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Court needs to draw line.

Byline: The Register-Guard

Oregonians are proud of their century-old initiative system, which allows citizens to bypass legislative lawmaking. But much of the structure of law built up by generations of Oregonians who have exercised their initiative rights could be vulnerable to legal challenge. The Oregon Supreme Court opened the door to such challenges, and must clarify just how far they can reach.

Two cases presented the court with opportunities to address that question last week, but the justices provided no guidance. The court decided two appeals of cases that sought to negate a 1910 initiative that created the state's modern court system. In one case, the plaintiffs sought to overturn the 2001 appointment of Thomas Balmer to the Supreme Court. In the other, plaintiffs appealed a 1999 Oregon Court of Appeals decision repealing a civil verdict against the city of Portland. The high court decided both cases without satisfying the need for certainty about the constitutional soundness of initiatives approved long ago.

The 1910 initiative made numerous changes in the state Constitution. In 1998, the Supreme Court ruled that initiatives may contain no more than one constitutional amendment. In subsequent decisions, the court applied that one-amendment standard retroactively, overturning four voter-passed initiatives. The four involved term limits, victims' rights, campaign finance regulation and property compensation.

The ruling in the term-limits case came almost a decade after voters approved Ballot Measure 3 in 1992 by a ratio of more than 2 to 1. The initiative set limits on how long state senators and representatives, as well as Oregon members of Congress, could serve. In 2002, the Supreme Court agreed that Measure 3 contained more than one constitutional amendment and, therefore, was itself unconstitutional. If the single-amendment rule can reach 10 years into the past, is any initiative safe?

The challenge to Balmer's appointment sought to answer that question. The plaintiffs alleged that the 1910 initiative contained more than one constitutional change and that the pre-1910 rules for court appointments should apply - meaning Supreme Court justices must represent geographic districts in the state. The court ducked the single-amendment question, saying it was "an issue that we find unnecessary to address here." The court simply ruled that "there is no question that Justice Balmer was permissibly elected from the state as a whole." Balmer was elected after his initial appointment.

The other case dealt with a 1999 Court of Appeals ruling in favor of the city of Portland and against a loan company. The loan company had argued that the Court of Appeals was itself invalid under the 1910 law and could not lawfully reverse a lower court's verdict against the city and in favor of the company. The Supreme Court essentially held that the loan company was trying to use one portion of the 1910 law to negate the rest of it.

The court will one day have to determine how far back its 1998 ruling reaches - or if there is any limit at all. If initiatives' vulnerability to challenge under the 1998 decision never expires, vast chunks of the Oregon Constitution approved by voters over the past 100 years could rest on shaky ground. The court ought to decide that after a certain length of time - 10 years would be about right - voter-approved initiatives become settled matters of law even if they contained more than one constitutional amendment. And the court needs to address this question sooner rather than later.
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Article Details
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Title Annotation:Can challenges reach back to 1910?; Editorials
Publication:The Register-Guard (Eugene, OR)
Article Type:Editorial
Date:Sep 12, 2003
Next Article:DeFazio makes a point.

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