Oregon Appeals Court: Secretary Of State Should Not Have Rejected Ballot Measures

Feb 12, 2020
Originally published on February 13, 2020 7:06 am

Secretary of State Bev Clarno acted improperly in rejecting three proposed ballot measures dealing with environmental protections last year, the Oregon Court of Appeals ruled Wednesday.

In the most authoritative opinion yet in an ongoing battle between Clarno and conservation groups, a three-judge panel concluded Clarno misinterpreted state law when she tossed the proposals. The court also found that a Marion County judge had erred in agreeing with the secretary in the matter.

The opinion, long predicted by lawyers watching the case, could signal an end to the monthslong court dispute over how Clarno has wielded her authority over potential ballot measures. Environmental and labor groups, along with Attorney General Ellen Rosenblum, have all opposed the Republican secretary’s reading of the law on that subject.

The Secretary of State’s Office did not answer Wednesday morning when asked if it would attempt to appeal to the Oregon Supreme Court.

At issue in the case were three initiative petitions spearheaded by the group Oregon Wild last year. The petitions differed in their specifics, but all proposed new policies for forest management in the state, including regulations on clear cutting, limits on aerial spraying of pesticides, and new rules for a board overseeing the Department of Forestry.

Clarno rejected the measures in September, finding they did not meet a constitutional requirement that ballot measures deal with a single subject. Clarno based her ruling on the informal titles the petitions had been given, which all dealt with protection of forest waters.

Since the specifics of the measures went farther than just forest waters, attorneys for Clarno accused petitioners of attempting to “logroll” disconnected issues into the proposals under the guise of protecting pristine streams.

“Plaintiffs’ smorgasbord of legislative topics is classic logrolling, and the Secretary properly rejected plaintiffs’ initiative petitions,” a court filing on Clarno’s behalf said.

But while Marion County Judge Daniel Wren agreed with that argument, the appeals judges found it implausible.

The court cited past Supreme Court cases, which gave leeway to initiative petitions in meeting the single-subject rule. It concluded that “it is relatively easy to identify a logical, unifying principle connecting the provisions of each measure: the regulation and protection of forestlands.”

The court further ruled that Clarno had “identified no authority” for her contention that the title of an initiative petition “governs the determination of a measure’s subject.”

“The law,” the court found, “is affirmatively to the contrary.”

The appeals court remanded the case back to Marion County, and directed a judge there to enter a judgment in favor of the measure’s petitioners.

The outcome of the case likely has more value as a legal principle going forward than in deciding what ballot measures Oregonians might vote on this year.

Earlier this week, conservation groups and timber companies announced a surprise agreement to drop a host of ballot measures each side had filed, and instead enter into mediated conversations for crafting new forest management rules. If the agreement moves forward, the three petitions contemplated by the ruling would be abandoned.

The suit over the forest initiatives was one of two Clarno faced over her decision to reject petitions. In another, the group Renew Oregon successfully challenged the secretary’s dismissal of two proposals aimed at reducing the state’s greenhouse gas emissions. Clarno’s attorneys indicated in January they would appeal that decision.

At the same time, the Secretary of State’s Office has seen a notable leadership change since Clarno first rejected the initiative petitions. In early January, Deputy Secretary of State Rich Vial resigned under unclear circumstances. Vial, a vocal defender of the office’s handling of ballot measures, indicated at the time that he and Clarno were in agreement on the issue.

The lawsuits have posed costs to Oregon taxpayers likely well above what a more typical challenge to Clarno’s authority might. That’s because the state’s Department of Justice disagreed with Clarno’s legal opinions, and declined to defend them in court.

As a result, Clarno has contracted with the law firm Schwabe, Williamson, and Wyatt for legal services. Public records obtained by OPB show that the Secretary of State’s office initially signed a contract for up to $30,000, but has since increased that amount to $150,000.

According to the Secretary of State’s Office, just $30,000 had been paid to the law firm as of Feb. 6.

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