May 24, 2000

Oregon Court of Appeals Adopts New Requirement Effectively Destroying Power of Voters to Amend Oregon Constitution

Today the Oregon Court of Appeals created and announced a new test that will invalidate all but the most vague initiatives and legislative referrals proposing amendments to the Oregon Constitution.

Under the court's new "necessarily implies" test, a constitutional initiative or referral is invalid (and none of its provisions take effect, regardless of the vote), unless the court determines that voters would "necessarily" have approved every single element of the measure, if those elements were stated separately.

"This makes no sense," said Lloyd K. Marbet, chair of the Coalition for Initiative Rights. "First, the court is just speculating about the wishes of the voters, with no evidence. Second, voters evaluate a measure as a whole and vote on it as a whole. This new test will invalidate virtually every amendment to the Oregon Constitution approved by voters, unless it is short and extremely vague."

Under this new test adopted by the Oregon Court of Appeals, a court first determines whether any such amendment causes more than one "change" to the Oregon Constitution. Such "changes" can be direct or indirect. Then the court determines whether "a vote in favor of one [of the changes] necessarily implies a vote in favor of the others." Sager v. Keisling, No. CA A105193, May 24, 2000. In both decisions issued today by the Oregon Court of Appeals, the court decided, without taking any evidence on the subject of voter preferences, that voters who favor one element of a measure (and therefore vote for it) might not "necessarily" support each and every one of the other elements of the measure. For example, the court concluded:

"A vote in favor of repealing the authority of state and local government to raise revenues except by means of a gross receipts tax does not, by any stretch of the imagination, necessarily imply a favorable vote on the alteration of the authority of the people to enact changes to the nature of the tax." Dale v. Keisling, CA A105873, May 24, 2000.

Thus, the court ruled that the proposed initiative would be invalid and ordered the Secretary of State not to allow the petitioners to collect signatures.1

"This new test would invalidate virtually every constitutional initiative or referral that contains any specificity or any coherence," said Lloyd Marbet, chair of the Coalition for Initiative Rights, "because it would be easy to subdivide any such measure into different elements and then speculate as to whether voters who liked element A might not have liked elements B, C, D, E, or F. This locks up the Oregon Constitution by making it virtually unchangeable."

CIR attorney Dan Meek explained:

Assume that an initiative is proposed to increase the corporate income tax and dedicate the funds to schools. Under the decisions announced today, those two effects would constitute two different "changes," thus requiring the court to speculate that a voter who approves the tax increase might not want to have all the funds dedicated to schools. Because a vote in favor of increasing the corporate income tax does not "necessarily imply" a vote in favor of dedicating the funds to schools, the new test would find this measure invalid. And the test announced today requires that the court conclude that anyone who favors an effect of an initiative (and thus votes for it) must "necessarily" favor all of the other "changes" resulting from the measure.

The only measures that could possibly survive this test would be extremely vague measures that the Legislature could then later define to its liking.

The respondents can now ask the Oregon Supreme Court to review the Court of Appeals's decisions, but the Oregon Supreme Court is not required to grant review. "If these decisions stand, then the people will not be able to propose or adopt any measure proposing a specific, coherent amendment to the Oregon Constitution."

This will also significantly delay any signature gathering efforts on any proposed constitutional amendment initiative, because it would enable opponents of the measure to tie it up in court for additional months. The two proposed initiatives invalidated by the court today were filed by their chief petitioners in August 1998. The process took 21 months to determine the validity of these measures.

Also, this will enable opponents of virtually any constitutional amendment which has been approved by voters to challenge the validity of that amendment under the new "necessarily implies" test.

Today's court decisions are available at:


Lloyd K. Marbet
Coalition for Initiative Rights
19142 S.E. Bakers Ferry Rd
Boring, OR 97009
(503) 637-3549
(503) 637-6130

Daniel Meek, attorney
10949 S.W. 4th Avenue
Portland, OR 97219
(503) 293-9021
(503) 293-9099 fax

1. In the Sager v. Keisling case, the court concluded that to the various provisions to "limit the authority of the people to enact tax measures generally and increases in the gross receipts tax specifically" and to "eliminate the authority of state and local governments to incur bonded indebtedness," among other provisions, were different changes, thus invalidating the proposed initiative.