Bowers v. Betschart ( 2021 )

294
Argued and submitted August 13, 2019; portion of judgment concluding that
defendant had authority to review proposed initiative before election affirmed,
otherwise declining to address moot issues pursuant to ORS 14.175
July 14, 2021
Lynn BOWERS,
Katja Kohler Gause,
and Tao Orion,
Plaintiffs-Appellants,
v.
Cheryl BETSCHART,
in her official capacity as
Lane County Clerk,
Defendant-Respondent,
and
Stanton F. LONG,
Intervenor-Respondent.
Lane County Circuit Court
17CV49280; A167596
496 P3d 1034
After gathering the requisite number of voter signatures, plaintiffs submit-
ted to the Lane County Clerk (defendant) an initiative petition that proposed
to amend the Lane County Charter. Following a pre-election review, defendant
concluded that the initiative failed to comply with ORS 203.725(2), a statutory
“separate-vote” requirement applicable to county charter amendments; defendant
therefore declined to put the proposed measure on the ballot. Plaintiffs appeal a
circuit court judgment dismissing their claims that defendant’s refusal to put
the measure on the ballot was unlawful, which the court entered upon grant-
ing intervenor’s motion for summary judgment. Plaintiffs argue that the court
erred in upholding defendant’s conclusion that the disputed ballot measure failed
to comply with the separate-vote requirement; plaintiffs separately argue that,
even if the court correctly concluded that the proposed measure did not comply
with ORS 203.725(2), defendant violated the Oregon and United States constitu-
tions in various ways by complying with that statute. Held: Defendant correctly
reviewed the proposed amendment of the Lane County Charter for compliance
with the separate-vote requirement of ORS 203.725(2) before submitting it to the
voters, and the statutory separate-vote requirement itself does not conflict with
the state or federal constitutions in any of the ways identified by plaintiffs.
Portion of the judgment concluding that defendant had authority to review
the proposed initiative before the election affirmed; otherwise declining to
address the moot issues pursuant to ORS 14.175.
Karsten H. Rasmussen, Judge.
Cite as 313 Or App 294 (2021) 295
David Meek argued the cause and filed the briefs for
appellants.
J. Aaron Landau argued the cause for respondent
Stanton F. Long. On the brief were William F. Gary, Sharon
A. Rudnick, and Harrang Long Gary Rudnick P.C.
Stephen E. Dingle and Office of Lane County Counsel for
respondent Cheryl Betschart joined the brief of respondent
Stanton F. Long.
Before DeHoog, Presiding Judge, and Mooney, Judge,
and Kamins, Judge.*
DeHOOG, P. J.
Portion of the judgment concluding that defendant had
authority to review the proposed initiative before the elec-
tion affirmed; otherwise declining to address the moot
issues pursuant to ORS 14.175.
______________
* Kamins, J., vice Hadlock, J. pro tempore.
296 Bowers v. Betschart
DeHOOG, P. J.
After gathering the requisite number of voter sig-
natures, plaintiffs submitted to the Lane County Clerk
(defendant) an initiative petition that proposed to amend
the Lane County Charter. Following a pre-election review,
defendant concluded that the initiative failed to comply with
ORS 203.725(2), a statutory “separate-vote” requirement
applicable to county charter amendments; defendant there-
fore declined to put the proposed measure on the ballot.
Plaintiffs now appeal a circuit court judgment dismissing
their claims that defendant’s refusal to put the measure on
the ballot was unlawful, which the court entered upon grant-
ing intervenor’s motion for summary judgment. Plaintiffs
argue that the court erred in upholding defendant’s conclu-
sion that the disputed ballot measure failed to comply with
the separate-vote requirement; plaintiffs separately argue
that, even if the court correctly concluded that the proposed
measure did not comply with ORS 203.725(2), defendant vio-
lated the Oregon and United States constitutions in various
ways by complying with that statute. Intervenor disagrees
on the merits and also asserts that this appeal is moot.1
As we explain below, we agree that this case is moot.
However, we nevertheless exercise our discretion under ORS
14.175 to review the issues of public importance that plain-
tiffs’ challenges raise. On the merits of those challenges,
we conclude that defendant correctly reviewed the proposed
amendment for compliance with the separate-vote require-
ment before submitting that measure to the voters and that
the statutory separate-vote requirement of ORS 203.725(2)
does not conflict with the state or federal constitutions in
any of the ways identified by plaintiffs. As further explained
below, we decline to review the circumstance-specific issue of
whether the now-expired initiative in fact complied with the
separate-vote requirement of ORS 203.725(2). Accordingly,
we affirm the portion of the judgment concluding that defen-
dant had authority to review the proposed initiative before
the election and otherwise decline to address the remaining
moot issues under ORS 14.175.
1
Defendant has joined intervenor’s responding brief. For simplicity, how-
ever, we refer to the arguments raised in the responding brief as intervenor’s
arguments.
Cite as 313 Or App 294 (2021) 297
The pertinent facts are undisputed. In September
2015, plaintiffs filed an initiative to amend the Lane County
Charter. The Lane County Clerk certified the proposed mea-
sure for circulation and signature gathering. Intervenor
challenged the clerk’s certification of the measure in Lane
County Circuit Court, contending that the clerk was required
to apply the requirements of ORS 203.725 before certifying
the measure for circulation.2 The circuit court held that, by
its terms, that statute applied to charter amendments pro-
posed by initiative, but that intervenor’s claim regarding
the separate-vote requirement of ORS 203.725(2) was not
ripe, because plaintiffs had not yet collected enough signa-
tures to qualify the measure for the ballot.3
By October 2017, plaintiffs had submitted enough
signatures to qualify the measure for the ballot. Defendant
then notified plaintiffs that, acting on advice from county
counsel, she had concluded that the proposed measure did
not comply with the separate-vote requirement of ORS
203.725(2) and that, accordingly, she would not put the mea-
sure on the ballot.
In response, plaintiffs filed this proceeding under
ORS 246.910(1), which allows “[a] person adversely affected
by any act or failure to act by * * * a county clerk * * * under
any election law” to “appeal therefrom to the circuit court for
the county in which the act or failure to act occurred.” They
asserted five claims, each raising a different legal theory
on which they objected to defendant’s action. Plaintiffs and
intervenor filed cross-motions for summary judgment, and,
after briefing and argument, the court granted intervenor’s
2
ORS 203.725, which we discuss in more detail below, provides as follows:
“(1) A proposed amendment to a county charter, whether proposed by the
county governing body or by the people of the county in the exercise of the ini-
tiative power, shall embrace but one subject and matters properly connected
therewith.
“(2) When two or more amendments to a county charter are submitted to
the electors of the county for their approval or rejection at the same election,
they shall be so submitted that each amendment shall be voted on separately.
“(3) Notwithstanding any county charter or legislation enacted there-
under, this section shall apply to every amendment of a county charter and
shall take precedence and prevail over any conflicting provisions in a county
charter or in legislation enacted thereunder.”
3
Intervenor appealed that judgment, and we affirmed it without opinion.
Long v. Betschart, 295 Or App 451, 432 P3d 1205 (2018).
298 Bowers v. Betschart
motion, denied plaintiffs’ motion, and entered a judgment
dismissing all of plaintiffs’ claims.
Plaintiffs now appeal. They assert four assignments
of error, each of which raises one or more legal theories that,
they contend, show that defendant unlawfully refused to
put their initiative on the ballot. Intervenor first responds
that this case is moot; second, intervenor argues that, to the
extent that we reach the merits of plaintiffs’ appeal, defen-
dant properly reviewed the initiative for compliance with
ORS 203.725(2) and correctly refused to put it on the ballot.
MOOTNESS
We begin by considering whether we should review
the merits of this appeal. Before oral argument, intervenor
notified the court of his view that the period of time during
which plaintiffs’ charter amendment initiative was eligible
to appear on the ballot had expired. Accordingly, he asserts,
the case has become moot. See Geddry v. Richardson, 296
Or App 134, 141-42, 437 P3d 1163, rev den sub nom Geddry
v. Clarno, 365 Or 369 (2019) (“An issue is moot if the court’s
decision on the matter will no longer have a practical effect
on the rights of the parties.”); cf. id. at 142 (“In the context
of initiative petitions, typically, the expiration of the con-
stitutional deadline for collecting supporting signatures for
circulation will render moot any litigation over the legal
sufficiency of the initiative.”). In response, plaintiffs contend
that the case is not moot; they argue that, unlike statewide
ballot initiatives, county initiatives are not tied to a specific
election and, therefore, if we rule in their favor on the mer-
its, their initiative will appear on the ballot at the next elec-
tion. For the reasons that follow, we agree with intervenor’s
contention that plaintiffs’ appeal is moot.
Two sections of the Lane Code (LC) address the
time for voting on a proposed amendment of the county char-
ter.4 First, section 2.635 addresses timing requirements for
county initiatives generally:
4
ORS 250.221 provides another timing requirement for county initiative
measures; however, it gives way to county code provisions. ORS 250.155(1) (“ORS
250.165 to 250.235 * * * shall apply to the exercise of initiative or referendum
powers regarding a county measure, unless the county charter or ordinance pro-
vides otherwise.”).
Cite as 313 Or App 294 (2021) 299
“On the filing with the County Clerk responsible for
election matters of an initiative petition which proposes
in a proper manner a measure of County legislation[5] and
which is signed by a number of qualified voters equal to
six percent of the total number of votes cast in the County
for Governor at the election at which a Governor was
elected for a term of four years next preceding the fil-
ing of the petition, the measure shall be submitted at the
next regular primary or general election following the fil-
ing of the final petition provided that, if the final petition
is filed within four months prior to such election, it shall
be submitted at the next succeeding primary or general
election.”
(Emphasis added.) Second, section 2.645 addresses charter
amendments in particular: “Any measure relating to the
amendment, revision or repeal of the Charter may be ini-
tiated by proper petition according to the procedure of LC
2.620 to 2.655 herein, except such measures shall be voted
on only at the next succeeding primary or general election.”
Thus, section 2.635 sets out a general rule that, if a
final initiative petition is filed more than four months before
a primary or general election, it must be submitted for a vote
“at the next regular primary or general election following”
that filing. If on the other hand, the final petition is filed less
than four months before the next primary or general elec-
tion, “it shall be submitted at the next succeeding primary
or general election.” LC § 2.635. Read together, those provi-
sions of section 2.635 appear to require that a proposed mea-
sure be submitted for a vote at one of two future elections:
either at the next regularly scheduled primary or general
election or, if that election is set for less than four months
after the petition is filed, at the “next regular primary or
general election” after that. Id.
Section 2.645 appears to narrow the general rule
set forth in section 2.635 and specifically governs mea-
sures “relating to the amendment, revision or repeal of the
Charter.” For those measures, the procedures set out in sec-
tions 2.620 to 2.655—which necessarily include those set
forth in section 2.635—apply, except that any such measure
5
The code defines “County legislation” to include “any measure proposing
* * * the repeal, revision or amendment of the Charter.” LC § 2.620.
300 Bowers v. Betschart
“shall be voted on only at the next succeeding primary or
general election.” LC § 2.645 (emphasis added).
Plaintiffs argue that “the next succeeding primary
or general election” in section 2.645 “is not a fixed date.” As
we understand their contention, plaintiffs’ view is that sec-
tion 2.645 requires a county clerk to submit a measure to a
vote at the next regular primary or general election follow-
ing a final determination that an initiative petition meets
all of the requirements for submission—even if that deter-
mination occurs years after the petition is filed, as would
be the case here if this litigation were to conclude in plain-
tiffs’ favor. However, plaintiffs offer no textual support for
that understanding. By its terms, section 2.645 allows for,
at most, two potential dates for submission: either “the next
regular primary or general election following the filing of the
final petition” or the election following that one. LC § 2.635
(emphasis added); LC § 2.645 (incorporating requirements
of preceding rules, including LC § 2.635).6 Indeed, section
2.645 may allow for only one potential submission date—
that of the next “succeeding” primary or general election—
regardless of whether a petition is filed more or less than
four months before the next election. LC § 2.645 (authoriz-
ing clerk to submit measure to a vote “only” at “next suc-
ceeding” election). In no event, however, does section 2.645
appear to allow a measure to be voted on at some time after
the next two regularly scheduled primary or general elec-
tions have passed.
Here, the final petition was filed in October 2017.
Under the Lane Code, the proposed charter amendment had
to be submitted for a vote at one of the next two primary
or general elections after that date. It is undisputed that,
as of the filing of plaintiffs’ appeal in this case, those elec-
tions had long since passed; as a result, no ruling in this
case could overcome that obstacle to the placement of plain-
tiffs’ initiative on the ballot. Consequently, plaintiffs’ appeal
is moot. Cf. Geddry, 296 Or App at 142 (noting that, after
expiration of the deadline for collecting signatures, a state-
wide initiative petition had “expired” and, consequently,
6
The Lane Code defines “[f]inal petition” as “the petition signed by the num-
ber of qualified voters required by LC 2.625 below.” LC § 2.620.
Cite as 313 Or App 294 (2021) 301
litigation about it was moot (internal quotation marks
omitted)).
However, that does not end our inquiry. We have
discretion to review the merits of moot issues of public
importance if they are capable of repetition and likely to
evade review. See Couey v. Atkins, 357 Or 460, 463, 522-23,
355 P3d 866 (2015) (holding that cases involving issues
of public interest that are “likely to evade judicial review
under the standard set out in ORS 14.175” are justiciable
even if they are moot). Under ORS 14.175, we may decide a
moot challenge to an act of a public body or official if “(1) the
party that commenced the action had standing to commence
it, (2) the challenged act * * * is capable of repetition, and
(3) the challenged act is likely to evade judicial review in
the future.” Harisay v. Atkins, 295 Or App 493, 496, 434 P3d
442 (2018), aff’d sub nom Harisay v. Clarno, 367 Or 116, 474
P3d 378 (2020) (paraphrasing ORS 14.175); see also Eastern
Oregon Mining Association v. DEQ, 360 Or 10, 18-19, 376
P3d 288 (2016) (applying the third criterion).
Here, no party contends that those criteria are not
met, and we are satisfied that they are. See Geddry, 296 Or
App at 142 (explaining how the criteria were met under sim-
ilar circumstances in case involving certification of a state
initiative petition); see also Couey, 357 Or at 481-83 (not-
ing that elections cases have often satisfied the capable of
repetition and likely to evade review criteria). Furthermore,
prudential considerations weigh in favor of our exercising
our discretion to address certain issues of public importance
present in this case. See Eastern Oregon Mining Assoc. v.
DEQ, 285 Or App 821, 830-32, 398 P3d 449 (2017), aff’d, 365
Or 313, 445 P3d 251 (2019) (setting out a nonexclusive list
of prudential considerations relevant to decision whether
to review moot issues, including judicial economy and the
relative public importance of the case). The parties have
fully developed the record and their legal arguments, and
the scope of a county clerk’s authority to review proposed
charter amendments before submitting them to the voters
“has obvious implications for future elections and is an issue
of public importance.” Geddry, 296 Or App at 143 (noting
the same where the challenge involved the Secretary of
State’s “preelection authority to review initiative petitions
302 Bowers v. Betschart
for compliance with constitutional requirements governing
the initiative power”). We will therefore proceed to decide
that issue, notwithstanding the mootness of plaintiffs’
appeal.
We do not, however, elect to address all of the issues
raised on appeal. Specifically, much as in our Geddry deci-
sion, we conclude that the fact-bound question of whether
the particular initiative at issue here meets the separate-
vote requirement of ORS 203.725(2) does not merit an exer-
cise of our discretion to address moot issues. 296 Or App at
148 (declining to exercise discretion to reach the merits of
the moot question “whether the language of a now-expired
initiative petition was compliant with Oregon constitutional
requirements”); see also Eastern Oregon Mining Assoc.,
285 Or App at 834 (declining to address a moot issue that
“does not present a recurring legal issue that has implica-
tions beyond this particular litigation”). Thus, we decline to
review that aspect of the judgment.
MERITS
We turn, then, to whether ORS 203.725(2) autho-
rized defendant to conduct separate-vote review of plain-
tiffs’ initiative petition and, if so, whether the statute also
allowed the review to be conducted before, rather than after,
the election. Plaintiffs contend that, for a variety of rea-
sons, it did not, and, to the extent that it might otherwise
permit that review, it violates both the state and federal
constitutions.
ORS 203.725(2) provides, “When two or more
amendments to a county charter are submitted to the elec-
tors of the county for their approval or rejection at the same
election, they shall be so submitted that each amendment
shall be voted on separately.” Thus, the text of that provi-
sion directs the county clerk—the official who is responsible
for submitting county charter amendments to the electors,
see ORS 254.005(2)(b) (defining “[c]hief elections officer” as
the “[c]ounty clerk, regarding * * * a measure to be voted on
in a county only”)—to submit proposed amendments to the
electors in a way that ensures “that each amendment shall
be voted on separately.”
Cite as 313 Or App 294 (2021) 303
Plaintiffs contend that, if the statute is construed to
permit separate-vote review by a county clerk, it infringes
on the initiative power reserved to the people in the Oregon
Constitution and specifically reserved to county voters in
Article VI, section 10. In their view, the constitution reserves
to the voters of each county an unfettered right to amend a
county charter by initiative. Given that, they argue that the
legislature cannot direct a county clerk to disqualify a mea-
sure from the ballot for lack of compliance with a statutory
separate-vote requirement.
In response, intervenor points out that Article VI,
section 10, gives the legislature responsibility for providing
“a method whereby the legal voters of any county, by majority
vote of such voters voting thereon at any legally called elec-
tion, may adopt, amend, revise or repeal a county charter.”
Intervenor contends that the separate-vote requirement of
ORS 203.725(2) is part of that “method,” and, consequently,
that it is consistent with county voters’ constitutional initia-
tive powers.
As explained below, we conclude that pre-election
review of initiatives proposing county charter amendments
for compliance with a separate-vote requirement does not
violate the initiative power reserved to county voters in
Article VI, section 10. Thus, the trial court correctly rejected
plaintiffs’ argument to the contrary.
Article VI, section 10, does many things in a single
long paragraph. It reserves initiative powers to county vot-
ers; requires the legislature to provide a “method” for voters
to adopt, amend, revise, or repeal a county charter; describes
the required and permissible substance of a county char-
ter; and provides some detailed procedural rules, including
signature requirements, for the county initiative and ref-
erendum process.7 Article VI, section 10, was referred to
7
Article VI, section 10, provides, in relevant part, as follows:
“County home rule under county charter. The Legislative Assembly
shall provide by law a method whereby the legal voters of any county, by
majority vote of such voters voting thereon at any legally called election,
may adopt, amend, revise or repeal a county charter. A county charter may
provide for the exercise by the county of authority over matters of county
concern. Local improvements shall be financed only by taxes, assessments
or charges imposed on benefited property, unless otherwise provided by law
304 Bowers v. Betschart
the voters by the legislature and adopted in 1958. It was
amended in 1960 and 1978, but the amendments are not
relevant to our analysis.
In Multnomah County v. Mittleman, 275 Or 545, 552
P2d 242 (1976), the Supreme Court examined the scope of
the referendum powers reserved to county voters by Article
VI, section 10. At issue was a county property-transfer tax
ordinance, which included an emergency clause intended
to prevent a referendum on the ordinance. 275 Or at 547.
Notwithstanding the emergency clause, a referendum
reached the ballot, where the ordinance was rejected. Id.Undeterred, the county sought to enforce the ordinance,
and a property owner contested that action, arguing that
the ordinance was invalid because the voters had defeated
it using their reserved referendum power. Id. On review,
the Supreme Court framed the issue at hand as “whether
a home-rule county may declare an ‘emergency’ in an ordi-
nance imposing new taxes and thereby prevent a referen-
dum of such an ordinance.” Id. at 548.
In analyzing that question, the court explored the
relationship between the statewide referendum powers
reserved to the people by Article IV, section (3)(a), of the
Oregon Constitution, and the referendum powers reserved to
county voters by Article VI, section 10. The court concluded
that “the purpose and effect of Article VI, section 10, was
to reserve to county voters with respect to county tax legis-
lation the same ‘referendum powers’ previously reserved to
or charter. * * * The initiative and referendum powers reserved to the peo-
ple by this Constitution hereby are further reserved to the legal voters of
every county relative to the adoption, amendment, revision or repeal of a
county charter and to legislation passed by counties which have adopted such
a charter; and no county shall require that referendum petitions be filed less
than 90 days after the provisions of the charter or the legislation proposed
for referral is adopted by the county governing body. To be circulated, refer-
endum or initiative petitions shall set forth in full the charter or legislative
provisions proposed for adoption or referral. Referendum petitions shall not
be required to include a ballot title to be circulated. In a county * * * a number
of signatures of qualified voters equal to but not greater than eight percent
of the total number of votes cast in the county for all candidates for Governor
at the election at which a Governor was elected for a term of four years next
preceding the filing of the petition shall be required for a petition to propose
a charter amendment.”
(Boldface in original.)
Cite as 313 Or App 294 (2021) 305
state voters with respect to state tax legislation.” Id. at 551.
That is, the reserved referendum powers of county voters
mirror the referendum powers reserved to the voters of the
state on the same subject.
Having determined that relationship between state-
wide and county referendum powers, the court began its
analysis by explaining the history of the statewide refer-
endum power on tax measures. It concluded that, following
the amendment of Article IX, section 1(a),8 in 1912, it was
“as if the Oregon Constitution included a provision expressly
stating that all tax measures enacted by the legislature are
subject to referendum” regardless of whether they contain
an emergency declaration. Mittleman, 275 Or at 551.
Next the court applied the principle that county
voters’ referendum powers mirror state voters’ referen-
dum powers on the same subject: Because the constitution
reserved to the people a referendum power that could not
“be defeated by the declaration by the Oregon legislature of
an emergency in the enactment of tax legislation,” likewise,
“a home-rule county may not defeat the exercise of such ‘ref-
erendum powers’ by the declaration of an emergency in the
enactment of such legislation.” Id. at 551, 551-52.
In response to the county’s argument that, by its
terms, Article IX, section 1(a), applied only to the legisla-
ture, and not to counties, the court reiterated that, when
the voters adopted Article VI, section 10, in 1958, they were
reserving to county voters the same referendum powers that
state voters had at that time:
“The point, as we see it, is not that Article IX, section 1(a),
was intended in 1912 to apply to the Oregon legislature.
Instead, the point is that in 1958, when the County Home
Rule Amendment was adopted as Article VI, section 10, the
same ‘referendum powers reserved to the people by this
Constitution’ relative to legislation passed by the state leg-
islature were ‘further reserved to the legal voters of every
[home-rule] county relative to * * * legislation passed by
[such] counties.’ ”
8
Article IX, section 1(a), of the Oregon Constitution provides that “[n]o poll
or head tax shall be levied or collected in Oregon. The Legislative Assembly shall
not declare an emergency in any act regulating taxation or exemption.”
306 Bowers v. Betschart
Id. at 552-53 (quoting Or Const, Art VI, § 10 (alterations in
Mittleman)).
Thus, as we understand Mittleman, to determine
the scope of the powers “reserved to the legal voters of every
county relative to the * * * amendment * * * of a county char-
ter by initiative,” we must first determine what initiative
powers are “reserved to the people by this Constitution”
on the same subject. Or Const, Art VI, § 10 (“The initia-
tive and referendum powers reserved to the people by this
Constitution hereby are further reserved to the legal voters
of every county relative to the adoption, amendment, revi-
sion or repeal of a county charter and to legislation passed
by counties which have adopted such a charter.”). That
is, although Mittleman addressed the referendum power
reserved to county voters, the Supreme Court’s analysis was
rooted in a provision of Article VI, section 10, equally appli-
cable to initiatives and referendums. Moreover, Mittleman
teaches that, for purposes of that inquiry, the relevant state-
wide reserved powers are not limited to those addressed
directly to county-specific matters; rather, the question is
what powers the constitution reserves to the people on a
statewide level that are analogous to the county-specific sub-
ject at issue. See 275 Or at 552-53 (rejecting the contention
that a constitutional limit on tax measures did not apply to
counties through Article VI, section 10, because it referred
only to the legislature, not to counties).
With Mittleman in mind, we turn to Article XVII,
section 1, of the Oregon Constitution, which subjects state-
wide initiatives seeking to amend the constitution to a
separate-vote requirement that closely mirrors that imposed
by ORS 203.725(2) on proposed charter amendments.9 Since
1906, that requirement has applied equally “to constitu-
tional amendments proposed by initiative, as well as those
proposed by the legislature.” Armatta v. Kitzhaber, 327 Or
250, 261, 959 P2d 49 (1998); see also id. at 260 (noting that,
in amending Article XVII in 1906 “by specifically incorpo-
rating references to the people’s recently acquired initiative
9
The separate-vote requirement of Article XVII, section 1, provides, “When
two or more amendments shall be submitted in the manner aforesaid to the vot-
ers of this state at the same election, they shall be so submitted that each amend-
ment shall be voted on separately.”
Cite as 313 Or App 294 (2021) 307
power, it appears that the voters intended the requirements
contained in Article XVII, which originally pertained only
to legislatively proposed amendments, to apply to initiated
amendments as well”). In Meyer v. Bradbury, 341 Or 288,
297, 142 P3d 1031 (2006), the Supreme Court explained that
the purpose of requiring constitutional amendments to be
submitted and voted on separately is to allow “voters [to]
express[ ] their opinions as to each proposed change sepa-
rately.” That requirement provides “a safeguard that is fun-
damental to the concept of a constitution.” Id. at 296. Thus,
the separate-vote requirement protects constitutional inter-
ests above legislative interests by allowing voters to more
carefully consider whether to make a specific amendment,
rather than making groups of amendments together, as is
permitted in the legislative context. See id. (“ ‘It is axiomatic
that, among the various interests that the government of
this state seeks to protect and promote, the interests repre-
sented by the state constitution are paramount to legislative
ones.’ ” (Quoting State v. Stoneman, 323 Or 536, 542, 920
P2d 535 (1996) (emphasis in Meyer).)).
In other words, Oregon’s separate-vote requirement
for constitutional amendments preserves a “hierarchy of
law” that “always must be acknowledged and respected”:
Organic law must be amended more carefully than mere
legislation. See id. The way the constitution provides that
protection for organic law is by allowing voters to express
their opinion as to each proposed change separately. Id.In light of Article XVII, section 1, the statewide ini-
tiative powers “reserved to the people” under Article IV are—
and, since 1906, have been—limited by the requirement that
each constitutional amendment be submitted separately.10
That limitation applies in order to preserve the hierarchy of
law, in which organic law is superior to ordinary legislation
and, consequently, must be amended more carefully.
A charter in a home-rule county is analogous
to a state constitution. Cf. Portland Police Assn. v. Civil
Service Board, 292 Or 433, 440, 639 P2d 619 (1982) (“A
10
Article IV, section 1(2)(a) provides, “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 independently of the Legislative Assembly.”
308 Bowers v. Betschart
city’s charter is, in effect, the city constitution.”); Harder
v. City of Springfield, 192 Or 676, 683, 236 P2d 432 (1951)
(“A city charter constitutes the organic law of a municipal-
ity.”). And in view of the similar functions that the state
constitution and county charters play in their respective
settings, we conclude that, when Article VI, section 10, was
enacted in 1958, it reserved no greater initiative power on
behalf of county voters seeking to amend a county char-
ter than did the predecessor to Article IV, section 1(2)(a),
on behalf of statewide voters seeking to amend the Oregon
Constitution.11 See Mittleman, 275 Or at 552-53 (“The point,
as we see it, is not that Article IX, section 1(a), was intended
in 1912 to apply to the Oregon legislature. Instead, the point
is that in 1958, when the County Home Rule Amendment
was adopted as Article VI, section 10, the same ‘referendum
powers reserved to the people by this Constitution’ relative
to legislation passed by the state legislature were ‘further
reserved to the legal voters of every [home-rule] county rel-
ative to * * * legislation passed by [such] counties.’ ” (Quoting
Or Const, Art VI, § 10 (alterations in Mittleman).)).
It follows that, like the statewide initiative powers
reserved to the people under Article IV, section 1(2)(a), the
right extended to county voters under Article VI, section 10,
carries with it no prohibition against the imposition of a
separate-vote requirement such as that set forth in ORS
203.725(2). Therefore, that statute does not infringe on
county voters’ constitutionally reserved initiative powers.12
11
In 1902, Article IV, section 1, “was amended to grant the people the initia-
tive and referendum power, including the ability to propose constitutional amend-
ments by initiative petition.” Armatta, 327 Or at 259. After that 1902 amend-
ment, Article IV, section 1, provided, as relevant here, “The legislative authority
of the state shall be vested in a legislative assembly, consisting of a senate and
house of representatives, but the people reserve to themselves power to propose
laws and amendments to the constitution and to enact or reject the same at the
polls, independent of the legislative assembly * * *.” As noted above, present-day
Article IV, section 1(2)(a) provides, “The people reserve to themselves the initia-
tive power, which is to propose laws and amendments to the Constitution and
enact or reject them at an election independently of the Legislative Assembly.”
12
In reaching that conclusion, we note that the text of ORS 203.725(2) is
nearly identical to the text of the separate-vote requirement of Article XVII, sec-
tion 1. In light of that similarity, it goes largely without saying that the separate-
vote requirements of the statute impose no greater a burden on petitioners seek-
ing to amend a county charter than does Article XVII, section 1, on petitioners
seeking to amend the Oregon Constitution.
Cite as 313 Or App 294 (2021) 309
Plaintiffs next contend that, to the extent that the
legislature may constitutionally impose a separate-vote
requirement on an initiative seeking to amend a county
charter, a county clerk lacks authority to conduct a pre-
election review of an initiative to ensure compliance with
that requirement. We disagree.
First, as noted above, Article VI, section 10, tasks
the legislature with enacting a “method whereby the legal
voters of any county, by majority vote of such voters voting
thereon at any legally called election, may adopt, amend,
revise or repeal a county charter.” And, separate from their
substantive challenges to ORS 203.725(2), plaintiffs advance
no argument suggesting that defendant’s pre-election review
to ensure compliance with that statute cannot be viewed as
simply part of such a “method,” and we conceive of none.
Second, to the extent that plaintiffs contend that
“substantive” review of a proposed measure before an elec-
tion is never constitutionally permissible, they reprise an
argument that we expressly rejected in Geddry, 296 Or App
at 146, as we will explain.
In Geddry, the plaintiffs filed an initiative peti-
tion and signatures with the Secretary of State, but the
secretary concluded that the initiative would violate the
separate-vote requirement and therefore rejected it. Id. at
138. The plaintiffs sought review in circuit court, and the
court held that the secretary had improperly conducted a
substantive review of the initiative. Id. at 138-39. The secre-
tary appealed.
After reviewing the Supreme Court’s case law on
the topic, we explained that the law did not support the dis-
tinction that the trial court had drawn
“between preelection ‘substantive’ analysis of a proposed
measure for compliance with Article XVII and some type
of lesser review. It is true that the secretary may not inval-
idate a measure because of his belief that the measure, if
enacted, would substantively violate another provision of
the state or federal constitutions. That does not mean, how-
ever, that the secretary may not engage in ‘substantive’
review to determine whether the measure complies with
310 Bowers v. Betschart
the limitations on the initiative power itself set forth in the
Oregon Constitution.”
Id. at 145 (emphasis in original). Rather, we explained
that the cases supported “the idea that the secretary may
(indeed, must) review measures before certifying them for
compliance with Article XVII’s limitations on the use of the
initiative power, and none of them suggest that that obli-
gation must be fulfilled without ‘substantive’ review and
analysis.” Id. at 146. Accordingly, we reversed the decision
of the trial court. Id. at 149.
Our holding in Geddry demonstrates that pre-
election review for compliance with constitutional limita-
tions on the initiative power—including the separate-vote
requirement—is permissible. Thus, we reject plaintiffs’
argument that pre-election separate-vote review is never
allowed.
Third, we are unpersuaded by plaintiffs’ argument
that, even assuming that pre-election review of a statewide
initiative by the Secretary of State does not violate the consti-
tution, a county clerk cannot do the same for a county initia-
tive. Plaintiffs seem to contend that Article IV, section 1(2)(d),
which was enacted in 1968, is the source of the Secretary of
State’s power to conduct pre-election separate-vote review of
statewide measures. They reason that, because Article VI,
section 10, incorporated the initiative power that existed
when it was enacted in 1958, and because that provision has
not been amended to allow pre-election review, such review
of county charter amendments by county clerks is prohib-
ited. They also argue that the Supreme Court’s holding in
Foster v. Clark, 309 Or 464, 790 P2d 1 (1990), which sug-
gests otherwise, is irrelevant to county clerks’ ability to con-
duct pre-election review. As explained below, we disagree
with both contentions.
We begin by considering Article IV, section 1(2)(d).
That provision does not, itself, contain a separate-vote
requirement; rather, it contains a single-subject require-
ment: “A proposed law or amendment to the Constitution
shall embrace one subject only and matters properly con-
nected therewith.” See also, e.g., OEA v. Roberts, 301 Or
228, 232, 721 P2d 833 (1986) (reasoning that the text of
Cite as 313 Or App 294 (2021) 311
Article IV, section 1(2)(d), necessarily allows for pre-election
review for compliance with that provision’s single-subject
requirement, as it refers to a proposed law or amendment,
not just an enacted one). And, although plaintiffs cite the
text of Article IV, section 1(2)(d), they appear to recognize
that that text itself is not the source of the separate-vote
requirement. Rather, we understand their argument to be
based more broadly on that provision in context with the
other 1968 amendments to Article IV, section 1, which vari-
ously charge the Secretary of State with administering the
initiative process and demonstrate that, before placing a
proposed initiative on the ballot, the secretary must review
it for compliance with constitutional requirements. See OEA,
301 Or at 232 (so holding with respect to the single-subject
requirement of Article IV, section 1(2)(d)).
We do not disagree with plaintiffs’ basic contention
that Article IV, section 1, permits the Secretary of State to
conduct pre-election review of initiatives to ensure their com-
pliance with various constitutional requirements. However,
we part ways with plaintiffs when they assert that the
granting of such authority over statewide measures demon-
strates that county clerks lack similar powers in regard to
proposed charter amendments.
Instead, we understand the Supreme Court to have
held in Foster and cases following it that pre-election review
of initiatives to comply with the constitutional requirements
for initiatives—including the separate-vote requirement—is
permissible whether conducted by the Secretary of State or
by a local official. In Foster, the court was asked to evaluate
a proposed City of Portland ballot measure before the elec-
tion. The Supreme Court identified “two lines of cases” that
“appear[ed] to run in different directions” on the propriety
of pre-election review of proposed ballot initiatives. It did
not distinguish between cases addressing statewide initia-
tives, county initiatives, or city initiatives. The court char-
acterized the first line of cases as holding that “a court will
not inquire into the substantive validity of a measure—i.e.,
into the constitutionality, legality or effect of the measure’s
language—unless and until the measure is passed.” Id.That first line of cases included, among others, “State v.
Newbry, 189 Or 691, 697-98, 222 P2d 737 (1950) (compliance
312 Bowers v. Betschart
of proposed constitutional amendment with requirement
that each constitutional amendment be stated separately),”
and “Unlimited Progress v. Portland, 213 Or 193, 195-96,
324 P2d 239 (1958) (municipal measure).” Foster, 309 Or at469 n 4.
In the other line of cases, the court explained,
“Oregon courts have inquired into whether matters extra-
neous to the language of the measure itself disqualify the
measure from the ballot.” Id. In the court’s view, those cases
indicated that, “[d]espite compliance with proper procedures,
courts will prevent a measure from being placed on the bal-
lot if the measure is legally insufficient to qualify for that
ballot.” Id. at 469. The court placed Holmes v. Appling, 237
Or 546, 392 P2d 636 (1964), and City of Eugene v. Roberts,
305 Or 641, 756 P2d 630 (1988), among others, in that sec-
ond line of cases.
The court then held as follows:
“We adhere to the more recent authorities, such as
Holmes v. Appling, as being the more clearly reasoned and
stating the correct rule, which is: Courts have jurisdiction
and authority to determine whether a proposed initiative
or referendum measure is one of the type authorized by
[the Oregon Constitution, Article IV, section 1(5),] to be
placed on the ballot. * * * On the other hand, a court may
not inquire into general questions of constitutionality, such
as whether the proposed measure, if enacted, would violate
some completely different portion of the constitution.”
Foster, 309 Or at 470-71.
As we understand that holding, the Supreme Court
in Foster rejected the reasoning of the first line of cases
and, in doing so, overruled the holdings of those cases inso-
far as they prohibited all pre-election review of initiatives.
We articulated that understanding of Foster in Meyer v.
Bradbury, 205 Or App 297, 301-03, 134 P3d 1005, rev’d on
other grounds, 341 Or 288, 142 P3d 1031 (2006). In Meyer, we
relied on Foster in concluding that a pre-election separate-
vote challenge to a statewide initiative was justiciable. The
Supreme Court affirmed our conclusion on that point and
expressly approved of our analysis. Meyer, 341 Or at 294(“For the reasons stated in the Court of Appeals opinion,
Cite as 313 Or App 294 (2021) 313
we agree with that court’s assessment of intervenor’s argu-
ments regarding justiciability and standing and decline to
examine those particular issues further.”).
We reached the same conclusion in Geddry, explain-
ing that the Geddry plaintiffs’ reliance on Newbry was mis-
placed because that case had been disavowed. Geddry, 296
Or App at 146. We discussed the court’s reasoning in Foster
and noted that, in that case, the court had explained that
the second line of cases
“stated the ‘correct rule’: Proposed initiatives may be evalu-
ated before an election to determine whether they are of the
type authorized by the Oregon Constitution to be placed on
the ballot but may not be evaluated for ‘general questions
of constitutionality, such as whether the proposed measure,
if enacted, would violate some completely different portion
of the constitution.’ ”
Geddry, 296 Or App at 147 (quoting Foster, 309 Or at 471).
Notably, Foster involved a City of Portland initia-
tive, not a statewide initiative; thus, it did not involve any
question of the powers of the Secretary of State. Rather, the
constitutional provision at issue in Foster was Article IV, sec-
tion 1(5), which was enacted in 1906 and provides that “[t]he
initiative and referendum powers reserved to the people by
subsections (2) and (3) of this section are further reserved to
the qualified voters of each municipality and district as to
all local, special and municipal legislation of every charac-
ter in or for their municipality or district.”13
As noted above, in Foster, the court did not distin-
guish between municipal, county, and statewide initiatives.
In Meyer, we and the Supreme Court each concluded that
Foster’s holding applied to statewide initiatives, notwith-
standing its focus on a city initiative process. 341 Or at 294(adopting reasoning—that Foster allows pre-election review
of statewide measures for separate-vote compliance—from
13
Counties qualify as “municipalities” under that provision; thus, Article IV,
section 1(5), reserves the initiative power to county voters. See Carriker v. Lake
County, 89 Or 240, 244-46, 171 P 407 (1918) (considering the scope of county
voters’ initiative powers under the provision that is now Article IV, section 1(5)).
However, the constitution did not provide for adoption—or amendment—of
county charters until Article VI, section 10, was enacted in 1958.
314 Bowers v. Betschart
Meyer, 205 Or App at 302-03); see also Geddry, 296 Or
App at 146-47 (applying Foster’s holding in allowing pre-
election review of a statewide initiative for compliance with
separate-vote requirement). Although plaintiffs contend
that we should understand Foster as not applying to county
ballot measures, they do not identify any reason—other
than the mere fact that Foster involved a city initiative—
why we should do so. Given that the Supreme Court has
itself applied its reasoning in Foster outside the narrow con-
fines of its specific subject matter, we are not persuaded to
read its holding narrowly here. Rather, we conclude that the
holding of Foster applies not only to pre-election review of
city initiatives, but to pre-election review of initiatives more
generally, including county initiatives subject to Article VI,
section 10.
In applying Foster, we have explained that, “[p]ro-
posed initiatives may be evaluated before an election to
determine whether they are of the type authorized by the
Oregon Constitution to be placed on the ballot[.]” Geddry,
296 Or App at 147 (citing Foster, 309 Or at 470-71). Here,
of course, defendant’s review of the initiative was not to
ensure that it was “of the type authorized by the Oregon
Constitution.” Id. Rather, defendant’s review was to ensure
compliance with ORS 203.725(2). But, as we have explained,
county voters’ initiative rights under Article VI, section 10,
must be viewed in light of the separate-vote requirement of
Article XVII, section 1, which carries with it the authority to
conduct pre-election review. Thus, like petitioners seeking to
amend the state constitution under Article IV, section 1(2)(a),
county voters have no right under Article VI, section 10, to
avoid pre-election separate-vote review of proposed charter
amendments. See Geddry, 296 Or App at 147; Meyer, 205 Or
App at 302-03 (“[A] challenge to a proposed measure on the
ground that it violates the separate-vote requirement may
be brought before the election.”).
To the extent that plaintiffs contend that pre-
election review cannot be allowed under Article VI, section 10,
because it was not allowed in 1958, when the initiative power
was reserved to county voters, we disagree. As explained
above, in Foster, the Supreme Court identified two lines of
cases that ran in different directions, adhered to the line of
Cite as 313 Or App 294 (2021) 315
cases that allowed limited pre-election review, and rejected
the line of cases that did not allow it. As the court char-
acterized it, those two lines of cases both began early in
the twentieth century. Foster, 309 Or at 469 n 4, 470 (citing
State ex rel. Carson v. Kozer, 126 Or 641, 270 P 513 (1928),
as the earliest of the cases prohibiting pre-election review
and Monahan v. Funk, 137 Or 580, 3 P2d 778 (1931), as the
earliest of the cases allowing pre-election review). Thus,
in Foster, the court held that the correct rule had not been
clear since the early twentieth century but, in fact, it had
always been that, as we paraphrased in Geddry, “[p]roposed
initiatives may be evaluated before an election to deter-
mine whether they are of the type authorized by the Oregon
Constitution to be placed on the ballot.” Geddry, 296 Or App
at 147. Under these circumstances, the fact that Article VI,
section 10, reserved to county voters the initiative power
as it existed in 1958 does not preclude pre-election review;
rather, under Foster, limited pre-election review has always
been permitted under the Oregon Constitution, even if the
decisions of the Supreme Court did not uniformly recognize
that fact until relatively recently.
To summarize, we conclude that the application of
the separate-vote requirement imposed by ORS 203.725(1)
to initiatives proposing county charter amendments under
Article VI, section 10, does not infringe upon any rights
guaranteed by that constitutional provision. We also reject
petitioners’ argument that the constitution prohibits county
clerks from conducting pre-election review to ensure compli-
ance with that separate-vote requirement. Cf. Geddry, 296
Or App at 147 (so holding as to Secretary of State’s author-
ity to conduct pre-election review to ensure compliance with
Article XVII, section 1, of the Oregon Constitution).
We now briefly consider one of plaintiffs’ remaining
challenges to defendant’s determination that the proposed
ballot measure did not satisfy the requirements of ORS
205.725(2). We reject without discussion plaintiffs’ remain-
ing challenges, including their free speech, Due Process,
and vagueness challenges and their contention that ORS
203.725(2) cannot be carried out without additional imple-
menting legislation.
316 Bowers v. Betschart
Plaintiffs raise a challenge under a separate pro-
vision of the Oregon Constitution, contending that ORS
203.725(2) violates the separation of powers provisions of
Article III, section 1.14 They contend that both the county
clerk and the trial court exercised legislative—rather than
administrative or judicial—power in determining whether
the initiative violated the separate-vote requirement of ORS
203.725(2), because that function is “reserved to the citizen-
legislators of the county.” We must reject that argument
because, as we have explained, the powers reserved to the
citizen-legislators of the county by Article VI, section 10, are
limited in light of the separate-vote requirement of Article
XVII, section 1, and the constitution has empowered the leg-
islature to enact a “method” for amending county charters.
Thus, we conclude that defendant correctly reviewed
the proposed amendment of the Lane County Charter for
compliance with the separate-vote requirement of ORS
203.725(2) before submitting it to the voters and that the
statutory separate-vote requirement itself does not conflict
with the state or federal constitutions in any of the ways
identified by plaintiffs. Accordingly, we affirm.
Portion of the judgment concluding that defendant
had authority to review the proposed initiative before the
election affirmed; otherwise declining to address the moot
issues pursuant to ORS 14.175.
14
Article III, section 1, provides as follows: “The powers of the Government
shall be divided into three separate branches, the Legislative, the Executive,
including the administrative, and the Judicial; and no person charged with offi-
cial duties under one of these branches, shall exercise any of the functions of
another, except as in this Constitution expressly provided.”