STATE ex rel FIDANQUE et al, Plaintiff-Relators, υ. PAULUS, Defendant, KOUNS, Intervenor.
(SC S31002)
Supreme Court of Oregon
Argued and submitted August 27, writ dismissed September 5, 1984
711 | 688 P2d 1303
Virginia Linder, Assistant Attorney General Salem, argued the cause and filed Motion to Dismiss Alternative Writ of Mandamus and Memorandum for defendant. With her on the the Motion and Memorandum were Dave Frohnmayer, Attorney General, James E. Mountain, Jr., Solicitor General, John A. Reuling, Jr., Special Counsel, and Robert M. Atkinson, Assistant Attorney General, Salem.
John C. Bradley, Portland, argued the cause and filed briefs on behalf of Intervenor Robert Kouns.
CAMPBELL, J.
Lent, J., concurred and filed an opinion.
Linde, J., dissented and filed an opinion in which Roberts, J., joined.
CAMPBELL, J.
This is a mandamus proceeding over which this court took original jurisdiction pursuant to Article VII, (Amended), section 2, of the
Plaintiff-Relators allege that the Secretary of State breached her constitutional duty by certifying a prospective petition and allocating to it a ballot number in violation of the single issue requirement of
On September 28, 1983, a prospective petition that eventually became Ballot
On October 21, 1983, the Secretary of State issued a press release describing the proposed initiative. The ballot title was appealed to this court on November 9, 1983, and on January 24, 1984, this court certified a modified ballot title. Wells v. Paulus, 296 Or 338, 675 P2d 482 (1984). On July 20, 1984, the Secretary of State, after verifying that sufficient signatures had been collected, assigned Ballot Measure Number 8 to the initiative petition. On August 8, 1984, plaintiff-relators filed an application and petition for writ of mandamus in this court.
Plaintiff-Relators allege that the 1968 amendment of
limitation on the exercise of the initiative power and created a new duty for the Secretary of State, neither concept heretofore having been part of Oregon‘s initiative process. Plaintiff-Relators rely specifically on the following two sections of
“An initiative petition shall include the full text of the proposed law or amendment to the Constitution. A proposed law or amendment to the Constitution shall embrace one subject only and matters properly connected therewith.”
“Initiative and referendum measures shall be submitted to the people as provided in this section and by the law not inconsistent therewith.”
Plaintiff-Relators contend that the addition of
Assuming for the sake of argument that a duty was created, the issue then becomes at what point the Secretary of State is charged with the performance of that duty.
“(1) Before circulating a petition to initiate or refer a state measure under section 1, Article IV, Oregon Constitution, the petitioner shall file with the Secretary of State a prospective petition. The prospective petition for a state
measure to be initiated shall contain a statement of sponsorship signed by at least 25 electors. The Secretary of State shall date and time stamp the prospective petition,
“When an approved prospective petition for a state measure to be initiated is filed with the Secretary of State, the secretary immediately shall send two copies of it to the Attorney General.”
Plaintiff-Relators argue that the Secretary of State breached her duty on July 20, 1984 when she certified the petition and assigned to it a ballot measure number. However, in light of the statutes and existing caselaw, we hold that if the Plaintiff-Relators’ allegation that a duty was created is correct, that duty would have been breached when the prospective petition was approved under
In Holmes v. Appling, 237 Or 546, 554-55, 392 P2d 636 (1964), this court addressed the issue of when the duty of the Secretary of State to determine his constitutional authority arose. In Appling, Plaintiff-Relators were attempting to force the Secretary of State to furnish a ballot title for a proposed law. The Secretary of State refused to furnish the ballot title “because he had been advised by the Attorney General that the petition proposed a new constitution or a revised constitution and that the initiative power reserved to the people to amend the constitution does not permit the submission to the people of a revised or new constitution and that he was acting upon such advice.” Id at 548.
In essence, the Appling court said that the Secretary of State had the initial duty
The Appling court recognized that while neither the court nor the Secretary of State could review the merits of the proposed initiative for its constitutionality before enactment, the Secretary had an affirmative duty to determine whether the constitution granted the authority to approve the proposed initiative and to place it on the ballot in the first place. The distinction drawn by Appling is between the substantive initiated measures to the people begins. If the Secretary of State has made an error in determining the extent of her constitutional authority, the clock for timeliness of review begins ticking at this initial step.
The next step is issuance of the ballot title. This is the second discrete step in the submission process. That decision is also reviewable by the court and any challenge must be made within 20 days or the right to challenge is lost. That was in fact done with respect to the ballot measure in question here. Wells v. Paulus, 296 Or 338, 675 P2d 482 (1984).
The third discrete step in the submission process is the verification of signatures and certification of the measure for ballot. Again, but not until the action is taken by the Secretary of State, the process is open for court review of the action taken. State ex rel Sajo v. Paulus, 297 Or 646, 688 P2d 367 (1984).
Therefore, in the submission process, a series of decisions must be made. As each decision is made, it becomes susceptible to challenge.
validity of the measure proposed and the attempt to use the initiative process for an invalid purpose.
Assuming a duty was created by the 1968 changes, then the court must examine if the extraordinary remedy of a writ of mandamus is appropriate in light of the facts in this case. “A writ of mandamus * * * is not awarded as a matter of right, but on equitable principles.” Buell v. Jefferson County Court, 175 Or 402, 410, 152 P2d 578, reh den 154 P2d 188 (1944). State v. Reid, 207 Or 617, 631, 298 P2d 990 (1956); Lafferty v. Newbry, 200 Or 685, 702, 268 P2d 589, (1954). Further, mandamus “is an extraordinary remedial process which is awarded not as a matter of right, but in the exercise of a sound judicial discretion ***.” Buell, 175 Or at 408.
This court has long recognized that the concept of laches applies to writs of mandamus:
“Laches is a bar to mandamus, and a petitioner desiring to avail himself of the benefits of such a writ must act promptly: [citation omitted]. * * *.”
Paine v. Wells, 89 Or 695, 703, 175 P 430 (1918); Buell, 175 Or at 410.
When looking at the facts in this case, the breach of duty, if any, initially occurred on or about October 6, 1983, when the Secretary of State referred the petition to the Attorney General for a ballot title. In Buell, we stated:
“An application for the writ should be made seasonably and within a reasonable time after the alleged default or neglect of duty. Delay which has been detrimental or prejudicial to the rights of the defendant or others interested may be sufficient cause for denial of the writ. Every case must be considered on its own particular facts: 35 Am. Jur., Mandamus, §312, page 65.”
Also, the Buell court indicated that there should be a good reason for not instituting an action at an earlier time stating: “No reason is set forth in the alternate writ for the plaintiff‘s not having instituted the proceeding at an earlier date.” Id at 410. The Paine court stated very clearly the requirement for speedy action on the part of the relator:
“It is well settled that the application for a writ of mandamus must be made within a reasonable time after the alleged
default or neglect of duty, and that laches or delay in making an application unless satisfactorily explained may afford sufficient cause for its denial, particularly when the delay has been prejudicial to the rights of the respondent.”
89 Or at 703. See also State ex rel Redden v. Van Hoomissen, 281 Or 647, 576 P2d 355, reh den 282 Or 415, 579 P2d 222 (1978).
Besides being prejudicial to the defendant6 and the petition circulators, such delay puts an unreasonable burden on the
If we ultimately allow preelection review under the “single subject only” language of
In view of the presumption favoring the exercise of the initiative power, the lack of any adequate reason given by the Plaintiff-Relators for their delay in making this challenge until the eleventh hour and the potential availability of post-election challenge under
Writ dismissed.
LENT, J., concurring in the result.
I agree with the majority that the alternative writ should be dismissed, but I disagree with the reason. Because of time constraints, I do not develop the reasons for my conclusions of law.
I would hold that there was no “proposed law” within the meaning of
I would further hold that under
I believe that the proposed law involved herein does “embrace one subject only and matters properly connected therewith.” (Emphasis added.)
LINDE, J., dissenting.
The Court holds, and I agree, that the first time to challenge the Secretary of State‘s decision that a proposed initiative petition in legally proper form is when she submits the proposal to the Attorney General for preparation of a ballot title, assuming that the Secretary of State may reject a legally improper petition at all. This first occasion, however, is not also the secretary‘s last occasion to decide whether a proposed initiative measure should be placed in the ballot. I therefore dissent from the holding that the present challenge came too late.
I.
The challenge to the legal form of the initiative petition in this case is based on
This is a new issue on which this court‘s prior decisions are not conclusive. It arises because
Before 1968, the constitutional provision for initiative petitions did not contain a one-subject rule. It has been assumed that once a measure was enacted by the people, it would be tested under the one-subject rule applicable to all statutes under
In 1962, the Commission on Constitutional Revision made two recommendations concerning the one-subject rule. The commission proposed that
A “bill” is a proposed law, not a law. An initiative petition also is a “proposed” law by the words of the constitution itself. The purpose of the changes recommended in the Revised Constitution is apparent from the substitution of “bill” for “act” and the insertion of “proposed law” in the
article dealing with initiative petitions. This apparent purpose is to move the time for scrutinizing the validity of proposed legislation forward into the legislative process, not leave it to be scrutinized after that process is over.
The rule limiting proposed laws to one subject is not concerned with constitutional limitations on the substance of public policies, such as tax limitations or the guarantees of individual rights. It is concerned with the lawmaking process itself. It aims to enhance the likelihood that distinct policies will be judged rationally on their individual merits rather than being packaged to attract support from legislators or constituencies with special interest in one provision and no worse than indifference toward other unrelated ones.
Once the legislative process is completed, however, it is at least debatable whether an otherwise valid provision of law should be vulnerable to challenge years after enactment, by someone whose personal interest is not in the political process but in escaping the effect of the law. That is the effect of present
The Revised Constitution was not enacted. But in 1967, the Legislative Assembly submitted, and the voters in 1968 adopted, a new text for the initiative provisions of
II.
I agree with petitioners and with intervenors that the court should not postpone deciding that issue until a possible
later challenge. I disagree with respondent that a decision at this stage would be an interference with the public‘s right to initiate legislation. This measure may satisfy the one-subject rule, although no one besides Justice Lent reaches that issue today. But if a proposal does violate the constitutional rule, it is no advantage to the public to learn this after all the time and effort to obtain its enactment rather than earlier. The one is no more an interference with the right to submit valid initiative measures than the other, and the earlier decision may even come in time to correct a fatal flaw.
Because a proposed law that contains more than one subject is not a legally proper initiative petition, the responsible officials must determine whether or not it is eligible to go through the initiative process. The statutes do not assign the courts a direct role in that determination, as they do in reviewing ballot titles or explanatory statements for the voter pamphlet. See
Under the statutes, the chief elections officer is the Secretary of State, respondent in this case.
Normally the manner and timing of judicial review is itself prescribed by statute.
“A person adversely affected by any act or failure to act by the Secretary of State or a county clerk under any election law, or by any order, rule, directive or instruction made by the Secretary of State or a county clerk under any election law, may appeal therefrom to the circuit court for the county in which the act or failure to act occurred or in which the order, rule, directive or instruction was made.”
The statute does not prescribe a time or procedure for such an “appeal,” although the provision of subsection (3) that the courts may give precedence to such appeals suggests that they should be expeditious. I do not disagree with the Court that the secretary‘s initial decision to approve or not to approve a prospective initiative petition for transmission to the attorney general may be an occasion for judicial review.1 Thereafter, however,
The present proceeding, of course, was not brought under
The Court might well have denied the petition for the discretionary writ and left the issue for later resolution if the proposed measure passes. But having issued the alternative writ, in my opinion it should reach the merits. For that reason, I dissent.
Roberts, J., joins in this dissent.