A Short History of the Sudden and Untimely Death of the Oregon Initiative: Marbury v. Madison, Oregon Style
A Short History of the Sudden and Untimely Death of the Oregon Initiative: Marbury v. Madison, Oregon Style
Brainstorm Magazine
March 2002
"The governments of states and the United States are divided into three departments or branches: the Legislative, which is empowered to make laws: the Executive, which is required to carry out the laws; and the Judicial, which is charged with interpreting the laws and adjudicating disputes under the laws. One branch is not permitted to encroach upon the domain of another."
-"Separation of Powers," Black’s Law Dictionary (5th Edition 1979) at 1225.
"When interpreting the Oregon Constitution, we [the Supreme Court] must assume that every word, clause and sentence therein have been inserted for some useful purpose."
- School Dist. 1, Mul. Co. v. Bingham, 204 Or 601, 283 P.2d 670 (1955)
Introduction: Politics, Power and the Courts
Much of American political and constitutional history can be understood as a struggle for power between the branches of government. The legacy of Chief Justice John Marshall is in Marbury v. Madison. Marshall has traditionally been understood as the author of the first of these power struggles, when in 1804 the Supreme Court, without express authority in the Constitution, reserved for itself the power, stated as duty, to review statutes of the Congress for consistency with the Constitution. In more modern times, we have seen struggles between the Executive Branch and the Legislative (e.g., the post-Vietnam War Powers Act, Watergate hearings, the special prosecutor statutes and litigation); between the Legislative and the Judiciary (e.g., the Court’s recent invalidation of Congressional legislation on theories of state’s rights); and between the Executive and the Judiciary (e.g., Roosevelt’s court-packing plan, and the Watergate tapes case being the most obvious examples). Often, political disputes that cannot quite be explained on the principles involved, or the stated reasons for the dispute, can be more clearly understood as a raw grab for power by a branch of government that believes it is more qualified than another to decide the important questions of the day.
In Oregon, the situation is more complicated, and more interesting. Oregon, unlike the national government and unlike many states, actually recognizes the People as a branch of government. Thus in Oregon, we have four branches of government: The People, the Legislative, the Executive, and the Judiciary. The controversies surrounding the proposal, passage, and invalidation of ballot measures, generally over the past decade but increasingly over the past four or five years, cannot be explained simply by looking at the politics or merits of the measures themselves. Rather, these struggles can only fully be understood as a move by the Judiciary, consciously or unconsciously, to limit the power of the First Branch of government, the People via the initiative, and to redistribute some of that power to the Judiciary and, to a lesser extent, to the Legislative branch.
It is no secret that the political Establishment in this state--the academic elite, the editorial boards, the popular media, the legal establishment, statewide elected officials, legislative leaders, lobbyists and their constituencies-bemoan the way in which the initiative process has been used in the past decade. The Establishment, accustomed to politics as the art of the possible, the art of the deal, and the art of the compromise, does not like the black and white choices required by "yes" or "no" votes on ballot measures. The Establishment, accustomed to the slow and methodical process of legislative deliberation, does not like the wild, ugly, and often nasty debate and campaigns produced by ballot measures. Most importantly, the Establishment, accustomed to being largely in control of the public policy debate of this state, and with a preference for public policy choices in the moderate range of the political spectrum, is afraid of losing control of the debate to the radicals on both the Left and the Right. So, the Establishment tells us there are too many ballot measures. The Establishment tells us the initiative process is too expensive. The Establishment tells us the voters do not understand, and cannot appreciate the magnitude of, what they are voting on.
The People do not listen. The radicals do not listen. The initiative activists do not listen. They continue to propose, and pass, ballot measures. They continue to propose and pass blunt, radical, and sometimes ambiguous and confusing, initiatives. They continue to tweak the nose of the Establishment. So the Establishment has turned again to its old friend the Judiciary. And the Judiciary has responded with a subtle, but highly effective, method of transferring power to itself and to the Legislative Branch. The method is a series of court decisions invalidating ballot measures, not based upon the merits, but based upon the process by which the measure was adopted. Of course, no one does "process" better than the Judiciary. And, besides, a "process" decision saves the embarrassing problem of the Establishment having to argue, and the Courts having to declare, that the People were ignorant, or did not understand what they were doing, in passing a Measure. So, instead of invalidating ballot measures for the reasons Courts are usually concerned with--that legislation violates basic notions of equal protection, due process of law, separation of powers or fundamental liberty or property rights--the Oregon courts have very quickly conferred upon themselves the unreviewed and unreviewable discretion to decide which ballot measures were, and which ballot measures were not, properly adopted as a matter of procedure when the voters approved them.
"This article [Article XVII] shall not be construed to impair the right of the people to amend this Constitution by vote upon an initiative petition therefor." - Oregon Constitution, Article XVII, Section 1
Last month, Judge Paul Lipscomb in Salem, following the lead of the Oregon Court of Appeals and the Oregon Supreme Court’s precedent, invalidated Ballot Measure 7, the property rights compensation measure, on the grounds that it violated the "multiple amendment" provision of the Oregon Constitution (discussed below). This is but the latest, and most dramatic, in a series of cases since the mid 1990’s invalidating ballot measures, ostensibly without expressing a judicial view on the merits. But the irony is that, in declaring themselves procedural purists, insisting that the other branches of government, particularly the People, play strictly by the procedural rules, the courts have ignored one of their own most fundamental rules--that they will consider every word and provision in the Oregon Constitution. None of the cases discussed in this article address one of the most fundamental provisions of the initiative portions of the Oregon Constitution, Article XVII, quoted above: which plainly says that the Judiciary shall not restrict or limit the People’s exercise of the initiative.
Over the last three years, beginning with the Oregon Supreme Court’s 1998 decision in Armatta v. Kitzhaber, continuing with the Court of Appeals’ 1999 decisions in Dale v. Keisling and Swett v. Keisling, and now concluding with the Measure 7 case, McCall v. Kitzhaber, the courts have insured that virtually any initiative or referendum that amends the Oregon Constitution will be invalidated, regardless of the merits of the measure.
The trilogy of cases which led to the Measure 7 decision is marked by broad but selective interpretations of the Oregon Constitution, narrow readings of the relevant caselaw, and a blatant refusal to grapple with the cautionary words of Article XVII ¤ 1. The Measure 7 decision is no mistake, given this trilogy: the initiative, at least as the People’s first and central way for amending their Constitution, is dead. The Establishment got what it wanted, and the Judiciary, wittingly or unwittingly, served as the Executioner.
Armatta v. Kitzhaber: Oregon’s Marbury v. Madison. "A proposed law or amendment to the Constitution shall embrace one subject only and matters properly connected therewith." - Oregon Constitution, Article IV, Section 1(2)(d)
"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." - Oregon Constitution, Article XVII, Section 1
The first case in the trilogy is Armatta v. Kitzhaber, in which opponents of the "Crime Victims Rights" initiative challenged the constitutionality of the measure, 1996 Measure 40. It is the first time in Oregon history the Supreme Court attempted to definitively explain the relationship between Oregon’s "One Subject Rule" and the "Separate Vote Requirement" in detail. Briefly, Oregon’s "One Subject Rule" requires that all legislation, whether it came from the legislature or the People, encompass only one subject. The rule, which applies to legislation passed by the Legislature or via the initiative, is meant to prevent "log-rolling". Log Rolling occurs when a piece of legislation makes two or more changes, one of which is attractive and one is not, thereby forcing the legislator or voter to support both changes when she otherwise would not. The One Subject Rule avoids such a predicament.
The seminal case defining what "One Subject" means is McIntire v. Forbes, a case challenging the so-called Christmas Tree Bill passed by the 1995 Oregon Legislature in the final days of the session. The Court in that case basically said the contents of the measure must be "rationally related" to one another. Simple enough.
But the Courts had never explained the "Separate Vote Rule" in the initiative context. That is what the Oregon Supreme Court attempted to do in Armatta. The challengers argued that a measure encompassing more than one amendment to the Constitution must be severed such that each amendment is voted on separately. It was a novel argument, one of many made by desperate but creative lawyers looking for a way to invalidate Measure 40 but knowing they would not be successful in attacking it on the merits. So they, and the Court, found "process" problems with it instead. They got the same result, of course: Measure 40 was struck down.
Chief Justice Wallace Carson, generally a thoughtful, and usually a conservative, jurist, but here writing for the entire Court, stated that "when interpreting the Oregon Constitution, the Court must assume that every word, clause and sentence therein have been inserted for some useful purpose". (Note to Reader: hold that thought).
The Court opined that the purpose of both the Separate Vote Requirement and the Single Subject Rule was to ensure that voters would not be compelled to vote on multiple subjects or multiple changes in a single vote. But there is no historical evidence that either of these Rules-single subject or separate vote-was intended to apply to an initiated constitutional amendment. Scholarly lawyers on both sides of the political aisle have pointed out the flaws in this historical assumption. These flaws would become even more apparent in the next few years and cases.
In any event, the reasoning of the Armatta Court left Oregonians with the following judicially created test: "If the proposal would effect two or more changes that are substantive and not closely related, the proposal violates the Separate Vote Requirement". In its attempt to explain this rule the Armatta Court said that in certain circumstances it will be "clear" from the text that a proposal violates the Separate Vote Requirement, while in other instances it may be necessary for a Court to examine the "implications of the proposal" to determine if it contains more than one amendment. There was never any doubt who had the power, stated as duty, to decide the question: the Judiciary, of course. It reads like Marbury v. Madison as applied to the Oregon initiative.
What is most concerning about the Court’s opinion in Armatta isn’t what was said, but rather what was not said. Remember the "note to reader" above? The Court has said it would consider every sentence, clause and word in the Oregon Constitution. Nothing should be omitted or ignored. But, in Armatta, that is exactly what the Court did. Article XVII, Section 1 contains the obvious warning to the Courts that: "this article shall not be construed to impair the right of the people to amend this Constitution by vote upon an initiative petition therefor." Curiously, the Court in Armatta - as well as the later Dale, Swett and of course McCall Courts - never troubled itself with this sentence. But the text could not be clearer -- do not impair the rights of the People to amend the Constitution through an overly broad interpretation of the Separate Vote Rule. The Armatta decision simply ignored this part of Article XVII, as well as the Court’s own rule to honor each and every word of the Constitution equally.
Next, it was the Court of Appeals’ turn.
The Dale and Swett Decisions: Making the Score: Courts 3, People 0. At issue in Dale was a proposed amendment to the Oregon Constitution which would eliminate most existing forms of taxation and replace these revenue sources with a Gross Receipts tax.
The Court of Appeals began its analysis by acknowledging, and allegedly following, the edicts set out by the Supreme Court. That is, look to the substance of the measure, as well as the substance of the proposed changes to the measure and what those changes may have upon the existing Constitution.
But the Supreme Court had said that if the proposed changes were "closely related", then the measure would not violate the Separate Vote rule. The Court of Appeals decided to decide what "closely related" means. Following the Supreme Court’s poor reading of the history of Article XVII, the Court of Appeals viewed the purpose of the Separate Vote Requirement (and to a lesser extent the Single Subject Requirement) as to prevent log-rolling.
But here the historical problem surfaced again. After all, when drafters of a constitution, send it to the people for a vote, the people must take it, or leave it, as a package. Both the US and the Oregon Constitutions were originally presented to the people as a package: up or down on this Constitution. That was log-rolling with a purpose! The Court’s historical assumption ignores important historical facts.
But with log-rolling now the named evil, the Court of Appeals inserted a stricter standard into the Armatta analysis, that is, whether or not the vote for one change "necessarily implies" support for another. As could be predicted, the Court in Dale held the challenged measure violated the Separate Vote Requirement (and subsequently invalidated the measure before it was ever even voted on.)
The significance of the Court of Appeals decision in Dale is two fold. First, as was the case in Armatta, the Court of Appeals did not explain how the new, stricter "necessarily implies" test does not "impair" the rights of the people to exercise the initiative rights. To date, no Oregon Court has yet addressed this concern.
But equally remarkable is that the Court of Appeals invalidated the measure before the people ever got a chance to vote on it. It is well-settled that challenges to a ballot measure should not normally be entertained before it is voted on; in case it does not pass, the Courts can avoid issuing advisory opinions on purely theoretical questions. But the Court of Appeals’ aggressive decision in Dale allows a court to step in before the people even get to vote.
The Swett decision was yet another beat of the death drum for the initiative. Swett involved a post-enactment challenge to 1998 Ballot Measure 62, proposing campaign finance reform. Applying the same flawed reasoning and history, the Court invalidated Measure 62. The fact that this measure, as opposed to the earlier ones struck down in Armatta and Dale, was supported by the political Left, shows that the courts’ attitude towards the initiative is equal opportunity hostility.
Selective constitutional interpretation, poor history, remarkably activist pre-vote decisions-what is going on here?
McCall v. Kitzhaber, Losing the Forest for the Trees. This trilogy of appellate decisions all but invalidated Measure 7 before the Marion County trial Judge ever issued his decision. The title of the case, McCall v. Kitzhaber, is ironic enough, considering this case centered over a dispute concerning the most far-reaching land use legislation since the original Senate Bill 100, Oregon’s comprehensive land use planning legislation.
Well, to no one’s real surprise, applying the fait accompli reasoning of Armatta and Dale, Judge Lipscomb invalidated Measure 7.
To be sure, Judge Lipscomb’s opinion does criticize the Supreme Court’s ruling in Armatta, commenting that the Court carefully analyzed the different articles of the Constitution separately, but then joined them all together to develop the "closely related" test, a practice the Supreme Court typically frowns upon. Nonetheless, following precedent, and applying the "necessarily implies" test from Dale, Judge Lipscomb invalidated Measure 7.
What is so unnerving about the McCall trial court decision, however, is the description of why Measure 7 violated the Separate Subject Requirement: "Suffice it to say there is no apparent one specific, discrete, cohesive policy choice which could serve as a single specific unifying purpose to the several direct changes to the substance of the Oregon Constitution effected by Ballot Measure 7."
Read it again. Measure 7 did not make a "specific, discrete policy choice"? But of course it did. That is why the Establishment was so worried about it. The Measure said: "if you want to impose on a property owner a governmental regulation, intended to benefit the public at large, then the public at large, and not the individual property owner, should bear the cost." The People could not have been clearer. But the opinion in McCall micro-focused on the several sections of the Measure, artificially parsing out each, and thereby losing the forest for the trees. That of course is exactly what the appellate courts had directed the trial judge to do. If the people want a forest, says Armatta and its progeny, they must raise it tree by tree.
Indeed, under the line of cases beginning with Armatta and ending with McCall virtually any constitutional measure will be invalidated because the judiciary must examine the Constitution to see if it will be amended in more than one way, or to see if the measure even arguably addresses more than one subject. And the Courts-- who else?-- have the unfettered power to give thumbs up or down to give any constitutional amendment enacted via the initiative. Along this steep way, however, Oregon courts have construed Article XVII in such a way to "impair" the initiative process, in direct violation of the Constitution’s express caution to the Judiciary not to do so.
Now whose process is askew?
5. Conclusion: Say it ain’t so, yer Honor!
The reach of these decisions is astounding. Taken to its logical conclusion, the reasoning of the Armatta decisions would invalidate amendments to the Oregon Constitution granting women the right to vote, creating the Oregon Court of Appeals, and providing compensation to World War II Veterans.
Of course, the Court of Appeals will not dissolve itself, and no one is going to take the right to vote away from women. But the fact that the Armatta rule of law would invalidate these provisions indicate how far the courts had to reach to get to the decisions discussed above.
One possible explanation for the reach is to see it as a power struggle by one branch of the government at the behest of the Establishment, believing itself more qualified than the People to decide the important questions of the day, or at least believing the Legislative Branch to be less dangerous and easier to control. Admittedly it is only one theory. But any other, failing as it must to explain how a normally excellent judiciary could engage in such poor history and sloppy jurisprudence, when the Oregon appellate courts are nationally recognized for their precision and historicity, is an explanation which is incomplete and unsatisfying.
If it is true that, historically in this country, political controversies that cannot quite be explained on the political principles involved, can sometimes be more clearly understood as raw power struggles between separate branches of government, then one must at least wonder.
