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Home My WebLink About12/18/08 - Safer Ashland Prospective Petition for Local Measure SEL 370 rev 1/08: ORS 250.045, 250.265,250.265,255.135 To the County Elections Filing Officer/City Recorder (Auditor), We, the undersigned., request the circle one district attorn~y@ty attornev-iJrepare a ballot title fO}t attached proposed measure to be submItted to the people of name ofcounty(jWldistrict Ashland /fA!l:@. . ~J(1W'~ 8 t ..../r /J ...... ...... ...... please type or print legibly 01nitiative Petition o Referendum Petition ~... designating chief petitioners ...... Every petition must designate not more than three persons as chief petitioners, setting forth the name, residence address and title (if officer of sponsoring organization) of each. All chief petitioners for an initiative or referen- dum petition must sign this form. Please carefully read the instructions for circulators and signers on the back of this form. . name print signature '1 I \ ~4{/Y' J~ 7~/',At)r zt4 West Nevada Street, Ashland, Oregon, 97520 mailing address if different Daniel Morrow residence address vid~oman.@ccoul1try. net email address and/or website 541-482-2968 day phone number sponsoring organization if any . Sara Doegah ~~~(;l L-{'-- /f--(~'-t":l). C-, ('--.o,___:=-~) name print 'signature CO' '. 1361 Quincy Street #78, Ashland, Oregon 97520 residence address mailing address if different freeashland@gmail.com email address and/or website day phone number sponsoring organization if any . name print signature residence address mailing address if different email address and/or website day phone number sponsoring organization If any please read the instructions for circulators and signers on the reverse side SEL 370 Statement One or More Petition Circulators Will Be Paid SEL 301 Initiative/Referendum Only rev 1/08: ORS 250.045, ORS 250.165, ORS 255.135 o Prospective Petition initial filing with filing officer I/We hereby declare one or more petition circulators will be paid money or other valuable consideration for obtaining signatures of active registered voters on the attached petition. I/We understand the filing officer must be notified not later than the 10th day after I/we first have knowledge or should have had knowledge that no petition circulator will be compensated for obtaining signatures. By signing this document, I hereby state that no circulators will be compensated on this petition based on the number of signatures obtained by the circulator. o Completed Petition signatures submitted for verification By signing this document, I hereby state that no circulators have been compensated on this petition based on the number of signatures obtained by the circulator. subject of initiative or referendum petition signed date signed signed date signed signed date signed All chief petitioners for an initiative or referendum petition must sign this statement. . Warning Supplying false information on this form may result in conviction of a felony with a fine of up to $125,000 and/or prison for up to 5 years. Statement No Petition Circulators Will Be Paid SEL 301 Initiative/Referendum Only rev 1/08: ORS 250.045, ORS 250.165, ORS 250.265, ORS 255.135 @ Prospective Petition initial filing with filing officer I/We hereby declare no petition circulators will be paid money or other valuable consideration for obtaining signatures of active registered voters on the attached petition. I/We understand the filing officer must be notified not later than the 10th day after I/we first have knowledge or should have had knowledge that any petition circulator will be compensated for obtaining signatures. By signing this document, I hereby state that no circulators will be compensated on this petition. o Completed Petition signatures submitted for verification /flJ!};(?\J By signing this document, I hereby state that no circulators were compensated for obtaining signatul!! on th~~ltf1f':1 attached petition. , I W~J Loyves~ ~~~ Enforcement. ~riority Policy 8 }:. ~. .. j,'. .~ subject of initiative or referendum petition ...... ...... 't) !I f~ 7 ; '> ;' I ;</'11 ,.Ie;-- ......... " "--r ~:"../ ~. .'/z,./tJG{/~./I/ .r ,,,,,I l (I -.... u vi () ... ~gneiY'v\... .. dat,k sign~ ........ I "-, l \'uLc'\-/d---.c y i\e~__ sl~d i T \,.-- I~/ --.../ {n / I 8/' C 0 , l~te sigf~d signed date signed All chief petitioners for an initiative or referendum petition must sign this statement. . Warning Supplying false information on this form may result in conviction of a felony with a fine of up to $125,000 and/or prison for up to 5 years. Instructions for Circulators -70nly active registered voters of the county, city or district may sign a petition. -7lt is advisable to have signers use a pen for signing petitions or for certifying petitions. -70nly one circulator may collect signatures on anyone sheet of a petition. -7Each circulator must personally witness all signatures the circulator collects. -7Circulators shall not cause to be circulated a petition knowing it to contain a false signature. -7 Circulators shall not knowingly make any false statement to any person who signs it or requests information about it. -7Circulators shall not attempt to obtain the signature of a person knowing that the person is not qualified to sign it. -7Circulators shall not offer money or any thing of value to another person to sign or not sign a petition. -7 Circulators shall not sell or offer to sell signature sheets. -7Circulators shall not write, alter, correct, clarify or obscure any information about the signers unless the signer is disabled and requests assistance or the signer initials after the cahnges are made. -7Circulators shall not accept compensation to circulate a petition that is based on the number of signatures obtained. . Warning Violations of the circulator requirements may result in conviction of a felony with a fine of up to $125,000 and/or prison for up to 5 years. Instructions for Signers -70nly active registered voters of the county, city or district may sign a petition. Sign your full name, as you did when you registered to vote. -7 Please fill in the date on which you signed the petition, your printed name and your residence address in the spaces provided. -7lnitial any changes that you or the circulator makes to your printed name, residence address or date on which you signed the petition. -7lt is advisable to use a pen for signing petitions. -7lt is unlawful to sign any person's name other than your own. Do not sign another person's name under any circumstances. -7 It is unlawful to sign a petition more than once. -7 It is unlawful for a person to knowingly sign a petition when the person is not qualified to sign it. Statement of Organization for Chief Petitioner Committee SEL 222 rev 12/07: ORS 260.118 Filing a New Committee: This form must be completed and filed by chief petitioners of an initiative, referendum or recall petition within 3 business days of first receiving a contribution or making an expenditure and no later than the date the petition is approved for circulation. For a recall petition, it must be filed with the prospective petition. The "Original" box should be marked. A date stamped copy of this form, which includes the committee's identification number, will be returned to the treasurer as an acknowledgment of the filing. Chief Petitioners: A chief petitioner committee must list all chief petitioners of the petition. Amending Information on this Form: Any change in the information on this form must be filed within 10 days of the change.To notify the Elections Division of a change in information, submit this form, completed in its entirety, and mark the "Amendment" box. Discontinuing: A chief petitioner may discontinue their committee by disclosing all transactions that achieve a zero balance and filing a completed SEL 222 with the "Discontinuation" box marked. Discontinuation of a state initiative or referendum chief petitioner committee prior to the deadline for submitting signatures for verification can occur only if the petition is withdrawn. J~@~llWl 8 Y: ....Ir------~ please type or print legibly in black ink This filing is an: o Original OAmendment o Discontinuation J, name of committee Ifchanging committee name, please include former name. abbreviation or acronym Safer Ashland c-o-mrni!tee adcfressstr'eetlroute, city, state, zip code; no post office box numbers 2:1t W.Nevada St. AshlandJ OR 97520 camp-algn phon-e - 541-482-2968 name of treasurer <:> Mr 0 Ms Daniel Morrow mailing address for committee correspondence ~1.tvv. Nevada St. Ashland, OR 97520 work phone home phone fax 541-482-2968 email address name of alternate transaction filer videOrnan@ccountrv.net o Mr 0 Ms mailing address for alternate transaction filer street/route, city, state, zip code email address type of chief petitioner committee mark both type of petition AND jurisdiction type of petition @Initiative o Referendum o Recall jurisdiction o State* OCounty @City OSpecial District date prospective petition filed mmlddlyy * date of election (only required for state petitions) mmlddlyy continued on the reverse side of this form SEL 222 J. subject or ballot title of petition/name of public official for recall Lowest Law Enforcement Priority PoUcy . name of chief petitioner Daniel Morrow address including zip code phone number 2t1.W. NevadaSt. Ashland, OR 97520 . na-meof chief petftio-ner' - -- SCira Do~gah address including zip code 541-482-2968 phone number . 13_61_QuincyStreet #7B, Ashland, Oregon 97520 name of chief petitioner phone number address including zip code J. signature By signing this document I acknowledge that I am personally liable for any penalties imposed under ORS chapter 260, and attest that the information on the form is true and correct. " /'1 '\ ,. ,_/ '-.Ji .1 i:. A CJ /7- treasur'~~'s sl{)mrrure : "A(( /1 /;.-1.1. (- , .J '..../ ./ Ij " r~."" j ~- 'datE}'.....signed chief petitioner's signature (optional) date signed for office use only initials committee ID number office number date acknowledgment sent l~cg~~\W~1 ~~~.AShland City Charter is hereby amended to add an article after article 15, to ~~~~~:~~~~i~.I~__ Lowest Law Enforcement Priority Policy ~- Section 1. Purpose The purpose of this article is: (a) to make investigations, citations, arrests, property seizures, and prosecutions for adult marijuana offenses, the city of Ashland's lowest law enforcement priority; and (b) to transmit notification of the enactment of this initiative to state and federal elected officials who represent the city of Ashland. (c) To create a Citizen Oversight Commission to oversee the implementation of this article. Section 2. Definitions For the purposes of this article, the following words and phrases shall have the meanings respectively ascribed to them by this section: (a) II Adultll means an individual who is 18 years of age or older. (b) II Ashland law enforcement officerll means a member of the Ashland Police Department or any other city agency or department that engages in law enforcement activity. (c) IILowest law enforcement priority" means a priority such that all law enforcement activities related to all offenses other than marijuana-related offenses shall be a higher priority than all law enforcement activities related to marijuana-related offenses, other than the exceptions designated in this article. (d) "Marijuanall means all parts of the cannabis plant, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin. Section 3. Lowest law Enforcement Priority Policy (a) Ashland law enforcement officers, the legal division of the City of Ashland and the office of the Ashland City Attorney shall make law enforcement activity relating to adult marijuana- related offenses their lowest law enforcement priority. Law enforcement activities relating to marijuana offenses include, but are not limited to, investigation, citation, arrest, seizure of property, or providing assistance to the prosecution of adult marijuana offenses. (b) This lowest law enforcement priority policy shall not apply to the following: (i) distribution or sale of marijuana to minors; possession, use, distribution, sale, or cultivation of marijuana by minors; distribution, sale, cultivation, or use of marijuana on public property; or driving under the influence of marijuana; (ii) marijuana-related offenses on private property, if a legal resident requests police intervention, or in case of private property with no legal residents, if a person in lawful possession of the private property requests police intervention; and (iii) marijuana-related offenses within 50 feet of any lawfully licensed business, if the licensee, licensee's agent, employee, or contractor, with the authority to do so, requests police intervention; and (iv) marijuana-related offenses within 250 feet of the boundaries of any school ordinarily attended by children under 18 years of age. (c) The lowest law enforcement priority policy shall apply to cooperating with state or federal agents to arrest, cite, investigate, prosecute, or seize property from adults for marijuana offenses included in the lowest law enforcement priority policy. (d) Ashland law enforcement officers shall not accept or renew formal deputization or commissioning by a federal law enforcement agency if such deputization or commissioning will include investigating, citing, arresting, or seizing property from adults for marijuana offenses included in the lowest law enforcement priority policy. (e) Ashland shall not accept any federal funding that would be used to investigate, cite, arrest, prosecute, or seize property from adults for marijuana offenses included in the lowest law enforcement priority policy. Section 4. Community Oversight Commission (a) Established - Membership The Community Oversight Commission is hereby established to oversee the implementation of Ashland's lowest law enforcement priority policy and to provide advice and guidance to commissions, committees, boards, the Council and city departments on all lowest law enforcement priority policy related matters. The commission shall be formed within 100 days of the enactment of this article, even if some of its members have not been appointed. The Commission shall consist of the actual number of current sitting Commission members appointed by the Mayor and confirmed by the City Council pursuant to AMC Section 10.105.060.2, but in no case shall there be less than five members nor more than seven voting members consisting of two city residents at large; one criminal defense attorney; one civil liberties advocate; one medical marijuana patient; one medical professional; and one drug abuse, treatment, and prevention counselor. Two non-voting ex officio members shall consist of a representative from the Ashland Police Department and a representative from the Ashland City Attorney's Office. The mayor shall also designate a non-voting council member as liaison to the commission. At least five voting members of the commission shall reside inside the city limits. The voting members shall be appointed by the Mayor with confirmation by the City Council. (b) Term - Vacancies The term of a voting Commissioner shall be for three years. Any vacancy shall be filled as soon as possible by appointment of the Mayor with confirmation by the City Council for the unexpired portion of the term. The terms of the initial members shall be two for one year, three for two years, and two for three years, which shall be drawn by lot at the first meeting of the Commission after the adoption of this article. Any Commissioner with four or more unexcused absences from meetings in a one-year period shall be considered no longer active and the position vacant, and a new Commissioner shall be appointed to fill the vacancy. (c) Quorum - Rules and Meetings A quorum shall be defined as one-half the number of sitting Commissioners, plus one, but in no case less than three. If there is no quorum, no official Commission business shall be conducted and all matters advertised shall automatically be continued to the next regularly scheduled meeting. The Commission may make rules and regulations for its meetings and procedures consistent with city ordinances, and shall meet at least once every month. The commission shall begin meeting within 100 days of the enactment of this article, even if some of its members have not been appointed. At its first meeting of each year the Commission shall elect a Chair and a Vice-Chair. (d) Powers and Duties - Generally The powers, duties and responsibilities of the Community Oversight Commission shall be as follows: (i) To act in an advisory capacity to the City Administrator and to all City departments regarding the lowest law enforcement priority policy or any related issues in the City and on all City properties. (ij) To act in an advisory capacity to the City Council in the administration of the the lowest law enforcement priority policy. (ij) To ensure timely implementation of this article, with the cooperation of the Ashland City Attorney's Office and the Ashland Police Department in providing needed data. (iv) To receive any grievances from individuals who believe they were subjected to law enforcement activity contrary to the lowest law enforcement priority policy. (v )To design a supplemental report form by no later than seven months after the enactment of this article, which Ashland law enforcement officers shall use to report all adult marijuana arrests, citations, property seizures, and instances of assisting in state or federal arrests, citations, and property seizures for any adult marijuana offense. The supplemental report form shall be designed to elicit sufficient details about each incident and the circumstances surrounding each incident for the commission to determine whether the Ashland law enforcement officer's or officers' actions were consistent with the lowest law enforcement priority policy. The form shall have questions that include but are not limited to: (A) the time and date of the arrest, citation, or property seizure; (8) the location of the arrest, citation, or property seizure, including whether it was on public or private property; (C) a description of how the officer came to encounter the marijuana, and whether the investigation began for a reason other than a possible marijuana violation; (D) the race, age, and gender of the person who was arrested or cited or had his or her property seized; (E) the name and badge number of each Ashland law enforcement officer involved in the arrest, citation, or property seizure. (vi) To request additional information from any Ashland law enforcement officer who engaged in law enforcement activity relating to one or more marijuana offenses under circumstances which appear to violate the lowest law enforcement priority policy. An officer's decision not to provide additional information shall not be grounds for discipline. (e) Reports from Law Enforcement Officers Ashland law enforcement officers shall submit to the commission a supplemental report within two weeks after each adult marijuana arrest, citation, or property seizure or instance of assisting in a state or federal arrest, citation, or property seizure for any adult marijuana offense in Ashland. Such reports shall be public records to the extent permitted by state law. (f) Reports from the Commission The Commission shall submit copies of its minutes to the City Council and shall prepare and submit such reports as from time to time may be requested of them by the City Councilor the Planning Commission. The Commission shall submit written reports semiannually to the Ashland City Council on the implementation of this article, with the first report being issued nine months after the enactment of this article. These reports shall include, but not necessarily be limited to: the number of all arrests, citations, property seizures, and prosecutions for marijuana offenses in Ashland; the breakdown of arrests and citations by race, age, specific charge, and classification as infraction, misdemeanor, or felony; any instances of law enforcement activity that the commission believes violated the spirit of lowest law enforcement priority policy; and the estimated time and money spent by the city on law enforcement and punishment for adult marijuana offenses. (g) Donations Subject to the formal acceptance by the City Council, the Commission may receive gifts, bequests or other devices of property in the name of the City to carry out any of the purposes of this article, which shall be placed in a special account for use at the discretion of the Commission. (h) Compensation Voting members of the Commission shall receive no compensation for services rendered. Section 5. Notification of Federal and State Officials Beginning three months after the enactment of this article, the city recorder shall execute a mandatory and ministerial duty of sending letters on an annual basis to Ashland voters' U.S. representative or representatives, both of Oregon's U.S. senators, Ashland voters' senators and Assembly members in the Oregon State Legislature, the governor of Oregon, and the president of the United States. This letter shall state, "The citizens of Ashland have passed an initiative to de-prioritize adult marijuana offenses, and request that the federal and Oregon state governments take immediate steps to enact similar laws." This duty shall be carried out until state and federal laws are changed accordingly. Section 6. Enforceability All sections of this article are mandatory. If any provision of this article is not carried out properly, any person may seek a writ of mandamus to ensure the law is fully implemented. Section 7. Severability If any provision of this article or the application thereof to any person or circumstance is held invalid, the remainder of the article and the application of such provisions to other persons or circumstances shall not be affected thereby. Section 8. Enactment This article shall take effect upon the certification of the election results establishing passage of this amendment. CITY OF ASHLAND December 26, 2008 Daniel Morrow 211 West Nevada Street Ashland, OR 97520 Dear Chief Petitioners: As the City's Election Official, pursuant to ORS 250.270, I have completed review of the proposed initiative text entitled "Lowest Law Enforcement Priority Policy" and determined that the proposed initiative does not comply with the constitutional requirement for "municipal legislation as set forth in Oregon Constitution, Article IV, Section (5), and Article XI, Section 2. Accordingly, the prospective petition is rejected. The Constitutional requirements for an initiative petition are that the initiative is 1) composed of single subject, and 2) constitutes "municipal legislation." Oregon Constitution Article IV, Section 1 (2)( d) and Oregon Constitution Article IV, Section 5. The Oregon Constitution limits what constitutes "municipal legislation" by stating that "the legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon..." Oregon Constitution Article XI, Section 2 (emphasis added). In addition, the Oregon courts have stated that proper initiatives must be legislative, and that administrative matters are property excluded from the ballot. The question of whether a prospective municipal initiative is legislative or administrative is based on whether the prospective initiative makes a decision ( or decisions) or whether it changes the framework within which decisions are made. While the prospective initiative attempts to change the framework for law enforcement decisions relative to marijuana offenses, it actually dictates the decisions to be made by City of Ashland personnel. Further, given that the framework for criminal law decisions is based on state statute, a local initiative cannot change it without violating the Oregon Constitution, Article XI, Section 2. In determining whether the proposed initiative complies with constitutional requirements, legal advice was sought and the following submitted to support rejection of the proposed initiative. The Oregon Court of Appeals recently summarized the two most recent Oregon Supreme Court decisions concerning whether an initiative concerns "municipal legislation" under Article IV, Section 1 (5): In Foster v. Clark, 309 Ore. 464, 790 P.2d 1 (1990), the proposed initiative sought to undo an action of the Portland City Council that renamed a street. The Supreme Court pointed out that, at the time the sponsors filed the proposed petition, the city had established a policy and accompanying procedures for renaming streets. Because of that CITY RECORDER'S OFFICE Barbara Christensen, City Recorder/Treasurer 20 E Main Tel: 541-488-5307 Ashland, Oregon 97520 Fax: 541-552-2059 www.ashland,or.us TTY: 800-735-2900 ~~, scheme, acts of renaming streets were administrative, not legislative, decisions. The court recognized that renaming a street could be a legislative decision, if the city did so by specific ordinances. When, however, the legal framework for the decision included a specific procedure for renaming, actions that followed that procedure were administrative. The proposed initiative did not seek to change the framework for renaming, only to change a specific decision. 309 Ore. at 472-75. Legislative activity has been defined as "making laws of general applicability and permanent nature," and administrative activity has been defined as what is "necessary to carry out legislative policies and purposes already declared." Finally, under the law, if a "completed legislative plan, requiring no further legislative contribution" exists, then changing the outcome following that legislative plan may establish that the activity is "administrative" and not subject to the initiative and referendum process. See Foster v. Clark, 309 Or. 464, 473-474. In Lane Transit District v. Lane County, 327 Ore. 161,957 P.2d 1217 (1998), the proposed initiative would have established the salary of the District's director. The Supreme Court determined that existing state statutes created a completed legislative plan for the appointment, compensation, and removal of the director of a transit district. The act of setting the specific salary of a specific director, thus, was an administrative implementation of that legislative plan and was not a proper subject for an initiative measure. 327 Ore. at 168-69. As in Foster, the proposed initiative did not attempt to change the existing legislative plan. Indeed, given that the existing plan was the creature of state statutes, a local initiative could not have changed it. Petitioners assert that the proposed initiative creates a new policy and a framework for the implementation of that policy. However, the proposed initiative actually dictates the result in specific law enforcement situations concerning marijuana offenses which are already governed by an existing legal framework created by state law. For example, under the legal framework of existing state law, a law enforcement officer may arrest a person for possession of less than an ounce of marijuana within 1000 feet of a school. [ORS 475.864(4)]. The offense is a Class C Misdemeanor crime. The officer's decision to arrest is governed by ORS 133.220 and ORS 133.310. The decision to arrest is based upon the officer's finding of probable cause. Under ORS 131.005( 11), probable cause is the officer's substantial objective basis for believing that more likely than not an offense has been committed and a person to be arrested has committed it. The officer applies this existing legal framework of state law in making the decision. If the officer has probable cause the officer may elect to arrest, or the officer may elect to issue a citation in lieu of arrest. [ORS 133.055]. Lacking probable cause, the officer will make the decision not to arrest. Like the existing City legal framework in Foster and the completed legislative plan in Lane Transit District, the legal framework for the decision to arrest or not arrest exists in state statutes. While it is true that the proposed petition does not dictate any individual defendant's arrest decision, it does dictate results in specific marijuana cases. The proposed initiative imposes the petitioner's preferred result despite the existing statutory framework for the decision. That is, the officer is directed to take no action, not arrest, not cite, and not seize the contraband, when faced with marijuana offenses, that is, unless there are no other offenses that deserve the Officer's attention. [Under the prospective petition even a city ordinance offense like not picking up after your dog would have a higher priority than a marijuana crime.] The petition dictates the decision, CITY RECORDER'S OFFICE Barbara Christensen, City RecorderlTreasurer 20 E Main Tel: 541-488-5307 Ashland, Oregon 97520 Fax: 541-552-2059 www,ashland,or.us TTY: 800-735-2900 ~~, the functional equivalent of "do nothing", despite the existing statutory framework for the arrest decision. Similar comprehensive statutory schemes exist and provide a legal framework for other covered non-criminal violation decisions [e.g. ORS Chapter 153] as well as decisions regarding the seizure of contraband. Further, as with Lane Transit, because the criminal law legal framework is set by Oregon state statute, it cannot be changed in a local City of Ashland initiative. (See Lane Transit quoted above: " Indeed, given that the existing plan was the creature of state statutes, a local initiative could not have changed it.") In fact, the legislative plan in the area of criminal law is so comprehensive and so complex that the Ore!!on Constitution itself precludes the state criminal law from being a subject of local municipal legislation. The Oregon Constitution Article XI, Section 2 provides in pertinent part: The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon .... [emphasis added] Accordingly, the proposed petition seeks to achieve under a proposed new City Charter "policy" of lowest law enforcement priority, what cannot be achieved in municipal legislation, that is, an amendment to Oregon Revised Statutes. Given the example above, petitioners might just as well propose an amendment to ORS 133.310 and ORS 475.864(4), to add text stating that "notwithstanding probable cause, the officer cannot arrest for a marijuana offense between 250 feet and 1000 feet of a school if the officer can find something else to do." Finally, it is apparent that the framework for the decisions which Petitioners wish to change is found in existing state statutes and is beyond the reach of municipal legislation as bounded by Article XI, Section 2 of the Oregon Constitution. Similar attempts have resulted in the Oregon Courts directing the petitioners to seek amendment to state statutes creating the framework for the municipal and/or county decisions. See Yamhill v. Dauenhauer, 6 Ore. App. 422 (1971) (The initiative measure could not be used to defeat the general legislation of Oregon, by which the Oregon Legislature delegated power to the county regarding bridge construction. The proper remedy was the repeal of ORS 382.245) In conclusion, the prospective InItIatIve is not "municipal legislation" as it dictates the administration of criminal laws and violations concerning marijuana by law enforcement personnel. As such the proposed initiative violates Oregon Constitution, Article IV, Section 1 (5) as well as Oregon Constitution Article XI, Section 2. If the electors of the City of Ashland desire to take action on this matter, it must be directed toward repeal of the authority which state legislation has granted, which would be the State of Oregon. arbara Christensen City Recorder Cc: City Attorney Office CITY RECORDER'S OFFICE Barbara Christensen, City Recorder/Treasurer 20 E Main Tel: 541-488-5307 Ashland, Oregon 97520 Fax: 541-552-2059 www,ashland,oLus TTY: 800-735-2900 r~' CITY OF ASHLAND December 26, 2008 Sara J. Doegah 1361 Quincy Street Apt 7B Ashland, OR 97520 Dear Chief Petitioners: As the City's Election Official, pursuant to ORS 250.270, I have completed review of the proposed initiative text entitled "Lowest Law Enforcement Priority Policy" and determined that the proposed initiative does not comply with the constitutional requirement for "municipal legislation as set forth in Oregon Constitution, Article IV, Section (5), and Article XI, Section 2. Accordingly, the prospective petition is rejected. The Constitutional requirements for an initiative petition are that the initiative is 1) composed of single subject, and 2) constitutes "municipal legislation." Oregon Constitution Article IV, Section 1 (2)( d) and Oregon Constitution Article IV, Section 5. The Oregon Constitution limits what constitutes "municipal legislation" by stating that "the legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subiect to the Constitution and criminal laws of the State of Oregon..." Oregon Constitution Article XI, Section 2 (emphasis added). In addition, the Oregon courts have stated that proper initiatives must be legislative, and that administrative matters are property excluded from the ballot. The question of whether a prospective municipal initiative is legislative or administrative is based on whether the prospective initiative makes a decision ( or decisions) or whether it changes the framework within which decisions are made. While the prospective initiative attempts to change the framework for law enforcement decisions relative to marijuana offenses, it actually dictates the decisions to be made by City of Ashland personnel. Further, given that the framework for criminal law decisions is based on state statute, a local initiative cannot change it without violating the Oregon Constitution, Article XI, Section 2. In determining whether the proposed initiative complies with constitutional requirements, legal advice was sought and the following submitted to support rejection of the proposed initiative. The Oregon Court of Appeals recently summarized the two most recent Oregon Supreme Court decisions concerning whether an initiative concerns "municipal legislation" under Article IV, Section 1 (5): In Foster v. Clark, 309 Ore. 464, 790 P.2d 1 (1990), the proposed initiative sought to undo an action of the Portland City Council that renamed a street. The Supreme Court pointed out that, at the time the sponsors filed the proposed petition, the city had established a policy and accompanying procedures for renaming streets. Because of that CITY RECORDER'S OFFICE Barbara Christensen, City Recorder/Treasurer 20 E Main Tel: 541-488-5307 Ashland, Oregon 97520 Fax: 541-552-2059 www.ashland,or.us TTY: 800-735-2900 ~.l' .]' I scheme, acts of renaming streets were administrative, not legislative, decisions. The court recognized that renaming a street could be a legislative decision, if the city did so by specific ordinances. When, however, the legal framework for the decision included a specific procedure for renaming, actions that followed that procedure were administrative. The proposed initiative did not seek to change the framework for renaming, only to change a specific decision. 309 Ore. at 472-75. Legislative activity has been defined as "making laws of general applicability and permanent nature," and administrative activity has been defined as what is "necessary to carry out legislative policies and purposes already declared." Finally, under the law, if a "completed legislative plan, requiring no further legislative contribution" exists, then changing the outcome following that legislative plan may establish that the activity is "administrative" and not subject to the initiative and referendum process. See Foster v. Clark, 309 Or. 464, 473-474. In Lane Transit District v. Lane County, 327 Ore. 161,957 P.2d 1217 (1998), the proposed initiative would have established the salary of the District's director. The Supreme Court determined that existing state statutes created a completed legislative plan for the appointment, compensation, and removal of the director of a transit district. The act of setting the specific salary of a specific director, thus, was an administrative implementation of that legislative plan and was not a proper subject for an initiative measure. 327 Ore. at 168-69. As in Foster, the proposed initiative did not attempt to change the existing legislative plan. Indeed, given that the existing plan was the creature of state statutes, a local initiative could not have changed it. Petitioners assert that the proposed initiative creates a new policy and a framework for the implementation of that policy. However, the proposed initiative actually dictates the result in specific law enforcement situations concerning marijuana offenses which are already governed by an existing legal framework created by state law: For example, under the legal framework of existing state law, a law enforcement officer may arrest a person for possession of less than an ounce of marijuana within 1000 feet of a school. [ORS 475.864(4)]. The offense is a Class C Misdemeanor crime. The officer's decision to arrest is governed by ORS 133.220 and ORS 133.310. The decision to arrest is based upon the officer's finding of probable cause. Under ORS 131.005(11), probable cause is the officer's substantial objective basis for believing that more likely than not an offense has been committed and a person to be arrested has committed it. The officer applies this existing legal framework of state law in making the decision. If the officer has probable cause the officer may elect to arrest, or the officer may elect to issue a citation in lieu of arrest. [ORS 133.055]. Lacking probable cause, the officer will make the decision not to arrest. Like the existing City legal framework in Foster and the completed legislative plan in Lane Transit District, the legal framework for the decision to arrest or not arrest exists in state statutes. While it is true that the proposed petition does not dictate any individual defendant's arrest decision, it does dictate results in specific marijuana cases. The proposed initiative imposes the petitioner's preferred result despite the existing statutory framework for the decision. That is, the officer is directed to take no action, not arrest, not cite, and not seize the contraband, when faced with marijuana offenses, that is, unless there are no other offenses that deserve the Officer's attention. [Under the prospective petition even a city ordinance offense like not picking up after your dog would have a higher priority than a marijuana crime.] The petition dictates the decision, CITY RECORDER'S OFFICE Barbara Christensen, City RecorderlTreasurer 20 E Main Tel: 541-488-5307 Ashland, Oregon 97520 Fax: 541-552-2059 www,ashland,or.us TTY: 800-735-2900 r~' the functional equivalent of "do nothing", despite the existing statutory framework for the arrest decision. Similar comprehensive statutory schemes exist and provide a legal framework for other covered non-criminal violation decisions [e.g. ORS Chapter 153] as well as decisions regarding the seizure of contraband. Further, as with Lane Transit, because the criminal law legal framework is set by Oregon state statute, it cannot be changed in a local City of Ashland initiative. (See Lane Transit quoted above: " Indeed, given that the existing plan was the creature of state statutes, a local initiative could not have changed it.") In fact, the legislative plan in the area of criminal law is so comprehensive and so complex that the Ore!!on Constitution itself precludes the state criminal law from being a subject of local municipal legislation. The Oregon Constitution Article XI, Section 2 provides in pertinent part: The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon .... [emphasis added] Accordingly, the proposed petition seeks to achieve under a proposed new City Charter "policy" of lowest law enforcement priority, what cannot be achieved in municipal legislation, that is, an amendment to Oregon Revised Statutes. Given the example above, petitioners might just as well propose an amendment to ORS 133.310 and ORS 475.864(4), to add text stating that "notwithstanding probable cause, the officer cannot arrest for a marijuana offense between 250 feet and 1000 feet of a school if the officer can find something else to do." Finally, it is apparent that the framework for the decisions which Petitioners wish to change is found in existing state statutes and is beyond the reach of municipal' legislation as bounded by Article XI, Section 2 of the Oregon Constitution. Similar attempts have resulted in the Oregon Courts directing the petitioners to seek amendment to state statutes creating the framework for the municipal and/or county decisions. See Yamhill v. Dauenhauer, 6 Ore. App. 422 (1971) (The initiative measure could not be used to defeat the general legislation of Oregon, by which the Oregon Legislature delegated power to the county regarding bridge construction. The proper remedy was the repeal of ORS 382.245) In conclusion, the prospective InItIatIVe is not "municipal legislation" as it dictates the administration of criminal laws and violations concerning marijuana by law enforcement personnel. As such the proposed initiative violates Oregon Constitution, Article IV, Section 1 (5) as well as Oregon Constitution Article XI, Section 2. If the electors of the City of Ashland desire to take action on this matter, it must be directed toward repeal of the authority which state legislation has granted, which would be the State of Oregon. 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