Oregon Advisory Opinions October 24, 1972: OAG 72-65 (October 24, 1972)

OAG 72-65.

Ordinarily, the legislature could not be expected to complete its 1973 regular session until May or perhaps June. Since under Article IX, Section la of the Oregon Constitution, no emergency clause may be included in tax legislation, and under Article IV, Section 26, a measure without an emergency clause does not become effective until 90 days after the end of the session in which it is enacted, any tax measure enacted in such a session could not be effective until August or September. If such a measure is referred, which would not be known until shortly before, or even after, expiration of the 90-day period, the measure would not be effective until 30 days after the referendum election. Referendum elections are normally held at the next regular general election (i.e., November 1974), but the legislature may provide for a special election at an earlier time. Or. Const. art IV, § 1(4)(c); see 35 Op. Att'y Gen. 955 (1971).

Nevertheless it would be August or September, 1973, long after adjournment of the legislature, before it would be known whether the measure was referred, and if referred, it would not be known until even later whether the measure is to become law. Assuming the measure is referred and defeated, and that some substitute tax measure or budgetary adjustment is thus made necessary, the legislature would have to start over again in a special session, already well into the next fiscal year, with the prospect that any substitute tax measure might also have to face the referendum process.

In contrast, if the ultimate fate of the measure can be determined in May, with the legislature in session, immediate steps could then be taken if the measure is defeated to enact a substitute tax measure or make necessary budgetary adjustments. Accordingly, the following hypothetical schedule is offered for our consideration:

1. By February 15, 1973, the legislature will have enacted a massive tax reform bill and have sent it to the Governor for signature. The legislature will also have enacted a companion measure providing that if the measure is referred, the referendum election will be held on the first Tuesday following the 90th day after adjournment, or if on that 90th day referendum petitions with sufficient signatures have been filed, but sufficient signatures have not been verified, on the first Tuesday following the 105th day after adjournment.(fn1)

2. On February 16, 1973, the legislature will adjourn sine die , with the understanding that the Governor will immediately call a special session.

3. If on May 15, 1973, 90 days after adjournment, referendum petitions with a sufficient number of signatures have not been filed, the tax measure will go into effect; but if petitions with a sufficient number of signatures have been filed and verified, the referendum election will be held on the following Tuesday, May 21.

4. If on the other hand on May 16 petitions with a sufficient number of signatures have been filed, but not verified, and sufficient signatures are then verified no later than May 30, the 105th day after adjournment, the referendum election will be held on the following Tuesday, June 4.

5. If the voters reject the measure in the referendum election, the legislature will still be in session and will be able to enact necessary substitute legislation.

We first consider whether the legislature may avoid the effect of Article IV, Section 26, which provides that measures passed without an emergency clause(fn2) do not become effective until 90 days after adjournment of the session in which they are passed, by adjourning long before completion of the necessary work of the session, and reconvening in a few days upon the Governor's immediate call for a special session. We pointed out in 35 Op. Att'y Gen. 564 (1971) that the legislature cannot provide that

adjournment to a definite future time will be deemed to constitute the end of the session, for purposes of Article IV, Section 26. A measure without an emergency clause does not become effective until 90 days after the actual end of the session, and the session does not end until final adjournment sine die .

However, in this case it is proposed that the legislature would adjourn sine die . Regardless of the date or of the unfinished business which may exist, the legislature itself is the sole judge of when it shall adjourn. When it adjourns without setting a date to reconvene, the session is over, and the 90 day period specified in Article IV, Section 26 before legislation becomes effective, and the 90 day period specified in Article IV, Section 1(3)(b) for the filing of referendum petitions, begin to run.

It makes no difference that the Governor is expected to, and actually does, call an immediate special session. He may do this in his sole discretion, and no one may question his judgment in exercising this power under Article V, Section 12 of the Oregon Constitution. If the Governor fails to act, the legislature could neither call itself back into session, nor require the Governor to call it into session. See 35 Op. Att'y Gen. 564, supra . If the Governor does call a special session, it is an entirely separate and subsequent session under Article IV, Section 26, notwithstanding that the subjects dealt with would ordinarily have been handled in the regular session.

The first question is accordingly answered in the affirmative.

May the legislature provide, however, even before it is known whether a measure will be referred, that if it is referred the referendum election will be held only a few days after the referral is accomplished?

The Oregon Constitution provides:

"All elections on initiative and referendum measures shall be held at the regular general elections, unless otherwise ordered by the Legislative Assembly." Or. Const. art IV, § 1(4)(c).

In 35 Op. Att'y Gen. 955 (1971) we held at 956:

"We conclude that the legislature has power specifically granted by the Constitution to advance the date of a referendum, either to the preceding primary election, or to a special election held at some other time for that specific purpose."

However, this was the same situation covered in Libby v. Olcott , 66 Or. 124, 134 P. 13 (1913). The 1916 legislature enacted a measure providing:

"[T]here shall be held a special election . . . on the first Tuesday after the first Monday in November, 1913. All measures passed by the . . . [1913 legislature] upon which the referendum may be invoked shall be submitted to the people for their approval or rejection at such special election." General Laws of Oregon 1913, ch 321, § 1.

"It is . . . competent for the legislature to anticipate a condition likely to arise in the future, and consequently to provide legal rules applicable to such a contingency. This constantly happens in the ordinary course of legislation. Unless, therefore, it is forbidden by the Constitution, the legislative assembly, foreseeing possible referendums, might with propriety provide a rule of action in advance, controlling the procedure in such a situation." 66 Or. at 129.

The court's language applies with equal force to the proposed legislative action under consideration here, and we conclude with^ hesitation that the 1973 legislature may, immediately after enactment of the tax measure, enact another measure providing for the date on which the referendum election will be held, if the measure is referred.(fn3)

Similarly, we see no obstacle to provision by the legislature for alternative election dates, depending on whether the referral

is known to have succeeded by the 90th day, or whether signatures still remain to be checked during the 15 following days pursuant to Or. Const. art IV, § 1(4)(a). As approved in the Libby case, the legislature would simply be providing for alternative contingencies.

It is another question, however, whether the legislature may require the referendum election to be held only a few days after the referral is known to be successful. Is four or five days sufficient for opponents and proponents of the measure to make their views known to the electorate, or does this cutting off of debate, and of opportunity for the electorate to inform itself, destroy the opportunity for a meaningful vote in derogation of the referendum right quaranteed by the Constitution?

We suppose that grave constitutional questions would arise should the legislature, on May 15, order the holding of an election on May 20, on an issue which would otherwise have been submitted to the people much later. Five days is not sufficient time for the electorate to become informed; opponents and proponents, believing that they had substantial time remaining, would be deprived of any effective opportunity to present their views.

But this would not be the case. Under the hypothetical schedule, opponents and proponents would know more than 90 days in advance the fact that the election would be held on an exact date, or in the event of a contingency on another exact date two weeks later. We have no doubt whatsoever that 90 days is sufficient time for the full presentation of views, and for

full information of the electorate. We see no prejudice in the fact that it will not be definitely known whether an election will be held at all, for the opponents will be combining their signature drive with their attempts to inform the public generally; and proponents will be hoping with contrary arguments both to persuade electors not to sign referendum petitions, and to vote "yes" if the measure is referred.

We see no reason why such an election would not be as accurate a reflection of public will, and as fair to opponents and proponents, as an election held some months later. We accordingly also answer "yes" to the second question.

We point out, however, that in addition to ordering the referendum, the legislature must specifically authorize the Secretary of State and other election officials to undertake necessary pre-election preparations, before it is known whether any election will in fact be held. Care should be taken to provide for the inapplicability of the general statutes relating to explanatory statements and voters' pamphlets (ORS 254.220(2), 255.410 et seq.), and to make other specific requirements applicable, if desired.(fn4) While the Oregon Voters' Pamphlet is an excellent method of furnishing information to the voters, it does not rise to the status of a constitutional requirement and could be dispensed with in a particular case.

It is even more essential that special provision be made for absentee voting in the referendum election, under procedures substantially identical to those for any other election. See ORS chapter 253. The right of absentee voting is purely statutory, without direct constitutional protection, but it is likely that the court would hold that elimination or substantial limitation of the right of absentee voting for a particular referendum election would derogate substantially from the constitutional referendum right for that particular election.(fn5) It would be necessary to provide for the receipt of absentee votes even before it is certain that there will be an election, or the date it will be held; and to provide for the disposition of such ballots if the election is not held.

1 In 35 Op. Att'y Gen. 836 (1971), we held that if on the 90th day after adjournment referendum petitions with sufficient signatures have been filed, but sufficient signatures have not yet been verified, the effective date of the Act is further suspended under Or. Const. art IV, § 1(4)(a) for an additional 15 day period. If during that additional period sufficient signatures are verified, the Act, of course, does not take effect unless approved by the voters in the subsequent referendum election.

2 Including all measures relating to taxation or exemption. Or. Const. art IX, § la.

3 Provisions for the election should be made in a separate enactment, not as a part of the tax measure itself, since preparatory steps for the holding of the election would have to be taken before completion of the 90 days after adjournment. The election measure must therefore have an emergency clause to permit these preliminary steps.

4 See Oregon Laws 1963, ch 628, calling a special election to be held on the first Tuesday after the 130th day after adjournment, if a particular measure was referred, and making special provision for the preparation of a Voters' Pamphlet.

5 We do not believe that the Federal Voting Rights Act of 1968, as amended in 1970, would be applicable to require advance approval by the Attorney General of the United States of any restriction of the right to absentee voting. See 52 U.S.C. §§ 1973b, 1973c. However, we have not fully explored all aspects of the federal statutes and are not completely able to negate this possibility.