Caruso v. Yamhill County ex rel. County Com'R

• Decision Date: 06 September 2005
• Docket Number: No. 04-35155.,04-35155.
• Parties: Michael CARUSO, Plaintiff-Appellee, v. YAMHILL COUNTY, an Oregon municipal corporation, by and through its COUNTY COMMISSIONER, Defendant, and State of Oregon, Intervenor-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 848

422 F.3d 848

Michael CARUSO, Plaintiff-Appellee, v. YAMHILL COUNTY, an Oregon municipal corporation, by and through its COUNTY COMMISSIONER, Defendant, and State of Oregon, Intervenor-Appellant.

No. 04-35155.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 3, 2005.

Filed September 6, 2005.

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Stephen K. Bushong, Oregon Department of Justice, Salem, OR, for the intervenor-appellant.

Daniel W. Meek, Portland, OR, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Ancer L. Haggerty, District Judge, Presiding. D.C. No. CV-03-01731-ALH.

Before: HUG, TASHIMA, and CLIFTON, Circuit Judges.

CLIFTON, Circuit Judge:

The State of Oregon appeals a district court order declaring Or.Rev.Stat. § 280.070(4)(a) unconstitutional and permanently limiting its enforcement. Section 280.070(4)(a) requires that ballots for initiatives proposing local option taxes include a statement: "This measure may cause property taxes to increase more than three percent." The district court deemed this requirement constitutionally infirm, concluding that inclusion of the "three-percent warning" violated appellee Michael Caruso's First Amendment rights as a petition circulator and his due process rights as a voter. We conclude that the requirement does not violate the U.S. Constitution, reverse the decision of the district court, and vacate the injunction limiting enforcement of section 280.070(4)(a).

I. BACKGROUND

The Oregon Constitution reserves to the people "the initiative power, which is to propose laws and amendments to the Constitution and enact or reject them at an election independently of the Legislative Assembly." Or. Const. art. IV, § 1. Under Oregon law, the ballot titles for initiatives that propose the imposition of a local option tax must include an additional statement commonly referred to as the "three-percent warning": "This measure may cause property taxes to increase more than three percent." Or.Rev.Stat. § 280.070(4)(a).

Appellee Michael Caruso was among the chief petitioners for an initiative measure which appeared on the ballot for the March 9, 2004, Yamhill County Special Election. Consistent with section 280.070(4)(a), the Yamhill County Commission adopted, on November 26, 2003, the following ballot title for the measure:

MEASURE 36-55

AUTHORIZES SPECIAL LEVY IF YAMHILL COUNTY PUD¹ IS FORMED

QUESTION: Shall voters authorize levy of $0.003 per $1,000 of assessed valuation if Yamhill County People's Utility District is formed?

This measure may cause property taxes to increase more than three percent.

SUMMARY: This measure may be passed only at an election with at least a 50 percent voter turnout.

If the Yamhill County People's Utility District is formed, this measure allows the District board of directors to impose a special levy on property within the district. Funds raised from the levy would be used to pay for an engineer's report and a later election to issue revenue bonds, if held.

This one-time levy will raise about $9,700.00. The levy for a house with an assessed value of $150,000 would be about 45 cents.

The estimated tax cost for this measure is an ESTIMATE ONLY based on the best information available from the county assessor at the time of the estimate.

See also Or.Rev.Stat. § 250.035(1) (providing that the ballot title of any non-state initiative shall consist of a caption, question, and summary).

Caruso challenged the constitutionality of section 280.070(4)(a) before the district court, asserting that the required inclusion of the three-percent warning violated his First Amendment rights as a petition circulator and his due process rights as a voter. Caruso requested that the district court declare the provision unconstitutional, both as applied to Measure 36-55 and on its face, and enter preliminary and permanent injunctions against its enforcement.

With the parties' consent, the district court consolidated the hearing on Caruso's motion for a preliminary injunction with the trial on the merits. In an opinion issued the day after the hearing, the district court held section 280.070(4)(a) unconstitutional as applied and as enacted. Adopting the reasoning set forth in a companion decision, Horton v. Multnomah County, No. Civ. 03-1257-HA, 2004 WL 1745789 (D.Or. Aug.4, 2004), the district court deemed the three-percent warning "false and misleading" because it implied that the initiative measure "by itself" "may cause property taxes to increase more than three percent" when the increase proposed by Measure 36-55 was in fact much lower: only "$0.003 per $1,000 of assessed valuation."

The district court reasoned that section 280.070(4)(a) was therefore constitutionally infirm. First, it impeded Caruso's ability to communicate the actual tax consequences of Measure 36-55 and forced him to be associated with the State's misleading message. In light of these burdens on "core political speech," the district court determined that section 280.070(4)(a) was subject to, and did not survive, strict scrutiny under the First Amendment. Second, section 280.070(4)(a) substantially chilled protected speech. Specifically, because the three-percent warning applied to all initiatives proposing local option taxes — including those which posed no threat of themselves increasing property taxes more than three percent — it discouraged others from circulating such initiatives by erecting the additional "hurdle of convincing voters of the false nature of the state mandated `warning.'" Finally, the three-percent warning obscured the actual subject of Measure 36-55, upsetting the evenhandedness of the election and working a fundamental unfairness on the voters.

To remedy these constitutional infirmities, the district court enjoined the government defendants from enforcing section 280.070(4)(a) in relation to Measure 36-55, and, more broadly, in relation to "all ballot measures that by themselves cannot cause an increase in property taxes of more than three percent." The State of Oregon, which had intervened to oppose Caruso's claims, timely appealed.²

II. DISCUSSION

A. Mootness

Pursuant to the district court injunction, Measure 36-55 appeared on the ballot for the March 9, 2004, Yamhill County Special Election without the three-percent warning. The measure failed, with 3,250 voters favoring the levy and 9,153 opposing it. The State argues that the election rendered moot Caruso's claim that section 280.070(4)(a) is unconstitutional as applied to the defeated measure.

As a general rule, a case is moot "`when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome.'" Schaefer v. Townsend, 215 F.3d 1031, 1033 (9th Cir.2000) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). There is an exception, however, for challenged practices that are "`capable of repetition, yet evading review.'" Id. (quoting Dunn v. Blumstein, 405 U.S. 330, 333 n. 2, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972)). Under this exception, a court may consider the merits of a case that would otherwise be deemed moot when "(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (alterations and citation omitted).

Cases challenging election laws often fall within the "capable of repetition, yet evading review" exception "because the inherently brief duration of an election is almost invariably too short to enable full litigation on the merits." Porter v. Jones, 319 F.3d 483, 490 (9th Cir.2003). For this reason, "[i]f such cases were rendered moot by the occurrence of an election, many constitutionally suspect election laws. . . could never reach appellate review." Joyner v. Mofford, 706 F.2d 1523, 1527 (9th Cir.1983). Here, the State cannot seriously contest that the period between adoption of the ballot title and election on the measure — in this case, four months — is too brief to permit "full litigation on the merits." See Meyer v. Grant, 486 U.S. 414, 417 n. 2, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988) (finding the "evading review" prong satisfied where the state "grant[ed] the proponents of an initiative only six months in which to obtain the necessary signatures").

The State more forcefully contests the expectation that Caruso "will be subject to the same action again." It observes that there is no evidence in the record that Caruso has circulated or intends to circulate another initiative proposing the imposition of a local option tax. Although this is true, we have rejected the analogous argument that a candidate's challenge to an election law is not moot "only when [the] candidate plans to seek reelection." Schaefer, 215 F.3d at 1033. In Schaefer, we observed that the Supreme Court had proceeded to the merits of a voter's challenge to the residency requirements for voting even though by the time of the Court's decision, the voter had resided in the state long enough to vote in the next election. Id. at 1033 (citing Blumstein, 405 U.S. at 331-33 & n. 2, 92 S.Ct. 995). We accordingly examined the merits of a prospective candidate's challenge to the residency requirements for nomination even though by the time of our decision the contested seat had been filled and the candidate "refuse[d] to disclose his intentions" for running for state office in the future. Id.; accord Merle v. United States, 351 F.3d 92, 95 (3d Cir.2003) (disagreeing with the suggestion that a candidate must allege his intent to run in a future election to satisfy the "capable of repetition" requirement).

Consistent with Schaefer, we conclude that Caruso's claims are not moot. Although Caruso has not expressed an intention...