Boytano v. Fritz

• Decision Date: 07 June 1994
• Parties: Janet BOYTANO, Appellant, v. Elisa FRITZ, Election Officer of the City of Klamath Falls, Respondent. 93-500CV; CA A80515. . * On Appellant's Motion for Reconsideration
• Court: Oregon Court of Appeals

Page 31

886 P.2d 31

131 Or.App. 466

Janet BOYTANO, Appellant, v. Elisa FRITZ, Election Officer of the City of Klamath Falls Respondent.

93-500CV; CA A80515.

Court of Appeals of Oregon In Banc. ^*

On Appellant's Motion for Reconsideration June 7, 1994 Resubmitted In Banc Sept. 7, 1994. Decided Nov. 23, 1994. Review Denied Feb. 7, 1995.

Phil Studenberg, Klamath Falls, and Charles F. Hinkle, Portland, for motion.

No appearance by City of Klamath Falls.

LANDAU, Judge.

Plaintiff moves for reconsideration of our decision that her challenge to the legal sufficiency of a proposed initiative measure that would amend the charter of the City of Klamath Falls presents a nonjusticiable controversy. 128 Or.App. 109, 875 P.2d 476 (1994). We allow the motion and withdraw our opinion.

Plaintiff brought this action for declaratory and injunctive relief, requesting that the city's election officer be prevented from placing the following initiative measure on the ballot:

"(a) The City of Klamath Falls, including its Council and elected or appointed officers, shall not make, pass, adopt, or enforce any ordinance, rule, regulation, policy or resolution that extends minority status, affirmative action, quotas, special class status, or any similar concepts, based on homosexuality or which establishes any categorical provision such as 'sexual orientation,' 'sexual preference,' or any similar provision which includes homosexuality.

"(b) City funds shall not be expended to promote homosexuality or express approval of homosexual behavior.

"(c) This Section shall not be construed to deny any Citizen, based on perceived or actual private lawful sexual practices, any City services, licenses, or approvals otherwise due or available.

"(d) This Section shall not be construed to limit public libraries from providing materials for adults which address homosexuality.

"(e) Subsection (a) of this Section shall not nullify or be construed to nullify any city, state, or federal civil rights protections based on race, religion, color, sex, marital status, familial status, national origin, age or disability. Neither shall Subsection (a) be construed to abrogate, abridge, impede, or otherwise diminish the holding, enjoyment, or exercise of any rights guaranteed to Citizens by the Constitution of the State of Oregon or the Constitution of the United States.

"(f) Subsection (a) of this Section shall not be construed to forbid the adoption of provisions prohibiting employment decisions based on factors not directly related to employment decisions. If such a provision is adopted, it is the intent of the People that lawful private sexual behavior, or rumor, perception, or knowledge of a person's lawful private sexual behavior are factors not directly related to employment. If such a provision is adopted, it is the intent of the People that personal expression conversation or any other free expression concerning private lawful sexual behavior shall also be considered factors not directly related to employment, unless such actions disrupt the workplace.

"(g) This Section shall be an explicit and necessary restriction and limitation upon the authority of the Council.

"(h) It shall be considered that it is the intent of the People in enacting this Section that if any part thereof is held unconstitutional by a court of competent jurisdiction, the remaining parts shall be held in full force and effect. This Section shall be in all parts self-executing."

The trial court entered judgment certifying the measure for the ballot. We reversed, concluding that, because the record did not show that the correct number of signatures had been gathered to place the measure on the ballot or that the sponsors of the measure were even pursuing it, the issue of the proposed measure's legal sufficiency was nonjusticiable.

In her motion for reconsideration, plaintiff argues that, under Ellis v. Roberts, 302 Or. 6, 17, 725 P.2d 886 (1986), an elector who seeks a court ruling that an initiative measure should not be placed on the ballot need not wait until all the required signatures have been gathered and the measure has qualified for the ballot. We agree. Accordingly, we turn to the merits of plaintiff's appeal.

The scope of our review concerning the legal sufficiency of proposed initiative measures is limited. In Foster v. Clark, 309 Or. 464, 469, 790 P.2d 1 (1990), the Supreme Court said:

"[A] court will not inquire into the substantive validity of a measure--i.e., into the constitutionality, legality or effect of the measure's language--unless and until the measure is passed. To do otherwise would mean that the courts would on occasion be issuing an advisory opinion.

" * * * * *

"Courts have jurisdiction and authority to determine whether a proposed initiative or referendum measure is one of the type authorized by Or Const, Art I [sic] § 1(5) to be placed on the ballot. This means that a court may inquire into whether the measure is 'municipal legislation,' because that qualifying language is used in the constitution itself. On the other hand, a court may not inquire into general questions of constitutionality, such as whether the proposed measure, if enacted, would violate some completely different portion of the constitution."

In this case, plaintiff first asserts that the proposed measure is invalid, because it restricts, abridges, and chills the constitutional rights of a class of citizens and because, if enacted, it will unduly burden the right of initiative.

Those arguments plainly raise questions about the constitutionality, legality or effect of the proposed measure, if enacted. Accordingly, they are beyond our scope of pre-enactment review, as articulated in Foster v. Clark, supra, 309 Or. at 469-71, 790 P.2d 1, and we do not address them.

Plaintiff also contends that the proposed measure is not a proper subject of a local initiative election under Article IV, section 1(5), of the Oregon Constitution, which reserves to the citizens of municipalities and districts the referendum powers "as to all local, special and municipal legislation of every character in or for their municipality or district." According to plaintiff, the proposed measure is not "municipal legislation" within the meaning of Article IV, section 1(5), for two reasons. First, plaintiff argues, because ORS 659.165(1) prohibits elections on measures that would grant special rights to, or single out, citizens on the basis of sexual orientation, the subject of the proposed measure in this case--which singles out citizens on the basis of sexual orientation--is not "municipal." Second, plaintiff argues that, apart from ORS 659.165(1), because the state has a strong interest in protecting the civil rights of its citizens, the subject of the proposed measure is not "municipal" within the meaning of Article IV, section 1(5).

Whether correct or not, those are precisely the sort of arguments that are the proper subject of our pre-enactment review. 309 Or. at 471, 790 P.2d 1.

We begin with plaintiff's argument that, because ORS 659.165(1) prohibits elections on the subject of the proposed measure, it is not "municipal" within the meaning of the Oregon Constitution. ORS 659.165 provides:

"(1) A political subdivision of the state may not enact or enforce any charter provision, ordinance, resolution or policy granting special rights, privileges or treatment to any citizen or group of citizens on account of sexual orientation, or enact or enforce any charter provision, ordinance, resolution or policy that singles out citizens or groups of citizens on account of sexual orientation.

"(2) Any person who believes that a political subdivision has enacted or is enforcing a charter provision, ordinance, resolution or policy in violation of this section may bring an action in circuit court to have the charter provision, ordinance, resolution or policy declared invalid, for injunctive relief and for such other relief as the court may consider appropriate. The court shall award reasonable attorney fees and costs to a plaintiff who prevails in an action under this subsection."

According to plaintiff, the statute's prohibition against a city enacting an offending measure means that the city may not even put the matter to a vote of the people. That prohibition, argues plaintiff, demonstrates that the legislature has determined the subject of the proposed measure to be beyond the "municipal" legislation that is the subject of the power of local initiative and referendum under Article IV, section 1(5). We do not agree.

Plaintiff's argument rests on the assumption that, by prohibiting "enactment" of offending measures, ORS 659.165 prohibits submitting such measures to a vote of the people. We find no support in the language of the statute for that assumption.

In construing a statute, we attempt to ascertain the intentions of the legislature, looking first to the text and the context of the statute. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). In viewing the text, we give the words the legislature has used their ordinary meaning, unless doing so would lead to an absurd or unreasonable result. McKean-Coffman v. Employment Div., 312 Or. 543, 549, 824 P.2d 410, on recon 314 Or. 645, 842 P.2d 380 (1992).

Nothing in the text or the context of ORS 659.165(1) suggests that local elections are to be prohibited. The topic of elections is not even mentioned. If the legislature had intended to prevent holding elections, it could have plainly said so. There is nothing particularly complicated about declaring that local governments cannot hold elections on certain types of measures. The fact of the matter is, the legislature said nothing of the sort.

Especially when the text of ORS 659.165(1) is read in conjunction with subsection (2) of the same statute, it is clear that the legislature did not intend to prohibit the conduct of elections. Subsection (2) provides for...