Harisay v. Clarno

• Jurisdiction: Oregon
• Parties: Richard HARISAY, Charles Montgomery, and Stephen Bintliff, Chief Petitioners and Electors of the State of Oregon, Petitioners on Review, v. Bev CLARNO, Secretary of State of Oregon, Respondent on Review.
• Citation: 474 P.3d 378,367 Or. 116
• Docket Number: CC 14C21951 (SC S066576)
• Court: Oregon Supreme Court
• Decision Date: 08 October 2020

367 Or. 116

474 P.3d 378

Richard HARISAY, Charles Montgomery, and Stephen Bintliff, Chief Petitioners and Electors of the State of Oregon, Petitioners on Review,

v.Bev CLARNO, Secretary of State of Oregon, Respondent on Review.

CC 14C21951 (SC S066576)

Supreme Court of Oregon.

Argued and submitted March 6, 2020.

October 8, 2020

Daniel Meek, Portland, argued the cause and filed the briefs for petitioners on review.

Shannon T. Reel, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices, and Baldwin, Senior Judge, Justice pro tempore.^**

BALDWIN, S. J.

This case requires the court to address an issue of first impression: Does the initiative power provided for in Article IV, section 1(2)(a), of the Oregon Constitution extend to the people applying to Congress for a constitutional convention to amend provisions of the United States Constitution under Article V of that document? We conclude that the Oregon voters who adopted the initiative power did not intend that power to extend beyond state lawmaking. Accordingly, we hold that Article IV, section 1(2)(a), does not authorize the people to directly apply for a federal constitutional convention.

I. FACTS

Article IV, section 1, of the Oregon Constitution provides, in part:

"(1) The legislative power of the state, except for the initiative and referendum powers reserved to the people, is vested in a Legislative Assembly, consisting of a Senate and a House of Representatives.

"(2)(a) The people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution and enact or reject them at an election independently of the Legislative Assembly."

Plaintiffs in this case had submitted Initiative Petition 2016-005 (IP 5) to the Secretary of State so that it could be certified in time for the 2016 ballot. Section (1) of IP 5 provided that the people "call for an Article V Convention by enacting into law this Application, in accordance with Article V of the U.S. Constitution," for purposes of considering whether to amend the United States Constitution to allow greater regulation of corporations and other artificial legal entities and greater regulation of money used for political purposes. Section (2) added that the call for such a convention is continuing and does not terminate by the passage of time. Section (3) provided for copies of the call to be sent to various persons. And section (4) stated that the call "shall be codified in Title 17 of Oregon Revised Statutes." (The full text of IP 5 is attached as an Appendix.)

Under the Oregon Administrative Rules, the Secretary reviews a proposed initiative petition to "determine if it complies with the procedural requirements established in the Oregon Constitution for initiative petitions." OAR 165-014-0028(1). The Secretary does not, however, review the proposed initiative petition for "substantive constitutional or legal sufficiency." Id .

In this case, the Secretary (at that time, Kate Brown) refused to certify IP 5 on the ground that it failed to meet the procedural requirements established by the Oregon Constitution. Specifically, the Secretary explained that she "ha[d] been advised that a court review of [IP 5] would probably determine that it does not propose a law within the meaning of Article IV, section 1 of the Oregon Constitution and therefore may not legally be adopted through the initiative process."

Plaintiffs then filed this action in circuit court. Among other things, they sought a declaratory judgment that the Secretary was required to certify IP 5. The Secretary moved for judgment on the pleadings, which the trial court granted. The trial court concluded that the "exercise of the legislature's authority under Article V of the federal constitution" was not subject to an initiative to apply for a federal constitutional convention, because it was not a "law."

Plaintiffs appealed to the Court of Appeals, which affirmed. Harisay v. Atkins , 295 Or. App. 493, 434 P.3d 442 (2018).

That court began with a procedural question. The court noted that the deadline for IP 5 to be included on the 2016 ballot had passed, which rendered the matter moot. Id . at 495, 434 P.3d 442. The court nevertheless concluded that the matter remained justiciable under Oregon's statutory version of the "capable of repetition, yet evading review" doctrine, ORS 14.175, and it exercised its discretion to decide the case. 295 Or. App. at 496-97, 434 P.3d 442.

Turning to the merits, the court concluded that the issue was whether IP 5 proposed a "law" under Article IV, section 1(2)(a). Id . at 497, 434 P.3d 442. Noting that the initiative and referendum powers had been adopted in 1902, the court considered dictionary definitions of "law" from that period. Id . at 498-500, 434 P.3d 442. The court also reviewed cases interpreting Article IV, section 1. Id . at 500-01, 434 P.3d 442. Based on those authorities, the court concluded that the initiative power reached only those measures that will "establish new legal rules regulating conduct in the state of Oregon, typically of a permanent and generally applicable nature." Id . at 502, 434 P.3d 442 (footnote omitted). The court concluded that IP 5 failed both parts of that test. It did not regulate conduct in the state of Oregon, and it did not involve a rule of conduct. Id . at 502-03, 434 P.3d 442. Rejecting plaintiffs’ other arguments without discussion, id . at 494, 434 P.3d 442, the court affirmed the trial court ruling.¹

Plaintiffs sought review, which we allowed.

II. DISCUSSION

A. Mootness

We begin, as a preliminary matter, with the question of mootness. The parties do not dispute that the matter is in fact moot. Nor do the parties contest the Court of Appeals's holding that the case remains justiciable under ORS 14.175.² We agree with the Court of Appeals's determination that it is, and we do not revisit its exercise of discretion to consider the merits.

B. Scope of Review

We next turn to the scope of review for the issues presented in this case. As noted, the scope of review for proposed initiatives is limited: The Secretary reviews proposed initiatives for compliance with procedural requirements under the Oregon Constitution, not substantive validity or constitutionality. OAR 165-014-0028(1). That restriction dates back to at least State ex rel. Carson v. Kozer , 126 Or. 641, 270 P. 513 (1928), where this court stated:

"Under the settled procedure in this state there is no power inherent in the courts to determine whether or not a proposed law before it has been enacted is constitutional or unconstitutional. Neither the Constitution itself nor any statute gives to the courts any such power. The courts of this state never attempted to exercise such a power. Any interference by the courts or by any executive officer of the courts with the enactment of any law, constitutional or unconstitutional, either while the proposed measure is pending before the legislative assembly or if it is an initiative measure where all statutory requirements have been complied with, would in itself be a violation of the Constitution[.]"

Id . at 646-47, 270 P. 513.

At the same time, however, the Secretary does review a proposed initiative for whether it complies with the constitutional requirements to be an initiative under Article IV, section 1. As this court has explained:

"* * * 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, * * * 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."

Foster v. Clark , 309 Or. 464, 469, 790 P.2d 1 (1990). Foster ’s summary of the relevant rule—rendered in the context of the initiative and referendum for "municipal legislation" under Article IV, section 1(5) —was:

"Courts have jurisdiction and authority to determine whether a proposed initiative or referendum measure is one of the type authorized by Or. Const., Art. [IV] § 1(5) to be placed on the ballot."

Id . at 471, 790 P.2d 1.

Numerous cases have applied that scope of review. In Foster , for example, the court concluded that a proposed initiative for a municipality could be reviewed to determine whether it constituted "municipal legislation" as that term is used in Article IV, section 1(5). 309 Or. at 471, 790 P.2d 1 ; see also Boytano v. Fritz , 321 Or. 498, 501-02, 901 P.2d 835 (1995) (same). In Herbring v. Brown , 92 Or. 176, 180 P. 328 (1919), this court concluded that it could review a proposed referendum on the legislature's ratification of what became the Eighteenth Amendment (prohibition), at least to the extent of determining that the proposal did not qualify as a referendum under Article IV, section 1, because the "referendum" authority was limited to the repeal of statutes, and the legislature had not ratified the amendment by act. Id . at 182, 184, 180 P. 328 (distinguishing review for questions of substantive constitutionality should the measure be passed). In Holmes v. Appling , 237 Or. 546, 392 P.2d 636 (1964), this court concluded that a proposed initiative should not be placed on the ballot because it was either a new constitution or a constitutional revision, and thus did not qualify as an "amendment" under Article IV, section 1. Id . at 552-55, 392 P.2d 636 (explaining that judicial review of the nature of the initiative was permissible).

In this case, the Secretary maintains that IP 5 is not a "law" or an amendment to the state constitution, and so it is not within the scope of the authority reserved to the...