ANANTHA v. CLARNO (2020)

Plaintiffs seek to amend Oregon’s Forest Practices Act, ORS 527.610 to 527.770; ORS 527.990(1); ORS 527.992, and related statutory provisions through Oregon’s initiative process. To that end, they proposed three initiative petitions for the November 3, 2020, general election: Initiative Petitions (IPs) 35, 36, and 37. The Oregon Secretary of State rejected each proposed measure; she determined that each one violated the so-called “single subject” requirement of Article IV, section 1(2)(d), of the Oregon Constitution, that is, the requirement that a “proposed law * * * shall embrace one subject only and matters properly connected therewith.” On review under ORS 246.910(1), the trial court upheld the secretary’s determination, and plaintiffs appealed, ORS 246.910(3). Reviewing for legal error, State v. Mercer, 269 Or. App. 135, 137, 344 P.3d 109, rev. den., 357 Or. 299, 353 P.3d 594 (2015), we conclude that none of the measures violates the single-subject requirement of Article IV, section 1(2)(d), and that plaintiffs are entitled to judgment as a matter of law. We therefore reverse and remand with directions to enter judgment in favor of plaintiffs.

Our state constitution reserves to the people the power to propose laws. Or. Const., Art. IV, § 1(2). As with laws proposed in and by the legislature, a law proposed by initiative must “embrace one subject only and matters properly connected therewith.” Or. Const., Art. IV, § 1(2)(d); Or. Const., Art. IV, § 20 (“Every Act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title.”); OEA v. Phillips, 302 Or. 87, 100, 727 P.2d 602 (1986) (concluding that the “one subject” requirements in Article IV, section 1(2)(d), and Article IV, section 20, “should be given the same meaning”).

Plaintiffs seek to amend the Forest Practices Act and other statutory provisions addressing forestry. Specifically, they propose to place three prospective initiatives on the November 3, 2020, ballot: IP 35, IP 36, and IP 37. We have included the text of each measure in the appendix to this opinion so do not recite that text in full here. A summary, however, is in order to give context for our analysis, and plaintiffs have supplied an able one in their brief that the secretary does not seriously dispute:

“The measures’ main substantive provisions include:

“1. Limits clearcut logging activity near certain bodies of water (IP 35, § 2; IP 36, § 1);

“2. Directs the Board of Forestry to adopt rules regulating clearcut logging that apply to small tract forestlands (IP 35, § 3; IP 36, § 2);

“3. Prohibits the aerial application of pesticides within 500 feet of all forest waters (IP 35, § 4; IP 37, § 1);

“4. Creates public notice requirements for certain forest operations involving the aerial application of pesticides to forestland (IP 35, § 5; IP 37, § 2);

“5. Increases the buffer (from 60 feet to 500 feet) governing the aerial application of pesticides for forest operations adjacent to dwellings and schools (IP 35, § 6; IP 37, § 3);

“6. Restricts logging operations in high-hazard landslide zones (IP 35, § 7);

“7. Reduces financial conflicts of interest in the Board of Forestry (IP 35, § 10; IP 36, § 3; IP 37, § 5) in implementing the act (IP 35, § 11; IP 36, § 4; IP 37, § 6); and

“8. Creates a funding mechanism (IP 35, § 12).”

As required by ORS 250.045(1), plaintiffs submitted the prospective petitions to the secretary for her review. After reviewing public comments, the secretary notified plaintiffs that she was rejecting all three proposed measures because she “has determined [that each measure] does not comply with the procedural requirements established in the Oregon Constitution for initiative petitions, particularly the single subject requirement.”

Plaintiffs then filed this action under ORS 246.910(1), seeking judicial review of the secretary’s rejection of each of the proposed measures. Plaintiffs alleged that the secretary had erroneously determined that each of the measures violated the single-subject requirement of Article IV, section 1(2)(d). On cross-motions for summary judgment, the trial court concluded that “each of the Initiative Petitions violates the ‘single-subject’ provision of Article IV, section 1(2)(d) of the Oregon Constitution and finds [the secretary] properly rejected the three (3) initiative petitions.” Accordingly, the court denied plaintiffs’ motion for summary judgment, granted the secretary’s motion for summary judgment, and entered a general judgment in favor of the secretary. Plaintiffs appealed.

On appeal, plaintiffs contend that the trial court erred in determining that each proposed measure violates the single-subject requirement of Article IV, section 1(2)(d); they argue that each measure comports with the requirements of that provision as it has been construed by the Supreme Court and by our court. The secretary responds that the trial court correctly affirmed her decision to reject the proposed measures, arguing in the main that the secretary’s decision to reject the measures was proper in light of the statutes and rules that govern the secretary’s review of proposed initiative measures.

“We generally review a trial court’s ruling on cross-motions for summary judgment to determine whether there are any disputed issues of material fact and whether either party was entitled to judgment as a matter of law.” Hicks v. Central Point School Dist., 270 Or. App. 532, 540, 348 P.3d 307, rev. den., 357 Or. 743, 361 P.3d 608 (2015) (internal quotation marks omitted). Here, no factual disputes exist; the only question is whether the rejected measures comply with the constitutional single-subject requirement of Article IV, section 1(2)(d). That question is one of law, so we review for legal error. Mercer, 269 Or. App. at 137, 344 P.3d 109.

As noted, the Oregon Constitution contains two single-subject provisions: Article IV, section 1(2)(d), which applies to initiative measures, and Article IV, section 20, which applies to legislative acts. Although the relevant wording of the two provisions varies in minor respects, the Supreme Court has determined that they “should be given the same meaning.” Phillips, 302 Or. at 100, 727 P.2d 602. That means that the case law interpreting either provision informs our analysis of whether a particular proposed initiative satisfies the single-subject requirement of Article IV, section 1(2)(d).

Under that case law, a two-part framework governs the determination whether a proposed law or constitutional amendment comports with the single-subject requirement. Under the first step of the analysis, a reviewing court asks whether it can identify a “unifying principle logically connecting all provisions” in the measure, such that it can be said that the measure embraces a single subject. State ex rel. Caleb v. Beesley, 326 Or. 83, 91, 949 P.2d 724 (1997); McIntire v. Forbes, 322 Or. 426, 443-44, 909 P.2d 846 (1996). If a reviewing court cannot identify that type of logical “unifying principle,” then the measure violates the single-subject requirement. Phillips, 302 Or. at 100, 727 P.2d 602. If the court is able to identify the necessary unifying principle, the court examines whether any “other matters” contained in the measure are “properly connected” to the unifying principle identified by the court. Id.; see also Caleb, 326 Or. at 93, 949 P.2d 724.

As the Supreme Court has explained, the standard “should be liberally construed to uphold legislation.” Phillips, 302 Or. at 95, 727 P.2d 602. “The conflict between the constitution and the law should be palpable and clear before the courts should disregard a legislative enactment upon the sole ground that it embraces more than one subject.” State of Oregon v. Shaw, 22 Or. 287, 289, 29 P. 1028 (1892). In view of that liberal construction, a proposed law that addresses a single substantive area of the law, even if the proposal “includ[es] a wide range of connected matters intended to accomplish the goal of that single subject,” generally satisfies the single-subject requirement. Caleb, 326 Or. at 91, 949 P.2d 724. Said another way, the term “subject” for purposes of the constitutional single-subject requirements “is to be given a broad and extensive meaning” to give legislative drafters “full scope to include in one act all matters having a logical or natural connection.” Lovejoy v. Portland, 95 Or. 459, 466, 188 P. 207 (1920).

Although by now plenty of cases illustrate the analysis, the Supreme Court’s decision in Eastman v. Jennings-McRae Logging Co., 69 Or. 1, 138 P. 216 (1914), is a useful comparator because it addressed a measure not too different from IP 35, IP 36, and IP 37. At issue in Eastman was whether Oregon Laws 1911, chapter 278, section 13, complied with the requirement of Article IV, section 20, that a legislative act embrace only one subject, and that that subject be contained in the legislative title of the act. That measure, like IP 35, IP 36, and IP 37, contained a number of different provisions aimed at protecting forests. As described in the opinion, the measure aimed to protect forests by addressing forest fire prevention, creating a board of forestry, creating a state forester and deputy, providing for the appointment and compensation of fire wardens, providing for penalties for violations of the act, providing for civil remedies, and repealing specified existing provisions. Eastman, 69 Or. at 9-10, 138 P. 216. The defendant in the case argued that the title of the measure, which omitted to mention that the act created civil remedies, violated the Article IV, section 20, requirement that the title of an act express the act’s one subject. Id. at 10, 138 P. 216. The Supreme Court disagreed, explaining that “the protection of the forests is the subject of said act” for purpose of the single-subject requirement, and that the title’s statement that the act was “for the protection of the forests of the state of Oregon” adequately captured that one subject. Id. That the title did not mention the civil remedies provision was not a problem because that provision was a matter “properly connected” to the measure’s one subject of forest protection, and matters “properly connected” were not required to be mentioned in the title of a legislative act. Id.

Lovejoy, 95 Or. 459, 188 P. 207, supplies another helpful illustration (even though it is about an act pertaining to insurance and not forests). As aptly summarized by the Supreme Court in Caleb, the act at issue in Lovejoy contained wide-ranging provisions addressing insurance:

“The enactment challenged in Lovejoy v. Portland, 95 Or. 459, 465, 188 P. 207 (1920), set forth conditions under which local and foreign businesses could be started and conducted, regulated the insurance department, prescribed jurisdiction and powers of the insurance commissioner, made provisions for ensuring the solvency of insurance companies, addressed qualification and licensure of agents, specified types and forms of insurance various companies could offer, made provisions to prevent rate discrimination, and prescribed various other matters relating to the insurance business, including the preemption of local ordinances.”

Caleb, 326 Or. at 90-91, 949 P.2d 724 (citing Lovejoy, 95 Or. at 461-62, 188 P. 207). Rejecting the contention that the measure violated the single-subject requirement of Article IV, section 20, the court explained that “[t]he general object and purpose of [the act] is to regulate and supervise insurance, other than state industrial accident insurance” and, further, that “[w]hatever means may tend directly or indirectly to accomplish this object may properly be included in the act” without offending the constitution. Lovejoy, 95 Or. at 467, 188 P. 207.

A third case, McIntire, 322 Or. 426, 909 P.2d 846, is useful because, in that case, the court sustained a single-subject challenge to a proposed law, thereby providing us with a rare but concrete example of the type of disconnected hodgepodge of legislation that the single-subject requirement operates to combat. In McIntire, the court considered whether a legislative enactment met the Article IV, section 20, single-subject requirement. Although nominally about funding for light rail, the act did eight different things, including things not even remotely related to the field of transportation, let alone connected to light rail:

“SB 1156 * * * (1) provides state funding [and land use procedures] for light rail, (2) expands the availability of card-lock service stations, (3) promotes regional problem solving in land use matters, (4) regulates confined animal feeding, (5) preempts local pesticide regulation, (6) adopts new timber harvesting rules, (7) grants immunity to shooting ranges for noise pollution, and (8) protects salmon from cormorants.”

McIntire, 322 Or. at 444, 909 P.2d 846 (brackets in original; internal quotation marks omitted). The court held that the measure violated the constitutional single-subject requirement, concluding that provisions of the measure itself did not reveal a logical, unifying principle, and the legislature had not done that either. Id. at 445, 909 P.2d 846.

Considering IP 35, IP 36, and IP 37 in view of Eastman, Lovejoy, and McIntire, we conclude that the measures comport with the single-subject requirement of Article IV, section 1(2)(d). As in Eastman and Lovejoy, it is relatively easy to identify a logical, unifying principle connecting the provisions of each measure: the regulation and protection of forestlands. All of the provisions in each measure address that subject or, as in the case of the civil remedies provision in Eastman, are matters “properly connected” to the regulation and protection of forestlands. And none of the measures share the grab-bag quality that led the McIntire court to invalidate the light-rail funding measure at issue in that case.

The secretary resists that conclusion. She offers several reasons why we should uphold her decision to reject IP 35, IP 36, and IP 37. None persuades us.

First, the secretary argues that “the Oregon Constitution, ORS chapter 250, OAR 165-014-0028, and the [State Initiative and Referendum] Manual all confer on the Secretary discretion regarding the manner in which she evaluates whether initiative provisions are compliant with constitutional procedural requirements, among them the ‘single subject’ rule.” That means, the secretary argues, that we, the court, “must not second-guess the Secretary’s exercise of the authority expressly delegated to her by the Oregon Constitution, the legislature, and the applicable administrative rules.” But in this instance, the express basis for the secretary’s rejection of IP 35, IP 36, and IP 37 was that the measures themselves did not comply with the single-subject requirement of the Oregon Constitution, not for failure to comply with the secretary’s rules or any other source of law. And, as we have said, whether a measure complies with the single-subject requirement of Article IV, section 1(2)(d), is a question of law, making our review for legal error. Mercer, 269 Or. App. at 137, 344 P.3d 109. In other words, the single-subject question is not a discretionary question on which the secretary is entitled to deference from courts.

Second, and relatedly, the secretary argues that we should uphold her decision to reject the measures on single-subject grounds because of the way that plaintiffs titled IP 35, IP 36, and IP 37 on the form (the SEL 310) that plaintiffs used to submit the measures to the secretary for her review. The secretary notes that, on those forms, plaintiffs described all measures as pertaining to “forest waters.” The secretary contends further that, if we treat “forest waters” as the subject of each measure, then each measure violates the single-subject requirement because each measure contains provisions that address forest practices more broadly, and not forest waters particularly. But the secretary has identified no authority for the proposition that a title identified by a measure’s proponent on the SEL 310 governs the determination of a measure’s subject for purposes of the constitutional single-subject requirement, and the law is affirmatively to the contrary. As the Supreme Court explained in McIntire, the first step in assessing single-subject compliance is to “look[ ] first at the body of the act itself and seek[ ] to determine whether all provisions in the act relate to the same topic and whether they are naturally connected.” 322 Or. at 441, 443-44, 909 P.2d 846. If that examination reveals a unifying principle, as it has here, then the inquiry is over—the act satisfies the single-subject requirement. See id. at 443-44, 909 P.2d 846.

Beyond that, the Supreme Court has held expressly that the SEL 310, and the choices made by a measure’s sponsor on it, do not control the identification of a measure’s subject matter for the purpose of determining a proper ballot title for the measure:

“We cannot accept that explanation, which would make the Attorney General the prisoner of a choice—perhaps informed, perhaps not, perhaps even intentionally duplicitous—by a measure’s sponsor to check one or another box on a form. As our earlier recitation of the pertinent statutory tasks assigned to the Attorney General shows, that officer is charged by legislation with drafting a ballot title that properly labels a proposed initiative measure. No piece of paper, indeed no rule, created by the Secretary of State can relieve or excuse the Attorney General from that statutory obligation.”

Christ/Tauman v. Myers, 339 Or. 494, 499, 123 P.3d 271 (2005). That contradicts the notion that a title identified on the SEL 310 determines the measure’s subject matter for purposes of the single-subject requirement or otherwise.

Finally, the secretary urges us generally to conclude that IP 35, IP 36, and IP 37 do not comply with the single-subject requirement, even if we conclude—as we have—that the title listed on plaintiffs’ SEL 310 form is not a binding statement of the subject of each proposed measure. Many of those arguments, however, appear to treat the subject of each measure as the protection of forest waters, rather than the subject that we have identified: the regulation and protection of forestlands. Beyond that, for the reasons explained above, we believe that the analyses in Eastman and Lovejoy compel the conclusion that each of the measures here complies with Article IV, section 1(2)(d)’s single-subject requirement.

We therefore conclude that the trial court erred when it determined that IP 35, IP 36, and IP 37 violated Article IV, section 1(2)(d), and granted the secretary’s motion for summary judgment on that basis. Because the measures comport with the single-subject requirement, the court should have granted plaintiffs’ motion for summary judgment instead. We therefore reverse and remand for entry of judgment in favor of plaintiffs.

Reversed and remanded.

APPENDIX

LAGESEN, P. J.