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Harisay v. Atkins

Court of Appeals of Oregon

December 19, 2018

Richard HARISAY; Charles Montgomery; and Stephen Bintliff, Chief Petitioners and Electors of the State of Oregon, Plaintiffs-Appellants,
v.
Jeanne ATKINS, Secretary of State of Oregon, Defendant-Respondent.

          Submitted March 2, 2017

          Marion County Circuit Court 14C21951 David E. Leith, Judge.

         Daniel W. Meek fled the briefs for appellants.

          Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Michael A. Casper, Assistant Attorney General, fled the brief for respondent.

          Before DeVore, Presiding Judge, and Garrett, Judge, and James, Judge.

         Case Summary: Plaintiffs, chief petitioners of an initiative petition, appeal an order of the trial court that affirmed the Secretary of State's rejection of plaintiffs' proposed initiative for certification on the 2016 general election ballot. Plaintiffs challenge the trial court's and secretary's conclusion that the initiative failed to meet the requirement in Article IV, section 1, of the Oregon Constitution that initiatives propose a "law." Held: The trial court did not err in concluding that the initiative failed to propose a "law" under Article I V, section 1; accordingly, the court did not err in affirming the secretary's rejection of the petition.

          [295 Or. 494] GARRETT, J.

         Plaintiffs brought this action seeking to enjoin defendant, then the Secretary of State, to certify Initiative Petition 2016-005 (IP 5) for the 2016 general election ballot. The proposed initiative, if passed, purports to be an "application" to Congress to call a constitutional convention pursuant to Article V of the United States Constitution.[1]The secretary refused to certify IP 5 on the ground that it was not a permissible use of the initiative power. Plaintiffs brought claims against the secretary under the state and federal constitutions, and the trial court granted the secretary's motion for judgment on the pleadings.

         On appeal, we reject most of plaintiffs' arguments without discussion but write to address what we understand to be the principal issue, which is whether IP 5 proposes a "law" within the meaning of Article IV, section l(2)(a), of the Oregon Constitution. As explained below, we conclude that it does not, and that the secretary, for that reason, correctly determined that IP 5 is not procedurally compliant with the Oregon Constitution. Accordingly, the trial court did not err in granting the secretary's motion for judgment on the pleadings. We affirm.

         The relevant facts are procedural and undisputed. Plaintiffs submitted IP 5, set out in an appendix to this opinion below, to the secretary to commence the process of certifying the petition for the 2016 ballot. The text of IP 5 contains recitals criticizing decisions of the United States Supreme Court regarding campaign finance law and the political rights of corporations. Following those recitals, Section 1 of the petition states, "We the People of the state of Oregon * * * hereby call for an Article V Convention [295 Or.App. 495] by enacting into law this Application, in accordance with Article V of the U.S. Constitution, for the specific and exclusive purpose of considering a Constitutional Amendment consistent with" two enumerated principles, which IP 5 denominates, respectively, "Corporations Are Not People" and "Money is Not Speech." Section 2 provides that the initiative shall be a "continuing application * * * until at least two-thirds of the legislatures of the several states have made similar applications pursuant to Article V." Section 3 provides that copies of IP 5 "shall be transmitted" by unspecified persons "to the President of the United States" and other officials. Section 4 provides that IP 5 shall be codified in the Oregon Revised Statutes.

         While certification was pending, the Attorney General issued a letter opinion advising the secretary that "a court reviewing the initiative would probably conclude that the application for a constitutional convention is not a 'law' for purposes of exercising the initiative power reserved to the people of Oregon." See generally Or Const, Art IV, § l(2)(a) ("The people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution * * * at an election independent of the Legislative Assembly." (Emphasis added.)). Citing that letter, the secretary refused to certify IP 5 pursuant to OAR 165-014-0028(1) (secretary reviews an initiative petition "to determine if it complies with the procedural requirements established in the Oregon Constitution").

         Plaintiffs filed this action to enjoin the secretary to certify the petition, and the secretary moved for judgment on the pleadings. The trial court granted the secretary's motion, affirming the secretary's and Attorney General's conclusion that IP 5 failed to propose a "law" under the Oregon Constitution. Plaintiffs appeal.

         While this appeal was pending, the deadline for submitting enough signatures to place IP 5 on the ballot for the 2016 general election passed (as did the election itself), rendering the case moot. See Couey v. Brown, 257 Or.App. 434, 443, 306 P.3d 778 (2013), rev'al on other grounds sub nom, Couey v. Atkins, 357 Or. 460, 522-23, 355 P.3d 866 (2015) (challenge to proposed initiative moot after deadline [295 Or.App. 496] for collecting signatures and the election had passed). The parties have not addressed whether the case remains justiciable. We address that issue first.

         Under ORS 14.175, an otherwise moot case that involves a constitutional challenge to the act of a public body is justiciable if (1) the party that commenced the action had standing to commence it, (2) the challenged act (here, the secretary's rejection of IP 5) is capable of repetition, and (3) the challenged act is likely to evade judicial review in the future. See Couey, 357 Or at 520 (Oregon Constitution does not impose "justiciability limitations on the exercise of judicial power in public actions or cases involving matters of public interest"). All three requirements under the statute are met here. First, plaintiffs have standing to challenge the secretary's decision. See ORS 246.910 (appeals for acts and orders by secretary). Second, the issue in this case is capable of repetition because plaintiffs could resubmit the same or a similar initiative petition in a future election and the secretary could reject it for the same reason as here. Third, future challenges to this (and similar) initiative petitions are likely to evade judicial review because election cycles are short and the judicial process can be lengthy. See Couey, 357 Or at 477-83 (applying the "capable of repetition, yet evading review" exception to an election-related challenge); see also State ex rel Smith v. Hitt, 291 Or.App. 750, 754, 424 P.3d 749 (2018) (same).

         However, even where all elements of ORS 14.175 are met, it is a matter of our discretion whether to review a moot issue. Eastern Oregon Mining Association v. DEQ, 360 Or. 10, 19, 376 P.3d 288 (2016); Eastern Oregon Mining Assoc, v. DEQ, 285 Or.App. 821, 829, 398 P.3d 449, rev allowed, 362 Or. 175 (2017). In deciding whether to exercise our discretion, we consider several "prudential justifications," including, but not limited to, (1) the adversarial nature of the parties' interests, (2) whether the parties are advocating narrow arguments and rules of law that may benefit only themselves or are presenting arguments affecting a wider group of parties or interests, (3) judicial economy, and (4) the extent of the public importance of the issues presented. Eastern Oregon Mining, 285 Or.App. at 830.

         [295 Or.App. 497] Here, the second and fourth factors strongly favor review. Whether a proposed ballot initiative meets the procedural requirement of being a "law" under Article IV, section 1, is an issue relevant to future initiative petitions and one that Oregon courts have not yet addressed; therefore, the issue being litigated would affect a wider class of interests than the parties to this case. See Eastern Oregon Mining, 285 Or.App. at 833 (second factor favored exercising discretion because, while the "litigated issues certainly affect the parties," they would also affect "a wider class of interests-those interested in the proper regulation and practice of small suction dredge mining, including government, environmental, and mining interests"). The fourth factor, the "relative public importance of the issues," id. at 832, also favors review, given that the proposed measure purports to express the views of Oregonians on whether to call a national constitutional convention. Cf. Smith, 291 Or.App. at 754 ("Because this case concerns an initiative measure enacted by the voters of Douglas County that imposes term limits on a public office, and therefore concerns a matter of public importance, we exercise our discretion to review the case."). The other prudential considerations do not weigh against review.

         Accordingly, we conclude that, although the case is moot, it is justiciable under ORS 14.175, and we exercise our discretion to review it. We turn to the merits.

         As noted, plaintiffs attack the secretary's and the trial court's reasoning on various grounds. As far as we can tell, however, plaintiffs agree that, to constitute a valid exercise of the initiative power, IP 5 must propose a "law" under Article IV, section l(2)(a), and if it does not, then the secretary was not required to certify it for the ballot. Cf. Herbring v. Brown, 92 Or. 176, 182, 180 P 328 (1919) (upholding Attorney General's refusal to provide a ballot title for a referendum that proposed neither a "bill" nor an "act" as provided in Article IV, section 1 of the Oregon Constitution). We address that question below.

         Article IV, section 1, of the Oregon Constitution provides, in relevant part:

[295 Or.App. 498] "(1) The legislative power of the state, except for the initiative and referendum powers reserved to the people, is vested in a Legislative Assembly, consisting of a Senate and a House of Representatives.
"(2)(a) The people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution and enact or reject them at an election ...

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