Fidanque v. State By and Through Oregon Government Standards and Practices Com'n

• Citation: 141 Or.App. 495,920 P.2d 154
• Decision Date: 19 June 1996
• Docket Number: C-11492
• Parties: David FIDANQUE and Janet Arenz, Respondents, v. STATE of Oregon, By and Through the OREGON GOVERNMENT STANDARDS AND PRACTICES COMMISSION, Appellant. 94; CA A86332.
• Court: Oregon Court of Appeals

Page 154

920 P.2d 154

141 Or.App. 495

David FIDANQUE and Janet Arenz, Respondents, v. STATE of Oregon, By and Through the OREGON GOVERNMENT

STANDARDS AND PRACTICES COMMISSION, Appellant.

94C-11492; CA A86332.

Court of Appeals of Oregon.

Argued and Submitted Oct. 23, 1995.

Decided June 19, 1996.

[141 Or.App. 496-A] Rives Kistler, Assistant Attorney General, argued the cause for appellant. With him on the briefs were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Thomas M. Christ, Portland, argued the cause and filed the brief for respondents.

Before RIGGS, P.J., and LANDAU and LEESON, JJ.

LANDAU, Judge.

At issue in this case is the constitutionality of ORS 171.743, which requires compensated lobbyists to pay a $50 registration fee each biennium to the Oregon Government Standards and Practices Commission (the Commission) to fund the Commission's administration and enforcement of lobbyist registration and reporting laws. Plaintiffs contend that the fee requirement violates state and federal constitutional guarantees of freedom of expression; they do not challenge the constitutionality of the underlying registration and reporting requirements. The Commission argues that the fee requirement is a constitutional administrative fee that covers the costs of regulatory activities, the validity of which plaintiffs do not contest.

The trial court entered a judgment on the pleadings declaring that the statute violates Article I, sections 8 and 26, of the Oregon Constitution and directing the Commission to accept lobbyist registration materials without requiring the payment of any fees. The trial court did not reach plaintiffs' federal constitutional challenge. On appeal, the Commission argues that the trial court erred in concluding that ORS 171.743 violates the Oregon Constitution. Plaintiffs respond that the trial court did not err in so holding and that, in any event, the statute also violates the First Amendment to the United States Constitution.

For the reasons that follow, we hold that the statutory fee requirement does not violate Article I, sections 8 or 26, of the Oregon Constitution. We further hold that the fee requirement does not violate the First Amendment. Accordingly, we reverse the judgment of the trial court.

We begin by describing the statutory scheme at issue. In 1973, the Oregon Legislative Assembly found

"that to preserve and maintain the integrity of the legislative process, it is necessary that the identity, expenditures and activities of certain persons who engage in efforts to persuade members of the Legislative Assembly or the executive branch to take specific actions, either by direct communication to such officials or by solicitation of others to engage in such efforts, be publicly and regularly disclosed."

ORS 171.730. To that end, the legislature enacted various lobbying regulations. Those regulations impose certain requirements on "lobbyists," defined as:

"(a) Any individual who agrees to provide personal services for money or any other consideration for the purpose of lobbying.

"(b) Any person not otherwise subject to paragraph (a) of this subsection who provides personal services as a representative of a corporation, association, organization or other group, for the purpose of lobbying.

"(c) Any public official who lobbies."

ORS 171.725(8). "Lobbying" means

"influencing, or attempting to influence, legislative action through oral or written communication with legislative officials, solicitation of others to influence or attempt to influence legislative action or attempting to obtain the good will of legislative officials."

ORS 171.725(7).

Under the lobbying regulations, certain lobbyists must register with the Commission by filing a statement containing specified information, including the lobbyist's name and address and the party represented. ORS 171.740. Not all lobbyists are required to register. For example, the registration requirement does not apply to:

"A person who spends not more than 24 hours during any calendar quarter lobbying, excluding travel time, and who does not spend an amount in excess of $100 lobbying during any calendar quarter excluding the cost of personal travel, meals and lodging."

ORS 171.735(4). However, once that monetary or time amount is exceeded, a "lobbyist" must register with the Commission, unless another exception applies. Id.; ORS 171.740 (providing exceptions for certain news media, certain legislative officials, certain uncompensated individuals, and certain government personnel).

In 1993, the legislature added ORS 171.743, which provides:

"(1) The Oregon Government Standards and Practices Commission shall impose and collect the following lobbyist registration fees:

"(a) For each person described in ORS 171.725(8) and registered with the commission, $50.

"(b) Notwithstanding paragraph (a) of this subsection, for each person described in ORS 171.725(8)(b) and registered with the commission and who is not compensated for the person's services as a representative of a corporation, association, organization or other group, $0.

"(2) Fees are nonrefundable.

"(3) All moneys received by the commission under this section shall be paid into the General Fund in the State Treasury to the credit of the commission. Such moneys are continuously appropriated and shall be used only for the administration and enforcement of the powers and duties of the commission."

That provision became operative on January 1, 1994. Or Laws 1993, ch 714, § 6. Any "lobbyist" who is compensated and is required to register with the Commission must pay the fee. If such a lobbyist fails to do so, he or she may be fined a maximum of $1,000, ORS 171.992(1), plus "such sanctions as either house of the Legislative Assembly may prescribe." ORS 171.785.

Plaintiffs are paid lobbyists for the American Civil Liberties Union. In 1994, they submitted registration forms to the Commission, but omitted the registration fee required by ORS 171.743. The Commission wrote to plaintiffs requesting that they pay the registration fee. Plaintiffs declined, and the Commission did not accept their registration forms. Plaintiffs then initiated this action for declaratory and injunctive relief, asserting that the fee requirement of ORS 171.743 is unconstitutional. The Commission answered, and both parties moved for judgment on the pleadings. The trial court granted plaintiffs' motion, denied the Commission's motion and entered judgment as we have described above. On appeal, the Commission contends that the trial court erred in granting plaintiffs' motion and in denying the Commission's motion.

We begin with plaintiffs' state constitutional challenges, State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983), reviewing as a matter of law the trial court's conclusion that the fee requirement imposed by ORS 171.743 violates Article I, sections 8 and 26, of the Oregon Constitution.

Article I, section 8, provides:

"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."

The Supreme Court has developed a method of analyzing a statute to determine whether it violates Article I, section 8. Our initial task is to determine whether the challenged statute falls within any of three categories. Depending on the classification of the statute, a different analysis will apply. City of Eugene v. Miller, 318 Or. 480, 488, 871 P.2d 454 (1994); State v. Plowman, 314 Or. 157, 164, 838 P.2d 558 (1992), cert. den. 508 U.S. 974, 113 S.Ct. 2967, 125 L.Ed.2d 666 (1993); State v. Robertson, 293 Or. 402, 412, 649 P.2d 569 (1982).

In the first category are laws that target the content of speech or writing, laws "written in terms directed to the substance of any 'opinion' or any 'subject' of communication." Plowman, 314 Or. at 164, 838 P.2d 558 (quoting Robertson, 293 Or. at 412, 649 P.2d 569). Such laws violate Article I, section 8,

"unless the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach."

Plowman, 314 Or. at 164, 838 P.2d 558 (quoting Robertson, 293 Or. at 412, 649 P.2d 569).

In the second category are laws that prohibit expression as a means of targeting forbidden effects of that expression. Miller, 318 Or. at 488, 871 P.2d 454. Those laws are analyzed for overbreadth. Id.

In the third category are laws that focus on forbidden effects, but without referring to expression at all. Those laws are analyzed to determine whether they violate Article I, section 8, as applied to the particular words or other expression involved in each particular case. Id.

We begin by determining whether the fee requirement of ORS 171.743 is a first category statute that expressly focuses on the content of speech in a manner that falls within no recognized historical exception to the constitutional guarantee of free expression. Plaintiffs argue that the statute targets the content of speech, because it requires compensated lobbyists, statutorily defined as those who are paid to express the views of their clients to the legislature, ORS 171.725(7), to pay a fee for the privilege of engaging in that expressive activity as opposed to other types of expression. In other words, they argue, to the extent that the statute restricts speech that is directed at legislators about pending legislation, as opposed to all other types of speech, it is directed at the content of speech.

The Commission argues that the statute by its terms says nothing about speech in general or the content of speech in particular. According to the Commission, the statute only imposes a fee to pay the costs of a regulatory program, the validity of...