Oregon Advisory Opinions September 15, 1971: OAG 71-68 (September 15, 1971)
Collection: Oregon Attorney General Opinions
Docket: OAG 71-68
Date: Sept. 15, 1971
Advisory Opinion Text
OAG 71-68.
Article I, Section IV of the Oregon Constitution was amended by the people in the May primary of 1968 to read in part as follows:
"(1) The legislative power of the State, except for the initiative and referendum powers reserved to the people, is vested in the legislative assembly, . . . .
. . .
"(3) (a) The people reserve to themselves the referendum power which is to approve or reject at an election any act or part thereof of the legislative assembly that does not become effective earlier than 90 days after the end of the session at which the act is passed.
"(b) A referendum on an act or part thereof may be ordered by a petition signed by a number of qualified voters equal to four percent of the total number of votes cast for all candidates for governor at the election at which a governor was elected for a term of four years next preceding the filing of the petition. A referendum petition shall be filed not more than 90 days after the end of the session at which the act is passed.
. . . .
"(4) (a) Petitions or orders for the initiative or referendum shall be filed with the Secretary of State. Signatures of qualified voters on an initiative or referendum petition filed with the Secretary of State that have not been verified before the filing of the petition may be verified thereafter, but signatures not verified within the 15-day period after the last day on which the petition may be filed as provided in paragraph . . . (b) of subsection (3) of this section shall not be counted."
To implement this section, the legislature enacted ORS 254.045 which provides that the filing officer of any initiative or referendum petition shall accept for filing sheets containing signatures which have not previously been certified by the verification officer as genuine. It further provides that as soon as the signature sheets have been accepted for filing, they shall be immediately returned to the county clerk for verification after the final filing date for the initiative and referendum petitions specified in the Oregon Constitution. Thereafter, all signature sheets shall be certified and returned by the county clerk to the filing officer not later than the 15th day following the filing date provided in the Oregon Constitution. The filing date, in this case, was September 8, 1971.
The change in the Constitution which allows an additional 15-day period beyond the final filing date during which signatures in support of an initiative or referendum petition can be certified by the county clerks to the Secretary of State, was the direct result of two Supreme Court cases decided in 1966. In the first of these cases, Kays v. McCall , 244 Or. 361, 418 P.2d 511 (1966), the court held that since the petitioners did not obtain sufficient signatures and have them verified on the due date for filing of an initiative
petition limiting the payment of property taxes to one and one-half percent, the petition failed. The court pointed out on page 373:
However, in this case, the court could not find any way in which the lack of the necessary verified signatures on the filing date could be avoided to make the petition valid." 'The great constitutional privilege of a citizen should not be taken away by a narrow or technical construction of a law regulating the exercise of such right.' Where there is a doubtful construction, 'the doubt should be resolved in favor of the people to initiate a law as they see fit to do so.' "
The second case was that of Stuart v. Weldon , 245 Or. 203, 421 P.2d 367 (1966), which concerned an initiative petition to repeal the Home Rule Charter of the County of Multnomah. In this case, the Registrar of Elections had certified only 13,779 signatures by 5:00 p.m. on July 7, 1966, the last date for filing of petitions containing the required 20,268 signatures. In this case, it later developed that a total of 21,154 genuine signatures had been filed with him. However, the court, after restating the rule set forth in Kays v. McCall , supra , held that the initiative petition failed in that it did not meet the constitutional or statutory requirements. Only 13,779 of the 21,154 signatures had been verified and certified by the due date. Because both attempted initiative petitions failed for want of sufficient verified signatures by the due date of the petitions, but
the petition would have had sufficient verified signatures if more time for verification had been available, the legislature submitted to the people the constitutional amendment which was approved in May of 1968 and is quoted in part above.
This purpose of the measure was stated in the Voter's Pamphlet for the Primary Election on May 28, 1968, as follows:
"The third purpose introduces new language into the constitution. Both the present constitution and this proposed amendment provided the same final date for the filing of initiative and referendum petitioners. However, the amendment proposes allowing an additional 15-day period beyond the final filing date during which signatures in support of initiative and referendum petitions can be certified by the county clerks to the Secretary of State."
The attempted referral of the measure to increase the cigarette tax is the first affected by the additional 15-day period to verify signatures.
The effect of a referendum upon a statute or ordinance has been best defined by the Supreme Court of the State of Ohio in the case of State ex rel. Nimon v. Village of Springdale , 6 Ohio St. 2d 1, 7, 215 NE2d 592, 596 (1966), in which the court stated as follows:
"An ordinance subject to the referendum is not effective and, hence, remains a 'proposed ordinance' until the expiration of the period during which it may be attacked, or if properly attacked by referendum, until the vote is taken."
The statement in this case seems almost axiomatic. However, if we apply this reasoning to the constitutional amendment, remembering the court's advice in Kays v. McCall , supra , on page 373, that "the great constitutional privilege of a citizen should not be taken away by a narrow or technical construction of a law regulating the exercise of such right", the effect of permitting the filing of a referendum petition and the acceptance not only of the verified signatures but also of those which have not yet been verified is to keep the law in the "proposed" state and not in an "effective" state. The time during which the law is not effective and remains subject to attack by a referendum petition has been extended. It is not until the end of this 15-day period that it is known whether or not the attempted referral has been successful. If the petition does contain enough signatures which have been verified as such by the county clerks not later than the 15th day following the filing date provided for in the constitution for the filing of a referendum, the referral has been successful and will not take effect until 30 days after the vote is taken as provided in paragraph (d) of subsection 4 of Article IV, Section 1 of the Oregon Constitution. If the referral has not been successful (which will finally be known upon the expiration of the 15-day period), then the law becomes effective.
Under another construction, the law may or may not be in effect beginning September 9, and no one will know during the 15-day period whether it will be found to have been in effect or not. This would create great uncertainty for the citizens and officials who are affected by the act to which the referendum applies. In situations such as this, the uncertainty can result in great hardship and harm to certain classes of citizens who must act under the measure, which may or may not be a law, under penalty of fines or other sanctions.
In contrast, the position we adopt permits certainty. The law is not in effect during the 15-day period; after expiration of the period, it will be known whether or not it is in effect. In essence, by amending the constitution in 1968, the people have said that if a referendum petition is filed with the Secretary of State not more than 90 days after the end of the session at which the act is passed, that petition, if it has sufficient verified and unverified signatures, will stay the effective date of that act for an additional 15 days, during which time the unverified signatures may be verified. If, after that time, there are sufficient verified signatures, the referendum is effective and the effective date of the act is postponed until 30 days after the election. If there are insufficient verified
signatures, the act shall take effect 15 days after the last day on which the petition may be filed. In this case, the effective date would be September 24, 1971. Until the expiration of these 15 days, the proposed legislation remains suspended.