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INITIATIVE UNDER ATTACK
Oregonians who take their intiative and referendum
rights for granted do so at their own peril. Direct legislation —
the voters writing and unw riting laws at the ballot box —
depends on a judiciary ready to protect the petition process.
Over the century, Oregon courts have been uncertain allies.
Current cases before the courts call for a review of the history of
the initiative in our state.
When Oregon borrowed the Initiative and Referendum
from Switzerland in 1902, it borrowed a revolution. By using the
initiative to enact laws the legislature w ouldn't and the
referendum to veto laws the legislature shouldn't, voters
became part of an expanded system of checks and balances. The
political crises of that era dem anded no less.
In his 1898 retirem ent address, president of the Oregon
Bar Association Judge Stephen Lowell, of Pendleton, lamented
that local, state and national governm ents had become
governm ents "of the people, by the politicians and for the
corporations." At the time the legislature, not the people,
selected Oregon's U.S. Senators. When it came time to choose
the next U.S. Senator, Salem became the scene of barely-
concealed bribery and shameless auctions. Tum-of-the-century
magazines reported that one national corporation offered
$25,000 for just two votes during the 1897 session.
The state legislature also controlled writing and
amending local government charters. Legislators from Roseburg
could trade votes with legislators from Portland to secure
changes in local laws inimical to the interests of all but a few
influential local citizens.
Armed with the initiative and referendum , the
statewide electorate began to reform a government that had
become too corrupt to reform itself.
In 1906 the initiative was used to:
—Extend to local voters the exact same petition rights
as those available statew ide.
—Forbid the legislature from amending local charters,
thereby placing control over local laws in the hands of the
people who had to obey them.
—Approve a prim ary system that allowed Oregon to
become the first state in the Union to select its federal senators
at the polls. (States across the country followed Oregon's lead
and the 17th Amendment spread direct election of senators
nationwide in 1913.)
Subsequent elections saw approval of initiative
m easures giving voters the right to recall elected officials,
limiting the am ount of money that could be spent in campaigns,
and restricting the pow er of the legislature to impose new
taxes.
Even though the initiative has been used many times
since 1902 and Oregonians take its rights for granted, there
have been no persistent champions to defend the people's rights
as special interests opposed to public control of state law have
sought to erode the initiative’s impact.
In 1908, the Oregon Supreme Court first drew the crucial
distinction betw een legislative actions (allowed by initiative)
and adm inistrative actions (not allowed by initiative). At
various times through the decades that followed, the court has
draw n on this distinction to limit subject m atter of the
in itia tiv e .
Court opinions lim iting the initiative prevailed from
1913 into the 1920s. Two limitations put in place during this
period were allowing the legislature control of the timing of
statewide initiatives, and m andating that local voters could
not initiate local laws without the legislature's permission.
In the late 1920s, the court flip-flopped and actually
reversed some of its earlier rulings without comment. In the
1930s it flip-flopped back again, in favor of the rights of the
initiative. During World War II it was again restrictive, and
after W orld War II, more supportive of the initiative process.
This on-again, off-again support for the Initiative
Amendment has left Oregon's initiative law confused and
contradictory. Even when the petitioners have the money to
hire a lawyer, there are no well-reasoned, consistent judicial
theories to support the initiative process.
Accordingly, corporations and local governments are
m ounting an increasingly successful attack on the initiative
process. The costs and difficulties in defeating these legal
challenges threaten to leave the petition process available
only to the wealthy.
Oregon courts, and various state and local officials, are
increasingly invoking the "legislative/adm inistrative"
distinction, thus frustrating local petition drives.
At the state level the legislative/adm inistrative
distinction is the result of who makes a decision: the acts of the
legislature are the former and the actions of the governor or
state agencies are the latter. For counties and cities there is no
such easy distinction. City councils and county commissioners
H O P E L. H A R R iS
L IC E N S E D
MASSAGE
T H F R A C IS T
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MARTIN KOZLOWSKI
BY GREG WASSON
take both legislative and adm inistrative actions, and there is
no neat way to separate them. The only reason to call an action
"adm inistrative” is to prevent the voters from acting on it.
In theory, this distinction does not represent a threat to
the people's petition power. In practice, however, the courts
are labeling more and more governmental decisions
"administrative" and beyond control of the initiative and
referendum . Several local battles illustrate the danger of this
trend:
Foster v. Clark has led the attack on the local petition
process. In 1990, the Portland City Council renamed Union
Avenue in honor of the Rev. Martin Luther King, Jr. The council
then adopted an ordinance governing future name changes.
Citizens submitted enough signatures to force a vote on restoring
the original name. The Multnomah County Circuit Court
blocked the election.
According to the circuit court, when the city council
adopted the ordinance governing the naming of streets, it
transform ed such efforts into "administrative" decisions not
subject to the initiative. The Oregon Supreme Court affirmed
this decision. In effect, by passing a local ordinance, a city
council deprived local voters of their constitutional right to
initiative and referendum .
Foster v. Clark set in motion a series of court and
bureaucratic decisions giving government life and death control
of the initiative process. What follows is a list, by no means
exhaustive, of some of these decisions. Parenthetically, the
author adds that he knows of just one dispute resolved in favor
of petitioners.
—During the 1980s, the legislature enacted a statutory
scheme for constructing sewers. Under this statute, local
government decisions to construct sewers could not be referred. In
other words, by passing this statute, the legislature deprived
local voters of their constitutional right to initiative. The
Court of Appeals endorsed this usurpation of power, holding
that the legislature could give local government more power
than the constitution gives to the local voters.
—In 1989, Metro signed a 20-year, $208-million contract
with Jack Gray Transport to truck Metro's garbage to Arlington.
EDITOR'S NOTE:
Don't throw the baby out with the bathwater!
Cliches are so overused because they are so useful.
The baby here is the local initiative, which many
libertarians feel is being abused by hate groups like the Oregon
Citizens Alliance. The OCA m uddies the bathw ater, which
some think dirties the baby. Legislative action to nullify local
initiatives won by the OCA are cheered as would probably the
same action to cancel OCA's petition drives. The problem, of
course, is that the state will not stop its interference there.
The OCA represents an ancient prejudice using new
m ethods to foster its intolerance. If, however, the state is
allowed to use its muscle to prevent a popular vote, the people
of Oregon will assuredly lose a precious right of determining
their own governance. A powerful state government in the
hands of rightwing conservatives might well later ban
homosexuality and the people most affected will have nothing
to say about it except grumble in bars or hide their identities in
fear of repression.
As for popular election of federal senators, the present
examples don’t speak highly for the process. Perhaps if
Oregon's referendum were extended to include removing
tarnished or disgraced federal representatives the problem
would be less critical.
—MFMc
A referendum petition garnered sufficient signatures within the
90-day timeline to be taken to the voters. The M ultnomah
County Circuit Court blocked the referendum drive, calling the
decision "administrative." The Court of Appeals affirmed this
decision and the Oregon Supreme Court refused to grant review.
This case, Gray Transport, Inc. v. Ervin, is frightening for those
who value participatory government. Metro sets the majority of
its policies through awarding contracts. If the voters cannot
refer contracting decisions, they have no power over the
governing board.
—In 1990, Josephine County voters initiated an
am endm ent to the county charter limiting the salaries of county
commissioners. The local circuit court ruled that the setting of
salaries is "administrative" and cannot be done by initiative.
This decision, Hudson v. Feder, was reversed on appeal.
However, the county has chosen to ignore the Court of Appeals,
paying the commissioners thousands of dollars more than the
level set by the people. The Oregon Supreme Court has been
asked to intervene and order the county to obey the law.
—In 1992, the Corvallis City Council increased the
franchise fee they charged Northwest Natural Gas. The gas
company simply passed the increase through to its customers.
Many citizens viewed this as nothing more than a tax, with the
gas company playing the role of tax collector. When the
citizens tried to amend the city charter to repeal the tax, the
city recorder announced that franchise fees are an
"administrative" m atter, and refused to certify the initiative
for circulation. The Benson County Circuit Court refused to order
the recorder to accept the initiative. This failure was
challenged in Converse v. Mariner, which was argued in June
1993, and awaits a decision.
—The Multnomah County Commissioners recently
announced that benefits currently available to the spouses of
county workers will also be available to domestic partners,
with no marriage required. Certain citizens attem pted to pass
petitions to amend the county charter to repeal this action. The
county elections officer announced that the setting of benefits is
an "administrative" m atter and refused to certify the
initiative for circulation.
As these examples demonstrate, Oregon courts and local
governm ents are, with greater frequency, thwarting local
petition drives by invoking the legislative/adm inistrative
distinction. Simply put, local voters are being deprived of their
constitutionally guaranteed right to initiative by the
increasingly heavy-handed application of this distinction.
Oregon is experiencing an assault on the initiative, and
unless this current trend is reversed, a meaningful petition right
at the local level will not exist past the end of this century.
Greg Wasson is a lawyer in Salem. He m ade the above
presentation to a state board meeting of Oregon Common Cause
in May.
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