Policy Perspective No. 1018
August 2001

Initiative under assault: A power struggle between branches

As the 19th Century drew to a close a group of progressive political reformers in Oregon decided that government did not adequately represent the interests of the people. Thanks to their efforts Oregon became one of the first of many states to adopt a system of direct democracy. One hundred years later, Oregon's Initiative system routinely attracts national interest as it places political hot potatoes in the hands of the first branch of government, the People.

Whether it's death with dignity, tax reform, medical marijuana or (most recently) property rights, Oregonians have shown a willingness to consider controversial issues that, more often than not, reduce the size and influence of government. Unfettered by the pull of professional lobbies, or the strength of certain loud interest groups, Oregon voters are free to consider the merits of a proposal without worrying about who gets offended. For nearly a hundred years, the Initiative has meant one thing: the people are the government in Oregon.

However, a recent line of legal cases suggests that Oregon's dynamic laboratory of democracy has been emasculated. In 1998 the Oregon Supreme Court overturned the "Crime Victims' Bill of Rights" in Armatta v. Kitzhaber. Passed in 1996 as Measure 40, it was submitted to voters as a single package that affected a number of existing constitutional provisions, all loosely tied together under the subject of criminal procedure. It had the effect of ruffling many feathers in the judiciary.

Relying on Article XVII, Sec. 1 of the Oregon Constitution, a provision dormant for 92 years, the Armatta case held that Measure 40 made substantive changes to multiple portions of the constitution that were not closely related. The Armatta Court used this reasoning to throw out Measure 40 under a newly recognized "Separate Vote" test.

This was the first time an Oregon court threw out a voter-approved constitutional amendment. It was also the first time the Court ruled that initiated amendments were subject to the Separate Vote test; the weight of earlier cases, the historical use of the Initiative (and a common sense reading) should have suggested otherwise. Concerns over "constitutional logrolling" convinced the Armatta Court to re-evaluate and re-construe old portions of the constitution, giving the Court a new and powerful check upon the Initiative.

In the wake of the Armatta decision the Oregon Court of Appeals applied this new test on three separate occasions, and in each case existing or proposed amendments were found lacking. This is because the Court of Appeals defined the Separate Vote test in a manner that radically narrowed the possibility of making substantive changes to the constitution. No challenged amendment has yet passed their test.

According to the Court of Appeals, the Separate Vote test holds that substantive changes are not closely related if one proposed change is not "necessarily implied" by another proposed change. The Court then attempts to peer into the mind of the hypothetical voter to determine what sorts of changes "necessarily imply" each other. The result so far, seems to be "none."

Measure 7 overturned

Term limits overturned

The challenge to term limits contends that when the initiative was passed it included several substantive changes that did not necessarily imply one another. The term limits amendment applied to all elected state policy makers: state and federal legislators, the Governor, the Secretary of State and the Treasurer. Because each political office is substantively distinctive, the argument then followed that each office required a separate change that could be weighed differently by a hypothetical voter (e.g., one voter might want to limit only legislators but not the Governor).

This argument carried the day and term limits were thrown out on July 21, 2001, nearly nine years after approval. The judge decided there was no applicable statute of limitations to challenging invalid constitutional amendments. The case will be considered on appeal by the Oregon Supreme Court this fall.

A constitution covered in question marks

The Supreme Court has to face tough issues. It is in this mess, in large part, because it overreached in developing the Separate Vote test. As defined in Armatta, the Separate Vote test gave the high court a great deal of flexibility in deciding which measures passed and which failed. Because the Armatta interpretation was subjective, no one could be sure how it would be applied. Many wondered whether the Court might use the test in a political manner, applying it only to amendments (such as Measure 40) that the justices disliked. The Court of Appeals remedied this concern by ensuring that no amendments could pass the test. The Court of Appeals transformed the Separate Vote test into an objective analysis that is so narrow it is hard to imagine a meaningful constitutional amendment passing it.

The stakes are extremely high. The Supreme Court is under enormous pressure to prevent the implementation of Measure 7 because of the high cost of compensating for burdensome regulations. However, if the Court chooses to apply the test retroactively on term limits, they will likely face a constitutional crisis of their own making.

In 1910 the Supreme Court was fundamentally altered by an initiative that violated even the broadest application of the Separate Vote test. If the 1910 amendment(s) are overturned the Court of Appeals will cease to exist and the election of each current Supreme Court Justice will have to be invalidated. Common sense suggests that the Court will do everything in its power to avoid such a result.

In the meantime there are a number of attorneys filing Separate Vote challenges against favored portions of the Constitution in order to keep our justices honest. It is to be hoped the Supreme Court will reconsider its Separate Vote test in the coming months, and restore the right of the people to make meaningful changes to their constitution.