Anantha v. Clarno

461 P.3d 282, 302 Or. App. 196

• Court: Court of Appeals of Oregon
• Decided: February 12, 2020
• Docket: A172786
• Status: Published

Opinion

Argued and submitted February 4, reversed and remanded February 12, 2020

Vikram ANANTHA and Micha Gross, Plaintiffs-Appellants, v. Beverly CLARNO, Oregon Secretary of State, Defendant-Respondent. Marion County Circuit Court 19CV44301; A172786 461 P3d 282

Seeking to amend the Oregon Forest Practices Act, ORS 527.610 to 527.770; ORS 527.990(1); ORS 527.992, and related statutory provisions, plaintiffs pro- posed three initiative petitions for the November 3, 2020, general election. The Oregon Secretary of State rejected each proposed measure, concluding that each initiative petition violated the “single subject” requirement of Article IV, section 1(2)(d), of the Oregon Constitution, which provides that a “proposed law * * * shall embrace one subject only and matters properly connected therewith.” On review, the trial court upheld the secretary’s determination, granting summary judg- ment in her favor. Plaintiffs appealed. Held: The single subject of plaintiffs’ ini- tiative petitions is the regulation and protection of forestlands. The trial court therefore erred in granting the secretary’s motion for summary judgment on the basis that plaintiffs’ initiative petitions violated the single-subject rule and should have instead granted summary judgment to plaintiffs. Reversed and remanded.

Daniel J. Wren, Judge. Jesse A. Buss argued the cause for appellants. Also on the briefs were Willamette Law Group, Thomas M. Christ, and Sussman Shank LLP. W. Michael Gillette argued the cause for respondent. Also on the brief were David A. Anderson, Jessie A. Schuh, and Schwabe, Williamson & Wyatt, PC. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief amicus curiae for State of Oregon. Steven C. Berman and Stoll Stoll Berne Lokting & Shlachter P.C. filed the brief amicus curiae for Our Oregon. Cite as 302 Or App 196 (2020) 197

Before Lagesen, Presiding Judge, and Armstrong, Judge, and Ortega, Judge. LAGESEN, P. J. Reversed and remanded. 198 Anantha v. Clarno

LAGESEN, P. J.

Plaintiffs seek to amend Oregon’s Forest Practices Act, ORS 527.610 to 527.770; ORS 527.990(1); ORS 527.992, and related statutory provisions through Oregon’s initiative process. To that end, they proposed three initiative peti- tions for the November 3, 2020, general election: Initiative Petitions (IPs) 35, 36, and 37. The Oregon Secretary of State rejected each proposed measure; she determined that each one violated the so-called “single subject” requirement of Article IV, section 1(2)(d), of the Oregon Constitution, that is, the requirement that a “proposed law * * * shall embrace one subject only and matters properly connected therewith.” On review under ORS 246.910(1), the trial court upheld the secretary’s determination, and plaintiffs appealed, ORS 246.910(3). Reviewing for legal error, State v. Mercer, 269 Or App 135, 137, 344 P3d 109, rev den, 357 Or 299 (2015), we conclude that none of the measures violates the single- subject requirement of Article IV, section 1(2)(d), and that plaintiffs are entitled to judgment as a matter of law. We therefore reverse and remand with directions to enter judg- ment in favor of plaintiffs.

Our state constitution reserves to the people the power to propose laws. Or Const, Art IV, § 1(2). As with laws proposed in and by the legislature, a law proposed by initia- tive must “embrace one subject only and matters properly connected therewith.” Or Const, Art IV, § 1(2)(d); Or Const, Art IV, § 20 (“Every Act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title.”); OEA v. Phillips, 302 Or 87, 100, 727 P2d 602 (1986) (concluding that the “one subject” requirements in Article IV, section 1(2)(d), and Article IV, section 20, “should be given the same meaning”).

Plaintiffs seek to amend the Forest Practices Act and other statutory provisions addressing forestry. Specifically, they propose to place three prospective initiatives on the November 3, 2020, ballot: IP 35, IP 36, and IP 37. We have included the text of each measure in the appendix to this opinion so do not recite that text in full here. A summary, however, is in order to give context for our analysis, and Cite as 302 Or App 196 (2020) 199

plaintiffs have supplied an able one in their brief that the secretary does not seriously dispute: “The measures’ main substantive provisions include: “1. Limits clearcut logging activity near certain bodies of water (IP 35, § 2; IP 36, § 1); “2. Directs the Board of Forestry to adopt rules regulat- ing clearcut logging that apply to small tract forestlands (IP 35, § 3; IP 36, § 2); “3. Prohibits the aerial application of pesticides within 500 feet of all forest waters (IP 35, § 4; IP 37, § 1); “4. Creates public notice requirements for certain forest operations involving the aerial application of pesticides to forestland (IP 35, § 5; IP 37, § 2); “5. Increases the buffer (from 60 feet to 500 feet) govern- ing the aerial application of pesticides for forest operations adjacent to dwellings and schools (IP 35, § 6; IP 37, § 3); “6. Restricts logging operations in high-hazard landslide zones (IP 35, § 7); “7. Reduces financial conflicts of interest in the Board of Forestry (IP 35, § 10; IP 36, § 3; IP 37, § 5) in implementing the act (IP 35, § 11; IP 36, § 4; IP 37, § 6); and “8. Creates a funding mechanism (IP 35, § 12).” As required by ORS 250.045(1), plaintiffs submit- ted the prospective petitions to the secretary for her review. After reviewing public comments, the secretary notified plaintiffs that she was rejecting all three proposed measures because she “has determined [that each measure] does not comply with the procedural requirements established in the Oregon Constitution for initiative petitions, particularly the single subject requirement.” Plaintiffs then filed this action under ORS 246.910(1), seeking judicial review of the secretary’s rejection of each of the proposed measures. Plaintiffs alleged that the secre- tary had erroneously determined that each of the measures violated the single-subject requirement of Article IV, section 1(2)(d). On cross-motions for summary judgment, the trial court concluded that “each of the Initiative Petitions violates 200 Anantha v. Clarno

the ‘single-subject’ provision of Article IV, section 1(2)(d) of the Oregon Constitution and finds [the secretary] prop- erly rejected the three (3) initiative petitions.” Accordingly, the court denied plaintiffs’ motion for summary judgment, granted the secretary’s motion for summary judgment, and entered a general judgment in favor of the secretary. Plaintiffs appealed. On appeal, plaintiffs contend that the trial court erred in determining that each proposed measure violates the single-subject requirement of Article IV, section 1(2)(d); they argue that each measure comports with the require- ments of that provision as it has been construed by the Supreme Court and by our court. The secretary responds that the trial court correctly affirmed her decision to reject the proposed measures, arguing in the main that the secre- tary’s decision to reject the measures was proper in light of the statutes and rules that govern the secretary’s review of proposed initiative measures. “We generally review a trial court’s ruling on cross- motions for summary judgment to determine whether there are any disputed issues of material fact and whether either party was entitled to judgment as a matter of law.” Hicks v. Central Point School Dist., 270 Or App 532, 540, 348 P3d 307, rev den, 357 Or 743 (2015) (internal quotation marks omitted). Here, no factual disputes exist; the only question is whether the rejected measures comply with the constitu- tional single-subject requirement of Article IV, section 1(2)(d). That question is one of law, so we review for legal error. Mercer, 269 Or App at 137. As noted, the Oregon Constitution contains two single-subject provisions: Article IV, section 1(2)(d), which applies to initiative measures, and Article IV, section 20, which applies to legislative acts. Although the relevant wording of the two provisions varies in minor respects, the Supreme Court has determined that they “should be given the same meaning.” Phillips, 302 Or at 100. That means that the case law interpreting either provision informs our analysis of whether a particular proposed ini- tiative satisfies the single-subject requirement of Article IV, section 1(2)(d). Cite as 302 Or App 196 (2020) 201

Under that case law, a two-part framework governs the determination whether a proposed law or constitutional amendment comports with the single-subject requirement. Under the first step of the analysis, a reviewing court asks whether it can identify a “unifying principle logically con- necting all provisions” in the measure, such that it can be said that the measure embraces a single subject. State ex rel Caleb v. Beesley, 326 Or 83, 91, 949 P2d 724 (1997); McIntire v. Forbes, 322 Or 426, 443-44, 909 P2d 846 (1996). If a reviewing court cannot identify that type of logical “unify- ing principle,” then the measure violates the single-subject requirement. Phillips, 302 Or at 100. If the court is able to identify the necessary unifying principle, the court exam- ines whether any “other matters” contained in the measure are “properly connected” to the unifying principle identified by the court. Id.; see also Caleb, 326 Or at 93.

As the Supreme Court has explained, the standard “should be liberally construed to uphold legislation.” Phillips, 302 Or at 95. “The conflict between the constitution and the law should be palpable and clear before the courts should disregard a legislative enactment upon the sole ground that it embraces more than one subject.” State of Oregon v. Shaw, 22 Or 287, 289, 29 P 1028 (1892). In view of that lib- eral construction, a proposed law that addresses a single substantive area of the law, even if the proposal “includ[es] a wide range of connected matters intended to accomplish the goal of that single subject,” generally satisfies the single- subject requirement. Caleb, 326 Or at 91. Said another way, the term “subject” for purposes of the constitutional single- subject requirements “is to be given a broad and extensive meaning” to give legislative drafters “full scope to include in one act all matters having a logical or natural connection.” Lovejoy v. Portland, 95 Or 459, 466, 188 P 207 (1920).

Although by now plenty of cases illustrate the analysis, the Supreme Court’s decision in Eastman v. Jennings-McRae Logging Co., 69 Or 1, 138 P 216 (1914), is a useful comparator because it addressed a measure not too different from IP 35, IP 36, and IP 37. At issue in Eastman was whether Oregon Laws 1911, chapter 278, section 13, complied with the requirement of Article IV, section 20, that 202 Anantha v. Clarno

a legislative act embrace only one subject, and that that subject be contained in the legislative title of the act. That measure, like IP 35, IP 36, and IP 37, contained a num- ber of different provisions aimed at protecting forests. As described in the opinion, the measure aimed to protect for- ests by addressing forest fire prevention, creating a board of forestry, creating a state forester and deputy, providing for the appointment and compensation of fire wardens, pro- viding for penalties for violations of the act, providing for civil remedies, and repealing specified existing provisions. Eastman, 69 Or at 9-10. The defendant in the case argued that the title of the measure, which omitted to mention that the act created civil remedies, violated the Article IV, section 20, requirement that the title of an act express the act’s one subject. Id. at 10. The Supreme Court disagreed, explaining that “the protection of the forests is the subject of said act” for purpose of the single-subject requirement, and that the title’s statement that the act was “for the protection of the forests of the state of Oregon” adequately captured that one subject. Id. That the title did not mention the civil remedies provision was not a problem because that provision was a matter “properly connected” to the measure’s one subject of forest protection, and matters “properly connected” were not required to be mentioned in the title of a legislative act. Id.

Lovejoy, 95 Or 459, supplies another helpful illus- tration (even though it is about an act pertaining to insur- ance and not forests). As aptly summarized by the Supreme Court in Caleb, the act at issue in Lovejoy contained wide- ranging provisions addressing insurance: “The enactment challenged in Lovejoy v. Portland, 95 Or 459, 465, 188 P 207 (1920), set forth conditions under which local and foreign businesses could be started and conducted, regulated the insurance department, pre- scribed jurisdiction and powers of the insurance commis- sioner, made provisions for ensuring the solvency of insur- ance companies, addressed qualification and licensure of agents, specified types and forms of insurance various com- panies could offer, made provisions to prevent rate discrim- ination, and prescribed various other matters relating to the insurance business, including the preemption of local ordinances.” Cite as 302 Or App 196 (2020) 203

Caleb, 326 Or at 90-91 (citing Lovejoy, 95 Or at 461-62). Rejecting the contention that the measure violated the single-subject requirement of Article IV, section 20, the court explained that “[t]he general object and purpose of [the act] is to regulate and supervise insurance, other than state industrial accident insurance” and, further, that “[w]hatever means may tend directly or indirectly to accom- plish this object may properly be included in the act” with- out offending the constitution. Lovejoy, 95 Or at 467. A third case, McIntire, 322 Or 426, is useful because, in that case, the court sustained a single-subject challenge to a proposed law, thereby providing us with a rare but con- crete example of the type of disconnected hodgepodge of legislation that the single-subject requirement operates to combat. In McIntire, the court considered whether a legisla- tive enactment met the Article IV, section 20, single-subject requirement. Although nominally about funding for light rail, the act did eight different things, including things not even remotely related to the field of transportation, let alone connected to light rail: “SB 1156 * * * (1) provides state funding [and land use procedures] for light rail, (2) expands the availability of card-lock service stations, (3) promotes regional problem solving in land use matters, (4) regulates confined animal feeding, (5) preempts local pesticide regulation, (6) adopts new timber harvesting rules, (7) grants immunity to shoot- ing ranges for noise pollution, and (8) protects salmon from cormorants.” McIntire, 322 Or at 444 (brackets in original; internal quo- tation marks omitted). The court held that the measure vio- lated the constitutional single-subject requirement, conclud- ing that provisions of the measure itself did not reveal a logical, unifying principle, and the legislature had not done that either. Id. at 445. Considering IP 35, IP 36, and IP 37 in view of Eastman, Lovejoy, and McIntire, we conclude that the measures comport with the single-subject requirement of Article IV, section 1(2)(d). As in Eastman and Lovejoy, it is relatively easy to identify a logical, unifying principle con- necting the provisions of each measure: the regulation and 204 Anantha v. Clarno

protection of forestlands. All of the provisions in each mea- sure address that subject or, as in the case of the civil reme- dies provision in Eastman, are matters “properly connected” to the regulation and protection of forestlands. And none of the measures share the grab-bag quality that led the McIntire court to invalidate the light-rail funding measure at issue in that case. The secretary resists that conclusion. She offers several reasons why we should uphold her decision to reject IP 35, IP 36, and IP 37. None persuades us. First, the secretary argues that “the Oregon Constitution, ORS chapter 250, OAR 165-014-0028, and the [State Initiative and Referendum] Manual all confer on the Secretary discretion regarding the manner in which she evaluates whether initiative provisions are compliant with constitutional procedural requirements, among them the ‘single subject’ rule.” That means, the secretary argues, that we, the court, “must not second-guess the Secretary’s exer- cise of the authority expressly delegated to her by the Oregon Constitution, the legislature, and the applicable administra- tive rules.” But in this instance, the express basis for the secretary’s rejection of IP 35, IP 36, and IP 37 was that the measures themselves did not comply with the single-subject requirement of the Oregon Constitution, not for failure to comply with the secretary’s rules or any other source of law. And, as we have said, whether a measure complies with the single-subject requirement of Article IV, section 1(2)(d), is a question of law, making our review for legal error. Mercer, 269 Or App at 137. In other words, the single-subject ques- tion is not a discretionary question on which the secretary is entitled to deference from courts. Second, and relatedly, the secretary argues that we should uphold her decision to reject the measures on single- subject grounds because of the way that plaintiffs titled IP 35, IP 36, and IP 37 on the form (the SEL 310) that plain- tiffs used to submit the measures to the secretary for her review. The secretary notes that, on those forms, plaintiffs described all measures as pertaining to “forest waters.” The secretary contends further that, if we treat “forest waters” as the subject of each measure, then each measure violates Cite as 302 Or App 196 (2020) 205

the single-subject requirement because each measure con- tains provisions that address forest practices more broadly, and not forest waters particularly. But the secretary has identified no authority for the proposition that a title iden- tified by a measure’s proponent on the SEL 310 governs the determination of a measure’s subject for purposes of the con- stitutional single-subject requirement, and the law is affir- matively to the contrary. As the Supreme Court explained in McIntire, the first step in assessing single-subject compli- ance is to “look[ ] first at the body of the act itself and seek[ ] to determine whether all provisions in the act relate to the same topic and whether they are naturally connected.” 322 Or at 441, 443-44. If that examination reveals a unifying principle, as it has here, then the inquiry is over—the act satisfies the single-subject requirement. See id. at 443-44. Beyond that, the Supreme Court has held expressly that the SEL 310, and the choices made by a measure’s spon- sor on it, do not control the identification of a measure’s sub- ject matter for the purpose of determining a proper ballot title for the measure: “We cannot accept that explanation, which would make the Attorney General the prisoner of a choice—perhaps informed, perhaps not, perhaps even intentionally duplici- tous—by a measure’s sponsor to check one or another box on a form. As our earlier recitation of the pertinent statu- tory tasks assigned to the Attorney General shows, that officer is charged by legislation with drafting a ballot title that properly labels a proposed initiative measure. No piece of paper, indeed no rule, created by the Secretary of State can relieve or excuse the Attorney General from that stat- utory obligation.” Christ/Tauman v. Myers, 339 Or 494, 499, 123 P3d 271 (2005). That contradicts the notion that a title identified on the SEL 310 determines the measure’s subject matter for purposes of the single-subject requirement or otherwise. Finally, the secretary urges us generally to conclude that IP 35, IP 36, and IP 37 do not comply with the single- subject requirement, even if we conclude—as we have—that the title listed on plaintiffs’ SEL 310 form is not a binding statement of the subject of each proposed measure. Many of those arguments, however, appear to treat the subject 206 Anantha v. Clarno

of each measure as the protection of forest waters, rather than the subject that we have identified: the regulation and protection of forestlands. Beyond that, for the reasons explained above, we believe that the analyses in Eastman and Lovejoy compel the conclusion that each of the measures here complies with Article IV, section 1(2)(d)’s single-subject requirement. We therefore conclude that the trial court erred when it determined that IP 35, IP 36, and IP 37 violated Article IV, section 1(2)(d), and granted the secretary’s motion for summary judgment on that basis. Because the measures comport with the single-subject requirement, the court should have granted plaintiffs’ motion for summary judgment instead. We therefore reverse and remand for entry of judgment in favor of plaintiffs. Reversed and remanded. Cite as 302 Or App 196 (2020) 207

APPENDIX 208 Anantha v. Clarno Cite as 302 Or App 196 (2020) 209 210 Anantha v. Clarno Cite as 302 Or App 196 (2020) 211 212 Anantha v. Clarno Cite as 302 Or App 196 (2020) 213 214 Anantha v. Clarno Cite as 302 Or App 196 (2020) 215 216 Anantha v. Clarno Cite as 302 Or App 196 (2020) 217 218 Anantha v. Clarno Cite as 302 Or App 196 (2020) 219 220 Anantha v. Clarno Cite as 302 Or App 196 (2020) 221 222 Anantha v. Clarno Cite as 302 Or App 196 (2020) 223 224 Anantha v. Clarno Cite as 302 Or App 196 (2020) 225 226 Anantha v. Clarno Cite as 302 Or App 196 (2020) 227 228 Anantha v. Clarno Cite as 302 Or App 196 (2020) 229 230 Anantha v. Clarno Cite as 302 Or App 196 (2020) 231