Mary GEDDRY and John Brooker, Chief Petitioners and Electors of the State of Oregon, Plaintiffs-Respondents,
Dennis RICHARDSON, Secretary of State of Oregon, Defendant-Appellant.
and submitted April 16, 2018.
County Circuit Court 16CV17811; J. Channing Bennett, Judge.
Christopher A. Perdue, Assistant Attorney General, argued the
cause for appellant. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
Kneeland argued the cause and filed the brief for
Gregory A. Chaimov, Tim Cunningham, and Davis Wright Tremaine
LLP fled the brief amicus curiae for Oregonians for
Food & Shelter, Oregon Forest & Industries Council,
Oregon Farm Bureau Federation, Oregon Association of
Realtors, Oregon Home Builders Association, and American
Forest Products Association.
C. Berman and Stoll Stoll Berne Lokting & Shlachter, PC,
fled the brief amicus curiae for Our Oregon.
Ortega, Presiding Judge, and Powers, Judge, and Garrett,
Judge pro tempore.
Or.App. 135] Case Summary: Plaintiffs, chief petitioners of
Initiative Petition 2016-055 (IP 55), brought this action to
enjoin defendant, the Secretary of State, to certify IP 55
for the 2016 election after the secretary rejected IP 55 on
the ground that it violated certain constitutional
requirements for proposed initiatives. The trial court
reversed the secretary's decision, concluding that the
secretary had exceeded his pre election authority by engaging
in a "substantive" review to determine whether IP
55 complied with the Oregon Constitution. The court further
declared that IP 55 facially complied with all constitutional
requirements for proposed initiatives and-because the 2016
election had, by that point, already passed-the court ordered
the secretary to certify IP 55 for the 2018 election based on
requirements that had been met in 2016. On appeal, the
secretary challenges each of those rulings. Held:
Under the Supreme Court's recent decision in Unger v.
Rosenblum, 362 Or. 210, 407 P.3d 817 (2017), the trial
court erred in ordering the secretary to certify IP 55 for
the 2018 election based on requirements that had been met for
the 2016 election. That conclusion rendered the
secretary's other challenges moot; however, the Court of
Appeals concluded that those moot issues nonetheless remained
justiciable under ORS 14.175, and the Court of Appeals
exercised its discretion to consider the issue of whether the
secretary exceeded his pre election authority. The Court of
Appeals held that the secretary did not and that the trial
court erred in ruling otherwise.
Or.App. 136] GARRETT, J. PRO TEMPORE
brought this action seeking to enjoin defendant, the
Secretary of State, to certify Initiative Petition 2016-055
(IP 55) for the 2016 ballot. The putative ballot measure
would amend the Oregon Constitution to far-reaching effect
by, among other things, empowering local communities to enact
laws that would be "immune from preemption or
nullification by state law, federal law, or international
law." Based on legal advice from the Attorney General,
the secretary refused to certify IP 55 on the ground that it
violated certain constitutional requirements for proposed
initiatives. The trial court reversed the secretary's
decision, concluding that the secretary had exceeded his
preelection authority by engaging in a
"substantive" review and analysis to determine
whether IP 55 complied with the Oregon
Constitution. The court further declared that IP 55
facially complied with all constitutional requirements for
proposed initiatives and-because the 2016 election had, by
that point, already passed-ordered the secretary to renumber
and certify IP 55 for the 2018 election based on the
requirements that had been met in 2016. On appeal, the
secretary challenges each of those rulings. For the reasons
explained below, we reverse.
facts are procedural and undisputed. In 2015, plaintiffs
filed their initiative petition with the secretary for
placement on the 2016 general election ballot. The measure
would add the following section to Article I of the Oregon
"Section 47. Right of Local Community Self-Government
"(1) As all power is inherent in the people, and all
free governments are founded on their authority, and
instituted for their peace, safety, and happiness, and the
people have at all times the right to alter, reform or
abolish their government should it become destructive to
their fundamental rights or well-being, therefore the people
[296 Or.App. 137] have an inalienable and fundamental right
of local community self-government, in each county, city,
town, or other municipality.
"(2) That right shall include the power of the people,
and the power of their governments, to enact and enforce
local laws that protect health, safety, and welfare by
recognizing or establishing the rights of natural persons,
their local communities, and nature; and by securing those
rights using prohibitions and other means deemed necessary by
the community, including measures to establish, define,
alter, or eliminate competing rights, powers, privileges,
immunities, or duties of corporations and other business
entities operating, or seeking to operate, in the community.
"(3) Local laws enacted pursuant to subsection (2) shall
be immune from preemption or nullification by state law,
federal law, or international law, and shall not be subject
to limitation or preemption under Article IV, section 1(5),
Article VI, section 10, or Article XI, section 2 of this
constitution, or Oregon Revised Statutes 203.035, provided
"(a) Such local laws do not restrict fundamental rights
of natural persons, their local communities, or nature
secured by the Oregon Constitution, the United States
Constitution, or international law; and
"(b) Such local laws do not weaken protections for
natural persons, their local communities, or nature provided
by state law, ...