Harisay v. Atkins

434 P.3d 442, 295 Or. App. 493
CourtCourt of Appeals of Oregon
DecidedDecember 19, 2018
DocketA158925
StatusPublished
Cited by9 cases

This text of 434 P.3d 442 (Harisay v. Atkins) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harisay v. Atkins, 434 P.3d 442, 295 Or. App. 493 (Or. Ct. App. 2018).

Opinion

GARRETT, J.

*444*494Plaintiffs brought this action seeking to enjoin defendant, then the Secretary of State, to certify Initiative Petition 2016-005 (IP 5) for the 2016 general election ballot. The proposed initiative, if passed, purports to be an "application" to Congress to call a constitutional convention pursuant to Article V of the United States Constitution.1 The secretary refused to certify IP 5 on the ground that it was not a permissible use of the initiative power. Plaintiffs brought claims against the secretary under the state and federal constitutions, and the trial court granted the secretary's motion for judgment on the pleadings.

On appeal, we reject most of plaintiffs' arguments without discussion but write to address what we understand to be the principal issue, which is whether IP 5 proposes a "law" within the meaning of Article IV, section 1(2)(a), of the Oregon Constitution. As explained below, we conclude that it does not, and that the secretary, for that reason, correctly determined that IP 5 is not procedurally compliant with the Oregon Constitution. Accordingly, the trial court did not err in granting the secretary's motion for judgment on the pleadings. We affirm.

The relevant facts are procedural and undisputed. Plaintiffs submitted IP 5, set out in an appendix to this opinion below, to the secretary to commence the process of certifying the petition for the 2016 ballot. The text of IP 5 contains recitals criticizing decisions of the United States Supreme Court regarding campaign finance law and the political rights of corporations. Following those recitals, Section 1 of the petition states, "We the People of the state of Oregon * * * hereby call for an Article V Convention *495by enacting into law this Application, in accordance with Article V of the U.S. Constitution, for the specific and exclusive purpose of considering a Constitutional Amendment consistent with" two enumerated principles, which IP 5 denominates, respectively, "Corporations Are Not People" and "Money is Not Speech." Section 2 provides that the initiative shall be a "continuing application * * * until at least two-thirds of the legislatures of the several states have made similar applications pursuant to Article V." Section 3 provides that copies of IP 5 "shall be transmitted" by unspecified persons "to the President of the United States" and other officials. Section 4 provides that IP 5 shall be codified in the Oregon Revised Statutes.

While certification was pending, the Attorney General issued a letter opinion advising the secretary that "a court reviewing the initiative would probably conclude that the application for a constitutional convention is not a 'law' for purposes of exercising the initiative power reserved to the people of Oregon." See generally Or. Const., Art. IV, § 1 (2)(a) ("The people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution * * * at an election independent of the Legislative Assembly." (Emphasis added.) ). Citing that letter, the secretary refused to certify IP 5 pursuant to OAR 165-014-0028(1) (secretary reviews an initiative petition "to determine if it complies with the procedural requirements established in the Oregon Constitution").

Plaintiffs filed this action to enjoin the secretary to certify the petition, and the secretary moved for judgment on the pleadings. The trial court granted the secretary's motion, affirming the secretary's and Attorney General's conclusion that IP 5 failed to propose *445a "law" under the Oregon Constitution. Plaintiffs appeal.

While this appeal was pending, the deadline for submitting enough signatures to place IP 5 on the ballot for the 2016 general election passed (as did the election itself), rendering the case moot. See Couey v. Brown , 257 Or.App. 434, 443, 306 P.3d 778 (2013), rev'd on other grounds sub nom. , Couey v. Atkins , 357 Or. 460, 522-23, 355 P.3d 866 (2015) (challenge to proposed initiative moot after deadline *496for collecting signatures and the election had passed). The parties have not addressed whether the case remains justiciable. We address that issue first.

Under ORS 14.175, an otherwise moot case that involves a constitutional challenge to the act of a public body is justiciable if (1) the party that commenced the action had standing to commence it, (2) the challenged act (here, the secretary's rejection of IP 5) is capable of repetition, and (3) the challenged act is likely to evade judicial review in the future. See Couey , 357 Or. at 520, 355 P.3d 866 (Oregon Constitution does not impose "justiciability limitations on the exercise of judicial power in public actions or cases involving matters of public interest"). All three requirements under the statute are met here. First, plaintiffs have standing to challenge the secretary's decision. See ORS 246.910 (appeals for acts and orders by secretary). Second, the issue in this case is capable of repetition because plaintiffs could resubmit the same or a similar initiative petition in a future election and the secretary could reject it for the same reason as here. Third, future challenges to this (and similar) initiative petitions are likely to evade judicial review because election cycles are short and the judicial process can be lengthy. See Couey , 357 Or. at 477-83, 355 P.3d 866 (applying the "capable of repetition, yet evading review" exception to an election-related challenge); see also State ex rel. Smith v. Hitt , 291 Or.App. 750, 754, 424 P.3d 749 (2018) (same).

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Cite This Page — Counsel Stack

Bluebook (online)
434 P.3d 442, 295 Or. App. 493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harisay-v-atkins-orctapp-2018.