Meyer v. Bradbury

• Citation: 142 P.3d 1031,341 Or. 288
• Decision Date: 07 September 2006
• Docket Number: SC S53693.,CC 04C20669.,CA A127935.,SC S53840.
• Parties: Andrea R. MEYER and David Fidanque, Respondents on Review, v. Bill BRADBURY, Secretary of State for the State of Oregon, Petitioner on Review, and David E. Delk, Petitioner on Review.
• Court: Supreme Court of Oregon

142 P.3d 1031

341 Or. 288

Andrea R. MEYER and David Fidanque, Respondents on Review, v. Bill BRADBURY, Secretary of State for the State of Oregon, Petitioner on Review, and David E. Delk, Petitioner on Review.

CC 04C20669.

CA A127935.

SC S53693.

SC S53840.

Supreme Court of Oregon, En Banc.

Argued and Submitted August 29, 2006.

Decided September 7, 2006.

On review from the Court of Appeals.^*

Charles E. Fletcher, Assistant Attorney General, Salem, argued the cause for petitioner on review Bill Bradbury. With him on the briefs were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Philip Schradle, Special Counsel to the Attorney General.

Daniel W. Meek, Portland, argued the cause and filed the briefs for petitioner on review David E. Delk.

Charles F. Hinkle, Portland, argued the cause for respondents on review. With him on the briefs was ACLU Foundation of Oregon, Inc.

John DiLorenzo, Jr. and Gregory A. Chaimov, Portland, filed briefs on behalf of amici curiae Center To Protect Free Speech, Inc. and Fred VanNatta.

Thomas M. Christ, Portland, filed an amicus curiae brief.

DE MUNIZ, C.J.

Plaintiffs brought this action to enjoin the Secretary of State from placing on the November 2006 general election ballot an initiative — Initiative Petition 8 (2006) (IP 8) — that would amend the Oregon Constitution to permit the state to regulate campaign contributions and expenditures. Plaintiffs asserted that, as proposed, the initiative contained two or more constitutional amendments that, under the separate-vote requirement set out in Article XVII, section 1, of the Oregon Constitution, must be voted on separately.¹ The trial court disagreed and granted summary judgment to both the Secretary of State and the initiative's chief petitioner (who had intervened as a defendant in the case). The Court of Appeals reversed that judgment, however, concluding that IP 8 did, indeed, violate the separate-vote requirement. Meyer v. Bradbury, 205 Or.App. 297, 134 P.3d 1005 (2006). We allowed the petitions for review of the Secretary of State and the initiative's chief petitioner and now, for the reasons that follow, reverse the decision of the Court of Appeals and affirm the judgment of the trial court.

We take the relevant facts from the Court of Appeals opinion:

"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."

Meyer, 205 Or.App. at 300-01, 134 P.3d 1005.

As noted, plaintiffs appealed that judgment. In the decision that followed, the Court of Appeals held that (1) under this court's decision in Foster v. Clark, 309 Or. 464, 790 P.2d 1 (1990), initiative challenges based on the separate-vote requirement properly could be brought before an election, Meyer, 205 Or.App. at 301-03, 134 P.3d 1005; (2) plaintiffs possessed the necessary standing to bring their action, id. at 304, 134 P.3d 1005; and (3) to the extent that plaintiffs were required to exhaust their administrative remedies before initiating their action, they had done so in this case. Id. at 306, 134 P.3d 1005.

Turning to the merits, the Court of Appeals then examined the text of IP 8, the full text of which is as follows:

"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 provision 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."²

To determine whether IP 8 violated the separate-vote requirement of Article XVII, section 1, the Court of Appeals drew on this court's decision in Armatta v. Kitzhaber, 327 Or. 250, 959 P.2d 49 (1998), inquiring under the paradigmatic phrase from that opinion "whether, if adopted, the proposal would make two or more changes to the constitution that are substantive and that are not closely related." Id. at 277, 959 P.2d 49.

Ultimately, the Court of Appeals concluded that IP 8 proposed two or more substantive changes to the Oregon Constitution that were not closely related. To reach that conclusion, the Court of Appeals viewed IP 8 as two sets of proposed changes to the Oregon Constitution: one that would amend the right to freedom of expression set out in Article I, section 8, and one that would amend Article IV, section 25.³ Meyer, 205 Or.App. at 308-09, 134 P.3d 1005. The court found the first change easy to explain:

"The first proposed change is straightforward. [The initiative] would create an exception to Article I, section 8, for `laws to prohibit or limit contributions and expenditures, of any type or description, to influence the outcome of any election.' Under IP 8, both the people, through the initiative process, and the legislature may enact such laws."⁴

Id. at 308, 134 P.3d 1005.

Respecting the second change, however, the court found the task more difficult:

"The proposed change to Article IV, section 25, is more complicated in that it would impact legislative power in several distinct ways. IP 8 provides that `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.' Thus, under IP 8, the legislature would be prohibited from passing such laws, except by a three-fourths majority. It would also be prohibited from amending any such legislation that it passed, except by a three-fourths majority. Finally, it would be prohibited from amending any such legislation that was adopted by the people through the initiative process, except by a three-fourths majority. As an example, under IP 8, the people could adopt legislation (by a simple majority under the initiative process) prohibiting campaign contributions, and the legislature would be powerless to amend that legislation, except by a three-fourths majority.

"We cannot say that the proposed change to Article IV, section 25 — which would have the profound effect of shifting the balance of power from the legislature to the people, through the initiative process, in matters related to campaign finance — is closely related to the change carving out an exception to Article I, section 8, for laws that prohibit or limit contributions and expenditures to influence the outcome of an election. We therefore conclude that IP 8 violates the separate-vote requirement in Article XVII, section 1."

Id. at 308-09, 134 P.3d 1005 (emphasis added). As a result, the Court of Appeals reversed the trial court's judgment. Both the Secretary of State and intervenor sought review of that decision, which we allowed.

On review, intervenor reiterates his position on several preliminary matters. Intervenor first argues, as he did before the Court of Appeals, that the preenactment status of IP 8 renders the controversy nonjusticiable and that plaintiffs lack standing to bring the present action because they failed to exhaust their administrative remedies. The Court of Appeals found both those arguments unavailing. For the reasons stated in the Court of Appeals opinion, we agree with that court's assessment of intervenor's arguments regarding justiciability and standing and decline to examine those particular issues further.⁵

The Secretary of State and intervenor also argue that the supermajority rule that IP 8 would add to Article IV, section 25, is not a substantive constitutional "change" in the same sense as this court used that term in Armatta. In addition, both the Secretary of State and intervenor argue, as they did below, that, if the potential for multiple constitutional changes is present in IP 8, then those changes are "closely related" as this court used that phrase in Armatta and therefore do not offend the Oregon Constitution's separate-vote requirement. In response, plaintiffs argue that, because IP 8 would change separate and unrelated provisions of the constitution in substantive ways, the Court of Appeals was correct in concluding that the proposed measure violates the separate-vote requirement. For the reasons that follow, we agree with the Secretary of State and intervenor that the changes proposed by IP 8 are "closely related" and do not offend the Article XVII, section 1, separate-vote requirement.

As noted, Article XVII, section 1, provides, in part:

"When two or more [constitutional] 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 Armatta, this court...