Harisay v. Clarno

116

Argued and submitted March 6, decision of Court of Appeals and judgment of

circuit court affirmed October 8, 2020

Richard HARISAY,

Charles Montgomery, and Stephen Bintliff,

Chief Petitioners and Electors of the State of Oregon,

Petitioners on Review,

v.

Bev CLARNO,

Secretary of State of Oregon,

Respondent on Review.

(CC 14C21951) (CA A158925) (SC S066576)

474 P3d 378

Plaintiffs brought a civil action against the Secretary of State to require

the secretary to certify an initiative petition that purported to exercise the peo-

ple’s right “to propose laws” by initiative under Article IV, section 1(2)(a), of the

Oregon Constitution, for the purposes of calling on Congress to convene a fed-

eral constitutional convention under Article V of the United States Constitution.

The circuit court granted judgment on the pleadings for the secretary, and the

Court of Appeals affirmed. Plaintiffs sought review. Held: (1) Matter remained

justiciable despite ballot deadlines having passed; (2) courts have authority to

review whether petition would constitute “law” under people’s authority “to pro-

pose laws” under Article IV, section 1(2)(a), of the Oregon Constitution; (3) voters

never intended the initiative power of Article IV, section 1(2)(a), to be used for

anything other than changing Oregon law; (4) petition did not seek any change

in Oregon law, its sole purpose was to change federal constitutional law, through

the mechanism of asking Congress to call a federal constitutional convention;

and (5) therefore, the Secretary of State correctly declined to certify the petition.

The decision of the Court of Appeals and the judgment of the circuit court

are affirmed.

On review from the Court of Appeals.*

Daniel Meek, Portland, argued the cause and filed the

briefs for petitioners on review.

Shannon T. Reel, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on

review. Also on the brief were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

______________

* On appeal from Marion County Circuit Court, David Leith, Judge. 295 Or

App 493, 434 P3d 442 (2018).

Cite as 367 Or 116 (2020) 117

Before Walters, Chief Justice, and Balmer, Nakamoto,

Flynn, Duncan, and Nelson, Justices, and Baldwin, Senior

Judge, Justice pro tempore.**

BALDWIN, S. J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

______________

** Garrett, J., did not participate in the consideration or decision of this case.

118 Harisay v. Clarno

BALDWIN, S. J.

This case requires the court to address an issue

of first impression: Does the initiative power provided for

in Article IV, section 1(2)(a), of the Oregon Constitution

extend to the people applying to Congress for a constitu-

tional convention to amend provisions of the United States

Constitution under Article V of that document? We conclude

that the Oregon voters who adopted the initiative power did

not intend that power to extend beyond state lawmaking.

Accordingly, we hold that Article IV, section 1(2)(a), does not

authorize the people to directly apply for a federal constitu-

tional convention.

I. FACTS

Article IV, section 1, of the Oregon Constitution pro-

vides, in part:

“(1) The legislative power of the state, except for the

initiative and referendum powers reserved to the people,

is vested in a Legislative Assembly, consisting of a Senate

and a House of Representatives.

“(2)(a) 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 inde-

pendently of the Legislative Assembly.”

Plaintiffs in this case had submitted Initiative

Petition 2016-005 (IP 5) to the Secretary of State so that it

could be certified in time for the 2016 ballot. Section (1) of

IP 5 provided that the people “call for an Article V Convention

by enacting into law this Application, in accordance with

Article V of the U.S. Constitution,” for purposes of consid-

ering whether to amend the United States Constitution to

allow greater regulation of corporations and other artificial

legal entities and greater regulation of money used for polit-

ical purposes. Section (2) added that the call for such a con-

vention is continuing and does not terminate by the passage

of time. Section (3) provided for copies of the call to be sent

to various persons. And section (4) stated that the call “shall

be codified in Title 17 of Oregon Revised Statutes.” (The full

text of IP 5 is attached as an Appendix.)

Cite as 367 Or 116 (2020) 119

Under the Oregon Administrative Rules, the secre-

tary reviews a proposed initiative petition to “determine if

it complies with the procedural requirements established in

the Oregon Constitution for initiative petitions.” OAR 165-

014-0028(1). The secretary does not, however, review the

proposed initiative petition for “substantive constitutional

or legal sufficiency.” Id.

In this case, the secretary (at that time, Kate Brown)

refused to certify IP 5 on the ground that it failed to meet

the procedural requirements established by the Oregon

Constitution. Specifically, the secretary explained that she

“ha[d] been advised that a court review of [IP 5] would prob-

ably determine that it does not propose a law within the

meaning of Article IV, section 1, of the Oregon Constitution

and therefore may not legally be adopted through the initia-

tive process.”

Plaintiffs then filed this action in circuit court.

Among other things, they sought a declaratory judgment

that the secretary was required to certify IP 5. The secre-

tary moved for judgment on the pleadings, which the trial

court granted. The trial court concluded that the “exercise

of the legislature’s authority under Article V of the federal

constitution” was not subject to an initiative to apply for

a federal constitutional convention, because it was not a

“law.”

Plaintiffs appealed to the Court of Appeals, which

affirmed. Harisay v. Atkins, 295 Or App 493, 434 P3d 442

(2018).

That court began with a procedural question. The

court noted that the deadline for IP 5 to be included on the

2016 ballot had passed, which rendered the matter moot.

Id. at 495. The court nevertheless concluded that the mat-

ter remained justiciable under Oregon’s statutory version of

the “capable of repetition, yet evading review” doctrine, ORS

14.175, and it exercised its discretion to decide the case. 295

Or App at 496-97.

Turning to the merits, the court concluded that the

issue was whether IP 5 proposed a “law” under Article IV,

section 1(2)(a). Id. at 497. Noting that the initiative and

120 Harisay v. Clarno

referendum powers had been adopted in 1902, the court

considered dictionary definitions of “law” from that period.

Id. at 498-500. The court also reviewed cases interpreting

Article IV, section 1. Id. at 500-01. Based on those author-

ities, the court concluded that the initiative power reached

only those measures that will “establish new legal rules reg-

ulating conduct in the state of Oregon, typically of a perma-

nent and generally applicable nature.” Id. at 502 (footnote

omitted). The court concluded that IP 5 failed both parts of

that test. It did not regulate conduct in the state of Oregon,

and it did not involve a rule of conduct. Id. at 502-03.

Rejecting plaintiffs’ other arguments without discussion,

id. at 494, the court affirmed the trial court ruling.1

Plaintiffs sought review, which we allowed.

II. DISCUSSION

A. Mootness

We begin, as a preliminary matter, with the ques-

tion of mootness. The parties do not dispute that the mat-

ter is in fact moot. Nor do the parties contest the Court of

Appeals’s holding that the case remains justiciable under

ORS 14.175.2 We agree with the Court of Appeals’s determi-

nation that it is, and we do not revisit its exercise of discre-

tion to consider the merits.

B. Scope of Review

We next turn to the scope of review for the issues

presented in this case. As noted, the scope of review for

1

Plaintiffs renew those other arguments before this court. As did the Court

of Appeals, we also decline to address them.

2

ORS 14.175 provides:

“In any action in which a party alleges that an act, policy or practice of a

public body, as defined in ORS 174.109, or of any officer, employee or agent of

a public body, as defined in ORS 174.109, is unconstitutional or is otherwise

contrary to law, the party may continue to prosecute the action and the court

may issue a judgment on the validity of the challenged act, policy or practice

even though the specific act, policy or practice giving rise to the action no

longer has a practical effect on the party if the court determines that:

“(1) The party had standing to commence the action;

“(2) The act challenged by the party is capable of repetition, or the policy

or practice challenged by the party continues in effect; and

“(3) The challenged policy or practice, or similar acts, are likely to evade

judicial review in the future.”

Cite as 367 Or 116 (2020) 121

proposed initiatives is limited: The secretary reviews pro-

posed initiatives for compliance with procedural require-

ments under the Oregon Constitution, not substantive

validity or constitutionality. OAR 165-014-0028(1). That

restriction dates back to at least State ex rel. Carson v. Kozer,

126 Or 641, 270 P 513 (1928), where this court stated:

“Under the settled procedure in this state there is no power

inherent in the courts to determine whether or not a pro-

posed law before it has been enacted is constitutional or

unconstitutional. Neither the Constitution itself nor any

statute gives to the courts any such power. The courts of

this state never attempted to exercise such a power. Any

interference by the courts or by any executive officer of

the courts with the enactment of any law, constitutional

or unconstitutional, either while the proposed measure is

pending before the legislative assembly or if it is an ini-

tiative measure where all statutory requirements have

been complied with, would in itself be a violation of the

Constitution[.]”

Id. at 646-47.

At the same time, however, the secretary does

review a proposed initiative for whether it complies with

the constitutional requirements to be an initiative under

Article IV, section 1. As this court has explained:

“* * * Oregon courts have inquired into whether matters

extraneous to the language of the measure itself disqualify

the measure from the ballot. This is most obviously true

of the requirement that an initiative receive enough qual-

ifying signatures, * * * but the principle involved extends

further. Despite compliance with proper procedures, courts

will prevent a measure from being placed on the ballot if

the measure is legally insufficient to qualify for that ballot.”

Foster v. Clark, 309 Or 464, 469, 790 P2d 1 (1990). Foster’s

summary of the relevant rule—rendered in the context of

the initiative and referendum for “municipal legislation”

under Article IV, section 1(5)—was:

“Courts have jurisdiction and authority to determine

whether a proposed initiative or referendum measure is

one of the type authorized by [Article IV, section 1(5), of the

Oregon Constitution] to be placed on the ballot.”

Id. at 471.

122 Harisay v. Clarno

Numerous cases have applied that scope of review.

In Foster, for example, the court concluded that a proposed

initiative for a municipality could be reviewed to determine

whether it constituted “municipal legislation” as that term

is used in Article IV, section 1(5). 309 Or at 471; see also

Boytano v. Fritz, 321 Or 498, 501-02, 901 P2d 835 (1995)

(same). In Herbring v. Brown, 92 Or 176, 180 P 328 (1919),

this court concluded that it could review a proposed refer-

endum on the legislature’s ratification of what became the

Eighteenth Amendment (prohibition), at least to the extent

of determining that the proposal did not qualify as a refer-

endum under Article IV, section 1, because the “referendum”

authority was limited to the repeal of statutes, and the leg-

islature had not ratified the amendment by act. Id. at 182,

184 (distinguishing review for questions of substantive con-

stitutionality should the measure be passed). In Holmes v.

Appling, 237 Or 546, 392 P2d 636 (1964), this court concluded

that a proposed initiative should not be placed on the ballot

because it was either a new constitution or a constitutional

revision, and thus did not qualify as an “amendment” under

Article IV, section 1. Id. at 552-55 (explaining that judicial

review of the nature of the initiative was permissible).

In this case, the secretary maintains that IP 5 is

not a “law” or an amendment to the state constitution, and

so it is not within the scope of the authority reserved to the

people by Article IV, section 1(2)(a). Plaintiffs maintain that

IP 5 is a “law” under Article IV, section 1(2)(a). They contend

that the secretary and the Court of Appeals both based their

conclusions on an improper (and, in their view, incorrect)

substantive determination that IP 5 would not be effective

to apply to Congress for a federal constitutional convention.3

As did the Court of Appeals, we conclude that

whether IP 5 is authorized under Article IV, section 1, is

properly before us. We now turn to that question.

3

Plaintiffs also assert that, even if IP 5 does not qualify as a “law,” it could go

forward as a “proposition or question.” See ORS 250.005(3)(e); ORS 254.005(6)(e)

(both defining “measure” to include a “proposition or question”). The proposed

initiative here cannot be construed as a mere proposition or question. On its face,

IP 5 claims to “enact into law” the application for a federal constitutional con-

vention, and it directs that it be codified into the Oregon Revised Statutes. We

decline to render any opinion on whether a version of the initiative, modified to

delete any suggestion that it was being enacted into law, might be permissible.

Cite as 367 Or 116 (2020) 123

C. Does the initiative power extend beyond state lawmaking?

The fundamental problem with plaintiffs’ position,

as we will explain, is that IP 5 is devoted to the change

of federal law, not state law. IP 5 seeks a federal constitu-

tional amendment by taking a step—asking Congress for

a federal constitutional convention—that is found only in

Article V of the United States Constitution. IP 5 does not

have as its objective any change to state law at all. The ini-

tiative power under Article IV, section 1(2)(a), of the Oregon

Constitution, however, grants only authority to enact state

laws and amendments to the Oregon Constitution. While

we agree with the Court of Appeals’s ultimate determina-

tion, we do so for different reasons; we do not rely on the

Court of Appeals’s narrow focus on what constitutes a

“law.”

To determine whether IP 5 proposes a “law” within

the meaning of Article IV, section 1(2)(a), of the Oregon

Constitution, we must consider the scope and limits of the

initiative power under Article IV, section 1, of the Oregon

Constitution. Our methodology for interpreting provisions

of the Oregon Constitution was summarized by this court’s

decision in Couey v. Atkins, 357 Or 460, 490-91, 355 P3d 866

(2015):

“[W]e examine the text, in its historical context and in

light of relevant case law, to determine the meaning of

the provision at issue most likely understood by those who

adopted it, with the ultimate objective of identifying rele-

vant underlying principles that may inform our application

of the constitutional text to modern circumstances.”

Id. (internal quotation marks and citation omitted).4 In the

case of the initiative and referendum power, we consider

“the meaning understood by the voters” when they adopted

that power. See State v. Lane, 357 Or 619, 625, 355 P3d 914

(2015).

4

Prior to Couey, this court’s cases had used two different frameworks for con-

stitutional analysis: one for provisions of the original Oregon Constitution, see

Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992), and one for later amend-

ments, see Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or 551,

560, 871 P2d 106 (1994). See Couey, 357 Or at 490-91 (discussing cases). Couey

concluded that the Priest formulation now applies to all provisions of the Oregon

Constitution. Id.

124 Harisay v. Clarno

We begin with the text of Article IV, section 1. As it

exists today, it provides, in relevant part:

“(1) The legislative power of the state, except for the

initiative and referendum powers reserved to the people,

is vested in a Legislative Assembly, consisting of a Senate

and a House of Representatives.

“(2)(a) 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 inde-

pendently of the Legislative Assembly.”

Or Const, Art IV, § 1(1), (2)(a).

The voters adopted Article IV, section 1, in its present

form in 1968. See Stranahan v. Fred Meyer, Inc., 331 Or 38,

60, 11 P3d 228 (2000). The initiative power was first adopted,

however, in 1902. Id. at 60-61.5 As originally adopted by the

people, Article IV, section 1, provided, in part:

“The legislative authority of the state shall be vested in

a legislative assembly, consisting of a senate and house of

representatives, but the people reserve to themselves power

to propose laws and amendments to the constitution and to

5

Oregon was not the first state to adopt the initiative, but it appears that

the preceding states had little or no influence on how Oregon voters would have

understood the initiative power. As Judge Schuman noted in his law review arti-

cle on the adoption of the initiative in Oregon:

“Although South Dakota (in 1898) and Utah (in 1900) put initiative

and referendum provisions in place before Oregon (1902), the first extended

debates about these procedures took place in Oregon, and the Oregon legis-

lature originally approved them in 1899. Direct democracy, therefore, was

commonly referred to as the ‘Oregon System.’ ”

David Schuman, The Origin of State Constitutional Direct Democracy: William

Simon U’Ren and “The Oregon System,” 67 Temple L Rev 947, 948 n 7 (1994).

A contemporaneous treatise confirms that Oregon’s movement to adopt the ini-

tiative and referendum had begun in 1892, years before either South Dakota or

Utah had adopted them. See James D. Barnett, The Operation of the Initiative,

Referendum, and Recall in Oregon 3 (1915). The inspiration for Oregon’s initiative

and referendum power appears to have come from Switzerland rather than those

other states. See Schuman, 67 Temple L Rev at 950.

Another law review article gives a fairly extensive discussion of the circum-

stances surrounding the adoption of the initiative in California and Oregon (in

that order, although Oregon predated California). Nathaniel A. Persily, The

Peculiar Geography of Direct Democracy: Why the Initiative, Referendum and

Recall Developed in the American West, 2 Mich L & Pol’y Rev 11, 29-32 (1997).

The article has essentially no discussion of adoption in either South Dakota or

Utah, beyond noting the mere fact that they did.

Cite as 367 Or 116 (2020) 125

enact or reject the same at the polls, independent of the

legislative assembly * * *. The first power reserved by the

people is the initiative * * *. * * * The style of all bills shall

be: ‘Be it enacted by the people of the state of Oregon.’ ”

Or Const, Art IV, § 1 (1902), quoted in Stranahan, 331 Or

at 60. Although the 1968 amendment made some changes

to the number of required signatures and imposed a single

subject requirement, it “did not purport to alter the nature of

the people’s power of initiative and referendum.” Stranahan,

331 Or at 61.

The text shows that the initiative power, when it

authorized the people “to propose laws,” meant Oregon laws.

The Oregon Constitution gives the legislature and the peo-

ple authority to legislate for the State of Oregon. The Oregon

Constitution does not purport to claim the authority to

enact federal laws, and in the rare instances when it refers

to federal laws, it does so expressly. E.g., Or Const, Art IV,

§ 32 (authorizing the legislature to set income taxes “by ref-

erence to any provision of the laws of the United States”);

Or Const, Art XV, § 10(14) (provision relating to property

“forfeited under the law of this State or the United States”).

Similarly, the text also shows that the initia-

tive power, when it authorized the people “to propose * * *

amendments to the Constitution,” meant only amendments

to the Oregon Constitution. When the Oregon Constitution

uses the word “constitution” without additional qualifiers, it

refers to itself. Thus, the preamble states that “the people of

the State of Oregon * * * ordain this Constitution.” Or Const,

preamble. When the Oregon Constitution does refer to

the United States Constitution, it does so expressly. E.g.,

Or Const, Art IV, § 31 (legislators must take oath to “support

the Constitution of the United States, and the Constitution

of the State of Oregon”); Or Const, Art VII (Amended), § 7

(Supreme Court justices must take oath to “support the con-

stitution of the United States, and the constitution of the

State of Oregon”); Or Const, Art XV, § 3 (every person taking

office “under this Constitution” must take oath to “support

the Constitution of the United States, and of this State”).

Contextually, the Oregon Constitution was adopted

against the background of the United States Constitution.

126 Harisay v. Clarno

The framers of the Oregon Constitution—and the voters

who adopted the initiative power in 1902 and then revised

it in 1968—understood that the United States Constitution

is supreme over any contrary provision of the Oregon

Constitution. US Const, Art VI, cl 2 (“This Constitution,

and the Laws of the United States which shall be made in

Pursuance thereof; * * * shall be the supreme Law of the

Land; and the Judges in every State shall be bound thereby,

any Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.”).

We are unaware of any history that would suggest

the voters intended to authorize any lawmaking beyond

Oregon laws.

As applied here, the matter is straightforward. The

voters never intended the initiative power of Article IV, sec-

tion 1(2)(a), to be used for anything other than changing

Oregon law.6 IP 5 does not seek any change in Oregon law. Its

sole purpose is to change federal constitutional law, through

the mechanism of asking Congress to call a federal constitu-

tional convention. As such, IP 5 is not within the scope of the

people’s power “to propose laws” under Article IV, section 1,

of the Oregon Constitution.7

The Oklahoma Supreme Court reached a similar

conclusion regarding the operation of that state’s initiative

process. Rejecting a proposed initiative intended to create

a test case for the United States Supreme Court that might

have resulted in a revised interpretation of the United

States Constitution, the Oklahoma Supreme Court stated:

6

The “unfettered right to propose laws and constitutional amendments by

initiative petition,” Stranahan, 331 Or at 64, thus means an unfettered right to

propose only Oregon laws and Oregon constitutional amendments.

7

Plaintiffs argue that IP 5 constitutes state lawmaking because section (3)

directs that copies will be sent to various persons, and section (4) directs its cod-

ification in the Oregon Revised Statutes.

That argument places form over substance. Codification and copies are not

ends in themselves. Sections (3) and (4) exist solely to support the single purpose

of IP 5 found in sections (1) and (2): to formally ask Congress, under Article V

of the United States Constitution, to call a federal constitutional convention.

Remove sections (1) and (2), and sections (3) and (4) are empty actions that have

no purpose. An initiative that is not lawmaking cannot be made into “law” by the

mere act of directing that it be written into the Oregon Revised Statutes or sent

to certain people.

Cite as 367 Or 116 (2020) 127

“The initiative process guaranteed to our citizens by the

Oklahoma Constitution was never intended to be a vehi-

cle for amending the United States Constitution—nor can

it serve that function in our system of government.” In re

Initiative Petition No. 349 State Question No. 642, 1992 OK

122, ¶ 29, 838 P2d 1, 10-11 (1992), cert den, 506 US 1071

(1993); see also In re Initiative Petition No. 364, 1996 OK

129, ¶ 30, 930 P2d 186, 195 (1996) (“the people’s legislative

power as defined in article 5, section 1, of the Oklahoma

Constitution does not include the power to use the initia-

tive process to attempt to change federal constitutional

law”).

We should add that the people and the legisla-

ture share only the power to make laws under the Oregon

Constitution. Not every action taken by the legislature

involves the making of a law, and the people do not share

the other powers of the legislature. See, e.g., Or Const,

Art IV, § 11 (“Each house * * * shall choose its own officers,

judge of the election, qualifications, and returns of its own

members; determine its own rules of proceeding, and sit

upon its own adjournments * * *.”); id. § 14 (“Each house

shall adopt rules to implement the requirement” that its

deliberations be open); id. § 15 (“Either house may pun-

ish its members for disorderly behavior, and may with

the concurrence of two thirds, expel a member[.]”). The

Oregon Constitution expressly distinguishes bills and acts

from joint resolutions. See Or Const, Art IV, § 19 (require-

ments for vote on “every bill or joint resolution”); Or Const,

Art IV, § 21 (requiring plain wording of “[e]very act, and

joint resolution”); Or Const, Art IV, § 25 (requiring major-

ity vote of both houses “to pass every bill or Joint resolu-

tion” and that “[a]ll bills, and Joint resolutions passed” be

signed by presiding officers of each house). This court’s

decision in Herbring, 92 Or 176, exemplifies that point:

The legislature had ratified the Eighteenth Amendment

to the United States Constitution by joint resolution.

This court held that a joint resolution was not a law, and

because it was not a law, the matter was beyond the reach

of the referendum power. See 92 Or at 182 (“as a joint res-

olution is neither a bill nor an act, it is not subject to the

referendum”).

128 Harisay v. Clarno

Similarly, in American Federation of Labor v. Eu,

36 Cal 3d 687, 206 Cal Rptr 89, 686 P2d 609 (1984), the

Supreme Court of California was presented with the ques-

tion of whether an initiative intended to force the California

legislature to call for a federal constitutional convention

regarding a balanced budget amendment was a proposal

to adopt a “statute” within the initiative power of article II

of the California Constitution. The court held that the ini-

tiative, mandating that the California legislature call for a

federal constitutional convention on penalty of stopping the

pay of all legislators until it was passed, exceeded the scope

of the initiative power because the measure did not adopt

a statute or enact a law. 36 Cal 3d at 694, 206 Cal Rptr

at 93, 686 P2d at 613. In resolving the question, the court

acknowledged its duty to protect the people’s rights of ini-

tiative and referendum but concluded that those rights were

limited:

“Even under the most liberal interpretation, however, the

reserved powers of initiative and referendum do not encom-

pass all possible actions of a legislative body. Those powers

are limited, under article II, to the adoption or rejection of

‘statutes.’ ”

36 Cal 3d at 708, 206 Cal Rptr at 103, 686 P2d at 623.

Accordingly, we conclude that the Secretary of State

correctly refused to certify IP 5 on the ground that it does not

propose a law within the meaning of Article IV, section 1, of

the Oregon Constitution, and so cannot be adopted through

the initiative process. See Herbring, 92 Or at 184 (“We have

here presented a case where it is proposed to put upon the

ballot for reference a proceeding by the legislature for which

the Constitution has made no provision, and which does not

belong to a class of subjects that can be referred under any

circumstances.”).

D. Federal Law Context

The parties have not asked this court to reach any

federal law issues to determine this case. However, we think

it is important for us to consider federal law as context for

the decision we do reach today. As we have already noted and

Cite as 367 Or 116 (2020) 129

explained, the Oregon Constitution was adopted within the

context of the United States Constitution, which is acknowl-

edged to be supreme. Our conclusion that the state initia-

tive power does not reach attempts to modify the federal

constitution implies that we should consider what, exactly,

the federal constitution itself requires for its amendment. In

doing so, we do not finally resolve the federal law issue. We

note only that existing United States Supreme Court prece-

dent supports our independent conclusion under the Oregon

Constitution that the state initiative power does not reach

applications for a federal constitutional convention, and that

the secretary accordingly acted properly under state law in

declining to certify IP 5.

In this case, plaintiffs ultimately seek to amend

the federal constitution through one of the mechanisms

prescribed by Article V of the United States Constitution.

Article V provides, in part:

“The Congress, whenever two thirds of both Houses

shall deem it necessary, shall propose Amendments to this

Constitution, or, on the Application of the Legislatures of

two thirds of the several States, shall call a Convention for

proposing Amendments, which, in either case, shall be valid

to all Intents and Purposes, as Part of the Constitution,

when ratified by the Legislatures of three fourths of the

several States, or by Conventions in three fourths thereof,

as the one or the other Mode of Ratification may be pro-

posed by the Congress[.]”

As can be seen, there are two ways by which a fed-

eral constitutional amendment can be proposed. The two

bodies who can propose such an amendment are:

(1) Congress; or

(2) a federal constitutional convention called by Congress

after application by “the Legislatures of two thirds of the

several States.”

As we will explain, it is doubtful that IP 5 con-

forms to Article V, which provides for applications by the

“Legislatures” of two-thirds of the states, not directly by the

people through the initiative power. We think that the inter-

pretation of Article IV, section 1, of the Oregon Constitution

130 Harisay v. Clarno

that we reach today does comport with Article V of the

United States Constitution.8

The United States Supreme Court has held that

the second reference to “Legislatures” in Article V pertain-

ing to the ratification of proposed amendments does mean

only the legislative bodies of the states—and not the peo-

ple acting directly in the exercise of the initiative and ref-

erendum power. Hawke v. Smith No. 1, 253 US 221, 40 S

Ct 495, 64 L Ed 871 (1920). The issue in Hawke No. 1 was

whether the voters of the State of Ohio could hold a referen-

dum on the state legislature’s ratification of what became

the Eighteenth Amendment (prohibition). The plaintiff had

brought an action in state court to enjoin the Ohio Secretary

of State from placing the matter on the ballot. The trial

court had granted a demurrer against plaintiff, and the

Ohio Supreme Court had affirmed. On certiorari, the United

States Supreme Court reversed.

First, the Court noted that the argument in favor of

Ohio’s referendum by the people rested on the assertion that

ratification requires “legislative action” by the state. 253 US

at 229. The Court rejected that claim:

“[R]atification by a State of a constitutional amendment is

not an act of legislation within the proper sense of the word.

It is but the expression of the assent of the State to a pro-

posed amendment.”

Id. at 229 (emphasis added).

8

The Court of Appeals had noted that as a possible alternate basis for its

hold that IP 5 did not constitute a “law” under Article IV, section 1. The court

explained that a United States Supreme Court case brought into question

whether the proposed initiative would be effective as an application for a federal

constitutional convention under Article V of the United States Constitution. The

court stated:

“In Hawke v. Smith [No. 1], 253 US 221, 227, 40 S Ct 495, 64 L Ed 871 (1920),

the United States Supreme Court held that the term ‘Legislatures,’ in its sec-

ond iteration in Article V regarding the ratification of proposed amendments,

refers to only legislative bodies of states rather than citizens acting through

the initiative and referendum power.”

295 Or App at 502 n 5. The Court of Appeals did “not further consider that issue,”

however, because it concluded that IP 5 did not constitute a “law” under the

Oregon Constitution. Id.

Cite as 367 Or 116 (2020) 131

Next, the Court discussed its analogous holding

in Hollingsworth v. Virginia, 3 US (3 Dall) 378, 381 n *,

1 L Ed 644 (1798), in which the Court had held that the

President has no ability to veto a proposed constitutional

amendment drafted by Congress. 253 US at 229-30.

Hawke No. 1 reiterated that Congress did not exercise the

legislative power when it drafted and referred a constitu-

tional amendment to the states, and by analogy, that the

states did not exercise legislative power in deciding whether

to ratify the amendment.

The Court then explained that the authority to

act under Article V derived purely from authority granted

by the federal constitution, not from any state lawmaking

power:

“It is true that the power to legislate in the enactment of

the laws of a State is derived from the people of the State.

But the power to ratify a proposed amendment to the Federal

Constitution has its source in the Federal Constitution. The

act of ratification by the State derives its authority from the

Federal Constitution to which the State and its people have

alike assented.”

253 US at 230 (emphasis added).

Finally, the Court distinguished a prior holding

that the state referendum powers could constitutionally

be exercised in connection with Article I, section 4, of the

United States Constitution, which authorizes the state

“Legislature[s]” to regulate “[t]he Times, Places and Manner

of holding Elections for Senators and Representatives.” 253

US at 230-31 (discussing Ohio ex rel. Davis v. Hildebrant,

241 US 565, 36 S Ct 708, 60 L Ed 1172 (1916)). The Court

explained again that state ratification under Article V is not

legislative action:

“Article I, § 4, plainly gives authority to the State to leg-

islate within the limitations therein named. Such legisla-

tive action is entirely different from the requirement of the

Constitution as to the expression of assent or dissent to a

proposed amendment to the Constitution. In such expres-

sion no legislative action is authorized or required.”

253 US at 231 (emphasis added).

132 Harisay v. Clarno

The Court’s ultimate holding expressly negated the

Ohio Supreme Court’s conclusion that the referendum could

even be submitted to the voters:

“It follows that the [Ohio Supreme Court] erred in hold-

ing that the State had authority to require the submission of

the ratification to a referendum under the state constitution,

and its judgment is reversed and the cause remanded for

further proceedings not inconsistent with this opinion.”

Id. (emphasis added). See also Hawke v. Smith, No. 2, 253

US 231, 40 S Ct 498, 64 L Ed 877 (1920) (applying Hawke

No. 1 to Ohio’s attempt to submit Nineteenth Amendment to

voters for referendum); National Prohibition Cases, 253 US

350, 386, 40 S Ct 486, 64 L Ed 946 (1920) (relying on Hawke

No. 1 for proposition that “[t]he referendum provisions of

state constitutions and statutes cannot be applied, consis-

tently with the Constitution of the United States, in the rat-

ification or rejection of amendments to it”).9

The Court of Appeals here correctly noted that

Hawke No. 1 also held that “Legislatures,” as used in

Article V, referred to the representative body of the state

rather than its lawmaking power. 295 Or App at 502 n 5; see

Hawke No. 1, 253 US at 227-28 (discussing meaning of term).

As discussed, Hawke No. 1 drew that conclusion from its

holding that ratification involves no state lawmaking, but,

rather, the exercise of a delegated federal power. The state

legislature has authority to ratify constitutional amend-

ments, not because the state constitution vests the legisla-

ture with authority to enact laws, but because Article V spe-

cifically grants that particular body the authority to decide

whether to ratify.

9

Plaintiffs have attempted to distinguish Hawke No. 1 by asserting that it

applies only “where the action to be taken by the state is merely a binary ‘yes

or no’ decision that involves no drafting of legislation.” Hawke No. 1 nowhere

drew any such distinction, either explicitly or implicitly. Its holding was based

on the source of the authority—Article V of the United States Constitution, not

the state constitution. Plaintiffs’ proposed distinction would also fail to explain

why Congressional drafting of a proposed constitutional amendment—which

definitionally is far more than “a binary ‘yes or no’ decision”—is not lawmaking

under Article I of the United States Constitution. See also Arthur Earl Bonfield,

Proposing Constitutional Amendments by Convention: Some Problems, 39 Notre

Dame Law 659, 662 (1964) (“The process of proposing amendments contemplates

a conscious weighing and evaluation of various alternative solutions to the prob-

lems perceived.” (Emphasis in original.)).

Cite as 367 Or 116 (2020) 133

The Maine Supreme Court had reached the same

conclusion even before Hawke No. 1 had been decided:

“Here again, the State Legislature in ratifying the amend-

ment, as Congress in proposing it, is not, strictly speaking,

acting in the discharge of legislative duties and functions as

a law making body, but is acting in behalf of and as repre-

sentative of the people as a ratifying body under the power

expressly conferred upon it by Article V. The people through

their [United States] Constitution might have clothed the

Senate alone, or the House alone, or the Governor’s Council,

or the Governor, with the power of ratification, or might

have reserved that power to themselves to be exercised by

popular vote. But they did not. They retained no power of

ratification in themselves but conferred it completely upon

the two Houses of the Legislature, that is the Legislative

Assembly.”

Opinion of the Justices, 118 Me 544, 546-47, 107 A 673 (1919).

Similarly, the Colorado Supreme Court has held:

“In ordinary legislative matters, the general assembly, of

course, derives its power from the people of the state, and

the people may reserve to themselves any power they desire,

but in the matter of the ratification of a proposed amend-

ment to the federal Constitution, the general assembly does

not act in pursuance of any power delegated or given to it

by the state Constitution, but exercises a power which it

possesses by virtue of the fifth article of the Constitution of

the United States.”

Prior v. Noland, 68 Colo 263, 268-69, 188 P 729 (1920).

While Hawke No. 1 explained that ratification is the

exercise of a federal power and not state lawmaking, two

years later the Court confirmed that the exercise of that fed-

eral power cannot be limited or abridged by the state con-

stitution. In Leser v. Garnett, 258 US 130, 42 S Ct 217, 66

L Ed 505 (1922), the underlying question was whether the

Nineteenth Amendment (the women’s suffrage amendment)

had been validly adopted. It had been argued that the req-

uisite number of states had not ratified the proposed amend-

ment, because “[t]he legislatures of five States, Missouri,

Tennessee, West Virginia, Texas and Rhode Island, were,

by the provisions of their respective state constitutions,

expressly forbidden to adopt amendments of the character

134 Harisay v. Clarno

of the Nineteenth, and were therefore incompetent to ratify

that amendment.” Id. at 135. The Court rejected the conten-

tion. Ratification of a federal constitutional amendment is

the exercise of a purely federal power, granted by the federal

constitution, and it cannot be abridged by state law:

“The argument is that by reason of these specific provisions

the legislatures were without power to ratify. But the func-

tion of a state legislature in ratifying a proposed amendment

to the Federal Constitution, like the function of Congress

in proposing the amendment, is a federal function derived

from the Federal Constitution; and it transcends any limita-

tions sought to be imposed by the people of a State.”

Id. at 137 (emphases added; citations omitted). See also

Walker v. Dunn, 498 SW2d 102, 103, 105-06 (Tenn 1972)

(provision of Tennessee Constitution purporting to prohibit

legislature from voting on ratification of federal constitu-

tional amendment until after elections had next been held

was invalid interference with state legislature’s exercise of

federal power under Article V).

As recently as 2015, the United States Supreme

Court reaffirmed the principle that ratification of a consti-

tutional amendment does not involve exercise of the state

lawmaking power. In Ariz. State Legis. v. Ariz. Indep.

Redistricting Comm’n, 576 US 787, 135 S Ct 2652, 192 L Ed

2d 704 (2015), the Court considered whether the people of

Arizona could, by initiative, take the redistricting power

from the state legislature and vest it in an independent com-

mission consistent with the Elections Clause (United States

Constitution, Article I, section 4, clause 1). In concluding

that it could do so, the Court summarized its prior decision

in Hawke No. 1:

“[In Hawke No. 1,] we held that ‘ratification by a State of a

constitutional amendment is not an act of legislation within

the proper sense of the word.’ 253 US at 229. Instead,

Article V governing ratification had lodged in ‘the legisla-

tures of three-fourths of the several States’ sole authority

to assent to a proposed amendment. Id., at 226. The Court

contrasted the ratifying function, exercisable exclusively

by a State’s legislature, with ‘the ordinary business of leg-

islation.’ Id., at 229.”

576 US at 806.

Cite as 367 Or 116 (2020) 135

We also note that the Massachusetts Supreme

Judicial Court has held that a state application for a fed-

eral constitutional convention is not lawmaking. Presented

with the question whether a legislative resolution applying

for a federal constitutional convention required the sig-

nature of the Governor, the court held that it did not. See

Op. of Justices to Senate, 373 Mass 877, 878-79, 366 NE2d

1226, 1227-28 (1977) (relying, in part, on Hawke No. 1 and

Leser, court held that “the word ‘Legislatures’ in the appli-

cation clause [of Article V] * * * does not mean the whole leg-

islative process”).10

More recently, in American Federation of Labor

v. Eu, the Supreme Court of California, citing Hawke and

other authorities, concluded that “when Article V refers

to an application by the ‘Legislatures’ of two-thirds of the

states, calling for a constitutional convention, it refers to

the representative lawmaking bodies in those states. Any

application directly by the people, through their reserved

legislative power, would not conform to Article V.” American

10

Cyril F. Brickfield, a commentator, concurs that the legislature’s author-

ity to apply for a federal constitutional convention does not involve exercise of

the state lawmaking power. In his Problems Relating to a Federal Constitutional

Convention, an expanded version of his doctoral thesis that was published by the

United States House of Representatives’ Committee on the Judiciary in 1957,

Brickfield concluded that state legislatures, in calling for a federal constitutional

convention, are exercising an Article V power and not the state authority to make

laws:

“Legislatures, in calling upon Congress to convene a convention, would not

seem to be acting in the exercise of a lawmaking power but as agencies of the

Federal Government, discharging a particular duty in the manner which the

Constitution requires. The matter of a Federal constitutional convention per-

tains exclusively to Federal affairs—not State domestic issues—and State

legislatures, in soliciting the Congress, would be acting as representatives

of the people of the State under the power granted by article V. The article

therefore imports a function different from that of lawmaker and renders

inapplicable the conditions which usually attach to the making of State laws.”

Id. at 10-11 (footnote omitted, citing Hawke No. 1); see id. at 11 (noting Hawke

No. 1’s statement that ratification does not involve legislation: “By the same rea-

soning, it would follow that the application process [for a federal constitutional

convention], like ratification, would fall within the same category as a select pro-

ceeding under article V.”); see also Cyril F. Brickfield, State Applications Asking

Congress to Call a Federal Constitutional Convention 2 (1961) (“The Supreme

Court, while never directly deciding, has indicated that in matters pertaining

to the amending process, the assent of State Governors is unnecessary because

the State legislatures are performing a Federal function—clearly different from

State lawmaking.” (Footnote omitted; citing Hawke No. 1.)).

136 Harisay v. Clarno

Federation of Labor, 36 Cal 3d at 703, 206 Cal Rptr at 100,

686 P2d at 620. Similarly, the Supreme Court of Oklahoma,

citing Hawke No. 1, held that a proposed state initiative to

force the state legislature to apply for a federal constitu-

tional convention “is facially violative of Article V. The law

is plain that the application for a convention must come from

the Legislature * * *, not from the people through exercise of

their initiative power.” Initiative Petition No. 364, 1996 OK

129, ¶ 9, 930 P2d at 191.

III. CONCLUSION

As we have explained, the voters did not intend the

initiative power reserved to the people under Article IV, sec-

tion 1, of the Oregon Constitution to extend beyond state

lawmaking. On its face, IP 5 sought to apply for a federal con-

stitutional convention under Article V of the United States

Constitution. The application plainly does not involve state

lawmaking. Thus, IP 5 was not authorized under Article IV,

section 1(2)(a), of the Oregon Constitution.

For the reasons discussed, the Secretary of State

correctly declined to certify IP 5. The trial court prop-

erly granted judgment on the pleadings, and the Court of

Appeals correctly affirmed.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.

Cite as 367 Or 116 (2020) 137

APPENDIX

INITIATIVE PETITION 2016-005

Oregon We the People Initiative

Whereas:

• Decisions by the U.S. Supreme Court have

equated spending money in elections with speech

and granted corporations the constitutional rights of

the People, permitting the wealthy to buy enormous

influence in our government through uncontrolled

political spending. This undermines the aspirations

of Oregonians to a true democracy with a level play-

ing field.

• Corporations, including for-profit and non-profit

organizations, unions, and other artificial legal enti-

ties, are created under state laws. There is no men-

tion of these entities in the Constitution.

• Money is property, not speech. Its unregulated

use for political purposes creates unequal access to

political power and influence. Money contributed

or spent for political purposes should he subject to

regulation.

Therefore:

(1) We the People of the state of Oregon, with the legis-

lative power retained by us under the Oregon Constitution

(including Article IV, Section 1, and Article II, Section 18),

hereby call for an Article V Convention by enacting into law

this Application, in accordance with Article V of the U.S.

Constitution, for the specific and exclusive purpose of con-

sidering a Constitutional Amendment consistent with the

following principles:

(a) Corporations Are Not People. Artificial enti-

ties, such as corporations, unions and non-profit cor-

porations, established by the laws of any State, the

United States, or any foreign state, shall have no

constitutional rights and shall be subject to regula-

tion by the People, through Federal, State or Local

law. Nothing in this clause shall be construed to

138 Harisay v. Clarno

limit the rights of the People as specified in the U.S.

Constitution and its Amendments.

(b) Money is Not Speech. Money is property and

shall not be construed as speech. The People, to

ensure a level playing field for all people regardless

of their economic status, empower and direct Federal,

State, and Local governments to regulate, limit or

prohibit the contribution and spending of money for

political purposes and to require full and prompt

public disclosure of all such transactions.

(2) This measure constitutes a continuing application in

accordance with Article V of the Constitution of the United

States, until at least two-thirds of the legislatures of the

several states have made similar applications pursuant to

Article V.

(3) A copy of this initiative shall be transmitted to the

President of the United States; to each member of the

Oregon Congressional Delegation; to the presiding officers

of the U.S. Senate and House of Representatives; to each

Governor and presiding office of each legislative body of

each of the United States.

(4) This Application shall be codified in Title 17 of Oregon

Revised Statutes.