Leo v. Keisling

• Decision Date: 07 October 1998
• Docket Number: C-17232
• Citation: 964 P.2d 1023,327 Or. 556
• Court: Oregon Supreme Court
• Parties: Susan LEO and Jonah P. Hymes, Plaintiffs-Appellants, v. Phil KEISLING, Secretary of State, and State of Oregon, Defendants-Respondents. CC 98; CA A103357; SC S45677.

Page 1023

964 P.2d 1023

327 Or. 556

Susan LEO and Jonah P. Hymes, Plaintiffs-Appellants, v. Phil KEISLING, Secretary of State, and State of Oregon Defendants-Respondents.

CC 98C-17232; CA A103357; SC S45677.

Supreme Court of Oregon.

Argued and Submitted Sept. 15, 1998.

Decided Oct. 7, 1998.

On certification from the Court of Appeals. ^*

Emily Simon, Portland, argued the cause for appellants. With her on the brief were Katherine A. McDowell and Scott Garland, ACLU Foundation of Oregon, Portland.

Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause for respondents. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, DURHAM, KULONGOSKI and LEESON, JJ. ^**

LEESON, Justice.

In this certified appeal, the parties ask us to decide the following question:

"Is it unconstitutional for the Secretary of State to qualify an initiative to the ballot, relying on that 'margin of error,' 'within the acceptable limits of the target,' or any other similar statistical term, if the two statistical samplings done both produce estimates that the initiative petition was not 'signed by a number of qualified voters equal [or greater than] six (6) percent of the total number of votes' in the last gubernatorial election in Oregon?" (Brackets in original.)

The parties frame that question in the context of a challenge to the Secretary of State's determination that initiative petition # 53 ¹ contains the required number of valid signatures to qualify for placement on the November 1998 general election ballot. In determining that the petition contained the required number of valid signatures, the Secretary of State relied on what the parties refer to as the "margin of error" contained in OAR 165-014-0030, which provides that the Secretary of State will not exclude a petition for a proposed initiative from the ballot for insufficient signatures, unless statistical sampling shows that it is more than 80 percent likely that the petition lacks sufficient valid signatures. ² Such reliance, plaintiffs claim, is impermissible, because of the requirement in Article IV, section 1(2)(b), of the Oregon Constitution, that an initiative petition must contain a specified number of signatures in order to be placed on the ballot.

Plaintiffs Leo and Hymes brought this action in circuit court, alleging that the Secretary of State exceeded his authority by declaring that initiative petition # 53 qualified for the November 1998 general election ballot. Plaintiffs sought a declaration that the petition "had insufficient signatures for placement on the ballot." They also sought to enjoin the Secretary of State from certifying the petition to the ballot or, alternatively, from "taking any further action to place" that petition on the ballot. The circuit court rejected plaintiffs' claims for declaratory and injunctive relief and entered judgment for defendants. Plaintiffs appealed to the Court of Appeals, which certified the appeal to this court.

We do not reach the constitutional question that the parties have presented. Rather, we resolve the case on a subconstitutional basis. See Planned Parenthood Assn. v. Dept. of Human Res., 297 Or. 562, 564, 687 P.2d 785 (1984) (requiring court first to look to subconstitutional bases for disposition, before addressing constitutional challenge to administrative rule). We conclude that, in this case, the provision of OAR 165-014-0030 (the "acceptance/rejection limit" in Appendix I) that allows the Secretary of State to qualify an initiative petition for the ballot even though the Secretary of State is up to 80 percent certain that the petition does not contain the required number of signatures violates ORS 250.105(4), the statute pursuant to which OAR 165-014-0030 was promulgated. ³ Accordingly, we reverse the judgment of the circuit court and remand the case to that court for further proceedings.

Article IV, section 1(2)(b), of the Oregon Constitution, provides:

"An initiative law may be proposed only by a petition signed by a number of qualified voters equal to six percent of the total number of votes cast for all candidates for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition."

Six percent of the total number of votes cast for all candidates for Governor during the last election is 73,261. Supporters of initiative petition # 53 submitted a petition containing 92,577 signatures to the Secretary of State for verification. Consistent with ORS 250.105(4), which requires the Secretary of State to designate a statistical sampling technique to verify that a petition contains the required number of signatures, and as required by OAR 165-014-0030, the rule promulgated pursuant to the statute, the Secretary of State used a statistical random sampling technique to obtain a sample of at least 1,000 of the signatures appearing on the petition submitted in support of placing initiative petition # 53 on the ballot. A check of the signatures in that sample yielded an estimate that, of the 92,577 signatures received, only 73,135 signatures--126 fewer than the 73,261 required to qualify initiative petition # 53 for the ballot--were valid.

Because the estimate from the first sample indicated that the petition did not contain the required number of signatures, the Secretary of State, again consistent with the statute and pursuant to the administrative rule, obtained a second sample, which combined the initial sample with at least 4,000 additional signatures appearing on the petition. A check of the signatures on that combined sample produced an estimate lower than that obtained from the first sample: 73,088 valid signatures, which was 173 fewer than the required number. ⁴ Nonetheless, based on an application of the "acceptance/rejection limit" for a petition contained in OAR 165-014-0030, the Secretary of State announced that

"following the completion of a second signature sample, initiative petition # 53 qualified for the ballot with an estimated 73,088 valid signatures. While this appears to be 173 signatures fewer than the 73,261 signatures required by the Constitution, it is, in fact, within the 1/2 of one percent margin of statistical error permitted by administrative rule." (Emphasis added; footnote omitted.)

In other words, the Secretary of State's best estimate based on the two statistical samples was that the petition supporting initiative petition # 53 was 173 signatures (less than one-half of one percent) below the required number of 73,261. However, relying on the "acceptance/rejection limit" contained in the administrative rule, which permits acceptance of a petition even though the Secretary of State is up to 80 percent certain that the petition does not contain the required number of signatures, the Secretary of State declared that initiative petition # 53 qualified for the ballot. The present action followed.

As noted, the parties present the single, constitutional question quoted at the beginning of this opinion. However, it is well established that this court ordinarily does not decide constitutional issues if there is an adequate subconstitutional basis for decision. See Planned Parenthood Assn., 297 Or. at 564, 687 P.2d 785 (invalidating administrative rule challenged on constitutional grounds as exceeding statutory authority of agency). As this court has stated:

"the proper sequence begins with an examination of ordinary rules of law and the scope and limits of legal authorization before reaching any constitutional issue, because when some challenged practice is not authorized by law, the court acts prematurely if it decides whether the practice could be authorized without violating the constitution." State v. Lowry, 295 Or. 337, 343, 667 P.2d 996 (1983).

The rule against deciding constitutional questions when subconstitutional grounds for decision exist especially is cogent when, as here, "this court confronts an unnaturally short period of time within which to issue a decision." State ex rel. Keisling v. Norblad, 317 Or. 615, 624, 860 P.2d 241 (1993). Thus, although the parties attempt to frame the issue only in constitutional terms, we first must consider whether application of the Secretary of State's rule in this case comports with relevant subconstitutional rules of law. See id. at 624-25, 860 P.2d 241 (describing judicial restraint implicit in preference for subconstitutional decisions). We conduct that inquiry to ensure that the challenged action "was authorized by the state's * * * politically accountable policy makers." Planned Parenthood Assn., 297 Or. at 565, 687 P.2d 785. In this case, the politically accountable policy maker is the legislature, because it enacted ORS 250.105(4).

The proper sequence in analyzing the legality of action taken by officials who are exercising delegated authority is to determine first whether the officials acted within the scope of their authority and then whether the action that they took followed the procedures prescribed by statute or regulation. Ibid. Neither of those matters is in question here. The next determination is whether the substance of the action departed from a legal standard expressed or implied in the law being administered. Ibid. That inquiry leads us to examine ORS 250.105(4), which contains the statutory directive on which OAR 165-014-0030 is based. ORS 250.105(4) provides:

"The Secretary of State by rule shall designate a statistical sampling technique to verify whether a petition contains the required number of signatures of electors. A petition shall not be rejected for the reason that it contains less than the required number of signatures unless two separate sampling processes both establish that the petition lacks the required number of signatures. The second sampling must contain a larger number of signatures than the first...