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Statement by Commissioner Susan Morgan December 23, 2015

I have asked for a point of personal privilege to address the history and recent developments in the effort to amend the Douglas County code to limit the terms of county commissioners. It is my intent here to make certain the public record is complete and available to the citizens of Douglas County. Let me be clear from the start. As a State Representative and as a County Commissioner, I have seven times taken a solemn oath to support and defend the Oregon Constitution. That is why I have moved forward in questioning the constitutionality of the term limits measure. I have done so, even though it was unpopular and difficult. I have done so because I believe it is the first responsibility of every public official to stand for and defend the rule of law. For as long as I have the privilege to serve the people of Douglas County as a County Commissioner, I will stand up for the constitution. The Oregon Constitution is the bedrock compact between the citizens of Oregon and their government. If there is a conflict between the constitution and state statutes or county ordinances, the constitution prevails. This is true even if the statute or ordinance was enacted through the initiative process, a process that the Oregon constitution reserves to the people. Many of you have served in our armed forces. You swore an oath that reads in part “ I do solemnly swear that I will support and defend the Constitution of the United States.” The oath that I took -the oath that every Oregonian who is elected to public office takes when we begin our terms of service - is not very different. The Oath binds elected officials to support the Oregon Constitution and the Constitution of the United States. Please see Exhibit 1 – Military Oath Please see Exhibit 2 – Oath of Office for Douglas County Commissioner As you know, a citizen initiative adopted by the voters at the November 2014 general election purported to limit the time that Douglas County Commissioners can serve in office. Only a very few of the citizens that signed the petition to put the measure on the ballot ever read the actual words of the measure. Only a few of the many county voters who voted for the initiative, ever read the actual words of the measure. That is because the full text of the measure was not available to them. Attached to the petition was only the ballot title that was written by our District Attorney’s office, per state law. Also, the ballot title was the only language that appeared on the ballot. Please see Exhibit 3 – Ballot title and Initiative sheet presented to signers Please see Exhibit 4 – Language of the initiative, now in county code

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When the signatures were verified and the petition was accepted by the County Clerk to be included on the ballot, Douglas County Counsel conducted a procedural review of the measure. That review was conducted according to the Oregon Constitution, Article IV, §1 and Article XVII (17), and OAR 165-014-0028. That review was very narrowly focused. The Oregon Constitution established the following review requirements for initiative petitions: First, it must contain a single subject or closely related subject; second, multiple subjects that are not closely related must be voted on separately; third, the measure must include the full text and, finally, it must be legislative rather than administrative in nature. These are the only issues that County Counsel can consider in reviewing the proposed measure before it is submitted to the voters. It should be clearly noted that County Counsel may not review the petition for constitutional or legal sufficiency. Let’s be clear on this – before an initiative is voted in, there is no opportunity to find out whether or not it is constitutional or legal. That’s true at the local level and it’s true at the state level. The Oregon Supreme Court has made abundantly clear since the mid 1920s that any sort of pre-enactment review is not permitted by the court. While that most certainly can be frustrating to voters, it is only after a law is passed that the courts will consider its legality and constitutionality. It should also be noted that there was no Voter’s Pamphlet available for this measure. Voters did not see the actual text of the measure and did not benefit from a discussion of the strengths and weaknesses of it. There was very little public dialog on the measure. The measure was voted on by 70% of the voters in Douglas County. 70% of the votes cast supported the term limits measure. I met with the Chief Petitioner (Mr. Parker) shortly after the vote. I offered to convene with him a citizen panel with the goal of arriving at a common understanding of how to implement the measure. Mr. Parker initially agreed to attend these meetings. Later he changed his mind and declined to be involved. Without the Chief Petitioner’s involvement, that idea was scrapped. By the language of the measure, the initiative became part of our county ordinances on January 1, 2015. The County Clerk, Patti Hitt, is charged with running elections in the county. Because the language of the initiative is confusing, unclear, and the subject of legal questions, Ms. Hitt hired Dan Olsen, a retired Washington County Counsel, in the spring of 2015 to review the language of the petition and asked him for his legal advice on how to implement it. The cost to the county for that initial legal opinion was $5,000. Please see Exhibit 5 – Dan Olsen opinion in its entirety

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Mr. Olsen advised that the measure is “more than likely unconstitutional as it impermissibly imposes additional qualifications to the office of county commissioner.” In responding to questions about implementation, the opinion went on to say, “It is evident that the text and context of the Measure are ambiguous. It clearly imposes a term limit of eight consecutive years on the office of county commissioner. It is not clear, however, to whom or when the term limits apply and how they apply. It uses undefined and inconsistent terms and addresses similar concepts multiple times but in different ways.” Mr. Olson’s opinion went on to state that, if the Clerk chose to implement the measure I could not run again as I am the first commissioner to be affected by it. Ms. Hitt chose to implement the measure. So I am the first Commissioner to be affected by the ordinance. I and people who want to be able to vote for me are the first people who, under the ordinance, would be denied the opportunity to stand for election or to vote for the candidate of their choosing. We had good reason to wonder if the measure was unconstitutional. When there is a question about the constitutionality of a law, those questions are to be addressed in a court of law. Just as our First and Second Amendment rights under the US Constitution have been clarified in this manner, the questions raised about the constitutionality of term limits for Douglas County Commissioners needed to be answered by the court. In September of 2015, I attempted to file election documents. The County Clerk, through her Chief Deputy, did not accept my filing for the County Commission because term limits had been implemented by the county. As a result, a suit was filed in Douglas County Circuit Court by me and nine Douglas County voters that would be denied their ability to vote for me, asserting the unconstitutionality of the term limits ordinance. The defendant, as required by law, was the County Clerk. The suit asked the court to issue a Writ of Mandamus to compel the Clerk to accept my candidacy because the term limits initiative violated the Oregon and US constitutions. A Writ of Mandamus is a mechanism that forces something to happen, the opposite of an Injunction, which stops something from happening. When the suit was filed, toward the end of September 2015, I proposed and the Clerk agreed that whoever prevailed in the suit would not seek costs and fees from the other party. Both of us felt strongly that no public purpose would be served by potentially increasing costs to the county and the taxpayers. I and my co-petitioners raised the money that paid the bill for our legal counsel. There were no county dollars spent to bring this challenge.

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When the suit was filed, Mr. Parker, the chief petitioner, asked to be allowed to intervene (become a party) in the suit. Through his Portland lawyer, James Buchal, Mr. Parker also agreed not to seek costs and fees if he prevailed. On that basis, both my team and the Clerk agreed to accept Mr. Parker into the proceedings. However, before Mr. Parker was actually able to intervene in the lawsuit, a judge had to be appointed to the case and that judge had to agree to allow Mr. Parker to intervene.

Let’s be clear on who paid for the cost of the lawyers. The Clerk’s lawyer is paid for by the county. The cost of her lawyer is $10,000. This is in addition to the $5,000 spent on Mr. Olsen’s legal opinion, I and my co-petitioners raised the money to cover my court costs and lawyer’s fees. Our lawyers at Harrang Long Gary Rudnick, from Eugene, supported us by agreeing to work for a steeply discounted fee. Again, there were no county funds used for my legal expenses. Mr. Parker is responsible for his own legal costs. Several weeks passed where the Clerk, Mr. Parker, and my team each disqualified a judge. Eventually, all remaining local Douglas County judges disqualified themselves from hearing the case. It was not until the end of October that a judge that all parties agreed to was assigned by the State Court Administrator to the case. It was Judge Richard Barron, the Presiding Judge in Coos County. In the first part of November, Judge Barron agreed to Mr. Parker’s request to intervene in the lawsuit. The process to the hearing was set. A memorandum from my team, and responses from the Clerk and Mr. Parker, as well as an answer by my team to the Clerk’s and Mr. Parker’s responses were scheduled. All of the documents were shared with all of the lawyers and the judge. All those documents are matters of public record. A hearing was scheduled for December 16. Judge Barron was to video conference into a Roseburg courtroom where the lawyers for my team, the clerk and Mr. Parker would present their briefs. Mr. Parker’s attorney subsequently decided not to drive down from Portland and phoned in. At the hearing, Judge Barron stated that he had read all the documents submitted by all the attorneys and researched all the cases cited in those documents. He allotted each of the attorneys time to highlight their arguments and he asked clarifying questions. At the end of the hearing, he stated that he was going to rule quickly on the case. On December 17th, Judge Barron ruled that the term limits initiative was unconstitutional and violated the Oregon constitution. In a separate order, he ordered the Clerk to reinstate my candidacy for county commissioner retroactive to the date of my original attempt to file, September 21. The Clerk has added my name to the candidate list for the May election and has stated that she will not appeal the decision of the court. Please see Exhibit 6 – Judge Barron Decision Please see Exhibit 7 – Judge Barron Writ of Mandamus

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Yesterday, Mr. Parker served notice that he is appealing the case to the Oregon Court of Appeals. I know and I understand that this measure was passed by an overwhelming majority of those who voted, and to challenge it is far from a comfortable place to be. But we don’t elect leaders to be comfortable. We elect leaders to lead, to keep our system of government on track, and to equally enforce laws that conform to our constitutions. I cannot apologize for clarifying the constitutionality of the term limits measure. I cannot apologize for keeping my oath to support the constitution, the fundamental document defining our rights. These are our rights that generations of Americans have fought to defend. All of us have a clear responsibility to pass on to our children, and their children laws that are solidly built on that constitutional framework. Our system of laws and our system of government depend on staying on that path. It is a frustrating thing that Oregon’s initiative process does not permit a review for the constitutionality of a measure until after it is voted in, and has been implemented. I believe that it should be incumbent on those who propose initiatives to prove that they are lawful and constitutional before they can be put on the ballot, and I will take this issue up with the state legislature. To be sure, it is very frustrating and confusing when a court can only rule after the people have voted. Good public policy is made by people who approach an issue thoughtfully, with an eye to the existing legal and regulatory framework around the issue. We should expect to disagree and we should expect to freely discuss our disagreements, and we should expect to learn from each other. Hurtful personal attacks have no place in public policy discussions. We should respect the judge who ruled. And frankly, we should acknowledge those who had the courage to step up in the face of a popular, but unconstitutional position. I want to conclude where I started. Each of us sitting up here has taken an oath to support and defend the constitution of the United States and the constitution of the State of Oregon. I will not shy away or apologize for doing just that. It is important, going forward on this or any other matter of county concern, that we do so with a civil and candid discussion; we do so with respect for those with differing viewpoints; and we do so with a commitment to our Constitutions, to the integrity of our county, and our future. Colleagues, I thank you for the time and consideration you have given me today. I yield the floor if you have any comments.