Swett v. Keisling

• Decision Date: 22 November 2000
• Parties: Michael SWETT; David Fidanque and the American Civil Liberties Union of Oregon, Inc., Appellants, v. Phil KEISLING, Secretary of State; and the State of Oregon, Respondents, and Virginia Markell; Laurence Perry and Susan Remmers, Intervenors-Respondents.
• Court: Oregon Court of Appeals

15 P.3d 50

171 Or. App. 119

Michael SWETT; David Fidanque and the American Civil Liberties Union of Oregon, Inc., Appellants, v. Phil KEISLING, Secretary of State; and the State of Oregon, Respondents, and Virginia Markell; Laurence Perry and Susan Remmers, Intervenors-Respondents.

(98C-20484; CA A107552 (Control), CA A107799)

Court of Appeals of Oregon.

Argued and Submitted October 30, 2000.

Decided November 22, 2000.

Thomas M. Christ, Portland, argued the cause and filed the briefs for appellants.

David Schuman, Deputy Attorney General, argued the cause for respondents. With him on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Paul B. Gamson, Portland, argued the cause for intervenors-respondents. On the brief were Margaret S. Olney, Portland, and Smith, Gamson, Diamond & Olney.

Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.

LANDAU, P.J.

Plaintiffs initiated this action for declaratory judgment to determine whether 1998 Ballot Measure 62 (Measure 62) contains two or more constitutional amendments that must be voted on separately under Article XVII, section 1, of the Oregon Constitution. Secretary of State Bill Bradbury (Secretary)¹ and intervenors argued that the measure contains no more than one amendment, and the trial court so held. Plaintiffs appeal, and we reverse and remand for entry of judgment declaring that Measure 62 violates Article XVII, section 1.

Measure 62, also known as the "Open and Fair Elections Act," appeared on the ballot at the general election of November 3, 1998. It amends the state constitution by adding to it ten new sections. Section 1 requires recipients of political contributions in excess of $500 from a single contributor in a single year to report the contributions. Section 2 requires the chief petitioners of statewide initiative measures to disclose all contributions made in support of the petition, including contributions made and expenditures received for the collection of petition signatures. It also requires any entity that works to gather such signatures to file a statement of organization with the Secretary. Section 3 requires that initiative petition signature gatherers must be registered Oregon voters. Section 4 requires that all individuals who collect initiative petition signatures obtain a license and submit to reporting requirements as specified by the Secretary. Section 5 announces a right of citizens to participate in the political process through, among other things, payment of political contributions through electronic transfer, automatic payment through a financial institution, and payroll deduction by public or private employers. Section 6 requires persons who pay for political advertisements to identify themselves in the advertisement. Section 7 requires the Secretary to disclose all contributions and expenditure reports to the public. Section 8 prohibits paying any person to sign or to refrain from signing an initiative, referendum, or recall petition and further prohibits accepting payment for doing the same. Section 9 authorizes the Secretary to impose various penalties for violating the provisions of Measure 62. Section 10 is a severability provision.

The voters approved Measure 62 at the November 3, 1998, general election. Plaintiffs then initiated this action challenging the constitutionality of the measure. The parties filed cross-motions for summary judgment, and the trial court denied plaintiffs' motion, allowed the motion of the Secretary and intervenors, and entered judgment declaring that Measure 62 does not violate Article XVII, section 1.

On appeal, plaintiffs argue that, in light of the Supreme Court's decision in Armatta v. Kitzhaber, 327 Or. 250, 959 P.2d 49 (1998), and our subsequent decision in Dale v. Keisling, 167 Or.App. 394, 999 P.2d 1229 (2000), the trial court erred in concluding that Measure 62 does not violate Article XVII, section 1. The Secretary does not debate that, at least under our decision in Dale, Measure 62 cannot survive constitutional scrutiny. The Secretary argues, however, that Dale is not controlling for two reasons. First, the Secretary argues that Dale lacks any precedential force, because the case later became moot. Second, and in the alternative, the Secretary argues that Dale was wrongly decided. Intervenors argue that Dale is simply irrelevant, because additions to the constitution—as opposed to amendments of existing provisions—do not trigger the separate-vote analysis of Article XVII, section 1.

We begin with intervenors' argument because, if intervenors are correct, we need not proceed to the other parties' arguments. Article XVII, section 1, provides, in part:

"When two or more amendments shall be submitted * * * 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, the Supreme Court examined in detail the language and history leading to the enactment of Article XVII, section 1, and, based on that examination, established the following test for determining whether a measure violates that section of the constitution:

"We conclude that 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. If the proposal would effect two or more changes that are substantive and not closely related, the proposal violates the separate-vote requirement * * *."

Armatta, 327 Or. at 277, 959 P.2d 49. Thus, the test consists of three inquiries: (1) Does the measure effect two or more "changes" to the constitution? (2) Are those changes "substantive" in nature? And, (3) are those changes "closely related"? Intervenors' argument goes to the first of the three inquiries.

Armatta did not address what precisely constitutes a "change" to the constitution. The court, however, did make this much clear: The focus is not on the form of the amendment itself, but rather on the effect its enactment has on the existing constitution. As the court explained:

"Although Article XVII, section 1, does not define what is meant by `two or more amendments,' it is important to note that the text focuses upon the potential change to the existing constitution, by requiring that two or more constitutional amendments be voted upon separately."

Id. at 263, 959 P.2d 49 (emphasis in original). Thus, whether the amendment takes the form of an addition, as opposed to a change to existing language, is not determinative.

Intervenors argue that, in any event, Measure 62 effects no changes to the constitution, because nothing in the measure conflicts with existing constitutional text. They argue that, for example, nothing in the pre-1998 constitution spoke to the question whether solicitors of initiative petition signatures must be registered voters. Therefore, they conclude, the provisions of Measure 62 that impose such a requirement "change" nothing in the existing constitution and merely "add" the requirement. In our view, intervenors view the effects of Measure 62 too narrowly.

The constitution generally distributes power between the people and the several branches of government. Among other things, it creates a legislature with plenary power to legislate on any matters, subject only to limitations that the state or federal constitutions themselves impose. State v. Moyle, 299 Or. 691, 699, 705 P.2d 740 (1985) ("In principle, legislative power to select the objectives of legislation is plenary, except as it is limited by the state and federal constitutions."); Sherwood School Dist. 88J v. Washington Cty. Ed., 167 Or.App. 372, 387, 6 P.3d 518 (2000) (same). Thus, before 1998, so far as the state constitution was concerned, the legislature was free to choose whether to require that initiative petition signature gatherers be registered voters; that is to say, the legislature could have determined that such individuals need not be registered voters. Under Measure 62, the legislature no longer has the authority to make that determination. That, under any reasonable definition of the term, is a "change" in the authority of the legislature under the state constitution. Similarly, before the enactment of Measure 62, so far as the state constitution was concerned, the legislature was free to choose whether individuals who pay for political advertisements must disclose that fact; that is to say, the legislature could have determined that such individuals need not make such disclosures. Under Measure 62, however, the legislature no longer has the authority to make that...