Lehman v. Bradbury

• Decision Date: 11 January 2002
• Court: Oregon Supreme Court
• Parties: Mike LEHMAN, Bill Markham, Ronald K. Culbertson, and Giles E. Parker, Plaintiffs-Respondents, v. Bill BRADBURY, Secretary of State for the State of Oregon, Defendant-Appellant, and Frank Eizenzimmer, Oregonians for Fair Term Limits, and U.S. Term Limits, Intervenors-Appellants.

37 P.3d 989

333 Or. 231

Mike LEHMAN, Bill Markham, Ronald K. Culbertson, and Giles E. Parker, Plaintiffs-Respondents, v. Bill BRADBURY, Secretary of State for the State of Oregon, Defendant-Appellant, and Frank Eizenzimmer, Oregonians for Fair Term Limits, and U.S. Term Limits, Intervenors-Appellants.

(CC 01C-14353; SC S48771)

Supreme Court of Oregon, En Banc.

Argued and Submitted November 6, 2001.

Decided January 11, 2002.

Mary H. Williams, Assistant Attorney General, Salem, argued the cause and filed the briefs for defendant-appellant. With her on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Kelly W.G. Clark, of O'Donnell & Clark, LLP, Portland, argued the cause for intervenors-appellants. With him on the briefs were Ross Day and Eric Winters, Portland.

Charles F. Hinkle, of Stoel Rives LLP, Portland, argued the cause and filed the brief for plaintiffs-respondents.

GILLETTE, J.

Plaintiffs brought this action under the Uniform Declaratory Judgments Act, ORS 28.010 et seq., and ORS 246.910(1),¹ challenging the constitutionality of Ballot Measure 3 (1992) (Measure 3 or "Term Limits Initiative)."² Among other things, Measure 3 added to Article II of the Oregon Constitution section 19 (setting limits on the terms for most statewide political officeholders and for state legislators) and section 20 (setting limits on the terms of Oregon members of the United States House of Representatives and the United States Senate). Plaintiffs argued that Measure 3 contains two or more constitutional amendments that should have been voted on separately under Article XVII, section 1, of the Oregon Constitution.³ The circuit court entered summary judgment for plaintiffs and declared Measure 3 "null, void, and unenforceable." For the reasons that follow, we affirm the judgment of the circuit court.

Plaintiffs are two former state representatives and two voters, one from each of the former representatives' districts. The former representatives filed declarations of candidacy for the office of State Representative for the 2003 legislative session, but defendant Secretary of State rejected those declarations, because each representative already had served the maximum term that he was permitted to serve under Measure 3. After the trial court declared Measure 3 invalid, defendant and intervenors⁴ appealed to this court directly under Oregon Laws 2001, chapter 145, section 3(5).⁵

The voters adopted Measure 3 in November 1992. Measure 3 provides, in part:

"AN ACT

"Be It Enacted by the People of the State of Oregon:

"PARAGRAPH 1. TERM LIMITS. The Constitution of the State of Oregon is amended by creating new Sections 19 and 20 in Article II, to read:

"SECTION 19. Limits on Oregon Terms. To promote varied representation, to broaden the opportunities for public service, and to make the electoral process fairer by reducing the power of incumbency, terms in Oregon elected offices are limited as follows:

"(1) No person shall serve more than six years in the Oregon House of Representatives, eight years in the Oregon Senate, and twelve years in the Oregon Legislative Assembly in his or her lifetime.

"(2) No person shall serve more than eight years in each Oregon statewide office in his or her lifetime.

"(3) Only terms of service beginning after this Act goes into effect shall count towards the limits of this Section.

"(4) When a person is appointed or elected to fill a vacancy in office, then such service shall be counted as one term for the purposes of this Section.

"(5) A person shall not appear on the ballot as a candidate for elected office or be appointed to fill a vacancy in office if serving a full term in such office would cause them to violate the limits in this Section.

"(6) This Section does not apply to judicial offices.

"SECTION 20. Limits on Congressional Terms. To promote varied representation, to broaden the opportunities for public service, and to make the electoral process fairer by reducing the power of incumbency, terms in the United States Congress representing Oregon are limited as follows:

"(1) No person shall represent Oregon for more than six years in the U.S. House of Representatives and twelve years in the U.S. Senate in his or her lifetime.

"(2) Only terms of service beginning after this Act goes into effect shall count towards the limits of this Section.

"(3) When a person is appointed or elected to fill a vacancy in office, then such service shall be counted as one term for the purposes of this Section.

"(4) A person shall not appear on the ballot as a candidate for elected office or be appointed to fill a vacancy in office if serving a full term in such office would cause them to violate the limits in this section."

Under a decision of the Supreme Court of the United States rendered after the adoption of Measure 3, section 20 of Measure 3 is not valid under the United States Constitution. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995)

(states may not impose qualifications for federal congressional offices in addition to those set out in United States Constitution). As we shall explain, the fact that section 20 violates the United States Constitution plays no role in our analysis concerning whether its presence in Measure 3 causes that measure to violate Article XVII, section 1, of the Oregon Constitution.

Plaintiffs argue that Measure 3 presented the voters, in a single "package," an amendment respecting limits on the terms of members of Oregon's congressional delegation. Plaintiffs contend that that "package" amended, either explicitly or implicitly the following provisions of the Oregon Constitution:

(1) Explicitly, Article II, relating to suffrage and elections;

(2) Implicitly, Article IV, section 8, relating to the qualifications for state legislators;

(3) Implicitly, Article V, section 1, relating to the qualifications for Governor; and

(4) Implicitly, Article VI, section 1, relating to the qualifications for Secretary of State and State Treasurer.

Plaintiffs further argue that those amendments were substantive changes to the Oregon Constitution that were not "closely related" and, thus, that Measure 3 denied the voters the opportunity to vote separately on each unrelated substantive change, in violation of Article XVII, section 1, as this court interpreted that section in Armatta v. Kitzhaber, 327 Or. 250, 959 P.2d 49 (1998).

In the trial court, defendant and intervenors conceded that Measure 3 made two or more substantive changes to the Oregon Constitution, but argued that those changes were "closely related" and, therefore, that the measure did not violate the "separate vote" requirement of Article XVII, section 1. Defendant also asserted two defenses. First, he argued that plaintiff Markham's claim was precluded because Markham previously had challenged Measure 3 in federal court. Second, defendant argued that the claim of the two plaintiffs who are voters was barred by the doctrine of laches because those plaintiffs brought their claim nine years after the passage of Measure 3, during which time the people of the State of Oregon had come to rely on the validity of that measure. Defendant conceded in the trial court that plaintiff Lehman's claim was timely, while intervenors argued that the doctrine of laches barred the challenge of all four plaintiffs.

On appeal, defendant and intervenors make different arguments concerning plaintiffs' alleged delay in bringing this challenge to Measure 3. Defendant argues that this court should exercise its discretion not to consider plaintiffs' challenge—including the challenge of plaintiff Lehman—because too much time has elapsed since the passage of Measure 3.⁶ Intervenors go further. They argue that challenges to the form in which initiated measures were adopted may be brought only within 30 days of the election at which the voters approved the measure. We address intervenors' argument first.

Intervenors rely on Article IV, section 1, subsection (4), paragraph (d), of the Oregon Constitution. That paragraph provides:

"[A]n initiative or referendum measure becomes effective 30 days after the day on which it is enacted or approved by a majority of the votes cast thereon."

Intervenors argue that any challenge to the validity of a measure must be brought by the effective date of the measure, as established by paragraph (d), or the measure thereafter is valid against the kind of constitutional challenge brought by plaintiffs here.

That argument need not detain us long. First, nothing in the text of paragraph (d) specifically states that, once a measure has gone into effect, the measure cannot be challenged on the ground that it was adopted in violation of constitutional requirements. Second, it is clear from the context in which paragraph (d) appears in Article IV, section 1(4), that paragraph (d) is a procedural provision that establishes only the date on which any measure—regardless of whether it is a constitutional amendment—becomes effective after a majority of the voters have approved it, nothing more. Like the other paragraphs in subsection (4) of Article IV, section 1, paragraph (d) addresses one step in the process by which initiatives and referenda become law. For example, paragraph (a) addresses the Secretary of State's verification of signatures on petitions; paragraph (b) requires that procedures set out in section 1 be followed in presenting any measure to the voters; and paragraph (c) provides that elections on measures are to be held at regular general elections. Intervenors' argument is not well taken. We turn to defendant's argument.

As noted, defendant does not seek to impose a specific deadline on those who seek to challenge initiated measures on form-of-adoption grounds; neither does he propose any specific window within which such a challenge must be brought. Instead, he argues that, in deciding whether to hear such a challenge, the...