Statement of the Case
The Oregon people passed Measure 7 by majority vote. Plaintiffs challenged the validity
of Measure 7, arguing that Measure 7 violated the separate vote requirement of Article XVII,
section 1 of the Oregon Constitution. The Marion County Circuit Court, the Honorable Paul
J. Lipscomb presiding, agreed with plaintiffs and, citing Armatta v. Kitzhaber, 327 Or 250,
959 P2d 49 (1998), held Measure 7 invalid.
| Questions Presented by Amici Curiae
Does Article XVII, section 1 impair the people's initiative power?
In light of Article IV, section 1 (4) (d), does Article XVII, section 1 have any impact
upon the people's initiative power?
In light of the entire constitution, including Article I, section 1, does Article XVII,
section 1 have any other than ministerial impact upon the people's initiative power?
Is an initiative subject to judicial review under Article XVII, section 1 in the absence of
ministerial delinquency by the Secretary of State or Governor?
| Rules Proposed by Amici Curiae
Article XVII, section 1 does not impair or have any other than ministerial impact on the
people's initiative power.
No initiative is subject to judicial review under Article XVII, section 1 absent ministerial
delinquency by the Secretary of State or Governor
Nature of the Case and Relief Sought
Plaintiffs challenged the validity of Measure 7, an initiative passed by the people at the
last general election. Plaintiffs asserted that Measure 7 constituted more than one
constitutional amendment and that, therefore, it violated the separate vote requirement of
Article XVII, section 1. The circuit court agreed with plaintiffs and held Measure 7 invalid.
McIntire and Hall, as amici curiae, urge reversal of the circuit court judgment under a
holding by this court which establishes as rules of law in Oregon that Article XVII, section 1
does not impair or have any other than ministerial impact on the people's initiative power and
that judicial review of initiatives under Article XVII, section 1 is limited to ministerial
delinquency.
Summary of Argument
The text of Article XVII, section 1 establishes that it governs the legislature's ability to
refer constitutional amendments to the people, but it does not govern the people's initiative
power to amend the constitution.
The text of Article XVII, section 1 specifically commands that Article XVII, section 1
not be construed to impair the people's initiative power to amend the constitution.
The text of Article IV, section 1 (4) (d) says that Article XVII, section 1 does not affect
or delay the effectiveness of an initiative.
Article I, section 1 enshrines the rule that the people are sovereign in the State of
Oregon. The people delegated powers to the executive, legislative, and judicial branches of
the government they established, but they retained their sovereign "right to alter, reform or
abolish [that] government as they may think proper." As the sovereign, the people's decision
to amend the constitution by initiative is not subject to review by an inferior branch of
government.
Argument:
Separate Vote Not Required on Initiatives
Text and Context
"'In interpreting a constitutional provision adopted through the initiative
process, our task is to discern the intent of the voters. The best evidence of the
voters' intent is the text of the provision itself. * * * The context of the language of
the ballot measure may also be considered; however, if the intent is clear based on
the text and context of the constitutional provision, the court does not look further.
* * *'"
Roseburg School Dist. v. City of Roseburg, 316 Or 374, 378, 851 P2d 595 (1993).
That procedure must be applied to Article XVII, section 1, which "provision was
adopted through the initiative process."
Initiative and Referendum Distinguished
In 1906, when Article XVII was created, the word "initiative" was described as the
power reserved by the people to propose a new law or to amend the constitution. Art IV, § 1
(1902). That meaning for "initiative" still prevails. Art IV, § 1(2)(a).
In 1906, the referendum was described as the power reserved by the people to "approve
or reject at the polls any act of the legislative assembly." Art IV, § 1 (1902). That meaning for
"referendum" still prevails. Art IV, § 1 (3) (a).
The Text of Article XVII, Section 1
Article XVII, section 1 of the Oregon Constitution contains six sentences. The first
sentence is:
"Any amendment or amendments to this Constitution may be proposed in either
branch of the legislative assembly, and if the same shall be agreed to by a majority of
all the members elected to each of the two houses, such proposed amendment or
amendments shall, with the yeas and nays thereon, be entered in their journals and
referred by the secretary of state to the people for their approval or rejection, at the
next regular general election, except when the legislative assembly shall order a
special election for that purpose."
The subject of that first sentence is not amendments to the constitution; rather the subject of
this sentence is amendments to the constitution proposed by the legislature--referenda.
The second sentence is:
"If a majority of the electors voting on any such amendment shall vote in favor
thereof, it shall thereby become a part of this Constitution."
The second sentence refers to "such amendment." The only amendment it can refer to is an
amendment proposed by the legislature--a referendum--the subject of the first sentence.
The third sentence is:
"The votes for and against such amendment, or amendments, severally, whether
proposed by the legislative assembly or by initiative petition, shall be canvassed by
the secretary of state in the presence of the governor, and if it shall appear to the
governor that the majority of the votes cast at said election on said amendment, or
amendments, severally, are cast in favor thereof, it shall be his duty forthwith after
such canvass, by his proclamation, to declare the said amendment, or amendments,
severally, having received said majority of votes to have been adopted by the people
of Oregon as part of the Constitution thereof, and the same shall be in effect as a
part of the Constitution from the date of such proclamation."
The third sentence refers to "such amendment, or amendments." The only "such" amendment
or amendments the third sentence can refer to are those proposed by the legislature--the
subject of the first sentence.
The fourth sentence reads:
"When two or more amendments shall be submitted in the manner aforesaid to the
voters of this state at the same election, they shall be so submitted that each
amendment shall be voted on separately."
The fourth sentence's subject is not amendments to the constitution; rather, the fourth
sentence's subject is amendments to the constitution "submitted in the manner aforesaid."
The "manner aforesaid" is the manner described in the first sentence--amendments referred to
the people by the legislature.
The fifth sentence reads:
"No convention shall be called to amend or propose amendments to this
Constitution, or to propose a new Constitution, unless the law providing for such
convention shall first be approved by the people on a referendum vote at a regular
general election."
The fifth sentence is irrelevant to this discussion.
The sixth, and final, sentence reads:
"This article shall not be construed to impair the right of the people to amend this
Constitution by vote upon an initiative petition therefor."
The subject of the sixth sentence is Article XVII. The sixth sentence specifically commands
that nothing in the entire Article XVII be construed to impair the people's initiative power to
amend the constitution.
The Word, "Initiative" in Article XVII, Section 1.
The word, "initiative" appears twice in Article XVII, section 1.
The word, "initiative" was mistakenly inserted into the third sentence. The word,
"initiative" has no place or meaning in the third sentence because the "such amendment, or
amendments" in the sentence is limited to amendments referred to the people by the
legislature--that is, referenda.
That the word, "initiative" was mistakenly inserted into the third sentence is implied by
the fourth sentence and confirmed by the sixth sentence.
The fourth sentence contains the word, "submit." The word, "submit" connotes two
entities, one subordinate to the other, with the subordinate seeking the approval of its
superior. The legislature is inferior to the people. Art I, § 1. Thus, it is grammatically correct
to say that the legislature submits measures to the people. But, the people are not inferior to
themselves. Hence, it is grammatically wrong to say that the people have submitted a measure
to themselves. Article IV, section 1 (4) (b) also contains this same grammatical mistake.
The word, "initiative" is in the sixth sentence. That sentence is a rule of construction
which, as previously noted, clearly and unambiguously commands that none of Article XVII
be construed to impair the people's initiative power to amend the constitution.
Article XVII, Section 1's Effect on Initiatives, if Any, Is Limited
to Canvassing Votes and Proclaming Adoption
It is possible to read the third sentence as follows: "The votes for and against * * *
amendments, severally, * * * proposed * * * by initiative petition, shall be canvassed by the
secretary of state in the presence of the governor, and if it shall appear to the governor that
the majority of the votes cast at said election on said amendment, or amendments, severally,
are cast in favor thereof, it shall be his duty forthwith after such canvass, by his proclamation,
to declare the said amendment, or amendments, severally, having received said majority of
votes to have been adopted by the people of Oregon as part of the Constitution thereof, and
the same shall be in effect as a part of the Constitution from the date of such proclamation." If
the sentence is thus read, the word, "initiative" was not included by mistake.
If the third sentence is read this way, the sentence means that the Governor is required to
proclaim adoption of an initiated amendment. If the third sentence is read this way, it does not
describe or limit the manner in which a measure is presented to the people.
Because the third sentence--no matter how it is read--does not and cannot describe or
limit the manner in which a measure is presented to the people, the fourth sentence does not
impose a limit upon the people's initiative power. This is true because the fourth sentence only
applies to amendments "submitted in the manner aforesaid."
The Text of Article XVII, Section 1 Does Not Support a Reading That Would Impair
the People's Initiative Power
Although the Court held, in Armatta, supra, that Article XVII, section 1 limits the
people's initiative power by making initiatives subject to the Article XVII, section 1's fourth
sentence's separate vote requirement, the court did not consider or address the sixth and final
sentence of Article XVII, section 1, which reads:
"This article shall not be construed to impair the right of the people to amend this
Constitution by vote upon an initiative petition therefor."
The Court also failed to address the importance of the word, "such" in sentences one, two,
and three, and the words, "in the manner aforesaid" in the fourth sentence.
Article XVII, Section 1 can either be read to have no effect on initiatives or to require
the Governor to proclaim adoption of an initiated amendment. It cannot logically,
grammatically, or lawfully be construed to limit the people's initiative power if the words
"such," "in the manner aforesaid," and the sixth sentence entire are considered and given their
due and proper weight.
Article XVII Must Be Read in Light of the Entire Constitution
Article I, section 1 reads:
"We declare that all men, when they form a social compact are equal in right: that
all power is inherent in the people, and all free governments are founded on their
authority, and instituted for their peace, safety, and happiness; and they have at all
times a right to alter, reform, or abolish the government in such manner as they may
think proper."
Article I, section 1 enshrines one of this country's founding principles--the rule that the
people are the sovereign. Since there can be but one sovereign, and the people are that
sovereign in the State of Oregon, it necessarily follows that the executive, legislative and
judicial branches are subordinate to the people.
Article IV, section 1 (2)(a) reads:
"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. "
Unlike their other powers--executive, legislative, and judicial--the people have "reserved,"
rather than delegated, their initiative power.
Article IV, section 1 (4)(d) reads:
"Notwithstanding section 1, Article XVII of this Constitution, an initiative or
referendum measure becomes effective 30 days after the day on which it is enacted
or approved by a majority of the votes cast thereon. A referendum ordered by
petition on a part of an Act does not delay the remainder of the Act from becoming
effective."
The words, "notwithstanding section 1, Article XVII of this Constitution" speak volumes.
Their meaning could not be clearer: Article XVII, section 1--including its fourth sentence's
separate vote requirement--cannot not affect the validity of an initiative. In creating current
Article IV, section 1 (4)(d), the people eliminated any consideration of Article XVII, section 1
when anyone--even a member of the judiciary--determines whether an initiated amendment
will become law, unless the Governor or Secretary of State fail to perform their ministerial
duties.
In the context of the entire constitution, Article XVII, section 1's limitation on the
legislature's power to refer constitutional amendments to the people has no effect upon the
people's initiative power under Article IV, section 1. This is true even if Article XVII, section
1's fourth sentence delegates to the Governor the ministerial duty to proclaim adoption of an
initiated amendment.
To hold otherwise would invite the question of how many times and in how many ways
must the people of Oregon say in their constitution that nothing is to impair their "reserved"
initiative powers.
The Oregon Judiciary's Role in Determining Whether an Initiative Becomes Law Is
Very Limited
The Oregon people's initiative power is absent from the federal government's structure.
Therefore, cases such as Marbury v. Madison, 5 US (1 Cranch) 137, 2 L Ed 60 (1803) are
not instructive. The people's initiative power, unlike the United States' presidential
appointment powers, is not held and exercised by a co-equal branch of the government.
Similarly, cases such as Lipscomb v. Oregon, 85 Or App 241, 736 P2d 571 (1987) are not
instructive because they describe battles between co-equal branches of the government.
Unlike the delegated powers, the people's initiative power is a reserved sovereign right.
In exercising that sovereign right, the people can no more do wrong than could a king
exercising his sovereign power.
Assuming the third sentence of Article XVII, section 1 applies to initiatives in light of
Article IV, section 1 (4) (d), the only role for the judicial branch arises should the Secretary of
State refuse to canvass the votes or the Governor refuse to proclaim adoption of an initiated
amendment. In such case, the judicial branch can and must employ its mandamus power to
compel performance by any delinquent officer.
The Supreme Court Wrongfully Negated the People's Initiative Power When It Decided
the Armatta Case
For the reasons stated above, the Supreme Court wrongfully negated the people's
initiative power when it decided the Armatta case. The people, not the Secretary of State nor
the judiciary, has the power to initiate constitutional amendments. No administrative or
judicial limits to that power are authorized by the constitution.
The Armatta Case has Created a Constitutional Crisis
At least five ballot measures have been held invalid under this court's Armatta decision.
Measure 7 (the subject of this appeal); Sizemore v. Keisling, 164 Or App 80, 990 P2d 351
(1999) Dale v. Keisling, 167 Or App 394, 999 P2d 1229 (2000); Sager v. Keisling, 167 Or
App 405, 999 P2d 1235 (2000); and Swett v. Keisling, 171 Or App 119, 15 P3d 50 (2000).
At least two constitutional challenges, based on Armatta, are now before circuit courts.
Petersen v. Crook County, Crook County No. 97CV0010, challenges the validity of Article
VII (Amended) because it violates the Armatta separate vote requirement. Lehman v.
Bradbury, Marion County No. 01C14353 challenges the validity of Ballot Measure 3
(1992)--popularly known as the "Term Limits Initiative"--because it violates the Armatta
separate vote requirement.
If Armatta remains controlling law in the State of Oregon, the people's initiative
power--past, present, and future--will be forfeit in the courts of Oregon. As ballot measure
after ballot measure (43 ballot measures in all, one of which granted women the right to vote)
is ruled to be unconstitutional, the structure of the government of the State of Oregon will,
with increasing velocity, collapse into the judicial "black hole" of the Armatta decision.
Ballot Measure 7 is the most important ballot measure to come before this court. This
case gives this court the opportunity to overrule, or at least to modify, its Armatta decision. If
Armatta is not overruled, or at least modified, Article VII (Amended) is unconstitutional.
Without Article VII (Amended), the Court of Appeals ceases to exist and none of the sitting
members of the Supreme Court will have been elected from districts in which they reside as
required by Article VII (Original). The absence of at least one appellate court in Oregon
would be disastrous to the people.
Conclusion
McInitire and Hall, amici curiae, ask this court to recognize formally by its decision in
this case that the people "reserve" the initiative power; that Article XVII, section 1 does not
and cannot be lawfully held to impair the people's initiative power; and that Armatta--which
held that Article XVII, section 1 does impair the peoples initiative power--was wrongly
decided.
For these reasons and for the reasons set forth in this brief, amici curiae McIntire and
Hall ask this court to reverse the judgment of the circuit court.
Dated June 22, 2001.
__________________________________________
James E. Leuenberger, OSB #89154
Attorney for amici curiae McIntire & Hall
Certificates of Service and True Copy
I hereby certify that, on the above-stated date, I served two true copies of this brief by First Class,
postage-paid, U. S. Mail on the attorneys for all parties at the addresses listed overleaf on the front cover of
this brief. If my signature appears below on a service copy, it shall signify that I certify the copy to be a true
and complete copy of the original filed with the court.
__________________________________________
James E. Leuenberger, OSB #89154
Attorney for amici curiae McIntire & Hall
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