Meyer v. Bradbury

• Decision Date: 26 April 2006
• Docket Number: 04C-20669; A127935.
• Citation: 134 P.3d 1005,205 Or. App. 297
• Parties: Andrea R. MEYER and David Fidanque, Appellants, v. Bill BRADBURY, Secretary of State for the State of Oregon, Respondent, and David E. Delk, Respondent.
• Court: Oregon Court of Appeals

134 P.3d 1005

205 Or. App. 297

Andrea R. MEYER and David Fidanque, Appellants, v. Bill BRADBURY, Secretary of State for the State of Oregon, Respondent, and David E. Delk, Respondent.

04C-20669; A127935.

Court of Appeals of Oregon.

Argued and Submitted November 29, 2005.

Decided April 26, 2006.

Charles F. Hinkle argued the cause for appellants. With him on the briefs were Scott J. Kaplan and ACLU Foundation of Oregon, Inc. Charles E. Fletcher, Assistant Attorney General, argued the cause for respondent Bill Bradbury. With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Daniel W. Meek, Portland, argued the cause and filed the briefs for respondent David Delk.

Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges.

ROSENBLUM, J.

Plaintiffs brought this action seeking to enjoin defendant Secretary of State from placing a proposed initiative, Initiative Petition (IP) 8, on the November 2006 ballot on the ground that it violates the separate-vote requirement found in Article XVII, section 1, of the Oregon Constitution. The trial court concluded that IP 8 did not propose more than one substantive change to the constitution, denied plaintiffs' motion for summary judgment, and granted defendants' motion.¹ Plaintiffs appeal, assigning error to those rulings. In response, defendants raise several arguments as to why the trial court's judgment should be affirmed on appeal. Among those is that plaintiffs lack standing to bring this action, that they have failed to exhaust their administrative remedies, that IP 8 does not propose more than one substantive change to the constitution, and that, even if it did, those changes are closely related and therefore do not run afoul of the separate-vote requirement. In addition to the issues raised by the parties, we address the preliminary matter of justiciability in light of the pre-election nature of this challenge. We conclude that it is justiciable. We also reject defendants' standing and exhaustion arguments and conclude that IP 8 violates the separate-vote requirement. We therefore reverse.

To place the procedural posture of this case in context, we begin with a brief overview of the initiative process. Article IV, section 1(2)(a), of the Oregon Constitution provides, "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." The first step in the initiative process is for the petitioner to file a prospective petition with the Secretary of State. ORS 250.045. The prospective petition must include a copy of the measure to be initiated and a statement of sponsorship signed by at least 25 electors. Id. If the Secretary of State approves the prospective petition, the secretary must send copies of the prospective petition to the Attorney General to draft a ballot title. After a ballot title has issued, the petition may be circulated to gather the requisite number of signatures.² Then, the Secretary of State must verify the signatures and certify the petition for the ballot. ORS 250.105.

The initiative petition in this case, IP 8, involves campaign financing. It provides:

"Be it enacted by the People of the State of Oregon, there is added an Article II, section 24, of the Constitution of Oregon, as follows:

"Notwithstanding any other provisions of this Constitution, the people through the initiative process, or the Legislative Assembly by a three-fourths vote of both Houses, may enact and amend laws to prohibit or limit contributions and expenditures, of any type or description, to influence the outcome of any election."

Defendant Delk, the chief petitioner for IP 8, gathered the requisite 25 elector signatures and submitted IP 8 to defendant Secretary of State for review. Defendant Secretary of State accepted comments on IP 8, including one from plaintiffs, who objected to IP 8 on the ground that it violates the separate-vote requirement of Article XVII, section 1. Defendant Secretary of State disagreed and engaged the Attorney General to draft a ballot title for IP 8. Defendant Secretary of State received no objections to the form of the ballot title and subsequently approved IP 8 for circulation.

Plaintiffs then brought this action seeking declaratory and injunctive relief against defendant Secretary of State, again arguing that he should not have approved IP 8 for circulation, on the ground that it violates the separate-vote requirement. Defendant Delk intervened in the action and raised several affirmative defenses, including lack of standing and failure to exhaust administrative remedies. Defendant Delk also joined defendant Secretary of State in asserting that IP 8 does not violate the separate-vote requirement of Article XVII, section 1. All parties agreed that there were no disputed issues of fact, and each moved for summary judgment. The trial court denied plaintiffs' motion, granted defendants', and entered judgment accordingly.

The parties renew their arguments on appeal. Before we address those arguments, however, we consider the preliminary issue of whether this case is justiciable. See Oregon Medical Association v. Rawls, 281 Or. 293, 296, 574 P.2d 1103 (1978) (noting that appellate courts must consider justiciability regardless of when or whether it was raised to them or to any other court). After the initial briefing and oral arguments, this court asked the parties to submit supplemental briefing addressing whether a party may bring a pre-election challenge based on the separate-vote requirement of Article XVII, section 1, of the Oregon Constitution. Specifically, we asked the parties to address State ex rel. v. Newbry et al., 189 Or. 691, 222 P.2d 737 (1950)—in which the Supreme Court held that a court could not entertain a pre-election challenge to an initiative based on the separate-vote requirement—and the Supreme Court's treatment of that case in its later opinions. Plaintiffs respond that, although Newbry involved a challenge identical to the one at issue here, it no longer controls, having been overruled by Foster v. Clark, 309 Or. 464, 790 P.2d 1 (1990). Defendant Secretary of State agrees that, although Foster did not explicitly overrule Newbry, it did so implicitly. We agree with the parties that Newbry is no longer controlling.

In Foster, the court addressed whether a person could challenge a measure, before the election, on the ground that it was not "municipal legislation" and therefore not a proper subject for an initiative measure under Article IV, section 1(5), of the Oregon Constitution.³ 309 Or. at 466, 790 P.2d 1. The court noted that there were two lines of cases discussing whether a particular challenge to a measure may be brought before an election and that they "appear to run in different directions." Id. at 470, 790 P.2d 1. The court identified Newbry as falling into the first line of cases, which the intervenor had "read too much into." Id. at 469, 790 P.2d 1. Although the court also stated that the Newbry line of cases could continue to be read for the proposition 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 or until the measure is passed," it indicated that, in general, that line of cases was not clearly reasoned and ran contrary to the line of cases stating the "correct rule." Accordingly, the court would no longer adhere to the Newbry line of cases. Instead, it would adhere to the more recent line of cases "as being more clearly reasoned and stating the correct rule." Id. at 471, 790 P.2d 1.

The court then applied the "correct rule" in the context of municipal legislation and held that a challenge on that basis could be brought before the election "because that qualifying language is used in the constitution itself." Id. In other words, the challenge could be brought before the election because it was based on language in the constitution that qualifies or limits the initiative power.

Our discussion in Beal v. City of Gresham, 166 Or.App. 528, 998 P.2d 237 (2000), reinforces the conclusion that Newbry is no longer controlling. In Beal, we noted that, before the Supreme Court's decision in OEA v. Roberts, 301 Or. 228, 721 P.2d 833 (1986), the general rule was that no challenge to a measure could be brought before the election. Beal, 166 Or.App. at 533, 998 P.2d 237. We cited Newbry for that general rule. Id. We then noted that Foster had formulated a new rule that courts "`will prevent a measure from being placed on the ballot if the measure is legally insufficient to qualify for that ballot.'" Id. at 534, 998 P.2d 237, (quoting Foster, 309 Or. at 469, 790 P.2d 1).

Applying that rule here, we conclude that a challenge to a proposed measure on the ground that it violates the separate-vote requirement may be brought before the election. Article XVII, section 1, provides, in part, "When two or more amendments shall be submitted in the manner aforesaid to the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separately." In our view, that language speaks to the "legal sufficiency" of a proposed initiative. Although "legal sufficiency" has not been clearly defined in the post-Foster cases, Foster does instruct that it reaches further than an insufficient number of signatures. Without other guidance, we conclude that the challenge here — brought under the separate-vote requirement and based on language in the constitution that contains a qualification for placing a measure on the ballot—is a matter of legal sufficiency. As such, it constitutes an appropriate pre-election challenge. Cf. Armatta v. Kitzhaber, 327 Or. 250, 259, 959 P.2d 49 (1998) (noting that "submission of such [initiative and referendum] measures shall be guided both by Article IV,...