Oregon Advisory Opinions December 13, 1966: OAG 66-146 (December 13, 1966)

Oregon Attorney General Opinions

1966.

OAG 66-146.

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90

The constitutional deadline for filing petitions for the initiative and referendum would not render invalid legislation allowing a period after such deadline for certification of signatures to such petitions.

You refer to our opinion No. 5919, dated February 11, 1965, wherein it was concluded that Article IV, § 1, Oregon Constitution, providing for the initiative and referendum,

"* * * does not require that the signatures on initiative and referendum petitions be certified prior to the date required for the filing of such petitions with the Secretary of State, and proposed legislation calling for the certification of signatures after the filing dates set forth in the Constitution would be constitutional."

You then state:

"If you are still of the same opinion, I would ask the 54th Legislative Assembly to amend ORS 254.040, to the extent of allowing a period during which signatures may be certified after the final filing date set forth in the Oregon Constitution."

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Opinion No. 5919 cited State ex rel. McPherson v. Snell, (1942) 168 Or. 153, 121 P. (2d) 930, where the Oregon Supreme Court held that Article IV, § 1, Oregon Constitution, while self-executing contemplates the enactment of legislation to facilitate the operation of the initiative and referendum so long as the same is reasonable.

Recently the Supreme Court said in Kays et al. v. McCall et al., (1966) 244 Or. 361, 367-368, 418 P. (2d) 511, 514, regarding an initiative petition:

"* * * The constitution does not purport to prescribe all of the requirements for a valid petition. It contemplates implementation by legislation. ORS 254.040 implements the constitution by requiring certification of signatures for a valid petition. Defendants do not contend that the legislation cannot prescribe reasonable requirements to assure the verity of initiative petitions. But defendants, in effect, argue that legislative requirements need not be met at the time the petition is filed if the requisite number of signatures appear on the petition. This is patently untenable. The purpose of the constitutional deadline would then be vitiated since it would not be possible to determine whether the petition was valid until some indefinite time after the deadline. By this reasoning the Director of Elections might not know whether the petition was valid until the very eve of the election. This could produce an intolerable situation because the Director of Elections might not be able to make the necessary preparations for putting the issue on the ballot, which is the very purpose of the constitutional deadline." (Emphasis supplied)

As noted by the court, signatures are required to be certified as at present because of legislation which implements the Constitution. Nothing in the language of the court above quoted would indicate that it is not within the province of the legislature to allow, with respect to such a petition, a period during which signatures may be certified after the constitutional deadline, so long as the petition itself has been filed within that deadline.

We therefore adhere to our opinion No. 5919 regarding legislation of the nature you describe.

We call your attention, however, as a policy matter, to the distinction between the initiative and the referendum in so far as the legal effect of filing a petition is concerned.

While an initiative petition properly filed in your office not less than four months prior to a general election merely serves to place the proposed measure on the ballot in the ensuing election, a referendum petition properly filed not more than 90 days after the final adjournment of the Legislative Assembly (that is, prior to the time when measures enacted by the assembly generally become effective) postpones the operation of a law until it is approved by subsequent vote of the people.

It may be considered desirable as in the public interest that no confusion should exist---not, at least, for an extended time---as to whether or not a referendum petition has the required number of valid signatures and, consequently, whether the enactment sought to be referred has or has not taken effect after the 90-day period. See Aad Temple Building Ass'n. v. City of Duluth, (1916) 135 Minn. 221, 160 N.W. 682.