Harisay v. Atkins
Harisay v. Atkins
Opinion of the Court
*444*494Plaintiffs brought this action seeking to enjoin defendant, then the Secretary of State, to certify Initiative Petition 2016-005 (IP 5) for the 2016 general election ballot. The proposed initiative, if passed, purports to be an "application" to Congress to call a constitutional convention pursuant to Article V of the United States Constitution.
On appeal, we reject most of plaintiffs' arguments without discussion but write to address what we understand to be the principal issue, which is whether IP 5 proposes a "law" within the meaning of Article IV, section 1(2)(a), of the Oregon Constitution. As explained below, we conclude that it does not, and that the secretary, for that reason, correctly determined that IP 5 is not procedurally compliant with the Oregon Constitution. Accordingly, the trial court did not err in granting the secretary's motion for judgment on the pleadings. We affirm.
The relevant facts are procedural and undisputed. Plaintiffs submitted IP 5, set out in an appendix to this opinion below, to the secretary to commence the process of certifying the petition for the 2016 ballot. The text of IP 5 contains recitals criticizing decisions of the United States Supreme Court regarding campaign finance law and the political rights of corporations. Following those recitals, Section 1 of the petition states, "We the People of the state of Oregon * * * hereby call for an Article V Convention *495by enacting into law this Application, in accordance with Article V of the U.S. Constitution, for the specific and exclusive purpose of considering a Constitutional Amendment consistent with" two enumerated principles, which IP 5 denominates, respectively, "Corporations Are Not People" and "Money is Not Speech." Section 2 provides that the initiative shall be a "continuing application * * * until at least two-thirds of the legislatures of the several states have made similar applications pursuant to Article V." Section 3 provides that copies of IP 5 "shall be transmitted" by unspecified persons "to the President of the United States" and other officials. Section 4 provides that IP 5 shall be codified in the Oregon Revised Statutes.
While certification was pending, the Attorney General issued a letter opinion advising the secretary that "a court reviewing the initiative would probably conclude that the application for a constitutional convention is not a 'law' for purposes of exercising the initiative power reserved to the people of Oregon." See generally Or. Const., Art. IV, § 1 (2)(a) ("The people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution * * * at an election independent of the Legislative Assembly." (Emphasis added.) ). Citing that letter, the secretary refused to certify IP 5 pursuant to OAR 165-014-0028(1) (secretary reviews an initiative petition "to determine if it complies with the procedural requirements established in the Oregon Constitution").
Plaintiffs filed this action to enjoin the secretary to certify the petition, and the secretary moved for judgment on the pleadings. The trial court granted the secretary's motion, affirming the secretary's and Attorney General's conclusion that IP 5 failed to propose *445a "law" under the Oregon Constitution. Plaintiffs appeal.
While this appeal was pending, the deadline for submitting enough signatures to place IP 5 on the ballot for the 2016 general election passed (as did the election itself), rendering the case moot. See Couey v. Brown ,
Under ORS 14.175, an otherwise moot case that involves a constitutional challenge to the act of a public body is justiciable if (1) the party that commenced the action had standing to commence it, (2) the challenged act (here, the secretary's rejection of IP 5) is capable of repetition, and (3) the challenged act is likely to evade judicial review in the future. See Couey ,
However, even where all elements of ORS 14.175 are met, it is a matter of our discretion whether to review a moot issue. Eastern Oregon Mining Association v. DEQ ,
*497Here, the second and fourth factors strongly favor review. Whether a proposed ballot initiative meets the procedural requirement of being a "law" under Article IV, section 1, is an issue relevant to future initiative petitions and one that Oregon courts have not yet addressed; therefore, the issue being litigated would affect a wider class of interests than the parties to this case. See Eastern Oregon Mining ,
Accordingly, we conclude that, although the case is moot, it is justiciable under *446ORS 14.175, and we exercise our discretion to review it. We turn to the merits.
As noted, plaintiffs attack the secretary's and the trial court's reasoning on various grounds. As far as we can tell, however, plaintiffs agree that, to constitute a valid exercise of the initiative power, IP 5 must propose a "law" under Article IV, section 1(2)(a), and if it does not, then the secretary was not required to certify it for the ballot. Cf. Herbring v. Brown ,
Article IV, section 1, of the Oregon Constitution provides, in relevant part:
*498"(1) 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.
"(2)(a) 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."
(Emphasis added.)
Because, following a legislative referral, the relevant language in Article IV, section 1, was adopted by the voters as an amendment to the Constitution in 1902, our task in construing the provision requires us to discern the voters' intent by applying the analytical framework set out in Ecumenical Ministries v. Oregon State Lottery Comm. ,
Beginning with the text of Article IV, section 1, we presume that the voters intended the provision's language to be given its ordinary meaning. Ecumenical Ministries ,
*447"1. In general, a rule of being or of conduct, established by an authority able to enforce its will; a controlling regulation; the mode or order according to which an agent or a power acts.
"* * * * *
"4. In human government: (a ) An organic rule, as a constitution or charter, establishing and defining the conditions of the existence of a state or other organized community. (b ) Any edict, decree, order, ordinance, statute, resolution, judicial decision, usage, etc., made, or recognized, and enforced, by the controlling authority."
Webster's International Dictionary 835 (unabridged ed. 1898) (boldface and italics in original). The term was also defined in contemporaneous legal dictionaries:
"1. That which is laid down, ordained, or established. A rule or method according to which phenomena or actions co-exist or follow each other.
"2. A system of principles and rules of human conduct, being the aggregate of those commandments and principles which are either prescribed or recognized by the governing power in an organized jural society as its will in relation to the conduct of the members of such society, and which *500it undertakes to maintain and sanction and to use as the criteria of the actions of such members."
Black's Law Dictionary 690 (1st ed. 1891) (boldface omitted; emphasis in original). Alexander M. Burrill's A New Law Dictionary and Glossary states:
"In the most general sense,-a rule of action prescribed by a superior. * * *
"In a stricter sense,-a rule of civil conduct, prescribed by the supreme power in a state. * * * Blackstone's definition, in full, is, 'a rule of civil conduct, prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.' * * *
"In the strictest sense,-a statute; a rule prescribed by the legislative power. 'The laws of a state,' observes Mr. Justice Story, 'are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long established local customs having the force of laws.' "
Alexander M. Burrill, 2 A New Law Dictionary 664 (1850) (emphasis in original); cf. State v. Werdell ,
All of those definitions share (at least) two similarities. First, they all define a "law" as a "rule" of civil conduct or action. Second, they explain that the "rule" applies to members of a particular community over which the rulemaking entity has authority. One does not make "laws" for people over whom one exercises no controlling authority.
Oregon cases interpreting Article IV, section 1, provide additional context for the phrase "to propose laws." See Kerr v. Bradbury ,
With that understanding, we return to the text of IP 5 and conclude that, whatever it does, it does not propose a "law." Importantly, IP 5 does not purport to affect the conduct of anyone within the State of Oregon. Plaintiffs concede that "[t]he largest effect of IP 5 is upon Congress" and "IP 5 says nothing about what Oregon elected officials should or should not do." Although the measure says that copies of IP 5 will be "transmitted" to various federal officials, the petition binds no particular state entity to do so. Thus, it cannot be said that IP 5 proposes a rule that is made and enforced by "the controlling authority" of those being governed by the rule. Put simply, IP 5 would regulate no one in Oregon and, thus, would not be an exercise of Oregon lawmaking.
*449*503IP 5 also bears little resemblance to a "rule of conduct." The core purpose of IP 5 is to "call" or "apply," and thus trigger (supposing enough other states implement similar applications), a constitutional convention under a pre-existing process set out in Article V of the United States Constitution. If passed (and if enough other states passed similar measures), IP 5 would ostensibly require Congress to hold a convention and consider certain enumerated legal principles at that convention; however, once such a convention were to convene, the measure would cease to have any effect. See, e.g. , Rossolo ,
*504Rather, what IP 5 undisputedly does is express the will of Oregon voters for Congress to hold a constitutional convention. In that way, IP 5 is more akin to a legislative memorial. See Office of Legislative Counsel, Bill Drafting Manual § 16.5 (2018) (A joint memorial is used when both houses of the Legislative Assembly join to address or petition Congress, the President of the United States or the officials or agencies of another governmental body.");
*450Courts of other states have reached similar conclusions regarding initiatives and referenda that propose applications for constitutional conventions and other functions under Article V. The Supreme Judicial Court of Massachusetts concluded that an initiative requesting the legislative assembly to support an amendment to the Massachusetts Constitution to repeal an amendment of the *505United States Constitution was not a "proposed law" under the Massachusetts Constitution:
"The word 'law' imports a general rule of conduct with appropriate means for its enforcement declared by some authority possessing sovereign power over the subject; it implies command and not entreaty; it is something different in kind from an ineffectual expression of opinion possessing no sanction to compel observance of the views announced. The text of the proposed law accompanying this initiative petition does not prescribe a general rule of conduct. It merely invites a declaration of opinion by voters on a subject over which the people of the commonwealth possess no part of the sovereign power."
Opinion of the Justices Relative to the Eighteenth Amendment of the Constitution of the United States ,
Similarly, the Supreme Court of California concluded that a proposed initiative requiring the California legislature to adopt a resolution applying to Congress for an Article V convention was not a "statute" under the California Constitution. See American Federation of Labor v. Eu ,
In sum, the text and context of Article IV, section 1, reflect that the voters did not intend for the scope of the initiative power to include applications for Article V conventions to amend the United States Constitution. We conclude that IP 5 does not propose a "law" and consequently fails to meet the procedural requirements for initiative petitions under Article IV, section 1, of the Oregon Constitution.
*506Accordingly, the trial court did not err in granting the secretary's motion for judgment on the pleadings.
Affirmed.
*507APPENDIX
INITIATIVE PETITION 2016-005
Oregon We the People Initiative
Whereas:
• Decisions by the U.S. Supreme Court have equated spending money in elections with speech and granted corporations the constitutional rights of the People, permitting the wealthy to buy enormous influence in our government through uncontrolled political spending. This undermines the aspirations of Oregonians to a true democracy with a level playing field.
• Corporations, including for-profit and non-profit organizations, unions, and other artificial legal entities, are created under state laws. There is no mention of these entities in the Constitution.
• Money is property, not speech. Its unregulated use for political purposes creates unequal access to political power and influence. Money contributed or spent for political purposes should he subject to regulation.
Therefore:
(1) We the People of the state of Oregon, with the legislative power retained by us under the Oregon Constitution (including Article IV, Section 1, and Article II, Section 18 ), hereby call for an Article V Convention by *451enacting into law this Application, in accordance with Article V of the U.S. Constitution, for the specific and exclusive purpose of considering a Constitutional Amendment consistent with the following principles:
(a) Corporations Are Not People. Artificial entities, such as corporations, unions and non-profit corporations, established by the laws of any State, the United States, or any foreign state, shall have no constitutional rights and shall be subject to regulation by the People, through Federal, State or Local law. Nothing in this clause shall be construed to *508limit the rights of the People as specified in the U.S. Constitution and its Amendments.
(b) Money is Not Speech. Money is property and shall not be construed as speech. The People, to ensure a level playing field for all people regardless of their economic status, empower and direct Federal, State, and Local governments to regulate, limit or prohibit the contribution and spending of money for political purposes and to require full and prompt public disclosure of all such transactions.
(2) This measure constitutes a continuing application in accordance with Article V of the Constitution of the United States, until at least two-thirds of the legislatures of the several states have made similar applications pursuant to Article V.
(3) A copy of this initiative shall be transmitted to the President of the United States; to each member of the Oregon Congressional Delegation; to the presiding officers of the U.S. Senate and House of Representatives; to each Governor and presiding office of each legislative body of each of the United States.
(4) This Application shall be codified in Title 17 of Oregon Revised Statutes.
Article V of the United States Constitution provides, in relevant part:
"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments , which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress [.]."
(Emphasis added.)
When the initiative and referendum power was first adopted in 1902, Article IV, section 1, provided, in relevant part:
"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 * * * independent of the Legislative Assembly * * *. The first power reserved by the people is the initiative[.] "
(Emphasis added.) The provision was later amended in 1968, although that amendment did not change the phrase "propose laws." According to the 1968 official Voters' Pamphlet, the 1968 amendment was intended primarily to (1) change the basis for determining the number of signatures required for initiative and referendum petitions, (2) allow additional time after the filing deadline for certification of signatures, and (3) "clean up" the wording and obsolete sections while "in no way * * * diminish[ing] the power of the people to initiate or refer measures." Official Voters' Pamphlet, Primary Election, May 28, 1968, 8; State v. Campbell/Campf/Collins ,
The ordinary meaning of "law" had changed little when Article IV, section 1, was amended in 1968 Webster's provided:
"The binding custom or practice of a community; rules or mode of conduct made obligatory by some sanction which is imposed and enforced for their violation by a controlling authority."
Webster's New Int'l Dictionary 1401 (unabridged 2d ed. 1961).
The parties have identified nothing in the enactment history of Article IV, section 1, that suggests that the voters who enacted the provision had a different understanding of the ordinary meaning of "laws" or the scope of the initiative power. See Ecumenical Ministries ,
Regardless of the effect that IP 5 would have on Oregonians, there are strong reasons to believe that IP 5 would be ineffective as part of a multistate effort to bind Congress, which, if true, would be yet another reason why IP 5 fails to propose a "law." In Hawke v. Smith ,
Plaintiffs disagree and argue that the Court would conclude that a state may apply for a constitutional convention via the initiative power. That argument presumes either that the Court would overrule Hawke or that the term "Legislatures" has two different meanings within the same clause of Article V. In any event, we need not further consider that issue, because, for the other reasons explained in this opinion, we conclude that IP 5 fails to propose a "law" for purposes of Article IV, section 1, of the Oregon Constitution.
Reference
- Full Case Name
- Richard HARISAY Charles Montgomery and Stephen Bintliff, Chief and Electors of the State of Oregon v. Jeanne ATKINS, Secretary of State of Oregon, Defendant-Respondent.
- Cited By
- 9 cases
- Status
- Published