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DOJ Argues Secretary Of State Is Misunderstanding Oregon State Law

Oregon Secretary of State Bev Clarno on the campus of Willamette University in Salem, Ore., Saturday, April 27, 2019.
Bradley W. Parks
Oregon Secretary of State Bev Clarno on the campus of Willamette University in Salem, Ore., Saturday, April 27, 2019.

As she seeks to defend her decision earlier this year to bounce a trio of proposed ballot measures, Oregon Secretary of State Bev Clarno has a new foe in court: Attorney General Ellen Rosenblum.

Earlier this month, the state’s Department of Justice filed a brief with the Oregon Court of Appeals arguing at length that Clarno’s rejection of the ballot measures lacked insight into past court decisions and indicated a misunderstanding of the initiative process.

Furthermore, the DOJ’s brief says that, should Clarno’s legal rationale be upheld by appeals judges, “a broad range of state laws would be called into question.”

In filing the brief, the DOJ is lending its voice to a chorus of environmental and progressive groups who say Clarno was off-base to reject the three proposals, which all had to do with forest management. Typically, the DOJ defends state entities in such circumstances.

The brief did not go as far as some critics who accuse Clarno, the only Republican currently in statewide office, of playing politics with the state’s initiative petition system by favoring logging companies’ interests over environmental concerns.

The fight stems from three initiative petitions filed in July with support from the group Oregon Wild. If passed by voters, the proposals would have created new protections in state forests, including regulations on aerial spraying and clear cutting. Each of the proposals also would have created new conflict of interest rules for the board that oversees the state’s Department of Forestry.

Clarno rejected all three of the initiatives, finding they ran afoul of a constitutional requirement that proposed ballot measures deal with “one subject only.” That's a similar requirement to one all bills passed by the Legislature face.

Clarno found that provisions in the measures extended farther than the informal titles their backers had given to them, and therefore should not move forward. For example, she said that a proposed rule against spraying pesticides near schools had nothing to do with protecting forest waters in a petition backers called the “Oregon Forest Waters Protection Act.”

The move was panned by environmental groups. Rosenblum, too, made no secret of the fact she disagreed with Clarno’s legal analysis, even refusing to defend the decision in court. But the secretary prevailed in Marion County Circuit Court when her ruling was challenged.

The petitioners behind the proposals have since appealed in hopes of having Clarno's decision reversed and moving forward with ballot measures. On Dec.19, the DOJ filed a 21-page brief agreeing with their arguments and laying out reasons it believes Clarno is wrong.

The document details past cases where proposals have been upheld, despite having a variety of somewhat disparate components.

“Courts have upheld even complex diverse statutes, and there is a longstanding presumption in favor of upholding a law against [legal] challenges,” the brief said. Initiative petitions, it continued, “must meet a low bar.”

The DOJ went on to say that Clarno incorrectly relied on the informal titles given to the ballot proposals in making her determination. That showed “some confusion” as to whether those titles mattered when analyzing a proposal, the DOJ wrote. “They do not.”

The DOJ is not the only outside entity chiming in. Our Oregon, a political group that pushes progressive ballot measures in the state, filed its own scathing brief with the appeals court on Dec. 20.

Clarno’s rejection of the three petitions “creates the strong impression that she has abandoned her role as a neutral, impartial and nonpartisan arbiter of Oregon’s election laws,” the group wrote. “Even if this is mere incompetence, it is a cause for significant concern to the public and undermines the public’s faith in the integrity of those tasked with overseeing Oregon’s elections.”

Clarno’s attorneys have not filed direct responses to either brief, but the secretary has been clear she stands by her decision. On Dec. 19, she rejected two more ballot proposals— both dealing with clean energy mandates — on the same grounds.

Copyright 2019 Oregon Public Broadcasting

Dirk VanderHart is JPR's Salem correspondent reporting from the Oregon State Capitol. His reporting is funded through a collaboration among public radio stations in Oregon and Washington that includes JPR.