OrCon Law

Oregon Supreme Court Confirms that Oregon Court of Appeals is Lawful Court

In Carey v. Lincoln Loan Co. (Balmer, J.) the Supreme Court has held, unanimously, that Amended Article VII, the constitutional authority for the creation of the Oregon Court of Appeals, is a valid part of the Oregon Constitution.  The court reasoned that any procedural irregularities in the adoption of Amended Article VII were cured by the people's implied ratification of that provision, which is evidenced by the fact that the people have amended that provision many times following its adoption in 1910.

Supreme Court issues doozy of opinion on separate vote analysis

In LINT v. Kitzhaber, the Supreme Court reversed the decision of the Court of Appeals and held that Measure 3 (adopted in 2000), which added to Article XV of the Oregon Constitution a section addressing forfeitures, complied with the separate vote requirement of Article XVII, section 1.  Justice Gillette authored the plurality opinion (joined by Justices Carson and Riggs), which concludes that Measure 3 did not alter any existing provisions to the Constitution, but, instead, makes three identifiable changes to the Constitution by the additions that it makes to Article XV.  The plurality concludes that all the changes are closely related, reasoning that there is plainly a relationship among the changes, and that "it is permissible" to deem the relationship "close enough" to satisfy the separate vote requirement.

Justice Durham specially concurred and filed an opinion in which he concludes that Measure 3 made one constitutional change.  He rejects the plurality's "closely related" test on the ground that it appears to replicate single subject analysis.

Justice Kistler, joined by Justice Balmer and Chief Justice DeMuniz, filed a dissenting opinion concluding that Measure 3 made multiple changes to existing parts of the Constitution, and that those changes are not closely related.

The opinion is fascinating (to me anyway) because it illustrates - by the way to court split on the issue -- exactly how difficult the Armatta analysis is to apply, and the degree to which there is still substantial disagreement on the court as to what sort of standard Article XVII, section 1, sets for proposed constitutional amendments.  On a practical level, given that Article XVII, section 1, governs the people's power to initiate amendments to the Constitution (people who are not all lawyers), I wonder if the drafters of the Constitution intended the standard set by the separate vote requirement to be so difficult to understand and to apply that experienced lawyers and judges cannot agree on how it works? 

Oregon Supreme Court holds that legislature's conferral of statutory standing is sufficient to satisfy any constitutional standing requirement

In Kellas v. Department of Corrections (Durham, J.) the Oregon Supreme Court reversed the Court of Appeals, concluding that legislature's conferral of statutory standing in ORS 183.400, which authorizes "any person" to bring a proceeding in the Court of Appeals to challenge the validity of an agency rule, satisfies any standing requirement contained in the Oregon Constitution.  The Supreme Court rejected the Court of Appeals' conclusion that the constitution requires a person bringing a rule challenge to demonstrate that the resolution of the challenge would have a practical effect on that person.  It construed ORS 183.400 as a provision that, in effect, authorized individuals to act as "private attorney generals" to vindicate the public interest in having the government act lawfully, and concluded that nothing in the Oregon Constitution prohibited the legislature from deputizing such "private attorney generals."

The court does not appear to have rejected the idea that the Oregon Constitution does impose some standing requirements, leaving open the question of what sort of showing of standing a person must make to pursue a suit if the legislature has not conferred statutory standing.

Save the Date for the Constitutional Law CLE, November 3, 2006

Today, our chair, Jim Westwood, sent out this notice regarding this year's consitutional law CLE, entitled "The U.S. Constitution - Alive and Breathing; the Oregon Constitution - Still Original."  The event, to be held November 3 at the Convention Center in Portland, promises some intriguing lectures and debates:

On Friday, November 3, 2006, the Constitutional Law Section will cosponsor the CLE seminar, "The U.S. Constitution - Alive and Breathing; the Oregon Constitution - Still Original," at the Oregon Convention Center in Portland. The morning session will cover a U.S. Supreme Court wrap-up and an in-depth look at the Unitary Executive by constitutional law experts Erwin Chemerinsky, Phillip Cooper and Douglas Kmiec. The afternoon will focus on the Oregon Constitution - discerning original intent from available records and how to raise, brief, and argue state and federal constitutional issues. A special lunch presentation will be given by former Oregon Supreme Court Justice Hans A. Linde.

Please save the date and plan on joining us for about as much constitutional law as you can get in a day!

Ninth Circuit Holds that Eighth Amendment Bars State Death Row Inmate From Voluntarily Waiving Right to Appeal Denial of Habeas Relief

In Comer v. Schriro (a case that is almost certain to see further appellate proceedings), the Ninth Circuit held that it would be an Eighth Amendment violation for a federal appeals court to permit a habeas petitioner on state death row to competently and voluntarily waive his right to appeal the denial of federal habeas corpus relief.  The petitioner Comer, who is on death row in Arizona, filed a federal habeas petition challenging his conviction and capital sentence.  The petition was denied, and Comer appealed.  Comer later decided that he wanted to be executed, and he and the state moved to dismiss the appeal.  The appellate court remanded to the district court to determine whether Comer's waiver of his appeal rights was competent and voluntary.  The district court found that it was, and the case returned to the Ninth Circuit.

The Ninth Circuit, on review of the district court's competency determination, agreed that petitioner was competent to waive his appeal rights.  Nonetheless, the court refused to dismiss the appeal because it concluded that, notwithstanding petitioner's waiver, dismissal would amount to a violation of the Eighth Amendment because it "would be permitting the State to execute Comer without any meaningful appellate review of his previously filed federal habeas claims."  The court reasoned:

The defendant is not taking his own life, he is coopting the state's power of the state's capital punishment system to kill -- a power that must only be wielded in accordance with the Constitution's fundamental protections.  The people's interest in justice, which forms the basis of the state's power to execute, should not be so easily comandeered.  The right to die is not synonomous with the right to kill.

Reviewing the merits of petitioner's claims, the court concluded that the imposition of the death sentence violated petitioner's due process rights, because petitioner "was sentenced while shackled, nearly naked, bleeding, and exhausted."  It therefore granted the writ of habeas corpus.

Judge Rymer dissented, reasoning that petitioner's competent, voluntary waiver of his right to appeal the denial of his habeas petition ended the case, and that is was an abuse of the judicial power to grant relief under the circumstances.

Supreme Court holds that IP8 Does Not Violate Separate Vote Provision

In Meyer v. Bradbury, the Supreme Court (De Muniz, C.J.) reversed the decision of the Court of Appeals, and affirmed the trial court's decision, holding that IP8, which would authorize the legislature, by a 3/4 vote of both houses, or the people, through the initiative process, to enact campaign finance regulations, does not violate the Article XVII, section 1 of the Oregon Constitution.  The court reasoned that the measure made more than one change to the constitution, but that the changes were "closely related" because the imposition of the supermajority requirement is a "procedural condition" governing the exercise the proposed authority to regulate campaign finance.

The court also responded to the California Supreme Court's criticism in Californians for an Open Primary v. McPherson, 134 P3d 299 (2006) (addressed in this blog here and here) by stating that its narrow reading of Oregon's separate vote provision was justified because of importance of the constitution as the state's paramount organic law:

In Oregon, however, the separate-vote requirement found in Article XVII, section 1, has a different application and is driven by a decidedly different rationale. As this court interpreted that provision in Armatta, the separate-vote requirement serves as a safeguard that is fundamental to the concept of a constitution. 327 Or at 276. In reaching that conclusion, this court did not perceive any reason to elaborate on why or how the concept of a constitution was important; instead, it noted only that the act of amending a state's organic law differs significantly from enacting or amending legislation. Id.

What the court only implied in that passage in Armatta, however, it has made explicit elsewhere. For example, this court observed in State v. Stoneman, 323 Or 536, 542, 920 P2d 535 (1996):

"It is axiomatic that, among the various interests that the government of this state seeks to protect and promote, the interests represented by the state constitution are paramount to legislative ones."

(Emphasis added.) In our view, that hierarchy of law always must be acknowledged and respected. Consistently with that view, this court expressly has held that Oregon's separate-vote provision -- which applies to only constitutional amendments -- imposes a narrower requirement on the act of amending the constitution than does its counterpart, the single-subject rule, which applies equally to statutory as well as constitutional measures. Armatta, 327 Or at 276. To implement that narrower requirement, we do not search simply for a unifying thread to create a common theme, thought, or purpose from a melange of proposed constitutional changes. Instead, we inquire whether, if adopted, a proposal would make two or more changes to the constitution that are substantive and are not closely related. If so, the proposal violates the separate-vote requirement of Article XVII, section 1, because it would prevent voters from expressing their opinions as to each proposed change separately. Id. at 277. We turn now to that inquiry respecting IP 8.

Justice Durham dissented, concluding that he could not find a close relationship between the change the speech rights occasioned by the expansion of legislative authority to regulate campaign finance, and the accompanying change to the constitutional voting requirements governing the legislature.

Separate Vote Case Tomorrow

According to this announcement on its website, the Supreme Court will issue an opinion tomorrow in Meyer v. Bradbury, the separate vote challenge to IP8 argued last Tuesday.

Federal District Court Holds Warrantless Wiretapping Unconstitutional

In ACLU v. NSA, the U.S. District Court for the Eastern District of Michigan (Hon. Anna Diggs Taylor) has held that the federal government's "secret program" of warrantless wiretapping violates the Separation of Powers doctrine, the First and Fourth Amendments, the APA, and other statutory provisions.

Supreme Court Expedites Pre-Election Separate Vote Challenge to IP 8

On Tuesday, the Supreme Court allowed review in Meyer v. Bradbury, a pre-election challenge  to IP 8 under the separate vote requirement of Article XVII, section 1.  IP 8, if passed, would amend the constitution to provide:

Notwithstanding any other provisions of this Constitution, the people through the initiative process, or the Legislative Assembly by a three-fourths vote of both Houses, may enact and amend laws to prohibit or limit contributions and expenditures, of any type or description, to influence the outcome of any election.

The trial court rejected the plaintiff's separate vote challenge to the measure.  The court of appeals reversed, concluding that the measure would amend both Article I, section 8, and Article IV, section 25.  It further concluded that the amendments were not "closely related."

On allowing review, the Supreme Court set an expedited briefing schedule, with oral argument set for 3:00 p.m. on August 29.

It is worth noting that this case will present the first opportunity for the Oregon Supreme Court to respond to the separate vote analysis in Californians for an Open Primary v. McPherson, the decision by the California Supreme Court (first noted in this blog here), in which that court undertook an extensive historical analysis of state constitutional separate vote requirements, and ultimately rejected the Oregon Supreme Court's formulation of the analysis. It observed that the Oregon Supreme Court had adopted the "dormant minority rule" for separate vote analysis without apparently recognizing that it was doing so. The court noted that prior to Armatta, a few cases applied a "strict" separate vote analyis, but that "these cases remained an essentially dormant minority position until the Supreme Court of Oregon -- without citing any of them or acknowledging the majority rule cases discussed above -- revived this strict interpretation of the separate-vote provision in 1998."

Utah Constitution does not protect nude dancing

Last week, in American Bush v. City of South Salt Lake, the Utah Supreme Court concluded that the provisions of the Utah Constitution protecting the right of Utah citizens to "communicate freely their thoughts and opinions" do not protect nude dancing in sexually-oriented businesses.