Is the Special Session Constitutional?

The Oregon Legislative Assembly is planning to convene a special session on February 4, 2008 for purposes of “testing” annual legislative sessions. Yet it is far from clear whether the Legislative Assembly has constitutional authority to convene a special session for this purpose.

Article IV, Section 10 of the Oregon Constitution specifically provides “The sessions of the Legislative Assembly shall be held biennially”¦” This language empowers the legislature to meet every other year, as opposed to annually. It would therefore seem that a constitutional amendment would be necessary in order for the Legislature to meet on an annual basis.

The Legislative Assembly, however, has taken the position that it may test annual sessions without submitting a constitutional amendment to voters. The Legislative Assembly believes it may do so by convening a special session on February 4, 2008, pursuant to Article IV, Section 10(a) of the Oregon Constitution. While it is true that Article IV, Section 10(a) grants the Legislative Assembly authority to convene a special session, Article IV, Section 10(a) conditions the Legislative Assembly’s authority to convene a special session upon the existence of “an emergency.”

The legal question presented is therefore quite simple. Is the Legislative Assembly’s desire to test annual sessions “an emergency?” If it is, the Legislative Assembly indeed has authority to convene a special session in February of 2008 for purposes of testing annual sessions. If, however, the Legislative Assembly’s desire to “test” annual sessions is not “an emergency,” the planned special session is unconstitutional.

Little argument is necessary to explain why the Legislative Assembly’s desire to “test” annual sessions is not an “emergency” within any established definition of the term. The Legislative Assembly’s position, however, is that it does not matter whether its desire to test annual sessions is a “true” emergency because an emergency in this context is whatever the Legislative Assembly says that it is. The Legislative Assembly’s position is based upon cases from the Oregon Supreme Court holding that the Court will not second guess the Legislative Assembly’s decision as to what constitutes an emergency when the Legislative Assembly attaches an emergency clause to legislation.

When it comes to emergency clauses, it is probably correct to conclude that an “emergency” is whatever Legislative Assembly says that it is. However, no Court has ever considered whether this is also true when it comes to the Legislative Assembly’s authority to declare an emergency and convene a special session pursuant to Article IV, Section 10(a).

On this question of first impression, there is reason to believe the Court would be inclined to reach a different conclusion than it has in the context of what constitutes an emergency for purposes of attaching an emergency clause to legislation. For if an emergency for purposes if Article IV, Section 10(a) is whatever the Legislative Assembly says that it is, there is no limit upon the Legislative Assembly’s power to convene a special session. This would mean the Legislative Assembly would be free to convene a special session in every even numbered year and move to annual sessions on a permanent basis despite the explicit language in Article IV, Section 10 stating “The Sessions of the Legislative Assembly shall be held biennially”¦” This would render Article IV, Section 10 completely meaningless – and it is a fundamental tenet of constitutional construction that Court’s will reject constitutional interpretations that would render provisions of the Constitution meaningless.

At this time, no one can say with certainty how the Oregon Supreme Court would come down on the question of whether the Legislative Assembly has constitutional authority to test annual sessions by convening a special session in February of 2008. Yet what Oregonians must understand is that if the Legislative Assembly has authority to convene a special session in February of 2008 for purposes of “testing” annual legislative sessions, the Legislative Assembly also has authority to move to annual sessions on a permanent basis without consulting voters. For if the Legislative Assembly has authority under Article IV, Section 10(a) to declare an emergency and convene a special session in February of 2008, when no emergency exists in fact; the Legislative Assembly may utilize this exact same procedure in 2010, 2012, 2014, 2016, and every even number year thereafter.

Should Oregon voters or the Legislative Assembly itself decide how frequently the Legislative Assembly should meet? Anyone who believes the people themselves should decide how often their elected representative should meet should be very concerned about the Legislative Assembly’s plans to “test” annual sessions in February.

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Posted by at 06:32 | Posted in Measure 37 | 14 Comments |Email This Post Email This Post |Print This Post Print This Post
  • Bill Sizemore

    The legislature called this fake emergency special session as one their first acts of the regular session and did so thirteen months ahead of the emergency session they were calling. If there was an emergency, they had six months of regular session to deal with it.

    Also, the legisalture stated right in their bill that they were calling ofr this second session to test annual sessions, so there is no real question as to their motive for calling it. They have already confessed their “crime”.

    I believe the court will agree with the legal analysis above, but what is to stop the governor, who is complicit in this flaunting of the Constitution, from calling for an emergency special session when the court disallows the one they have already called.

    Republicans ought to stand their ground and refuse to come in for an unconstitutional session. They could take the moral high ground by being faithful to their oath to uphold the Oregon Constitution, which calls for biennial sessions of the legislature.

    Democrats cannot hold a session without a quorum and they cannot have a quorum without some Republicans showing up.

    Democrats and the unions have a specific agenda for this special session. There is more going on here than meets the eye. Republicans ought to refuse to come in for any special session without knowing the nature of the emergency they are dealing with and without a written agreement that only those matters will be addressed in the session.

    Absent that, Republicans are going to have their heads handed to them in February worse than they did in the regular session. You can take that to the bank.

    • CRAWDUDE

      No politician will try to stop this session because they are only doing it to get paid, that’s why they came up with the annual idea. They found out how lucrative their emergency session was a few years ago and decided they liked the extra cheese.

      After they start the annual session you’ll see them give themselves a huge raise using the excuse that they need it since they have annual sessions now………….it’s the normal Oregon govenmental oxymoronic ploy, unfortunately the voters always seem to fall for it.

  • NME

    Raising taxes and taking away our rights is always an emergency affair for legislators, and a state of crisis for us citizens at the losing end.

  • Jerry

    These fools are out of control. Any of them who show up at this fake session should not be re-elected. Period.
    Any of them.
    The hapless dandies.

  • Anonymous

    If the republicans don’t stand up and refuse to go, then they will be just saying they are no better than the democrats. If the democrats are smart they won’t march in lockstep either. They are a pretty bad lot for the most part.

  • devietro

    The way I understand it they made it constitutional by declaring the fake emergency. Unless there is a clause saying that the emergency must actually exist I think they might have pulled a fast one on us.

    Maybe Sizemore can write a petition to add common sense to the constitution.

  • Darrell Fuller

    Let’s separate the issues for a moment.

    *Issue #1: Is it an “emergency”?*
    The original post is well written (likely a lawyer based on the lexicon) and makes valid points, but the Legislative leadership is likely correct in assuming the Courts won’t second guess another branch on what qualifies as an emergency. Remember, the Legislative branch still determines the budget for the Judicial branch. And, I haven’t heard of anyone taking steps to take the issue to court. Is anyone?

    *Issue #2: Should we have annual sessions.*
    I’m torn. I have always preferred sessions every other year based on the reality that the longer they are in Salem, the more problems they can cause. On the other hand, I did my senior paper at Willamette University (back in ’88) on the need for the Legislature to move from part-time to full-time based on the premise that the other two branches (Executive and Judicial) are full-time and the branch tasked with representing “the people” and local communities could not effectively compete (watch-dogging bureaucracies and executive over-reaching) when they are only part-time.

    I still think that argument has at least some philosophical merit, recognizing it departs from the utopist vision of our state and national founding fathers.

    Would we really be in worse shape if our Republican friends in Salem had at least one full-time staffer in the Capitol and one full-time staffer in their district? If they had full- time staff, could an elected official continue to be “part-time” because they would have someone to open the mail and respond to concerns? Is it really reprehensible to suggest that “my guy” in Salem (Thatcher, in my case) be paid a full-time salary to be a full-time watchdog of my tax dollars? Do any of you advocate eliminating the staff of the Legislative leadership offices?

    Of course the obverse is that all the tax-spenders will also get full-time staff to think of more taxes, more laws and more government.

    And, we could move from a part-time Legislature to a full-time Legislature and still meet in full session only every other year. The issues are closely linked, but not inseparable. But you won’t get better representation at the local level and better taxpayer defense at the Capitol by providing our Representatives will less money and less time to do their jobs.

    *Issue 3: From CRAWDUDE “No politician will try to stop this session because they are only doing it to get paid, that’s why they came up with the annual idea.*
    “ONLY doing it to get paid?” Sorry, but no, no and no. I have been involved in the process for twenty years now and the notion that those elected to state office in Oregon (including the Governor and the other state-wide offices) do it for the money or are angling for more money is just plain wrong. Do most want to make more money? Sure. Don’t you? Do they EARN more than they make. For most, yes. If you take the amount a legislator gets paid versus the time they spend (both at the Capitol and in their communities), their hourly wage is embarrassing at best. But they don’t do it for the money.

    (A caveat: I won’t use the term “all” in my defense as CRAWDUDE did in his/her accusation. There are bad apples in every barrel. Could some office-holders be on the take or be advocating annual session to get more pay? Yes. But the exceptions prove the rule. The exceptions are rare, regardless of party affiliation.)

    Legislators often leave public service because they can longer continue to make the financial sacrifice of serving. I know one legislator who is considering running for a state-wide office. One of his/her (sorry, no hints) chief concerns: The pay cut required if he/she left the Legislature and his/her other full-time career in order to be a state-wide office holder if elected.

    I have seen it in print (Or was it on a blog?) that Max Williams (whether you like him or not) might consider running for AG, but it would be a huge pay cut for him to go from the appointed head of Corrections to the state-wide elected position of Attorney General. While I don’t want people running for office simply because it represents a way to increase income, I’m not sure I like people having to take huge cuts in remuneration to serve the public.

    I’m all for healthy debates on whether or not to meet annually and whether or not the Legislature should be full-time or part-time. While hyperbole does have a place in interesting discourse, invective does not advance a serious discussion or anyone’s well-reasoned point of view.

    • DMF

      Referring to your second to last paragraph. I agree, they shouldn’t run for office just to increase income. It does appear to me though, they run for office to get their pet projects through.

      It hasn’t appeared to me for the last several years, that they cared a fig about what I thought as long as they got the things they wanted. Sorry, I don’t feel represented by them. Until they get back to representing ALL taxpayers, not just the ones that agree with them, I don’t want them to have any more time to do their thing.

      Please understand, I’m referring to THEM as a group, not as individuals.

      I honestly believe we would be better off if they all just went home. As individuals, we should be able to take care of ourselves better than they can and if we don’t want to take care of ourselves, they can’t help us anyway.

      The number of new laws they pump out for the dumbest reasons sickens me. I’m very law abiding, I even try to honor the stupid ones, but I’m so burned out watching them jump around to see who can make the most laws and who can raise the most taxes.

    • CRAWDUDE

      Darrel, I disagree with almost every point / counter point you made but that is the beauty of a free society. Unlike you, I feel that even though our legislators might originally seek election for good and true reasons the system quickly corrupts them.

      It is my opinion that all legislators are corrupt and subserviant to their special interest handlers, this has been proven time and time again. I believe the argument you made on the pay above is probably what they will use to further gouge the voters if an annual session is developed, I don’t agree with your statement but others might.

      Frankly speaking, this state can’t afford the decisions they make as a part time group……………there is absolutely no way it could possibly afford a full time legislature.

  • Darrell Fuller

    DMF: Pet projects? Like reducing capital gains? Like eliminating the death tax? Those kind of pet projects? This Legislature, controlled by Democrats, passed a dramatic increase in the threshold before death taxes apply for farming and forestry families. I guess you take the bad with the good as long as the good list is longer (and I’d agree it sometimes is not).

    Yes, I know there are pet projects. But there are constituents behind every one of them. People like you who meet with their lawmakers, complain about a law (or the lack of one) make a compelling argument and are eventually able to convince a majority of the House, a majority of the Senate and the Governor.

    Don’t get me started on the earmark system in DC. Now that’s sad, corrupt and immoral. When Republicans took control of Congress with the Contract with America, they had a great opportunity to clean up the system. Instead, they simply learned how to use the system as well as the Democrats had before them. Very disappointing.

    I have for years been an advocate of the “do nothing” Legislature. I have advised candidates to run on it as a platform (none have embraced it, yet).

    I have also advocated for process rules which would require the Legislature to remove one word in statute for every word they add so the volume of laws don’t keep getting bigger and bigger. The increase in the volume of new words added to our statutes each two years is startling. So, we’re of like mind there. But remember eliminating a useless law requires introducing and passing a bill in the Legislature.

    CRAWDUDE: I acknowledge your very jaded worldview, but it is not the world in which I live. I simply know too many Legislators (Republican and Democrat) who don’t fit within your simplistic cookie cutter. But then, again, I’m one of those evil “special interest handlers” representing small business owners across the state of Oregon.

    If only we could get rid of NFIB, Right to Life, OIA, FreedomWorks, etc. Oh, what a better world it would be without “special interest handlers”, right?

    I will always prefer a system which permits too many advocates over a system which muzzles or prohibits them in the name of good government.

    • CRAWDUDE

      Once again, I have to disagree with you, the mere fact that you feel a personal attack is the only way to make your point, makes mine.

      Yes, you are an “special interest handler” as you admit. You are as much a problem with our government as the corrupt politicians you ply with campaign donations and promises of campaign donations……………..as long as they vote the way your employers want them to of course (but that’s the only catch, lol).

      I’m curious how much money this small business association you represent “Donated ” to politicians in this state this year.

      Since most lawyers moral compasses are so screwed that they can’t tell right from wrong anymore; I can see why so many influence peddlars can’t see that paying a politician for their vote is wrong.

      Advocates are fine as long as they don’t donate, promise to donate or supply gifts to politicians for their votes.As for the special interest groups you listed, if they pay politicians to vote for their issues than they are as much of a problem as the rest.

  • Darrell Fuller

    Just a quick note of apology for getting this thread off the main subject: the Constitutionality of an “emergency” special session. Now back to your regularly scheduled program…

  • Darrell Fuller

    CRAWDUDE: You have my apology for anything I said which you perceived as a “personal attack.” I’m not sure to which part you are referring. Do you disagree with my assertion that your view of the Legislative process is jaded? Was that the attack? Do you disagree?

    Or are you referring to my suggestion that your view of the people in the Legislative process is simplistic? That was not an attack on you as a person. I truly believe that anyone who paints a class of people with a broad brush is advocating a simplistic view of the world. Is attacking whole groups of people more noble than questioning the stated positions of a blogger? Me thinks thoust doest protest too much.

    “all legislators are corrupt”;
    “most lawyers moral compasses are so screwed that they can’t tell right from wrong anymore” (most being “substantially more than half”); and
    “influence peddlars can’t see that paying a politician for their vote is wrong”

    With regard to the small businesses I represent, we spent about $15,000 during the last two-year election cycle, spread around 75 Legislative races. At my previous employer, however, I built their $80,000 PAC to nearly $400,000 in ten years. My efforts are part of the reason Republicans held the majority for more than a decade and I’m proud of what I was able to accomplish. I am looking forward to doing something similar at my new post.

    I just don’t get the notion that people who believe in property rights shouldn’t be able to pool their money (through OIA) to support candidates who support property rights. That isn’t buying votes. That’s supporting candidates who reflect the values of the community from whence they come. Pro-lifers can’t help elect pro-life candidates? Who CAN contribute to candidates in your world? Campaigns with no donations at all? Only rich candidates who can self-fund? Government funding?

    I truly do not mean to attack you personally (and can’t since I have no idea who you are). My apology is earnest. But I stand behind everything I write by signing my real name, not hiding behind a blog-de-plume.

    You have attacked my profession. You have attacked my wife’s moral compass (she has a law degree). You have said many of my good friends are de facto corrupt because they ran for public office.

    Will you be apologizing to us?

  • Jerry

    Darrell – you have to understand the pent up anger out here with these foolish politicians. And believe me, they are foolish. The garbage bills that came out of Salem this year make me sick. You have to cut Craw a little slack, as we don’t feel most policians are honest. So, not excusing any personal attacks, but hey, get real. When these supposed elected “officials” do so many stupid things, over and over and over, we get upset and turned off by the lot of them. Sorry, but that is the way it works.
    And I do think some of them do it for the money…I know they are not paid much, but there has been rampant abuse of campaign money, money for staff, gift taking, bribes, etc. etc. for you to so casually dismiss the notion that some of these legislators are doing this for the money. They are. What other reason could there possible be for the abject failure of the politicos in Salem in representing most Oregonians??
    I stongly suspect if anyone dared an opinion poll the Oregon legistalture would not do any better than our national legislature has in recent polls. Low teens tops. How proud can anyone be of that?

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