UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

M.S., an individual, et al., 

Plaintiff, 

v. 

KATE BROWN, in her capacity as 

Governor of the State of Oregon, et al., 

Defendants. 

AIKEN, Judge: 

Case No. 6: l 5-cv-02069-AA 

OPINION AND ORDER 

Plaintiffs filed suit purporting to challenge Oregon Ballot Measure 88, a referendum 

measure presented to and rejected by Oregon voters during the general election in November 

2014. Plaintiffs contend that the rejection of Measure 88 violated their constitutional rights by 

arbitrarily denying them driving privileges based on their national origin, immigration status, and 

membership in a "disfavored minority group." Pis.' Comp!. at 3. Plaintiffs seek class 

certification and declarations that Measure 88 "is void and unenforceable" and that defendants 

"are authorized and required to issue driver cards." Id at 18. 

Defendants now move for dismissal of plaintiffs' claims. Defendants argue that the 

retroactive invalidation of Measure 88 is barred by sovereign immunity and principles of 

federalism and would not redress plaintiffs' alleged injury in any event. Defendants also argue 

1 - OPINION AND ORDER 

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that plaintiffs fail to state a viable claim under 42 U.S.C. § 1983, and that no defendant was 

personally involved in the deprivation of a constitutional right. Defendants' motion is granted. 

BACKGROUND 

Since 2008, Oregon has required proof of lawful presence in the United States to obtain 

driving privileges in the state, consistent with the Federal REAL ID Act of 2005. See Or. S.B. 

1080, § 2 (2008) (SB 1080); Or. Rev. Stat. §§ 807.021, 807.040; REAL ID Act of2005, Pub. L. 

No. 109-13, § 202(c)(2)(B), 119 Stat. 231 (2005) (states must require verification of lawful 

status in the United States "before issuing a driver's license or identification card"). 

In 2013, the Oregon legislature passed and the Govemor signed Senate Bill 833 (SB 

833); it would have become effective on January 1, 2014. Pis.' Comp!. at 12, 14. SB 833 would 

have allowed individuals who could not establish their lawful presence in the United States to 

obtain an alternative form of driving privileges through an Oregon Department of Transportation 

"driver card" program. 1 Id. at 12-13. Before SB 83 3 went into effect, however, Oregon citizens 

obtained sufficient signatures to refer SB 833 to a referendum vote.2 The referendum on SB 833 

then became Measure 88 and asked voters to approve or reject the legislation. 

During the general election of 2014, a majority of Oregon voters voted "no" on Measure 

88 and did not approve SB 833. Pis.' Comp!. at 16. The State has continued to issue driving 

privileges as it had before SB 833; it has not issued "driver cards" pursuant to SB 833. 

On November 4, 2015, plaintiffs filed suit challenging the rejection of Measure 88. 

1 Under SB 833, the "driver cards" would have included features distinguishing them 

from driver's licenses to comply with the REAL ID Act. Pis.' Comp!. at I 3. 

2 Oregonians for Immigration Reform, a sponsor ofthc referendum petition, moves to 

intervene as a defendant. I find that it fails to establish that the State cannot adequately represent 

its interests in defending this lawsuit, and I deny the motion. Prete v. Bradbwy, 438 F.3d 949, 

956-57 (9th Cir. 2006). 

2 - OPINION AND ORDER 

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DISCUSSION 

In this lawsuit, plaintiffs seek to invalidate Oregon voters' rejection of Measure 88.3 

Specifically, plaintiffs assert that the rejection of Measure 88 is not supp01ied by a legitimate 

public interest, because those who voted against the measure acted with discriminatory animus 

towards undocumented immigrants. Plaintiffs contend that, in light of the improper motive 

underlying the rejection of Measure 88, the State defendants' recognition of the referendum vote 

and their failure to implement SB 833 violates plaintiffs' Fomieenth Amendment rights to equal 

protection and substantive due process. Plaintiffs seek a declaration that the rejection of Measure 

88 violates their rights and is thus "void and unenforceable," and that the State defendants are 

"authorized and required to issue driver cards pursuant to SB 833." Pis.' Campi. at 18. Plaintiffs 

also seek an injunction to enforce the requested declaratory judgments. In other words, plaintiffs 

request that this Court order the State to implement and enforce SB 833 by issuing driver cards 

authorized by the legislation. 

Initially, it is important to emphasize the limited nature of plaintiffs' claims. Plaintiffs do 

not challenge an existing Jaw enacted or enforced by the State, such as SB 1080 or the 

requirement of lawful presence in Oregon to obtain a driver's license. Further, plaintiffs do not 

challenge the referendum process associated with Measure 88 or any State action taken with 

respect to the referendum election. Rather, plaintiffs challenge only the voters' rejection of 

Measure 88 - and, by extension, of SB 833 - and the State's alleged refusal to implement SB 833 

3 Throughout their Complaint and in their opposing brief, plaintiffs repeatedly assert that 

they challenge Measure 88, and that Measure 88's "enactment," enforcement, and 

implementation violates their rights. See, e.g., Pis.' Campi. at 2-3, 8-9, 17-18; Pis.' Opp'n at 9, 

12, 15. However, plaintiffs cannot challenge Measure 88 itself; Oregon voters voted "no" on the 

measure, and it was not enacted or implemented. If Measure 88 had passed, it would have 

authorized the driver cards they wish to obtain. Therefore, plaintiffs necessarily challenge the 

election process and the "no" vote by Oregon voters, not the substance of Measure 88. 

3 - OPINION AND ORDER 

Case 6:15-cv-02069-AA Document 48 Filed 05/13/16 Page 3 of 10
as a result of the referendum. Thus, I agree with State defendants that plaintiffs essentially "ask 

this Comi to invalidate the outcome of a public referendum, and to judicially enact a state law 

that the Oregon voters rejected." Defs.' Mem. in Supp. at 1. In light of the relief they seek, 

defendants argue, inter ctlia, that plaintiffs fail to meet the redressability element of standing, 

because judicial invalidation of the vote on Measure 88 would not result in the implementation 

of SB 833 and the issuance of driver cards. I agree. 

"The 'irreducible constitutional minimum' of Article III standing consists of (I) 'injury in 

fact,' (2) 'a causal connection between the injury and the conduct complained of,' and (3) a 

likelihood 'that the injury will be redressed by a favorable decision."' Novak v. United States, 

795 F.3d 1012, 1017-18 (9th Cir. 2015) (quotingl1ifa11 v. Defenders of Wildlife, 504 U.S. 555, 

560-61 (1992)). To demonstrate redressability, the plaintiff must show "a 'substantial likelihood' 

that the requested relief will remedy the alleged injury in fact." Vermont Agency of Natural Res. 

v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (citation omitted). '"Relief that does 

not remedy the injury suffered cannot bootstrap a plaintiff into federal court; that is the very 

essence of the redressability requirement."' Townley v. 1'1iller, 722 F.3d 1128, 1135 (9th Cir. 

2013) (quoting Steel Co. v. Citizens for a Beller Env't, 523 U.S. 83, 107 (1998)). "The party 

invoking federal jurisdiction bears the burden of establishing these elements." L1ifan, 504 U.S. at 

561. Thus, plaintiffs must establish that a ruling in their favor - the invalidation of Measure 88's 

rejection by voters - will redress their alleged injury. They cannot do so. 

Plaintiffs' alleged injury is the inability to obtain driving privileges under SB 833 due to 

Oregon voters' rejection of Measure 88. See Pis.' Comp!. at 16-18. However, even ifthe Court 

found the rejection of Measure 88 to be unconstitutional, SB 833 would not become law and 

plaintiffs' injury could not be redressed by this Comi. 

4 - OPINION AND ORDER 

Case 6:15-cv-02069-AA Document 48 Filed 05/13/16 Page 4 of 10
Under the Oregon Constitution, Oregon voters retain the right of referendum to approve 

or reject legislation enacted by the Oregon legislature. Or. Const. art. IV,§ 1(3)(a) ("The people 

reserve to themselves the referendum power, which is to approve or reject at an election any Act, 

or pati thereof, of the Legislative Assembly that does not become effective earlier than 90 days 

after the end of the session at which the Act is passed."). "When a referendum is invoked, the act 

of the legislature then becomes merely a measure to be voted on by the people, and, if the people 

vote in the affirmative, the measure becomes an act; if they vote in the negative, the measure 

fails." Portland Pendleton 1\Jotor Transp. Co. v. Heltzel, 197 Or. 644, 647, 255 P.2d 124 (1953) 

(en bane); see also Davis v. Van Winkle, 130 Or. 304, 307, 278 P. 91 (1929) ("In fact, the 

measure enacted by the Legislature, which is referred to the people, is not a law. It will never 

become a law unless a majority of voters voting upon the referred bill vote in favor of the bill.").4 

Here, a referendum on SB 833 was called, and Oregon voters rejected Measure 88. As a result, 

SB 833 never became law and would not become law even if this Court invalidated the voters' 

rejection of Measure 88. 

In response, plaintiffs emphasize that SB 833 was "enacted" and "became law" after 

being passed by the Legislative Assembly and signed by the Governor, citing the language of the 

Oregon Constitution. Pis.' Opp'n at 5-7. Plaintiffs rely on constitutional text distinguishing 

4 Plaintiffs argue that Heltzel and Davis are inapposite because they were decided when 

the following language, since removed, was included in the Oregon Constitution: "any measure 

referred to the people shall take effect and become the law when it is approved by a majority of 

the votes cast thereon, and not otherwise." Former Or. Const. art. IV, § 1. Now, the language 

reads: "An initiative or referendum measure become effective 30 days after the day on which 

[the initiative] is enacted or [the referendum is] approved by the majority of the votes cast 

thereon." Or. Const. mi. VI§ 1(4)(d). This change in language does not alter or diminish, in any 

way, the citizens' referendum power under the Oregon Constitution and the requisite voter 

approval of a referendum measure. See generally Or. Const. art. IV,§ 1(1)-(5); see also Weston 

Deel. Ex. B at 2 (doc. 43) (explaining that changes to art. IV, § 1 simply "clean up" the language 

and do not "diminish the power of the people to initiate or refer measures"). 

5 - OPINION AND ORDER 

Case 6:15-cv-02069-AA Document 48 Filed 05/13/16 Page 5 of 10
"enactment" of an initiative measure from "approval" of a referendum measure, as well as 

language describing the "effective date" of a referendum measure, to argue that legislation 

referred to voters by a citizen petition is "enacted" when approved by the legislature. See Or. 

Const. art IV, § 1. To further their point, plaintiffs cite American Energy, Inc. v. City of Sisters, 

250 Or. App. 243, 280 P.3d 985 (2012), where the Oregon Court of Appeals held that legislation 

approved by citizen referendum is "enacted when it is adopted by the governing body ... and not 

when it is subsequently approved by the people." Id. at 251, 280 P.3d 985. Plaintiffs thus 

maintain that SB 833 was "enacted" and "became law" when approved by the legislature and the 

Governor, and it necessarily would become effective if this Court invalidates voters' rejection of 

Measure 88. Plaintiffs provide no persuasive legal authority for this novel proposition, and I find 

it unsupported by Oregon law. Regardless of whether SB 833 was "enacted" by the legislature, it 

never "became law." 

The Oregon Constitution makes clear that "referendum measures shall be submitted to the 

people as provided in this section and by law not inconsistent therewith." Or. Const. art. IV, § 

1(4)(b) (emphasis added). As noted by the Oregon Supreme Court, the right ofrcferendum was 

"was created to benefit the majority of the people by suspending operation of a statute until the 

people have an opportunity to approve or reject legislation." Bernstein Bros. v. Dep't of 

Revenue, 294 Or. 614, 619, 661 P.2d 537 (1983) (emphasis added); see also Hofjinan v. Pub. 

E111ployees Retire111ent Bd., 31 Or. App. 85, 94, 569 P.2d 701 (1977) ("Plaintiffs have confused 

the effect of a referendum, which does suspend the effective date of an act, and an initiative, 

which has no such effect.") (citing Or. Const. aii. IV, §§ 1(4)(d), 28) (emphasis added). 

Regardless of whether legislation is "enacted" when passed by the legislature, if a referendum is 

properly called, the legislation is suspended and does not become effective until approved by 

6 - OPINION AND ORDER 

Case 6:15-cv-02069-AA Document 48 Filed 05/13/16 Page 6 of 10
Oregon voters. Bernstein Bros., 294 Or. at 619, 661 P.2d 537; Heltzel, 197 Or. at 647, 255 P.2d 

124; Davis, 130 Or. at 307, 278 P. 91. 

Here, even if the Oregon legislature "enacted" SB 833, Oregon citizens successfully 

petitioned to refer SB 833 to voters. Plaintiffs do not challenge the petition under which the 

referendum was ordered or otherwise argue that the referendum process was flawed or invalid. 

Thus, once the referendum was called, operation of SB 833 was suspended pending the outcome 

of Measure 88; it could become effective as Oregon law only ifa majority of voters approved it 

by voting "yes" on Measure 88. See Or. Const. art. IV, § 1(4)(d) ("an initiative or referendum 

measure becomes effective 30 days after the day on which it is enacted or approved by a 

majority of the votes cast thereon"). It is undisputed that Oregon voters rejected Measure 88; 

thus, SB 833 never went into effect, and no law authorizes the State to grant driver cards. 

Invalidation of the Measure 88 vote would not change these salient facts. 

Consequently, this Court cannot order the State to comply with legislation that could not 

and would not become effective, and no ruling would redress plaintiffs' alleged injury. See 

}vfayjield v. United States, 599 F.3d 964, 972 (9th Cir. 2010) (finding no redressability where 

"the government will not be required to act in any way that will redress [the plaintiffs] past 

injuries" even if the challenged statutes "were declared unconstitutional"). Moreover, this Court 

has no authority to substitute the voter approval required by the Oregon Constitution and render 

SB 833 "effective" as valid Oregon law. Principles of federalism underlying the Tenth and 

Eleventh Amendments forbid this Court from directing the State to enact or enforce state laws. 

E.g., Printz v. United States, 521 U.S. 898, 919-20 (1997); New York v. United States, 505 U.S. 

144, 10155-56, 61 (1992); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). 

7 - OPINION AND ORDER 

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The cases relied on by plaintiffs are unavailing. Notably, American Energy addressed the 

issue of when an ordinance subsequently approved by referendum was enacted, not when it 

became effective. 250 Or. at 250-51, 280 P.3d 985 (distinguishing between the "effective date" 

and "enactment date" of the ordinance). The Oregon Court of Appeals in no way, shape, or form 

dispensed with the requirement of voter approval for a referendum measure to become law. 

Plaintiffs also cite Hunter v. Erickson, 393 U.S. 385 (1969) and City of Cuyahoga Falls v. 

Buckeye Community Hope Foundation, 538 U.S. 188 (2003) to support their argument. Both 

cases are distinguishable. 

In Hunter, citizens of Akron, Ohio passed an ordinance essentially suspending an existing 

ordinance granting equal opportunity in housing to "all persons" "regardless of race, color, 

religion, ancestry or national origin." 393 U.S. at 386-87. The citizen ordinance forbade the city 

council from enforcing the existing ordinance or any future ordinance dealing with housing 

discrimination unless approved by a majority of voters. Id. at 387, 390. Noting that the citizen 

ordinance targeted only "laws to end housing discrimination based on 'race, color, religion, 

national origin or ancestry'" and placed a "special burden on racial minorities within the 

governmental process," the Coutt found that the ordinance "constitutes a real, substantial, and 

invidious denial of the equal protection of the laws." Id. at 390-91, 393. Here, unlike Hunter, 

Oregon voters did not pass a referendum measure that targeted or placed a special burden on a 

distinct class of people; voters did not pass a measure at all. Further, the rejection of Measure 88 

did not suspend or repeal an existing law prohibiting discrimination based on race, ethnicity, or 

national origin, and it did not subject all future legislative acts dealing with immigration to the 

referendum process. Measure 88 was simply a citizen referendum seeking voter approval or 

rejection of SB 833, and voters rejected it. 

8 - OPINION AND ORDER 

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City of Cuyahoga Falls likewise fails to futther plaintiffs' claims. There, the City of 

Cuyahoga Falls submitted to voters a citizen referendum calling for the repeal of a housing 

ordinance authorizing construction ofa specific low-income housing project. 538 U.S. at 192-93. 

Voters passed the referendum and repealed the ordinance, though the City suspended 

ce11ification of the election results until resolution of pending litigation on the referendum. Id. 

Ultimately, the Ohio Supreme Court invalidated the referendum on grounds that only legislative 

acts - not administrative acts such as approving a site plan for a housing project - were subject to 

referendum. Id. at 193. In the meantime, plaintiffs filed suit in federal court alleging that City 

officials violated their equal protection rights by submitting the referendum petition to voters and 

refusing to issue building permits pending the election results. Id. Ultimately, the Supreme Court 

found that the plaintiffs failed to establish an equal protection violation, because in "placing the 

referendum on the ballot, the City did not enact the referendum and therefore cannot be said to 

have given effect to voters' allegedly discriminatory motives for supporting the petition." Id. at 

195. Further, the Court described the City's refusal to issue building permits while the 

referendum was pending as a "nondiscretionary, ministerial act" required by the city charter. Id. 

Plaintiffs cite Cuyahoga Falls for the proposition that it supports their challenge to the 

"substantive result" of Measure 88. To the contrary, the vote on Measure 88 had no "substantive 

result"; the measure did not pass. Just like the plaintiffs in Cuyahoga Falls, plaintiffs here do not 

challenge the referendum measure itself - nor, presumably, would they want to - because it never 

became effective to allow driver cards. Cf Cuyahoga Falls, 538 U.S at 196-97 ("[S]tatements 

made by decisionmakers or referendum sponsors during deliberation over a referendum may 

constitute relevant evidence of discriminatory intent in a challenge to an ultimately enacted 

initiative .... But respondents do not challenge an enacted referendum.") (emphasis added). 

9 - OPINION AND ORDER 

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In fact, Oregon voters approved no law that restricts or burdens plaintiffs' rights, such as 

the referenda in Hunter and Cuyahoga Falls. Instead, Oregon voters rejected Measure 88 and its 

extension of driving privileges to undocumented individuals, and no law authorizing driver cards 

went into effect. As such, the State defendants are not refusing to issue driver cards because a 

referendum motivated by discriminatory animus prevents them from doing so; they cannot issue 

driver cards because no valid, existing Oregon law authorizes them to do so.5 

Ultimately, even if the vote on Measure 88 was invalidated, SB 833 was never approved 

by Oregon voters and would remain ineffective. Moreover, this Court could not compel the State 

to issue driver cards, which is the relief plaintiffs ultimately seek. Accordingly, plaintiffs fail to 

establish the redressability requirement of standing. 

CONCLUSION 

Defendants' Motion to Dismiss (doc. 29) is GRANTED. Proposed intervenor-defendant's 

Motion to Intervene (doc. 27) is DENIED. All other pending motions are DENIED as moot, and 

this case is DISMISSED. 

IT IS SO ORDERED. 

Dated this~ of May, 2016. 

au1#Cllu 

Ann Aiken 

United States District Judge 

5 As a result, plaintiffs also fail to show that their injury is "fairly traceable" to the State 

defendants' alleged conduct to establish the causation element of standing. Davis v. Fed 

Election Comm 'n, 554 U.S. 724, 733 (2008). 

10 - OPINION AND ORDER 

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