Hunnicutt v. Myers

GILLETTE, J.,

dissenting.

For the reasons that follow, I respectfully dissent from the majority’s choice to waive our rule and address the merits of this petition to review a ballot title certified by the Attorney General.

*90The problem that I have with this case is mentioned, if not fully explained, by this paragraph in the majority opinion:

“Petitioner has filed a petition to review the certified ballot title. * * * ORAP 11.30 sets out the rules governing petitions for review of ballot titles. ORAP 11.30(4) provides that ‘[t]he body of the petition shall be no longer than 10 pages * * Because the petition in this case was 16 pages long, this court asked petitioner to show cause why it should not strike his petition and, in view of the strict statutory time limits for challenging a ballot title, dismiss his ballot title challenge. In response, petitioner filed, among other things, a late motion for leave to file an overlong petition, and we issued an order allowing that motion. See ORAP 1.20(5) (authorizing court to waive any rule for good cause shown). Although we have allowed petitioner’s belated motion, we note that, in the future, a petitioner who files an overlong petition in a ballot title case without first obtaining leave to do so runs a substantial risk that the court will strike the petition and dismiss the ballot title challenge without further notice.”

340 Or at 86.

I enlarge the foregoing recital somewhat, in order to place the reader more thoroughly in the picture respecting the procedural issue involved. On November 28, 2005, petitioner filed a timely petition for review of a ballot title certified by the Attorney General for a proposed initiative measure labeled by the Secretary of State as Initiative Petition 80 (2006).1 The petition contained a body of 16 pages of substantive discussion and argument, thereby violating the restriction on such petitions set out in ORAP 11.30(4), which provides, in part: “The body of the petition shall be no longer than 10 pages.” Petitioner did not include with his petition any documentation acknowledging the rule violation, much less any explanation of his reasons for the violation and, if appropriate, a motion for waiver of the rule in some form.

*91Upon receiving the petition, the Attorney General responded with a seven-page answering memorandum. For some reason, the Attorney General either did not notice, or decided not to call to our attention, the problem with the length of the petition.

Thereafter, this court met to discuss the merits of the petition. At that time, we determined that petitioner’s brief exceeded the permissible length. We therefore immediately notified petitioner of the problem, indicated that it lay within our authority to strike his petition and dismiss the proceeding to review the Attorney General’s ballot title, and asked him to show cause why we should not do that. Petitioner’s timely response to our request put us in the posture in which we find ourselves today.

Petitioner’s response includes this summary:

“[Petitioner] moves the Court for permission to enlarge the page limitation allowed for a Petition for Review of a ballot title. In the alternative, [petitioner] moves the Court for an order waiving the page limit found in ORAP 11.30(4).”

In substance, the alternative forms of relief that petitioner requests amount to the same thing — waiver of our rule. (Either that, or “enlarg[ing] the page limitation” was intended to ask this court to reconfigure its entire set of rules governing petitions of this kind — something that we could not do in the course of this particular proceeding.) I proceed on the assumption that petitioner seeks a waiver. But, what facts or circumstances does he offer in support of his request?

Petitioner first asserts that the page limit rule should be waived, because

“The Petitions[2] make substantial changes to Oregon law. Changes of which the Court may not understand [sic] the breadth and depth of their impact. Both Petitions *92address the ultra-complex issues concerning the intersection of land use law and property rights.”

Aside from its expressed doubt respecting the intellectual limitations of this court — an issue concerning which I could only be expected to take a self-serving position — the foregoing argument is without merit. The proposed measure involved in this case is not simple, but this court has faced far more complex ones through the years without a party finding it necessary even to suggest that, within the narrow confines of the issues framed by ORS 250.035(2), ten pages were not enough in which to make the necessary arguments.

Petitioner next argues that his petitions were overlong in part because “it is nearly impossible to describe the underlying land use law and the effect the Petitions will have on the law — in addition to suggesting an alternative, more accurate ballot title — in the short space provided by the ORAP.” (Emphasis in original; footnote omitted.) But this court’s rules have not required a party to propose a specific alternative ballot title or part of a ballot title for some time. (The requirement was removed from the rule in 2002.) That argument, too, is without merit.

Petitioner next asserts that the Attorney General’s certified ballot titles for Initiative Petitions 80 and 81 “were so inaccurate it would have been difficult — if not impossible — to meet the Court’s page limitation.” Petitioner argues:

“ORS 250.085 entitles [petitioner] to raise all the challenges he raised in his comments on the draft ballot titles. There is simply no way — given the totality of the inaccuracies of the ballot titles — that [petitioner] could reasonably be expected to conform his Petitions for Review to the requirements of ORAP 11.30(4). Given the conflict in the instant case between Oregon law and the rules of this Court, the Court’s rules must succumb to the weight of Oregon statute. [Petitioner] must be given the opportunity to raise all the objections necessary to the ballot titles, notwithstanding the rules of this Court.”

In making that argument, petitioner does not quote the pertinent wording of ORS 250.085. If he had done so, he might have seen how incorrect his argument is. ORS 250.085(6) states that, in ballot title review proceedings:

*93“the Supreme Court shall not consider arguments concerning the ballot title not presented in writing to the Secretary of State unless the court determines that the argument concerns language added to or removed from the draft title after expiration of the comment period [.]”

Obviously, the wording in question is a limitation on what a party may argue to this court, not a license to petitioners to argue as much and as long as they wish. Petitioner’s contrary reading of the statute is not defensible, and the argument that he derives from that reading is without merit.

Finally, petitioner argues simply that the petitions and responses have been filed, no one demonstrably has been harmed or prejudiced by the overlong briefing, and review should continue. That is the only argument that has even a ghost of merit, but it begs the question: What are the standards to be, if one party violates this court’s rule, the other party fails to notice or raise it, and this court is left with the unacknowledged violation? To his credit, petitioner appears to recognize that simply ignoring the rule violation in such cases is no way to run a railroad (or an appellate court process), but he offers no help concerning what this court should do. That is not surprising, because the question of what this court is supposed to do is answered by the rule itself: We are supposed to limit our consideration of ballot title challenges to those that are made in a petition of ten pages or fewer.

And that is what we should have done here. Petitioner’s arguments to us contain some interesting ideas, but no hint of an explanation as to why he did not at least consult the rules before preparing and filing his petition, and no good reason to depart from the clear words of our rule.

The majority allowed petitioner’s motion, but it never explains why. As I hope the foregoing discussion demonstrates, the lack of an explanation by the majority is itself easily explained: No explanation is possible. Petitioner made no case at all for a waiver. And, having failed to do so, he also failed to take the other road that at least theoretically was open to him — he did not tender to this court an edited brief that complied with the rules.3 Under such circumstances, a *94decent respect for the purpose of the rule and its limitations should dictate the outcome here: Petitioner’s petition should be stricken and the underlying proceeding to review the ballot title certified by the Attorney General for Initiative Petition 80 should be dismissed. I respectfully dissent from the majority’s alternative choice that gave lip service to the rule, but then gave petitioner everything that he has asked for— even including a victory on the merits, thereby further delaying the circulation of petitions for this proposed initiative petition.4

Riggs and Balmer, JJ., join in this dissenting opinion.

*95APPENDIX COPY OF INITIATIVE PETITION #80

Be it enacted by the people of the State of Oregon:

Section 1. Sections 2 to 6 of this act shall be known, and may be cited, as The Home Owner and Family Farmer’s Bill of Rights.

Section 2. No Exemptions that Reduce Property Values. Government shall not waive a land use law to allow a use that would reduce the value of a neighboring home or harm a neighboring family farm. No use that would reduce the value of a neighboring home or harm a neighboring family farm shall be the basis of any demand for payment for complying with a land use law.

Section 3. No Special Rights for Developers or Corporations. Government shall not allow any corporation or developer to divide, build on or use land in violation of land use laws, whether by waiver or any other means, nor shall government pay a corporation or developer to comply with land use laws. A developer or corporation shall not pay or contract with another person to obtain government permits or approvals on behalf of or in cooperation with the developer or corporation to divide, build on or use land in violation of land use laws, whether by waiver or any other means.

Section 4. Homestead Right. A property owner may build a single family dwelling on the property owner’s homestead tract if the property owner could have built a single family dwelling on the homestead tract under the land use laws in effect when the property owner acquired the homestead tract. A property owner is limited to one dwelling under this section and may not obtain relief under both this section and under Chapter 1, Oregon Laws 2005.

Section 5. Burden of Proof on Government, Corporation, or Developer. In any litigation brought by a home owner or family farmer to enforce this 2006 act, the defendant government entity, corporation or developer shall have the burden of demonstrating compliance with a law. If the home owner or family farmer prevails in the litigation, the court shall award the home owner or family farmer costs and *96reasonable attorney fees, payable by the defendants, in addition to any other appropriate relief.

Section 6. Definitions. As used in this 2006 Act,

(1) “Corporation” means any business entity other than a sole proprietor or a family farm.

(2) “Developer” means a person or business entity engaged in developing real property.

(3) “Family farm” means a farm owned by the farm operator, by one or more family members of the farm operator, by an entity created by the farm operator or one or more family members of the farm operator, or by any combination of the foregoing.

(4) “Government” means a public body as defined in ORS 174.109.

(5) “Homestead tract” means a tract as defined in ORS 215.010 owned by a property owner, as that tract existed on January 1, 2005.

(6) “Land use law” means:

(a) A “comprehensive plan” or a “land use regulation” as defined in ORS 197.015;

(b) Administrative rules or goals of the Land Conservation and Development Commission or Oregon Department of Transportation;

(c) Metropolitan service district regional framework plans, functional plans, or planning goals and objectives; or

(d) Statutes or administrative rules regulating forest practices.

(7) “Waive” and “waiver” mean:

(a) To modify, remove, or not apply a land use regulation, or to allow property to be used notwithstanding a regulation, as provided in Chapter 1, Oregon Laws 2005; or

(b) To issue any land use approvals or permits pursuant to subsection (4)(a) of this section.

*97Section 7. Sections 3 to 6 of this 2006 act are added to and made a part of ORS chapter 197.

Section 8. This 2006 act supersedes any contrary law in force on or before the effective date of this act.

Section 9. If a court of competent jurisdiction declares any part of this 2006 act invalid, the remaining parts shall continue to have full force and effect.

He also filed at that time a petition challenging the Attorney General’s certified ballot title for a companion measure, Initiative Petition 81. That petition suffered from the same flaw as the present one, and I take the same view respecting it that I offer in this dissenting opinion.

Petitioner refers throughout his arguments to the “petitions,” plural, because he submitted a combined response to this court’s orders to show cause respecting Initiative Petitions 80 and 81 (2006). Rather than go through the additional editing required to conform his arguments to the issues respecting this case alone, I simply have quoted them verbatim.

say “theoretically,” because a series of practical and analytical considerations would apply to any such tender. In the first place, it would involve the *94profoundly untimely filing of the petition. If, however, it could be treated as a filing relating back to the original, timely (and overlong) petition (an issue as to which I take no position), there still would remain the problem of whether to let the Attorney General file a new response. Obviously, both processes would extend significantly the length of time involved in resolving an issue that long since should have been settled. Every delay would make it more difficult for the principal sponsors of the measure to gather the signatures that they needed to place the proposed measure on the ballot. Any jury-rigged process based on a late tender of a conforming brief would need to take such matters into consideration. Nonetheless, the approach has some appeal, and petitioner’s failure to offer it as an alternative is surprising.

Because I do not believe that we should be addressing them, I express no opinion respecting the merits of any of the arguments that petitioner advances.