Couey v. Clarno

• Decision Date: 24 June 2020
• Docket Number: A164807
• Citation: 305 Or.App. 29,469 P.3d 790
• Parties: Marquis COUEY, an individual, Plaintiff-Appellant, v. Bev CLARNO, Secretary of State of the State of Oregon, Defendant-Respondent.
• Court: Oregon Court of Appeals

305 Or.App. 29

469 P.3d 790

Marquis COUEY, an individual, Plaintiff-Appellant,

v.Bev CLARNO, Secretary of State of the State of Oregon, Defendant-Respondent.

A164807

Court of Appeals of Oregon.

Argued and submitted December 20, 2018.

June 24, 2020

Linda K. Williams, Portland, argued the cause for appellant. Also on the briefs was Daniel W. Meek.

Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.^*

POWERS, J.

In this declaratory judgment action, we address whether the restriction on paid circulators from simultaneously collecting signatures on a volunteer basis can withstand plaintiff's constitutional challenge based on the free speech and free assembly provisions of the Oregon Constitution. More specifically, plaintiff appeals from a judgment dismissing his complaint against the Secretary of State seeking a declaration that ORS 250.048(10),¹ under which a person "may not obtain signatures on a petition or prospective petition for which the person is being paid and, at the same time, obtain signatures on a petition or prospective petition for which the person is not being paid," is facially unconstitutional as a restriction on the free speech and free assembly provisions in violation of Article I, sections 8 and 26, of the Oregon Constitution.² On the parties’ cross-motions for summary judgment, the trial court dismissed plaintiff's claim after determining that there was no constitutional violation and that the secretary was entitled to judgment as a matter of law. We conclude that the trial court did not err in rejecting plaintiff's challenges and that the secretary is entitled to a judgment. We further conclude that the trial court's dismissal of the claim was not the proper disposition of plaintiff's declaratory judgment action, and we therefore vacate and remand the judgment so that the trial court can issue a judgment declaring the effect of Article I, sections 8 and 26 on ORS 250.048(10). See, e.g. , Western Radio Services Co. v. Verizon Wireless, LLC , 297 Or. App. 446, 454, 442 P.3d 218, rev. den. , 365 Or. 534, 451 P.3d 994 (2019) (explaining that the proper disposition in a declaratory judgment action is issuance of a declaration as to the rights of the parties).

The facts of this case, which is before us for a second time, are undisputed.³ In 2010, plaintiff was a paid, registered petition circulator for two statewide initiative petitions. He wished to collect signatures on another statewide initiative petition at the same time as an unpaid volunteer. However, ORS 250.048(10) prohibits any registered petition circulator from obtaining signatures on a statewide initiative petition as a volunteer while the person is obtaining signatures on a statewide initiative as a paid circulator.⁴ Plaintiff brought this action, seeking a declaration that ORS 250.048(10) is unconstitutional on its face, because it interferes with a circulator's right to expression and assembly as guaranteed by Article I, sections 8 and 26, of the Oregon Constitution. Plaintiff sought also to enjoin the secretary from enforcing the statute.

The trial court granted the secretary's motion for summary judgment after concluding that the statute's prohibition on "obtaining" signatures does not implicate speech, assembly, or any other form of expression. In the alternative, the court further concluded that, even if speech or assembly are implicated by the statutory restriction, there is no constitutional violation, because the statute imposes reasonable and content-neutral time, place, and manner restrictions on the collection of signatures by paid circulators and those restrictions are supported by a legitimate state interest. See State v. Babson , 355 Or. 383, 407, 326 P.3d 559 (2014) (describing three-factor test for assessing whether statutory restrictions were reasonable limits on the time, place, and manner of expression).

On appeal, plaintiff contends that the trial court erred in granting the secretary's motion for summary judgment. We write to address plaintiff's first through fourth assignments of error, in which he challenges the trial court's conclusion that the prohibition in ORS 250.048(10) is not facially invalid, and we reject his remaining contentions without discussion. Whether ORS 250.048(10) is facially invalid because it restricts speech or assembly, in violation of Article I, section 8 or section 26, is a question of law that we review for legal error. State v. Borowski , 231 Or. App. 511, 516, 220 P.3d 100 (2009).

ORS 250.048 is the statutory guide for paying petition circulators and for being paid to obtain signatures. The disputed subsection, ORS 250.048(10), provides that a person who is paid to obtain signatures on a petition may not at the same time voluntarily obtain signatures on a different petition.⁵ In addition to that restriction, the statute sets forth the requirements for paying and being paid for obtaining signatures, including registration, ORS 250.048(1), (11), training, ORS 250.048(1)(b), the contents of an application for registration, ORS 250.048(2), exclusions from registration for those who have certain convictions or certain civil violations, ORS 250.048(4), criminal records checks, ORS 250.048(4), (5), (6), and the requirement that the registered circulator carry photo identification, ORS 250.048(8).

As a preliminary matter, we note what is and is not challenged in this case. There is no contention here that there is a state constitutional right to use paid petition circulators or to be paid for petition circulating. See State v. Campbell/Campf/Collins , 265 Or. 82, 94, 506 P.2d 163 (1973) (rejecting challenge under Article IV, section 1, of the Oregon Constitution to former ORS 254.590 (1971), renumbered as ORS 260.565 (1981) ; repealed by Or. Laws 1983, ch. 756, § 13, which banned payment of initiative petition circulators and made payment of circulators a misdemeanor);⁶ Wolfe v. Brown , 294 Or. App. 800, 432 P.3d 1121 (2018) (addressing First Amendment challenge to pay-per-signature ban in context of administrative evidentiary ruling). The only challenge is that ORS 250.048(10) is unconstitutional on its face, because it interferes with a circulator's right to expression and assembly as guaranteed by Article I, section 8 and section 26. To address that challenge, we begin with an overview of the well-established methodology for assessing a facial challenge under Article I, section 8.

In State v. Robertson , 293 Or. 402, 412, 649 P.2d 569 (1982), the Supreme Court established a three-part framework for analyzing laws under Article I, section 8. The first Robertson category encompasses any law that is "written in terms directed to the substance of any ‘opinion’ or any ‘subject’ of communication." Id. at 412, 649 P.2d 569. Laws in that category are unconstitutional on their face, "unless the restriction is wholly confined within an historical exception." Id . The first category encompasses only statutes that expressly prohibit speech.

The second Robertson category also encompasses only statutes that expressly prohibit speech. A law falls within the second category if it expressly regulates speech but is directed to forbidden effects or harms of the proscribed speech and not to the substance of the communication itself. Id . at 415, 649 P.2d 569. Laws that fall within the second Robertson category are analyzed for overbreadth and are held to be facially invalid if they are overbroad. Id.

The third Robertson category describes laws that do not expressly restrict speech but that may have the effect of prohibiting or limiting it. Laws in the third category are not facially invalid, but they are subject to as-applied challenges. Babson , 355 Or. at 404, 326 P.3d 559.

Plaintiff advances a facial challenge to ORS 250.048(10) ; thus, to be successful, it must fall within either the first or second Robertson category as a law that expressly restricts expression because it is "written in terms directed to the substance of any ‘opinion’ or any ‘subject’ of communication."

The Supreme Court recently adhered to the Robertson framework in Multnomah County v. Mehrwein , 366 Or. 295, 462 P.3d 706 (2020). Because the Supreme Court's opinion in Mehrwein and the cases on which it relied bear heavily on our analysis here, we address the opinion in some detail. At issue in Mehrwein was the facial validity of a Multnomah County code provision, MCC § 5.201, that limited the amount of money that a particular campaign donor could give to a candidate for election and the amount that a candidate could receive from a particular donor. Id . at 298, 462 P.3d 706. The parties’ arguments centered on Vannatta v. Keisling , 324 Or. 514, 931 P.2d 770 (1997) ( Vannatta I ), in which the court had struck down limits on campaign contributions and expenditures as violating the free speech guarantee embodied by Article I, section 8. Mehrwein , 366 Or. at 299, 462 P.3d 706.

The court in Mehrwein surveyed its caselaw relating to the first two Robertson categories—laws that expressly restrict speech or expression because they are "written in terms directed to the substance of any ‘opinion’ or any ‘subject’ of communication," which are subject to facial challenge—as distinct from the third Robertson category, which includes laws that do not expressly restrict speech but that may have the effect of prohibiting or limiting it, and which may only be challenged "as applied." Id. at 301, 462 P.3d 706. Noting the importance of that distinction—that is, laws that expressly restrict speech and those that do not—the court began its examination with State v. Plowman , 314 Or. 157, 838 P.2d 558 (1992).

In Plowman , the court addressed former ORS 166.165(1)(a)(A) (1991), which imposed an enhanced punishment for assault in the fourth degree when the...