State Ex Rel. Keisling v. Norblad , 317 Or. 615 ( 1993 )

UNIS, J.,

specially concurring.

I agree, but for different reasons, that a peremptory writ of mandamus should issue (a) vacating defendant judge’s order granting plaintiff a preliminary injunction and (b) directing that the case be dismissed.¹

In my view, defendant judge should have dismissed plaintiff’s complaint against the Secretary of State that alleged that House Joint Resolution 10 (Ballot Measure 1) contains more than a single proposed constitutional amendment. Plaintiff failed to plead ultimate facts sufficient to state a claim for relief, ORCP 21 A(8), when he asserted that the Secretary of State had a duty to alter or remove Ballot Measure 1, which was referred by the legislature to the people for their approval.

Article XVII, section 1, of the Oregon Constitution specifies how the legislature may submit a proposed constitutional amendment to the people. The portion of Article XVII, section 1, on which defendant judge relied, provides that when the legislature submits two or more constitutional amendments to the people at the same election, ‘ ‘they shall be so submitted that each amendment shall be voted on separately.”

State ex rel v. Newbry et al, 189 Or 691, 222 P2d 737 (1950), involved a constitutional amendment proposed by initiative petition. A challenge was brought under Article XVII, alleging “that the proposed amendment is legally insufficient, in that, in violation of Article XVII of the state constitution, it combines as one amendment what are in fact three amendments ***” Id. at 693. This court held that it could not order the Secretary of State to examine the initiative measure for compliance with Article XVII, section 1. Id. at 694-98. The court reasoned that for the judicial branch to determine the constitutionality of the measure in advance of its enactment would be a fundamental interference with the people’s legislative authority that would violate separation of powers principles. Id. at 697-98. Specifically, this court said that “[a]ny interference by the courts with the enactment of an initiative measure, where all statutory requirements had been complied with, would in itself be a violation of the constitutional separation of the powers of government.” Id. at 697. Newbry has not been modified by an amendment to Article XVII, section 1, nor has the legislature attempted to modify the holding in Newbry. Moreover, this court has not overruled Newbry. In fact, this court recently has recognized the validity of the basic doctrine stated in Newbry. OEA v. Roberts, 301 Or 228, 721 P2d 833 (1986).

In OEA v. Roberts, supra, this court held that the trial court erred in dismissing an action against the Secretary of State that asserted that the Secretary of State had failed to exercise pre-enactment² review of an initiative measure for compliance with the single-subject requirement of Article IV, section l(2)(d), of the Oregon Constitution. Citing prior decisions, including Newbry, this court in Roberts stated that “[b]efore 1968[,] this court consistently held that courts could not consider constitutional challenges to initiative or referendum petitions before the voters adopted the measures.” OEA v. Roberts, supra, 301 Or at 231. However, this court concluded that Article IV, section 1, had been amended in such a way as to give rise to a specific duty requiring “the Secretary of State [to] determine whether ‘proposed laws’ contain one subject only,” id. at 232, a duty that arises “when [the Secretary of State] approves a prospective petition [for signature gathering].” Id. at 235. Having established the existence of the Secretary of State’s duty to review proposed laws for one-subject compliance, the court remanded the case to the circuit court for consideration whether the Secretary of State had discharged that responsibility properly.

While the outcome was different, OEA v. Roberts reaffirmed the basic principle stated in Newbry. The amendments to Article IV, section 1, of the Oregon Constitution that prompted this court in Roberts to depart from the general principle stated in Newbry do not apply to proposed constitutional amendments referred to the people by the legislature under Article XVII, section 1, of the Oregon Constitution. In contrast to Article IV, section 1, at issue in Roberts, Article XVII, section 1, has not been amended to contain language similar to that relied on by this court in Roberts. Thus, the Secretary of State’s special pre-enactment duty to review for one-subject compliance arises only in the context of initiative measures proposed under Article IV, section 1, of the Oregon Constitution. No such pre-enactment duty exists under Article XVII, section 1.

No constitutional, statutory, or decisional basis exists for the Secretary of State to conduct pre-enactment review for compliance with the “separate-amendments provision” to proposed constitutional amendments referred under Article XVII, section 1, of the Oregon Constitution. Article XVII, section 1, does not confer such authority on the Secretary of State. That provision states that proposed amendments “shall * * * be entered in their journals and be referred by the secretary of state to the people for their approval or rejection.” (Emphasis added.) The Secretary of State refers the measure to the people. The “separate-amendments provision” states that separate amendments shall be “submitted so that each may be voted on separately.” Or Const, Art XVII, § 1 (emphasis added). It is the legislature that submits a referred measure for approval by the people, not the Secretary of State. The Secretary of State’s duty to refer a measure is a ministerial duty only, which provides for no exercise of independent judgment by the Secretary of State. The “separate-amendments provision” of Article XVII, section 1, is directed to the Legislative Assembly, each member of which is sworn to uphold the constitution, Or Const, Art IV, § 31, and is not directed to the Secretary of State or to any other executive official.

The Secretary of State’s authority derives from Article VI, section 2, which provides:

“The Secretary of State shall keep a fair record of the official acts of the Legislative Assembly, and the Executive Department of the State; and shall when required lay the same, and all matters relative thereto before either branch of the Legislative Assembly. He shall be by virtue of his office, Auditor of public Accounts, and shall perform other such duties as shall be assigned him by law.”

Nothing in that constitutional provision authorizes the Secretary of State to engage in pre-enactment review of legislatively-referred measures for compliance with Article XVII, section 1. Neither does the Secretary of State presently have such statutory authority. House Bill (HB) 3677, codified as Oregon Laws 1993, chapter 604, directs that Ballot Measure 1 shall be submitted to the voters at the special statewide election to be held on November 9,1993. Nothing in HB 3677 authorizes the Secretary of State to make a pre-enactment review of Ballot Measure 1. ORS 177.030, which defines the duties of the Secretary of State, contains no reference to pre-enactment review of referred measures.

ORS 246.110 designates the Secretary of State as “the chief election officer of the state,” and the Secretary of State is charged with the duty to “diligently seek out any evidence of violation of any election law,” ORS 246.046. However, Article XVII, section 1, is not an “election law” within the meaning of ORS 246.046. That statute refers only to statutory provisions governing elections.

ORS chapter 250 sets forth the applicable duties of the Secretary of State with regard to the initiative and referendum process. Nothing contained in ORS chapter 250 authorizes the Secretary of State to engage in pre-enactment review of a referred measure.

There is another persuasive reason why Article XVII, section 1, should not be read to imply a pre-enactment duty on the Secretary of State to review a legislatively-referred proposed constitutional amendment to determine whether it complies with the “separate-amendments provision.” To perform that duty effectively, the Secretary of State would have to have concomitant authority to perform one of two acts if he or she concluded that a proposed measure contains more than one amendment, i.e., the Secretary of State either would have to have authority to withhold the measure from the people altogether, thereby thwarting the expressed will of the legislative branch, or the Secretary of State would have to have authority to restructure the measure by “breaking” it into separate amendments so that each could be voted on separately.³

Both options give the Secretary of State extraordinary legal and judgmental power and control over the constitutionally reserved legislative power to refer proposed constitutional amendments to the people for their approval. With the first option, the exercise of control is particularly obvious and direct. The Secretary of State would be empowered to veto the legislature’s order of an election. The Oregon Constitution gives only one executive branch elected official — the Governor — the power to veto legislative acts. Or Const, Art V, §§ 15a and 15b. In Article XVII, section 1, the people have not conferred such a power on the Secretary of State. With the second option, the exercise of power is less direct, but nonetheless could amount to a substantial interference with the legislative process. Such a power would enable the Secretary of State to replace the legislative judgment of how to structure a proposed constitutional amendment referred to the people with his or her own judgment. In essence, it would allow the Secretary of State unilaterally to amend legislative action, thus conferring upon the Secretary of State a power that is vested in the legislature, Or Const, Art IV, § 1.

The basic structure of Article XVII, section 1, of the Oregon Constitution is that the legislature, not the Secretary of State, oversees the constitutional referral process. The Secretary of State, subject to legislative guidance, is given a more active role in the initiative process because no other elected official is present to oversee the process and ensure that it is carried out properly. The Secretary of State’s role in the referral process, in the absence of a grant of constitutional or statutory authority, is ministerial only. Other elected officials, i.e., the legislature, have the responsibility to oversee the referral process. The elected officials who comprise the legislative body are independently accountable to the electorate for their judgment. That accountability acts as a safeguard to ensure that the referral process in Article XVII, section 1, is not abused.

In sum, because there is no statutory or constitutional authority under which the Secretary of State could perform the acts demanded by plaintiff, plaintiff has no legal basis for the relief sought. Defendant judge should have denied relief.⁴

1 It is interesting to note that this court reaches the same result that I reach, but on the basis of lack of timeliness in plaintiffs request for relief, even though both parties assert that plaintiffs complaint was timely, and neither party raised or argued the question of timeliness before defendant judge. 317 Or at 627.

2 Throughout this opinion, “pre-enactment” means before the people have approved the measure at the election.

3 In fact, in this case, the effect of defendant judge’s preliminary injunction is to require the Secretary of State to perform one of the two alternatives.

4 Nothing in this specially concurring opinion should be construed as an expression of this author’s opinion of the compliance of Ballot Measure 1 with the “separate-amendments provision” of Article XVII, section 1, of the Oregon Constitution.