Hazell v. Brown, (CC 06C22473

• Decision Date: 04 October 2012
• Docket Number: SC S059245 (Control), S059246).,(CC 06C22473,CA A137397
• Citation: 352 Or. 455,287 P.3d 1079
• Parties: Bryn HAZELL, Francis Nelson, Tom Civiletti, David Delk, Gary Duell, Joan Horton, and Ken Lewis, Plaintiffs–Appellants Cross–Respondents, Petitioners on Review, 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, Respondents on Review, and Center to Protect Free Speech, Inc., an Oregon nonprofit corporation; and Fred Vannatta, Intervenors–Respondents Cross–Appellants, Respondents on Review.
• Court: Oregon Supreme Court

352 Or. 455

287 P.3d 1079

Bryn HAZELL, Francis Nelson, Tom Civiletti, David Delk, Gary Duell, Joan Horton, and Ken Lewis, Plaintiffs–Appellants Cross–Respondents, Petitioners on Review,

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, Respondents on Review,andCenter to Protect Free Speech, Inc., an Oregon nonprofit corporation; and Fred Vannatta, Intervenors–Respondents Cross–Appellants, Respondents on Review.

(CC 06C22473; CA A137397; SC S059245 (Control), S059246).

Supreme Court of Oregon, En Banc.

Argued and Submitted Jan. 9, 2012.

Decided Oct. 4, 2012.

On review from the Court of Appeals.^*

Daniel W. Meek, Portland, argued the cause and filed the brief for petitioners on review Bryn Hazell, Francis Nelson, Tom Civiletti, David Delk, and Gary Duell. With him on the brief was Linda K. Williams. Linda K. Williams, Portland, argued the cause and filed the brief for petitioners on review Joan Horton and Ken Lewis. With her on the briefs was Daniel W. Meek.

John DiLorenzo, Davis Wright Tremaine LLP, Portland, argued the cause for respondents on review Center to Protect Free Speech and Fred Vannatta. With him on the brief were Gregory A. Chaimov, Aaron K. Stuckey, and Paul J. Southwick.

Michael A. Casper, Deputy Solicitor General, Salem, argued the cause for respondents on review State of Oregon and John R. Kroger, Attorney General. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

P.K. Runkles–Pearson, Stoel Rives LLP, Portland, filed a brief on behalf of amicus curiae ACLU Foundation of Oregon.

DE MUNIZ, J.

This case requires us to examine the operative text of a voter-approved ballot measure that purported to depend for its efficacy upon the passage of a companion measure that voters rejected. The trial court concluded that the text at issue was severable from the ballot measure and ruled that the remaining provisions of the measure were, according to the plain text of the measure itself, dormant. The Court of Appeals affirmed that judgment. Hazell v. Brown, 238 Or.App. 487, 242 P.3d 743 (2010). For the reasons set out in this opinion, we also affirm the trial court's judgment and the decision rendered by the Court of Appeals.

FACTS AND PROCEDURAL BACKGROUND

In 2006, two ballot measures were placed before Oregon voters at the polls. One—Measure 46 (2006)—sought to amend the Oregon Constitution to permit the enactment of laws prohibiting or limiting electoral campaign “contributions and expenditures, of any type or description.” The other—Measure 47 (2006)—sought to create new campaign finance statutes that would, essentially, statutorily implement the constitutional changes proposed in Measure 46. Voters, however, rejected Measure 46 while approving Measure 47. Among other things, Measure 47 contained a clause at section 9(f) that provided:

“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.”

Relying on that provision, the Secretary of State's office took the position that, in light of Measure 46's defeat at the polls, Measure 47 was, by its own terms, unenforceable. It stated:

“The plain text of Section (9)(f) requires that the entire measure is to be codified as part of the statutory law of Oregon. That text also specifies that ‘this Act’—referring singularly to the entire measure—will be ineffective until such time as ‘the Oregon Constitution is found to allow, or is amended to allow,’ limitations on campaign contributions and expenditures. Because 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 on December 7, 2006. 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.” ¹

Several of the measure's chief petitioners, together with other Oregon voters, responded to that determination by bringing an action against both the Secretary of State and the Attorney General (collectively, the state), seeking declaratory and injunctive relief to compel enforcement of Measure 47. In response, the Center to Protect Free Speech, Inc., and its president, Fred Vannatta, intervened to oppose that action, asserting that section 9(f) of Measure 47 violated Article I, section 21, of the Oregon Constitution, rendering the entire measure void. On cross-motions for summary judgment filed by all the parties, the trial court ruled in the state's favor, concluding that Measure 47 was presently inoperative.

In a letter opinion to the parties, the trial court found the text and context of section 9(f) to be unambiguous as to the meaning and effect of Measure 47:

“The text of section (9)(f) describes a condition, then mandates the consequences if that condition obtains. The condition triggering section (9)(f) is that ‘on the effective date of this Act, the Oregon Constitution does not allow limitations on political campaign contribution and expenditures.’ The mandated consequence if that condition obtains is that the ‘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.’ As held above, the triggering circumstances unambiguously existed and were not changed by Measure 46, which did not pass. The unambiguous consequence is that Measure 47, in its entirety, presently is not operative.”

The trial court reached similar conclusions regarding the constitutionality of section 9(f), rejecting the argument that the section violated Article IV, section 1(4)(d), because it altered the effective date of Measure 47 rather than its operative effect. The trial court wrote:

“That contention is answered completely by State v. Hecker, 109 Or. 520 (1923). Hecker makes clear that section (9)(f)'s use of the term ‘shall become effective’ must be construed to mean ‘shall become operationally effective.’ So construed, as in Hecker, section (9)(f) conflicts with no constitutional requirements as to the effective date of legislation passed by initiative.

“Nor is the indeterminate nature of the contingency fatal to the provision's effect. In Hecker, the challenged statute was to become operative whenever constitutionally authorized, without any specification of an election at which such a proposal might be considered. * * * Nevertheless, the Oregon Supreme Court upheld the contingency. Section (9)(f) similarly may be sustained under that directly controlling authority, at least with respect to the operative effect being contingent on amendment of the Oregon Constitution.”

(Emphasis in original.)

As to intervenors' argument that section 9(f) violated Article I, section 21, the trial court first held that

“the contingency rendering Measure 47 operative if it is authorized by constitutional amendment is exactly the same contingency upheld in Hecker. Section (9)(f)'s direction that Measure 47 shall become operative upon amendment of the constitution to allow [campaign contribution and expenditure] limits is permissible.”

The trial court, however, declined to directly address the second contingency in section 9(f), i.e., whether Measure 47 could properly become operative on a future judicial finding. It concluded, instead, that, even if the measure's operative effect could not constitutionally depend on such an occurrence, ORS 174.040 permitted it to sever the offending portion and to give effect to the remainder of section 9(f).

Plaintiffs appealed, and the Court of Appeals affirmed the trial court. In doing so, the Court of Appeals similarly concluded that Measure 47 was inoperative:

“In sum, the substantive provisions of Measure 47 did not, and will not, become operative unless or until Article I, section 8, is amended to permit limitations of the sort deemed unconstitutional in Vannatta I or until the Oregon Supreme Court revisits Vannatta I and determines that such limitations are constitutional under Article I, section 8.”

Hazell, 238 Or.App. at 512, 242 P.3d 743. We subsequently allowed plaintiffs' petitions for review. For the reasons set out below, we affirm the Court of Appeals decision and the trial court's judgment.

ADDITIONAL BACKGROUND—MEASURE 47

The history of this case goes back nearly 18 years to 1994, when Oregon voters enacted Ballot Measure 9 (1994), a citizen initiative that, among other things, set mandatory limits on monetary contributions to state political campaigns. In 1997, this court held in Vannatta v. Keisling, 324 Or. 514, 931 P.2d 770 (1997)( Vannatta I), that such limits—together with campaign expenditure limits—violated the free expression rights guaranteed by Article I, section 8, of the Oregon Constitution. Later, specifically citing Vannatta I for that proposition in 2006, this court stated:

“Since the inception of the Oregon Constitution, Article I, section 8, strictly has prohibited any legislation ‘restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever[.]’ Under Oregon law, both campaign contributions and expendituresare forms of expression protected by that constitutional provision, thus making legislatively imposed limitations on individual political campaign contributions and expenditures impermissible. SeeVannatta v. Keisling, 324 Or. 514, 524, 931 P.2d 770 (1997) (so holding).”

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