Armatta v. Kitzhaber, C-14060

• Decision Date: 25 June 1998
• Docket Number: C-14060
• Court: Oregon Supreme Court
• Parties: Judith D. ARMATTA; Sheriff Stan Robson; Sidney I. Lezak; Stephen Kanter; Jean Tate; Kathleen Hagberg; and Linda Eyerman, Appellants/Cross-Respondents, v. John KITZHABER, Governor of the State of Oregon; Phil Keisling, Secretary of State; and the State of Oregon, Respondents/Cross-Appellants. CC 96; CA A96736; SC S44995.

Page 49

959 P.2d 49

327 Or. 250

Judith D. ARMATTA; Sheriff Stan Robson; Sidney I. Lezak Stephen Kanter; Jean Tate; Kathleen Hagberg and Linda Eyerman, Appellants/Cross-Respondents, v. John KITZHABER, Governor of the State of Oregon; Phil Keisling, Secretary of State; and the State of Oregon, Respondents/Cross-Appellants.

CC 96C-14060; CA A96736; SC S44995.

Supreme Court of Oregon.

Argued and Submitted March 31, 1998.

Decided June 25, 1998.

Thomas M. Christ, ACLU Foundation of Oregon, Inc., Portland, argued the cause for appellants/cross-respondents. With him on the briefs were Carl R. Neil and Katherine A. McDowell, ACLU Foundation of Oregon, Inc., Portland.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for respondents/cross-appellants. On the briefs were Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Rives Kistler, Assistant Attorney General, Salem.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, DURHAM, KULONGOSKI and LEESON, JJ. ^*

CARSON, Chief Judge.

This is a certified appeal involving a direct challenge to the constitutionality of Ballot Measure 40 (1996), ¹ a "crime victims' rights" initiative that was approved by the voters at the 1996 general election. The circuit court enjoined defendants Kitzhaber and the State of Oregon (collectively referred to herein as "the state") from enforcing section (2) of Measure 40, after concluding that that section revised, rather than amended, the Oregon Constitution. The state appealed to the Court of Appeals, which certified the appeal to this court.

As this case is presented to us, the merits of the various policy choices represented by Measure 40 are not at issue. The only question is whether the measure was adopted validly. For the reasons that follow, we conclude that, although it purported to be a single amendment to the Oregon Constitution, Measure 40 contains two or more constitutional amendments that must be voted upon separately under Article XVII, section 1, of that document. We therefore hold that, because the measure does not comply with the requirements for adopting a constitutional amendment, it is invalid in its entirety. We modify the judgment of the circuit court accordingly.

I. PROCEDURAL BACKGROUND

Shortly after the 1996 general election, plaintiffs filed the present action under ORS 28.010 (1995) for declaratory and injunctive relief, seeking a ruling that Measure 40 was unconstitutional. Specifically, plaintiffs contended that Measure 40 violated the Oregon Constitution in three respects: (1) it contained two or more amendments, in violation of Article XVII, section 1; (2) it embraced more than one subject, in violation of Article IV, section 1(2)(d); and (3) it revised, rather than amended, the Oregon Constitution, which, under Article XVII, section 2, cannot be accomplished by initiative petition. Plaintiffs further sought a declaration that defendant Keisling, Secretary of State, violated the law by placing Measure 40 on the ballot and that defendant Kitzhaber, Governor of Oregon, violated the law by proclaiming the adoption of the measure. Finally, plaintiffs sought an injunction prohibiting the State of Oregon from enforcing Measure 40. The state filed an answer, and both sides moved for summary judgment.

In a letter opinion issued on February 5, 1997, the circuit court concluded that section (2) of Measure 40 revised the Oregon Constitution, but that the section was severable. Accordingly, the court severed section (2) and left the rest of the measure intact. On February 19, 1997, the court entered an order and a judgment consistent with its letter ruling as to the validity of Measure 40. The judgment enjoined "[d]efendant Kitzhaber and his subordinates and the State and its subdivisions" from "enforcing or attempting to enforce section 2 of Ballot Measure 40." The judgment concluded, however, that defendant Kitzhaber did not violate the law when he proclaimed the adoption of Measure 40. Finally, the judgment concluded that plaintiffs' claims against defendant Keisling were time-barred and, accordingly, dismissed him as a defendant. ² In June 1997, the court entered a supplemental judgment awarding plaintiffs attorney fees in the amount of $23,677.50.

Plaintiffs appealed to the Court of Appeals, contending that the circuit court erred in concluding that section (2) was severable from the rest of Measure 40 and also erred in rejecting their other substantive challenges to the measure. The state cross-appealed, contending that the circuit court erred in concluding that section (2) revised the constitution. The state further contended that the court erroneously entered an injunction against defendant Kitzhaber and the State of Oregon, and that it erroneously awarded attorney fees to plaintiffs. Shortly thereafter, the state moved to stay or modify the circuit court's injunction concerning the enforcement of section (2) of Measure 40. The Court of Appeals stayed the injunction in August 1997, pending the outcome on appeal. Armatta v. Kitzhaber, 149 Or.App. 498, 943 P.2d 634 (1997).

In early 1998, in response to plaintiffs' motion pursuant to ORS 19.405(1) (1997), the Court of Appeals certified the appeal, and this court accepted it. ORS 19.405(2) (1997).

II. OVERVIEW OF MEASURE 40

Measure 40 was submitted to the voters as an initiated amendment to Article I of the Oregon Constitution. According to its preamble, Measure 40 "is designed to preserve and protect crime victims' rights to justice and due process and to ensure the prosecution and conviction of persons who have committed criminal acts." (Boldface in original.)

The measure contains nine sections. Section (1) lists the following rights to which victims of crime are entitled in all criminal prosecutions and juvenile delinquency proceedings: (1) rights relating to pretrial detention and release of criminal defendants; (2) the right to be notified of certain stages of criminal proceedings and the right to be present and heard; (3) the right to information about the conviction, sentencing, imprisonment, criminal history, and future release of criminal defendants; (4) the right to refuse to participate in criminal defendants' discovery requests; (5) the right to receive prompt restitution; (6) the right to have all relevant evidence admitted against criminal defendants; (7) the right to have criminal defendants tried by a jury composed of jurors who are registered voters and who have not been convicted of a felony or served a felony sentence within the last 15 years; (8) the right to have criminal defendants convicted by a jury vote of 11 to 1 in aggravated murder and murder cases; (9) the right to receive prepared copies of court transcripts; (10) the right to have criminal defendants serve their sentences in full, without such sentences being set aside, except through the governor's reprieve, commutation, or pardon power, or pursuant to appellate or post-conviction relief; (11) the right to have convicted criminals sentenced consecutively for crimes against different victims; (12) the right to joinder of charges against criminal defendants; (13) the right to be consulted during plea negotiations in certain cases; and (14) the right to notification of the foregoing rights as soon as reasonably practicable. Measure 40, §§ (1)(a) to (n).

Section (2) of Measure 40 declares that the rights set out in the measure "shall be limited only to the extent required by the United States Constitution," that Article I, sections 9 and 12, of the Oregon Constitution, "shall not be construed more broadly than the United States Constitution," and that, in cases involving victims, "the validity of prior convictions shall not be litigated except to the extent required by the United States Constitution." Section (3) provides that the measure "shall not reduce a criminal defendant's rights under the United States Constitution, reduce any existing right of the press, or affect any existing statutory rule relating to privilege or hearsay."

Section (4) of Measure 40 declares that the decision to initiate criminal prosecutions or juvenile delinquency proceedings rests with the district attorney and gives the district attorney the authority to assert the rights conferred upon victims in the measure. Sections (5) to (8) define the terms "victim" and "relevant evidence" for purposes of Measure 40, and clarify various matters relating to the rights conferred in the measure. Finally, section (9) states that Measure 40 creates no new civil liabilities.

III. CONSTITUTIONAL CHALLENGES TO MEASURE 40

Because it is dispositive, we first address plaintiffs' contention that Measure 40 contains two or more amendments, which must be voted upon separately under Article XVII, section 1, of the Oregon Constitution.

The people's power to amend the constitution through initiative petition arises under Article IV, section 1, of the Oregon Constitution. In addition, Article XVII, section 1, sets out procedural requirements that apply if the legislature proposes constitutional amendments, as well as other requirements that apply to amendments submitted to the voters by legislative proposal or initiative petition. One of those requirements is that "two or more amendments" must be submitted "separately" to the voters. ³

Plaintiffs contend that, despite the fact that it was presented to the voters in the form of a single constitutional amendment, Measure 40 actually contains "two or more amendments" that the voters must vote upon separately under Article XVII, section 1. The state responds that the separate-vote requirement applies only to legislatively proposed constitutional amendments, not to amendments proposed by initiative. Alternatively, the state contends that Measure 40 contains only one amendment, in compliance with the separate-vote requirement.

A. Application of the Separate-Vote Requirement to Initiated Amendments

We first address the...