Deras v. Myers ( 1998 )

DURHAM, J.,

dissenting.

I respectfully dissent. The majority concludes that, pursuant to ORS 251.235, it must alter the explanatory statement prepared in accordance with ORS 251.215(1) by the five-person committee. That conclusion rests on the majority’s implicit determination that the committee’s statement is “insufficient or unclear,” ORS 251.235, as “an impartial, simple and understandable statement explaining the measure,” ORS 251.215(1). The majority construes ORS 251.235 to require this court to certify a different explanatory statement that complies with ORS 251.215(1) if the court concludes that the committee’s explanatory statement is insufficient or unclear. I agree with that interpretation of ORS 251.235. The question that remains is whether the judges on this court are authorized by the Oregon Constitution to comply with that requirement. I conclude that they are not.

Article III, section 1, of the Oregon Constitution, provides:

“The powers of the Government shall be divided into three seperate (sic) departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.”

The legislative power of the state government is vested in the Legislative Assembly and, with respect to certain initiative and referendum powers, in the people. Article IV, section 1(1), of the Oregon Constitution, provides:

“The legislative power of the state, except for the initiative and referendum powers reserved to the people, is vested in a Legislative Assembly, consisting of a Senate and a House of Representatives.”

This court exercises only “judicial power.” Article VII (Amended), section 1, of the Oregon Constitution, provides, in part:

“The judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law.”

Those constitutional provisions enact two protections against encroachments in the exercise of power by the separate branches of government. First, the constitution assigns a particular type of governmental power—and only that power—to each branch. For example, the authorization to the Judicial Branch to exercise “judicial power” means that the courts may not carry out legislative or executive functions. Second, Article III, section 1, forbids any person charged with official duties in one branch of government from performing the functions constitutionally assigned to another branch unless the constitution expressly so provides. That provision prohibits a judge from carrying out any legislative or executive function. The exception set forth at the end of Article III, section 1 (“except as in this Constitution expressly provided”), is inapplicable here.

Petitioner’s argument, viewed in light of the constitutional provisions just reviewed, raises the following question: Do the judges in the majority exercise a- nonjudicial function, in violation of Article III, section 1, when they revise the committee’s explanatory statement and certify the revised explanatory statement to the Secretary of State? In my view, the answer is yes.¹

The explanatory statement for a state measure has one function: To explain the measure to the voters in not more than 500 words. ORS 251.215(1). The Secretary of State must print the explanatory statement in the voters’ pamphlet, ORS 251.185, and distribute the voters’ pamphlet to voters throughout Oregon, ORS 251.175. For many voters who choose not to study the text of a measure before voting, the explanatory statement and ballot title in the voters’ pamphlet are the only sources of information about the consequences of adopting a measure.

The political character of the five-person committee is undeniable. Under ORS 251.205(2) to (4), the proponents of the measure are entitled to appoint two members of the committee. The Secretary of State also must appoint two members from among the measure’s opponents. If the four appointed members cannot agree on a fifth member, then the Secretary of State appoints a fifth member. The committee must consider the public’s suggestions, submitted pursuant to ORS 251.215(2), for modification of the committee’s explanatory statement, and file any revised statement with the Secretary of State. ORS 251.215(3). At least three out of the five committee members must vote to approve an explanatory statement. ORS 251.215(4).

The statutes just described demonstrate what is obvious to any knowledgeable observer: The explanatory statement is the end product of a political process that is involved directly with the creation of law by initiative and referendum. The legislature has designed that political process and the resulting explanatory statement to provide influence and guidance to the lawmaker (here, the electorate). That influence can dictate the success or failure of a measure at the polls and control the legal interpretation of a measure should the voters adopt it.

The latter point is made clear by this court’s cases that treat the explanatory statement of a measure as legislative history. For example, in State v. Wagner, 305 Or 115, 136-39, 752 P2d 1136 (1988), this court quoted both the ballot title and the explanatory statement for a measure and interpreted the measure in question in accordance with the description of the measure set forth in those statements.

In Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or 551, 560 n 8, 871 P2d 106 (1994), this court said:

“In considering the history of a constitutional provision adopted through the initiative process, this court examines, as legislative facts, other sources of information that were available to the voters at the time the measure was adopted and that disclose the public’s understanding of the measure. Such information includes the ballot title and arguments for and against the measure included in the voters’ pamphlet, and contemporaneous news reports and editorial comment on the measure. See State v. Wagner, 305 Or 115, 131-34, 752 P2d 1136 (1988) (examining those items in determining the meaning of a constitutional amendment adopted through the initiative process).”²

Finally, in MacAfee v. Paulus, 289 Or 651, 655, 616 P2d 493 (1980), this court stated:

“Voters’ Pamphlet statements in turn become ‘legislative’ history when that meaning later is disputed by persons affected by the measure in a concrete case.”

The foregoing discussion leads to the conclusion that the preparation of the explanatory statement is a significant preliminary step in the enactment of law by initiative or referendum. The requirement in ORS 251.235 that the court revise any explanatory statement that is insufficient or unclear enmeshes the court in the creation and approval of a statement that serves to influence voter approval or rejection of the measure. Moreover, if the voters approve a measure for which the court revised the explanatory statement, the court’s own words about the meaning of the measure may play a significant, if not controlling, role in any subsequent judicial construction of the measure. The process of drafting an alternative explanatory statement, pursuant to ORS 251.235, bears no resemblance to the resolution and remediation of a genuine case or controversy, i.e., the exercise of “judicial power.” In my view, insofar as ORS 251.235 compels the court to revise an explanatory statement for the voters’ pamphlet, it requires the court to carry out a function that properly belongs to the Legislative or Executive Branch, not the Judicial Branch. Accordingly, Article III, section 1, of the Oregon Constitution, prevents the members of this court from complying with that statutory requirement.

Ideally, the parties to a proceeding under ORS 251.235 will raise questions regarding the court’s authority to revise an explanatory statement in their briefs. However, even in the absence of argument and briefing regarding those questions, it is appropriate—indeed, necessary—for the court to consider such questions on its own motion. To ask whether a statute would compel the court to carry out a function that falls outside of the judicial power is to ask whether the court has jurisdiction. Because the issue here implicates the court’s jurisdiction, the court must address that question whether or not the parties raise it in their briefs.

ORS 251.235 does not authorize the court to remand to the committee any explanatory statement that the court determines is insufficient or unclear. I do not express a view about whether judicial review coupled with a remand procedure would pass muster under Article III, section 1, of the Oregon Constitution. It is sufficient to say that the revision requirement in ORS 251.235 does not. I would dismiss the petition.

Accordingly, I dissent.

1 Justice Unis addressed a similar issue regarding the court’s duty to revise a ballot title pursuant to ORS 250.085(5) in his dissenting opinion in Rooney v. Kulongoski (Elections Division #13), 322 Or 15, 55, 902 P2d 1143 (1995) (Unis, J., dissenting). I joined that dissenting opinion. I rely here on the rationale and supporting authorities cited in Justice Unis’ opinion in Rooney because, for purposes of analysis under Article III, section 1, of the Oregon Constitution, there is no material difference in the function of a ballot title and an explanatory statement, or in the court’s statutory duty on review to revise those statements if they do not meet statutory requirements.

In two judicial review cases, I joined in the conclusion that an explanatory statement should be modified. See Deras v. Keisling, 320 Or 1, 879 P2d 850 (1994) (explanatory statement certified as modified); Lewis v. Keisling, 320 Or 13, 18, 879 P2d 857 (1994) (Unis, J., dissenting) (dissenting opinion advocating modification of explanatory statement). However, those cases predated Rooney, in which Justice Unis pointed out the separation of powers problem concerning modification of a ballot title. This case is the first case after Rooney to raise the question whether modification of an explanatory statement violates the separation of powers. See Brummell v. Kulongoski, 324 Or 131, 922 P2d 666 (1996) (explanatory statement certified without modification). As explained here, I now conclude that Justice Unis’ rationale in Rooney is applicable in the explanatory statement context.

2 By citin g Ecumenical Ministries, I do not necessarily endorse all of the court’s discussion about what legislative facts form the legislative history of a constitutional provision. For example, paid written arguments for and against a measure in the voters’ pamphlet and preelection news and editorial treatment of a measure in the media may reflect only partisan viewpoints and, if so, will shed little or no light on the voters’ intention in approving a measure. Similarly, the court cannot assume that all ballot titles and explanatory statements are free of partisan manipulation. Those sources properly may serve as legislative history that clarifies the meaning of ambiguous text in a measure only if they disclose the voters’ intention in voting to approve the measure. Whether they meet that standard requires analysis on a case-by-case basis.