Vannatta v. Government Ethics Com'n

• Decision Date: 31 December 2009
• Docket Number: CC 07C20464.,SC S057570.,CA A140080.
• Citation: 222 P.3d 1077,347 Or. 449
• Parties: Fred VANNATTA and Center to Protect Free Speech, Inc., an Oregon Not-For-Profit Corporation, Plaintiffs-Appellants, v. OREGON GOVERNMENT ETHICS COMMISSION, formerly known as the Oregon Government Standards and Practices Commission; and State of Oregon, Defendants-Respondents.
• Court: Oregon Supreme Court

222 P.3d 1077

347 Or. 449

Fred VANNATTA and Center to Protect Free Speech, Inc., an Oregon Not-For-Profit Corporation, Plaintiffs-Appellants, v. OREGON GOVERNMENT ETHICS COMMISSION, formerly known as the Oregon Government Standards and Practices Commission; and State of Oregon, Defendants-Respondents.

CC 07C20464.

CA A140080.

SC S057570.

Supreme Court of Oregon, En Banc.

Argued and submitted August 13, 2009.

Decided December 31, 2009.

John DiLorenzo, Jr., Davis Wright Tremaine LLP, Portland, argued the cause for plaintiffs-appellants. With him on the briefs were Gregory A. Chaimov, Aaron K. Stuckey, and Alan J. Galloway.

Anna M. Joyce, Assistant Attorney General, Salem, argued the cause for defendants-respondents. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Linda K. Williams, Portland, and Daniel W. Meek, Portland, filed a brief on behalf of amici curiae Joan Horton, Ken Lewis, Bryn Hazell, Francis Nelson, Tom Civiletti, David Delk and Gary Duell.

DE MUNIZ, C.J.

Plaintiffs Fred Vannatta and the Center to Protect Free Speech brought this action for declaratory and injunctive relief, asserting that ORS 244.025(1)-(4) and ORS 244.042 (which, in general terms, regulate the solicitation offering, and receipt of gifts by certain public and other persons) violate Article I, sections 8 and 26, of the Oregon Constitution and the First Amendment to the United States Constitution and therefore are unenforceable. We discuss the content of those statutes in greater detail below.

The trial court rejected plaintiffs' constitutional arguments and granted summary judgment in favor of defendants (the state). On review, this court views the facts and all reasonable inferences that may be drawn from them in favor of the nonmoving party— in this case, plaintiffs. Jones v. General Motors Corp., 325 Or. 404, 408, 939 P.2d 608 (1997). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. ORCP 47 C. Plaintiffs assert that there are no factual disputes in this case and that this court should review the trial court's decision for errors of law. The state does not contest that characterization.

We take the facts from the trial court record on summary judgment. Plaintiff Center to Protect Free Speech, Inc. (Center) is a not-for-profit Oregon corporation. Plaintiff Vannatta is an elector and taxpayer and serves as the president of and registered lobbyist for Center. As described in their amended complaint, Vannatta and Center intend to engage in conduct that would violate the statutory gift restrictions in ORS chapter 244, including:

"[O]btaining the good will of public officials and candidates for public office through offering and providing public officials, their families and candidates for public office entertainment, business meals with an aggregate value of more than $50 in a calendar year in connection with their discussions, and honorariums in connection with official duties."

Plaintiffs assert that, because of the restrictions in ORS 244.025 and ORS 244.042, "plaintiffs and some (but not all) other lobbyists in Oregon are prevented from engaging" in those activities and those activities are forms of expression protected by the state and federal constitutions.

In an opinion letter, the trial court agreed with plaintiffs that the statutes at issue in this case regulate gifts that are forms of constitutionally protected expression. However, the trial court concluded that the regulation of that form of expression is permissible, in part because giving gifts to public officials or candidates can create the appearance of bribery, corruption, and impropriety. The trial court later entered a general judgment in favor of the state that declared that the statutory provisions challenged by plaintiffs are valid and enforceable.¹

In this court, plaintiffs argue that ORS 244.025² and ORS 244.042³ impermissibly restrain free expression and lobbying activities in violation of Article I, section 8, of the Oregon Constitution and the First Amendment to the United States Constitution by, among other things, prohibiting expenditures designed to facilitate dialogue and obtain goodwill with public officials. Plaintiffs also argue that the restrictions impermissibly discriminate between different types of speech and different classifications of speakers. Finally, plaintiffs argue that the statutory restrictions violate Article I, section 26, of the Oregon Constitution in that they impermissibly restrain plaintiffs' rights to instruct their representatives and to apply to the Legislative Assembly for the redress of grievances.

ORS chapter 244, sometimes described as the "code of government ethics," was referred to the people by the legislature and adopted by the voters in 1974. ORS chapter 244 is designed "`to deter violation of the legislative policy of safeguarding the public trust inherent in holding a public office.'" City of Tualatin v. City-County Ins. Services Trust, 321 Or 164, 172, 894 P.2d 1158 (1995) (quoting Groener v. Oregon Gov't Ethics Comm., 59 Or.App. 459, 469, 651 P.2d 736 (1982)). Since its enactment, the code of government ethics has placed restrictions on the solicitation and receipt of gifts or favors in excess of $100 by public officials or candidates for office. Former ORS 244.040(1)-(2), (5) (2005). In 2007, however, the legislature enacted Senate Bill (S.B.) 10 (2007), which made several amendments to the code of government ethics, including lowering the monetary limit on certain gifts to $50. Or. Laws 2007, ch. 877, § 18. Plaintiffs challenge is directed to those 2007 legislative changes.⁴

ORS 244.025(1)-(4) and ORS 244.042 enact several distinct restrictions concerning gift-giving to public officials. Those restrictions fall into three categories. The first category, set forth in ORS 244.025(1) and (4)(a) and ORS 244.042(1) and (2), restricts the receipt of specified gifts or gifts of payment for entertainment expenses.⁵ The second category, set forth in ORS 244.025(2), (3), and (4)(b) and (c), restricts the offering of specified gifts or gifts of payment for entertainment expenses. The third category, set forth in ORS 244.025(1) and (4)(a), and ORS 244.042(1) and (2), restricts the solicitation of specified gifts or gifts of payment for entertainment expenses.⁶ We analyze each restriction separately to determine its constitutionality under Article I, section 8.

I. ARTICLE I, SECTION 8

Article I, section 8, of the Oregon Constitution, provides:

"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."

In State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982), this court set out a framework within which to analyze challenges to statutes under Article I, section 8, which the court later summarized in State v. Plowman, 314 Or. 157, 164, 838 P.2d 558 (1992), cert. den., 508 U.S. 974, 113 S.Ct. 2967, 125 L.Ed.2d 666 (1993):

"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. [Robertson,] 293 Or. at 416-17, 649 P.2d 569. 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 demonstrably were not intended to reach.' Id. at 412.

"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. The coercion law at issue in Robertson was of that category. Id. at 417-18, 649 P.2d 569. Such laws are analyzed for overbreadth:

"`When the proscribed means include speech or writing, however, even a law written to focus on a forbidden effect * * * must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such "overbreadth."' Ibid.

"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.' Id. at 417."

(Emphases, brackets, and ellipsis in original; omitted.)

Our first task, then, is to determine whether the various statutes under consideration here are "written in terms directed to the substance of any `opinion' or any `subject' of communication." Robertson, 293 Or. at 412, 649 P.2d 569. As this court observed in Robertson, if a law by its terms restrains the free expression of opinion or restricts the right to speak freely on any subject, it violates Article I, section 8.

A. Gift receipt restrictions

ORS 244.025(1) provides that a public official "may not * * * receive" a gift or gifts exceeding $50 in value from a lobbyist. ORS 244.025(4)(a) prohibits a public official from receiving from a lobbyist payment of expenses for entertainment in any amount. ORS 244.042(1) and (2) prohibit a public official, a candidate for public office, or a member of the official's or candidate's household from receiving from a lobbyist honoraria with a value in excess of $50. For brevity's sake, we...