Leo v. KeislingLeo v. Keisling
- Reporters:
- , , ,
- Before:
- Leeson
In this certified appeal, the parties ask us to decide the following question:
“Is it unconstitutional for the Secretary of State to qualify an initiative to the ballot, relying on that ‘margin of error,’ ‘within the acceptable limits of the target,’ or any other similar statistical term, if the two statistical samplings done both produce estimates that the initiative petition was not ‘signed by a number of qualified voters equal [or greater than] six (6) percent of the total number of votes’ in the last gubernatorial election in Oregon?” (Brackets in original.)
The parties frame that question in the context of a challenge to the Secretary of State’s determination that initiative petition #53
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contains the required number of valid signatures to qualify for placement on the November 1998 general election ballot. In determining that the petition contained the required number of valid signatures, the Secretary of State relied on what the parties refer to as the “margin of error” contained in
Plaintiffs Leo and Hymes brought this action in circuit court, alleging that the Secretary of State exceeded his authority by declaring that initiative petition #53 qualified for the November 1998 general election ballot. Plaintiffs sought a declaration that the petition “had insufficient signatures for placement on the ballot.” They also sought to enjoin the Secretary of State from certifying the petition to the ballot or, alternatively, from “taking any further action to place” that petition on the ballot. The circuit court rejected plaintiffs’ claims for declaratory and injunctive relief and entered judgment for defendants. Plaintiffs appealed to the Court of Appeals, which certified the appeal to this court.
Article IV, section l(2)(b), of the Oregon Constitution, provides:
“An initiative law may be proposed only by a petition signed by a number of qualified voters equal to six percent of the total number of votes cast for all candidates for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition.”
Six percent of the total number of votes cast for all candidates for Governor during the last election is 73,261. Supporters of initiative petition #53 submitted a petition containing 92,577
signatures to the Secretary of State for verification. Consistent with
Because the estimate from the first sample indicated that the petition did not contain the required number of signatures, the Secretary of State, again consistent with the statute and pursuant to the administrative rule, obtained a second sample, which combined the initial sample with at least 4,000 additional signatures appearing on the petition. A check of the signatures on that combined sample produced an estimate lower than that obtained from the first sample: 73,088 valid signatures, which was 173 fewer than the required number.
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Nonetheless, based on an application of the “acceptance/rejection limit” for a petition contained in
“following the completion of a second signature sample, initiative petition #53 qualified for the ballot with an estimated 73,088 valid signatures. While this appears to be 173 signatures fewer than the 73,261 signatures required by the Constitution, it is, in fact, within the Vi of one percent margin of statistical error permitted by administrative rule” (Emphasis added; footnote omitted.)
In other words, the Secretary of State’s best estimate based on the two statistical samples was that the petition supporting initiative petition #53 was 173 signatures (less than one-half of one percent) below the required number of 73,261. However, relying on the “acceptance/rejection limit” contained in the administrative rule, which permits acceptance of a petition even though the Secretary of State is up to 80 percent certain that the petition does not contain the required number of signatures, the Secretary of State declared that initiative petition #53 qualified for the ballot. The present action followed.
As noted, the parties present the single, constitutional question quoted at the beginning of this opinion. However, it is well established that this court ordinarily does not
“the proper sequence begins with an examination of ordinary rules of law and the scope and limits of legal authorization before reaching any constitutional issue, because when some challenged practice is not authorized by law, the court acts prematurely if it decides whether the practice could be authorized without violating the constitution.” State v. Lowry, 295 Or 337, 343, 667 P2d 996 (1983).
The rule against deciding constitutional questions when subconstitutional grounds for decision exist especially is cogent when, as here, “this court confronts an unnaturally short period of time within which to issue a decision.”
State ex rel Keisling v. Norblad,
317 Or 615, 624, 860 P2d 241 (1993). Thus, although the parties attempt to frame the issue only in constitutional terms, we first must consider whether application of the Secretary of State’s rule in this case comports with relevant subconstitutional rules of law.
See id.
at 624-25 (describing judicial restraint implicit in preference for sub-constitutional decisions). We conduct that inquiry to ensure that the challenged action “was authorized by the state’s * * * politically accountable policy makers.”
Planned Parenthood Assn.,
297 Or at 565. In this case, the politically accountable policy maker is the legislature, because it enacted
The proper sequence in analyzing the legality of action taken by officials who are exercising delegated authority is to determine first whether the officials acted within the
scope of their authority and then whether the action that they took followed the procedures prescribed by statute or regulation.
Ibid.
Neither of those matters is in question here. The next determination is whether the substance of the action departed from a legal standard expressed or implied in the law being administered.
Ibid.
That inquiry leads us to examine
“The Secretary of State by rule shall designate a statistical sampling technique to verify whether a petition contains the required number of signatures of electors. A petition shall not be rejected for the reason that it contains less than the required number of signatures unless two separate sampling processes both establish that the petition lacks the required number of signatures. The second sampling must contain a larger number of signatures than the first sampling.” (Emphasis added.)
In interpreting that statute, our objective is to discern the intent of the legislature. We follow the familiar template in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), first examining the statute’s text and context. Context includes other provisions of the same statute and other related statutes. Id. at 611. In a case such as this, which, as discussed below, involves a statute enacted pursuant to express constitutional direction, context also may include relevant constitutional provisions. When construing a statute, we give words of common usage their “plain, natural, and ordinary meaning.” Ibid. If our analysis of those sources discloses the legislature’s intent, we proceed no further. Ibid.
“* * * 2 : to prove to be true: establish the truth of: conclusively demonstrate by. presentation of facts or by sound reasoning or argument * * * 3 : to serve as conclusive evidence, argument, proof, or demonstration of * * * 4 : to check or test the accuracy or exactness of: confirm the truth or truthfulness of by or as if by comparison with known data or a recognized standard of authority * * * 5 : to confirm or establish the authenticity or existence of by examination, investigation, or competent evidence.” Webster’s Third New Int‘l Dictionary, 2543 (unabridged ed 1993).
Each of the definitions of “verify” indicates the act of confirming. The very next sentence of the statute—the closest possible context—directs that a petition “not be rejected * * * unless two separate sampling processes both establish that the petition lacks the required number of signatures.” (Emphasis added.) The necessary implication of the statute’s wording is that the Secretary of State shall reject a petition, under the statistical sampling method, in the circumstances presented here.
According to the text and context of
We turn to an examination of
“(13) If the results of the ‘first’ sample do not qualify the petition the ‘second’ sample data will be added to the ‘first’ sample data and the combined results will be applied to the sampling formula. The formula will show that:
“(a) The petition has a sufficient number of valid signatures;
“(b) The petition does not have a sufficient number of valid signatures.”
The “sampling formula” to which
“The limit is set to give a probability of 80% (or any desired probability) that a petition with [fewer than the required number of signatures] will be accepted on the combined sample even though it was not accepted on the first sample.” OAR chapter 165, division 14, Appendix I.
The parties have stipulated to the following summary of the effect of the “acceptance/rejection limit” in this case: “The Secretary of State’s rules require an 80% probability that an initiative petition lacks sufficient signatures before it can be rejected.” In his brief to this court, the Secretary of State explains the policy choice embedded in that “acceptance/ rejection limit”:
“The Secretary of State has decided to exclude a proposed initiative from the ballot only when lawful statistical sampling demonstrates a high degree of certainty that the petition contains insufficient valid signatures.”
The question, therefore, is whether the policy choice contained in the administrative rule is authorized by the statute.
In this case, the Secretary of State declared that initiative petition #53 qualified for the November 1998 general election ballot without first verifying—that is, confirming— that the petition contained 73,261 signatures. Plaintiffs were entitled to a declaratory judgment that the Secretary of State violated
As noted earlier in this opinion, plaintiffs also sought injunctive relief in the circuit court. In this court, they request an order
“* * * removing [initiative petition #53] from the. ballot, or, in the alternative, an order preventing and enjoining defendant Secretary of State or any other government entity from taking any further action allowing the measure to remain on the ballot unless and until there is an individual verification that a constitutionally sufficient number of signatures exists to allow the measure to remain on the ballot.”
We do not find those requests for relief to be well taken. The range of choices available to the Secretary of State as a result of our decision in this case is a matter to be addressed to the Secretary of State in the first instance. See, e.g., Burke v. Children’s Services Division, 288 Or 533, 548, 607 P2d 141 (1980) (“We -will not assume that the defendant agencies of the State of Oregon will, in the absence of an injunction, refuse to follow the law as we have stated it.”).
The judgment of the circuit court is reversed. The case is remanded to the circuit court for further proceedings. Pursuant to ORAP 1.20(4), and notwithstanding ORAP 14.05(3)(b), the State Court Administrator shall issue the appellate judgment at 12:00 p.m. on Monday, October 12, 1998, unless a petition for reconsideration is both filed with and received by the office of the State Court Administrator by that time. Any timely petition for reconsideration will stay issuance of the appellate judgment until the court acts on such petition.
Notes
Because the underlying issue in this case is whether initiative petition #53 qualified to become a ballot measure, we refer to it here as “initiative petition#53.” However, under OEC 201(f), we take judicial notice that on September 3,1998, the Secretary of State certified initiative petition #53 to the November 1998 general election ballot, and it now is known as Ballot Measure #61.
The parties have stipulated, in part, as follows:
“21. What we are calling the ‘margin of error’ for purposes of these stipulations is not any set number, but rather is individually calculated for each initiative petition under the Secretary of State’s rules. The goal of these calculations is to express a mathematical probability that the number of valid signatures submitted was, for present purposes, more or less than 73,261.”
The text of
The parties have stipulated that “[i]f a citizen submitted a petition with 73,088 signatures that were all valid signatures, that petition would not be qualified for the ballot.”