 makes more than one substantive change to the Oregon Constitution, those changes are “closely related.” In response, plaintiffs contend that the trial court correctly concluded that Measure 7 contravened the separate-vote
B. Changes Made by Measure 7
We begin by addressing certain of the substantive changes that plaintiffs contend that Measure 7 makes to the Oregon Constitution. As noted above, plaintiffs first contend that, by its express terms, Measure 7 substantively changes Article I, section 18. The state and intervenor agree, as do we. The parties disagree, however, concerning the effect of Measure 7 upon other parts of the Oregon Constitution, including Article I, section 8. Below, we first briefly summarize the effect of Measure 7 upon Article I, section 18, and then turn to the effect that Measure 7 has upon Article I, section 8.
1. Article I, Section 18
Article I, section 18, provides, in part:
“Private property shall not be taken for public use * * * without just compensation; nor except in the case of the state, without such compensation first assessed and tendered; provided, that the use of all roads, ways and waterways necessary to promote the transportation of the raw products of mine or farm or forest or water for beneficial use or drainage is necessary to the development and welfare of the state and is declared a public use.”
That provision requires payment of “just compensation” for a variety of governmental actions that result in the “taking” of private property for public use, including “regulatory” takings by way of application or enforcement of regulations with certain economic ramifications. Boise Cascade Corp. v. Board of Forestry,
Measure 7 explicitly amends Article I, section 18, as follows:
“BE IT ENACTED BY THE PEOPLE OF THE STATE OF OREGON:
“THE CONSTITUTION OF THE STATE OF OREGON IS AMENDED BY ADDING THE FOLLOWING SUBSECTIONS TO SECTION 18 OF ARTICLE I:
“(a) If the state, a political subdivision of the state, or a local government passes or enforces a regulation that restricts the use of private real property, and the restriction has the effect of reducing the value of a property upon which the restriction is imposed; the property owner shall be paid just compensation equal to the reduction in the fair market value of the property.
“(b) For purposes of this section, adoption or enforcement of historically and commonly recognized nuisance laws shall not be deemed to have caused a reduction in the value of a property. The phrase “historically and commonly recognized nuisance laws’ shall be narrowly construed in favor of a finding that just compensation is required under this section.
“(c) A regulating entity may impose, to the minimum extent required, a regulation to implement a requirement of federal law without payment of compensation under this section. Nothing in this 2000 Amendment shall require compensation due to a government regulation prohibiting the use of a property for the purpose of selling pornography, performing nude dancing, selling alcoholic beverages or other controlled substances, or operating a casino or gaming parlor.
“(d) Compensation shall be due the property owner if the regulation was adopted, first enforced or applied after the current owner of the property became the owner, and continues to apply to the property 90days after the owner applies for compensation under this section.
“(e) Definitions: For purposes of this section, ‘regulation’ shall include any law, rule, ordinance, resolution, goal, or other enforceable enactment of government; ‘real property1 shall include any structure built or sited on the property, aggregate and other removable minerals, and any forest product or other crop grown on the property; ‘reduction in the fair market value’ shall mean the difference in the fair market value of the property before and after application of the regulation, and shall include the net cost to the landowner of an affirmative obligation to protect, provide, or preserve wildlife habitat, natural areas, wetlands, ecosystems, scenery, open space, historical, archaeological or cultural resources, or low income housing; and ‘just compensation’ shall include, if a claim for compensation is denied or not fully paid within 90 days of filing, reasonable attorney fees and expenses necessary to collect the compensation.
“(f) If any phrase, clause, or part of this section is found to be invalid by a court of competent jurisdiction, the remaining phrases, clauses and parts shall remain in full force and effect.”
(Emphasis added.) As its text demonstrates, Measure 7 explicitly changes Article I, section 18, in a number of ways. Most significantly, Article I, section 18, currently requires payment of just compensation only when a property owner demonstrates that a governmental regulation has “deprive [d] the owner of all economically viable use of the property. * * * If the owner has some substantial beneficial use of the property remaining, then the owner fails to meet the test.” Boise Cascade Corp.,
Although Measure 7 changes Article I, section 18, in other ways, and although the parties disagree regarding the extent and ramifications of such changes, we need not discuss such changes here. That is so, because we conclude below that Measure 7 also implicitly changes Article I, section 8, in a substantive way and that the explicit, substantive change to Article I, section 18, discussed above, is not closely related to the implicit change that Measure 7 makes to Article I, section 8. Accordingly, the number of other changes that Measure 7 makes to Article I, section 18, has no bearing upon our decision in this case. See Swett,
2. Article I, Section 8
Plaintiffs contend that subsection (c) of Measure 7 changes Article I, section 8. We address that argument by first turning again to the text of Measure 7.
As noted above, in subsection (a), Measure 7 requires payment of just compensation for restrictive regulations that reduce the value of private real property. Subsection (c) of Measure 7, however, creates the following exception to the just-compensation requirement set out in subsection (a):
“Nothing in this 2000 Amendment shall require compensation due to a government regulation prohibiting the use of a property for the purposeof selling pornography, performing nude dancing, selling alcoholic beverages or other controlled substances, or operating a casino or gaming parlor.”
In other words, subsection (c) permits the state and local governments not to pay a claim that otherwise would qualify under subsection (a), if that claim is made in response to a regulation that forbids using the subject property for one of the enumerated purposes. By its terms, then, subsection (c) permits the state and local governments not to pay just compensation for regulations that explicitly prohibit using property for those purposes, even if such regulations reduce property value under subsection (a).
Plaintiffs contend that, because subsection (c) permits the state or a local government not to pay just compensation to private real property owners whose property decreases in value because of a regulation prohibiting the use of property for, among other uses, the purpose of selling pornography, Measure 7 changes the right to free expression currently guaranteed by Article I, section 8. The state and intervenor respond that subsection (c) merely creates an exception to the right to just compensation set out in subsection (a) and, viewed in that way, does not change rights currently guaranteed by Article I, section 8. Alternatively, inter-venor contends that, if subsection (c) does operate to prevent certain property owners from receiving payment of just compensation, such a scheme never could be enforced, because it would not be permitted under Article I, section 8. Therefore, in intervenor’s view, Measure 7 effectively could not “change” Article I, section 8, because that constitutional provision would prevent subsection (c) from becoming effective in the first instance. As explained below, we agree with plaintiffs.
Article I, section 8, in place since statehood, provides, in part:
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever [.]”
As this court explained in City of Portland v. Tidyman,
There is no suggestion in the text of Measure 7 that the term “pornography’ is used in other than its ordinary sense. So understood, it is clear that pornography is one form of “speech, writing, or printing.” Tidyman,
The state and intervenor do not quarrel with the foregoing statement of Oregon constitutional law. Neither do they disagree that the use of property “for the purpose of selling pornography,” as described in subsection (c), implicates the right of free expression. Instead, as noted, the state and intervenor argue that subsection (c) does not change that right because it does not take away any benefit that property owners who use their property to sell pornography currently enjoy. That is, such property owners would not be entitled to just compensation for the type of regulation described in subsection (c) today, and they would not be entitled to it under Measure 7. Therefore, according to the state and intervenor, Measure 7 would not change those owners’ right of free expression.
The state’s and intervenor’s argument mistakenly focuses upon whether property owners who use their property to sell pornography actually would lose money under Measure 7. That is not the question. The question is whether those owners would experience any change in the constitutional right to free expression to which they currently are entitled under Article I, section 8. We turn to that question now.
Miller concerned a bookseller’s challenge to a city ordinance that prohibited the sale of most forms of merchandise on city sidewalks, except (by license) the sale of “food, beverages, flowers or balloons.”
“So long as the city chooses to make its sidewalks available for some general commercial activity * * *, it may not treat a vendor of expressive material more restrictively than vendors of other merchandise * *
Miller demonstrates that a governmental burden upon free expression is one type of “restrain [t]” of expression that Article I, section 8, prohibits. It is equally clear under Miller that a governmental enactment that allows some persons to participate in a certain activity, but prohibits others engaged in expression from participating in that same activity, constitutes a prohibited burden upon expression.
Under Measure 7, by contrast, the state and local governments explicitly would be permitted to do just that, i.e., they could decline to pay just compensation under Article I, section 18, to a property owner because
Intervenor also contends that, because regulations directed toward constitutionally protected expression — such as those that, under subsection (c), would “prohibit [ ] the use of a property for the purpose of selling pornography” — are impermissible under Article I, section 8, the exception to the just-compensation requirement set out in subsection (c) never could be enforced and, consequently, cannot be deemed a constitutional “change” for purposes of Article XVII, section 1. Again, we disagree.
We first note that, in Tidyman,
That said, we disagree with intervenor’s theory that a constitutional change that never might be enforced is not a “change” for separate-vote purposes. Subsection (c), as of the moment of its passage, carves out an explicit constitutional exception to the protection that Article I, section 8, now provides. Stated differently, subsection (c) sets out a circumstance, effective as of the effective date of Measure 7, in which the state and local governments constitutionally must provide a benefit to some property owners, but may decline to offer it to other property owners who use their property to sell a type of expressive material that is protected under Article I, section 8. Regardless of whether the state or a local government ever chooses to take advantage of the exception set out in subsection (c), that exception nevertheless is a “change” to the scope of the rights currently guaranteed by Article I, section 8, for pin-poses of our separate-vote analysis in this case. See generally Lehman,
In sum, although the text of Measure 7 purports to change only Article I, section 18, its inclusion of the exception set out in subsection (c) nonetheless changes rights currently guaranteed by Article I, section 8. See generally Coalition for Equit. School Fund. v. State of Oregon,
C. Analysis of Measure 7 under Article XVII, Section 1
As noted above, our inquiry under Armatta,
In Lehman,
“* * * First, we examine the relationship among the constitutional provisions that the measure affects, both explicitly and implicitly. If the affected provisions of the existing constitution themselves are not related, then it is likely that changes to those provisions will offend the separate-vote requirement. * * * [T]he fact that a proposed amendment asks the people, in one vote, substantively to change multiple provisions of the Oregon Constitution that are not themselves related is one indication that the proposed amendment might violate the separate-vote requirement.
“Next, we must consider the constitutional changes themselves. * * * If they are closely related, the measure under consideration survives scrutiny under Article XVII, section 1. If they are not, it does not.”
Following that approach, we proceed to analyze the relationship between the two existing constitutional provisions affected by Measure 7, as well as the relationship between the substantive constitutional changes that the measure effects.
As to the constitutional provisions that Measure 7 affects — Article I, section 18, and Article I, section 8 — we have no difficulty concluding that, other than their placement in the Bill of Rights, those provisions bear no relation to each other. Article I, section 18, provides a right to “just compensation” to private property owners whose property is taken for public use. Article I, section 8, by contrast, expressly precludes, as to any person, any restriction upon the “free expression of opinion,” as well as upon “the right to speak, write, or print freely on any subject whatever.” Those two constitutional provisions involve “separate constitutional rights, granted to different groups of persons.” Armatta,
Turning to the constitutional changes themselves, we conclude that the change that Measure 7 makes to Article I, section 18, that is, an expanded just-compensation requirement for restrictive regulations that reduce the value of private real property, is not closely related to the change that it makes to Article I, section 8, that is, creating an exception to the historical requirement that laws cannot treat those engaged in expressive activity “more restrictively” than others not engaged in expressive activity, Miller,
D. Measure 7 is Invalid in its Entirety
As this court explained in Armatta,
“It is a long-standing principle of law that a proposed constitutional amendment must be adopted in compliance with the procedures set forth in the Oregon Constitution:
“ ‘The provisions of the constitution for its own amendment are mandatory, and must be strictly observed. A failure in this respect will be fatal to a proposed amendment, notwithstanding it may have been submitted to and ratified and approved by the people. The constitutional provisions are as binding upon the people as upon the legislative assembly, and the people cannot give legal effect to an amendment which was submitted in disregard of the limitations imposed by the constitution ***.*** * * an attempt is made to amend an existing constitution, its every requirement regarding its own amendment must be substantially observed, and the omission of any one will be fatal to the amendment. The constitution is the supreme law of the land, binding upon all, and can no more be disregarded in the manner of its own amendment than in any other respect. As long as it remains, its provisions must be observed.’ ”
Armatta,
VI. ATTORNEY FEES
Finally, we address the issue of attorney fees. As noted at the outset of this opinion, McCall plaintiffs, but not League plaintiffs, specifically requested attorney fees in their complaint. After the trial court entered its ruling below, McCall plaintiffs petitioned for attorney fees, and the state objected. From our review of the record, it appears that the trial court never ruled on plaintiffs’ petition or on the state’s objection. For that reason, and because the issue of attorney fees further will involve consideration of our holding that only plaintiffs Lewis and Tipperman sufficiently alleged standing in the McCall case, we remand the case to the trial court for further proceedings.
VII. CONCLUSION
In sum, we hold that (1) the trial court did not err in assuming jurisdiction under the UDJA; (2) the trial court did not have jurisdiction under ORS 246.910(1); (3) plaintiffs Lewis, Tipperman, and the local government League plaintiffs, but not the remaining McCall plaintiffs or League plaintiffs, established standing for purposes of the UDJA; (4) the controversy is ripe for adjudication; (5) Measure 7 encompasses two amendments to the Oregon Constitution in violation of Article XVII, section 1, and, therefore, is void in its entirety; and (6) the case must be remanded to the trial court.
The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded to the circuit court for further proceedings.
Notes
Both actions name the State of Oregon, Governor Kitzhaber, and Secretary of State Bradbury as defendants. We refer to all three defendants collectively as “the state” throughout this opinion.
As explained below, although the Secretary of State has not yet completed canvassing the votes on Measure 7, the official county election results contained in the record demonstrate that a majority of voters approved the measure.
McCall plaintiffs also contended that Measure 7 was adopted in violation of Article IV, section l(2)(d), which sets out a “full-text” requirement for initiative petitions and a “single-subject” requirement for laws and constitutional amendments proposed by initiative petition, and Article XVII, section 2, which sets out the process for adopting constitutional revisions. McCall plaintiffs later contended before the trial court that submission of Measure 7 also violated ORS 251.195, which sets out voters’ pamphlet requirements for proposed constitutional amendments, thereby also violating Article IV, section l(4)(b), which requires that initiatives be submitted according to laws not inconsistent with that section.
The trial court concluded that all plaintiffs (in both actions) except plaintiff League of Oregon Cities had standing under ORS 28.020. League plaintiffs, collectively, do not challenge that conclusion on appeal; accordingly, future references to “League plaintiffs” in this opinion do not include plaintiff League of Oregon Cities.
The trial court also concluded that Measure 7 violated the full-text requirement of Article IV, section l(2)(d); however, the court rejected plaintiffs’ arguments respecting single-subject and revision, and did not rule on McCall plaintiffs’ argument respecting submission according to election laws.
On appeal, neither set of plaintiffs challenges the trial court’s conclusion respecting the single-subject requirement. All other matters pending before the trial court discussed above, with the exception of attorney fees, have been raised on appeal. Because we resolve this case based upon the separate-vote requirement, we do not address the remaining constitutional issues.
ORS 250.044(1) provides, in part:
“An action that challenges the constitutionality of a measure initiated by the people * * * must be commenced in the Circuit Court for Marion County if:
“(a) The action is filed by a plaintiff asserting a claim for relief that challenges the constitutionality of * * * an amendment to the Oregon Constitution initiated by the people * * * under section 1 (1) to (4), Article IV of the Oregon Constitution;
“(b) The action is commenced on or after the date that the Secretary of State certifies that the challenged measure has been adopted by the electors and within 180 days after the effective date of the measure; and
“(c) The action may not be commenced in the Oregon Tax Court.”
We also conclude below that two League plaintiffs, Katz and Stein, lack standing under ORS 28.020. However, League plaintiffs did not argue alternatively that the trial court had jurisdiction under ORS 246.910(1).
We take judicial notice of the following facts: (1) Measure 7 began as Initiative Petition 46 (2000); (2) the petition originally was filed with the Secretary of State on March 10,1999; (3) the Attorney General certified the ballot title on April 9,1999; (4) the Secretary of State approved the proposed initiative for circulation on May 28, 1999; and (5) the Secretary of State certified the ballot measure (as Measure 7) on July 26,2000. See generally OEC 201(f) (judicial notice may be taken “at any stage of the proceedings”); Leo v. Keisling,
All McCall plaintiffs also alleged that they were registered voters. That allegation, together with those plaintiffs’ opposition to Measure 7, was sufficient to establish that they were “person[s] adversely affected” by an action of the Secretary of State, as ORS 246.910(1) requires. See Ellis v. Roberts,
Intervenor generally argues that no challenge upon these grounds may be brought under ORS 246.910(1) after the general election. Our discussion below, addressing the state’s similar, but more specific, argument, disposes of intervenor’s argument.
At the summary judgment hearing, counsel for McCall plaintiffs told the trial court that the issue was “whether or not [Measure 7] was properly on the ballot.”
This court has held that the Secretary of State has the duty to examine an initiative petition for compliance with the single-subject requirement of Article IV, section l(2)(d), of the Oregon Constitution and to refuse to accept those that violate the rule. OEA v. Roberts,
For example, McCall plaintiffs do not argue that the Secretary of State was canvassing the votes improperly.
Contrary to the assertion by the dissent, our holding does not in any way restrict a voter’s ability, under ORS 246.910(1), to challenge any act or failure to act by the Secretary of State.
We note that, in State ex rel Keisling v. Norblad,
McCall plaintiffs McCall, MacPherson, and Swaim also argue that they have standing as taxpayers and as voters; plaintiff Swaim further argues that he has standing as a “public official” as described by the Court of Appeals in Multnomah County v. Talbot,
McCall plaintiffs initially submitted both affidavits to the trial court as evidence in support of their motion for a preliminary injunction. McCall plaintiffs specifically incorporated that evidence in their pleadings on their motion for summary judgment as evidence in support of that motion.
Intervenor also argues that all the local government plaintiffs lack standing because they are “mere instrumentalities of the state” and, therefore, may not “maintain an action against the state to strike down an initiative passed by the voters of the state.” He argues that a local government must have a “proprietary interest” at stake before it may request relief under the UDJA. In support of that contention, intervenor relies upon Tillamook Co.,
In light of our conclusion that only plaintiffs Lewis and Tipperman, among McCall plaintiffs, and the local government plaintiffs, among League plaintiffs, sufficiently alleged standing under ORS 28.020, we use the term “plaintiffs” to refer to only those plaintiffs for the remainder of this opinion.
Plaintiffs further contend that Measure 7 changes Article VI, section 10, Article XI, section 2, and Article IV, section 1(5) (all regarding home-rule authority and related initiative and referendum powers); Article XI, sections 7 and 10 (state and county debt limitations); Article XI, section 15(1) (unfunded mandates); Article IV, section 1(1) (legislative authority); Article VII (Amended), section 1 (judicial power); Article III, section 1 (separation of powers); and Article I, section 39, and Article XI, section 2 (local option). In light of our analysis respecting Article I, section 8, set out below, we need not address plaintiffs’ contentions that Measure 7 also changes several other provisions of the Oregon Constitution. See Swett,
We note that the trial court based its conclusion that Measure 7 violated the separate-vote requirement primarily upon its determination that Measure 7 made various changes to Article I, section 18. However, that court relied upon the Court of Appeals’ “necessar[y] implication]” construct, set out in Dale v. Keisling,
This court noted in Miller that such an enactment might be permissible under Article I, section 8, if, in the context of vendors of merchandise, it were accompanied by an explanation as to how the sale of the nonexpressive material in question “meets a special need or how the sale of the expressive material in question gives rise to special problems reasonably justifying the regulation of the vendor of expressive material differently and more stringently than other vendors.”
We note that, in both Miller and Tidyman, this court explained that such disparate treatment of persons engaged in expression implicates Article I, section 8, rather than Article I, section 20:
“ “We note at the outset that the obstacle to the city’s distinction [between ‘adult’ businesses and other businesses] is not the constitutional guarantee of equal privileges and immunities, Article I, section 20, but the guarantee of free expression, Article I, section 8. If free expression within that guarantee were not involved, ‘adult’ businesses could not insist that they must be treated exactly like any other business, not, at least, without a showing of being singled out for an impermissible motive.’ ”
Miller,
Concurrence Opinion
concurring in part and dissenting in part.
I write separately, because I do not agree with all the majority’s reasoning and conclusions. Specifically, the majority misconstrues ORS 246.910(1) in concluding that the trial court had no jurisdiction under that statute to consider the claims of the individual plaintiffs Audrey McCall, Hector MacPherson, and Michael E. Swaim in the McCall case, and Vera Katz and Bev Stein in the League of Oregon Cities case (hereinafter referred to collectively as “individual plaintiffs”). For the reasons set out below, ORS 246.910(1) supports the trial court’s assumption of jurisdiction over the individual plaintiffs’ claims.
OVERVIEW OF APPEAL REMEDY PROVIDED BY ORS 246.910
ORS 246.910 provides:
“(1) A person adversely affected by any act or failure to act by the Secretary of State, a county clerk, a city elections officer or any other county, city or district official under any election law, or by any order, rule, directive or instruction made by the Secretary of State, a county clerk, a city elections officer or any other county, city or district official under any election law, may appeal therefrom to the circuit court for the county in which the act or failure to act occurred or in which theorder, rule, directive or instruction was made.
“(2) Any party to the appeal proceedings in the circuit court under subsection (1) of this section may appeal from the decision of the circuit court to the Court of Appeals.
“(3) The circuit courts and Court of Appeals, in their discretion, may give such precedence on their dockets to appeals under this section as the circumstances may require.
“(4) The remedy provided in this section is cumulative and does not exclude any other remedy against any act or failure to act by the Secretary of State, a county clerk, a city elections officer or any other county, city or district official under any election law or against any order, rule, directive or instruction made by the Secretary of State, a county clerk, a city elections officer or any other county, city or district official under any election law.”
That statute provides a nonexclusive remedy, in the form of an appeal to the circuit court, for virtually any conduct by the Secretary of State, and an array of local election officials, that falls short of the requirements of Oregon election law or any official decision relating to elections made pursuant to delegated authority.
Subsection (1) of the statute identifies two broad categories of conduct by election officials that an appeal may challenge. The first category is “any act or failure to act by the Secretary of State, a county clerk, a city elections officer or any other county, city or district official under any election law * * The second category is “any order, rule, directive or instruction made by the Secretary of State, a county clerk, a city elections officer or any other county, city or district official under any election law * *
Subsection (1) provides that, to bring an appeal, a plaintiff must be “adversely affected by” conduct that falls into either one or both of the categories described above. In this proceeding, all individual plaintiffs allege that they are either “registered voters” or “electors.” Therefore, in challenging the Secretary of State’s conduct in advancing Measure 7 to a public vote and in canvassing the ballots after the election on November 7,2000, the individual plaintiffs satisfy the criterion that, the majority agrees, confers standing to sue under ORS 246.910(1).
The appeal that ORS 246.910(1) provides is a significant remedy. By filing an appeal under that statute, a registered voter can focus prompt judicial scrutiny on the conduct of election officials to make certain that every action or inaction of those officials complies in all respects with the requirements of Oregon election law.
THE CHALLENGED CONDUCT OF THE SECRETARY OF STATE
The issue is whether the individual plaintiffs’ complaints state facts that constitute a claim within the circuit court’s jurisdiction under ORS 246.910(1). The majority acknowledges that the allegations in the McCall complaint refer to four acts by the Secretary of State that contravene Oregon election law: (1) accepting the proposed petition; (2) verifying that the petition contained the requisite number of signatures; (3) certifying the measure for placement on the ballot; and (4) after the election, deciding to canvas and beginning to canvass the votes for and against Measure 7. Id. at 654. The allegations in the League of Oregon Cities complaint substantively are identical.
The record contains no genuine agreement by the individual plaintiffs to abandon reliance on three of the four factual allegations on which they base their actions. When fairly read, the complaints contend that each of the Secretary of State’s four alleged acts or failures to act, from the earliest to the most recent, contravenes Oregon election law because, among other things, Measure 7 improperly presented multiple constitutional changes to the voters but packaged them for a single vote. The individual plaintiffs did not waive their complaints about the Secretary of State’s more recent actions — including the canvassing of the votes on Measure 7 after the election — merely because they also argued that the Secretary of State never should have accepted the proposed petition in the first place. In my view, the majority errs in determining jurisdiction under ORS 246.910(1) by considering only one of the Secretary of State’s alleged acts or failures to act in violation of Oregon election law.
After effectively reforming the complaints and concluding that, in reality, they challenge only the Secretary of State’s April 1999 initial evaluation of the proposed initiative, the majority concludes, under Ellis, that the individual plaintiffs’ opportunity to challenge that act under ORS 246.910(1) expired in June 1999. What the majority omits from its analysis is a consideration of the text and context of ORS 246.910. The sole case on which the majority relies, Ellis, similarly failed to construe and apply ORS 246.910. As the following discussion demonstrates, unless this court is willing to enforce the legislature’s appeal remedy under ORS 246.910 as the legislature intended, the public will suffer the loss of an important protection against unauthorized conduct by elections officials.
DETERMINING THE MEANING OF ORS 246.910
The question whether ORS 246.910 authorized the trial court to assume jurisdiction over the individual plaintiffs’ complaints requires this court to determine the intention of the legislature. In making that inquiry, this court first examines the text and context of the relevant statute. Context includes the provisions of other related statutes and case law that construes the meaning of the statute at issue. If those sources disclose the clear meaning of the statute in question, this court proceeds no further. State v. Toevs,
ORS 246.910(1) begins with the phrase “[a] person adversely affected * * *.” That phrase describes those persons with standing to seek the statutory appeal remedy, and, as we already have seen, it includes persons, including the individual plaintiffs, who are registered voters or electors. Ellis,
ORS 246.910(1) then describes the two categories of conduct that an adversely affected person may appeal. As pertinent to this case, the categories are (1) “any act or failure to act by the Secretary of State * * * under any election law” and (2) “any order, rule, directive or instruction made by the Secretary of State * * * under any election law * * *.”
The word “any” appears four times in subsection (1). The ordinary meaning of that word is “one indifferently out of more than two : * * * one, no matter what one : EVERY * * * : ALL * * *.” Webster’s Third New Int’l Dictionary 97 (unabridged ed 1993).
The second category of appealable conduct in subsection (1) includes any “order” or “rule,” two kinds of legal action that the legislature has exposed to judicial review under the Administrative Procedures Act (APA), ORS 183.310 to 183.550. See ORS 183.400 (providing for judicial determination of validity of administrative rule); ORS 183.480-183.490 (providing for judicial review of administrative orders). However, the appeal remedy under ORS 246.910(1) is broader in scope than judicial review under the APA. For example, the definition of “rule” in ORS 183.310(8) includes an agency “directive” if it is “of general applicability*’ and “implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of any agency [,]” but excludes certain “internal management directives” that “do not substantially affect the interests of the public” in relations between or within agencies. The remedy in ORS 246.910(1) extends to any “directive,” as well as any “instruction” of the Secretary of State under any election law. Moreover, the fact that the APA exposes “orders” and certain “rules” to judicial review does not diminish the remedy of appeal described in ORS 246.910(1), because ORS 246.910(4) provides that the remedy of appeal is “cumulative” of any other remedy. This court drove home that point in OEA v. Roberts,
The foregoing discussion indicates that the text of ORS 246.910(1) clearly supports the view that the legislature authorized the circuit court to review every official action by the Secretary of State regarding Measure 7. Thus, according to the statutory text, every exercise of the Secretary of State’s official power over Measure 7 is subject to judicial review for conformity with Oregon election laws, including those that establish the scope of the Secretary of State’s delegated authority over initiative petitions. Because that statute exposes every act or failure to act to a statutory appeal, it is unavailing to contend that a party’s challenge to a recent exercise of the Secretary of State’s authority, such as the canvassing of ballots, also could have been filed against some earlier exercise of authority over the same initiative petition.
This court’s case law construing ORS 246.910(1) confirms the legislature’s intention to authorize the circuit court to consider challenges to all actions or failures to act by the Secretary of State under any election law. In OEA v. Roberts,
The court determined that the Secretary of State did have a duty, before an election, to determine whether a proposed initiative addressed only one subject. The court also
The court then turned to the question whether the particular decision that the plaintiffs had challenged — the approval of the prospective petition for circulation — was a proper occasion for a challenge under the one-subject rule. The court agreed with the plaintiffs that a one-subject challenge at that stage was proper because
“ Tilt is this determination that provides the first opportunity for the Secretary of State to exercise her official power with respect to the prospective petition. If, as the Plaintiffs-Relators contend, there is a constitutional duty to act, it would arise at this time. It is in approving a prospective petition which did not comply with the alleged requirements of Article IV, section 1, that the Secretary of State’s authority under the constitution and statutes first would be exceeded and her duty breached.’ ”
OEA,
The court’s determination in OEA — that the Secretary of State’s approval of a prospective petition was her first action in arguable violation of her powers — confirmed that the plaintiffs, in contesting that action, had not brought their challenge prematurely, as the defendants contended. The defendants’ argument — that the plaintiffs should have brought their claim only after enactment of the measure— was unresponsive to the question whether the Secretary of State’s responsibility to apply the one-subject rule arose before the election. The plaintiffs’ choice to contest the first exercise of the Secretary of State’s authority over the proposed initiative was correct procedurally, because, as the court stated, that decision was the first of “several discrete decisions” by the Secretary of State in the submission process, “any one of which may be challenged.” Id.
The individual plaintiffs similarly argue that the Oregon Constitution does not authorize the actions and certifications that the Secretary of State has employed to advance Measure 7 to a vote and to canvass the votes after the election because they contend, among other things, that Measure 7 unlawfully makes multiple amendments to the constitution. The majority responds that Ellis declined to consider a similar form-of-adoption challenge to a pre-election certification of an initiative petition. The majority reasons that, because Ellis announced a 60-day deadline for challenging the Secretary of State’s approval of a proposed initiative, and measured the deadline from certification of the ballot title, the Ellis deadline expired in this case in June 1999. Because that theory would restrict significantly the appeal remedy in ORS 246.910(1), I examine Ellis in detail.
ELLIS v. ROBERTS
Ellis was a challenge under ORS 246.910(1) by registered voters to the Secretary of State’s certification on July 16,1986, of Ballot Measure 11 (1986) for the November 1986, ballot. The plaintiffs commenced their appeal under ORS 246.910(1) on July 31,1986, and argued that the Secretary of State’s certification was unauthorized because Measure 11 contained more than one subject. Measure 11 purported to create a homestead exemption from property taxes and also prohibited the legislature from referring a sales tax to the people for a vote. The trial court dismissed the action on a theory of laches. Ellis,
On review, this court determined that the plaintiffs satisfied the requirement in ORS 246.910(1) that they be “adversely affected” because they were registered voters and the statute permitted any registered voter to file an action. Id. at 11. The court also determined that the doctrine of
The Ellis opinion then did an odd thing. The court asked itself the following question: “Should actions like the present one be subject to some kind of‘reasonable time’ limitation on filing, in the absence of statutes imposing such restraints?” Id. at 13. The court acknowledged what it described as a “legislative vacuum” regarding a time limit on filing appeals under ORS 246.910(1), because the legislature had not enacted a time limit for the filing of an appeal under that statute. Responding to that legislative vacuum, the court asserted that “we are required to provide some judicial framework until the legislature provides a statutory one.” Id. The court never explained the source of such a requirement. Turning to Fidanque, the mandamus case, the court acknowledged that the submission process required the Secretary of State to make a series of decisions, that each decision was susceptible to challenge, and that the first exercise of the Secretary of State’s authority occurred when she approved the proposed initiative for circulation. Id. at 15-16. The court noted that “eleventh hour challenges” might cause initiative proponents to waste their resources in collecting signatures and might force courts to “steamroll through the delicate legal issues to meet the deadline for measures to be placed on the ballot.” Id. at 16 (quoting Fidanque,
Proceeding from the foregoing reasoning, the court announced that a “reasonable” time filing deadline should apply to appeals under ORS 246.910(1). The court continued by announcing that “[t]here is a season for each kind of challenge to the Secretary of State’s administration of the election laws * * *.” Id. at 17. The court then announced that, by looking at the statutory appeal period allowed under the APA, the court could determine that 60 days after approval of the ballot title was a reasonable time period for filing a one-subject challenge under ORS 246.910(1). The court held that, because the Secretary of State had approved the proposed initiative for circulation on August 16, 1985, the “deadline” that the court created had expired nine months before the plaintiffs had filed their action. The court then applied its newly announced deadline retroactively to the plaintiffs’ appeal and dismissed it. Id. at 19.
Perhaps the most striking aspect of the Ellis opinion is that, due to the court’s perception that the legislature had failed to append a filing deadline to ORS 246.910, the court believed that it was authorized by something inherent in the court’s judicial power — a source of authority that the Ellis opinion never made clear — to manufacture a filing deadline for a statutory appeal and to dismiss any appeal that a party had filed after that deadline. That reasoning reflects serious legal error.
For a very long time, Oregon law has condemned any arrogation of the legislature’s lawmaking power by a court, including under the guise of statutory interpretation, as action in excess of lawful judicial power. In State ex rel Everding v. Simon,
“This is a case, it would seem, where the legislature has omitted by mistake or otherwise to make the necessary provisions to carry out its intention, but we cannot by construction supply these omissions. As was said by Davies, J., ‘It is always competent for the legislature to speak clearly and without equivocation, and it is safer for the judicial department to follow the plain and obvious meaning ofan act, rather than to speculate upon what might have been the views of the legislature in the emergency which may have arisen. It is wiser and safer to leave to the legislative department to supply a supposed or actual casus omissus than to attempt to do so by judicial construction.’ (People v. Woodruff, 32 N.Y. 364 .) Courts cannot supply omissions in legislation, nor afford relief because they are supposed to exist. To adopt the language of Mr. Justice Woods, in Hobbs v. McLean,117 U.S. 579 , ‘when a provision is left out of a statute, either by design or mistake of the legislature, the courts have no power to supply it. To do so would be to legislate and not to construe.’ ”
Id. at 373-74.
That passage in State ex rel Everding reflects current Oregon law. It is clear that the court in Ellis acted beyond the scope of its legitimate judicial authority in fabricating a filing deadline for an appeal under ORS 246.910(1). The Ellis court ignored the most fundamental precept of judicial review of a statute: That the responsibility for deciding matters of policy — such as whether a particular filing deadline (“reasonable” or otherwise) shall govern a statutory remedy — rests exclusively with the legislature, not the court. That is, whether there is or should be a “season” for challenges permitted by ORS 246.910(1) is solely a question for the legislature.
It might be possible to distinguish Ellis from the present appeal, which challenges in part conduct by the Secretary of State that occurred after the election. Ellis stated that it was placing a timeline requirement “on pre-election challenges of this kind,” and, as a consequence, the court declined to address whether “a post election challenge of the kind that occurred in Anthony v. Veatch,
The majority, however, has chosen to answer the question that Ellis did not decide and has extended the Ellis deadline to apply to challenges under ORS 246.910(1) to official acts occurring both before and after an election. The question, therefore, is whether the court should treat Ellis as a case law precedent and extend the Ellis deadline to challenges to post-election official actions.
In determining whether this court should adhere to Ellis as a precedent, we must look to the standards that this court has established for determining whether a 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, in State v. King,
“When this court interprets a statute, the interpretation becomes a part of the statute, subject only to a revision by the legislature. Having once construed the same provisions of this statute, albeit in a slightly different context, to have a particular meaning, we will not now consider a contrary interpretation.” (Citations omitted.)
I have discussed elsewhere my concern that that statement does not reflect Oregon law and is an unnecessarily rigid deviation from the correct rule that governs this court’s
Neither is the Ellis deadline entitled to deference under the principle of stare decisis. The court’s unilateral announcement of a time limit on a statutory appeal, and the absence of support for the deadline in the text of ORS 246.910 or any other contextual statute, undermine the legitimacy of Ellis as a precedent. If, indeed, the legislature chose, as the Ellis court asserted, to impose no deadline on the opportunity of registered voters under ORS 246.910 to challenge official acts or failures to act under election laws, that policy choice deserves respect and deference by this court, not a judicial veto.
Other aspects of the Ellis court’s rationale indicate that the act of manufacturing a deadline was not a valid exercise of judicial power and that that act does not merit deference under the doctrine of stare decisis. For example, the Ellis court’s announced concern for the resources of petition circulators is beside the point: The court must assume instead that the legislature took that concern into account in enacting ORS 246.910(1). It is obvious that the legislature was even more concerned that Oregon registered voters should have a prompt and effective method of challenging every unauthorized official act or failure to act under Oregon election laws whenever such a default might occur.
The Ellis court’s concern regarding the deleterious effect of “eleventh-hour” appeals on the court’s ability to analyze sensitive questions before an approaching election similarly is unfounded. Nothing in ORS 246.910 requires any court to decide an appeal under that statute before an election or any other election-related event. ORS 246.910(3) authorizes “the circuit courts and Court of Appeals, in their discretion,” to “give such precedence on their dockets to appeals under this section as the circumstances may require.” I agree that that subsection anticipates prompt judicial consideration and determination of appeals under ORS 246.910(1). However, the Ellis court’s notion that the courts are under pressure to decide appeals under ORS 246.910(1) before elections goes well beyond anything that the statute implies. And, pressure of that sort applied by the parties to an appeal, although understandable in the context of pre-election appellate advocacy, in no way justifies the judicial adoption of a nonstatutoiy deadline to defeat all but the earliest challenges to assertedly unauthorized official conduct.
The purported pressure of an impending election is absent, in any event, in this case, because plaintiffs filed their appeal after the
Finally, Ellis failed to analyze this court’s previous determinations in other cases discussed above that, under Secretary of State’s official power is subject to review under ORS 246.910. Those earlier statements from this court give full effect to the wording of ORS 246.910 that “any act or failure to act” is subject to appeal. Ellis failed to analyze either those previous statements from this court or the inconsistency between the court’s deadline and the statute’s promise that any act or failure to act by the Secretary of State under an election law is subject to appeal.
The rule of stare decisis does not require the court to adhere to the Ellis deadline as a case law precedent. The foregoing concerns about the legal efficacy of the Ellis deadline and the court’s expressed reasoning in support of that deadline lead me to conclude that the court should reconsider Ellis, not broaden its application to govern all appeals under ORS 246.910.
My review of the text of ORS 246.910, including the statutory context and pertinent case law, indicates that each of the Secretary of State’s multiple actions in the initiative process is subject to an appeal as it occurs, not only the first act. The trial court did not err in asserting jurisdiction over the challenges of the individual plaintiffs to the Secretary of State’s actions regarding Measure 7.1 would affirm the trial court’s action in that regard.
CONCLUSION
By extending the deadline created by the court in Ellis to apply to all appeals filed under ORS 246.910(1), the majority has undermined the appeal remedy provided in that statute. No longer may a registered voter bring a judicial challenge under that statute to any act or failure to act by the Secretary of State that allegedly exceeds his authority. Instead, the majority has twisted the legislature’s scheme to confine such challenges solely to the Secretary of State’s first purported exercise of authority.
The election law responsibilities of the Secretary of State and other election officials are not simple. Constitutional requirements for lawmaking by initiative require careful observance at all stages of the initiative process, not only at the earliest. The legislature designed the appeal remedy in ORS 246.910(1) to permit an adversely affected citizen to protest in court whenever any act or failure to act by an election official falls short of legal requirements under election laws. The majority’s result defeats, rather than respects, the legislature’s remedial
For the foregoing reasons, I concur in part and dissent in part from the majority’s decision.
Because the facts alleged in the two complaints substantively are identical, I address the sufficiency of the complaints together. The League of Oregon Cities complaint ultimately requested a declaration, among other things, that Measure 7 is not valid because it violated the separate-vote requirement in Article XVII, section 1, of the Oregon Constitution, see ORS 28.020 (describing court authority to grant declaratory relief). Notwithstanding that request for a declaration of the invalidity of Measure 7, we determine the sufficiency of a complaint by examining the allegations of the complaint, not the labels used to characterize the claim. Sheets v. Knight,
Relying on Ellis, the court has announced a different deadline of five days for filing a challenge under ORS 246.910 regarding a fiscal impact statement. State ex rel Bunn v. Roberts,
The Ellis court did refer to one arguably analogous deadline statute, ORS 183.484(2), which governs the appeal of an “order in other than a contested case.” The court failed to acknowledge that that purported analogy breaks down under analysis, because ORS 246.910(1) applies more broadly to any act or failure to act, not only to orders, and, under the court’s previous case law reviewed above, any of the Secretary of State’s various actions and decisions, once made, becomes subject to review under ORS 246.910(1).
The Ellis court’s assertion that a "legislative vacuum” existed regarding filing deadlines might have been false, because the court failed to determine the applicability of other potentially relevant statutory deadlines. Those include ORS 12.080, which concerns actions on a liability created by statute, and ORS 30.275, which concerns actions against a public body based on “tort,” which ORS 30.260(8) defines in part to include “the breach of a legal duty that is imposed by law,” that “results in injury to a specific person or persons for which the law provides a civil right of action * * * for a protective remedy.” The court must determine the applicability of those or any other relevant period of limitations before it can assert accurately that the legislature failed to limit the time for filing an appeal under ORS 246.910. Neither of the potentially applicable deadlines cited above would bar the individual plaintiffs’ appeals in this case.
The majority in a footnote attempts to refute that reading of its opinion, and asserts that the voters still have the opportunity to file timely challenges to other, presumably later, acts by the Secretary of State under ORS 246.910,