Foster v. Clark

• Decision Date: 18 April 1990
• Citation: 790 P.2d 1,309 Or. 464
• Parties: Bernard V. FOSTER, and Carolyn M. Leonard, Plaintiffs-Respondents, v. Barbara CLARK, Auditor, City of Portland, Vicki K. Ervin, Director of Elections, Multnomah County, Defendants-Respondents. v. CITIZENS FOR UNION AVENUE, a registered political action committee; Norman L. Haugen, Rosalie E. Huss and Louis E. Watson, Chief Petitioners of initiative petition asking: "Shall Martin Luther King, Jr. Boulevard be renamed Union Avenue?," and John Baxter, Treasurer, Citizens for Union Avenue, on behalf of themselves and all legal voters, residents and taxpayers of the City of Portland, Oregon, Defendants-Intervenors-Appellants. TC 9002-01034; SC S36962.
• Court: Oregon Supreme Court

Page 1

790 P.2d 1

309 Or. 464

Bernard V. FOSTER, and Carolyn M. Leonard, Plaintiffs-Respondents, v. Barbara CLARK, Auditor, City of Portland, Vicki K. Ervin, Director of Elections, Multnomah County, Defendants-Respondents. v. CITIZENS FOR UNION AVENUE, a registered political action

committee; Norman L. Haugen, Rosalie E. Huss and Louis E.

Watson, Chief Petitioners of initiative petition asking:

"Shall Martin Luther King, Jr. Boulevard be renamed Union

Avenue?," and John Baxter, Treasurer, Citizens for Union

Avenue, on behalf of themselves and all legal voters,

residents and taxpayers of the City of Portland, Oregon,

Defendants-Intervenors-Appellants.

TC 9002-01034; SC S36962.

Supreme Court of Oregon.

Argued and Submitted March 15, 1990.

Decided March 21, 1990.

Reconsideration Denied April 18, 1990.

Henry Kane, Beaverton, argued the cause and filed the briefs on behalf of defendants-intervenors-appellants.

Lawrence Matasar, Portland, argued the cause on behalf of plaintiffs-respondents. With him on the brief was Hoffman, Matasar & Glaeser, Portland.

No appearance for defendants-respondents.

Gregory L. Gudger, Portland, filed a brief on behalf of amicus curiae Association of Oregon Black Lawyers.

Greg Wasson, Salem, filed a brief on behalf of amicus curiae Greg Wasson.

Before PETERSON, C.J., CARSON, P.J., and JONES, GILLETTE, VAN HOOMISSEN, FADELEY, and UNIS, JJ.

GILLETTE, Justice.

The appeal before us concerns the renaming of a principal north-south thoroughfare in east Portland. The street, long known as Union Avenue, was renamed "Martin Luther King, Jr., Boulevard" by a Portland City Council ordinance passed on April 20, 1989. Thereafter, a group of Portland residents circulated and obtained sufficient signatures to have placed on the May 15, 1990, primary ballot a proposed measure submitting to the voters the following question: "Shall Martin Luther King, Jr. Boulevard be renamed Union Avenue?" ¹

Plaintiffs, two resident voters in the City of Portland, then brought the present declaratory judgment action seeking to have the measure removed from the ballot on the ground that the measure is not "municipal legislation," and therefore is not a proper subject for an initiative measure under Article IV, section 1(5) of the Oregon Constitution. ² The original defendants in the action were Clark, the Auditor of the City of Portland, and Ervin, the Director of Elections for Multnomah County. Intervenors the principal sponsors of the measure, were added as defendants at their request.

The circuit court held that the measure must be removed from the ballot because it is not "municipal legislation," and the present appeal followed. ³ We affirm the judgment of the circuit court.

Chronology

In summary, the Intervenors' main argument is that the act of the Portland City Council in changing the name of Union Avenue was legislative, not administrative, and therefore subject to reversal by the people through the initiative process. However, the Intervenors' proposed measure does not effectively attack the original act of renaming the street. It purports to again rename the street, this time back to "Union Avenue," but, as we shall explain more fully below, the thrust of this attack is misdirected. It focuses on the wrong ordinance.

Our analysis turns in significant part on the specific chronology in this case. That chronology, including the specific dates claimed by the parties to be pertinent, is as follows:

August 19, 1987--The Portland City Council adopts Resolution No. 34333, which sets out a general policy for renaming streets in the City of Portland.

April 20, 1989--The Portland City Council passes Ordinance No. 161815, renaming Union Avenue as "Martin Luther King, Jr., Boulevard."

May 4, 1989--The Portland City Council passes Ordinance No. 161897, adding Sections 17.93.010 to 17.93.060 to the Portland City Code in order to prescribe a policy and a procedure for renaming streets in the City of Portland.

January 9, 1990--The proposed measure here at issue, supported by sufficient valid signatures to be placed on the ballot, is filed with defendant Clark.

February 15, 1990--On advice of the City Attorney, the Portland City Council directs defendant Clark to place the proposed measure on the May 15, 1990, primary ballot.

February 16, 1990--The present action is commenced.

March 1, 1990--The trial court enters judgment for plaintiffs.

March 5, 1990--Intervenors file their notice of appeal. The Court of Appeals thereafter certified the appeal to this court, and the certification was accepted.

March 15, 1990--The case is argued before this court, and is taken under advisement.

Intervenors advance three separate arguments for reversal of the trial court. First, they argue that the trial court lacked subject matter jurisdiction. The issue of whether a proposed initiative measure is "municipal legislation," they argue, is not an appropriate one for courts to address unless and until the measure is actually approved by the voters. Second, Intervenors argue that the present controversy was not justiciable, because the original defendants, Clark and Ervin, did not actively dispute whether the measure qualifies for the ballot. Finally, Intervenors argue that the proposed measure is, in fact, "municipal legislation," and therefore is qualified for a place on the ballot. We shall consider each of these arguments in turn.

Subject Matter Jurisdiction

Intervenors timely moved for an order dismissing these proceedings on the ground that the trial court lacked subject matter jurisdiction. ORCP 21A(1). The trial court denied the motion. Intervenors assign that denial as error.

In essence, Intervenors' theory is that, because of the importance of the initiative process, this court has created a doctrine under which it will not permit judicial scrutiny of a proposed measure beyond assuring that formal requirements, such as the requisite number of signatures, have been met. In particular, Intervenors rely on the following language from Maginnis v. Child, 284 Or. 337, 339, 587 P.2d 460 (1978):

"Initiative measures must be placed on the ballot for vote. That they may be invalid or ineffective is not grounds for a court or other official to keep them off the ballot. State ex rel Carson v. Kozer, 126 Or 641, 647, 270 P 513 (1928). It was for this reason that we granted the petition for a peremptory writ of mandamus in State ex rel Umrein v. Heimbigner, City Recorder of Beaverton, September 19, 1978, SC # 25813 (no opinion), and ordered the recorder to put the measure on the ballot. The Court of Appeals followed this principle in Barnes v. Paulus, 36 Or App 327, 332, 588 P2d 1120 (1978).

"The one exception is if the proposed measure is legally insufficient to be placed on the ballot. An example of this exception is Kays v. McCall, 244 Or 361, 418 P2d 511 (1966), in which the petitions for the initiative measure did not have the number of supporting certified signatures required by Art IV, § 1, Oregon Constitution."

See also Oregon Aqua-Foods v. Paulus, 296 Or 469, 472 n. 3, 676 P.2d 870 (1984) ("[T]he efficacy of [a] proposed measure, should it be adopted by the people, is not before [this court in a ballot title review proceeding].")

Intervenors read too much into Maginnis, Oregon Aqua-Foods and similar cases. ⁴ It is true, as those cases hold, that 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.

On the other hand, Oregon courts have inquired into whether matters extraneous to the language of the measure itself disqualify the measure from the ballot. This is most obviously true of the requirement that an initiative receive enough qualifying signatures, as Maginnis recognizes, but the principle involved extends further. Despite compliance with proper procedures, courts will prevent a measure from being placed on the ballot if the measure is legally insufficient to qualify for that ballot. See, e.g., City of Eugene v. Roberts, 305 Or. 641, 756 P.2d 630 (1988) (although otherwise qualifying, advisory question could not be placed on ballot because it was not a "measure"); Yamhill County v. Dauenhauer, 261 Or. 154, 492 P.2d 766 (1972), aff'g 6 Or.App. 422, 487 P.2d 1167 (1971) (county initiative measure properly removed from ballot where effect would have been to overturn previous vote by same electorate on a fiscal matter); Holmes v. Appling, 237 Or. 546, 392 P.2d 636 (1964) ("proposed constitutional amendment" was in fact a new constitution, and therefore not entitled to be placed on the ballot); Tillamook P.U.D. v. Coates, 174 Or. 476, 149 P.2d 558 (1944) (referendum; courts had authority to enjoin placing a referendum on the ballot where such referendum related to administrative matters, not legislation); Whitbeck v. Funk, 140 Or. 70, 12 P.2d 1019 (1932) (referendum; ordinance selecting and designating certain property in the City of Portland for use as a public market and authorizing purchase thereof was not municipal legislation and therefore not eligible to be referred by the people); Monahan v. Funk, 137 Or. 580, 3 P.2d 778 (1931) (referendum; "[a]cts, which are to be deemed as acts of administration and classed among those governmental powers properly assigned to the executive department, are those which are necessary to be done to carry out legislative policies and purposes already declared* * *[; t]he form of the act is not determinative; that is, an ordinance may be legislative in character or it may be administrative").

The two lines of cases described, supra, appear to run in different directions. This is especially true when one considers cases such as Unlimited Progress v. Portland, 213 Or. 193, 195-96, 324 P.2d 239 (1958), a case involving an attempt to keep...