Bowers v. Betschart

• Decision Date: 14 July 2021
• Docket Number: A167596
• Citation: 496 P.3d 1034,313 Or.App. 294
• Parties: Lynn BOWERS, Katja Kohler Gause, and Tao Orion, Plaintiffs-Appellants, v. Cheryl BETSCHART, in her official capacity as Lane County Clerk, Defendant-Respondent, and Stanton F. Long, Intervenor-Respondent.
• Court: Oregon Court of Appeals

313 Or.App. 294

496 P.3d 1034

Lynn BOWERS, Katja Kohler Gause, and Tao Orion, Plaintiffs-Appellants,

v. Cheryl BETSCHART, in her official capacity as Lane County Clerk, Defendant-Respondent,andStanton F. Long, Intervenor-Respondent.

A167596

Court of Appeals of Oregon.

Argued and submitted August 13, 2019.

July 14, 2021

David Meek argued the cause and filed the briefs for appellants.

J. Aaron Landau, Eugene, argued the cause for respondent Stanton F. Long. On the brief were William F. Gary, Sharon A. Rudnick, and Harrang Long Gary Rudnick P.C.

Stephen E. Dingle and Office of Lane County Counsel for respondent Cheryl Betschart joined the brief of respondent Stanton F. Long.

Before DeHoog, Presiding Judge, and Mooney, Judge, and Kamins, Judge.^*

DeHOOG, P. J.

After gathering the requisite number of voter signatures, plaintiffs submitted to the Lane County Clerk (defendant) an initiative petition that proposed to amend the Lane County Charter. Following a pre-election review, defendant concluded that the initiative failed to comply with ORS 203.725(2), a statutory "separate-vote" requirement applicable to county charter amendments; defendant therefore declined to put the proposed measure on the ballot. Plaintiffs now appeal a circuit court judgment dismissing their claims that defendant's refusal to put the measure on the ballot was unlawful, which the court entered upon granting intervenor's motion for summary judgment. Plaintiffs argue that the court erred in upholding defendant's conclusion that the disputed ballot measure failed to comply with the separate-vote requirement; plaintiffs separately argue that, even if the court correctly concluded that the proposed measure did not comply with ORS 203.725(2), defendant violated the Oregon and United States constitutions in various ways by complying with that statute. Intervenor disagrees on the merits and also asserts that this appeal is moot.¹

As we explain below, we agree that this case is moot. However, we nevertheless exercise our discretion under ORS 14.175 to review the issues of public importance that plaintiffs’ challenges raise. On the merits of those challenges, we conclude that defendant correctly reviewed the proposed amendment for compliance with the separate-vote requirement before submitting that measure to the voters and that the statutory separate-vote requirement of ORS 203.725(2) does not conflict with the state or federal constitutions in any of the ways identified by plaintiffs. As further explained below, we decline to review the circumstance-specific issue of whether the now-expired initiative in fact complied with the separate-vote requirement of ORS 203.725(2). Accordingly, we affirm the portion of the judgment concluding that defendant had authority to review the proposed initiative before the election and otherwise decline to address the remaining moot issues under ORS 14.175.

The pertinent facts are undisputed. In September 2015, plaintiffs filed an initiative to amend the Lane County Charter. The Lane County Clerk certified the proposed measure for circulation and signature gathering. Intervenor challenged the clerk's certification of the measure in Lane County Circuit Court, contending that the clerk was required to apply the requirements of ORS 203.725 before certifying the measure for circulation.² The circuit court held that, by its terms, that statute applied to charter amendments proposed by initiative, but that intervenor's claim regarding the separate-vote requirement of ORS 203.725(2) was not ripe, because plaintiffs had not yet collected enough signatures to qualify the measure for the ballot.³

By October 2017, plaintiffs had submitted enough signatures to qualify the measure for the ballot. Defendant then notified plaintiffs that, acting on advice from county counsel, she had concluded that the proposed measure did not comply with the separate-vote requirement of ORS 203.725(2) and that, accordingly, she would not put the measure on the ballot.

In response, plaintiffs filed this proceeding under ORS 246.910(1), which allows "[a] person adversely affected by any act or failure to act by * * * a county clerk * * * under any election law" to "appeal therefrom to the circuit court for the county in which the act or failure to act occurred." They asserted five claims, each raising a different legal theory on which they objected to defendant's action. Plaintiffs and intervenor filed cross-motions for summary judgment, and, after briefing and argument, the court granted intervenor's motion, denied plaintiffs’ motion, and entered a judgment dismissing all of plaintiffs’ claims.

Plaintiffs now appeal. They assert four assignments of error, each of which raises one or more legal theories that, they contend, show that defendant unlawfully refused to put their initiative on the ballot. Intervenor first responds that this case is moot; second, intervenor argues that, to the extent that we reach the merits of plaintiffs’ appeal, defendant properly reviewed the initiative for compliance with ORS 203.725(2) and correctly refused to put it on the ballot.

MOOTNESS

We begin by considering whether we should review the merits of this appeal. Before oral argument, intervenor notified the court of his view that the period of time during which plaintiffs’ charter amendment initiative was eligible to appear on the ballot had expired. Accordingly, he asserts, the case has become moot. See Geddry v. Richardson , 296 Or. App. 134, 141-42, 437 P.3d 1163, rev. den. sub nom Geddry v. Clarno , 365 Or. 369, 451 P.3d 983 (2019) ("An issue is moot if the court's decision on the matter will no longer have a practical effect on the rights of the parties."); cf. id. at 142, 437 P.3d 1163 ("In the context of initiative petitions, typically, the expiration of the constitutional deadline for collecting supporting signatures for circulation will render moot any litigation over the legal sufficiency of the initiative."). In response, plaintiffs contend that the case is not moot; they argue that, unlike statewide ballot initiatives, county initiatives are not tied to a specific election and, therefore, if we rule in their favor on the merits, their initiative will appear on the ballot at the next election. For the reasons that follow, we agree with intervenor's contention that plaintiffs’ appeal is moot.

Two sections of the Lane Code (LC) address the time for voting on a proposed amendment of the county charter.⁴ First, section 2.635 addresses timing requirements for county initiatives generally:

"On the filing with the County Clerk responsible for election matters of an initiative petition which proposes in a proper manner a measure of County legislation^{[5 ]} and which is signed by a number of qualified voters equal to six percent of the total number of votes cast in the County for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition, the measure shall be submitted at the next regular primary or general election following the filing of the final petition provided that, if the final petition is filed within four months prior to such election, it shall be submitted at the next succeeding primary or general election. "

(Emphasis added.) Second, section 2.645 addresses charter amendments in particular: "Any measure relating to the amendment, revision or repeal of the Charter may be initiated by proper petition according to the procedure of LC 2.620 to 2.655 herein, except such measures shall be voted on only at the next succeeding primary or general election."

Thus, section 2.635 sets out a general rule that, if a final initiative petition is filed more than four months before a primary or general election, it must be submitted for a vote "at the next regular primary or general election following" that filing. If on the other hand, the final petition is filed less than four months before the next primary or general election, "it shall be submitted at the next succeeding primary or general election." LC § 2.635. Read together, those provisions of section 2.635 appear to require that a proposed measure be submitted for a vote at one of two future elections: either at the next regularly scheduled primary or general election or, if that election is set for less than four months after the petition is filed, at the "next regular primary or general election" after that. Id.

Section 2.645 appears to narrow the general rule set forth in section 2.635 and specifically governs measures "relating to the amendment, revision or repeal of the Charter." For those measures, the procedures set out in sections 2.620 to 2.655—which necessarily include those set forth in section 2.635—apply, except that any such measure "shall be voted on only at the next succeeding primary or general election." LC § 2.645 (emphasis added).

Plaintiffs argue that "the next succeeding primary or general election" in section 2.645 "is not a fixed date." As we understand their contention, plaintiffs’ view is that section 2.645 requires a county clerk to submit a measure to a vote at the next regular primary or general election following a final determination that an initiative petition meets all of the requirements for submission—even if that determination occurs years after the petition is filed, as would be the case here if this litigation were to conclude in plaintiffs’ favor. However, plaintiffs offer no textual support for that understanding. By its terms, section 2.645 allows for, at most, two potential dates for submission: either "the next regular primary or general election following the filing of the final petition " or the election following that one. LC § 2.635 (emphasis added); LC § 2.645 (incorporating requirements of preceding rules, including LC § 2.635).⁶ Indeed, section 2.645 may allow for only one potential submission date—that of the next "succeeding" primary or general election—regardless of whether a petition is filed more or...