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.