# Lowe v. Keisling > Court of Appeals of Oregon · September 1, 1994 · 130 Or. App. 1 URL: https://www.frixlaw.com/law-library/cases/9855108 ## Case - **Full name:** Ellen LOWE, David Fidanque, Greg Evans, David Allen, Dominick Vetri, John Baker, Bonnie Tinker and Doretta Schrock, Respondents - Cross-Appellants, and CITY OF PORTLAND, Intervenor-Respondent, v. Phil KEISLING, Secretary of State of the State of Oregon, Appellant - Cross-Respondent, and Lon MABON, Intervenor-Appellant - Cross-Respondent - **Court:** Court of Appeals of Oregon - **Decided:** September 1, 1994 - **Citations:** 130 Or. App. 1; 882 P.2d 91; 1994 Ore. App. LEXIS 1345 - **Precedential status:** Published - **Opinion:** Concurrence by De MUNIZ - **Judges:** De MUNIZ, De Muniz, Leeson, Richardson, Warren - **Cited by:** 10 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9855108 ## Opinion text De MUNIZ, J., concurring. I agree with the lead opinion’s ultimate resolution of the case. However, I disagree with the its conclusion that “the United States Supreme Court’s interpretation of the Guaranty Clause as presenting a purely political question that is exclusively for Congress and not the courts to decide, precludes the courts of this state from entering any declaration about compliance with the Guaranty Clause.” (Footnote omitted.) 130 Or App at 18. In State v. Montez, 309 Or 564 , 789 P2d 1352 (1990), in response to the defendant’s argument that the death penalty initiative under which he had been sentenced violated *21 Article IV, section 4, of the United States Constitution, the Supreme Court stated: “Defendant argues that the initiative procedure, under which the people of Oregon bypass both the legislature and the governor to enact laws, somehow violates Article IV, section 4, of the United States Constitution, which provides: “ ‘The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.’ “The United States Supreme Court has provided no practical guidance as to what constitutes a ‘republican form of government,’ because that Court has held that, within the federal government, the enforcement of the guarantee is assigned not to the federal courts but to the political branches. See Pacific States Teleph. & Teleg. Co. v. Oregon, 223 US 118 , 32 S Ct 224 , 56 L Ed 377 (1912) (challenge to a license tax enacted by an initiative measure). Thus, claims arising under Article IV, section 4, do not permit justiciable controversies in federal courts. “That does not mean that the states may not adjudicate the compatibility of state law with the guarantee clause. This court addressed that issue with regard to Oregon’s initiative system in Kadderly v. Portland, 44 Or 118, 144-45 , 74 P 710 , 75 P 222 (1903) (initiative and referendum does not abolish or destroy the republican form of government, or substitute another in its place). See Kiernan v. Portland, 57 Or 454, 469-80 , 111 P 379 , 112 P 402 (1910); Oregon v. Pacific States Tel. & Tel. Co., 53 Or 162, 166 , 99 P 427 (1909).” (Footnote omitted.) 309 Or at 603 . In a footnote, the lead opinion attempts to distinguish the Supreme Court’s analysis by concluding that “[t]o the extent that Montez could be read to suggest that Guaranty Clause questions might be appropriate for state court determination under some circumstances, we decline to read it in that way. Such a reading would conflict with the Supreme Court’s recognition that ‘a State may not impose such greater restrictions as a matter of federal constitutional law when this court specifically refrains from imposing them.’ Oregon v. Haas, 420 US 714, 719 , 95 S Ct 1215 , 43 L Ed 2d 570 (1975). (Emphasis in original.) Further, the court’s reliance in Montez on Kadderly v. Portland, 44 Or *22 118 , 74 P 710 , 75 P 222 (1903), Kiernan v. Portland, 57 Or 454 , 111 P 379 , 112 P 402 (1910), and Oregon v. Pacific States Tel. & Tel. Co., 53 Or 162 , 99 P 427 (1909), is questionable. Kadderly was decided before the United States Supreme Court’s opinion in Pacific States. The United States Supreme Court took review of Kiernan and Pacific States, and dismissed both cases for lack of a justiciable controversy, because it held that enforcement of the Guaranty Clause is a political question. Kiernan v. Portland, 223 US 151 , 32 S Ct 231 , 56 L Ed 2d 386 (1912); Pacific States Teleph. & Teleg. Co. v. Oregon, supra." 130 Or App at 19 n 16. The lead opinion’s reading of Pacific States is too broad. That case does not establish any restrictions regarding the relationship between a state government and its citizens. All that the United States Supreme Court said in Pacific States is that, within the context of the federal government, the guarantee that all states will maintain a republican form of government is a matter left solely to Congress. The Court’s pronouncement in Pacific States says nothing about the power of a state court to safeguard the republican form of government within its own boundaries. In my view, the issue presented by plaintiffs — that the proposed initiative measure violates the Guaranty Clause, because it is motivated by “passion” with the intent of depriving a particular group in society of certain rights and privileges — is the kind of issue that the Supreme Court in Montez identified as appropriate for resolution by a state court. However, the difficulty I have with plaintiffs’ claim is that their briefing of the issue falls short of the thoroughly researched and carefully documented presentation of the issues contemplated by the court in Montez . In this regard, the Montez court stated: “However, a challenge to a particular initiative measure under the Guarantee Clause obviously involves extremely important as well as difficult questions. It is not an examination to be undertaken lightly, especially when Oregon’s system of initiated legislation as such has long been sustained. See Kiernan v. Portland, supra, 57 Or at 469-80 ; Oregon v. Pacific States Tel. & Tel. Co., supra, 53 Or at 166 ; Kadderly v. Portland, supra, 44 Or at 144-45. It would require extensive briefing of the origins, the historic concerns and the drafters’ political theories underlying the *23 Guarantee Clause and how they might bear on the particular measure at issue. Such a thorough and focused analysis has not been presented in the present case. Nothing on the face of the death penalty statute leads us to venture into these uncharted waters on our own merely because the question is raised.” 309 Or at 604 . Plaintiffs appear to acknowledge the shortcomings of their presentation, but contend that, “[b]y granting defendant’s motion to dismiss, the trial court prevented [them] from making the sort of legal, historical and factual showing contemplated by the Supreme Court in Montez” I disagree. The issue is primarily one of law and could have been thoroughly analyzed and documented in the court below as well as in this court. Montez makes it clear that in absence of a thoroughly researched, documented and finely focused presentation, this kind of issue is not appropriate for judicial determination. Because the kind of presentation contemplated by the court in Montez has not been made here, I am compelled to conclude that the trial court did not err in dismissing count 1 of plaintiffs’ complaint. Richardson, C. J., and Leeson, J., join in this concurrence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9855108. Public record. Not legal advice.