                                                                  Filed: October 4, 2012

              IN THE SUPREME COURT OF THE STATE OF OREGON

BRYN HAZELL,
FRANCIS NELSON, TOM CIVILETTI, DAVID DELK,
GARY DUELL, JOAN HORTON, and KEN LEWIS,

                                                                   Plaintiffs-Appellants
                                                                    Cross-Respondents,
                                                                  Petitioners on Review,

       v.

KATE BROWN,
Secretary of State of the State of Oregon;
and JOHN R. KROGER,
Attorney General of the State of Oregon,
                                                                Defendants-Respondents
                                                                    Cross-Respondents,
                                                                Respondents on Review,

       and

CENTER TO PROTECT FREE SPEECH, INC.,
an Oregon nonprofit corporation;
and FRED VANNATTA,
                                                                Intervenors-Respondents
                                                                       Cross-Appellants,
                                                                Respondents on Review.


             (CC 06C22473; CA A137397; SC S059245 (Control), S059246)

       En Banc

       On review from the Court of Appeals.*

       Argued and submitted January 9, 2012.

      Daniel W. Meek, Portland, argued the cause and filed the brief for petitioners on
review Bryn Hazell, Francis Nelson, Tom Civiletti, David Delk, and Gary Duell. With
him on the brief was Linda K. Williams.

                                         1
      Linda K. Williams, Portland, argued the cause and filed the brief for petitioners on
review Joan Horton and Ken Lewis. With her on the briefs was Daniel W. Meek.

       John DiLorenzo, Davis Wright Tremaine LLP, Portland argued the cause for
respondents on review Center to Protect Free Speech and Fred Vannatta. With him on
the brief were Gregory A. Chaimov, Aaron K. Stuckey, and Paul J. Southwick.

       Michael A. Casper, Deputy Solicitor General, Salem, argued the cause for
respondents on review State of Oregon and John R. Kroger, Attorney General. With him
on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor
General.

      P. K. Runkles-Pearson, Stoel Rives LLP, Portland, filed a brief on behalf of
amicus curiae ACLU Foundation of Oregon.

      DE MUNIZ, J.

       The decision of the Court of Appeals and the judgment of the circuit court are
affirmed.

      Durham, J., concurred in part and dissented in part and filed an opinion.

      *Appeal from Marion County Circuit Court, Mary Mertens James, Judge. 238 Or
App 487, 242 P3d 743 (2010).




                                         2
 1                 DE MUNIZ, J.

 2                 This case requires us to examine the operative text of a voter-approved

 3   ballot measure that purported to depend for its efficacy upon the passage of a companion

 4   measure that voters rejected. The trial court concluded that the text at issue was

 5   severable from the ballot measure and ruled that the remaining provisions of the measure

 6   were, according to the plain text of the measure itself, dormant. The Court of Appeals

 7   affirmed that judgment. Hazell v. Brown, 238 Or App 487, 242 P3d 743 (2010). For the

 8   reasons set out in this opinion, we also affirm the trial court's judgment and the decision

 9   rendered by the Court of Appeals.

10                        FACTS AND PROCEDURAL BACKGROUND

11                 In 2006, two ballot measures were placed before Oregon voters at the polls.

12   One -- Measure 46 (2006) -- sought to amend the Oregon Constitution to permit the

13   enactment of laws prohibiting or limiting electoral campaign "contributions and

14   expenditures, of any type or description." The other -- Measure 47 (2006) -- sought to

15   create new campaign finance statutes that would, essentially, statutorily implement the

16   constitutional changes proposed in Measure 46. Voters, however, rejected Measure 46

17   while approving Measure 47. Among other things, Measure 47 contained a clause at

18   section 9(f) that provided:

19                 "If, on the effective date of this Act, the Oregon Constitution does
20          not allow limitations on political campaign contributions or expenditures,
21          this Act shall nevertheless be codified and shall become effective at the
22          time that the Oregon Constitution is found to allow, or is amended to allow,
23          such limitations."

24                 Relying on that provision, the Secretary of State's office took the position

                                               1
 1   that, in light of Measure 46's defeat at the polls, Measure 47 was, by its own terms,

 2   unenforceable. It stated:

 3          "The plain text of Section (9)(f) requires that the entire measure is to be
 4          codified as part of the statutory law of Oregon. That text also specifies that
 5          'this Act' -- referring singularly to the entire measure -- will be ineffective
 6          until such time as 'the Oregon Constitution is found to allow, or is amended
 7          to allow,' limitations on campaign contributions and expenditures. Because
 8          Measure 46 was not approved by the people, the conditions required by
 9          Section (9)(f) for the rest of measure 47 to become operative will not have
10          been fulfilled on December 7, 2006. Accordingly, the effect of Section
11          (9)(f) is that no part of the measure presently is enforceable. According to
12          the plain, natural, and ordinary meaning of the words of Section (9)(f), all
13          of Measure 47 will remain dormant until such time as 'the Oregon
14          Constitution is found to allow, or is amended to allow,' limitations on
15          campaign contributions and expenditures."1

16                 Several of the measure's chief petitioners, together with other Oregon

17   voters, responded to that determination by bringing an action against both the Secretary

18   of State and the Attorney General (collectively, the state), seeking declaratory and

19   injunctive relief to compel enforcement of Measure 47. In response, the Center to Protect

20   Free Speech, Inc., and its president, Fred Vannatta, intervened to oppose that action,

21   asserting that section 9(f) of Measure 47 violated Article I, section 21, of the Oregon

22   Constitution, rendering the entire measure void. On cross-motions for summary

23   judgment filed by all the parties, the trial court ruled in the state's favor, concluding that

24   Measure 47 was presently inoperative.


            1
                   Measure 47 (2006) is currently codified as a "legislative note" at ORS
     chapter 259. Among other purposes, such notes are used to signify, as in this case, a
     special date on which a provision will take effect.




                                                2
 1                 In a letter opinion to the parties, the trial court found the text and context of

 2   section 9(f) to be unambiguous as to the meaning and effect of Measure 47:

 3          "The text of section (9)(f) describes a condition, then mandates the
 4          consequences if that condition obtains. The condition triggering section
 5          (9)(f) is that 'on the effective date of this Act, the Oregon Constitution does
 6          not allow limitations on political campaign contribution and expenditures.'
 7          The mandated consequence if that condition obtains is that the 'Act shall
 8          nevertheless be codified and shall become effective at the time that the
 9          Oregon Constitution is found to allow, or is amended to allow, such
10          limitations.' As held above, the triggering circumstances unambiguously
11          existed and were not changed by Measure 46, which did not pass. The
12          unambiguous consequence is that Measure 47, in its entirety, presently is
13          not operative."

14                 The trial court reached similar conclusions regarding the constitutionality

15   of section 9(f), rejecting the argument that the section violated Article IV, section 1(4)(d),

16   because it altered the effective date of Measure 47 rather than its operative effect. The

17   trial court wrote:

18          "That contention is answered completely by State v. Hecker, 109 Or 520
19          (1923). Hecker makes clear that section (9)(f)'s use of the term 'shall
20          become effective' must be construed to mean 'shall become operationally
21          effective.' So construed, as in Hecker, section (9)(f) conflicts with no
22          constitutional requirements as to the effective date of legislation passed by
23          initiative.

24                  "Nor is the indeterminate nature of the contingency fatal to the
25          provision's effect. In Hecker, the challenged statute was to become
26          operative whenever constitutionally authorized, without any specification
27          of an election at which such a proposal might be considered. * * *
28          Nevertheless, the Oregon Supreme Court upheld the contingency. Section
29          (9)(f) similarly may be sustained under that directly controlling authority, at
30          least with respect to the operative effect being contingent on amendment of
31          the Oregon Constitution."

32   (Emphasis in original.)

33                 As to intervenors' argument that section 9(f) violated Article I, section 21,


                                                3
 1   the trial court first held that

 2          "the contingency rendering Measure 47 operative if it is authorized by
 3          constitutional amendment is exactly the same contingency upheld in
 4          Hecker. Section (9)(f)'s direction that Measure 47 shall become operative
 5          upon amendment of the constitution to allow [campaign contribution and
 6          expenditure] limits is permissible."

 7                  The trial court, however, declined to directly address the second

 8   contingency in section 9(f), i.e., whether Measure 47 could properly become operative on

 9   a future judicial finding. It concluded, instead, that, even if the measure's operative effect

10   could not constitutionally depend on such an occurrence, ORS 174.040 permitted it to

11   sever the offending portion and to give effect to the remainder of section 9(f).

12                  Plaintiffs appealed, and the Court of Appeals affirmed the trial court. In

13   doing so, the Court of Appeals similarly concluded that Measure 47 was inoperative:

14                  "In sum, the substantive provisions of Measure 47 did not, and will
15          not, become operative unless or until Article I, section 8, is amended to
16          permit limitations of the sort deemed unconstitutional in Vannatta I or until
17          the Oregon Supreme Court revisits Vannatta I and determines that such
18          limitations are constitutional under Article I, section 8."

19   Hazell, 238 Or App at 512. We subsequently allowed plaintiffs' petitions for review. For

20   the reasons set out below, we affirm the Court of Appeals decision and the trial court's

21   judgment.

22                        ADDITIONAL BACKGROUND -- MEASURE 47

23                  The history of this case goes back nearly 18 years to 1994, when Oregon

24   voters enacted Ballot Measure 9 (1994), a citizen initiative that, among other things, set

25   mandatory limits on monetary contributions to state political campaigns. In 1997, this

26   court held in Vannatta v. Keisling, 324 Or 514, 931 P2d 770 (1997) (Vannatta I), that


                                               4
 1   such limits -- together with campaign expenditure limits -- violated the free expression

 2   rights guaranteed by Article I, section 8, of the Oregon Constitution. Later, specifically

 3   citing Vannatta I for that proposition in 2006, this court stated:

 4          "Since the inception of the Oregon Constitution, Article I, section 8, strictly
 5          has prohibited any legislation 'restraining the free expression of opinion, or
 6          restricting the right to speak, write, or print freely on any subject
 7          whatever[.]' Under Oregon law, both campaign contributions and
 8          expenditures are forms of expression protected by that constitutional
 9          provision, thus making legislatively imposed limitations on individual
10          political campaign contributions and expenditures impermissible. See
11          Vannatta v. Keisling, 324 Or 514, 524, 931 P2d 770 (1997) (so holding)."

12   Meyer v. Bradbury, 341 Or 288, 299, 142 P3d 1031 (2006) (brackets in original).

13                 At the 2006 election that followed that decision, Oregon voters were

14   subsequently invited to amend Oregon's campaign finance laws by approving citizen-

15   initiated Measure 46 and Measure 47. If passed, Measure 46 would have amended the

16   Oregon Constitution to expressly allow laws limiting or prohibiting election contributions

17   and expenditures, as long as such laws were either the product of citizen initiatives or

18   otherwise adopted by three-quarters of both legislative houses.

19                 While Measure 46 would have amended the Oregon Constitution, Measure

20   47, if adopted, was slated to amend the Oregon statutes to address the lack of "reasonable

21   limits on political campaign contribution and expenditures" contained in the current

22   statutes. As part of an extensive array of findings, section 1(a) of Measure 47 linked

23   virtually all of the provisions of the measure to the ultimate goal of reining in the undue

24   influence of campaign contributions and expenditures that, from its drafter's perspective,

25   were too large:


                                               5
 1                  "The democratic process has not functioned properly in Oregon, due
 2          to the lack of reasonable limits on political campaign contributions and
 3          expenditures, including expenditures made independently of candidates, on
 4          races for state and local public office. Oregon is one of only five states in
 5          the United States with no limits on political campaign contributions. All of
 6          the prohibitions, limits, and reporting and disclosure requirements of this
 7          Act are reasonable and necessary to curb the undue influence of large
 8          contributions and expenditures."

 9   (Emphasis added.)

10                 Measure 47 went on to set out a new chapter of Oregon laws devoted solely

11   to creating and implementing a variety of limitations on campaign contributions and

12   expenditures. For example, Measure 47 limited amounts that could be contributed to

13   candidates, political committees, or political parties. It limited contributions that

14   candidates could make to their own campaigns, and prohibited them from making loans

15   to their own campaign committees. It banned, with certain exceptions, corporations,

16   labor unions, and certain individuals from making campaign contributions altogether, and

17   prohibited campaigns and political parties from accepting contributions that were

18   impermissible under the measure's provisions.

19                 Measure 47 also imposed mandatory limits on political expenditures by

20   limiting the amount that persons could spend to directly communicate support for, or

21   opposition to, a political candidate or party. In addition, the measure prohibited -- with

22   some exceptions -- similar expenditures by corporations, labor unions, and certain

23   individuals. Measure 47 further limited the amount that candidates and political

24   committees could spend to oppose or support a candidate or party.

25                 In addition to those contribution and expenditure provisions, Measure 47


                                               6
 1   set out various disclosure and reporting requirements. It delineated how the state was to

 2   administer, track, and publish information concerning candidate contributions and

 3   expenditures, and it imposed penalties for violating the measure's various restrictions.

 4                 The drafters of Measure 47, however, were clearly cognizant of the

 5   constitutional barriers that could hinder implementation of the measure if it were enacted

 6   without substantive changes to either the Oregon Constitution or this court's prior

 7   interpretation of that document’s free expression provision. Consequently, additional

 8   findings set out as section 1(r) of Measure 47 explicitly linked the time at which the

 9   measure would "take effect" to a time -- unspecified -- that the Oregon Constitution

10   would allow the campaign finance limitations proffered by the measure. Section 1(r)

11   provided:

12                  "In 1994, voters in Oregon approved a statutory ballot measure,
13          Measure 9, establishing contribution limits similar to those in this Act, by
14          an affirmative vote of 72 percent. The Oregon Supreme Court in 1997
15          found that those limits were not permitted under the Oregon Constitution.
16          This Act shall take effect at a time when the Oregon Constitution does
17          allow the limitations contained in this Act."

18   (Emphasis added.)

19                 As noted, at the 2006 general election, Oregon voters rejected Measure 46

20   but passed Measure 47. This action followed.

21                                         DISCUSSION

22                 For the reader’s convenience, we again set out section 9(f) of Measure 47:

23          "If, on the effective date of this Act, the Oregon Constitution does not allow
24          limitations on political campaign contributions or expenditures, this Act
25          shall nevertheless be codified and shall become effective at the time that the
26          Oregon Constitution is found to allow, or is amended to allow, such

                                               7
 1          limitations."

 2   In seeking declaratory and injunctive relief here, plaintiffs consist of two groups --

 3   Hazell, Nelson, Civiletti, Delk, and Duell (Hazell plaintiffs), and Horton and Lewis

 4   (Horton plaintiffs). Each group presents different arguments concerning the validity and

 5   overall effects of section 9(f) on the other provisions of Measure 47.

 6                 We begin with the Hazell plaintiffs, who take the position that the

 7   precipitating condition set out in section 9(f) has yet to occur. Section 1(r) of Measure

 8   47, they point out, expressly provides that the measure "will take effect at a time when

 9   the Oregon Constitution does allow the limitations contained in this Act." (Emphasis

10   added.) They argue that, in the context of that provision, the reference to "limitations" in

11   section 9(f) should be narrowly construed to mean only those limitations set out in

12   Measure 47 -- not the limitations previously held unconstitutional in Vannatta I. Because

13   Measure 47 became effective in December 2006, the Hazell plaintiffs continue,

14   determining whether the condition anticipated by section 9(f) has been met or not

15   requires this court to first determine the constitutionality of each provision of Measure

16   47, a process that, in turn, would implicitly require us to revisit Vannatta I.

17                  Alternatively, they assert that a literal, less context-driven interpretation of

18   section 9(f) yields the same result. As they argued below, they again contend that, as of

19   the effective date of Measure 47, the Oregon Constitution did, in fact, allow some

20   finance-related campaign limitations. According to the Hazell plaintiffs, those limitations

21   presently take the form of various registration, reporting, and identification requirements

22   for contributors, as well as the requirement that contributions be used only for bona fide

                                                8
 1   campaign expenses or to defray the costs of a recipient's duties as a public office holder.

 2   Given the existence of those restrictions, the Hazell plaintiffs argue, the condition set out

 3   in section 9(f) has yet to arise, a circumstance that again places the onus of determining

 4   the substantive constitutionality of all the provisions of Measure 47 with this court.

 5                 The problem with those arguments, however, is that they assume that we

 6   must interpret section 9(f) in isolation, where the controlling context for our analysis is

 7   Measure 47 and little else. That assumption, however, ignores the nature of legislative

 8   power and the judicial decisions that arguably gave rise to the enactment of Measure 47.

 9                 We have recognized that the legislative power is a unitary authority that

10   rests with two lawmaking bodies, the legislature and the people. Meyer v. Bradbury, 341

11   Or 299-300. The exercise of that power is always "coequal and co-ordinate," regardless

12   of which of the two entities wields it. Id. at 300. For that reason, we apply a similar

13   method of analysis to statutes enacted by voter-initiated measures as we do to statutes

14   enacted by the legislature, with the goal of discerning the intent of the voters who passed

15   those initiatives into law. State v. Guzek, 322 Or 245, 265, 906 P2d 272 (1995).

16                 We begin with the statutory text. Roseburg School Dist. v. City of

17   Roseburg, 316 Or 374, 378, 851 P2d 595 (1993). As the Court of Appeals observed, the

18   pertinent "statutory language is 'limitations on' contributions or expenditures -- and not

19   'limitations relating to' contributions or expenditures." Hazell, 238 Or App at 507

20   (emphasis in original). In other words, the text of section 9(f) implies that that provision

21   is intended to refer to direct limitations on the act of contributing or expending campaign

22   funds, not on collateral requirements such as reporting and timely disclosure regarding

                                               9
 1   the receipt or expenditure of campaign funds.

 2                 The Court of Appeals also noted that the "enacting and operative effective

 3   clauses of section 9(f) both have the same single and undivided referent: 'This Act.'" Id.

 4   Like the Court of Appeals, we view the use of the phrase "This Act" as evidence that the

 5   voters intended and understood that, if and when Measure 47 became operative, it would

 6   do so as a whole piece of legislation, not in some piecemeal fashion.

 7                 A well-established part of our interpretive methodology requires that we

 8   presume that laws are enacted in light of the judicial decisions that preceded and bear

 9   directly on them. Weber and Weber, 337 Or 55, 67-68, 91 P3d 706 (2004). Here, our

10   holdings in Vannatta I and Meyer establish that, at the time that the voters considered

11   Measure 47, campaign contributions and expenditures in Oregon were constitutionally

12   protected forms of expression, and the legislature could not limit them. The plethora of

13   mandatory contribution and expenditure limitations set out in Measure 47 contrast

14   sharply with those holdings, leading us to conclude that Vannatta I and Meyer clearly

15   have a direct bearing on the measure. In that context, the limitations cited in section 9(f)

16   are most logically viewed broadly as the same kind of limitations struck down in

17   Vannatta I and Meyer, namely, "legislatively imposed limitations on individual political

18   campaign contributions and expenditures." Meyer, 341 Or at 299.

19                 That reading of section 9(f) is further reinforced by the findings that make

20   up a substantial part of Measure 47. As we already have noted, the findings in section

21   1(r) acknowledge the campaign finance limitations passed by voters in 1994, the

22   similarity of those limitations to the restrictions of Measure 47, and the fact that this court

                                               10
 1   subsequently held that the Oregon Constitution did not permit such limitations. At the

 2   same time, the findings in section 1(a) suggest that, now, the lack of reasonable limits on

 3   campaign finances have interfered with the proper function of Oregon's democratic

 4   processes by permitting undue influence from large campaign contributions and

 5   expenditures; as a result "[a]ll of the prohibitions, limits, and reporting and disclosure

 6   requirements" of Measure 47 are reasonably necessary to remedy that situation.

 7                 Those findings, however, depict a problem rooted in the broad

 8   constitutional prohibition articulated in Vannatta I and Meyer. The substantive

 9   provisions of Measure 47 are, according to the measure's own terms, aimed at correcting

10   problems that have arisen, at least in part, because legislatively imposed limitations on

11   campaign contributions and expenditures are subject to the constitutional bar articulated

12   in those decisions. However, if Measure 47 is to have any operative effect at all, that bar

13   must, at some point, be removed. Consequently, the "limitations on political campaign

14   contributions or expenditures " invoked in section 9(f) are best understood as the same

15   kind of limitations that were constitutionally invalidated in Vannatta I and that must, in

16   turn, be permitted by the Oregon Constitution if Measure 47 is to become operational.

17                 Based on the foregoing, and because the Oregon Constitution did not allow

18   such limitations on the effective date of Measure 47, we conclude that the condition

19   provided by 9(f) for holding Measure 47 in operational abeyance has, indeed, been met

20   here.

21                 The Hazell plaintiffs contend, however, that even if that condition has been

22   triggered, its effect is simply to suspend the limitations contained in Measure 47 pending

                                               11
 1   litigation to determine their validity. They assert that these proceedings are, in fact, that

 2   litigation, making it incumbent upon this court to now engage in a provision-by-provision

 3   determination of the constitutionality of Measure 47.

 4                  We disagree. The only issue properly before this court is whether the

 5   Secretary of State and the Attorney General correctly relied on section 9(f) to determine

 6   that Measure 47 is essentially a dormant statute. In that regard, plaintiffs have standing

 7   under ORS 246.910 to challenge the Secretary of State’s determination that Measure 47

 8   is dormant as an operational matter. See Ellis v. Roberts, 302 Or 6, 11, 725 P2d 886

 9   (1986) ("ORS 246.910(1) requires only that a person be 'adversely affected' before he can

10   bring an action challenging an election ruling of the Secretary of State. In effect, this

11   means that any registered voter -- and probably others as well -- can file an action.").

12                 But, as noted above, plaintiffs have also invited us to rule on the

13   constitutionality of individual provisions of Measure 47. They neglect, however, to seek

14   any specific relief connected to the application or nonapplication of the individual

15   provisions in question. Requesting only that we now require the Secretary of State and

16   the Attorney General "administer and enforce all of the provisions of Measure 47" is not

17   enough, under the circumstances of this case, to allege a justiciable controversy under the

18   declaratory judgment act, as to the individual provisions of Measure 47. See Eacret v.

19   Holmes, 215 Or 121, 333 P2d 741 (1958) (complaint fails to state a justiciable

20   controversy under declaratory judgment act where plaintiffs requested no relief except

21   that court declare what the law is). Because plaintiffs have failed to raise an actual

22   controversy relating to the individual provisions of Measure 47, any attempted

                                               12
 1   reexamination of this court's decision in Vannatta I as it relates to individual provisions

 2   of Measure 47 would be only advisory -- a function this court cannot undertake. See

 3   Gortmaker v. Seaton, 252 Or 440, 444, 450 P2d 547 (1969) ("In this state, however, we

 4   have strong precedent against advisory opinions. Mere difference of opinion as to the

 5   constitutionality of an act does not afford ground for invoking a judicial declaration

 6   having the effect of adjudication."); see also TVKO v. Howland, 335 Or 527, 534, 73 P3d

 7   905 (2003) (courts cannot issue declaratory judgments in a vacuum; they must resolve an

 8   actual or justiciable controversy). As a result, both the trial court and the Court of

 9   Appeals wisely refrained from addressing those questions, as will we. We now turn to

10   the Horton plaintiffs' contentions.

11                 The Horton plaintiffs take a different approach to section 9(f) than did the

12   Hazell plaintiffs. According to the Horton plaintiffs, section 9(f) must be severed in its

13   entirety, because it allows Measure 47 to become operative without providing adequate

14   notice of that fact to Oregon citizens as required by due process principles and the

15   constitutional provisions related to the effective date of newly enacted measures. They

16   argue that the only legitimate contingencies recognized in Oregon case law have been

17   actual anticipated events -- like election outcomes -- that are germane to the substance of

18   the suspended law. Here, they contend, the contingency set out in section 9(f) would

19   allow the otherwise dormant law to become operative by inadvertence, surprise, or on an

20   arbitrary event completely decoupled from any expression of assent by the voters or their

21   representatives. The tenets around which a representative democracy are built, the

22   Horton plaintiffs assert, do not include "implied consent to be governed in an arbitrary

                                               13
 1   manner where laws can spring into operation upon later nonpublic contingencies entirely

 2   divorced from the express or implied will of the people."

 3                 That argument is unpersuasive, given our interpretation of Measure 47 as

 4   set out in this opinion. We have concluded that Measure 47 will become effective as a

 5   whole or it will not become effective. We have explained that Oregon voters intended

 6   Measure 47 to remain inoperative absent a constitutional amendment like Measure 46, or

 7   a controlling judicial construction of Article I, section 8, that effectively reverses Vanatta

 8   I. Measures 47 will not, therefore, spring to life based on events that are arbitrary,

 9   difficult to describe, or unpredictable. If either of the contingencies noted above occurs,

10   Measure 47 will become effective according to the expressed will of the voters and under

11   terms that they intended. A change of that magnitude will not take place in a closet.

12                 Like plaintiffs in this matter, intervenors also take issue with section 9(f),

13   albeit for different reasons. According to intervenors, when the drafters of Measure 47

14   provided that the act "shall nevertheless be codified and shall become effective" when the

15   required contingency is met, they used the word "effective" when they should have used

16   the word "operative." Intervenors contend that that flaw is fatal to the entire measure.

17   They note that, under Article IV, section 1(4)(d), initiative or referendum measures

18   become "effective" 30 days after those measures are enacted by a majority of voters.

19   Intervenors appear to argue that, as written, section 9(f) does not actually forestall the

20   operation of Measure 47 but rather resets the effective date, violating the constitutional

21   edict in Article I, section 21, that no laws shall "be passed the taking effect of which shall

22   be made to depend on any authority, except as provided in this Constitution." They go on

                                               14
 1   to assert that, as a result, all of Measure 47 is invalid and must be struck down.

 2                 Given that this court already has construed terms such as "effective" or

 3   "shall take effect" as being synonymous and interchangeable with the word "operative,"

 4   Oregon law presents an alternative construction to the one proffered by intervenors in this

 5   case. In State v. Hecker, 109 Or 520, 221 P 808 (1923), this court examined the

 6   constitutionality of a statutory contingency provision not unlike the one at issue here.

 7   The contingency at issue in Hecker provided:

 8          "This act shall take effect as soon as and whenever the constitutional
 9          provisions of section 36 of article 1 of the Constitution of the state of
10          Oregon relating to the death penalty and any amendment or amendments
11          thereto, will permit."

12   Id. at 539 (emphasis added). The court concluded that, as part of that contingency

13   provision, the phrase "shall take effect" was not used in the same sense as the mandate

14   from the Oregon Constitution that legislative acts lacking an emergency clause "shall

15   take effect" 90 days after the end of the legislative session. See Or Const, Art IV, § 28,

16   (so stating). Instead, the court reasoned that, as used within the contingency provision,

17   the phrase was meant to postpone the active operation of the statute until it could operate

18   "contemporaneously with but not before the amendment of the Constitution." Id. at 547.

19                 Intervenors acknowledge our holding in Hecker, but argue that, since then,

20   the vocabulary of lawmaking has become precise to the point that we should assume that

21   lawmakers now carefully differentiate between the terms "effective" and "operative" and

22   never mean the one when they use the other. Today, the art of drafting statutes may, as

23   intervenors urge, be more sophisticated than in 1920. However, that fact does not


                                              15
 1   circumvent the overarching duty of this court to "avoid any strained construction that

 2   would defeat the will of the people, clearly expressed, in the method provided by the

 3   Constitution." State v. Tollerson, 142 Or 192, 198, 16 P2d 625 (1932). Our decision in

 4   Hecker is not only instructive here, it also never has been modified (much less overruled)

 5   by this court, or countermanded by legislative action. Consequently, we conclude that

 6   section 9(f), properly read, requires Measure 47 to be codified and held in abeyance

 7   pending an appropriate constitutional amendment or judicial decision that will render it

 8   operative. Neither the trial court nor the Court of Appeals erred in so holding.

 9                   The decision of the Court of Appeals and the judgment of the circuit court

10   are affirmed.




                                               16
 1                 DURHAM, J., concurring in part and dissenting in part.

 2                 I write separately because, despite some areas of agreement, I do not agree

 3   fully with the majority opinion. Additionally, according to the majority, the outcome of

 4   this case is that Measure 47 now will be "codified and held in abeyance pending an

 5   appropriate constitutional amendment or judicial decision that will render it operative."

 6   352 Or at ___ (Oct 4, 2012) (slip op at 15). Of those two options, a judicial decision

 7   addressing whether the Oregon Constitution precludes enactment of the limitations

 8   contained in Measure 47 seems more likely to occur. Because the majority dismisses the

 9   Hazell plaintiffs' claims due to a shortcoming in their pleading -- a problem that future

10   litigants are likely to cure -- it is appropriate to anticipate some of the questions that that

11   later judicial decision might address.

12                 I note at the outset that, for the reasons stated by the majority, I concur in

13   the dismissal of the claims submitted by the Horton plaintiffs. Concerning the claims of

14   the Hazell plaintiffs, the majority gives a case-specific reason for dismissing those

15   claims: the complaint alleges only a nonspecific desire for a declaratory judgment or

16   order requiring the Secretary of State and the Attorney General to administer and enforce

17   Measure 47. Id. at ___ (slip op at 12). If this case concerned nothing more than a

18   generalized request for a judicial directive compelling those state officials to comply with

19   Oregon law, I might agree that the dispute may be too indefinite to justify declaratory

20   relief. But, in my view, the plaintiffs have not drafted their complaint so narrowly. It

21   serves the interest of no one for the majority to narrowly construe the material allegations

22   of the complaint to avoid a decision here, and as a consequence, force other citizens to

                                                 1
 1   initiate additional expensive and time-consuming litigation to get an answer to the same

 2   issues raised here.

 3                 In that future litigation, as here, the most important question will be the one

 4   correctly stated by the Court of Appeals below: absent a constitutional amendment, will

 5   this court revisit Vannatta v. Keisling, 324 Or 514, 524, 931 P2d 770 (1997) (Vannatta I)

 6   and decide that at least some statutory limitations on campaign contributions and

 7   expenditures are constitutionally permissible? See Hazell v. Brown, 238 Or App 487,

 8   512, 242 P3d 743 (2010). Without answering that question directly, I see several

 9   components of the issue that other parties necessarily must address in future proceedings.

10                 Vannatta I began by asking whether political contributions and

11   expenditures constituted protected forms of expression under Article I, section 8, of the

12   Oregon Constitution.1 324 Or at 520. The court's discussion initially suggested that it

13   would give a nuanced answer to that question. For example, respecting political

14   campaign expenditures, the court said:

15          "Expenditures by a candidate, an organization, a committee, or an
16          individual, when designed to communicate to others the spender's preferred
17          political choice, is expression in essentially the same way that a candidate's
18          personal appeal for votes is expression."

19   Id. (emphasis added).


     1
            Article I, section 8, of the Oregon Constitution provides:

                    "No law shall be passed restraining the free expression of opinion, or
            restricting the right to speak, write, or print freely on any subject whatever;
            but every person shall be responsible for the abuse of this right."




                                               2
 1                 The court also carefully couched its discussion of campaign contributions,

 2   stating:

 3                 "Under Oregon law, the sole remaining question is whether
 4          contributions to political campaigns and candidates also are a form of
 5          expression under Article I, section 8. For the reasons that follow, we
 6          conclude that many -- probably most -- are.10

 7                 "* * * * *

 8                 "We think that it takes little imagination to see how many political
 9          contributions constitute expression.

10          _______________

11

12          "10 We qualify our statement with the limiting word, 'many,' because there
13          doubtless are ways of supplying things of value to political campaigns or
14          candidates that would have no expressive content or that would be in a
15          form or from a source that the legislature otherwise would be entitled to
16          regulate or prevent. To give but a few examples: A bribe may be an
17          expression of support (with an anticipated quid pro quo), but it is not
18          protected expression; a gift of money to a candidate from a corporation or
19          union treasury may be expression but, if it is made in violation of neutral
20          laws regulating the fiscal operation of corporations or unions, it is not
21          protected; a donation of something of value to a friend who later, and
22          unexpectedly, uses that thing of value to support the friend's political
23          campaign is not expression."

24   Id. at 522-23 (emphasis added).

25                 The court illustrated its point -- that "many" contributions constitute

26   expression -- by indicating that individuals or groups have a right to pool their money to

27   produce advertisements in print or electronic media, or to hire professionals to produce

28   the ads. Id. at 523. Moreover, the court in the quoted footnote set out examples of

29   political contributions that the legislature permissibly could regulate because they either

30   would have no expressive content or would be from a source properly subject to some

                                               3
 1   legislative controls, such as corporations or unions. Those passages indicated that the

 2   court's answer would turn not on whether a political contribution merely facilitated

 3   speech by some speaker at some other time, but rather on whether the contribution itself

 4   amounted to expressive conduct or bore an immediate connection to political speech.

 5                 Those nuanced passages in the court's opinion were accompanied by others

 6   that, by contrast, seemed to leave little or no room for legislative regulation. For

 7   example, the court said the following respecting a political contribution:

 8          "In our view, a contribution is protected as an expression by the
 9          contributor, not because the contribution eventually may be used by a
10          candidate to express a particular message. The money may never be used
11          to promote a form of expression by the candidate; instead, it may (for
12          example) be used to pay campaign staff or to meet other needs not tied to a
13          particular message. However, the contribution, in and of itself, is the
14          contributor's expression of support for the candidate or cause -- an act of
15          expression that is completed by the act of giving and that depends in no
16          way on the ultimate use to which the contribution is put."

17   Id. at 522 (emphasis in original).

18                 Similarly, the court equated a citizen's act of making a political contribution

19   with a pure expression of opinion supporting a political candidate or cause:

20          "If, instead of giving a contribution, a citizen stood on a street corner and
21          announced, 'I support candidate X,' there would be no doubt that that
22          message constituted an expression of general support for that candidate, as
23          well as a more particular message: 'X deserves your vote.' From the
24          perspective of the contributor, the contribution is the same kind of message
25          as is the street corner announcement."

26   Id. at 524.

27                 The Vannatta I court in those passages appears to have implied a political

28   communication from an act -- delivering money to a campaign -- whether or not any



                                               4
 1   evidence supported that implication and despite evidence that the money never supported

 2   any political expression by either the donor or the recipient. Whether and to what extent

 3   the court's conflicting statements about constitutional protections for contributions and

 4   expenditures reflected a binding holding of the court was further complicated by the fact

 5   that the Secretary of State conceded that campaign expenditures constituted free speech.

 6   Id. at 520, 542. That concession obviated any need for a court decision on the question.

 7   The court's answer was, therefore, dictum.

 8                 Nonetheless, the court summarily swept away the difficulties regarding its

 9   analysis with one absolute and legally unnecessary conclusion:

10                 "From the foregoing discussion, we conclude that both campaign
11          contributions and expenditures are forms of expression for the purposes of
12          Article I, section 8."

13   Id. at 524 (footnote omitted). And that sentence from Vannatta I has been repeated by

14   this court as if the more nuanced passages in Vannatta I did not exist. For example,

15   Meyer v. Bradbury, 341 Or 288, 299, 142 P3d 1031 (2006), states:

16          "Under Oregon law, both campaign contributions and expenditures are
17          forms of expression protected by that constitutional provision [Article I,
18          section 8], thus making legislatively imposed limitations on individual
19          political campaign contributions and expenditures impermissible. See
20          Vannatta v. Keisling, 324 Or 514, 524, 931 P2d 770 (1997) (so holding)."

21                 The majority simply repeats again, with no separate analysis, the same

22   absolute statement from Vannatta I and, later, Meyer, that shrouds rather than reveals this

23   court's actual reasoning in Vannatta I. Thus, according to the majority,

24          "[O]ur holdings in Vannatta I and Meyer establish that, at the time that the
25          voters considered Measure 47, campaign contributions and expenditures in
26          Oregon were constitutionally protected forms of expression, and the


                                               5
 1          legislature could not limit them."

 2   ___ Or at ___ (slip op at 10).

 3                 The majority's reliance here on the absolute declaration, quoted above, in

 4   Vannatta I is not correct. This court already has begun to reconsider and pull back from

 5   that absolute statement. In Vannatta v. Oregon Government Ethics Comm., 347 Or 449,

 6   464, 222 P3d 1077 (2009) (Vannatta II), this court acknowledged the extreme nature of

 7   the statement in Vannatta I, but attempted to clarify and explain it, and, I submit, to alter

 8   it. Thus, Vannatta II declared that the statement in Vannatta I that a campaign

 9   contribution constituted free speech regardless of the ultimate use to which the

10   contribution was put

11          "was unnecessary to the court's holding. On further reflection, we conclude
12          that that observation was too broad and must be withdrawn. Second,
13          because Vannatta I assumed a symbiotic relationship between the making
14          of contributions and the candidate's or campaign's ability to communicate a
15          political message, this court did not squarely decide in Vannatta I that, in
16          every case, the delivery to a public official, a candidate, or a campaign of
17          money or something of value also is constitutionally protected expression
18          as a matter of law."

19   Vannatta II, 347 Or at 465. Vannatta II makes it clear that this court already has begun

20   the process of reconsidering the absolute position voiced in Vannatta I and, as a

21   consequence, to focus the free speech analysis under Article I, section 8, on whether a

22   financial contribution in fact constitutes not merely a delivery of property but an act of

23   protected expression by the donor.

24                 Aside from the problems already noted, the court's reasoning in Vannatta I

25   for its absolute conclusion seems suspect. A campaign contribution, as noted, is a gift of



                                                 6
 1   property. A delivery of property may be accompanied by a donor's protected expressions

 2   of political or personal support, but that constitutional protection pertains to the donor's

 3   words, not the delivery of property by itself. It may be possible to imagine circumstances

 4   in which the delivery of an article of property or money might constitute expression,

 5   perhaps akin to wearing a black armband. But an act -- giving property to another -- that

 6   does not constitute free speech in most conceivable contexts is not transformed into

 7   protected speech simply because the donee is a candidate or campaign and the donor is a

 8   political supporter. The answer cannot consist of categorically pronouncing, as the court

 9   did on occasion in Vannatta I, that contributing political money constitutes speech always

10   or even most of the time. Rather, the answer depends on a careful examination of all the

11   circumstances to determine whether and to what extent the conduct of giving or spending

12   political money itself constitutes a protected expression.

13                 Some campaign expenditures might readily qualify as protected free

14   speech. The Vannatta I court's example of individuals or neighbors banding together to

15   publish political advertisements, either directly or through a retained professional ad

16   producer, describe instances of spending behavior that has a logical nexus to political

17   speech. The legislature may attach regulatory duties concerning, for example, the

18   disclosures of sources and amounts of such expenditures, but it is doubtful that

19   conventional laws simply could limit the number of supportive ads that an individual, a

20   candidate, or a campaign could purchase without violating Article I, section 8.

21                 However, the Vannatta I court's hypothetical about the purchase of

22   advertising does not support the broad conclusion that every monetary expenditure by a

                                                7
 1   candidate or campaign constitutes free speech. For example, a campaign operative's use

 2   of campaign funds to purchase ordinary consumer goods, without more, does not

 3   constitute free speech simply because the purchaser is a political campaign organization

 4   or because the expenditures will help campaign workers perform specific campaign tasks.

 5   The fact that every campaign worker, while spending campaign funds, may hope that

 6   their candidate wins an election does not turn every expenditure of campaign money into

 7   an act of free speech. The Vannatta I court did not assist in the task of determining how

 8   to identify the necessary nexus between a political expenditure and free speech by

 9   positing too-easy hypotheticals that plainly sidestep the more difficult issues involved in

10   analyzing free speech issues.2

            2
                    This court must engage in a separate analysis of the distinct acts of
     contributing money to a campaign and spending money that a candidate or campaign has
     received from donors. Making a contribution to a candidate or campaign is conduct, and
     the court's analytical focus is whether that conduct amounts to constitutionally protected
     expression by the donor when the donation occurs. The answer does not depend on
     whether the recipient, i.e., the candidate or campaign, will benefit generally from the
     donation or use the money later to engage in political speech.

            The expenditure of money by a candidate or campaign similarly is conduct, and
     the court's analytical focus is whether the conduct constitutes expression. Some
     expenditures will have an obvious nexus to political advocacy, such as purchasing
     advertising space in a newspaper or air time from a radio or television station for a
     political spot. Any limitation on those expenditures clearly would stifle protected speech,
     but the same is not true for other campaign expenditures that have little or no tie to
     expression on any subject. The fact that an expenditure originates with a campaign does
     not demonstrate automatically that Article I, section 8, protects it as free expression.
     Vannatta I failed to engage in the careful analysis of those separate kinds of actions that
     Article I, section 8, demands.




                                               8
 1                 Some academic commentators have begun to focus attention on the dearth

 2   of logical support for broad judicial pronouncements that, without any consideration of

 3   factual context, declare that the giving or spending of political money constitutes

 4   protected political speech. For example, Professor Deborah Hellman has stressed the

 5   importance of avoiding easy assumptions about whether contributing money to a

 6   candidate or campaign constitutes protected expressive conduct simply because the

 7   money might facilitate a political expression at some other place or time:

 8          "While money surely facilitates speech, the facilitative function of money is
 9          not sufficient to show that restrictions on giving and spending money
10          constitute restrictions on speech. Instead, I argue that while the fact that
11          money helps people to speak is relevant to the issue of whether restrictions
12          on giving and spending money restrict speech, the question is complex and
13          involves consideration of other important factors. Money facilitates the
14          exercise of many other rights as well. Sometimes spending money in
15          connection with a right is treated as a part of the right, and sometimes it is
16          not. When we note this fact, we see that a more comprehensive account is
17          necessary to determine when the right to spend or give money should be
18          treated as part of a First Amendment right. Spending money surely
19          facilitates speech -- about that the Buckley[3] Court is right. But to move
20          from the obviously true claim that money facilitates speech to the
21          controversial claim that restrictions on spending money are restrictions on
22          speech requires much more."

23   Deborah Hellman, Money Talks but It Isn't Speech, 95 Minn L Rev 953, 974 (2011). In

24   my view, this court should be particularly sensitive to the need to reassess its past

25   statements concerning the impact of the constitution on the giving and spending of

26   political money because the exact scope of the legislature's authority in that area turns on


            3
                   Buckley v. Valeo, 424 US 1, 16, 96 S Ct 612, 46 L Ed 3d 659 (1976).




                                               9
 1   the answer.

 2                 This court has expressed its willingness to reconsider prior interpretations

 3   of the state constitution or statutes under the correct circumstances. Stranahan v. Fred

 4   Meyer, Inc., 331 Or 38, 54, 11 P3d 228 (2000), states:

 5                 "Consistent with the foregoing, we remain willing to reconsider a
 6          previous ruling under the Oregon Constitution whenever a party presents to
 7          us a principled argument suggesting that, in an earlier decision, this court
 8          wrongly considered or wrongly decided the issue in question. We will give
 9          particular attention to arguments that either present new information as to
10          the meaning of the constitutional provision at issue or that demonstrate
11          some failure on the part of this court at the time of the earlier decision to
12          follow its usual paradigm for considering and construing the meaning of the
13          provision in question."

14                 This court further articulated the criteria that it will follow in deciding

15   whether to alter or abandon a prior constitutional ruling in State v. Ciancanelli, 339 Or

16   282, 291, 121 P3d 613 (2005). Those criteria include whether the rule was not

17   formulated by means of the appropriate paradigm or some suitable substitute, and

18   whether the application of the correct paradigm would confirm that the challenged

19   constitutional rule was incorrect. Id. The court also inquires whether, due to the passage

20   of time and the precedential use of the rule, overturning the challenged rule would unduly

21   cloud or complicate the law. Id.; see also State ex rel Huddleston v. Sawyer, 324 Or 597,

22   640-41, 932 P2d 1145 (1997) (Durham, J., concurring in part and dissenting in part)

23   (discussing application of rule of stare decisis) (citing Safeway Stores v. State Bd. of

24   Agriculture, 198 Or 43, 255 P2d 564 (1953)).

25                 The Hazell plaintiffs question the correctness of Vannatta I, but their effort

26   here falls short of what is necessary under the cases just discussed to overcome the usual

                                               10
 1   effect of stare decisis. If future litigation presents that question to this court, this court

 2   will consider that issue only if the plaintiffs preserve their arguments in the lower courts

 3   and present their challenge in the manner prescribed by this court's precedents.

 4                  The majority declines to address even the brief challenge that the Hazell

 5   plaintiffs present here, relying on the assertion that those plaintiffs, due to the generality

 6   of their requested relief, have failed to identify an actual and substantial controversy

 7   between the parties. Setting aside the inadequacies of the Hazell plaintiffs' challenge to

 8   Vannatta I, or their attempt merely to distinguish that case from the circumstances posed

 9   here, the majority's answer is not correct.

10                  The majority agrees that the Hazell plaintiffs have standing to assert their

11   claims. Or at ___ (slip op at 12). The Hazell plaintiffs' contend in their complaint that

12   the action of the Secretary of State has harmed them irreparably because they are now

13   deprived of important information on the sources and amounts of money contributed to

14   and used by candidates for public office and their campaigns. They point to the text of

15   Measure 47, which would create reporting obligations for candidates, political

16   committees, political parties, and individuals, and compel the Secretary of State to

17   receive and publish to the public all reports of campaign contributions and expenditures

18   in an accessible, computer-based format.

19                  We are obligated, in construing the complaint, to accord the Hazell

20   plaintiffs the benefit of every favorable inference that is available from their allegations.

21   Applying that rule, it is a simple step to recognize that the Hazell plaintiffs seek the

22   specific disclosure of political campaign information concerning contributions and

                                                11
 1   expenditures to remedy what they assert is their irreparable injury. The Secretary of State

 2   was able to evade her specific obligation under Measure 47, section (8)(c) to supply that

 3   information to the Hazell plaintiffs by declaring Measure 47 dormant and inoperative.

 4                 This court recently summarized the considerations that it addresses in

 5   deciding whether a controversy is justiciable:

 6                  "'Justiciability is a vague standard but entails several definite
 7          considerations. A controversy is justiciable, as opposed to abstract, where
 8          there is an actual and substantial controversy between parties having
 9          adverse legal interests. The controversy must involve present facts as
10          opposed to a dispute which is based on future events of a hypothetical
11          issue. A justiciable controversy results in specific relief through a binding
12          decree as opposed to an advisory opinion which is binding on no one. The
13          court cannot exercise jurisdiction over a nonjusticiable controversy because
14          in the absence of constitutional authority, the court cannot render advisory
15          opinions.'"

16   Pendleton School Dist. v. State of Oregon, 345 Or 596, 604, 200 P3d 133 (2009) (quoting
17   Brown v. Oregon State Bar, 293 Or 446, 449, 648 P2d 1289 (1982)) (citations omitted in
18   original).

19                 Applying the criteria described in Pendleton School Dist. and Brown, it is

20   clear that the Hazell plaintiffs have alleged a justiciable controversy. The Hazell

21   plaintiffs assert, among other things, that defendants, the Secretary of State and the

22   Attorney General, erred in declaring that Measure 47 was not in effect. They also allege

23   that, due to defendants' conduct, they are now irreparably injured by their inability to

24   receive the campaign reports and information that Measure 47 obligates defendants to

25   receive and publish. If the court were to declare Measure 47 legally effective, the Hazell

26   plaintiffs would receive immediate relief from their claimed irreparable injury in that

27   Measure 47 would obligate the Secretary of State to provide the campaign information



                                              12
 1   that the Hazell plaintiffs seek. Thus, a declaration of law in the Hazell plaintiffs' favor

 2   would resolve a dispute concerning present, not hypothetical, facts, and would result in

 3   specific relief that would bind the Hazell plaintiffs and defendants. A declaration of law

 4   in the Hazell plaintiffs' favor would not produce a mere advisory opinion that would bind

 5   no one.

 6                 I conclude, contrary to the majority, that the Hazell plaintiffs have pleaded

 7   a justiciable controversy that should result in a declaration of law about whether Measure

 8   47 is legally effective. The court should decide the question of whether and to what

 9   extent the people, exercising their power of initiative, may place regulatory limits on

10   campaign contributions and expenditures. Because this court authored Vannatta I, only

11   this court can decide whether that decision misinterpreted the effect of Article I, section

12   8, on legislative authority to enact campaign finance regulations and, thus, whether the

13   limitations in Measure 47 on campaign contributions and expenditures are consistent with

14   the Oregon Constitution.

15                 For the reasons expressed above, I concur in the dismissal of the complaint

16   of the Horton plaintiffs. I dissent from the majority's dismissal of the complaint of the

17   Hazell plaintiffs due to an asserted lack of a justiciable controversy between the parties.

18




                                               13
