CC No. 97CV0010


Oral Argument Requested

UTCR 5.050 Notice: Defendant Rowan requests official court reporting services and estimates that 30 minutes will be required for argument.

Comes now defendant Rowan, by and through his attorney James E. Leuenberger, and presents an amended motion, under ORCP 71B(1)(d), for reinstatement of the original judgment herein because the Court of Appeals decision reversing that judgment is void as issuing from a court which does not lawfully exist under the provisions of Article XVII, section 1, of the Oregon Constitution and the holding thereunder in Armatta v. Kitzhaber, 327 Or 250, 959 P2d 49 (1998).

Points and Authorities

In 1902, the Oregon people created the initiative power. HJR 1 , 1901.

In 1906, the people, by initiative, created Article XVII, section 1, of the Oregon Constitution. It has not since been amended. It reads:
"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. 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 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. 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. 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. This article shall not be construed to impair the right of the people to amend this Constitution by vote upon an initiative petition therefor." [Emphasis added.]

In Armatta, supra, Measure 40 was invalidated because the court held that it "contains two or more constitutional amendments that must be voted on separately under Article XVII, section 1, of that document." In fashioning a test for making that determination, the Armatta court concluded that:

"* * * [T]he proper inquiry is to determine whether, if adopted, the proposal would make two or more changes to the constitution that are substantive and that are not closely related. If the proposal would effect two or more changes that are substantive and not closely related, the proposal violates the separate-vote requirement of Article XVII, section 1, because it would prevent the voters from expressing their opinions as to each proposed change separately. In some instances, it will be clear from the text of the proposed initiative whether it runs afoul of Article XVII, section 1. In other instances, it will be necessary to examine the implications of the proposal before determining whether it contains two or more amendments."

In analyzing and invalidating Measure 40, the Armatta court, held that Measure 40 effected many "substantive" changes not "closely related":

"* * * [I]n addition to adding a number of crime victims' rights to Article I, Measure 40 changes five existing sections of the Oregon Constitution (Article I, sections 9, 11, 12, and 14, and Article VII (Amended), section 5(1)(a)), encompassing six separate, individual rights (pertaining to search and seizure, unanimous jury verdicts, waiver of jury trial, former jeopardy, self-incrimination, and bail), in addition to limiting the legislature's ability to establish juror qualifications in criminal cases. Those multiple constitutional changes effected by Measure 40 are more than sufficient to meet that part of the test for 'two or more amendments,' discussed earlier, that inquires whether the measure at issue makes 'two or more changes to the constitution.' See 327 Or at 277, 959 P2d at 64 (stating test) [Quoted above.]. It is equally clear, we think, that the changes effected by Measure 40 are substantive. The remaining issue, then, is whether those changes are 'not closely related.'

"Many of the constitutional provisions affected by Measure 40 are related in the sense that they pertain to constitutional rights that might be implicated during a criminal investigation or prosecution. However, not all--such as the requirement that the jury pool in criminal cases be drawn from registered voters--share even that relationship. Further, even those provisions that are related in the sense described are not related closely enough to satisfy the separate-vote requirement of Article XVII, section 1. For example, the right of all people to be free from unreasonable searches and seizures under Article I, section 9, has virtually nothing to do with the right of the criminally accused to have a unanimous verdict rendered in a murder case under Article I, section 11. The two provisions involve separate constitutional rights, granted to different groups of persons. Similarly, the right of the criminally accused to bail by sufficient sureties under Article I, section 14, bears no relation to legislation concerning the qualification of jurors in criminal cases under Article VII (Amended), section 5(1)(a). Those examples alone are sufficient to demonstrate that Measure 40 contains 'two or more amendments' to the Oregon Constitution. Accordingly, we conclude that the measure was not adopted in compliance with Article XVII, section 1."

In 1910, again by initiative, the people replaced the Oregon Constitution's original Article VII with an amended version which was summarized for the ballot as follows:

"For amendment to the Constitution of the State of Oregon, providing for verdict by three-fourths of jury in civil cases; authorizing grand juries to be summoned separate from the trial jury, permitting changes of judicial system by statute, prohibiting re-trial where any evidence to support verdict, providing for affirmance of judgment on appeal notwithstanding error committed in lower court, directing Supreme Court to enter such judgment as should have been entered in lower court; fixing terms of Supreme Court; providing judges of all courts be elected for six years, and increasing jurisdiction of Supreme Court.

Omitted from that summary were (1) the reduction in status from constitutional to statutory of all courts save the Supreme Court; (2) imposition of a minimum dollar amount in controversy for jury trials; (3) elimination of legislative power to reduce judges' salaries ; and (4) the reduction in status from constitutional to statutory of county clerks, sheriffs, and prosecuting attorneys.

Article VII (Amended) has, itself, been amended many times, but the original initiative reads as follows:


Article VII of the Constitution of the State of Oregon shall be and the same is hereby amended to read as follows:
Article VII

Section 1. 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. The Judges of the Supreme and other courts shall be elected by the legal voters of the State or of their respective districts for a term of six years, and shall receive such compensation as may be provided by law, which compensation shall not be diminished during the term for which they are elected.

Section 2. The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment, shall remain as at present constituted until otherwise provided by law. But the Supreme Court may, in its own discretion, take original jurisdiction in mandamus, quo warranto and habeas corpus proceedings.

Section 3. In actions at law, where the value in controversy shall exceed twenty dollars the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict. Until otherwise provided by law, upon appeal of any case to the supreme court, either party may have attached to the bill of exceptions the whole testimony, the instructions of the court to the jury, and any other matter material to the decision of the appeal. If the Supreme Court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial; or if, in any respect, the judgment appealed from should be changed, and the Supreme Court shall be of opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the Supreme Court. Provided, that nothing in this section shall be construed to authorize the Supreme Court to find the defendant in a criminal case guilty of an offense for which a greater penalty is provided than that of which the accused was convicted in the lower court.

Section 4. The terms of the supreme court shall be appointed by law; but there shall be one term at the seat of government annually. At the close of each term the judges shall file with the secretary of state concise written statements of the decisions made at that term.

Section 5. In civil cases three-fourths of the jury may render a verdict. The Legislative Assembly shall so provide that the most competent of the permanent citizens of the county shall be chosen for jurors; and out of the whole number in attendance at the court, seven shall be chosen by lot as grand jurors, five of whom must concur to find an indictment. But provision may be made by law for drawing and summoning the grand jurors from the regular jury list at any time, separate from the panel of petit jurors, and for the sitting of the grand jury during vacation as well as session of the court, as the judge may direct. No person shall be charged in any circuit court with the commission of any crime or misdemeanor defined or made punishable by any of the laws of this State, except on indictment found by a grand jury; provided, however, that any district attorney may file an amended indictment whenever an indictment has, by ruling of the court, been held to be defective in form.

Section 6. Public officers shall not be impeached; but incompetency, corruption malfeasance or delinquency in office may be tried in the same manner as criminal offenses, and judgment may be given of dismissal from office, and such further punishment as may have been prescribed by law.

Section 7. Every Judge of the Supreme Court, before entering upon the duties of his office, shall take and subscribe, and transmit to the Secretary of State, the following oath:

"I, ______ _____ , do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the State of Oregon, and that I will faithfully and impartially discharge the duties of a Judge of the Supreme Court of this State, according to the best of my ability, and that I will not accept any other office, except judicial offices, during the term for which I have been elected."

Defendant submits that, by applying the Armatta Article XVII two-or-more-amendments test to the 1910 initiative measure amending Article VII [hereinafter, "the 1910 Measure"], and by following precisely the same Armatta analysis process, any reasonable mind arrives at the ineluctable conclusion that the 1910 Measure contains "two or more amendments" to the Oregon Constitution on which the people were not afforded a separate vote. Because the 1910 Measure was not adopted in compliance with the 1906 amendment creating Article XVII, section 1, it cannot stand.

As with Armatta's Measure 40, the 1910 Measure contains many "substantive" provisions requiring an Armatta "not closely related" review. Measure 40 added a number of crime victims rights to Article I, changed five existing sections in Articles I and VII (Amended) covering six separate rights, and limited legislative ability to set jury qualifications in criminal cases. The 1910 Measure contains many arguably "closely related" provisions regarding the election, compensation, jurisdiction, and review authority; but it also contains distantly related provisions regarding the empaneling of grand juries and various legal rights of people in court. Further, it contains a unique provision saying that those portions of Article VII (Original) not "expressly changed" by Article VII (Amended) would "remain as at present constituted until otherwise provided by law."

As with Armatta's Measure 40, the 1910 Measure involved "separate constitutional rights, granted to different groups" of people. The Armatta court held that Measure 40's provisions regarding search and seizure protections, unanimous verdicts in murder cases, the right to bail, and the qualification of jurors in criminal cases were, by themselves, enough "to demonstrate that Measure 40 contains 'two or more amendments' to the Oregon Constitution."

The 1910 Measure made a number of substantive constitutional changes. It:

(1) Empowered the legislature to create and abolish courts [1];

(2) Specified the terms of office for all judges to be six years [Id];

(3) Eliminated legislative power to reduce judges' compensation during any term [Id];

(4) Repealed Article VII (Original) and, in effect, re-enacted its provisions as statute (1) insofar as not "expressly changed" by Article VII (Amended) [2 and the enacting clause of the 1910 Measure];

(5) Reduced the status, from constitutional to statutory, of county clerks, sheriffs, and prosecuting attorneys [Id];

(6) Expanded the Supreme Court's jurisdiction from revision of circuit court decisions to include original proceedings in mandamus, quo warranto, and habeas corpus [2];

(7) Restricted the right to a civil jury trial by imposing a twenty-dollars-in-controversy lower limit [3}, compare, Art I, 17];

(8) Granted judges power to reverse findings of fact made by jurors [Section 3];

(9) Specified the content of the appellate record [3];

(10) Allowed the Supreme Court to affirm a lower court decision even if the lower court had committed error [3];

(11) Granted criminal defendants the right on appeal not to be found "guilty of an offense for which a greater penalty is provided than that of which the accused was convicted in the lower court" [3];

(12) Allowed civil jury trials to be decided by three-fourth verdicts [5]; and

(13) Allowed for grand jurors to be empaneled at any time and separately from petit jurors [5].

Under the Armatta Article XVII, section 1, "two or more substantive changes not closely related" test, the 1910 Measure, to be valid, would have required separate votes on at least five separate amendments relating to (1) legislative power; (2) judges' pay, tenure, and power; (2) civil litigants' rights to and in jury trials; (3) criminal appeal rights; (4) empaneling of grand juries; and (5) repeal of constitutional status for county clerks, sheriffs, and prosecuting attorneys. Such separate votes were not taken; thus, the 1910 Measure is invalid in its entirety. As explained in Armatta:
"It is a long-standing principle of law that a proposed constitutional amendment must be adopted in compliance with the procedures set forth in the Oregon Constitution:
"'The provisions of the constitution for its own amendment are mandatory, and must be strictly observed. A failure in this respect will be fatal to a proposed amendment, notwithstanding it may have been submitted to and ratified and approved by the people. The constitutional provisions are as binding upon the people as upon the legislative assembly, and the people cannot give legal effect to an amendment which was submitted in disregard of the limitations imposed by the constitution * * *. * * * If * * * an attempt is made to amend an existing constitution, its every requirement regarding its own amendment must be substantially observed, and the omission of any one will be fatal to the amendment. The constitution is the supreme law of the land, binding upon all, and can no more be disregarded in the manner of its own amendment than in any other respect. As long as it remains, its provisions must be observed.'
Kadderly v. Portland, 44 Or 118, 135-36, 74 P 710 (1903), on rehearing 75 P 222 (1904) (emphasis added). See also Boyd [v. Olcott], 102 Or [327] at 359 [, 202 P431 (1921)]('The provisions of the Constitution for its own amendment are mandatory and binding not only upon the legislative assembly but also upon all the people as well; and, consequently, a failure to observe the mandates of the Constitution is fatal to a proposed amendment, even though the electors have with practical unanimity voted for it.'). Accordingly, because Measure 40 was not adopted in compliance with Article XVII, section 1, we hold that it is void in its entirety." [Footnote ommitted.]
On February 22, 2001, the Honorable Paul J. Lipscomb, Presiding Judge of the Marion County Circuit Court, decided consolidated cases [Case Nos. 00C19871 & 00C20156] which challenged the validity of Measure 7. Judge Lipscomb held that Measure 7 "was not validly adopted," in part because it failed the Armatta Article XVII, section 1 test by making two or more substantive changes to the Oregon Constitution that are "not closely related." Judge Lipscomb, in his carefully-reasoned opinion, criticized the Armatta decision for incorporating the "not closely related" language from Article IV, section 1(2)(d) test into the Article XVII, section 1 "two or more amendments" test:
"[Armatta's "and are not closely related"] language is anomalous because it is no where contained in Article XVII, Section 1. The "closely related" language is contained only in Article IV, Section 1(2)(d). [The actual constitutional words are "properly connected."] In effect, after an extended parsing of the historical differences and separate purposes of these two clauses, and after concluding that they must analyzed separately because Article XVII, Section 1 was narrower than Article IV, Section 1(2)(d), the Supreme Court inexplicably broadened the former requirement by incorporating into that section's test additional language which appears only in the latter provision. There is no accompanying analysis to explain this apparently contradictory approach, and there is no apparent purpose in the court's mixing together that which had just been so carefully sorted.24 Nevertheless, the Supreme Court's holding and its application of the phrase in question, "and are not closely related," is binding on all lower courts unless and until it is clarified."
Judge Lipscomb's footnote 24 is also instructive:
"One possible explanation is that the inclusion of the phrase "and are not closely related" is simply a drafting error which might have occurred if a change in the earlier section of the draft opinion was not thereafter reflected in the latter section, so that the latter section continued to be premised upon a former version of the earlier section.

"In any event, even if the "closely related" language were eventually to be deleted from the Armatta test by the appellate courts, the result in this case would be the same. The inclusion of the language "and are not closely related", makes it easier, rather than more difficult, for the amendment to pass constitutional muster under Article XVII, Section 1." [Emphasis added.]
Indeed, without the elasticity afforded by the "closely related" language, the Armatta test becomes considerably narrower. It's reduced to a determination of whether an amendment "would effect two or more" substantive changes to the Oregon Constitution. The source of the "closely related" language is a 1968 amendment [HJR 16, 1967] to Article IV, section 1(2)(d), which required that initiatives "embrace one subject only and matters properly connected therewith." In 1910, the elasticity afforded by Armatta's Article XVII, section 1 "closely related" test was not available. The question of whether the 1910 Measure was properly enacted must be decided without the elasticity of the "closely related" language.

Thus, Article VII (Amended) is void in its entirety and, at the very least, for the purposes of this motion, Article VII (Amended), section 1, which has never been amended, simply does not and never has existed. That result leaves the original Article VII, section 1 in force. It provides:
"The Judicial power of the State shall be vested in a Suprume (sic) Court, Circuits (sic) Courts, and County Courts, which shall be Courts of Record having general jurisdiction, to be defined, limited, and regulated by law in accordance with this Constitution. Justices of the Peace may also be invested with limited Judicial powers, and Municipal Courts may be created to administer the regulations of incorporated towns, and cities."
For the purposes of this motion, the difference between Article VII (Original) and Article VII (Amended) is that the latter gives constitutional standing only to the Supreme Court and relegates the existence of all other courts to mere legislation, while the former gives constitutional standing to the Supreme Court; circuit, county, and municipal courts; and justices of the peace. However, Article VII (Original), section 1 provides no legislative authority to create any other courts.

Under Article VII (Amended), the "county court [was] no longer a constitutional court." Fehl v. Jackson County, 177 Or 200, 161 P2d 782 (1945). In 1914, In re McCormick's Estate, 72 Or 608, 621, 143 P 915, 144 P 425 (1914), the Supreme Court noted that:
"Article VII, Section 1, of the original Constitution vested the judicial power of the state in the Supreme, Circuit and County Courts, and defined the jurisdiction of each. The amendment referred to [Article VII (Amended)] vested the judicial power in the Supreme Court, and such other courts as might thereafter be established by law, leaving it wholly in the power of the legislature or the people by the initiative to alter, abolish or create such courts as they might see fit."
In 1969, acting under the supposed authority of Article VII (Amended), section 1, the legislature created the Court of Appeals. Or Laws 1969, ch 198, 1, as amended by Or Laws 1969, ch 591, 262a. See, ORS 2.510.

Article VII (Amended) was not validly enacted and, therefore, is void ab initio. Ergo, the legislative act creating the Oregon Court of Appeals, being based on a void amendment's authority, is also void ab initio. It follows that the Court of Appeals (2) does not lawfully exist; that it has never had any lawful jurisdiction (3) over appeals of circuit court judgments; and that, in this case, its decision reversing this court's judgment is also void ab initio. Finally, it also follows inescapably that this court's final judgment, entered as it was on a void decision by the Court of Appeals reversing this court's original judgment, is also void ab initio.

The only curative steps available to the court are to relieve defendants from the void final judgment entered herein on a void Court of Appeals decision, and to order reinstatement of this court's original judgment in favor of defendants as entered herein April 28, 1999. ORCP 71B(1)(d).

Defendant Rowan so moves.

Respectfully submitted this 1st day of August, 2001.
Certificates of Service and True Copy

I hereby certify that, on the date shown above, I served a true copy of the foregoing document on all parties by postage-paid US Mail addressed as follows:
Ken Brinich
Hendrix & Brinich llp
716 NW Harriman St
Bend, OR 97701
Attorney for Plaintiffs

Hattie Vaughn
Harry Vaughn
824 Willowdale
Prineville, OR 97754
Pete Schannauer
Crook County Legal Counsel
Crook County Courthouse
300 East Third St
Prineville, OR 97754

Alvyne Leonard
Stan Leonard
864 Peppermint
Prinville, OR 97754
I hereby certify that, on the date shown above, I served a true copy of the foregoing document by faxing it to:

Ken Brinich @ (541) 382-9069
Pete Schannauer @ (541) 416-3905 and
Carl W. Hopp, Jr. @ (541) 330-1519
If this is a service copy, I certify it to be a true copy of the original filed with the court.
              James E. Leuenberger, OSB #89154
              Attorney for Defendant Rowan