Filed: June 25, 1998

JUDITH D. ARMATTA; SHERIFF STAN
ROBSON; SIDNEY I. LEZAK; STEPHEN
KANTER; JEAN TATE; KATHLEEN
HAGBERG; and LINDA EYERMAN,

Appellants/Cross-

Respondents,

v.

JOHN KITZHABER, Governor of the
State of Oregon; PHIL KEISLING,
Secretary of State; and THE
STATE OF OREGON,

Respondents/Cross-

Appellants.

On certification from the Court of Appeals.*

Argued and submitted March 31, 1998.

Thomas M. Christ, ACLU Foundation of Oregon, Inc., Portland, argued the cause for appellants/cross-respondents. With him on the briefs were Carl R. Neil and Katherine A. McDowell, ACLU Foundation of Oregon, Inc., Portland.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for respondents/cross-appellants. On the briefs were Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Rives Kistler, Assistant Attorney General, Salem.

Before Carson, Chief Justice, and Gillette, Van Hoomissen, Durham, Kulongoski, and Leeson, Justices.**

CARSON, C.J.

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

Durham, J., concurred and filed an opinion.

*Appeal from Marion County Circuit Court, Pamela L. Abernethy, Judge.

**Graber, J., resigned March 31, 1998, and did not participate in this decision.

CARSON, C.J.

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

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

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

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

Plaintiffs appealed to the Court of Appeals, contending that the circuit court erred in concluding that section (2) was severable from the rest of Measure 40 and also erred in rejecting their other substantive challenges to the measure. The state cross-appealed, contending that the circuit court erred in concluding that section (2) revised the constitution. The state further contended that the court erroneously entered an injunction against defendant Kitzhaber and the State of Oregon, and that it erroneously awarded attorney fees to plaintiffs. Shortly thereafter, the state moved to stay or modify the circuit court's injunction concerning the enforcement of section (2) of Measure 40. The Court of Appeals stayed the injunction in August 1997, pending the outcome on appeal. Armatta v. Kitzhaber, 149 Or App 498, 943 P2d 634 (1997).

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

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

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

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

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

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

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

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

A. Application of the Separate-Vote Requirement to

Initiated Amendments

We first address the state's contention that the separate-vote requirement of Article XVII, section 1, applies only to amendments proposed by the legislature. In doing so, we must consider the specific wording of Article XVII, section 1, the historical circumstances that led to its creation, and the case law surrounding it. See Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992) (setting out construction methodology).(4)

Article XVII, section 1, provides, in part:

"Any amendment or amendments to this Constitution may be proposed in either branch of the legislative assembly, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or amendments shall * * * be * * * referred by the secretary of state to the people for their approval or rejection * * *. If a majority of the electors voting on any such amendment shall vote in favor thereof, it shall thereby become a part of this Constitution. The votes for and against such amendment, or amendments, severally, whether proposed by the legislative assembly or by initiative petition, shall be canvassed by the secretary of state in the presence of the governor, and if it shall appear to the governor that the majority of the votes cast at said election on said amendment, or amendments, severally, are cast in favor thereof, it shall be his duty forthwith * * * to declare the said amendment, or amendments, severally * * * to have been adopted by the people of Oregon as part of the Constitution thereof, and the same shall be in effect as a part of the Constitution from the date of such proclamation. When two or more amendments shall be submitted in the manner aforesaid to the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separately. * * * This article shall not be construed to impair the right of the people to amend this Constitution by vote upon an initiative petition therefor." (Emphasis added.)

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

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

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

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

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

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

The historical development of Article XVII, section 1, and Article IV, section 1, as relevant here, supports that conclusion. When the Oregon Constitution went into effect in 1859, Article XVII provided the only method for changing the constitution -- by legislative proposal. The original version of Article XVII included a separate-vote requirement that is worded similarly to the current version of that requirement now contained in Article XVII, section 1. See ___ Or at ___ (slip op at 20-21) (setting out text of 1859 version of Article XVII).

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

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

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

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

Turning to the applicable case law, we note that only one case, Baum v. Newbry et al., 200 Or 576, 267 P2d 220 (1954), has attempted to address whether the separate-vote requirement applies to amendments proposed by initiative petition. However, in Baum, the court assumed, without deciding, that the separate-vote requirement applied to initiated constitutional amendments. 200 Or at 581. Baum, therefore, is not helpful to our analysis here.

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

B. Interpretation of the Separate-Vote Requirement

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

The parties' respective positions require us to examine both the meaning of the separate-vote requirement of Article XVII, section 1, and the relationship, if any, between that requirement and the single-subject requirement of Article IV, section 1(2)(d). In doing so, we emphasize that, when interpreting the Oregon Constitution, we must assume "that every word, clause and sentence therein have been inserted for some useful purpose." School Dist. 1, Mult. Co. v. Bingham et al, 204 Or 601, 611, 283 P2d 670, modified on rehearing 284 P2d 779 (1955); see also State ex rel. Gladden v. Lonergan, 201 Or 163, 177, 269 P2d 491 (1954) ("An elementary rule of construction is that[,] if possible, effect should be given to every part and every word of a Constitution and that unless there is some clear reason to the contrary, no portion of the fundamental law should be treated as superfluous." (Internal quotation marks omitted.)). Thus, because we are concerned here with two requirements that are worded differently and are located in different parts of the Oregon Constitution, we must assume that they have different meanings and that neither requirement is superfluous. In conducting our inquiry into those meanings, we are guided by the construction methodologies set out in Priest, 314 Or at 415-16, and Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or 551, 559, 871 P2d 106 (1994). See ___ Or at ___ and n 4 (slip op at 8 and n 4) (setting out methodologies).

1. The specific wording, historical development,

and case law surrounding Article XVII, section 1

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

"When two or more amendments shall be submitted in the manner aforesaid to the voters of this state at the same election, they shall be so submitted that each amendment shall be voted on separately."

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

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

"Any amendment, or amendments to this Constitution may be proposed in either branch of the Legislative Assembly, and if the same shall be agreed to by a majority of all the members elected to each of the two Houses such proposed amendment, or amendments shall with the ayes, and nays thereon, be entered on their Journals, and referred to the Legislative Assembly to be chosen at the next general election; and if, in the Legislative Assembly so next chosen, such proposed amendment, or amendments, shall be agreed to, by a majority of all the members elected to each House, then it shall be the duty of the Legislative Assembly to submit such amendment, or amendments to the electors of the State, and cause the same to be published without delay, at least four consecutive weeks, in several newspapers published in this State, and if a majority of said electors shall ratify the same, such amendment, or amendments, shall become a part of this Constitution.

"If two or more amendments shall be submitted in such manner, that the electors shall vote for, or against each of such amendments separately; and while an amendment or amendments, which shall have been agreed upon by one Legislative Assembly, shall be awaiting the action of a Legislative Assembly, or of the electors, no additional amendment, or amendments shall be proposed." Or Const, Art XVII (1859) (emphasis added).

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

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

Although it is not as helpful as history or case law revealing the intent of the framers of the Oregon Constitution, information that demonstrates the intent of the framers of the Indiana Constitution of 1851 can be instructive when interpreting a provision of the Oregon Constitution patterned after the Indiana Constitution. See Hale v. Port of Portland, 308 Or 508, 516, 783 P2d 506 (1989) (so suggesting). The debates from the Indiana convention of 1850 thus may assist our analysis here, to some extent. We turn to an examination of those debates.

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

"[S]uppose such a provision had been contained in the present Constitution, the State would not have been under the necessity of expending some eighty thousand dollars in the calling of this Convention. There were but few of its provisions that required amendment, and those amendments could have been easily made by the Legislature with the approbation of the people, they having the opportunity to accept or reject the proposed amendments. * * * If there should be a change of popular sentiment in relation to the establishment of a State bank, or in relation to the negro question, or in relation to the rights of married women, and a change should be desired in any provision that we shall make in reference to any of those subjects, instead of calling a Convention * * *, the amendments could be made without burthening the people with any expense whatever." H. Fowler, 2 Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana, 1258-59 (1850) (hereafter "Debates and Proceedings") (statement of James G. Read) (emphasis added).

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

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

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

In 1902, a majority of the people voted to amend Article IV, section 1, of the Oregon Constitution, in response to a proposal by the Oregon Legislative Assembly, to reserve to the people the right to initiate laws and constitutional amendments. Or Const, Art IV, § 1 (1902). In 1906, the people amended Article XVII, pursuant to their initiative power, making changes to implement the new initiative process. The amended version is the same as the current version of Article XVII, section 1, described previously. Or Const, Art XVII, § 1 (1906). See also ___ Or at ___ (slip op at 14-15) (discussing the 1906 amendment). For our purposes here, it is significant that the 1906 amendment repeatedly inserted the phrase "amendment or amendments, severally," into Article XVII, section 1, in relation to amendments proposed by the legislature or by initiative petition. Thus, as discussed earlier, the text of the 1906 amendment emphasized that separate amendments must remain separate and distinct from one another. The voters' pamphlet for the 1906 election contained no statements reflecting either supporters' or opponents' understanding of the amendment to Article XVII, perhaps because the foregoing proposition did not appear to require explanation.

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

We turn to the applicable case law interpreting the separate-vote requirement of Article XVII, section 1, of the Oregon Constitution. The first case applying that requirement is State v. Osbourne, 153 Or 484, 57 P2d 1083 (1936), which involved a challenge to a legislatively proposed amendment that provided that 10 members of a circuit court jury could render a guilty or not-guilty verdict, except in first-degree murder cases. The Osbourne court concluded, without analysis, that the separate-vote requirement was not implicated "because only one amendment was submitted at the election." 153 Or at 486. It is not clear from Osbourne whether the court thought that two different amendments labeled as such must be submitted to implicate the separate-vote requirement, or whether the court merely concluded that the amendment at issue constituted only one amendment.(7)

Next, in State of Oregon v. Payne, 195 Or 624, 635, 244 P2d 1025 (1952), the court similarly held that a legislatively proposed amendment that reinstated the death penalty did not contravene the separate-vote requirement, "because only one amendment was submitted to the voters." Like Osbourne, the court's reasoning in Payne is not clear. However, the briefs submitted in Payne clarify the parties' understanding of the separate-vote requirement. The defendant had contended that the amendment at issue, although it was submitted as one amendment, actually contained two or three constitutional amendments that the voters must vote upon separately. Appellant's Brief, Oregon Briefs (unbound), No 0-72, 40-43 (1952). The state responded that the separate-vote requirement required only that a proposed amendment could not have different objects and purposes in view. Respondent's Brief, Oregon Briefs (unbound), No 0-72 at 39-40. Thus, both parties in Payne read the separate-vote requirement as imposing a substantive limitation upon the ability to propose constitutional amendments. The parties differed, however, concerning the scope of that requirement.

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

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

"[The separate-vote requirement] does not prohibit the people from adopting an amendment which would affect more than one article or section by implication. * * * At most it prohibits the submission of two amendments on two different subjects in such manner as to make it impossible for the voters to express their will as to each. The fact, if it be one, that the reapportionment amendment may have amended more than one section of the constitution, would be immaterial." Id. at 581 (emphasis added).

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

2. The specific wording, historical development, and

case law surrounding Article IV, section 1(2)(d)

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

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

"(1) The legislative power of the state, except for the initiative and referendum powers reserved to the people, is vested in a Legislative Assembly, consisting of a Senate and a House of Representatives.

"(2)(a) The people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution and enact or reject them at an election independently of the Legislative Assembly.

"* * * * *

"(c) An initiative amendment to the Constitution may be proposed only by a petition signed by a number of qualified voters equal to eight percent of the total number of votes cast for all candidates for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition.

"(d) 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.

"(e) An initiative petition shall be filed not less than four months before the election at which the proposed law or amendment to the Constitution is to be voted upon." (Emphasis added.)

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

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

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

"Every Act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title." (Emphasis added.)

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

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

As explained earlier, in 1902, the people adopted a legislatively proposed amendment to Article IV, section 1, of the Oregon Constitution, thereby reserving to themselves the right to initiate laws and constitutional amendments. Or Const, Art IV, § 1 (1902). The new provision did not define the word "amendment" and did not contain a single-subject requirement. The voters' pamphlet for the 1902 election did not contain any statements concerning the provision, and we have found no other sources from that time period that inform us of the voters' intent concerning the word "amendments" as it was used in the new provision. See LaGrande/Astoria v. PERB, 284 Or 173, 184 n 8, 586 P2d 765 (1978) (demonstrating that proponents' statements can be indicative of the meaning of the measure when those statements are circulated to the public at large).

In 1968, the voters approved a legislatively proposed amendment that repealed the extant version of Article IV, section 1, and adopted a new version in its place. The new version made changes to the initiative and referendum process, one of which was the imposition of a single-subject requirement upon proposed laws and amendments. Or Const, Art IV, § 1(2)(d) (1968); see also ___ Or at ___ (slip op at 30) (setting out text of Article IV, section 1(2)(d)). As noted earlier, it appears from its text and context that that single-subject requirement pertains only to initiated constitutional amendments, as well as to initiated laws, rather than to legislatively proposed amendments.

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

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

We now turn to the case law interpreting the single-subject requirement of Article IV, section 1(2)(d), which is well-settled for our purposes here. In OEA v. Phillips, 302 Or 87, 100, 727 P2d 602 (1986), for example, this court concluded that the single-subject requirement in Article IV, section 1(2)(d), is the same as the single-subject requirement for legislation contained in Article IV, section 20. The court noted that the central purpose of the single-subject requirement was to prevent the practice of inserting two or more unrelated provisions into a single bill -- commonly known as "log-rolling" -- so that legislators favoring one provision would be compelled to vote for the bill despite their opposition to the other provisions. If log-rolling were not prohibited, several provisions could become law that, standing alone, could not have succeeded on their own merits. Id. at 95.

More recently, in State ex rel Caleb v. Beesley, 326 Or 83, 89-91, 949 P2d 724 (1997), this court reviewed the case law interpreting both section 1(2)(d) and section 20 of Article IV. In that case, which involved legislation enacted by both the legislature and initiative petition, the court concluded:

"This court's one-subject decisions demonstrate that an enactment that embraces only one subject does not violate the one-subject provisions of Article IV merely by including a wide range of connected matters intended to accomplish the goal of that single subject." Id. at 91.

Rather, the court must examine the body of the measure to determine whether the proposed law or amendment contains "a unifying principle logically connecting all provisions in the act [or amendment], such that it can be said that the measure embraces one subject only." Ibid. (internal quotation marks and brackets omitted). See also McIntire v. Forbes, 322 Or 426, 443-44, 909 P2d 846 (1996) (setting out that approach under Article IV, section 20). The Caleb court concluded that, because the provisions of the enactment at issue facilitated a single goal and were pertinent and germane to one overall subject, the enactment did not violate Article IV, section 1(2)(d). 326 Or at 92-93.

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

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

3. Summary

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

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

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

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

4. Legal Principles

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

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

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

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

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

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

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

C. Application of Legal Principles to Measure 40

1. Analysis of Measure 40

As discussed earlier, by its terms, Measure 40 purports to amend Article I of the Oregon Constitution, by adding a new section to that article that contains procedural rights to which crime victims are entitled in the pretrial, trial, and post-trial phases of a criminal prosecution or juvenile delinquency proceeding, and by prescribing a construction methodology for sections 9 and 12.(8) Measure 40 does not otherwise expressly repeal or modify any existing constitutional provision. As explained below, however, the measure implicitly changes the existing Oregon Constitution in several respects.

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

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

Section (1)(h) of Measure 40 permits a guilty vote of 11 to 1 in aggravated murder and murder cases, "notwithstanding any other law or provision of [the Oregon] Constitution." Section (1)(h), therefore, changes the unanimous verdict requirement in murder cases, currently set out in Article I, section 11.(9) Further, section (1)(g) of Measure 40 grants crime victims the right to insist upon a jury trial. That section changes a defendant's ability to waive trial by jury under Article I, section 11, in that it specifies a circumstance -- a victim's desire for a jury trial -- in which a criminal defendant cannot waive a jury trial.(10)

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

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

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

The parties offer competing interpretations of section (2) of Measure 40, specifically the phrase that limits possible constructions of Article I, sections 9 and 12. Plaintiffs contend that that phrase effectively repeals Article I, sections 9 and 12, as they currently exist, together with judicial interpretations of those provisions, and replaces them with the Fourth and Fifth Amendments to the United States Constitution.(1