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Geddry v. Richardson

Court of Appeals of Oregon

February 13, 2019

Mary GEDDRY and John Brooker, Chief Petitioners and Electors of the State of Oregon, Plaintiffs-Respondents,
v.
Dennis RICHARDSON, Secretary of State of Oregon, Defendant-Appellant.

          Argued and submitted April 16, 2018.

          Marion 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 General.

          Ann B. Kneeland argued the cause and filed the brief for respondents.

          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.

          Steven C. Berman and Stoll Stoll Berne Lokting & Shlachter, PC, fled the brief amicus curiae for Our Oregon.

          Before Ortega, Presiding Judge, and Powers, Judge, and Garrett, Judge pro tempore.

         [296 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.

         Reversed.

         [296 Or.App. 136] GARRETT, J. PRO TEMPORE

         Plaintiffs 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.[1] 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.

         The 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 Constitution:

"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 that:
"(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, ...

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