Kerr v. Bradbury

FILED: August 3, 2006

IN THE SUPREME COURT OF THE STATE OF OREGON

JEFFREY B. KERR,
MICHAEL KELLEY, and JANN CARSON,

Respondents on Review,

v.

BILL BRADBURY,
Secretary of State for the State of Oregon,

Petitioner on Review.

(CC 02C-21814; CA A121744; SC S51503)

En Banc

On petition for reconsideration submitted May 4, 2006.*

Charles F. Hinkle, ACLU Foundation of Oregon, Inc., filed the petition for reconsideration.

No appearance contra.

DE MUNIZ, C. J.

The petition for reconsideration is allowed, and the former opinion is adhered to.

*Kerr v. Bradbury, 340 Or 241, 131 P3d 737 (2006).

DE MUNIZ, C. J.

Jeffrey B. Kerr, Michael Kelley, and Jann Carson (petitioners) seek reconsideration of this court's decision in Kerr v. Bradbury, 340 Or 241, 131 P3d 737 (2006). We allow their petition for reconsideration and adhere to our decision as issued.

The controversy that gave rise to this case involved a initiative petition approved by the Secretary of State for circulation and signature gathering. Petitioners contended that, as approved, the petition violated the "full text" provision of Article IV, section 1(2)(d), (1) of the Oregon Constitution and brought an action against the Secretary of State seeking declaratory and injunctive relief. The Secretary of State prevailed at trial, but, on appeal, the Court of Appeals reversed the trial court's judgment. Shortly after that decision issued, the time limit for signature gathering expired without the initiative's sponsors submitting the necessary petition signatures to the Secretary of State's office. As a result, the initiative was not placed on the ballot for consideration by the voters. The Court of Appeals went on to award attorney fees to petitioners as the prevailing parties, and the Secretary of State sought review in this court.

Ultimately, we concluded that the case was no longer justiciable and dismissed the Secretary of State's petition for review as moot. Kerr, 340 Or at 243. In the course of doing so, we were also called on to consider whether we should vacate the judgments below. As part of our explanation regarding why vacatur was unnecessary, we wrote:

"Mootness in this case did not result from any unilateral act by the Secretary of State. However, the issue before us is whether we should vacate the decision of the Court of Appeals to prevent inequity or unfairness to the Secretary of State. Several facts militate against requiring vacatur here. First, the unreviewed decision of the Court of Appeals does not preclude the Secretary of State from prospectively executing his official duties in accordance with the views he espoused here regarding the "full text" provision of Article IV, section 1(2)(d). In the future, the Secretary of State may do so and may elect either to defend that view in response to litigation that other parties might file, as he did here, or he may initiate a proceeding, such as a request for a declaratory judgment under ORS 28.020, seeking clarification of his duties under the constitution. A denial of vacatur in this instance will neither inhibit the Secretary of State from administering his office as he sees fit nor require him to acquiesce in a constitutional interpretation with which he does not agree."

Id. at 251 (emphasis added; footnote omitted).

Focusing, in part, on the text highlighted above, petitioners now contend that the court has departed from prior Oregon law. Specifically, petitioners argue that this court has "held that the Secretary of State may ignore the law as the Court of Appeals has stated it, thus reducing the effect of the Court of Appeals decision in this case to that of 'a restricted railroad ticket, good for this day and train only.' Smith v. Allwright, 321 US 649, 669, 64 S Ct 757, 88 L Ed 987 (1944) (Roberts, J., dissenting)." On reconsideration, petitioners ask us to "disavow" that holding and reaffirm the principle that responsible state officials not only will, but must, honor all declarations of law made by the Court of Appeals.

Our holding in Kerr is not, as petitioners depict, a license granted to the Secretary of State to now ignore the Court of Appeals decision in this case. We left that decision in place after the parties' controversy became moot, and, in so doing, also quoted, with approval, the United States Supreme Court's observation that "'[j]udicial precedents are presumptively correct and valuable to the legal community as a whole.'" Kerr, 340 Or at 250 (quoting U.S. Bancorp Mortgage Company v. Bonner Mall Partnership, 513 US 18, 26, 115 S Ct 386, 130 L Ed 2d 233 (1994)). Having preserved the Court of Appeals decision here, we will not assume that the Secretary of State -- nor any of the parties, for that matter -- will now refuse to adhere to it.

That said, however, our holding in Kerr accurately reflects the degree to which the Court of Appeals decision should be regarded as controlling authority. Although that decision binds the parties in this case, and binds lower courts, it is not the last word on the full text provision of the Oregon Constitution, because mootness has denied the Secretary of State the opportunity to test, in this court, the merits of the Court of Appeals' holding on that issue. The Secretary of State, in an appropriate circumstance, may seek a ruling from this court on the constitutional question that previously eluded our review in this case. Petitioners' other arguments on reconsideration do not merit further discussion.

The petition for reconsideration is allowed, and the former opinion is adhered to.

1. Article IV, section 1(2)(d), provides:

"An initiative petition shall include the full text of the proposed law or amendment to the Constitution. A proposed law or amendment to the Constitution shall embrace one subject only and matters properly connected therewith."