IN THE SUPREME COURT OF THE STATE OF OREGON
LEAGUE OF OREGON CITIES, BENTON COUNTY, CITY OF BEAVERTON, CITY OF EUGENE, JUNCTION CITY, CITY OF VENETA, BEV STEIN, VERA KATZ, MULTNOMAH COUNTY, CITY OF PORTLAND, and WASHINGTON COUNTY,
Plaintiffs-Respondents,
v.

STATE OF OREGON, JOHN KITZHABER, M.D.; and BILL BRADBURY,
Defendants-Appellants,
and
STUART MILLER,

Intervenor-Appellant.


AUDREY McCALL, HECTOR MacPHERSON, MICHAEL E. SWAIN, JAMES LEWIS, and MARK TIPPERMAN,

Plaintiffs-Respondents,

v.
STUART MILLER,
Intervenor-Appellant,
and

STATE OF OREGON, JOHN KITZHABER, M.D., and BILL BRADBURY,

Defendants-Appellants.

Marion County Circuit
Court Case Nš 00C-20156

SC S48450 (Control)
CA A113789













Marion County Circuit Court No. 00C-19871

SC S48451
CA A113790


Brief of Amici Curiae Don McIntire and Fred Hall
Appeal from the Judgment of the
Marion County Circuit Court,
Honorable Paul J. Lipscomb, Judge

Brief Filed June 22, 2001

Counsel Listed:
Thomas M. Christ OSB 83406
Cosgrave, Vergeer & Kester LLP
121 SW Morrison St #1300
Portland, OR 97204
(503) 323-9000
Attorney for Audrey McCall, Hector MacPherson, Michael E. Swaim, James Lewis, & Mark Tipperman

Sandra N. Duffy OSB 82044
Multnomah County Counsel
1120 SW 5th Ave Ste 1530
Portland, OR 97204
(503) 988-03138
Attorney for Multnomah County

Madelyn Wessel OSB 90133
City Attorney's Office
1221 SW 4th Ave Ste 430
Portland, OR 97204
(503) 823-4047
Attorney for City of Portland

James E. Leuenberger, OSB #89154
4800 SW Meadows Rd
PO Box 1684
Lake Oswego, OR 97035-1684
(503) 534-3636
Attorney for amici curiae McIntire & Hall
Stephanie Striffler OSB 82405
Special Counsel to the Attorney General
400 Justice Building
Salem, OR 97301-4096
(503) 378-4402
Attorney for John Kitzhaber, MD, Bill Bradbury, & The State of Oregon

John A. DiLorenzo, Jr. OSB 80204
Aaron K. Stuckey OSB 95432
Hagan Dye, Hirschy & DiLorenzo PC
888 SW 5th Ave Ste 1000
Portland, OR 97204-2024
(503) 222-1812
Attorneys for Stuart Miller

Glenn Klein OSB 83110
Harrang, Long, Gary, Rudnick PC
101 E Broadway Ste 400
Eugene, OR 97401
(541) 485-0220
Attorney for League of Oregon Cities, Benton County, Washington County, City of Beaverton, City of Eugene, Junction City, City of Veneta, Bev Stein, & Vera Katz

McIntire and Hall Amici Curiae Brief

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