Hazell v. Brown

• Decision Date: 10 November 2010
• Docket Number: 06C22473; A137397.
• Citation: 242 P.3d 743,238 Or.App. 487
• Parties: Bryn HAZELL, Francis Nelson, Tom Civiletti, David Delk, Gary Duell, Joan Horton, and Ken Lewis, Plaintiffs-Appellants Cross-Respondents, v. Kate BROWN, Secretary of State of the State of Oregon; and John R. Kroger, Attorney General of the State of Oregon, Defendants-Respondents Cross-Respondents, and Center to Protect Free Speech, Inc., an Oregon nonprofit corporation; and Fred Vannatta, Intervenors-Respondents Cross-Appellants.
• Court: Oregon Court of Appeals

242 P.3d 743
238 Or.App. 487

Bryn HAZELL, Francis Nelson, Tom Civiletti, David Delk, Gary Duell, Joan Horton, and Ken Lewis, Plaintiffs-Appellants Cross-Respondents,
v.
Kate BROWN, Secretary of State of the State of Oregon; and John R. Kroger, Attorney General of the State of Oregon, Defendants-Respondents Cross-Respondents,
and
Center to Protect Free Speech, Inc., an Oregon nonprofit corporation; and Fred Vannatta, Intervenors-Respondents Cross-Appellants.

06C22473; A137397.

Court of Appeals of Oregon.

Argued and Submitted Feb. 25, 2010.
Decided Nov. 10, 2010.

242 P.3d 744

Daniel W. Meek, Portland, argued the cause and filed the briefs for appellants-cross-respondents Bryn Hazell, Francis Nelson, Tom Civiletti, David Delk, and Gary Duell.

Linda K. Williams, Portland, argued the cause and filed the briefs for appellants-cross-respondents Joan Horton and Ken Lewis.

Cecil A. Reniche-Smith, Assistant Attorney General, argued the cause for respondents-cross-respondents. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

John A. DiLorenzo, Jr., Gregory A. Chaimov, and Davis Wright Tremaine LLP filed the briefs for respondents-cross-appellants.

James Nicita filed the brief amicus curiae for Elizabeth Trojan and Fair Elections Oregon.

Eric C. Winters filed the brief amicus curiae for The Better Government Project.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.

242 P.3d 745

HASELTON, P.J.

238 Or.App. 490

This appeal, from the denial of plaintiffs' and intervenors' motions for summary judgment and allowance of defendants' cross-motion for summary judgment, centers on the validity and operation of Ballot Measure 47 (2006), now codified as a note at ORS chapter 259, which, among other things, contains various provisions limiting or prohibiting political campaign contributions and expenditures. We conclude that the trial court correctly rejected each of plaintiffs' and intervenors' challenges. Accordingly, we affirm.

I. BACKGROUND

Measure 47 and its companion measure, Ballot Measure 46 (2006), were presented and considered by the voters against the backdrop of the Oregon Supreme Court's decision in Vannatta v. Keisling, 324 Or. 514, 931 P.2d 770 (1997) ( Vannatta I ), which invalidated certain provisions of Ballot Measure 9 (1995) and sustained other provisions. Given that context, we pause briefly to describe the Oregon Supreme Court's treatment in Vannatta I of the essential features of Measure 9.

Measure 9 imposed mandatory limits on contributions to state political campaigns and voluntary limits on campaign expenditures. Vannatta I involved a challenge to those limitations brought under Article I, section 8, of the Oregon Constitution. Vannatta I, 324 Or. at 536-45, 931 P.2d 770. Ultimately, the Oregon Supreme Court concluded that political contributions and expenditures are "both * * * forms of expression for the purposes of Article I, section 8." Id. at 524, 931 P.2d 770. Given that conclusion, the court held that the mandatory limitations on political contributions were unconstitutional, but upheld the limitations pertaining to expenditures because of their noncompulsory character.¹ Id. at 541, 543-45, 931 P.2d 770.

238 Or.App. 491

In the November 2006 general election, Oregon voters again considered whether to adopt restrictions on campaign contributions and expenditures. Two ballot measures were proposed: Measure 46 and Measure 47, the measure at issue in this case. Measure 46 proposed amending the Oregon Constitution to allow statutory enactments, adopted through the initiative process or through a three-fourths vote of both houses of the legislature, that "prohibit or limit contributions and expenditures, of any type or description, to influence the outcome of any election." The ballot title to Measure 46 reflected voters' understanding of the then-existing state of the law; it stated: "The Oregon Constitution currently bans laws that impose involuntary limits on, or otherwise prohibit, political campaign contributions or expenditures by any person or any entity," and warned that a "no" vote would "retain[ ] [the] current ban in [the] Oregon Constitution on laws that limit or prohibit campaign contributions or expenditures by any person or any entity."

Measure 47, which proposed such a statutory enactment, is similar in significant respects to Measure 9. Specifically, Measure 47 limits the amount a person or political committee may contribute to a candidate, political committee, or political party, Measure 47 § (3)(d)-(i), limits the contributions a candidate may make to his or her own committee, id. § (4)(a), and prohibits candidates from making loans to their own campaign committees, id. § (4)(d). It also, with certain exceptions, bans corporations, labor unions, and certain individuals from making contributions, id. § (3)(a), (j), and prohibits campaigns and political parties from accepting contributions that are in excess of, or prohibited by, what is provided for in Measure 47, id. § (3)(c).

However, unlike Measure 9, Measure 47 also imposes mandatory limits on political expenditures. For example, with certain exceptions, it limits the amount a person may spend to directly communicate their support

242 P.3d 746

or opposition towards a political candidate or party, Measure 47 § (6)(b)-(d), and prohibits such expenditures by corporations, labor unions, and certain individuals, with exceptions, id. § (6)(a), (d). Measure 47 also limits the amount that candidates, political committees, and other entities may spend to oppose or support a candidate or party to that amount

238 Or.App. 492

received in accordance with the contribution provisions. Id. §§ (5), (6)(e)-(f).

In addition to the contribution and expenditure provisions, Measure 47, inter alia, contains various, ancillary disclosure and reporting requirements, see, e.g., id. §§ (4)(b), (6)(f)-(h), delineates how the state is to administer, track, and report information about candidates' contributions and expenditures to the public, id. § (8), and imposes penalties for violations of the contribution and expenditure limitations and other, related restrictions, id. § (10).

Aside from those sections governing substantive matters, Measure 47 also contains several "savings provisions." One of those provisions lies at the core of this dispute-indeed, it is the ultimate object of virtually all of the parties' contentions. That provision, section (9)(f), provides:

"If, on the effective date of this Act, the Oregon Constitution does not allow limitations on political campaign contributions or expenditures, this Act shall nevertheless be codified and shall become effective at the time that the Oregon Constitution is found to allow, or is amended to allow, such limitations."

On November 7, 2006, Oregon voters enacted Measure 47, but rejected Measure 46, the companion measure that had proposed the constitutional amendment. In light of the unofficial results from that election, on November 17, 2006, the Secretary of State announced that,

"[b]ecause Measure 46 was not approved by the people, the conditions required by Section (9)(f) for the rest of Measure 47 to become operative will not have been fulfilled * * *. Accordingly, the effect of Section (9)(f) is that no part of the measure presently is enforceable. According to the plain, natural, and ordinary meaning of the words of Section (9)(f), all of Measure 47 will remain dormant until such time as 'the Oregon Constitution is found to allow, or is amended to allow,' limitations on campaign contributions and expenditures."

Thus, although the Governor proclaimed Measure 47 to be in "full force and effect" on December 7, 2006, as provided in

238 Or.App. 493

Article IV, section 1, of the Oregon Constitution,² defendants have refused to implement or enforce the measure.

On December 27, 2006, plaintiffs Hazell, Nelson, Civiletti, Delk, and Duell (the Hazell plaintiffs) and plaintiffs Horton and Lewis (the Horton plaintiffs) brought this action for declaratory and injunctive relief, seeking the implementation and enforcement of Measure 47. Specifically, the Hazell plaintiffs sought declarations that defendants, the Secretary of State and Attorney General, are "obliged to administer and enforce each and all of the provisions of Measure 47" and that, by its terms, section (9)(f) does not excuse that obligation. The Horton plaintiffs, on the other hand, sought declarations that section (9)(f) is invalid under Article IV, section 1(4)(d), but that the balance of Measure 47 must be enforced. In addition to their separate contentions as to the validity and operation of section (9)(f), all plaintiffs jointly argued that the Oregon Supreme Court's decision in Vannatta I does not preclude enforcement of any or all of Measure 47 and, in the alternative, that Vannatta I was wrongly decided.

Center to Protect Free Speech, Inc., and Vannatta intervened, contending that section (9)(f) makes the "effective" date of the act contingent on conditions prohibited by Article I, section 21, of the Oregon Constitution ³ and, thus, Measure 47, in its entirety, "is void and of no effect."

242 P.3d 747

The parties filed cross-motions for summary judgment, and, in a comprehensive letter opinion, the trial court rejected plaintiffs' and intervenors' motions for summary judgment and allowed summary judgment for defendants. The trial court subsequently entered a general judgment reiterating its ruling and disposing of the parties' claims as follows:

"(1) Contrary to the declaration sought by intervenor-defendants in their cross-claim against defendants,

238 Or.App. 494

Measure 47 (2006) is not unconstitutional under Article I, § 21, of the Oregon Constitution; ^[[⁴

"(2) Contrary to the declaration sought by the Horton plaintiffs, § (9)(f) of Measure 47 is not unconstitutional, and defendants therefore did not err by implementing that section according to its terms;
"(3) Contrary to the

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