Rep. Bill Kennemer working to reign in abuse of emergency clause

Rep Bill Kennemer

46% of bills used “emergency clause”, bypass the referendum process

Rep. Bill Kennemer

SALEM – Representative Bill Kennemer (R-Canby/Oregon City) has introduced House Joint Resolution 33, an amendment to the Oregon Constitution that would require legislation declaring an emergency to contain a statement explaining what emergency is being addressed.

“Oregonians expect and deserve transparency from the legislative process,” said Rep. Kennemer. “This proposal would ensure that any legislation declaring an emergency specifically states why that declaration is necessary, ultimately ensuring greater accountability from our elected officials.”

Under Oregon’s constitution, citizens have the right to refer any law passed by the Legislature to a public vote before the law takes effect. However, Oregon’s constitution also includes an “emergency clause” provision, which allows lawmakers to enact legislation that becomes effective immediately upon passage when an urgent problem is being addressed.

Unfortunately, the emergency clause has increasingly been attached to legislation that does not seek to solve an immediate problem or used as a tool to bypass the referendum process. According to analysis by Legislative Counsel, more than 46% of the bills the Legislative Assembly has considered this session have included an emergency clause.

“The Oregon Legislature has passed a number of controversial bills this session, including the low-carbon fuel standard and background checks for private gun transfers, that have included emergency clauses,” said Rep. Kennemer. “Unfortunately, in doing so, the Legislature has restricted Oregonians’ constitutional right to refer the bills we pass and compromised a critical piece of Oregon’s democratic process. This amendment would help ensure that use of the emergency clause is reserved solely for legitimate purposes.”

HJR 33 would require any legislation declaring an emergency to provide a justification statement explaining the circumstances necessitating immediate enactment. A court would then be allowed to independently review the justification statement to determine its legitimacy. Should the court find the emergency clause unjustified, the court could order the emergency clause provision to be removed.

Should HJR 33 receive approval from both the House and Senate, the amendment would then be referred to Oregon voters for final approval.

UPDATE 5/21/2015: The Daily Astorian: Not everything is an emergency (State Sen. Betsy Johnson)

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Posted by at 06:19 | Posted in OR 78th Legislative Session, Oregon House, Transparency | 7 Comments |Email This Post Email This Post |Print This Post Print This Post
  • GObill sizemore

    I applaud the senator’s efforts in this area. I filed ballot measures to address this problem several years ago, around 2007, if memory serves. I also filed an original action lawsuit challenging the right of the legislature to declare an emergency when there clearly was none. The Oregon Supreme Court flatly refused to entertain a challenge to the Democrat controlled legislature’s blatant abuse of the process. The Court essentially said that legislators could declare an emergency for anything they wish, even when the obvious intent of attaching an emergency clause to legislation is to circumvent the constitutional right of the people to refer legislation to the ballot and vote on it. In my opinion, the Court’s stance is an unprincipled one that exalts political expediency over the Constitution, but that is the reality we are up against.
    I am somewhat doubtful that Senator Kennemer’s approach would solve the problem, even if by some miracle he could get the votes to pass it. It will be easy for legislators to come up with lofty sounding language that seems sincere in its intent and thereby get the Court to give them a pass on a phony declaration of emergency. At the very least an amendment attempting to address this issue should instruct the court to lean heavily in favor of allowing the people to refer the measure to the ballot unless there was a clear and imminent threat to the public health and safety.
    The amendment should also provide that the 90-day window the people have to collect sufficient signatures to force a referral not begin until the date the Court enters a judgment removing the emergency clause. Otherwise we would have the right to collect signatures but no time to actually accomplish that. The existing 90-day window is already a short one and Democrats routinely make it even more so by nefarious schemes such as having the governor stall until the 30th day after passage of the bill before signing it into law, thereby stealing a month of the signature gathering time.
    The final thing the amendment should provide is a clause preventing the legislature from creating its own ballot title for any referred legislation. Democrats have routinely fabricated ballot titles that are so biased as to ensure the outcome they wish. The Oregon Supreme Court has allowed this travesty to go on even though it is a blatant manipulation of the democratic process. Here is just one of several possible examples: Oregonians lost the hard fought gains we made in the area of private property rights under Measures 7 and 37 specifically because of the highly deceptive ballot title Democrats crafted for Measure 49, a bill that seriously diminished private property rights but was described in the ballot title as doing the opposite. Unless the ballot title issue is addressed, giving us the right to vote on something will be a hollow victory.
    The long and short of what I am saying is that Democrats are not above deceit and wholesale manipulation of even the most basic political rights guaranteed voters in the Oregon Constitution. Furthermore, the Oregon Supreme Court has not demonstrated any willingness to rein in the abuse, even when the majority party’s motivation is transparent to everyone and openly discussed in the state capitol. Therefore, any amendment attempting to address problems like the abuse of the emergency clause must contain strong language that the Court cannot easily ignore and the legislature cannot easily circumvent.

    • guess who

      The Oregon Supreme court is a legislative prisoner and beholden to them for their existence and pay which is not constitutional so to expect any thing more is futile. The emergency clause is as well unconstitutional and an illegal insertion denying all Citizens of a Republican form of government as guaranteed by both the state and federal governments.

    • guest

      Guiled Bill Kennemer is a RINO more in league with former BCC member Michael Jordan, twit a Kitzhaber anointed, albeit DNC follicle growing airier than ever…with a PERSnatching bunch of governors, legislative and judiciary controllers since 1988.
      Sorry, butts, Jim Nicita has more trustworthy credentials than the hoard of Oregon City dons in bed with michael moore horses-heads pocket doping Clackamas County and Oregon statewide. .

  • Jack Lord God

    Good idea, but I am not sure it goes far enough. I think abuse of the emergency clause should fall under stricter scrutiny. Example – If a ballot measure passes, and the court later finds “oh gee this kinda sorta addresses two issues at the same time” the measure is nullified, even if it passed with a wide margin.

    I see no reason the same shouldn’t attend here, especially since the offense is more egregious. If a court finds something was passed under an emergency where none existed, the entire law should be nullified just as if it were a ballot initiative.

    Obviously SB941, Universal Backgournd checks, has been the most egregious example of abuse of the emergency clause but it appears there have been quite a few more. This has to stop before it becomes the norm in passing legislation.

    • GObill sizemore

      Jack’s approach is both bold and sensible. It is difficult, however, to judge whether it would work. Jack (I refuse to write the rest of his online name) assumes that the same Court that throws out ballot measures just because it doesn’t like them, using the so called “Armattta test,” which is a multiple amendment determination, would toss any bill the legislature has passed when it could easily find some excuse to say that an emergency exists and leave the law in place.
      The problem with all fixes to the emergency clause issue is the shameless but institutionalized political bias of the Oregon Supreme Court. When you have a court, the majority of which is comprised of former Portland lawyers known to all as liberal Democrats, it is hard to imagine them not making a political decision.
      I am not comfortable stating that Oregon has a high court that simply cannot be trusted to make legal decisions based on the merits, but the growing list of clearly transparently political decisions the Court has made; the consistency with which it has tossed conservative, voter approved ballot measures on frivolous grounds; and the inconsistency we have seen in the application of legal principles to PERS decisions, leads us to no other reasonable conclusion.
      In the interest of full disclosure, my measures have at times been on the receiving end of ill-advised decisions by the Oregon Supreme Court and that has somewhat biased me against what should be our most trusted, nonpolitical institution. However, were I to list the ballot measures, both mine and those of others, that have been tossed by the Court and the frivolous reasons the Justices have put forward for doing so, a very clear pattern emerges – and that pattern makes me doubtful that any fix that relies on the Oregon Supreme Court to make a sound legal analysis of when an emergency really exists is probably an exercise in futility.

  • Joshua Myers

    So the emergency clause clearly states it can’t be attached to a bill that will create revenue for the state. So tell me How in the hell can these two bills have this clause attached to them? One is a tax! and the other has fines and fees attached to it?! That in itself should make these bills illegal and thrown out! How about you find a judge and start a suit on behave of Oregonians? Some of us don’t have the resources to do this. I’m sure no one will read this or even care. because if they did these two bills would have been stopped somehow.

  • Parfie

    I want this challenged, legally and right! I guess Oregon has become a dictatorship, we clearly have no say…Speaker cancels a Planned Parenthood conference then cancels it because…? LORD! It is each sides chance to speak, but apparently Ms Speaker doesn’t think this way.

    Heads UP! I will NOT be installing a mileage tracker in my vehicle. I pay a lot of taxes in Oregon, and since I live the eastern part of the state, we drive more. I will not be installing breathelyzers for Every Vehicle, that they have also passed a law about. I’m NOT complying with a dictatorship…PERIOD…

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