opening brief of plaintiffs-appellants, petitioners on … · v 2. most think political division as...

IN THE SUPREME COURT FOR THE STATE OF OREGON

RICHARD HARISAY; CHARLES MONTGOMERY; and STEPHEN BINTLIFF,Chief Petitioners and Electors of the State of Oregon,

Plainti�s-Appellants,

v.

JEANNE ATKINS, Secretary of State of Oregon,Defendant-Respondent.

Marion County Circuit CourtHonorable David Leith, Judge

14C21951

Multnomah County Circuit Court No. 14CV21951Court of Appeals No. A15895Supreme Court No. S066576

OPENING BRIEF

OF PLAINTIFFS-APPELLANTS, PETITIONERS ON REVIEW

DANIEL W. MEEKOSB No. 79124210949 S.W. 4th AvenuePortland, OR 97219(503) 293-9021 voice(855) 280-0488 [email protected]

Attorney forPlainti�s-Appellants

ELLEN ROSENBLUM, OSB No.753239Oregon Attorney General(503) 378-4400 (voice)[email protected] GUTMAN, OSB No. 160599Solicitor [email protected] FJORDBECK, OSB No. 822578Assistant Attorney [email protected] T. REELAssistant Attorney [email protected](503)Oregon Department of Justice1162 Court Street N.E.Salem, OR 97301(503) 378-4402 (voice)(503) 378-6306 (fax)

Attorneys for Defendant-RespondentSecretary of State Bev Clarno

December 2019

December 9, 2019 11:49 PMFILED Appellate Court Records

i

TABLE OF CONTENTS

I. STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. NATURE OF THE ACTION. . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. NATURE AND DATE OF JUDGMENT. . . . . . . . . . . . . . . . . . 1

C. JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

D. QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . 2

E. FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

F. SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . 5

G. STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1. UNDER ORS 246.910. . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2. UNDER ORS 183.482 AND ORS 183.484. . . . . . . . . . . . . 8

3. THIS COURT SHOULD ADDRESS THE MERITS OFSOME OF THE CLAIMS FOR RELIEF. . . . . . . . . . . . . . 8

II. FIRST ASSIGNMENT OF ERROR: THE CIRCUIT COURT ANDCOURT OF APPEALS ERRED IN DISMISSING THE FIRST ANDSECOND CLAIMS FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. RULINGS OF THE COURTS. . . . . . . . . . . . . . . . . . . . . . . . . 10

B. PRESERVATION OF ERROR. . . . . . . . . . . . . . . . . . . . . . . . . 10

C. STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . 11

D. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1. AN ARTICLE V APPLICATION FORCONSTITUTIONAL CONVENTION MAY BEACCOMPLISHED BY STATE INITIATIVE. . . . . . . . . . . . 17

2. AN ARTICLE V APPLICATION FOR ACONSTITUTIONAL CONVENTION IS NOT A BINARY"YES OR NO" DECISION AKIN TO RATIFICATION OFA PROPOSED CONSTITUTIONAL AMENDMENT. . . . . . 20

ii

3. THE LEGAL RATIONALES ADOPTED BY THE COURTOF APPEALS ARE ERRONEOUS. . . . . . . . . . . . . . . . . . 22

a. THE COURT OF APPEALS INCORRECTLYASSERTED PLAINTIFFS� POSITION ON WHATTHE COURT TREATED AS THE ONLYDISPOSITIVE ISSUE. . . . . . . . . . . . . . . . . . . . . . . 22

b. THE COURT OF APPEALS RELIED UPONCONCLUSIONS THAT DEFENDANT HADINITIALLY ASSERTED BUT THEN ADMITTEDWERE WRONG IN BRIEFING TO THE COURT. . . . 24

(1) THE COA OPINION MISINTERPRETEDHAWKE AND DISREGARDED SUBSEQUENTRELEVANT U.S. SUPREME COURTDECISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 24

(a) THE COA OPINION DISREGARDED THEOPINION OF OREGON�S LEGISLATIVECOUNSEL. . . . . . . . . . . . . . . . . . . . . . . . 25

(b) ENACTMENTS THAT HAVECONTINGENT FACTORS ARE STILL"LAWS. . . . . . . . . . . . . . . . . . . . . . . . . . . 27

(2) "LAWS" NEED NOT COERCE PERSONS ORENTITIES IN OREGON. . . . . . . . . . . . . . . . . . 29

(3) THE COURT OF APPEALS INTRODUCEDAND RELIED UPON ITS OWN NEW CASESAND CONCEPTS, NEVER ADVANCED BYDEFENDANT. . . . . . . . . . . . . . . . . . . . . . . . . . 35

(a) AFL V. EU MISINTERPRETED HAWKE,WAS LATER COUNTERMANDED BYARIZONA IRC, AND DID NOT INVOLVEAN INITIATIVE ARTICLE V ACC. . . . . . . 35

(b) NONE OF THE "NEW" CASEAUTHORITY IS BASED ON OREGONLAW AND NONE CONSIDERS ANARTICLE V ACC. . . . . . . . . . . . . . . . . . . 38

c. AN ARTICLE V CONVENTION CALL IS ASUBSTANTIVE LAW. . . . . . . . . . . . . . . . . . . . . . . . 43

iii

d. OREGON LAW DOES NOT REQUIRE THAT ANINITIATIVE MEASURE BE A PROPOSED "LAW." . . 48

e. THE OREGON CONSTITUTION DECLARES THATTHE PEOPLE USING THE INITIATIVE PROCESSARE THE "LEGISLATURE." . . . . . . . . . . . . . . . . . . 52

4. THE RATIONALES ADOPTED BY THE CIRCUITCOURT ARE ERRONEOUS. . . . . . . . . . . . . . . . . . . . . . 55

a. AN INITIATIVE TO ADOPT AN ARTICLE VCONVENTION CALL IS NOT "A MEREEXPRESSION OF WILL WITH SPECULATIVELEGAL EFFECT." . . . . . . . . . . . . . . . . . . . . . . . . . 58

5. SECOND CLAIM FOR RELIEF: VIOLATION OFCONSTITUTIONAL RIGHTS OTHER THAN ARTICLEIV, § 1, OF THE OREGON CONSTITUTION. . . . . . . . . . 59

a. ARTICLE I, §§ 8 AND 26. . . . . . . . . . . . . . . . . . . . 60

b. ARTICLE I, § 1; ARTICLE II, § 18(8)8. . . . . . . . . . . 60

III. SECOND ASSIGNMENT OF ERROR: THE CIRCUIT COURTAND COURT OF APPEALS ERRED IN DISMISSING THE THIRDCLAIM FOR RELIEF: INTERFERENCE WITH RIGHTSGUARANTEED BY FIRST AMENDMENT OF U.S.CONSTITUTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61




D. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

IV. THIRD ASSIGNMENT OF ERROR: THE CIRCUIT COURT ANDCOURT OF APPEALS ERRED IN DISMISSING THE FOURTHCLAIM FOR RELIEF: INTERFERENCE WITH RIGHTSGUARANTEED BY FIFTH AND FOURTEENTH AMENDMENTSOF U.S. CONSTITUTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65



iv


D. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

V. FOURTH ASSIGNMENT OF ERROR: THE CIRCUIT COURTAND COURT OF APPEALS ERRED IN DISREGARDINGADDITIONAL FUNDAMENTAL LEGAL ERRORS OFDEFENDANT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70




D. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

1. PLAINTIFFS WERE ENTITLED TO, BUT DID NOTRECEIVE, A CONTESTED CASE HEARING. . . . . . . . . . 71

2. DEFENDANT FAILED TO PROVIDE REASONING FORHER DECISION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

3. CIRCUIT COURT ERRED IN ALLOWING DEFENDANTTO INTRODUCE NEW RATIONALES IN HER REPLYMEMORANDUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

4. DEFENDANT IS WITHOUT AUTHORITY TO EXAMINETHE SUBSTANCE OF A PROPOSED INITIATIVE FORCONSTITUTIONALITY. . . . . . . . . . . . . . . . . . . . . . . . . 75

VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

CONTENTS OF SUPPLEMENTAL EXCERPTS OF RECORD

1. Harisay v. Atkins, 295 OrApp 493, 434 P3d 442 (2018) . . . . Supp ER-1

CONTENTS OF SUPPLEMENTAL APPENDIX

1. Robin Quirke, Policy Interactive, Public Opinion onCampaign Finance Reform (March 2019),https://www.policyinteractive.org/public-opinion-on-campaign-�nance-reform/ . . . . . . . . . . . . . . . . . . . . . . . . . Supp App-1

v

2. Most think political division as bad as Vietnam era,new poll shows, WASHINGTON POST (October 28, 2017) . . . . Supp App-5

3. Plaintiffs� Memorandum of Additional Authorities(February 27, 2018) (includes Legislative Counsel opinionon "Whether National Popular Vote Interstate Compact maybe referred to voters" (February 6, 2018)) . . . . . . . . . . . . . Supp App-6

4. Washington Attorney General, Wash AGO 1983 No. 4,1983 WL 162402 (March 18, 1983) . . . . . . . . . . . . . . . . . Supp App-14

5. Oregon Legislature, Chapter 356, Oregon Laws 2019(SB 870) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Supp App-17

TABLE OF AUTHORITIESCASES

44 Liquormart, Inc. v. Rhode Island, 517 US 484, 116 SCt 1495 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Amalgamated Transit Union-Division 757 v. Yerkovich,24 OrApp 221, 545 P2d 1401 (1976) . . . . . . . . . . . . . . . . . . . . . 27, 28, 32

American Federation of Labor v. Eu, 36 Cal3d 687, 686P2d 609, 206 CalRptr 89 (1984) . . . . . . . . . . . . . . . . . . . . 34, 35, 36, 38-39

Arizona State Legislature v. Arizona IndependentRedistricting Commission, ___ US ___, 135 S Ct 2652(2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15, 18-19, 22, 34, 36, 57

Armstrong v. Manzo, 380 US 545, 85 SCt 1187, 14 LEd2d62 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Atlantic Cleaners & Dyers, Inc. v. United States, 286US 427, 52 SCt 607, 76 LEd 1204 (1932) . . . . . . . . . . . . . . . . . . . . . . . . 36

Barnes v. Paulus, 36 OrApp 327, 588 P2d 1120 (1978) . . . . . . . . . . . . . . . 74

Beal, 166 OrApp at 537, 998 P2d 237 . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Bernbeck v. Moore, 126 F3d 1114, 1116 (CA 8 1997) . . . . . . . . . . . . . . . . 62

Board of Education v. Pico, 457 US 853, 102 SCt 2799,73 LEd2d 435 (1982). * * * . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

vi

Boyer v. Salomon Smith Barney, 344 Or 583, 188 P3d233, 234-35 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Boytano v. Fritz, 131 OrApp 466, 886 P2d 31 (1994),affirmed, 321 Or 498, 901 P2d 835 (1995) . . . . . . . . . . . . . . . . . . . . . . . . 73

Brant v. Beermann, 217 Neb 632 (1984), cited inDefendant�s Answering Brief (p. 17) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Buckley v. American Constitutional Law Foundation,Inc. ("ACLF"), 525 US 182, 119 SCt 636 (1999) . . . . . . . . . . . . . . . 61, 62

Campbell/Campf/Collins, 265 Or 82, 506 P2d 163 (1973) . . . . . . . . . . . . 49

Carr v. SAIF Corp., 65 OrApp 110, 670 P2d 1037(1983), review dismissed, 297 Or 83, 679 P2d 1368(1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 65, 66

Christ v. Myers, 339 Or 494, 123 P3d 271 (2005) . . . . . . . . . . . . . . . . . . . 50

Citizens United v. Federal Election Comm�n, 558 US310, 130 SCt 876 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 37

City of Eugene v. Roberts, 305 Or 641, 756 P2d 630(1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 50

City of Eugene v. Roberts, 91 OrApp 1, 756 P2d 643(1988), affirmed, 305 Or 641, 756 P2d 630 (1988) . . . . . . . . . . . . . . . . . . 48

City of Troutdale v. Palace Constr. Corp., 293 OrApp785, 429 P3d 1042 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Clements v Airport Auth. of Washoe Cty, 69 F3d 321,33-34 (9th Cir 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Cleveland Bd of Education v. Loudermill, supra, 470 US532, 105 SCt 1487 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Cole/Dinsmore v. Driver and Motor Vehicle ServicesBranch, 336 Or 565, 87 P3d 1120 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . 64

Creager v. Berger, 97 OrApp 338, 775 P2d 913 (1989) . . . . . . . . . . . . . . . 58

Davis v. Hildebrant, 241 US 565, 36 SCt 708 (1916) . . . . . . . . . . . . . .25, 36, 57

vii

Dental v. City of Salem, 196 OrApp 574, 103 P3d 1150(2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Doe v. Gallinot, 657 F2d 1017 (9th Cir 1981) . . . . . . . . . . . . . . . . . . . . . . 66

Drew v. PSRB, 322 Or 491, 909 P2d 1211 (1996) . . . . . . . . . . . . . . . . . . . 70

Federal National Mortgage Association v. Goodrich, 275OrApp 77, 364 P3d 696 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Floyd v. Motor Vehicles Division, 27 OrApp 41, 554 P2d1024 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Fuller v. Dept. Public Safety Standards and Training,299 OrApp 403 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Goldberg v. Kelly, 397 US 254, 90 SCt 1011, 25 LEd2d287 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 66

Greenwood Products, Inc v. Greenwood Forest Products,Inc., 357 Or 665, 359 P3d 219 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Halperin v. Cent. Intelligence Agency, 629 F2d 144 (DCCir 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Hawke v. Smith, 253 US 221 (1920) . . . . . . . . . . . . 12, 17-19, 24, 25, 57, 71

Herbring v. Brown, 92 Or 176 (1919) . . . . . . . . . . . . . . . . 12, 15, 16, 54, 73

Hightower v. Paulson, 277 Or 65, 559 P2d 872 (1977) . . . . . . . . . . . . . . . . 7

Howard Jarvis Taxpayers Assn. v. Padilla, 62 Cal4th486, 494, 363 P3d 628, 631 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

In re Initiative Petition No. 364, 930 P2d at 189 . . . . . . . . . . . . . . . . . . . . 41

Jenkins v. Board of Parole, 356 Or 186, 335 P3d 828(2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Jory v. Martin, 153 Or 278, 56 P2d 1093 (1936) . . . . . . . . . . . . . . . . . . . . 52

Kays v. McCall, 244 Or 361, 418 P2d 511 (1966) . . . . . . . . . . . . . . . . . 8, 74

Kerr v. Bradbury, 193 OrApp 304, 89 P3d 1227 (2004),review dismissed as moot, 341 Or 200, 140 P3d 1131(2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 42, 43, 50

viii

Knotts v. Psychiatric Security Review Board, 250 OrApp448, 280 P3d 1030 (2012) ("Knotts") . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Kohring v. Ballard, 355 Or 297, 304 n2, 325 P3d 717(2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Koskela v. Willamette Industries, Inc., 331 Or 362, 15P3d 548 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 66

Lyng v. Nw. Indian Cemetery Protective Ass�n, 485 US439, 108 S Ct 1319, 99 L Ed 2d 534 (1988) . . . . . . . . . . . . . . . . . . . . . . 9

MacPherson v. DAS, 340 Or 117, 130 P3d 308 (2006) . . . . . . . . . . . . . . . . 52

Maginnis v. Childs, 284 Or 337, 587 P2d 460 (1978) . . . . . . . . . . . . . . . . . 74

Martin [v. Board of Parole], 327 Or at 157, 957 P2d1210 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Mathews v. Eldridge, 424 US 319, 96 SCt 893, 47 LEd2d18 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 65

Meyer v. Bradbury, 341 Or 288, 142 P3d 1031 (2006) . . . . . . . . . . . . . . 2, 51

Meyer v. Grant, 486 US 414 (1988) . . . . . . . . . . . . . . . . . . . . . . 61, 62, 63

Morrissey v. Brewer, 408 US 471, 92 SCt 2593, 33 LEd2d484 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Morrissey v. State of Colorado, 951 P2d 911 (Colo1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 39

Mullane v. Central Hanover Bank & Tr. Co., 339 US 306,70 SCt 652, 94 LEd 865 (1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Nevada Com�n on Ethics v. Carrigan, 131 SCt 2343(2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Opinion of the Justices Relative to the EighteenthAmendment of the Constitution of the United States,262 Mass 603, 160 NE 439 (1928) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Oregon Environmental Council v. Oregon State Bd. ofEducation, 307 Or 30, 761 P2d 1322 (1988) . . . . . . . . . . . . . . . . . . . . . . 69

Othus v. Kozer, 119 Or 101, 248 P 146 . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ix

Posadas de Puerto Rico Associates v. Tourism Co. ofPuerto Rico, 478 US 328, 106 SCt 2968 (1986) . . . . . . . . . . . . . . . . . . . . 61

Robinson v. Omark Indus., Inc., 291 Or 5, 627 P2d 1263(1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Rossolo, 272 OrApp at 572, 357 P3d 505 (2015) . . . . . . . . . . . . . . . . . . . 32

Rowlett v. Fagan, 358 Or 639, 369 P3d 1132, 1139 (2016) . . . . . . . . . . . . . 7

SAIF Corp. v. Alton, 171 OrApp 491, 16 P3d 5253 (2000) . . . . . . . . . . . . . 71

SIF Energy, LLC v. State, 275 OrApp 809, 365 P3d 664,666 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Salem Sand v. City of Salem, 260 Or 630, 492 P2d 271(1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Slogowski v. Lyness, 324 Or 436, 927 P2d 587 (1996) . . . . . . . . . . . . . . . . 7

Smiley v. Holm, 285 US 355, 52 SCt 397 (1932) . . . . . . . . . . . . . . 25, 36, 57

State ex rel. Carson v. Kozer, 108 Or 550, 217 P 827 . . . . . . . . . . . . . . . . 8

State ex rel. Carson v. Kozer, 126 Or 641, 270 P 513(1928) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 52, 74

State ex rel. Case v. Superior Court, 81 Wash. 623,143 P 461, 463 (1914) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

State ex rel. Dahlen v. Ervin, 158 OrApp 253, 974 P2d264 rev den, 329 Or 357, 994 P2d 124 (1999) . . . . . . . . . . . . . . . . . . . . . 32

State ex rel. Harper v. Waltermire, 213 Mont 425, 691P2d 826 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

State ex rel Juv. Dept. v. Geist, 310 Or 176, 796 P2d1193 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

State ex rel. McHenry v. Mack, 134 Or 67, 292 P 306 (1930) . . . . . . . . . . . 8

State ex rel. Mcpherson et al. v. Snell, 168 Or 153121 P2d 930 (1942) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 49

State v. Dameron, 316 Or 448, 853 P2d 1285 (1993) . . . . . . . . . . . . . . . . . 8

x

State v. Hirsch/Friend, 338 Or 622, 114 P3d 1104 (2005) . . . . . . . . . . . . . . . .52

Stevens v. Benson, 50 Or 269, 91 P 577 (1907) . . . . . . . . . . . . . . . . . . . . . 49

Straw v. Harris, 54 Or 424, 103 P 777 (1909) . . . . . . . . . . . . . . . . . . . 2, 52

Teegarden v. State ex rel. Oregon Youth Auth., 270 OrApp 373, 348 P3d 273, 277 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Towers v. Myers, 341 Or 357, 142 P3d 1040 (2006) . . . . . . . . . . . . . . . . . . 52

Tupper v. Fairview Hospital, 276 Or 657, 556 P2d 1340(1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Uhler v. Am. Fed�n of Labor-Cong. of Indus.Organizations, 468 US 1310, 105 SCt 5 (1984) . . . . . . . . . . . . . . . . . . . . . 37

Va. Pharmacy Bd. v. Va. Consumer Council, 425 US 748,96 SCt 1817, 48 LEd2d 346 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Wood v. Draper, 15 NY 532 (1857) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Wright v. Blue Mt. Hospital Dist., 214 Or 141, 328 P2d314 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

UNITED STATES CONSTITUTION

Article I, § 4, cl 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Article I, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Article V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

OREGON CONSTITUTION

Article I, § 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9, 17, 42, 58, 59, 64

Article I, § 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Article II, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25, 49, 51, 59

Article II, § 18(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 59

Article III, § 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

xi

Article IV, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10-13, 16, 22, 41, 58, 73

Article IV, § 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Article IV, § 1(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Article IV, § 1(3)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Article IV, § 1(4)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

STATUTES

The Paci�c Northwest Electric Power Planning andConservation Act [16 USC §839b(h)(7)] . . . . . . . . . . . . . . . . . . . . . . . . . 27

43 USC § 617l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

ORS 29.010 et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ORS 183.310(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 69

ORS 183.480 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ORS 183.482 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 8

ORS 183.484 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 8, 70

ORS 197.835(4)(a)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

ORS 243.142 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

ORS 246.150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

ORS 246.910 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 7, 8

ORS 250.005(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 16, 22, 47, 49, 50

ORS 250.035 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

ORS 250.041 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

ORS 250.043(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

ORS 250.044(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

xii

ORS 254.005(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 16, 22, 47, 49

ORS 254.145(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

ORS 254.555 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

ORS 315.357(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

ORS 366.805(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

ORS 414.072 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

ORS 455.060(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

ORS 469.261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Oregon Laws 1979, chapter 772 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

MISCELLANEOUS

BLACK�S LAW DICTIONARY 1028 (revised 4th ed 1968) . . . . . . . . . . . . . . . 42

Richard Hasen, When "Legislature" may mean more than"Legislature": Initiated Electoral College Reform andthe Ghost of Bush v. Gore, 35 HASTINGS CONSTITUTIONAL

LAW QUARTERLY 599, 619-20 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Hans Linde, Without "Due Process: Unconstitutional Lawin Oregon," 49 OR L REV 125, 130 (1970) . . . . . . . . . . . . . . . . . . . . . . . 53

Robert Natelson, Proposing Constitutional Amendmentsby Convention: Rules Governing the Process, 78TENNESSEE LAW REVIEW 693, 736-37 (2001) . . . . . . . . . . . . . . . . . . . 21, 43

James Kenneth Rogers, The Other way to Amend theConstitution: the Article V Constitutional ConventionAmendment Process, HARVARD J. LAW & PUBLIC POLICY1018-19 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Washington Attorney General, Wash AGO 1983 No. 41983 WL 162402 (March 18, 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 25

WEBSTER�S INTERNATIONAL DICTIONARY (1898) . . . . . . . . . . . . . . . . . . . . 44

xiii

WEBSTER�S NEW INT�L DICTIONARY 1985 (unabridged 2d ed1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

WEBSTER�S THIRD NEW INTERNATIONAL DICTIONARY (1913) .44

1

I. STATEMENT OF THE CASE.

A. NATURE OF THE ACTION.

This is:

1. a civil action under ORS 246.910 and/or ORS 29.010 et seq.

for declaratory and injunctive relief from the decision of the

Secretary of State ("Secretary" or "Defendant") to deny

issuance of a certi�ed ballot title for Initiative Petition No. 5

of 2016 ("IP 5");

2. appeal of an action by Defendant that should have been

conducted as a contested case under ORS 183.484 but was not;

and

3. appeal of an agency decision in other than a contested case

under ORS 183.482.

B. NATURE AND DATE OF JUDGMENT.

The Circuit Court entered a general judgment for Defendant on February

24, 2015. The appeal was e�led on March 5, 2015. The Circuit Court issued

an opinion on December 19, 2018 ("CoA Opinion"), Harisay v. Atkins, 295

OrApp 493, 434 P3d 442 (2018) (Supp ER-1).1

1. Supp ER-# references are to the Excerpt of Record �led with this brief inthe Oregon Supreme Court.

2

C. JURISDICTION.

Appellate jurisdiction: ORS 246.910(3); ORS 183.480; ORS 183.482;

ORS 183.484.

D. QUESTIONS PRESENTED.

The principal issue presented by this appeal is whether under Article IV

of the Oregon Constitution the people of Oregon may exercise their plenary

legislative powers to initiate an Application of the State of Oregon to the U.S.

Congress for a Constitutional Convention under Article V of the US

Constitution (hereinafter an "Article 5 Application for Constitutional

Convention" or "Article V ACC"). Petitioners urge the ultimate answer is

"yes."

In this case, the subject matter of such Constitutional Convention stated

in Initiative Petition 5�s ("IP 5") Application is a constitutional amendment

nullifying Citizens United v. Federal Election Comm�n, 558 US 310, 340,

130 SCt 876 (2010) (Citizens United). That nulli�cation would enable

various forms of campaign �nance reform at all levels of government. In

determining whether the people�s Oregon Article IV legislative powers extend

to applications to Congress to commence the federal legislative process of

amending the US Constitution, the following intermediate questions arise:

1. Are Meyer v. Bradbury, 341 Or 288, 299-300, 142 P3d 1031(2006), and Straw v. Harris, 54 Or 424, 430-31, 103 P 777(1909), overruled to the extent they hold that in Oregon "thesource of all legislative power is the people, and that power isexercised through a single legislative department"?

Rule proposed: No.

3

2. Is State ex rel. Carson v. Kozer, 126 Or 641, 644, 270 P 513(1928), overruled in its holding that the legislative powers ofthe people of Oregon and the elected Assembly under ArticleIV are "coequal and co-ordinate" in their "exercise of thelegislative powers"?

Rule proposed: No.

3. Does the reasoning of the CoA Opinion necessarily underminethe constitutionality of ORS 250.005(3) and ORS 254.005(6),which allow voters to exercising Article IV legislative power topropose "a proposition or question"?

Rule proposed: Yes.

4. Did the Secretary�s refusal to approve IP 5 (ER-322) forcirculation violate the rights of Plaintiffs guaranteed by theOregon Constitution?

Rule proposed: Yes.

5. Did the Secretary�s refusal to approve IP 5 for circulationviolate the rights of Plaintiffs guaranteed by the U.S.Constitution?

Rule proposed: Yes.

6. Did the Secretary�s refusal to approve IP 5 for circulationviolate the rights of Plaintiffs under Oregon statutes and laws?

Rule proposed: Yes.

E. FACTS.

On May 20, 2014, the Chief Petitioners for IP 5 of 2016 (ER-32) �led

enough (more than 1,000) valid sponsorship signatures to commence the

ballot title process. The Secretary veri�ed those signatures on July 7. The

Attorney General issued a draft ballot title on July 14, which was subject to

comments �led by July 28. On August 12, Secretary of State Jeanne Atkins

2. ER refers to the Excerpt of Record �led in the Court of Appeals.

4

issued a decision that IP 5 "does not comply with the procedural

constitutional requirements" and refused to certify IP-5 for circulation.

ER-11. Defendant stated no reasons for this conclusion, apart from noting her

receipt of a 2-page letter from the Attorney General.3 ER-10.

Plaintiffs �led suit on October 9, 2014. Defendant �led Defendant�s

Motion for Judgment on the Pleadings [hereinafter "Defendant�s Motion"],

offering a new patina of reason for her August 12 decision. Plaintiffs

responded, and the Secretary replied with entirely new legal theories,

abandoning the rationale presented in the Attorney General�s letter and in

Defendant�s Motion. The Circuit Court granted Defendant�s Motion, based

on the new theories raised for the �rst time in Defendant�s Reply in Support

of Her Motion for Judgment on the Pleadings (January 7, 2015) [hereinafter

"Defendant�s Reply re Motion"].

Plaintiffs appealed. The Court of Appeals on December 19, 2018, issued

its Opinion ("CoA Opinion"), which is based upon cases and legal theories

either not advanced by the Secretary or actually repudiated by the Secretary.

The Court of Appeals decision is based upon a third generation of different

legal theories, not asserted by any party at any stage of this case, supported in

the CoA Opinion by cases never cited by any party.

3. The Defendant-Respondent in this case is now Secretary of State BevClarno, who was appointed to the position in 2019. The Secretary of Statewho rejected the petition and who defended against this action in theCircuit Court and Court of Appeals was Jeanne Atkins in 2014-16. Thisbrief refers to the office of Secretary of State as "Defendant."

5

F. SUMMARY OF ARGUMENT.

The federal constitutional convention sought by IP 5 is one to nullify the

U.S. Supreme Court�s decision in Citizens United v. Federal Election

Comm�n, 558 US 310, 340, 130 SCt 876 (2010) (Citizens United), which

would enable various forms of campaign �nance reform at all levels of

government. The importance of this effort was set forth in the Petition for

Review, pp. 3-4, 6-7.

The states can compel Congress to convene a constitutional convention

by means of Article V of the U.S. Constitution:

The Congress, whenever two thirds of both Houses shall deem itnecessary, shall propose Amendments to this Constitution, or, on theApplication of the Legislatures of two thirds of the several States,shall call a Convention for proposing Amendments, which, in eitherCase, shall be valid to all Intents and Purposes, as part of thisConstitution, when rati�ed by the Legislatures of three fourths ofthe several States, or by Conventions in three fourths thereof, as theone or the other Mode of Rati�cation may be proposed by theCongress; * * *

So far these states have adopted Article V Applications for a

Constitutional Convention ("Article V ACCs") for the purpose of overturning

Citizens United: California, Illinois, New Jersey, Rhode Island, Vermont,

West Virginia. It appears that 13 other states have taken some related but

different action, such as the state legislature adopting a resolution urging

Congress "to propose and send to the states for rati�cation an amendment to

the United States Constitution * * * clarifying that Congress and state

legislatures may regulate all moneys raised and spent for political purposes *

* *." The Oregon Legislature adopted such a joint memorial in 2013 (HJM 6).

6

But such a joint memorial is not an Article V ACC and has no binding effect

upon Congress. It was the failure of the Oregon Legislature to adopt an

actual Article V ACC that prompted the Chief Petitioners to draft and pursue

the adoption of IP 5 (2016).

IP 5 is a proposed law or enactment of the Legislature, by means of the

initiative process, that constitutes a valid Application of the state to the U.S.

Congress, pursuant to Article V of the U.S. Constitution, for a Constitutional

Convention on the subject matter stated in the Application.

As a legislative act with binding effect upon the U.S. Congress, IP 5 is a

proper subject for state initiative under the Oregon Constitution and

implementing statutes. Defendant�s refusal to certify IP 5 for circulation

violated several constitutional rights of Plaintiffs, including:

Oregon Constitution:

Article IV, § 1Article I, § 8Article I, § 26

U.S. Constitution

First AmendmentFifth AmendmentFourteenth Amendments

The CoA Opinion erred in many respects. It:

(1) did not address most of the dispositive issues presented in the case;

(2) incorrectly asserted Plaintiffs� position on what the Court deemed tobe the dispositive issue;

(3) relied upon conclusions that Defendant had initially asserted butthen abandoned in brie�ng to the Court; and

7

(4) introduced and relied upon its own new cases and concepts, notadvanced by Defendant (for good reason).

The Circuit Court Letter Opinion does not provide any valid alternative

basis for upholding the action of the Secretary.

G. STANDARD OF REVIEW.

1. UNDER ORS 246.910.

The Circuit Court granted Defendant�s motion for judgment on the

pleadings. Review is for legal error.

Judgment on the pleadings, which is authorized by ORCP 21 B,1"is only allowable when the pleadings[,] taken together [,]affirmatively show that plaintiff has no cause of action against thedefendant[.]" Salem Sand v. City of Salem, 260 Or 630, 636, 492P2d 271 (1971). In ruling on the motion, the trial court cannot ruleon issues of fact. Id. On review of a judgment on the pleadings,an appellate court accepts as true all well-pleaded allegations of thecomplaint. Slogowski v. Lyness, 324 Or 436, 439, 927 P2d 587(1996).

Boyer v. Salomon Smith Barney, 344 Or 583, 586, 188 P3d 233, 234-35

(2008). Accord, Rowlett v. Fagan, 358 Or 639, 649, 369 P3d 1132, 1139

(2016); Teegarden v. State ex rel. Oregon Youth Auth., 270 OrApp 373,

378-79, 348 P3d 273, 277 (2015).

Issues of constitutional construction are matters of law which are

reviewed for errors of law. Greenwood Products, Inc v. Greenwood Forest

Products, Inc., 357 Or 665, 679, 359 P3d 219 (2015); Hightower v. Paulson,

277 Or 65, 69, 559 P2d 872 (1977).

The Constitution and statutes are to be construed liberally in order to

facilitate the use of the initiative power by the people of Oregon.

8

[W]e should "keep in mind that the language of the Constitution,and the statutes enacted for the purpose of carrying out theprovisions thereof, should have a liberal construction, �to the endthat this constitutional right of the people may be facilitated and nothampered by either technical statutory provisions or technicalconstruction thereof further than is necessary to fairly guard againstfraud and mistake in the exercise by the people of this * * * right.�State ex rel. Case v. Superior Court, 81 Wash. 623, 632, 143 P461, 463, Ann.Cas.1916B, 838." State ex rel. McHenry v. Mack,134 Or 67, 69, 292 P 306, 307. See, also State ex rel. Carson v.Kozer, 108 Or 550, 217 P 827.

State ex rel. Mcpherson et al. v. Snell, 168 Or 153, 162, 121 P2d 930

(1942). See State v. Dameron, 316 Or 448, 459-60, 853 P2d 1285, 1291

(1993).

We unquali�edly endorse the principle that election laws should beliberally construed. As was said in Othus v. Kozer, 119 Or 101 at109, 248 P 146 at 149, �The great constitutional privilege of acitizen should not be taken away by a narrow or technicalconstruction of a law regulating the exercise of such right.� Wherethere is a doubtful construction, �the doubt should be resolved infavor of the people to initiate a law if they see �t so to do.�

Kays v. McCall, 244 Or 361, 373, 418 P2d 511, 517 (1966).

2. UNDER ORS 183.482 AND ORS 183.484.

Plaintiffs brought this case pursuant to ORS 246.910 but also under ORS

183.484 (as it should have been conducted as a contested case) and 183.482

(as it was conducted as an other than contested case). The standards of

review applicable to review of agency orders are set forth at ORS 183.484(5)

and ORS 183.482(8).

9

3. THIS COURT SHOULD ADDRESS THE MERITS OFSOME OF THE CLAIMS FOR RELIEF.

Although the Circuit Court disposed of this case by granting a motion to

dismiss on the pleadings, Plaintiffs-Appellants urge this Court to address the

merits of the First Claim for Relief, the Fourth Claim for Relief, and the

Second Claim for Relief, except the parts based upon Article I, § 8, and

Article I, § 26 (which were not fully developed at the time of Defendant�s

motion). Also ready for this Court�s consideration are the merits of the

Fourth Assignment of Error in this brief.4

Oregon appellate courts address and resolve the merits of cases in this

circumstance, if doing so is fair to all parties and achieves judicial economy.

Dental v. City of Salem, 196 OrApp 574, 582, 103 P3d 1150 (2004).

Because it appears reasonably likely that the First Amendment issuewas necessary to the decisions below, we believe that it would beinadvisable to vacate and remand without addressing that issue onthe merits. This conclusion is strengthened by considerations ofjudicial economy.

Lyng v. Nw. Indian Cemetery Protective Ass�n, 485 US 439, 447, 108 S Ct1319, 99 L Ed 2d 534 (1988).

With this possibility in mind, and considering that judicial economyis best served by our resolving all relevant issues at this stage, weproceed to consider the merits of plaintiff �s constitutional claim asan equal alternative ground of our decision. Although the districtcourt did not address this issue, we decline to remand for furtherargument and fact-�nding at the trial court level, since the issue ispurely one of law and the relevant considerations have beensubstantially briefed here by both parties.

4. Those Article I, §§ 8 and 26, claims become moot, if this Court rules infavor of Plaintiffs on the First or Fourth Claims for Relief or on the otherparts of the Second Claim for Relief or on the Fourth Assignment of Errorbelow.

10

Halperin v. Cent. Intelligence Agency, 629 F2d 144, 154 (DC Cir 1980).

II. FIRST ASSIGNMENT OF ERROR: THE CIRCUIT COURT ANDCOURT OF APPEALS ERRED IN DISMISSING THE FIRST ANDSECOND CLAIMS FOR RELIEF.

By refusing to certify IP 5 for circulation, Defendant violated the rights

of Plaintiffs under several provisions of the Oregon Constitution, including

Article IV, § 1, as alleged in Complaint ¶¶ 31-34.

A. RULINGS OF THE COURTS.

The Circuit Court�s ruling is presented in its Letter Opinion of February

2, 2015 ("Circuit Court Letter Opinion") (ER-14-17).5 The Court of Appeals

decision is presented in Harisay v. Atkins, 295 OrApp 493, 434 P3d 442

(2018) (hereinafter "COA Opinion") (Supp ER-1).6 All of its legal

discussion pertains to the First and Second Claims for Relief.

B. PRESERVATION OF ERROR.

Plaintiffs preserved error by responding to all aspects of Defendant�s

Motion in Plaintiffs� Response to Defendant�s Motion for Judgment on the

Pleadings (December 24, 2014)7 (hereinafter "Plaintiffs� Response"), by

arguing the motion at the Circuit Court�s hearing on January 27, 2015

5. ER-# references are to the Excerpt of Record �led in the Court of Appeals.

6. Supp ER-# references are to the Excerpt of Record �led with this brief inthe Oregon Supreme Court.

7. The dates listed in the trial court record do not always correspond to thedates that documents were actually �led. For example, The trial courtrecord showed this document as �led on December 29, 2014.

11

(assisted by their Hearing Exhibit (ER-35-40)), and by brie�ng and arguing

all aspects of the case to the Court of Appeals in Harisay v. Atkins.

C. STANDARD OF REVIEW.

See pages 7-8 ante.

D. ARGUMENT.

On August 12, 2015, the Secretary issued a decision that IP 5 "does not

comply with the procedural constitutional requirements." ER-10-11.

Defendant stated no reasons. But she did note:

The Secretary has been advised that a court review of InitiativePetition 2016-005 would probably determine that it does notpropose a law within the meaning of Article IV, section 1 of theOregon Constitution and therefore may not legally be adoptedthrough the initiative process.

Reciting that the "Secretary has been advised" does not amount to stating a

conclusion of law or provide reasoning.8

In any event, the Attorney General�s advice was wrong, as a matter of

law. The advice (ER-12-13) concluded:

We conclude that a court construing it [IP 5] would probablydetermine that it does not propose a "law" within the meaning ofArticle IV, section 1 of the Oregon Constitution, and that thereforeit may not be lawfully adopted through the initiative process.

The basis for this conclusion were the Attorney General�s assertions that (1)

federal courts had held that a call for an Article V convention can be done

only by the assembled elected legislators (hereinafter referred to as the "sitting

8. The absence of a stated rationale for Defendant�s decision is discussedunder the Fourth Claim for Relief.

12

Legislature") and not by voters using a state�s initiative process, and (2) this

Court long-ago adopted that position:

The Supreme Court of the United States has held that this power toapply for a constitutional convention is reserved to the Legislativeassemblages of the states, and cannot be exercised by direct actionof the people. Hawke v. Smith, 253 US 221 (1920). In Oregon,the mechanism* for achieving this is through a joint resolution ofthe two houses of the Legislative Assembly. And the OregonSupreme Court has held that a joint resolution calling for aconstitutional convention is not a "law" within the meaning ofArticle IV, section 1. Herbring v. Brown, 92 Or 176 (1919).

ER-14.

Both of the Attorney General�s statements are quite wrong. First,

Hawke v. Smith ("Hawke") absolutely did not involve "this power to apply

for a constitutional convention." It involved rati�cation of an amendment to

the U.S. Constitution sent to the States by Congress. The U.S. Supreme

Court has never held only sitting assemblies can call an Article V ACC.

Second, Herbring v. Brown ("Herbring") absolutely did not address "a joint

resolution calling for a constitutional convention." It addressed a joint

resolution of the Oregon Legislature ratifying the 18th Amendment to the

U.S. Constitution (prohibition of alcoholic beverages). As shown below

(pages 17-20, 24-25, post) federal courts have consistently distinguished the

non-legislative binary function of rati�cation of federal constitutional

amendments from the inherent non-binary legislative functions requiring

discretion, such as drafting and adopting an Article V Convention Call on a

speci�ed subject.

13

Second, Plaintiffs refuted this rationale (and the applicability of Hawke

v. Smith) in Plaintiffs� Response, pp. 10-15 (ER-22-27). Plaintiffs showed

that the U.S. Supreme Court has concluded that, when the U.S. Constitution

refers to the "Legislature" of a state performing a "legislative" function to

ful�ll a requirement of the U.S. Constitution, the U.S. Constitution means the

legislative power of the state, however exercised, and not exclusively to the

acts of the sitting Legislature.

Defendant then abandoned her argument based on Hawke v. Smith in

Defendant�s Reply re Motion (Reply ER 1-29) and admitted that the U.S.

Constitution allows a valid and effective Article V Convention Call to be

accomplished by means of an initiative:

Plaintiffs contend that the Secretary�s decision to reject IP 5 isbased on "examining the substance of IP 5 and concluding that itdoes not comply with the requirements of the US Constitution." Pl.Resp. at 2. Plaintiffs are mistaken. In fact, the parties agree thatthe substantive constitutionality or legal effectiveness of a proposedinitiative is not relevant to a preelection challenge. Def. Mot. at 4,In. 15-22; Pl. Resp. at 3. Moreover, the parties agree that IP 5 is,on its face, and de�nitively for purposes of this pre-election review,"a self-contained Application for Constitutional Convention to theUS Congress" ("Application") under Article V of the United StatesConstitution. Pl. Resp. at 17. The Secretary�s rejection of IP 5 onOregon constitutional procedural grounds was not based on whetheror not IP 5 is an effective Application. Instead, it was based on thefact that an "Application," effective or not, is simply not a "law"within the meaning of the Oregon Constitution�s initiative power,which, by its express terms, only encompasses the people�s rights topropose and enact "laws and amendments to the Constitution." OrConst., Art. IV, § 1. Thus, Plaintiffs� arguments at pages 10-15 oftheir response regarding whether an Application submitted through

9. Reply ER refers to the Reply Excerpt of Record �led in the Court ofAppeals.

14

the initiative process rather than by the state legislature is a validApplication under federal law are inapposite.

The Respondent�s Answering Brief to the Court of Appeals also stated

that Defendant did not contest whether an Article V ACC can be achieved by

initiative, concluding (p. 13 n3): "Whether IP 5 is, in fact, would be [sic] an

effective application under Article V is another question, albeit not one at

issue here." The same brief later (pp. 17-18) concluded "that issue is entirely

beside the point" and elaborated:

There is some reason to doubt that an application for anArticle V constitutional convention that originated from an initiativewould be effective. The Supreme Court, as noted above, expresslyconcluded in Hawke v. Smith that the phrase "the legislatures * * *of the several states" in Article V refers only to state legislatures,and therefore allows only state legislatures, and not the peopleacting through their referendum powers, to ratify amendments.5

Hawke thus casts considerable doubt on the idea that the peopleacting through their initiative power could apply for a constitutionalconvention. To reach that conclusion, the Court seemingly wouldhave to overrule Hawke or else conclude that the phrase "thelegislatures * * * of the several states" has two different meaningswithin the same constitutional Article. But be that as it may, thatissue is entirely beside the point here.

5. As plaintiffs note, however, the Supreme Court has recentlyheld that for purposes of the "Elections Clause" of the USConstitution, Art I, section 4, cl 1, "the Legislature" is notlimited to the state legislature per se, and that the people ofeach state through direct lawmaking may prescribe the time,place and manner of elections. Arizona State Legislature v.Arizona Independent Redistricting Commission, ___ US ___,135 S Ct 2652 (2015).

The substantive constitutionality or legal effectiveness of aproposed initiative is not relevant to a pre-election challenge. TheSecretary�s review does not include a review of whether themeasure would be substantively unconstitutional or unlawful ifenacted. OAR 165-014-0028(1). That is, even if it is patentlyobvious that a proposed initiative would be unconstitutional if

--

15

enacted, that substantive unconstitutionality cannot be a basis for theSecretary to reject the ballot initiative.

But the Circuit Court and the Court of Appeals adopted the legal position

that Defendant abandoned. They both concluded that an ACC is not a "law,"

since an effective ACC (under federal law) can be accomplished only by a

sitting legislature and not by means of initiative, relying upon Hawke and

disregarding Arizona State Legislature v. Arizona Independent Redistricting

Commission, ___ US ___, 135 S Ct 2652 (2015) (" Arizona IRC"), as well as

the extensive opinion of Oregon�s Legislative Counsel (February 6, 2018)10

(Supp App-8-13), which closely parallels the analysis presented by Plaintiffs

in this case and examines Arizona IRC in detail.

Finally, Herbring, supra, held only that a joint resolution passed by the

elected Legislature to ratify a proposed amendment to the U.S. Constitution is

not a "Bill" or an "Act" subject to referendum in Oregon. That case does not

de�ne a "law" or a "Bill" or an "Act" but merely concluded that, "as a joint

resolution is neither a bill nor an act, it is not subject to the referendum." 92

Or at 182.

That the framers of the Constitution intended to preserve the well-known distinction between "acts" and "joint resolutions" is indicatedin section 21, supra, wherein it is required that "acts" and "jointresolutions" shall be plainly worded.

10. This Legislative Counsel opinion was provided to the Court of Appeals in amemorandum of additional authority on February 27, 2018. It is available:https://olis.leg.state.or.us/liz/2018R1/Downloads/CommitteeMeetingDocument/139960

16

Herbring, 92 Or at 182. IP 5 is an initiative, not a referendum on a joint

resolution and not a referendum at all. An initiative is the proposal of a law

(or "a proposition or question"; see pages 48-52, post) for voter approval or

disapproval. This table indicates differences between the attempted

"referendum on a joint resolution" in Herbring and the proposed IP 5 Article

V Convention Call.

Herbring v. Brown (1919) In Harisay v. Atkins (2015)

type of Oregonlegislativemechanism

referendum initiative

target oflegislativemechanism

joint resolution passed bysitting Oregon Legislatureto comply with Article Vrati�cation process forproposed U.S.Constitutional amendmentoriginating with Congress

proposed initiative measureto call for a U.S.Constitutional Conventionpursuant to Article V of theU.S. Constitution understates� retained plenarypowers to so direct Congress

applicablecriterion inOregonConstitution

"any Act, or part thereof,of the LegislativeAssembly" (Article IV, §1)

legislative power to useinitiative to "propose laws"(Article IV, § 1) or propose"a proposition or question"(ORS 250.005(3); ORS254.005(6)

Applying Herbring to IP 5 is incorrect. The starting point of analysis is

completely different. Herbring started with a joint resolution of the

Legislature and concluded that it was not subject to referendum because it

was not an Act. Here, the starting point is a piece of legislation or law

initiated by voters, not a resolution of any sort. That such a piece of

legislation (Article V ACC) can be accomplished by initiative is an entirely

different question than was addressed in Herbring.

17

1. AN ARTICLE V APPLICATION FORCONSTITUTIONAL CONVENTION MAY BEACCOMPLISHED BY STATE INITIATIVE.

Plaintiffs� Response (pp. 8-9, ER-20-21) established:

Plaintiffs are not proposing a resolution of any sort. IP 5proposes to enact an Application for Constitutional Conventionunder Article V of the U.S. Constitution. That is a substantive actof a State that has material effect under the U.S. Constitution. Assoon as two-thirds of the States �le such Applications, the U.S.Congress is required by Article V to call a ConstitutionalConvention on the subject matter speci�ed in the Applications.

As Plaintiffs� Response (pp. 13-14, ER-25-26) stated:

So the lesson of all of the U.S. Supreme Court cases is that themeaning of "legislature" in the U.S. Constitution depends not uponwhich Article of the Constitution it appears. It depends upon thetask or power that is addressed by the particular provision at issue.If the task is a "legislative" one in the sense of drafting a documentwith some level of detail, then the U.S. Constitution�s reference to"legislature" is not to any particular body but to the duly-constitutedlegislative processes in each state at the time the state undertakesthe task at issue. If the task is a binary one (yes or no), then theU.S. Supreme Court has deemed it to be not legislative, so that thereference to "legislature" in the U.S. Constitution regarding thosetasks is to the state�s elected legislative body.

Though the leading Article I, section 4 cases endorsethe "Legislature as legislative process" theory, on theother side of this divide are Article V cases. In Hawke v.Smith, [FN94] the Supreme Court considered thepropriety of an Ohio constitutional provision reserving theright of voters to adopt or reject at the polls a decision bythe state legislature to ratify an amendment to the UnitedStates Constitution. Article V of the US Constitutionrequires rati�cation by "the Legislatures of three-fourthsof the several states." And in Hawke the Supreme Courtheld that the term "Legislature" in this context meant theactual state legislature, and not the "Legislature aslegislative power."

The Court held the error with the "Legislature aslegislative power" theory of Article V is that it rested onthe "fallacious" idea that rati�cation of a constitutional

18

amendment was an act of legislation. Instead, rati�cation"is but the expression of the assent of the State to aproposed amendment." * * *

* * * Second, the Hawke Court contrasted the natureof the action of a state legislature in setting rules forCongressional elections under its Article I, Section 4power compared to its rati�cation of constitutionalamendments under its Article V power: "Such legislativeaction [in the Article I, Section 4 context] is entirelydifferent from the requirement of the Constitution as tothe expression of assent or dissent to a proposedamendment to the Constitution. In such expression nolegislative action is authorized or required." [Hawke, 253US at 231].

Hasen, When "Legislature" may mean more than "Legislature":Initiated Electoral College Reform and the Ghost of Bush v. Gore,35 HASTINGS CONSTITUTIONAL LAW QUARTERLY 599, 619-20(2008).

Plaintiffs� Response (p. 15, ER-27) concluded:

Applying for an Article V Constitutional Convention is not abinary "yes or no" decision. To the contrary, it requires draftingand the consideration of issues and details--the hallmarks of"legislation." For example, the consensus of legal scholars is that astate�s call for a constitutional convention does not count toward therequired 34 such simultaneous calls (2/3 of all states), unless thecall itself contains detail on the desired subject matter of theamendment(s) to be addressed at the Convention. Describing thesubject matter requires legislative drafting and is not a binarydecision.

The U.S. Supreme Court in Arizona IRC (2015) later reaffirmed this

approach to determining whether a reference in the U.S. Constitution to state

"Legislatures" means sitting legislatures or means the legislative power of the

state, however exercised. Arizona IRC upheld the constitutional validity of

the Arizona initiative that created the Arizona Independent Redistricting

Commission and allocated to it the power to de�ne congressional districts and

19

state legislative districts within Arizona, removing that function from the

sitting Arizona Legislature. The Court expressly distinguished Hawke v.

Smith, supra, because that case dealt with the binary "ratifying function" and

not a "legislative function."

Hawke v. Smith involved the Eighteenth Amendment to theFederal Constitution. Ohio�s Legislature had rati�ed theAmendment, and a referendum on that rati�cation was at issue.Reversing the Ohio Supreme Court�s decision upholding thereferendum, we held that "rati�cation by a State of a constitutionalamendment is not an act of legislation within the proper sense ofthe word." 253 U.S., at 229, 40 SCt 495. Instead, Article Vgoverning rati�cation had lodged in "the legislatures of three-fourthsof the several States" sole authority to assent to a proposedamendment. Id., at 226, 40 SCt 495. The Court contrasted theratifying function, exercisable exclusively by a State�s legislature,with "the ordinary business of legislation." Id., at 229, 40 SCt 495.

Arizona IRC, 135 SCt at 2666-67.

Of course, U.S. Supreme Court decisions are controlling authority on

how Article V can be implemented and override any contrary implication in

Herbring. In sum, as set out above, they instruct that, when Congress

forwards a congressionally-proposed constitutional amendment to the states,

the U.S. Constitution imposes a non-discretionary duty for the Oregon sitting

assembly--distinct from its other legislative powers--to vote either yes or no

on rati�cation.11 In contrast, an Article V ACC can arise only from a

discretionary exercise of Oregon�s own legislative powers by either co-equal

legislative department to debate, draft, and adopt an Application. The states�

11. A similar non-discretionary rati�cation duty arises when any amendmentsproposed by the legislative body formed by the Constitutional Convention,rather than Congress, are forwarded to the States for rati�cation.

20

role in rati�cation (making a binary-choice vote on proposals drafted by

another legislative body, whether the U.S. Congress or a Constitutional

Convention) is a non-discretionary duty imposed by U.S. Constitution Article

V. Creating an Article V ACC, however, is a discretionary exercise of states�

plenary legislative power to solve problems of constitutional governance by

directing Congress to convene an Article V Constitutional Convention on the

subject speci�ed in the Article V ACCs.

2. AN ARTICLE V APPLICATION FOR ACONSTITUTIONAL CONVENTION IS NOT A BINARY"YES OR NO" DECISION AKIN TO RATIFICATIONOF A PROPOSED CONSTITUTIONAL AMENDMENT.

As shown above, applying for an Article V Constitutional Convention is

not a binary "yes or no" decision. To the contrary, it requires drafting and

the consideration of issues and details--the hallmarks of "legislation."

For example, the consensus of legal scholars is that a state�s application

for a constitutional convention does not count toward the required 34 such

simultaneous calls (2/3 of all states), unless the application itself contains

detail on the desired subject matter of the amendment(s) to be addressed at

the Convention. This speci�city can only be accomplished by the state�s

exercise of legislative skills.

Because of its agency role, Congress may--in fact, must--limitthe subject matter of the convention to the extent speci�ed by theapplying states. * * * Historical evidence already adducedbuttresses this conclusion, showing that the applying statelegislatures may impose subject-matter limits on the convention.

In order to carry out its agency responsibility, Congress has nochoice, when counting applications toward the two thirds needed for

21

a convention, but to group them according to subject matter.Whenever two thirds of the states have applied based on thesame general subject matter, Congress must issue the call for aconvention related to that subject matter. Congress may notexpand the scope of the convention beyond that subject matter. Arecent commentary summarized the process this way:

[A]pplications for a convention for different subjectsshould be counted separately. This would ensure that theintent of the States� applications is given proper effect. Anapplication for an amendment addressing a particularissue, therefore, could not be used to call a conventionthat ends up proposing an amendment about a subjectmatter the state did not request be addressed. It followsfrom this argument that Congress�s ministerial duty to calla convention also includes the duty to group applicationsaccording to subject matter. Once a sufficient number ofapplications have been reached, Congress must call aconvention limited in scope to what the States haverequested.

[James Kenneth Rogers, The Other way to Amend theConstitution: the Article V Constitutional ConventionAmendment Process, HARVARD J. LAW & PUBLIC POLICY1018-19 (2007)]

Robert Natelson, Proposing Constitutional Amendments by Convention: Rules

Governing the Process, 78 TENNESSEE LAW REVIEW 693, 736-37 (2001)

(emphasis added) (footnotes omitted).

3. THE LEGAL RATIONALES ADOPTED BY THE COURTOF APPEALS ARE ERRONEOUS.

The CoA Opinion addressed only one issue: whether an Article V ACC

is a "law" within the meaning of the legislative powers reserved to Oregon

electors by Oregon Constitution, Article IV, incorrectly stating that Plaintiffs

had agreed that issue was a dispositive one.

22

a. THE COURT OF APPEALS INCORRECTLYASSERTED PLAINTIFFS� POSITION ON WHATTHE COURT TREATED AS THE ONLYDISPOSITIVE ISSUE.

The CoA Opinion disregarded Plaintiffs� argument that initiative

measures in Oregon are not limited to the adoption of "laws."

As far as we can tell, however, plaintiffs agree that, to constitute avalid exercise of the initiative power, IP 5 must propose a "law"under Article IV, section 1(2)(a), and if it does not, then thesecretary was not required to certify it for the ballot.

295 OrApp at 497. That conclusion is in error. Plaintiffs speci�cally argued

that an initiative petition need not propose a "law" under Article IV, § 1(2)(a),

in the Plaintiffs� Opening Brief to CoA, pp. 13-14. They noted that ORS

250.005(3) and ORS 254.005(6) both de�ne "measure" to include "a

proposition or question," in addition to "a proposed law" (discussed at pages

48-52, post). Plaintiffs also showed that Oregon cases have allowed

initiatives that consist purely of advisory measures. Additionally, Plaintiffs

showed (see pages 17-20 and 24) that, under Article V jurisprudence, when a

state uses its legislative power to debate, draft, adopt, and transmit an Article

V ACC, it is lawmaking. Arizona IRC, supra. And no party or Court has

concluded that such "lawmaking" is beyond the scope of allowable initiatives

in Oregon.

An initiative must be an exercise of the legislative power reserved in

Article IV (as opposed to being an exercise of executive or judicial power),

but legislative power in Oregon is not limited to the passage of "laws." At

the historical times of apportioning Oregon legislative power and since, it has

23

been understood that state legislative power does not reside in "a special

agency, for the exercise of speci�cally de�ned legislative powers."

[E]very subject within the scope of civil government is liable to bedealt with by the legislature. People v. Draper, 15 NY 543.

Cooley, TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON

THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION (Little,

Brown, 1868), p. 88.

All the commonly understood legislative functions are reserved to

citizen-drafters by Article IV: (1) consulting with concerned citizens to

identify problems, (2) identifying a desired outcome, (3) drafting a proposal,

debating the meaning and impact of text to best achieve that policy, (4)

preparing a prospective petition. Article IV contains no term allocating any

of these legislative functions to another branch of government, so they remain

within the purview of both parts of Oregon�s Legislative Department (elected

assembly and the people). Nowhere in the Oregon Constitution is there a

limitation upon the legislative power necessary to perform duties assigned to

states by Article V of the U.S. Constitution.

b. THE COURT OF APPEALS RELIED UPONCONCLUSIONS THAT DEFENDANT HADINITIALLY ASSERTED BUT THEN ADMITTEDWERE WRONG IN BRIEFING TO THE COURT.

The CoA Opinion relied upon the legal conclusion that an Article V

ACC is not a law because it is advisory and does not have legal

consequences. 295 OrApp at 501, 504. But even Defendant agreed that a

valid Article V ACC does have de�nite concrete legal consequences in that it

24

compels Congress to call a constitutional convention, when sufficient states

have so called. Defendant�s Answering Brief, p. 4 n1.

Thus, the CoA Opinion relied upon another conclusion that was negated

by all parties in the case.

(1) THE COA OPINION MISINTERPRETEDHAWKE AND DISREGARDED SUBSEQUENTRELEVANT U.S. SUPREME COURTDECISIONS.

The CoA Opinion, 295 OrApp at 502, claims that IP 5 is not a "law," as

its call for an Article V convention would be ineffective under the U.S.

Constitution, discussing at length Hawke v. Smith, 253 US 221, 40 SCt 495,

64 LEd 871 (1920) ("Hawke").

Hawke involved potential rati�cation of an amendment to the U.S.

Constitution. The U.S. Supreme Court has consistently held that rati�cation

is a binary "non-legislative" function and is thus assigned by Article V to each

state�s sitting legislature. The Court has also consistently held that any

decision by a state that requires drafting and deliberation can be accomplished

by whatever legislative process each state has adopted, including by initiative.

See pages 17-20, ante.

The 1983 Opinion of the Attorney General of Washington is precisely on

point:

An initiative, under Article II, § 1 of the Washington Constitution,may be used for the purpose of applying to the federal Congress tocall a convention for proposing amendments to the United StatesConstitution in accordance with Article V thereof.

25

Washington AGO 1983 No. 4, 1983 WL 162402 (March 18, 1983)

("Washington AG Opinion") (Supp App-14).12

(a) THE COA OPINION DISREGARDED THEOPINION OF OREGON�S LEGISLATIVECOUNSEL.

The CoA Opinion disregarded the opinion of Oregon�s Legislative

Counsel on "Whether National Popular Vote Interstate Compact may be

referred to voters." (February 6, 2018) (Supp App-8-13), which closely

parallels the Plaintiffs� analysis. Legislative Counsel discusses the same

cases: Hawke, Davis v. Hildebrant, 241 US 565, 36 SCt 708 (1916); Smiley

v. Holm, 285 US 355, 52 SCt 397 (1932); and Arizona IRC. Legislative

Counsel�s conclusion is the opposite of the CoA Opinion. Legislative Counsel

(p. 5) (Supp App-12) concluded:

The United States Supreme Court has consistently applied afunctional approach to interpreting the meaning of the term"legislature" under various provisions of the United StatesConstitution. Applying that approach to Article II, section 1, weconclude that a court would likely interpret "legislature" to includenot only a state�s representative lawmaking body, but also anymethod of direct legislation prescribed by the state�s constitution.

The National Popular Vote Compact ("NPV Compact"), which Oregon

joined in 2019, provides that Oregon�s presidential electoral votes shall be

allocated to the winner of the national popular vote, regardless of the vote

totals in Oregon.13 The NPV Compact, by its terms, does not become

12. This was Exhibit 4 to the Petition for Review.

13. Oregon joined by means of Chapter 356, Oregon Laws 2019 (SB 870),(continued...)

26

operational, until and unless states with an aggregate total of at least 270

electoral votes join the compact. So far 15 states have joined, with 196

electoral votes. Thus, Oregon�s joining of the NPV Compact did not result in

activation of the Compact. Further, even after reaching 270 electoral votes

the Compact would be ineffective, unless it is consented to by U.S. Congress

under Article I, § 10, of the U.S. Constitution:

No State shall, without the Consent of Congress, lay any Duty ofTonnage, keep Troops, or Ships of War in time of Peace, enter intoany Agreement or Compact with another State, or with a foreignPower, or engage in War, unless actually invaded, or in suchimminent Danger as will not admit of delay.

Thus, joining the NPV Compact would have far less immediate effect

than IP 5�s Article V ACC, which does not require consent of Congress but

instead (along with similar ACCs by other states) compels Congress to

assemble the convention and determine its scope. Legislative Counsel

nevertheless concluded that Oregon could join the NPV by means of ballot

measure.

(b) ENACTMENTS THAT HAVECONTINGENT FACTORS ARE STILL"LAWS.

Many laws rely upon contingent factors and do not become effective

until other events occur--including actions by other lawmakers--as illustrated

by the progress towards the NPV Compact. They are still valid legislative

13.(...continued)Supp App-17-18.

27

acts. Oregon participates in many interstate compacts which became effective

only when (1) all other signatory state legislatures agreed and (2) Congress

granted approval under U.S. Constitution, Article I, § 10, cl 3.14 Further,

many Oregon statutes are passed contingent upon receipt of federal waivers

enacted by Congress or its delgatees.15 These compacts and contingent

statutes fully express the legislative purpose to be put into effect when others

act. The same is true of the legislative intent of IP 5. It is operative upon

adoption and will have the effect of requiring Congress to call the convention,

when at least 34 states have made ACCs on the same subject. Delay in the

ultimate effect is irrelevant to any analysis whether a legislative act is within

the power of the people to enact by initiative. Contingent laws are still valid.

The CoA Opinion, 294 OrApp at 501, cited Amalgamated Transit

Union-Division 757 v. Yerkovich, 24 OrApp 221, 228, 545 P2d 1401 (1976),

for the proposition that initiatives in Oregon cannot be "resolutions or other

nonbinding acts."

The purported initiative does not compel anyone to do anything--notthe people of Portland, their city officials or the state or federalgovernment. It does not affect legal relationships, appropriatefunds, or set forth procedures for future conduct. It is only a public

14. The Paci�c Northwest Electric Power Planning and Conservation Act [16USC §839b(h)(7)] approved in 1980 an interstate compact for multi-stateelectric power planning. The 1922 Colorado River Compact was approvedby Congress in 1928 [43 USC § 617l]. There are dozens more.

15. See ORS 243.142 (Department of Consumer and Business Services mayseek waivers for some Oregon health plans); ORS 414.072 (Oregon HealthAuthority procedure for federal waiver); ORS 469.261 (State EnergyDepartment may seek waiver from federal minimum energy efficiencystandards).

28

opinion bill, advisory in nature, which sets forth no prescribed ruleof civil conduct.�

Id., 24 OrApp at 228. That does not describe IP 5.

Oregon is a member of dozens of interstate compacts. Some of them

require no activity in Oregon, unless and until Congress approves the

compacts and certain future circumstances occur. For example, the only

action in Oregon under the NPV Compact has been under its Article IV,

which requires (Supp App-17):

The chief executive of each member state shall promptly notify thechief executive of all other states of when this agreement has beenenacted and has taken effect in that official�s state, when the statehas withdrawn from this agreement, and when this agreement takeseffect generally.

The CoA Opinion�s logic would conclude that joining the NPV Compact is

not a "law," so it cannot be done by ballot measure. But Legislative Counsel

has comprehensively contradicted that position in its extensive 2018 opinion

on whether the NPV Compact could be adopted by initiative (Supp App-8-

13).

(2) "LAWS" NEED NOT COERCE PERSONS ORENTITIES IN OREGON.

The CoA Opinion, 295 OrApp at 502, then created several new tests,

claiming that an enactment is not a "law" unless it has effects or "coerces" an

entity in Oregon. There is nothing in the Oregon Constitution that de�nes

legislative power or "law" so narrowly. In fact, a lead contemporaneous case

on state constitutional power informed Oregon Convention Delegates

otherwise:

29

Plenary power in the legislature for all purposes of civil governmentis the rule. A prohibition to exercise a particular power is anexception.

Wood v. Draper, 15 NY 532, 543 (1857).

Regardless of the validity of the CoA Opinion�s conclusion, it is not

relevant here. IP 5 does have a future effect upon Oregonians and residents

of all states, when joined by other states and Congress responds: a

constitutional convention to consider amending the U.S. Constitution with

regard to campaign �nance and rights of corporations. In that respect IP 5

operates much like the Oregon laws entering into interstate compacts, which

await action by other states and Congress, discussed above.

Adoption of IP 5 would have the immediate effect in Oregon of placing

the state on record as exercising its power under Article V to compel

Congress to call a Constitutional Convention on a speci�ed subject. It also

would impose a duty on a state actor to transmit the Application to Congress,

with that transmittal exerting coercion upon Congress, as Defendant has

admitted and which is con�rmed in the 1983 Washington AG Opinion (Supp

App-166):

We would, however, distinguish those instances [memorials toCongress] from the subject of your present inquiry because of thelegal force and effect of state legislative action, on the Congress, ofan application submitted pursuant to Article V of the United StatesConstitution, supra.

Article V ACCs have the effect of making Congress respond to the people of

the states and call a constitutional convention, which then certainly affects

everyone in Oregon. Moreover, once Congress responds, Oregon will have

30

further tasks necessitated by IP 5 and the other states� Article V ACCs, such

as choosing delegates and preparing instructions for their participation in such

convention. IP 5 also requires that the government of Oregon codify IP 5 in

Title 17 of Oregon Revised Statutes.

The CoA Opinion, 295 OrApp at 502 n4, depends upon its novel and

incorrect proposition that amendments to the U.S. Constitution do not "affect

Oregonians" or that the calling of and participation in a constitutional

convention do not "affect Oregonians." Amendments to the U.S. Constitution

are paramount to all Oregon laws and the Oregon Constitution. Such

amendments absolutely affect Oregonians. A convention that is empowered

by the U.S. Constitution to propose amendments and send them directly to the

States for rati�cation certainly "affects Oregonians." Here, the IP 5 Article V

ACC expresses the legislative will of the state regarding the content of the

U.S. Constitution, using state procedures to initiate legislative change that will

greatly impact Oregonians, among others.

The CoA Opinion (295 OrApp at 502) further contends that a "law" must

require some sort of conduct or activity in Oregon: "Put simply, IP 5 would

regulate no one in Oregon and, thus, would not be an exercise of Oregon

lawmaking." First, the CoA Opinion cites no authority for this proposition.

Second, any amendment to the U.S. Constitution stemming from a

constitutional convention would regulate activity in Oregon in a manner

supreme to all other laws. The mere calling of a constitutional convention

would require that Oregon send delegates to the convention, would constitute

31

a "regulation" of someone in Oregon. IP 5 itself would require activity in

Oregon and activity by Oregonians or persons representing Oregon. It

requires that the ACC "shall be codi�ed in Title 17 of Oregon Revised

Statutes." It requires:

(3) A copy of this initiative shall be transmitted to the President ofthe United States; to each member of the OregonCongressional Delegation; to the presiding officers of the USSenate and House of Representatives; to each Governor andpresiding office of each legislative body of each of the UnitedStates.

The CoA Opinion also asserts, without legal authority, that IP 5 is not a

"law," because it does not identify the Oregon persons who are to transmit the

Article V ACC to the President and other government officials. When laws

are enacted that require ministerial transmittal of documents to others, it is

assumed that the government of Oregon will do the transmitting, as there is

no one else commanded to do so. Thus, by necessary implication IP 5

commands an Oregon government official or office to do the transmitting.

The will of Oregon voters is not defeated merely by use of the passive

voice. There are many provisions in the Oregon Constitution and statutes that

use the passive voice and do not identify who or what is doing the required

ministerial duties of the "transmitting" or the "reporting" or the "transferring"

to various government officials or bodies. See Article III, § 14; Article V, §

4; ORS 366.805(2); ORS 455.060(3). That does not transform these

provisions into non-"laws."

The CoA Opinion, 295 OrApp at 503, then contends:

32

IP 5 also bears little resemblance to a "rule of conduct." The corepurpose of IP 5 is to "call" or "apply," and thus trigger (supposingenough other states implement similar applications), a constitutionalconvention under a pre-existing process set out in Article V of theUnited States Constitution. If passed (and if enough other statespassed similar measures), IP 5 would ostensibly require Congress tohold a convention and consider certain enumerated legal principlesat that convention; however, once such a convention were toconvene, the measure would cease to have any effect. See, e.g.,Rossolo, 272 OrApp at 584, 357 P3d 505 (measure may beproposed via initiative petition if it "makes policy of generalapplicability," but not if it "applies previous policy to particularactions, or is otherwise compelled in substance or process bypredicate policy"); Beal, 166 OrApp at 537, 998 P2d 237 (measuremay be proposed via initiative petition if it establishes the procedureby which decisions will be made); State ex rel. Dahlen v. Ervin,158 OrApp 253, 257, 974 P2d 264, rev den, 329 Or 357, 994 P2d124 (1999) (proposed initiative that "does not attempt to change aspeci�c siting decision of the county but, rather, to change theframework within which the county makes siting decisions" was anappropriate use of the initiative power).

The CoA Opinion thus attempts to characterize IP 5 as addressing some

sort of temporary decision, like the decisions thought to be "administrative"

addressed in Rossolo and Beal.16 It is difficult to understand the contention

that a proposed initiative is not a law, because after it does have an effect, it

then "would cease to have any effect." Many laws "sunset" after passage of

time or completion of a de�ned purpose, such as issuance of authorized

bonds. All but three of Oregon�s dozens of state income tax credits sunset

every 6 years. Nine of them had a sunset date of 2019. Legislative Revenue

16. The CoA Opinion, 294 OrApp at 501, also cited Amalgamated Transit

Union-Division 757 v. Yerkovich, supra, 24 OrApp at 228, for theproposition that initiatives in Oregon cannot be "resolutions or othernonbinding acts". Yerkovich invalidated a proposed initiative because itwas "an attempt to reverse a related administrative decision of the city�selected officials."

33

Office, TAX CREDIT REVIEW: 2019 SESSION (Research Report #2-19) (January

24, 2019). That a law at some point "ceases to have any effect" does not

render it a "non-law."17 The CoA Opinion cites no authority for the

proposition that all laws must have some sort of perpetual effect in order to

be "laws."

The CoA Opinion, 295 OrApp at 503, is further incorrect in asserting

that, "once such a convention were to convene, the measure would cease to

have any effect." After the federal constitutional convention is conducted, IP

5 would continue to have legal effects. For example, someone could

challenge the legality of the Constitutional Convention, claiming that not

enough states submitted valid Article V ACCs. The existence of the adopted

IP Article V ACC would be of central importance in resolving such a claim,

as would its exact language in specifying the subject matter of the Convention

sought. See page 44, post.

And IP 5 would permanently contribute Oregon�s 1/34 weight to the

requirement under the U.S. Constitution that a constitutional convention be

17. ORS 315.357(2) (2012) contains a "sunset" provision that phased out thebusiness energy tax credit by July 1, 2014. Not only did the tax creditprogram continue to be "law" until July 1, 2014 (despite the fact it wouldcease to have effect), rights or disputes arising prior to the sunset remainedjusticiable. SIF Energy, LLC v. State, 275 OrApp 809, 813, 365 P3d 664,666 (2015).

Oregon Laws 1979, chapter 772, part of the enactment creating Land UseBoard of Appeals, contained a "sunset" provision in section 28(1) forsections 16a, which necessitated the reenactment of section ORS197.835(4)(a)(C) in 1983. Obviously, LUBA functioned for four yearsunder a "law" that would later cease to have effect.

34

convened on the subject of Citizens United and money in campaigns, until

and unless IP 5 itself repealed by future legislative action in Oregon. IP 5

would provide a necessary part of the framework for federal constitutional

change by means of convention under Article V.

(3) THE COURT OF APPEALS INTRODUCEDAND RELIED UPON ITS OWN NEW CASESAND CONCEPTS, NEVER ADVANCED BYDEFENDANT.

The CoA Opinion then relied on cases that were never cited by

Defendant--and for good reason. Those cases were irrelevant, did not involve

an initiative to adopt an Article V ACC, consistently misapplied Hawke, and

were subsequently countermanded by the U.S. Supreme Court in Arizona

IRC. These cases involved ballot questions about what elected representatives

of the state should or should not do. IP 5, in contrast, is a self-contained

Article V ACC, as Defendant has conceded. IP 5 makes no request to

Oregon legislators. Nor is IP 5 a "nonbinding expression of public opinion

on a question."

(a) AFL V. EU MISINTERPRETED HAWKE,WAS LATER COUNTERMANDED BYARIZONA IRC, AND DID NOT INVOLVEAN INITIATIVE ARTICLE V ACC.

The CoA Opinion relied on American Federation of Labor v. Eu, 36

Cal3d 687, 706, 686 P2d 609, 622, 206 CalRptr 89 (1984) (AFL v. Eu) for

the incorrect proposition that Hawke applied to a legislative (drafting and

deliberation) function (it does not; see Arizona IRC, supra) and that the term

35

"Legislatures" in Article V must have only one meaning, no matter the task at

hand. No party cited this case, and for good reason.

First, AFL v. Eu did not involve an initiative that constituted an Article

V ACC. The California initiative mandated "that the California Legislature

adopt the following resolution and submit the same to the Congress of the

United States under the provisions of Article V of the Constitution of the

United States." AFL v. Eu, 36 Cal3d at 692. The initiative was a directive to

the California Legislature, mandating that it make an Article V ACC

regarding balancing the federal budget. Unlike IP 5, the initiative was not

itself an Article V ACC directed to Congress. Perhaps that is why Defendant

never cited it.

Second, the CoA Opinion, 295 OrApp at 502 n5, relied upon AFL v. Eu

in stating:

Plaintiffs * * * argue that the Court would conclude that a statemay apply for a constitutional convention via the initiative power.That argument presumes either that the Court would overruleHawke or that the term "Legislatures" has two different meaningswithin the same clause of Article V.

The CoA Opinion took that �nal sentence from the Respondent�s Answering

Brief, p. 19:

To reach that conclusion, the Court seemingly would have tooverrule Hawke or else conclude that the phrase "the legislatures ** * of the several states" has two different meanings within thesame constitutional Article. But be that as it may, that issue isentirely beside the point here.

-

36

But the CoA Opinion omitted the last sentence above from Respondent�s

Answering Brief, which stated "the issue is entirely beside the point."

Instead, the CoA Opinion relied upon this misinterpretation of Hawke.

There was no need to overrule Hawke; it addressed only the rati�cation

function. As for presuming that "the term �Legislatures� has two different

meanings within the same clause of Article V," that is exactly what the U.S.

Supreme Court has consistently held in Arizona IRC, supra; Davis v.

Hildebrant, supra; Smiley v. Holm, supra. See pages 17-20, 24-25, ante;

Plaintiffs� Opening Brief to CoA, pp. 8-10, 17-19. The Court has held that

the meaning of "Legislatures" in the U.S. Constitution depends upon the

function being assigned by the provision of the U.S. Constitution in question.

"[T]he meaning of the word �legislature,� used several times in theFederal Constitution, differs according to the connection in which itis employed, depend[ent] upon the character of the function whichthat body in each instance is called upon to exercise." AtlanticCleaners & Dyers, Inc. v. United States, 286 US 427, 434, 52SCt 607, 76 LEd 1204 (1932) (citing Smiley, 285 US 355, 52 SCt397, 76 LEd 795).

Arizona IRC, 135 SCt at 2668.

Third, AFL v. Eu depended upon the California Supreme Court�s view

that the sitting legislature and the people using the initiative power are not

co-equal, with the sitting legislature having superior powers. AFL v. Eu, 36

Cal3d at 708, 686 P2d at 623. That view is contrary to the view of the

Oregon Supreme Court, as shown in Plaintiffs� Opening Brief, pp. 25-27, and

at pages 52-55, post. Using its superior powers, the California Legislature in

2014 placed on the ballot a measure asking "the electorate whether Congress

--

37

should propose, and the Legislature ratify, a federal constitutional amendment

overturning the United States Supreme Court decision Citizens United v.

Federal Election Comm�n (2010)." Howard Jarvis Taxpayers Assn. v.

Padilla, 62 Cal4th 486, 494, 363 P3d 628, 631 (2016). The Court found

Proposition 49 to be constitutional, even though it was an "advisory question."

Fourth, the U.S. Supreme Court declined to stay the AFL v. Eu decision

but concluded that whether an Article V ACC can be accomplished by

initiative is "by no means settled." Uhler v. Am. Fed�n of Labor-Cong. of

Indus. Organizations, 468 US 1310, 1311, 105 SCt 5 (1984).

Fifth, the California Constitution, Article II, § 8(a) states:

The initiative is the power of the electors to propose statutes andamendments to the Constitution and to adopt or reject them.

As noted at pages 45-47, post, Oregon�s term "laws" is broader than

California�s term "statutes."

(b) NONE OF THE "NEW" CASEAUTHORITY IS BASED ON OREGONLAW AND NONE CONSIDERS ANARTICLE V ACC.

The CoA Opinion erroneously relies upon decisions from other states,

several not cited by any party, which have held that the people through the

initiative cannot demand or "coerce" sitting legislatures to commence the Art

V ACC process. IP 5 is based on the Oregon Constitutional division of

legislative powers. IP 5 does not demand legislative action by the sitting

Legislature: if adopted by popular vote, it is a complete Article V

Application, as Defendant has conceded.

38

No party cited Morrissey v. State of Colorado, 951 P2d 911, 916 (Colo

1998) ("Morrissey"), but the CoA Opinion relied on it for the proposition that

"The citizens� use of the initiative process to demand passage of a

constitutional amendment clearly violates the strict language of Article V,

which precludes state citizens from direct participation in the amendment

process."18 The underlying initiative did not propose an Article V ACC.

Instead:

Amendment 12 sets forth the "exact language" of a proposed "TermLimits Amendment" to the United States Constitution and directsColorado�s state legislators to apply for a constitutional conventionand ratify the Amendment when it is referred to the states.Similarly, Amendment 12 directs Colorado�s congressionalrepresentatives to approve the Term Limits Amendment. In orderto ensure compliance, the words "DISREGARDED VOTERINSTRUCTION ON TERM LIMITS" are required to appear on allprimary and general election ballots beside the name of anyincumbent candidate who fails to comply with Amendment 12�sdirectives.

Morrissey, 951 P2d at 913. Thus, Morrissey is very similar to AFL v. Eu,

supra. Neither concerns an initiative proposing an Article V ACC. Both

reject proposed demands upon the sitting legislature to craft and adopt an

Article V ACC.

[O]ther courts have determined that citizens� initiatives designed tocoerce elected officials into exercising their Article V powers areunconstitutional. In this regard, the supreme courts of Californiaand Montana have held that initiatives which threaten to withholdcompensation and/or prolong legislative sessions until lawmakerspass legislation calling for a constitutional convention violate ArticleV.

18. Obviously, IP 5 does not "demand passage of a constitutional amendment."Instead, it constitutes a state call for a federal constitutional conventionunder Article 5.

39

Morrissey, 951 P2d 911 at 915. Morrissey cites AFL v. EU, supra, and State

ex rel. Harper v. Waltermire, 213 Mont 425, 691 P2d 826 (1984)

("Waltermire"), for that proposition.

The Montana initiative, like the California one in AFL v. Eu, was not

itself an Article V ACC but instead sought to direct the legislature to adopt an

Article V ACC.

Initiative No. 23 is a measure that, if adopted by the voters, wouldhave directed the Legislature to apply to Congress pursuant toArticle V of the United States Constitution to call a convention toconsider a federal balanced budget amendment.

Waltermire, 213 Mont at 427. IP 5 does not seek to coerce the Oregon

Legislature to adopt an Article V ACC. The difference was recognized even

in Morrissey:

Amendment 12 usurps the exercise of representative legislativepower by dictating to elected representatives the precise manner inwhich they are to attempt to amend the United States Constitution.Amendment 12 does not itself accomplish that amendment; rather, itviolates Article V by coercing legislators to amend the United StatesConstitution.

Morrissey, 951 P2d at 916

Further, Morrissey and Waltermire both also relied upon Hawke ,

without recognizing the difference between a legislative function and a binary

rati�cation function. As shown earlier, any application of Hawke to a

non-binary function, such as crafting and adopting an Article V ACC limited

to a particular subject, is countermanded by Arizona IRC. See pages 17-20,

24-25, ante.

40

The CoA Opinion cites other cases that Defendant did cite. One is

Opinion of the Justices Relative to the Eighteenth Amendment of the

Constitution of the United States, 262 Mass 603, 605, 160 NE 439, 440

(1928), where the initiative (the "proposed law") also was not an Article V

ACC. Instead, it was in effect a public opinion poll.

The title of the �proposed law� is �An act to ascertain the will of thepeople of the commonwealth with reference to the repeal of theEighteenth Amendment to the Constitution of the United States.�The text of the �proposed law� provides in section 1 that at the nextstate election there shall be placed upon the official ballot in eachcongressional district the question �shall the Senators from thiscommon wealth and the Representative in Congress from thisdistrict be requested to support a constitutional amendment to repealthe Eighteenth Amendment to the Constitution of the United Statesknown as the Prohibition Amendment?� By section 2 it is stated thatthe vote thus to be taken shall not be regarded as an instruction tothe Senators and Representatives but as the opinion and will of thepeople.

Opinion of the Justices, 262 Mass at 604, 160 NE at 440. IP 5 is a Article

V ACC, not a poll of voter opinion.

The CoA Opinion cites In re Initiative Petition No. 364, 1996 OK 129,

930 P2d 186, 195 (1996), claiming that it establishes that an:

(application for an Article V convention "is not binding, * * * isincapable of being carried into effect, and * * * is incapable ofbeing enforced").

But the initiative there was not an Article V ACC. Instead, it was a

declaration that the people want the Oklahoma Legislature to apply for a

constitutional convention.

This initiative measure declares that the people of Oklahoma desirethat the Oklahoma Legislature apply to Congress for the calling of aFederal Constitutional Convention leading to the adoption of thespeci�c proposed amendment which is set forth in full, and the

--

41

voters should be kept informed of their legislators� efforts in thisregard. * * * It then instructs "each member of the OklahomaLegislature to use all his or her delegated powers to makeapplication under article V of the United States Constitution to theUnited States Congress calling for an article V convention" topropose the federal term limits amendment it speci�es.

In re Initiative Petition No. 364, 930 P2d at 189. The Oklahoma initiative

was thus similar to those in California, Colorado, Montana, and Massachusetts

described above, none of which constituted an Article V ACC.

Nor is IP 5 a "nonbinding expression of public opinion on a question,"

so Brant v. Beermann, 217 Neb 632, 637 (1984), cited in Defendant�s

Answering Brief (p. 17) is equally irrelevant. The content of IP 5 is not

merely its 3 "Whereas" clauses but also contains the substantive Application

for Constitutional Convention, all of which is directed to be codi�ed in Title

17 of Oregon Revised Statutes. Substantive initiatives and statutes adopted by

the sitting Legislature often have "whereas" clauses and/or legislative �ndings

preceding their operative provisions. Having those does not render the

initiatives or statutes mere "expressions of public opinion."

c. AN ARTICLE V CONVENTION CALL IS ASUBSTANTIVE LAW.

Kerr v. Bradbury, 193 OrApp 304, 89 P3d 1227 (2004), review

dismissed as moot, 341 Or 200, 140 P3d 1131 (2006), addressed how to

de�ne "proposed law" in Article IV, § 1.

As we have noted, Article IV, section 1(2)(d), provides, inpart, that "[a]n initiative petition shall include the full text of theproposed law." The constitution does not de�ne the term "proposedlaw." When the constitution does not de�ne its terms, we presume

42

that the voters intended those terms to be given their ordinarymeanings. Ecumenical Ministries, 318 Or at 560, 871 P2d 106.

At the time of the enactment of Article I, section 1(2)(d),"propose" was de�ned as "to offer for consideration, discussion,acceptance or adoption." WEBSTER�S NEW INT�L DICTIONARY 1985(unabridged 2d ed 1961). The term "law" commonly meant, aspertinent to this case:

"The binding custom or practice of a community; rules ormode of conduct made obligatory by some sanction whichis imposed and enforced for their violation by acontrolling authority."

Id. at 1401. BLACK�S LAW DICTIONARY 1028 (revised 4th ed 1968)similarly de�ned the term:

"That which is laid down, ordained, or established. Arule or method according to which phenomena or actionsco-exist or follow each other. That which must be obeyedand followed by citizens, subject to sanctions or legalconsequences.

193 OrApp at 311.

Under any of the above de�nitions, IP 5 proposes a law. Plaintiffs are

not proposing a "resolution" of any sort. IP 5, if adopted, enacts an Article V

ACC. That is a substantive act of a State that has material effect under the

U.S. Constitution. As soon as two-thirds of the States �le such Applications,

the U.S. Congress is required by Article V to call a Constitutional Convention

on the subject matter speci�ed in the Applications.

Copious evidence supports the conclusion that Congress may notrefuse to call an amendments convention upon receiving therequired number of applications. When some Anti-Federalistssuggested that Congress would not be required to call a convention,Hamilton, writing in Federalist No. 85, affirmed that the call wouldbe mandatory. Numerous other Federalists agreed, among themJames Iredell, John Dickinson, James Madison, and Tench Coxe.

43

Natelson, supra, 78 TENNESSEE LAW REVIEW at 734-36 (footnotes omitted).

An Article V ACC is indeed a "rule or mode of conduct made obligatory."

Thus, even if a "law" must be substantive and have signi�cant practical

effect (a proposition not established by Defendant), an Article V ACC

certainly quali�es. Each application becomes binding upon Congress and

impose an obligatory duty upon Congress, when aggregated with 33 other

Article V ACC. The �ling of sufficient Applications then requires action by

Congress and must, by the terms of Article V itself (the Supreme Law of the

Land) be followed. These Applications thus clearly �t the de�nition of "law"

offered in Kerr.19

The de�nitions in Kerr were from 1960�s dictionaries. But the term

"propose laws" did not originate in the 1968 referral amendment to Article

IV, § 1, which was presented on the ballot as merely "changes basis for

determining number of signatures." Reply App-5.20 The Explanatory

Committee explained that the other provisions "are purely �clean-up� of the

wording and in no way do they diminish the power of the people to initiate or

refer measures." Reply App-2. The original 1902 version of Article I stated:

19. It matters not that Congress need not act upon the Application of anindividual state. Each of the Applications which accumulate to the requirednumber (now 34) is equally necessary to imposing the obligation uponCongress. And Defendant has made no argument that the obligation can bedisregarded, because it requires more than one state to submit anApplication. And, upon receipt of each Application, Congress mustascertain its subject matter so that it can be combined with likeApplications by other states.

20. The full text of the 1968 amendment is presented in Kerr, supra, 193OrApp at 320-23.

44

The legislative authority of the State shall be vested in a LegislativeAssembly, consisting of a Senate and House of Representatives, butthe people reserve to themselves power to propose laws andamendments to the Constitution and to enact or reject the same atthe polls, independent of the Legislative Assembly, and also reservepower at their own option to approve or reject at the polls any actof the Legislative Assembly.21

So what did "propose laws" mean in 1902? WEBSTER�S THIRD NEW

INTERNATIONAL DICTIONARY (1913)22 would provide a de�nition of "law"

more contemporaneous with adoption of the 1902 amendment.23

1. In general, a rule of being or of conduct, established by anauthority able to enforce its will; a controlling regulation;the mode or order according to which an agent or a poweracts.

Note: A law may be universal or particular, written orunwritten, published or secret. From the nature of thehighest laws a degree of permanency or stability isalways implied; but the power which makes a law, or asuperior power, may annul or change it. * * *

4. In human government:

(a) An organic rule, as a constitution or charter,establishing and de�ning the conditions of the existenceof a state or other organized community.

(b) Any edict, decree, order, ordinance, statute, resolution,judicial, decision, usage, etc., or recognized, andenforced, by the controlling authority.

* * *

21. The full text is at Reply App-6.

22. The Oregon Supreme Court often uses this dictionary and explains why inKohring v. Ballard, 355 Or 297, 304 n2, 325 P3d 717 (2014).

23. The full 5-page de�nition is at Reply App-7-11. The CoA Opinion reciteda short part of the de�nition of "law" from WEBSTER�S INTERNATIONALDICTIONARY (1898), which appears to be the same as the 1913 de�nition.

45

8. Collectively, the whole body of rules relating to one subject,or emanating from one source; -- including usually thewritings pertaining to them, and judicial proceedings underthem; as, divine law; English law; Roman law; the law ofreal property; insurance law.

* * *

-- Law, Statute, Common law, Regulation, Edict, Decree. Law isgeneric, and, when used with reference to, or in connection with,the other words here considered, denotes whatever is commandedby one who has a right to require obedience. A statute is aparticular law drawn out in form, and distinctly enacted andproclaimed. Common law is a rule of action founded on longusage and the decisions of courts of justice. A regulation is alimited and often, temporary law, intended to secure someparticular end or object. An edict is a command or law issued bya sovereign, and is peculiar to a despotic government. A decreeis a permanent order either of a court or of the executivegovernment. See Justice.

The CoA Opinion omitted this �nal paragraph in the WEBSTER�S de�nition of

"law." "Law" includes anything that a governing body does: any rule,

regulation, or "mode or order according to which an agent or a power acts." It

includes any "edict, decree, order, ordinance, statute, resolution, judicial

decision, usage, etc., or recognized, and enforced, by the controlling

authority." It speci�es that "Law is generic, and * * * denotes whatever is

commanded by one who has a right to require obedience" (emphasis

added).24 It establishes that "law" is not limited to "statute." IP 5

obviously proposes a "law" under the WEBSTER�S de�nition.25

24. This is consistent with the CoA Opinion�s quotation from A NEW LAWDICTIONARY (1850) that law are "the rules and enactments promulgated bythe legislative authority thereof."

25. Other states with the initiative process do not use the term "proposed law."(continued...)

46

There is no evidence that the voters in 1902 who reclaimed plenary

legislative power to be exercised through the initiative (1) intended to reserve

to themselves only partial legislative power that was somehow less than the

entire range of the legislative function or (2) intended that the word "laws" to

mean something other than what a legislature does, particularly since that was

the contemporaneous de�nition of "law" provided by the 1898 and 1913

WEBSTER�S .

The CoA Opinion, 295 OrApp at 500, incorrectly concludes that all of

the cited dictionaries de�ne a "law" as a "rule" of civil conduct or action.

But WEBSTER�S 1898 and the other dictionaries cited also de�ne a "law" to

include "any edict, decree, order ordinance, statute, resolution, judicial

decision, usage, etc., made, or recognized, and enforced, by the controlling

authority.

Defendant�s Answering Brief (p. 11) claims that "an application is a

petition or request, not a binding rule of conduct." Defendant cites no

authority, and an Article V Application is a speci�c instrument that does have

binding effect under the U.S. Constitution, as explained above. The

Application does not by itself accomplish amending the U.S. Constitution (as

Defendant now suggests that it must) but instead requires Congress to "call a

25.(...continued)For example, the Constitution of California de�nes the initiative as "thepower of the electors to propose statutes and amendments to theConstitution and to adopt or reject them." "Proposed law" is broader than"propose[d] statutes."

47

Convention for proposing Amendments." Requiring that a constitutional

convention be convened is certainly a "binding rule of conduct."

d. OREGON LAW DOES NOT REQUIRE THAT ANINITIATIVE MEASURE BE A PROPOSED "LAW."

An entirely separate basis for reversing the CoA Opinion (stated in

Plaintiffs� Opening Brief, pp. 13-14) is that it disregarded Oregon statutes

implementing Article IV of the Oregon Constitution and the constitutional

rights of Plaintiffs to pursue appropriate initiatives. These statutes were

disregarded in the CoA Opinion and in the Circuit Court Letter Opinion.

ORS 250.005 provides de�nitions for statutes implementing the initiative

and referendum powers. ORS 250.005(3) states:

(3) "Measure" includes any of the following submitted to thepeople for their approval or rejection at an election:

(a) A proposed law.

(b) An Act or part of an Act of the Legislative Assembly.

(c) A revision of or amendment to the Oregon Constitution.

(d) Local, special or municipal legislation.

(e) A proposition or question.

ORS 254.005 provides de�nitions for statutes pertaining to elections.

ORS 254.005(6) states:

(6) "Measure" includes any of the following submitted to the people fortheir approval or rejection at an election:

(a) A proposed law.

(b) An Act or part of an Act of the Legislative Assembly.

48

(c) A revision of or amendment to the Oregon Constitution.

(d) Local, special or municipal legislation.

(e) A proposition or question.

The 1979 Legislature enacted the substance of both of these statutes; the

1983 Legislature added the subdivision structure. The leading case applying

these statutes is City of Eugene v. Roberts, 305 Or 641, 756 P2d 630 (1988),

which disquali�ed an "advisory" proposition from the ballot but only because

it failed to comply with this ORS 254.145(6) requirement:26

The Ballot shall be printed to give the elector a clear opportunity todesignate the elector�s choice for candidates and approval orrejection of measures submitted.

The Court concluded that "the item here does not permit �approval or

rejection.� It permits �approval or approval.�" Id., 305 Or at 632.

The ballot question for the second item asked city voters, "Whichnuclear-free zone ordinance should the Eugene City Council adopt?"Thereafter, the ballot explanation described two proposedordinances. The voters were asked to choose one of the twoordinances. Rejection of either or both was not an option.

Id., 305 Or at 643. Apart from the "no rejection" structure of the measure, it

was deemed a measure appropriate for the ballot.

There is nothing about the word "advisory" that makes a questionsomething other than a "proposition or question," and thereforesomething other than a "measure" within the statutory de�nition.

City of Eugene v. Roberts, 91 OrApp 1, 8, 756 P2d 643 (1988), affirmed,

305 Or 641, 756 P2d 630 (1988).

26. Later renumbered to ORS 254.145(8).

49

Here, IP 5 is to be presented to voters for approval or rejection. It

matters not, under Oregon law, whether it is "advisory," although we have

shown that it most certainly is not.

33 Or Op Atty Gen 428 (1967) concluded that "the legislature could

place on a ballot a question concerning American foreign policy in Vietnam,"

even though such a question would be entirely advisory and without

substantive effect, as "foreign policy is determined exclusively by the Federal

Government." If the sitting Legislature can place such an advisory measure on

the ballot, so can the people using the initiative power. See pages 52-55,

post.

Thus, Oregon statutes expressly do not require that a proposed initiative

constitute a proposed "law" but instead include "a proposition or question" as

an acceptable initiative. ORS 250.005(3); ORS 254.005(6). Defendant has

not denied that the Legislature has authority under Oregon Constitution,

Article IV, § 1(4)(b) and Article II, § 8, to enact those statutes, as it has

authority to adopt laws regarding initiatives and to "enact laws to support the

privilege of free suffrage, prescribing the manner of regulating, and

conducting elections." Id.. While the Legislature cannot adopt laws to impair

the initiative power, there appears no impediment to laws which expand or

enhance it. Stevens v. Benson, 50 Or 269, 274, 91 P 577, 578 (1907); State

ex rel. McPherson v. Snell, supra, 168 Or at 160-61;

Campbell/Campf/Collins, 265 Or 82, 87-88, 506 P2d 163 (1973). And the

Oregon Constitution and statutes are to be construed liberally in order to

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50

facilitate the use of the initiative power by the people of Oregon, as

established at pages 7-8, ante.

Defendants� Answering Brief (pp. 22-24) contends that the statutory

de�nition of "measure" is irrelevant. But Oregon statutes use the term

"measure" to incorporate the term "initiative". See ORS 250.035 ("measure *

* * to be initiated"); ORS 250.041; ORS 250.043(2)(b); ORS 250.044(1)

("measure initiated by the people"); 250.045(1) ("petition to initiate or refer a

state measure"); 250.045(5) ("state measure to be initiated"); and so on. And,

according to Kerr, supra, 193 OrApp at 314:

Current phrasing of Article IV likewise suggests that the term"measure" does not have a meaning distinct from a proposed "law."

Kerr further equated "measure" with "proposed law" under Article IV.

That wording--requiring publication of the full text of the proposed"measure "--stands in contrast to the current wording, adopted in1968, which requires publication of the proposed "law."

That difference in wording could indicate a difference in meaning.Prior construction of the term "measure," however, suggests that nosuch difference in meaning was intended.

Kerr, supra, 193 OrApp at 312-13 (citations omitted).

Further, Christ v. Myers, 339 Or 494, 499, 123 P3d 271 (2005), used the

ORS 250.005 de�nition of "measure" in interpreting the meaning of Article

IV. Previously, City of Eugene v Roberts, supra, 305 at 646, stated:

We agree with the Court of Appeals and defendants that whether anitem quali�es for the ballot is a question of statute.

51

e. THE OREGON CONSTITUTION DECLARES THATTHE PEOPLE USING THE INITIATIVE PROCESSARE THE "LEGISLATURE."

The CoA Opinion concludes that an Article V ACC can be done only by

a "Legislature" of a state. But in Oregon, the people using the initiative

power are already deemed to be the "Legislature" on a basis equal to that of

the sitting Legislature.

The Oregon Constitution, Article II, § 18(8), has since 1908 stipulated

that, whenever the Oregon Constitution refers to the "Legislative Assembly,"

it means also the people using the initiative power.

But the words, the legislative assembly shall provide, or any similaror equivalent words in this constitution or any amendment thereto,shall not be construed to grant to the legislative assembly anyexclusive power of lawmaking nor in any way to limit the initiativeand referendum powers reserved by the people.

Thus, in Oregon the "Legislature" is either the sitting Legislature or the

people using the initiative power--on an equal basis. In Oregon law,

reference to the "legislative assembly * * * or any similar or equivalent

words" is deemed to include the people using the initiative power.

Meyer v. Bradbury, 341 Or 288, 299-300, 142 P3d 1031 (2006), even

without reference to Article II, § 18(8), concluded:

Although two distinct entities may, indeed, enact laws in this state,the source of all legislative power is the people, and that power isexercised through a single legislative department. As this court putthe matter long ago:

"By the adoption of the initiative and referendum into ourconstitution, the legislative department of the State isdivided into two separate and distinct lawmaking bodies.There remains, however, as formerly, but one legislativedepartment of the State. It operates, it is true, differently

52

than before--one method by the enactment of lawsdirectly, through that source of all legislative power, thepeople; and the other, as formerly, by their representatives[.]"

Straw v. Harris, 54 Or 424, 430-31, 103 P 777 (1909) (emphasisadded). As a result, although two lawmaking bodies--the legislatureand the people--exist, their "exercise of the legislative powers arecoequal and co-ordinate." State ex rel. Carson v. Kozer, 126 Or641, 644, 270 P 513 (1928) * * *.

If the sitting Legislature can perform a function under the Oregon

Constitution, so can the people using the initiative power. Both have plenary

power.

In the absence of any identi�ed limitation on the legislature�sauthority to enact ORS 254.555, petitioner�s argument fails. SeeMacPherson v. DAS, 340 Or 117, 127, 130 P3d 308 (2006) (statelegislature has plenary power to enact statutes unless limited by thestate constitution or federal law).

Towers v. Myers, 341 Or 357, 363, 142 P3d 1040 (2006). MacPherson v.

DAS, 340 Or 117, 127-28 130 P3d 308 (2006), stated:

In Oregon, the Legislative Assembly and the people, acting throughthe initiative or referendum processes, share in exercising legislativepower. See Or Const., Art. IV, §§ 1(1), (2)(a), (3)(a) (vesting inboth bodies the power to propose, enact, and reject laws).Respecting the nature of that power, this court previously hasexplained that

"[p]lenary power in the legislature, for all purposes ofcivil government, is the rule, and a prohibition to exercisea particular power is an exception. It, therefore, iscompetent for the legislature to enact any law notforbidden by the constitution or delegated to the federalgovernment or prohibited by the constitution of the UnitedStates."

Jory v. Martin, 153 Or 278, 285, 56 P2d 1093 (1936). Thus, limitationson legislative power must be grounded in speci�c provisions of eitherthe state or federal constitutions. See, e.g., State v. Hirsch/Friend, 338Or 622, 639, 114 P3d 1104 (2005) ("any constitutional limitations on the

53

state�s actions must be found within the language or history of theconstitution itself" (internal quotation marks and citation omitted)).

Plaintiffs argue that constitutional limits on legislative power neednot be express, but can be implied. We agree with that generalproposition. As this court previously has stated:

"Our constitution, like all other state constitutions, is notto be regarded as a grant of power, but rather a limitationupon the powers of the legislature. The people[,] inadopting it, committed to the legislature the whole lawmaking power of the state, which they did not expresslyor impliedly withhold."

Wright v. Blue Mt. Hospital Dist., 214 Or 141, 144-45, 328 P2d314 (1958) (emphasis added). However, even implied limitationsmust �nd their source in some constitutional provision. That is sobecause, "without such a con�ict with a written constitutionalprovision, there is no basis for any general judicial power toinvalidate a law if it is �bad� enough." Hans Linde, Without "DueProcess: Unconstitutional Law in Oregon," 49 OR L REV 125, 130(1970).

The contention that an Article V ACC cannot be accomplished by

initiative in Oregon is thus tantamount to saying that an Article V ACC

cannot be accomplished in Oregon at all, which is contrary to Article V of the

U.S. Constitution. As a matter of federal constitutional law, the State of

Oregon must have the power to adopt an Article V ACC. And, if the sitting

Legislature has that power, so do the people using the initiative.

Most of the discussion (Defendant�s Answering Brief, pp. 6-7) about

legislative authority, including Herbring, is about the referendum power, not

the initiative power. The referendum power does not provide the voters with

power co-equal to that of the sitting Legislature, because it depends upon the

Legislature itself to �rst take action (pass a bill).

54

4. THE RATIONALES ADOPTED BY THE CIRCUITCOURT ARE ERRONEOUS.

This Court should not rely upon to the Circuit Court�s Letter Opinion,

which was comprised of a series of erroneous conclusions.

The Circuit Court Letter Opinion claimed to adopt a rationale different

from the Hawke v. Smith misreading (described above) stated in the Attorney

General�s advice to Defendant and in Defendant�s Motion, stating (p. 2,

ER-16):

The issues presented on plaintiffs� First Claim for Relief are: (1)whether the Secretary of State�s pre-election review properlyincludes review for whether a prospective initiative petitionproposes a law or constitutional amendment; and (2) whether IP 5�sapplication for a constitutional convention constitutes a proposal fora "law" under Article IV, Section 1(2)(a). (The issue not presentedis whether IP 5, if adopted, would be a valid "application" underArticle V of the United States Constitution. That goes to thesubstantive validity of IP 5, which all agree is not properly a matterfor pre-election review.)

In fact, as shown below, the Circuit Court Letter Opinion�s rationale also

depends upon misreading of Hawke v. Smith and con�ation of an initiative

with an attempted referendum on a joint resolution adopted by the Oregon

Legislature.

The Circuit Court Letter Opinion, pp. 3-4 (ER-17-18), relied on

Herbring v. Brown, 92 Or 176, 180 P 328 (1919):

Turning to the merits of that question, IP 5 clearly and withoutdispute does not itself propose a constitutional amendment. Thesole issue is whether, by proposing an "application" for aconstitutional convention, IP 5 proposes a "law."

The "application" proposed by IP 5 is similar in form to whatone might familiarly expect a "law" to look like. It recites itsanimating concerns, then states affirmatively and mandatorily the

55

action taken. If adopted, IP 5 would be binding and effective--tothe extent it may be substantively valid under Article V--givingOregon�s assent to a constitutional convention on the speci�edmatters. On the other hand, it may be argued that an "application"is a mere expression of will, with speculative legal effect. If theCourt were writing on a blank slate, the issue might be close.

But the Supreme Court has again provided clear guidance inHerbring. There, the Legislative Assembly voted--in exercise of itsArticle V authority--to ratify the 18th Amendment. The petitionersought a referendum to force a vote of the people-in exercise ofpurported Article IV authority--to nullify the legislature�srati�cation.

The Attorney General concluded that exercise of thelegislature�s authority under Article V of the federal constitutionwas not a lawmaking function subject to the referendum, and theOregon Supreme Court agreed. It concluded that rati�cation of aproposed amendment under Article V was in the nature of aresolution, not an "act." That precedent is closely analogous here.No less than the Article V "rati�cation" authority, the legislature�sArticle V "application" authority is in the nature of a resolution ofthe legislature�s will. Moreover, the reserved power to initiate a"law" would seem no broader than the reserved power to refer an"act." This Court sees no principled distinction on either point.

As a matter of law, the Secretary of State properly exercisedher authority in determining that IP 5 does not qualify as a"proposed law" eligible for submission as an initiative petition.

Note that the Circuit Court�s rationale itself depends upon the issue that

the Circuit Court Letter Opinion states was not presented in this case:

whether IP 5 (an initiative) would be a proper legislative function under

Article V of the U.S. Constitution. That is the issue that Plaintiffs addressed

at length in Plaintiffs� Response (pp. 10-15) (ER-22-27) and which

Defendant�s Reply re Motion (ER-1-2) then abandoned. But the Circuit Court

Letter Opinion entirely disregards the distinction between a legislative

function (Article V ACC) and a non-legislative function (rati�cation of a

--

56

constitutional amendment) con�rmed by Arizona IRC and discussed at pages

17-20, 24-25, ante.

Thus, the Circuit Court Letter Opinion (ER-17-18) actually relied upon a

rationale that was raised by Defendant�s Motion, refuted by Plaintiffs,

expressly abandoned by Defendant�s Reply re Motion, and even affirmatively

disavowed earlier in the same Circuit Court Letter Opinion (ER-16).

a. AN INITIATIVE TO ADOPT AN ARTICLE VCONVENTION CALL IS NOT "A MEREEXPRESSION OF WILL WITH SPECULATIVELEGAL EFFECT."

The Circuit Court Letter Opinion (pp. 3-4, ER-16-17):

On the other hand, it may be argued that an "application" is a mereexpression of will, with speculative legal effect. If the Court werewriting on a blank slate, the issue might be close.

But the Supreme Court has again provided clear guidance inHerbring. * * *

* * * It concluded that rati�cation of a proposed amendmentunder Article V was in the nature of a resolution, not an "act." Thatprecedent is closely analogous here. No less than the Article V"rati�cation" authority, the legislature�s Article V "application"authority is in the nature of a resolution of the legislature�s will.Moreover, the reserved power to initiate a "law" would seem nobroader than the reserved power to refer an "act." This Court seesno principled distinction on either point.

First, the Circuit Court Letter Opinion reneges on its own conclusion (p.

2, ER-15) that "The issue not presented is whether IP 5, if adopted, would be

a valid �application� under Article V of the United States Constitution." But

the Circuit Court Letter Opinion then reverses course and decides that IP 5 is

"a mere expression of will, with speculative legal effect," speci�cally because

57

of Herbring. Of course, Herbring in no way overrides the controlling federal

authority regarding the meaning of "Legislature" in the U.S. Constitution, as

discussed at pages 17-20, 24-25, ante.

Second, the Circuit Court Letter Opinion errs in suddenly (and without

reasoning) placing IP 5 in the same category as an attempted referendum on a

joint resolution of the Oregon Legislature ratifying a federal constitutional

amendment. Herbring concluded that Oregon voters could not have a

referendum on a resolution (adopted by the sitting Legislature) to ratify the

18th Amendment to the U.S. Constitution, because rati�cation of a federal

constitutional amendment was not an "Act" by the Legislature. That is

entirely consistent with the later U.S. Supreme Court decisions in Hawke v.

Smith, supra, and Arizona IRC, supra, that rati�cation of a federal

constitutional amendment is not a "legislative" function. It is also consistent

with the conclusions those cases and others (including Davis v. Hildebrant ,

supra, and Smiley v. Holm, supra) that people using the initiative power can

perform "legislative" functions assigned in the U.S. Constitution to state

"Legislatures."

The Circuit Court Letter Opinion (p. 4, ER-18) states:

No less than the Article V "rati�cation" authority, the legislature�sArticle V "application" authority is in the nature of a resolution ofthe legislature�s will.

First, the Circuit Court Letter Opinion offers no reasoning at all for this

conclusion. Second, it is contradicted by the admission of Defendant and the

Circuit Court Letter Opinion itself (p. 2) that the issue of the effectiveness of

58

IP 5 as a federally valid Article V ACC was not contested. Third, Plaintiff �s

Response (pp. 10-15, ER-22-27) showed conclusively that an Article V ACC

is a substantive act of legislation.

5. SECOND CLAIM FOR RELIEF: VIOLATION OFCONSTITUTIONAL RIGHTS OTHER THAN ARTICLEIV, § 1, OF THE OREGON CONSTITUTION.

a. ARTICLE I, §§ 8 AND 26.

Plaintiffs� Complaint (ER-6) stated:

Defendant�s refusal to provide a certi�ed ballot title for IP2016-005 violates the rights of Plaintiffs and all Oregon electorsunder Oregon Constitution Article I, Sections 1, 8 and 26; ArticleII, Section 18(8); and Article XVII, Section 1.

Gathering signatures and pursuing enactment of an initiative is core activity

protected by Article I, §§ 8 and 26 (speech; assembling to consult for the

common good and applying to the Legislature for redress of grievances,

including the Legislature consisting of the people using the initiative power).

Defendant�s Motion (pp. 15-16) regarding this claim depended upon its

contention that IP 5 did not propose a "law," which is disproved above. The

Circuit Court Letter Opinion (ER-16) granted dismissal of this claim with no

discussion whatever, apart from "The Court �nds no merit in those

contentions." Such a bare, unsupported conclusion is insufficient. Creager v.

Berger, 97 OrApp 338, 341, 775 P2d 913 (1989). It also provides no basis

for refutation. The CoA Opinion also did not address this claim.

59

b. ARTICLE I, § 1; ARTICLE II, § 18(8)8.

Article I, § 1, states:

Natural rights inherent in people. We declare that all men, whenthey form a social compact are equal in right: that all power isinherent in the people, and all free governments are founded ontheir authority, and instituted for their peace, safety, and happiness;and they have at all times a right to alter, reform, or abolish thegovernment in such manner as they may think proper.

Refusing to allow circulation of a properly formed initiative contradicts the

above-stated natural rights, including the right to "alter, reform, or abolish the

government." The Complaint sufficiently stated the claim.

As for Article II, § 18(8), as set forth at page 52, ante, Defendant�s

position does "grant to the legislative assembly an[y] exclusive power of

lawmaking" by claiming that only the sitting Legislature can submit an Article

V Application for Constitutional Convention. The CoA Opinion also violates

Article II, § 18(8), by "limit[ing] the initiative and referendum powers

reserved by the people." The Complaint sufficiently stated the claim.

Defendant offers an incorrect claim that Article II, § 18(8) "has to do with the

recall authority." By its clear terms, it applies to the entire Oregon

Constitution. See pages 52-55, ante.

The Circuit Court Letter Opinion (ER-16) dismissed these claims with no

stated �ndings or reasoning. The CoA Opinion did not address these

provisions.

60

III. SECOND ASSIGNMENT OF ERROR: THE CIRCUIT COURTAND COURT OF APPEALS ERRED IN DISMISSING THE THIRDCLAIM FOR RELIEF: INTERFERENCE WITH RIGHTSGUARANTEED BY FIRST AMENDMENT OF U.S.CONSTITUTION.


The CoA Opinion disregarded this claim. The Circuit Court Letter

Opinion (ER-16) dismissed it with no stated �ndings or reasoning.


Plaintiffs preserved error by responding to all aspects of Defendant�s

Motion, arguing the motion at the Circuit Court�s hearing on January 27,

2015, assisted by their Hearing Exhibit (ER-35-40), and by brie�ng and

arguing all aspects of the case to the Court of Appeals in Harisay v. Atkins.

The Third Claim for Relief was discussed in the Plaintiffs� Opening Brief to

CoA (pp. 27-37) and furthered in the Reply Brief of Plaintiffs-Appellants to

CoA (pp. 15-20).


See pages 7-8 ante.

D. ARGUMENT.


Defendant�s refusal to provide a certi�ed ballot title for IP2016-005 violates the rights of Plaintiffs and all Oregon electorsunder the First Amendment of the United States Constitution.

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Defendant incorrectly claimed that the First Amendment does not apply

to those seeking to use the initiative process, incorrectly paraphrasing Meyer

v. Grant, 486 US 414, 424-25 (1988), for the proposition that "states have the

power to ban initiatives entirely." Defendant�s Answering Brief, p. 26).

Meyer v. Grant acknowledged that the State of Colorado was claiming such

power , relying by analogy to a (since-abrogated) decision upholding a ban on

casino advertisements,27 but the Court found "That reliance is misplaced."

486 US at 424.

Relevant here, Meyer v. Grant held that, when a state establishes the

initiative process, it cannot impose burdens on that speech that are not

narrowly tailored to achieve a compelling state interest. The Court held that a

statute banning the use of paid petition circulators and imposing upon them

various requirements "trenches upon an area in which the importance of First

Amendment protections is �at its zenith� and concluded that the burden of

justifying that law "is well-nigh insurmountable." Meyer v. Grant, 486 US at

425.

Buckley v. American Constitutional Law Foundation, Inc. (" ACLF"),

525 US 182, 119 SCt 636 (1999), requires courts to be "vigilant" to "guard

against undue hindrances to political conversations and the exchange of

ideas." Id. at 192, 119 SCt 636. ACLF, 525 US at 194-96, held that

27. Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478US 328, 106 SCt 2968 (1986), abrogated for its faulty First Amendmentanalysis. 44 Liquormart, Inc. v. Rhode Island, 517 US 484, 510, 116 SCt 1495, 1511 (1996).

62

Colorado statutes unconstitutionally limited the available pool of people

willing to circulate petitions, thus constraining petitioners� "political thought

and expression." The Court concluded that a state law severely burdens

speech protected by the First Amendment when it impairs the collection of

petition signatures.

The requirement that circulators be not merely voter eligible, butregistered voters, it is scarcely debatable given the uncontestednumbers, see supra, at 642-643, and n.15, decreases the pool ofpotential circulators as certainly as that pool is decreased by theprohibition of payment to circulators. Both provisions "limi[t] thenumber of voices who will convey [the initiative proponents�]message" and, consequently, cut down "the size of the audience[proponents] can reach." Meyer, 486 US, at 422, 423, 108 SCt1886; see Bernbeck v. Moore, 126 F3d 1114, 1116 (CA 8 1997)(quoting Meyer); see also Meyer, 486 US, at 423, 108 SCt 1886(stating, further, that the challenged restriction reduced the chancesthat initiative proponents would gather signatures sufficient innumber to qualify for the ballot, and thus limited proponents�"ability to make the matter the focus of statewide discussion").

ACLF, 525 US 182, 119 SCt 636, 643-44.

Defendant�s decision allows no one to circulate IP 5 at all--a far greater

burden than merely decreasing the pool of potential circulators or cutting

down the size of the audience proponents can reach. Thus, Defendant under

First Amendment law must prove that her action in banning circulation of IP

5 is narrowly tailored to achieve a compelling state interest. She has not even

identi�ed any state interest.

"Petition circulation is core political speech because it involves

interactive communication concerning political change." ACLF, supra, 525

US at 186 (citation omitted). It "of necessity involves both the expression of

a desire for political change and a discussion of the merits of the proposed

63

change." Meyer v. Grant, 486 US at 421. See Nevada Com�n on Ethics v.

Carrigan, 131 SCt 2343, 2351 (2011) (petition signing is "core political

speech" and "an inherently expressive act").

IV. THIRD ASSIGNMENT OF ERROR: THE CIRCUIT COURT ANDCOURT OF APPEALS ERRED IN DISMISSING THE FOURTHCLAIM FOR RELIEF: INTERFERENCE WITH RIGHTSGUARANTEED BY FIFTH AND FOURTEENTH AMENDMENTSOF U.S. CONSTITUTION.


The CoA Opinion disregarded this claim. The Circuit Court Letter

Opinion (ER-17) dismissed this claim with these sentences:

Plaintiffs� Fourth Claim for Relief maintains that the Secretaryof State�s procedures in this case were inadequate under the 14thAmendment�s Due Process Clause. The Court does not discernproperty or liberty interests held by the plaintiffs in the process thatthe petition triggers. Any interest plaintiffs do hold--mostparticularly, a shared and common interest in the integrity of ourelectoral processes--is vindicated by the procedures provided,including the provision for expedited judicial review.


The Fourth Claim for Relief was discussed in Plaintiffs� Response (pp.

22-27), Plaintiffs� Opening Brief to CoA (ER-31-33), and Reply Brief of

Plaintiffs-Appellants to CoA (p. 17).


See pages 7-8 ante.

64

D. ARGUMENT.


Defendant�s process for determining whether an initiative petitioncomplies with constitutional procedural requirements denies fundamentalfairness and due process to Chief Petitioners, as it allows the �lings ofcomments with no opportunity for response.

Here, Defendant�s "process" is merely to accept one round of comments

regarding a proposed initiative�s compliance with constitutional procedural

requirements. That means opponents can and do �le their comments at the

last possible moment, which precludes Chief Petitioners and others from

offering any response to those comments. Here, for example, the comments

of Ben Unger, which Defendant effectively adopted in refusing to allow

circulation of IP 5, were �led less than one hour before the end of the 10-day

comment period. This one-sided comment process violates due process.

"Due process requires the opportunity to be heard at a meaningfultime and in a meaningful manner. Mathews v. Eldridge, 424 US319, 333, 96 SCt 893, 47 LEd2d 18 (1976) (internal quotationmarks omitted). In addition, when important governmental decisionsare based on determinations of fact, due process usually requires anopportunity to confront and cross-examine adverse witnesses.Goldberg v. Kelly, 397 US 254, 269, 90 SCt 1011, 25 LEd2d 287(1970).

Cole/Dinsmore v. Driver and Motor Vehicle Services Branch, 336 Or 565,

558, 87 P3d 1120 (2004).28

28. Plaintiff �s Due Process rights under the United States Constitution areparallelled by their "due course of law" rights under Article I, § 10, of theOregon Constitution. Carr v. SAIF Corp., 65 OrApp 110, 670 P2d 1037(1983), review dismissed, 297 Or 83, 679 P2d 1368 (1984), states:

(continued...)

65

Oregon recognizes that due process standards depend upon the tests set

out in Mathews v. Eldridge, 424 US 319, 96 SCt 893, 47 LEd2d 18 (1976).

Floyd v. Motor Vehicles Division, 27 OrApp 41, 45, 554 P2d 1024 (1976).

"[O]nce it is determined that the Due Process Clause applies, the question

remains what process is due." Cleveland Bd of Education v. Loudermill,

supra, 470 US 532, 541, 105 SCt 1487 (1985), quoting Morrissey v. Brewer,

408 US 471, 481, 92 SCt 2593, 33 LEd2d 484 (1972). Mathews provides

three factors relevant for federal due process. 424 US at 335, 96 SCt 893.

"Whether a process is meaningful under the Due Process Clause turns on the

three Mathews factors." Koskela v. Willamette Industries, Inc., 331 Or 362,

378, 15 P3d 548 (2000). The factors are: (1) the private interest at stake; (2)

whether the process adequately safeguards from an erroneous deprivation and

the probable value, if any, of added or substitute procedural safeguards; and

(3) the state�s interest and the cost of added procedural safeguards. 424 US at

335, 96 SCt 893.

Plaintiffs� Response (pp. 24-25, ER-30-31) shows the applicability of the

three Mathews factors to Plaintiffs� rights.

Defendant�s Motion on this claim consisted of stating that the Secretary�s

process allows responses to comments but only in the form of obtaining

28.(...continued)The procedural due process protection of the "due course of law"provision is essentially the same as that of the FourteenthAmendment. Tupper v. Fairview Hospital, 276 Or 657, 664 n. 2,556 P2d 1340 (1977).

Carr v. SAIF Corp., 65 OrApp at 114-15.

66

judicial review. The existence of judicial review does not nullify due process

defects in administrative processes. Post-decision noti�cation does not satisfy

the Due Process Clause, as it provides no opportunity to be heard (among

other defects).

As a matter of procedural due process, it is well established that thestate may not deprive a person of life, liberty, or property without"notice and opportunity for hearing appropriate to the nature of thecase." Mullane v. Central Hanover Bank & Tr. Co., 339 US 306,313, 70 SCt 652, 94 LEd 865 (1950). An appropriate hearing isone that is provided "at a meaningful time and in a meaningfulmanner." Armstrong v. Manzo, 380 US 545, 552, 85 SCt 1187, 14LEd2d 62 (1965); see State ex rel Juv. Dept. v. Geist, 310 Or 176,189-90, 796 P2d 1193 (1990) (so stating). The opportunity to beheard must be tailored to the capacities and circumstances of thosewho are to be heard. Goldberg, 397 US at 269, 90 SCt 1011.

Koskela v. Willamette Indus., Inc., 331 Or 362, 378, 15 P3d 548 (2000).

"Whether a process is meaningful under the Due Process Clause turns on the

three Mathews factors." Id., 331 Or at 378. The Court in Koskela found that

the hearing process was insufficient because it did not include a pre-decision

oral hearing. Here, the Secretary of State afforded the Chief Petitioners with

no hearing whatever.

Carr v. SAIF Corp., 65 OrApp 110, 124, 670 P2d 1037 (1983), review

dismissed, 297 Or 83, 679 P2d 1368 (1984), found Due Process to be

violated, despite the fact that the claimant had a right to a post-determination

evidentiary hearing and re-determination. Nor does the availability of

post-decision judicial review cure the Due Process de�ciencies. Doe v.

Gallinot, 657 F2d 1017 (9th Cir 1981); Clements v Airport Auth. of Washoe

67

Cty, 69 F3d 321, 33-34 (9th Cir 1995). This is particularly true here, in light

of Defendant�s contention that the courts do not have authority to order the

Secretary to certify IP 5 for circulation, should Plaintiffs prevail in this case.

While Plaintiffs assert that such a limitation on their ability to obtain redress

interferes with their constitutional rights, if Defendant is correct, then the only

possible procedural safeguards must be accorded prior to her determination,

since judicial review almost certainly will extend beyond the end of the

signature gathering period for the current election cycle.

The Circuit Court Letter Opinion (ER-17) failed to discern property or

liberty interests held by Plaintiffs, even though those exact interests were

established in Plaintiffs� Response (pp. 24-25, ER-30-31), without refutation

by Defendant:

Oregon considers the right to collect and submit signatures oninitiative petitions to be the personal right of the Chief Petitioners.Defendant will not accept signatures submitted by anyone other thanthe Chief Petitioners or their officially designated agents. STATEINITIATIVE AND REFERENDUM MANUAL (2014), pp. 9, 11, 12, 15,27, 29. If the original Chief Petitioner on a proposed initiative dies,the initiative dies with her, even if all the necessary signatures havebeen collected but have not yet been submitted for veri�cation.Chief Petitioners can also choose not to submit signatures alreadygathered. In effect, they own the signatures.

Oregon treats the opportunity to qualify the initiative for the ballotas a property interest that belongs only to the Chief Petitioners.Thus, the interest at stake is thus both a property interest of theChief Petitioners and their rights to use the initiative processwithout impairment by restrictions not narrowly tailored to achievea compelling state interest.

68

V. FOURTH ASSIGNMENT OF ERROR: THE CIRCUIT COURTAND COURT OF APPEALS ERRED IN DISREGARDINGADDITIONAL FUNDAMENTAL LEGAL ERRORS OFDEFENDANT.


The CoA Opinion disregarded these issues. The Circuit Court Letter

Opinion (ER-17) addressed one of them:

Similarly, the Court concludes that plaintiffs had no entitlement to acontested case.


These issues were discussed in Plaintiffs� Response (pp. 26-27),

Plaintiffs� Opening Brief to CoA (ER-34-37), and Reply Brief of

Plaintiffs-Appellants to CoA (pp. 17-20).


See pages 7-8 ante.

D. ARGUMENT.

1. PLAINTIFFS WERE ENTITLED TO, BUT DID NOTRECEIVE, A CONTESTED CASE HEARING.

Plaintiffs� Response (pp. 26-27) showed that Plaintiffs were entitled to a

contested case hearing on whether to approve IP 5 for circulation.

"Contested case" is de�ned at ORS 183.310(2)(a). Thisproceeding quali�es under subsections (A), (B), and (C). At anabsolute minimum, Defendant was deciding "to suspend or revoke aright or privilege of a person" and for the "suspension, revocation orrefusal to renew or issue a license." The "right of privilege of aperson" that Defendant revoked was the right or privilege to gathersignatures on an initiative petition. Defendant refused to issue what

69

amounts to a license to gather and submit initiative petitionsignatures.

As noted in Oregon Environmental Council v. Oregon StateBd. of Education, 307 Or 30, 39, 761 P2d 1322 (1988):

If petitioners were seeking access to expressive material,their claim of constitutional right might have force. SeeVa. Pharmacy Bd. v. Va. Consumer Council, 425 US748, 96 SCt 1817, 48 LEd2d 346 (1976) (holding thatconsumers may assert their First Amendment protectionsagainst a state licensing board�s rule prohibitingpharmacists from advertising the price of prescriptiondrugs); see also Board of Education v. Pico, 457 US 853,861-62, 102 SCt 2799, 73 LEd2d 435 (1982) (a pluralityof the Supreme Court prohibited a school board frombanning books from a public school library, �nding theban violative of the students� constitutional right toreceive information). * * *

Even in the absence of constitutional or statutoryindividual rights, a "refusal to * * * issue a license" is anindependent basis for a contested case hearing, upon theapplicant�s demand. ORS 183.310(2)(a)(C).

Here, Plaintiffs were seeking to exercise their free speech rights under the

First Amendment, which applies "at its zenith" to the pursuit of IP 5 by Chief

Petitioners. Their demand for a license was their submittal of the prospective

petition with sufficient sponsorship petitions.

2. DEFENDANT FAILED TO PROVIDE REASONING FORHER DECISION.

As noted at page 11, ante, the Secretary�s decision that IP 5 "does not

comply with the procedural constitutional requirements" stated no reasons.

Her note that she had received advice from the Attorney General does not

amount to stating reasoning for a decision. The note does not incorporate the

70

Attorney General�s letter nor adopt its reasoning. Defendant�s decision is thus

invalid for lack of a stated rationale.

Even where an Oregon statute does not require an agency to state

�ndings and conclusions, an agency decision must satisfy the "substantial

reason requirement" by providing

"some kind of an explanation connecting the facts of the case(which would include the facts found, if any) and the resultreached." Martin [v. Board of Parole], 327 Or at 157, 957 P2d1210.

Jenkins v. Board of Parole, 356 Or 186, 200, 335 P3d 828 (2014). "[T]he

substantial reason requirement is part of the substantial evidence standard of

review." Id., 356 Or at 201. Accord, Fuller v. Dept. Public Safety Standards

and Training, 299 OrApp 403, 413 (2019). That standard of review applies

both in contested cases and non-contested cases, such as how this one was

handled by the agency. ORS 183.484(5)(c).

At best, Defendant�s decision could be said to rest upon the rationale in

the Attorney General�s letter. As noted below, Defendant then abandoned

that rationale at the Circuit Court, which upheld Defendant�s decision on the

basis of a new rationale.

Knotts v. Psychiatric Security Review Board, 250 OrApp 448, 455, 280

P3d 1030 (2012) ("Knotts"), con�rmed that agency orders must be evaluated

on the basis of their stated rationales. An agency is not allowed to defend a

decision by repudiating its only stated rationale and substituting new ones

during appeal. Drew v. PSRB, 322 Or 491, 909 P2d 1211 (1996). "In all

71

events, however, our review is limited to the Board�s stated rationale." SAIF

Corp. v. Alton, 171 OrApp 491, 502, 16 P3d 5253 (2000).

3. CIRCUIT COURT ERRED IN ALLOWING DEFENDANTTO INTRODUCE NEW RATIONALES IN HER REPLYMEMORANDUM.

As noted at pages 11-12, ante, Defendant�s decision noted that she had

received advice from the Attorney General. That advice was premised upon

the incorrect conclusion that Hawke v. Smith prohibited use of the initiative

power to adopt an Article V ACC. See pages 11-13 ante. Defendant pursued

that same rationale in Defendant�s Motion, pp. 5-6:

An application for a constitutional convention is a creature of theFederal Constitution. Article V of the United States Constitutionsets forth the process for amending the United States Constitution. ** * Multiple courts have held that only state legislatures, not thepeople acting through their initiative and referendum powers, maymake these applications or ratify proposed amendments underArticle V. See, e.g., Hawke v. Smith, 253 US 221, 227-231 (1920)(Article V prohibits a state to allow a referendum on rati�cation ofan amendment under Article V) * * *.

Defendant�s Motion (pp. 9-10) claimed that IP 5 did not propose a "law,"

only because of her contention that only a sitting legislature can adopt an

Article V Convention Call, again relying upon Hawke v. Smith. Then

Defendant�s Motion (pp. 10-14) argued that, because an initiative purporting

to be an Article V Convention Call would not be effective (because of Hawke

v. Smith), IP 5 was actually a sort of nonbinding resolution. All of the

rationales in Defendant�s Motion depended upon the conclusion that IP 5

would not be an effective Article V ACC under the U.S. Constitution.

72

Defendant Secretary then abandoned her argument based on Hawke v.

Smith in Defendant�s Reply re Motion (Reply ER 1-229) and admitted that

the U.S. Constitution allows a valid and effective Article V ACC to be

accomplished by means of an initiative. See pages 13-14, ante.

The primary rationale later adopted by the Circuit Court Letter Opinion

and then by the CoA Opinion was not the one presented in the Attorney

General�s advice or in Defendant�s Motion. Instead, it was the new rationale

presented for the �rst time in Defendant�s Reply re Motion. This contravenes

the rule that "An issue raised for the �rst time in appellant�s reply brief

generally will not be considered."

We normally will not consider issues raised for the �rst time onappeal in a reply brief, Federal National Mortgage Association v.Goodrich, 275 OrApp 77, 86, 364 P3d 696 (2015), and there is noreason for us to depart from our standard practice here.

City of Troutdale v. Palace Constr. Corp., 293 OrApp 785, 790, 429 P3d

1042 (2018). Accord, Robinson v. Omark Indus., Inc., 291 Or 5, 7, 627 P2d

1263 (1981).

4. DEFENDANT IS WITHOUT AUTHORITY TO EXAMINETHE SUBSTANCE OF A PROPOSED INITIATIVE FORCONSTITUTIONALITY.

Defendant�s decision and the Circuit Court�s Letter Opinion depend on

examining the substance of IP 5 and concluding that it would not be an

29. Reply ER refers to the Reply Excerpt of Record �led in the Court ofAppeals.

73

effective Article V Convention Call but a "mere expression of will, with

speculative legal effect." ER-16. The Court of Appeals concluded likewise:

Rather, what IP 5 undisputedly does is express the will of Oregonvoters for Congress to hold a constitutional convention. In thatway, IP 5 is more akin to a legislative memorial.

295 OrApp at 504.

Initiatives are not to be examined for constitutionality or validity of their

substance by the Secretary of State, prior to enactment. Questions about the

constitutionality or legal effect of a measure cannot form the basis of

pre-election rejection.

In conclusion, plaintiff has articulated no basis on which we canreverse the trial court�s decision to certify the ballot title of theproposed measure. That measure, if approved by the voters, maywell be unconstitutional. It may well be unenforceable. But it iswithin the scope of the initiative power reserved to the people underArticle IV, section 1(5), of the Oregon Constitution.

Boytano v. Fritz, 131 OrApp 466, 886 P2d 31 (1994), affirmed, 321 Or 498,

901 P2d 835 (1995). Even Defendant�s Answering Brief (p. 18) agreed:

The substantive constitutionality or legal effectiveness of a proposedinitiative is not relevant to a pre-election challenge.

Herbring (1919) is not inconsistent with these decisions; it was about

whether joint resolution was an "Act" for purposes of referendum, not

whether anything was a "law" for purposes of initiative.

Oregon law allows pre-election challenges to initiatives only for

compliance with "constitutional procedural requirements." Here, however,

Defendant and the CoA Opinion base their conclusions upon predicting the

consequences of IP 5, claiming that it would have such little effect that it

74

would not be a "law," largely because it would not be a valid Article V ACC

under the U.S. Constitution. That is an evaluation of its substantive federal

constitutionality, which is not allowed as a pre-election challenge in Oregon.

None of the cases cited by Defendant involved any such determination.

The only case cited, Maginnis v. Childs, 284 Or 337, 339, 587 P2d 460

(1978), stated:

Initiative measures must be placed on the ballot for vote. Thatthey may be invalid or ineffective is not grounds for a court orother official to keep them off the ballot. State ex rel. Carson v.Kozer, 126 Or 641, 647, 270 P 513 (1928). It was for this reasonthat we granted the petition for a peremptory writ of mandamus inState ex rel. Umrein v. Heimbigner, City Recorder of Beaverton,September 19, 1978, SC # 25813 (no opinion), and ordered therecorder to put the measure on the ballot. The Court of Appealsfollowed this principle in Barnes v. Paulus, 36 OrApp 327, 332,588 P2d 1120 (1978).

The one exception is if the proposed measure is legallyinsufficient to be placed on the ballot. An example of thisexception is Kays v. McCall, 244 Or 361, 418 P2d 511 (1966), inwhich the petitions for the initiative measure did not have thenumber of supporting certi�ed signatures required by Art. IV, s 1,Oregon Constitution.

In Maginnis v. Childs there was no mention of examining a proposed

initiative to see if it was a valid act under the U.S. Constitution.

Nor does ORS 246.150 authorize Defendant to adopt rules pertaining to

the application of provisions of the Oregon Constitution, which are not

"election laws."30 Her rules affirmatively disregard Oregon�s election laws,

30. ORS 246.150 Rules. The Secretary of State may adopt rules the secretaryconsiders necessary to facilitate and assist in achieving and maintaining amaximum degree of correctness, impartiality and efficiency inadministration of the election laws.

75

which speci�cally state that a measure need not be a "proposed law" but can

instead be a "proposition or question," as explained at pages 48-52, ante.

VI. CONCLUSION.

This Court should:

1. Declare that the Oregon Constitution allows the adoption of a

Article V Application for Constitutional Convention by means

of initiative.

2. Remand this case to the Circuit Court with instructions to

remand to Secretary of State with instructions to allow

circulation of IP 5 or a proposed measure for the 2020 ballot

that is identical to IP 5.

This brief does not discuss the Fifth Claim for Relief: Costs and

Attorney Fees (Complaint ¶¶ 39-43 (ER-7-8)). That issue is to be addressed

following judgment on the merits, pursuant to Rule 68C, ORAP.

Dated: December 9, 2019 Respectfully Submitted,

/s/ Daniel Meek

DANIEL W. MEEKOSB No. 7912410266 SW Lancaster RoadPortland, OR 97219503-293-9021 voice855-280-0488 [email protected]

Attorney for Plaintiffs-Appellants,Petitioners on Review

CERTIFICATE OF COMPLIANCE WITH LENGTH LIMITATIONSAND TYPE SIZE REQUIREMENTS ORAP 5.05

Length of Opening Brief on Merits

I certify that (1) the foregoing Opening Brief complies with the 19,000

word limitation approved by order of the Supreme Court and (2) the word

count of this Opening Brief for elements of text described in ORAP

5.05(1)(a) is 18,875 words as determined by the word-counting function of

Wordperfect 5.1.

Type Size

I certify that the size of the type in this Opening Brief on Merits is not

smaller than 14 point for both the text and footnotes, as required by ORAP

5.05(2)(d)(ii).

Dated: December 9, 2019

/s/ Daniel W. Meek__________________________Daniel W. Meek

CERTIFICATE OF EFILING AND SERVICE

I certify that I �led the original of the foregoing OPENING BRIEF AND

EXCERPT OF RECORD OF PLAINTIFFS-APPELLANTS, PETITIONERS

ON REVIEW by E�le on the State Court Administrator this date and

served it upon the other parties in this case as listed below using the

Court�s e�le system and by conventional email.

Denise FjordbeckShannon ReelOregon Department of Justice1162 Court Street N.E.Salem, OR [email protected]

Dated: December 9, 2019 Respectfully Submitted,

/s/ Daniel Meek

DANIEL W. MEEKOSB No. 7912410949 S.W. 4th AvenuePortland, OR 97219503-293-9021 voice855-280-0488 [email protected]

Attorney forPlainti�s-Appellants,Petitioners on Review

opening brief of plaintiffs-appellants, petitioners on … · v 2. most think political division as...

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