February 01, 2005

The Measure 36 Challenge, Part Three

Still Some More Late-Night Layman's Legal Annotations

Finally, we have the shortest of the three complaints contained within the Basic Rights Oregon lawsuit challenging Measure 36.

In this one, the citation in question is contained within Article IV of the Oregon Constitution -- specifically, section 1(2)(a). You might notice in a moment, however, that the version we just linked to incorrectly duplicates the text of section 1(1) where section 1(2)(a) is supposed to be.

What Article IV, section 1(2)(a) actually says is this: "The people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution and enact or reject them at an election independently of the Legislative Assembly."

Here's what the BRO lawsuit argues: Because the text of Measure 36 uses the phrase "the policy of Oregon", the measure does not quality under "laws and amendments" as mentioned by Article IV, section 1(2)(a), and instead is merely a "statement of policy" and as such an improper and unconstituinal use of the initiative system.

Now, there are two other portions of the Oregon Constitution which use the term "policy" but they are contained in a section which came about as the result of a referral from the Legislature, and not as the result of an initiative.

(But how funny is this, given what we were writing about twnety hours ago: The section in question which uses the word "policy" is related to "property tax limitations on assessed value and rate of tax".)

While we suspect that this particular complaint will get absolutely nowhere, mainly not because of any particular legal know-how on our part because of the face-value sense that the court will laugh in a very annoyed manner at this one. At the same time, sometimes these technical distinctions end up meaning quite a bit.

Nonetheless, we're willing to bet that there is some sort of plain language meaning to the word "policy" that in this context makes it the effective equivalent of a law, and so not in violation of Article IV, section 1(2)(a).

In the end, the lawsuit asks the court to find that Measure 36 violates Article XVII, sections 1 and 2, and Article IV, section 1, of the Oregon Constitution, and for those reasons is void.

As we said already, we think the Article IV, section 1, argument which this post addresses will go absolutely nowhere, which means BRO's case will rest on their other two complaints that Measure 36 revises rather than amends the Oregon Constitution, and that Measure 36 amends more than one portion of the Oregon Constitution.

Of those, we suspect that the latter is where the real meat of this case will be found, regardless of the fact that we believe many of the specific provisions BRO argues are amended by Measure 36 won't stand up in court. But that second complaint contains the most hope.

If, in arguments over that second complaint, BRO can convince the court that just two of their complex list of provisions were effectively amended by the single Measure 36, then Measure 36 may very well be voided.

Before we finish this up, that leads to one final point: It won't end there. When an amendment is declared to be void because it unconstitutionally addressed more than one subject, the Legislature can take up the matter of crafting a proposal which solves that problem. Oddly, if we read things right, they can even do so through, yes, a revision to the Oregon Constitution -- which would allow them to package together all the changes into a single question to put before the voters.

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