Summary
In Geddry, the plaintiffs filed an initiative petition and signatures with the Secretary of State, but the secretary concluded that the initiative would violate the separate-vote requirement and therefore rejected it.
Summary of this case from Bowers v. BetschartOpinion
A164828
02-13-2019
Mary GEDDRY and John Brooker, Chief Petitioners and Electors of the State of Oregon, Plaintiffs-Respondents, v. Dennis RICHARDSON, Secretary of State of Oregon, Defendant-Appellant.
Christopher A. Perdue, Assistant Attorney General, argued the cause for appellant. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Ann B. Kneeland, Eugene, argued the cause and filed the brief for respondents. Gregory A. Chaimov, Tim Cunningham, and Davis Wright Tremaine LLP filed the brief amicus curiae for Oregonians for Food & Shelter, Oregon Forest & Industries Council, Oregon Farm Bureau Federation, Oregon Association of Realtors, Oregon Home Builders Association, and American Forest Products Association. Steven C. Berman and Stoll Stoll Berne Lokting & Shlachter, PC, filed the brief amicus curiae for Our Oregon.
Christopher A. Perdue, Assistant Attorney General, argued the cause for appellant. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Ann B. Kneeland, Eugene, argued the cause and filed the brief for respondents.
Gregory A. Chaimov, Tim Cunningham, and Davis Wright Tremaine LLP filed the brief amicus curiae for Oregonians for Food & Shelter, Oregon Forest & Industries Council, Oregon Farm Bureau Federation, Oregon Association of Realtors, Oregon Home Builders Association, and American Forest Products Association.
Steven C. Berman and Stoll Stoll Berne Lokting & Shlachter, PC, filed the brief amicus curiae for Our Oregon.
Before Ortega, Presiding Judge, and Powers, Judge, and Garrett, Judge pro tempore.
GARRETT, J. pro temporePlaintiffs brought this action seeking to enjoin defendant, the Secretary of State, to certify Initiative Petition 2016-055 (IP 55) for the 2016 ballot. The putative ballot measure would amend the Oregon Constitution to far-reaching effect by, among other things, empowering local communities to enact laws that would be "immune from preemption or nullification by state law, federal law, or international law." Based on legal advice from the Attorney General, the secretary refused to certify IP 55 on the ground that it violated certain constitutional requirements for proposed initiatives. The trial court reversed the secretary's decision, concluding that the secretary had exceeded his preelection authority by engaging in a "substantive" review and analysis to determine whether IP 55 complied with the Oregon Constitution. The court further declared that IP 55 facially complied with all constitutional requirements for proposed initiatives and—because the 2016 election had, by that point, already passed—ordered the secretary to renumber and certify IP 55 for the 2018 election based on the requirements that had been met in 2016. On appeal, the secretary challenges each of those rulings. For the reasons explained below, we reverse.
For much of the proceeding, Jeanne Atkins was the Secretary of State. For purposes of this opinion, we refer to the secretary as the one at the time of the judgment, Dennis Richardson, and accordingly use "him" or "his" to reflect that.
The facts are procedural and undisputed. In 2015, plaintiffs filed their initiative petition with the secretary for placement on the 2016 general election ballot. The measure would add the following section to Article I of the Oregon Constitution:
"Section 47. Right of Local Community Self-Government
"(1) As all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness, and the people have at all times the right to alter, reform or abolish their government should it become destructive to their fundamental rights or well-being, therefore the people
have an inalienable and fundamental right of local community self-government, in each county, city, town, or other municipality.
"(2) That right shall include the power of the people, and the power of their governments, to enact and enforce local laws that protect health, safety, and welfare by recognizing or establishing the rights of natural persons, their local communities, and nature; and by securing those rights using prohibitions and other means deemed necessary by the community, including measures to establish, define, alter, or eliminate competing rights, powers, privileges, immunities, or duties of corporations and other business entities operating, or seeking to operate, in the community.
"(3) Local laws enacted pursuant to subsection (2) shall be immune from preemption or nullification by state law, federal law, or international law, and shall not be subject to limitation or preemption under Article IV, section 1(5), Article VI, section 10, or Article XI, section 2 of this constitution, or Oregon Revised Statutes 203.035, provided that:
"(a) Such local laws do not restrict fundamental rights of natural persons, their local communities, or nature secured by the Oregon Constitution, the United States Constitution, or international law; and
"(b) Such local laws do not weaken protections for natural persons, their local communities, or nature provided by state law, federal law, or international law.
"(4) All provisions of this section are severable."
The secretary assigned the prospective petition an identification number, 2016-055, and plaintiffs submitted the required sponsorship signatures to the secretary. See ORS 250.045(1).
The secretary verified the sponsorship signatures and forwarded the text of IP 55 to the Attorney General for the drafting of a ballot title. See ORS 250.065. The Attorney General did so, and the secretary accordingly solicited public comments on the measure. See ORS 250.067(1). The secretary forwarded the received comments to the Attorney General, see id. , who then issued a letter to the secretary opining that IP 55 failed to comply with two requirements for proposed initiatives in the Oregon Constitution. Specifically, the Attorney General concluded that IP 55 likely violated the "separate-vote rule" of Article XVII, section 1, because the measure proposed multiple changes to the constitution that were not "closely related," including establishing both the "authority to create rights for one category of entities" as well as the "authority to alter or eliminate ostensibly ‘competing’ rights for a different category of entities." (Emphases omitted.) In addition, the Attorney General concluded that IP 55 likely violated the "revision rule" of Article XVII, section 2, because the text of the measure would "fundamentally alter[ ] numerous other constitutional provisions, the powers and responsibilities of the legislative and executive branches of state government, and the respective authority of state and local governments." The secretary adopted the Attorney General's opinion and, in April 2016, rejected IP 55.
Article XVII, section 1, provides, in part, that "[w]hen two or more amendments shall be submitted *** to the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separately."
Article XVII, section 2, sets out the exclusive method for how to revise the Oregon Constitution, and does not permit the proposal of constitutional revisions via the initiative power. The section provides, in relevant part:
"(1) In addition to the power to amend this Constitution granted by section 1, Article IV, and section 1 of this Article, a revision of all or part of this Constitution may be proposed in either house of the Legislative Assembly and, if the proposed revision is agreed to by at least two-thirds of all the members of each house, the proposed revision shall, with the yeas and nays thereon, be entered in their journals and referred by the Secretary of State to the people for their approval or rejection, notwithstanding section 1, Article IV of this Constitution, at the next regular state-wide primary election[.]"
Plaintiffs sought judicial review of the secretary's decision, alleging, among other things, that the secretary had violated plaintiffs' state and federal constitutional rights by "refus[ing] to issue a certified ballot title for and authorize the circulation of [IP 55] based on pre-election requirements under Article XVII, Section 1 and Article XVII, Section 2 of the Oregon Constitution," because the secretary "lacks the authority to conduct pre-election review on the asserted grounds." The parties submitted cross-motions for summary judgment, which the trial court took under advisement on November 10, 2016.Meanwhile, the constitutional deadline for submitting the requisite number of signatures for circulation in the 2016 general election passed in July 2016. See Or. Const., Art. IV, § 1 (2) (setting out deadline of four months before election). The 2016 general election itself happened on November 8.
In April 2017, the trial court issued a letter opinion denying the secretary's motion for summary judgment and granting in part and denying in part plaintiffs' cross-motion for summary judgment. Acknowledging that the secretary has the constitutional duty to review proposed measures for "procedural compliance with the Constitutional provisions regarding initiative petitions," the court nevertheless concluded that the secretary had exceeded that authority by engaging in a "substantive analysis" of IP 55:
"In this case, the analysis in the Attorney General's March 31, 2016 letter is a substantive review of the contents of IP 55. Unlike [ Holmes v. Appling , 237 Or. 546, 392 P.2d 636 (1964) ], IP 55 does not contain facial statements seeking to revise, in whole or in part, or replace the current Constitution. Divining the scope and intent of IP 55 is not possible without a substantive review and contemplation of its language. It was impermissible for the Secretary of State to deny circulation of IP 55 based upon the substantive analysis of the Attorney General."
The court ordered the secretary to renumber IP 55 for the 2018 election, issue a certified ballot title, approve the new measure for immediate circulation, and "count all verified signatures submitted for the sponsorship submission for IP 55 toward the total number of required signatures" for the new measure "to qualify [it] for the November 2018, or next appropriate, ballot." The court adopted those conclusions in a May 2017 judgment.
The secretary appeals that judgment, raising three assignments of error. In the first assignment, the secretary argues that the trial court erred in partially granting summary judgment for plaintiffs based on the court's conclusion that the secretary exceeded his authority by conducting a substantive analysis of IP 55 before the election. In the second assignment, the secretary argues that the trial court should have granted his motion for summary judgment because, according to the secretary, IP 55 violates both the separate-vote rule set out in Article XVII, section 1, and the revision rule set out in Article XVII, section 2. Finally, in the third assignment of error, the secretary contends that the trial court erred by ordering him to count IP 55's sponsorship signatures obtained for the 2016 election toward the number of signatures necessary to qualify the renumbered initiative for the 2018 election.
We begin with the third assignment of error, for two reasons. First, that assignment is resolved in the secretary's favor by a recent decision of the Supreme Court. Second, the secretary argues that a ruling in his favor on that issue renders the other assignments of error moot (although, as discussed below, the secretary requests that we nonetheless exercise our discretion to review one of those assignments).
While this appeal was pending, the secretary sought a stay of the trial court's judgment. The Appellate Commissioner issued a stay on several conditions, including that the Attorney General issue a certified ballot title so that electors who had earlier submitted comments on IP 55 could challenge the new ballot title before the Supreme Court. Accordingly, the secretary retitled IP 55 to IP 29 (2018) and the Attorney General certified the new initiative for the 2018 election based entirely on the sponsorship signatures and comments that were submitted for IP 55 in 2016. No one submitted new sponsorship signatures for IP 29 (2018) and the Attorney General never issued a draft ballot title for comment.
Two individuals who had submitted comments about IP 55 in 2016, Unger and Stagg, petitioned the Supreme Court to review the legal sufficiency of IP 29 (2018).See Unger v. Rosenblum , 362 Or. 210, 407 P.3d 817 (2017) ; see also ORS 250.085(2) (electors who commented on draft ballot title may seek review in Supreme Court). The court held that it lacked authority to review IP 29 (2018) because certain prerequisites for review, like the collection of sufficient sponsorship signatures and issuance of a draft ballot title for comment, had not been satisfied. Unger , 362 Or. at 225, 407 P.3d 817. The court rejected the argument that those requirements for IP 29 (2018) had been met because those same prerequisites for IP 55 were satisfied in 2016 and, according to the trial court's order, were required to be counted toward IP 29 (2018). Rather, according to the court, IP 55 had "expired" when the July 2016 deadline for collecting supporting signatures elapsed; therefore, to put a measure on the 2018 ballot, plaintiffs needed to "start over" at the next election cycle. Id. at 222-25, 407 P.3d 817.
In light of Unger , the secretary now asserts that we must reverse on the third assignment of error because the trial court lacked authority to order the secretary to "count all verified signatures submitted for the sponsorship submission for IP 55 toward the total number of required signatures to qualify an initiative for the November 2018, or next appropriate, ballot." We agree. Unger effectively "expired" IP 55 as of July 2016 and plaintiffs are required to begin the measure certification process anew for any future election. No affirmative authority supports the trial court's determination that signatures obtained for IP 55 in 2016 may be "counted toward" a new prospective initiative petition in a future election cycle, and that determination runs counter to the reasoning of Unger . See 362 Or. at 223-25, 407 P.3d 817. Accordingly, we reverse that portion of the judgment requiring the secretary to count IP 55's sponsorship signatures toward a future election.
Indeed, although the Supreme Court in Unger did not rule on that issue, it pointed to the clear implication of its analysis:
"It could be argued that our decision in this case necessarily means that the trial court erred in ordering the Secretary of State to assign a new initiative petition number to IP 55 (2016) and approve the renumbered measure for circulation, long after the deadline passed for submitting signatures for the 2016 election cycle, which effectively determines the issues currently pending before the Court of Appeals in [this case]."
362 Or. at 225, 407 P.3d 817.
We turn to the first and second assignments of error, and we begin with the secretary's argument that reversal on the third assignment of error renders those other assignments moot. As we explain below, we agree that the other issues are moot but conclude that they remain justiciable under ORS 14.175.
An issue is moot if the court's decision on the matter will no longer have a practical effect on the rights of the parties. State v. K. J. B. , 362 Or. 777, 785, 416 P.3d 291 (2018) ; Couey v. Brown , 257 Or. App. 434, 439, 306 P.3d 778 (2013), rev'd on other grounds sub nom Couey v. Atkins , 357 Or. 460, 522-23, 355 P.3d 866 (2015). In the context of initiative petitions, typically, the expiration of the constitutional deadline for collecting supporting signatures for circulation will render moot any litigation over the legal sufficiency of the initiative. See, e.g. , Harisay v. Atkins , 295 Or. App. 493, 495, 434 P.3d 442 (2018) (challenge to proposed initiative moot after deadline for collecting supporting signatures for circulation passed); Couey , 257 Or. App. at 443, 306 P.3d 778 (same). As noted, that deadline in this case elapsed in 2016, and IP 55 has "expired." Unger , 362 Or. at 223, 407 P.3d 817. Thus, no decision in this case will have any practical effect on IP 55. Furthermore, in light of our conclusion (based on Unger ) that the trial court erred by ordering signatures for IP 55 to be counted toward the requisite number of signatures for a future initiative petition, a decision on the first and second assignments of error would not have a practical effect on any currently pending petition. Therefore, the issues raised in the first two assignments are moot.
Even where an issue is moot, however, we still may exercise our discretion to review it if, under ORS 14.175, it remains justiciable as a constitutional challenge to the act of a public body that is capable of repetition, yet likely to evade review. Harisay , 295 Or. App. at 496, 434 P.3d 442 ; Eastern Oregon Mining Assoc. v. DEQ , 285 Or. App. 821, 829, 398 P.3d 449, rev. allowed , 362 Or. 175, 406 P.3d 612 (2017). Here, the conditions of ORS 14.175 are satisfied. First, plaintiffs have standing to challenge the secretary's decision. See ORS 14.175(1) ; see also ORS 246.910 (appeals for acts and orders by secretary). Second, the issue is "capable of repetition" because plaintiffs could resubmit the same or a similar initiative petition in a future election and the secretary could reject it for the same reason as here. ORS 14.175(2). Third, future challenges to similar initiative petitions are "likely to evade judicial review" because election cycles are short and the judicial process can be lengthy. ORS 14.175(3) ; see Harisay , 295 Or. App. at 496, 434 P.3d 442 (applying "capable of repetition, yet evading review" exception to election-related challenge); State ex rel Smith v. Hitt , 291 Or. App. 750, 753-54, 424 P.3d 749 (2018) (same). The question remains whether we should exercise our discretion to review the moot issues. We conclude that several prudential considerations weigh in favor of considering at least the first assignment of error. See Eastern Oregon Mining , 285 Or. App. at 830-32, 398 P.3d 449 (detailing nonexclusive list of "prudential justifications" that courts consider in choosing whether to review moot issues). Both parties request our resolution of the issue and have advanced fully developed arguments that the trial court has had the opportunity to consider. In addition, the issue raised in the first assignment—namely, the scope of the secretary's preelection authority to review initiative petitions for compliance with constitutional requirements governing the initiative power—has obvious implications for future elections and is an issue of public importance. See id. at 831-32, 398 P.3d 449 (considering both whether the issue affects a "wider group of parties or interests" than only the parties in the case and whether the issue is one of "relative public importance").
We thus exercise our discretion to review the first assignment of error. As noted, the trial court concluded that the secretary exceeded his authority by engaging in a "substantive review" of IP 55 and declining to certify the measure based on his determination that the measure contravened Article XVII, sections 1 and 2, by proposing (1) multiple constitutional amendments that were not "closely related" and (2) a revision, rather than an amendment, to the constitution. On appeal, the secretary argues that the trial court misunderstood the nature of the secretary's constitutional role in the process of certifying initiative petitions. We agree with the secretary. The initiative power is broad but not unlimited. The Oregon Constitution circumscribes that power in several ways. For instance, Article XVII of the Oregon Constitution prohibits the use of an initiative measure for the proposal of multiple unrelated constitutional amendments, revisions to the constitution, and entirely new constitutions. Holmes , 237 Or. at 552, 392 P.2d 636. Article IV, section 1(5), provides that local initiatives and referenda cannot be a vehicle for the proposal of measures that are administrative, executive, adjudicative, or advisory in nature. See, e.g. , City of Eugene v. Roberts , 305 Or. 641, 649, 756 P.2d 630 (1988) ; Rossolo v. Multnomah County Elections Div. , 272 Or. App. 572, 584, 357 P.3d 505 (2015).
The parties agree that, in addition to prescribing certain requirements for the valid use of the initiative power, the constitution entrusts the secretary with the responsibility for monitoring compliance with those requirements. See Or. Const., Art. IV, § 1 (4)(a) (proposed initiatives are filed with the secretary); Or. Const., Art. IV, § 1 (4)(b) (initiative petitions must be "submitted to the people as provided in" Article IV, section 1, "and by law not inconsistent therewith"); cf. OEA v. Roberts , 301 Or. 228, 232, 721 P.2d 833 (1986) (secretary has preelection duty to certify compliance of proposed initiative with requirement in Article IV, section 1(2)(d), that a "proposed * * * amendment to the Constitution shall embrace one subject only").
The parties further agree that the secretary's preelection review authority to ensure compliance with the constitution does not extend to reviewing measures for substantive constitutionality. That is, the secretary may not refuse to certify an initiative merely because the secretary believes that the substance of the measure, if enacted, would violate either the state or the federal constitutions. Neither may a court prevent a measure from appearing on the ballot because of general constitutional concerns. See, e.g. , State ex rel Fidanque v. Paulus , 297 Or. 711, 716, 688 P.2d 1303 (1984) ("[N]either the court nor the Secretary of State could review the merits of the proposed initiative for its constitutionality before enactment[.]"); cf. Foster v. Clark , 309 Or. 464, 471, 790 P.2d 1 (1990) (courts "may not inquire into general questions of constitutionality" before the election).
The dispute in this case is whether the secretary's actions regarding IP 55 constitute, on the one hand, legitimate preelection review for compliance with the Oregon Constitution's procedural rules regarding the initiative process, or, on the other hand, illegitimate preelection review for "substantive constitutionality." The secretary argues that his review of IP 55 was permissible because it was not a review of the measure's general constitutionality; rather, the secretary merely was fulfilling his constitutional duty to ensure that proposed measures meet threshold constitutional requirements directly governing the initiative power , which necessarily involves reading a measure's substance and applying legal tests for determining whether it complies with the separate-vote and revision rules of Article XVII. See, e.g. , Armatta v. Kitzhaber , 327 Or. 250, 277, 959 P.2d 49 (1998) (measure violates separate-vote rule if it proposes multiple amendments that are substantive and not "closely related"); Holmes , 237 Or. at 552, 392 P.2d 636 (assessing whether proposed measure violated the revision rule).
The trial court took a different view, which plaintiffs urge on appeal. As we understand it, the trial court reasoned that, in order to reconcile (1) the secretary's obligation to review for procedural compliance with the constitution with (2) the prohibition on reviewing for "substantive" constitutionality, the secretary may invalidate a measure on the basis of the separate-vote or revision rules only if the secretary can discern from the "face" of the petition—that is, without a "substantive review" of the measure's text—that one or more of those rules is violated. Hence, the trial court explained that IP 55 does not contain "facial statements seeking to revise, in whole or in part" the current constitution. (Emphasis added.) Rather, "[d]ivining the scope and intent of IP 55 is not possible without a substantive review and contemplation of its language. " (Emphasis added.)
We do not understand the Supreme Court's decisions in this area to rest on the distinction that the trial court appears to have drawn between preelection "substantive" analysis of a proposed measure for compliance with Article XVII and some type of lesser review. It is true that the secretary may not invalidate a measure because of his belief that the measure, if enacted , would substantively violate another provision of the state or federal constitutions. That does not mean, however, that the secretary may not engage in "substantive" review to determine whether the measure complies with the limitations on the initiative power itself set forth in the Oregon Constitution. In Holmes , the court held that the content of an initiative petition violated one such limitation—the "revision rule" of Article XVII, section 2—noting:
"Since the plaintiffs' petition proposed to submit to the people, under the initiative, a change in our constitution which the Attorney General advised the [secretary] would constitute a revision, the [secretary] necessarily was required to determine whether our laws granted him authority to pursue the course which the plaintiffs requested."
237 Or. at 554-55, 392 P.2d 636. That language does not condition the secretary's authority to review measures for compliance with Article XVII on that review being "facial" only, as opposed to a substantive legal analysis of the measure's text. Other decisions of the Supreme Court since Holmes are consistent with the idea that the secretary may (indeed, must) review measures before certifying them for compliance with Article XVII's limitations on the use of the initiative power, and none of them suggest that that obligation must be fulfilled without "substantive" review and analysis. See OEA , 301 Or. at 232, 721 P.2d 833 (secretary has preelection duty to certify compliance of proposed initiative with requirement in Article IV, section 1(2)(d), that a "proposed * * * amendment to the Constitution shall embrace one subject only"); Fidanque , 297 Or. at 715 n 5, 688 P.2d 1303 ("Approval by the Secretary of State is conditioned not only upon verification of the required number of sponsor signatures, but also upon determination that the use of the initiative power in each case is authorized by the Constitution.").
Plaintiffs have made no persuasive argument that the foregoing authorities restrict the secretary's authority to review a measure for compliance with Article XVII. Instead, they rely on State ex rel. v. Newbry et al. , 189 Or. 691, 222 P.2d 737 (1950), in which the Supreme Court declined to consider a challenge to a proposed initiative based on the separate-vote rule because, according to the court, such review would amount to an impermissible review of the measure's constitutionality in violation of the separation of powers and the unitary power of the legislature. Id. at 697, 222 P.2d 737.
Newbry has been disavowed. In Foster , the Supreme Court took note of Newbry and several cases adhering to it, but then discussed a separate line of later cases holding that measures may be rejected before an election so that they are kept off the ballot where "the measure is legally insufficient to qualify for that ballot." 309 Or. at 469-70, 790 P.2d 1 (citing, among other cases, Holmes ). Observing that those two lines of cases appeared to "run in different directions," the court expressly rejected the Newbry line of authorities, which it said were not as "clearly reasoned." Id. at 470-71, 790 P.2d 1. The later line of cases, the court explained, stated the "correct rule": Proposed initiatives may be evaluated before an election to determine whether they are of the type authorized by the Oregon Constitution to be placed on the ballot but may not be evaluated for "general questions of constitutionality, such as whether the proposed measure, if enacted, would violate some completely different portion of the constitution." Id. at 471, 790 P.2d 1. Applying that "correct rule," the Foster court concluded that a proposed initiative could be challenged before an election on the ground that it was not "municipal legislation" under Article IV, section 1(5), because "that qualifying language is used in the constitution itself." Id.
See also, e.g. , Maginnis v. Childs , 284 Or. 337, 339, 587 P.2d 460 (1978) ; State ex rel. Carson v. Kozer , 126 Or. 641, 645-48, 270 P. 513 (1928).
In Meyer v. Bradbury , 205 Or. App. 297, 302, 134 P.3d 1005, rev'd on other grounds , 341 Or. 288, 142 P.3d 1031 (2006), we summarized the Foster rule as turning on whether a preelection challenge to the text of a proposed initiative is "based on language in the constitution that qualifies or limits the initiative power." Under that statement of the rule, we concluded that the substance of a proposed initiative could be challenged before an election on the basis of the separate-vote requirement because Article XVII expressly limits the initiative power itself—in other words, it "speaks to the ‘legal sufficiency’ of a proposed initiative." Meyer , 205 Or. App. at 303, 134 P.3d 1005.
In short, plaintiffs' reliance on Newbry is misplaced because that case has been superseded by other Supreme Court cases, which support a conclusion that the secretary may review a proposed measure for "legal sufficiency," that is, compliance with the limitations that Article XVII places on the initiative power. For the foregoing reasons, we conclude that the trial court erred to the extent that it determined that the secretary exceeded his authority by reviewing IP 55 for compliance with the rules set out in Article XVII. That conclusion leaves unresolved the issue raised in the secretary's second assignment of error: whether IP 55 violated Article XVII. Because the trial court resolved this case on the basis that the secretary could not engage in "substantive" review at all , the trial court did not reach the issue of whether the secretary's analysis was correct on the merits. As discussed above, this issue is moot but justiciable under ORS 14.175 ; accordingly, we must first determine whether to exercise our discretion to review it. See Eastern Oregon Mining , 285 Or. App. at 829, 398 P.3d 449.
In making that determination, we consider it significant that, following the Unger decision, the secretary has conceded that the second assignment is moot yet has not asked us to review it. Rather, the secretary appears to take the position that we need only address the first assignment, which, in his view, presents an "issue of ongoing constitutional concern." Plaintiffs, for their part, argue:
"As a procedural matter, this court should decline to engage in a review of the substantive application of the separate-vote and revision rules to [IP 55] for the first time on appeal. Rather, if further review and orders are necessary, this court should remand this case to the trial court for review consistent with this court's decision."
Plaintiffs also note that the trial court did not have the opportunity to consider defendant's alternative arguments regarding IP 55's validity under the "substantive" tests applied by the secretary and Attorney General. Cf. id. at 831, 398 P.3d 449 (in deciding whether to exercise discretion to review moot issue, court may consider whether a future case might present a more developed record).
Unlike the first assignment of error, which presents a widely-applicable issue of ongoing importance—the scope of the secretary's preelection review authority—the second assignment of error raises a fact-bound question of whether the language of a now-expired initiative petition was compliant with Oregon constitutional requirements. See id. at 834, 398 P.3d 449 (declining to exercise discretion to review moot issue that "raises a case-bound question that, although perhaps [is] significant to this now-mooted case, does not present a recurring legal issue that has implications beyond this particular litigation"). Moreover, it is not apparent to us that a challenge concerning a measure like the one at hand is "likely to arise often." Id. at 831, 398 P.3d 449 (emphasis omitted); see also id . (judicial economy favors not reviewing moot issues that are unlikely to reoccur). Those points diminish the public importance of the issue. See id. at 833, 398 P.3d 449. Accordingly, we decline to exercise our discretion to reach the merits of that moot question.
Reversed.