Boytano v. Fritz

DEITS, J.,

dissenting.

I do not agree with the majority’s conclusion that the election may be conducted consistently with ORS 659.165, and I therefore dissent.

ORS 659.165 provides:

“(1) Apolitical subdivision of the state may not enact or enforce any charter provision, ordinance, resolution or policy granting special rights, privileges or treatment to any citizen or group of citizens on account of sexual orientation, or enact or enforce any charter provision, ordinance, resolution or policy that singles out citizens or groups of citizens on account of sexual orientation.
“(2) Any person who believes that a political subdivision has enacted or is enforcing a charter provision, ordinance, resolution or policy in violation of this section may bring an action in circuit court to have the charter provision, ordinance, resolution or policy declared invalid, for injunc-tive relief and for such other relief as the court may consider appropriate. The court shall award reasonable attorney fees and costs to a plaintiff who prevails in an action under this subsection.”

The initial question is whether, in connection with local legislation that is proposed through the initiative, the term “enact” and like terms in the statute relate to the election itself or to some later event in the process, such as certification or the time that an adopted measure takes effect. The statute contains no definition of the pertinent terms, and the terms themselves are capable of more than one meaning. The apparent target of the statute is the process by which a *481prohibited local law is or can be adopted. The uncertainty is at what specific point in the process the legislature intended to intervene. Arguably, this could be either before the election, only after there is an affirmative vote at an election, after the measure is certified or after it takes effect.

I believe that the context of the statute offers the best guide to its meaning. In my view, the context indicates that the term “enact” was meant to refer to the election process before the measure is voted upon. ORS 659.165(1) contains a dual prohibition. It proscribes enactment as well as enforcement. If enactment were not deemed to occur until the measure took effect, these two prohibitions would be redundant. Further, I think it is extremely unlikely that the legislature intended certification or other post-election ministerial events to be the prohibited acts, because these add nothing of material consequence to the earlier vote that they simply formalize.

Accordingly, I conclude that ORS 659.165(1) makes the election itself the proscribed event. Were the measure to pass, the result could not be given effect; were it to fail, there would also be nothing to take effect. It seems unlikely that the legislature would have intended to allow the election to proceed when, under the statute, its result could have no effect whether the measure passed or not. See Heritage Enterprises v. City of Corvallis, 71 Or App 581, 693 P2d 651, aff’d 300 Or 168, 708 P2d 601 (1985). Moreover, as we said in Yamhill County v. Dauenhauer, 6 Or App 422, 427, 487 P2d 1167 (1971), aff'd 261 Or 154, 492 P2d 766 (1972), concerning another proposed initiative measure that was contrary to state law:

“If the instant initiative measure were allowed upon the ballot and it was then defeated by the voters, the same minority of the voters who proposed the first initiative could circulate other similar petitions for another election. This could go on ad infinitum, frustrating the will of the majority of county voters as well as that of the state legislature.”

ORS 659.165(2) lends further contextual support to my conclusion. The remedy that it provides relates to measures that have been enacted. ORS 659.165(1), by contrast, states a prospective prohibition against enactment. If the legislature intended the prohibition against enactment in *482ORS 659.165(1) to refer to some post-electoral event, it would have used the past tense, as it did in the following subsection.

For all of the above reasons, I interpret the phrase “may not enact” to mean that an election that could result in enactment may not be conducted. At least in connection with local laws proposed through the initiative process, the election is the event that ORS 659.165 proscribes.

The next question that must be answered is what role the courts may play, before the election, in carrying out the legislature’s prohibition of it. A long line of Oregon appellate cases has developed the principle that some initiative and referendum measures, or aspects of them, are not properly subject to pre-election judicial review or intervention. In Foster v. Clark, 309 Or 464, 790 P2d 1 (1990), the Supreme Court reviewed the cases and attempted to define when pre-election review is permissible and when it is not. It said:

“It is true, as those cases hold, that a court will not inquire into the substantive validity of a measure — i.e., into the constitutionality, legality or effect of the measure’s language — unless and until the measure is passed. To do otherwise would mean that the courts would on occasion be issuing an advisory opinion.
“On the other hand, Oregon courts have inquired into whether matters extraneous to the language of the measure itself disqualify the measure from the ballot. * * * Despite compliance with proper procedures, courts will prevent a measure from being placed on the ballot if the measure is legally insufficient to qualify for that ballot. See, e.g., City of Eugene v. Roberts, 305 Or 641, 756 P2d 630 (1988) (although otherwise qualifying, advisory question could not be placed on the ballot because it was not a ‘measure’); Yamhill County v. Dauenhauer, 261 Or 154, 492 P2d 766 (1972), aff’g 6 Or App 422, 487 P2d 1167 (1971) (county initiative measure properly removed from ballot where effect would have been to overturn previous vote by same electorate on a fiscal matter); Holmes v. Appling, 237 Or 546, 392 P2d 636 (1964) (‘proposed constitutional amendment’ was in fact a new constitution, and therefore not entitled to be placed on the ballot) [.]
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*483“We adhere to the more recent authorities, such as Holmes v. Appling, supra, as being the more clearly reasoned and stating the correct rule, which is: Courts have jurisdiction and authority to determine whether a proposed initiative or referendum measure is one of the type authorized by Or Const Art I[,] §1(5) to be placed on the ballot. This means that a court may inquire into whether the measure is ‘municipal legislation,’ because that qualifying language is used in the constitution itself. On the other hand, a court may not inquire into general questions of constitutionality, such as whether the proposed measure, if enacted, would violate some completely different portion of the constitution.” 309 Or at 469-71.

The court in Foster cited Yamhill County v. Dauenhauer, supra, as well as Oregon AFL-CIO v. Weldon, 256 Or 307, 473 P2d 664 (1970), with apparent approval. See 309 Or at 469 n 4. In Weldon, the court indicated that the challenger’s assertion that the proposed local measure “would conflict with various portions of [state] statutes” was not reviewable, because “the courts are without power to determine the validity of a proposed law or ordinance before its enactment.” 256 Or at 311-12. In Dauenhauer, the issue was whether a proposed initiative measure could be placed on the ballot. The measure proposed the “rescission” of a previous vote authorizing the construction of a bridge and the issuance of bonds to finance it. The court held that the measure could not be submitted to the voters and explained:

‘ ‘The voters of a county have only such power as is granted to them by the legislature. * * * The power of the citizens of a county to vote on the issuance of bonds for county purposes is derived from ORS 287.054-287.074. Having once exercised the power granted to them by the statute, the voters of Yamhill County have no power to rescind that approval in a later vote. Without such power, the proposed initiative measure is improper insofar as it relates to the construction of the bridge[.]” 261 Or at 156.1

See also Dan Gile and Assoc., Inc. v. McIver, 113 Or App 1, 831 P2d 1024 (1992).

*484Dauenhauer and Weldon may appear to point in opposite directions as to whether the preemption of the subject of a proposed measure by or its inconsistency with state law is a matter of “effectiveness or legality” that is insulated from pre-election review, or one that relates to the legal sufficiency of the measure for the ballot and is reviewable. However, there is a difference between the two cases that accounts for the seeming disparity. As far as the Supreme Court’s opinion indicates, the unreviewable issue in Weldon was simply whether the proposed local measure, if enacted, would be inconsistent in its operation with the statutes. In Dauenhauer, however, the problem went beyond that: The statutes, as the court construed them, did not allow the act of adopting the measure. This case is akin to Dauenhauer in that respect. ORS 659.165, by its express terms, prohibits the enactment of the local legislation it defines, as well as preempting the operation of the legislation.

A logical case can be made that state statutes that prohibit local enactments on a subject, as well as statutes that prohibit their enforcement only, make measures on the affected subjects improper ones for submission to the electorate through the local initiative and referendum process. Arguably, if the legislature has preempted and prohibited local legislation on a subject, a measure relating to it is neither “local” nor “municipal” legislation within the meaning of Article IV, section 1(5), and an initiative measure purporting to propose local legislation on that subject cannot qualify for the ballot under the rationale of Foster v. Clark, supra. However, it is unnecessary to consider here whether that analysis applies to elections on local measures that state law would prohibit localities only from enforcing; we need decide only whether that analysis applies to state statutes, like the one in this case and those in Dauenhauer, that forbid local governments from enacting the measures. I conclude that that is the proper analysis here; that the proposed initiative measure is not “local” or “municipal,” because both the subject of it and the election on it are preempted by state law; that it is subject to pre-election review; and that it is not legally sufficient for the ballot.2

*485It is important to emphasize that the fact that the proposed legislation takes the form of an initiative measure gives it no greater legal status than the same proposal would enjoy if it were made at a meeting of the city council. The initiative right of city voters does not extend beyond the legislative authority of the city itself, but is limited to local and municipal matters. The city has no authority to adopt legislation of the kind ORS 659.165 preempts and prohibits and, therefore, neither do its voters. City of Roseburg v. Roseburg City Firefighters, 292 Or 266, 286-87, 639 P2d 90 (1981).

Some of the reasoning in the majority opinion requires comment. Initially, its point that the statute says nothing express about “elections” is a straw man argument. As indicated in the preceding paragraph, the prohibition against “enactment” applies to all methods of legislating, whether by elected officials or popular vote. There was no need for the legislature to recite all of the ways in which legislation can be adopted; the word “enact” covers them all.

The second threshold problem with the majority’s approach is that it fails to recognize that no previous Oregon case on which it relies has dealt with a state legislative prohibition on the act of local enactment. The only Oregon case that has dealt with that type of prohibition is Yamhill County v. Dauenhauer, supra, which, as discussed above, supports my position.

The majority also disagrees with my conclusion about what the legislature has said, and would hold that “enact” means some unspecified event that occurs after an election. In reaching that conclusion, the majority fails to adequately analyze the language and context of ORS 659.165 itself. If the word “enact” meant what the majority holds it does, it would be meaningless in the context of the words “or enforce” that immediately follow it. Nothing can be done with measures beyond the point of their adoption, by election or otherwise, except to enforce them or refuse to enforce *486them. Under the majority’s reasoning, the first part of the disjunctive statutory prohibition would disappear.

Similarly, the words “enact or reject [the measure] at an election” in Article IV, section 1(2), of the constitution do not lend support to the majority opinion. The provision clearly ties “enactment” and “elections” together. The fact that the election could have the opposite result does not sever that tie.

The majority also posits that, if the statute is interpreted as I do, a person could bring an action under ORS 659.165(2) to have a defeated measure declared invalid. However, the statute clearly could have no such effect. It provides remedies only as to measures that have been enacted or are being enforced. As noted earlier, subsection (1) prohibits future events, while subsection (2) provides remedies for past ones. Finally, much of the majority’s analysis seems to turn on the interrelationship of ORS 659.165 and Article IV, section 1(5). It is important to emphasize that no issue has been presented to us in this case concerning the constitutionality of ORS 659.165.

In Heritage Enterprises v. City of Corvallis, supra, 71 Or App at 585, Chief Judge Joseph said for the court that “[t]here is no such thing in this country as an election that must have a certain mandated result.” (Emphasis in original.) Under the majority’s reading of ORS 659.165(1), that is exactly what we would have here. For all of the above reasons, I dissent.

Richardson, C. J., and Riggs, J., join in this dissent.

1 do not understand the relevant aspects of the Supreme Court’s opinion or ours in Dauenhauer to turn on any distinction between city and county legislative powers or initiative rights. See 261 Or at 157 (McCallister, J., dissenting); 6 Or App at 427-28.

The fact that the voters might reject the measure does not affect my conclusion. See Yamhill County v. Dauenhauer, supra, 6 Or App at 427; see also Heritage *485Enterprises v. City of Corvallis, supra. I do not suggest that the legislature may define the constitutional term “municipal legislation.” However, the preemptive effect of a statute can affect whether particular matters are permissible subjects of municipal legislation.