STATE еx rel Phil KEISLING, Secretary of State, Plaintiff-Relator, v. The Honorable Albin W. NORBLAD, Circuit Court Judge for Marion County, Defendant.
(SC S40689)
Supreme Court of Oregon
October 21, 1993
317 Or. 615 | 860 P.2d 241
Argued and submitted October 19, peremptory writ of mandamus to issue immediately, in terms consistent with this opinion dated October 21, 1993
Gregory W. Byrne, of Byrne & Barrow, Portland, argued the cause and filed the answering memorandum for defendant.
Henry Kane, amicus curiae, filed a brief pro se.
GILLETTE, J.
Unis, J., specially concurred and filed an opinion.
The Secretary of State seeks a writ of mandamus directing dismissal of an action that challenges the authority of the Secretary of State to place Ballot Measure 1 on the ballot as a single measure in the November 9, 1993, special statewide election. Pursuant to this decision, a peremptory writ of mandamus shall issue immediatеly, granting the relief prayed for.
THE HISTORY OF BALLOT MEASURE 1 AND THIS PROCEEDING
On August 3, 1993, the legislature adopted House Joint Resolution 10 (HJR 10). HJR 10 proposes to amend the Oregon Constitution by adding new sections to it as follows:
Article IX, section 10 , captioned “State Spending Limit“;Article XI, section 11g , captioned “School Property Taxes on Homes Abolished“;Article XI, section 10a , captioned “Limit on Sales Tax Rate“;Article XV, section 4a , captioned “Dedication of One-Half of Lottery Proceeds to Education“;Article XVII, section 3 , captioned “State Spending Limit, Sales Tax Imposed; School Property Tax Rate Limit Implementation Accelerated; Corporate Tax Increased; Personal Income Tax Decreased“; andArticle XI, section 10b , captioned “State Spending Limit, School Property Tax Limit for Homes, Sales Tax and Lottery Proceeds Dedication Repealed Unless People Revote-Reapprove.”
HJR 10 further provides:
“The amendments proposed by this joint resolution shall be submitted to the people for their approval or rejection at a special election held throughout this state as provided in chapter [604], Oregon Laws 1993 (Enrolled House Bill 3677).”
On August 13, 1993, the Legislative Assembly filed HJR 10 with the Office of the Secretary of State.
HB 3677 expressly includes the text of a single ballot title for “the measure referred to in section 1 of this Act [HJR 10].”1 Id. at § 3(1). HB 3677 further expressly provides that “[t]he ballot title prepared under this section shall be the ballot title printed in the voters’ pamphlet and on the ballot.” Id. at § 3(2). That same section mandates that
HB 3677 provides fоr a financial impact estimate process, including a public hearing, and requires the Secretary of State to adopt rules for generating the financial impact estimate. Id. at § 4(1). HB 3677 provides that “[t]he financial estimates prepared under this section shall be the estimates printed in the voters’ pamphlet and on the ballot.” Id. at § 4(2). That same section further expressly mandates that
The rules adopted by the Secretary of State pursuant to section 4 require that that financial impact estimate process, including a period for public notice and public hearing, be completed and that the Secretary of State have certified the financial impact estimate not later than the 71st day before the election, that is, on or before August 30, 1993.
HB 3677 also provides for an explanatory statement process for the measure, with the Secretary of State to establish deadlines for the process, including deadlines for selection of a committee charged with drafting the explanatory statement, for the required public hearing, and for filing of the statement. Or Laws 1993, ch 604, §§ 4(3), 4(4). Unlike the process related to the ballot title and the financial impact estimate for the measure, both of which the legislature has directed are to be placed on the ballot without any judicial review, HB 3677 provides for limited judicial review of the explanatory statement that is not printed in the Voters’ Pamphlet. Id. at § 4(5). Specifically, the statute permits “[a]ny person dissatisfied with an explanatory statement” to challenge the statement in court, with two material limitations. The first limitation is that the challenge must be brought by petition to the Supreme Court; the second is that the challenge must be filed not later than the third calendar day after the filing deadline for the explanatory statement. Ibid.
The temporary rules adopted by the Secretary of State pursuant to HB 3677, section 4, link the timing for the explanatory statement process to the timing for the financial impact estimate process. The Secretary of State must certify the explanatory statement by not later than the 71st day before the election, i.e., on or before August 30, 1993. Temporary Rule 165-07-100(2). The Secretary of State certified the explanatory statement on August 30, 1993. Pursuant to section 4(5)(a) of HB 3677, the period for filing a challenge in this court to the explanatory statement thus expired on September 2, 1993. No petition challenging the explanatory statement was filed in this court.
HB 3677 also requires the Secretary of State to рrepare and deliver to the counties, “by the most expeditious means practicable,” a certified statement of the measure, together with the ballot title and the fiscal impact estimate. Id. at § 7(1).
In summary, HB 3677 precludes judicial review of the ballot title and financiаl impact estimates for HJR 10. Those are the only items that are actually printed on the ballot that the Secretary of State certifies to the counties, along with the ballot measure number. Or Laws 1993, ch 604, § 7(2). To the extent that HB 3677 permits any judicial review related to HJR 10, it provides that a challenge to the explanatory statement is to be brought directly in the Supreme Court by no later than September 2, 1993.
HB 3677 directs, not only that an election be held concerning the ballot measure, but also that the election be held on November 9, 1993. Id. at §§ 2(1), 2(2). Absentee ballots for the election must, by law, be printed by no later than the 45th day before this special election, i.e., September 25, 1993.
On September 22, 1993, Joe W. Foxall, Jr., plaintiff in the circuit court action underlying this mandamus proceeding, wrote a letter to the Secretary of State. In that letter, Foxall stated the opinion that HJR 10 proposes four separate amendments to the cоnstitution and inquired whether the temporary rules adopted by the Secretary of State for the conduct of the November 9 election would provide for voting separately on each of those four sections of HJR 10, as Foxall asserted was required by
“When two or more amendments shall be submitted in the manner aforesaid [including by referral from the legislature] to the voters of this state at the same time, they shall be so
submitted that each amendment shall be voted on separately.”
On September 29, 1993, the Director of the Elections Division of the Office of the Secretary of State replied to Foxall by a letter that stated in part:
“House Joint Resolution 10 (1993) and HB 3677 clearly direct the Secretary of State to place one measure on the ballot, and provides the Secretary of State with one ballot title for this measure. The Secretary of State has no authority to take the аction you request. The rules the Secretary of State adopted to conduct the election carry out the legislative direction to conduct an election on one measure.”
On or about October 3, 1993, Foxall filed a complaint in Circuit Court for Marion County, seeking a judgment declaring that
The first claim is brought pursuant to
Pursuant to
On October 13, 1993, defendant judge, a judge of the Circuit Court for Marion County, denied the Secretary of State‘s motion to dismiss the complaint and granted Foxall‘s motion for a preliminary injunction. The court issued an order enjoining the Secretary of State, pending trial on the merits of Foxall‘s claims, “from submitting the constitutionаl amendments proposed by HJR 10 to the voters as a single measure, as such action would violate
On October 14, 1993, the Secretary of State petitioned this court for either a peremptory or an alternative writ of mandamus, seeking to compel defendant judge to: (1) vacate the order of preliminary injunction; (2) vacate the order denying the Secretary of State‘s motion to dismiss the complaint; and (3) grant the Secretary of State‘s motion to dismiss the complaint. The Secretary of State also moved this court for a stay of the preliminary injunction order.
On October 14, 1993, this court granted the Secretary of State‘s motion to stay the preliminary injunction order. On October 15, 1993, this court issued an alternative writ of mandamus requiring defendant judge to do those things sought by the Secretary of State in the mandamus petition or to show cause why he has not done so, by 3:00 p.m. on October 19, 1993, the time appointed for oral argument on the issue of whether this court should issue a peremptory writ of mandamus.
Also on October 15, 1993, this court directed the following question to the parties in anticipation of oral argument:
“Please be prepared to discuss the timeliness of the filing of plaintiff‘s complaint in the circuit court. Specifically: Did the trial court abuse its discretion in issuing a preliminary injunction, in the light of the limits on judicial review and time-lines in HB 3677 and other applicable time-line requirements, e.g.,
ORS 253.045 , as amended by [Oregon Laws 1993, chapter 713, section 56] (relating to *** absentee ballots). See generally Ellis v. Roberts, 302 Or 6, 725 P2d 886 (1986); State ex rel Fidanque v. Paulus, 297 Or 711, 688 P2d 1303 (1984).”
MANDAMUS IS APPROPRIATE TO REVIEW DEFENDANT JUDGE‘S ACTIONS IN THIS CASE
Although the issuance of a preliminary injunction is a matter committed to the discretion of the trial court, and
A. Alleged failure to state a claim.
The Secretary of State, relator in this mandamus proceeding, argues at the outset that defendant judge should have dismissed the underlying proceedings, because the Secretary of State has no authority by virtue of that officе to interfere with the referral of a measure by the legislature to the people under
At least one general decisional principle also militates against deciding the issue that relator propounds. In order to sustain relator‘s argument, it would be necessary to construe the constitutional powers of a constitutional officer and member of one branch of the government - the Secretary of State - in light of the constitutional powers and prerogatives of a second branch of government - the legislature, as well as to consider the independent constitutional authority of the third branch, the judiciary, to direct executive enforcement of plaintiff‘s asserted constitutional rights under
It is the usual practice of this court to decide controversies before it on subconstitutional grounds, where such grounds are decisionally appropriate, notwithstanding a party‘s desire to frame a case in purely constitutional terms. See Zockert v. Fanning, 310 Or 514, 520, 800 P2d 773 (1990) (“This court decides cases upon subconstitutional grounds, where available, even though litigants argue only constitutional errors.“); State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983) (to the same effect). The reasons for the rule are especially apparent when this court confronts an unnaturally short period of time within which to issue a decision, as in this case. And, although it is true that a constitutional argument aimed at a potentially decisive question can be a particularly
B. Importance of timely electoral challenge.
We begin with a basic principle: Whenever any court is asked to order a change in the election process, especially a late change in a time-sensitive process, extreme institutional caution should be exercised by the judicial branch. See Ellis v. Roberts, supra, 302 Or 6, 12, 16 (rejecting, based on an “untimely” filing, a circuit court challenge based on the “single subject” requirement of
In this case, as in all pre-election challenges to the electoral process, defendant judge was required to consider the timeliness of plaintiff‘s action in considering whether plaintiff was entitled to any relief altering the established electoral process. See State ex rel Bunn v. Roberts, 302 Or 72, 82-83, 726 P2d 925 (1986) (affirming on appeal the dismissal of a mandamus on timeliness grounds even though the trial court relied on other grounds for the dismissal). That is particularly so where the relief sought was within the trial court‘s discretion, as was true with respect to the issuance of a preliminary injunction in the present case.
In State ex rel Fidanque v. Paulus, supra, this court refused to examine the merits of the relators’ assertion that the Secretary of State had a duty before the election to consider a “one subject only” challenge to an initiative under
“In light of the great value ascribed to the exercise of the initiative power by the people, by the Oregon Constitution, and the courts and the substantially negative impact that rushed, last minute reviews would have on the exercise of the
initiative power, this court has been and should be very wary of last minute challenges.
* * * * *
“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
Article IV, section 20 , [of the Oregon Constitution,] should Ballot Measure 8 ultimately be approved, it is not unreasonable to hold that Plaintiff-Relators’ challenge was not timely.” 297 Or at 718-19 (citation omitted).
Every one of the reasons for the holding in Fidanque applies with at least equal force in this case.4 The same value placed on the initiative power in Ellis and Fidanque obviously applies to the coordinate power of the legislature to refer a measure to the people for a vote. Indeed, that value is, if anything, heightened in this case, where the legislature expressly has directed that HJR 10 be submitted to the people at an election on November 9, 1993, and where the executive official in charge of elections, the Secretary of State, has acted to carry out that directive so that nothing material remains to be done by either branch of the government before the election oсcurs.
Defendant judge in this case was asked by plaintiff to enter a preliminary injunction that would materially alter the status quo ante in an electoral process that had begun at least two months before the October 13, 1993, hearing on plaintiff‘s motion for the injunction and that was scheduled to come to fruition in a statewide special election on the measure 27 days later, on November 9, 1993. Pursuant to this court‘s prior directives about the role of the courts in considering pre-election challenges to the electoral process, defendant judge was required to consider, as critical factors in entertaining
Foxall, plaintiff below, asserts that his challenge to Ballot Measure 1 was timely in any event, because he filed his challenge within the 60-day limit permitted by
The circuit court action in Ellis was brought pursuant to
It is clear that several factors formed the basis of the court‘s decision to adopt the 60-day time period as a reasonable one in EllisId. at 17-18. Ellis quoted, at length and with approval, from the court‘s earlier decision in State ex rel Fidanque v. Paulus, supra, regarding the court‘s reasons for extreme caution in entertaining time-sensitive pre-election challenges to the election process. 302 Or at 14-17. The court also emphasized the importance of providing some opportunity for the challenge, taking into account both the time between the certification and the election (15 months), as well as the fact that many members of the public would not necessarily even know of the existence of a proposed ballot measure (much lеss consider a constitutional challenge to it) until the Secretary of State certified a ballot title for the petition. Id. at 14-18. Finally, the court noted all of the foregoing considerations in the context of a decision that it announced six weeks before the relevant election, not the two and one-half weeks available in the present case.
What is striking, in addition to the foregoing analysis, is what the court in Ellis did not say. The court did not say that, treating the action in that case as a petition for judicial review of an order in other than a contested case, such a petition always would be timely. To the contrary, it is clear from that opinion that the requirement of “timeliness” is a principle derived from the fundamental need for the orderly conduct of the election process. Ellis thus stood for the proposition that the maximum amount of time that the complaining parties in that case had in which to file their challenge was 60 days. The case in no sense stood for the proposition that, no matter what the compression in the timelines for conduct of a particular election, a challenge filed within 60 days always would be timely. As an illustration of that point, see State ex rel Bunn v. Roberts, 302 Or 72,
C. August 6, 1993, is the commencement date for determining the timeliness of plaintiff‘s complaint.
In Ellis v. Roberts, supra, this court established a methodology for determining the time period within which a court is permitted to consider a pre-election challenge to the election process in an action for which there is no statutorily prescribed deadline for initiating the action. The court first concluded that such actions must be filed within a “reasonable time.” Ellis v. Roberts, supra, 302 Or at 13-17. Second, the court concluded that “[t]here is a season for each kind of challenge to the Secretary of State‘s administration of the election laws” and procеeded to examine the triggering event for determining the timeliness of the court challenge in that case. Id. at 17-18.
The court in Ellis determined that, in the case of an initiative measure, the reasonable time period for a constitutional “one subject only” challenge to the measure begins to run when the Secretary of State makes the “original constitutional evaluation that is supposed to be the predicate for placing the entire initiative machinery in operation.” Id. at 17. The court, accordingly, held that the triggering event was the certification by the Secretary of State of a ballot title for the petition. Id. at 17-18.
In this case, the equivalent triggering event in the process is easier to determine. Unlike the process in which an initiative petition is submitted by a few people to the Secretary of State for certification, the process leading up to the approval and referral of HJR 10 - the origination process - was quite public. An
Article XVII, section 1 , ended no later than September 12, 1993.
In the absence of any express statutory provision relating to the filing of a court challenge to the placement of Ballot Measure 1 on the November ballot as a single amendment, and having determined that a “reasonable” time period for such a challenge began on August 6, 1993, we next consider what, in this case, is the length of a “reasonable” time within which a challenge must be brought.
In Ellis, the court considered what was a reasonable time period within which the “single subject” constitutional challenge to the Secretary of State‘s acts may be brought. The court concluded:
“[T]he answer to this question necessarily must take into consideration the ballot title preparation process. * * *
“The question boils down to this: How long after the ballot title finally is approved and the public at large presumably becomes conversant with the proposed measure is it reasonable to say that actions like the present one reasonably may be brought?” 302 Or at 18.
As already explained, the court in that case concluded that, given the relatively long periods of time involved, a challenge brought within 60 days of the triggering event would be timely. Id. at 18.
In State ex rel Bunn v. Roberts, supra, this court relied on the methodology established in Ellis v. Roberts, supra, and concluded that there was a five-day deadline for filing a court challenge to the Secretary of State‘s determination that a ballot measure requires an estimate of financial impact. The court based that conclusion on the “inevitably close proximity” between the challenged decision of the Secretary of State and the date of the election at which the ballot measure would be considered and, by analogy, on the five-day statutory deadline for seeking review of an explanatory statement of a ballot measure. 302 Or at 80-82.
We turn, then, to consider how long after August 6, 1993, was a reasonable period of time within which plaintiff‘s court challenge to Ballot Measure 1 could have been brought. In making that determination, we look at other time periods
We already have explained why the 60-day period looked to by analogy and utilized in Ellis v. Roberts is inapposite to the timeliness inquiry in this case. That conclusion is bolstered by the pertinent provisions of HB 3677 with respect to challenges to this particular ballot measure and election process.
HB 3677, which directed the Secretary of State to prepare HJR 10 for a November 9, 1993, special statewide election, became law on August 6, 1993, 95 days before the date set for election. The initial stage of the ballot preparation process was required by law to conclude no later than 61 days before the election, i.e., by September 9, 1993, and, in fact, concluded on September 2, 1993.
HB 3677 expressly precluded judicial review of the ballot title and the financial impact estimate, the only items actually on the ballot, items that ordinarily are subject to court challenge. HB 3677 expressly permitted judicial review only of the explanatory statement, and then only by a petition filed directly in the Supreme Court within three days after the statement was certified. Because the explanatory statement was certified on August 30, 1993, the latest possible date for a challenge to the explanatory statement was September 2, 1993.
The legislature can, within reasonable limits, circumscribe the time and scope of even constitutional challenges to time-sensitive legislation. See Seto v. Tri-County Metro. Transportation Dist., 311 Or 456, 465-66, 814 P2d 1060 (1991) (rejecting a “future-oriented” constitutional challenge as outside the limited scope mandated by the legislature for the court‘s direct review of Tri-Met and LUBA‘s light rail siting decision). The provisions of HB 3677 make clear the legislature‘s general intent regarding the process of submitting Ballot Measure 1 to the voters. First, the election on HJR 10 is to go forward and will go forward on November
In this instance, taking into account the strong policy against last-minute pre-election judicial intervention in a time-sensitive election process, the opportunity that plaintiff and the public had to make an
In light of the foregoing points, and consistent with manifest legislative intent, the trial court‘s decision to grant plaintiff a preliminary injunction on October 13, 1993, was legal error. Under the principles of timeliness just discussed, plaintiff by that time had no right to any pre-election relief in this case.8 Pre-election relief was the only kind sought by plaintiff. Therefore, a peremptory writ shall issue (a) vacating
Peremptory writ of mandamus to issue immediately, in terms consistent with this opinion.
UNIS, J., specially concurring.
I agree, but for different reasons, that a peremptory writ of mandamus should issue (a) vacating defendant judge‘s order granting plaintiff a preliminary injunction and (b) directing that the case be dismissed.1
In my view, defendant judge should have dismissed plaintiff‘s complaint against the Secretary of State that alleged that House Joint Resolution 10 (Ballot Measure 1) contains more than a single proposed constitutional amendment. Plaintiff failed to plead ultimate facts sufficient to state a claim for relief,
State ex rel v. Newbry et al, 189 Or 691, 222 P2d 737 (1950), involved a constitutional amendment proposed by initiative petition. A challenge was brought under
In OEA v. Roberts, supra, this court held that the trial court erred in dismissing an action against the Secretary of State that asserted that the Secretary of State had failed to exercise pre-enactment2 review of an initiative measure for compliance with the single-subject requirement of
No constitutional, statutory, or decisional basis exists for the Secretary of State to conduct pre-enactment review for compliance with the “separate-amendments provision” to proposed constitutional amendments referred under
The Secretary of State‘s authority derives from
“The Secretary of State shall keep a fair record of the official acts of the Legislative Assembly, and the Executive Department of the State; and shall when required lay the same, and all matters relative thereto before either branch of the Legislative Assembly. He shall be by virtue of his office, Auditor of public Accounts, and shall perform other such duties as shall be assigned him by law.”
Nothing in that constitutional provisiоn authorizes the Secretary of State to engage in pre-enactment review of legislatively-referred measures for compliance with
There is another persuasive reason why
Both options give the Secretary of State extraordinary legal and judgmental power and control over the constitutionally reserved legislative power to refer proposed constitutional amendments to the people for their approval. With the first option, the exercise of control is particularly obvious and direct. The Secretary of State would be empowered to veto the legislature‘s order of an election. The Oregon Constitution gives only one executive branch elected official - the Governor - the power to veto legislative acts.
The basic structure of
In sum, because there is no statutory or constitutional authority under which the Secretary of State could perform the acts demanded by plaintiff, plaintiff has no legal basis for the relief sought. Defendant judge should have denied relief.4
Notes
It is interesting to note that this court reaches the same result that I reach, but on the basis of lack of timeliness in plaintiff‘s request for relief, even though both parties assert that plaintiff‘s complaint was timely, and neither party raised or argued the question of timeliness before defendant judge. 317 Or at 627.“When the Legislative Assembly refers a measure to the people, a ballot title for the measure may be prepared by the assembly. The ballot title shall be filed with the Secretary of State when the measure is filed with the Secretary of State.”
“Petitions for review [of orders other than in contested cases] shall be filed within 60 days only following the date the order [from which review is sought] is served ***”
“Jurisdiction for judicial review of orders [in] other than contested cases is conferred upon the Circuit Court for Marion County and upon the circuit court for the county in which the petitioner resides or has a principal business office. Proceedings for review under this section shall be instituted by filing a petition in the Circuit Court for Marion County or the circuit court for the county in which the petitioner resides or has a principal business office.”
Nothing in this opinion should be construed as an expression of this court‘s agreement, or disagreement, with the legal rulings underlying defendant judge‘s decision. The effect of this court‘s ruling is to vacate defendant judge‘s order granting the preliminary injunction and any statements made therein.