804
Argued and submitted October 28, 2020, appeal dismissed as moot
August 11, 2021
Robin BLOOMGARDEN,
Laura Ohanian, and Michele De La Cruz,
Plaintiffs-Appellants,
v.
Cheryl BETSCHART,
in her official capacity as Lane County Clerk,
Defendant-Respondent,
and
Stanton F. LONG,
Intervenor-Respondent.
Lane County Circuit Court
18CV34149; A170243
498 P3d 338
Suzanne B. Chanti, Judge.
Daniel W. Meek argued the cause and filed the briefs for
appellants.
William F. Gary argued the cause for respondents. Also
on the joint brief were Sharon A. Rudnick, J. Aaron Landau,
Harrang Long Gary Rudnick P.C., and Stephen E. Dingle.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
PER CURIAM
Appeal dismissed as moot.
Cite as
313 Or App 804 (2021) 805
PER CURIAM
Plaintiffs appeal from a judgment that dismissed
their appeal of a decision by defendant Betschart, the Lane
County Clerk, to reject for inclusion on the ballot plaintiffs’
initiative petition to amend the Lane County Charter. The
clerk rejected the initiative because it did not comply with
ORS 203.725(2), the statutory “separate-vote” requirement.
The appeal raises issues that are nearly identical to those
raised in a case we recently decided, Bowers v. Betschart,
313 Or App 294,
496 P3d 1034 (2021). For that reason, a
complete recitation of the facts or law would not benefit the
bench, bar, or public. As in Bowers, we conclude that the
appeal is moot.
Id. at 296. Further, having considered the
bases for deciding whether to exercise our discretion to consider any of the moot issues under ORS 14.175, we choose
not to exercise that discretion. We briefly explain that decision below and dismiss the appeal as moot.
In 2015, a group of individuals proposed several
initiatives to amend the Lane County Charter, including the one at issue in Bowers, the Lane County Freedom
from Aerial Spraying of Herbicides Bill of Rights (Aerial
Spraying Initiative), and the one at issue here, the Lane
County Community Self-Government Charter Amendment
(Self-Government Initiative). The Lane County Clerk certified the proposed measures for circulation and signature gathering. Intervenor Stanton Long then challenged
the clerk’s certification of the measures in Lane County
Circuit Court, contending, among other things, that the
clerk was required to apply the requirements of ORS
203.725(2), the separate-vote requirement, before certifying the measures for election. The court concluded that,
as a general matter, ORS 203.725(2) applied to county
charter amendments proposed by initiative, but that
intervenor’s challenge to any particular initiative was not
ripe for consideration until the requisite supporting signatures were gathered and verified and the amendment
was ready for submission to the voters. We refer to that
trial court decision as Long. We affirmed Long without
opinion. Long v. Betschart, 295 Or App 451,
432 P3d 1205
(2018).
806 Bloomgarden v. Betschart
After gathering the requisite number of valid, supporting signatures, the proponents submitted the proposed
amendments to the Lane County Charter to the Lane County
Clerk to be placed on the ballot. The clerk, concluding that
the proposed measures did not comply with the separate-vote requirement, refused to put them on the ballot. Lynn
Bowers and the proponents of the Aerial Spraying Initiative
then filed litigation against defendant Lane County Clerk
relating to that initiative. The Lane County Circuit Court
concluded that the issue was now ripe for consideration and
that the Aerial Spraying Initiative violated the separate-vote requirement. Bowers and the plaintiffs in that case
appealed to our court.
Plaintiffs here, namely Robin Bloomgarden and the
proponents of the Self-Government Initiative, filed this litigation after defendant also refused to put that initiative
on the ballot. The Lane County Circuit Court concluded
that Long precluded plaintiffs from relitigating whether the
separate-vote requirement in ORS 203.725(2) applied as a
general matter to county charter initiative amendments. The
court then concluded that the particular initiative before it,
the Self-Government Initiative, violated the separate-vote
requirement and that defendant was not required to place it
on the ballot. It is that decision that is on appeal here.
Following the Bowers appeal and the present appeal,
intervenor in both cases notified us that the time for submitting both county charter amendment initiatives to the
voters for consideration on the ballot had passed. Intervenor
contended that the cases were moot and an opinion in either
case would have no practical effect. As noted above, we concluded in Bowers that that appeal was moot. 313 Or App at
298. We now follow Bowers and conclude, without further
discussion, that the instant case is also moot.
As in Bowers, that leaves the issue of whether we
should exercise our discretion under ORS 14.175 to reach
any issues in this otherwise moot case. Id. at 301-02 (exercising discretion to review some, but not all issues on appeal
in moot case); see also Eastern Oregon Mining Assoc. v. DEQ,
285 Or App 821, 829-32,
398 P3d 449 (2017), aff’d,
365 Or
313,
445 P3d 251 (2019) (identifying considerations bearing
Cite as
313 Or App 804 (2021) 807
on whether to exercise discretion over moot cases and exercising discretion to address one of four assignments of error).
For the reasons that follow and in light of the guidance that
we already provided in Bowers, we decline to exercise our
discretion to reach any moot issues.
Plaintiffs raise six assignments of error. Most of
those assignments incorrectly challenge legal conclusions
rather than rulings of the trial court, but it is ultimately
clear from the briefing that they all contend, in essence,
that the trial court erred in granting summary judgment
to defendant and intervenor after the court concluded
that the proposed Self-Government Initiative violates the
separate-vote requirement in ORS 203.725(2). We turn to
each assignment.
In their second assignment of error, plaintiffs contend that the trial court erred in concluding that Long precluded plaintiffs from relitigating the issue whether ORS
203.725(2) permitted the county clerk to review the proposed
initiative amendment for compliance with the separate-vote requirement. Prudential considerations weigh against
our exercising our discretion to review that purely procedural question of issue preclusion. Eastern Oregon Mining
Assoc., 285 Or App at 830-32 (listing nonexclusive prudential considerations relevant to decision whether to exercise
discretion to review issues in moot case). Further, even if
the trial court erred in applying issue preclusion and we
were to reach the merits of the underlying issues, we have
already concluded in Bowers that the Lane County Clerk
“correctly reviewed the proposed amendment of the Lane
County Charter [the Aerial Spraying Initiative] for compliance with the separate-vote requirement.”
313 Or App at
316. It is difficult to see, in light of that conclusion, how any
error in applying issue preclusion principles in the instant
case would result in any harm if we ultimately were to reach
the merits and apply Bowers to the facts here. For those reasons, we decline to address plaintiffs’ second assignment of
error.
In plaintiffs’ first, third, fourth, and fifth assignments of error, plaintiffs raise issues on the merits that
were addressed in Bowers. They primarily contend that the
808 Bloomgarden v. Betschart
trial court erred in concluding that the clerk had authority
under ORS 203.725(2) to conduct a pre-election review of the
proposed initiative amendment to determine if it complied
with the separate-vote requirement. As noted, we rejected
that contention in Bowers. 313 Or App at 316. Alternatively,
plaintiffs contend in other assignments that such review by
the clerk violates various state and federal constitutional
provisions. These arguments are largely, if not entirely, the
same arguments presented and rejected in Bowers. Having
resolved those issues in Bowers, we see no need to exercise
our discretion under ORS 14.175 to again address them here
as they have now not evaded our review.
Finally, plaintiffs contend in their sixth assignment
of error that, assuming that a proposed county charter initiative is subject to pre-election review for a separate-vote
requirement, the trial court erred in concluding that the
Self-Government Initiative violated ORS 203.725(2). As in
Bowers, we decline to address that issue because “we conclude that the fact-bound question of whether the particular
initiative at issue here meets the separate-vote requirement
of ORS 203.725(2) does not merit an exercise of our discretion to address moot issues.” 313 Or App at 302.
In sum, we conclude that the appeal is moot and we
do not exercise our discretion to address any of the assignments of error or issues that plaintiffs raise.
Appeal dismissed as moot.
