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Friday, November 17, 2006

Measure 47: null and void

The State of Oregon isn't going to enforce Measure 47, which recently passed, because Measure 46 failed. We've blogged about this legal disaster area here before. Dan Meek and the boys have created a major rat's nest here, and the state's taking a do-nothing approach unless and until some judge tells the state it has to do something. Given the inartful drafting of the two measures, and the crazy outcome of the election, it seems the sensible thing to do.

Meek, my old law school classmate, will no doubt be outraged, but in some ways he himself is to blame for the mess. And if he's the guy who's going to draft the measure that convinces voters to bring public power to Portland, I suspect that it won't happen. Meek's a very smart man, but too smart by half for politics, I think. (Just so you know, that's about where I'd put myself, too.) (Via the Merc's Blogtown.)

Comments (5)

I had the honor of serving as co-counsel with Dan in an action against the Oregon Vote-By-Mail process, which I (accurately) captioned as being "Spawned in Fraud." Dan and I would (generally) agree on very little, but we absolutely agreed on this matter. Dan is (as Jack explains) one smart guy. Many lawyers would be wise to learn from him. Limitations on speech (which is what 46 and 47 all all about) are completey unacceptable to me and should be to all voters. But Dan is a straight up honest proponent of his views. Blissfully not political in the perverse definition of the day.

I love Dan, but when you look at the pages and pages that he cranked out on this one, you wonder whether a simpler approach might have been more productive.

Sorry about the typos; I just flew in from Tulsa, of all places. I understand the frustration felt by lawyers (like Dan) trying to insert some sanity into the political process in Oregon. Just try to make sense of the one-subject rule of the Supremes. It will make you mad (as in frothing).

Actually, I think the A-G's letter shows Meek got a significant win. The opinion letter validates more of Measure 47 than I thought it would. (See the last paragraph of the A-G letter, where it says ". . . all of Measure 47 will remain dormant . . ."). Perhaps this means that Meek can now concentrate on passing only one measure next time, instead of two. That seems to me like quite an accomplishment.

When I read Jack's thoughts, above, I thought he meant that the "dormant" language of 47 would not stand up. (I dont' think the defeat of 46 left any possibility that anything else in 47 could be enforced). But, I never thought the A-G would see the "dormancy" provisions of 47 as valid. (That "dormant" language states that if 46 fails, all of 47 shall be incorporated into Oregon statutes until such time as an enabling constitutional amendment passes.)

The A-G acceptance of the dormancy concept is so interesting. One lingering question, not addressed in the opinion, is whether the A-G will direct that all the statutory language of 47 be put into the ORS, as the dormancy language in 47 states. If the A-G's opinion means that this dormancy language will be codified in ORS, I think Meek might have a significant victory.

I, too, have always liked Meek quite a bit. It seems he succeeded in getting an important part of his measure enacted. Is this the end of the road? Or could the dormancy language still be challenged. And, it would be interesting to know if dormant language could be challenged, either by challanging the concept of dormancy at the Supreme Court, or by finding that the dormant language addressed too many subjects.

I'm not a lawyer. So I'd like to ask if anyone out there has ever heard of "dormancy" provisions, either in an initiative or by legislation, and whether the dormancy concept is often upheld.

Here is the A-G opinion letter link again:


Just read some old blogs on this, then the measure, one more time. But for a very few words, M-47 could have had a bit more than the dormancy provisions backed by the A-G opinion. (But 47's core, campaign contribution limits, had no chance). The accessory parts of 47 that the A-G COULD possibly have upheld were things like reporting requirements on sources of contributions and expenditures.

But because 9(f) in M-47 used two words ("this Act"), to describe what would remain dormant, the A-G said that even the parts of 47 that deal with reporting requirements will have to stay dormant, too.

Instead of "this Act" all that was needed was to insert a few words and change the clause to, for example: "the parts of this Act that address campaign contributions and expenditures." The A-G opinion believes that "this Act" meant the entire act. Wow. Too bad.

I think it is obvious that paragraph 9(f) as a whole intends dormancy to apply only to the actual contribution and expense limits that require a constitutional amendment, and not to the rest of the Act.

But, unless the A-G opinion is allowed to stand, I guess it's up to the courts to decide the accessory reporting requirement issues. From some of the previous blogs, it seems that the sponsors of M47 are likely to take that to court.

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