Lincoln Interagency Narcotics Team v. Kitzhaber

January 27, July Argued reversed and submitted (LINT), NARCOTICS TEAM LINCOLN INTERAGENCY agency a law enforcement agreement, created by intergovernmental Appellant, and COUNTY, LINCOLN subdivision a political of Oregon, of the State Plaintiff, and FUND, DEFENSE ANIMAL LEGAL Society, Oregon Humane Valley, Society Humane of Willamette Harmon, Sharon M. Otto, K Stephan S. Geiger, and Wayne -Appellants, Intervenors v. KITZHABER, M.D.,

John D. of the State Oregon, Governor Bradbury, Bill Secretary State, Oregon, and State Respondents, Ray HESLEP Adamson, Sandra - Respondents. Intervenors 00C-19878; A115401 72 P3d for the briefs appel- the cause and filed argued Rob Bovett Team. Interagency lant Lincoln Narcotics filed the briefs the cause and argued B. Carlton Grew - Fund, Oregon Defense Legal Animal intervenors appellants Valley, Willamette Society Humane Humane Society, Harmon, Geiger. and S. Wayne M. Otto, K. Sharon Stephan

528-a General, the cause for Williams, H. Solicitor Mary argued M.D., John D. Bill and Kitzhaber, Bradbury, respondents her on the Hardy Myers, State of With brief was Oregon. Attorney General. Eli D. Stutsman the cause and filed the brief for argued -

intervenors and Sandra Adamson. respondents Ray Heslep Landau, Armstrong Before Presiding Judge, Brewer, Judges. J.

BREWER, J.,

Armstrong, dissenting.

528-b

529 BREWER, J. Uniform under this action brought Plaintiffs - 28.160, challeng 28.010 Act, ORS

Declaratory Judgments (Measure (2000) 3 constitutionality of Ballot Measure ing the Act).1 sec 3 added Protection Measure Oregon Property 3 Section 10 Constitution. to Article XV of the Oregon tion 10 Measure 3 argued of 12 subsections. Plaintiffs consists that should amendments or more constitutional contains two 1, XVII, Article section on under separately have been voted Meas argued Constitution.2 Plaintiffs also of the Oregon of Article in violation subject, ure 3 addresses more than one IV, 1(2)(d), section Constitution.3 for defendants

The circuit court entered judgment 3 both against and of Measure upheld constitutionality follow, judg- For the reasons that we reverse challenges. ment of the circuit court. is a subdivision County political

Plaintiff Lincoln Interagency thé and Lincoln Oregon, plaintiff State created agency Narcotics Team is a law enforcement 190. Both chapter under ORS intergovernmental agreement under subject responsibilities are plaintiffs rights individuals Measure 3. Plaintiff intervenors are three ways in various three that are involved private organizations former are the with animal issues.4 Defendants protection Defendant of Oregon. Governor and the of State Secretary full below. The text of the measure is set out in 1, shall provides “[w]hen or more amendments two Article * * * election, they shall so this state at the same be submitted to the voters of separately.” submitted that each amendment shall be voted l(2)(d), IV, provides proposed “[a] law or amendment only properly connected one and matters the Constitution shall embrace therewith.” exclusively pertains civil forfeiture The trial court ruled that Measure 3 However, proceedings applicable proceedings. forfeiture and that it is not to animal standing parties questioned plaintiff intervenors’ neither the trial court nor the “jurisdiction to parties action, premise that the court had as to this based on the standing.” Although any party appropriate claim if has reach the constitutional jus presents a obligation sponte this court has an to consider sua whether an action Accordingly, controversy, plaintiffs’ we claims do so. there is no doubt that ticiable proper plaintiff intervenors do not detain ourselves with the issue of whether parties to this action. for 3. Because

intervenors are the chief petitioners Measure issues the consti- legal concerning this action presented only filed cross-motions for parties of Measure tutionality the trial court entered summary After summary judgment. to this court. defendants, judgment plaintiffs appealed We and substance begin by describing history on November Measure 3. The voters measure adopted 2000. Measure 3 provides: Oregon is

“Article XV of the Constitution of the State of following People amended a vote of the to include new section: Protection Act Oregon Property “Section 10. The (1) may be known and shall be cited as

of2000. This section ‘Oregon Property Protection Act of 2000.’ “(2) People, of The in the principles. Statement to them under the Constitu- power exercise of reserved Oregon, tion of the State of declare that: “(a) society per- A tenet a democratic is that a basic until presumed punished son and should not be is innocent proven guilty;

“(b) in property person The of a should not be forfeited until that proceeding by government a forfeiture unless and involving property; person is convicted of a crime “(c) propor- value forfeited should be property The specific tional to the conduct for which the owner of convicted; property has been and “(d) used property Proceeds from forfeited should be specified otherwise drug for treatment of law for another abuse unless purpose.

“(3) conviction. prohibited Forfeitures without property in a civil forfeiture judgment No proceeding by of forfeiture of any subdivisions political the State or of its until and unless the owner shall be allowed or entered is of a crime in or another property convicted found clear and convinc- jurisdiction property and the or committing in ing evidence to have been instrumental crime. The proceeds the crime or to be of that facilitating this under property provisions value of the forfeited substantially subsection not be excessive shall be shall owner of conduct for which the proportional specific sec- purposes For of this convicted. property the tion, has been value, anything in any interest ‘property’ means tangible of land and tract any the whole of lot or including currency, including property, intangible personal privilege, kind of any or securities or other instruments interest, due. Noth- right or whether due or to become claim voluntarily prohibit person shall from ing this section giving judgment of forfeiture.

“(4) In a owners. property Protection of innocent claiming if a financial institution proceeding civil forfeiture an in the that it holds property an interest demonstrates interest, subject forfeiture. its interest shall not be claiming if a an proceeding person

“In a civil forfeiture than a financial institution property, interest other of a charged or a defendant who has crime with or convicted been involving per- demonstrates that the property, an interest property, person’s son has shall not be interest to forfeiture unless: “(a) forfeiting agency proves by clear and convinc- inter- ing person property evidence that the took the or the forfeiture; est with the intent to defeat the “(b) (3) A conviction under is later obtained subsection against person. “(5) Exception and con- property for unclaimed (3) Notwithstanding

traband. of of subsection section, if, known to following persons this notice to all interest, may person have an interest or who have an no if is property property claims an interest in the seized contraband, or may be allowed and judgment of forfeiture this purposes entered without a criminal conviction. For subsection, personal property, ‘contraband’ means articles things, including or or Oregon not limited to controlled substances but person prohibited that a is

drug paraphernalia, producing, or local from obtain- statute ordinance ing possessing. or

“(6) unaffected. Noth- Law enforcement seizures ing temporary to affect the this section shall be construed forfeiture, evidentiary, protective or property seizure of for to remit purposes, fines or power or to alter the of the Governor V, 14, of this under Article Section forfeitures Constitution.

“(7) proceeds and Disposition property shall be property Any sale of forfeited drug treatment. Property commercially reasonable manner. conducted in a (8) (3), (5), or of this under subsections or forfeited proceeds but purposes not be used for law enforcement section shall following in the order: applied distributed or shall be “(a) liens, security any foreclosed the satisfaction of To priority; their in the order of interests and contracts

“(b) for subdivisions any political or of its To the State the costs of the related to expenses actual and reasonable fees, attorney storage, including proceeding, forfeiture property of the maintenance, disposition management, prop- forfeited any with the sale of incurred in connection twenty-five percent exceed in an amount not to erty forfeiture; any single proceeds total “(c) political subdivisions any State or of its To the dis- treatment, unless another exclusively drug be used position by law. provided specially is “(8) Oregon sharing. The State and federal State necessary take all shall any political subdivisions or of its the United proceeds from property shared or steps to obtain from a forfeiture. resulting of Justice Department States United States from the proceeds received Any property or any of its or by the State Department of Justice in sub- provided as applied shall political subdivisions (7) of this section. “(9) transfers. Neither on State Restrictions forfeiting subdivisions, any nor political its Oregon, State of to the federal proceedings transfer forfeiture agency shall affirmatively found court has unless a state government that: “(a) inter- rise to the forfeiture activity giving The justify sufficiently complex

state in nature transfer;

“(b) under forfeited may only be property seized law; federal unduly

“(c) law would under state Pursuing forfeiture forfeiting agencies. the state burden “(10) acting Any person for violations. Penalty any takes who law, position title or official under color of transfer, withhold, retain, conceal, intending action to conveyances, real prevent any proceeds, divert or otherwise property, any things or of value forfeited under law being applied, depos- this the United States from State or (8) (9) (7), or ited or used in accordance with subsections in an amount penalty this section shall be to a civil concealed, trans- property treble the value of the forfeited ferred, withheld, Nothing in this sub- retained or diverted. if judicial immunity impair section shall be construed to otherwise applicable.

“(11) forfeiting agen- All Reporting requirement. report disposition property cies shall the nature and of all proceeds seized for forfeiture or forfeited to a State oversight independent asset forfeiture committee that is any forfeiting agency. oversight The asset forfeiture com- mittee shall an generate public and make available to the report annual forfei- information collected. asset oversight ture committee shall also make recommendations to ensure that proceedings asset forfeiture are handled manner property that is fair to innocent owners and inter- est holders.

“(12) Severability. any If of this section or its part application any person to or circumstance is held to be any reason, invalid for remaining parts appli- then the any persons cations to or circumstances shall not be affected but remain shall in full force and effect.” (Boldface in original.)

In their vote” under Article “separate challenge plaintiffs that Measure 3 argue presented voters, measure, in a included single an amendment at least Constitution.5 eight separate those Measure Among changes, contend that plaintiffs addition, made, XV, seven following of the Oregon Constitution:

(1) (3), Subsection generally requiring owner be convicted of a crime as a property prerequisite the civil forfeiture of property; may appeal, plaintiffs suggest In footnotes to that Measure their brief arguments do not

have made several additional to the constitution. Those consideration, merit extended and we decline to address them.

(2) (3), establishing proof Subsection the burden of convincing in civil forfeiture actions as evidence”; “clear and (3) (4), prohibiting Subsection civil forfeiture ofthe property person of a who has not been convicted of a crime forfeiting agency “[t]he proves by convincing unless clear and person property evidence that the took the or the interest forfeiture”; with the intent to defeat the (4) (7), Oregon prohibiting Subsection the use proceeds purposes and, civil forfeiture for law enforcement generally speaking, dedicating drug proceeds the net treatment;

(5) (8), prohibiting Subsection for law use purposes proceeds enforcement of federal forfeiture that civil agencies; are shared with state and local law enforcement (6) (9),prohibiting Subsection the transfer a civil proceeding government forfeiture to the a federal unless “activity giving state court has found that the rise to the for- sufficiently complex,” feiture is interstate in nature “[t]he that and property may only seized under federal be forfeited pursuing law,” or that the forfeiture under state law “would unduly forfeiting agency; burden” the state

(7) (11), establishing reporting Subsection requirement for all civil forfeitures. (3)

Plaintiffs further of Meas- assert that subsection implicitly changed Oregon I, 16, ure 3 Article section of the prohibits imposition Constitution, which of “excessive proceedings. that, fines” criminal Plaintiffs contend purposes I, 16, Article section a civil forfeiture action is a proceeding. They argue by imposing that, criminal requirement “substantially proportional that a forfeiture be (3) specific changed conduct,” to the subsection standard merely required I, 16, which, assert, Article section “grossly prohibited disproportionate” that a fine not be to the conduct on which the fine is based. Plaintiff intervenors “explicitly assert, in links forfei- addition, that Measure 3 tures to criminal convictions” and law standards and by changing meaning of “offense”or I, 16, adding place not take unless that forfeiture in the crime instrumental found to have been the property crime. or the proceeds made Measure 3 then, assert sum, plaintiffs Constitution Oregon addition to the seven changes

at least to an change at least one also made implicitly and that argue also Plaintiffs of the constitution. existing provision the consti were substantive those changes that Measure and, thus, related” “closely tution that were not on each separately vote opportunity 3 denied the voters of Article in violation change, unrelated substantive sec Court interpreted Oregon Supreme as the (1998). 959 P2d 49 Kitzhaber, tion in Armatta v. intervenors respond and defendant Defendants 3 made one substantive only Measure more substan- if it made two or that, even Constitution and, there- “closely related” tive were changes, require- the “separate-vote” 3 did not violate fore, Measure XVII, section 1.. ment of Article Court first determined Armatta,

In the Supreme to constitutional requirement applies that the separate-vote pro- well as to those initiative, as amendments proposed Moreover, the court at 261. the 327 Or posed by legislature. “amendment” the of a constitutional concept concluded that 266-67, id. at change,” meant “a constitutional particular requirement that and, thus, separate-vote it held constitution to the amendments requires proposed the voters that permits the voters a manner submitted to to one constitutional only in one vote as to their will “express analyzed The court then discussed Id. at 269. change.” section, development, its historical of the wording the specific it. Id. at 269-75. and case law applying fol tools, the court derived analytical From those to a particular proposal whether determining test for lowing require the separate-vote offends amend the constitution ment: whether, adopted, if determine inquiry is to proper

“[T]he to the consti- changes make two or more proposal would closely related. are not and that tution that are substantive that are two or more would effect proposal If the 536 related,

substantive and not proposal violates the XVII, requirement of Article because it would from prevent voters their expressing opinions proposed separately.” as to each Armatta, 327 Or at 277. Armatta, applying we look not only explicit at but also at the implicit changes, if a meas any, that

ure would make to to constitution determine whether it offends the separate-vote sec Article tion See id. 278 (identifying explicit implicit 1. changes). Moreover, constitutional not limited to amendments or expressly implicitly repeal modify existing constitutional provisions; additions to the constitu tion also can make substantive it. See Lehman v. (2002) 231, 243, 333 Or Bradbury, 37 P3d 989 adding (by II, constitution, Ballot Measure (1992) changed the constitution by limiting state legislative service a lifetime maximum years of six of Representatives, though House even no provision existing constitution had congres addressed matter of limits). term sional

As Measure 3 noted, did not or mod expressly repeal any ify provision of existing constitution, parties but the as to vigorously whether Measure disagree implicitly changed various Accord existing provisions. we could our ingly, begin separate-vote inquiry by focusing Armatta, on that issue. See Or at (beginning inquiry concerning ballot measure by identifying changes constitution). However, would have made existing Court not Supreme adopted analysis has a fixed order of an determining separate- whether violates the amendment requirement. Bradbury, 597, 607, 43 vote See Swett v. (2002) (stating P3d analysis the order followed “descriptive, Lehman was We need not prescriptive”). resolve the parties’ disagreement implicit concerning if changes Measure made at least two changes substantive by addition to the constitution that are existing closely related. As we now 3 made at sub explain, Measure least two If stantive addition to the constitution.6 changes by existing appears substan The dissent assume that Measure made at least seven J., dissenting). changes App (Armstrong, tive to the constitution. 188 Or at 564-65 fails entire measure related, not closely are those Accord requirement. muster under the to pass are they and whether consider those we first ingly, related. that, XV to Article added provisions Measure 3 of property civil forfeiture effects, prohibit other among (subsec- of a crime convicted first has been unless its owner 3) disposed is to be forfeited property that direct how tion 7). those (subsection that Plaintiffs argue distributed consti- to the make discrete substantive reasons, disagree. defendants tution. For two single made a Measure 3 First, that they argue subsections, that created through multiple albeit change, That of property.” on forfeiture “constitutional limitation 3 may Measure viewed, Broadly is unpersuasive. argument aspects multiple that encompasses a single address Lehman, Supreme However, civil forfeiture reform. the state notion, advanced summarily rejected Court (1992) only change made one Measure 3 there, that of provi- combination a “cohesive it was constitution because Id. at 244. i.e., term limits. subject,” sions” on a “discrete court explained: Measure arguing that intervenors

“[T]othe extent ordinary sense of in the multiple changes make 3 does not wording, their existing alterations multiple substantive for for limits in the term Changes argument state executive officers unsupportable. limits creation of such and the at least Congress are members of legislators and for state changes to the constitution.” two substantive notion to the same reduces Id. Defendants’ first argument number of alterations Lehman, is, any rejected if a single constitute of the constitution wording this goal, policy cohesive single implement reflect Whatever proceedings. civil forfeiture case, restricting asserts. the dissent assumption or the list do not endorse that We disagreement here, core However, because our our concerns we will not belabor dissent lies elsewhere. with the argument, plainly appeal foreclosed of such an it is abstract by Lehman. unavailing. argument equally

Defendants’ second 3 and 7 of Meas- that, Defendants assert because subsections existing pro- modify any expressly implicitly ure 3 do not or single viewed as a constitution, vision of the “could be Supreme change has However, Court to the constitution.” “change” depending meaning adopted a different existing modify repeal constitu- whether new tional oppor- provisions. presented with that The court was tunity required whether in Lehman when it was to determine provision, pertaining congressional the addition of a new change to the a discrete substantive limits, term constituted change treating as distinct from constitution. In change pertaining existing provisions for to term limits suggest applying that it was officials, state the court did not determining a had whether different standards we. been made. Nor do requiring conviction that, conclude a criminal

We imposing and, further, in a condition to civil forfeiture as proceeds, Measure 3 made restrictions on the use offorfeiture changes XV.7 least substantive to Article two remaining question Armatta, We turn to the under namely, changes the constitution the substantive whether “closely by are made subsections 3 and 7 of Measure 3 begin proper application test, we In of that related.” aid of reviewing applying by court’s cases it. appli- on its Armatta, the court did not elaborate “closely to the substantive cation of the related” test (1996) issue, Ballot Measure 40

made the amendment at (Measure 40). court had because, so once the That was multiple, that Measure substantive, described that “their lack constitution, 40 made to the it concluded (so Or at Lehman, was obvious.” ‘close relation’ Armatta). Among changes, describing Measure 40 other if, indeed, they question, Defendants do not contend that summarily changes, Supreme concluded As the Court are not substantive. * * * Armatta, clear, think, equally are substantive.” “[i]t is we that the at 283. from unreasona- free (1) to be of all persons limited the right former self-incrimination, seizures, ble searches crime 12, by granting 9 and I, Article sections under jeopardy admissible evidence relevant to have “all right victims (2) of a the right limited defendant”; criminal against 11, to I, Article case, under in a murder defendant for murder convictions by permitting unanimous verdict (3) limited the legis- vote; and 11-1 “guilty” based on a jury’s (Amended), VII under authority lature’s to juror qualifications to enact laws 5(l)(a), pertaining voters registered cases be in criminal jurors that requiring the felony previous of a within have been convicted and not circum- Under those Armatta, Or at 254.8 327 years. discussion, extended concluded, stances, the court without “closely not Measure were by that the made changes the separate- 40 violated and, thus, that Measure related” at 1. Id. 283. of Article vote requirement guidance some provides Armatta nevertheless Measure 3 that changes the whether the resolving question First, related. were made to the Constitution Oregon provisions that at least two constitutional the court noted I, Article 9, and I, 40—Article by affected Measure to nothing “virtually that had rights section 11—conferred free of all to be other, is, people that the right do” with each of the right and the searches and seizures from unreasonable in a verdict rendered to have a unanimous criminally accused further dis- The court Armatta, 327 Or at 283. murder case. fact the by provisions those two constitutional tinguished to granted rights, constitutional “separate that each involves such change For the voters Id. persons.” different groups must held, they court the way, in a substantive provisions Lehman, 284; see also Id. at on changes separately. vote the (“when provi- constitutional the affected 333 Or at 246 n 9 groups people, different rights sions confer separate those provisions that that indication strong requirement”). of the separate-vote ‘related’ for purposes changed implicitly ways discussing Measure identifying in which In 278-80, Armatta, Constitution, the 327 Or at Oregon see provisions various IV, any provision modified Supreme of the measure not state that Court did legislative power, any respect. establishing Armatta that addition, suggested

In the court in that the constitu- weakness, 40 had a second Measure one from very it made were different that tional 40— Measure by one made change For example, another. cases in criminal that the jury pool adding rela- [the] not “share voters—did registered drawn from Id. to each other. other that bound certain tionship” effect, con- court, in observation, 283. In making pro- constitutional relationship among both the sidered relationship Measure 40 and visions affected in those provisions that were made one another. Lehman,

Lehman also guides our analysis. the substantive argued challenging plaintiffs a provision addition of made Constitution Oregon was not of Congress the terms of members limited limited to the substantive closely related It agreed. at 248. The court officials. 333 Or terms of state term limits created that, both although reasoned made so, they officials, nevertheless, doing for elected Id. at 249. The court to the constitution. unrelated changes explained: sec- in Measure 3 to add were asked people

“When the Constitution, they were 20 to Article II of the tion Congress, of members of eligibility else in the asked to Oregon Constitution. topic found nowhere problem was not new. provision was necessarily that But the itself, may a neutral factor. Newness, in be eligibility for affecting by made section specific addition term office, nothing to do with had little or public federal Treasurer, example, as those for Oregon State limits for the Nonetheless, the vot- in section 19. limits were established in a both sections against to vote for or ers were asked 1, Measure XVII, section In terms ofArticle measure. single in a to the voters amendments two or more 3 submitted each voting on the voters from that prevented manner impermissible.” That was separately. amendment Lehman, 333 Or at 250. There, court considered

Swett also is instructive. 1, of Ballot XVII, section under constitutionality, various requirements established (1998), which Measure contributions for, political other disclosure among things, The court and initiative con- petition signature gathering. cluded at a 1 of Measure 62 that, minimum, implicitly constitution, Article II of the which contains various changed eligibility officials, for elected requirements publicly an additional on those elected imposing requirement publicly if they officials received contributions in excess of political contributor, Swett, from one any 607-08, $500 officials would have been to disclose the amount and required source of Meanwhile, the contribution. Id. at 603. section 3 of Measure 62 IV, 1(2), affected Article concerning legislative It amended that constitutional power: explicitly provision require that who persons gather signatures initiative and referendum petitions registered voters. Id. Thus, the measure made more than one substantive change to the constitution.

The defendants in Swett contended that the consti- tutional changes made in sections 1 and 3 were closely because, related like other Measure changes proposed “ ‘they regulations designed prevent, control, or expose the influence of in the initiative money [and] referendum ” * * * (brackets Swett). process.’ 333 Or at 608 However, the court held that the of sec- voter-registration requirement tion 3 did not bear to that any relationship suggested design. Id. at 609.

More the court concluded that importantly, defendants’ failed argument because was an merely to show that attempt sections 1 and 3 of Measure 62 shared the same subject matter. The court said: may may true, point

“That analysis not be but it is beside the in an

under Article section 1. Defendants do focus, separate-vote challenge, as must in a par- on the Lehman[, ticular made to the constitution. See Or] at 241-42 (separate-vote requirement, contrast to single-subject requirement, pro- focuses on extent to which constitution). posed amendment existing modifies Section 62, by of Measure imposing a disclosure political contributions, those who receive tional rule adds an addi- II already concerning to those set out Article contrast, publicly By how a elected must act. section official 62, 3 of by creating eligibility requirement Measure an for 542 signatures for gathering

those the task of who undertake the petitions, legislative and referendum limits initiative 1(2). IV, people in Article section power of the as described tell changes, far as we can Those two constitutional as analysis own of either from our on the basis defendants’ arguments, closely are not related to each other.” 609 Swett, Accordingly, 333 Or at (emphasis original). court invalidated the measure. consti- recently

The court most considered whether sep- tutional were for closely purposes related State Cities v. League Oregon arate-vote of of (2002). case, 645, Or P3d 892 Oregon, 334 56 Measure of Ballot challenged constitutionality plaintiffs (2000). least two The court held that Measure 7 made at constitution, namely, a substantive to the existing to payment just compensation for change requirements I, 18, separate Article section and a to owners under property under Article change expression laws respecting restraining I, section 8. Id. at 673-74. The court held: con-

“Those provisions ‘separate two constitutional involve rights, granted groups persons.’ stitutional to different ‘is a Armatta, relationship Or at That lack of 283. not for strong indication that those “related” Lehman, purposes separate-vote requirement.’ Or at n 9.” Or at Cities, 334 674-75.

League Oregon themselves, to Turning 7 made to the court that Measure change concluded that 18, change I, Article related to closely section was change 8. at 675. The I, that made to Article section Id. of a real I, concerned the generally ability Article to obtain enforcement just compensation owner property I, contrast, of certain regulations. By own- to limit the of certain rights property operated based on the content owners, ers vis-á-vis other property con- court their expressive property. material sold on of substantive that, “[b]y types cluded both incorporating ‘two or Measure 7 makes related, that are not the vot- more Constitution amendments’ Id. voted upon separately.” ers were have required We discern several core from the principles foregoing decisions that inform our First, decision here. when an amendment makes substantive addition to the changes by constitution, we existing look at the extent to which the changes themselves are closely Lehman, related. 333 Or at 243, 250. The fact that the new changes do not alter any pro vision of the existing constitution does not appear them to a more lenient standard for of purposes determining whether are they closely related to each other. See id.

Second, we must not confuse the single-subject separate-vote requirements. Although interrelated, are distinct constitutional Swett, 333 Or at principles. 609; Lehman, 333 Or at 241-42; Armatta, 327 Or at 256-75. Irre spective of whether two or more constitutional share changes a common subject or objective, they still must be closely related to each other in order to satisfy Article section 1. In effect, that determination is concerned with the strength of the logical between relationship Swett, the changes. 333 Or at 609; Lehman, 333 250; Or at Armatta, 327 Or at 283. In in regard, whether considering are related, is useful to identify the persons or of groups per sons, if any, whose rights the affect. If the changes involve “separate constitutional rights, granted to different groups of persons,” there is a “strong indication” that are not closely related for purposes separate- vote requirement. League Cities, 674; 334 Or at Lehman-, 333 Or at 9; Armatta, 246 n 327 Or at 283.

Defendants and defendant intervenors on two rely Supreme Court decisions, which, they assert, follow a differ- ent set of principles purposes whether determining con- stitutional closely related. The first is Baum v. (1954). Newbry al., et 267 P2d In Baum, plaintiff argued that a 1952 amendment IV, Article 6, of the Oregon Constitution concerning reapportionment violated the separate-vote requirement. rejecting challenge, the court upheld a measure that modified and, indeed, eliminated some existing require- ments and added new requirements.

The challenged initiative measure altered the exist- ing constitution several First, it respects. changed existing authority the state’s to con- IV, Article section to eliminate exclusively rely on the duct own census or to “number its reapportionment population” making calculations. white only census After the United States amendment, then- could existing reapportionment would be counted. The be used and nonwhites changed. was formula also IV, section 6. measure also added new subsections to jurisdiction original Two of those new vested pre- reapportionment plans Supreme the pared Court review Secretary legislature either the of State and reapportionment Secretary authorized the to enact State provi- legislature so. other new laws if the sions added to the constitution failed to do Two temporaiy but detailed reapportionment plan, specifying the number ofsenators and county representatives or counties. for each district and governing provision new rules the service Another added existing who would be elected from districts but senators who reapportionment finish terms under the new would their plan. Finally, provision specified meas- new that the another day generally until the the ure did not become effective 1954 election. separate- Supreme rejected plaintiffs

The Court challenge, stating: vote amendment did not submit

“But the 1952 constitutional It submitted one more amendments’ to the voters. ‘two or only reappor- with the amendment which deals legislative assembly and members of the tionment * * * 1 of germane thereto. Section with matters which are an adopting from prohibit people Article XVII does not more than one article amendment which would affect it Annotation, 94 1510. At most by implication. ALR section differ- prohibits the submission of two amendments two impossible for the subjects ent as to make it such manner one, fact, if it be express their will as to each. voters to may have reapportionment amended that the amendment constitution, would more than one section of immaterial.” Baum Armatta, In the court said that 200 Or at 581.

Baum, following principles: for the stands “First, it of the purpose separate- demonstrates that requirement sep- vote is to to decide upon allow voters differently, arate constitutional Stated separately. 1, aimed at imposes requirement a ensuring that the their will in one express voters able only vote as to change. one constitutional That is consistent analysis with our textual separate-vote requirement, requirement upon which noted that the focuses the nature constitution, pro- as the existing as well amendment cedural form that an takes it is submit- when Baum demonstrates Second, that, by ted to people. implication, single may constitutional amendment affect one offending or more constitutional without Baum separate-vote requirement. Finally, suggests separate-vote encompasses, to some extent, the notion that a single amendment must contain a ” single ‘subject.’

327 Or at 269.

In the second case on which defendants and defen dant intervenors v. Hartung Bradbury, rely, 579-80,33 P3d 972 (2001), the court reaffirmed Baum as having Hartung, correctly applied the separate-vote requirement. the court rejected to a 1986 amend challenge ment VI, to Article the 1952 version repealed replaced with a new version that excepted reapportion ments from the initiative and referendum and altered powers the procedure for recall of dis legislators reapportioned tricts. The court said that Armatta “nothing suggests Baum was decided 332 Or at 579 n 5. It held incorrectly[.]” this court’s conclusion in Baum that, light “[i]n the more extensive 1952 under amendment muster passed XVII, section 1, we conclude that the more limited 1986 amendment withstands consti necessarily petitioners’ Id. tutional challenge.” at 579.

Defendants and defendant intervenors argue the constitutional made Measure 3 are at least as changes by Baum.

closely related as those in Defendants challenged assert: Baum],

“[In the court a measure that altered the upheld general legislature, rules for members of the apportioning Secretary reapportionment inserted the of State into the reapportionment, and process, temporary established a only persons ‘white’ eliminated the calculations. The making reapportionment counted in Baum court did not conclusion that the clearly explain its it because separate-vote requirement measure satisfied changes or multiple found that these were not because, substantive were, any they closely if were related. to be less event, ‘changes’ in Measure 3 cannot be said All of changes. than the closely reapportionment related in measure were directed reapportionment the to accomplishing that establishing a new mechanism for changes in 3 are directed Similarly, task. all of the Measure property owners establishing protections private for to faced with civil proceedings.” forfeiture assert that Defendants and defendant intervenors the court’s decisions in Baum and is difficult to reconcile Lehman, Swett, Armatta, in Hartung with its reasoning Cities. That is, least, debat- League Oregon proposition reasons, Baum, an ana- presents able. For two in particular, the line First, that decision to blur appears lytical challenge. requirements between the single-subject AlS has, decisions, in to draw. attempted the court later XVII, noted, Baum, that, “[a]t [Article in the court held most amendments 1,] the submission two prohibits two as to make it impossi- subjects such manner different Baum, for the voters to their will as to each.” express ble added). The constitutional Or at 581 (emphasis in Baum have appear made the measure challenged matter, been connected a broad only by unifying Second, those constitutional is, reapportionment. groups conferred on at least two different

arguably rights who, regardless of color and namely, persons persons people, areas race, geographical are residents of the various redistricting reapportionment. affected inherent appar- it is notwithstanding, That tension arguable determining for to us that the controlling principles ent pur- related whether constitutional identified I, of Article are those poses Armatta and its those apply principles We now progeny. those provisions and 7 of Measure 3. Because subsections 3 do not repeal modify constitu- provisions existing tion, we to whether proceed directly determine the provisions themselves are closely related.9

We hesitate to there say that is no relationship between the two provisions each, because in its own way, arguably is aimed at forfeiture more difficult making accomplish. Subsection 3 an obstacle to forfeiture in imposes the form of a condition precedent. 7, turn, Subsection cre- ates a possible disincentive to forfeiture proceedings by pro- the use of hibiting forfeiture for the law enforce- proceeds ment purposes for which they used, were historically them directing instead to treatment. drug Nevertheless, that common objective does not make the changes themselves Swett, related. 609; 333 Or at Lehman, 250; 333 Or at Armatta, 327 Or at 283. If the consti- tutional changes at issue in Lehman, both of which related to a specific objective—the creation of term limits for offi- public cials—had “little or to do” with each nothing other, Lehman, 333 Or at 250, then it is difficult to conceive how the consti- tutional changes effected subsections 3 and 7 of Measure 3 could be regarded as closely related. There is if little, any, log- ical between relationship 3, subsection a provision that gives a property owner the right to be convicted of a crime before his or her property may forfeited, be subsection which directs and restricts for which forfeiture purposes pro- ceeds can lawfully used.

In determining whether the provisions are closely related, we also consider whether affect they of dif- rights ferent groups Here, people. do. Subsection 3 arguably Lehman, began analysis by comparing Armatta and the court its the con stitutional affected the measures involved in those cases for close See, e.g., Lehman, Here, though, relatedness. changes 333 Or at 246-47. because the existing provisions, do inquiry not affect our is limited to relationship Swett, consideration of the between the themselves. See (“[BJecause Or at 608 relationship our decision turns on the lack of close between constitution, regardless that Measure 62 makes to the of the relation ship provisions, between the affected constitutional we discuss the themselves.”). for- possible

confers a on owners of right property forfei- must feiture, precede criminal conviction whom a ben- hand, confers arguably ture. on other Subsection treatment.10 receiving drug efit a different group, persons subsec reasons, For conclude that we foregoing two substantive tions 3 7 of Measure made 11 related. closely the that are not Oregon Constitution The heart The with our conclusion. disagrees dissent the of the between relationship that concerns disagreement dissent and The separate-vote single-subject requirements. says: concerned with the requirement is separate-vote

“[T]he con- and structure of the government structure of state the closely pur- related for stitution. Whether two fit poses of how the requirement that concerns and governmental in terms of consti- together when viewed The is not on whether the tutional structure. focus each other.” policy goals achieve that are related to 10 disagrees, 7 does not confer a The dissent because it believes that section persons drug qualifying right on in of treatment. The dissent constitutional need fact, agrees proceeds 7’s enforceable. that subsection dedication of forfeiture is seekjudi persons drug taxpayers of and “could asserts that both cial relief to enforce the to in need treatment provision requires proceeds be devoted that that forfeiture (Armstrong, J., drug App dissenting). We need 188 at n 13 treatment.” Or 570 provision point may here. that the beneficiaries not decide who of enforce the The is necessarily group persons upon whom 7 not of of subsection are members the right losing It property to is 3 a be before forfeiture. subsection confers no answer Supreme to convicted does, “rights” say, point to to in as the that the to which the that dissent must, Armatta, Lehman, League Oregon Cities Court referred and of contrasted, compared “equivalent rights to the that are conferred order to be on and * * J., dissenting). by Rights App (Armstrong, people the Bill of Or at 571 188 discussed, entirely separate-vote requirement applies equal with force to As the which, course, 243, 250, provisions, Lehman, of need new Or at constitutional 333 relationship rights any particular qualitative the Bill not the conferred bear Rights. of above, primary 3 to be the effect of subsection As discussed we understand forfeiture, namely, person, imposition precondition the and of convictionof a relationship logical subsection that a close conclude subsection therefore lacks proceeds. 7, establishing prohibited permitted liquidated We uses of forfeiture relationship conclude, to each part, and 7 a close also other that subsections 3 lack rights groups arguably different fact affect the reason of the that gen primarily people. suggest pertaining do mean to that a measure We necessarily under Article will be defective eration and allocation of revenue by, 1, solely ground groups people are affected that section respectively, on the different portions revenue-allocating revenue-raising of the measure. Or J., (emphasis App (Armstrong, dissenting) the two original). problem is that differences between are not those that the dissent requirements identifies. Armatta makes the way: this point Baum, acknowledge that,

“[W]e under 200 Or at separate-vote requirement encompasses the notion that a single constitutional amendment must contain what ‘subject[ Indeed, court there referred a if single ].’ to as a proposed subjects, amendment contained two different then it could not be amendment, regard- considered a single less of the existence the single-subject requirement l(2)(d). IV, However, the fact that a proposed amendment containing subject more than one violate would both separate-vote and single-subject requirements compel does not the conclusion also opposite i.e., true, a proposed only amendment that contains subject one separate-vote would not require- violate the ment. discussed, As we have requirement imposes a narrower restriction than

proposed only subject. follows, amendment embrace one It therefore, that a proposed amendment satisfies broad standard for embracing single nonetheless may separate-vote violate the requirement.” Armatta, Or at 276-77. Because the separate-vote encompasses the requirement that a con- requirement single stitutional amendment a subject, contain a single proposed amendment that would violate the single-subject require- ment necessarily would violate separate-vote require- the Id. ment. view, to Accordingly, contrary the dissent’s the sep- is concerned with the arate-vote requirement matter subject of multiple changes.12 course,

Of the is separate-vote requirement con- cerned subject-matter But, with more than identity. trying to describe the essence of additional dis- ingredient, sent becomes For the dis- confusing unhelpful. example, that, sent asserts if all of an provisions of amendment internally acknowledges regard; The dissent is even in that it consistent proposed “[a] elsewhere that amendment satisfies the if * * J., App (Armstrong, dissenting) it addresses a (emphasis discrete *.” at 557 added). “single component a in the rele-

could have been included as given consti- constitutions, the manner which those vant components,” 188 Or have divided into discrete tutions been (Armstrong, dissenting), they pass App muster J., will at apparently The believes I, section 17. dissent under deciding multiple that, in whether constitutional important, essential, it if not violate Article “tradi- in which constitutions have to consider the manner tionally’ been structured. Id. validity proposition skeptical as of

We are of Although determining close relatedness. touchstone for may provide as to clues structure Constitution existing closely whether related to provisions fac a decisive constitution, of the should not be Many components” ofthe tor in “discrete that determination. as historical, do for exist the form constitution opposed logical, Moreover, forms often to those reasons. layering to been added that have involve amendments years. provisions Thus, in com over the constitution pletely closely more could be different articles of the constitution logical standpoint, than other, from a

related to each occupy sect the same article even same existing constitution, then, is not The ion.13 structure wholly determining surrogate relat close reliable changes. edness of constitutional theory appar- problem is most the dissent’s with attempt explain The dis- ent in the context of its sent states that present Lehman. qualifications officials “the of elected state very ofstate in terms of the structure different issues government from those of the constitution the state App delegation.” Oregon’s congressional Or members (Armstrong, dissenting). J., However, the dissent fails at 568 explain why adequately subsec- effected each related to and 7 Measure 3 are more tions 3 credit, To the dissent in Lehman. its other than those issue points valiantly distinguish out that the Lehman. It strives 13 example, creating judicial in Article provision districts is found For (Sched (Judicial (Amended) but, rather, placed Department) in Article XVIII VII ule). (Legislative Depart addition, (Miscellaneous), XV not Article IV legislators. requirements ment), providing eligibility for Other contains section exist, point. examples to make the but those suffice Limits, in US Inc. v. United States Court held Term Supreme 779, 115 1842, 131 L (1995), 2d 881 Thornton, US S Ct Ed term limits on members of Con provision imposing constitution. cannot be made a state gress properly part (1992) dissent, in Measure 3 According vice I “serves to have tried make— emphasize point that policies very that state officials dif- affecting present state affecting ferent issues than do state offi- policies federal by cials. electors, state and federal officials are chosen same they perform sovereigns. but functions for separate Even if a be state constitution could amended include a provision qualification Congress, on the of members of amendment have that made that would to be adopted separately from one to the qualifications addressed because, of state elected officials as a matter of constitu- structure, tional tally state and federal officials are fundamen- Although policy goal distinct.

two amendments would be the term same—limiting by office of elected Oregon officials electors—the state offi- by policy cials affected would distinct from the fed- eral officials affected policy when viewed terms of and, the structure the state governments and federal con- sequently, the structure of the two constitutions.” 188 Or at 563-64 App (Armstrong, J., dissenting) (emphasis in original). There two with problems argument.

First, the unlawfulness under the United States Constitution of the congressional term limits provision (1992) Measure had do with the court’s deter- nothing mination in Lehman that it was not related to the pro- vision term limits for See imposing Lehman, state officials. (“the 333 Or at 235 fact that section violates the United States Constitution no in our plays role analysis concerning whether its in Measure 3 presence causes that measure to Constitution”). XVII, violate Article of the Oregon Thus, the fact that the voters could not make one of lawfully the changes was not the problem purposes of Article 1.

Second, concern, returning to our broader the dis- sent’s focus is says when it the state officials misplaced affected are not policy from,” App “distinct J., (Armstrong, dissenting), the affected federal officials

552 of the state and fed- in of the structure “when viewed terms of the two the structure and, consequently, eral governments related- Close J., dissenting). Id. (Armstrong, constitutions.” the between relationship in only part ness depends of the con- and existing provisions to the constitution changes consti- to relationship existing of their stitution. Regardless in must, order the themselves changes tutional provisions, to each closely related satisfy other. Before Meas- that point.

Lehman reinforces clearly (1992) no term limit provisions there were adopted, ure 3 was or federal officials. Constitution for either state in the Oregon (1992) there were 3 was adopted, when Measure Although, related to Constitution that in the existing Oregon provisions declined the court expressly officials in other respects, state limits pro- made the term by the to consider whether to those closely preexist- was related for state officials vision close Instead, 248. Lehman, Or at ing provisions. solely by compar- was determined relatedness of the dissent’s Accordingly, at 249. them to each other. Id. ing in the result does not explain close relatedness theory of conclusion that Lehman, not weaken our and it does 3 are not 7 of Measure 3 and effected subsections by to each other. related closely theo- unnavigable rows into other

The dissent also that the sepa- ultimate conclusion its Despite retical waters. relationship on the not focus does rate-vote amendments, initially it multiple policy goals between closely Measure 3 are made suggests a coherent “intended to establish it was related because policy goal.” to address a discrete scheme comprehensive credit, its J., To dissenting). (Armstrong, Or at 565 App to show that that “it is not enough acknowledges dissent later such a purpose.” amendment serve an fact, J., dissenting). (Armstrong, Or at 566 App in close relatedness test for Court rejected Supreme at 242. Lehman, 333 Or explains, the dissent though, point,

At another made it believes terms, why still different Measure says related. It 3 are Measure forfeiture, about civil policy “embodies a series decisions but those decisions are that had to be addressed policy ones forfeiture.” system to establish of civil comprehensive order J., dissenting) (emphasis at 566 App (Armstrong, added). policy That statement embellishes the cohesive Not only choice theme by adding necessity. dimension it of the close does a failed restatement attempt promote it is also Measure 3 did test; factually relatedness inaccurate. to establish a of civil for- purport system comprehensive feiture; instead, targeted components various selectively system an to make more dif- apparent effort forfeiture ficult accomplish. end, a collage dissent’s analysis

flawed restatements of the consti- multiple tutional be in closely related order to scrutiny pass under XVII, Article section they l.14 are well- Although intentioned, we cannot endorse them.

As the court in explained Armatta, a con- proposed stitutional amendment must be in with adopted compliance requirements:

“It long-standing is a principle of law proposed that a con- stitutional amendment adopted must be in compliance with procedures set forth in the Constitution:

“ provisions ‘The of the constitution for its own amend- ment mandatory, are strictly be A must observed. fail- ure in respect amendment, this will be to a proposed fatal notwithstanding may have been submitted to and ratified approved by people. The constitutional upon as binding upon as people legislative assembly, people give and the legal cannot effect to an amendment which was in disregard submitted of the limi- ” * * tations imposed the constitution *.’ 14 explain The principle,” dissent does not how its so-called “structural J., App (Armstrong, relates, all, dissenting), policy goal” if at to its “discrete theory. J., (Armstrong, dissenting). However, attempt Id. at 565 the dissent’s compare reapportionment (2000), measure at issue Baum with Measure id. J., (Armstrong, dissenting), at 569-70 us leads to conclude the two theories amount to different strands of the same notion. Kadderly (quoting Portland, v. Or

Armatta, 327 Or at 284 Armatta)). (1903) (emphasis in Accord 118, 135-36, 74 P 710 compliance ingly, adopted in with 3 was not because Measure requirements 1, we hold that it is XVII, ofArticle section entirety.15 void in its

Reversed. dissenting. ARMSTRONG, J., (2000) majority vio Ballot Measure 3 The holds that Oregon Constitution XVII, lated Article making of the constitution without two or more amendments to the separate submitting to the voters for a each amendment majority Although agree Measure 3 I vote. with I disa constitution, made several substantive gree of the had its conclusion that at least two with they adopted separately related were not to be closely enough because single adopted I amendment. con to be consequently, they and, clude that were related separately. I also conclude have to voted on did not single-subject require complied that the measure with the l(2)(d).2 I would affirm IV, in Article therefore ment judgment that Measure 3 did the trial court’s that declared provision. either constitutional violate majority to make sense I for its effort commend requires sepa- principle section that separate the constitution. amendments to rate votes on guidance provision provides mean- about its text of the little analyt- provide ing, interpreting it little direct and the cases majority help convinced, however, I that the ical either. am provision that have and the cases misunderstands applied it. single-subject unnecessary plaintiffs’ to consider Our conclusion makes l(2)(d). IV,

challenge to Measure 3 under Article section 1, XVII, provides, part: Article section * * * this to the voters of shall be submitted “When two or more amendments election, they submitted that each amendment shall be so state at the same separately.” shall be voted on IV, l(2)(d), part: provides, in Article section proposed shall embrace one “A or amendment to the Constitution law only properly connected therewith.” and matters XVII, 1, Article requires separate amendments to the Constitution be voted on Oregon sepa- are found in state con- rately. Equivalent requirements many stitutions.3 The XVII, provision complements 2, which which governs process by the constitution can be revised. Viewed together, establish a provisions compre- system hensive for altering constitution.

An discrete, amendment involves a circumscribed to the change constitution. It can be proposed by initiative petition by legislative referral. A vote both majority legislature houses of the for the required legislature refer an amendment to the voters for their Or approval. Const, Art 1.§

In contrast, a revision a involves that affects discrete, more than a circumscribed part of the constitution. It can be proposed only by legislature, and it a requires two-thirds vote both houses for it to be referred to the voters for Id. at 2. approval. §

For the work, amendment and revision they necessarily be a require there standard or test by which to determine what constitutes an amendment constitution. Armatta Surprisingly, Kitzhaber, 250, v. (1998), 959 P2d 49 was the first case to establish such a standard and one of the first in the to do so. It is country noteworthy courts in several states have relied on Armatta interpreting in their state comparable provisions constitutions.4

I will discuss Armatta in in this greater detail later opinion. What is important to note here is that it established for two-part test determining proposed whether constitu- tional change constitutes an the test, amendment. Under who draft people amendments and courts that enforce the amendments first must deter- mine whether a proposed amendment makes more than one 3See, Const, 2; Const, e.g., XVIII, 1; Const, X, Cal Art § § Iowa Art Mont Art XIV, 11; Const, IX, 5; Const, XIX, 1; Const, XI, NJ Art § ¶ § NM Art Pa Art 1. § 325, Cooney, 274, See Marshall v. State ex rel. 293 Mont 975 P2d 328-31 (1999); Soaries, 754, (2001); Pennsylvania Cambria v. 169 NJ 776 A2d 763-65 (Pa Society 1999), Commonwealth, Prison v. 727 A2d 634-35 Cmwlth rev’d on (2001). grounds, 526, 776 other 565 Pa A2d 971 does, If it then draft-

substantive constitution. determine ers courts must whether the substantive they changes closely proposed are, then are related. If the adopted properly Con- can as an amendment. amendment be closely versely, related, if the are not substantive properly adopted proposed then cannot be as the amendment an amendment. See id. at 275-77. (1996) violated

Armatta held Ballot Measure the requirement by making the court for the test established more substantive two or closely at 283- related. 327 Or constitution that were not explained why Although in the sub- 85. stantive closely the court Armatta not on which it focused the case were attempt related, id., the court did not to describe see changes that the characteristics of substantive further define enough would related to meet test. to refine or alter the test

The court has since refused Bradbury, v. Armatta, established seeLehman (2002), Although the 37 P3d 989 which makes sense. 240-42, may imprecise, test test is be the best available Armatta implement separate-vote requirement in Article given range the broad of conceivable substantive That means that could be made to the constitution. correctly apply test or that are that court decisions that important guidance provide about the consistent with it will test. applied Oregon have

A cases that review separate-vote requirement suggests that the structure proposed amendment constitution, itself, bears on whether a Oregon complies requirement. Constitution and with the comparable as are other constitutions structured judgments made how dif- that their drafters about because of policies be embodied them. Some ferent, discrete should arbitrary, con- in that the within them are divisions sensibly designed fewer or could have been with stitutions way Nevertheless, in which different subdivisions.5 Constitution, example, subdivision that Article IV of the For many branch, legislative into sections did have to be divided as addresses the it is. as constitutions are on whether a pro- relevant structured bears or multi- amendment constitutes amendment posed single A amendment satisfies the sepa- amendments. ple proposed in rate-vote if it addresses a discrete a requirement that is consistent with the manner in which way comparable have been into discrete in subjects segregated components the constitutions. That means that the of a provisions pro- posed amendment bear a to each relationship close enough to of other a if part single amendment the provisions, when considered could have together, reasonably been included as a single constitutions, in the relevant component the given manner those which constitutions have been divided into discrete components.6

As I will that the explain, of understanding sepa- rate-vote with I requirement and, believe, is consistent in the implicit Supreme Court cases that have -it. applied However, the understanding that I can per- have described best haps be explored through consideration of several hypo- thetical amendments to the constitution.

Assume, for that the example, Oregon Constitution did not have a Bill at its a Rights adoption pro- and that posed amendment add one to it. The sought proposed amendment arguably could the satisfy single-subject requirement in Article IV, l(2)(d), of the constitution because would seek to body add the constitution a of civil liberties guarantees However, the against government. those guarantees traditionally have been embodied in separate that address such free subjects, speech, discrete as religious liberty, right arms, to bear etc. as Consequently, a structure, matter of constitutional the separate-vote requirement would the different to be require guarantees majority suggests design The that or structure consideration constitutional help separate-vote analysis is of little in the seem because constitutions include ingly notes, arbitrary example, provision divisions. It created the that the judicial article, placed XVIII, initial districts was rather in Article the schedule judicial VII, App 549-50, than in Article n 13. The article. See 188 Or majority point. Oregon misunderstands The structure Constitution and comparable proposed provides guidance assessing other constitutions whether separate-vote purposes related for requirement. provide rigid It such an does standard which to make assessment. amendments, done as as was with the separate

submitted federal Bill of Rights. particular same would principle apply to the United themselves. The First Amendment

guarantees religious States Constitution contains several guarantees: and freedom of freedom of and of liberty, speech press, Bill Const, contrast, Oregon I. In assembly. US Amend liberty, contains six on separate provisions religious Rights separate pro and a speech, freedom of separate provision Const, I, 2-8, 26. Or Art assembly. vision on freedom of See §§ Constitution to The decision the drafters liberty, assembly provi separate religious speech, suggests arguably sions the manner did independently signifi to be provision each was understood cant, which suggests aby separate that each be amended

might require provision some However, amendment. the First Amendment provides sensi the various could guarantees for idea that the support Furthermore, in a a bly single be addressed amendment. the that, notwithstanding could made good argument be at some Oregon Rights, of the Bill of least existing provisions closely enough related liberty guarantees of the religious by single so that be or amended a amend they adopted could See and not run afoul of the separate-vote requirement. ment made about the free id. at 2-4. The same could be point §§ id. 26. free See speech and assembly provisions. §§ vein, possible adopt In the same be might in article, a IV, Article legislative amend the constitution’s the separate-vote without violating amendment single however, por- It to address requirement. might possible, on the form and article, tions of that such as the provisions the bills, violating without single of in a amendment adoption because, while there are sev- might That be so requirement. in the con- eral, subject that address that separate provisions 18-22, the different of stitution, IV, aspects see id. at Art §§ enough related the address are without single in a amendment them to be combined sensibly sep- in the the structural embodied with conflicting principle arate-vote requirement. cases are consistent with that under Oregon Newbry, of the Baum v.

standing requirement. 576, 267 (1954), P2d 220 the first case that applied a useful from which to requirement, provides starting point analyze challenge issue. Baum involved a separate-vote to a IV, Oregon 1952 amendment to Article of the Constitution, governs reapportion provision ment of the made a The amendment legislature. They number of substantive to the constitution. included legisla the census used to apportion ture, creation of direct Supreme Court review of reapportion ment a plans, imposition Secretary that the requirement State to do if the fails reapportion legislature legislature so, alteration of the formula which senators and represen tatives are to be a reapportioned, reappor adoption tionment for the plan legislature that took effect in 1954. Or (1952). Const, IV, Art Although the amendment made § those changes, the court rejected the contention plaintiffs section 1, a vote on required separate any of them. The court was to do that. right

The 1859 constitution required legislature itself at reapportion Const, IV, least ten Or Art every years. (1859). However, as of 1952, § had failed for legislature years to reapportion itself, and there apparent was no mechanism which could be enforced. The who people proposed the 1952 amendment to correct sought the problem. Although goal timely valid and obtaining reapportionments of the legislature could have been accom- plished all variety ways, of the amendment represented sensible choices to achieve that sin- gular goal.

More however, the 1859 constitution fundamentally, addressed legislative section. reapportionment single See id. Although the 1952 amendment a more established complex and comprehensive timely reap- scheme to ensure of the portionments the amendment legislature, simply expanded the content of a of the single, discrete component constitution original altering without its essential character that, or function. Furthermore, there is no reason to conclude in light constitution, of the structure of the provisions the 1952 amendment could not have been in sensibly placed words, the sub- of the In other

a section constitution. single were related made the amendment stantive amendment considered to be a closely single enough constitution. a section of the single I have Baum, in However one decision analyzes the Article XVII, result under no doubt that it reached the right XVTI, 1, Article section 1. An interpretation of the 1952 vote on of the any components required separate or no amendment that made little would be an interpretation test that we I am that the why persuaded sense. That is now P2d 1229 394, 999 App in Dale v. 167 Or Keisling, established We 1, wrong. was (2000), to implement changes produced held in Dale that substantive multiple if a vote in related” “closely the enactment of a measure are in favor of the others. favor of one a vote necessarily implies in the test, Id. at 401. Under that many had to have been amendment would have reapportionment for one of them would voted on because a vote separately in Dale because for the others. We erred a vote logically imply of one substantive relationship we focused various of the relationship another without considering recognize we failed to whole, to the and because group on whether the constitution’s structure bears are related to the constitution substantive to constitute a amendment. enough single Armatta, in

The Court has since confirmed Supreme Bradbury, in v. 268-69, Hartung 327 Or at (2001), correctly that Baum was 579 & n 33 P3d 972 under differently decided and not have been decided would in the court established analysis the separate-vote cases. Consequently, Armatta and has applied subsequent must in Armatta established any application principles be consistent with Baum.7 There, is instructive. also Hartung

The decision reapportionment the court a 1986 amendment upheld 1986 amendment in Baum. The section that was at issue later in holding in this case explain 7 I bears on the decision how the Baum J., dissenting). 565-66, (Armstrong, opinion. App at 569-70 this See 188 Or not make that majority with Baum. It does to reconcile its decision makes no effort Baum. be reconciled with effort because its decision cannot 561 v. in McCall holding court’s the codified essentially P2d 223 674-86, 634 Assembly, Legislative the beyond continue whose terms state senators (1981), that plan under a new apportionment that is held first election sen- not elect that did to districts assigned represent must be IV, Const, Art with Or id. Compare ators at that election. 6(1) (1986). that to provide the constitution It also amended § subject are the new districts to assigned the senators who by than districts rather electors of the new to recall by elected. were from which of the former districts electors 6(5) Const, Art Or (1986), with Const, IV, Or Art Compare § (1952). change latter is a substantive change IV, § to the pol- correlated closely choice that is a policy represents senate districts. senators to new to holdover icy assign choice of recall a subject—the also to involve happens That change section addressed another by officials—that elected public II, Article section 18. constitution, of the design sense practical political It makes subject districts are senators to new system assigned so that districts, system of the new but by to recall the electors function if holdover senators were could presumably rather than of their former districts by to recall the electors In other 291 Or at 676-82. McCall, their new districts. See not one that that the made is words, choice policy holding by McCall codify the decision to by was compelled Furthermore, as senators to new districts. holdover assigning pro- the recall structure, design a matter of constitutional of made part have been vision for holdover senators could made could have been IV, was, as it or it of the consti- 18, the recall section II, of Article part test close-relationship of the understanding tution. A proper features of of those import of Armatta must consider the substantive held measure, Hartung because amendment reapportionment made changes imposed to meet the standard enough were related closely requirement. the separate-vote be consid- cases must other separate-vote

Several As them. among prominent ered Armatta is the most as well. (1996), Measure earlier, Armatta held that Ballot noted things, other Among requirement. violated the of the a number measure made substantive provisions Rights. Bill The court concluded Rights existing provisions that serve of the Bill of very groups purposes and affect different different people Armatta, were not that were related. Rights 327 Or at Bill 283-84. That makes sense. The policy embodies a number of distinct choices that are the products very developments. Except different historical provisions Rights other, of the Bill of that are related to each provisions liberty, religious Const, I, such as the Or Art see unlikely §§2-7, it is to two or more Rights closely the Bill changes related of could be considered to be put point because, Lehman, in as the court later changes “it is difficult constitu- to make related unrelated provisions.” Lehman, tional 333 Or at 246. The court subse- quently applied principle League Oregon that Cities v. of (2002), Oregon, 645, 673-74, State 56 P3d 892 Or which it held that an amendment that made substantive changes guarantee expression I, of free in Article sec- guarantee just taking compensation tion and the for property separate-vote in Article violated the I, section requirement. problem.

Lehman involved a different It concerned a (1992), challenge Oregon to Ballot Measure 3 which amended modify a Constitution to establish or term limits for number of elected state officials and for the members Oregon’s congressional regard delegation. to the state With rejected plaintiffs’ that officials, changes court contention legislative that affected and executive officials were unrelated officials in different because involved very government performed func- branches of who different tions. The court were related because held that those imposed original that constitution had several gov- limits of state on elected officials in all three branches suggested, Or 247-48. That as a Lehman, ernment. See affecting matter, structural to the restrictions government elected officials in branches of state different appropriately to each other. could be considered to be related resolve whether

However, the court did not need to sepa- closely purposes those were related requirement. that the rate-vote That is because it concluded the state officials were that affected officials, which the federal related to those that affected require- violated the the measure meant at 248-50. In reaching was invalid. Id. and, hence, ment with the that, provi- noted in contrast conclusion, the court various that established sions in the constitution original officials, provi- there were no for elected state qualifications or lim- that imposed qualifications sions that constitution Instead, the qual- its on federal officials elected from Oregon. Congress ifications and limits that elected to apply people from are found in the federal constitution. Oregon a for that. The state and federal gov

There is reason different entities. With few fundamentally ernments constitute and limit state gov decisions how to exceptions, ernment that the people and its elected officials are decisions contrast, make. In decisions how to consti about tute and limit the federal and its elected officials government are decisions that the entire with country makes. Consistent a decision to a offi point, impose limit on elected state cials different issue from a decision presents very structural limit impose a on elected federal officials. For example, in the decision to term limits on all elected officials impose and executive legislative government branches of state affects both branches of state in a consistent government way. contrast, a decision to term limits on impose only members of affects Oregon’s congressional delegation state Oregon’s members. a which no other Congress and in similar limits on its imposes congressional delegation matters, very which the decision in a seniority places Oregon course, different the United from all other states. Of position Limits, Inc. v. States Court held in U.S. Term Supreme (1995), Thornton, 779, 115 1842, 131 L 514 US S Ct Ed 2d 881 that of Con states cannot term limits on the members impose because lack the to add to the gress authority qualifica For tions in the federal constitution for members of Congress. in the our is that a purposes, important point change elected state Oregon Constitution on the for qualifications officials an issue that and structur presents qualitatively Oregon’s different from a in the ally change qualifications that recognized Lehman congressional delegation. properly fundamental difference. my point understand majority appears noted, U.S.

about Lehman. See 188 Or at 550-52. As App term lim- imposing Limits established that a provision Term made a of part cannot properly its on members of Congress constitution, emphasize point which serves state state affecting state policies I have tried to make—that affecting from those different issues very officials present chosen by officials are officials. The state and federal federal separate functions for electors, but they perform the same be amended if constitution could Even a state sovereigns. of members qualification include a on the provision have would that made that Congress, the amendment qualifi- addressed to the to be from one adopted separately matter of con- because, as a cations of state elected officials are funda- federal officials structure, stitutional state and Although policy goal distinct. mentally term óf same—limiting would be the two amendments state officials elected to office—the public office people federal offi- from the affected would be distinct by policy in terms of the struc- viewed cials affected when by policy and, consequently, federal governments ture of the state and of the relevant constitutions. the structure is Swett v. on the issue The final case that bears (2002). a chal- It involved 43 P3d Bradbury, a number (1998), adopted which to Ballot Measure lenge The court elections. the conduct of on concluding focused on two of those provisions One requirement. measure violated the separate-vote Article II of the constitution amended provisions implicitly requirements finance disclosure campaign new imposing any from more than $500 officials who receive elected public Article IV amended The other provision one contributor. sig- initiative gather who people adding dif- had little The court voters. registered Oregon natures be were not two provisions that those ficulty concluding subjects— different very involved related. The two provisions the qualifica- officials versus conduct of elected public signatures—that solicit initiative tions of who people constitution original articles of the found in two different other in terms to each bear no relationship apparent Or at 608- Swett, See or design. structure 09. case, in this involved the measure

I now turn to will (2000). number of provisions a adopts 3 It Ballot Measure

565 to the property government. that deal with the forfeiture is a rela- a law enforcement tool The use of civil forfeiture as of law has devel- body a Although recent tively phenomenon. use, its concerning over the several decades past oped over has expanded greatly an innovation whose use remains modify to Measure 3 an effort represents 30 past years. such, in As the use of civil forfeiture systematize Oregon. and substantive number of that make provisions it contains a systematic constitution in order to establish a to the (1) that include a on civil forfeiture. They provision policy of crimes and that owners be convicted requires property in their established "to have been instrumental be property of that or the crime or committing facilitating proceeds to the govern- crime” before their can be forfeited property (2) institu- ment, a that seeks to financial provision protect sub- tions and others who have interests that property (3) forfeiture, the forfeiture ject to a that addresses provision (4) that contraband, of unclaimed and a property provision temporar- of the state to retain preserves ability property (5) for a ily evidentiary protective purposes, provision the sale of forfeited and the distribution governs property (6) forfeiture, of the funds from provisions obtained address the manner in which the state deals with the federal (7) forfeiture, a government provision imposes civil who violate penalties against people specified provisions Const, XV, Or Art 10.8 the measure. See § substantive

Because the measure makes several us those constitution, to the the issue for is whether of the sepa- related enough purposes amendment. single rate-vote to be a requirement adopted I are. am persuaded 1952 to the my view, equivalent Measure 3 is sepa- upheld against measure that was

reapportionment a group in Baum. Both measures challenge adopted rate-vote a coherent that were intended to establish provisions The discrete policy goal.9 scheme to address a comprehensive example, provision that provisions, for The measure contains additional 10(2). XV, Const, principles § Art that underlie the measure. See Or states the However, only separate-vote substantive is concerned with constitution, to be consid so not of the measure need all requirement. assessing separate-vote the measure violated the ered whether essentially Supreme majority in Lehman contends that Court analysis rejected approach such a focus. an that embodies reapportionment measure establish a sought system which to ensure of periodic reapportionment the

legislature. The measure embodied a series of policy deci- sions about the manner in which to accomplish but goal, those policy decisions were ones that had to be addressed in order to There accomplish goal. was no reason in terms of the structure of state or the government structure of the con- stitution to require various of that provisions measure to be adopted by votes. separate

The same principles apply to Measure 3. It seeks to establish a comprehensive approach to the use of civil forfei ture as a law enforcement tool.10It embodies a series of policy decisions about civil but forfeiture, those decisions are policy ones that had to be addressed in order to establish a compre hensive system of civil forfeiture. Furthermore, are not that, decisions in terms of the structure of state government or the constitution, structure of the needed to be submitted to separate votes.

Admittedly, Armatta, the measures struck in down League Oregon Cities, Lehman, and Swett sought also to of establish comprehensive systems kind, of some is not so it to enough show that of provisions an amendment serve such a purpose. That showing may satisfy single-subject App majority Or at my point point 552-53. The misunderstands both and the Lehman, which it relies in replace Lehman. In the court said that it would not close-relationship adopted test that it had in Armatta with a test that the state had proposed in proposed Lehman because it did not believe that the alternative test preferable Lehman, reject was to theArmaifa test. 333 Or at 242. Its decision to imply wrong alternative test did not that the alternative test was or that it would every applied. my point, lead to an incorrect am not I in result case in which it was As to I advancing general applied every Instead, separate-vote a test to be in case. Baum analyzing reapportionment upheld and, am amendment in that was light amendment, explaining why supports my of the characteristics of that con- upheld clusion that separate- the forfeiture amendment also should be under the requirement. vote majority disputes comprehensive that Measure 3 established a approach App oper to civil forfeiture. 188 Or at 552-53. Civil forfeiture arose and legal Consequently, necessary ates within an established framework. it is not aspects address all approach comprehensive of civil forfeiture order to establish a existing legal to its use within the structure. The Measure comprehensive Oregon. are in their effect on of civil the use forfeiture telling majority It should be that the makes no effort to reconcile its decision Hartung, upheld in this case with the decisions in Baum and both of meas which ures that involved substantive constitutional that were no more related than are the at issue here. 1(2)(d), but the IV, separate- requirement a different concern. vote addresses requirement concern is best perhaps The nature of the latter here consideration of two through addressed concluding focuses in on which the majority the constitution requirement. Measure 3 violated (1) a of a requirement Those addition the gov- crime in order for owner be convicted property (2) to forfeit the owner’s the addition property ernment used to that funds obtained forfeiture be Although fund treatment 547. drug programs. App vot- those two choices could have been submitted to the policy ers there is no reason to believe that Article separately, 1, was to be require intended them submitted there is no in terms separately. particular, voters reason the of or of the government structure state constitution that a that creates or a source provision regulates conclude must be from a that con- separately provision funds adopted trols the use those funds. The 1984 measure that created lottery, (1984), the state Ballot Measure 4 contained provi- state regulated speci- sions created and the and lottery fied how the raised from the was money lottery spent the state. the of those to the Although combination changes in a constitution amendment has been single subjected a I if believe that such a separate-vote challenge, challenge, I the made, would not succeed. believe that same conclusion in the applies provisions two which focuses majority this case. conclusion, says a different the reaching majority closely at here to be changes issue no more appear changes Lehman,

related than were the at issue which Court held to the separate-vote require- violate Supreme ment. The majority says: changes Lehman,

“If the both of constitutional at issue objective—the of term specific which related to a creation with public nothing limits for officials—had ‘little or to do’ other, Lehman, 250, it is to con- 333 Or at then difficult each changes effected subsec- ceive how constitutional regarded as tions 3 and of Measure could be little, any, relationship There if between logical related. is gives property owner provision subsection right to be may be his or her property convicted of a crime before

forfeited, and which subsection directs and purposes restricts the proceeds for which forfeiture can law- fully be used.” at 547. The App comparison inapt.

As earlier, noted of elected state qualifications officials present different issues in terms of the struc- very ture of state government and of the state constitution from those of the members of Oregon’s congressional delegation. Although term-limits measure to achieve a sought spe- cific the relevant of that measure objective, addressed the of elected qualifications groups two different that, terms, officials in structural and constitutional bore no to each The relationship major- other. on which ity focuses this case are in no sense comparable.

The mistake that makes is to confuse majority the separate-amendment single-subject requirements the constitution. IAs have explained, is concerned with the structure of state requirement govern- ment and the structure of the constitution. Whether two closely related for of that purposes concerns how the fit when viewed in terms together governmental structure. focus is not on whether achieve that are policy goals closely related to each other.

Contrary to the see 188 Or majority’s suggestion, I App 549-50, that an amendment that runs recognize afoul of the run single-subject necessarily will requirement afoul of the because an amend- separate-vote requirement ment cannot that latter if it includes satisfy pro- visions addressed major- to two different What the subjects. fails to ity understand, however, is that the whether question two constitutional are related for of closely purposes the the does not concern whether separate-vote requirement two are but whether closely subjects, related as it closely appropriate are related in a that makes way of the con- them to be included in a discrete single, provision stitution, constitution, itself, in of is structured. light how the and separate-vote require- single-subject focus of the The does majority simply in a that the is different way ments appreciate. of amendment reapportionment

A the comparison here in amendment issue Baum and forfeiture upheld leg- In order to ensure that help clarify point. should a there must be years, is reapportioned every islature also to that that occurs. There mechanism created ensure dif- a to allocate to the legislators must be formula which amend- the state. The 1952 reapportionment ferent of parts It for direct provided Supreme ment addressed both issues. the Sec- required review of reapportionment plans, Court legis- of if the retary adopt reapportionment plan State to a a to a and it formula adopt adopted lature failed to valid plan, state. be used to allocate to different of the legislators parts (1952). IV, See Or Art Const, § isolation, in there is no connec- logical

When viewed on the imposed tion between the constitutional that change of a valid Secretary duty adopt reapportionment State to if the to do so and the constitutional plan legislature failed allo- a formula for the adopted reapportionment Nevertheless, held legislators cation of the state.12 Baum single that those were as of a adopted part properly amendment, closely were which means that That related for purposes separate-vote requirement. conclusion has to be correct. As a matter structure, a in a consti- design reapportionment provision commonly placed tution is the that would type provision of the single Components prop- constitution. to the such a such as those addressed erly comprise provision, mechanisms and formula used to reapportion legislature, for pur- are that are related to each other components requirement. poses forfeiture amend- analysis same to the applies spec- ment. A forfeiture must contain system to ify property interests property words, reapportionment assign the Secre the decision tasks to other tary adopt particular formula for of State had no connection the decision legislators parts state. allocation different proceeds.

forfeiture and the use to be made of forfeiture property Measure 3 addressed both issues. It identified the subject provided property that is to forfeiture and that own- ers prop- must be convicted of a crime in order to have their erty required forfeited. It also that the funds obtained from drug forfeiture be used for treatment. logical

When viewed in isolation, there is no connec- tion change between the requires constitutional that that property owners be convicted of a crime in order for their property subject to be to forfeiture and the constitutional requires proceeds that drug that forfeiture be used for treatment.13 closely Nevertheless, as in Baum, those are purposes separate-vote requirement.

related for ofthe design As a provision matter of structure, property by government addressed to the forfeiture of is type provision commonly placed that would in a sin- gle Components section of properly the constitution. that comprise provision, such a such as those addressed to the conditions under which forfeiture can occur and the use to be proceeds, made of components forfeiture closely are purposes that are related separate-vote to each other for of the requirement. majority suggests The also that the two are closely purposes separate-vote require- related for of they arguably rights

ment because confer or address affect- ing groups people: different determining “In whether the rights related, we also considerwhether affectthe argue logical One could there is a connection between those two light apparent proceeds. source of appears most forfeiture It that most of the funds obtained product from drug-related forfeiture are the offenses. If that true, is then there is some sense proceeds to the idea that forfeiture should be used drug treatment, because the gives treatment would reduce the conduct that rise contrast, to the forfeitures. In there is no tenable connection between the decision lottery to establish a state proceeds lottery and the decision to use the net from the development, yet to fund economic the constitutional amendment that established lottery required lottery development. funds be used for economic See Or (1984). Const, XV, earlier, Art lottery § As noted I do not believe that the amend ment violated the by combining provisions that estab lottery lished provision the state with required lottery funds be used for development. economic applies The same conclusion to the forfeiture amendment. they arguably groups people. do. Sub- Here, different section 3 confers a right property on owners of possible must forfeiture, for whom a criminal conviction precede argua- hand, other forfeiture. Subsection on the bly group,personsreceiving different confersa on a benefit drug treatment.” App majority wrong. provision at 547-48. The proceeds programs that restricts the use of provide drug drug to that forfeiture people treatment does not confer on need who right drug any treatment a to more receive treatment any activity than the creation of a dedicated fund for other rights possible understood to create in the beneficiaries ofthe the majority words, fund. In if correct, other were then highway original lottery creation ofthe trust fund or the fund rights potential created in favor of the beneficiaries of those (or ability potential taxpayers funds. Whatever for that beneficiaries matter) against misap- have to obtain court relief plication equivalent rights funds, of those not do have that are rights people by

to the that are conferred on Rights, type rights Bill of which are the that at were issue in Armatta that led the court to invalidate Measure 40 on separate-vote grounds.14 type rights that, It is the latter as a matter structure, of constitutional are unrelated one consequence, that, another and as a must be addressed through separate amendments. summary, although Measure 3 made a number of Oregon Constitution,

substantive to the those related when evaluated under policies that Article seeks to achieve. majority concluding light The nature of Measure errs otherwise. In of the difficulty concluding

3,1 also have no that 14Contrary majority’s 11, I suggestion, App to the see 188 Or n do dispute people drug judicial that who need treatment could seek relief to enforce provision requires proceeds drug that that forfeiture be devoted to treatment. They relief, taxpayers. My point provision could seek that but so could is that the proceeds right drug that controls the use of forfeiture is not intended to confer a it, right. Nothing treatment on those who need stop and it does not confer such a would reducing existing funding drug the state from treatment in the amount generate drug requirement which forfeitures would funds for treatment. The proceeds drug rights equivalent forfeiture be used for treatment does not create Cities, is, League Oregon rights type those at issue Armatta and guaranteed by Rights. Consequently, that are the Bill of the inclusion of that requirement change does not create a is unrelated requires that forfeitures be based on criminal convictions. single-subject IV, complied in Article with l(2)(d), affirm would of the constitution. I therefore judgment 3 com- that Measure trial court’s that declared

the plied requirements single-subject with of the constitution.

Case Details

Case Name: Lincoln Interagency Narcotics Team v. Kitzhaber

Court Name: Court of Appeals of Oregon

Date Published: Jul 9, 2003

Citation: 72 P.3d 967

Docket Number: 00C-19878; A115401

Court Abbreviation: Or. Ct. App.