State Ex Rel. Fidanque v. Paulus , 297 Or. 711 ( 1984 )

CAMPBELL, J.

This is a mandamus proceeding over which this court took original jurisdiction pursuant to Article VII, (Amended), section 2, of the Oregon Constitution, and ORS 34.120. It relates to Ballot Measure Number 8 titled “Revises Numerous Criminal Laws Concerning Police Powers, Trials, Evidence, Sentencing.”

Plaintiff-Relators allege that the Secretary of State breached her constitutional duty by certifying a prospective petition and allocating to it a ballot number in violation of the single issue requirement of Article IV, section 1(2) (d) of the Oregon Constitution. This case raises three issues: timeliness, jurisidiction and. the interpretation of Article IV, section l(2)(d) and section l(4)(b). We do not reach the last two issues because we find that the action was not timely.

On September 28, 1983, a prospective petition that eventually became Ballot Measure Number 8 was filed with the Secretary of State’s office. That office sent copies of the signature pages to Multnomah, Clackamas and Washington Counties for verification.¹ The counties verified the signatures and returned them to the Secretary of State and on October 6, 1983, she sent two copies of the prospective petition to the Attorney General’s office for preparation of a ballot title. On October 20,1983, the Attorney General certified and returned to the Secretary of State a ballot title. ORS 250.065(3).

On October 21,1983, the Secretary of State issued a press release describing the proposed initiative. The ballot title was appealed to this court on November 9, 1983, and on January 24, 1984, this court certified a modified ballot title. Wells v. Paulus, 296 Or 338, 675 P2d 482 (1984). On July 20, 1984, the Secretary of State, after verifying that sufficient signatures had been collected, assigned Ballot Measure Number 8 to the initiative petition. On August 8, 1984, plaintiff-relators filed an application and petition for writ of mandamus in this court.

Plaintiff-Relators allege that the 1968 amendment of Article IV of the Oregon Constitution both imposed a new limitation on the exercise of the initiative power and created a new duty for the Secretary of State, neither concept heretofore having been part of Oregon’s initiative process. Plaintiff-Relators rely specifically on the following two sections of Article IV of the Oregon Constitution:²

Section 1(2) (d) provides:

“An initiative petition shall include the full text of the proposed law or amendment to the Constitution. A proposed law or amendment to the Constitution shall embrace one subject only and matters properly connected therewith.”

Section 1(4) (b) provides:

“Initiative and referendum measures shall be submitted to the people as provided in this section and by the law not inconsistent therewith.”

Plaintiff-Relators contend that the addition of section 1(2) (d) and section 1 (4)(b) requires the Secretary of State to make an independent determination whether the prospective petition complies with the “one subject only” language of section 1(2) (d). Plaintiff-Relators further argue that cases holding that the court is without power to entertain a preelection challenge to the constitutionality of a statute have no application to a mandamus action directed to the Secretary of State if the mandamus action is an attempt to force her to comply with the “one subject only” provision.³

Assuming for the sake of argument that a duty was created, the issue then becomes at what point the Secretary of State is charged with the performance of that duty. ORS 250.045(1) requires that, prior to circulating a petition under section 1, Article IV, the petitioner must file the prospective petition with the Secretary of State. That statute reads:

“(1) Before circulating a petition to initiate or refer a state measure under section 1, Article IV, Oregon Constitution, the petitioner shall file with the Secretary of State a prospective petition. The prospective petition for a state measure to be initiated shall contain a statement of sponsorship signed by at least 25 electors. The Secretary of State shall date and time stamp the prospective petition, verify signatures on the statement of sponsorship, if any, and specify the form on which the petition shall be printed for circulation. The secretary shall retain the prospective petition.”

ORS 250.065(2) provides that:

“When an approved prospective petition for a state measure to be initiated is filed with the Secretary of State, the secretary immediately shall send two copies of it to the Attorney General.”

Plaintiff-Relators argue that the Secretary of State breached her duty on July 20, 1984 when she certified the petition and assigned to it a ballot measure number. However, in light of the statutes and existing caselaw, we hold that if the Plaintiff-Relators’ allegation that a duty was created is correct, that duty would have been breached when the prospective petition was approved under ORS 250.065(2) and was sent to the Attorney General for a ballot title.⁴ It is this determination that provides the first opportunity for the Secretary of State to exercise her official power with respect to the prospective petition. If, as the Plaintiff-Relators contend, there is a constitutional duty to act, it would arise at this time. It is in approving a prospective petition which did not comply with the alleged requirements of Article IV, section 1, that the Secretary of State’s authority under the constitution and statutes first would be exceeded and her duty breached.⁵

In Holmes v. Appling, 237 Or 546, 554-55, 392 P2d 636 (1964), this court addressed the issue of when the duty of the Secretary of State to determine his constitutional authority arose. In Appling, Plaintiff-Relators were attempting to force the Secretary of State to furnish a ballot title for a proposed law. The Secretary of State refused to furnish the ballot title “because he had been advised by the Attorney General that the petition proposed a new constitution or a revised constitution and that the initiative power reserved to the people to amend the constitution does not permit the submission to the people of a revised or new constitution and that he was acting upon such advice.” Id at 548.

In essence, the Appling court said that the Secretary of State had the initial duty to determine if the constitution allowed the action being taken by the Plaintiff-Relators stating: “[T]he defendant [Secretary of State] necessarily was required to determine whether our laws granted him authority to pursue the course which the plaintiffs requested.” Id at 554. Thus, it would be at the approval stage of the prospective petition that the Secretary of State has the duty to determine if the requested action was constitutional.

The Appling court recognized that while neither the court nor the Secretary of State could review the merits of the proposed initiative for its constitutionality before enactment, the Secretary had an affirmative duty to determine whether the constitution granted the authority to approve the proposed initiative and to place it on the ballot in the first place. The distinction drawn by Appling is between the substantive validity of the measure proposed and the attempt to use the initiative process for an invalid purpose.

Assuming a duty was created by the 1968 changes, then the court must examine if the extraordinary remedy of a writ of mandamus is appropriate in light of the facts in this case. “A writ of mandamus * * * is not awarded as a matter of right, but on equitable principles.” Buell v. Jefferson County Court, 175 Or 402, 410, 152 P2d 578, reh den 154 P2d 188 (1944). State v. Reid, 207 Or 617, 631, 298 P2d 990 (1956); Lafferty v. Newbry, 200 Or 685, 702, 268 P2d 589, (1954). Further, mandamus “is an extraordinary remedial process which is awarded not as a matter of right, but in the exercise of a sound judicial discretion * * *.” Buell, 175 Or at 408.

This court has long recognized that the concept of laches applies to writs of mandamus:

“Laches is a bar to mandamus, and a petitioner desiring to avail himself of the benefits of such a writ must act promptly: [citation omitted]. * * *.”

Paine v. Wells, 89 Or 695, 703, 175 P 430 (1918); Buell, 175 Or at 410.

When looking at the facts in this case, the breach of duty, if any, initially occurred on or about October 6, 1983, when the Secretary of State referred the petition to the Attorney General for a ballot title. In Buell, we stated:

“An application for the writ should be made seasonably and within a reasonable time after the alleged default or neglect of duty. Delay which has been detrimental or prejudicial to the rights of the defendant or others interested may be sufficient cause for denial of the writ. Every case must be considered on its own particular facts: 35 Am. Jur., Mandamus, §312, page 65.”

175 Or at 410.

Also, the Buell court indicated that there should be a good reason for not instituting an action at an earlier time stating: “No reason is set forth in the alternate writ for the plaintiffs not having instituted the proceeding at an earlier late.” Id at 410. The Paine court stated very clearly the requirement for speedy action on the part of the relator:

“It is well settled that the application for a writ of mandamus must be made within a reasonable time after the alleged default or neglect of duty, and that laches or delay in making an application unless satisfactorily explained may afford sufficient cause for its denial, particularly when the delay has been prejudicial to the rights of the respondent.”

89 Or at 703. See also State ex rel Redden v. Van Hoomissen, 281 Or 647, 576 P2d 355, reh den 282 Or 415, 579 P2d 222 (1978).

Besides being prejudicial to the defendant⁶ and the petition circulators, such delay puts an unreasonable burden on the court. The matter could have been litigated in the circuit court with ample time for the narrowing and clarification of issues through the normal judicial process. Rather than follow such a procedure, Plaintiff-Relators have waited until the eleventh hour to bring their present challenge. To wait until the last moment places the court in a position of having to steamroll through the delicate legal issues in order to meet the deadline for measures to be placed on the ballot. In light of the great value ascribed to the exercise of the initiative power by the people, by the Oregon Constitution, and the courts and the substantially negative impact that rushed, last minute reviews would have on the exercise of the initiative power, this court has been and should be very wary of last minute challenges. See Kays v. McCall, 244 Or 361, 373-74, 418 P2d 511 (1966).

If we ultimately allow preelection review under the “single subject only” language of Article IV, section (l)(2)(d), such review must be commenced within a reasonable time after approval by the Secretary of State and the submission to the Attorney General for a ballot title. This will allow participants in the initiative process to rely on the finality of such determinations so far as the attempts to collect signatures are concerned and at the same time provide potential challengers of the proposed measure adequate time to bring suit. Cf. Emerson v. Deschutes County, 46 Or App 247, 610 P2d 1259 (1980).

In view of the presumption favoring the exercise of the initiative power, the lack of any adequate reason given by the Plaintiff-Relators for their delay in making this challenge until the eleventh hour and the potential availability of post-election challenge under Article IV, section 20, should Ballot Measure 8 ultimately be approved, it is not unreasonable to hold that Plaintiff-Relators’ challenge was not timely.

Writ dismissed.

1 The signatures that the Secretary of State verified at this stage of the submission process were the 25 elector signatures required by ORS 250.045(1).

2 Article IV, section 1, as it presently exists, originated as HJR-16 and was adopted by the people in 1968.

3 The Secretary of State, defendant, contends that the changes made in 1968 did not change her duties. The defendant refers to the legislative history behind the changes which supports her contention that there was no intention to change existing law at that time. Both parties agree that if there was no change, this court would have no jurisdiction.

4 The Secretary of State may refer questions to the Attorney General under ORS 180.060(2) upon any question of law upon which the State of Oregon may have an interest, or subsection (5) of ORS 180.060 wherein “the Attorney General shall, when requested, perform all legal services for the State or any department or officer of the State.” Thus, the Secretary of State could refer the question whether a proposed law “embraced one subject only and matters properly connected therewith” to the Attorney General at the time that the prospective petition was filed with the Secretary of State’s office and forwarded to the Attorney General for preparation of a ballot title pursuant to ORS 250.065.

5 One can visualize a time line in the submission procedure involved in the initiative process. No initiative petition may be circulated without the approval of the Secretary of State and the issuance of a ballot title. ORS 250.045(1), ORS 250.065(2),(3) and (4). Approval by the Secretary of State is conditioned not only upon verification of the required number of sponsor signatures, but also upon determination that the use of the initiative power in each case is authorized by the Constitution. Holmes o. Appling, supra. Once this initial determination is made, that decision is then reviewable by the courts. It is at this point that the process of submitting initiated measures to the people begins. If the Secretary of State has made an error in determining the extent of her constitutional authority, the clock for timeliness of review begins ticking at this initial step.

The next step is issuance of the ballot title. This is the second discrete step in the submission process. That decision is also reviewable by the court and any challenge must be made within 20 days or the right to challenge is lost. That was in fact done with respect to the ballot measure in question here. Wells v. Paulus, 296 Or 338, 675 P2d 482 (1984).

The third discrete step in the submission process is the verification of signatures and certification of the measure for ballot. Again, but not until the action is taken by the Secretary of State, the process is open for court review of the action taken. State ex rel Sajo v. Paulus, 297 Or 646, 688 P2d 367 (1984).

Therefore, in the submission process, a series of decisions must be made. As each decision is made, it becomes susceptible to challenge.

6 While the Plaintiff-Relators in this case complain that their right to vote will be infringed if Ballot Measure 8 is placed on the ballot, they do not adequately explain why they did not bring the action at an earlier stage. If Plaintiff-Relators are successful, that would mean that the organizers and proponents of this measure had in essence wasted their time, energy and money to obtain sufficient signatures to be certified for placement on the ballot.