S055663, Opinion — George v. Courtney

76
Argued and submitted February l, judgment of trial court affirmed
February 2, 2008
Larry GEORGE,
individually
and in his capacity as Oregon State Senator
and a member of the 74th Legislative Assembly,
and Ted Abram, individually,
Appellants,
u.
Peter COURTNEY,
in his capacity as President,
Oregon State Senate,
Jeff Merkley,
in his capacity as Speaker,
Oregon House of Representatives,
Theodore Kulongoski,
in his capacity as Governor, State of Oregon,
and Bill Bradbury,
in his capacity as Oregon Secretary of State,
Respondents.
CCC 07C-23988; SC 8055663)
176 P3d 1265

Cite as 344 Or 76 	77
CJS, States § 48.
En Banc
On order accepting certified appeal from the Court of
Appeals. *
James M. Brown, Portland, argued the cause and filed the
brief for appellants.
* Order accepting certified appeal dated January 29, 2008, from Marion
County Circuit Court, Paul J. Lipscomb, Judge.

Anna M. Joyce, Assistant Attorney General, Salem,
argued the cause for respondents. With her on the brief were
Hardy Myers, Attorney General, and Mary H. Williams,
Solicitor General.
GILLETTE, J.
The judgment of the trial court is affirmed.

Cite as 344 Or 76 79
GILLETTE, J.
This is a case involving a challenge to the basis on
which the Legislative Assembly has called itself into session
for a special session scheduled to begin on Monday, February
4, 2008.1 Plaintiffs , one of whom is a state Senator, are two
Oregon citizens. Defendants are the President of the Senate,
the Speaker of the House of Representatives, the Governor,
and the Secretary of State (hereafter collectively referred to
as "the state").
Plaintiffs brought this action against the state in
Marion County Circuit Court seeking a declaration that the
Oregon Legislative Assembly's plan to hold a supplemental
"emergency'' session in February 2008 was inconsistent with
the biennial session provision set out in Article IV, section 10,
of the Oregon Constitution. Plaintiffs' theory was that an
emergency legislative session can only be convened in
response to a discrete, unforseen crisis constituting an emer
gency, that no discrete, unforseen crisis emergency existed
and that, therefore, the Oregon Constitution does not author
ize the Legislative Assembly to call the special session. The
trial court dismissed plaintiffs' case on the merits. Plaintiffs
then appealed that j udgment to the Court of Appeals, which
in turn certified the appeal to this court pursuant to ORS
19.405( 1 ).2 We accepted the certified appeal and, for the rea
sons that follow, now affirm the trial court's judgment.
The facts are undisputed. At the beginning of the
2007 regular legislative session, the Legislative Assembly
adopted Senate Concurrent Resolution 1 (SCR 1). Among
other things, the preamble of SCR 1 recited that the Public
1 We have endeavored to hear and decide this case on an accelerated basis to
prevent a needless special session, if plaintiffs' challenge to that session is success
ful, or to assure the members of the Legislative Assembly that the special session
is a valid one, if the plaintiffs' challenge is unsuccessful.
2 ORS 19.405( 1) provides:
"When the Court of Appeals has jurisdiction of an appeal, the court,
through the Chief Judge and pursuant to appellate rules, may certify the
appeal to the Supreme Court in lieu of disposition by the Court ofAppeals. The
Court of Appeals shall provide notice of certification to the parties to the
appeal."

80 George v. Courtney
Commission on the Oregon Legislature,3 a commission cre
ated by the Legislative Assembly in 2005, had found after
receiving testimony and reviewing documents on the fre
quency, length, and timing of Oregon's legislative sessions,
that
"the current structure of the legislative sessions does not
provide sufficient predictability or certainty for the citizens
of Oregon; and
"* * * even-year sessions will improve the legislature's han
dling of complex policy issues and related fiscal matters[.}"
After resolving, in the first two sections of SCR 1, that the
Legislative Assembly would adhere to certain schedules,
timelines, and rules during the 2007 session, the resolution
concluded with a final section addressing the findings noted
in the preamble:
"Pursuant to the declarations made in the preamble of
this resolution, the Seventy-fourth Legislative Assembly
declares that an emergency exists and will continue
through February 2008, and the members agree as follows:
"(a) In January 2008 the presiding officers shall pro
vide notice to the Legislative Administrator of the intent to
invoke ORS 1 7 1.015( 1) so as to ensure that [a] special ses
sion shall convene on February 4, 2008.
"(b) The Legislative Administrator shall follow the
special session protocol set forth in ORS 17 1.015.
"(c) Upon receipt of the notice described in ORS
171.015( 1), so as to convene the special session on February
4, 2008, the presiding officers shall invoke the provisions of
section lOa, Article IV[,] of the Oregon Constitution.
"(d) Upon convening the 2008 special session, the pre
siding officers shall ensure that the 2008 special session
adjourns sine die no later than February 29, 2008, and that
" The Commission was established by the Legislative Assembly to
"conduct a review of and make recommendations on all aspects of the legisla
tive branch, including the timing, frequency and length oflegislative sessions,
legislative procedures and the adequacy of legislative facilities and staffing."
Oregon Laws 2005, chapter 680, section 1(2). Section 2 of the measure sunsetted
the Commission on January 8, 2007.

Cite as 344 Or 76
the special session is limited to consideration of the most
pressing fiscal and policy issues."
8 1
I n December 2007, plaintiffs initiated this action.
Specifically, plaintiffs sought a declaration that, as framed by
SCR 1 , the emergency session of the Oregon Legislative
Assembly then proposed for early February 2008 violated
Article IV, section 10, of the Oregon Constitution.4 Plaintiffs
also sought a temporary injunction restraining ( 1) the Presi
dent and the Speaker from convening their respective bodies
for the session; (2) the Governor from signing any legislation
passed during the session; and (3) the Secretary of State from
receiving and recording any legislation enacted during the
session.
In a memorandum oflaw supporting their injunction
request, plaintiffs acknowledged that Article IV, section lOa,
of the Oregon Constitution-a constitutional amendment
referred to and approved by Oregon voters in 1976-author
izes the legislature to convene itself " (i]n the event of an
emergency." Plaintiffs asserted, however, that the phrase,
"event of an emergency," means a specific, urgent circum
stance, exigency, or pressing necessity that requires an
immediate response-a situation, plaintiffs contended, that
was not present in this case. They argued that,
" [w]hile the Legislative Assembly's authority to decide
what constitutes an 'emergency' necessitating a special ses
sion may be broad, the 'event of an emergency' language of
Article IV, Section lO(a) is not devoid of meaning. If the vot
ers intended that the 'in the event of an emergency' lan
guage of Article IV, Section lO(a) would have no objective
meaning at all, then the provisions of Article IV, Section 10
limiting the Legislative Assembly to biennial sessions have
been rendered meaningless. That conclusion would be con
trary to the fundamental canons of constitutional construc
tion and heretofore unbroken history of the history of [sic]
legislative power in Oregon. The voters did not intend to
abrogate Article IV, Section 10 when they voted to approve
Article IV, Section lO(a). The Legislative Assembly may not
schedule, one year in advance, an 'event of emergency' upon
which to schedule a Supplemental Session. "
4 Both Article IV, section 10, and Article IV, section lOa, are set out i n full
below.

82 George v. Courtney
On January 18, 2008-shortly before the scheduled
trial date for plaintiffs' action-the President and the
Speaker began the process to convene an emergency legisla
tive session, as set out in ORS 1 7 1. 015.5 As a required part of
that statutory procedure, the President and the Speaker sub
mitted the following statement ofjustification for the session
to their legislative colleagues :
"The Legislative Assembly, through the adoption of
Senate Concurrent Resolution 1 (2007), determined that
the structure of convening the Legislative Assembly in ses
sion every odd-numbered year does not provide sufficient
predictability or certainty for the citizens of Oregon, and
further determined that an even-numbered year session
will improve the legislature's handling of complex policy
issues and related fiscal matters. In addition, interim com
mittees of the Legislative Assembly have identified specific
budget and policy issues that need resolution without
delay. We find that these matters constitute an emergency
warranting immediate attention by the Legislative
Assembly."
Thereafter, the members of the Legislative Assembly were
advised of the statement by the President and the Speaker,
and were asked whether they wished to convene a session of
the assembly. The requisite number of members of each
house voted to hold a special session. The President and the
Speaker then announced the convening of the special session
in a proclamation dated February 1, 2008.
In the trial court, the state argued, in part, that the
text, context, and history of Article IV, section lOa, under
scored a clear intent to vest the legislature with the sole dis
cretion and authority to determine the existence of an emer
gency for convening a special session under that provision.
The trial court agreed, concluding that such a decision
"should be, in nearly all instances, one for the legislature
alone to determine." The trial court went on to opine that the
identification of "specific budget and policy issues that need
resolution without delay" as part of the justification for the
special session, although vague, nevertheless was sufficient
to meet the threshold requirements of Article IV, section lOa.
0 The full text of ORS 171.015 is set out in the Appendix following this opinion.

Cite as 344 Or 76 (2008) 83
Based on that view, the trial court dismissed plaintiffs' com
plaint. This appeal followed.
Three provisions of the Oregon Constitution address
the scheduling of state legislative sessions. One provision,
Article IV, section 10, provides:
"The sessions of the Legislative Assembly shall be held
biennially at the Capitol of the State commencing on the
second Monday of September, in the year eighteen hundred
and fifty eight, and on the same day of every second year
thereafter, unless a different day shall have been appointed
by law."6
The Governor also has authority to call the Legislative
Assembly into session under Article V, section 12, of the
Oregon Constitution, which provides:
"[The Governor] may on extraordinary occasions con
vene the Legislative Assembly by proclamation, and shall
state to both houses when assembled, the purpose for which
they shall have been convened."
Finally, Article IV, section lOa, allows the legislature to con
vene itself, "[i]n the event of an emergency," and pursuant to
the written request of a majority of the members of each
house:
"In the event of an emergency the Legislative Assembly
shall be convened by the presiding officers of both Houses at
the Capitol of the State at times other than required by sec
tion 10 of this Article upon the written request of the major
ity of the members of each House to commence within five
days after receipt of the minimum requisite number of
requests."
This case concerns the meaning of Article IV, section lOa, an
issue raised for the first time in the present proceeding.
Plaintiffs focus their challenge to the legislature's
proposed session primarily on the use of the term "emer
gency'' in the text of Article IV, section lOa. They posit that
the word refers to specific circumstances that give rise to the
6 A different day has since been "appointed by law": The Legislative Assembly
now convenes on "the second Monday in January of each odd-numbered year." ORS
1 7 1 .010.

need for an immediate response, so that the legislature can
not convene itself in an "emergency" session unless those cir
cumstances are present. Implicit in that proposition is the
idea that an "emergency" is an objectively discernab1e event
or series of events and, therefore, that whether such an emer
gency exists is a question amenable to judicial scrutiny. The
state, for its part, focuses on the requirement in Article IV,
section lOa, that majorities in both legislative houses must
request an emergency session before such a session can be
convened. Under the state's interpretation, and regardless of
the particular circumstances, an "emergency" exists when
ever majorities in both legislative houses so declare. From
that premise, the state argues that the question whether an
"emergency" exists is reserved for the Legislative Assembly
alone and, thus, is beyond the permissible scope of judicial
scrutiny. Alternatively, the state agues that, even if the
Legislative Assembly's declaration that an emergency exists
is amenable to judicial scrutiny, this court should give the
greatest possible deference to the Legislative Assembly's
determination.
Article IV, section lOa, was adopted by the voters
pursuant to a legislative referendum, rather than being
enacted as a part of the original Oregon Constitution. In such
cases, this court applies the interpretive methodology set out
in Ecumenical Ministries v. Oregon State Lottery Comm. , 3 1 8
Or 55 1 , 871 P2d 1 06 ( 1994). See Stranahan v. Fred Meyer,
Inc. , 331 Or 38, 57, 1 1 P3d 228 (2000) (identifying that case
as the appropriate paradigm for such interpretations). Under
Ecumenical Ministries, this court's task in examining consti
tutional provisions referred to the people for their approval is
to discern the voters' intent in adopting a particular provi
sion. 3 1 8 Or at 559.
The best evidence of the voters' intent in adopting a
particular constitutional provision is the text of the provision
itself. Id. The context of the provision may also be considered,
and includes the text of the ballot measure that gave rise to
the provision, id. , the text of related ballot measures submit
ted to voters during the same election, id ., and related consti
tutional provisions that were in place when the provision in
question was adopted. Stranahan, 33 1 Or at 62 n 15; see also
Comeaux v. Water Wonderland Improvement Dist. , 3 15 Or

Cite as 344 Or 76 (2008) 85
562, 569, 847 P2d 841 ( 1993) (considering such context when
interpreting voter-initiated constitutional amendment). If
the voters' intent is clear from the text and context of the con
stitutional provision at issue, this court will not inquire fur
ther. Ecumenical Ministries, 3 1 8 Or at 559. If, however, the
voters' intent is not clear after that inquiry, this court will
turn to the provision's history. Id. See also Flavorland Foods
v. Washington County Assessor, 334 Or 562, 575, 54 P3d 582
(2002) (illustrating proposition).
We first examine the text of Article IV, section lOa.
As noted, that constitutional provision conditions the Legis
lative Assembly's ability to convene itself on "the event of an
emergency." In examining the text of constitutional provi
sions adopted by initiative or legislative referral, this court
typically gives words of common usage their plain, natural,
and ordinary meaning. Coultas v. City of Sutherlin, 3 18 Or
584, 588-89, 8 7 1 P2d 465 ( 1994).
The word "emergency," by its plain and ordinary
meaning, connotes
"an unforseen combination of circumstances or the result
ing state that calls for immediate action * * * as a : a press
ing need : EXIGENCY * * * c : a usu. distressing event or
condition that can often be anticipated or prepared for but
seldom exactly foreseen[.]"
Webster's Third New Int'l Dictionary 741 (unabridged ed
2002). In light of the broad range of tasks that confront leg
islatures every day, we have no basis for assuming that the
voters meant to use the term "emergency" narrowly, e.g. , to
address, for example, unforeseen emergencies, but not press
ing needs. And, if that is true, then the scope of authority
granted to the Legislative Assembly seems to us to be plain
from the wording of the provision itself: Article IV, section
lOa, of the Oregon Constitution authorizes the Legislative
Assembly to convene itself in special session at any time
other than during a regular session if, in the opinion of the
requisite number of legislators, a combination of circum
stances has resulted in a need for immediate action, there
appears to be a pressing need to convene (whatever the

86 George v. Courtney
nature and source of that need), or a distressing event or con
dition has arisen, even if the possibility of that event or con
dition had been anticipated.
Nothing in the text of Article IV, section lOa,
requires the legislators to consult each other, agree on, or
give notice of the circumstances that constitute the emer
gency. We note, however, that, rather than rely on that broad
reading of its power under Article IV, section lOa, the Legis
lative Assembly has enacted self-limiting legislation that,
among other things, addresses those matters.
Specifically, ORS 171.015 sets out the procedures to
be followed in requesting a special session. Section (2) of that
statute requires that a written notice of intent to invoke Arti
cle IV, section lOa, signed by at least one member of each
house, be filed with the Legislative Administrator, and that
the filing contain "a written statement giving justification of
the need for a special session." Section (3) then requires the
Legislative Administrator to send to each member of the
Legislative Assembly a form allowing the member to declare
whether the member does or does not wish to have a special
session convened. That form must contain the statement of
justification described in subsection (2). The member then
indicates on the form whether or not the member wishes to
have a special session convened, and returns the form to the
Legislative Administrator. Section (4) provides that each
form, when returned, constitutes the signing member's irrev
ocable commitment either to request or not to request a spe
cial session. A sufficient number of those requests from each
house triggers the calling of a special session.
Plaintiffs do not assert that the procedures set out in
either Article IV, section lOa, or in its implementing statute,
ORS 1 7 1 .0 1 5, were not followed. And, in light of the fact that
the Legislative Assembly has chosen to create more transpar
ency in convening a special session than is required by the
wording of Article IV, section lOa, it would seem to follow
that the legislature's undisputed conformance with ORS
17 1.015 more than satisfies any constitutional requirement.
Plaintiffs, however, argue otherwise. We address their argu
ments briefly.

Cite as 344 Or 76 87
Plaintiffs assert, first, that SCR 1, which plaintiffs
claim discloses the real reason that the special session was
called, is constitutionally insufficient to serve as the basis
upon which the Legislative Assembly may convene itself.
That argument is not relevant to the central issue in this
case, because the special session is not being called as a legal
consequence of SCR 1.7 Rather, it is being called on the basis
of the contents of the January 18, 2008, notices mailed to
members of the Legislative Assembly and their votes in
response to those notices. SCR 1 may have encouraged the
leaders of the two houses to file their notice of intent to
invoke Article IV, section lOa, but it did not require them to
do so, or restrict them regarding the grounds that they
thought might j ustify the special session. Put more directly:
For the purposes of this proceeding, the existence and word
ing of SCR 1 are irrelevant; even had there been no SCR 1, the
same legislators could have filed the same notice, with the
same justification, and their colleagues could have agreed
that a special session should be called.
Plaintiffs argue in the alternative that the reasons
advanced by the President and the Speaker in their notice to
the Legislative Administrator were insufficient because they
lacked adequate specificity. Plaintiffs assert that "the voters
are entitled to know the specific reasons asserted by legisla
tors" in convening a special session. That argument also fails.
The declaration by the President and the Speaker stated,
inter alia, that "interim committees of the Legislative
Assembly have identified specific budget and policy issues
that need resolution without delay." That statement meets
two definitions of "emergency"-it demonstrates "an unfor
seen combination of circumstances or the resulting state that
calls for immediate action," and "a pressing need." Article IV,
section lOa, of the Oregon Constitution requires no more
than the statute. Certainly, nothing in Article IV, section
lOa, requires anything like further specificity in the notice of
reasons that plaintiffs demand, and there is no basis for this
7 We note that, if the passage ofSCR 1 were the relevant event, then plaintiffs'
failure to challenge the resolution until 1 1 months after its enactment would raise
serious concerns respecting the possible applicability of the doctrine oflaches.

court to insert such a requirement into that provision. Plain
tiffs have not shown a violation of the constitution in that
respect.
Finally, plaintiffs respond that this court should not
focus on that single sentence referring to the existence of
budget and policy issues. More specifically, they assert that
this court should not assume that that sentence, even if suf
ficient standing alone, states the true reason that the mem
bers of the Legislative Assembly decided to convene in special
session. In other words, plaintiffs ask us to look behind the
acts of the legislators to weigh and assess the motives behind
those acts. Such an exercise of power by this court would be
an improper invasion by the judicial branch into the very
thought processes of members of a coordinate branch of gov
ernment. We have not, and we do not, claim such power.
Plaintiffs' final argument is not well taken.
The judgment of the trial court is affirmed.

Cite as 344 Or 76 (2008)
APPENDIX
ORS 1 7 1 . 0 15 provides:
"(1) When a majority of the members of e ach house of
the Legislative Assembly has cause to believe that an emer
gency exists and so notifies the presiding officers of each
house in the manner described in this section, the presiding
officers shall invoke section lOa, Article IV of the Oregon
Constitution.
"(2) Members of the Legislative A"!sembly may give
notice of intent to invoke the provisions of subsection ( 1) of
this section by filing written notice thereof with the
Legislative Administrator. The notice shall be accompanied
by a written statement giving justification of the need for a
special session. The filing may be signed by more than one
member of each house but must be signed by at least one
member of each house.
"(3) Upon receipt of a properly signed notice and state
ment described in subsection (2) of this section, the
Legislative Administrator shall send to each member of the
Legislative Assembly a form to be signed and returned by
the member indicating whether the member requests a spe
cial session or does not so request. The form shall be as pre
scribed by the Legislative Administration Committee and
shall contain the text of this section, the names of the mem
bers who filed the notice, and the text of the accompanying
statement. The form shall be dated and shall bear the date
14 days later, computed as provided in subsection (7) of this
section, by 5 p.m. on which date the form must be returned
to the Secretary of the Senate or the Chief Clerk of the
House of Representatives, respectively, or the person des
ignated to serve in that capacity in order to be counted in
determining whether the minimum requisite number of
signatures requesting a special session has been obtained.
The form sent to the members shall be sent by certified
mail, addressee only, return receipt requested.
"( 4) The return of the signed form by a member to the
Secretary of the Senate or the Chief Clerk of the House of
Representatives or person designated to serve in that
capacity constitutes an irrevocable request for or refusal of
the special session requested by the members filing under
subsection (2) of this section and described in the form.
89

90 George v . Courtney
"(5) The Secretary of the Senate and the Chief Clerk of
the House of Representatives, respectively, or the person
designated to serve in that capacity shall verify the signa
tures in the return form and tally the requests and refusals,
note the date and time of the receipt of each returned form.
When each receives the requisite minimum number of
signed forms agreeing to the special session from members
of the house of which the person is an officer, each immedi
ately shall notify the presiding officer of each house.
"(6) Upon receiving notice from the Secretary of the
Senate and the Chief Clerk of the House of Representatives
or the person designated to serve in that capacity that the
minimum requisite number of signed requests for a special
session has been received and verified for both houses, the
presiding officers jointly shall convene the Legislative
Assembly into emergency session by joint proclamation, fix
ing the date thereof. The date must be within five days after
receipt by the presiding officers of the notice from the
Secretary of the Senate and Chief Clerk of the House of
Representatives. The original of the proclamations shall be
filed with the Secretary of State.
"(7) The period of time for purposes of subsection (3) of
this section shall be computed by excluding the first day
and including the last day unless the last day falls on any
legal holiday or on Saturday, in which case the last day is
also excluded. The period of time for purposes of subsection
(6) of this section shall be computed by beginning on the day
after which the presiding officers receive the notice
described in subsection (6) of this section and ending five
days later, regardless of legal holidays or Saturdays."