ARMATTA v. KITZHABER

CARSON, Chief Judge.

This is a certified appeal involving a direct challenge to the constitutionality of Ballot Measure 40 (1996),1 a "crime victims' rights" initiative that was approved by the voters at the 1996 general election. The circuit court enjoined defendants Kitzhaber and the State of Oregon (collectively referred to herein as "the state") from enforcing section (2) of Measure 40, after concluding that that section revised, rather than amended, the Oregon Constitution. The state appealed to the Court of Appeals, which certified the appeal to this court.

As this case is presented to us, the merits of the various policy choices represented by Measure 40 are not at issue. The only question is whether the measure was adopted validly. For the reasons that follow, we conclude that, although it purported to be a single amendment to the Oregon Constitution, Measure 40 contains two or more constitutional amendments that must be voted upon separately under Article XVII, section 1, of that document. We therefore hold that, because the measure does not comply with the requirements for adopting a constitutional amendment, it is invalid in its entirety. We modify the judgment of the circuit court accordingly.

I. PROCEDURAL BACKGROUND

Shortly after the 1996 general election, plaintiffs filed the present action under ORS 28.010 (1995) for declaratory and injunctive relief, seeking a ruling that Measure 40 was unconstitutional. Specifically, plaintiffs contended that Measure 40 violated the Oregon Constitution in three respects: (1) it contained two or more amendments, in violation of Article XVII, section 1; (2) it embraced more than one subject, in violation of Article IV, section 1(2)(d); and (3) it revised, rather than amended, the Oregon Constitution, which, under Article XVII, section 2, cannot be accomplished by initiative petition. Plaintiffs further sought a declaration that defendant Keisling, Secretary of State, violated the law by placing Measure 40 on the ballot and that defendant Kitzhaber, Governor of Oregon, violated the law by proclaiming the adoption of the measure. Finally, plaintiffs sought an injunction prohibiting the State of Oregon from enforcing Measure 40. The state filed an answer, and both sides moved for summary judgment.

In a letter opinion issued on February 5, 1997, the circuit court concluded that section (2) of Measure 40 revised the Oregon Constitution, but that the section was severable. Accordingly, the court severed section (2) and left the rest of the measure intact. On February 19, 1997, the court entered an order and a judgment consistent with its letter ruling as to the validity of Measure 40. The judgment enjoined "[d]efendant Kitzhaber and his subordinates and the State and its subdivisions" from "enforcing or attempting to enforce section 2 of Ballot Measure 40." The judgment concluded, however, that defendant Kitzhaber did not violate the law when he proclaimed the adoption of Measure 40. Finally, the judgment concluded that plaintiffs' claims against defendant Keisling were time-barred and, accordingly, dismissed him as a defendant.2 In June 1997, the court entered a supplemental judgment awarding plaintiffs attorney fees in the amount of $23,677.50.

Plaintiffs appealed to the Court of Appeals, contending that the circuit court erred in concluding that section (2) was severable from the rest of Measure 40 and also erred in rejecting their other substantive challenges to the measure. The state cross-appealed, contending that the circuit court erred in concluding that section (2) revised the constitution. The state further contended that the court erroneously entered an injunction against defendant Kitzhaber and the State of Oregon, and that it erroneously awarded attorney fees to plaintiffs. Shortly thereafter, the state moved to stay or modify the circuit court's injunction concerning the enforcement of section (2) of Measure 40. The Court of Appeals stayed the injunction in August 1997, pending the outcome on appeal. Armatta v. Kitzhaber, 149 Or.App. 498, 943 P.2d 634 (1997).

In early 1998, in response to plaintiffs' motion pursuant to ORS 19.405(1) (1997), the Court of Appeals certified the appeal, and this court accepted it. ORS 19.405(2) (1997).

II. OVERVIEW OF MEASURE 40

Measure 40 was submitted to the voters as an initiated amendment to Article I of the Oregon Constitution. According to its preamble, Measure 40 "is designed to preserve and protect crime victims' rights to justice and due process and to ensure the prosecution and conviction of persons who have committed criminal acts." (Boldface in original.)

The measure contains nine sections. Section (1) lists the following rights to which victims of crime are entitled in all criminal prosecutions and juvenile delinquency proceedings: (1) rights relating to pretrial detention and release of criminal defendants; (2) the right to be notified of certain stages of criminal proceedings and the right to be present and heard; (3) the right to information about the conviction, sentencing, imprisonment, criminal history, and future release of criminal defendants; (4) the right to refuse to participate in criminal defendants' discovery requests; (5) the right to receive prompt restitution; (6) the right to have all relevant evidence admitted against criminal defendants; (7) the right to have criminal defendants tried by a jury composed of jurors who are registered voters and who have not been convicted of a felony or served a felony sentence within the last 15 years; (8) the right to have criminal defendants convicted by a jury vote of 11 to 1 in aggravated murder and murder cases; (9) the right to receive prepared copies of court transcripts; (10) the right to have criminal defendants serve their sentences in full, without such sentences being set aside, except through the governor's reprieve, commutation, or pardon power, or pursuant to appellate or post-conviction relief; (11) the right to have convicted criminals sentenced consecutively for crimes against different victims; (12) the right to joinder of charges against criminal defendants; (13) the right to be consulted during plea negotiations in certain cases; and (14) the right to notification of the foregoing rights as soon as reasonably practicable. Measure 40, §§ (1)(a) to (n).

Section (2) of Measure 40 declares that the rights set out in the measure "shall be limited only to the extent required by the United States Constitution," that Article I, sections 9 and 12, of the Oregon Constitution, "shall not be construed more broadly than the United States Constitution," and that, in cases involving victims, "the validity of prior convictions shall not be litigated except to the extent required by the United States Constitution." Section (3) provides that the measure "shall not reduce a criminal defendant's rights under the United States Constitution, reduce any existing right of the press, or affect any existing statutory rule relating to privilege or hearsay."

Section (4) of Measure 40 declares that the decision to initiate criminal prosecutions or juvenile delinquency proceedings rests with the district attorney and gives the district attorney the authority to assert the rights conferred upon victims in the measure. Sections (5) to (8) define the terms "victim" and "relevant evidence" for purposes of Measure 40, and clarify various matters relating to the rights conferred in the measure. Finally, section (9) states that Measure 40 creates no new civil liabilities.

III. CONSTITUTIONAL CHALLENGES TO MEASURE 40

Because it is dispositive, we first address plaintiffs' contention that Measure 40 contains two or more amendments, which must be voted upon separately under Article XVII, section 1, of the Oregon Constitution.

The people's power to amend the constitution through initiative petition arises under Article IV, section 1, of the Oregon Constitution. In addition, Article XVII, section 1, sets out procedural requirements that apply if the legislature proposes constitutional amendments, as well as other requirements that apply to amendments submitted to the voters by legislative proposal or initiative petition. One of those requirements is that "two or more amendments" must be submitted "separately" to the voters.3

Plaintiffs contend that, despite the fact that it was presented to the voters in the form of a single constitutional amendment, Measure 40 actually contains "two or more amendments" that the voters must vote upon separately under Article XVII, section 1. The state responds that the separate-vote requirement applies only to legislatively proposed constitutional amendments, not to amendments proposed by initiative. Alternatively, the state contends that Measure 40 contains only one amendment, in compliance with the separate-vote requirement.

A. Application of the Separate-Vote Requirement to Initiated Amendments

We first address the state's contention that the separate-vote requirement of Article XVII, section 1, applies only to amendments proposed by the legislature. In doing so, we must consider the specific wording of Article XVII, section 1, the historical circumstances that led to its creation, and the case law surrounding it. See Priest v. Pearce, 314 Or. 411, 415-16, 840 P.2d 65 (1992) (setting out construction methodology).4

Article XVII, section 1, provides, in part:

Article XVII, section 1, prescribes the procedure for the legislature to propose constitutional amendments, as well as other requirements relating to amendment of the constitution. For purposes of our analysis in this case, the most significant requirement is that, if "two or more amendments" are submitted at the same election, they must be "so submitted that each amendment shall be voted on separately."

As noted, the state contends that the separate-vote requirement applies only to amendments proposed by the legislature, not to amendments initiated by the people. In the state's view, Article XVII, section 1, as relevant here, can be analyzed as three distinct parts: (1) the first two sentences, which set out voting and referral procedures for legislatively proposed amendments; (2) the third sentence, which sets out the procedure for canvassing votes on a proposed amendment, "whether proposed by the legislative assembly or by initiative petition;" and (3) the fourth sentence, which imposes the separate vote requirement "[w]hen two or more amendments shall be submitted in the manner aforesaid. " (Emphasis added.) The state contends that the words "submitted in the manner aforesaid" refer to only the first part of Article XVII, section 1, which sets out voting and referral procedures for legislatively proposed amendments (i.e., the "manner" in which such amendments are "submitted").

We disagree with that parsing of the text of Article XVII, section 1. First, the separate-vote requirement appears after the reference in the third sentence to amendments "proposed by the legislative assembly or by initiative petition." (Emphasis added.) That placement of the separate-vote requirement suggests that the requirement applies both to amendments proposed by the legislature and those proposed by initiative. Additionally, the third sentence of Article XVII, section 1, which pertains to canvassing of votes, refers to "[t]he votes for and against such amendment, or amendments, severally," proposed by either the legislature or initiative petition. (Emphasis added.) That wording is significant for two reasons. First, by referring to "such" amendment or amendments proposed in either manner, immediately after stating the procedure for referring legislatively proposed amendments, the third sentence appears to incorporate the procedures for submitting constitutional amendments by initiative petition, set out in Article IV, section 1. Second, by repeatedly using the word "severally," the third sentence emphasizes that the voters must vote upon and adopt two or more amendments separately, regardless of the manner of their proposal.

As contextual support for its reading of Article XVII, section 1, the state points to Article IV, section 1(4)(b), which provides that "[i]nitiative and referendum measures shall be submitted to the people as provided in this section and by law not inconsistent therewith." The state reads that provision as clarifying that Article IV, section 1— not Article XVII, section 1— governs the method for submitting amendments proposed by initiative petition.

However, the text of Article IV, section 1(4)(b), cuts against the state's argument. Significantly, that section provides that initiated amendments must be submitted in accordance with Article IV, section 1, "and by law not inconsistent therewith. " (Emphasis added.) Thus, Article IV, section 1(4)(b), itself acknowledges that certain requirements in addition to those set out in Article IV, section 1— such as the separate-vote requirement of Article XVII, section 1— also govern the submission of initiated amendments. Another part of Article IV— section 1(4)(d)— illustrates that point. That section specifically provides that initiated laws and amendments shall become effective 30 days after their approval, "[n]otwithstanding section 1, Article XVII of this Constitution." (Emphasis added.) That phrase would be surplusage if the requirements contained in Article XVII, section 1, were inapplicable to initiated amendments. Further, it is significant that nothing in Article IV, section 1, similarly insulates initiated amendments from the separate-vote requirement of Article XVII, section 1.

In sum, the specific wording of Article XVII, section 1, as well as the context provided by parts of Article IV, section 1, suggest that Article XVII, section 1, incorporates the procedures for submitting amendments proposed by initiative. The text and context further suggest that, with the exception of specific procedures for legislatively proposed amendments, Article XVII, section 1, applies to amendments "proposed by the legislative assembly or by initiative petition," unless Article IV, section 1, specifically provides otherwise.

The historical development of Article XVII, section 1, and Article IV, section 1, as relevant here, supports that conclusion. When the Oregon Constitution went into effect in 1859, Article XVII provided the only method for changing the constitution— by legislative proposal. The original version of Article XVII included a separate-vote requirement that is worded similarly to the current version of that requirement now contained in Article XVII, section 1. See 327 Or. at 263-64, 959 P.2d at 57 (setting out text of 1859 version of Article XVII).

In 1902, Article IV, section 1, was amended to grant the people the initiative and referendum power, including the ability to propose constitutional amendments by initiative petition. At that time, Article IV, section 1, provided that "[p]etitions and orders for the initiative * * * shall be filed with the secretary of state, and in submitting the same to the people he, and all other officers, shall be guided by the general laws and the act submitting this amendment, until legislation shall be especially provided therefor." Or. Const., Art. IV, § 1 (1902) (emphasis added). Thus, since the creation of the initiative and referendum power in 1902, Article IV, section 1, has provided that submission of such measures shall be guided both by Article IV, section 1, and other applicable laws, presumably including Article XVII, section 1.

In 1906, Article XVII was amended, pursuant to the people's initiative power, to implement the new initiative and referendum process. The amended version is the same as the current version of Article XVII, section 1. Or. Const., Art. XVII, § 1 (1906). The 1906 amendment added what is now the third sentence of Article XVII, section 1, pertaining to the canvassing of votes, including the reference to "amendments * * * proposed by the legislative assembly or by initiative petition." The new third sentence contained three references to an "amendment or amendments, severally." (Emphasis added.) The 1906 amendment also reworded the separate-vote requirement, albeit not materially, and incorporated it into section 1, thereby replacing sections 1 and 2 with a new version of section 1.

The 1906 amendment to the text of Article XVII is instructive for our purposes here in two ways. First, by specifically incorporating references to the people's recently acquired initiative power, it appears that the voters intended the requirements contained in Article XVII, which originally pertained only to legislatively proposed amendments, to apply to initiated amendments as well. Second, by repeatedly including the phrase "amendment or amendments, severally," the 1906 amendment emphasized that "two or more amendments" must remain separate from one another, regardless of the manner of their proposal.5

Finally, in 1968, the people adopted a new version of Article IV, section 1, pursuant to legislative proposal. The new version included the current wording of Article IV, section 1(4)(b), that initiated measures must be submitted "as provided in this section and by law not inconsistent therewith." Or. Const., Art. IV, § 1(4)(b) (1968). That wording is similar to the earlier requirement in Article IV, section 1, that submission of initiated amendments must be guided by the "general laws," as well as by Article IV, section 1. As noted, that wording suggests that the provisions of Article XVII, section 1, including the separate-vote requirement, apply to initiated amendments, unless Article IV, section 1, dictates otherwise.

Turning to the applicable case law, we note that only one case, Baum v. Newbry et al., 200 Or. 576, 267 P.2d 220 (1954), has attempted to address whether the separate-vote requirement applies to amendments proposed by initiative petition. However, in Baum, the court assumed, without deciding, that the separate-vote requirement applied to initiated constitutional amendments. 200 Or. at 581, 267 P.2d 220. Baum, therefore, is not helpful to our analysis here.

In sum, the specific wording and historical development of Article XVII, section 1, as well as the context provided by parts of Article IV, section 1, indicate that Article XVII, section 1, incorporates by implication the procedures for submitting constitutional amendments by initiative petition. Additionally, since 1902, Article IV, section 1, itself has provided in some form that the submission of initiated amendments shall be governed by applicable laws not inconsistent with Article IV, section 1. Nothing about the separate-vote requirement of Article XVII, section 1, is inconsistent with any provision of Article IV, section 1. Accordingly, we conclude that the separate-vote requirement applies to constitutional amendments proposed by initiative, as well as those proposed by the legislature.

B. Interpretation of the Separate-Vote Requirement

Having concluded that the separate vote requirement applies to initiated constitutional amendments, we turn to plaintiffs' contention that Measure 40 contains two or more amendments in violation of that requirement. In response to plaintiffs' challenge, the state contends that the scope of the separate-vote requirement of Article XVII, section 1, is defined by Article IV, section 1(2)(d), which requires merely that a constitutional amendment embrace "one subject only." If a proposed amendment embraces a single subject under Article IV, section 1(2)(d), the state argues, it necessarily constitutes a single amendment, rather than multiple amendments, under Article XVII, section 1. In the state's view, Measure 40 embraces a single subject— either crime victims' rights or, more broadly, crime— and, therefore, constitutes only a single amendment to the constitution.

The parties' respective positions require us to examine both the meaning of the separate vote requirement of Article XVII, section 1, and the relationship, if any, between that requirement and the single-subject requirement of Article IV, section 1(2)(d). In doing so, we emphasize that, when interpreting the Oregon Constitution, we must assume "that every word, clause and sentence therein have been inserted for some useful purpose." School Dist. 1, Mult. Co. v. Bingham et al., 204 Or. 601, 611, 283 P.2d 670, modified on rehearing 204 Or. 601, 284 P.2d 779 (1955); see also State ex rel. Gladden v. Lonergan, 201 Or. 163, 177, 269 P.2d 491 (1954) ("An elementary rule of construction is that[,] if possible, effect should be given to every part and every word of a Constitution and that unless there is some clear reason to the contrary, no portion of the fundamental law should be treated as superfluous." (Internal quotation marks omitted.)). Thus, because we are concerned here with two requirements that are worded differently and are located in different parts of the Oregon Constitution, we must assume that they have different meanings and that neither requirement is superfluous. In conducting our inquiry into those meanings, we are guided by the construction methodologies set out in Priest, 314 Or. at 415-16, 840 P.2d 65, and Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or. 551, 559, 871 P.2d 106 (1994). See 327 Or. at 256, 959 P.2d at 53 and n. 4 (setting out methodologies).

1. The specific wording, historical development, and case law surrounding Article XVII, section 1

We begin by examining the specific wording of Article XVII, section 1, which, as noted, prescribes the procedure for amending the constitution by legislative proposal, as well as setting out requirements for amendment by legislative proposal or initiative petition. The separate-vote requirement of Article XVII, section 1, provides:

Although Article XVII, section 1, does not define what is meant by "two or more amendments," it is important to note that the text focuses upon the potential change to the existing constitution, by requiring that two or more constitutional amendments be voted upon separately. Additionally, as a textual matter, the words "shall be submitted in the manner aforesaid to the voters" (emphasis added) could speak to the form that a proposed amendment must take as it passes through the legislative or initiative process, up to the time of its submission to the people. That particular text establishes, at a minimum, that the separate-vote requirement prevents the combining of several proposed amendments, which have been labeled from their inception as separate amendments, into one proposed amendment subject to a single vote. That is, all proposed amendments must be submitted to the voters in the same form in which they passed the legislature or were circulated by initiative petition.6 However, it is not clear from the text that that construction is all that is meant by the separate-vote requirement. We now turn to the historical circumstances surrounding the development of Article XVII, section 1.

As noted earlier, when the Oregon Constitution went into effect in 1859, Article XVII provided the only method for amending the constitution:

"SECTION NO. 1

"SECTION NO. 2

Thus, Article XVII, section 1, originally provided for amendment only if a majority of the members of both houses of two successive legislatures voted to submit an amendment to the people and a majority of the voters then approved it. Article XVII, section 2, also contained a separate-vote requirement that is similar to the wording that now appears in Article XVII, section 1. We have found no history concerning the specific intent of the framers of the Oregon Constitution in respect of that requirement when they adopted Article XVII.

The genesis of the provision is instructive, however. Article XVII of the Oregon Constitution of 1859 was based upon Article XVI of the Indiana Constitution of 1851, which was drafted during a constitutional convention held in that state in 1850. See Charles Henry Carey, ed., The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857, 481 (1926) (Article XVII is identical to Article XVI of the Indiana Constitution of 1851 in all material respects). We have found no Indiana decision antedating adoption of the Oregon Constitution that might have influenced the Oregon framers' intent regarding the separate vote requirement. See Priest, 314 Or. at 418, 840 P.2d 65 (suggesting that a decision from Indiana courts interpreting a provision of the Indiana Constitution subsequently incorporated in the Oregon Constitution would be instructive in interpreting the Oregon provision).

Although it is not as helpful as history or case law revealing the intent of the framers of the Oregon Constitution, information that demonstrates the intent of the framers of the Indiana Constitution of 1851 can be instructive when interpreting a provision of the Oregon Constitution patterned after the Indiana Constitution. See Hale v. Port of Portland, 308 Or. 508, 516, 783 P.2d 506 (1989) (so suggesting). The debates from the Indiana convention of 1850 thus may assist our analysis here, to some extent. We turn to an examination of those debates.

Before 1851, the only method of changing the Indiana Constitution in any respect was by calling a constitutional convention. Ind Const, Art VIII, § 1 (1816). A new article was drafted during the 1850 convention that allowed the legislature to propose amendments to the people. In proposing that new article, its drafter stated:

That statement suggests that the new amendment procedure, among other things, was intended to address particular, specific changes to the constitution. That is, a single "amendment," such as one concerning the establishment of a state bank or the rights of married women, was intended to encompass a particular constitutional change.

The convention eventually adopted Article XVI of the Indiana Constitution of 1851. Section 2 of that article incorporated virtually the same separate-vote requirement as that contained in the Oregon Constitution of 1859, as well as a prohibition against proposing new amendments while others were pending approval. Ind Const, Art XVI, § 2 (1851). The convention debates indicate that the purpose of the prohibition was to avoid voter confusion. Fowler, 2 Debates and Proceedings at 1953. The debates do not reveal the delegates' intent as to the separate-vote requirement, however.

Thus, although the debates from the Indiana constitutional convention do not reveal clearly the drafters' intent when they created the separate-vote requirement, the debates do indicate that the delegates viewed the amendment process as a means of adopting particular constitutional changes. Having exhausted our review of the Indiana history, we return to the historical development of Article XVII of the Oregon Constitution.

In 1902, a majority of the people voted to amend Article IV, section 1, of the Oregon Constitution, in response to a proposal by the Oregon Legislative Assembly, to reserve to the people the right to initiate laws and constitutional amendments. Or. Const., Art. IV, § 1 (1902). In 1906, the people amended Article XVII, pursuant to their initiative power, making changes to implement the new initiative process. The amended version is the same as the current version of Article XVII, section 1, described previously. Or. Const., Art. XVII, § 1 (1906). See also 327 Or. at 260, 959 P.2d at 55 (discussing the 1906 amendment). For our purposes here, it is significant that the 1906 amendment repeatedly inserted the phrase "amendment or amendments, severally," into Article XVII, section 1, in relation to amendments proposed by the legislature or by initiative petition. Thus, as discussed earlier, the text of the 1906 amendment emphasized that separate amendments must remain separate and distinct from one another. The voters' pamphlet for the 1906 election contained no statements reflecting either supporters' or opponents' understanding of the amendment to Article XVII, perhaps because the foregoing proposition did not appear to require explanation.

In summary, there is no historical information that specifically illuminates the intent of the framers of the Oregon Constitution when they adopted the separate-vote requirement of Article XVII, section 1. However, the debates from the Indiana convention of 1850 suggest that a constitutional "amendment" was intended by the framers of the Indiana Constitution of 1851 to address a particular constitutional change, and we have found nothing to suggest that the framers of the Oregon Constitution had a different understanding or intent.

We turn to the applicable case law interpreting the separate-vote requirement of Article XVII, section 1, of the Oregon Constitution. The first case applying that requirement is State v. Osbourne, 153 Or. 484, 57 P.2d 1083 (1936), which involved a challenge to a legislatively proposed amendment that provided that 10 members of a circuit court jury could render a guilty or not guilty verdict, except in first-degree murder cases. The Osbourne court concluded, without analysis, that the separate-vote requirement was not implicated "because only one amendment was submitted at the election." 153 Or. at 486, 57 P.2d 1083. It is not clear from Osbourne whether the court thought that two different amendments labeled as such must be submitted to implicate the separate-vote requirement, or whether the court merely concluded that the amendment at issue constituted only one amendment.7

Next, in State of Oregon v. Payne, 195 Or. 624, 635, 244 P.2d 1025 (1952), the court similarly held that a legislatively proposed amendment that reinstated the death penalty did not contravene the separate-vote requirement, "because only one amendment was submitted to the voters." Like Osbourne, the court's reasoning in Payne is not clear. However, the briefs submitted in Payne clarify the parties' understanding of the separate-vote requirement. The defendant had contended that the amendment at issue, although it was submitted as one amendment, actually contained two or three constitutional amendments that the voters must vote upon separately. Appellant's Brief, Oregon Briefs (unbound), No 0-72, 40-43 (1952). The state responded that the separate-vote requirement required only that a proposed amendment could not have different objects and purposes in view. Respondent's Brief, Oregon Briefs (unbound), No 0-72 at 39-40. Thus, both parties in Payne read the separate-vote requirement as imposing a substantive limitation upon the ability to propose constitutional amendments. The parties differed, however, concerning the scope of that requirement.

The court in Payne did note that the amendment at issue contained two different sections and repealed a constitutional provision that effectively contained two sections, "although not separately numbered." 195 Or. at 635, 244 P.2d 1025. Thus, under Payne, the fact that a proposed constitutional amendment contains more than one section does not preclude its submission as a single amendment. However, the court's conclusory statement that "only one amendment was submitted" appears, when read in the context of the parties' competing contentions, to indicate that the court was ruling that the constitutional change at issue there was substantively, rather than numerically, one amendment.

Finally, in Baum, 200 Or. 576, 267 P.2d 220, the court addressed the question whether an initiated amendment to Article IV, section 6, which concerned reapportionment of the legislative assembly, constituted a single amendment. After assuming, without deciding, that the separate-vote requirement applied to constitutional amendments submitted by initiative petition, the court briefly stated:

Baum stands for the following principles. First, it demonstrates that the purpose of the separate-vote requirement is to allow the voters to decide upon separate constitutional changes separately. Stated differently, Article XVII, section 1, imposes a requirement aimed at ensuring that the voters are able to express their will in one vote as to only one constitutional change. That is consistent with our textual analysis of the separate-vote requirement, which noted that the requirement focused upon the nature of the change to the existing constitution, as well as the procedural form that an amendment takes when it is submitted to the people. Second, Baum demonstrates that, by implication, a single constitutional amendment may affect one or more constitutional provisions without offending the separate-vote requirement. Finally, Baum suggests that the separate-vote requirement encompasses, to some extent, the notion that a single amendment must contain a single "subject."

2. The specific wording, historical development, and case law surrounding Article IV, section 1(2)(d)

As noted earlier, the state contends in this case that the separate-vote requirement of Article XVII, section 1, imposes the same limitation upon the people's ability to amend the constitution as the single-subject requirement of Article IV, section 1(2)(d). Therefore, we must examine the single-subject requirement and its relationship, if any, to the separate-vote requirement.

Article IV, section 1, of the Oregon Constitution, provides, in part:

"* * * * *

Article IV, section 1(2), reserves to the people the power to enact laws and adopt amendments to the constitution by initiative petition. Like Article XVII, section 1, Article IV, section 1(2), does not define the word "amendment." The principal substantive restriction set out in Article IV, section 1(2), is that a proposed amendment must "embrace one subject only and matters properly connected therewith." Unlike the text of the separate-vote requirement, that requirement focuses upon the content of the proposed amendment, by requiring that it embrace only a single subject. In other words, the single-subject requirement of Article IV, section 1(2)(d), concerns only the text of the proposed amendment viewed in isolation, rather than how a proposed amendment might change the existing constitution.

In order to fully understand the interplay between the separate-vote and single-subject requirements, it is helpful to determine whether the single-subject requirement pertains only to amendments proposed by initiative, or also to amendments proposed by the legislature under Article XVII, section 1. The answer is not clear from the text of Article IV, section 1(2)(d). However, when viewed in context with the first sentence of subsection (2)(d) and the rest of section 1(2) of Article IV, which pertain only to the initiative process, it appears that the single-subject requirement in Article IV, section 1(2)(d) applies only to "law[s] or amendment[s]" proposed by initiative.

Article IV, section 20, offers further support for that conclusion. It provides, in part:

Because Article IV, section 20, imposes a single-subject requirement upon legislative enactments, it is logical that, as to statutory enactments, the single-subject requirement in Article IV, section 1(2)(d), applies to only laws enacted by initiative. It follows, as a textual matter, that the single-subject requirement in Article IV, section 1(2)(d), applies to only constitutional amendments adopted by initiative, rather than those adopted pursuant to legislative proposal under Article XVII, section 1.

We turn to the historical circumstances surrounding the development of the single-subject requirement of Article IV, section 1(2)(d). At the outset, we note that the original Oregon Constitution contained no single-subject requirement for proposed amendments. It did, however, contain the single-subject requirement for legislation in Article IV, section 20. Or. Const., Art. IV, § 20 (1859).

As explained earlier, in 1902, the people adopted a legislatively proposed amendment to Article IV, section 1, of the Oregon Constitution, thereby reserving to themselves the right to initiate laws and constitutional amendments. Or. Const., Art. IV, § 1 (1902). The new provision did not define the word "amendment" and did not contain a single-subject requirement. The voters' pamphlet for the 1902 election did not contain any statements concerning the provision, and we have found no other sources from that time period that inform us of the voters' intent concerning the word "amendments" as it was used in the new provision. See LaGrande/Astoria v. PERB, 284 Or. 173, 184 n. 8, 586 P.2d 765 (1978) (demonstrating that proponents' statements can be indicative of the meaning of the measure when those statements are circulated to the public at large).

In 1968, the voters approved a legislatively proposed amendment that repealed the extant version of Article IV, section 1, and adopted a new version in its place. The new version made changes to the initiative and referendum process, one of which was the imposition of a single-subject requirement upon proposed laws and amendments. Or. Const., Art. IV, § 1(2)(d) (1968); see also 327 Or. at 270, 959 P.2d at 60 (setting out text of Article IV, section 1(2)(d)). As noted earlier, it appears from its text and context that that single-subject requirement pertains only to initiated constitutional amendments, as well as to initiated laws, rather than to legislatively proposed amendments.

The explanatory statement contained in the 1968 voters' pamphlet stated that one purpose of the 1968 amendment was to "clean-up" parts of the constitution, by repealing obsolete provisions and by combining the various initiative and referendum powers held by the people into one part of the constitution. See Official Voters' Pamphlet, Primary Election, May 28, 1968, 8 (setting out purposes of the 1968 amendment). A manifest inference from that history is that one element of the "clean-up" was to ensure that laws passed by the people pursuant to their initiative power were subject to essentially the same single-subject requirement as enactments of the legislature. In so doing, however, the new version of Article IV, section 1, also imposed that requirement upon initiated constitutional amendments.

In summary, then, the Oregon Constitution originally contained a single-subject requirement for legislation, but not for constitutional amendments. Although the people acquired the initiative power in 1902, it was not until 1968 that Article IV, section 1, imposed a single-subject limitation upon the people's ability to amend the constitution. However, the Oregon Constitution never has imposed a single-subject requirement upon the legislature's ability to propose amendments to the constitution.

We now turn to the case law interpreting the single-subject requirement of Article IV, section 1(2)(d), which is well-settled for our purposes here. In OEA v. Phillips, 302 Or. 87, 100, 727 P.2d 602 (1986), for example, this court concluded that the single-subject requirement in Article IV, section 1(2)(d), is the same as the single-subject requirement for legislation contained in Article IV, section 20. The court noted that the central purpose of the single-subject requirement was to prevent the practice of inserting two or more unrelated provisions into a single bill—commonly known as "log-rolling" — so that legislators favoring one provision would be compelled to vote for the bill despite their opposition to the other provisions. If log-rolling were not prohibited, several provisions could become law that, standing alone, could not have succeeded on their own merits. Id. at 95, 727 P.2d 602.

More recently, in State ex rel. Caleb v. Beesley, 326 Or. 83, 89-91, 949 P.2d 724 (1997), this court reviewed the case law interpreting both section 1(2)(d) and section 20 of Article IV. In that case, which involved legislation enacted by both the legislature and initiative petition, the court concluded:

Rather, the court must examine the body of the measure to determine whether the proposed law or amendment contains "a unifying principle logically connecting all provisions in the act [or amendment], such that it can be said that the measure embraces one subject only." Ibid. (internal quotation marks and brackets omitted). See also McIntire v. Forbes, 322 Or. 426, 443-44, 909 P.2d 846 (1996) (setting out that approach under Article IV, section 20). The Caleb court concluded that, because the provisions of the enactment at issue facilitated a single goal and were pertinent and germane to one overall subject, the enactment did not violate Article IV, section 1(2)(d). 326 Or. at 92-93, 949 P.2d 724.

Finally, we note that, in this case, the state relies heavily on the discussion in Baum, 200 Or. at 581, 267 P.2d 220, concerning the separate-vote requirement, emphasizing that, under Baum, that requirement prohibits submitting an amendment or amendments "on two different subjects." In the state's view, Baum stands for the principle that the single-subject and separate-vote requirements impose the same restriction upon the people's ability to amend the constitution, and, therefore, if an amendment embraces a single subject under Article IV, section 1(2)(d), as interpreted in OEA, Caleb, and other cases, then it must be deemed a single amendment under Article XVII, section 1.

We disagree that Baum, which was decided 14 years before the single-subject requirement for initiated amendments was added to Article IV, section 1, must be read as the state urges. Baum instead suggests that the purpose of the separate-vote requirement is to allow the people to vote upon separate proposed constitutional changes separately. Although the court in Baum referred to a hypothetical amendment containing multiple "subjects," the court did not state that, if a proposed amendment contains a single subject, then it also must be deemed to be a single amendment.

3. Summary

Our review of the specific wording, historical development, and case law surrounding Article XVII, section 1, and Article IV, section 1(2)(d), can be summarized as follows. First, as a textual matter, the separate-vote requirement of Article XVII, section 1, focuses both upon the proposed change to the constitution, as well as the procedural form of submitted amendments. In contrast, the text of the single-subject requirement of Article IV, section 1(2)(d), focuses upon the content of a proposed amendment, by requiring that it embrace only one subject and matters properly connected therewith. Additionally, the single-subject requirement of Article IV, section 1(2)(d), applies only to initiated constitutional amendments, not to legislatively proposed amendments.

As to historical development, the Oregon Constitution, as originally written, contained a single-subject requirement for legislation and a separate-vote requirement for constitutional amendments proposed by the legislature. After the adoption of the initiative and referendum process in 1902, the constitution was changed over time to implement that process, including imposing the separate-vote and single-subject requirements upon the people's ability to propose constitutional amendments by initiative petition. However, there is not, and never has been, a single-subject requirement for amendments proposed by the legislature. Indeed, the separate-vote requirement is the only limitation upon the legislature's ability to amend the constitution. Additionally, the history behind the corresponding provision of the Indiana Constitution of 1851 suggests that a constitutional "amendment" was intended by the framers of that document to address a particular constitutional change, and we have found nothing to suggest that the framers of the Oregon Constitution had a different understanding or intent.

Turning to the case law interpreting the separate-vote requirement of Article XVII, section 1, we note first that the cases are lacking in detailed analysis. However, as a whole, the cases demonstrate that the purpose of the separate-vote requirement is to allow the people to vote upon separate constitutional changes separately.

Finally, the case law interpreting the single-subject requirement of Article IV, section 1(2)(d), demonstrates that that requirement is intended to prohibit "log-rolling." However, when conducting a single-subject inquiry, a court must examine only the content of the proposed amendment, not the effect that the amendment might have upon the existing constitution.

4. Legal Principles

Having examined the specific wording, historical development, and case law surrounding the separate-vote requirement of Article XVII, section 1, and the single-subject requirement of Article IV, section 1(2)(d), we reach the following conclusions. First, the purposes behind the two requirements are similar: Both serve to ensure that the voters will not be compelled to vote upon multiple "subjects" or multiple constitutional changes in a single vote.

However, it is significant that, from the beginning of statehood, the single-subject and separate-vote requirements have been worded differently. As we have discussed, the single-subject requirement, initially contained only in Article IV, section 20, but now also contained in Article IV, section 1(2)(d), focuses upon the content of a proposed law or amendment, by requiring that it embrace only one subject and matters properly connected therewith. See Caleb, 326 Or. at 91, 949 P.2d 724 (under Article IV, section 1(2)(d), the court must examine the measure at issue to determine whether it embraces a single subject); McIntire, 322 Or. at 443-44, 909 P.2d 846 (setting out the same approach under Article IV, section 20).

The separate-vote requirement, by contrast, focuses upon the form of submission of an amendment, as well as the potential change to the existing constitution, by requiring that two or more constitutional amendments be voted upon separately. That is, in addition to speaking to the form of submission, the separate-vote requirement addresses the extent to which a proposed amendment would modify the existing constitution. That is significantly different from the wording of the single-subject requirement, which focuses in isolation only upon the text of a proposed amendment in requiring that it embrace a single subject.

We also think it significant that the separate-vote requirement applies only to constitutional amendments, while the single-subject requirement applies equally to constitutional amendments and legislation. It follows, we believe, that the separate-vote requirement of Article XVII, section 1, imposes a narrower requirement than does the single-subject requirement of Article IV, section 1(2)(d). Such a reading of the separate-vote requirement makes sense, because the act of amending the constitution is significantly different from enacting or amending legislation. See, e.g., McIntire, 322 Or. at 437-38, 909 P.2d 846 (stating that the single-subject requirement of Article IV, section 20, "should not be so construed so as to hamper or cripple legislation, or render it oppressive or impracticable, * * * or to multiply the number of laws unnecessarily" (internal quotation marks omitted)). Indeed, because the separate-vote requirement is concerned only with a change to the fundamental law, the notion that the people should be able to vote separately upon each separate amendment should come as no surprise. In short, the requirement serves as a safeguard that is fundamental to the concept of a constitution.

Finally, we acknowledge that, under Baum, 200 Or. at 581, 267 P.2d 220, the separate-vote requirement encompasses the notion that a single constitutional amendment must contain what the court there referred to as a single "subject[ ]." Indeed, if a proposed amendment contained two different subjects, it could not be considered a single amendment, regardless of the existence of the single-subject requirement of Article IV, section 1(2)(d). However, the fact that a proposed amendment containing more than one subject would violate both the separate-vote and single-subject requirements does not compel the conclusion that the opposite also is true, i.e., that a proposed amendment that contains only one subject would not violate the separate-vote requirement. As we have discussed, the separate-vote requirement imposes a narrower restriction than the requirement that a proposed amendment embrace only one subject. It follows, therefore, that a proposed amendment that satisfies the broad standard for embracing a single subject nonetheless may violate the separate-vote requirement. The state's contrary argument is not well-taken.

The remaining question is how to determine whether a proposal to amend the Oregon Constitution offends Article XVII, section 1, because it contains two or more amendments. We conclude that the proper inquiry is to determine whether, if adopted, the proposal would make two or more changes to the constitution that are substantive and that are not closely related. If the proposal would effect two or more changes that are substantive and not closely related, the proposal violates the separate-vote requirement of Article XVII, section 1, because it would prevent the voters from expressing their opinions as to each proposed change separately. In some instances, it will be clear from the text of the proposed initiative whether it runs afoul of Article XVII, section 1. In other instances, it will be necessary to examine the implications of the proposal before determining whether it contains two or more amendments.

We turn to Measure 40, to determine whether it contains two or more amendments in violation of Article XVII, section 1.

C. Application of Legal Principles to Measure 40

1. Analysis of Measure 40

As discussed earlier, by its terms, Measure 40 purports to amend Article I of the Oregon Constitution, by adding a new section to that article that contains procedural rights to which crime victims are entitled in the pretrial, trial, and post-trial phases of a criminal prosecution or juvenile delinquency proceeding, and by prescribing a construction methodology for sections 9 and 12.8 Measure 40 does not otherwise expressly repeal or modify any existing constitutional provision. As explained below, however, the measure implicitly changes the existing Oregon Constitution in several respects.

a. Article I, section 11. Two of the victims' rights set out in section (1) of Measure 40 implicate Article I, section 11, which provides, in part:

"In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor; provided, however, that any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing; provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise[.]" (Emphasis added.)

Section (1)(h)of Measure 40 permits a guilty vote of 11 to 1 in aggravated murder and murder cases, "notwithstanding any other law or provision of [the Oregon] Constitution." Section (1)(h), therefore, changes the unanimous verdict requirement in murder cases, currently set out in Article I, section 11.9 Further, section (1)(g) of Measure 40 grants crime victims the right to insist upon a jury trial. That section changes a defendant's ability to waive trial by jury under Article I, section 11, in that it specifies a circumstance—a victim's desire for a jury trial—in which a criminal defendant cannot waive a jury trial.10

b. Article VII (Amended), section 5(1)(a). Section (1)(g) of Measure 40 also specifies certain requirements for juror qualification.11 Article VII (Amended), section 5(1)(a), provides that "[t]he Legislative Assembly shall provide by law for * * * [s]electing juries and qualifications of jurors." Thus, section (1)(g) of Measure 40 changes Article VII (Amended), section 5(1)(a), because it imposes constitutional limitations upon the legislature's authority to enact laws pertaining to juror qualification in criminal cases.

c. Article I, section 14. Section (1)(a) of Measure 40 allows pretrial release in certain cases only upon a proper evidentiary showing.12 Article I, section 14, which requires that crimes other than murder and treason "shall be bailable by sufficient sureties," sets out a standard to determine when an arrested person may be released before trial. See generally Priest, 314 Or. at 419, 840 P.2d 65 (Article I, section 14, applies to those accused, but not yet convicted, of criminal offenses). Section (1)(a) of Measure 40 changes that standard, by adding new constitutional prerequisites for pretrial release. In other words, section (1)(a) changes the circumstances in which certain criminal defendants otherwise would be entitled to release under Article I, section 14.

d. Article I, sections 9 and 12. Perhaps most notably, section (1)(f) of Measure 40 grants crime victims the right to have "all relevant evidence admissible against the criminal defendant." In addition, section (2) provides that "[t]he rights conferred on victims by this [measure] shall be limited only to the extent required by the United States Constitution" (boldface in original) and that "Section 9, Article I and Section 12, Article I of this Constitution shall not be construed more broadly than the United States Constitution."13

The parties offer competing interpretations of section (2) of Measure 40, specifically the phrase that limits possible constructions of Article I, sections 9 and 12. Plaintiffs contend that that phrase effectively repeals Article I, sections 9 and 12, as they currently exist, together with judicial interpretations of those provisions, and replaces them with the Fourth and Fifth Amendments to the United States Constitution.14 Plaintiffs further contend that section (2) effectively modifies Article VII (Amended), section 1,15 because it limits the judiciary's inherent power to interpret the Oregon Constitution, as well as Article III, section 1,16 because, at the least, it modifies the separation of powers principles set out in that section.

The state responds that section (2) of Measure 40 merely clarifies the scope of a crime victim's right to have all relevant evidence admissible against a criminal defendant, by instructing courts that they may suppress evidence obtained in violation of the Oregon Constitution only if the United States Constitution would require suppression. Stated differently, in the state's view, section (2) changes the remedy to be afforded for a violation of certain rights embodied in the Oregon Constitution, but does not change the nature of the state constitutional rights themselves.

We need not resolve the parties' competing contentions concerning the precise intended effect of section (2) of Measure 40. Even under the state's more limited reading of section (2), that section, particularly when read in conjunction with section (1)(f) of Measure 40, would have the following effects. First, it would create a constitutional limitation upon the remedy to be afforded for violations of Article I, sections 9 and 12, by requiring that evidence be suppressed only if the Fourth or Fifth Amendments to the United States Constitution require suppression. Second, and perhaps more significantly, section (2) would change the nature of the rights currently afforded under Article I, section 9, because the protections afforded by Article I, section 9, include the right to have evidence excluded if it is obtained in violation of the right to be free from unreasonable searches and seizures. See State ex rel. Juv. Dept. v. Rogers, 314 Or. 114, 119, 836 P.2d 127 (1992) (the exclusion of evidence under Article I, section 9, is "based on the personal right to be free from an unlawful search and seizure," in contrast to deterring police misconduct (internal quotation marks omitted)); State v. Davis, 313 Or. 246, 253-54, 834 P.2d 1008 (1992) ("If th[e] constitutional right [under Article I, section 9] to be secure against impermissible government conduct is to be effective, it must mean that the government cannot obtain a criminal conviction through the use of evidence obtained in violation of a defendant's rights under that provision. * * * Individual rights so protected are vindicated through the sanction of suppression of evidence." (Internal quotation marks omitted.)).

e. Summary. Measure 40 adds a number of crime victims' rights to Article I of the Oregon Constitution and also changes the constitution in the following respects: (1) a criminal defendant's ability to waive a jury trial under Article I, section 11, is limited by the victim's new and competing right to a jury trial; (2) a unanimous verdict no longer is required in aggravated murder and murder cases under Article I, section 11; (3) the legislature's ability to enact laws pertaining to juror qualifications in criminal cases under Article VII (Amended), section 5(1)(a), is limited by new constitutional requirements; (4) a criminal defendant's right to pretrial release under Article I, section 14, is limited by new constitutional requirements; and (5) at the least, the constitutional remedy for violation of the rights set out in Article I, sections 9 and 12, is limited to the remedies available under the Fourth and Fifth Amendments to the United States Constitution, and, consequently, evidence obtained in violation of those rights can be suppressed only if the United States Constitution requires suppression.17

2. Measure 40 contains two or more amendments to the Oregon Constitution

As can be seen, in addition to adding a number of crime victims' rights to Article I, Measure 40 changes five existing sections of the Oregon Constitution (Article I, sections 9, 11, 12, and 14, and Article VII (Amended), section 5(1)(a)), encompassing six separate, individual rights (pertaining to search and seizure, unanimous jury verdicts, waiver of jury trial, former jeopardy, self-incrimination, and bail), in addition to limiting the legislature's ability to establish juror qualifications in criminal cases. Those multiple constitutional changes effected by Measure 40 are more than sufficient to meet that part of the test for "two or more amendments," discussed earlier, that inquires whether the measure at issue makes "two or more changes to the constitution." See 327 Or. at 277, 959 P.2d at 64 (stating test). It is equally clear, we think, that the changes effected by Measure 40 are substantive. The remaining issue, then, is whether those changes are "not closely related."

Many of the constitutional provisions affected by Measure 40 are related in the sense that they pertain to constitutional rights that might be implicated during a criminal investigation or prosecution. However, not all—such as the requirement that the jury pool in criminal cases be drawn from registered voters—share even that relationship. Further, even those provisions that are related in the sense described are not related closely enough to satisfy the separate-vote requirement of Article XVII, section 1. For example, the right of all people to be free from unreasonable searches and seizures under Article I, section 9, has virtually nothing to do with the right of the criminally accused to have a unanimous verdict rendered in a murder case under Article I, section 11. The two provisions involve separate constitutional rights, granted to different groups of persons. Similarly, the right of the criminally accused to bail by sufficient sureties under Article I, section 14, bears no relation to legislation concerning the qualification of jurors in criminal cases under Article VII (Amended), section 5(1)(a). Those examples alone are sufficient to demonstrate that Measure 40 contains "two or more amendments" to the Oregon Constitution. Accordingly, we conclude that the measure was not adopted in compliance with Article XVII, section 1.

We emphasize that we express no view regarding the merits of the changes proposed by Measure 40. Indeed, this court's case law makes clear that Article IV, section 1, grants the people the power to change the Oregon Constitution as they so desire, including modifying or repealing a provision of the Bill of Rights, so long as the proposed change or changes comply with the constitutional requirements for amending the constitution. See Ex Parte Kerby, 103 Or. 612, 616-17, 205 P. 279 (1922) (through their initiative power, the people can adopt a constitutional amendment that expressly or implicitly repeals an existing constitutional provision, including a provision of the Bill of Rights); Boy'd v. Olcott et al., 102 Or. 327, 358-59, 202 P. 431 (1921) ("The Constitution prescribes the method by which it may be amended, and the procedure so prescribed is the measure of the power to amend."). Our holding here simply is that Measure 40 contains two or more constitutional amendments that must be voted upon separately under Article XVII, section 1.18

D. Measure 40 is Invalid in its Entirety

It is a long-standing principle of law that a proposed constitutional amendment must be adopted in compliance with the procedures set forth in the Oregon Constitution:

Kadderly v. Portland, 44 Or. 118, 135-36, 74 P. 710 (1903), on rehearing 44 Or. 118, 75 P. 222 (1904) (emphasis added). See also Boyd, 102 Or. at 359, 202 P. 431 ("The provisions of the Constitution for its own amendment are mandatory and binding not only upon the legislative assembly but also upon all the people as well; and, consequently, a failure to observe the mandates of the Constitution is fatal to a proposed amendment, even though the electors have with practical unanimity voted for it."). Accordingly, because Measure 40 was not adopted in compliance with Article XVII, section 1, we hold that it is void in its entirety.19

IV. REMAINING ISSUES

We turn to the remaining issues in this case, raised on the state's cross-appeal.

A. Injunction

As noted earlier, after concluding that section (2) of Measure 40 revised the constitution, the circuit court entered an injunction against "[d]efendant Kitzhaber and his subordinates and the State and its subdivisions," enjoining them "from enforcing or attempting to enforce" section (2). Also as noted, the Court of Appeals stayed the enforcement of the injunction, pending the outcome on appeal. Armatta, 149 Or.App. 498, 943 P.2d 634.

The state contends that, regardless of our determination whether Measure 40 is invalid, "permanent injunctive relief is not appropriate against the state or its agencies." Plaintiffs respond that any error that might have occurred in the issuance of the injunction is moot, either because the Court of Appeals already "vacated" the injunction or, if Measure 40 is declared invalid in its entirety, an injunction no longer is necessary.

We agree with plaintiffs' latter point: An injunction is not necessary in light of our determination that Measure 40 was not adopted in compliance with Article XVII, section 1, of the Oregon Constitution. Consequently, we need not address the propriety of the circuit court's order enjoining defendants Kitzhaber and the State of Oregon from enforcing section (2) of Measure 40.

B. Attorney Fees

Finally, the state assigns error to the circuit court's decision to award plaintiffs attorney fees in the amount of $23,667.50.20 In the state's view, plaintiffs have individualized interests in the outcome of this case that make attorney fees inappropriate under Deras v. Myers, 272 Or. 47, 65-67, 535 P.2d 541 (1975), and Vannatta v. Keisling, 324 Or. 514, 548-49, 931 P.2d 770 (1997). The state further disputes whether, in filing this action, plaintiffs sought to benefit the rights of all Oregonians. Plaintiffs respond that they have no individualized interests at stake in this litigation and that their goal of having Measure 40 declared unconstitutional serves to benefit all Oregonians.

In Deras, the plaintiff, a former candidate for state representative, sought a declaratory judgment that certain laws that restricted campaign spending were unconstitutional. 272 Or. at 49-50, 535 P.2d 541.21 This court agreed, holding that the laws at issue were invalid. The court then addressed the trial court's decision to deny the plaintiff attorney fees, stating:

The court concluded that, because the plaintiff's action was in "the interest of the public in preservation of the individual liberties guaranteed against governmental infringement of the constitution," he should be awarded reasonable attorney fees. Id. at 66-67, 535 P.2d 541.

Since issuing its decision in Deras, this court has not allowed another attorney fee award under the principles set out in that case. In denying such requests, the court has clarified that there are a number of prerequisites that must be fulfilled before such an award is appropriate. First, the proceeding must be one in equity. See, e.g., Dennehy v. Dept. of Rev., 308 Or. 423, 428, 781 P.2d 346 (1989) (denying attorney fees, in part, because the action was not one in equity); Cook v. Employment Division, 293 Or. 398, 401, 649 P.2d 594 (1982) (same). Second, the party requesting attorney fees must be the prevailing party. See Gugler v. Baker Co. Ed. Serv. Dist. (Gugler III), 305 Or. 570, 574, 754 P.2d 903 (1988) (denying fees because the plaintiffs had not prevailed in their action); Dennehy v. City of Gresham, 314 Or. 600, 604, 841 P.2d 633 (1992) (same); see also Lewis v. Dept. of Rev., 294 Or. 139, 143-44, 653 P.2d 1265 (1982) (denying fees, in part, because the court did not grant the relief sought by the plaintiff). Finally, in filing the action, the party requesting attorney fees must have been seeking to "vindicat[e] an important constitutional right applying to all citizens without any gain peculiar to himself," Dennehy v. City of Gresham, 314 Or. at 602, 841 P.2d 633, as opposed to vindicating "individualized and different interests," Vannatta, 324 Or. at 549, 931 P.2d 770, or "any pecuniary or other special interest of his own aside from that shared with the public at large." Dennehy v. Dept. of Rev., 308 Or. at 427, 781 P.2d 346. See also Samuel v. Frohnmayer, 308 Or. 362, 370, 779 P.2d 1028 (1989) (the plaintiff in Deras was seeking no "monetary or other gain peculiar to himself).

This case involves a proceeding in equity, and, in light of our conclusion that Measure 40 is invalid, plaintiffs are the prevailing parties. Rather, in challenging the award of attorney fees, the state first contends that plaintiffs have the same sort of individualized interests in the outcome of this litigation that were identified in Vannatta. Looking to plaintiffs' statement of standing in their complaint, the state specifically notes that: (1) plaintiff Robson, Benton County Sheriff, alleged that Measure 40 would remove his discretion to assign inmates to alternative programs; (2) plaintiff Eyerman alleged her concern that, under Measure 40, law enforcement officials may trespass upon her property; and (3) all seven plaintiffs alleged their concerns about the effect that Measure 40 would have on their taxes.

We conclude that the factors cited by the state concerning plaintiffs' interests in this case are not the type of "individualized," "peculiar," or "pecuniary" interests that preclude an attorney fee award. Unlike the plaintiffs in other cases in which this court denied attorney fees for that reason, none of the plaintiffs in this case stands to gain any particular benefit from a declaration that Measure 40 is invalid, other than the benefit that they share with all other citizens in having the Oregon Constitution correctly construed. Compare Vannatta, 324 Or. at 549, 931 P.2d 770 (plaintiffs challenging campaign finance laws, who included a potential candidate for state office and a political action committee, had "individualized and different interests" in the litigation that they sought to vindicate); Dennehy v. City of Gresham, 314 Or. at 604, 841 P.2d 633 (taxpayer who challenged a user charge had a peculiar interest in the litigation).

The state next emphasizes that, in awarding attorney fees to plaintiffs, the circuit court found that "the relief [plaintiffs] sought and obtained benefits all Oregon residents equally against governmental searches."22 In the state's view, that reasoning cannot provide the basis for awarding attorney fees to plaintiffs, because the voters, through their initiative power, are free to change the nature of the state constitutional protections relating to search and seizure.

We agree that the crux of this action is not whether the Oregon Constitution should contain its own, independent protections against governmental intrusions in the form of unreasonable searches and seizures, compelled self-incrimination, or placement of a person in jeopardy twice for the same offense. As we have made clear in this opinion, the people of Oregon have the power to change their constitution as they so desire, provided that the proposed change is adopted in compliance with the requirements for amending the constitution, as set out in Article XVII, section 1, and Article IV, section 1.

However, in filing this action, plaintiffs primarily sought to enforce the provisions of the Oregon Constitution that relate to amendment and revision of that document, and ultimately prevailed on their claim that Measure 40 was not passed in compliance with the separate-vote requirement of Article XVII, section 1. Plaintiffs, therefore, sought to benefit all Oregonians, because they sought to defend the integrity of the amendment and initiative processes. That is the type of public benefit that, in our view, makes an award of attorney fees appropriate. See Gilbert v. Hoisting & Port. Engrs., 237 Or. 130, 138, 384 P.2d 136 (1963), modified 237 Or. 130, 390 P.2d 320 (1964) (awarding attorney fees to union members who sought to correct abuses of the democratic process in their union, because "[t]he preservation of the democratic process in the functioning of unions is a matter of primary concern, not only to union members but to the public as well"). Accordingly, we hold that the circuit court's award of attorney fees was proper.

V. CONCLUSION

Expressing no view on the merits of the constitutional changes effected by Measure 40, we conclude that the measure contains two or more amendments, in violation of Article XVII, section 1, of the Oregon Constitution. Because Measure 40 was not passed in compliance with Article XVII, section 1, it is invalid in its entirety. We further conclude that injunctive relief is not necessary in this case. Finally, we affirm the award of attorney fees to plaintiffs.

The judgment of the circuit court is affirmed in part and reversed in part.

APPENDIX

Ballot Measure 40 provides:

"AMENDS CONSTITUTION

"(h) The right to have eleven members of the jury render a verdict of guilty of aggravated murder or murder, notwithstanding any other law or provision of this Constitution;

DURHAM, Justice.

I concur in the majority's disposition of the trial court's judgment, and write separately to explain the basis for my concurrence with the award of attorney fees.

In Gilbert v. Hoisting and Port. Engrs., 237 Or. 130, 138, 384 P.2d 136, 390 P.2d 320 (1964) and Deras v. Myers, 272 Or. 47, 66-67, 535 P.2d 541 (1975) this court relied on the inherent power that courts of equity have used throughout their history to award attorney fees "in cases where the plaintiff brings suit in a representative capacity and succeeds in protecting the rights of others as much as his own." Deras, 272 Or. at 66, 535 P.2d 541. Those cases support the principle that, if a plaintiff brings an action that seeks relief from official misconduct or errors that violate the plaintiff's important legal rights, and the plaintiff's action succeeds in protecting the rights of others as much as his own, the court, exercising its inherent equitable power, may award attorney fees, in addition to other appropriate relief, to the successful plaintiff. That equitable principle rests on an important assumption about litigation of this kind. That is, if the plaintiff's action actually results in the protection of the legal rights of a broader segment of society, and the defendant's choice to defend an unconstitutional law or official action brought about the necessity of incurring the expense of legal services to vindicate the plaintiff's rights in court, it is consistent with judicial notions of fairness to require the defendant, not the plaintiff, to pay the reasonable expenses of bringing the action, including attorney fees.

Congress has enacted fee-shifting legislation governing analogous litigation that vindicates federal constitutional and statutory rights. 42 USC § 1988. Unlike the rule discussed in Gilbert and Deras, the federal statute does not depend on a showing that the action protected the rights of persons other than the plaintiff or that an award of attorney fees is consistent with equitable principles.

The Oregon legislature has not enacted a statute that addresses the recovery of prevailing party attorney fees in circumstances similar to those presented in this case. This is a potential subject for state legislation. In the absence of legislation, Oregon courts will continue to administer judge-made rules on this subject that reflect the equitable principles that underlie Gilbert and Deras.

Some of those judge-made rules bear closer scrutiny to insure that they, in fact, accomplish equity. For example, in Samuel v. Frohnmayer, 308 Or. 362, 779 P.2d 1028 (1989), the issue was:

The court concluded that a specific statute, ORS 182.090, not a more general statute, ORS 28.080, or Deras, governed the award of attorney fees in the circumstances, and that the plaintiff had not pleaded or proven that he was entitled to an award of attorney fees under the governing statute. In discussing why Deras was not controlling, the court said:

That passage in Samuel is noteworthy in several respects. First, the details of the court's description of Deras are entirely dictum. The court held only that a statute, ORS 182.090, was the sole source of authority to award attorney fees in the circumstances and that the plaintiff was ineligible under that statute. The court had no reason to discuss whether Deras stated a correct rule of law or to alter the rule stated in Deras.

Second, the Samuel court's summary of Deras is not accurate. The passage emphasized in the quotation stated above appears in no form in Deras. If the Samuel court meant to suggest that being a "volunteer" under Deras meant that the plaintiff cannot seek any monetary or other relief peculiar to himself, that reading of Deras is incorrect. The passage in Deras that the Samuel court cited states:

"It is beyond dispute that the interest of the public in preservation of the individual liberties guaranteed against governmental infringement of the constitution is even stronger than that present in Gilbert. Correspondingly, plaintiff in this case, at least as much as the plaintiffs in Gilbert, should not be required to bear the entire cost of this litigation the benefits of which flow equally to all members of the public." 272 Or. at 66, 535 P.2d 541.

That discussion demonstrates that Deras does not support the statement in Samuel that the plaintiff must seek to vindicate the rights of all citizens without any monetary or other gain peculiar to himself.

Neither is that statement supported by the other case authority cited in Samuel. Cook v. Employment Division states only that, in deciding Deras and Gilbert, the court relied on the inherent power of a court of equity. Cook, 293 Or. at 401, 649 P.2d 594. Cook does not mention a requirement that the plaintiff seek no monetary or other gain peculiar to himself, and does not suggest that Deras or Gilbert recognized such a requirement.

Aside from the absence of any legal support for such a purported requirement, this court has never explained why a court of equity would impose such a precondition to the recovery of attorney fees. The defendants in Gilbert and Deras enforced unconstitutional or unlawful legal schemes that harmed the plaintiffs' rights. If those defendants, acting pursuant to the same unlawful schemes, had committed even more serious transgressions against the plaintiffs, such as, for example, depriving them of their property, that fact would enhance, not diminish, the plaintiffs' equities in seeking attorney fees under Gilbert and Deras. In my view, equitable principles, not the dictum in Samuel, determines a prevailing party's entitlement to attorney fees under Gilbert and Deras. A party never loses the right to any form of equitable remedy merely by seeking complete relief in the complaint. Neither should a request for complete relief, including relief that is peculiar to the requesting party, disqualify the party from an award of attorney fees under Gilbert and Deras. Such an impediment finds no support in traditional equitable principles.

Unfortunately, three later cases have repeated without analysis the dictum in Samuel suggesting that Deras required the prevailing plaintiff to seek vindication of important constitutional rights without any gain peculiar to himself. Vannatta v. Keisling, 324 Or. 514, 548-49, 931 P.2d 770 (1997);1 Dennehy v. City of Gresham, 314 Or. 600, 602, 841 P.2d 633 (1992); Dennehy v. Dept. of Rev., 308 Or. 423, 427-28, 781 P.2d 346 (1989). That erroneous description of the law derived from Gilbert and Deras does not acquire legitimacy by reason of its bare repetition in those cases.

The court, at its earliest opportunity, should correct its erroneous descriptions of criteria for a recovery of attorney fees under Gilbert and Deras. The error probably affects the relief sought in many cases that never reach this court. For example, parties may forego requesting relief to which they are entitled simply to avoid the argument that they are disqualified from seeking attorney fees because they have sought to vindicate an individual interest that is different from the public's potential interest in the litigation. Parties have no ability to recast their claims so that they can recover all the relief to which they are entitled individually and still recover the attorney fees to which they are entitled under Gilbert and Deras. The unfairness of forcing a litigant to make that sort of election is obvious. Because that error is rooted in dictum in an opinion of this court, it is less likely that the legislature will adopt a statute that corrects it. Accordingly, the court must act.

I join the majority's award of attorney fees here because, in accordance with the principle of Gilbert and Deras, we must acknowledge that plaintiffs' litigation has succeeded in protecting the constitutional rights of other citizens as much as their own. The determination of plaintiffs' entitlement to attorney fees in this context is controlled by the application of traditional equitable principles. In describing their standing to bring this action, plaintiffs identify several diverse legal interests that they do not share with the general public. The majority concludes that those interests are not sufficient to disqualify plaintiffs from recovering their attorney fees.

I would apply a somewhat different analysis. In my view, although plaintiffs' interests in bringing this litigation do not mirror the interests of the general public in a favorable outcome, plaintiffs do share with the general public an interest in protecting the Oregon Constitution from unlawful amendment. Plaintiffs' litigation has succeeded in protecting the public's interest as much as their own. Moreover, none of plaintiffs' diverse interests cited by defendants invoke any equitable principle that would render an award of attorney fees unfair or inequitable. Accordingly, in reliance on Gilbert and Deras, I join the majority's award of prevailing party attorney fees to plaintiffs in this case.

I concur.