Geddry v. Richardson

• Decision Date: 13 February 2019
• Docket Number: A164828
• Citation: 437 P.3d 1163,296 Or.App. 134
• Parties: Mary GEDDRY and John Brooker, Chief Petitioners and Electors of the State of Oregon, Plaintiffs-Respondents, v. Dennis RICHARDSON, Secretary of State of Oregon, Defendant-Appellant.
• Court: Oregon Court of Appeals

296 Or.App. 134

437 P.3d 1163

Mary GEDDRY and John Brooker, Chief Petitioners and Electors of the State of Oregon, Plaintiffs-Respondents,

v.Dennis RICHARDSON, Secretary of State of Oregon, Defendant-Appellant.

A164828

Court of Appeals of Oregon.

Argued and submitted April 16, 2018.

February 13, 2019

Christopher A. Perdue, Assistant Attorney General, argued the cause for appellant. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Ann B. Kneeland, Eugene, argued the cause and filed the brief for respondents.

Gregory A. Chaimov, Tim Cunningham, and Davis Wright Tremaine LLP filed the brief amicus curiae for Oregonians for Food & Shelter, Oregon Forest & Industries Council, Oregon Farm Bureau Federation, Oregon Association of Realtors, Oregon Home Builders Association, and American Forest Products Association.

Steven C. Berman and Stoll Stoll Berne Lokting & Shlachter, PC, filed the brief amicus curiae for Our Oregon.

Before Ortega, Presiding Judge, and Powers, Judge, and Garrett, Judge pro tempore.

GARRETT, J. pro temporePlaintiffs brought this action seeking to enjoin defendant, the Secretary of State, to certify Initiative Petition 2016-055 (IP 55) for the 2016 ballot. The putative ballot measure would amend the Oregon Constitution to far-reaching effect by, among other things, empowering local communities to enact laws that would be "immune from preemption or nullification by state law, federal law, or international law." Based on legal advice from the Attorney General, the secretary refused to certify IP 55 on the ground that it violated certain constitutional requirements for proposed initiatives. The trial court reversed the secretary's decision, concluding that the secretary had exceeded his preelection authority by engaging in a "substantive" review and analysis to determine whether IP 55 complied with the Oregon Constitution.¹ The court further declared that IP 55 facially complied with all constitutional requirements for proposed initiatives and—because the 2016 election had, by that point, already passed—ordered the secretary to renumber and certify IP 55 for the 2018 election based on the requirements that had been met in 2016. On appeal, the secretary challenges each of those rulings. For the reasons explained below, we reverse.

The facts are procedural and undisputed. In 2015, plaintiffs filed their initiative petition with the secretary for placement on the 2016 general election ballot. The measure would add the following section to Article I of the Oregon Constitution:

"Section 47. Right of Local Community Self-Government

"(1) As all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness, and the people have at all times the right to alter, reform or abolish their government should it become destructive to their fundamental rights or well-being, therefore the people have an inalienable and fundamental right of local community self-government, in each county, city, town, or other municipality.

"(2) That right shall include the power of the people, and the power of their governments, to enact and enforce local laws that protect health, safety, and welfare by recognizing or establishing the rights of natural persons, their local communities, and nature; and by securing those rights using prohibitions and other means deemed necessary by the community, including measures to establish, define, alter, or eliminate competing rights, powers, privileges, immunities, or duties of corporations and other business entities operating, or seeking to operate, in the community.

"(3) Local laws enacted pursuant to subsection (2) shall be immune from preemption or nullification by state law, federal law, or international law, and shall not be subject to limitation or preemption under Article IV, section 1(5), Article VI, section 10, or Article XI, section 2 of this constitution, or Oregon Revised Statutes 203.035, provided that:

"(a) Such local laws do not restrict fundamental rights of natural persons, their local communities, or nature secured by the Oregon Constitution, the United States Constitution, or international law; and

"(b) Such local laws do not weaken protections for natural persons, their local communities, or nature provided by state law, federal law, or international law.

"(4) All provisions of this section are severable."

The secretary assigned the prospective petition an identification number, 2016-055, and plaintiffs submitted the required sponsorship signatures to the secretary. See ORS 250.045(1).

The secretary verified the sponsorship signatures and forwarded the text of IP 55 to the Attorney General for the drafting of a ballot title. See ORS 250.065. The Attorney General did so, and the secretary accordingly solicited public comments on the measure. See ORS 250.067(1). The secretary forwarded the received comments to the Attorney General, see id. , who then issued a letter to the secretary opining that IP 55 failed to comply with two requirements for proposed initiatives in the Oregon Constitution. Specifically, the Attorney General concluded that IP 55 likely violated the "separate-vote rule" of Article XVII, section 1,² because the measure proposed multiple changes to the constitution that were not "closely related," including establishing both the "authority to create rights for one category of entities" as well as the "authority to alter or eliminate ostensibly ‘competing’ rights for a different category of entities." (Emphases omitted.) In addition, the Attorney General concluded that IP 55 likely violated the "revision rule" of Article XVII, section 2,³ because the text of the measure would "fundamentally alter[ ] numerous other constitutional provisions, the powers and responsibilities of the legislative and executive branches of state government, and the respective authority of state and local governments." The secretary adopted the Attorney General's opinion and, in April 2016, rejected IP 55.

Plaintiffs sought judicial review of the secretary's decision, alleging, among other things, that the secretary had violated plaintiffs' state and federal constitutional rights by "refus[ing] to issue a certified ballot title for and authorize the circulation of [IP 55] based on pre-election requirements under Article XVII, Section 1 and Article XVII, Section 2 of the Oregon Constitution," because the secretary "lacks the authority to conduct pre-election review on the asserted grounds." The parties submitted cross-motions for summary judgment, which the trial court took under advisement on November 10, 2016.

Meanwhile, the constitutional deadline for submitting the requisite number of signatures for circulation in the 2016 general election passed in July 2016. See Or. Const., Art. IV, § 1 (2) (setting out deadline of four months before election). The 2016 general election itself happened on November 8.

In April 2017, the trial court issued a letter opinion denying the secretary's motion for summary judgment and granting in part and denying in part plaintiffs' cross-motion for summary judgment. Acknowledging that the secretary has the constitutional duty to review proposed measures for "procedural compliance with the Constitutional provisions regarding initiative petitions," the court nevertheless concluded that the secretary had exceeded that authority by engaging in a "substantive analysis" of IP 55:

"In this case, the analysis in the Attorney General's March 31, 2016 letter is a substantive review of the contents of IP 55. Unlike [ Holmes v. Appling , 237 Or. 546, 392 P.2d 636 (1964) ], IP 55 does not contain facial statements seeking to revise, in whole or in part, or replace the current Constitution. Divining the scope and intent of IP 55 is not possible without a substantive review and contemplation of its language. It was impermissible for the Secretary of State to deny circulation of IP 55 based upon the substantive analysis of the Attorney General."

The court ordered the secretary to renumber IP 55 for the 2018 election, issue a certified ballot title, approve the new measure for immediate circulation, and "count all verified signatures submitted for the sponsorship submission for IP 55 toward the total number of required signatures" for the new measure "to qualify [it] for the November 2018, or next appropriate, ballot." The court adopted those conclusions in a May 2017 judgment.

The secretary appeals that judgment, raising three assignments of error. In the first assignment, the secretary argues that the trial court erred in partially granting summary judgment for plaintiffs based on the court's conclusion that the secretary exceeded his authority by conducting a substantive analysis of IP 55 before the election. In the second assignment, the secretary argues that the trial court should have granted his motion for summary judgment because, according to the secretary, IP 55 violates both the separate-vote rule set out in Article XVII, section 1, and the revision rule set out in Article XVII, section 2. Finally, in the third assignment of error, the secretary contends that the trial court erred by ordering him to count IP 55's sponsorship signatures obtained for the 2016 election toward the number of signatures necessary to qualify the renumbered initiative for the 2018 election.

We begin with the third assignment of error, for two reasons. First, that assignment is resolved in the secretary's favor by a recent decision of the Supreme Court. Second, the secretary argues that a ruling in his favor on that issue renders the other assignments of error moot (although, as discussed below, the secretary requests that we nonetheless exercise our discretion to review one of those assignments).

While this appeal was pending, the secretary sought a stay of the trial court's judgment. The Appellate Commissioner issued a stay on several conditions, including that the Attorney...