FILED: August 3, 2006
IN THE SUPREME COURT OF THE STATE OF OREGON
JEFFREY B. KERR,
MICHAEL KELLEY, and JANN CARSON,
Respondents on Review,
v.
BILL BRADBURY,
Secretary of State for the State of Oregon,
Petitioner on Review.
(CC 02C-21814; CA A121744; SC S51503)
En Banc
On petition for reconsideration submitted May 4, 2006.*
Charles F. Hinkle, ACLU Foundation of Oregon, Inc., filed
the petition for reconsideration.
No appearance contra.
DE MUNIZ, C. J. 
The petition for reconsideration is allowed, and the former
opinion is adhered to.
*Kerr v. Bradbury, 340 Or 241, 131 P3d 737 (2006).
DE MUNIZ, C. J.
Jeffrey B. Kerr, Michael Kelley, and Jann Carson
(petitioners) seek reconsideration of this court's decision in
Kerr v. Bradbury, 340 Or 241, 131 P3d 737 (2006).  We allow their
petition for reconsideration and adhere to our decision as
issued.
The controversy that gave rise to this case involved a
initiative petition approved by the Secretary of State for
circulation and signature gathering.  Petitioners contended that,
as approved, the petition violated the "full text" provision of
Article IV, section 1(2)(d), (1) of the Oregon Constitution and
brought an action against the Secretary of State seeking
declaratory and injunctive relief.  The Secretary of State
prevailed at trial, but, on appeal, the Court of Appeals reversed
the trial court's judgment.  Shortly after that decision issued,
the time limit for signature gathering expired without the
initiative's sponsors submitting the necessary petition
signatures to the Secretary of State's office.  As a result, the
initiative was not placed on the ballot for consideration by the
voters.  The Court of Appeals went on to award attorney fees to
petitioners as the prevailing parties, and the Secretary of State
sought review in this court.
Ultimately, we concluded that the case was no longer
justiciable and dismissed the Secretary of State's petition for
review as moot.  Kerr, 340 Or at 243.  In the course of doing so,
we were also called on to consider whether we should vacate the
judgments below.  As part of our explanation regarding why
vacatur was unnecessary, we wrote:  

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

Id. at 251 (emphasis added; footnote omitted).
Focusing, in part, on the text highlighted above,
petitioners now contend that the court has departed from prior
Oregon law.  Specifically, petitioners argue that this court has
"held that the Secretary of State may ignore the law as the Court
of Appeals has stated it, thus reducing the effect of the Court
of Appeals decision in this case to that of 'a restricted
railroad ticket, good for this day and train only.'  Smith v.
Allwright, 321 US 649, 669, 64 S Ct 757, 88 L Ed 987 (1944)
(Roberts, J., dissenting)."  On reconsideration, petitioners ask
us to "disavow" that holding and reaffirm the principle that
responsible state officials not only will, but must, honor all
declarations of law made by the Court of Appeals.  
Our holding in Kerr is not, as petitioners depict, a
license granted to the Secretary of State to now ignore the Court
of Appeals decision in this case.  We left that decision in place
after the parties' controversy became moot, and, in so doing,
also quoted, with approval, the United States Supreme Court's
observation that "'[j]udicial precedents are presumptively
correct and valuable to the legal community as a whole.'"  Kerr,
340 Or at 250 (quoting U.S. Bancorp Mortgage Company v. Bonner
Mall Partnership, 513 US 18, 26, 115 S Ct 386, 130 L Ed 2d 233
(1994)).  Having preserved the Court of Appeals decision here, we
will not assume that the Secretary of State -- nor any of the
parties, for that matter -- will now refuse to adhere to it.
That said, however, our holding in Kerr accurately
reflects the degree to which the Court of Appeals decision should
be regarded as controlling authority.  Although that decision
binds the parties in this case, and binds lower courts, it is not
the last word on the full text provision of the Oregon
Constitution, because mootness has denied the Secretary of State
the opportunity to test, in this court, the merits of the Court
of Appeals' holding on that issue.  The Secretary of State, in an
appropriate circumstance, may seek a ruling from this court on
the constitutional question that previously eluded our review in
this case.  Petitioners' other arguments on reconsideration do
not merit further discussion.
The petition for reconsideration is allowed, and the
former opinion is adhered to.


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

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

Return to previous location.


