State ex rel. Fidanque v. Paulus
| Decision Date | 05 September 1984 |
| Citation | 688 P.2d 1303,297 Or. 711 |
| Parties | STATE of Oregon ex rel. David J. FIDANQUE, Lisa Fithian-Barrett, and Paul K. Wichman, Plaintiff-Relators, v. Norma PAULUS, Secretary of State of the State of Oregon, Defendant, Robert Kouns, Intervenor. SC S31002. |
| Court | Oregon Supreme Court |
Richard M. Botteri and Leland R. Berger, Portland, argued the cause and filed a Memorandum and Application and Petition for Writ of Mandamus for plaintiff-relators. With them on the Memorandum and Application and Petition was Emily Simon, Portland.
[297 Or. 712-A] Virginia Linder, Asst. Atty. Gen., Salem, argued the cause and filed Motion to Dismiss Alternative Writ of Mandamus and Memorandum for defendant. With her on the Motion and Memorandum were Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., John A. Reuling, Jr., Sp. Counsel, and Robert M. Atkinson, Asst. Atty. Gen., Salem.
John C. Bradley, Portland, argued the cause and filed briefs on behalf of intervenor Robert Kouns.
This is a mandamus proceeding over which this court took original jurisdiction pursuant to Article VII, (Amended), section 2, of the Oregon Constitution, and ORS 34.120. It relates to Ballot Measure Number 8 titled "Revises Numerous Criminal Laws Concerning Police Powers, Trials, Evidence, Sentencing."
Plaintiff-Relators allege that the Secretary of State breached her constitutional duty by certifying a prospective petition and allocating to it a ballot number in violation of the single issue requirement of Article IV, section 1(2)(d) of the Oregon Constitution. This case raises three issues: timeliness, jurisdiction and the interpretation of Article IV, section 1(2)(d) and section 1(4)(b). We do not reach the last two issues because we find that the action was not timely.
On September 28, 1983, a prospective petition that eventually became Ballot Measure Number 8 was filed with the Secretary of State's office. That office sent copies of the signature pages to Multnomah, Clackamas and Washington Counties for verification. 1 The counties verified the signatures and returned them to the Secretary of State and on October 6, 1983, she sent two copies of the prospective petition to the Attorney General's office for preparation of a ballot title. On October 20, 1983, the Attorney General certified and returned to the Secretary of State a ballot title. ORS 250.065(3).
On October 21, 1983, the Secretary of State issued a press release describing the proposed initiative. The ballot title was appealed to this court on November 9, 1983, and on January 24, 1984, this court certified a modified ballot title. Wells v. Paulus, 296 Or. 338, 675 P.2d 482 (1984). On July 20, 1984, the Secretary of State, after verifying that sufficient signatures had been collected, assigned Ballot Measure Number 8 to the initiative petition. On August 8, 1984, plaintiff-relators filed an application and petition for writ of mandamus in this court.
Plaintiff-Relators allege that the 1968 amendment of Article IV of the Oregon Constitution both imposed a new limitation on the exercise of the initiative power and created a new duty for the Secretary of State, neither concept heretofore having been part of Oregon's initiative process. Plaintiff-Relators rely specifically on the following two sections of Article IV of the Oregon Constitution: 2
Section 1(2)(d) provides:
Section 1(4)(b) provides:
"Initiative and referendum measures shall be submitted to the people as provided in this section and by the law not inconsistent therewith."
Plaintiff-Relators contend that the addition of section 1(2)(d) and section 1(4)(b) requires the Secretary of State to make an independent determination whether the prospective petition complies with the "one subject only" language of section 1(2)(d). Plaintiff-Relators further argue that cases holding that the court is without power to entertain a preelection challenge to the constitutionality of a statute have no application to a mandamus action directed to the Secretary of State if the mandamus action is an attempt to force her to comply with the "one subject only" provision. 3
Assuming for the sake of argument that a duty was created, the issue then becomes at what point the Secretary of State is charged with the performance of that duty. ORS 250.045(1) requires that, prior to circulating a petition under section 1, Article IV, the petitioner must file the prospective petition with the Secretary of State. That statute reads:
ORS 250.065(2) provides that:
"When an approved prospective petition for a state measure to be initiated is filed with the Secretary of State, the secretary immediately shall send two copies of it to the Attorney General."
Plaintiff-Relators argue that the Secretary of State breached her duty on July 20, 1984 when she certified the petition and assigned to it a ballot measure number. However, in light of the statutes and existing caselaw, we hold that if the Plaintiff-Relators' allegation that a duty was created is correct, that duty would have been breached when the prospective petition was approved under ORS 250.065(2) and was sent to the Attorney General for a ballot title. 4 It is this determination that provides the first opportunity for the Secretary of State to exercise her official power with respect to the prospective petition. If, as the Plaintiff-Relators contend, there is a constitutional duty to act, it would arise at this time. It is in approving a prospective petition which did not comply with the alleged requirements of Article IV, section 1, that the Secretary of State's authority under the constitution and statutes first would be exceeded and her duty breached. 5
In Holmes v. Appling, 237 Or. 546, 554-55, 392 P.2d 636 (1964), this court addressed the issue of when the duty of the Secretary of State to determine his constitutional authority arose. In Appling, Plaintiff-Relators were attempting to force the Secretary of State to furnish a ballot title for a proposed law. The Secretary of State refused to furnish the ballot title "because he had been advised by the Attorney General that the petition proposed a new constitution or a revised constitution and that the initiative power reserved to the people to amend the constitution does not permit the submission to the people of a revised or new constitution and that he was acting upon such advice." Id. at 548, 392 P.2d 636.
In essence, the Appling court said that the Secretary of State had the initial duty to determine if the constitution allowed the action being taken by the Plaintiff-Relators stating: "[T]he defendant [Secretary of State] necessarily was required to determine whether our laws granted him authority to pursue the course which the plaintiffs requested." Id. at 554, 392 P.2d 636. Thus, it would be at the approval stage of the prospective petition that the Secretary of State has the duty to determine if the requested action was constitutional.
The Appling court recognized that while neither the court nor the Secretary of State could review the merits of the proposed initiative for its constitutionality before enactment, the Secretary had an affirmative duty to determine whether the constitution granted the authority to approve the proposed initiative and to place it on the ballot in the first place. The distinction drawn by Appling is between the substantive validity of the measure proposed and the attempt to use the initiative process for an invalid purpose.
Assuming a duty was created by the 1968 changes, then the court must examine if the extraordinary remedy of a writ of mandamus is appropriate in light of the facts in this case. "A writ of mandamus * * * is not awarded as a matter of right, but on equitable principles." Buell v. Jefferson County Court, 175 Or. 402, 410, 152 P.2d 578, reh. den. 154 P.2d 188 (1944). State v. Reid, 207 Or. 617, 631, 298 P.2d 990 (1956); Lafferty v. Newbry, 200 Or. 685, 702, 268 P.2d 589, (1954). Further, mandamus "is an extraordinary remedial process which is awarded not as a matter of right, but in the exercise of a sound judicial discretion * * *." Buell, 175 Or. at 408, 152 P.2d 578.
This court has long recognized that the concept of laches applies to writs of mandamus:
"Laches is a bar to mandamus, and a petitioner desiring to avail himself of the benefits of such a writ must act promptly: [citation omitted]. * * *."
Paine v. Wells, 89 Or. 695, 703, 175 P. 430 (1918); Buell, 175 Or. at 410, 152 P.2d 578.
When looking at the facts in this case, the breach of duty, if any, initially occurred on or about October 6, 1983, when the Secretary of State referred the petition to the Attorney General for a ballot title. In Buell, we stated:
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