Lowe v. Keisling

882 P.2d 91, 130 Or. App. 1, 1994 Ore. App. LEXIS 1345
CourtCourt of Appeals of Oregon
DecidedSeptember 1, 1994
Docket93C-11972; CA A84110
StatusPublished
Cited by14 cases

This text of 882 P.2d 91 (Lowe v. Keisling) 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
Lowe v. Keisling, 882 P.2d 91, 130 Or. App. 1, 1994 Ore. App. LEXIS 1345 (Or. Ct. App. 1994).

Opinions

[4]*4WARREN, J.

This case involves a challenge to a proposed initiative measure that seeks to amend the Oregon Constitution primarily to prohibit state and local governments from preventing discrimination against homosexual persons. Defendant Keisling, Secretary of State of the State of Oregon (the Secretary), and intervenor Mabon1 appeal summary judgment for plaintiffs2 declaring that the measure violates the Oregon Constitution and enjoining the Secretary from certifying the measure for placement on the ballot. Plaintiffs cross-appeal the dismissal of four other counts, which allege alternative bases for obtaining the declaration and injunction.

Plaintiffs’ complaint seeks a declaratory judgment and injunction to prevent placement on the November, 1994, ballot of the initiative proposed by a petition filed with the Secretary of State by Mahon in May, 1993. The Supreme Court summarized the measure for purposes of ballot title certification as follows:

“SUMMARY: Amends state Constitution.
Governments cannot:
“ — create classifications based on homosexuality;
“— advise or teach children, students, employees that homosexuality equates legally or socially with race, other protected classifications;
“ — spend public funds in manner promoting or expressing approval of homosexuality;
grant spousal benefits, marital status based on homosexuality;
“— deny constitutional rights, services due under existing statutes.
[5]*5“Measure nonetheless allows adult library books addressing homosexuality with adult-only access. Public employees’ private lawful sexual behaviors may be cause for personnel action, if those behaviors disrupt workplace.” Mabon v. Keisling, 317 Or 406, 418, 856 P2d 1023 (1993).3

Plaintiffs alleged six “counts.”4 In the first, they allege that Article IV. section 4, of the United States Constitution (the [6]*6Guaranty Clause),5 prohibits the use of the initiative process to propose measures that would appeal to the passions of the people and would disadvantage a disfavored minority group, and that the Secretary was wrong in concluding that he had no authority or duty to determine whether the proposed initiative violates the Guaranty Clause. The second count alleges that the proposed measure violates Article IV, section l(2)(d), of the Oregon Constitution,6 because it contains more than one subject. The third count alleges that the proposed measure violates Article XVII, section 2, of the Oregon Constitution,7 because it proposes to revise rather than to amend the constitution. In their fourth count, plaintiffs allege that [7]*7the measure has the purpose and would have the effect of violating their rights under the First Amendment and the Equal Protection Clause, and that placing the measure on the ballot would violate their substantive due process rights. Count 5 alleges that subsection (2)(c) of the measure has the effect of making the remainder of the measure ‘ ‘meaningless, null, and void,” and therefore the measure is not a proper subject for the initiative. Finally, count 6 alleges that, the measure has the purpose and would have the effect of violating fundamental rights of a class of citizens, and that placing the measure on the ballot would violate plaintiffs’ rights to equal protection.

The trial court dismissed counts 1 (Guaranty Clause), 4 (substantive due process), 5 (amendment is meaningless), and 6 (equal protection) on the Secretary’s motion, holding that plaintiffs lack standing and that those counts raised issues that were not ripe for review.8 The court then denied the Secretary’s motion for summary judgment and granted plaintiffs’ cross-motion on counts 2 (single subject) and 3 (revision). The Secretary and Mabon appeal the summary judgment; plaintiffs cross-appeal the dismissal of their other four counts.

The Secretary first assigns error9 to the court’s ruling that the proposed measure violates Article IV, section l(2)(d), of the Oregon Constitution, because it contains more than one subject. That section provides that an initiative proposing a constitutional amendment “shall embrace one subject only and matters properly connected therewith.” In OEA v. Phillips, 302 Or 87, 727 P2d 602 (1986), the Supreme Court set out the analysis for challenges under Article IV, section l(2)(d):

“The constitutional text limits a proposal for amendment to ‘one subject only and matters properly connected therewith.’ A measure must first be scrutinized to determine whether it [8]*8embraces more than one subject. If it does, it offends the constitutional limitation even if the subjects are ‘properly connected,’ and that is the end of the inquiry. If it does not, the single subject must be identified. When that is done, and if the proposal embraces no other matters, there is no need to inquire into proper connection. * * *
“If the proposal embraces one subject only and also other ‘matters,’ then, and only then, it must be determined whether those other matters are properly connected with the subject.” 302 Or at 100.

The first inquiry is whether the measure “embraces more than one subject.” In Lovejoy v. Portland, 95 Or 459, 188 P 207 (1920), the Supreme Court considered similar “one subject” language in Article IV, section 20, of the Oregon Constitution, regarding legislative acts. That section provides, in part:

“Every Act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title.”

The court held that the subject of a proposed law “is the matter to which the measure relates and with which it deals[.]” 95 Or at 466. In OEA v. Phillips, supra, 302 Or at 100, the Supreme Court concluded that there was no reason to construe Article IV, section 1(2)(d), differently from Article TV, section 20. Therefore, we conclude that the definition of “subject” is the same under Article IV, section 1(2)(d), as it is under Article IV, section 20.

The Supreme Court in Lovejoy also explained the harm that the single subject requirement of Article IV, section 20, was meant to address:

“This section of the Constitution was designed to do away with the several abuses, among which was the practice of inserting in one bill two or more unrelated provisions so that those favoring one provision could be compelled, in order to secure its adoption, to combine with those favoring another provision, and by this process of log-rolling the adoption of both provisions could be accomplished, when neither, if standing alone, could succeed on its own merits.” 95 Or at 465.10

[9]*9The single subject requirement for initiatives under Article IV, section l(2)(d), goes to prevention of that same harm. Accordingly, we consider whether the proposed initiative contains a single subject in the light of the definitions and purposes identified by the Supreme Court in Lovejoy v. Portland, supra.

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Lowe v. Keisling
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Bluebook (online)
882 P.2d 91, 130 Or. App. 1, 1994 Ore. App. LEXIS 1345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowe-v-keisling-orctapp-1994.