Armatta v. Kitzhaber
| Citation | 149 Or.App. 498,943 P.2d 634 |
| Decision Date | 23 April 1997 |
| Docket Number | C-14060 |
| Parties | Judith ARMATTA, Sheriff Stan Robson, Sidney I. Lezak, Stephen Kanter, Jean Tate, Kathleen Hagberg and Linda Eyerman, Appellants-Cross-Respondents, v. John KITZHABER, Governor of the State of Oregon, Phil Keisling, Secretary of State, and the State of Oregon, Respondents-Cross-Appellants. 96; CA A96736. . On respondents--cross-appellants' Motion to Stay or Modify the Circuit Court's Injunction |
| Court | Court of Appeals of Oregon |
Hardy Myers, Attorney General, Virginia L. Linder, Solicitor General, and Rives Kistler, Assistant Attorney General, for motion.
Thomas M. Christ, Carl R. Neil and Katherine A. McDowell, Portland, contra.
Before LANDAU, P.J., DEITS, C.J., and ARMSTRONG, J.
Defendants move for a stay pending appeal of the injunction entered as part of the judgment in this case. The judgment enjoins defendants from "enforcing or attempting to enforce section 2 of [1996] Ballot Measure 40" ("Section 2"). We allow the motion.
On November 5, 1996, the voters enacted Ballot Measure 40, amending the Oregon Constitution to add, among other things, the following provision, denominated as Section 2:
"The rights conferred on victims by this section shall be limited only to the extent required by the United States Constitution; Section 9, Article I and Section 12 Article I of this Constitution shall not be construed more broadly than the United States Constitution and in criminal cases involving a victim, the validity of prior convictions shall not be litigated except to the extent required by the United States Constitution."
(Boldface in original.) On February 19, 1997, the Marion County Circuit Court issued a declaratory judgment that "Section 2 of Ballot Measure 40 is a revision of the constitution in violation of Article XVII, section 1, of the Oregon Constitution." As part of the judgment, the court enjoined defendant Governor John Kitzhaber "and his subordinates and the State and its subdivisions" from enforcing or attempting to enforce Section 2. Defendants moved the trial court to clarify who was bound by the injunction and further asked it to stay the injunction pending appeal. The trial court denied both motions.
Meanwhile, circuit courts in several other counties have rejected the same constitutional challenges to Section 2 that the Marion County Circuit Court accepted. Nevertheless, defense counsel in those counties have asserted that the state--through the local district attorneys--is subject to the Marion County Circuit Court's injunction and consequently cannot attempt to enforce Section 2 in those counties, notwithstanding the prior court decisions upholding the validity of the enactment. Similarly, it has been asserted that district attorneys risk sanctions for contempt if they so much as assert the validity of Section 2 in circuit courts that have not yet addressed the matter.
We have inherent authority to grant defendants' motion to stay the injunction. State ex rel. McKinley Automotive v. Oldham, 283 Or. 511, 516, 584 P.2d 741 (1978). In determining whether to exercise that discretion, we examine the nature of the injunction and evaluate the relative hardship to the parties and the extent to which irreparable harm will occur in the absence of a stay. Id.; see also Blair v. Blair, 199 Or. 273, 287, 247 P.2d 883 (1952).
Turning to the injunction at issue in this case, it is frankly difficult to determine what it means. It purports to apply to the state "and its subdivisions," when it is not certain that those subdivisions were parties to the action. See ORCP 79 D (injunctions binding only on parties to an action). Indeed, read literally, the injunction precludes this court even from deciding this motion, which makes no sense. The injunction further purports to enjoin defendants from enforcing or attempting to enforce Section 2 of Ballot Measure 40, when that section expresses little more than a rule of construction for the courts to apply in determining the meaning of relevant provisions of the Oregon Constitution. So far as we can tell, what the injunction appears to contemplate in substance is that the defendants conduct their affairs in the investigation and prosecution of crimes by invoking and applying only the law as it existed before the adoption of Ballot Measure 40 and that they refrain from invoking or applying either Section 2 or the construction of other laws that Section 2 requires.
Defendants contend that plaintiffs will suffer no irreparable harm if the trial court's injunction is stayed, while the harm to defendants will be substantial and irreparable. According to defendants, failure to stay the injunction would subject district attorneys around the state to the risk of contempt for so much as arguing the validity of Section 2, even in courts that already have concluded that Ballot Measure 40 is constitutional; even if that is not the case, the injunction creates the potential for confusion among the trial courts concerning the law that applies to investigations and prosecutions during the pendency of the appeal and the extent to which certain arguments even can be asserted concerning that law. 1 Plaintiffs reply that failure to reject the motion for a stay "would substantially diminish plaintiffs' freedom from governmental intrusions on their privacy." According to plaintiffs, those consequences flow from the fact that the Fourth Amendment generally permits a wider range of searches than does the Oregon Constitution. In support of their argument, plaintiffs rely on Cornelius v. City of Ashland, 12 Or.App. 181, 506 P.2d 182, rev. den. (1973).
We find plaintiffs' argument unpersuasive. The harm about which they complain is entirely speculative in nature. Their reliance on Cornelius for the proposition that such potential harm is sufficient to justify denying a stay is misplaced; Cornelius held that threatened harm is sufficient to confer standing to request a declaratory judgment. Id. at 188-89, 506 P.2d 182. That is an entirely different matter. Moreover, any harm that comes to fruition is subject to legal remedy: If Section 2 ultimately is declared to be unconstitutional, the law affords remedies by way of exclusion of evidence, reversals of convictions and civil liability in tort as the circumstances warrant. In contrast, the harm to defendants is more immediate: District attorneys already have been put in the position of risking contempt. That puts the law enforcement community in an untenable situation. 2 Moreover--indeed, applying plaintiffs' own reasoning--it follows that the effect of requiring prosecutors, in essence, to ignore Ballot Measure 40 during the pendency of the appeal requires them to forgo prosecutions that otherwise might be worthy of pursuit. Should Section 2 ultimately be upheld, there is no way to revive those forgone prosecutions.
The dissent complains that our exercise of our inherent authority to grant the stay of the injunction is unnecessary, because the declaration that Section 2 is unconstitutional will remain in effect. We are not persuaded. The injunction, as we have noted, purports to constrain the actions and authority of persons and entities that arguably are not even parties to this action. Plainly, staying the injunction in this case is not a superfluous action.
We conclude that, in the exercise of our inherent authority, it is appropriate to stay the injunction. Defendants' motion therefore is granted, and the trial court's injunction is stayed.
Motion granted; injunction stayed pending appeal.
The trial court issued a judgment declaring that section 2 of 1996 Ballot Measure 40 revised the constitution in violation of Article XVII, section 1, of the Oregon Constitution. It also enjoined the Governor and his subordinates and the State of Oregon and its subdivisions from "enforcing or attempting to enforce section 2 of Ballot Measure 40." Defendants appealed from that judgment and now move this court to stay or modify the injunction issued by the trial court. We should deny the motion.
It should be noted as an initial matter that the relief defendants seek will not remedy the problems that they claim the injunction creates, because the state will still be bound by the legally effective declaratory judgment. We are to assume that the state will conform its conduct to the law as a court declares the law to be in a declaratory judgment. See Burke v. Children's Services Division, 288 Or. 533, 548, 607 P.2d 141 (1980). That assumption appears to be well founded because, in this case, defendants' counsel assured plaintiffs' counsel prior to entry of the judgment that "[w]here declaratory relief is granted, injunctive relief is not warranted against the State of Oregon or its agencies" because the state has a policy of abiding by declaratory judgments. The result of that policy is that, even if we grant a stay of the injunction, defendants still will have to act...
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