By Hans Linde
One hundred years ago, in December 1903, the Oregon Supreme Court published its most important constitutional opinion. Whether its centennial deserves celebration is a question yet to be decided.
Most Oregon lawyers may never have heard of Kadderly v. City of Portland, 44 Or. 118, 74 P. 710 (1903), reh’g den. 44 Or. 160, 75 P. 222 (1904), though law students learn about its sequel in the United States Supreme Court, Pacific States Telephone Co. v. Oregon, 223 U.S. 118 (1912). That is unfortunate, for Kadderly undertook what the Supreme Court later declined to do: it explained how to fit lawmaking by initiative and referendum into a republican form of government.
The tale began seven years earlier, when Oregon politics was split between orthodox Republicans, 'Silver Republicans' (opponents of 'hard money' and the gold standard), Democrats and various agrarian, labor and Progressive organizations, as well as Populists, led in Oregon by W.S. U’ren, whose platform called for a popular vote on all laws.1 So did William Jennings Bryan, the Democrats’ presidential candidate in 1896 and 1900. The notion of lawmaking without the state’s elected officials was not only controversial; it was widely attacked as departing from the republican form of government mandated by the U.S. Constitution.2 In 1897, however, a feud among Republican legislators over reelecting the incumbent Republican U.S. Senator allowed his opponents to prevent organization of Oregon’s House of Representatives altogether by preventing a quorum – the tactic repeated by Texas legislators in 2003. Two years later, growing momentum behind U’ren’s movement for direct lawmaking led legislators to support an amendment authorizing initiatives and referrals. The existing constitution required a second vote in the 1901 session before the voters could adopt the plan in the 1902 election.
The validity of the newly enacted system was a truly fundamental constitutional question – 'constitutive' of government, unlike mere applications of familiar clauses. How did it reach the Oregon Supreme Court within a year, before its procedures had ever been used?
Kadderly and others objected to an assessment for street improvements imposed by Portland under a new city charter that was enacted three weeks earlier by the 1903 legislature.
They claimed that the new constitutional amendment postponed the effective date of statutes until 90 days after the end of the session, in order to allow time for petitions to refer the statute to the voters.3 The city responded that the amendment itself excepted laws 'necessary for the immediate preservation of the public peace, health, or safety' from referrals, and that the legislation recited this finding.4 But more: Portland also attacked the newly adopted constitutional change as a departure from republican government. The circuit court (four judges sitting) dismissed their suit.
The Oregon Supreme Court then was composed of three justices. All three were Republicans, in those days elected as such over Democratic, Populist or Prohibition candidates. They had come of age during the early decades of Oregon’s statehood and observed the stresses that the scramble for economic development and profits placed on its once agrarian political culture.
The oldest, Frank A. Moore, born in Maine in 1844, had practiced in St. Helens since 1877 and served as county judge and as state senator before being elected to the supreme court in 1888. Charles E. Wolverton, born in Iowa in 1851, came to Clackamas County as a two-year old and practiced law in Albany, Oregon. Politically active, he was a delegate to the Republican National Convention in 1892, and two years later was elected to the Oregon Supreme Court. Robert S. Bean, born 1854 in Yamhill County, had attended Monmouth’s Christian College at the same time as Wolverton, and graduated in the first class of the University of Oregon School of Law, two years after he had been admitted to the Oregon Bar. He became a circuit judge in Lane County in 1883 and was elected to the supreme court in 1890. Two of them subsequently were appointed to the U.S. District Court by presidents with opposing views of direct democracy, Wolverton by Theodore Roosevelt, and Bean by William Howard Taft.
Whatever the justices’ factional allegiances, they knew what their state demanded. The 1901 legislature had submitted the amendment for direct legislation with only one dissenting vote; every political party except the Prohibitions favored it, and the voters had just adopted it 11-1, by 62,024 votes to 5668.5 Yet the issue of republicanism deserved a serious answer, and the justices apparently thought the sooner the better, passing over other available bases for the decision. The task fell to Justice Bean.
Bean emulated John Marshall’s approach in Marbury v. Madison in 1803 – then, incidentally, also just 100 years past. 5 U.S. (1 Cranch) 137 (1803). After disposing of an argument about the effect of the aborted 'Hold-up session' of 1897 on the status of other amendments, Bean turned directly to Portland’s claim under the constitutional guarantee of republican government.
'A republican form of government is a government administered by representatives chosen or appointed by the people or by their authority,' he began. 'Mr. Madison says that it is ‘a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.’' 74 Pac. at 719, quoting The Federalist No. 39. States could alter their preexisting constitutions, as long as they remained republican.
The initiative and referendum, Bean continued, did not abolish Oregon’s republican government. 'The government is still divided into the legislative, executive, and judicial departments, the duties of which are discharged by representatives selected by the people.' Under the 1902 amendment, he conceded, the voters might legislate or might defeat bills passed by the legislature and the governor, yet 'the legislative and executive departments are not destroyed, nor are their powers or authority materially curtailed.' Moreover, initiated laws must comply with the constitution (thus be subject to judicial review), and they could be amended or repealed by the elected lawmakers. 74 Pac. at 720. The Kadderly court recognized that if the amendment placed initiated laws beyond legislative power or constitutional review, it would to that extent impair the state’s republican form of government.
After this defense of the 1902 amendment, the opinion next turned to the legislature’s declaration that the new Portland charter was 'necessary for the immediate preservation of the public peace, health, and safety,' and it held that such declarations are conclusive on the courts. Portland’s statutory charter therefore was not subject to referral in any event and was in effect at the time of the assessment that the plaintiffs had challenged. 74 Pac. at 721.
Bean’s defense of the initiative and referendum achieved its immediate object: to explain how the newly adopted initiative and referendum were, in principle, compatible with effective government by elected representatives. It mediated the apparent conflict with Madisonian republicanism. The opinion was persuasive as far as it went. Kadderly was quickly accepted without further elaboration by the Supreme Courts of California, Oklahoma and Kansas, which adopted similar systems.6 But how accurate was the explanation?
Its key argument was that the 1902 amendment did not 'materially curtail' the powers of the elected officials, that legislators still could change or repeal initiated laws and that these laws still had to comply with the constitution. This overlooked that the new system allowed lawmakers to circumvent a governor’s potential veto of a bill by referring the bill to the voters instead. The oversight was not fatal to the argument: an executive veto was not an essential feature of republican governments.
More important, however, why did the Kadderly opinion not mention the new power to amend the constitution by initiative petitions and adoption by the same simple majority vote as laws?
One can venture a guess. Like the Oregon Constitution itself, amendments always had needed the consent of the voters, but not the governor. And constitutional amendments might be expected to concern the structure and processes of government, not to make laws for private persons. That, in fact, is how U’ren’s generation used this new power. Progressive and populist voters initiated such amendments as women’s suffrage and city home rule, but they stuck to initiating statutes when those would serve. That initiative amendments might be used to entrench social or economic legislation beyond the reach of the elected government may have escaped Justice Bean and his colleagues, who were not looking for potential flaws in the newly adopted and untried text.
They surely did not foresee the political attraction of separate initiative amendments that allow one set of voters to compel expensive programs, and another set of voters to prescribe precise tax limitation schemes (like one now occupying 120 column inches–10 feet—in the Oregon Constitution), without facing the elected officials’ burden to relate these to the state’s other budgetary priorities. Those initiatives, which hardly leave the legislature’s authority 'unimpaired,' were 70 years in the future. After Kadderly, however, Washington state omitted constitutional amendments when it copied Oregon’s initiative provisions in 1912. Wash. Const. art. II, §1a. Washington’s recurring anti-tax initiatives depend on the political respect of legislators for the voters’ will.
When the initiative was actually used in 1906 to enact a tax on telephone companies, the Pacific States Telephone Company objected anew that initiative laws were not 'republican' lawmaking. The Oregon court, again speaking through Justice Bean, replied that it saw no need to restate the views that it had thoroughly considered in Kadderly. The United States Supreme Court dismissed the company’s appeal, holding that it had no jurisdiction on grounds that the national guarantee of republican government was the responsibility of Congress rather than the federal courts.
To appreciate why Kadderly’s importance matches that of the reapportionment decisions of the 1960s,7 think what might well have followed if the Oregon justices, quite plausibly, had written that republican government, as understood by those who wrote and who ratified the U.S. Constitution, did preclude making statewide laws without elected representatives. Would other states then not have copied that system? Or would their courts have followed Oregon’s, ending this innovation throughout the West? And would the Supreme Court still have denied its jurisdiction to review the issue?
As it was, the Supreme Court did not deny the power or responsibility of Oregon’s courts, under the federal Supremacy Clause, to decide the company’s constitutional claim.8 But the Court’s opinion led to confusion and inconsistent decisions in Oregon and elsewhere.9 Attorney General Hardy Myers has warned that attorneys general may be left to decide the issue without judicial review.10
Kadderly was a fateful decision, for Oregon and beyond its borders. Despite Justice Bean’s clouded crystal ball, his 1903 opinion aimed at a tenable accommodation between popular lawmaking and the continued powers of the representative institutions that the duty to maintain republican government demands. Preserving the functioning of representative government 'unimpaired' is a standard 'manageable' by each state’s court, whether or not the Supreme Court believes that it can manage answers that fit all states.11 The constitutional duty that Oregon justices recognized a century ago has not changed. Whether the Oregon court will revive and refine its original analysis remains unfinished business for a new generation of Oregon lawyers and elected officials.
ABOUT THE AUTHOR
Hans A. Linde is a graduate of Reed College and the University of California, Berkeley, and served as law clerk to U.S. Supreme Court Justice William O. Douglas He has been a long-time professor of constitutional law at the University of Oregon and other universities, and a Justice of the Oregon Supreme Court from 1977 to 1990. He now is Distinguished Scholar in Residence at Willamette University College of Law.
1. The story is well summarized in David Schuman, The Origin of State Constitutional Direct Democracy: William Simon U’ren and 'The Oregon System,' 67 Temple L. Rev. 947 (1994).
2. U.S. Const. art. IV, §4.
3. See Or. Const art. IV, §1 (3)(a), and §28..
4. A 1968 reformulation of the relevant provisions repealed this text.
5. See Schuman, 67 Temple L. Rev. at 956.
6. In re Pfahler, 88 Pac, 270 (Cal. 1906), Ex parte Wagner, 95 Pac. 435 (Okla. 1908), State v. Board of Comm’rs, 144 Pac. 241 (Kan.1914).
7. Reynolds v. Sims, 377 U.S. 533 (1964) and its sequels.
8. U.S. Const. art. VI provides that 'the judges in every State shall be bound (by the Constitution), any Thing in the Constitutions or Laws of any State to the Contrary notwithstanding.'
9. See David B. Frohnmayer and Hans A. Linde, State Court Responsibility for Maintaining 'Republican Government': An Amicus Curiae Brief, 39 Willa. L. Rev. 1487 (2003); Hans A. Linde, State Courts and Republican Government, 41 Santa Clara L. Rev. 951, 954-959 (2001) (citing cases).
10. Hardy Myers, The Guarantee Clause and Direct Democracy, 34 Willa.L.Rev. 659 (1998).
11. Lack of a 'judicially manageable standard' is cited by the U.S. Supreme Court when it chooses to evade what the Court calls a 'political question.' See Baker v. Carr, 369 U.S. 186 (1962).
© 2003 Hans A. Linde