Unger v. RosenblumUnger v. Rosenblum
Steven C. Berman, Stoll Stoll Berne Lokting & Shlachter, PC, Portland, filed the petition and reply and supplemental memoranda on behalf of petitioner Unger.
Ann B. Kneeland, Eugene, filed the petition and reply and supplemental memoranda on behalf of petitioners Geddry and Booker.
Jill Gibson, Gibson Law Firm, LLC, Portland, filed the petition and reply and supplemental memoranda on behalf of petitioner Stagg.
Greg Wasson, pro se, Salem, filed the supplemental memorandum on behalf of amicus curiae himself.
Shannon T. Reel, Assistant Attorney General, Salem, filed the answering memorandum on behalf of respondent. Christopher A. Perdue, Assistant Attorney General, Salem, filed the supplemental memorandum on behalf of respondent. Also on the answering and supplemental memoranda were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
LANDAU, J.
The petitions to review the ballot title are dismissed.
Case Summary:
The Secretary of State renumbered Initiative Petition 55 (2016) as Initiative Petition 29 (2018), in accordance with a directive in a trial court judgment, and the Attorney General then certified a ballot title for IP 29 (2018) based on an Appellate Commissioner order in a subsequent appeal of the trial court judgment. Petitioners later sought review of the legal sufficiency of the Attorney General‘s certified ballot title for IP 29 (2018). Held: (1) The Court‘s role in the ballot-title review process is limited to cases in which all relevant statutory requirements have been met; (2) in this case, the failure to comply with statutory requirements was substantial, because no one had filed a prospective petition for IP 29 (2018) or obtained 1,000 sponsorship signatures, and the Attorney General did not prepare a draft ballot title and no one was given an opportunity to comment on it; and (3) with the passage of the deadline for producing initiative petition signatures for the 2016 regular general election, IP 55 (2016) failed.
The petitions to review the ballot title are dismissed.
This case comes to us as a ballot title challenge. But, because of its unusual procedural posture, we asked the parties for briefing on our authority even to undertake it. In brief, the issue is this: Does the Oregon Supreme Court have authority to consider a ballot title challenge if the underlying initiative measure has not satisfied all the statutory prerequisites for obtaining a ballot title in the first place? For the reasons that we spell out in this opinion, the answer to that question is no. We therefore dismiss the ballot title challenge without addressing its merits.
I. OVERVIEW OF OREGON‘S INITIATIVE PROCESS
We begin with an overview of the initiative process, to provide context for the facts of this case and our disposition of the issue we have mentioned.
The Oregon Constitution places a number of requirements and conditions on the exercise of the initiative power. First, a measure may not be submitted to a vote until supported by a petition signed by a specified number of qualified voters equal to a percentage of the total number of votes cast for all candidates for governor at the last election at which the governor was elected to a four-year term; the percentage depends on whether the measure is statutory or constitutional.
The constitution also imposes limitations on the exercise of the initiative power when it is used to amend the constitution. Of relevance to this case,
The constitution expressly authorizes the legislature to prescribe “[t]he manner of exercising” the initiative power by “general laws,” that is, by statutes.
In brief, the law requires that individuals who propose a statewide initiative measure, known as “chief petitioners,” file with the Secretary of State a “prospective petition,” which consists of the text of the proposed measure along with the signatures of at least 1,000 electors.
Electors who previously commented on the draft ballot title and who are dissatisfied with the certified ballot title may seek review in the Supreme Court.
The Supreme Court reviews the Attorney General‘s certified ballot title to determine whether it substantially complies with the statutory requirements as to its form and content.
During the ballot title process, the Secretary of State reviews the prospective petition for compliance with the requirements of
Although an initiative petition may be filed at any time, once it has been filed, a number of deadlines come into play. Those deadlines are of two types. First, there is a sequence of deadlines that are defined from the date of the filing itself and from various stages in the process from that step forward. Once the Attorney General receives a copy of the prospective petition, for example, he or she has five business days in which to provide a draft ballot title.
Second, other deadlines are imposed by reference to the date of the regular general election. According to
II. FACTS
With that background in mind, we turn to the facts. Although undisputed, they are unfortunately somewhat complex. On September 22, 2015, chief petitioners Geddry and Booker filed a prospective initiative petition with the Secretary of State for inclusion on the November 2016 general election ballot. The secretary assigned the prospective petition an identification number, IP 55 (2016). The details of the measure itself are not relevant to this opinion; suffice it to say that, if adopted, it would have amended
The secretary verified the sponsorship signatures and then forwarded the text of IP 55 (2016) to the Attorney General for drafting of the ballot title. The Attorney General issued a draft ballot title on March 3, 2016.
At the same time, the secretary solicited comments on whether the text of IP 55 (2016) complied with the constitutional requirements for proposed initiative petitions. The Attorney General opined that the proposed initiative did not comply with the constitutional procedural requirements of
Chief petitioners Geddry and Booker initiated an action in Marion County Circuit Court, on May 31, 2016, requesting judicial review of the Secretary of State‘s refusal to certify IP 55 (2016). On July 8, 2016, the deadline for submitting a petition with constitutionally required signatures for the November 2016 election passed. Four months later, the November 2016 election was held. Six months after that, on May 4, 2017, the trial court entered a general judgment declaring that IP 55 (2016) did, in fact, satisfy “all procedural constitutional requirements,” contrary to the determination of the secretary.
Of course, the problem was that both the constitutional deadline for submitting initiative petition signatures and the November 2016 election itself had already passed by that time. The trial court nevertheless ordered the Secretary of State simply to assign a new initiative petition number to IP 55 (2016) for the November 2018 election cycle and to certify that the measure complied with constitutional procedural requirements—in effect, to pick up where the measure would have been had the secretary certified the measure back in 2016, only now in the 2018 election cycle.
The Secretary of State appealed the trial court‘s judgment, and that appeal currently is pending before the Court of Appeals in Geddry v. Richardson (A164828). The secretary also sought a stay of the trial court‘s judgment. The Appellate Commissioner issued a stay, but he imposed several conditions. One of the conditions was that the Attorney General issue a certified ballot title, which any elector who had earlier submitted comments on IP 55 (2016) could challenge before this court.
The Secretary of State assigned a new number to IP 55 (2016). The measure is now known as IP 29 (2018). The text of IP 29 (2018) is the same as IP 55 (2016). No chief petitioner filed a new petition with the secretary.2 No one submitted 1,000 sponsorship signatures in support of the measure as a prospective petition. The Attorney General did not issue a draft ballot title for comment. No notice was sent out, and no new comments were received. The Attorney General simply certified, as instructed by the Appellate Commissioner, a ballot title for IP 29 (2018) on the basis of comments that had been submitted back in 2016.
Petitioners Unger and Stagg, who submitted comments on the Attorney General‘s draft ballot title in 2016, along with chief petitioners Geddry and Booker, now seek review of the legal sufficiency of the certified ballot title for IP 29 (2018). In response, the Attorney General suggested that this ballot title proceeding was not properly before us, because the expiration of the deadline for submitting initiative petition signatures on IP 55 (2016) had passed, which, in effect, killed the measure and mooted any claims about its constitutional significance. We perceived an additional potential impediment to our review of the dispute concerning the adequacy of the ballot title for IP 29 (2018). Accordingly, we requested simultaneous briefing from the parties to address two questions:
“(1) The Supreme Court‘s authority in ballot title review proceedings is limited. See Sizemore v. Myers, 327 Or 71 (1998) (“[T]his court‘s authority to review a ballot title extends only to those cases in which the statutory prerequisites to review have been satisfied.“). Have the statutory prerequisites to review been satisfied with respect to the proposed initiative petition that has been renumbered and designated as initiative petition (IP) 29 (2018)?
“(2) Does the disposition of the case currently pending before the Court of Appeals with respect to IP 55 (2016),
Geddry v. Richardson (A164828), bear on this court‘s authority to address IP 29 (2018)?”
In response to those questions, the Secretary of State takes the position that this court lacks authority to address the legal sufficiency of the ballot title for IP 29 (2018), because none of the statutory prerequisites have been satisfied. The secretary points out that no new measure was filed and no sponsorships were gathered for a 2018 initiative petition. Instead, the earlier measure, IP 55 (2016) was simply renumbered, in accordance with the trial court‘s instruction. The secretary urges us to dismiss this ballot title proceeding. In the alternative, he suggests that we hold this proceeding in abeyance pending the outcome of the Court of Appeals matter in Geddry v. Richardson (A164828).
Petitioner Unger likewise argues that, once the deadline for submitting signatures on a measure for a particular election has passed, that measure is dead. He contends that, if chief petitioners wish to place IP 29 (2018) on the ballot for the November 2018 election, they need to file a new petition, collect the required number of sponsorship signatures, and begin the process anew for the current two-year election cycle. He asks us to dismiss this proceeding. Petitioner Stagg also argues that we lack authority to review the sufficiency of the ballot title for IP 29 (2018), because no such petition ever has been filed with the Secretary of State.
Chief petitioners Geddry and Booker contend that all statutory prerequisites have been satisfied to authorize this court to review the ballot title for IP 29 (2018). In so contending, however, they mention only the statutory provisions pertaining to Supreme Court review, namely,
III. ANALYSIS
This court has explained that the ballot-title review process is entirely a “creature of statute” and that the court‘s role in that process is limited to cases in which all relevant statutory requirements have been met. Sizemore v. Myers, 327 Or 71, 74, 957 P2d 577 (1998), is directly on point. In that case, an elector petitioned this court to review a ballot title that had been certified by the Attorney General. The problem was that the petitioner had failed to notify the Secretary of State of the petition in a timely manner, as required by statute.
This court concluded that the failure to comply with the statutory notice requirement was not, strictly speaking, “jurisdictional,” but it nevertheless required dismissal:
“Ballot title proceedings are entirely a creature of statute. A party‘s right to review, the bases on which it can be obtained, the grounds on which an objection to a ballot title may be sustained, and the scope of this court‘s authority to modify a ballot title are prescribed by statute. * * * Thus, this court‘s authority to review a ballot title extends only to those cases in which the statutory prerequisites to review have been satisfied.”
Id. at 74 (emphasis added). The “statutory arrangement” for obtaining a ballot title, the court emphasized, amounted to “limits on its authority.” Id. at 75. Because it was undisputed that the petitioner had failed to comply with one of the statutory prerequisites to ballot-title review,
To the same effect is Mabon v. Myers, 329 Or 1, 6, 984 P2d 278 (1999). Citing its decision in Sizemore, the court again dismissed a ballot title proceeding when a petitioner failed to satisfy statutory notice requirements.
In a related vein, in Girard/Edelman v. Myers, 334 Or 114, 45 P3d 934 (2002), the court refused to correct an error in a ballot title that the Attorney General identified, because no one had raised the error with the Secretary of State, as required by
From the foregoing authorities this much is clear: If a petitioner fails to satisfy the statutory prerequisites for ballot-title review, this court lacks authority to proceed. The question remains, however, whether the statutory prerequisites for ballot-title review include any and all steps that precede this court‘s review or are limited solely to those requirements and conditions that follow the Attorney General‘s issuance of a certified ballot title. That is a question of statutory construction, which we resolve by examining the text of the relevant statutes in context, along with any pertinent legislative history, relevant case law, and other aids to construction. State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009). Especially relevant to this proceeding is the principle that we do not consider the meaning of a statute in a vacuum; rather, we consider all relevant statutes together, so that they may be interpreted as a coherent, workable whole. Lane County v. LCDC, 325 Or 569, 578, 942 P2d 278 (1997) (“[W]e construe each part [of a statute] together with the other parts in an attempt to produce a harmonious whole.“).
With that principle in mind, the answer is straightforward. The various requirements set out in
The various stages in the process are interconnected in other ways, as well.
In sum, it is the entirety of the statutory process that is relevant to determining this court‘s authority to engage in ballot title review, not the specific requirements of
Whether that means that any failure to comply with statutory requirements—no matter how arguably trivial in that larger statutory scheme—we leave for another day. In this case, the failure to comply with statutory requirements was substantial. Although the Attorney General certified a ballot title, none of the statutorily required prerequisites to taking that action had been satisfied. No one filed a prospective petition for IP 29 (2018). No one obtained the required 1,000
Chief petitioners Geddry and Booker insist that all statutorily required prerequisites have, in fact, been satisfied in that they filed a prospective petition for IP 55 (2016), obtained the requisite number of sponsorship signatures for that measure, and obtained a draft ballot title from the Attorney General on which public comments were received. Their argument, however, rests on the premise that it is of no moment that the constitutional deadline for supplying initiative petition signatures on that measure passed last year, as did the election itself in November 2016. As chief petitioners see it, IP 55 (2016) is in actuality the measure before us; it has simply been given a new number. According to chief petitioners, nothing in the law constrains them to complete the process within any particular two-year election cycle.
Chief petitioners are mistaken in their understanding of how the initiative process works. Taken together, the statutory and constitutional process that we have described contemplates that it must be completed by the prescribed deadlines in reference to each “regular general election.” In the phrasing common to this area, that is referred to as an “election cycle.” A measure filed in an election cycle must satisfy all statutory and constitutional requirements and be placed on the ballot in that election cycle. Thus, for example, if the proponents of a given measure fail to collect the required number of signatures by the constitutional deadline of four months before the next regular general election,
That is certainly the way that this court has construed the law. It has concluded, for example, that challenges regarding the certification of a measure become moot once the election cycle for that measure has passed. On point in that regard is Kerr v. Bradbury, 340 Or 241, 131 P3d 737 (2006). In that case, the Secretary of State had approved an initiative petition, but plaintiffs sought judicial review, asserting that it failed to comply with the “full-text” requirement of
The same thing happened in Dale v. Bradbury, 330 Or 567, 10 P3d 944 (2000). In that case, the Court of Appeals determined that an initiative measure violated the separate-amendment requirement of
That is also, it bears noting, the way that the Secretary of State has interpreted the law. The State Initiative and Referendum Manual—which the secretary adopted as an administrative rule, OAR 165-014-0005—plainly provides:
“To ensure uniformity within a petition cycle and to avoid voter confusion only one petition cycle will be approved for circulation during a two year period. Approval to circulate for the 2018 cycle will not be given until after July 8, 2016, the deadline to submit signatures for the 2016 General Election.”
Interpreting the law in that way only makes sense. In fact, a number of anomalies would attend reading the law as chief petitioners propose. Take this case, for example, in which the Attorney General certified a ballot title for IP 29 (2018) based on comments that had been submitted concerning IP 55 (2016), which had been circulated the year before. In fact, no one has yet had an opportunity to comment on IP 29 (2018). Moreover, the process of simply renumbering the measure and certifying it on the basis of comments from the last election cycle precludes any electors who have more recently become eligible to vote during the intervening period from participating in the process. Likewise, it forecloses anyone from taking into account any intervening changed circumstances or modifications to relevant law. We find it highly unlikely that the legislature and the framers of
Chief petitioners have not cited any rule, statute, or constitutional provision suggesting that proponents of a given measure have an indefinite amount of time to complete the initiative process, and we are aware of none. In fact, the tightly crafted, interconnected series of deadlines that we have described strongly declares the contrary to be the case. Thus, to the extent that chief petitioners contend that they have fully complied with all statutory prerequisites to ballot title review based on their efforts with respect to IP 55 (2016), that contention is unavailing, because, with the passage of the deadline for producing initiative petition signatures for the 2016 regular general election, that measure failed.
It could be argued that our decision in this case necessarily means that the trial court erred in ordering the Secretary of State to assign a new initiative petition number to IP 55 (2016) and approve the renumbered measure for circulation, long after the deadline passed for submitting signatures for the 2016 election cycle, which effectively determines the issues currently pending before the Court of Appeals in Geddry v. Richardson (A164828). That may be. But, as this court explained in Crew/Garcia v. Myers, 336 Or 635, 638 n 3, 89 P3d 1181 (2004), “it is this court‘s obligation to assure itself in each case that it in fact has the authority to proceed.” In this case, for the reasons that we have given, we do not have authority to proceed.
In short, although the Attorney General issued a certified ballot title, the fact remains that a number of statutory prerequisites to this court‘s review of the legal sufficiency of that ballot title have not been satisfied. We therefore lack authority to proceed.
The petitions to review the ballot title are dismissed.