Thornton v. Johnson

• Decision Date: 16 April 1969
• Parties: Robert Y. THORNTON, Respondent and Cross-Appellant, v. Lee JOHNSON, Appellant and Cross-Respondent.
• Court: Oregon Supreme Court

Page 178

453 P.2d 178

253 Or. 342

Robert Y. THORNTON, Respondent and Cross-Appellant, v. Lee JOHNSON, Appellant and Cross-Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Feb. 26, 1969.

Decided April 16, 1969.

John R. Faust, Jr., Portland, argued the cause for appellant and cross-respondent. With him on the briefs were Cake, Juareguy, Hardy, Buttler & McEwen, Portland.

Robert B. Duncan and Leo Levenson, Portland, argued the cause and filed a brief for respondent and cross-appellant.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

PER CURIAM.

This proceeding is brought under ORS 251.015--251.090 to contest the election of Lee Johnson to the office of Attorney General for the state of Oregon in the general election held on November 5, 1968. Mr. Johnson appeals from a judgment setting aside the election and declaring the contestant, Robert Y. Thornton elected to the office. Mr. Thornton cross-appeals on the ground that the trial court erroneously found that certain charges of false statements were not supported by the evidence.

Mr. Thornton's petition charged that Mr. Johnson 'wilfully, knowingly, deliberately and materially' violated ORS 260.380(1) of the Corrupt Practices Act in that he knowingly made material false statements relating to the contestant in letters, circulars and in other media. He further charged that Mr. Johnson wilfully, deliberately and materially paid or caused to be paid and knowingly and deliberately authorized and incurred expenses in excess of those permitted by ORS 260.050. By an amended petition filed during the trial the filing of a false report, after election, was also charged.

The case was tried before three judges of the circuit court for Marion County sitting en banc. That court found no violation of ORS 260.370 or 260.380(1) with reference to alleged false statements about Mr. Thornton. But the court found Mr. Johnson guilty of excessive expenditures and of filing a false expenditure report. The trial court was of the opinion that it was compelled by our decision in Cook v. Corbett, 87 Or.Adv.Sh. 177, 446 P.2d 179 (1968), to disqualify Mr. Johnson and declare Mr. Thornton elected. The trial court said:

'* * * Now even though these findings may seem to be unimportant when compared to the grave consequences of our decision, this Court, under the standards impressed upon it in the case of Cook v. Corbett, no longer has discretion and power to determine what may be trivial or unimportant in an election contest; so long as there is a violation of Oregon election law, Cook v. Corbett requires that the office be vacated.'

In view of the trial court's construction of Cook v. Corbett, supra (446 P.2d 179), we wish to further clarify the basis of that decision, which the trial court misconstrued. In the Cook case we expressly held that in order for Cook to prevail it was necessary that he prove three elements: (1) that Corbett made false statements, (2) that she made them deliberately, and (3) that the statements were material.

As to the first element the trial court found that Corbett had made false statements and we concurred in that finding. The evidence clearly established that Corbett made false statements, intending to create the belief in the voters that she was 'the incumbent Senator holding Position No. 4 to which she was seeking re-election.'

As to the second element, we held that the proof that Corbett had made the false statement deliberately was incontrovertible.

As to the third element, we held that conduct may be material even though it may not have changed the result of the election. We further held that 'material' was used in the statute in the sense of 'substantial' as contrasted with 'trivial' and 'unimportant.' We considered Mrs. Corbett's violation and found that it was material in the sense of being substantial.

It is argued that in calling attention to the Report of the 1955 Legislative Interim Committee on Elections and the elimination in 1957 (ch. 217, Oregon Laws 1957, § 7) of the words 'trivial and unimportant and limited in character' from ORS 260.430 we implied that 'material' was synonymous with 'trivial' or 'unimportant.' A careful reading of the opinion will show that a reference to the report and the 1957 amendment was in connection with the authority granted under ORS 260.430 to mitigate the drastic punishment required by the act. We did not imply that in determining whether the act had been violated 'material' was synonymous with 'trivial' or 'unimportant.' On the contrary, we said specifically that material was synonymous with substantial.

Before taking up the evidence relating to the charges we must decide two preliminary matters: (1) the rule of construction applicable to the Corrupt Practices Act, and (2) the allocation and measure of the burden of proof.

The general principle that penal statutes are strictly construed has been applied to the corrupt practices acts of other states. Doughty v. Bryant, 226 Ala. 23, 145 So. 420 (1933); State ex rel. Wright v. Carter, 319 S.W.2d 596 (Mo.1958). There are good reasons for so construing our own act.

In the application of the Act the interest of the parties and the interest of the public must be weighed. An important consideration is the effect which the imposition of the penalty has upon the electorate. ORS 251.080 provides that: 'If the judgment sets aside the nomination or election of a person, it shall also declare as nominated or elected for or to the office in question the other person who received the highest number of votes at the election.' Thus, a finding that the Act has been violated not only punishes the winning candidate by depriving him of his office, but it also disenfranchises all of those citizens who voted for him, in the case at bar, 437,850 voters. Under the statute the person who receives the second highest number of votes takes office, not because he has been elected by the people, but because he is pronounced the winner by an act of the legislature. If the person chosen by the voters is disqualified there simply is no election, McKinney v. Barker, 180 Ky. 526, 203 S.W. 303 at 305, L.R.A.1918E, 581 (1918); Sublett v. Bedwell, 47 Miss. 266, 12 Am.Rep. 338 (1872).

Because a violation of the Act results in disenfranchisement of the voters, we hold that the provisions of the Act should be strictly construed.

The measure of the contestant's burden of proof was not before us in Cook v. Corbett, supra (446 P.2d 179), because the facts in that case were stipulated. The serious consequences visited upon the winning candidate and upon the electorate as a result of disqualification prompt us to construe the Act as imposing upon the contestant the burden of proving a violation of the Act by clear and convincing evidence. When a violation of the Corrupt Practices Act becomes the subject of a criminal prosecution, as it may, the state must prove the violation beyond a reasonable doubt. In a private contest which can result in the disenfranchising of those who voted for the contestee, the contestant should have the burden of proving his case by clear and convincing evidence.

I Contributions and Expenditures

Under the principles laid down in the Cook case, the trial court's conclusion that Mr. Johnson violated the statute by making excessive expenditures can be sustained only if the evidence shows (1) that Mr. Johnson's expenditures exceeded the amount allowed by statute, (2) that he deliberately exceeded the statutory maximum, and (3) that the expenditure, if in excess of the statutory maximum, was material.

Reports filed with the Secretary of State indicate that approximately $140,000 was spent on Mr. Johnson's general election campaign. The law imposes no restriction on the amount that can be spent in a campaign. The law, however, does limit the amount that a candidate may spend from his own funds. ¹ In a general election a candidate personally can spend only 10 per cent of the annual salary of the position for which he is a candidate. In this case the limit was $2,000. The trial court found that Mr. Johnson spent more than $2,000 of his own money, or of money the statute treats as his own. The trial court's findings, however, did not specify what particular expenditures by Mr. Johnson were to be considered campaign expenditures.

Mr. Johnson's amended personal statement of contributions and expenditures filed January 6, 1969, states he contributed $2,000 of which $1,500 was a cash contribution to the Lee Johnson for Attorney General Committee. 'Estimated out of pocket expenses for travel, phone and miscellaneous campaign expenditures' were reported to be $500.

The statement of expenditures filed for the Lee Johnson Committee by its treasurer reports a contribution by Bob Bell of $1,657.90 and a payment to Mr. Bell of the same amount for printing services, postage and stationery. It is contended that this contribution constituted a violation of ORS 260.040 which provides in part that a contribution of a 'fellow official or fellow employe of a corporation' is considered a contribution by the candidate.

Mr. Bell is a director and a vice president of Eagle Flightways, a corporation. Mr. Johnson was secretary of the corporation and his brother was president. Mr. Johnson had no stock in the company and drew no income and contends that for these reasons he and Mr. Bell should not be considered fellow corporate officials within the meaning of the statute. The statute is ambiguous on this point but we shall assume without deciding that even though the contestee was not a stockholder and received no income from the corporation he was a 'fellow official' of the corporation with Bob Bell. The question remains as to whether Bell's contribution was made under circumstances which constituted a 'deliberate' violation of the statute.

The same problem is presented with respect to a contribution of $500 made by Robert T....