Swett v. Bradbury

• Decision Date: 11 April 2002
• Citation: 43 P.3d 1094,333 Or. 597
• Parties: Michael SWETT; David Fidanque; and the American Civil Liberties Union of Oregon, Inc., Respondents on Review, v. Bill BRADBURY, Secretary of State, and the State of Oregon, Petitioners on Review, and Virginia Markell, Laurence Perry, and Susan Remmers, Intervenors-Respondents.
• Court: Oregon Supreme Court

43 P.3d 1094

333 Or. 597

Michael SWETT; David Fidanque; and the American Civil Liberties Union of Oregon, Inc., Respondents on Review, v. Bill BRADBURY, Secretary of State, and the State of Oregon, Petitioners on Review, and Virginia Markell, Laurence Perry, and Susan Remmers, Intervenors-Respondents.

(CC 98-C-20484; CA A107552 (Control), A107799; SC S48116).

Supreme Court of Oregon, En Banc.

Argued and Submitted November 6, 2001.

Decided April 11, 2002.

Philip Schradle, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioners on review. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Thomas M. Christ, of Cosgrave, Verger & Kester LLP, Portland, argued the cause and filed the brief for respondents on review.

No appearance for intervenors-respondents.

GILLETTE, J.

Plaintiffs brought this action against the State of Oregon and the Secretary of State (defendants) under the Uniform Declaratory Judgments Act, ORS 28.010 et seq., challenging the constitutionality of Ballot Measure 62 (1998) (Measure 62), the "Open and Fair Elections Act." Plaintiffs asserted, inter alia, that Measure 62 contained two or more constitutional amendments that should have been voted on separately under Article XVII, section 1, of the Oregon Constitution, set out post. The circuit court disagreed, and plaintiffs appealed. The Court of Appeals reversed, concluding that Measure 62 violated the separate-vote provision of Article XVII, section 1, because it made multiple, substantive changes to the Oregon Constitution that were not closely related. Swett v. Keisling, 171 Or.App. 119, 127, 15 P.3d 50 (2000). We allowed defendants' petition for review and now affirm the decision of the Court of Appeals.

The people approved Measure 62 at the November 1998 general election. It purports to add ten new sections to the Oregon Constitution. It provides, in part:

"OPEN AND FAIR ELECTIONS ACT

"The following sections are added to and made a part of the Constitution of the State of Oregon:

"Section 1. Disclosure of Large Contributions

"In addition to any other disclosures required by law, the recipient of aggregate political contributions of $500 or more from one contributor during any one calendar year shall disclose such contribution and any subsequent contributions from that contributor to the Secretary of State or other appropriate reporting authority within seven days of receipt. * * *

"Section 2. Disclosure of Contributions During Petition Signature Gathering

"(1) The chief petitioner(s) on all petitions for a statewide initiative or referendum shall be responsible for disclosing to the Secretary of State all contributions received and expenditures made in support of the petition, including expenditures made for the purpose of collecting signatures or paying signature gatherers. * * *

"(2) Before any entity receives a contribution or makes an expenditure for the purpose of influencing the collection of signatures on a proposed statewide initiative or referendum petition, that entity shall file a statement of organization with the Secretary of State, form a petition political committee, and thereafter disclose contributions and expenditures as required in subsection (1) herein.

"Section 3. Making Signature Gatherers Be Registered Oregon Voters, Permitting Regulation of Payment for Signatures, and Specifying Effective Date of This Constitutional Amendment

"Section 1, Article IV of the Constitution of the State of Oregon, is amended by adding a new subsection, and the Constitution of the State of Oregon is amended by creating new Sections 1b and 1c to be added to and made a part of Article IV to read:

"A person gathering signatures on an initiative or referendum petition shall be registered to vote in this state in the manner provided by law.

"Section 1b. Permitting Regulation of Payment for Signatures

"The Legislative Assembly may pass laws which prohibit or regulate payment for gathering signatures for initiative or referendum petitions on a per signature basis if the Legislative Assembly finds that the practice has caused fraud or other abuses.

"* * * * *"

Plaintiffs are two voters and the American Civil Liberties Union of Oregon, Inc. They filed this challenge on December 2, 1998, the day before the Secretary of State officially certified that the voters had adopted Measure 62.

In their first claim for relief, plaintiffs sought a declaration that Measure 62 was adopted in violation of two provisions of the Oregon Constitution: the separate-vote requirement of Article XVII, section 1, as noted above, and the single-subject requirement of Article IV, section 1(2)(d).¹ In their second claim for relief, plaintiffs sought a declaration that section 2(2) of Measure 62, set out above, concerning disclosure by any entity of contributions made or received "for the purpose of influencing the collection of signatures on a proposed statewide initiative or referendum petition," violated the First and Fourteenth Amendments to the Constitution of the United States. Their third claim for relief concerned attorney fees. The chief petitioners for Measure 62 intervened.

The parties submitted cross-motions for summary judgment on the separate-vote issue only. The trial court, without opinion, denied plaintiffs' and granted defendants' and intervenors' motions. Plaintiffs voluntarily dismissed their remaining claims, and the trial court entered judgment in favor of defendants and intervenors. As noted, plaintiffs appealed.

In the Court of Appeals, the parties agreed that, to determine whether a proposed constitutional amendment violates the separate-vote requirement of Article XVII, section 1, "the proper inquiry is to determine whether, if adopted, the proposal would make two or more changes to the constitution that are substantive and that are not closely related." See Armatta v. Kitzhaber, 327 Or. 250, 277, 959 P.2d 49 (1998) (stating that test). Furthermore, plaintiffs and defendants agreed that Measure 62 purported to make more than one substantive change to the Oregon Constitution.² They disagreed, however, about whether the changes that Measure 62 made to the constitution were "closely related." Plaintiffs argued that, under the Court of Appeals' decision in Dale v. Keisling, 167 Or.App. 394, 404, 999 P.2d 1229 (2000), the changes were not "closely related" because a vote in favor of one change did not "necessarily imply" a vote in favor of the others, as the Dale decision required. Defendants argued that the Court of Appeals should reconsider its decision in Dale. They further argued that that court should adopt defendants' own proposed standard and conclude that the changes that Measure 62 made were "closely related" because they "were so logically interrelated as to present one specific, discrete, cohesive policy choice."

As noted above, the Court of Appeals reversed. That court explained that, under either the standard that it had articulated in Dale or the standard that defendants had offered, Measure 62 purported to make substantive changes to the Oregon Constitution that were not closely related. Swett, 171 Or.App. at 127, 15 P.3d 50. By way of example, the Court of Appeals focused on sections 1 and 3 of Measure 62 and explained:

"[S]ection 1 of Measure 62 requires disclosure of certain large political contributions, while section 3 requires that initiative petition signature gatherers be registered Oregon voters. We are hard-pressed to understand the single, specific[,] unifying purpose that is accomplished by the enactment of those two sections. The Secretary suggests that the measure is designed to prevent, control or expose the influence of money in the electoral process. Yet even that explanation fails to account for the requirement that initiative petition signature gatherers be registered Oregon voters."

Id. (internal quotations omitted). Defendants, but not intervenors, petitioned for review.

On review, defendants for the first time raise an issue of subject matter jurisdiction. They argue that the trial court did not have jurisdiction to hear this challenge under ORS 28.010 because ORS 250.044³ provides the exclusive means of bringing a ballot-measure challenge after the voters adopt a measure. They further argue that the trial court did not have jurisdiction under ORS 250.044, because any challenge under that statute may not be brought until after the Secretary of State formally certifies the results of an election and, in this case, plaintiffs brought their challenge on the day before the Secretary of State formally certified that Measure 62 had passed.⁴ As to the merits, defendants renew the arguments that they made in the Court of Appeals.

We begin our discussion of the issues in this case by addressing defendants' argument concerning subject matter jurisdiction. As noted, the trial court assumed jurisdiction under ORS 28.010, which provides, in part:

"Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. * * *"

Although a trial court has broad power to provide declaratory relief, it lacks subject matter jurisdiction under ORS 28.010 if some other exclusive remedy exists. Alto v. State Fire Marshal, 319 Or. 382, 395, 876 P.2d 774 (1994). In this case, defendants argue that the trial court lacked jurisdiction under ORS 28.010 because the legislature intended ORS 250.044 to be the exclusive means for challenging a ballot measure after an election. To determine if defendants are correct in that regard, we examine the text and context of ORS 250.044. See PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993) (to determine legislative intent, first step is to examine text of statute, read in context).

ORS 250.044 provides, in part:

"(1) An action that challenges the constitutionality of...