Art. IV, Section 1

NOTES OF DECISIONS

In general

The crucial test in determining whether an ordinance is legislative or administrative is whether it is one making law or one executing law already in existence. Yamhill County v. Dauenhauer, 6 Or App 422, 487 P2d 1167 (1971), aff’d 261 Or 154, 492 P2d 766 (1972)

The Public Employe Relations Board is not authorized under ORS 243.772 to invalidate local legislation if by so doing it would deprive home rule cities of the power to legislate on matters in which their interest as distinguished from the state’s is paramount; such an interpretation of ORS 243.772 would be unconstitutional. City of Beaverton v. Intl. Assn. of Fire Fighters, 20 Or App 293, 531 P2d 730 (1975), Sup Ct review denied

Municipal “approval” by initiative of a specific highway project represents participation in an administrative process and is not a decision properly subject to the initiative power. Amalgamated Transit Union-Division v. Yerkovich, 24 Or App 221, 545 P2d 615 (1976)

The selection and approval of segments of the interstate highway system is an administrative function delegated by Congress to the Secretary of Transportation and the Oregon State Highway Department. Amalgamated Transit Union-Division v. Yerkovich, 24 Or App 221, 545 P2d 1401 (1976)

Local comprehensive plans, zoning ordinances, and amendments thereto are subject to local initiative and referendum when the plan, ordinance or amendment is legislative in nature. Allison v. Washington County, 24 Or App 571, 548 P2d 188 (1976)

Voters of home-rule counties have right to referendum on all ordinances regulating taxation; that right may not be defeated by declaration of emergency in enactment of such legislation. Multnomah County v. Mittleman, 275 Or 545, 552 P2d 242 (1976)

Where all statutory requirements had been complied with for placing county initiative measure on special election ballot, but election had not yet been held, Court could not yet consider whether proposed measure was unconstitutional because it embraced more than one subject. Brummell v. Clark, 31 Or App 405, 570 P2d 671 (1977)

Omission of phrase “That this Article is added to the Constitution to read: . . .” from cover sheet of initiative petition did not violate full-text requirement of this section because it was introductory language not part of proposed amendment. Barnes v. Paulus, 36 Or App 327, 588 P2d 1120 (1978)

Statutory scheme establishing Land Conservation and Development Commission and granting it authority to establish statewide land use planning goals (ORS chapter 197) does not delegate legislative power in violation of this section where both standards and safeguards are provided. Meyer v. Lord, 37 Or App 59, 586 P2d 367 (1978)

State’s decision to enact Public Employe Collective Bargaining Act (ORS 243.650 to 243.782) supersedes city’s power to allow its voters to arbitrate unresolved labor disputes and grant of power by this section to legislate by popular vote does not affect state’s power in this area. City of Roseburg v. Roseburg City Firefighters, 292 Or 266, 639 P2d 90 (1981)

Home Rule Amendments pertain to initiative, referendum and electoral rights but, at least facially, do not have independent bearing on when cities may be created. Aloha Advisory Comm. v. Port. Metro. Area LGBC, 72 Or App 299, 695 P2d 941 (1985), Sup Ct review denied

Grant of rulemaking authority to administrative agency does not unlawfully delegate legislative power where procedure established for promulgating rules furnishes adequate safeguards to those affected. State v. Heuker, 83 Or App 180, 730 P2d 1258 (1986)

Acts of Environmental Quality Commission and municipalities in adopting order and resolutions under ORS 454.275 to 454.380 were administrative, not legislative, acts, and voters were not entitled to right of initiative and referendum. United Citizens v. Oregon Environmental Quality Commission, 104 Or App 51, 799 P2d 665 (1990), Sup Ct review denied

Legislative declaration that contraband “means any article or thing . . . whose use would endanger the safety and security” of correctional and juvenile facilities and state hospital, as well as persons in those institutions, is constitutionally sufficient directive to state and local agencies given power to issue rules and orders defining contraband. State v. Long, 110 Or App 599, 823 P2d 1031 (1992), aff’d 315 Or 95, 843 P2d 420 (1992)

ORS 475.035 sufficiently circumscribes controlled substance identification power of Board of Pharmacy to withstand challenge of unconstitutional delegation of legislative power. State v. Kast, 120 Or App 74, 852 P2d 242 (1993)

State substantive policy may be phrased as prohibition against local regulation without further elaboration or direction. deParrie v. State of Oregon, 133 Or App 613, 893 P2d 541 (1995), Sup Ct review denied

Separate-vote requirement of section 1, Article XVII, is “law not inconsistent” with this section. Armatta v. Kitzhaber, 327 Or 250, 959 P2d 49 (1998)

Separate-vote requirement of section 1, Article XVII, imposes narrower requirement for initiative ballot measures than single-subject requirement. Armatta v. Kitzhaber, 327 Or 250, 959 P2d 49 (1998)

Claim that measure fails to comply with constitutional limitation on exercise of initiative power may be brought before or after people vote on measure. Beal v. City of Gresham, 166 Or App 528, 998 P2d 237 (2000)

Ballot Measure 62 (1998) amendment to this section, requiring that signature gatherers for initiative and referendum petitions be registered Oregon voters, was invalidly adopted. Swett v. Bradbury, 333 Or 597, 43 P3d 1094 (2002)

Initiative and referendum powers, laws

Secretary of State could refer question whether proposed law “embraced one subject only” to Attorney General at time prospective petition was filed with Secretary of State’s office and forwarded to Attorney General for preparation of ballot title and measure of timeliness of review begins at this initial step. State ex rel Fidanque v. Paulus, 297 Or 711, 688 P2d 1303 (1984)

Secretary of State must determine initiative petition’s compliance with provision of this section that law embrace one subject only before election and when approving prospective petition. OEA v. Roberts, 301 Or 228, 721 P2d 837 (1986)

Reasonable time for challenging decision of Secretary of State, including failure to decide, whether proposed initiative measure violates “one subject only” rule of Oregon Constitution, expires on 60th day following final approval of ballot title. Ellis v. Roberts, 302 Or 6, 725 P2d 886 (1986)

One-subject requirement of this section is to be liberally construed in same manner as one-subject requirement of section 20, Article IV, in favor of validity of initiative measures. OEA v. Phillips, 302 Or 87, 727 P2d 602 (1986); State ex rel Caleb v. Beesley, 326 Or 83, 949 P2d 724 (1997)

Trial court erred in dismissing action for injunctive relief against signature gatherers without individually evaluating each store specified in complaint to determine application of this section. Fred Meyer, Inc. v. McDonald, 112 Or App 321, 828 P2d 1054 (1992), Sup Ct review denied

“Subject” means matter to which measure relates and with which it deals. Lowe v. Keisling, 130 Or App 1, 882 P2d 91 (1994)

State may not remove subject matter from scope of initiative and referendum by preemption. Boytano v. Fritz, 131 Or App 466, 886 P2d 31 (1994), aff’d 321 Or 498, 901 P2d 835 (1995)

Judicial review of challenged initiative ballot titles for compliance with statutory requirements does not invade legislative power reserved to people. Rooney v. Kulongoski (Elections Division #13), 322 Or 15, 902 P2d 1143 (1995)

Initiative and referendum rights do not create right to gather signatures on private property where scope of property owner’s invitation to public does not include use for noncommercial public assembly. Wabban, Inc. v. Brookhart, 142 Or App 261, 921 P2d 409 (1996), Sup Ct review denied; Fred Meyer, Inc. v. Klein Campaigns, Inc., 168 Or App 259, 5 P3d 1194 (2000)

Initiative power does not create right to solicit signatures for initiative petition on private property over objection of property owner. Stranahan v. Fred Meyer, Inc., 331 Or 38, 11 P3d 228 (2000)

Requirement that initiative petition include full text of “proposed law” requires that petition amending existing law set forth entire text of law that would exist after amendment, not just text of proposed changes. Kerr v. Bradbury, 193 Or App 304, 89 P3d 1227 (2004)

Initiative and referendum powers, municipalities and districts

County has no authority to divest itself of authority conferred upon it by general law of state applicable to counties, especially where authority is conferred in order to accomplish purpose beneficial to state at large. Yamhill County v. Dauenhauer, 6 Or App 422, 487 P2d 1167 (1971), aff’d 261 Or 154, 492 P2d 766 (1972)

School district is not “district” and therefore, initiative and referendum powers are not reserved to voters of school district in respect to tax base. DeBoard v. Owen, 62 Or App 673, 662 P2d 18 (1983), Sup Ct. review denied

“Municipal legislation” does not include matters that are administrative in nature. Roberts v. Thies, 70 Or App 256, 689 P2d 356 (1984), Sup Ct review denied; Foster v. Clark, 309 Or 464, 790 P2d 1 (1990); Lane Transit District v. Lane County, 327 Or 161, 957 P2d 1217 (1998)

Activity is administrative if specific instance of carrying out existing legal framework, but is legislative if creating new law of general character and permanent nature. Roberts v. Thies, 70 Or App 256, 689 P2d 356 (1984), Sup Ct review denied; Foster v. Clark, 309 Or 464, 790 P2d 1 (1990); Lane Transit District v. Lane County, 327 Or 161, 957 P2d 1217 (1998)

City of Salem ordinance limiting to 100 days period in which to circulate initiative petition for signatures did not impermissibly burden right of initiative. Salem Committee v. Secretary of State, 109 Or App 364, 819 P2d 752 (1991)

Secretary of State did not err in assessing civil penalty under ORS 260.118 for failure to timely file contributions and expenditure statement for initiative campaign that failed to met local ordinance deadline. Salem Committee v. Secretary of State, 109 Or App 364, 819 P2d 752 (1991)

Whether to allow zoning change is land use decision that must be made in compliance with procedural and substantive requirements of state law; it is not “legislative” decision of kind to which constitutional initiative and referendum rights apply. Dan Gile and Assoc., Inc. v. McIver, 113 Or App 1, 831 P2d 1024 (1992)

City or town authority to amend its charter is subject to plenary authority of state legislature and to regulatory authority of metropolitan service district under section 14, Article XI of Oregon Constitution. City of Sandy v. Metro, 200 Or App 481, 115 P3d 960 (2005)

ATTY. GEN. OPINIONS: Filed referendum petition as suspending operation of statute during 15-day period for verification of signatures, (1971) Vol 35, p 836; legislative authority to order a special election for measures referred by referendum petition, (1971) Vol 35, p 955; authority of voters to initiate a county charter, (1971) Vol 35, p 986; invalidity of freeholder qualification on office of mayor or city councilman, (1972) Vol 35, p 1137; advance legislative provision for immediate election if referral, (1972) Vol 36, p 140; effect of repeal of the Governor’s Retirement Act by initiative on the right of past and present governors to receive the retirement benefits, (1973) Vol 36, p 476; authority of the Builders Board to prohibit by regulation the advertisement by registered builders that they are bonded, insured or certified, (1973) Vol 36, p 592; referendum power against a county “comprehensive plan” or a zoning ordinance, (1974) Vol 36, p 1044; initiative question of advisory nature on ballot, (1974) Vol 37, p 14; constitutionality of delegation to LCDC of authority to prescribe and enforce statewide planning goals, (1977) Vol 38, p 1130; constitutionality of provision requiring sponsors of initiative or referendum to file statement of contributions and expenditures as condition to placement on ballot, (1978) Vol 39, p 92; power of legislature to place, by joint resolution, question of whether proposed amendment to United States Constitution should be ratified, (1979) Vol 39, p 692; electors of school district exercising initiative and referendum powers, (1980) Vol 40, p 280; verification of signatures on referendum petition before filing, (1980) Vol 40, p 486; application of initiative and referendum powers to ordinances adopting comprehensive plans, (1980) Vol 41, p 100

LAW REVIEW CITATIONS: 50 OLR 315 (1971); 10 WLJ 103 (1973); 10 WLJ 373 (1974); 13 WLJ 383 (1977); 15 WLR 311 (1979); 61 OLR 22 (1982); 65 OLR 169, 170 (1986); 68 OLR 1005 (1989); 27 WLR 123 (1991); 70 OLR 707, 969 (1991); 28 WLR 339 (1992); 72 OLR 19 (1993); 30 WLR 195 (1994); 74 OLR 1065 (1995); 75 OLR 561 (1996); 34 WLR 143, 391 (1998); 78 OLR 1139 (1999); 79 OLR 793 (2000); 85 OLR 275 (2006); 87 OLR 717, 979 (2008)

Art. IV, Section 1b

NOTES OF DECISIONS

Ballot Measure 62 (1998), subsequently codified in part as section 1b, Article IV, Oregon Constitution, was invalidly adopted. Swett v. Bradbury, 333 Or 597, 43 P3d 1094 (2002)

Art. IV, Section 1c

NOTES OF DECISIONS

Ballot Measure 62 (1998), subsequently codified in part as section 1c, Article IV, Oregon Constitution, was invalidly adopted. Swett v. Bradbury, 333 Or 597, 43 P3d 1094 (2002)

Art. IV, Section 2

ATTY. GEN. OPINIONS: Additional state party convention delegate selection after reapportionment, (1972) Vol 35, p 1284

Art. IV, Section 3

NOTES OF DECISIONS

Election districts must be changed without regard to county lines in order to comply with the United States Constitution. Hovet v. Myers, 260 Or 152, 489 P2d 684 (1971)

Assignment of Senators to their districts by legislature or Secretary of State is valid part of reapportionment plan. Cargo v. Paulus, 291 Or 772, 635 P2d 367 (1981)

Art. IV, Section 4

NOTES OF DECISIONS

Even though certain voters will have to wait six years, rather than four for next vote, Oregon’s 1991 reapportionment plan, combined with staggered term system for state senate elections, did not, through temporary dilution of voting power, unduly burden particular group. Republican Party of Oregon v. Keisling, 959 F2d 144 (1992)

Art. IV, Section 6

NOTE: Former section 6, as amended, was repealed in 1986; present section 6 adopted in lieu

NOTES OF DECISIONS

This section, as amended by 1986 referendum measure, grants Supreme Court original jurisdiction to determine whether Secretary of State’s reapportionment plan complies with statutory as well as constitutional law. Ater v. Keisling, 312 Or 207, 819 P2d 296 (1991)

Secretary of State’s decision to adopt population deviation standard of plus-or-minus one percent was not in violation of this section, and did not foreclose adequate consideration of other criteria provided by ORS 188.010. Ater v. Keisling, 312 Or 207, 819 P2d 296 (1991)

Amendment to this section in 1986 did not violate separate-vote requirement of section 1, Article XVII of Oregon Constitution, or revision prohibition of section 2, Article XVII of Oregon Constitution. Hartung v. Bradbury, 332 Or 570, 33 P3d 972 (2001)

Governor may veto reapportionment plan adopted by Legislative Assembly. Hartung v. Bradbury, 332 Or 570, 33 P3d 972 (2001)

Reapportionment of districts according to population may be based on reliable sources of population information other than official census published by United States Census Bureau. Hartung v. Bradbury, 332 Or 570, 33 P3d 972 (2001)

LAW REVIEW CITATIONS: 66 OLR 429 (1987)

Art. IV, Section 7

NOTES OF DECISIONS

Election districts must be changed without regard to county lines in order to comply with the United States Constitution. Hovet v. Myers, 260 Or 152, 489 P2d 684 (1971); Hartung v. Bradbury, 332 Or 570, 33 P3d 972 (2001)

Reference to “subdistricts” does not create exception to requirement of section 8, Article IV, that legislator must inhabit area electing legislator. Roberts v. Myers, 260 Or 228, 489 P2d 1148 (1971)

Art. IV, Section 8

NOTES OF DECISIONS

Secretary of State exceeded authority to reapportion when he created “districts” in plan for purpose of effecting residency. Hovet v. Myers, 260 Or 152, 489 P2d 684 (1971)

This section requires legislator to be inhabitant of district from which he was elected. Hovet v. Myers, 260 Or 152, 489 P2d 684 (1971)

This section requires legislator to be inhabitant of electoral unit “whence he may be chosen.” Roberts v. Myers, 260 Or 228, 489 P2d 1148 (1971)

ATTY. GEN. OPINIONS: Incumbent State Senator as eligible to be candidate for another Senate seat, (1971) Vol 35, p 952; residency requirements after election, (1975) Vol 37, p 991

Art. IV, Section 9

ATTY. GEN. OPINIONS: Discipline of legislator for failure to declare conflict of interest, (1999) Vol 49, p 167

LAW REVIEW CITATIONS: 55 OLR 421 (1976); 39 WLR 245 (2003)

Art. IV, Section 10

LAW REVIEW CITATIONS: 39 WLR 245 (2003); 87 OLR 717 (2008)

Art. IV, Section 10a

NOTES OF DECISIONS

“Emergency” exists whenever required number of legislators believe circumstances constitute emergency. George v. Courtney, 344 Or 76, 176 P3d 1265 (2008)

Statement of justification for declaration of emergency need not identify specific reasons for special session. George v. Courtney, 344 Or 76, 176 P3d 1265 (2008)

Art. IV, Section 11

ATTY. GEN. OPINIONS: Constitutionality of legislation affecting procedure of either house of Legislative Assembly, (1975) Vol 37, p 657; authority to determine qualifications of elected members, (1975) Vol 37, p 991

LAW REVIEW CITATIONS: 50 OLR 315, 316, 318-320 (1971)

Art. IV, Section 13

NOTES OF DECISIONS

ORS 294.080 did not create vested right in defendant taxing districts to interest earned on unsegregated tax accounts and legislature had power to retroactively divert those funds. Jackson Co. v. Jackson Ed. Service Dist., 90 Or App 299, 752 P2d 1224 (1988), Sup Ct review denied

ATTY. GEN. OPINIONS: Constitutionality of legislation affecting procedure of either house of Legislative Assembly, (1975) Vol 37, p 657

Art. IV, Section 17

LAW REVIEW CITATIONS: 67 OLR 108 (1988)

Art. IV, Section 18

NOTES OF DECISIONS

Bill is for raising revenue only if bill collects or brings moneys into treasury and has essential features of bill levying tax or similar exaction. Bobo v. Kulongoski, 338 Or 111, 107 P3d 18 (2005)

ATTY. GEN. OPINIONS: Constitutionality of bill originating in Senate and eliminating tax exempt status of floating homes and houseboats under provision that bills raising revenue shall originate in House, (1978) Vol 38, p 2143

Art. IV, Section 20

NOTES OF DECISIONS

Oregon Laws 1977, chapter 665, which abolished Columbia Region Association of Governments and reinstituted and reorganized Metropolitan Service District, does not violate this section. Reilley v. Secretary of State, 41 Or App 293, 598 P2d 323 (1979), aff’d 288 Or 573, 607 P2d 162 (1980)

Court has authority to adjudicate one-subject challenge and remedy violation. McIntire v. Forbes, 322 Or 426, 909 P2d 846 (1996)

“Subject” is unifying principle, narrower than universe of things with respect to which legislature can act, that provides logical and reasonable connection between all provisions of bill. McIntire v. Forbes, 322 Or 426, 909 P2d 846 (1996); State ex rel Caleb v. Beesley, 326 Or 83, 949 P2d 724 (1997)

Title of bill is adequate if title provides sufficient information to give interested parties reasonable notice of contents of bill. State v. Fugate, 332 Or 195, 26 P3d 802 (2001)

Correction: The permanent edition citation for Nielson v. Bryson should be 257 Or 179, 477 P2d 714 (1970).

ATTY. GEN. OPINIONS: County funds as including all funds held by county treasurer, (1971) Vol 35, p 1020; constitutionality of bill relating to “resolving conflicts,” (1973) Vol 36, p 682

LAW REVIEW CITATIONS: 70 OLR 257 (1991)

Art. IV, Section 21

ATTY. GEN. OPINIONS: Authority of legislature to delegate governmental authority to advisory council comprised in part of persons designated by two private professional associations, (1987) Vol 45, p 160

Art. IV, Section 22

NOTES OF DECISIONS

Revision or amendment of “act” does not include revision or amendment of administrative rules submitted for legislative approval. State v. Norris, 188 Or App 318, 72 P3d 103 (2003), Sup Ct review denied

ATTY. GEN. OPINIONS: Constitutionality of bill relating to “resolving conflicts,” (1973) Vol 36, p 682

Art. IV, Section 23

NOTES OF DECISIONS

Prohibition against special laws for supporting common schools only applies to enactment of laws that grant one or more school districts direct financial support that is not made available to all school districts. Sherwood School District 88J v. Washington County Education Service District, 167 Or App 372, 6 P3d 518 (2000), Sup Ct review denied

ATTY. GEN. OPINIONS: Authority of legislature to provide funds for school districts unable to obtain local approval of tax levy, (1977) Vol 38, p 988

LAW REVIEW CITATIONS: 39 WLR 245 (2003)

Art. IV, Section 24

NOTES OF DECISIONS

Sovereign immunity did not extend to suit where only relief sought was declaration that [former] ORS 659.029, defining unlawful employment discrimination because of sex, violated Supremacy Clause of United States Constitution. Gast v. State of Oregon, 36 Or App 441, 585 P2d 12 (1978), Sup Ct review denied

Where public body is created to perform functions on behalf of state, public body operates as instrumentality of state government for which legislature may determine scope of liability. Clarke v. Oregon Health Sciences University, 206 Or App 610, 138 P3d 900 (2006), aff’d 343 Or 581, 175 P3d 418 (2007)

State is not prohibited from waiving sovereign immunity and creating liability for economic consequences of state regulation. MacPherson v. Department of Administrative Services, 340 Or 117, 130 P3d 308 (2006)

Whether entity is state instrumentality is determined by functions of entity rather than by formal structure of entity. Ackerman v. OHSU Medical Group, 233 Or App 511, 227 P3d 744 (2010)

Adequacy of remedy is affected by five unequally weighted factors. Ackerman v. OHSU Medical Group, 233 Or App 511, 227 P3d 744 (2010)

COMPLETED CITATIONS: State Forester v. Umpqua R. Nav. Co., 258 Or 10, 478 P2d 631 (1970), cert. denied, 404 US 826 (1971)

ATTY. GEN. OPINIONS: Lack of authority to recover costs for suppression of fire on public lands, (1971) Vol 35, p 904; liability of members of the State Water Resources Board for damages of a party adversely affected by reclassification, (1972) Vol 36, p 250; constitutionality of compensation to victims of violent crimes, (1975) Vol 37, p 449

LAW REVIEW CITATIONS: 69 OLR 157 (1990)

Art. IV, Section 25

NOTES OF DECISIONS

Bill is for raising revenue only if bill collects or brings moneys into treasury and has essential features of bill levying tax or similar exaction. Bobo v. Kulongoski, 338 Or 111, 107 P3d 18 (2005)

ATTY. GEN. OPINIONS: Procedure for passage of bills by the Legislative Assembly, (1973) Vol 36, p 536

Art. IV, Section 28

NOTES OF DECISIONS

Voters of home-rule counties have the right to referendum on all ordinances regulating taxation; that right may not be defeated by the declaration of an emergency in the enactment of such legislation. Multnomah County v. Mittleman, 275 Or 545, 552 P2d 242 (1976)

ATTY. GEN. OPINIONS: Early adjournment with understanding that immediate calling of special session as beginning of 90-day period, (1972) Vol 36, p 140

Art. IV, Section 29

ATTY. GEN. OPINIONS: Payment of expenses and allowances to legislators, (1974) Vol 37, p 147; compensatory effect of legislators’ per diem, (1976) Vol 38, p 14

Art. IV, Section 30

ATTY. GEN. OPINIONS: Incumbent State Senator as eligible to be a candidate for another Senate seat, (1971) Vol 35, p 952

LAW REVIEW CITATIONS: 39 WLR 245 (2003)

Art. IV, Section 32

NOTES OF DECISIONS

State law mandates tax law congruity only between federal and state laws defining or measuring income, not laws fixing value to be placed on decedents’ estates for state inheritance tax purposes. Seymour v. Dept. of Rev., 311 Or 254, 809 P2d 100 (1991)