S056096, Opinion — Pendleton School Dist. v. State of Oregon

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Argued and submitted October 8, 2008, decision of Court of Appeals affirmed in
part and reversed in part; judgment of circuit court affirmed in part and reversed
in part, and case remanded to circuit court for entry of a declaratory judgment
consistent with this opinion and for a declaration that Article VIII, section 8, of the
Oregon Constitution does not authorize the injunctive relief that plaintiffs sought
January 23, 2009

PENDLETON SCHOOL DISTRICT 16R;
Eugene School District 4J;
Crow-Applegate-Lorane School District 66;
Coos Bay School District 9; Corvallis School District 509J;
Josephine County Unit/Three Rivers School District;
Astoria School District 1C; Creswell School District;
Lincoln County School District; Siuslaw School District 97J;
Centennial School District; Amity School District 4J;
Reynolds School District #7; Coquille School District #8;
Parkrose School District #3; Pine Eagle School District #61;
Jefferson School District; Mckenzie School District;
Alexandra Kiesling and Timothy Kiesling, minors,
by Amy Cuddy, their guardian ad litem;
Grace Peyerwold, a minor,
by David and Maria Peyerwold, her guardians ad litem;
Marshall Taunton and Harrison Taunton, minors,
by Tim and Wendy Taunton, their guardians ad litem;
and Benjamin Sherman and Claire Sherman, minors,
by Larry Sherman and Diane Nichol, their guardians ad litem,
Plaintiffs-Appellants,
Petitioners on Review,

v.

STATE OF OREGON,
Defendant-Respondent,
Respondent on Review.

(CC 0603-02980; CA A133649; SC S056096)
200 P3d 133

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598

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CJS, Declaratory Judgments § 93.

# En Banc

On review from the Court of Appeals .*

James N. Westwood, Stoel Rives LLP, Portland, argued
the cause for petitioners on review. With him on the brief was
Robert D. Van Brocklin.

Jeff J. Payne, Assistant Attorney General, Salem, argued
the cause for respondent on review. With him on the brief
were Hardy Myers, Attorney General, and Mary H. Williams,
Solicitor General.

Michael T. Garone, and Sara Kobak, Schwabe, Williamson
& Wyatt, P.C., Portland, filed a brief on behalf of amicus
curiae Oregon Business Association.

Maureen Leonard and Charles R. Williamson, filed
a brief on behalf of amicus curiae Education Justice at
Education Law Center.

Rebekah R. Cook, filed a brief on behalf of amicus curiae
Oregon School Boards Association.

\* Appeal from Multnomah County Circuit Court, Christopher J. Marshall,
Judge. 220 Or App 56, 185 P3d 471 (2008).

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DE MUNIZ, C. J.

The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
affirmed in part and reversed in part, and the case is
remanded to the circuit court for entry of a declaratory judg-
ment consistent with this opinion and for a declaration that
Article VIII, section 8, of the Oregon Constitution does not
authorize the injunctive relief that plaintiffs sought.

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# DE MUNIZ, C. J.

Plaintiffs in this case are 18 school districts and
seven public school students. They filed this action against
the State of Oregon, seeking a declaratory judgment that
Article VIII, section 8, of the Oregon Constitution requires
that the legislature fund the Oregon public school system at
a level sufficient to meet certain quality educational goals
established by law and a mandatory injunction directing the
legislature to appropriate the necessary funds. The trial
court granted summary judgment against plaintiffs, and the
Court of Appeals affirmed. Pendleton School Dist. v. State of
Oregon, 220 Or App 56, 185 P3d 471 (2008). We allowed the
plaintiffs' petition for review, and now conclude that the leg-
islature has failed to fund the Oregon public school system at
the level sufficient to meet the quality education goals estab-
lished by law and that plaintiffs were entitled to a declara-
tory judgment to that effect. However, we also conclude that,
in adopting Article VIII, section 8, Oregon voters did not
intend to achieve the level of funding required in that consti-
tutional provision through judicial enforcement. Conse-
quently, we affirm in part and reverse in part the decision of
the Court of Appeals and the judgment of the trial court.

# FACTS AND PROCEDURAL BACKGROUND

The parties agree as to the facts. In the November
2000 general election, the voters of the state adopted Ballot
Measure 1, a constitutional amendment that became Article
VIII, section 8, of the Oregon Constitution. The relevant part
of Article VIII, section 8, provides:

"(1) The Legislative Assembly shall appropriate in
each biennium a sum of money sufficient to ensure that the
state's system of public education meets quality goals
established by law, and publish a report that either dem-
onstrates the appropriation is sufficient, or identifies the
reasons for the insufficiency, its extent, and its impact on
the ability of the state's system of public education to meet
those goals."1

1 Article VIII, section 8, also contains a second subsection that provides for
equalization grants to certain school districts. That subsection is not relevant to
the dispute here.

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The next year, the legislature acted to comply with
Article VIII, section 8. That legislation, Oregon Laws 2001,
chapter 895, identified certain preexisting statutes as setting
the pertinent quality goals for the public school system. Id. at
§ 5 (codified as amended at ORS 327.506). The legislation
also established a Quality Education Commission (QEC) to
determine the amount of funding needed to ensure that the
public school system met those goals. Id. at §§ 1, 2 (codified at
ORS 327.497 and codified as amended at ORS 327.500).2

In accordance with the reporting requirement of
Article VIII, section 8, the legislature also directed that a
report be prepared every biennium. Or Laws 2001, ch 895,
§ 7 (codified as amended at ORS 171.857). ORS 171.857 pro-
vides that the report shall "[d]emonstrate that the amount"
appropriated for the public school system "is the amount of
moneys as determined by the Quality Education Commission
\* ** that is sufficient to meet the quality goals." ORS
171.857(4)(a). Alternatively, the report shall

"[i]dentify the reasons that the amount appropriated for the
state's system of kindergarten through grade 12 public edu-
cation is not sufficient, the extent of the insufficiency and
the impact of the insufficiency on the ability of the state's
system of kindergarten through grade 12 public education
to meet the quality goals."

ORS 171.857(4)(b).

Historically, the legislature never has appropriated
the amounts designated by the QEC. For the 2003-05 bien-
nium, the QEC concluded that $6.995 billion was needed to
meet the quality goals established by law; the legislature
ultimately appropriated $4.9 billion. For the 2005-07 bien-
nium, the QEC concluded that $7.035 billion was needed to
meet the quality goals established by law; the legislature
appropriated just over $5.2 billion.3

2 The amounts determined by the QEC are not necessarily the final word; the
legislature specifically provided that it might decline to use the report. See Or Laws
2001, ch 895, § 7 (currently codified as ORS 171.857(5)) (if report of QEC is not
used, legislature must "identify the reasons for not using the report * * * and shall
outline an alternative methodology for making the findings required by section 8,
Article VIII"). Insofar as the record shows, however, the legislature has not exer-
cised that power.

3 In the legislative report mandated by Article VIII, section 8, the Joint Special
Committee on Public Education Appropriation stated:

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In March 2006, plaintiffs filed this action against the
state. Plaintiffs' amended complaint alleged that Article VIII,
section 8, required the legislature to appropriate enough
money in each biennium to ensure that the state's public
school system met the quality goals established by law. The
first claim for relief alleged that the legislature had failed to
appropriate that sum of money for the 2005-07 biennium and
that plaintiffs were entitled to a declaratory judgment that
that failure violated Article VIII, section 8.

A second claim for relief in plaintiffs' complaint also
sought a declaratory judgment, but under a different provi-
sion of the Oregon Constitution-Article VIII, section 3. That
section provides:

"The Legislative Assembly shall provide by law for the
establishment of a uniform, and general system of Common
schools."

Plaintiffs contended that Article VIII, section 3, required the
legislature to "appropriate funds sufficient to maintain an
adequate system of K-12 public schools," but the legislature
had not appropriated sufficient funds for the 2005-07
biennium.

In a third claim for relief, plaintiffs sought a man-
datory injunction "requiring defendants to appropriate for
the current biennium funding sufficient to provide the
Required Service Levels, i.e., the service levels that the
[QEC] determined were necessary to achieve quality goals
established by law."

The state moved for summary judgment, contending
that neither Article VIII, section 8, nor Article VIII, section 3,
required the legislature to appropriate more funds for the
public school system than already had been appropriated.
The state argued that the legislature could comply with
Article VIII, section 8, either by funding the public school sys-
tem sufficient to meet the quality goals or by explaining in a
report the reasons for the insufficient funding, the extent of

"It is the determination of the Joint Special Committee on Public Educa-
tion Appropriation that the amount of moneys appropriated for the 2005-2007
biennium for K-12 public education is insufficient to meet the recommended
funding levels of the Quality Education Commission."

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the insufficiency, and the effect that the insufficiency might
be expected to have on educational goals. The state further
contended that plaintiffs' claim under Article VIII, section 3,
was foreclosed by precedent from this court and the Court of
Appeals.

Plaintiffs opposed the state's motion for summary
judgment and responded with their own motion for partial
summary judgment. Plaintiffs contended that Article VIII,
section 8, unambiguously requires the legislature to provide
the level of funding that the public school system needs to
meet the quality educational goals established by law
because Article VIII, section 8, used the word "shall" in set-
ting out that requirement. The reporting requirement, plain-
tiffs argued, was a separate obligation, independent of the
mandatory duty to fund the public school system at the level
specified in the provision. Plaintiffs asserted that the state's
interpretation of Article VIII, section 8, which would allow
the legislature to fund the public school system below the
specified level if it published an appropriate report, thereby
rendering Article VIII, section 8, meaningless. As for Article
VIII, section 3, plaintiffs maintained that this court in con-
struing that provision had recognized an educational ade-
quacy requirement in Olsen v. State ex rel Johnson, 276 Or 9,
554 P2d 139 (1976), and they therefore were entitled to a
mandatory injunction under that provision, as well.

After hearing argument, the trial court granted the
state's motion for summary judgment and denied plaintiffs'
motion for partial summary judgment.

Plaintiffs appealed. In the Court of Appeals, the
state responded to plaintiffs' arguments on the merits, but it
also contended that the case was no longer justiciable. The
state asserted that the courts cannot enter a declaratory
judgment that has the effect of enjoining the legislature from
passing unconstitutional legislation in the future, citing
Tillamook Co. v. State Board of Forestry, 302 Or 404, 730 P2d
1214 (1986). The state also argued that plaintiffs' claim for
injunctive relief had become moot with the end of the 2005-07
biennium.

The Court of Appeals first addressed the state's jus-
ticiability argument. Pendleton School Dist., 220 Or App at

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63-67. The court concluded that Tillamook was distinguish-
able because that case had involved only the possibility of
future legislation. Id. at 63-64. The court agreed that plain-
tiffs' claim for injunctive relief for the 2005-07 biennium was
moot because that biennium had ended. Id. at 66. However,
the court held that the claim for declaratory judgment as to
the 2005-07 biennium was not moot because plaintiffs had
alleged continuing harm from the underfunding during that
biennium. Id. at 66-67.

The Court of Appeals then turned to the merits. The
court first rejected plaintiffs' claim that Article VIII, section
3, mandated any particular level of funding for the public
school system. In a prior case, the Court of Appeals had con-
cluded that Article VIII, section 3, was concerned with unifor-
mity in education, not funding. Id. at 67-68 (citing Sherwood
School Dist. 88J v. Washington Cty. Ed., 167 Or App 372,
382, 6 P3d 518, rev den, 331 Or 361 (2000)). That precedent,
the court held, foreclosed plaintiffs' Article VIII, section 3,
argument.

The Court of Appeals then turned to plaintiffs'
Article VIII, section 8, argument. On appeal, plaintiffs had
renewed their argument that the use in Article VIII, section
8, of the word "shall" made the funding requirement a com-
mand to the legislature to fund the public school system at a
specified level, while the use of the word "and" before the
phrase "publish a report" demonstrated that the reporting
requirement was a separate legislative obligation. Id. at 69-
70. The Court of Appeals concluded, however, that the
requirement that the legislature report that the funding was
below the specified level nonetheless recognized the possibil-
ity that, on occasion, the funding may be insufficient. Id. at
70. In that court's view, plaintiffs' interpretation of Article
VIII, section 8, would nullify the implicit recognition in that
provision that funding, from time to time, may be insuffi-
cient. Id. at 70, 72. Although Article VIII, section 8, did use
the words "shall" and "and," the court concluded that the
usual sense of those words was not dispositive because those
terms derived their meaning from context. Id. at 70-72. In the
context of Article VIII, section 8, the court concluded:

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"[T]he word 'and' separating the two legislative obliga-
tions-to fund and to report-must be used in a disjunctive
sense[,] and * * * the word 'shall' was, as a result, intended
to be permissive."

Id. at 70 (emphasis in original). The Court of Appeals there-
fore affirmed the judgment of the trial court.

As noted, we allowed plaintiffs' petition for review.

## JUSTICIABILITY

Before we consider the merits of plaintiffs' claims, we
first must address whether the issues presented here remain
justiciable. The state notes that plaintiffs sought relief
as to education funding for (1) the 2005-07 biennium, and
(2) future biennia. The state contends that the issues regard-
ing the 2005-07 biennium are now moot because that bien-
nium has ended. As for future biennia, the state asserts that
Tillamook stands for the proposition that the judicial branch
cannot enjoin the legislature from passing unconstitutional
legislation in the future and, therefore, all plaintiffs' claims
are nonjusticiable.

This court has summarized the requirements for jus-
ticiability in the context of a declaratory judgment action as
follows:

"Justiciability is a vague standard but entails several defi-
nite considerations. A controversy is justiciable, as opposed
to abstract, where there is an actual and substantial contro-
versy between parties having adverse legal interests. The
controversy must involve present facts as opposed to a dis-
pute which is based on future events of a hypothetical issue.
A justiciable controversy results in specific relief through a
binding decree as opposed to an advisory opinion which is
binding on no one. The court cannot exercise jurisdiction
over a nonjusticiable controversy because in the absence of
constitutional authority, the court cannot render advisory
opinions."

Brown v. Oregon State Bar, 293 Or 446, 449, 648 P2d 1289
(1982) (citations omitted).

The state does not dispute that this case involves
an actual and substantial controversy, or that the parties
have adverse legal interests. Instead, the state's argument

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appears to be that a challenge to future budget legislation
involves hypothetical future events, not present facts. The
state also appears to maintain that the courts cannot grant
specific relief through a binding decree, but instead merely
would be issuing an advisory opinion; as applied to the facts
here, it contends that no relief is available for the underfund-
ing in the 2005-07 biennium, while Tillamook prohibits the
courts from granting relief as to future biennia.

We conclude that two cases demonstrate why
the state's justiciability argument is flawed. In Brown, the
Attorney General had filed a declaratory judgment action in
circuit court, challenging the Oregon State Bar's opinion that
it would violate legal ethics rules for the Attorney General to
give legal advice ex parte to an agency director and hearings
officer in a contested case (the Attorney General, in fact, had
given legal advice under those circumstances). This court
concluded that the matter was justiciable:

"While the controversy arises from advisory [ethics] opin-
ions [by the Bar], the substance of the controversy concerns
the interpretation of a statute. The court is requested
to consider a specific set of facts-whether plaintiff [the
Attorney General] may give advice upon request to agen-
cies in contested cases where plaintiff's office is not involved
in the case, agency rules do not prohibit the conduct[,] and
the recipient does not have authority to issue binding
orders. The controversy involves present facts, the plain-
tiff's existing statutory duty."

293 Or at 450.

Similarly, in Savage v. Munn, 317 Or 283, 856 P2d
298 (1993), the plaintiffs had contended that Ballot Measure
5 (1990), which became Article XI, section 11b, of the Oregon
Constitution, violated the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution.
This court concluded that the matter was justiciable:

"Plaintiffs here are complaining of the manner in which
their taxes are capped under Measure 5. The workings of
Measure 5 are 'present facts,' not simply possible future
events. A binding decree would have the effect of invali-
dating the proportional reduction scheme contained in

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[Measure 5]. Such an outcome would hardly be an advisory
opinion."

Id. at 292 (footnote omitted). This court added that, while the
record was not clear, "it appears that, at least as to Lear [one
of the plaintiffs], Measure 5 has had some cognizable effect."
Id. at 292 n 6.

We conclude that both Brown and Savage are analo-
gous to the situation here, and they establish that the pres-
ent matter is justiciable. The issue whether Article VIII, sec-
tion 8, imposes a duty on the legislature to fund the public
school system at a specified level every biennium presents a
set of present facts regarding the interpretation of a consti-
tutional provision; it is not simply an abstract inquiry about
a possible future event. See Savage, 317 Or at 292 ("The
workings of Measure 5 are 'present facts,' not simply possible
future events."); Brown, 293 Or at 450 ("present facts" were
"plaintiff's existing statutory duty" in particular factual con-
text). Compare Tillamook, 302 Or at 413 (matter not justici-
able when parties sought declaratory judgment to prohibit
speculative future legislation, as that would be advisory opin-
ion). We turn, then, to plaintiffs' claims.

# ARTICLE VIII, SECTION 8

The first issue presented involves the meaning of
Article VIII, section 8. Because the voters adopted that sec-
tion through the initiative process, we seek to determine the
intent of the voters in adopting it. Ecumenical Ministries v.
Oregon State Lottery Comm., 318 Or 551, 559, 871 P2d 106
(1994).

" "The best evidence of the voters' intent is the text of the
provision itself. The context of the language of the ballot
measure may also be considered; however, if the intent is
clear based on the text and context of the constitutional pro-
vision, the court does not look further.'"

Id. (footnote omitted) (quoting Roseburg School Dist. v. City
of Roseburg, 316 Or 374, 378, 851 P2d 595 (1993)).

Pursuant to our methodology, we begin with the text
of Article VIII, section 8. Again, Article VIII, section 8, pro-
vides, in part:

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"(1) The Legislative Assembly shall appropriate in
each biennium a sum of money sufficient to ensure that the
state's system of public education meets quality goals
established by law, and publish a report that either dem-
onstrates the appropriation is sufficient, or identifies the
reasons for the insufficiency, its extent, and its impact on
the ability of the state's system of public education to meet
those goals."

Plaintiffs contend that the word "shall" in Article
VIII, section 8, imposes an absolute duty on the legislature to
appropriate a specified level of funding for the public school
system. Plaintiffs also contend that the word "and" before the
reporting requirement means that the legislature also has a
duty to report on its actions. Plaintiffs argue, however, that
the duty to report is separate from, rather than a qualifica-
tion of, the otherwise apparently mandatory duty to fund the
public school system at the specified level. They analogize the
reporting requirement to a tax return: Just as filing an accu-
rate tax return does not relieve the taxpayer of the obligation
to pay the taxes due, the legislature's report that it failed to
fund the public school system at the constitutionally specified
level does not relieve the legislature from the obligation to
provide the specified level of funding. Finally, plaintiffs
argue that that funding obligation, as they have construed it,
is legally enforceable by judicial action.

As noted, the Court of Appeals rejected that reading
of Article VIII, section 8. It concluded that "the word 'shall'
was * * * intended to be permissive," concluding that, in this
context, "shall" means "may." Pendleton School Dist., 220 Or
App at 70-72. That, we think, goes too far. We agree that
"shall" may carry a number of meanings, depending on its
context. See Bryan A. Garner, A Dictionary of Modern Legal
Usage 939-41 (2d ed 1995) (identifying eight different shades
of meaning for "shall," including one that is permissive).
However, in considering the text of Article VIII, section 8, we
cannot agree that "shall" means "may." The voters did not
intend to give the legislature permission to fund the public
school system at a constitutionally specified level. Instead,
Article VIII, section 8, uses "shall" as a directive or a com-
mand that states a requirement. Read in isolation, the first
part of Article VIII, section 8, requires the legislature to

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"appropriate in each biennium a sum of money sufficient to
ensure that the state's system of public education meets qual-
ity goals established by law." We therefore agree with plain-
tiffs' reading of the first part of Article VIII, section 8.

That said, however, we cannot ignore the other part
of Article VIII, section 8. That part requires publication of "a
report" by the legislature that either (1) asserts that the leg-
islature sufficiently has funded the public school system (and
explains why the legislature believes that to be true); or
(2) acknowledges that the funding falls short of the constitu-
tional goal, but explains the legislature's reason for choosing
the lower level of funding and the extent and impact of the
insufficiency. The existence of the reporting requirement
demonstrates that Article VIII, section 8, contemplates the
possibility that the legislature might not fund the public
school system at the constitutionally specified level in a par-
ticular biennium.

Thus, the text of Article VIII, section 8, presents two
seemingly contradictory concepts. On the one hand, Article
VIII, section 8, directs the legislature to fund the public
school system at a specified level. On the other hand, Article
VIII, section 8, contemplates the possibility that the public
school system will not be funded at the specified level and
that the insufficiency would remain. The text of Article VIII,
section 8, does not explain how to reconcile the two.

If the voters' intent is unclear from the text and con-
text of an initiated constitutional provision, we turn to the
provision's history. See, e.g., Shilo Inn v. Multnomah County,
333 Or 101, 117, 36 P3d 954 (2001), modified on recons on
other grounds, 334 Or 11, 45 P3d 107 (2002) (if doubt remains
as to meaning of initiated or referred constitutional provi-
sion, "the court will consider the history * * * in an effort to
resolve the matter"); Ecumenical Ministries, 318 Or at 560,
560 n 8 (noting that court will consider history "if legislative
intent remains unclear after an examination of text and con-
text"). In this case, we have considered the historical materi-
als proffered by the parties. We find nothing in them indicat-
ing how we are to resolve the conflict in Article VIII, section
8, between the directive to fund the public school system at a

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constitutionally specified level and the reporting require-
ment's apparent acceptance of the idea that the public school
system may not be funded at that level.

The parties have attempted to harmonize the two
seemingly contradictory provisions found within Article VIII,
section 8. Each side does so, however, by ignoring one provi-
sion: Plaintiffs emphasize the funding requirement at the
expense of the reporting requirement, while the state empha-
sizes the reporting requirement at the expense of the funding
requirement. Unlike the parties, we are not free to ignore any
part of Article VIII, section 8. We must give due regard to all
provisions, not some of them.

In this particular case, we are mindful of our obliga-
tion to determine what the law is. See Marbury v. Madison,
5 US (1 Cranch) 137, 177, 2 L Ed 60 (1803) (Marshall, C. J.)
("It is, emphatically, the province and duty of the judicial
department to say what the law is."). In announcing what the
law is, however, we are not authorized to grant relief that is
inconsistent with the provisions of Article VIII, section 8. And
it is the distinction between determining what the law is and
forging some form of relief under that law that demonstrates
how we must reconcile the two parts of Article VIII, section 8.
We can give due regard to both provisions by individually
evaluating each particular form of relief that plaintiffs have
requested and determining whether that relief is consistent
with both parts of Article VIII, section 8. If a requested form
of relief is inconsistent with either provision, then that form
of relief is not available. If the requested relief is consistent
with both parts, then the courts may grant it.

Here, plaintiffs sought a declaratory judgment and
injunctive relief. As to its declaratory judgment claim, plain-
tiffs requested two different determinations:

"(i) the Legislature must abide by the Oregon Constitution
and appropriate in each biennium a sum of money suffi-
cient to ensure that the state's system of K-12 public edu-
cation meets the quality goals established by law, and
(ii) the Legislature has failed to appropriate a sum of money
sufficient to ensure, for the 2005-07 biennium, that the
state's system of K-12 public education meets the quality
goals established by law."

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Plaintiffs also sought an injunction that would require the
legislature to fund the public school system at the level spec-
ified in Article VIII, section 8.4

We conclude that the courts may grant a declaratory
judgment that the legislature failed to fully fund the public
school system, if that is the case. A declaration to that effect
would be consistent with the first provision of Article VIII,
section 8, which directs the legislature to appropriate funds
sufficient to meet legislatively established goals. Conversely,
a declaration that funding is insufficient is not inconsistent
with the reporting requirement of Article VIII, section 8,
which requires the legislature itself to admit any underfund-
ing. Because the state admits that the legislature failed to
fund the public school system for the 2005-07 biennium at the
levels required by Article VIII, section 8, we can determine
and declare that the legislature failed to act in accordance
with the constitutional mandate. The trial court should have
entered a declaratory judgment on that limited ground.

We conclude, however, that the courts cannot grant
the other forms of relief requested by plaintiffs. Plaintiffs also
sought a declaratory judgment that the legislature must fund
the public school system in each biennium at the levels
required by Article VIII, section 8, as well as an injunction
requiring the legislature to fund the public school system at
those levels. Those forms of relief are consistent with the first
provision of Article VIII, section 8, which requires the legis-
lature to appropriate sufficient funds to meet the quality
goals established by law. They are not, however, consistent
with the reporting provision of Article VIII, section 8, as we
will explain.

\+ The parties dispute whether plaintiffs' request for injunctive relief is moot.
The Court of Appeals concluded that it was. Pendleton School Dist. v. State of
Oregon, 220 Or App 56, 66, 185 P3d 471 (2008) ("Because any exercise of authority
by this court directing action with regard to the 2005-07 biennium can have no
practical effect on the parties, the claim for injunctive relief is moot."). We disagree.
Plaintiffs posit that Article VIII, section 8, requires the legislature to fund public
education at a specific level each biennium and they seek a declaration to that
effect. The state denies that the constitutional provisions can be complied with only
in that way. Thus, there is a concrete, present, and ongoing dispute between the
parties as to what the constitution requires the legislature to do, and a declaration
of the answer will affect legislative choices in the present legislative session and
those to come. Plaintiffs are thus entitled to maintain this proceeding and to seek
injunctive relief.

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The reporting provision of Article VIII, section 8 con-
templates the possibility that the legislature will not fund the
public school system at the legislatively specified level in a
particular biennium and provides that, in that instance, the
legislature will report its failure to the public. The report is
not simply an admission that funding is insufficient; instead,
Article VIII, section 8, directs that the report must "iden-
tify[y] the reasons for the insufficiency, its extent, and its
impact on the ability of the state's system of public education
to meet those [specified educational] goals." By requiring the
legislature to explain its failure to meet the constitutional
directive, Article VIII, section 8, negates plaintiffs' claim that
the duty to fund the public school system at a certain level is
enforceable by the injunction that plaintiffs seek. If the
courts were to enforce the funding of the public school system
at the level identified by Article VIII, section 8, then it would
not matter what the legislature's reasons were for failing to
do so. If the courts were to enforce the funding of the public
school system at the specified level, then the deficiency could
not "impact * * * the ability of the state's system of public
education to meet those [specified educational] goals,"
because the courts would not permit the deficiency to
continue.5

A declaration or injunction requiring the legislature
to fund the public school system at the levels required by
Article VIII, section 8, thus would not be consistent with the
reporting requirement. Therefore, Article VIII, section 8,
does not permit a declaration or injunctive relief of the kind
that plaintiffs seek here.6

We conclude that the trial court should have granted
partial summary judgment for plaintiffs as to the part of
their declaratory judgment claim that sought a determina-
tion that the legislature had failed to fund the public school
system at the level specified in Article VIII, section 8. We

5 The specifics of the reporting requirement also show why plaintiffs' analogy
to tax returns fails. Tax returns do not ask the taxpayer to explain why he or she
failed to pay taxes, or to estimate how his or her missing taxes will hurt govern-
ment revenues, because that information is irrelevant. Tax returns are concerned
with whether the taxpayer owes taxes, not with why the taxpayer did not pay them.

6 We do not address other circumstances under which injunctive relief might
be sought (e.g., if the legislature failed entirely to publish a report).

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reverse that part of the trial court's judgment and the con-
trary decision of the Court of Appeals. We otherwise affirm
the grant of summary judgment for the state. As a conse-
quence, the court's judgment should declare that Article VIII,
section 8, does not authorize the injunctive relief that plain-
tiffs sought.

# ARTICLE VIII, SECTION 3

In their second claim for relief, plaintiffs contended
that Article VIII, section 3, of the Oregon Constitution
"implies that * * * schools must be adequate to educate the
children they serve." They maintain that Article VIII, section
3, requires the legislature to "appropriate funds sufficient to
maintain an adequate system of K-12 public schools."

Plaintiffs first argue that Article VIII, section 3,
incorporates the quality goals established by the legislature
under Article VIII, section 8. We reject that argument.
Article VIII, section 8, requires funding to meet the quality
goals established by law, but it also includes a reporting
requirement. As we have explained, that reporting require-
ment expressly contemplates that funding may not be suffi-
cient to meet the quality goals. Under plaintiffs' argument,
Article VIII, section 3, would prohibit insufficient funding to
meet the goals established under Article VIII, section 8,
regardless of the reporting requirement. The voters enacted
the whole of Article VIII, section 8; they cannot have expected
or intended that the preexisting Article VIII, section 3, would
immediately render the reporting requirement a nullity.

Alternatively, plaintiffs suggest that Article VIII,
section 3, includes its own separate requirement of funding to
maintain an adequate system of public schools. On review,
plaintiffs point to the failure of the legislature to fund the
quality goals under Article VIII, section 8, as evidence that
the legislature did not adequately fund the schools under
Article VIII, section 3. We turn to that question.

Article VIII, section 3, was adopted as part of the orig-
inal Oregon Constitution of 1857. Our methodology for inter-
preting original constitutional provisions is somewhat differ-
ent from that used to analyze constitutional amendments
adopted by initiative petition or legislative referral. See

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Stranahan v. Fred Meyer, Inc., 331 Or 38, 56-57, 11 P3d 228
(2000) (noting difference). For original provisions, we seek
" 'to ascertain and give effect to the intent of the framers [of
the provision at issue] and of the people who adopted it.'" Id.
at 54 (quoting Jones v. Hoss, 132 Or 175, 178, 285 P 205
(1930) (alteration in Stranahan)). In analyzing an original
constitutional provision, we consider "[i]ts specific wording,
the case law surrounding it, and the historical circumstances
that led to its creation." Priest v. Pearce, 314 Or 411, 415-16,
840 P2d 65 (1992).

We begin with the wording of Article VIII, section 3.
The text provides:

"The Legislative Assembly shall provide by law for the
establishment of a uniform, and general system of Common
schools."

As can be seen, Article VIII, section 3, does not use the word
"adequate." Article VIII, section 3, requires "[c]ommon
schools" in a "system" that is "uniform" and "general."7

"Common schools" was a synonym for public or free
schools, as attested by a variety of sources roughly contem-
poraneous with the framing of the Oregon Constitution in
1857. See, e.g., Alexander M. Burrill, 1 Law Dictionary and
Glossary 328 (2d ed 1867) (noting that "common schools" are
"[o]therwise termed public schools, and free schools"); James
Kent, 2 Commentaries on American Law *196-202 (3d ed
1836) (using the terms "common schools" and "public schools"
interchangeably); Jenkins v. Andover, 103 Mass 94, 98 (1869)
("The words 'public schools' are synonymous with 'common
schools,' in the broadest sense * * *. "); Powell et al. v. Board of
Education, 97 Ill 375, 379 (1881) (noting that "the legislature,
from its earliest action on the subject of schools, seems to
have used the words 'free schools,' and 'common schools,'
interchangeably"); School Dist. No. 20 v. Bryan, 51 Wash 498,

" The applicable contemporaneous definition of the adjective "uniform" was
"[o]f the same form with others; consonant; agreeing with each other; conforming to
one rule or mode." Noah Webster, 2 An American Dictionary of the English
Language (1828). The applicable contemporaneous definition of the adjective
"general" was "[h]aving a relation to all; common to the whole." Noah Webster,
1 An American Dictionary of the English Language (1828). Neither term estab-
lishes any educational standards.

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504, 99 P 28, 30 (1909) ("[A] common school, within the mean-
ing of our Constitution, is one that is common to all children
of proper age and capacity, free, and subject to, and under the
control of, the qualified voters of the school district.").

The term "common school" also had implications
beyond the fact that the school did not charge tuition; it car-
ried with it the connotation of a basic education. However,
any meaning beyond that of a basic education was subject to
dispute. Some authorities suggested that a "common school"
meant only elementary school education. E.g., Charles Abner
Howard, A History of High School Legislation in Oregon to
1910, 24 Or Hist Q 201, 208 n 15 (1923) (" 'Common school' as
used by the laity, means the grades below those ordinarily
included in high school."); Burrill, 1 Law Dictionary at 328
(defining "common schools" as "[s]chools for the elementary
instruction of children of all classes; schools for general ele-
mentary education").

Most courts of the era, however, rejected the idea
that the term "common school" was limited to an elementary
school education, although they did not identify the exact
nature of the education that might be provided above that
basic level. In 1883, the Missouri Supreme Court stated:

"The term 'common' when applied to schools, is used to
denote that they are open and public to all, rather than to
indicate the grade of the school or what may or may not be
taught therein."

Roach v. The Board of President and Directors of the St. Louis
Public Schools, 77 Mo 484, 485-88 (1883) (rejecting argument
that common schools may lawfully teach only "the rudiments
of an English education"). A few years earlier, the Illinois
Supreme Court had noted that there was no agreement as to
what the common school curriculum should include:

"The phrase, 'a common school education' is one not easily
defined. One might say that a student instructed in read-
ing, writing, geography, English grammar and arithmetic
had received a common school education, while another
who had more enlarged notions on the subject might insist
that history, natural philosophy and algebra should be
included. It would thus be almost impossible to find two

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persons who would in all respects agree in regard to what
constituted a common school education."

Richards v. Raymond, 92 Ill 612, 617 (1879) (rejecting argu-
ment that high school was not common school). In 1881, the
Illinois Supreme Court stated:

"Without being able to give any accurate definition of a
'common school,' it is safe to say the common understanding
is, it is a school that begins with the rudimental elements of
an education, whatever else it may embrace, as contradis-
tinguished from academies or universities devoted exclu-
sively to teaching advanced pupils in the classics, and in all
the higher branches of study usually included in the curric-
ulum of the colleges."

Powell, 97 Ill at 378 (rejecting argument that teaching of
German language constituted misappropriation of common
school funds). See also Jenkins, 103 Mass at 97 (" 'Public
schools,' as those words are used in the Constitution and laws
of Massachusetts, are not limited to schools of the lowest
grade.").

The wording of Article VIII, section 3, thus indicates
that the term "common school" means public or free school.
The term also carries with it the idea of a basic or minimally
adequate education. However, the wording of Article VIII,
section 3, does not carry with it specific educational stan-
dards beyond a basic education.

As noted, when interpreting an original constitu-
tional provision we also examine our prior case law. Plaintiffs
contend that Olsen held that Article VIII, section 3, contains
an adequate funding requirement. In that case, this court
stated:

"We are of the opinion that Art VIII, § 3, is complied
with if the state requires and provides for a minimum of
educational opportunities in the district and permits the
districts to exercise local control over what they desire, and
can furnish, over the minimum."

Id. at 27. Olsen's reference to "a minimum of educational
opportunities" comports with what we have discerned from
the wording of the provision.

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Plaintiffs concede that no other decision by this court
has addressed whether Article VIII, section 3, imposed edu-
cational standards. We have conducted an independent
search, but we have not located any other such cases.

Plaintiffs do not address the history behind Article
VIII, section 3. Nevertheless, we have reviewed the history of
Article VIII, section 3, and we find nothing that would indi-
cate that the framers associated any more specific meaning
with the term "common school."8

We conclude that the wording of Article VIII, section
3, requires the legislature to establish free public schools that
will provide a basic education. We agree that Article VIII,
section 3, requires that the legislature provide a "minimum of
educational opportunities." Olsen, 276 Or at 27. However, the
legislature's failure to fund the public schools sufficient to
meet the quality goals established by law does not demon-
strate that the legislature has ipso facto failed to provide a
minimum of educational opportunities. Moreover, plaintiffs'
allegations that insufficient funding has produced a number
of negative conditions in the public schools that they describe
as "inadequate" are insufficient to claim that the public edu-
cation system is no longer uniform. We conclude that the trial
court correctly granted summary judgment to the state on
plaintiffs' Article VIII, section 3, claim.

# CONCLUSION

In conclusion, we agree with plaintiffs that Article
VIII, section 8, by its terms, directs the legislature to provide

8 As originally introduced, Article VIII, section 3, appears to have been derived
from the Wisconsin Constitution, Article X, § 3 (1848). See Claudia Burton,
A Legislative History of the Oregon Constitution of 1857-Part III (Mostly
Miscellaneous: Articles VIII-XVIII), 40 Willamette L Rev 225, 236 n 50 (2004) (so
attributing section 3); but see The Oregon Constitution and Proceedings and
Debates of the Constitutional Convention of 1857, 477 (Charles Henry Carey, ed.
1926) (attributing section 3 to Iowa Constitution, Art IX, § 3 (1846)). The draft sec-
tion provided:

"The Legislature may provide by law for the establishment of a uniform
and general system of common schools which schools shall be free and without
charge for tuition to all children between the ages of four & twenty years-and
the instruction in such schools Shall be free from party or sectarian bias."

Id. at 250. The framers later changed "may" to "shall," and struck all of the draft
text after the words "common schools." Id. at 251-52.

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funding sufficient for the public schools to meet quality goals
established by law. As we have explained, we conclude that
the trial court should have entered a declaratory judgment
on the limited ground that the legislature failed to fund the
public school system at the level specified in Article VIII, sec-
tion 8. We also conclude, however, that plaintiffs were not
entitled to a broader declaratory judgment and that the
court's judgment should declare that Article VIII, section 8,
does not authorize the injunctive relief that plaintiffs sought.
Finally, we also conclude that plaintiffs have not alleged any
deficiencies in the funding for the public school system that
place it below the standards that Article VIII, section 3,
imposes.

The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court is
affirmed in part and reversed in part, and the case is
remanded to the circuit court for entry of a declaratory judg-
ment consistent with this opinion and for a declaration that
Article VIII, section 8, of the Oregon Constitution does not
authorize the injunctive relief that plaintiffs sought.