State ex rel. Anderson v. Paulus

• Decision Date: 08 September 1978
• Parties: STATE of Oregon ex rel. Herbert H. ANDERSON, David A. Rhoten, Henry R. Richmond, Petitioners, v. Norma PAULUS, Secretary of State, Defendant. SC 25771.
• Court: Oregon Supreme Court

Page 531

583 P.2d 531

283 Or. 241

STATE of Oregon ex rel. Herbert H. ANDERSON, David A.

Rhoten, Henry R. Richmond, Petitioners, v. Norma PAULUS, Secretary of State, Defendant.

SC 25771.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 5, 1978.

Decided Sept. 8, 1978.

Richard P. Benner, Portland, argued the cause for petitioners.

John A. Reuling, Jr., Sr. Asst. Atty. Gen., Salem, argued the cause for defendant.

PER CURIAM.

Petitioners ask this court to issue a writ of mandamus directing the Secretary of State to accept for publication in the Voters' Pamphlet for the November general election a certain explanatory statement prepared for Ballot Measure 10, an initiative measure. ¹ Petitioners are three members of the five-member committee selected pursuant to ORS 254.210(1) to prepare such a statement. ²

The statutes provide that the committee, prior to the election, "shall prepare for the particular measure and file as a public document with the Secretary of State, an impartial, simple and understandable statement explaining the measure and its effect." ORS 254.222(1). The Secretary of State then holds a public hearing "for the purpose of receiving suggested changes in any statement." ORS 254.222(2). After the hearing, the committee makes any changes in the statement which it considers proper; then,

" * * * (i)t shall file any revised statement with the Secretary of State not later than 95 days before the election. The original statement and any revised statement shall be concurred in and certified by the committee or at least three of its members. If a member does not concur, the statement shall show only that he dissents." ORS 254.222(3).

If the committee fails to file a statement "in the manner provided by ORS 254.222," then a statement prepared by the Legislative Counsel Committee serves as the explanatory statement in the Voters' Pamphlet. ORS 254.225, 255.410.

According to the petition before us and the supporting affidavits, the Secretary of State has refused to accept the revised explanatory statement approved by petitioners, who constitute a majority of the committee, because the copy filed with the Secretary of State's office on the statutory deadline was not signed by at least three committee members. Instead, the Secretary proposes to submit for publication the statement prepared by the Legislative Counsel Committee. ³

It appears that a copy of the revised statement, in which petitioners as a majority of the committee concurred, was delivered to the Secretary late in the afternoon of August 4, the statutory deadline, by another member of the committee together with notice of his own and the fifth committee member's dissent. Before the close of business that same day, the Secretary and her aide in the Elections Division spoke to petitioners individually by telephone. During these telephone conversations each of the petitioners had before him a copy of the revised statement and confirmed that the document delivered to the Secretary was the final revised version of the statement in which he had concurred. In each case this was accomplished by reading aloud and verifying portions of the document, including in each case those portions of the statement which distinguished it from earlier versions. Each of the petitioners, during these conversations, informed the Secretary or her aide that he concurred in the revised statement which had been filed with her office. Written confirmation of his concurrence was provided to the Secretary by each petitioner, but not until after August 4, the final day for filing.

The issue is whether these events constitute compliance with the requirement of ORS 254.222(3) that the revised statement, certified by at least three members of the committee, be filed with the Secretary by the statutory deadline. The controlling question is whether the statement was "certified." That term is not defined in the statutes setting out the procedures to be followed in preparing the statements for the Voters' Pamphlet. The Secretary contends that a certification must be in writing.

In general usage, certification may be accomplished without a writing. Webster's New International Dictionary of the English Language (2d ed. Unabridged 1961) includes the following relevant definitions of the verb "certify":

"1. To give certain information of; to make certain, as a fact; to attest authoritatively; to verify.

"2. To testify to in writing; to make a declaration concerning, in writing, under hand, or hand and seal. (Example omitted.)

"3. To give certain information to; assure; make certain."

Of these three definitions applicable to general usage of the word, only one the second includes a writing as an integral part of the act of certification. It appears, however, that this is the very meaning which has attached to the word when it is used in legislative enactments.

In State v. Gee, 28 Or. 100, 105, 42 P. 7 (1895) this court said, "To 'certify' means simply 'to testify in writing'; 'to make a declaration in writing' Webster." And in Stone Logging Co. v. Int. Woodworkers, 171 Or. 13, 36, 135 P.2d 759 (1943), the opinion states:

" * * * It conclusively appears that no action was taken by the National Labor Relations Board which could rise to the dignity of a certification. The informal (oral) statement of a field representative of the board * * * does not constitute a decision or a certification within the meaning of 29 U.S.C.A. § 159."

Neither case is dispositive of the question whether there can be an oral certification. In State v. Gee, supra, the question was the adequacy of a writing; the possibility of oral certification was not involved. In Stone Logging Co. the statute itself required that the matter be certified "in writing." 171 Or. at 24, 135 P.2d 759.

In other jurisdictions, however, the question occasionally has arisen whether a legislative enactment which requires that a matter be " certified," without more, requires a writing. The few cases which we have discovered unanimously hold that it does. Chicago & E.I.R. Co. v. People, 200 Ill. 237, 65 N.E. 701, 704 (1902); State v. Boner, 186 N.W.2d 161, 164-65 (Iowa 1971); State v. Eyrich, 120 Ohio App. 338, 195 N.E.2d 371, 376 (1963). The opinion in the Eyrich case says:

"The Court has searched through most standard legal works dealing with the terms 'certify', 'certified' and 'certification', and at no point in the law is there any indication that such an act can take place without being endorsed in one way or another upon a document or other paper-writing." 195 N.E.2d at 376.

Our own search has produced the same result. That result is consistent with the usual purposes of a legislative requirement of certification to secure not only a present assurance that a fact is true or a document genuine, but also to provide a record of that assurance for future reliance. Such a requirement not only provides a record for future reference, but also provides some protection against collusion, or accusations of collusion, between the public official and the individuals involved. Without the requirement of a writing, the question whether a fact or a document has been verified or...