State v. Moyer

• Decision Date: 07 January 2009
• Docket Number: 040935106.,A128797.,A128798.,040935104.,A128796 (Control).,040935105.
• Citation: 200 P.3d 619,225 Or. App. 81
• Parties: STATE of Oregon, Plaintiff-Appellant, v. Thomas Paul MOYER, Defendant-Respondent. State of Oregon, Plaintiff-Appellant, v. Vanessa Colleen Sturgeon, aka Vanessa Sturgeon, aka Vanessa Colleen Kassab, Defendant-Respondent. State of Oregon, Plaintiff-Appellant, v. Sonja R. Tune, Defendant-Respondent.
• Court: Oregon Court of Appeals

200 P.3d 619

225 Or. App. 81

STATE of Oregon, Plaintiff-Appellant, v. Thomas Paul MOYER, Defendant-Respondent.

State of Oregon, Plaintiff-Appellant, v. Vanessa Colleen Sturgeon, aka Vanessa Sturgeon, aka Vanessa Colleen Kassab, Defendant-Respondent.

State of Oregon, Plaintiff-Appellant, v. Sonja R. Tune, Defendant-Respondent.

040935104.

A128796 (Control).

040935105.

A128797.

040935106.

A128798.

Court of Appeals of Oregon, En Banc.

Argued and submitted on May 29, 2007.

Decided January 7, 2009.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for appellant. On the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General, and Erika Hadlock, Assistant Solicitor General.

Michael T. Garone and Janet Lee Hoffman, Portland, argued the cause for respondents. With them on the joint brief were David Axelrod and Schwabe, Williamson & Wyatt, P.C., Nicholas Cropp and Law Offices of Janet Lee Hoffman, and Ronald Hoevet and Hoevet, Boise & Olson, P.C.

Before BREWER, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, WOLLHEIM, SCHUMAN, ORTEGA, ROSENBLUM, and SERCOMBE, Judges.

LANDAU, J.

Defendants were charged with violating ORS 260.402 (2003),¹ which provides, in essence, that it is unlawful to lie about the source of political campaign contributions. Defendants demurred to the indictment on the ground that the statute, on its face, violates various provisions of the state and federal constitutions, in particular, the free speech guarantees of Article I, section 8, of the Oregon Constitution and the First Amendment to the United States Constitution. The trial court allowed the demurrer on the ground that the statute violates both state and federal constitutional guarantees of freedom of expression. The state appeals, arguing that the trial court erred in concluding that the statute is unconstitutional. We agree with the state and reverse and remand.

I. FACTS

Because this appeal comes to us on the allowance of a demurrer, the only relevant facts are those alleged in the indictment. State v. Illig-Renn, 341 Or. 228, 230 n. 2, 142 P.3d 62 (2006). The first count of the indictment in this case stated:

"The said defendants THOMAS PAUL MOYER and VANESSA COLLEEN KASSAB, on or about May 16, 2003, in the County of Multnomah County, State of Oregon, did unlawfully and knowing[ly] make a contribution to a candidate, in relation to his campaign for election to public office, in a name other than * * * that of the person who in truth provided the contribution, to-wit: by making a contribution of $2,500 in the name of `VANESSA KASSAB' to Jim Francesconi in support of his campaign for the Mayor of Portland, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon[.]"

(Boldface and uppercase in original.) The second count asserted the same charge against defendants Moyer and Tune for a $2,000 contribution in the name of "Sonja Tune."

Defendants demurred and moved to dismiss the indictment, contending that ORS 260.402, the statute that defines the offense, is, on its face, an unlawful restraint on speech and political association and is also impermissibly vague and overbroad, all contrary to limitations on legislation contained in the state and federal constitutions. The trial court allowed the demurrer. The trial court explained that it agreed with defendants that the statute violates the state and federal guarantees of freedom of expression. According to the trial court, "political contributions are clearly speech," and the challenged statute equally clearly regulated it without the safe harbor of a historical exception to the protections afforded by constitutional free speech guarantees. The trial court disagreed with defendants that the statute is unconstitutionally vague.

On appeal, the state argues that the trial court erred in concluding that ORS 260.402 is facially unconstitutional under Article I, section 8, of the Oregon Constitution. The state also asserts that ORS 260.402 is constitutional under the First Amendment to the United States Constitution under the principles articulated in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).

Defendants submit that ORS 260.402 violates Article I, section 8, and the First Amendment because it makes it a crime to engage in speech of a particular content—a political contribution in a false name—and because the statute cannot be narrowed to restrict only the effects of conduct not protected under either Article I, section 8, or the First Amendment. Moreover, defendants cross-assign error and contend that the statute is too vague to be enforced under either the federal or state constitution.

II. ANALYSIS

We begin with a brief description of the challenged statute and the framework of election law of which it is an integral part. We then turn to an analysis of defendants' state constitutional claims, before turning to defendants' federal constitutional contentions. See MacPherson v. DAS, 340 Or. 117, 125-26, 130 P.3d 308 (2006) (Oregon courts analyze state constitutional challenges before turning to federal constitutional challenges).

A. Oregon election campaign finance statutes

ORS 260.055(1) provides that all political candidates and treasurers for political committees must "keep detailed accounts" of contributions received and expenditures made by or on behalf of the candidate or the political committee. At various points during an election cycle, the candidates and political committees are required to file statements of such contributions and expenditures with the appropriate "filing officer." E.g., ORS 260.058 (statements of candidates and principal campaign committees for elections other than general elections); ORS 260.063 (statements of political committees other than principal campaign committees for elections other than general elections); ORS 260.068 (statements of candidates and principal campaign committees for general elections); ORS 260.073 (statements of political committees other than principal campaign committees for general elections); ORS 260.076 (statements of legislative officials or candidates for legislative office).

Any contribution from a person or campaign committee "that contributed an aggregate amount of more than $50" must be listed in the statement individually, along with the contributor's name, address, and occupation. ORS 260.083(1)(a). "The statement may list as a single item the total amount of other contributions, but shall specify how those contributions were obtained." Id.

The filing officer is required to review the statements of contributions and expenditures and notify candidates or committees who have failed to file statements as required or who have failed to file statements that comply with all statutory requirements. ORS 260.205; ORS 260.215. Failure to file a proper statement of contributions and expenditures can lead to a court order compelling such a proper filing, ORS 260.225(1); imposition of civil penalties, ORS 260.232; and removal of the candidate or measure from the ballot, ORS 260.241(2).

The filing officer is then required to preserve the filed statements and to prepare for each election a summary that is to be made available to the public. ORS 260.255(1), (2). The summaries are required to include a list of "all expenditures that total $100 or more to any one person and a list of all contributions of more than $50." ORS 260.255(3).

The source of a candidate's or a committee's information about contributions is the contributor himself or herself. Obviously, the linchpin of the system of reporting contributions is the accuracy of the information reported to the candidate or committee; it is that information that provides the basis for the candidate's or the committee's statements to the filing officer. As a result, the legislature enacted what is now codified at ORS 260.402, making it a criminal offense for a person to provide false information about the source of campaign contributions to a candidate or committee. Specifically, that statute provides, in part:

"No person shall make a contribution to any other person, relating to a nomination or election of any candidate or the support or opposition to any measure, in any name other than that of the person who in truth provides the contribution."

As defined by ORS 260.005(3)(a), "contribution" includes:

"(A) The payment, loan, gift, forgiving of indebtedness, or furnishing without equivalent compensation or consideration, of money, services other than personal services for which no compensation is asked or given, supplies, equipment or any other thing of value:

"(i) For the purpose of influencing an election for public office or an election on a measure, or of reducing the debt of a candidate for nomination or election to public office or the debt of a political committee; or

"(ii) To or on behalf of a candidate, political committee or measure; and

"(B) Any unfulfilled pledge, subscription, agreement or promise, whether or not legally enforceable, to make a contribution."

Thus, a violation of ORS 260.402 occurs by an actual or promised transfer of money, certain services, or things of value directly or indirectly to a political campaign "in any name other than that of the person who in truth provides the contribution." A false name contribution could occur by a contributor using either someone else's name or someone else's money in the making of the contribution. In either event, the gravamen of the offense is the fact that the contributor is supplying false information to the recipient of the contribution. At issue in this case is the constitutionality of the statute that prohibits providing such false information.

B. Article I, section 8

1. The analytical framework

We begin with the question whether ORS 260.402 violates the free speech guarantee of Article I, section 8, of the Oregon Constitution. That section provides that "[n]o law...