Oregon Educ. Ass'n v. Phillips

• Decision Date: 21 October 1986
• Docket Number: C-10367
• Citation: 727 P.2d 602,302 Or. 87
• Parties: OREGON EDUCATION ASSOCIATION, a labor organization; Robert Crumpton; and Sandy Ellis, Respondents/Cross-Appellants, v. Ray PHILLIPS; C. Clare Donison; John G. Vandenberg, Respondents/Cross- Respondents, Barbara Roberts, Secretary of State of Oregon; and David B. Frohnmayer, Attorney General of Oregon, Appellants/Cross-Respondents. TC 86-; CA A41468; SC S33296.
• Court: Oregon Supreme Court

Page 602

727 P.2d 602

302 Or. 87

OREGON EDUCATION ASSOCIATION, a labor organization; Robert Crumpton; and Sandy Ellis, Respondents/Cross-Appellants, v. Ray PHILLIPS; C. Clare Donison; John G. Vandenberg Respondents/Cross- Respondents Barbara Roberts, Secretary of State of Oregon; and David B Frohnmayer, Attorney General of Oregon Appellants/Cross-Respondents.

TC 86-C-10367; CA A41468; SC S33296.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Oct. 7, 1986.

Decided Oct. 21, 1986.

Michael D. Reynolds, Asst. Atty. Gen., Salem, argued the cause for appellants/cross-respondents. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Robert D. Durham, Portland, argued the cause for respondents/cross-appellants. With him on the brief was Kulongoski, Durham, Drummonds & Colombo.

Richard M. Stephens, Sacramento, Cal., argued the cause for respondents/cross-respondents. With him on the brief were Ronald A. Zumbrun, Anthony T. Caso, and Pacific Legal Foundation, Sacramento.

LENT, Justice.

Because of the imminence of the general election to be held on November 4, 1986, all parties and the courts have taken part in the expediting of this case in an attempt to save from injury the initiative process so important to the people of this state. ¹ Many pages could be filled with discussion and decision of procedural issues presented by the record before us, but those issues must give way to the overridingly important one of whether the amendment to the state constitution proposed by the subject initiative "embrace[s] one subject only and matters properly connected therewith" as commanded by Article IV, section 1(2)(d), of the Oregon Constitution.

I.

Defendants Phillips, Donison and Vandenberg are the chief petitioners proposing the amendment, the text of which is: ²

"Be it enacted by the people of the State of Oregon:

"Section II [sic], Article XI of the Constitution of the State of Oregon is repealed, and the following section is adopted in lieu thereof.

"Section II [sic].

"(1)(a) The maximum rate of ad valorum [sic] taxes levied against any property for the fiscal year beginning July 1, 1987, shall not exceed two percent of the assessed value of such property, or the rate levied for the fiscal year beginning July 1, 1985, whichever is less.

"(b) Revenues produced by ad valorum [sic] taxes for the fiscal year beginning July 1, 1987, shall be distributed among taxing units in the same proportions as existed for the fiscal year beginning July 1, 1986.

"(c) The maximum rate of ad valorum [sic] taxes levied against any property for the fiscal year beginning July 1, 1988, and for each fiscal year thereafter, shall not exceed one and one-half percent of the assessed value of such property, or the rate levied for the fiscal year beginning July 1, 1985, whichever is less.

"(2) The limitation imposed by subsection (1) shall not apply to:

"(a) Ad Valorum [sic] taxes or special assessments levied to pay bonded indebtedness or interest thereon.

"(b) Non-operating serial levies that exist on July 1, 1986, and extend beyond July 1, 1987.

"(3) The assessed value of any property shall not increase in any one year by more than two percent above the prior year's assessed value.

"(4) All property sold, purchased, newly constructed, improved, or subject to change of ownership of [sic] eligibility for a specially assessed value subsequent to the fiscal year beginning July 1, 1987, shall be assigned the assessed value it had, or would have had in the case of newly constructed or improved property, for the fiscal year beginning July 1, 1985, adjusted for the intervening period under provisions of subsection (3).

"(5)(a) Notwithstanding subsection (1), the state, each city, county, special district, school district, or other taxing unit of or within the state may levy a new ad valorum [sic] tax rate or increase an existing ad valorum [sic] tax rate only upon approval of a majority of the legal voters of the taxing unit who vote on the question.

"(b) A question authorized by this subsection shall be submitted to the voters in a form specifying the reason for the new or increased tax rate, the amount of revenue it is intended to produce, and the time period during which it is to be in effect.

"(c) Elections authorized by this subsection shall be limited to the third Tuesday in May and the first Tuesday after the first Monday in November."

After the chief petitioners had filed their petition with the Secretary of State, she transmitted it to the Attorney General for preparation of a ballot title. The Attorney General certified a ballot title to the Secretary of State on January 23, 1986. On February 21, 1986, plaintiffs commenced in circuit court this case against the chief petitioners, the Secretary of State and the Attorney General, asserting that the proposed amendment offended Article IV, section 1(2)(d), of the Oregon Constitution, which provides:

"An initiative petition shall include the full text of the proposed law or amendment to the Constitution. A proposed law or amendment to the Constitution shall embrace one subject only and matters properly connected therewith."

With the acquiescence of all parties, the prosecution of the case was suspended pending final disposition of another case then pending on appeal. Final disposition of that case was achieved by decision of this court in OEA v. Roberts, 301 Or. 228, 721 P.2d 833 (1986), which became final on July 31, 1986.

After our announcement of the decision in OEA v. Roberts, supra, but before it became final, the Secretary of State certified the subject measure for the ballot, designating it Ballot Measure Number 9.

On August 15, 1986, plaintiffs wrote to the Secretary of State inquiring whether she intended to review the measure for compliance with Article IV, section 1(2)(d), of the Oregon Constitution (hereinafter subsection (2)(d)). She answered that she did not.

Plaintiffs then filed a motion for summary judgment that the measure violated subsection (2)(d) or, alternatively, that the court order the Secretary of State to review the measure for compliance with the subsection.

The Secretary of State and the Attorney General opposed plaintiffs' motion and filed their own motion for summary judgment on their affirmative defense of laches.

Defendant chief petitioners filed their written opposition to plaintiffs' motion, joining in the assertion of laches and arguing alternatively that the court should not undertake review of the measure for compliance with subsection (2)(d) without first requiring the Secretary of State to do so. Alternatively to that position, they argued that if the court were to reach the question, it should hold that the measure does not violate the constitutional command.

The trial court disposed of the matter on the cross motions for summary judgment, entering judgment as follows:

"[T]he Secretary of State is required to perform the one subject review of Ballot Measure Number 9 pursuant to Article IV § 1(2)(d) of the Oregon Constitution AND OEA v. Roberts, 301 Or 228 (1986)."

The Secretary of State and the Attorney General promptly appealed to the Court of Appeals, and plaintiffs timely cross appealed. The Court of Appeals certified the appeal to this court pursuant to ORS 19.210 and ORAP 17.05, and this court timely accepted the certified appeal.

The Secretary of State and the Attorney General contend on appeal that the trial court erred in ordering the Secretary of State to review the subject measure and that the sole question on appeal is "whether Ballot Measure 9 contains more than one subject, in violation of Article IV, section 1(2)(d), and, hence, the Secretary of State's approval of the measure was invalid." ³

Plaintiffs answer the appeal by contending that the trial court did not err, but that the trial court

"should have addressed Secretary Roberts' second error described above [that she failed to declare the initiative invalid], and declared that Ballot Measure 9 embraces more than one subject in violation of the Oregon Constitution."

In their cross appeal, plaintiffs contend that the trial court erred in failing to instruct the Secretary of State to declare that the subject measure is invalid and in refusing to address the merits of that claim by plaintiffs. Plaintiffs have addressed the merits both by their written brief and in oral argument.

In their answering brief as respondents, the chief petitioners urge that the trial court properly disposed of the matter and that the court should not conduct the review that is the Secretary of State's initial responsibility. They argue that if this court does reach the question whether the subject measure offends subsection (2)(d), we should decide that it does not. They have fully briefed that question, as have the other parties.

Although we should much prefer that this case arose on judicial review (in some proper form) of a ruling of the Secretary of State in the first instance and that this case reached us after ordinary judicial scrutiny in the trial court and Court of Appeals, we have concluded that the circumstances call for a decision now by this court on the ultimate issue. In so proceeding, we do not intend that this approach serve as precedent for ignoring such doctrines as primary agency jurisdiction, exhaustion of administrative remedies, Administrative Procedure Act review of orders in noncontested cases, basis in the pleadings for judgment rendered, preservation of error, etc. Rather, those who would resort to the courts to contend for or against claims such as that now confronting us are warned that our allegiance to normal procedure will not ordinarily be governed by expedience.

II.

All parties are agreed that this court has never addressed the meaning of "one subject only and matters properly connected therewith" as used in subsection (2)(d). The Secretary of State, the Attorney General and the chief petit...