Fidanque v. State ex rel. Oregon Government Standards and Practices Com'n

• Decision Date: 27 November 1998
• Docket Number: C-11492
• Citation: 328 Or. 1,969 P.2d 376
• Parties: David FIDANQUE and Janet Arenz, Petitioners on Review, v. STATE of Oregon, By and Through the OREGON GOVERNMENT STANDARDS AND PRACTICES COMMISSION, Respondent on Review. CC 94; CA A86332; SC S43705.
• Court: Oregon Supreme Court

Page 376

969 P.2d 376

328 Or. 1

David FIDANQUE and Janet Arenz, Petitioners on Review, v. STATE of Oregon, By and Through the OREGON GOVERNMENT STANDARDS AND PRACTICES COMMISSION, Respondent on Review.

CC 94C-11492; CA A86332; SC S43705.

Supreme Court of Oregon.

Argued and Submitted May 9, 1997.

Resubmitted June 11, 1998.

Decided Nov. 27, 1998.

Thomas M. Christ, ACLU Foundation of Oregon, Inc., Portland, argued the cause and filed the brief for petitioners on review.

Rives Kistler, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

Before CARSON, Chief Justice, and GILLETTE, VAN HOOMISSEN, DURHAM, and KULONGOSKI, Justices. ^*

GILLETTE, J.

Plaintiffs are two paid lobbyists for the American Civil Liberties Union. They brought this action for declaratory and injunctive relief, seeking a judicial determination that ORS 171.743, ¹ a statute requiring certain lobbyists to pay a biennial registration fee to the Oregon Government Standards and Practices Commission (Commission), is constitutionally unsound. Plaintiffs based their complaint on two provisions of the Oregon Constitution--sections 8 and 26 of Article I--and on the First Amendment to the United States Constitution. ² On cross-motions for judgment on the pleadings, the trial court concluded that the statute violates both of the Oregon constitutional guarantees and entered judgment accordingly. The Court of Appeals reversed that decision. Fidanque v. State By and Through Oregon Govt. Standards and Practices, 141 Or.App. 495, 920 P.2d 154 (1996). We allowed plaintiffs' petition for review and now conclude that ORS 171.743 violates Article I, section 8, of the Oregon Constitution. Consequently, we reverse the decision of the Court of Appeals.

The challenged statute was enacted in 1993 and was added to a previously existing body of statutes devoted to the regulation of legislative lobbying. Pursuant to those provisions, which are found in ORS chapter 171, "lobbyists" are required to register with the Commission by filing and periodically updating a statement identifying themselves and whom they represent and describing their clients' areas of interest. ORS 171.740. Lobbyists also must file regular statements disclosing the amount of money expended for the purpose of lobbying, including the names of any legislative or executive official for whose benefit they make any expenditure exceeding $25. ORS 171.745(1).

"Lobbyists" are defined for purposes of the above statutes by ORS 171.725(8):

" 'Lobbyist' means:

"(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 pubic official who lobbies." ³

(Emphasis added.) "Lobbying" is defined, in turn, by ORS 171.725(7):

" '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."

In 1993, the legislature amended the registration provision at ORS 171.740 to require lobbyists to reregister every two years. At the same time, it enacted ORS 171.743, the registration fee statute that is the subject of the present challenge. That statute 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."

Plaintiffs do not challenge the preexisting statutory requirements that they register with the state and disclose certain aspects of their lobbying activities. Their sole objection is to the additional imposition of a registration fee.

In keeping with our traditional practice, we first address the claims asserted under the Oregon Constitution. See State v. Kennedy, 295 Or. 260, 262-65, 666 P.2d 1316 (1983) (explaining that paradigm). Although we could begin our inquiry under either Article I, section 8, or Article I, section 26, we choose the former because, as it turns out, plaintiffs' claim is vindicated fully under that provision.

Our starting point is the analytical framework, first set out in State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982), that this court traditionally has employed in evaluating Article I, section 8, challenges. The court summarized that framework in State v. Plowman, 314 Or. 157, 163-64, 838 P.2d 558 (1992):

"In State v. Robertson, * * * this court established a framework for evaluating whether a law violates Article I, section 8. First, the court recognized a distinction between laws that focus on the content of speech or writing and laws that focus on proscribing the pursuit or accomplishment of forbidden results. * * * The court reasoned that a law of the former type, a law 'written in terms directed to the substance of any "opinion" or any "subject" of communication,' violates 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 [when the Oregon Constitution went into effect] demonstrably were not intended to reach.' * * *

"Laws of the latter type, which focus on forbidden results, can be divided further into two categories. The first category focuses on forbidden effects, but expressly prohibits expression used to achieve those effects. * * * Such laws are analyzed for overbreadth[.]

" * * * * *

"The second kind of law also focuses on forbidden effects but without referring to expression at all. Of that category, this court wrote:

" 'If [a] statute [is] directed only against causing the forbidden effects, a person accused of causing such effects by language or gestures would be left to assert (apart from a vagueness claim) that the statute could not constitutionally be applied to his particular words or other expression, not that it was drawn and enacted contrary to Article I, section 8.' "

(Emphasis, citations, and footnote omitted.)

Plaintiffs argue, first, that ORS 171.743 is written in terms directed to the substance of a subject of communication. They argue that, although the statute applies, by its terms, to "lobbyists," its real object is "lobbying," an activity that primarily is defined in terms of a particular type of speech, viz., speech that pertains to, and is designed to influence, legislative action.

The state responds that, by its terms, ORS 171.743 applies to lobbyists as a professional group, and not to the act of lobbying itself. The state acknowledges that the profession is defined, at least in part, by the type of communication in which its practitioners engage, but, it argues that that fact does not, and cannot, mean that that type of communication is the object of the statute, for purposes of Article I, section 8:

"Many professions are associated with expression. The practice of law, for example, is defined as advising another person about his or her particular legal rights. See State Bar v. Security Escrows, Inc., 233 Or. 80, 89, 377 P.2d 334 (1962) (defining practice of law). Teaching consists of communicating about specific disciplines; psychiatry consists of communication between the patient and the doctor about the patient's state of mind; and securities brokers promote and sell stocks and bonds.

"If plaintiffs are correct, any law that regulates a person's ability to practice those professions would automatically be invalid unless it comes within a well-established historical exception."

We agree with the state that the mere fact that a profession is associated with a certain kind of expression does not transform every statute that regulates that profession into an attack on expression. At the same time, we recognize that that proposition goes only so far: At some point, there may be so little to distinguish between the saying of a thing and the "profession" of saying it that permitting a regulation on the theory that it is directed at the profession, rather than at the statement, would represent a triumph of form over substance. And that, in this court's view, is the case here. Lobbying is political speech, and being a lobbyist is the act of being a communicator to the legislature on political subjects.

There is no question that ORS 171.743 applies to persons who are defined, to a large extent, by their association with a certain variety of speech. ORS 171.743 imposes a fee on "person[s] described in ORS 171.725(8) and registered with the commission," viz., registered lobbyists. The persons described in ORS 171.725--"lobbyists"--are defined by their participation in lobbying, an activity that is primarily expressive. Of course, participation in a certain kind of expression is by no means the only thing that defines the lobbying profession under the statute. Lobbyists also are defined by their involvement in "attempt[ing] to obtain the good...