Oregon Secretary of State Bev Clarno faced backlash this year, after she rejected three proposed ballot measures filed by an environmental group, finding they were unconstitutionally overbroad.
The rejections — coupled with what critics believe was an atypical process behind them — spurred a lawsuit challenging the decisions and a split between Attorney General Ellen Rosenblum and Clarno that continues today.
Now, a Marion County judge has sided with Clarno, in a ruling some believe could lead to big changes in the state’s legislative process.
Oregon Secretary of State Bev Clarno on the campus of Willamette University in Salem, Ore., Saturday, April 27, 2019.
Bradley W. Parks / OPB
In an opinion issued Wednesday, Marion County Judge Daniel Wren found Clarno was correct when in September she tossed the three initiative petitions filed by the group Oregon Wild.
The decision suggests Clarno has wide latitude to decide whether proposed measures pass constitutional muster. Opponents vowed to appeal.
The disputed petitions all had to do with bolstering protections for water in Oregon forests, and their backers gave them informal titles like the “Oregon Forest Waters Protection Act” and “Protect Forest Waters from Clearcut Logging.”
But Clarno said the proposals ran afoul of a rule in the state Constitution that says initiative petitions must deal with “one subject only.” In court filings, she argued the actual impacts of the measures would be further reaching than their informal titles suggested.
For instance, while the proposed Oregon Forest Water Protections Act would have required the state to set legal buffers between water bodies and clear-cutting or aerial spraying, it also set buffers between aerial spraying and schools. And the proposal would have impeded members of the state Board of Forestry from voting on the regulations if they were deemed to have a conflict of interest.
Clarno said those provisions crossed the line.
“The ultimate aim of the single subject rule is to prevent logrolling, which is the practice of offering several provisions that could become law that, standing alone, could not have succeeded on their own merits,” said a court filing written on Clarno’s behalf. “Plaintiffs’ smorgasbord of legislative topics is classic logrolling, and the Secretary properly rejected plaintiffs’ initiative petitions.”
The secretary’s opponents strenuously disagreed. They argued that Clarno is being too strict, when the Oregon Supreme Court has been clear that the single subject rule could be interpreted broadly. Clarno has said she believes courts have been “lenient” in the past.
The plaintiffs also said Clarno had cast aside the normal process for analyzing whether a petition passes legal muster, ruling without first getting a written opinion from the Oregon Department of Justice.
“The Secretary chose instead to follow the advice of her Deputy Secretary of State and Elections Division director, who are both political appointees,” the lawsuit said.
Oregon Wild has hastened to point out that Clarno’s opinion was in line with arguments from timber interests, some of whom she accepted campaign money from as a lawmaker. The organization has filed three additional initiative petitions since Clarno rejected its initial attempts, but has made clear it wants to pursue the original proposals.
On Wednesday, Clarno applauded the judge’s decision.
“I am pleased the court has affirmed the importance of the single subject rule,” she said in a statement. “Voters should not need a law degree to interpret ballot measures.”
Meanwhile, Oregon Wild Executive Director Sean Stevens vowed to appeal the ruling, pointing out that the judge had included no analysis with his decision. Stevens and others have questioned in the past what Clarno’s reasoning could mean for lawmakers, who also need to abide by the Oregon Constitution’s single-subject rule when passing bills.
Attorney General Rosenblum raised a similar sentiment in October when she said the DOJ would not defend Clarno’s position in court.
“There is no question that, under current law, the legislature could pass a measure such as this one and it would be in full compliance with the 'single subject' requirement," Rosenblum said at the time. “I do not believe there is any compelling reason to argue for a change in the current law."
In correspondence released Wednesday, Rosenblum went further. A letter the attorney general sent Clarno on Oct. 24 said Rosenblum felt defending the secretary of state's decision would be "adverse to the interests of the Oregon Legislative Assembly and adverse to the interests of the people wielding the initiative power reserved to them by the Oregon Constitution."
In light of that, the secretary of state's office has contracted with outside counsel in the lawsuit against it. The Oregonian/OregonLive has reported the firm is billing $690 per hour for its services.
But it appears the conflict between Clarno and Rosenblum is far from over.
In a lengthy statement Wednesday, Clarno suggested that Rosenblum’s office only changed its take on the initiative petition rejections after opponents filed a legal challenge.
“To our surprise, the Department of Justice quickly made clear their position that winning this case was unlikely — a dramatic departure from their opinion only a few weeks prior that the case was a close call,” Clarno wrote. “The Department of Justice further advised we should drop the case and reinstate the initiatives and presented me with a form to sign that would give the department complete and full authority to settle the matter without my consent. I refused to sign this form.”
Clarno said the DOJ initially refused to stop representing her office in the case, but eventually relented. She further suggested that Rosenblum had violated attorney-client privilege by publicly weighing in on the lawsuit.
“We inquired of the Department of Justice as to whether Attorney General Rosenblum had, in fact, made the quotes and, if so, would she be retracting them," Clarno said. "The department refused to answer this inquiry and, to our knowledge, no such retraction was issued.”
It's possible the DOJ felt that Clarno had previously waived attorney-client privilege in the case by the time Rosenblum made her statement in late October.
On Oct. 3, DOJ staffer Michael Kron wrote to Deputy Secretary of State Rich Vial about the matter, inquiring about comments Clarno had made to a reporter about legal advice she'd received.
"I am not sure how or why we would continue to assert privilege after our advice was characterized to the press," Kron wrote.
