Hart v. Paulus

676 P.2d 1384, 296 Or. 352
CourtOregon Supreme Court
DecidedFebruary 1, 1984
DocketSC S30242
StatusPublished
Cited by11 cases

This text of 676 P.2d 1384 (Hart v. Paulus) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hart v. Paulus, 676 P.2d 1384, 296 Or. 352 (Or. 1984).

Opinions

[354]*354LINDE, J.

In a statutory proceeding specially prescribed by the legislature, petitioners challenge the validity of the process by which certain constitutional amendments were referred to the voters.

Much of the time and attention of the Legislative Assembly during 1983 was devoted to searching for means to limit or reduce local property taxes. The legislature did not enact such a program during its regular session. There was substantial disagreement over funding property tax reduction by means of a retail sales tax. The search was renewed in a special session called for that purpose, but referral of a sales tax measure to the voters remained controversial.

The special session culminated in the following compromise. Senate Joint Resolution 30 (1983 first special session) provided that three constitutional amendments would be referred to the voters. One amendment, designated to become article IX-A, would impose a limitation on appropriations for state and local expenditures to be calculated by a formula based upon populations and per capita income but subject to increase or decrease by vote of the respective electors. The second amendment, designated to become article IX-B, would govern the disposition of a general retail sales tax to be enacted by statute. Article IX-B would limit the maximum rate of such a sales tax to four percent, excluding certain classes of subjects entirely, and would dedicate the net amounts raised exclusively to property tax reduction.1 The third amendment would add a section to article IX exempting social security and Railroad Retirement Act benefits from Oregon income taxes. The first two of these amendments, IXA and IX-B, would take effect only if the companion amendment also was approved by the voters. Companion bills enacted a sales tax and other provisions which become operative only if both constitutional amendments are approved.

The compromise, however, contained another element. Paragraph 3 of S JR 30, the joint resolution referring the amendments to the electorate, provides that the joint resolution “shall not be effective unless local government units [355]*355representing at least a majority of the population of the state and a majority of such units ratify this amendment and request its placement on the ballot as provided for in this paragraph.” The paragraph continues:

“(1) Senate Joint Resolution 30 (1983 first special session) is rescinded on March 10, 1984, unless:
“(a) The governing bodies of a majority of all of the cities, all of the counties and all of the school districts, including community college districts, together representing a majority of the population in the state, as determined by the Secretary of State, request by application to the Secretary of State that the constitutional amendment in paragraph 2 of Senate Joint Resolution 30 (1983 first special session) be placed on the ballot at an election provided in this paragraph; and
“(b) Senate Bill 792 and House Bill 3026 both become law.
“(2) A city, county or school district may make its application under this section only after the governing body of the city, county or school district has held a public hearing on the application.
“(3) Once submitted, an application cannot be withdrawn by a city, county or school district. An application need be submitted only once. A submitted application shall be considered an application for both of the election dates under subsection (4) of this paragraph.”

Subsection (4) designates different election dates depending on the time when “the requisite number of applications are submitted to the Secretary of State.”

If a majority of local governmental units, also representing a majority of the population, eventually voted to “ratify” the sales tax measure and “request” or “make application” for its submission to the electors the measure would be submitted, otherwise not. The election procedures were further spelled out in a companion bill, House Bill 3027. Section 3 of this bill ties the filing of arguments for or against the measures for use in the Voters’ Pamphlet to “the conditions under Paragraph 3” of SJR 30, that is, to the requisite requests and applications by the local entities.

Adoption of the whole procedure was accompanied by misgivings about its constitutionality. Accordingly, Section 8 of HB 3027 was enacted. Or Laws 1983 (first special session) ch 4. It provides:

[356]*356“SECTION 8. Any interested party, by petition to the Supreme Court, may commence proceedings for a judicial examination and judgment of the Supreme Court as to the constitutionality and legality of paragraph 3, Senate Joint Resolution 30 of the Sixty-second Legislative Assembly (special session). Jurisdiction shall be acquired pursuant to ORS 28.020. The Supreme Court shall have original and exclusive jurisdiction of proceedings initiated under this section. Proceedings under this section shall be given priority over all other matters before the Supreme Court.”

The present proceeding was initiated under this section.

JUSTICIABILITY

Respondent denies that the proceeding presents anything for this court to decide. We therefore begin with that issue. As this proceeding is specially authorized by Section 8, supra, the question is whether the statute calls upon this court to issue a declaration beyond the “judicial power” allowed the courts by Article VII, section 1 (amended) of the Oregon Constitution.

Petitioners’ petition alleges their respective interests as property owners and taxpayers. It contends that Paragraph 3 of SJR 30 is unconstitutional for three reasons: (1) because it contravenes the method specified in Article XVII, section 1, of the Oregon Constitution for legislative submission of constitutional amendments to the people; (2) because it makes the “taking effect” of the election procedures depend upon an authority (the authority of the local governments) contrary to Article I, section 21, of the constitution;2 and (3) because the requirement of a request and application by the local government units violates the equality of privileges and immunities guaranteed by Article I, section 20 of the constitution in that the scheme does not afford citizens equal influence in the actions of different and overlapping local units. The petition also attacks the validity of Section 3 of HB 3027, which deals with the preparation of arguments for the Voters’ Pamphlet. The petition prays for a declaratory judgment invalidating these provisions, for an order directing the Secretary of State [357]*357to place the proposals on the ballot, and for “such other relief as the Court may deem just and proper.”

Respondent denies that there is a justiciable controversy between the parties and asks us to dismiss the petition. In other cases we have held that the legislature cannot expand the “judicial power” under Article VII, section 1, to engage the courts in a “judicial examination” of the validity of laws in a vacuum. See Oregon Medical Association v. Rawls, 281 Or 293, 574 P2d 1103 (1978), Oregon Medical Association v. Rawls, 276 Or 1101, 557 P2d 664 (1976).

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Hart v. Paulus
676 P.2d 1384 (Oregon Supreme Court, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
676 P.2d 1384, 296 Or. 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hart-v-paulus-or-1984.