The State of the Constitutions: New Developments in Federal and State Constitutional Law
Cosponsored by the Constitutional Law Section
Friday, November 22, 2013 9 a.m.–3:45 p.m.
Embassy Suites Portland Downtown Portland, Oregon
5.5 General CLE credits THE STATE OF THE CONSTITUTIONS: NEW DEVELOPMENTS IN FEDERAL AND STATE CONSTITUTIONAL LAW
SECTION PLANNERS
Planning Cochair: Erin J. Snyder, Lewis & Clark Law School, Portland Planning Cochair: Jennifer Middleton, Johnson Johnson Larson & Schaller PC, Eugene Matthew J. Kalmanson, Hart Wagner LLP, Portland The Honorable Erin C. Lagesen, Oregon Court of Appeals, Salem Alycia N. Sykora, Alycia N. Sykora PC, Bend Edward H. Trompke, Jordan Ramis PC, Lake Oswego
OREGON STATE BAR CONSTITUTIONAL LAW SECTION EXECUTIVE COMMITTEE
Honorable David Schuman, Chair C. Robert Steringer, Chair-Elect Edward H. Trompke, Past Chair Gregory A. Chaimov, Treasurer Erin J. Snyder, Secretary Honorable Roger J. DeHoog John Paul Toby Graff Matthew J. Kalmanson The Honorable Erin C. Lagesen Honorable Jack L Landau Maureen Leonard Jennifer Middleton Chin See Ming P. K. Runkles-Pearson Alycia N. Sykora
The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials.
Copyright © 2013
OREGON STATE BAR 16037 SW Upper Boones Ferry Road P.O. Box 231935 Tigard, OR 97281-1935
The State of the Constitutions: New Developments in Federal and State Constitutional Law ii TABLE OF CONTENTS
1A. Recent Developments in Constitutional Law—Presentation Outline 1A–i — Professor Pamela S. Karlan, Stanford Law School, Stanford, California
1B. Some Thoughts About State Constitutional Interpretation 1B–i — The Honorable Jack L. Landau, Oregon Supreme Court, Salem, Oregon
1C. Developments in State Constitutionalism—Three Cases ...... 1C–i — Professor Paul A. Diller, Willamette University College of Law, Salem, Oregon
1D. Should the Oregon Constitution Be Revised, and If So, How Should It Be Accomplished? 1D–i — Professor Robert F. Williams, Rutgers University School of Law–Camden, Camden, New Jersey
1E. Why State Constitutions Matter 1E–i — Professor Robert F. Williams, Rutgers University School of Law–Camden, Camden, New Jersey
2. The Oregon Constitution and Cases in 2013 ...... 2–i — Alycia N. Sykora, Alycia N. Sykora PC, Bend, Oregon
3. Summaries of Recent Constitutional Decisions ...... 3–i — The Honorable Stephen K. Bushong, Multnomah County Circuit Court, Portland, Oregon
The State of the Constitutions: New Developments in Federal and State Constitutional Law iii The State of the Constitutions: New Developments in Federal and State Constitutional Law iv SCHEDULE
8:00 Registration 9:00 U.S. Supreme Court Review and Preview Professor Pamela S. Karlan, Stanford Law School, Stanford, CA 10:30 Break 10:45 Developments in State Constitutionalism Moderator: Professor Pamela S. Karlan, Stanford Law School, Stanford, CA The Honorable Jack L. Landau, Oregon Supreme Court, Salem Professor Paul A. Diller, Willamette University College of Law, Salem Professor Robert F. Williams, Rutgers University School of Law–Camden, Camden, NJ Noon Lunch 1:00 Oregon Constitutional Law: 2013 Update F Seeing is believing: eyewitness testimony after State v. Lawson/James F A right to reject life? Why can the governor override a death row inmate’s death wish? Haugen v. Kitzhaber F Executive discretion unchained? State v. Savastano F Rape survivors’ privacy collides with Open Courts—State v. MacBale The Honorable Jack L. Landau, Oregon Supreme Court, Salem The Honorable David Schuman, Oregon Court of Appeals, Salem Alycia N. Sykora, Alycia N. Sykora PC, Bend 2:15 Break 2:30 Litigating State Constitutional Law Issues F Remedies clause F Right to a civil jury trial F Takings clause F Free speech and assembly Moderator: The Honorable Stephen K. Bushong, Multnomah County Circuit Court, Portland Kathryn H. Clarke, Attorney at Law, Portland Janet M. Schroer, Hart Wagner LLP, Portland Stephanie Striffler,Appellate Division, Oregon Department of Justice, Salem Timothy R. Volpert, Davis Wright Tremaine LLP, Portland 3:45 Adjourn
The State of the Constitutions: New Developments in Federal and State Constitutional Law v The State of the Constitutions: New Developments in Federal and State Constitutional Law vi FACULTY
The Honorable Stephen K. Bushong, Multnomah County Circuit Court, Portland. Judge Bushong has been a Circuit Court Judge in Multnomah County since February 2008. He was named Chief Civil Judge in 2013. He worked for the Oregon Department of Justice from 1994 until he was appointed to the bench. At DOJ, he served as an Assistant Attorney General, Attorney-in-Charge of the Special Litigation Unit, and Chief Trial Counsel of the Department’s Trial Division. Judge Bushong serves on the Oregon Law Commission and has served on the Oregon State Bar’s Uniform Civil Jury Instruction committee, on the executive committees of the OSB’s Litigation and Government Law sections, and as chair of Multnomah Bar Association’s Professionalism Committee. He authored chapters in the Oregon State Bar’s Civil Pleading and Practice manual and constitutional law CLE seminars and articles on “Recent Significant Oregon Cases” featured in the OSB Litigation Journal.
Kathryn H. Clarke, Attorney at Law, Portland. Ms. Clarke has practiced law for 30 years, focusing primarily on appellate practice and consultation on legal issues in complex tort litigation. She specializes in civil procedure and evidentiary issues; tort law generally and in particular product liability, medical negligence, and fraud; insurance law; and constitutional law. She is a member of the Oregon Trial Lawyers Association Board of Governors. She is one of Oregon’s two representatives to the American Association for Justice Board of Governors and a member and occasional cochair of that organization’s Amicus Curiae and Legal Affairs committees. Ms. Clarke is a trustee and immediate past president of the Roscoe Pound Foundation. She taught a seminar in Advanced Torts for several years as an adjunct faculty member at Lewis and Clark Law School. In 2008 she served as a member of a work group on Tort Conflicts of Law for the Oregon Law Commission, which resulted in a bill passed by the 2009 legislature. She has served as member and chair of the Council on Court Procedures and as a member of the Oregon State Bar’s Uniform Civil Jury Instructions Committee. In 2006, Ms. Clarke was honored as Distinguished Trial Lawyer by the Oregon Trial Lawyers Association.
Professor Paul A. Diller, Willamette University College of Law, Salem. Professor Diller’s research focuses on local government, policy innovation, and related issues of state and federal constitutional law. He has also written on national security law, particularly the rights of detained individuals. His scholarly work has appeared in, among other journals, the Stanford Law Review, The University of Chicago Law Review, the Michigan Law Review, and the Georgetown Law Journal. In 2010 and 2013, Professor Diller received Willamette Law’s Robert L. Misner Award for Excellence in Faculty Scholarship. Professor Diller teaches State and Local Government, State Constitutional Law, and Property. He is admitted to practice in New York and New Jersey and before the United States Supreme Court.
Professor Pamela S. Karlan, Stanford Law School, Stanford, CA. A productive scholar and award- winning teacher, Professor Karlan is also codirector of the school’s Supreme Court Litigation Clinic, where students litigate live cases before the Court. One of the nation’s leading experts on voting and the political process, she has served as a commissioner on the California Fair Political Practices Commission and an assistant counsel and cooperating attorney for the NAACP Legal Defense Fund. Professor Karlan is the coauthor of leading case books on constitutional law, constitutional litigation, and the law of democracy, as well as numerous scholarly articles. She also writes a column on the Supreme Court and legal issues for the Boston Review. Professor Karlan is a member of the American Academy of Arts and Sciences, the American Academy of Appellate Lawyers, and the American Law Institute and serves as a member of the Board of Directors for the American Constitution Society.
The State of the Constitutions: New Developments in Federal and State Constitutional Law vii FACULTY (Continued)
The Honorable Jack L. Landau, Oregon Supreme Court, Salem. In 1989, Justice Landau left private practice to work at the Oregon Department of Justice, first as the Attorney-in-Charge of the Trial Division’s Special Litigation Unit and later as Oregon’s Deputy Attorney General. He represented state agencies in state and federal court at trial and on appeal, including before the United States Supreme Court. In December 1992, Governor Barbara Roberts appointed Justice Landau to the Oregon Court of Appeals, and he served on that court for the next 18 years. In May 2010, Justice Landau was elected to the Oregon Supreme Court, where he has been serving since January 2011. Justice Landau has been a member of the adjunct faculty at Willamette University College of Law for 21 years, where he teaches Legislation. He is a member of the Oregon Council on Court Procedures, the Oregon State Bar Professionalism Commission, and the Constitutional Law Section Executive Committee and an editor of the Oregon State Bar’s publication Interpreting Oregon Law. He is also the author of a number of law review articles on statutory interpretation and state constitutional law. Justice Landau holds an LL.M. from the University of Virginia School of Law. Janet M. Schroer, Hart Wagner LLP, Portland. Ms. Schroer’s practice emphasizes tort litigation, both trial and appellate, particularly medical and legal malpractice defense and licensing matters. She is a member of the American Board of Trial Advocates, the American Academy of Appellate Lawyers, the Multnomah Bar Association, the Oregon Association of Defense Counsel Amicus Committee, and the Oregon Medical Association. She also serves as an arbitrator for Multnomah County Circuit Court and uninsured motorist actions and as a circuit court judge pro tem. Ms. Schroer has served as coeditor of the Oregon State Bar publication Civil Pleading and Practice, and she is a frequent speaker on malpractice, trial, and appellate issues. She is admitted to practice before the United States Supreme Court. The Honorable David Schuman, Oregon Court of Appeals, Salem. Judge Schuman has been a judge of the Oregon Court of Appeals since 2001. Before joining the Court of Appeals, he practiced law in the Oregon Department of Justice as Assistant Attorney General in the Appellate Division and as Deputy Attorney General. Judge Schuman taught law at the University of Oregon School of Law, where he also served as Associate Dean for Academic Affairs for four years. While teaching law, Judge Schuman received the Ersted Award for Distinguished Teaching and published scholarly articles in the Oregon Law Review, Michigan Law Review, Vermont Law Review, American Criminal Law Review, Temple Law Review, and many other journals, as well as articles in The Washington Post, The Oregonian, The Chronicle of Higher Education, and other periodicals. Stephanie Striffler,Appellate Division, Oregon Department of Justice, Salem. Ms. Striffler is a Senior Assistant Attorney General in the Oregon Department of Justice Appellate Division and also serves as the department’s Native American Affairs Coordinator. During her years at the Oregon Department of Justice, she has also held the positions of Special Counsel to the Attorney General and Attorney-in- Charge of the Special Litigation Unit. Ms. Striffler has handled a variety of takings-related litigation and participated in the Department of Justice’s efforts regarding Measures 7 (2000), 37 (2004), and 49 (2007). She coauthored the chapter on the “Takings Clause” in the Oregon State Bar’s Constitutional Law publication. Alycia N. Sykora, Alycia N. Sykora PC, Bend. Ms. Sykora’s practice includes civil litigation and appeals. Before entering private practice, she clerked for the Oregon Supreme Court and served as an Honors Attorney for the Oregon Department of Justice. She has taught Introduction to Comparative Politics at Central Oregon Community College in Bend and coordinates the American Constitution Society’s Constitution in the Classroom Project in Central Oregon.
The State of the Constitutions: New Developments in Federal and State Constitutional Law viii FACULTY (Continued)
Timothy R. Volpert, Davis Wright Tremaine LLP, Portland. Mr. Volpert’s practice focuses on complex litigation in state and federal trial courts, including cases involving constitutional, commercial, education, employment, and telecommunications law. His practice emphasizes appellate litigation. He successfully represented the petitioner before the U.S. Supreme Court in Vernonia School District 47J v. Acton, a landmark case holding that drug testing of public school athletes does not violate the Fourth Amendment. He has lectured on United States Supreme Court practice, sports law, and legal research and writing at Lewis & Clark Law School since 2000. Mr. Volpert is the 2004 recipient of the Oregon State Bar President’s Public Service Award. Professor Robert F. Williams, Rutgers University School of Law–Camden, Camden, NJ. Professor Williams is a Distinguished Professor of Law. He has been the legislative advocacy director and executive director of Florida Legal Services, Inc., an International Legal Center Fellow in Kabul, Afghanistan, and a reporter for the Florida Law Revision Council’s Landlord-Tenant Law Project. Professor Williams is the author of numerous articles on state constitutions and statutory interpretation, among other topics. He is admitted to practice in Florida and New Jersey and before the United States Supreme Court. Professor Williams holds an LL.M. from the New York University School of Law and one from Columbia University Law School.
The State of the Constitutions: New Developments in Federal and State Constitutional Law ix The State of the Constitutions: New Developments in Federal and State Constitutional Law x Chapter 1A Recent Developments in Constitutional Law—Presentation Outline
Professor Pamela S. Karlan Stanford Law School Stanford, California Chapter 1A—Recent Developments in Constitutional Law—Presentation Outline
The State of the Constitutions: New Developments in Federal and State Constitutional Law 1A–ii Chapter 1A—Recent Developments in Constitutional Law—Presentation Outline
Recent Developments in Constitutional Law
Pam Karlan Stanford Law School [email protected]
To participants in the Oregon State Bar CLE Seminar on Constitutional Law: I’m looking forward to discussing recent developments in U.S. constitutional law with you. Here is an outline of the topics I’ll focus on.
I. Introduction
A. The shape of recent Supreme Court Terms at 30,000 feet
B. The Docket
C. The Justices
II. The Structural Constitution
A. The Commerce and Spending Clauses and The Affordable Care Act Cases
B. The Recess Appointments Clause: NLRB v. Noel Canning
C. Federalism
1. Arizona v. InterTribal Council
2. Bond v. United States
3. Personal Jurisdiction: Goodyear, Nicastro, and Baumann
III. Individual Rights
A. The First Amendment
1. Campaign Finance: From Citizens United to McCutcheon
2. The “Free Speech” Court?: From Stevens and Snyder v. Phelps to the Stolen Valor Case
3. The Religion Clause Cases: Town of Greece and the Contraceptive Mandate
The State of the Constitutions: New Developments in Federal and State Constitutional Law 1A–1 1 Chapter 1A—Recent Developments in Constitutional Law—Presentation Outline
B. Equal Protection
1. The Race Cases: Fisher v. University of Texas, Shelby County v. Holder, Mount Holly, and Schuette v. Coalition to Defend Affirmative Action
2. Sexual Orientation: Perry and Windsor
C. Criminal Justice
1. The Fourth Amendment and Technology
a. United States v. Jones
b. Maryland v. King
c. The cellphone cases: Riley v. California and United States v. Wurie
2. The Fifth Amendment: Salinas v. Texas
IV. Conclusion
The State of the Constitutions: New Developments in Federal and State Constitutional Law 1A–2 2 Chapter 1A—Recent Developments in Constitutional Law—Presentation Outline
The State of the Constitutions: New Developments in Federal and State Constitutional Law 1A–3 Chapter 1A—Recent Developments in Constitutional Law—Presentation Outline
The State of the Constitutions: New Developments in Federal and State Constitutional Law 1A–4 Chapter 1B Some Thoughts About State Constitutional Interpretation1
The Honorable Jack L. Landau Oregon Supreme Court Salem, Oregon
1 Reprinted with permission of author. Chapter 1B—Some Thoughts About State Constitutional Interpretation
The State of the Constitutions: New Developments in Federal and State Constitutional Law 1B–ii Chapter 1B—Some Thoughts About State Constitutional Interpretation
Some Thoughts About State Constitutional Interpretation
Jack L. Landau1
I have been asked to offer my thoughts about state constitutional interpretation. That is a generous invitation; “state constitutional interpretation” covers a lot of ground. To avoid my response from becoming unmanageably long, I have decided to focus on what I see as some core issues pertaining to the interpretation of state constitutions, which I have organized in terms of three questions: “whether,” “when,” and “how.” By “whether,” I refer to the question of whether state constitutions should be given independent legal significance at all. The issue arises when a state constitutional provision concerning individual rights finds a parallel in the federal constitution. Some contend that recognizing the independent significance of state constitutions is not worth the trouble and that, in fact, state constitutions are not even “constitutional.” I think those who take such positions offer some interesting and provocative perspectives. But I suggest that, in the real world, they do not undermine the essential legitimacy of state constitutionalism. By “when,” I refer to the timing of state constitutional interpretation in relation to the interpretation of parallel provisions of the federal Constitution. There are several different approaches. Some take the position—known as the “primacy” position—that courts always should begin constitutional analysis with state constitutions and proceed to federal constitutional analysis only if a state constitution does not provide an answer to the issue at hand. Others take the opposite view— known as the “interstitial” view—that courts should begin with the federal Constitution and reach state constitutional provisions only if the federal Constitution fails to afford complete relief. Still others take a sort of middle position, arguing that engaging in state constitutional analysis
1. Associate Justice, Oregon Supreme Court; Adjunct Professor of Law, Willamette University College of Law. Thanks to Thomas Balmer, Diane Bridge, Hans Linde, Sarah Peterson, Debra Rosenberger, David Schuman, Francine Shetterly, Alycia Sykora, Aubrey Thomas, and Rob Wilsey for many helpful suggestions. Any errors that remain are mine.
837
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depends on a weighing of a variety of factors. I am, for reasons that I will explain, firmly of the primacy perspective. By “how,” I refer to questions of interpretive method or theory. This, of course, is a subject that has received an astonishing amount of attention from legal scholars over the past 50 years, at least with respect to the federal Constitution. It is difficult to find a general law review that does not sport at least one article that struggles with “the counter- majoritarian difficulty” and the legitimacy of federal judicial review. Little attention has been paid to state constitutional interpretive method or theory, however. That is unfortunate. The legitimacy concerns that have prompted the outpouring of scholarship about federal judicial review over the last half-century are, although somewhat different in nature, no less important in the case of state judicial review. Judges, lawyers, and scholars should pay more attention to state constitutional method or theory. As for the specifics of how I think state constitutional method should work, I offer no grand unified theory. Principally, that is because, in my view, no grand unified theory exists that is completely satisfactory. None eliminates judgment from the interpretive process. That does not mean that interpretation is a free-for-all. Some principles of state constitutional interpretation can serve to address legitimacy concerns and will be useful in the vast majority of cases. In brief, I suggest that the proper method of interpretation of state constitutions depends on the nature of the provision involved. Interpretation of more recently adopted and specific provisions—which are often accompanied by a well-developed historical record—should closely hew to the wording as understood by those who adopted them. Older, more open-ended provisions, in contrast—those often unaccompanied by a well-developed historical record (if any record at all)—require a more dynamic approach to interpretation, one that searches for a more general principle that may be applied to modern circumstances. State constitutional interpretation also must take into account the doctrine of stare decisis and the effect of prior judicial decisions. But I propose that, in the case of state constitutional interpretation, the pull of stare decisis may not be as strong as it is in other contexts. Finally, there will be cases in which rules of interpretation will not yield a clear answer as to the meaning of a constitutional provision. In such cases, courts simply must do the best that they can. The important principle, it seems to me, is for courts to show their math and be candid about the elements of judgment that are entailed in arriving at a given interpretation.
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I. WHETHER: THE LEGITIMACY OF STATE CONSTITUTIONALISM The first question is whether we should bother with state constitutional interpretation at all. It may seem an odd question, but the fact is that there are scholars who challenge the legitimacy of the enterprise. And there are state courts that refuse to give independent significance to state constitutions, at least when parallel provisions exist in the federal constitution.2 The justifications for ignoring the independent significance of state constitutions seem to boil down to three criticisms of state constitutions and the cases that interpret them: State constitutions are not “constitutional” in the first place; state constitutional law decisions are incoherent; and such decisions serve unnecessarily to fragment our nation’s laws. Let’s briefly consider each of those criticisms.
A. Whether State Constitutions Are “Constitutional”
The first criticism of state constitutionalism has to do with the nature of the constitutions themselves, particularly in comparison with the federal Constitution: State constitutions are not very “constitutional.” The criticism is aimed at the form of state constitutions as well as their content. The forms of state constitutions often differ from the federal Constitution.3 State constitutions frequently are quite long and detailed. While the federal Constitution comprises a mere 8,700 words, the average length of a state constitution is four times that, and the longest state constitution (Alabama’s) clocks in at over 350,000 words. Partly, this is because state constitutions are relatively easy to amend. Tallies of state constitutional amendments run into the several thousands, compared to a total of 26 or 27 (depending on how you count them)4 amendments of the federal Constitution.5
2. In fact, it appears that a majority of states do so. See Michael E. Solimine, Supreme Court Monitoring of State Courts in the Twenty-First Century, 35 IND. L. REV. 335, 338 (2002) (“[T]he majority of state courts, on most issues, engage in an analysis in lockstep with their federal counterparts.”). For an example of a spirited defense of such lockstep interpretation in the search-and-seizure context, see Michael E. Keasler, The Texas Experience: A Case for the Lockstep Approach, 77 MISS. L.J. 345 (2007). 3. For excellent introductions to “the distinctiveness of state constitutionalism,” see G. ALAN TARR, UNDERSTANDING STATE CONSTITUTIONS 6-28 (1998); see also ROBERT F. WILLIAMS, THE LAW OF AMERICAN STATE CONSTITUTIONS 20-36 (2009). 4. I refer to the debate over the question whether the Twenty-Seventh Amendment, which Congress first transmitted to the states for ratification in 1789, was lawfully ratified when Michigan became the 38th state to ratify it, in 1992. Some have argued that, although Congress never specified a time limit for ratification, the Constitution implies one. See, e.g., Steward Dalzell & Eric Beste, Is the Twenty-Seventh Amendment
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The subjects of the state constitutions are considerably more wide- ranging than their federal counterpart, and include such matters as local governments, education, taxation and public finance, and corporations, along with more unusual topics such as state lotteries and the regulation of charitable organization bingo games,6 the width of ski trails,7 the taxation of golf courses,8 the regulation of automatic teller machines,9 and (my favorite) the sale of liquor by the individual glass.10 The length, relative malleability, and variety of sometimes seemingly mundane and “nonconstitutional” subjects that state constitutions often include has, as G. Alan Tarr observed, “prevented many scholars from taking state constitutions seriously.”11 As one such scholar, James A. Gardner, observed, those who would put such matters into a constitution as the right to ski are “simply a frivolous people who are unable to distinguish between things that are truly important and things that are not.”12 Some scholars have gone so far as to suggest that the problem is worse than length, or susceptibility to change, or silly subjects; rather, it is that state constitutions are not actually “constitutional” in the first place. Professor Gardner, for instance, has suggested that state constitutions do not satisfy the basic Lockean requirements of “constitutional positivism,” that is, the idea that state constitutions have legitimacy as “fundamental” law derived from the voluntary choice of autonomous and independent individuals.13 Because the citizens of the states are neither autonomous nor truly independent—by virtue of their
200 Years Too Late?, 62 GEO. WASH. L. REV. 501 (1994); see also LAURENCE H. TRIBE, THE INVISIBLE CONSTITUTION xvii-xxi, 3 (2008). 5. See generally JOHN DINAN, THE AMERICAN STATE CONSTITUTIONAL TRADITION 8-11 (2006). 6. OR. CONST. art. XV, § 4(2). 7. N.Y. CONST. art XIV, § 1. 8. CA. CONST. art. X, § 2. 9. TEX. CONST. art 16, § 16. 10. OR. CONST. art. I, § 39. 11. TARR, supra note 3, at 2. 12. James A. Gardner, The Failed Discourse of State Constitutionalism, 90 MICH. L. REV. 761, 819-20 (1992) [hereinafter Gardner, Failed Discourse]. 13. James A. Gardner, What is a State Constitution?, 24 RUTGERS L.J. 1025, 1028- 30 (1993) (“[S]tate constitutions, to put it bluntly are not ‘constitutional’ as we understand the term.”). Professor Gardner has refined and developed his critique of state constitutionalism in JAMES A. GARDNER, INTERPRETING STATE CONSTITUTIONS: A JURISPRUDENCE OF FUNCTION IN A FEDERAL SYSTEM (2005). In that work, he does not contend that state constitutionalism has no place at all; rather, he contends that state constitutional interpretation must be appreciated in the context of the larger federal system in which the states exist as “agents of federalism” with a role to play in limited circumstances. Id. at 228-67. See also Jim Rossi, The Puzzle of State Constitutions, 54 BUFF. L. REV. 211, 224 (2006) (book review) (questioning whether Gardner’s view of federalism “is overly myopic for state constitutionalism”).
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obligations as citizens of the nation—their state constitutions are not truly “constitutional.” Personally, I regard complaints about the form and substance of state constitutions as much ado about very little. Of course, state constitutions are different from the federal Constitution. But that does not necessarily mean that they are any less “constitutional.” State constitutions perform the function that we expect of constitutions: they constitute.14 They allocate power derived from the people who ratify them among branches or departments of government and then set limits on the exercise of that power. To be sure, the exercise of that power is sometimes subject to the superior authority of the federal government. But the extent to which the federal governmental power supersedes the authority of the states should not be exaggerated. The fact is that, in the real world, Americans are governed more extensively, more completely by state law that is enacted pursuant to state constitutional authority than by federal law.15 In that vein, it bears remembering that it was not until after the Civil War that the Fourteenth Amendment was adopted and not until the early twentieth century that courts began to apply the federal Bill of Rights to the states through the Due Process Clause of that amendment.16 Thus,
14. Cf. AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 5 (2005) (the federal Constitution is “not merely a text but a deed—a constituting”) (emphasis in original). 15. WILLIAMS, supra note 3, at 3 (“Most Americans’ daily lives are governed much more directly by state rather than federal laws, as enacted (and limited) pursuant to the provisions of 50 state constitutions.”); see also Neal Devins, How State Supreme Courts Take Consequences into Account: Toward a State-Centered Understanding of State Constitutionalism, 62 STAN. L. REV. 1629, 1636 (2010) (“Over the past thirty years, state courts have eclipsed the U.S. Supreme Court in shaping the meaning of constitutional values, both in their home states and throughout the nation.”). According to the National Center for State Courts, the state appellate courts received over 280,000 appeals in 2007, the most recent year for which data have been analyzed. The 43 states reporting data to the NCSC issued over 7,000 written opinions that year. See Nat’l Ctr. for State Courts, Court Statistics Project, (2010), available at http://www.ncsconline.org/D_Research/ CSP/CSP_Main_Page.html. That same year, the U.S. Supreme Court received a total of 8,241 filings, resulting in a total of 67 signed opinions. CHIEF JUSTICE JOHN ROBERTS, 2008 YEAR-END REPORT ON THE FEDERAL JUDICIARY 10 (2008), available at http://www.supremecourt.gov/publicinfo/year-end/2008year-endreport.pdf. 16. Scholarship on the incorporation of the Bill of Rights through the Fourteenth Amendment is truly voluminous. Among recent works that contain useful summaries are 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 160-85 (1998); AMAR, supra note 14, at 363-80; RAOUL BERGER, GOVERNMENT BY THE JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 155-89 (2d ed. 1997); MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); GARRETT EPPS, DEMOCRACY REBORN: THE FOURTEENTH AMENDMENT AND THE FIGHT FOR EQUAL RIGHTS IN POST-CIVIL WAR AMERICA (2006); and WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988). For an interesting history of the construction of the history of the Reconstruction amendments, see generally PAMELA BRANDWEIN, RECONSTRUCTING
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for the first century (and then some) of our nation’s existence, it was the state constitutions—not the federal Constitution—that supplied the principal guarantees of individual rights.17 During that time, no one gave a second thought to the independent legal significance of those state constitutions. It was not until the mid-twentieth century, when the United States Supreme Court began to interpret the federal Bill of Rights more liberally than state courts had been interpreting state constitutions, that state constitutional jurisprudence atrophied. In the face of federal constitutional decisions that were more protective of individual rights, state courts came to regard state constitutional interpretation—at least interpretation of state bills of rights—as academic.18 But, with the emergence of a more conservative Supreme Court in the 1970s, a number of state courts returned to their own state constitutions as sources of individual rights more protective than those recognized under the federal Constitution.19 It was at that point that criticism of the “new judicial federalism” began, along with criticism of it as if it were some sort of aberration from a more nationalistic constitutional norm.20 Thus, the “new” judicial federalism was not actually very new.
B. The Incoherence of State Constitutional Decisions
A second criticism of state constitutionalism is that it is incoherent. Critics contend that regarding state constitutions as independently
RECONSTRUCTION: THE SUPREME COURT AND THE PRODUCTION OF HISTORICAL TRUTH (1999). 17. See generally Robert K. Kirkpatrick, Neither Icarus nor Ostrich: State Constitutions as Independent Sources of Individual Rights, 79 N.Y.U. L. REV. 1833, 1836 (2004) (“[F]or the first 175 years after the adoption of the federal Constitution, state constitutions were the primary guarantors of individual rights.”); see also Hugh D. Spitzer, New Life for the “Criteria Tests” in State Constitutional Jurisprudence: “Gunwall Is Dead—Long Live Gunwall!,” 37 RUTGERS L.J. 1169, 1171 (2006) (“Throughout the nineteenth century and until the growth of the national government during and after the New Deal, the focus of American constitutional law was at the state level.”); Morton J. Horowitz, Republican Origins of Constitutionalism, in TOWARD A USABLE PAST: LIBERTY UNDER STATE CONSTITUTIONS 148, 148 (Paul Finkelman & Stepen E. Gottlieb eds., 1991) (“American constitutional law in any real functional sense before the Civil War is American state constitutional law.”). 18. See, e.g., JENNIFER FRIESEN, STATE CONSTITUTIONAL LAW: LITIGATING INDIVIDUAL RIGHTS, CLAIMS, AND DEFENSES § 1-1 n.11 (1992) (“A generation of overreliance by law professors, judges, and attorneys on the federal doctrines that grew out of Warren Court decisions left state constitutional law in a condition of near atrophy in most states.”). 19. For an excellent historical introduction to the transformation of state constitutional law, see generally WILLIAMS, supra note 3, at 113-34. 20. See, e.g., Earl M. Maltz, False Prophet—Justice Brennan and the Theory of State Constitutional Law, 15 HASTINGS CONST. L.Q. 429 (1988) (criticizing the apparent liberal political agenda of the new judicial federalism).
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significant has done little more than provide state courts with an opportunity to depart from federal constitutional principles and reach results more pleasing to those courts than the federal law would otherwise allow. Gardner, for example, has complained that state constitutional law consists of “a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements.”21 He is not alone. Professor James Diehm has similarly referred to the “perplexing melange [sic] of disparate constitutional principles” reflected in state constitutional decisions.22 Even some state judges have criticized their colleagues’ state constitutional decisions as result-oriented opportunism.23 I think those complaints are fair criticism. State constitutional decisions can be perplexing, and some do lend themselves to the allegation that they are little more than opportunities for state courts to avoid federal constitutional precedent. But granting the truth of that criticism does not justify the conclusion that critics draw from it, that is, that the source of the incoherence is the fact that state constitutions are not “constitutional” in the first place.24 I am hardly the first to observe that the same incoherence charge fairly may be—and has been—leveled at U.S. Supreme Court decisions interpreting the apparent gold standard of constitutionalism, the federal Constitution.25 Case law applying the Fourth Amendment has come in for a particularly brutal beating in scholarly journals lately. One
21. Gardner, Failed Discourse, supra note 12, at 763. 22. James W. Diehm, New Federalism and Constitutional Criminal Procedure: Are We Repeating the Mistakes of the Past?, 55 MD. L. REV. 223, 244 (1996); see also George Deukmejian & Clifford K. Thompson, Jr., All Sail and No Anchor—Judicial Review Under the California Constitution, 6 HASTINGS CONST. L.Q. 975 (1979) (objecting to California state constitutional decisions as “result-oriented”). 23. See, e.g., Commonwealth v. Amendola, 550 N.E.2d 121, 127 (Mass. 1990) (Nolan, J., dissenting) (“It seems that, whenever we wish to expand the rights of defendants in criminal cases, we simply invoke the Massachusetts Constitution without so much as a plausible argument that the Massachusetts Constitution requires the expansion.”); Commonwealth v. Panetti, 547 N.E.2d 46, 49 (Mass. 1989) (Nolan, J., dissenting) (“Equally gratuitous is the court’s conclusion . . . that seizure of the defendant’s conversation violated [Article] 14 . . . No authority is cited. No analysis is advanced to support this conclusion. It is simply a naked ipse dixit without logic.”). 24. See, e.g., Robert A. Schapiro, Identity and Interpretation in State Constitutional Law, 84 VA. L. REV. 389, 400 n.33 (1998) (“Of course, the absence of a coherent discussion of state constitutions in state courts may reflect a weakness in judicial opinions, rather than a theoretical flaw in state constitutionalism.”). 25. As my colleague Judge David Schuman has remarked, “[p]erhaps I am more reluctant . . . to abandon ‘impoverished’ state constitutionalism in favor of its ‘successful,’ ‘rich,’ and ‘vigorous’ federal analogue because I find recent federal constitutionalism to be impoverished—not because it is increasingly conservative, but because it is increasingly petulant, shrill, formulaic, and intellectually incoherent.” David Schuman, A Failed Critique of State Constitutionalism, 91 MICH L. REV. 274, 277 n.18 (1992) (emphasis in original).
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observer contends that the Court’s case law is “arbitrary, unpredictable, and often border[s] on incoherent.”26 Another regards the case law as a “mass of contradictions and obscurities.”27 Yet another declares that Fourth Amendment case law is “an embarrassment.”28 If incoherence in the case law is the relevant test, the federal Constitution would appear to be hardly more “constitutional” than its state law counterparts.
C. The Fragmentation Complaint
A third criticism of state constitutionalism is that it leads to the fragmentation of the law. Particularly in the area of criminal procedure, critics complain that the independent interpretation of state individual rights guarantees creates an inconsistent patchwork of constitutional law that, when considered in conjunction with federal criminal procedure, becomes confusing for state and law enforcement officials.29 That state constitutionalism leads to the fragmentation of the law is obviously correct. But it strikes me as an especially weak argument against the legitimacy of state constitutional law. Much as uniformity might make for a more tidy system of law, the fact remains that we live in an untidy system of dual sovereignty, a “compound republic,” as Madison described it.30 State constitutions are the highest law of sovereign entities,31 and judges take an oath to enforce that law.32 As for the effect of the fragmentation of the law on federal and state officials, again, I think much is made over very little. Variation in the
26. David E. Steinberg, Restoring the Fourth Amendment: The Original Understanding Revisited, 33 HASTINGS CONST. L.Q. 47, 47 (2005). 27. Craig M. Bradley, Two Models of the Fourth Amendment, 83 MICH. L. REV. 1468, 1468 (1985). 28. Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 757 (1994). 29. See, e.g., Diehm, supra note 22, at 244 (“New Federalism has led to the fragmentation of constitutional criminal procedure jurisprudence. On a multitude of issues, the federal courts and the courts of each of the fifty states are reaching different conclusions based on different constitutions.”) (footnote omitted); Deukmejian & Thompson, supra note 22, at 995 (“The need for a single rule understood by all citizens is buttressed by the need for a uniform rule comprehensible to federal and state officers.”). 30. THE FEDERALIST NO. 51, at 323 (James Madison) (Clinton Rossiter ed., 1961). 31. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 410 (1819) (“In America, the powers of sovereignty are divided between the government of the Union, and those of the states. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other.”). 32. See Thomas R. Bender, For a More Vigorous State Constitutionalism, 10 ROGER WILLIAMS U. L. REV. 621, 627 (2005) (“State supreme court judges take oaths to support and uphold their state constitutions faithfully and diligently, and are therefore obliged to faithfully and diligently apply them.”); James D. Heiple & Kraig James Powell, Presumed Innocent: The Legitimacy of Independent State Constitutional Interpretation, 61 ALB. L. REV. 1507, 1513 (1998) (state judges violate their oaths if they fail to give independent significance to state constitutions).
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law is a time-honored feature of our federal system of government.33 As long as there are states, there will be differences in the law. In fact, variations in substantive law have existed for more than two centuries. I am aware of no empirical evidence that state and federal authorities have proven unequal to the task of keeping track of the differences.
II. WHEN: THE TIMING OF STATE CONSTITUTIONAL INTERPRETATION If a state constitutional provision has a counterpart in the federal Constitution—as often is so in the case of individual rights—there arises an interesting question about which constitution should be addressed first, the state or the federal. The subject has generated a fair amount of discussion among judges and scholars.34 Essentially three schools of thought have emerged. The first school of thought is known as the “primacy” or “first- things-first” approach. Not surprisingly, it proposes that, in cases potentially implicating both state and federal constitutions, courts should begin with the state constitution. The rationales for this approach are both theoretical and practical. Theoretically, there is no logical reason for turning to the federal Constitution if a state constitution affords complete relief. The argument goes something like this: Provisions of the federal Bill of Rights apply to the states through the Due Process Clause of the Fourteenth Amendment. That means that, if, in a given case, the state constitution affords a person complete relief, there has been no deprivation of due process. The necessary conclusion is that, in such a case, there is no occasion even to apply the federal Bill of Rights.35
33. See State v. Kennedy, 666 P.2d 1316, 1323 (Or. 1983) (“Diversity is the price of a decentralized legal system, or its justification. . . .”); Jennifer Friesen, State Courts as Sources of Constitutional Law: How to Become Independently Wealthy, 72 NOTRE DAME L. REV. 1065, 1081 (1997) (variations between state and federal law are “a normal incident of separate sovereignties”). 34. For a good summary of the different approaches to the timing of state constitutional interpretation and the scholarship supporting and criticizing each approach, see generally WILLIAMS, supra note 3, at 140-77. 35. This rationale for the first-things-first approach was first set out in Hans A. Linde’s path-breaking article, Without “Due Process”: Unconstitutional Law in Oregon, 49 OR. L. REV. 125, 133 (1970). See also Hans A. Linde, E Pluribus—Constitutional Theory and State Courts, 18 GA. L. REV. 165 (1984); Hans A. Linde, First Things First: Rediscovering the States’ Bills of Rights, 9 U. BALT. L. REV. 379 (1980). The Oregon Supreme Court expressly adopted the approach in Sterling v. Cupp, 625 P.2d 123, 126 (Or. 1981) (state constitutional analysis must precede federal analysis “not for the sake either of parochialism or of style, but because the state does not deny any right claimed under the federal Constitution when the claim before the court in fact is fully met by state law”). The primacy approach also has been adopted in New Hampshire and Maine. See State v. Ball, 471 A.2d 347, 350-52 (N.H. 1983); State v. Cadman, 476 A.2d 1148, 1150 (Me. 1984).
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The practical rationale derives from the doctrine of federal jurisdiction reflected in the U.S. Supreme Court’s decision in Michigan v. Long.36 If a state court decision rests on clearly stated “independent state grounds” that are at least as protective of individual rights as the federal Constitution, the federal courts regard themselves as lacking even jurisdiction to review such decisions. A state court decision on the meaning of the state’s constitution, in other words, is final, and predicating a decision on such a state constitutional ground can put an earlier end to appellate review than resting the same decision on federal law grounds. A second approach, known as the “supplemental” or “interstitial” approach, is essentially the reverse of the primacy approach. Adherents to this view assert that it is appropriate to begin with the federal Constitution and turn to the state constitution only if the federal counterpart fails to afford relief.37 This approach is understandable, at least in the sense that, for so many years, state courts fell into the habit of addressing federal constitutional arguments without even considering a state constitutional claim.38 It also has been justified on efficiency grounds. The argument is that an already existing body of federal law exists for state courts to employ; only if that body of law proves inadequate should state courts invest in creating a different body of law. A third approach is a variation on the second. Known as the “criteria” approach, it presumes that parallel state and federal constitutional provisions are identical in meaning. State courts following the criteria approach then will entertain a departure from that presumption and consider an independent interpretation of the state
36. Michigan v. Long, 463 U.S. 1032, 1038-39 (1983). The rule actually dates back about 50 years earlier than that. See Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935) (“[W]here the judgment of a state court rests upon two grounds, one of which is federal and the other non-federal in character, our jurisdiction fails if the nonfederal ground is . . . adequate to support the judgment.”). 37. The New Mexico Supreme Court adopted this approach, explaining that “when federal protections are extensive and well-articulated, state court decisionmaking [sic] that eschews consideration of, or reliance on, federal doctrine not only will often be an inefficient route to an inevitable result, but also will lack the cogency that a reasoned reaction to the federal view could provide. . . .” State v. Gomez, 932 P.2d 1, 7 (N.M. 1997) (quoting Developments in the Law—The Interpretation of State Constitutional Rights, 95 HARV. L. REV. 1324, 1357 (1982). 38. Robert F. Williams, State Constitutional Methodology in Search and Seizure Cases, 77 MISS. L.J. 225, 241-42 (2007) (“Actually, this method should not be surprising given the prior domination of federal constitutional law in areas such as search and seizure. In some sense, the conditioned response of lawyers and judges is to look at the Federal Constitution first.”).
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provision only if certain specified criteria are satisfied.39 The rationale for this approach seems to be a concern that departures from federal constitutional law have the potential to appear willful and result-oriented and thus need to be specially justified.40 It strikes me that neither the interstitial nor the criteria approach addresses the logical and practical justifications for the first-things-first approach. Neither reflects an appreciation of the fundamental notion that state constitutions are separate and independent sources of law. Instead, both treat state constitutional law as an option that the courts may or may not, depending on the case, wish to entertain. The notion that a federal court decision about the federal Constitution somehow presumptively binds state courts in their construction of their own constitution seems to me especially difficult to defend. I have yet to see anyone explain by what mechanism the U.S. Supreme Court possesses the authority to determine the meaning of state constitutions. To the contrary, the notion seems quite at odds with the Court’s own independent state grounds jurisprudence. As the Court declared in Minnesota v. National Tea Co.,41 “[i]t is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions.”
39. The approach is often traced back to a concurring opinion of New Jersey Supreme Court Justice Alan Handler in State v. Hunt, 450 A.2d 952 (N.J. 1982), in which he complained that “[t]here is a danger . . . in state courts turning uncritically to their state constitutions for convenient solutions to problems not readily or obviously found elsewhere. The erosion or dilution of constitutional doctrine may be the eventual result of such an expedient approach.” Hunt, 450 A.2d at 963-64 (Handler, J., concurring). According to Justice Handler, “[it] is therefore appropriate, . . . to identify and explain standards or criteria for determining when to invoke our State Constitution as an independent source for protecting individual rights.” Id. at 965. He identified seven criteria: (1) textual differences between state and federal constitutions; (2) historical evidence that the state provision was intended to be more protective than the federal counterpart; (3) preexisting state law; (4) differences in state and federal structure; (5) matters of particular state or local concern; (6) particular state history and traditions; and (7) state public attitudes. Id. at 965-67. The Washington Supreme Court, in State v. Gunwall, 720 P.2d 808, 811 (Wash. 1986), essentially adopted Justice Handler’s suggestion and decided that it will entertain a departure from the presumption that parallel provisions of the state and federal constitutions have identical meaning based on “(1) the textual language; (2) differences in the texts; (3) constitutional history; (4) preexisting state law; (5) structural differences; and (6) matters of particular state or local concern.” For an excellent account of the development of the criteria approach in the courts, see generally Spitzer, supra note 17. 40. See, e.g., State v. Stever, 527 A.2d 408, 415 (N.J. 1987) (state constitution should be treated as independent of the federal Constitution “only when justified by [s]ound policy reasons”) (alteration in original) (internal quotations omitted). 41. Minnesota v. Nat’l Tea Co., 309 U.S. 551, 557 (1940); see also City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 293 (1982) (“[A] state court is entirely free to read its own State’s constitution more broadly than this Court reads the Federal Constitution.”).
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III. HOW: STATE CONSTITUTIONAL INTERPRETATION METHOD Once we decide whether to interpret the state constitution and determine when it is appropriate to do so, there remains the third question that I have posed, namely, how we should ascertain what the particular constitutional provision at issue means. That question usefully may be subdivided into two subsidiary questions. First, why should we even care about the particular method of state constitutional interpretation? Second, what is the “best” approach to determining the meaning of state constitutional provisions? We will take these questions one at a time.
A. Why Method Matters
The first question is why any particular method of interpretation even matters. This raises a familiar question of constitutional theory, usually framed in terms of the legitimacy of judicial review.42 No provision of the federal Constitution confers on the courts the mantle of superiority in determining the meaning of its terms. Nevertheless, ever since Marbury v. Madison43 (and certainly since Cooper v. Aaron44), the federal courts have asserted their final authority to determine the meaning of constitutional provisions and, if necessary, invalidate legislation that runs afoul of the Constitution as judicially interpreted. This presents, in Alexander Bickel’s famous phrasing, the “counter- majoritarian difficulty”: how do we explain the authority of unelected federal judges to invalidate legislation that is the product of decisions by democratically elected representatives?45 The usual response is to assert, harkening back to Marbury, that constitutions are law, and judges are uniquely suited to determine what the law is by application of principles of legal interpretation. I think that there is less to the counter-majoritarian difficulty than the wealth of scholarship on federal constitutional theory appears to suggest. Among other things, it assumes that the norm against which we evaluate judicial review is majoritarian democracy, when it seems to me
42. See, e.g., PHILIP BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION 3 (1982) (referring to the legitimacy of judicial review as “[t]he central issue in the constitutional debate of the past twenty-five years”). 43. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (proclaiming the authority of the courts “to say what the law is”). 44. Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“[T]he federal judiciary is supreme in the exposition of the law of the Constitution. . . .”). 45. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16 (1986). The “counter-majoritarian difficulty” has spawned literally thousands of books and articles. See, e.g., Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five, 112 YALE L.J. 153, 155 (2002).
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that there is an awful lot of the original Constitution that is decidedly un- democratic—its toleration of slavery, the lack of direct election of senators, the presidential veto, the Electoral College, and the appointment of judges, among other things.46 The Bill of Rights itself is essentially a series of limitations on the exercise of majoritarian authority. What the framers of the federal constitution created was not a popular democracy, but a republic of fairly elaborate checks and balances.47 Aside from that, it strikes me that the problem that has engendered the legitimacy debate—the fact that federal judges are not elected— simply does not apply to most state courts engaging in judicial review under their state constitutions. Most state judges are elected.48 The counter-majoritarian difficulty, then, is not so difficult in the case of state judicial review.49 That fact does not lessen the importance of legitimacy concerns. State constitutions do not expressly anoint the courts with the authority to finally determine the meaning of state constitutions. (Although some, which authorize advisory opinions, do seem implicitly to presume the
46. See generally SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) (2006); ROBERT A. DAHL, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? (2001). 47. It is sometimes suggested that the framers drew a clear distinction between the “republic” that the framers created and popular “democracy.” Some historians chafe at the notion that such a clear distinction was recognized at the time. See, e.g., WILLI PAUL ADAMS, THE FIRST AMERICAN CONSTITUTIONS: REPUBLICAN IDEOLOGY AND THE MAKING OF THE STATE CONSTITUTIONS IN THE REVOLUTIONARY ERA 110-14 (2001) (discussing the sometimes interchangeable usage of “republican” and “democratic” in political rhetoric of the founding era). What is well recognized, though, is the fact that the framers understood that the government that they created was not a “pure” democracy, but one that included many checks on the excesses of majoritarian power. See generally GORDON S. WOOD, CREATION OF THE AMERICAN REPUBLIC: 1776-87, 594-95 (1969). 48. The National Center for State Courts reports that, “[o]f the 1,243 state appellate judges, 1,084, or 87 percent, stand for some form of election, and 659, or 53 percent, stand for contestable election. Of 8,489 trial court judges (general-jurisdiction courts), 7,378, or 87 percent, stand for some form of election, and 6,560, or 77.3 percent, stand for . . . contestable election.” Nat’l Ctr. for State Courts, Judicial Selection and Retention FAQs, http://www.ncsc.org/topics/judicial-officers/judicial-selection-and-retention/ faq.aspx#How many state judges are elected (last visited August 24, 2010). 49. If anything, it raises the opposite concern, which Kermit Hall and others have aptly labeled “the majoritarian difficulty.” According to Hall, “[t]he question raised in the states today, where almost all appellate court judges face some form of election, is not how unelected/unaccountable judges can be justified in a political system committed to democracy, but how elected and hence popularly accountable judges can be justified in a system committed to constitutionalism.” Kermit L. Hall, Judicial Independence and the Majoritarian Difficulty, in THE JUDICIAL BRANCH 60, 64 (Kermit T. Hall & Kevin T. McGuire eds., 2005); see also Amanda Frost & Stefanie Linduist, Countering the Majoritarian Difficulty, 96 VA. L. REV. 719, 731 (2010) (“[E]lective judiciaries pose a risk to the rule of law, which is compromised whenever a judge’s ruling is influenced by majority preferences.”).
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supremacy of judicial review.)50 State court judges, even if elected, still have to explain why they get the last word about the meaning of the state constitution over the interpretations of elected representatives of other branches of state government. Again, the answer seems to be that state constitutions, like the federal Constitution, are law, and courts are in the best position to interpret laws in accordance with settled principles of legal interpretation. It seems to me that, if state constitutions are not law or if their interpretation is not governed by legal principles, then there is no solid basis for courts to assert their authority as final arbiters of state constitutional meaning. Rules matter. Apart from legitimacy concerns, there are other reasons for state courts to be concerned about identifying the rules that justify their decisions on matters of constitutional interpretation. To begin with, precisely because state court judges so often are elected, it seems important that their opinions reveal the bases for their decisions so that they may stand accountable to the voters who elect them and so that the voters may have a basis on which to decide whether to return them to the bench. Moreover, as Professor Lawrence Friedman has aptly observed, “completely theorized” appellate court decisions provide better guidance to lower courts, lawyers, government officials, and the public, so that all may more readily predict the course of the law and its likely application to their affairs.51
50. See, e.g., COLO. CONST. art VI, § 3 (“The supreme court shall give its opinion upon important questions upon solemn occasions when required by the governor, the senate, or the house of representatives.”); FLA. CONST. art. IV, § 1 (c) (“The governor may request in writing the opinion of the justices of the supreme court as to the interpretation of any portion of this constitution upon any question affecting the governor’s executive powers and duties.”); ME. CONST. art. VI, § 3 (“The Justices of the Supreme Judicial Court shall be obliged to give their opinion upon important questions of law, and upon solemn occasions, when required by the Governor, Senate or House of Representatives.”); MASS. CONST. pt. II, ch. 3, art. 2 (“Each branch of the legislature, as well as the governor or the council, shall have the authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions.”); MICH. CONST. art. III, § 8 (“Either house of the legislature or the governor may request the opinion of the supreme court on important questions of law upon solemn occasions as to the constitutionality of legislation after it has been enacted into law but before its effective date.”); R.I. CONST. art. X, § 3 (“The judges of the supreme court shall give their written opinion upon any question of law whenever requested by the governor or by either house of the general assembly.”); S.D. CONST. art. V, § 5 (“The Governor has authority to require opinions of the Supreme Court upon important questions of law involved in the exercise of his executive power and upon solemn occasions.”). See generally, Jonathan D. Persky, “Ghosts That Slay”: A Contemporary Look at State Advisory Opinions, 37 CONN. L. REV. 1155 (2005). 51. See Lawrence Friedman, Reactive and Incompletely Theorized State Constitutional Decision-Making, 77 MISS. L.J. 265, 268 (2007); but see Cass R. Sunstein, Incompletely Theorized Agreements, 108 HARV. L. REV. 1733, 1734, 1737 (1995) (extolling virtues of “incompletely theorized” judicial decisions—reflecting agreement
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B. The Rules of Interpretation
1. The Usual Suspects
Of course, that leaves the question as to which rules should govern the interpretation of state constitutions. Debates about the rules of constitutional interpretation tend to focus on federal constitutional interpretation and tend to be framed in terms of a contest between several competing approaches: “strict construction,” “originalism,” and “living constitutionalism.” I think that a brief review of those familiar arguments provides a useful context for a discussion of how state constitutions should be interpreted.
a. Strict Construction
“Strict construction” is a slippery term, more often employed by politicians than by judges and scholars of constitutional interpretation. I think it is fair to say, though, that it is frequently used to refer to a fairly literal, textual approach to interpretation. Justice Hugo Black is often cited as a proponent of this particular approach, which purports to take the constitutional text as we find it and strictly interpret it according to its terms. The arguments against such an approach to interpretation are straightforward. To begin with, there is the impossibly absolute nature of some constitutional commands. Take the First Amendment. It says that “Congress shall make no law abridging the freedom of speech or of the press.”52 Does the amendment literally mean “no law”? Does it mean, for example, that Congress is bereft of constitutional authority to criminalize interstate fraud? Does it really apply only to congressional legislation and not to any other form of governmental infringement on the rights of free speech, such as a Federal Communications Commission rule prohibiting use of the broadcast spectrum to criticize the President? Does it really apply only to “speech” and the “press” and not to congressional abridgment of the right to expression through handwritten letters? The answer to all of the foregoing questions is, of course, no. To hold a constitution to its strict, literal wording is plainly impossible. In addition, there is the fact that many constitutional provisions are inherently indeterminate. The Fourth Amendment and many state constitutional counterparts guarantee the right to be free of
about results justified by “low-level or mid-level principles and taking a relatively narrow line”—in the face of difficult decisions in the context of a complex, pluralistic system). 52. U.S. CONST. amend. I.
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“unreasonable” searches and seizures.53 What does “unreasonable” mean? Does it not, by its very nature, depend on the circumstances of each case? In a similar vein, consider federal and state constitutional protections from “cruel and unusual punishment.”54 What is “cruel”? Even worse, what on earth does it mean for a punishment to be “unusual”? For that matter, what is a “punishment”? The answer to none of those questions is obvious, certainly not by reference to a dictionary of ordinary meaning or some other similar tool of strict construction.
b. Originalism
“Originalism,” like “strict construction,” covers a lot of ground. But, in a general sense, it refers to the mode of constitutional interpretation that regards the meaning of a provision as frozen in time in accordance with the intentions or understandings of its framers or others at the time of its adoption.55 This mode of constitutional interpretation is most often justified by reference to democratic theory.56 Originalism, the argument goes, addresses the counter-majoritarian difficulty by respecting the will of those who, in accordance with democratic processes, adopted the constitution in the first place.57 The interpretation of a constitution is understood to be constrained by its text and by the examination of objectively verifiable historical evidence of what those who adopted it intended or understood it to mean. Originalism also is frequently justified by reference to an analogy: Constitutions are law—specifically, written law. Centuries of legal tradition have produced principles that guide the interpretation of written
53. U.S. CONST. amend. IV. 54. See, e.g., U.S. CONST. amend. VIII. 55. In the 1980s, originalist scholars tended to emphasize the original intentions of the framers of the Constitution. See, e.g., BERGER, supra note 16, at 402. In the 1990s, however, that conception of originalism tended to give way to one that emphasized original public meaning, that is, the meaning of the Constitution’s terms that would have been understood by a reasonable person at the time of ratification. See, e.g., Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret Drafting History, 91 GEO. L.J. 1113, 1124-33 (2003) (“original public meaning” is the single correct approach to interpreting the Constitution). For an interesting account of the transition, see generally Keith E. Whittington, The New Originalism, 2 GEO. J.L. & PUB. POL’Y 599 (2004). 56. See, e.g., Jamal Greene, Selling Originalism, 97 GEO. L.J. 657, 664 (2009) (“The central conceit behind originalism as a mode of judicial constitutional interpretation is that it is more consistent with constitutional democracy than are its competitors.”). 57. See, e.g., Edwin Meese III, The Supreme Court of the United States: Bulwark of a Limited Constitution, 27 S. TEX. L. REV. 455, 465 (1986) (“The Constitution is the fundamental will of the people; that is the reason the Constitution is the fundamental law. To allow the courts to govern simply by what it views at the time as fair and decent, is a scheme of government no longer popular; the idea of democracy has suffered.”).
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laws such as contracts, wills, deeds, and treaties. In keeping with the notion that the interpretation of constitutions is a process guided by legal principles, the argument asserts, constitutions should be guided by those same legal principles, which tend to emphasize the intentions of the makers of the instruments at issue.58 Originalism does sound good. It posits a method of interpretation that ostensibly eliminates a judge’s personal preferences from the interpretation process.59 But it, too, has garnered some significant criticisms. Opponents of originalism frequently point out that its advocates do not explain why it is not at least as anti-democratic for the judgment of long-dead framers to trump the will of living citizens who are being subjected to a constitution that they have never had the opportunity to vote for.60 As Thomas Jefferson famously declared, “the earth belongs . . . to the living.”61 One generation, he said, cannot bind another.62 Moreover, critics observe, the analogy to contracts and other written instruments is imperfect, at best. The people to whom the constitution now applies were not parties to it in the usual sense; they were not the instruments’ makers, whose intentions are generally controlling.63 And it is at least debatable that the founders—at least the founders of the federal Constitution—would have understood that the intentionalist interpretive
58. See, e.g., ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 145 (1990) (“If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended.”). 59. See, e.g., LEONARD W. LEVY, ORIGINAL INTENT AND THE FRAMERS’ CONSTITUTION 376 (1988) (“A peculiar charm of original intent analysis is that the judge employing it seems to escape the subjectivity as well as the creativity that otherwise would color the judicial process in constitutional litigation.”); Michael W. McConnell, Active Liberty: A Progressive Alternative to Textualism and Originalism?, 119 HARV. L. REV. 2387, 2415 (2006) (“The point is that in principle the textualist-originalist approach supplies an objective basis for judgment that does not merely reflect the judge’s own ideological stance.”). 60. See JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS IN THE MAKING OF THE CONSTITUTION xv n* (1996) (“[Originalism] is always in some fundamental sense anti- democratic, in that it seeks to subordinate the judgment of present generations to the wisdom of their distant (political) ancestors.”); Randy E. Barnett, Scalia’s Infidelity: A Critique of “Faint-Hearted” Originalism, 75 U. CIN. L. REV. 7, 10 (2006) (“No one has yet explained how the consent of some of our ancient ancestors, and in my case someone else’s ancestors—or for that matter the consent of only some today—can bind those alive today who have not consented.”). 61. Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), reprinted in JEFFERSON: POLITICAL WRITINGS, at 593 (Joyce Appleby & Terence Ball eds., 1999). 62. See id. 63. See, e.g., Greene, supra note 56, at 665 (“The ‘parties’ to our Constitution are the American people as a collective over a 220-year period, which complicates the analogy between the Constitution and an ordinary contract.”).
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conventions that might have routinely applied to some legal instruments such as contracts were applicable to constitutions, as well.64 Arguably, in other words, originalism suggests that originalism was not intended by the framers in the first place. Critics also contend that originalism simply cannot deliver on its promise of making constitutional interpretation an objective endeavor and restraining the exercise of judicial power. That is because originalism fails to account for the fundamental indeterminacy that inheres in ascertaining what happened in the past.65 Specifically, critics cite the difficulty of identifying a single intention or understanding with respect to large groups of people particularly when, in many cases, we actually know that there was little or no contemporaneous agreement about the meaning or effect of a provision.66 In addition, assuming that identifying a collective intention or understanding is possible, there remains the inevitable problem of identifying the appropriate level of generality with which the significance of the historical “facts” should be described. Regardless of what the historical record may show about the intentions or understandings of people in the past, frequently it will not show an appropriate level of generality with which to characterize those intentions or understandings; rather, the solution is a matter of judgment.67 The notion that an originalist mode of interpretation provides an objective method of interpretation is illusory.
c. The “Living Constitution”
A third approach to constitutional interpretation is one that advocates for a “living” constitution. According to proponents, the
64. See, e.g., LEVY, supra note 59, at 331 (“[N]o evidence, not a shred, exists to show that the Framers meant, wanted, or expected future generations to construe the Constitution as they, the Framers, had.”); see also H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885 (1985) (originalism cannot be reconciled with late-eighteenth century interpretive conventions); see also Hans W. Baade, “Original Intent” in Historical Perspective: Some Critical Glosses, 69 TEX. L. REV. 1001 (1991). 65. See, e.g., Jeffrey M. Shaman, The End of Originalism, 47 SAN DIEGO L. REV. 83, 91 (2010) (“[O]riginalism misperceives the nature of history by presuming that it has an objective meaning that can be discovered if one is only diligent enough to search through enough ancient material.”). 66. The Fourteenth Amendment is an excellent example. See Greene, supra note 56, at 666 (“Where Fourteenth Amendment incorporation is involved, the task of locating a single original understanding becomes nearly impossible.”). 67. See, e.g., Daniel A. Farber, The Originalism Debate: A Guide for the Perplexed, 49 OHIO ST. L.J. 1085, 1094 (1989) (“A crucial question for originalists, then, is to determine the proper level of generality. Should we view the eighth amendment as requiring judges to apply some general concept of what is ‘cruel and unusual’? Or should they ask only what specific punishments the framers meant to forbid?”).
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meaning of a constitution is not static or fixed in time, as the originalists contend. Rather, the meaning of the constitution is dynamic, capable of changing in response to changing conditions in society.68 Framed in that manner, living constitutionalism may be seen not so much as a method of interpretation as a reaction against originalism. In fact, it is challenging to find any consistent approach to the technique of affirmatively interpreting the constitution among adherents of this school of thought.69 Living constitutionalism is generally justified by one of three arguments, one pragmatic, one descriptive, and a third—ironically— originalist. The pragmatic argument is that, aside from the fact that originalism cannot deliver on its promise of objectivity, relying on the process of formally amending a constitution is simply unrealistic. Changes in society and technology, adherents argue, simply happen too quickly for the cumbersome amendment process to keep up.70 The descriptive argument is that only living constitutionalism comports with an accurate account of what has actually occurred in constitutional law over the last century. Brown v. Board of Education71 is usually Exhibit A for living constitutionalists, a decision that they contend cannot be justified either by strictly textual construction or originalism, but which everyone, living constitutionalists presume, agrees was correctly decided.72 The originalist argument is that the very open-ended generality with which framers so often craft constitutional provisions
68. As Justice William Brennan declared in a 1985 speech, “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” Justice William Brennan, Speech to the Text and Teaching Symposium at Georgetown Univ. (Oct. 12, 1985) quoted in BERGER, supra note 16, at xviii. See also DAVID STRAUSS, THE LIVING CONSTITUTION 1 (2010) (“A ‘living constitution’ is one that evolves, changes over time, and adapts to new circumstances without being formally amended.”). 69. See, e.g., William H. Rehnquist, The Notion of a Living Constitution, 54 TEX. L. REV. 693, 693 (“[T]he phrase ‘living constitution’ has about it a teasing imprecision that makes it a coat of many colors.”). 70. See, e.g., STRAUSS, supra note 68, at 115 (“The Article V process is cumbersome; it requires the agreement of two-thirds of each house and three-quarters of the states. That is just too difficult a process to be a realistic means of change and adaptation. Some form of living constitutionalism is inevitable, and necessary, to prevent the Constitution from becoming either irrelevant or, worse, a straitjacket that damages the society by being so inflexible.”) 71. Brown v. Topeka Bd. of Educ., 347 U.S. 83 (1954). 72. Strauss, for example, contends that originalism is untenable because, under an originalist view of the federal Constitution, racial segregation of public schools would be constitutional, the government would be free to discriminate against women, the federal government (to which the Fourteenth Amendment does not apply) would be free to discriminate on the basis of race, states could redistrict without regard to the one-person- one-vote principle, and many consumer protection and environmental laws would be beyond the power of Congress. STRAUSS, supra note 68, at 12-18.
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suggests that they themselves intended that the interpretation of such clauses be capable of adaptation.73 The problems with living constitutionalism as a comprehensive theory of interpretation are easy enough to list. First, the fact that formally amending the constitution is difficult hardly explains why it may simply be discarded in favor of less formal judicial fiat. It could be that the framers wanted the process of amending the Constitution to be difficult. Indeed, it is often argued that the very fact that the framers took the trouble to spell out the process for amending the Constitution suggests that other forms of “amendment” are not legitimate.74 Second, the fact that living constitutionalism more comfortably accommodates what has happened historically in terms of constitutional interpretation in cases such as Brown hardly establishes that such an approach provides any guidance as to how, on a forward looking basis, a constitution should be interpreted. Aside from that, before living constitutionalists get too carried away with their notion that attempting to interpret a constitution to accommodate current values and conditions is necessary and good, they should stop and contemplate a few counterexamples such as Lochner v. New York75 and Korematsu v. United States.76 Third, aside from the inherent circularity of the originalist argument, there is the fact that, assuming that the framers intended us to be free to “adapt” broad provisions to current conditions, living constitutionalism fails to explain what principles govern the process of adaptation. It is all well and good to say, for example, that “cruel and
73. Jack M. Balkin, for example, declares that “[t]he notion of a Constitution that evolves in response to changing conditions . . . began at the founding itself. The framers expected that their language, not their intentions, would control future generations. They created, in John Marshall’s words, ‘a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.’” Jack M. Balkin, Alive and Kicking: Why No One Truly Believes in a Dead Constitution, SLATE MAGAZINE, August 29, 2005, available at http://www.slate.com/id/2125226.html. David Strauss argues that even James Madison adopted the living constitution view, shown by the evolution of Madison’s views of the constitutionality of the Bank of the United States. According to Strauss, while Madison originally took the view that the Constitution did not authorize Congress to create the bank, he took a different view 25 years later, in light of the intervening history of public acceptance of such congressional authority. STRAUSS, supra note 68, at 123-24. See also RAKOVE, supra note 60, at xv (“[Because] the framers and many of the ratifiers were themselves decidedly empirical in their approach to politics, it seems rather beside the point to ask how they would act today. Whatever else we might say about their intentions and understandings, this much seems clear: They would not have denied themselves the benefit of testing their original ideas and hopes against the intervening experience that we have accrued since 1789.”). 74. BERGER, supra note 16, at 402 (“The sole and exclusive vehicle of change the Framers provided was the amendment process[.]”). 75. Lochner v. New York, 198 U.S. 45 (1905). 76. Korematsu v. United States, 323 U.S. 214 (1944).
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unusual punishment” cannot be held to an eighteenth-century standard. It is quite another to explain precisely how we are to discern what else the standard entails. Supporters of living constitutionalism often cite with approval the “evolving standards of decency” standard without explaining where it comes from and without confronting the problem that defining a constitutional limitation on majoritarian power by reference to majoritarian standards is not much of a limitation.
2. How Interpretation Should Work
The three “usual suspects” of constitutional interpretation by no means exhaust the full range of theoretical possibilities. There are many others that have been proposed. Nearly all, however, present some variation on themes raised by the three that are the most frequently debated. And all suffer from the same fundamental inadequacies. There simply is no theory of constitutional interpretation that fully and completely addresses the legitimacy issues associated with judicial review and removes the element of judgment from the equation.77 Each will come up short at some point. That does not mean that we should simply give up. To begin with, it seems to me that discussions about constitutional theory and interpretive method have been dominated by concern for the hardest of constitutional cases, which lends a rather distorted perspective to the enterprise. That this is so is understandable. The sorts of cases that are of interest to constitutional scholars tend to be those that are most difficult and perplexing, the very ones most resistant to explanation by reference to a set of a priori rules. It is not much fun talking about easy cases. The problem is that, in the real world, the vast majority of the cases that courts must decide are, frankly, not so difficult. In nearly all of them, the application of rules of interpretation leads to results that judges can agree on, the public can accept, and future litigants can rely on. The fact that those rules may come up short in the hardest of cases does not mean that the rules lack value and must be discarded. Discussions about constitutional theory and methods of interpretation also have been distorted by the preoccupation of so many scholars with federal—as opposed to state—constitutional law.78 Again, I understand why that is so. If for no other reason than marketability,
77. See Laurence Tribe, Comment, in ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 65, 73 (1997) (“I am doubtful that any defensible set of ultimate ‘rules’ [of constitutional interpretation] exists. Insights and perspectives, yes; rules, no.”). 78. See, e.g., Devins, supra note 15, at 1639 (noting state constitutional law’s “poor cousin” reputation among legal academics).
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scholars understandably focus on matters of easily transferrable national interest; it is hard to market expertise in Wyoming constitutional law. But it must be acknowledged that, as I have pointed out, the vast majority of cases—even constitutional cases—are not federal, but are state law cases. Moreover, it seems to me that some of the arguments about constitutional theory do not work quite as well when applied to state constitutionalism. Take the common criticisms of originalism, for instance. I have mentioned the difficulties inherent in identifying the intentions of framers or voters long dead from as many as two centuries past. Many state constitutions, however, are not two centuries old. They are not even one century old.79 Quite a few have been completely revised three, four, as many as ten times and as recently as the last few decades.80 And, in the case of more recently revised constitutions, there exist fairly complete official records of proceedings, which have been prepared explicitly with a view to aiding the courts in determining what the framers intended. It seems to me that, in such cases, the ordinary arguments against a more originalist approach to interpretation do not work all that well. In other words, even though I do not think that a completely satisfactory theory of constitutional interpretation exists, I believe that there are some core considerations that provide satisfactory answers to legitimacy concerns in most cases involving interpretation of state constitutions. With that in mind, let me turn to what I think those core considerations are.
a. The Importance of Text
The principal feature of legitimate state constitutional interpretation must be the text and respect for the written word. The fact that each and every state is governed by a written constitution is of more than academic significance. The decision of the framers to commit their constitutive decisions to the written word could not have been intended as an idle act. It seems obvious that they and the voters who adopted those constitutions understood that the written words would have legal
79. WILLIAMS, supra note 3, at 364-79 (discussing states, including New Jersey, Louisiana, and Virginia, that have amended their constitutions during the twentieth century). 80. TARR, supra note 3, at 23-25 (noting that Louisiana’s current constitution is its eleventh version); WILLIAMS, supra note 3, at 28. See also, John Joseph Wallis, NBER/ University of Maryland State Constitution Project, www.stateconstitutions.umd.edu (last visited Feb. 22, 2011) (searchable database of every state constitution throughout U.S. history).
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force.81 When a state constitution, for example, provides that the state superintendent of public instruction must be elected by a vote of the people, no one would regard it as legitimate for a court to conclude that the governor possesses the constitutional authority simply to appoint a person to the office. The text matters.82 That the text must be paramount seems especially clear in the case of state constitutional interpretation. State constitutions, for instance, are much easier to amend. Thus, the common living constitutionalism argument in favor of more “flexible” interpretation of the federal constitutional text—that the federal Constitution is so difficult to amend—simply does not apply in the case of state constitutions. State constitutions are also frequently crafted in far greater detail than their federal counterpart. This is due, in large part, to the fact that, by the nineteenth century, the framers of state constitutions saw their work in different terms from those of the framers of the federal Constitution a century earlier.83 The notion of a constitution as positive law, but superior to that of statutory law, became embedded and resulted in often lengthy and detailed constitutions that included not just the usual matters of government organization and limitations on governmental power, but also a wide variety of “constitutionalized” public policy choices.84
81. See KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW 54 (1999) (“[O]nly a fixed text can provide judicial instruction and therefore be judicially enforceable against legislative encroachment.”). 82. That does not necessarily mean that the constitutional text is all there is to constitutional law. I acknowledge the possibility that there are principles of constitutional magnitude that are not expressed in the text of a constitution itself. State constitutions, for example, often themselves acknowledge rights and privileges that are not enumerated in their text. See, e.g., OR. CONST. art. I, § 33 (“This enumeration of rights, and privileges shall not be construed to impair or deny others retained by the people.”). For an interesting take on that subject, see generally LAURENCE H. TRIBE, THE INVISIBLE CONSTITUTION (2008). 83. See, e.g., Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. CHI. L. REV. 1127, 1176 (1987) (by the early nineteenth century reliance on natural law waned and gave way to conception of a constitution in terms of the written charter). 84. As G. Alan Tarr explains: Over the course of the [nineteenth] century, state constitutions increasingly became instruments of government rather than merely frameworks for government. Whereas early state constitutions—and the federal Constitution—engaged in little detailed policymaking, most state constitutions by midcentury had begun to specify what state legislatures could not do and how they would conduct their business. By the end of the nineteenth century, restrictions on state legislatures had proliferated and had been supplemented by similarly detailed provisions regarding local government, plus a healthy—or, according to twentieth-century constitutional reformers—unhealthy dose of constitutional legislation. TARR, supra note 3, at 133-34.
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b. The Importance of Context
Of course, words do not have meaning standing alone. They derive their meaning from the contexts in which they are used. In the case of state constitutions, at least two sorts of context are significant. The first has to do with structural or semantic context: the surrounding words, sentences, and other constitutional provisions within which the terms in dispute are situated. I suppose that much is obvious. But a word of caution is in order when considering the context of a state constitutional provision, because, in many cases, a state constitution consists of a multitude of provisions on a wide variety of subjects, adopted at different times and reflecting markedly different political underpinnings. (The frequent absence of a single, overarching political theory expressed in state constitutions is one of the arguments advanced by those who contend that state constitutions are not “constitutional.”) Provisions of the same constitution, for example, may date from the ascendency of Jacksonian democracy, the Progressive Era, the era of the New Deal, the post-War boom, or the decade of the Contract with America. Different provisions of the same constitution may have been drafted by the framers in a constitutional convention a century or more ago, experienced legislators or legislative committees, or untrained citizen activists. As a result, some common assumptions about the uses of context—assumptions of consistency, for example—may not apply in the case of state constitutions.85 The second type of important context is historical. All state constitutional provisions, whether old or recent, were adopted at a specific point in history. The meaning of a given term at the time of its adoption always will be at least relevant, whether one is an originalist or a living constitutionalist.86 If, for example, a seventeenth-century statute refers to the prohibition of “nunneries,” it is useful to understand that, at the time, the word could mean something rather different from what it has come to mean today. In the seventeenth century, the term sometimes was employed to refer to brothels, not convents. It seems obvious to me
85. Id. at 194 (“For state judges, the penetration of the state constitution by successive political movements makes the task of producing coherence even more difficult than it has been for federal judges. . . . Insofar as a state constitution does not reflect a single perspective, an interpreter cannot always look to the whole to illuminate the meaning of its various parts.”). 86. See Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 GEO. L.J. 1765, 1766 (1997) (“Although there are very few strict originalists, virtually all practitioners of and commentators on constitutional law accept that original meaning has some relevance to constitutional interpretation.”).
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that such information would be useful in deciding what a provision like that means. That leads to the question whether that original, understood meaning is anything more than interesting. I think that it is. State constitutions are commands; their purpose is to describe for future government officials and citizens the powers of government and the limitations on the exercise of those powers.87 As commands, they rather naturally invite consideration of what the command is designed or intended to accomplish.88 And, consistently with the command nature of state constitutional provisions, it is frequently clear that the framers or voters who adopted them intended that their intentions or understandings be important. As I have mentioned, state constitutions are the subjects of frequent revision and even more frequent amendment. Those changes often are accompanied by fairly extensive records as to the intentions or understandings of the framers or the voters, prepared with the obvious expectation that those records will be relevant to later judicial determinations of their meaning.89 In such cases, the familiar argument against originalism in the context of federal constitutional interpretation—that it is unclear that the framers themselves would have understood that their intentions or understandings would count—does not apply to state constitutions, or at least does not apply with the same force. Having said that state constitutional interpretation should reflect the views of their makers still is not sufficient. Which makers should we care about? Framers at a constitutional convention? Legislators? Voters? Depending on how that question is answered, different types of evidence become important to judges in their interpretation of state constitutions. It is common to speak of “framers” and, as a result, to resort to records of constitutional conventions.90 The practice is
87. Cf. Gary Lawson & Guy Seidman, Originalism as a Legal Enterprise, 23 CONST. COMMENT. 47, 52 (2006) (“The federal Constitution is not a poem, a novel (chain or otherwise), a manifesto, or a treatise. The federal Constitution is a blueprint—an instruction manual, if you will—for a particular form of government.”). 88. Cf. RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 269 (1990) (“Characterizing a statute as a command makes it natural to think of interpretation in terms of ascertaining the drafters’ wants. . . .”). 89. See, e.g., William C. Rava, Toward a Historical Understanding of Montana’s Privacy Provision, 61 ALB. L. REV. 1681, 1682-83 (1998) (emphasizing that the exhaustive history of deliberations concerning recent constitutional revision makes those deliberations “uniquely relevant”). 90. See, e.g., State v. Schneider, 197 P.3d 1020, 1025 (Mont. 2008) (explaining that to interpret the state constitution the court must “conduct an independent review to determine the separate and particular intent of the framers of the Montana Constitution”); State ex rel. Johnson v. Gale, 734 N.W.2d 290, 303 (Neb. 2007) (“It is the duty of courts to ascertain and to carry into effect the intent and purpose of the framers of the Constitution.”); Halverson v. Miller, 186 P.3d 893, 897 (Nev. 2008) (examining
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understandable (evidence of the views of framers is often readily available), but in my view, not quite the right focus. The authoritative character of state constitutions derives from their adoption by a vote of the people, not from the views of their drafters.91 Thus, it should be the views of the voters who adopted state constitutions that should be the focus of the interpretation of those documents. Evidence about what framers or drafters had in mind might be relevant; the framers were themselves voters, and their views might have been available to voters. Even then, I think that more must be said in the way of refining this interpretive process. It is one thing to say that we must look to the views of the voters, but it is another to identify precisely what we mean by their “views.” Again, it is common for state court judges to speak of the “intentions” of the voters as the determinant of state constitutional meaning.92 As I have noted, however, it is frequently objected that it is untenable to speak of such specific intentions, either because it makes no sense to assume that such a large group of individuals as voters can have a collective intent or because there is no way the historical materials are sufficient to demonstrate such intentions. In the case of state constitutional interpretation, those arguments have somewhat less force. As I have pointed out, state constitutions tend to consist of frequently and recently amended texts, often accompanied by an extensive and detailed record as to the problem that precipitated a particular provision and the intentions or expectations of its makers as to the manner in which the provision solves that problem. In such cases, the intentions or expectations of voters are readily identifiable. It seems to me that, in such cases, those intentions or expectations can and should be respected.
constitutional language “to carry out the intent of the framers of Nevada’s Constitution”) (internal quotation marks omitted); Riley v. R.I. Dep’t of Envtl. Mgmt., 941 A.2d 198, 205 (R.I. 2008) (“In construing provisions of the Rhode Island Constitution, our chief purpose is to give effect to the intent of the framers.”); Dexter v. Bosko, 184 P.3d 592, 595 (Utah 2008) (“[We] inform our textual interpretation with historical evidence of the framers’ intent.”) (internal quotation marks omitted). 91. See Charles A. Lofgren, The Original Understanding of Original Intent?, 5 CONST. COMMENT 77, 79 (1988) (stating that ratifier intent “is the original intent in a constitutional sense”) (emphasis in original); see also Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV. 353, 375 n.130 (1981) (“[T]he intentions of the ratifiers, not the Framers, is in principle decisive. . . .”). Some courts have recognized the principle, as well. See, e.g., Sierra Club v. Dep’t of Transp. of Haw., 202 P.3d 1226, 1241 (Haw. 2009) (“Because constitutions derive their power and authority from the people who draft and adopt them, we have long recognized that the Hawaii Constitution must be construed with due regard to the intent of the framers and the people adopting it. . . .”); Monaghan v. Sch. Dist. No. 1, 315 P.2d 797, 801 (Or. 1957) (“The constitution derives its force and effect from the people who ratified it and not from the proceedings of the convention where it was framed.”). 92. See cases cited supra note 90.
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An example from my own state’s constitutional case law may serve to illustrate. Oregon’s constitution contains an interesting and somewhat ambiguous provision concerning the governor’s veto authority. Article V, section 15a, provides that the governor has the authority to veto “any provision in new bills declaring an emergency.”93 On the surface, the text is capable of meaning at least two different things. On the one hand, it could mean that the governor has authority to veto “any provision” in a bill that contains an emergency clause. On the other hand, it could mean that the governor has the authority to veto an emergency clause itself. If anything, the former seems to be the more plausible interpretation. And, in fact, that is the way that the governor of Oregon interpreted the provision when he decided to veto three substantive provisions of a bill concerning public employee retirement benefits, claiming the authority under Article V, section 15a, by virtue of the fact that the bill contained an emergency clause.94 The authority of the governor to do that was challenged in Lipscomb v. Board of Higher Education.95 The Oregon Supreme Court acknowledged the ambiguity of the constitutional text and resorted to the historical context of the provision for guidance.96 It turns out that the provision dated back to 1921, when Oregon’s initiative and referendum system was still relatively new and, importantly, regarded with some hostility by the state legislature.97 Because, under the law at the time, citizen referral of legislation had to take place before a law went into effect, the legislature took to inserting emergency clauses in its legislation, making the legislation effective immediately upon passage and rendering it effectively immune from referral.98 In response to that practice, a constitutional amendment was proposed, giving the governor the authority to veto the emergency clause, thus enabling citizens to refer the legislation to a vote of the people.99 To the Oregon Supreme Court, understanding that background was critical to its determination of the breadth or narrowness with which to read the veto provision, because “[i]dentifying the reasons for the amendment bears on interpreting what this new power was meant to be.”100 The details about those reasons were readily available, particularly in contemporaneous press accounts. Those sources, the court concluded, “leave little doubt what the sponsors and the public
93. OR. CONST. art. V, § 15a. 94. See Lipscomb v. Bd. of Higher Educ., 753 P.2d 939, 940-41 (Or. 1988). 95. Id. 96. See id. at 946-47. 97. Id. at 944. 98. Id. at 943-44. 99. See id. at 944-46. 100. Id. at 943.
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understood [the provision] to mean at the time of its enactment.”101 The court concluded that the authority conferred by Article V, section 15a, was narrowly limited to the authority to veto an emergency clause alone.102 In other cases, however, such evidence of specific intent or understanding is not possible. This is especially so in cases involving state constitutional provisions that are older, quite broad, and open- ended. The older a constitutional provision and the further away from its adoption, the less likely it will be that there will be a useful historical record concerning the original meaning, the problem precipitating its adoption, and its understood purpose or effect. And, in the meantime, conditions and circumstances may have changed in ways not imagined by those who originally adopted the provision. In such cases, it seems to me, it is necessary to take a different approach to state constitutional interpretation. All available evidence must be consulted to determine as much as possible an underlying principle that the provision reflects and that may be applied to current circumstances.103
101. Id. at 947. 102. Id. 103. This is not a novel idea. The notion of a more “dynamic” approach to interpretation, which may become less tethered to original intentions as the distance from the time of adoption increases, was suggested in the context of statutory construction in the 1980s by Bill Eskridge and Phil Frickey. See, e.g., WILLIAM N. ESKRIDGE, JR. & PHILIP P. FRICKEY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 616 (1988) (“[W]here the statutory text is not specific and clear and where the original legislative expectations have been overtaken by changes in society and law over time,” the weight given to the text and history will be relatively “slight.”); WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 5-6 (1994) (“[S]tatutory interpretation is dynamic. . . . [A]s the distance between enactment and interpretation increases, a pure originalist inquiry becomes impossible and/or irrelevant.”). In some ways, the notion of such dynamic interpretation was suggested by Cardozo in his famous work, The Nature of the Judicial Process, when he observed that broader constitutional provisions are subject to more adaptive interpretive possibilities, while, as a constitution becomes more detailed and specific, “it loses flexibility, the scope of interpretation contracts, the meaning hardens.” BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 83-84 (1921). The idea that evidence of original intentions or understandings concerning a constitutional provision may yield a more general principle to be applied to modern circumstances, likewise, has been proposed by many others. See, e.g., Dorf, supra note 86, at 1766 (1997) (“Most, if not all, of us are . . . moderate originalists; we are interested in the framers’ intent on a relatively abstract level of generality.”) (internal quotation marks omitted) (footnote omitted). It has also been suggested by some courts. See, e.g., State v. Rogers, 4 P.3d 1261, 1270 (Or. 2000) (the goal of state constitutional interpretation is “to understand the wording in the [sic] light of the way the wording would have been understood and used by those who created the provision and to apply faithfully the principles embodied in the Oregon Constitution to modern circumstances as those circumstances arise”) (citation omitted) (internal quotation marks omitted).
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Take Oregon’s search and seizure provision, which states, in part, that no law may violate “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause.”104 The provision dates from 1857 and was plainly based on the Fourth Amendment.105 There is a complete absence of direct historical evidence as to what its framers intended or what the voters understood the provision to mean at the time; the provision was adopted without debate in the constitutional convention, and there is no record of any public discussion during ratification.106 We could attempt to reconstruct from more general historical sources what was likely the common understanding of a search and seizure guarantee. As it turns out, though, there is no real consensus about what late eighteenth- and early nineteenth-century citizens thought about search and seizure law. The debate is especially fierce over the intended meaning of the Fourth Amendment, which was the source for nearly all state constitutional search and seizure guarantees.107 But, even assuming that we could reconstruct what the framers or voters would have understood the search and seizure guarantee to mean in 1857, we would still be faced with the problem of applying that understanding to modern search and seizure issues. Does the
104. OR. CONST. art. I, § 9. 105. See generally Jack L. Landau, The Search for the Meaning of Oregon’s Search and Seizure Clause, 87 OR. L. REV. 819 (2008). 106. See Claudia Burton & Andrew Grade, A Legislative History of the Oregon Constitution of 1857—Part I (Articles I & II), 37 WILLAMETTE L. REV. 469, 515 (2001) (search and seizure provision passed with “no reported comment or debate”). 107. The debate centers on whether the framers of the Fourth Amendment understood the search and seizure guarantee to include a preference for warrants. Strictly speaking, the Fourth Amendment does not say anything about that one way or the other. It consists of two clauses, one guaranteeing a right to be secure from unreasonable searches and seizures, and another requiring that warrants not be issued except on probable cause. Several schools of thought have emerged. One contends that the framers understood the Fourth Amendment to imply a preference for warrants. See generally WILLIAM J. CUDDIHY, THE FOURTH AMENDMENT: ORIGINS AND ORIGINAL MEANING 602-1791 (2009). Another contends that the Fourth Amendment merely requires that searches and seizures not be unreasonable. See generally Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757 (1994). Still another contends that the first clause of the Fourth Amendment was intended only to be a preamble and that the only purpose of the Amendment was to impose a limitation on the issuance of warrants. See generally Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547 (1999). Still another suggests that Davies does not go far enough and that the Fourth Amendment was originally understood only to restrict the issuance of warrants for the search of houses. See generally David E. Steinberg, The Uses and Misuses of Fourth Amendment History, 10 U. PA. J. CONST. L. 581 (2008).
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constitution, for example, prohibit police officers from placing GPS locators on a suspect’s automobile without first obtaining a warrant?108 Originalism of the traditional sort that looks for original meaning or intended application, simply does not work in such cases. The fact is that, in 1857, law enforcement practices and technology looked nothing like they do now.109 Judges, who rode circuit, were routinely unavailable to issue warrants.110 And even the most primitive radio transmitters were not to be invented for more than half a century. At best, what the examination of the text of the provision and its historical context will reveal is a general principle—for example, the protection of personal privacy from unwarranted government intrusion—that may be applied to modern circumstances. Of course, the use of historical materials to provide context for a state constitutional provision and clues as to an appropriate level of generality with which to characterize the significance of those materials is fraught with difficulty. Judges are not often trained historians. But the fact that we are not experts does not mean that we are at liberty to simply disclaim the task. We must do our best to do it right. I have discussed elsewhere some of the problems that judges and lawyers encounter when inquiring into the historical circumstances of a state constitutional provision, and I will not repeat the discussion here.111 Suffice it to say that examination of historical materials requires care and good judgment in the selection of materials, in the evaluation of the weight to ascribe to those materials, and in describing the significance of those materials.
108. See, e.g., State v. Campbell, 759 P.2d 1040, 1049 (Or. 1988) (because placing a radio transmitter on a private individual’s vehicle would represent a “staggering limitation on personal freedom,” police must obtain a warrant before doing so); see also United States v. Maynard, 615 F.3d 544, 555-67 (D.C. Cir. 2010) (Fourth Amendment requires a warrant before placing a GPS locator on vehicle); United States v. Pineda- Moreno, 591 F.3d 1212, 1216-17 (9th Cir. 2010) (no warrant is required for securing a GPS locator to an automobile in public space); United States v. Garcia, 474 F.3d 994, 996-98 (7th Cir. 2007) (no warrant required). 109. See generally KERMIT L. HALL, THE MAGIC MIRROR: LAW IN AMERICAN HISTORY 176-78 (1989) (“[T]he nineteenth-century police, taken as a whole, were far removed from modern urban law enforcement institutions.”); Thomas Y. Davies, Correcting Search-and-Seizure History: Now-Forgotten Common-Law Warrantless Arrest Standards and the Original Understanding of “Due Process of Law,” 77 MISS. L.J. 1, 222 (2007) (“[T]he modern police officer, and the modern police department, bears little resemblance to the framing-era constable working under the direction of the justice of the peace.”). 110. Under Oregon’s original constitution, for example, each of four justices of the Oregon Supreme Court was required to sit as a circuit court judge in designated counties at least twice a year. OR. CONST., art. VII (original), § 8. See generally LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 140-43 (2d ed., 1985) (describing circuit- riding practices of early to mid-nineteenth century judiciaries). 111. See generally Jack L. Landau, A Judge’s Perspective on the Use of History in State Constitutional Interpretation, 38 VAL. U. L. REV. 451 (2004).
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c. Precedent and the Rule of Stare Decisis
Constitutional law consists of more than just the words of the constitution itself or even the process of interpreting those words. In nearly all cases, a question of constitutional interpretation will not be one of first impression and will, instead, be addressed in the context of prior judicial pronouncements or applications of the provision at issue. The question then arises: what weight should be accorded those prior interpretations of the state constitution? The question is especially important in the case of state constitutional interpretation, because the process of giving independent significance to state constitutional provisions—particularly individual rights provisions—often requires departing from prior case law that simply assumed that similar state and federal constitutional provisions have the same or similar meaning. The virtues of stare decisis generally are familiar: adhering to prior decisions promotes stability, coherence, efficiency, and predictability, as well as promoting equal treatment under the law.112 On the surface, at least, it seems intuitively comfortable to assume that those virtues support adhering to the principle of precedent in constitutional cases. Other considerations cut against those virtues, however. It may become clear, for example, that a precedent was incorrectly decided either because of mistakes in research or reasoning or because it was based on assumptions or premises that have since been subject to significant change. Or, with the passage of time, there may develop a consensus that a prior decision has proven unworkable. The underlying concern, in each case, is the familiar one of legitimacy: Is the legitimacy of judicial review threatened more by continued adherence to doubtful precedent than by abandoning that precedent in favor of a decision more consonant with principled constitutional interpretation? The question has prompted much debate among scholars. Some contend that, in the context of constitutional interpretation, stare decisis is not merely poor policy, but actually unconstitutional. The theory is that, if a constitution is supreme law, incorrect interpretations of it must be as unconstitutional as any legislation or executive decisions that are rendered in violation of its provisions.113 Others contend that the virtues
112. For an interesting take on the historical development of the doctrine of stare decisis, see generally Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 VAN. L. REV. 647 (1999). 113. See, e.g., Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Precedent, 22 CONST. COMMENT. 289, 291 (2005) (“Stare decisis is unconstitutional, precisely to the extent that it yields deviations from the correct interpretation of the Constitution! It would have judges apply, in preference to the Constitution, that which is not consistent with the Constitution.”); see also Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB. POL’Y 23, 24 (1994) (“[T]he practice of
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of judicial restraint that are promoted by adherence to precedent outweigh those of abandoning prior decisions in favor of “correct” constitutional interpretation.114 Still others contend that stare decisis is not merely good policy, but more importantly is a principle of constitutional magnitude.115 Meanwhile, among the courts, there have emerged notions of “strong” and “weak” versions of stare decisis, depending on the nature of the decision. It is customary to trace the taxonomy to Justice Brandeis and his dissenting opinion in Burnet v. Coronado Oil & Gas Co., in which he famously asserted that stare decisis “is not . . . universal inexorable command,” but may depend on the source of law involved; in the case of the federal constitution, he asserted, the pull of precedent is perhaps less forceful because of the tremendous difficulty of correcting judicial decisions by constitutional amendment.116 That notion, in turn, has been picked up by some who propose that state constitutional adjudication should be subject to an especially strong pull of stare decisis because such decisions are amenable to correction by constitutional amendment much more easily than are their federal constitutional counterparts.117 This is not the place for me to wrestle with the many subtle and difficult issues posed by the interplay between constitutional theory and stare decisis.118 But I do offer a few general observations about stare decisis as it pertains to state constitutional interpretation.
following precedent is not merely nonobligatory or a bad idea; it is affirmatively inconsistent with the federal Constitution.”). 114. See, e.g., Thomas W. Merrill, Originalism, Stare Decisis and the Promotion of Judicial Restraint, 22 CONST. COMMENT. 271 (2005) (arguing that, because of the importance of judicial restraint, adherence to precedent is more important than arriving at correctly reasoned, originalist constitutional decisions). 115. See, e.g., Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. REV. 570, 572 (2001) (“Stare decisis, . . . is a doctrine of constitutional magnitude. . . .”). 116. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-11 (1932) (Brandeis, J., dissenting); see also Comm’r v. Estate of Church, 335 U.S. 632, 677 (1949) (Frankfurter, J., dissenting) (drawing a distinction between overruling a constitutional decision “without waiting for the leadenfooted process of constitutional amendment” and respecting a prior construction of “what Congress has enacted with ample powers on its part quickly and completely to correct misconstruction.”). 117. See, e.g., Mark Sabel, The Role of Stare Decisis in Construing the Alabama Constitution of 1901, 53 ALA. L. REV. 273, 274 (2001) (“While congressional correction of a federal constitutional decision is nearly impossible, amending the state constitution is substantially easier. Because it is far easier for the Legislature and the people to make extra-judicial corrections to any clearly erroneous interpretations of the state constitution, the doctrine of stare decisis should be applied with heightened rigor to the 1901 Constitution.”). 118. The subject has become popular in the law reviews in recent years. See, e.g., Symposium, Originalism and Precedent, 5 AVE MARIA L. REV. 1 (2007); Symposium,
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I take as given the benefits of adhering to the doctrine of stare decisis, even in the context of state constitutional interpretation. Who would be willing to say that stability, coherence, efficiency, and predictability are not important values in any system of law? But it also seems to me that the pull of stare decisis, with all of its virtues, must have limits. Precisely because constitutional interpretation is supposed to be driven by the application of legal principles, and not by the personal predilections of judges, if a prior decision turns out to have been incorrectly decided, judges should, if anything, be eager to correct the mistake. That is because precedent, in effect, compromises the integrity of interpretation; adherence to prior cases that were wrongly decided means that, in a very real sense, cases are not being decided in accordance with the law.119 When a prior case is truly incorrect, then, it seems to me that the very legitimacy concerns that always lurk behind state constitutional decision-making suggest that precedent should give way to principle. I am skeptical of the argument that, because state constitutions are easier to amend than the federal constitution, state constitutional decisions should be subject to a stronger, not a weaker, pull of precedent. To begin with, why the benchmark should be the process for amending the federal constitution is not obvious to me. It seems to me that the point is not how state constitutions compare with the federal constitution, but rather the nature of state constitutions as constitutions in relation to other forms of state law.120 If the relative ease of amendment is the relevant consideration, then it seems to me that the more important comparison is the relative difficulty of amending state constitutions in relation to legislative alteration of state statutes in response to state court statutory construction decisions. Thus, as with federal constitutional precedent, state constitutional precedent, if anything, should be less subject to the constraints of stare decisis. That does not mean that, as some scholars suggest, stare decisis should not apply at all. The argument that precedent must give way to a correct interpretation of a constitution presupposes that an obviously “correct” interpretation exists. I have no doubt that, in many cases, that is precisely the case. And, in such cases, if it can be shown that prior
Can Originalism Be Reconciled with Precedent? A Symposium on Stare Decisis, 22 CONST. COMMENT. 257 (2005). 119. See Paulsen, supra note 113, at 289 (“Whatever one’s theory of constitutional interpretation, a theory of stare decisis, poured on top and mixed in with it, always corrupts the original theory.”). 120. WILLIAMS, supra note 3, at 351 (“Regardless of the relative ease of amending state constitutions when compared with the federal Constitution, the fact remains that, in an absolute sense, state constitutions are the highest source of law in any given state, and they are much harder to change than common law or statutory law.”).
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cases cannot be reconciled with the wording of the constitution properly considered in its context and in light of applicable rules of construction, the prior cases should be abandoned. An excellent example may be found in my own state’s case law. In 1993, the Oregon Supreme Court declared in Lloyd Corp. v. Whiffen121 that the Oregon Constitution protects the right of individual citizens to collect initiative petition signatures on the premises of shopping centers. The court identified nothing in the state constitution that says anything about such a right. The court simply declared that the right to collect signatures in the “common areas” of shopping centers is “implicit” in the nature of the initiative process, subject to reasonable time, place, and manner restrictions.122 The decision was especially odd, given that the court had just decided, a matter of a few months earlier, to adopt a more or less originalist approach to state constitutional interpretation, which emphasized fidelity to the text and the historical context of a state constitutional provision.123 Over the course of the next seven years, much litigation resulted over the nature of this state constitutional right, its source, its contours, and its extent. (What, for example, constituted the “common areas” of “shopping centers”?) Each time the matter came to the Supreme Court, the court could not muster even a majority to decide such questions.124 Meanwhile, in Stranahan v. Fred Meyer,125 it was suggested that Whiffen should be overruled because it could not be reconciled with the court’s adopted principles of constitutional interpretation and had proven unworkable. The court agreed.126 Not only that, the court declared that it was willing to consider other prior rulings under the state constitution whenever a party presents to us a principled argument suggesting that, in an earlier decision, this court wrongly considered or wrongly decided the issue in question. We will give particular attention to arguments that either present new information as to the meaning of the constitutional provision at issue or that demonstrate some failure on the part of this court at the time of the earlier decision to follow its
121. Lloyd Corp. v. Whiffen, 849 P.2d 446 (Or. 1993). 122. Id. at 452-53. 123. Priest v. Pearce, 840 P.2d 65, 67 (Or. 1992) (interpretation of a provision of the state constitution consists of three steps, namely, analysis of “[i]ts specific wording, the case law surrounding it, and the historical circumstances that led to its creation”). 124. In one case, State v. Cargill, 851 P.2d 1141 (Or. 1993), the supreme court held the petition for three years before concluding that it could not reach a decision and affirmed the lower court by an equally divided court. In another, State v. Dameron, 853 P.2d 1285 (Or. 1993), the court generated six different opinions without a majority agreeing on any single theory of the case. 125. Stranahan v. Fred Meyer, 11 P.3d 228 (Or. 2000). 126. Id. at 243.
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usual paradigm for considering and construing the meaning of the provision in question.127 Precisely. But it is not always easy to establish that a prior case actually was wrongly decided. And later courts cannot be seen to jettison the decisions of earlier courts merely because they disagree with them. Particularly when the prior cases involve the interpretation of older, broader, more open-ended provisions for which neither language nor history provide clearly correct answers, it seems to me that the arguments in favor of a less robust stare decisis simply do not apply. Moreover, in my view, in order for stare decisis to apply, the earlier decision must represent a considered and authoritative attempt to determine the meaning of a given constitutional provision. If a prior decision includes a passing dictum concerning the meaning or effect of a constitutional provision, I do not think it is necessarily entitled to any weight in future cases. A prior decision must draw its authoritative nature from the fact that the decision was reached by means of application of appropriate principles of law. In a similar vein, it seems to me that a prior decision is entitled to stare decisis effect only if it represents an application of the principles of state constitutional interpretation that a court has made applicable to the task.128 A prior decision, for example, that merely assumes without any analysis that a state individual rights provision has the same meaning that the federal courts have given its parallel provision in the federal Bill of Rights should have no particular binding effect. This is important in the context of state constitutional interpretation, for it is often the case that, before the state constitutional “revolution” of the 1980s, state courts tended to interpret their own constitutions without much regard for interpretive principles, indeed, without much regard for the independent significance of state constitutions at all.129 Such decisions, in my view, should not impede a more coherent state constitutionalism.
127. Id. at 237. 128. Cf. Randy E. Barnett, Trumping Precedent With Original Meaning: Not As Radical As It Sounds, 22 CONST. COMMENT. 257, 267 (2005) (“[A]ny epistemic presumption of correctness should only be extended to previous decisions that actually attempted to discern original meaning. Decisions that abjure original meaning can hardly be presumed to have been correctly decided on originalist grounds.”) (internal quotations omitted). 129. See A.E. Dick Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 VA. L. REV. 873, 878 (1976) (noting that state courts fell “into the drowsy habit of looking no further than federal constitutional law.”).
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d. Hard Cases and Candor
Most state constitutional cases can be decided correctly on the basis of the principles that I have described. In fact, most state constitutional cases could be decided on the basis of practically any set of recognized interpretive principles—textualist, originalist, or otherwise—mainly because most cases are capable of resolution by reference to a fairly unambiguous constitutional text.130 In spite of the impression that the deluge of academic analysis of constitutional decisions might otherwise suggest, most cases are not that difficult. But some are. Some, in fact, are quite difficult, because of ambiguity of the text, a lack of information about what the framers or voters understood it to mean, the passage of time, and the occurrence of changes that neither framers nor voters could have possibly imagined. In such cases, the rules—any rules—will come up short. For example, in cases involving older rights provisions that are broad and open-ended, courts will confront the problem of generalization; that is, at what level of generality or specificity should the court describe the principle that the wording and the history of a state constitutional provision reveal? The problem, as I have earlier noted, is unavoidable. Unless, for instance, a nineteenth-century right to bear arms provision is to be limited to nineteenth-century weapons technology—a position that I assume to be obviously untenable—some sort of generalization is necessary to apply the provision to modern circumstances. The question is the particular level of generality that is appropriate. There is no easy answer to that question. Some scholars suggest that the solution is to employ the level of generality that the wording and the history suggest is appropriate.131 Aside from the inherent circularity
130. See, e.g., Jeffrey S. Sutton, A Review of Richard A. Posner, How Judges Think (2008), 108 MICH. L. REV. 859, 861-62 (2010) (book review) (Although the vast majority of appellate court decisions are unanimous, academic writing on the subject is skewed by an emphasis on “the most difficult statutory and constitutional questions, the most indeterminate legal issues, the ones most likely to leave the impression (fair or not) that the policy preferences of the judges . . . enter the mix. . . .”); Cass R. Sunstein, Judging National Security Post-9/11: An Empirical Investigation, 2008 SUP. CT. REV. 269, 272-73 (2008) (“Even in the most ideologically contested domains, most decisions are unanimous. . . .”). See also Daniel A. Farber, Do Theories of Statutory Interpretation Matter? A Case Study, 94 NW. U.L. REV. 1409, 1409-10 (2000) (Although Seventh Circuit judges Richard A. Posner and Frank Easterbrook’s theoretical writings reveal approaches to interpretation that “are as far apart as two judges could be,” their actual decisions show remarkable unanimity, showing the relationship between theories of interpretation and outcomes to be “quite limited.”). 131. Robert Bork, for example, asserts that “[o]riginal understanding avoids the problem of the level of generality . . . by finding the level of generality that interpretation of the words, structure, and history of the Constitution fairly supports.” BORK, supra note
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of the suggestion, it strikes me that there is no way to be sure about the answer; any number of different levels of generality will be perfectly consistent with the wording and the history of a given provision. Precisely how judges actually do, as well as how they should, decide such indeterminate questions has been the subject of vigorous and searching scholarship for nearly a century, at least since the publication of Cardozo’s famous The Nature of the Judicial Process.132 Some insist that the inquiry always should be tied to established legal principles, in particular, what we know about the original meaning of the provision.133 Others propose that more “pragmatic” considerations, such as the social or economic consequences of different decisions, should be taken into account.134 Still others suggest that larger constitutional values—Justice Breyer’s “active liberty” comes to mind—are key to deciding these difficult cases.135 I am not prepared to stake out a position in that particular skirmish; I am not aware of anything about the nature of state constitutions that intrinsically favors one approach over another. What I do contend, however, is that, whatever a court determines is the appropriate consideration or set of considerations in deciding these hardest of hard cases, it should be candid about what it is doing. Once again, my concern is legitimacy. Even in cases in which rules fail—in fact, especially in cases in which rules fail—it seems to me important for courts to be transparent about their reasoning. Because the principal rationale for judicial review is that the interpretation of constitutions entails the application of legal principles, courts should explain their interpretive decisions, so that it is clear that they have a basis in reason and not merely the personal policy preferences of the judges involved.136 Moreover, because of the fact that so many state
58, at 150; see also Michael J. Perry, The Legitimacy of Particular Conceptions of Constitutional Interpretation, 77 VA. L. REV. 669, 679 (1991) (“[A] judge should try not to articulate the most general aspect of the original understanding of a constitutional provision at a level of generality any broader than the relevant materials . . . warrant.”). 132. See generally CARDOZO, supra note 103. 133. See generally Tribe, supra note 77, at 37-47. 134. See, e.g., RICHARD A. POSNER, HOW JUDGES THINK (2008). 135. STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION (2005). 136. See Micah Schwartzman, Judicial Sincerity, 94 VA. L. REV. 987, 990-91 (2008) (“[J]udges are charged with the responsibility of adjudicating legal disagreements between citizens. As such, their decisions are backed with the collective and coercive force of political society, the exercise of which requires justification. It must be defended in a way that those who are subject to it can, at least in principle, understand and accept. To determine whether a given justification satisfies this requirement, judges must make public the legal grounds for their decisions. Those who fail to give sincere legal justifications violate this condition of legitimacy.”); David L. Shapiro, In Defense of Judicial Candor, 100 HARV. L. REV. 731, 737 (1987) (“A requirement that judges give
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court judges are elected, it becomes especially important for them to lay bare their decisions in a candid way, so that those decisions may be fairly evaluated by the electorate.137 Aside from that, candor in judicial decision-making is critical to providing guidance to future litigants; if the decisions are being made for reasons other than those stated, then the stated reasons may serve only to lead future litigants astray.138 I am aware of arguments against such candor in judicial decision- making, arguments that—strangely enough—are also predicated on legitimacy concerns. Some argue that a certain amount of subterfuge is necessary to preserve doctrinal clarity and to make judicial decisions appear driven by the application of neutral and mechanical doctrinal principles.139 In my view, no one will be actually fooled by the subterfuge and legitimacy will be undercut in the process.140 For instance, some courts that have staked out a more or less originalist approach to state constitutional interpretation will strain to support their decisions by references to historical sources and the supposed intentions or understandings of the framers in ways that are simply not credible. A good example is presented by the decision of the Oregon Supreme Court in State v. Cookman,141 which required the court to assess the meaning of the state ex post facto clause, part of the original Oregon Constitution of 1857. As it turns out, the framers of the constitution adopted the without recorded debate. The court nevertheless found the intended meaning of the clause by reasoning that the clause appeared to be patterned after a similarly worded provision of the 1851
reasons for their decisions—grounds of decision that can be debated, attacked, and defended—serves a vital function in constraining the judiciary’s exercise of power. In the absence of an obligation of candor, this constraint would be greatly diluted. . . .”). 137. See, e.g., GOODWIN LIU, PAMELA S. KARLAN & CHRISTOPHER H. SCHROEDER, KEEPING FAITH WITH THE CONSTITUTION 35 (2009) (“[T]ransparency enables the citizenry to assess the correctness or wisdom of judicial decision-making and is therefore central to the legitimacy of constitutional interpretation by independent courts.”). 138. See, e.g., Chad M. Oldfather, Writing, Cognition, and the Nature of the Judicial Function, 96 GEO. L.J. 1283, 1300 (2008) (“Insofar as the functions of judicial opinions include those of providing guidance to parties who must structure their affairs in accordance with law and judges who must render decisions in accordance with law, it is important that judicial opinions speak as fully and candidly as they can to why the court decided as it did. If a court issues opinions that speak only of doctrine where doctrine does not capture all of the factors driving its decisions, parties and judges looking to act in such a way as to not run afoul of that court will lack all the information they need to do so.”). 139. See, e.g., Scott C. Idleman, A Prudential Theory of Judicial Candor, 73 TEX. L. REV. 1307, 1388 (1996) (“[A]uthoritativeness, or the related concept of institutional legitimacy, may also be significantly preserved through the avoidance of candor.”). 140. See Shapiro, supra note 136, at 737 (“[L]ack of candor seldom goes undetected for long, and its detection only serves to increase the level of cynicism about the nature of judging and of judges.”). 141. State v. Cookman, 920 P.2d 1086 (Or. 1996).
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Indiana Constitution, which was based on a similarly worded provision of the 1816 Indiana Constitution, which, in turn, had been interpreted by the Indiana Supreme Court in 1822, which interpretation the Oregon court found dispositive because the Indiana court’s decision was, at least theoretically, “available” to the framers of the Oregon Constitution 35 years later.142 Does anyone really believe that the voters in Oregon had in mind the 1822 Indiana Supreme Court decision concerning the 1816 Indiana Constitution when they approved the 1857 Oregon Constitution? Of course not.
IV. CONCLUSION There is much more to state constitutional interpretation than what I have covered—canons of construction, presumptions of constitutionality, the use of historical materials evidencing the intentions or understandings of voters, the relevance of the interpretation of state constitutional provisions from other states (particularly of provisions borrowed from other states), the weight to be given contemporaneous legislative construction of state constitutional provisions, and the special challenges associated with resolving inconsistencies in frequently amended state constitutions are just a few of the many issues that easily come to mind. I have attempted to address what I see as the three core issues related to the interpretation of state constitutions—the foundational question regarding whether we should engage in state constitutional interpretation at all; the secondary question pertaining to the timing of such interpretation, particularly in relation to the interpretation of parallel provisions of the federal constitution; and, finally, some fundamental issues relating to the method of determining what state constitutions mean. More can and should be said about even the questions that I have addressed. As I have noted, state constitutional interpretation is a subject that is woefully underappreciated both by the courts and scholars. That is truly unfortunate, for state constitutions and their interpretation are becoming ever more significant in our “compound republic,” as state— not federal—courts are confronted with the most difficult and controversial social issues of the day.
142. Id. at 1093.
The State of the Constitutions: New Developments in Federal and State Constitutional Law 1B–39 Chapter 1B—Some Thoughts About State Constitutional Interpretation
The State of the Constitutions: New Developments in Federal and State Constitutional Law 1B–40 Chapter 1C Developments in State Constitutionalism—Three Cases
Professor Paul A. Diller Willamette University College of Law Salem, Oregon
Contents Kerr v. Hickenlooper, 880 F. Supp.2d 1112 (D. Colo. 2012) 1C–1 League of Educ. Voters v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash. 2013) ...... 1C–41 N.Y. Statewide Coal. of Hispanic Chambers of Commerce v. N.Y. City Dep’t of Health & Mental Hygiene, 970 N.Y.S.2d 200 (N.Y. App. Div. 2013) ...... 1C–63 Chapter 1C—Developments in State Constitutionalism—Three Cases
The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–ii Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
880 F.Supp.2d 1112 Andy KERR, Colorado State Representative, Norma V. Anderson, Jane M. Barnes, Member Jefferson County Board of Education, Elaine Gantz Berman, Member State Board of Education, Alexander E. Bracken, William K. Bregar, Member Pueblo District 70 Board of Education, Bob Briggs, Westminster City Councilman, Bruce W. Broderius, Member Weld County District 6 Board of Education, Trudy B. Brown, John C. Buechner, Ph.D., Lafayette City Councilman, Stephen A. Burkholder, Richard L. Byyny, M.D., Lois Court, Colorado State Representative, Theresa L. Crater, Robin Crossan, Member Steamboat Springs RE–2 Board of Education, Richard E. Ferdinandsen, Stephanie Garcia, Member Pueblo City Board of Education, Kristi Hargrove, Dickey Lee Hullinghorst, Colorado State Representative, Nancy Jackson, Arapahoe County Commissioner, William G. Kaufman, Claire Levy, Colorado State Representative, Margaret (Molly) Markert, Aurora City Councilwoman, Megan J. Masten, Michael Merrifield, Marcella (Marcy) L. Morrison, John P. Morse, Colorado State Senator, Pat Noonan, Ben Pearlman, Boulder County Commissioner, Wallace Pulliam, Frank Weddig, Arapahoe County Commissioner, Paul Weissmann, and Joseph W. White, Plaintiffs, v. John HICKENLOOPER, Governor of Colorado, in his official capacity, Defendant. Civil Action No. 11–cv–01350–WJM–BNB. United States District Court, D. Colorado. July 30, 2012.
[880 F.Supp.2d 1117] approval. Plaintiffs allege that, by taking away the General Assembly's power to tax, TABOR violates Colorado's constitutional and statutory David Evans Skaggs, Herbert Lawrence Fenster, obligations to maintain a republican form of McKenna Long & Aldridge, LLP, Emily L. government. Droll, Geoffrey M. Williamson, John A. Herrick, Lino S. Lipinsky De Orlov, Michael F. This matter is before the Court on Feeley, Brownstein Hyatt Farber Schreck, LLP, Defendant's Motion to Dismiss. (ECF No. 18.) Denver, CO, for Plaintiffs. In the Motion, Defendant argues that
Bernard A. Buescher, Daniel D. Domenico, [880 F.Supp.2d 1118] Maurice G. Knaizer, Megan Paris Rundlet, Colorado Attorney General's Office, Denver, Plaintiffs lack standing to bring this action, that CO, for Defendant. Plaintiffs' claims present non-justiciable political questions, and that Plaintiffs' Equal Protection claim and “Impermissible Amendment claim” 1 ORDER GRANTING IN PART AND are independently subject to dismissal. ( Id.) On DENYING IN PART DEFENDANT'S February 15, 2012, the Court held oral argument MOTION TO DISMISS on the Motion, and thereafter requested WILLIAM J. MARTINEZ, District Judge. supplemental briefing from the parties on various issues related to standing. ( See ECF No. This action challenges the constitutionality 57, 68). The Motion to Dismiss is fully briefed and legality of the Taxpayer's Bill of Rights and now ripe for adjudication. ( See ECF No. 18, (“TABOR”), an amendment to the Colorado 30, 51, 72, 73; see also ECF No. 21–1, 61.) Constitution passed by voter initiative in 1992. Among other provisions, TABOR prohibits the Having carefully analyzed the issues Colorado General Assembly from increasing tax presented, the Court GRANTS IN PART and rates or imposing new taxes without voter DENIES IN PART the Motion to Dismiss. The
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–1 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
Court holds that the Plaintiffs who are current the prior calendar year plus annual local members of the Colorado General Assembly growth.... If revenue from sources not excluded have standing to bring this action, and therefore from fiscal year spending exceeds these limits in the action is not subject to dismissal for lack of dollars for that fiscal year, the excess shall be standing.2 The Court also holds that Plaintiffs' refunded in the next fiscal year unless voters claims are not barred by the political question approve a revenue change as an offset.” Id.art. doctrine. Further, the Court holds that Plaintiffs X, § 20, cl. (7)(a)-(d).7 have failed to state an Equal Protection claim, but that their “Impermissible Amendment claim” • “New or increased transfer tax rates on is not subject to dismissal. Therefore, the Court real property are prohibited. No new state real will allow this action to proceed past the property tax or local district income tax shall be pleading stage on all claims except for the Equal imposed.... Any income tax law change after Protection claim. July 1, 1992 shall also require all taxable net income to be taxed at one rate, excluding refund I. BACKGROUNDA. TABOR tax credits or voter-approved tax credits, with no added tax or surcharge.” Id.art. X, § 20, cl. 3 TABOR is codified in Article X, Section (8)(a). 20 of the Colorado Constitution. TABOR provides,4 among other things, that: Given that TABOR is part of the Colorado Constitution, it cannot be revoked or amended • A “district” (defined in TABOR as the without voter approval. SeeColo. Const. art. State of Colorado or any local government in XIX, § 2, cl. (1) (provision of Colorado Colorado) “must have voter approval in advance Constitution explaining how amendments to for ... any new tax, tax rate increase, mill levy Constitution are adopted, and stating that above that for the prior year, valuation for proposed constitutional amendments “shall be assessment ratio increase for a property class, or submitted to the registered electors of the state extension of an expiring tax, or a tax policy for their approval or rejection [during a general change directly causing a new tax revenue gain election], and such as are approved by a majority to any district.” Colo. Const. art. X, § 20, cls. of those voting thereon shall become part of this 5 (2)(b), (4)(a). constitution”); id.art. XIX, § 1 (constitutional provision explaining how a constitutional • A district “must [also] have voter convention is called, providing that voter approval in advance for ... creation of any approval must be obtained to hold the multiple-fiscal year direct or indirect district convention, and providing that voter approval is debt or other financial obligation whatsoever required for the adoption of any revisions, without adequate present cash reserves pledged alterations, or amendments to the Constitution irrevocably and held for payments in all future 6 resulting from the convention); see also id.art. fiscal years.” Id.art. X, § 20, cl. (4)(b). X, § 20, cl. (1) (provision of TABOR stating that • “The maximum annual percentage change “[o]ther limits on district revenue, spending, and in state fiscal year spending equals inflation plus debt may be weakened only by future voter the percentage change in state population in the approval”). prior calendar year.... The maximum annual B. The Operative Complaint
[880 F.Supp.2d 1119] For purposes of Defendant's Motion to percentage change in each local district's fiscal Dismiss, the Court properly accepts as true the year spending equals inflation in the prior allegations in Plaintiffs' First Amended calendar year plus annual local growth.... The Substitute Complaint for Injunctive and maximum annual percentage change in each Declaratory Relief (the “Operative Complaint”). district's property tax revenue equals inflation in ( See “Legal Standards” section below.)
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–2 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
1. Plaintiffs Assembly any authority to change state law concerning taxation to replace or increase This action is brought by 33 Plaintiffs. ( Id. revenue, and prohibits the General Assembly ¶¶ 10–42.) Five Plaintiffs are current members from raising funds by any other means, of the Colorado General Assembly, four of including borrowing. Moreover, the interactions whom are members of the Colorado House of of the provisions of TABOR may actually force Representatives and one of whom is a member existing taxes to be decreased without any action of the Colorado Senate (the “Legislator– of the General Assembly. Plaintiffs”). ( Id. ¶¶ 10, 22, 28, 31, 36.) 8 Nine Plaintiffs are former members of the Colorado ( Id. ¶ 80.) General Assembly. ( Id. ¶¶ 11, 16, 19, 30, 32, 34, 35, 40, 41.) Other Plaintiffs include current or former county commissioners, mayors, city 3. Claims councilpersons, members of boards of education, public university presidents and professors, Plaintiffs bring five claims for relief in the public school teachers, and parents Operative Complaint:
[880 F.Supp.2d 1120] (1) The “Guarantee Clause claim,” alleging that TABOR violates Article IV, Section 4 of the of school-age children. ( See generally id. ¶¶ 10– United States Constitution (the “Guarantee 42.) All Plaintiffs are Colorado citizens. ( Id.) Clause”). ( Id. ¶ 82.) The Guarantee Clause provides that “[t]he United States shall 2. General Allegations guarantee to every State in this Union a Republican Form of Government....” U.S. Const. Plaintiffs' Operative Complaint states, “The art. IV, § 4. Plaintiffs' Guarantee Clause claim purpose of this case is to seek a ruling that alleges that, “[b]y removing the taxing power of [TABOR] is unconstitutional because it deprives the General Assembly, the TABOR amendment the state and its citizens of effective renders the Colorado General Assembly unable representative democracy, contrary to a to fulfill its legislative obligations under a Republican Form of Government as required Republican Form of Government and violates under both the United States and Colorado the guarantee of Article IV, Section 4....” (ECF Constitutions.” (ECF No. 36, ¶ 8.) Plaintiffs No. 36, ¶ 82.) explain their position that “[a]n effective legislative branch must have the power to raise (2) The “Enabling Act claim,” alleging that and appropriate funds. When the power to tax is TABOR violates the Enabling Act of 1875 (the denied, the legislature cannot function “Enabling Act”), the U.S. statute granting effectively to fulfill its obligations in a statehood to Colorado. ( Id. ¶ 83.) The Enabling representative democracy and a Republican Act, inter alia, authorized the formation of “a Form of Government.” ( Id. ¶ 7.) They allege constitution and State Government [for that TABOR has caused a “slow, inexorable Colorado].... Provided, That the constitution slide into fiscal dysfunction [in Colorado]” ( id. shall be republican in form ... and not repugnant ¶ 3), and specifically allege that TABOR has to the Constitution of the United States....” 18 constrained the state government's ability to Stat. 474 (1875). Plaintiffs' Enabling Act claim comply with its constitutional obligation to alleges that “the TABOR amendment violates adequately fund public education ( id. ¶ 81). the Enabling Act” because “[t]he Enabling Act's After reviewing some of TABOR's provisions ( requirement for a Republican Form of id. ¶¶ 75–77, 79), the Complaint states, Government entail[s] having and maintaining a fully effective legislature.” (ECF No. 36, ¶ 83.) The totality of these TABOR provisions removes entirely from the Colorado General
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–3 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
(3) The “Supremacy Clause claim,” taking any action whatsoever to effect the alleging that TABOR violates Article VI of the requirements and purposes of [TABOR].” ( Id. United States Constitution (the “Supremacy at 20–21.) Clause”). ( Id. ¶ 84.) The Supremacy Clause provides that “[t]his Constitution, and the Laws C. Procedural History of the United States which shall be made in Pursuance thereof ... shall be the supreme Law Plaintiffs filed this action on May 23, 2011. of the Land ... any Thing in the Constitution or (ECF No. 1.) On June 15, 2011, Plaintiffs filed Laws of any State to the Contrary an unopposed motion to amend the original notwithstanding.” U.S. Const. art. VI, cl. 2. Complaint in order to, inter alia, replace the Plaintiffs' Supremacy Clause claim alleges that State of Colorado as the named defendant with TABOR is in “irresolvable conflict” with the the Governor of Colorado, John Hickenlooper, in his official capacity. (ECF No. 9.) The Court [880 F.Supp.2d 1121] granted the request (ECF No. 11), and Plaintiffs' Substituted Complaint for Injunctive and Guarantee Clause and Enabling Act, and Declaratory Relief (“Substitute Complaint”) was therefore “must yield to the requirements of the entered on June 16, 2011 (ECF No. 12). ‘Guarantee Clause’ and of the Enabling Act that Colorado maintain a Republican Form of [880 F.Supp.2d 1122] Government.” (ECF No. 36, ¶ 84.) On October 17, 2011, Plaintiffs again filed (4) The “Equal Protection claim,” alleging an unopposed motion to amend their complaint. that TABOR violates the Equal Protection (ECF No. 31.) The only differences between the Clause of the Fourteenth Amendment of United proposed First Amendment Substitute States Constitution. ( Id. ¶ 85.) The Equal Complaint for Injunctive and Declaratory Relief Protection Clause provides that “[n]o State shall and the Substitute Complaint were the removal ... deny to any person within its jurisdiction the of one of the 34 Plaintiffs, the addition of a new equal protection of the laws.” U.S. Const. position for another Plaintiff, and a slight re- amend. XIV, § 1. Plaintiffs' Equal Protection ordering of paragraphs. ( Compare ECF No. 12, claim alleges that, because TABOR violates the with ECF No. 36.) The Court again granted the requirement of a Republican Form of request (ECF No. 35), and the First Amended Government, TABOR “den[ies] to Plaintiffs and Substitute Complaint for Injunctive and others similarly situated the Equal Protection of Declaratory Relief (the “Operative Complaint”) the Laws....” (ECF No. 36, ¶ 85.) 9 was entered on October 18, 2011 (ECF No. 36).
(5) The “Impermissible Amendment On August 15, 2011, Defendant filed the claim,” alleging, inter alia, that TABOR Motion to Dismiss currently at issue. (ECF No. impermissibly amended the Colorado 18.) On October 11, 2011, Plaintiffs filed their Constitution in violation of constitutionally Brief in Opposition to the Motion to Dismiss. superior provisions of the Colorado (ECF No. 30.) On November 18, 2011, Constitution, specifically Article II, Section 2; Defendant filed a Reply to Plaintiffs' Article V, Sections 31 and 32; and Article X, Opposition. (ECF No. 51.) The Court has also Section 2 of the Colorado Constitution. ( Id. ¶¶ allowed the filing of two amicus briefs, one filed 12 87–92.) 10,11 by the Independence Institute (ECF No. 21–1), and one filed by Professors Erwin Chemerinsky, 4. Relief Sought Gene Nichol, and William Wiecek (ECF No. 61).13 Through this action, Plaintiffs seek an order rendering TABOR “null and void” and On February 15, 2012, the Court held oral “prohibiting any [Colorado] state officer from argument on Defendant's Motion to Dismiss.
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–4 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
(ECF No. 68.) At the oral argument, the parties for dismissal, for every purported basis for formally stipulated that the Motion to Dismiss is dismissal the Court should accept the Operative properly construed as moving to dismiss the Complaint's allegations as true. ( See ECF No. Operative Complaint.14 Based on this stipulation 18, at 3–4; ECF No. 30, at 5–6; ECF No. 51, at and the Court's authority to do so, the Court 2.) construes Defendant's Motion to Dismiss as moving to dismiss the Operative Complaint in B. Federal Rule of Civil Procedure 12(b)(1) this action. See Medinger v. City of Ashland, No. 1:11–CV–00470, 2012 WL 1849667, at *1 Under Federal Rule of Civil Procedure (D.Or. May 17, 2012) (construing motion to 12(b)(1), a party may move to dismiss a claim dismiss as applying to later-filed amended for lack of subject-matter jurisdiction. Rule complaint). 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving party may (1) Because the parties in their briefing on the facially attack the complaint's allegations as to Motion to Dismiss and at oral argument the existence of subject matter jurisdiction, or disproportionately focused on the political (2) go beyond allegations contained in the question doctrine's applicability vel non to this complaint by presenting evidence to challenge action, the Court on February 17, 2012 ordered the factual basis upon which subject matter further briefing from the parties on issues related jurisdiction rests.” Merrill Lynch Bus. Fin. to Plaintiffs' standing to bring this action. (ECF Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th No. 70.) On March 16, 2012, both sides filed Cir.2004) (citation and quotation marks supplemental briefs addressing the standing omitted). Where, as here, the defendant's motion issues identified by the Court. (ECF No. 72, 73.) to dismiss presents a facial attack on the existence of subject-matter jurisdiction, “the Defendant's Motion to Dismiss is now ripe district court must accept the allegations in the for adjudication. complaint as true ... and construe the complaint in favor of [the plaintiffs].” United States v. II. LEGAL STANDARDSA. Motion to Rodriguez–Aguirre, 264 F.3d 1195, 1203 (10th Dismiss and Parties' Positions Cir.2001); see also Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) Defendant's Motion to Dismiss is brought (“For purposes of ruling on a motion to dismiss pursuant to Federal Rules of Civil Procedure for want of standing, ... courts must accept as 12(b)(1) (lack of subject-matter jurisdiction) and true all material allegations of the complaint, 12(b)(6) (failure to state a claim). There is some and must construe the complaint in favor of the dispute between the parties regarding which of complaining party.”). However, “[t]he burden of these two rules applies to each of Defendant's establishing subject matter jurisdiction is on the purported bases for dismissal. ( See ECF No. 18, party asserting jurisdiction.” Port City Props. v. at 3–4; ECF No. 30, at 5–7; ECF No. 51, at Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th [880 F.Supp.2d 1123] Cir.2008).
2.) See also, e.g., Schroder v. Bush, 263 F.3d C. Federal Rule of Civil Procedure 12(b)(6) 1169, 1171 n. 1 (10th Cir.2001) (discussing Under Federal Rule of Civil Procedure Rules 12(b)(1) and 12(b)(6), and stating, 12(b)(6), a defendant may move to dismiss a “Deeply rooted ambiguity in the nature and complaint for “failure to state a claim upon justification of the political question doctrine has which relief can be granted.” In evaluating such prevented clear classification of the appropriate a motion, a court must “assume the truth of the type of dismissal in political question cases.”). plaintiff's well-pleaded factual allegations and However, the parties agree that, no matter which view them in the light most favorable to the of the two rules applies to each purported basis plaintiff.” Ridge at Red Hawk, L.L.C. v.
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–5 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
Schneider, 493 F.3d 1174, 1177 (10th Cir.2007). securing to themselves, and to their constituents In ruling on such a motion, the dispositive and to the state, the legislative core functions of inquiry is “whether the complaint contains taxation and appropriation. Other plaintiffs in ‘enough facts to state a claim to relief that is this case include officers of counties, districts plausible on its face.’ ” Id. (quoting Bell Atlantic and municipalities which are dependent, under Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. the state constitution, on the power of the 1955, 167 L.Ed.2d 929 (2007)). Granting a legislature and their own powers to tax and motion to dismiss “is a harsh remedy which appropriate.” ( Id. ¶ 43.) must be cautiously studied, not only to effectuate the spirit of the liberal rules of • “Certain plaintiffs in this case are past or pleading but also to protect the interests of sitting elected officials of counties, cities, and justice.” Dias v. City & Cnty. of Denver, 567 school districts in the State of Colorado, F.3d 1169, 1178 (10th Cir.2009) (quotation jurisdictions whose abilities to tax are eliminated marks omitted). by TABOR.” ( Id. ¶ 44.)
III. ANALYSIS • “Certain plaintiffs in this case are or have been educators employed by the State of The Court begins its analysis by evaluating Colorado or by various school districts. In Plaintiffs' standing to bring this action, and then addition to their interests as citizens of the state, proceeds to discuss whether the political they also have a specific interest in assuring that question doctrine bars this action, in addition to the legislature of the state can discharge its the other arguments raised in Defendant's responsibilities to tax for the purpose of Motion to Dismiss. See Schlesinger v. Reservists adequately funding core education Comm. to Stop the War, 418 U.S. 208, 215, 94 responsibilities of the state as provided in Article S.Ct. 2925, 41 L.Ed.2d 706 (1974).15 IX, Section 2 of the Colorado Constitution.” ( Id. ¶ 45.) [880 F.Supp.2d 1124] • “Certain plaintiffs in this case are citizens A. Standing1. Operative Complaint's of the State of Colorado, having a specific, Allegations Regarding Standing protectable interest in assuring that their representatives can discharge the inherently The Operative Complaint contains the legislative function of taxation and appropriation following allegations regarding various and an interest in assuring that the State of Plaintiffs' purported standing to bring this Colorado has a Republican Form of action: Government, as required by the United States • “Several plaintiffs ... hold[ ] public office Constitution.” ( Id. ¶ 46.) in certain state and local governmental bodies. 2. Summary of Parties' Arguments Regarding The offices held by these plaintiffs are relevant Standing to their standing in the case.” (ECF No. 36, ¶ 9.) In terms of the Legislator–Plaintiffs, • “In [Andy Kerr's] individual capacity as a Defendant argues that those Plaintiffs do not citizen of the State of Colorado and in his have standing to assert their claim that TABOR capacity as a State Representative, he has has caused a diminution of their political power, standing to challenge the constitutionality of the analogizing this case to Raines v. Byrd, 521 U.S. TABOR amendment.” ( Id. ¶ 10.) 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), • “Certain plaintiffs in this case are past or and distinguishing Coleman v. Miller, 307 U.S. sitting elected representatives in the General 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). (ECF Assembly of the State of Colorado. As such, No. 51, at 5–7.) Plaintiffs, on the other hand, they have a direct and specific interest in argue that the Legislator–Plaintiff have standing
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–6 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
because “TABOR directly impacts their ability sides provided argument on that issue. (ECF No. to fulfill their official responsibilities.” (ECF 72, at 14–17; ECF No. 73, at 16–19.) No. 30, at 8.) The Legislator–Plaintiffs argue that their claim The parties also disagree as to whether TABOR caused the injuries alleged, and whether [880 F.Supp.2d 1125] a ruling in Plaintiffs' favor would redress those alleged injuries. (ECF No. 18, at 17–18; ECF is akin to the claim at issue in Coleman, and No. 30, at 12–14; ECF No. 51, at 11–13.) distinguishable from that in Raines.(Id. at 8–9 & n. 5.) The Court requested further briefing from 3. General Rules of Constitutional Standing the parties' regarding Raines's applicability vel non to this action (ECF No. 70, at 3), which the Article III of the United States Constitution parties have provided (ECF No. 72, at 4–8; ECF limits the jurisdiction of federal courts to No. 73, at 13–16). “[c]ases” and “[c]ontrover[sies].” U.S. Const. art. III, § 2. “No principle is more fundamental In terms of citizen standing, Defendant to the judiciary's proper role in our system of argues that Plaintiffs as citizens of Colorado do government than the constitutional limitation of not have standing because their claim is “a federal-court jurisdiction to actual cases or generally available grievance about controversies.” Simon v. E. Ky. Welfare Rights government—claiming only harm to [their] and Org., 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d every citizen's interest in proper application of 450 (1976). the Constitution and laws....” (ECF No. 18, at 15–16 (quoting Lance v. Coffman, 549 U.S. 437, “[T]he core component of standing is an 439, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007)).) essential and unchanging part of the case-or- In response, Plaintiffs liken their claim of citizen controversy requirement of Article III.” Lujan v. standing to Flast v. Cohen, 392 U.S. 83, 88 S.Ct. Defenders of Wildlife, 504 U.S. 555, 560, 112 1942, 20 L.Ed.2d 947 (1968), in which S.Ct. 2130, 119 L.Ed.2d 351 (1992). “The gist taxpayers bringing an Establishment Clause of the question of standing” is whether the challenge were found to have standing. (ECF 30, plaintiffs have “alleged such a personal stake in at 10–11.) Defendant argues that Flast, a narrow the outcome of the controversy as to assure that exception to the general rule that taxpayers do concrete adverseness which sharpens the not have standing, is inapplicable. (ECF No. 51, presentation of issues upon which the court so at 8–11.) The Court requested further briefing largely depends for illumination of difficult from the parties' regarding Lance's applicability constitutional questions.” Baker v. Carr, 369 to this action (ECF No. 70, at 3), which the U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 parties have provided (ECF No. 72, at 9–14; (1962). Standing “is perhaps the most important ECF No. 73, at 10–13). of the[ ] doctrines” limiting the federal judicial power. Allen v. Wright, 468 U.S. 737, 750, 104 The parties' original briefing on the Motion S.Ct. 3315, 82 L.Ed.2d 556 (1984). to Dismiss focused only on legislative standing and citizen standing. Given the allegation in the “[T]he irreducible constitutional minimum Operative Complaint regarding the standing of of standing contains three elements”: (1) the educators (ECF No. 36, ¶ 45), the Court asked plaintiff must have suffered a “concrete and Plaintiffs to clarify whether they were alleging particularized” injury standing based on injury to educators, and asked the parties to brief whether standing would exist [880 F.Supp.2d 1126] on that basis (ECF No. 70, at 3). In the that is “actual or imminent” ( i.e., an “injury in supplemental briefing, Plaintiffs clarified that fact”), (2) there must be “a causal connection they do seek standing on that basis, and both between the injury and the conduct complained of,” and (3) it must be “likely ... that the injury
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–7 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
will be redressed by a favorable decision.” The Court first addresses the issue of Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130 whether the Legislator–Plaintiffs have standing (quotation marks omitted); see also Allen, 468 to bring this action. U.S. at 751, 104 S.Ct. 3315 (“A plaintiff must allege personal injury fairly traceable to the a. Governing Case Law(1) U.S. Supreme defendant's allegedly unlawful conduct and Court Cases likely to be redressed by the requested relief.”) The United States Supreme Court has “The party invoking federal jurisdiction infrequently addressed the issue of legislative bears the burden of establishing these elements.” standing. One of the few cases in which it did so Lujan, 504 U.S. at 561, 112 S.Ct. 2130. is Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). There, twenty At the pleading stage, general factual Kansas State Senators, among others, brought allegations of injury resulting from the suit after a vote in the Kansas State Senate defendant's conduct may suffice, for on a motion deadlocked at 20–20 (which ordinarily would to dismiss we presume that general allegations mean the measure would not pass), but the embrace those specific facts that are necessary to State's Lieutenant Governor cast a deciding vote support the claim. In response to a summary passing the measure. Id. at 435–36, 59 S.Ct. 972. judgment motion, however, the plaintiff can no The Court found standing based on the complete longer rest on such mere allegations, but must nullification of the effectiveness of those set forth by affidavit or other evidence specific Senators' votes, explaining, “[the plaintiffs'] facts, which for purposes of the summary votes against ratification have been overridden judgment motion will be taken to be true. And at and virtually held for naught although if they are the final stage, those facts (if controverted) must right in their contentions their votes would have be supported adequately by the evidence been sufficient to defeat ratification. We think adduced at trial. that these senators have a plain, direct and adequate interest in maintaining the Id. (citations, quotation marks, and brackets effectiveness of their votes.” Id. at 438, 59 S.Ct. omitted). 972. The Court in Coleman ultimately ruled against the plaintiffs on the merits, affirming the Kansas Supreme Court's denial of mandamus. Also, See id. at 437–56, 59 S.Ct. 972.
[w]hen the suit is one challenging the The Supreme Court more recently took up legality of government action or inaction, the the issue of legislative standing in Raines v. nature and extent of facts that must be averred Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 (at the summary judgment stage) or proved (at L.Ed.2d 849 (1997). In Raines, six members of the trial stage) in order to establish standing the United States Congress challenged the depends considerably upon whether the plaintiff constitutionality of is himself an object of the action (or forgone [880 F.Supp.2d 1127] action) at issue. If he is, there is ordinarily little question that the action or inaction has caused the Line Item Veto Act (the “Act”), which had him injury, and that a judgment preventing or been passed by Congress and signed into law by requiring the action will redress it. the President in 1996. Id. at 814, 117 S.Ct. 2312. The six plaintiffs had voted against passage of Id. at 561–62, 112 S.Ct. 2130. the Act. Id. The Court held that the plaintiffs lacked constitutional standing to bring the action 4. Legislative Standing—“Injury in Fact” because, among other reasons discussed in more detail below, the alleged injury constituted only
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–8 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
an abstract dilution of institutional legislative Raines then turned to Coleman, identifying power. Id. at 818, 825–26, 830, 117 S.Ct. Coleman as “[t]he one case in which we have 2312.16 upheld standing for legislators (albeit state legislators) claiming an institutional injury.” Id. The Supreme Court in Raines began its (emphasis in original). After evaluating analysis by laying out fundamental rules of Coleman, the Court in Raines stated, standing, id. at 818–20, 117 S.Ct. 2312, and emphasized that “our standing inquiry has been [O]ur holding in Coleman stands (at most) especially rigorous when reaching the merits of for the proposition that legislators whose votes the dispute would force us to decide whether an would have been sufficient to defeat (or enact) a action taken by one of the other two branches of specific legislative Act have standing to sue if the Federal Government was unconstitutional,” that legislative action goes into effect (or does id. at 820, 117 S.Ct. 2312. Later in the decision, not the Court again emphasized the importance of separation-of-powers concerns in the standing [880 F.Supp.2d 1128] analysis, evaluating in depth instances during the nation's history when Members of Congress or go into effect), on the ground that their votes the Executive declined to entangle the Judiciary have been completely nullified. in confrontations between Congress and the 521 U.S. at 823, 117 S.Ct. 2312 (citation Executive branch. Id. at 826–28, 117 S.Ct. 2312. omitted). The Court then proceeded to explain The Raines Court then proceeded to why Coleman provided “little meaningful analyze Coleman and another prior Supreme precedent” for the situation presented in Raines: Court case in which a legislator was found to have standing, Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). In [The Raines plaintiffs] have not alleged that Powell, the Supreme Court held that the they voted for a specific bill, that there were exclusion of a member of Congress from the sufficient votes to pass the bill, and that the bill House of Representatives (with a consequent was nonetheless defeated. In the vote on the Act, loss of salary) presented a live “case or their votes were given full effect. They simply controversy.” 395 U.S. at 512–14 & n. 35, 89 lost that vote. Nor can they allege that the Act S.Ct. 1944.Raines distinguished Powell on two will nullify their votes in the future in the same grounds. First, the Court stated that, unlike in way that the votes of the Coleman legislators Powell, the plaintiffs in Raines “ha[d] not been had been nullified. In the future, a majority of singled out for specially unfavorable Senators and Congressmen can pass or reject treatment.... [Instead t]heir claim is that the Act appropriations bills; the Act has no effect on this causes a type of institutional injury (the process. In addition, a majority of Senators and diminution of legislative power), which Congressmen can vote to repeal the Act, or to necessarily damages all Members of Congress exempt a given appropriations bill (or a given and both Houses of Congress equally.” 521 U.S. provision in an appropriations bill) from the Act; at 821, 117 S.Ct. 2312. Second, the Court stated again, the Act has no effect on this process. that, unlike in Powell, the Raines plaintiffs' “claim of standing is based on a loss of political Id. at 824, 117 S.Ct. 2312. The Court ultimately power, not loss of any private right, which stated, “There is a vast difference between the would make the injury more concrete.” Id. The level of vote nullification at issue in Coleman Court in Raines emphasized that the plaintiffs and the abstract dilution of institutional were suing in their official capacities rather than legislative power that is alleged here. To uphold based on some private injury. Id. standing here would require a drastic extension of Coleman. We are unwilling to take that step.” Id. at 826, 117 S.Ct. 2312.
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–9 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
offensive and professionally harmful to him, as well as damaging to his In conclusion, the Court in Raines stated: [880 F.Supp.2d 1129] In sum, appellees have alleged no injury to themselves as individuals (contra, Powell ), the political position and his credibility among his institutional injury they allege is wholly abstract constituency.” Id. at 883 (quotation marks and and widely dispersed (contra, Coleman ), and brackets omitted). Although that case presented their attempt to litigate this dispute at this time an alleged injury quite different than the one and in this form is contrary to historical alleged here, the Tenth Circuit's discussion of experience. We attach some importance to the Raines is notable: fact that appellees have not been authorized to represent their respective Houses of Congress in Like the plaintiffs in Raines, Congressman this action, and indeed both Houses actively Schaffer has not alleged a sufficiently personal oppose their suit. We also note that our injury to establish standing because he has not conclusion neither deprives Members of been singled out for specially unfavorable Congress of an adequate remedy (since they may treatment as opposed to other Members of the repeal the Act or exempt appropriations bills House of Representatives. Instead the COLAs, from its reach), nor forecloses the Act from which apply to every Representative, necessarily constitutional challenge (by someone who damage all Members of Congress equally. suffers judicially cognizable injury as a result of Congressman Schaffer's allegations of harm to the Act). Whether the case would be different if his political position and his credibility among any of these circumstances were different we his constituency are even more abstract than the need not now decide. assertion of a dilution of institutional legislative power the Court found wanting in Raines. We therefore hold that these individual Finally, as in Raines, there has been no members of Congress do not have a sufficient nullification of Congressman Schaffer's ability “personal stake” in this dispute and have not to vote on the COLAs; if he received a COLA alleged a sufficiently concrete injury to have ..., that is simply because he lost that vote. The established Article III standing. [COLA] has no effect on either Congressman Schaffer's ability to press for a change in the law Id. at 829–30, 117 S.Ct. 2312 (some citations setting Representatives' salaries or for Congress omitted). to amend the COLA provisions pursuant to the normal legislative process. Id. at 885–86 (citations, quotation marks, (2) Tenth Circuit Case brackets, and ellipses omitted). In Schaffer v. Clinton, 240 F.3d 878 (10th b. Analysis of Whether the Legislator– Cir.2001), the Tenth Circuit discussed Raines Plaintiffs Have Alleged a Cognizable Injury and legislative standing. In Schaffer, Bob in Fact Schaffer, a member of the U.S. House of Representatives, brought suit challenging a Raines identifies numerous issues to statute authorizing cost of living adjustments consider in determining whether legislators in a (“COLAs”) for Members of Congress, claiming particular case have standing: whether the that the statute violated the Twenty–Seventh alleged injury is concrete or abstract; whether 17 Amendment to the Constitution. Although the the legislators allege an institutional injury in statute granted Congressman Schaffer a pay their official capacities that is common to all increase, he brought suit claiming that the members of the legislative body; whether the unconstitutional salary increase was “personally legislators have been authorized to bring suit on behalf of the legislative body; whether
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–10 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
separation-of-powers concerns are present; [A]ppellees rely heavily on our statement in whether the legislators have an adequate internal Coleman that the Kansas senators had “a plain, remedy within the legislative body; and whether direct and adequate interest in maintaining the declining standing to the legislators would effectiveness of their votes.” Appellees claim foreclose any constitutional challenge to the that this statement applies to them because their disputed measure. See521 U.S. at 829, 117 S.Ct. votes on future appropriations bills (assuming a 2312.Raines also specifically stated, “Whether majority of Congress does not decide to exempt the case would be different if any of these those bills from the Act) will be less “effective” circumstances were different [than those present than before, and that the “meaning” and in Raines ] we need not now decide.” Id. at 829– “integrity” of their vote has changed.... Even 30, 117 S.Ct. 2312. The Court will analyze these taking appellees at their word about the change important standing considerations in turn. in the “meaning” and “effectiveness” of their vote for appropriations bills which are subject to (1) Concreteness of Injury the Act, we think their argument pulls Coleman too far from its moorings. Appellees' use of the Standing jurisprudence makes clear that word “effectiveness” to link their argument to the concreteness (versus abstractness) of an Coleman stretches the word far beyond the sense injury is one of the more important, if not the in which the Coleman opinion used it. There is a critical issue, governing the standing question. vast difference between the level of vote See Lujan, 504 U.S. at 560, 112 S.Ct. nullification at issue in Coleman and the abstract 2130;Schlesinger, 418 U.S. at 222, 94 S.Ct. dilution of institutional legislative power that is 2925 (“To permit a complainant who has no alleged here. concrete injury to require a court to rule on important constitutional issues in the abstract Raines, 521 U.S. at 824–26, 117 S.Ct. 2312, 117 would create the potential for abuse of the S.Ct. 2312.Raines based its holding, in part, on judicial process, distort the role of the Judiciary the ultimate conclusion that “institutional injury in its relationship to the Executive and the [that plaintiffs] allege is wholly abstract and Legislature and open the Judiciary to an widely dispersed (contra, Coleman)....” Id. at arguable charge of providing ‘government by 829, 117 S.Ct. 2312.18 injunction.’ ”); Fed. Election Comm'n v. Akins, 524 U.S. 11, 24, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) (“[W]here a harm is concrete, though widely shared, the Court has found ‘injury in In the Court's view, it is significant that fact.’ ”); Okpalobi v. Foster, 190 F.3d 337, 352 Raines did not overrule Coleman, but instead (5th Cir.1999) (stating that “the fundamental reaffirmed that the “level of vote nullification” goal of the standing inquiry” is to “ensur[e] that at issue in Coleman was sufficient to confer litigants have a concrete stake in the outcome of standing. Coleman involved a vote on one the proceedings such that the issue will be measure in which legislators' votes were framed properly”). “nullified.” This action, on the other hand, challenges a state constitutional provision in In Raines, the Court did not engage in any effect for nearly twenty years, under which extended discussion of why the injuries members of the Colorado General Assembly have not had the power to increase tax rates or [880 F.Supp.2d 1130] approve new taxes without voter approval.19 In the Operative Complaint, Plaintiffs allege: alleged by the plaintiffs there were too abstract to confer standing. The Court's entire discussion • “An effective legislative branch must regarding the nature of the injuries alleged was have the power to raise and appropriate funds. made during the process of distinguishing When the power to tax is denied, the legislature Coleman: cannot function effectively to fulfill its
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–11 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
obligations in a representative democracy and a complaint based on claim that the plaintiffs Republican Form of Government.” ( Id. ¶ 7.) lacked standing).
• “[T]axation and appropriation” are As alleged, this injury is of a greater “legislative core functions.” ( Id. ¶ 43.) magnitude than the single instance of vote nullification in Coleman, and is far more • “[TABOR] removes entirely from the concrete than the alleged injury in Raines. The Colorado General Assembly any authority injury alleged here is a concrete injury involving the removal of a “core” legislative power of the [880 F.Supp.2d 1131] General Assembly. The allegations of the to change state law concerning taxation to Operative Complaint are of such a magnitude replace or increase existing revenue, and that the term “dilution of institutional power” prohibits the General Assembly from raising appears insufficient to describe the alleged funds by any other means, including borrowing. injury TABOR has effected on Plaintiffs' core Moreover, the interaction of the provisions of representative powers. More importantly, the TABOR may actually force existing taxes to be allegations of the Operative Complaint detail decreased without any action of the General anything but an abstract dilution of power. As a Assembly.” ( Id. ¶ 80.) consequence, the concreteness of the injury alleged here weighs in favor of finding 20 • “A fully effective legislature is an standing. essential component of a Republican Form of Government, as guaranteed to each state by [the [880 F.Supp.2d 1132] Guarantee Clause]. By removing the taxing With respect to the nature of the injury power of the General Assembly, the TABOR alleged by the Legislator–Plaintiffs and its effect amendment renders the Colorado General on standing, Lujan is telling. There, the Supreme Assembly unable to fulfill its legislative Court specifically emphasized: obligations under [the Guarantee Clause].” ( Id. ¶ 83.) When the suit is one challenging the legality of government action or inaction, the • “The TABOR amendment has made the nature and extent of facts that must be averred General Assembly ineffective by removing an (at the summary judgment stage) or proved (at essential function, namely the power to tax. In the trial stage) in order to establish standing so doing, the TABOR amendment violates the depends considerably upon whether the plaintiff Enabling Act.” ( Id. ¶ 84.) is himself an object of the action (or forgone At this early stage of the proceedings, the action) at issue. If he is, there is ordinarily little Court must accept as true that the Legislator– question that the action or inaction has caused Plaintiffs have suffered a concrete injury. See him injury, and that a judgment preventing or Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (“At the requiring the action will redress it. pleading stage, general factual allegations of Lujan, 504 U.S. at 561–62, 112 S.Ct. 2130. injury resulting from the defendant's conduct Other courts have applied this holding from may suffice, for on a motion to dismiss we Lujan in finding standing for legislators or presume that general allegations embrace those legislative bodies. See Miller v. Moore, 169 F.3d specific facts that are necessary to support the 1119, 1122–23 (8th Cir.1999) (finding standing claim.”); see also Am. Tradition Inst. v. State of where Nebraska voters passed ballot initiative Colorado, 876 F.Supp.2d 1222, 1233, 2012 WL intended to punish legislators who did not 2899064, at *6–*7 (D.Colo. July 17, 2012) support and actively pursue the passage of (emphasizing importance of the stage of congressional term limits); U.S. House of proceedings in denying motion to dismiss Representatives v. U.S. Dep't of Commerce, 11
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–12 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
F.Supp.2d 76, 89 (D.D.C.1998) (holding that Members of Congress. See, e.g., 521 U.S. at House of Representatives had standing to 821, 117 S.Ct. 2312 challenge the Census Bureau's plan to use statistical sampling in the Census “because the [880 F.Supp.2d 1133] House's composition will be affected by the manner in which the Bureau conducts the (in distinguishing Powell, the Court stated, Census,” and citing this holding from Lujan ). “[A]ppellees have not been singled out for specially unfavorable treatment as opposed to other Members of their respective bodies. Their claim is that the Act causes a type of Here, the allegations of the Operative institutional injury (the diminution of legislative Complaint indicate that TABOR was power), which necessarily damages all Members specifically designed to take away from the of Congress and both Houses of Congress General Assembly “the power to tax and [to] equally.”). The Raines Court also attached arrogat[e] that power to [the voters] “some importance” to the fact that the plaintiffs themselves.” (ECF No. 36, ¶ 1.) The Legislator– there had not been authorized to represent the Plaintiffs, along with other members of the legislative bodies in which they served. Id. at Colorado General Assembly, were the targeted 829, 117 S.Ct. 2312. These concepts are objects of TABOR's design. See Bickel v. City of obviously inter-related because an institutional Boulder, 885 P.2d 215, 226 (Colo.1994) legislative injury might be more appropriately (“[TABOR's] requirement of electoral approval raised by the legislative institution itself, or by is not a grant of new powers or rights to the legislators authorized to represent the legislative people, but is more properly viewed as a institution. limitation on the power of the people's elected representatives.”) (emphasis in original). That As in Raines, the Legislator–Plaintiffs here makes this case different than Raines, where the clearly base their claim of standing on an challenged action was the passage of a statute institutional injury: TABOR's removal of the where the plaintiffs, although on the losing side Colorado General Assembly's power to increase of the vote, were not the targets of the action tax rates or impose new taxes without voter being challenged. approval. The Legislator–Plaintiffs also clearly bring their claims in their official capacities as Thus, the concreteness and nature of the state legislators. (ECF No. 36, ¶¶ 9–10 (“The injury alleged here is distinguishable from the offices held by [the Legislator–Plaintiffs] are abstract injury alleged in Raines. Moreover, the relevant to their standing in the case.... [They Court finds that the injury alleged here is of bring this action] in [their] capacity as [ ] State greater magnitude than the single instance of Representative[s].”) The Legislator–Plaintiffs vote nullification in Coleman. Both of these also concede that they have not been authorized considerations weigh in favor of finding that the to bring this action on behalf of the General Legislator–Plaintiffs have standing in this Assembly. ( Id. ¶ 9 (“[Plaintiffs do] not imply action.21 that the governmental bodies have themselves taken any official position regarding this (2) Institutional Injury, Suing in an Official litigation nor that these plaintiffs speak for those Capacity, and Authorization to Represent the governmental bodies regarding this litigation.”). Legislative Body The law remains unclear regarding the Raines repeatedly emphasized the situations in which an institutional legislative importance of the fact that the plaintiffs there injury (where the plaintiffs legislators are not alleged an institutional injury in their official authorized to represent the legislative body) capacities, and not any personal injury confers standing on legislators, and when it does differentiable from the injury suffered by all not. Notably, in Coleman, the plaintiffs alleged
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–13 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
an injury suffered in their official capacities, of alleged here, the Court finds it appropriate to an institutional nature, and they had not been also evaluate the other factors identified in authorized to bring suit on behalf of the Kansas Raines to determine whether they weigh in favor Senate. The Supreme Court in Raines could or against finding legislative standing in the have overruled Coleman and laid down a per se circumstances presented here. See Raines, 521 rule that legislators alleging an institutional U.S. at 829–30, 117 S.Ct. 2312 (“Whether the injury, where the legislators have not been case would be different if any of these authorized to bring suit on behalf of the circumstances were different we need not now legislative body, never have standing to pursue decide.”). such claims. Instead, Raines's treatment of Coleman was significantly more limited. After (3) Separation–of–Powers and Federalism analyzing ways in which Coleman was Concerns distinguishable (including the presence or lack of an adequate internal legislative remedy), the In Raines, the Court's emphasis on Court in Raines expressed concern about pulling separation-of-powers concerns was significant. Coleman “too far from its moorings,” and Overlaying the entirety of the decision was the emphasized how significantly different the Court's initial statement that concreteness and magnitude of the injuries were. our standing inquiry has been especially Raines, 521 U.S. at 825–26, 117 S.Ct. 2312 rigorous when reaching the merits of the dispute (“There is a vast difference between the level of would force us to decide whether an action taken vote nullification at issue in Coleman and the by one of the other two branches of the Federal abstract dilution of institutional legislative Government was unconstitutional. The law of power that is alleged here.”). Also, although the Article III standing is built on a single basic Raines Court held that Coleman stands “at most” idea—the idea of separation of powers. In the for the proposition that legislators have standing light of this overriding and time-honored where their votes have been completely nullified concern about keeping the Judiciary's power (because their votes would have been successful within its proper constitutional sphere, we must but for the challenged action), that does not put aside the natural urge to proceed directly to mean legislative standing can only be found to the merits of this important dispute and to exist if the circumstances in Coleman are “settle” it for the sake of convenience and present. By analyzing Coleman in these ways, efficiency. the Court in Raines provided less guidance to future lower courts, including this Court, Id. at 819–20, 117 S.Ct. 2312 (citations and regarding when an institutional legislative injury quotation marks omitted). Also, later in the does or does not confer standing. decision, the Court engaged in a detailed analysis of different times in the nation's history Given Raines's discussion of Powell, when Members of Congress or the Executive however, and much of the case law interpreting 22 declined to entangle the Judiciary in Raines, the institutional injury confrontations between Congress and the [880 F.Supp.2d 1134] Executive Branch. Id. at 826–28, 117 S.Ct. 2312. This historical discussion underscores the alleged by the Legislator–Plaintiffs here, and the importance of separation of powers in the Raines fact that they have not been authorized to bring Court's analysis. Further, it is notable that the suit on behalf of the Colorado General Raines Court's initial statement regarding Assembly, draws some skepticism from this Coleman emphasized that Coleman was brought Court regarding whether the injury alleged can by state legislators, not federal legislators, provide a legitimate basis for standing. But further reiterating the importance of federal because Raines did not provide clearer guidance, separation-of-powers concerns in the Court's and because of the concreteness of the injury analysis. Id. at 821, 117 S.Ct. 2312 (“The one
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–14 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
case in which we have upheld standing for (“State legislator standing raises issues similar to legislators (albeit state legislators) claiming an the issues of congressional plaintiff standing, institutional injury is Coleman ....) (emphasis in although the separation-of-powers concerns are original). much diminished and largely replaced by concerns of federalism.”).
[Federalism involves] the notion of Indeed, the vast majority of case law ‘comity,’ that is, a proper respect for state addressing legislative standing involve cases in functions, a recognition of the fact that the entire which the federal Judiciary is asked to resolve a country is made up of a Union of separate state dispute between the federal Executive and governments, and a continuance of the belief 23 Legislative Branches. Here, however, this that the National Government will fare best if Court is not being asked “to decide whether an the States and their institutions are left free to action taken by one of the other two branches of perform their separate functions in their separate the Federal Government was unconstitutional.” ways.... The concept does not mean blind Id. at 819–20, 117 S.Ct. 2312. Instead, like in deference to ‘States' Rights' any more than it Coleman, this Court is being asked to resolve a means centralization of control over every 24 dispute involving a state legislature. important issue in our National Government and its courts. The Framers rejected both these [880 F.Supp.2d 1135] courses. What the concept does represent is a It is significant, too, that this Court is also system in which there is sensitivity to the not being asked to resolve a dispute between legitimate interests of both State and National separate branches of Colorado government.25 Governments.... Articles IV, V, and VI of the Colorado Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. Constitution create three “distinct departments” 746, 27 L.Ed.2d 669 (1971). Where, however, it of the Colorado government, the Executive is state action which allegedly violates the U.S. Department, the Legislative Department, and the Constitution, federalism concerns are reduced. Judicial Department, respectively. SeeColo. See Valdivia v. Schwarzenegger, 599 F.3d 984, Const. arts. III, IV, V, VI. This action involves a 991 n. 6 (9th Cir.2010) (“[P]rinciples of solely intra-branch dispute involving only the federalism do not permit a state to violate what Colorado Legislative Department: Article V of this the Colorado Constitution—the Article creating [880 F.Supp.2d 1136] the Legislative Department—not only creates the Colorado General Assembly, it also reserves court has already deemed to be a to the Colorado electorate the initiative and constitutionally-protected right.”); Mackin v. referendum power as a legislative power. City of Boston, 969 F.2d 1273, 1275–76 (1st SeeColo. Const. art. V, § 1, cls. (1)-(3). This Cir.1992) (“[F]ederal courts, in mulling whether dispute, therefore, is between two components to relax or abandon their supervision over the of the same Legislative Department. operation of local governmental units, should take federalism concerns into account, ever The fact that this action does not present mindful that the legal justification for any separation-of-powers concerns, either displacement of local authority is a violation of between separate branches of the federal the Constitution by the local authorities.”) government or separate branches of the (quotation marks and ellipses omitted). Colorado government, does not end this Court's inquiry into whether an equivalent concern In this regard, the Court finds it significant warrants declining to hear this case: that TABOR was passed nearly twenty years 26 federalism. See13B Wright & Miller, Federal ago.27 In Lucas v. Forty–Fourth General Practice & Procedure § 3531.11.3 (3d ed. 2012) Assembly of the State of Colorado, 377 U.S.
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–15 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964), the (4) Whether Legislators Have an Adequate Supreme Court emphasized that a federal court Internal Remedy might properly wait a short period to allow a state's electorate to remedy an unconstitutional TABOR was passed by the Colorado measure passed by ballot initiative, but that electorate by ballot initiative, without any otherwise the federal court must act to remedy involvement of the Colorado General Assembly. the constitutional violation: (ECF No. 36, ¶ 1.) Also, significantly, TABOR is an amendment to the Courts sit to adjudicate controversies involving alleged denials of constitutional rights. [880 F.Supp.2d 1137] While a court sitting as a court of equity might be justified in temporarily refraining from the Colorado Constitution that can only be revoked issuance of injunctive relief in an apportionment or amended by a majority of Colorado voters. case in order to allow for resort to an available SeeColo. Const. art. XIX, §§ 1, 2. The only political remedy, such as initiative and power members of the Colorado General referendum, individual constitutional rights Assembly have to undo TABOR is to propose to cannot be deprived, or denied judicial Colorado voters that they pass a constitutional effectuation, because of the existence of a amendment or authorize a constitutional nonjudicial remedy.... [C]onstitutional rights can convention. See id. In order for the legislature to hardly be infringed simply because a majority of submit a proposed constitutional amendment to the people choose that it be.... [T]he fact that a the Colorado electorate, an affirmative vote by practicably available political remedy, such as two-thirds of each House of the General initiative and referendum, exists under state law Assembly is required. See id. This leaves the provides justification only for a court of equity Legislator–Plaintiffs in this case with little to stay its hand temporarily while recourse to available remedy in the political process to undo such a remedial device is attempted.... TABOR, and no means by which to effect any Id. at 736–37, 84 S.Ct. 1459 (1964).28 change to the current TABOR regime by way of any of the legislature's remaining powers or At this stage of the proceedings, this Court prerogatives. must assume the validity of Plaintiffs' allegations that TABOR is unconstitutional, and That distinction makes this case remarkably their allegations regarding the importance of the different from Raines. Indeed, in Raines the constitutional rights at issue. See Lujan, 504 presence of an internal legislative remedy was U.S. at 561, 112 S.Ct. 2130. Given these one of the primary bases upon which the Court accepted allegations, the fact that TABOR has distinguished Coleman. See521 U.S. at 824, 117 been in effect for nearly twenty years counsels S.Ct. 2312. The removal of the Colorado against the Court “staying its hand,” and in favor General Assembly's power to independently of allowing the case to proceed without further pass any tax legislation, without any recourse delay. available to that Assembly, places this case in stark contradistinction to the facts in Raines, in With there being no separation-of-powers which various internal remedies were available concerns in this case (unlike in Raines ), and to the plaintiffs. with federalism concerns diminished by the length of time TABOR has caused the alleged Courts since the Raines decision have harms at issue (with those allegations being continued to emphasize the importance of the accepted as true at this stage of the proceedings), existence of a legislative remedy in legislative the Court finds that these considerations weigh standing analysis. For example, in Kucinich v. in favor of finding legislative standing here. Obama, 821 F.Supp.2d 110 (D.D.C.2011), the court denied standing to legislators who sought to challenge the President's authorization of
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–16 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
military action in Libya without congressional The importance of the presence of a approval. Analyzing Raines and Coleman, the potential internal legislative remedy makes court concluded that for legislative standing to sense, because this consideration is directly tied exist, to federal separation-of-powers concerns. See, e.g., Leach v. Resolution Trust Corp., 860 plaintiff legislators must be without F.Supp. 868, 875 (D.D.C.1994) (stating that legislative recourse before they may turn to the courts should be “reluctant to meddle in the courts to seek their desired remedy.... [The internal affairs of the legislative branch” due to plaintiffs] have not demonstrated that they are separation-of-powers concerns). If a legislator without a legislative remedy.... By contending has an adequate internal remedy, he should not that their votes were nullified, despite seemingly be challenging a decision of the legislature in an acknowledging that they retain legislative Article III court. Instead, he should work within remedies, the plaintiffs' arguments overlook the his own legislature to enact a remedy. Those important role political remedies have in the concepts are entirely inapplicable here. The fact standing analysis. In the end, the availability of that Colorado voters enacted TABOR in 1992, effective political remedies goes to the very with members of the Colorado General heart of the standing analysis.... Assembly having no effective recourse to
29 legislatively prevent its passage or undo its Kucinich, 821 F.Supp.2d at 119–20. Also, in effects, weighs heavily in favor of finding Russell v. DeJongh, 491 F.3d 130 (3d Cir.2007), legislative standing in this case. a Senator of the Virgin Islands challenged the Governor's appointment of Supreme Court (5) Whether a Finding of No Standing Would justices on the ground that the Governor was Foreclose TABOR from Constitutional untimely in submitting the nominations to the Challenge legislature for approval. The court distinguished cases in which there were no internal legislative Without discussing the issue during most remedies, stating, “the Legislature was free to of the decision, the Supreme Court at the end of confirm, reject, or defer voting on the the Raines decision also “note[d]” that its Governor's nominees. The consequence of the decision to deny legislative standing would not Governor's late submission of the nominations “foreclose[ ] the [Line Item Veto] Act from was thus not to circumvent the Legislature, but constitutional challenge (by someone who to place the decision whether to confirm the suffers judicially cognizable injury as a result of nominees directly in their hands.” Id. at 136. The the Act).” 521 U.S. at 829, 117 S.Ct. 2312. The Third Circuit in DeJongh also stated, weight of Supreme Court jurisprudence on this point, however, makes clear that this issue is [880 F.Supp.2d 1138] irrelevant: standing cannot be found merely because there is no other plaintiff who would “[C]ourts have drawn a distinction ... between a have standing. See Valley Forge Christian Coll. public official's mere disobedience of a law for v. Ams. United for Separation of Church & which a legislator voted—which is not an injury State, Inc., 454 U.S. 464, 489, 102 S.Ct. 752, 70 in fact—and an official's distortion of the L.Ed.2d 700 (1982) (“ ‘[T]he assumption that if process by which a bill becomes law by respondents have no standing to sue, no one nullifying a legislator's vote or depriving a would have standing, is not a reason to find legislator of an opportunity to vote—which is an standing.’ This view would convert standing into injury in fact.” Id. at 135–36 (quotation marks a requirement that must be observed only when omitted). satisfied. Moreover, we are unwilling to assume that injured parties are nonexistent simply because they have not joined respondents in their suit.”) (quoting Schlesinger, 418 U.S. at 227, 94 S.Ct. 2925);United States v. Richardson,
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–17 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
418 U.S. 166, 179, 94 S.Ct. 2940, 41 L.Ed.2d of a cognizable injury in fact sufficient to confer 678 (1974) (“It can be argued that if respondent Article III standing. is not permitted to litigate this issue, no one can do so. In a very real sense, the absence of any 5. Legislative Standing—Causation and particular individual or class to litigate these Redressability claims gives support to the argument that the subject matter is committed to the surveillance Having determined that the Legislator– of Congress, and ultimately to the political Plaintiffs have sufficiently alleged injury in fact, process.”); see also State of Utah v. Babbitt, 137 the Court has little trouble concluding that the F.3d 1193, 1202 (10th Cir.1998). Given this remaining causation and redressability elements precedent, the Court declines to place any for legislative standing are also met at the weight on the possibility that if the Legislator– pleading stage. Lujan, 504 U.S. at 561, 112 S.Ct. Plaintiffs were denied standing, there might be 2130. Plaintiffs have sufficiently alleged that the no other plaintiff who would have standing to passage of TABOR and resulting amendment of bring an action in federal court challenging the Colorado Constitution directly and TABOR. proximately caused the harm of which Plaintiffs complain: the removal of the Colorado General c. Conclusion on Injury in Fact Assembly's power to raise tax rates or impose new taxes without separate voter approval. (ECF This action involves an alleged institutional No. 36, ¶¶ 1, 6–8.) See alsoColo. Const. art. X, § legislative injury asserted by legislators suing in 20, cls. (2)(b), (4)(a). Thus, as Plaintiffs also their official capacities, but who have not been allege, it would appear to easily follow that the authorized to bring this action on behalf of their invalidation of TABOR would remove the respective legislative bodies. These factors are requirement that a tax rate increase or new tax of considerable significance in determining passed by the General Assembly obtain separate whether the Legislator–Plaintiffs have standing voter approval prior to becoming law. See Sierra to pursue this action. Club v. Young Life Campaign, Inc., 176 F.Supp.2d 1070, 1084–85 (D.Colo.2001) [880 F.Supp.2d 1139] (accepting general allegations of causation and redressability at the pleading stage); Am. It is there, however, that the similarity Tradition Inst., 876 F.Supp.2d at 1234–35, 2012 between this case and Raines ends. Unlike in WL 2899064, at *7 (same). Raines, this action involves a concrete, though dispersed, injury. Also, unlike Raines, there are The Court therefore concludes that, at this no separation-of-powers concerns present in this stage of the litigation, the Legislator–Plaintiffs case, concerns that lie at the heart of standing have constitutional standing. analysis. Moreover, given the circumstances of this dispute, federalism concerns do not weigh 6. Prudential Standing of Legislator– against hearing this case. And finally, unlike in Plaintiffs Raines, the Legislator–Plaintiffs here are without meaningful legislative recourse. All of Neither in the Motion to Dismiss nor in the these factors, especially when considered Reply brief does Defendant specifically argue together, weigh in favor of finding that the that the Court should dismiss this action based Legislator–Plaintiffs have standing to pursue this on prudential standing principles. Defendant's action. Supplemental Brief, however, contains a brief section arguing that dismissal is warranted based The Court therefore concludes that the on the prudential standing principle that federal Legislator–Plaintiffs have, at this early stage of courts should refrain from resolving “abstract the proceedings, advanced sufficient allegations questions of wide public significance.” (ECF No. 73, at 23–24.)
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–18 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
“Beyond the constitutional requirements Complaint's allegations as true, TABOR was an [for standing], the federal judiciary has also action targeted at the 100–member General adhered to a set of prudential principles that bear Assembly. The injury alleged by the Legislator– on the question of standing.” Valley Forge Plaintiffs is not a “generalized grievance shared Christian Coll., 454 U.S. at 474, 102 S.Ct. in substantially equal measure by all or a large 752;see also Allen, 468 U.S. at 751, 104 S.Ct. class of citizens.” Warth, 422 U.S. at 499, 95 3315 (describing prudential standing principles S.Ct. 2197 (emphasis added); see also Akins, as “judicially self-imposed limits on the exercise 524 U.S. at 23, 118 S.Ct. 1777 (“Whether styled of federal jurisdiction”). First, “when the as a constitutional or prudential limit on asserted harm is a ‘generalized grievance’ standing, the Court has sometimes determined shared in substantially equal measure by all or a that where large numbers of Americans suffer large class of citizens, that harm alone normally alike, the political process, rather than the does not warrant exercise of jurisdiction.” judicial process, may provide the more Warth, 422 U.S. at 499, 95 S.Ct. 2197. Second, appropriate remedy for a widely shared “even when the plaintiff has alleged injury grievance.”) (emphasis added). The prudential sufficient to meet the ‘case or controversy’ standing principle barring adjudication of requirement, ... the plaintiff generally must “generalized grievances” or “abstract questions assert his own legal rights and interests, and of wide public significance” does not apply to cannot rest his claim to relief on the legal rights the Legislator–Plaintiffs' claims. or interests of third parties.” Id. Likewise, no other prudential standing [880 F.Supp.2d 1140] principle bars this action, and Defendant has not asserted as much. First, the principle prohibiting And third, “the interest sought to be protected a litigant from raising another person's legal [must be] arguably within the zone of interests rights does not apply. The Operative to be protected or regulated by the statute or Complaint's allegations, accepted as true, constitutional guarantee in question.” See Ass'n indicate that TABOR was directly targeted at of Data Processing Serv. Orgs., Inc. v. Camp, taking away the power of members of the 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 General Assembly to independently enact tax (1970). See also Allen, 468 U.S. at 751, 104 legislation. See Lujan, 504 U.S. at 561–62, 112 S.Ct. 3315 (summarizing all three prudential S.Ct. 2130 (“[If] the plaintiff is himself an object standing principles). of the action (or forgone action) at issue ..., there is ordinarily little question that the action or The prudential standing principle that inaction has caused him injury, and that a federal courts should refrain from resolving judgment preventing or requiring the action will “abstract questions of wide public redress it.”). And second, the zone of interests significance”—the basis on which Defendant test does not bar this action, at least at this early tardily seeks dismissal—might arguably be stage of the proceedings. In terms of that test, applicable to Plaintiffs' claim that they have the Court has found little to no case law standing as citizens of Colorado. However, the authority indicating who falls within the zone of Court declines to reach the issue of whether interests intended to be protected by the Plaintiffs as citizens have standing in that Guarantee Clause and Enabling Act. See Largess capacity. ( See infra.) In terms of the Legislator– v. Supreme Judicial Court for the State of Mass., Plaintiffs (five of whom have brought this action 373 F.3d 219, 228 n. 9 (1st Cir.2004) (citing and where there are a total of 100 members of authorities discussing question of whether the the Colorado General Assembly), the Court Guarantee Clause confers judicially cognizable declines to dismiss this action based on the rights on individuals as well as states). As to the prudential standing principle barring Supremacy Clause, the Tenth Circuit recently adjudication of “abstract questions of wide declined to decide who falls within the zone of public significance.” Accepting the Operative
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–19 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
interests test, but pointed to case law from other we need not consider whether the Legislators Circuits in which courts held that consideration also have standing to do so.”).30 of prudential standing is unnecessary in Supremacy Clause challenges. See Wilderness B. The Political Question Doctrine Soc'y v. Kane Cnty., Utah, 632 F.3d 1162, 1170 (10th Cir.2011) (citing cases). Given the lack of Defendants also argue that the political precedent, the Court will err on the side of question doctrine bars all of Plaintiffs' claims finding that the zone-of-interests test is met here. brought in the Operative Complaint. See Match–E–Be–Nash–She–Wish Band of 1. General Rules Regarding the Political Pottawatomi Indians v. Patchak, –––U.S. ––––, Question Doctrine 132 S.Ct. 2199, 2210, 183 L.Ed.2d 211 (2012) (stating that “The political question doctrine excludes from judicial review those controversies which [880 F.Supp.2d 1141] revolve around policy choices and value the zone of interests prudential standing test “is determinations constitutionally committed for not meant to be especially demanding” and that resolution to the halls of Congress or the “we have always conspicuously included the confines of the Executive Branch.” Japan word ‘arguably’ in the test to indicate that the Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. benefit of the doubt goes to the plaintiff”) 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (quotation marks omitted). (1986); see also United States v. Munoz–Flores, 495 U.S. 385, 394, 110 S.Ct. 1964, 109 L.Ed.2d On these grounds, the Court concludes that 384 (1990) (stating that the political question prudential standing principles do not bar the doctrine “is designed to restrain the Judiciary Legislator–Plaintiffs at this stage of the from inappropriate interference in the business proceedings. of the other branches of Government”); Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 7. Standing of Other Plaintiffs L.Ed.2d 663 (1962) (“The nonjusticiability of a political question is primarily a function of the Because the Court holds that the separation of powers.”). The basis for the Legislator–Plaintiffs have standing to pursue this doctrine is that “courts are fundamentally action, the Court need not, and declines to, underequipped to formulate national policies or address whether any other Plaintiffs have develop standards for matters not legal in standing. See Village of Arlington Heights v. nature.” Japan Whaling, 478 U.S. at 230, 106 Metro. Hous. Dev. Corp., 429 U.S. 252, 264 & S.Ct. 2860 (quotation marks omitted). It is a n. 9, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) ( “judicially created” doctrine (not an express “[Because] we have at least one individual constitutional or statutory provision), In re Nazi plaintiff who has demonstrated standing ..., we Era Cases Against German Defendants Litig., need not consider whether the other individual 196 Fed.Appx. 93, 97 (3d Cir.2006), having its and corporate plaintiffs have standing to roots in case law dating back to Marbury v. maintain the suit.”); Sec'y of the Interior v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 California, 464 U.S. 312, 319 n. 3, 104 S.Ct. (1803). 656, 78 L.Ed.2d 496 (1984) ( “Since the State of California clearly does have standing, we need The six widely recognized tests for not address the standing of the other determining whether a particular case presents a respondents, whose position here is identical to non-justiciable political question come from the State's.”); cf. Horne v. Flores, 557 U.S. 433, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 129 S.Ct. 2579, 2592, 174 L.Ed.2d 406 (2009) L.Ed.2d 663 (1962). There, the Court stated, (“Because the superintendent clearly has standing to challenge the lower courts' decisions, [880 F.Supp.2d 1142]
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–20 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
It is apparent that several formulations applies] is itself a delicate exercise in which vary slightly according to the settings in constitutional interpretation ....”); id. at 210, 82 which the questions arise may describe a S.Ct. 691 (“the attributes of the [political political question, although each has one or question] doctrine ... in various settings, diverge, more elements which identify it as essentially a combine, appear, and disappear in seeming function of the separation of powers. Prominent disorderliness”). on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the 2. The Guarantee Clause Claim and the issue to a coordinate political department; or [2] Political Question Doctrinea. Summary of a lack of judicially discoverable and manageable Parties' Arguments Regarding the Political standards for resolving it; or [3] the Question Doctrine's Applicability to impossibility of deciding without an initial Plaintiffs' Guarantee Clause Claim policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of The parties' arguments, particularly those of a court's undertaking independent resolution Defendant, regarding the applicability vel non of without expressing lack of the respect due the political question doctrine to this action coordinate branches of government; or [5] an focus on Plaintiffs' First Claim for Relief in the unusual need for unquestioning adherence to a Operative Complaint, the Guarantee Clause political decision already made; or [6] the Claim. Plaintiffs' Guarantee Clause claim alleges potentiality of embarrassment from multifarious that, “[b]y removing the taxing power of the pronouncements by various departments on one General Assembly, the TABOR amendment question. renders the Colorado General Assembly unable to fulfill its legislative obligations under a Id. at 217, 82 S.Ct. 691 (bolded numbering Republican Form of Government and violates added by this Court). The Baker Court the guarantee of Article IV, Section 4....” (ECF continued, No. 36, ¶ 82.)
In moving to dismiss Plaintiffs' Guarantee Clause claim, Defendant argues that this case is Unless one of these formulations is directly on point with Pacific States Telephone inextricable from the case at bar, there should be & Telegraph Co. v. State of Oregon, 223 U.S. no dismissal for non-justiciability on the ground 118, 32 S.Ct. 224, 56 L.Ed. 377 (1912), a U.S. of a political question's presence. The doctrine Supreme Court case holding that a Guarantee of which we treat is one of ‘political questions,’ Clause challenge to Oregon's ballot initiative not one of ‘political cases.’ The courts cannot system was barred by the political question reject as ‘no law suit’ a bona fide controversy as doctrine. Defendant also argues that all of the six to whether some action denominated ‘political’ tests identified in Baker v. Carr for whether a exceeds constitutional authority. case presents a non-justiciable political question are met here. Id.Baker further emphasized, “The cases we have reviewed show the necessity for In response, Plaintiffs (and the amici discriminating inquiry into the precise facts and Professors) argue that Pacific States is posture of the particular case, and the distinguishable, because that case involved impossibility of resolution by any semantic cataloguing.” Id.; see also id. at 210–11, 82 [880 F.Supp.2d 1143] S.Ct. 691 (“Much confusion results from the capacity of the ‘political question’ label to a challenge to Oregon's entire ballot initiative obscure the need for case-by-case inquiry. process, while this case presents a far narrower Deciding whether [the political question doctrine challenge to only one particular measure passed
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–21 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
by Colorado voters pursuant to their power of government of Rhode Island. The Court initiative. Plaintiffs (and amici Professors) also ultimately held that the case could not be heard argue that none of the six Baker tests are met in the courts because “it rests with Congress to here. decide what government is the established one in a State. For as the United States guarantee to b. The History of the Application of the each State a republican government, Congress Political Question Doctrine to Guarantee must necessarily decide what government is Clause Claims, and Whether Such Claims established in the State before it can determine Are Per Se Non–Justiciable whether it is republican or not.” Id. at 42. The Luther Court also pointed out that the President The United States Supreme Court's most had already recognized the charter government recent pronouncement regarding the by agreeing to assist it with military force if the applicability of the political question doctrine to need should arise, and that courts in Rhode Guarantee Clause claims came in 1992 in New Island had also recognized the charter York v. United States, 505 U.S. 144, 112 S.Ct. government's authority. Id. at 40, 43–44. The 2408, 120 L.Ed.2d 120 (1992). There, the Court Luther Court further emphasized, among other reviewed the history of court decisions and other things, that there were no judicially manageable sources addressing the issue of whether standards to resolve the dispute, and that the Guarantee Clause claims are barred by the Court was being asked to make a political political question doctrine. Id. at 184–85, 112 decision. Id. at 41. S.Ct. 2408. The Court first pointed out a substantial line of cases, beginning with Luther New York emphasized that the “limited” v. Borden, 48 U.S. 1, 7 How. 1, 12 L.Ed. 581 holding in Luther—that it rests with Congress to (1849), that “metamorphosed into the sweeping decide what government is the established one in assertion” that Guarantee Clause claims are per a state—subsequently began se non-justiciable. New York, 505 U.S. at 184, “metamorphos[izing] into the sweeping 31 112 S.Ct. 2408. The Court then pointed out assertion” that Guarantee Clause claims are per other cases (decided between 1875 and 1905) in se non-justiciable. New York, 505 U.S. at 184, which courts “addressed the merits of claims 112 S.Ct. 2408; see also Akhil Reed Amar, The founded on the Guarantee Clause without any suggestion that the claims were not justiciable.” [880 F.Supp.2d 1144] Id. at 184–85, 112 S.Ct. 2408. Further, the Court indicated that more recent authority “suggest[s] Central Meaning of Republican Government: that perhaps not all claims under the Guarantee Popular Sovereignty, Majority Rule, and the Clause present nonjusticiable political Denominator Problem, 65 U. Colo. L. Rev. 749, questions.” Id. at 185, 112 S.Ct. 2408 (citing, 753 (1994) (“[T]he hoary case said to establish inter alia, Reynolds v. Sims, 377 U.S. 533, 84 the general nonjusticiability of the [Guarantee] S.Ct. 1362, 12 L.Ed.2d 506 (1964)). Ultimately, Clause, Luther v. Borden, in fact establishes no the Court did not resolve the question, stating, such thing....”). “We need not resolve this difficult question today. Even if we assume that petitioners' claim The next significant U.S. Supreme Court is justiciable, [it ultimately lacks merit].” Id. decision in this area is Pacific States Telephone & Telegraph Co. v. State of Oregon, 223 U.S. This Court proceeds to conduct its own, 118, 32 S.Ct. 224, 56 L.Ed. 377 (1912) (“Pacific albeit non-exhaustive, historical analysis of the States ”). This is the case focused on most case law on the topic. In Luther v. Borden, 48 heavily by the parties, with Defendant arguing U.S. 1, 7 How. 1, 12 L.Ed. 581 (1849) (“Luther that the case is on point, and Plaintiffs arguing ”), the Supreme Court was asked to decide that it is distinguishable. In that case, Pacific whether the charter government of Rhode Island, States Telephone & Telegraph Co. challenged a or a competing faction, was the legitimate corporate tax passed by voter initiative. Through
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–22 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
the framing of the issues, the U.S. Supreme republican form of government in States cannot Court was asked to decide whether Oregon's be challenged in the courts.” Id. entire voter initiative system violated the Guarantee Clause. The Court in Pacific States The next case discussing the justiciability analyzed the Luther opinion and concluded that of Guarantee Clause claims is the foundational “[i]t was long ago settled that the enforcement of case for the political question doctrine, Baker v. th[e] guaranty [of a republican form of Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 32 government] belonged to the political (1962) (“Baker ”). There, the Court laid out the department.” Id. at 149, 32 S.Ct. 224. Applying six (now widely recognized) tests for whether a Luther, the Court continued, case presents a non-justiciable political question. Id. at 217, 82 S.Ct. 691. The Court also [The] essentially political nature [of the repeatedly emphasized that the facts of each case attack on the statute here] is at once made must be scrutinized in determining justiciability. manifest by understanding that the assault which See id. (“The cases we have reviewed show the the contention here advanced makes is not on necessity for discriminating inquiry into the the tax as a tax, but on the state as a state. It is precise facts and posture of the particular case, addressed to the framework and political and the impossibility of resolution by any character of the government by which the statute semantic cataloguing.”). After reviewing other levying the tax was passed. It is the government, subject areas, the Court addressed the political entity, which (reducing the case to its essence) is called to the bar of this court, not [880 F.Supp.2d 1145] for the purpose of testing judicially some exercise of power ... but to demand of the state Guarantee Clause cases, discussing Luther and that it establish its right to exist as a state, its progeny, and stating that “the Court has republican in form. consistently held that a challenge to state action based on the Guaranty Clause presents no Id. at 150–51, 32 S.Ct. 224. Based on this justiciable question....” Id. at 224, 82 S.Ct. rationale, the Court held that the challenge to 691;see generally id. at 218–26, 82 S.Ct. 691. Oregon's ballot initiative system presented a There is language in Baker indicating the Court's non-justiciable political question. Id. at 151, 32 belief, based on precedent, that Guarantee S.Ct. 224. Clause claims are per se non-justiciable. See id. at 226–27, 82 S.Ct. 691 (“[T]he appellants might conceivably have added a claim under the Guarantee Clause. Of course, as we have seen, In Colegrove v. Green, 328 U.S. 549, 66 any reliance on that clause would be futile.”). S.Ct. 1198, 90 L.Ed. 1432 (1946) ( “Colegrove However, there is other language to the contrary. ”), the Supreme Court was asked to intervene in See id. at 222 n. 48, 82 S.Ct. 691 (“Even though a dispute regarding the apportionment of the [ Luther ] Court wrote of unrestrained legislative districts within Illinois. The Court legislative and executive authority under this held that the issue was political and non- Guaranty, thus making its enforcement a justiciable. “To sustain this action would cut political question, the Court plainly implied that very deep into the very being of Congress. the political question barrier was no[t] Courts ought not to enter this political thicket. absolute....”). Further, it is important to note that The remedy for unfairness in districting is to Baker involved an equal protection claim, not a secure State legislatures that will apportion Guarantee Clause claim, so the Court's properly, or to invoke the ample powers of discussion of Guarantee Clause cases, albeit Congress.” Id. at 556, 66 S.Ct. 1198. Citing to detailed, is clearly dicta. Nevertheless, Baker is Pacific States, the Court in Colegrove again much more widely recognized for setting forth enunciated the broad rule called into question in the six governing tests for determining whether a New York: “Violation of the great guaranty of a
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–23 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
particular claim presents a non-justiciable matter on justiciability grounds. Rather, it political question. assumed justiciability and rejected the claim on the merits.” Id. at 1163 (emphasis in original).33 Between the Baker decision in 1962 and the 1992 New York decision, the Supreme Court did [880 F.Supp.2d 1146] not address in detail the justiciability of Guarantee Clause cases. Two years after the c. Discussion of Whether a Per Se Rule Baker decision, the Court in Reynolds v. Sims, Would Be Properly Applied, and Whether 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 Pacific States Controls, in this Action (1964), cited Baker and stated, “ some questions raised under the Guaranty Clause are New York, Kelley, and Hanson provide nonjusticiable, where [they are] ‘political’ in little to no guidance to this Court regarding nature and where there is a clear absence of whether the political question doctrine bars the judicially manageable standards.” Id. at 582, 84 particular Guarantee Clause claim being raised S.Ct. 1362 (emphasis added). This is the case in this action, a claim based on unique cited by the New York Court for the proposition allegations involving TABOR and its effects. that “[m]ore recently, the Court has suggested However, given this recent U.S. Supreme Court that perhaps not all claims under the Guarantee and Tenth Circuit case law seriously calling into Clause present nonjusticiable political question the propriety of applying a per se rule questions.” 505 U.S. at 185, 112 S.Ct. 2408. of non-justiciability in Guarantee Clause cases, the Court determines that it cannot summarily That brings this Court back to the Supreme conclude that Plaintiffs' Guarantee Clause claim Court's most recent pronouncement of the issue is per se non-justiciable. See Trimble v. Gordon, in New York, in which the Supreme Court called 430 U.S. 762, 776 n. 17, 97 S.Ct. 1459, 52 into question the cases adopting a per se rule L.Ed.2d 31 (1977) (“To the extent that our that Guarantee Clause claims are not justiciable. analysis in this case differs from [a previous In addition to looking at controlling precedent case] the more recent analysis controls.”); from the U.S. Supreme Court, this Court also Peoples v. CCA Detention Ctrs., 422 F.3d 1090, looks for binding precedent from the Tenth 1102 (10th Cir.2005) (“We ... think it prudent to Circuit. Significantly, two recent Tenth Circuit follow the Court's most recent pronouncement decisions have discussed the fact that New York on the issue.”). called into question the idea that Guarantee Clause claims are per se non-justiciable. In The Court concludes that Pacific States is Kelley v. United States, 69 F.3d 1503 (10th not controlling here. The way the issues were Cir.1995), the Tenth Circuit described the New framed in Pacific States led the Court there to York decision, pointing out that “there has been consider whether the entire voter initiative some belief that violations of the Guarantee system in Oregon violated the Guarantee Clause. Clause cannot be challenged in the courts,” but Similarly, Defendant in this case tries to also pointing out that “it has [been] suggested, in characterize Plaintiffs' Guarantee Clause claim more recent opinions, that this belief may be as challenging the entire initiative process in incorrect.” Id. at 1510. Like New York, the Court Colorado. ( See, e.g., ECF No. 18, at 2 (“[W]hile in Kelley did not resolve the issue: “Assuming, [Plaintiffs'] policy preferences lead them to without deciding, that plaintiffs' claim is focus their ire on one particular instance of justiciable, there appears to be no merit to it.” Id. direct democratic participation in Colorado, the at 1511. Then, in Hanson v. Wyatt, 552 F.3d Taxpayers' Bill of Rights, their arguments 1148 (10th Cir.2008), the Tenth Circuit briefly ultimately would require the Court to hold identified Colegrove's holding that Guarantee unconstitutional all forms of direct citizen Clause claims cannot be raised in court, and then lawmaking.”). So framed, Defendant has little stated, “[t]he New York court, however, was not trouble arguing that Pacific States controls. so sure about that. It decided not to resolve the Indeed, the Court would agree that it would be
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–24 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
appropriate to apply Pacific States in an action the issue to a coordinate political brought under the Guarantee Clause challenging department”35 Article V, Section 1, Clause 2 of the Colorado Constitution, the clause reserving in Colorado Addressing the first Baker test of whether voters the power of the initiative process. there is “a textually demonstrable constitutional commitment of the issue to a coordinate political This action, however, seeks not the department,” Defendant argues that there is a invalidation of Colorado's ballot initiative textually demonstrable commitment of system. Plaintiffs, in fact, seek only to invalidate Guarantee Clause disputes to a coordinate one particular measure passed via the Colorado political department, namely, Congress. (ECF voter initiative process: TABOR. ( See ECF No. No. 51, at 18–19.) Defendant purports to support 36, at 20–21 (prayer for relief seeking that argument by citing to Luther and Pacific invalidation of States, arguing that “[t]he Supreme Court has long been clear that the question of what [880 F.Supp.2d 1147] constitutes a republican form of government is committed to Congress.” ( Id. at 19.) But the “TABOR AMENDMENT”).) Invalidating “textually demonstrable” means demonstrable Article X, Section 20 of the Colorado from the text of the constitution itself, not from Constitution will in no way affect Colorado case law interpreting the constitutional text. See voters' power of initiative codified in Article V, Nixon v. United States, 506 U.S. 224, 228, 113 Section 1 of that Constitution. The Court cannot S.Ct. 732, 122 L.Ed.2d 1 (1993) ( “[C]ourts conclude that a challenge to the effects of must, in the first instance, interpret the text in TABOR itself should be equated with a question and determine whether and to what challenge to the entire voter initiative process, at extent the issue is textually committed [to a least at this stage of the proceedings, merely coordinate branch of government].”) (emphasis because both involve questions regarding how added); Powell, 395 U.S. at 519–20, 89 S.Ct. power is to be divided between the General 1944 (“In order to determine whether there has Assembly and the Colorado electorate. While been a textual commitment to a coordinate Pacific States has language that one can argue department of the Government, should be similarly applied to the power struggle involved here, the Court declines to read Pacific [880 F.Supp.2d 1148] States that broadly. we must interpret the Constitution.”). The Given that the Court declines to adopt a per language in case law precedent, even from the se rule of non-justiciability in Guarantee Clause U.S. Supreme Court, does not make the cases, and given that Pacific States is not commitment of an issue to a coordinate branch controlling, the Court finds it appropriate to of government “textually demonstrable.” apply the widely-recognized Baker tests to determine whether Plaintiffs' Guarantee Clause Although Defendant also baldly argues that claim is barred by the political question doctrine. “[t]he text of the Guarantee Clause ... See Baker, 369 U.S. at 217, 82 S.Ct. 691 (“The definitively commit[s] this question to cases we have reviewed show the necessity for Congress,” that assertion is not correct. Again, discriminating inquiry into the precise facts and the Guarantee Clause provides, “The United posture of the particular case, and the States shall guarantee to every State in this impossibility of resolution by any semantic Union a Republican Form of Government....” cataloguing.”).34 The implication in the Guarantee Clause that the “United States” will enforce this guarantee of a d. The Baker Tests(1) “A textually republican form of government in no way demonstrable constitutional commitment of specifies whether enforcement will lie in the Legislative, Executive, or Judicial Department
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–25 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
of the U.S. government. See Wang v. Masaitis, will.’ ” Id. at 226–27 (citing letter written by 416 F.3d 992, 996 (9th Cir.2005) (stating that Adams in 1807). However, the Largess Court there was no textually demonstrable ultimately found sufficient standards for commitment to a coordinate political branch interpreting the Guarantee Clause, concluding because “the text [in question] is silent” that the plaintiffs' Guarantee Clause challenge in regarding any such commitment); cf. Nixon, 506 that case lacked merit. See id. at 227–29. U.S. at 229–36, 113 S.Ct. 732 (holding that Notably, the Independence Institute's amicus constitutional clause providing that “[t]he Senate brief argues the merits of Plaintiffs' Guarantee shall have the sole Power to try all Clause claim, indicating its belief that there are Impeachments” constituted a textually sufficiently clear standards for dismissing demonstrable commitment of that issue to the Plaintiffs' Guarantee Clause claim on the merits. Senate). Also, importantly, the Guarantee Clause (ECF No. 21–1.) See also Zivotofsky ex rel. is included within Article IV of the Constitution, Zivotofsky v. Clinton, ––– U.S. ––––, 132 S.Ct. the Article entitled “The States.” Thus, it does 1421, 1428, 182 L.Ed.2d 423 (2012) (stating not fall under Article I (specifying Congress's that the judicially manageable standards for powers), Article II (specifying the Executive's determining the constitutionality of the statute in powers), or Article III (specifying the Judiciary's question were evidenced by the detailed legal powers). arguments made by both sides on the issue).
Plainly, there is no textually demonstrable [880 F.Supp.2d 1149] commitment of this issue to Congress or to the Executive Department. Thus, this Baker test is However, the foregoing discussion of this not met and does not indicate the political Baker test reflects the fact that the discussion is question doctrine's applicability to this case. premature at this stage of the litigation. Resolving the issue of whether there are (2) “A lack of judicially discoverable and judicially discoverable and manageable manageable standards for resolving [the standards for determining the merits of issue]” Plaintiffs' Guarantee Clause claim would necessarily require this Court to begin to wade The second Baker test, asking whether into the merits of this dispute. Indeed, in there are judicially discoverable and manageable Largess, the court stated, “[R]esolving the issue standards for resolving a plaintiff's claim, gives of justiciability in the Guarantee Clause context this Court some pause. may also turn on the resolution of the merits of the underlying claim.” 373 F.3d at 225. For As previously discussed, the U.S. Supreme obvious reasons, the Court declines to address Court has focused on the justiciability of the merits of Plaintiffs' Guarantee Clause claim Guarantee Clause challenges, providing little based merely on the pleadings filed in this guidance to lower courts regarding actual action. See Shakman v. Democratic Org. of standards for resolving Guarantee Clause claims Cook Cnty., 435 F.2d 267, 271 (7th Cir.1970) on the merits. Also, in Largess v. Supreme (“We do not view [the aforementioned] Judicial Court for the State of Mass., 373 F.3d difficulties ... as demonstrating ‘a lack of 219 (1st Cir.2004), the First Circuit pointed out judicially discoverable and manageable that “scholars have interpreted ... the Guarantee standards for resolving’ the case or as requiring, Clause in numerous, often conflicting, ways.” at the pleading stage, a decision that plaintiffs' Id. at 226 (citing various law review articles). claim is not justiciable.”); Holtzman v. The Largess Court also noted that “John Adams Richardson, 361 F.Supp. 544, 551 himself, twenty years after ratification of the (E.D.N.Y.1973) (declining to evaluate whether Constitution, confessed that he ‘never there were judicially discoverable and understood’ what the Guarantee Clause meant manageable standards for resolving a dispute and that he ‘believ[ed] no man ever did or ever
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–26 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
because “the issue arises on a motion to dismiss [880 F.Supp.2d 1150] the complaint on its face”). 36 doctrine inapplicable, the Court stated that At this early stage of the proceedings, the resolving the claim at issue “would require no Court cannot resolve the issue of whether there more than an interpretation of the Constitution. will be judicially discoverable and manageable Such a determination falls within the traditional standards for evaluating Plaintiffs' Guarantee role accorded courts to interpret the law....”). Clause claim. At the very least, the Court is comfortable at this early stage in concluding that That makes this case entirely this Baker test is not “inextricable from” this distinguishable from the types of cases involving case. See Baker, 369 U.S. at 217, 82 S.Ct. 691 non-justiciable policy determinations soundly (“Unless one of these formulations is committed to the political branches of inextricable from the case at bar, there should be government. See, e.g., Schroder v. Bush, 263 no dismissal for non-justiciability on the ground F.3d 1169, 1174 (10th Cir.2001) (“Appellants' of a political question's presence.”). request that courts maintain market conditions, oversee trade agreements, and control currency (3) “The impossibility of deciding without an ... would require courts to make [non-justiciable] initial policy determination of a kind clearly policy determinations....”); Ad Hoc Comm. on for nonjudicial discretion” Judicial Admin. v. Commonwealth of Massachusetts, 488 F.2d 1241, 1245 (1st The third Baker test asks whether it is Cir.1973) (finding non-justiciable a policy possible for a court to resolve a plaintiff's claim determination regarding the financing of the “without [making] an initial policy judicial branches, an issue that has “been left to determination of a kind clearly for nonjudicial the people, through their legislature”); Orlando discretion.” v. Laird, 443 F.2d 1039, 1044 (2d Cir.1971) (in action challenging war in Vietnam, court stated, As to this test, Defendant's argument “[D]ecisions regarding the form and substance focuses entirely on Plaintiffs' motives in of congressional enactments authorizing bringing this action—that Plaintiffs only brought hostilities are determined by highly complex this particular action because of their own values considerations of diplomacy, foreign policy and and judgments that TABOR is bad public policy. military strategy inappropriate to judicial (ECF No. 18, at 8–9; ECF No. 51, at 20–21.) inquiry.”). However, notwithstanding Plaintiffs' personal motivations for bringing this particular action, The Court thus finds that the third Baker this Baker test concerns whether the Court itself test does not apply to the case at bar. will be required to make a policy determination in resolving the claims. The question of whether (4) “The impossibility of a court's TABOR violates Colorado's obligation to undertaking independent resolution without maintain a republican form of government is a expressing lack of the respect due coordinate question requiring interpretation of the branches of government” Guarantee Clause. A court's interpretation of the Constitution does not constitute a policy The fourth Baker test requires the Court to determination, but instead a legal determination consider whether it is possible to undertake that courts are well-positioned to resolve. See resolution of this action “without expressing Marbury, 5 U.S. (1 Cranch) at 177 (“It is lack of the respect due coordinate branches of emphatically the province and duty of the government.” judicial department to say what the law is.”); Powell, 395 U.S. at 548, 89 S.Ct. 1944 (in As to this test, Defendant first argues that finding the political question the Court's consideration of Plaintiffs' Guarantee Clause claim would express a lack of respect
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–27 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
due to the U.S. Congress. (ECF No. 18, at 9; form of government, or even more generally ECF No. 51, at 22–23.) In support of that whether TABOR is constitutional under either argument, Defendant cites cases in which courts the U.S. Constitution or Colorado Constitution. have held that questions arising under the Instead, Bickel merely stated (a passage repeated Guarantee Clause are to be decided by Congress, by Zaner ) that TABOR “is a perfect example of not the federal Judiciary. ( Id.) However, the the people exercising their initiative power to Court has already determined that, at this early enact laws in the specific context of state and stage of the proceedings, it is not appropriate to local government finance, spending and apply those cases' per se rules of non- taxation.” Bickel, 885 P.2d at 226;Zaner, 917 justiciability. Thus, there is still a question P.2d at 284. These cases' statements that whether Plaintiffs' Guarantee Clause claim can TABOR is a “perfect example” of the Colorado be decided by the Court, or whether the decision electorate's exercise of its initiative power does should be deferred to Congress. Further, the not speak to the issue of whether that particular Court again finds it of some import that TABOR exercise of the initiative power in 1992 resulted has been in effect for nearly twenty years, and in a violation of the Guarantee Clause, the issue the Court is not aware of Congress ever having presented in this case. taken a position on TABOR's constitutionality. While silence could indicate approval, the Court And finally, Defendant suggests that this cannot so presume. See Hanson v. Wyatt, 552 Court must defer to the will of the Colorado F.3d 1148, 1164 (10th Cir.2008) (“It may be electorate itself in enacting TABOR. As a worth noting that neither New York's treatment foundational matter, the political question of the Guarantee Clause issue in that case nor doctrine's applicability in a particular case is our resolution of [this case] is likely to raise any lessened or eradicated when the action concern in the political branches about the challenges an act of a state. See Baker, 369 U.S. courts' violating their turf.”). at 210, 82 S.Ct. 691 (“[I]n the Guaranty Clause cases and in the other ‘political question’ cases, Defendant also argues that this Court it is the relationship between the judiciary and should defer to decisions of the Colorado the coordinate branches of the Federal Supreme Court which have addressed TABOR: Government, and not the federal judiciary's Zaner v. City of Brighton, 917 P.2d 280 relationship to the States, which gives rise to the (Colo.1996) (“Zaner ”), and Bickel v. City of ‘political question.’ ”); L.A. Cnty. Bar Ass'n v. Boulder, 885 P.2d 215 (Colo.1994) (“Bickel ”). Eu, 979 F.2d 697, 701–02 (9th Cir.1992) (“[T]he (ECF No. 51, at 22; see also ECF No. 18, at 11.) political question doctrine arises primarily from If the Colorado Supreme Court had addressed a concerns about the separation of powers within Guarantee Clause challenge to TABOR, this the federal government.... Accordingly, the Court would now likely defer to that Court's doctrine has at best limited applicability to interpretation of the U.S. Constitution. See actions challenging state statutes as violative of Trans Shuttle, Inc. v. Pub. Utils. Comm'n, 24 the federal Constitution.”). Also, as the Court's Fed.Appx. 856, 859 (10th Cir.2001) (“One of previous discussion of Lucas indicates, the the fundamental policies underlying the Younger Court cannot defer to the will of a state's doctrine is the recognition that state courts are electorate when it passes an allegedly fully competent to decide federal constitutional unconstitutional ballot initiative, particularly when that law has been in effect for nearly [880 F.Supp.2d 1151] twenty years. See also Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) questions.”). However, in neither Zaner nor (invalidating amendment to Colorado Bickel did the Colorado Supreme Court consider Constitution passed by ballot initiative whether TABOR violated the U.S. Constitution's prohibiting all legislative, executive, or judicial Guarantee Clause, whether TABOR violated the action designed to protect homosexuals). requirement that Colorado maintain a republican
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–28 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
Although the fourth Baker test presents the Colorado Supreme Court's decisions in more difficult and sensitive issues, the Court Zaner and Bickel did not address the question of finds that the test is not met here. whether TABOR violates Colorado's obligation to maintain a republican form of government, (5) “An unusual need for unquestioning and therefore a judgment resolving that issue adherence to a political decision already would not violate those “decision[s] already made” made.”
Regarding the issue of whether this case The Court therefore concludes that the fifth presents “an unusual need for unquestioning Baker test is not met here. adherence to a political decision already made,” Defendant argues that “[t]wenty-six states now (6) “The potentiality of embarrassment from use some form of direct democracy, and multifarious pronouncements by various countless laws and constitutional provisions departments on one question” have been instituted through these mechanisms.... Plaintiffs' argument, if accepted, As for the sixth and final Baker test, would call into question all of these provisions, Defendant again repeats the mantra that this and all of the countless laws enacted under action challenges the entire ballot initiative them.” (ECF No. 18, at 10; see also ECF No. 51, process, a process repeatedly upheld by state and at 23–24.) federal decision-makers. ( See ECF No. 18, at 10 (“[A] court pronouncement in favor of Plaintiff The Court has already addressed and would be in conflict with the views of various rejected Defendant's argument that this action is state and federal departments on ... whether properly interpreted as a frontal attack on direct democracy is incompatible with a Colorado's entire ballot initiative process. Thus, republican form of government.... Congress ... Defendant's more incredible argument that this has never questioned the practice of state direct action should be construed as an attack on the democracy.... State courts and legislators have ballot initiative systems in place in twenty-six likewise upheld and relied upon citizen-initiated states in this country is similarly and even more or approved laws.”).) Defendant also again cites appropriately rejected. Thus, Defendant's Zaner and Bickel for the proposition that concern regarding the continuing validity of TABOR has already been upheld. ( Id. at 11; laws enacted via ballot initiative (other than ECF No. 51, at 24.) For the aforementioned TABOR, of course) is also unfounded. And reasons, those arguments are rejected. The sixth significantly, in terms of Plaintiffs' actual Baker test is also not met in this case. challenge to TABOR itself, it warrants mentioning that laws are not enacted pursuant to e. Conclusion TABOR. Instead, TABOR In summary, there is no basis to conclude, [880 F.Supp.2d 1152] at this stage of the proceedings, that any of the six Baker tests are “inextricable from the case at merely acts to limit the power of the General bar.” 369 U.S. at 217, 82 S.Ct. 691. Thus, the Assembly to legislate in certain areas (“core” Court concludes it is not appropriate to dismiss areas according to Plaintiffs). See Bickel, 885 Plaintiffs' Guarantee Clause claim at this stage P.2d at 226 (“[TABOR's] requirement of as non-justiciable under the political question electoral approval is not a grant of new powers doctrine. or rights to the people, but is more properly viewed as a limitation on the power of the 3. The Enabling Act Claim and the Political people's elected representatives.”). Thus, the Question Doctrine invalidation of TABOR would not undo any other enacted law. Further, as already explained, Defendant's Motion to Dismiss includes little argument as to why the Enabling Act in
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–29 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
particular should be dismissed, saying only in a as the executive agreement at issue. Id. at 229, footnote that “[t]he rationale applied by the 106 S.Ct. 2860. The Court disagreed: Supreme Court to Guarantee Clause claims therefore applies with equal force to Plaintiffs' [I]t goes without saying that interpreting claims brought under the Colorado Enabling congressional legislation is a recurring and Act,” and citing the fact that Pacific States accepted task for the federal courts. It is also included an Enabling Act claim. (ECF No. 18, at evident that [whether the statute was violated] 6 n. 4.) 37 Defendant repeats the same argument presents a purely legal question of statutory in the Reply brief. (ECF No. 51, at 25–26.) interpretation. The Court must first ... apply[ ] However, as explained above, Pacific States is no more than the traditional rules of statutory not controlling and does not bar this Court's construction, and then apply[ ] this analysis to consideration of Plaintiffs' Guarantee Clause the particular set of facts presented below. We claim. Because the Court holds Plaintiffs' are cognizant of the interplay between [the Guarantee Clause claim to be justiciable at this statute] and the conduct of this Nation's foreign early stage of the proceedings, Plaintiffs' relations, and we recognize the premier role Enabling Act claim is likewise not subject to which both Congress and the Executive play in dismissal. this field. But under the Constitution, one of the Judiciary's characteristic roles is to interpret [880 F.Supp.2d 1153] statutes, and we cannot shirk this responsibility merely because our decision may have Further, even if Plaintiffs' Guarantee Clause significant political overtones. We conclude, claim were barred by the political question therefore, that the present cases present a doctrine, the Court would nevertheless conclude justiciable controversy.... that Plaintiffs' Enabling Act claim is not subject to dismissal. Pacific States includes a brief Id. at 230, 106 S.Ct. 2860. discussion as to why it was appropriate to treat all of the claims in that case similarly. Indeed, both Plaintiffs' Guarantee Clause claim and their Enabling Act claim are based on the requirement Earlier this year, the Supreme Court again that Colorado maintain a republican form of reiterated the rule that federal courts have government. SeeU.S. Const. art. IV, § 4; 18 Stat. jurisdiction to interpret federal statutes, even in 474 (1875). politically charged cases. In Zivotofsky ex rel. Zivotofsky v. Clinton, ––– U.S. ––––, 132 S.Ct. However, the fact that Plaintiffs' Enabling 1421, 182 L.Ed.2d 423 (2012), the plaintiff, who Act claim is a statutory claim leads the Court to was born in Jerusalem, challenged a decision by conclude that it would have jurisdiction to hear State Department officials to deny his request that claim even if the Guarantee Clause claim that his passport indicate his place of birth as were held to be non-justiciable under the Israel, in apparent direct violation of a federal political question doctrine. In Japan Whaling statute. The Secretary of State argued that the Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 106 case presented a non-justiciable political S.Ct. 2860, 92 L.Ed.2d 166 (1986), wildlife question. The Court disagreed: conservation groups brought an action challenging an executive agreement between The existence of a statutory right ... is Japanese and U.S. officials that allegedly certainly relevant to the Judiciary's power to violated a U.S. statute requiring sanctions for decide Zivotofsky's claim. The federal courts are violations of whale harvesting quotas. On not being asked to supplant a foreign policy appeal, petitioners argued that the action was decision of the political branches with the courts' barred by the political question doctrine because own unmoored determination of what United federal courts lack the power to call into States policy toward Jerusalem should be. question Executive Department decisions, such Instead, Zivotofsky requests that the courts
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–30 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
enforce a specific statutory right. To resolve his Clause and Enabling Act claims are justiciable claim, the Judiciary must decide if Zivotofsky's and not barred by the political question doctrine. interpretation of the statute is correct, and whether the statute is constitutional. This is a C. Equal Protection Claim familiar judicial exercise. Defendant separately moves to dismiss Id. at 1427. Plaintiffs' Equal Protection claim for failure to state a claim upon which relief can be granted. (ECF No. 18, at 19–21.) 39 Defendant argues that the claim must fail because Plaintiffs have not For the Court's purposes here, a fellow U.S. alleged that they are members of a District Judge has stated the rule clearly. In constitutionally protected class or that they are being treated differently than other similarly [880 F.Supp.2d 1154] situated people in Colorado. ( Id. at 19.) Bredesen v. Rumsfeld, 500 F.Supp.2d 752 Defendant also points out that Colorado cannot (M.D.Tenn.2007), the Court stated that “it is extend its jurisdiction outside its borders so as to well-settled that the political question doctrine treat Colorado citizens differently than citizens applies only to constitutional questions, not to in other states. ( Id. at 20.) questions of statutory violations.” Id. at 762 In response, Plaintiffs argue that their Equal (citing Japan Whaling ). In Bredesen, the Court Protection claim should not be dismissed ultimately found that the plaintiff's constitutional because their claim is analogous to the Equal claims (but not the statutory claims) were barred Protection claims found viable in the legislative by the political question doctrine. Id. at 762– 38 apportionment cases of Baker v. Carr, 369 U.S. 63. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962),
Thus, it is not surprising that numerous [880 F.Supp.2d 1155] courts have evaluated the merits of Enabling Act claims. See Branson Sch. Dist. v. Romer, 161 Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, F.3d 619 (10th Cir.1998) (evaluating whether an 12 L.Ed.2d 506 (1964), and Lucas v. Forty– amendment to the Colorado Constitution passed Fourth General Assembly of the State of by voter initiative violated the Colorado Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 Enabling Act); (ECF No. 30, at 41–44 (listing L.Ed.2d 632 (1964). (ECF No. 30, at 33–36.) 117 other cases in which courts have taken up Plaintiffs argue that, as in the legislative the issue of whether a provision in an Enabling apportionment cases, this action involves a Act has been violated).). majority's efforts to impose an unconstitutional law on a minority. ( Id.) 40 Given the sufficiently clear and recent case law authority (some of it binding U.S. Supreme The Equal Protection Clause of the Court authority from the past three decades) that Fourteenth Amendment to the United States this Court has jurisdiction to hear the Enabling Constitution provides, “No State shall ... deny to Act claim, it would be error to dismiss this case any person within its jurisdiction the equal based only on the fact that Pacific States also protection of the laws.” U.S. Const. amend. involved an Enabling Act claim. The Court XIV, § 1. The Equal Protection Clause “is therefore concludes that it has jurisdiction to essentially a direction that all persons similarly hear Plaintiffs' Enabling Act claim under 28 situated should be treated alike.” City of U.S.C. § 1331, and as a consequence Plaintiffs' Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. Enabling Act claim is not subject to dismissal. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); see also Plyler v. Doe, 457 U.S. 202, To summarize, the Court concludes that, at 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) this stage of the litigation, Plaintiffs' Guarantee
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–31 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
(“The Equal Protection Clause directs that all [T]he concept of equal protection has been persons similarly circumstanced shall be treated traditionally viewed as requiring the uniform alike.”) (quotation marks omitted); Barney v. treatment of persons standing in the same Pulsipher, 143 F.3d 1299, 1312 (10th Cir.1998). relation to the governmental action questioned “In order to assert a viable Equal Protection or challenged. With respect to the allocation of claim, plaintiffs must first make a threshold legislative representation, all voters, as citizens showing that they were treated differently from of a State, stand in the same relation regardless others who were similarly situated to them.” of where they live.... Diluting the weight of Barney, 143 F.3d at 1312;see also Brown v. votes because of place of residence impairs basic Montoya, 662 F.3d 1152, 1172–73 (10th constitutional rights under the Fourteenth Cir.2011) (same); Campbell v. Buckley, 203 Amendment.... Simply stated, an individual's F.3d 738, 747 (10th Cir.2000) (same). right to vote for state legislators is unconstitutionally impaired when its weight is in Plaintiffs' Equal Protection claim is a substantial fashion diluted when compared properly dismissed because Plaintiffs have not with votes of citizens living in other parts of the plead or otherwise shown that TABOR has State. treated any of the Plaintiffs differently from others who are similarly situated to them. All Id. at 565–68, 84 S.Ct. 1362. In the legislative Colorado voters had an equally weighted vote on apportionment cases, the allegation was that TABOR in 1992. All Colorado voters would similarly situated people—voters from different have an equal vote on any attempt to pass a districts—were being treated differently. That is ballot initiative invalidating TABOR. TABOR not the case here. Here, TABOR affects all increases all Colorado voters' power equally by, voters equally. TABOR does not give any voter inter alia, giving them the power to approve or more or less voting power than any other voter. reject any proposed new tax or tax rate increase. And even if TABOR does violate Plaintiffs' TABOR decreases Colorado General Assembly constitutional rights as citizens to have a members' power equally by, inter alia, taking government republican in form, TABOR has the away their power to approve new taxes or tax same effect on every Colorado citizen's rate increases without voter approval.41 Plaintiffs constitutional right to a republican form of have not plead or shown how TABOR treats government.43 similarly situated people in Colorado differently. 42
[880 F.Supp.2d 1156] The Court therefore concludes that Plaintiffs' Equal Protection claim is properly The legislative apportionment cases cited dismissed. Because Plaintiffs have not requested by Plaintiffs are inapposite. Of those cases, leave to amend this Claim, nor made any Reynolds provides the clearest explanation for suggestion how this fundamental defect in their why the legislative apportionment at issue there Equal Protection claim might be cured, the violated the Equal Protection Clause. In dismissal will be with prejudice. See Curley v. Reynolds, the plaintiffs raised an Equal Perry, 246 F.3d 1278, 1282 (10th Cir.2001). Protection claim challenging the apportionment of legislative districts in Alabama that gave D. Impermissible Amendment Claim voters in certain districts greater weighted votes than voters in other districts. 377 U.S. at 537– Defendant's primary argument in moving to 46, 84 S.Ct. 1362. The Court struck down the dismiss Plaintiffs' Impermissible Amendment apportionment as violative of the Equal claim is that the claim presents a non-justiciable Protection Clause, stating, political question. (ECF No. 18, at 21–22; ECF No. 51, at 27–28.) For the reasons discussed above, the political question doctrine does not
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–32 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
bar this action or any claims brought herein, is even mentioned in Defendant's Motion to including the Impermissible Amendment claim. Dismiss (ECF No. 18) or in his Reply brief (ECF No. 51) is in a footnote pointing out that Defendant also argues that the Pacific States also involved a claim brought Impermissible Amendment claim fails to state a under the Supremacy Clause. (ECF No. 18, at 13 claim upon which relief can be granted. (ECF n. 7.) Plaintiffs' Supremacy Clause claim is No. 18, at 22.) In support of that contention, based on the allegation that “TABOR must yield Defendant argues that the Colorado Supreme to the requirements of the ‘Guarantee Clause’ Court considers the and of the Enabling Act that Colorado maintain a Republican Form of Government.” (ECF No. [880 F.Supp.2d 1157] 36, ¶ 84.) The Supremacy Clause claim is initiative and referendum process to be a derivative of the Guarantee Clause claim and fundamental right of voters, and also argues that Enabling Act claim; if TABOR violates the the Colorado Supreme Court has never Guarantee Clause and/or the Enabling Act, then questioned TABOR's general structure. ( Id.) it would appear that it also violates the Regarding the first argument, as this Court has Supremacy Clause. Because the Court has held already stated, this action challenging TABOR is that Plaintiffs' Guarantee Clause claim and not properly interpreted as an attack on the Enabling Act claim are not subject to dismissal entire initiative and referendum process in at this stage of the proceedings, Defendant's Colorado. Nonetheless, it is also indisputable Motion to Dismiss Plaintiffs' Supremacy Clause that just because Colorado voters have the right claim will also be denied. to the initiative process does not mean they can F. Unopposed Motion to Amend Complaint pass any ballot initiative they choose, no matter how violative of state or federal constitutional On March 28, 2012, Plaintiffs filed an rights. See Romer, 517 U.S. 620, 116 S.Ct. 1620. Unopposed Motion for Leave to File Second As to the second argument, Defendant attempts Amended Substitute Complaint for Injunctive to read far too much into the fact that the and Declaratory Relief (“Unopposed Motion”). Colorado Supreme Court to date has never (ECF No. 74) In the Unopposed Motion, questioned TABOR's general structure. Plaintiffs explain that they only seek to amend Particularly in light of the fact that a direct the Operative Complaint in order to update the challenge to TABOR's constitutional legitimacy current elective status of six particular plaintiffs. has never previously been mounted, Defendant's ( Id.) This Court's review of the Operative contention that the Colorado Supreme Court has Complaint and the proposed Second Amended at least implicitly found TABOR to pass Substitute Complaint for Injunctive and constitutional muster is without merit. Declaratory Relief confirms that those were the only changes made to the Operative Complaint. The Court therefore also finds that ( Compare ECF No. 36, with ECF No. 74–1.) Plaintiffs' Impermissible Amendment claim is The Court therefore finds good cause to grant not subject to dismissal for failure to state a the Unopposed Motion. claim. The Court properly exercises supplemental jurisdiction over this claim IV. CONCLUSION pursuant to 28 U.S.C. § 1367(a). ( See ECF No. 36, ¶ 53.) In accordance with the foregoing, the Court hereby ORDERS as follows: E. Supremacy Clause Claim (1) Defendant's Motion to Dismiss Defendant does not separately move to Plaintiffs' Substitute Complaint (ECF No. 18), dismiss Plaintiffs' Supremacy Clause claim. In properly construed as moving to dismiss fact, the only time the Supremacy Clause claim Plaintiffs' First Amended Substitute Complaint
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–33 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
for Injunctive and Declaratory Relief, is (providing that judicial notice may be taken of a GRANTED IN PART and DENIED IN PART; fact that is “not subject to reasonable dispute in that it is ... capable of accurate and ready [880 F.Supp.2d 1158] determination by resort to sources whose accuracy cannot reasonably be questioned”); (2) Defendant's Motion to Dismiss is Grynberg v. Koch Gateway Pipeline Co., 390 GRANTED as to Plaintiffs' Equal Protection F.3d 1276, 1278 n. 1 (10th Cir.2004) (stating claim. Plaintiffs' Equal Protection claim is that, in evaluating a motion to dismiss, a court hereby DISMISSED WITH PREJUDICE; may take judicial notice of facts that are a matter (3) Defendant's Motion to Dismiss is of public record).
DENIED as to Plaintiffs' other four claims for 5. relief. Those four claims will be allowed to Clause (4)(a) exempts from this limitation proceed past the pleading stage in this action; “emergency taxes” as defined in clause (6), and also exempts the scenario (described in clause (4) Plaintiffs' Unopposed Motion for Leave (1)) where “annual district revenue is less than to File Second Amended Substitute Complaint annual payments on general obligation bonds, for Injunctive and Declaratory Relief (ECF No. pensions, and final court judgments.” 74) is GRANTED; 6. Clause (4)(b) exempts from this limitation (5) The Clerk of Court shall FILE as a “refinancing district bonded debt at a lower separate docket entry the Second Amended interest rate or adding new employees to existing Substitute Complaint for Injunctive and district pension plans.” Declaratory Relief, currently filed as an attachment at ECF No. 74. The Second 7. In 2005, Colorado voters approved Amended Substitute Complaint for Injunctive Referendum C, which, inter alia, allowed the and Declaratory Relief will hereinafter be the state to retain and spend all excess revenue operative complaint in this action; and collected above the TABOR limit for five years (from fiscal year 2005–06 through fiscal year (6) The Court's Order staying disclosures 2009–10), and allowed the state, beginning in and discovery in this action (ECF No. 29) is fiscal year 2010–11, to retain and spend excess VACATED and said stay is hereby LIFTED. revenue up to a new “excess state revenues” cap. SeeColo.Rev.Stat. § 24–77–103.6.
------8. The Plaintiffs who are current members of the Colorado House of Representatives are Notes: Lois Court, Dickey Lee Hullinghorst, Andy 1. The Court explains the nature of Kerr, and Claire Levy. Plaintiff John P. Morse is Plaintiffs' “Impermissible Amendment claim” a current member of the Colorado Senate. ( Id.) below. See also www. leg. state. co. us (last visited June 20, 2012); Fed.R.Evid. 201(b); Grynberg, 390 2. As explained below, because of this F.3d at 1278 n. 1.
determination, the Court need not consider the 9. standing of the remaining Plaintiffs. Despite the fact that paragraph 86 of the Operative Complaint is ambiguous regarding 3. Article X is the Article entitled whether Plaintiffs are attempting to assert a “Revenue.” claim under the Fourteenth Amendment separate and apart from their Equal Protection claim, the 4. The Court properly takes judicial notice Court holds that the Operative Complaint as a of TABOR's provisions. SeeFed.R.Evid. 201(b) whole is properly interpreted as bringing a claim
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–34 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
under the Fourteenth Amendment based only on 12. The amicus brief filed by the the alleged violation of the Equal Protection Independence Institute only addresses the merits Clause. ( See id. ¶¶ 47, 51, 58.) issue of what constitutes a republican form of government. (ECF No. 21–1.) The Independence 10. To the extent that the Impermissible Institute argues that, even if this case is Amendment claim can be construed as also justiciable, it should be dismissed on the merits. alleging violations of the Guarantee Clause and ( Id.) the Enabling Act, such allegations are already encompassed within the Guarantee Clause claim 13. The amicus brief filed by the three and the Enabling Act claim. Professors (the “ amici Professors”) only addresses the political question doctrine. (ECF 11. Those sections of the Colorado No. 61.) The amici Professors argue that this Constitution provide: action does not present non-justiciable political questions. ( Id.) • “The people of [Colorado] have the sole and exclusive right of governing themselves, as 14. As a technical matter, the Motion to a free, sovereign and independent state; and to Dismiss was filed in response to the Substitute alter and abolish their constitution and form of Complaint, not the Operative Complaint. government whenever they may deem it However, the Substitute Complaint and necessary to their safety and happiness, Operative Complaint are virtually identical, so provided, such change be not repugnant to the from a practical perspective the Motion to constitution of the United States.” Colo. Const., Dismiss is properly construed as moving to art. II, § 2. dismiss the Operative Complaint.
15. In Schlesinger, the Court stated,
• “All bills for raising revenue shall [T]he concept of justiciability, which originate in the house of representatives; but the expresses the jurisdictional limitations imposed senate may propose amendments, as in the case upon federal courts by the ‘case or controversy’ of other bills.” Id. art. V, § 31. requirement of Art. III, embodies both the standing and political question doctrines.... Each of these doctrines poses a distinct and separate • “The general appropriation bill shall limitation, so that either the absence of standing embrace nothing but appropriations for the or the presence of a political question suffices to expense of the executive, legislative and judicial prevent the power of the federal judiciary from departments of the state, state institutions, being invoked by the complaining party. The interest on the public debt and for public more sensitive and complex task of determining schools. All other appropriations shall be made whether a particular issue presents a political by separate bills, each embracing but one question causes courts ... to turn initially, subject.” Id. art. V, § 32. although not invariably, to the question of standing to sue.
• “The general assembly shall provide by law for an annual tax sufficient, with other 418 U.S. at 215, 94 S.Ct. 2925 (citations resources, to defray the estimated expenses of omitted). the state government for each fiscal year.” Id.art. 16. Notably, the Act specifically authorized X, § 2. Members of Congress to bring a legal action challenging the constitutionality of the Act. See
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–35 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
id. at 815–16, 117 S.Ct. 2312. As the Court in just because it was “widely shared” by 100 Raines pointed out, however, “Congress cannot Colorado General Assembly members. erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff 19. Notably, in Raines, the plaintiffs brought who would not otherwise have standing.” Id. at suit the day after the Line Item Veto Act was 820 n. 3, 117 S.Ct. 2312. Rather, “Congress' passed, see521 U.S. at 814, 117 S.Ct. 2312, and decision to grant a particular plaintiff the right to so did not even wait until the President had challenge an Act's constitutionality [only serves exercised his new powers under the Act. to] eliminate[ ] any prudential standing limitations.” Id.; see also Warth v. Seldin, 422 20. The cases cited by Defendant are U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 distinguishable. In Alaska Legislative Council v. (1975) (“Congress may grant an express right of Babbitt, 181 F.3d 1333 (D.C.Cir.1999), the court action to persons who would otherwise be barred applied Raines and denied standing to state by prudential standing rules.”). Raines, legislators challenging a federal statute that took therefore, dealt only with the issue of whether away the power of the Alaska Legislature to the plaintiffs there met the minimum control hunting and fishing on federal lands constitutional requirements for standing. within Alaska. At this early stage of these proceedings, this Court can without hesitation 17. The Twenty–Seventh Amendment distinguish the relatively narrow removal of the provides, “No law, varying the compensation for power over hunting and fishing on the portions the services of the Senators and Representatives, of land in Alaska owned by the federal shall take effect, until an election of government, as being of less civic import than Representatives shall have intervened.” U.S. the alleged wholesale removal of the Colorado Const. amend. XXVII. legislature's “core functions” of taxation and appropriation. 18. The Court's emphasis on the “widely dispersed” nature of the injury appears to be tied Defendant also unpersuasively likens this to the fact that it is an institutional injury. case to Daughtrey v. Carter, 584 F.2d 1050 Notably, though, in the Supreme Court's (D.C.Cir.1978). There, two legislators brought jurisprudence, this idea of a widely dispersed suit challenging the Executive Department's injury not being cognizable appears to have only alleged failure to enforce a law that the been consistently applied in the context of legislature had passed. The Court denied citizen or taxpayer suits. See, e.g., Warth, 422 standing on the ground that “[t]he failure or U.S. at 499, 95 S.Ct. 2197 (“[W]hen the asserted refusal of the executive branch to execute harm is a ‘generalized grievance’ shared in accomplished legislation does not affect the substantially equal measure by all or a large legal status of such legislation; nor does it class of citizens, that harm alone normally does invade, usurp, or infringe upon a Congressman's not warrant exercise of jurisdiction.”). power to make law. [citation omitted] Once a Importantly, the Supreme Court in Akins stated, bill becomes law, a Congressman's interest in its “Often the fact that an interest is abstract and the enforcement is shared by, and indistinguishable fact that it is widely shared go hand in hand. But from, that of any other member of the public.” their association is not invariable, and where a Id. at 1057. Here, however, the claim is that the harm is concrete, though widely shared, the power to legislate itself has been taken away. Court has found ‘injury in fact.’ ” 524 U.S. at 24, 118 S.Ct. 1777. Given that a sufficiently concrete injury can confer standing even if Also, as previously mentioned, in Schaffer, shared by all or a vast majority of Americans, a member of the House of Representatives this Court would be hard-pressed to deny alleged injuries based on a law being “personally standing if a sufficiently concrete injury existed, offensive and professionally harmful to him, as
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–36 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
well as damaging to his political position and his away the power of the Alaska Legislature to credibility among his constituency.” 240 F.3d at control hunting and fishing on federal lands 883. The Tenth Circuit denied standing, in part, within Alaska). on the conclusion that those asserted harms were “even more abstract” than those at issue in 25.See Planned Parenthood of Mid–Missouri Raines.Id. at 885. Here, however, the alleged & E. Kan., Inc. v. Ehlmann, 137 F.3d 573, 578 harm is significantly more concrete than that in n. 5 (8th Cir.1998) (“Justice Souter [in his Raines. concurring opinion in Raines ] cautioned against courts embroiling themselves in a political 21. It would be overly formalistic to deny interbranch controversy between the United standing on the ground that the Colorado States Congress and the President. [citation General Assembly has never unsuccessfully omitted] Federal courts should exercise this attempted to circumvent TABOR by, for same caution when, as in this case, there exists a example, passing a tax bill and attempting to political interbranch controversy between state coax the Governor's office to sign the bill into legislators and a state executive branch law without first submitting the bill to the voters concerning implementation of a bill.”). for approval, but ultimately being prevented from doing so by the Colorado Attorney 26.Raines declined to address appellants' General. alternative arguments that Coleman should be distinguished because “the separation-of-powers 22. As Defendant points out, however, concerns present in such suit were not present in numerous lower courts since Raines, in denying Coleman, and since any federalism concerns legislative standing, have placed great weight on were eliminated by the Kansas Supreme Court's the fact that what was being alleged was an decision to take jurisdiction over the case.” institutional injury common to all members of Raines, 521 U.S. at 824 n. 8, 117 S.Ct. 2312. the legislative body and/or one involving a mere loss of political power. See, e.g., Schaffer, 240 27. TABOR has only been modified since by F.3d at 885;Alaska Legislative Council, 181 Referendum C, which in no way affected the F.3d at 1336–38;Chenoweth v. Clinton, 181 F.3d limitation on the General Assembly's power to 112, 115–16 (D.C.Cir.1999); Kucinich v. increase tax rates or impose new taxes without Obama, 821 F.Supp.2d 110, 116–18 voter approval. (D.D.C.2011). 28.See also Kean v. Clark, 56 F.Supp.2d 23. Not surprisingly, for this reason most of 719, 727 (S.D.Miss.1999) (“The States and their these cases come out of the D.C. Circuit. officers are bound by obligations imposed by the Constitution and by federal statutes that comport 24. See also Harrington v. Bush, 553 F.2d with the constitutional design.... [Further,] it is 190, 204 n. 67 (D.C.Cir.1977) (“The major irrelevant that a statutory restriction is based distinguishing factor between Coleman and the upon a constitutional provision enacted by present case lies in the fact that the plaintiffs in petition. The voters may no more violate the Coleman were state legislators. A separation of United States Constitution by enacting a ballot powers issue arises as soon as the Coleman issue than the general assembly may by enacting holding is extended to United States legislators. legislation.”) (citations, quotation marks, If a federal court decides a case brought by a brackets, and ellipses omitted). United States legislator, it risks interfering with the proper affairs of a coequal branch.”). But see 29. Defendant cites Kucinich in support of Alaska Legislative Council, 181 F.3d at 1337–39 the argument that the Legislator–Plaintiffs do (applying Raines to deny standing to state not have standing here. (ECF No. 73, at 13, 15– legislators challenging a federal statute that took 16.) Indeed, the Kucinich decision also placed
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–37 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
great weight on the fact that what was alleged did not reach plaintiffs' main arguments, for it there was an institutional injury and that the concluded that this was a nonjusticiable issue.... legislator plaintiffs had not been authorized to Just as the Supreme Court has declined to bring suit on behalf of their respective legislative answer this difficult question, see New York ..., I bodies. 821 F.Supp.2d at 116–18. However, the would decline here. I would leave it to the fact that in Kucinich an internal legislative Supreme Court in the first instance to enter this remedy existed—and the fact that Kucinich constitutional thicket.”). placed so much importance on this fact—makes Kucinich distinguishable on that basis. Also, like Indeed, if possible, courts should “adhere to in Raines, separation-of-powers concerns existed [the] wise policy of avoiding the unnecessary in Kucinich, but do not exist here, further adjudication of difficult questions of distancing Kucinich from the issues presented by constitutional law.” See Town of Castle Rock, the instant dispute. Colo. v. Gonzales, 545 U.S. 748, 778, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005). This 30.See also U.S. Dep't of Labor v. Triplett, consideration, alone, would not warrant allowing 494 U.S. 715, 729, 110 S.Ct. 1428, 108 L.Ed.2d this case to proceed past the pleading stage into 701 (1990); Bowsher v. Synar, 478 U.S. 714, the burdensome discovery process. However, 721, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986); independent of this consideration, the Court Watt v. Energy Action Educ. Found., 454 U.S. concludes below that it is not appropriate to 151, 160, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981). dismiss this action as non-justiciable at this early stage of the proceedings. Given that the case will 31. Also citing Pacific States, 223 U.S. 118, proceed to the summary judgment stage, the 32 S.Ct. 224;Colegrove v. Green, 328 U.S. 549, Court notes that it may be able to resolve the 66 S.Ct. 1198, 90 L.Ed. 1432 (1946); Baker, 369 case on the merits at that stage, rather than U.S. 186, 82 S.Ct. 691; and City of Rome v. having to address this difficult constitutional United States, 446 U.S. 156, 100 S.Ct. 1548, 64 question. L.Ed.2d 119 (1980). 34. Indeed, both Plaintiffs and Defendant, 32. Notably, Baker held to be justiciable the and the amici Professors, conduct a thorough same type of claim—legislative review of the Baker tests. ( See ECF No. 18, 7– apportionment—that was at issue in Colegrove. 11; ECF No. 30, at 29–33; ECF No. 51, at 18– 24; ECF No. 61, at 12–16.) At the very least this 33. It is notable that many courts, like New suggests Defendant's agreement that, if there is York, Kelley, and Hanson, have resolved cases no per se rule of non-justiciability in political on the merits rather than having to resolve the question cases, and if Pacific States does not difficult question of whether any Guarantee govern, then the Baker tests should be applied. Clause claims are justiciable, and if some are, which types of claims. See, e.g., City of New 35. Some recent Supreme Court decisions York v. United States, 179 F.3d 29, 37 (2d have only identified the first two Baker tests in Cir.1999) (citing New York, and stating, “Even describing the test for whether the political assuming the justiciability of this [Guarantee question doctrine applies in a particular case, Clause] claim, [it lacks merit].”); United States suggesting the importance of the first two tests. v. Vazquez, 145 F.3d 74, 83 (2d Cir.1998) See Zivotofsky ex rel. Zivotofsky v. Clinton, ––– (same); Adams v. Clinton, 90 F.Supp.2d 27, 34 U.S. ––––, 132 S.Ct. 1421, 1427, 182 L.Ed.2d (D.D.C.2000) (same); see also State of Michigan 423 (2012) (“[A] controversy involves a v. United States, 40 F.3d 817, 837 (6th Cir.1994) political question where there is a textually (Guy, J., dissenting) (“I hesitate to reach the demonstrable constitutional commitment of the substantive question of the Guarantee Clause's issue to a coordinate political department; or a effect on federal taxation.... The district court lack of judicially discoverable and manageable
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–38 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
standards for resolving it.”) (quotation marks question because the interpretation of legislation and ellipses omitted); Clinton v. Jones, 520 U.S. is a recurring and accepted task for the federal 681, 700 n. 34, 117 S.Ct. 1636, 137 L.Ed.2d 945 courts.”) (quotation marks omitted). But see Ctr. (1997) (same); Nixon v. United States, 506 U.S. for Policy Analysis on Trade & Health (CPATH) 224, 228, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) v. Office of the U.S. Trade Representative, 540 (same). F.3d 940, 945 (9th Cir.2008) (“[I]t is a political question arising out of a statute that provides us 36.See generally United Steelworkers of Am. with no meaningful standards to apply.”). v. Or. Steel Mills, Inc., 322 F.3d 1222, 1229 (10th Cir.2003) (“Defendants ... outline what 39. Defendant also briefly argues that must be proven to ultimately succeed on the Plaintiffs “cannot use [the Equal Protection merits, and not what is required at the pleading claim] to turn their otherwise non-justiciable stage.”); Enriques v. Noffsinger Mfg. Co., Inc., question into a justiciable one.” (ECF No. 18, at 412 F.Supp.2d 1180, 1183 (D.Colo.2006) 19.) Because the Court has held that Plaintiffs (“[Defendant's] argument, while perhaps have standing and that the political question appropriate at the merits stage with the benefit doctrine does not bar this action, Plaintiffs' of discovery, is insufficient to dismiss the claim Equal Protection claim is not subject to at the pleading stage, where a plaintiff's well- dismissal on the ground of non-justiciability. pleaded allegations must be accepted as true.”). 40. Specifically, Plaintiffs make clear that 37.Pacific States did include an Enabling their Equal Protection claim is based on the Act claim. See223 U.S. at 139, 32 S.Ct. 224 premise that a voting majority has taken away (listing as an assignment of error, “The the minority's right to a republican form of provision in the Oregon Constitution for direct government. ( See ECF No. 36, ¶ 85 (“The legislation violates the provisions of the act of aforesaid violations of the requirement for a Congress admitting Oregon to the Union”). The Republican Form of Government deny to Court in Pacific States held that the Guarantee Plaintiffs and others similarly situated the Equal Clause claim and the Enabling Act claim, among Protection of the Laws....”); ECF No. 30, at 33 others, were to be resolved on the same basis: (“[The Equal Protection Clause prohibits] a “the propositions each and all proceed alone majority's efforts to impose an unconstitutional upon the theory that the adoption of the initiative law on a state's entire population.”); id. at 35 and referendum destroyed all government (“[Plaintiffs' Equal Protection claim] concerns a republican in form in Oregon.” Id. at 141, 32 minority's attempt to vindicate rights lost S.Ct. 224. through the will of the majority.”); id. at 35–36 (“The Equal Protection Clause [bars] a 38.See also Schiaffo v. Helstoski, 492 F.2d majority's attempt ... to place in its own hands 413, 419 (3d Cir.1974) (“[S]ince Congress has the critical functioning of the state seen fit to enact a statute granting the franking legislature.”).) privilege, we have considerable doubt whether the political question doctrine is applicable at 41. Although Plaintiffs have not made the all. We have found no case regarding the argument, it would not be appropriate to treat a application of a statute concerned solely with Colorado voter as similarly situated to a member domestic affairs and passed by Congress in of the General Assembly for purposes of equal which the political question doctrine has protection analysis. See Campbell, 203 F.3d at precluded Supreme Court review.”); El–Shifa 748 (“Citizens who propose legislation through Pharm. Indus. Co. v. U.S., 607 F.3d 836, 851 the initiative process and members of the general (D.C.Cir.2010) (Ginsburg, J., concurring) assembly who pass bills are not similarly (“Under Baker v. Carr a statutory case generally situated classes.... The legislative process and does not present a non-justiciable political the initiative process are so fundamentally
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–39 Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
different that we cannot read the Equal inmates incarcerated in Florida, have treated Protection Clause of the federal Constitution to other inmates in Florida differently than require the state to afford the same title setting Plaintiff. These Defendants are not responsible treatment to these two processes.”). for the conditions of confinement for other prisoners incarcerated in other states ....”) 42. In the Court's view, it would also not be (emphasis in original). appropriate in evaluating Plaintiffs' Equal Protection claim to consider how TABOR treats 43. Plaintiffs attempt to generalize the Colorado citizens differently than the citizens of holdings of the voter apportionment cases to other states. U.S. Const. amend. XIV, § 1 (“No stand for the propositions that the Equal State shall ... deny to any person within its Protection Clause does not allow a voting jurisdiction the equal protection of the laws.”) majority to “remake a state legislature,” to (emphasis added); see also Fetzer v. “compromise the fundamental operations” of the McDonough, No. 4:07cv464–WS, 2009 WL legislature, and to “manipulate their legislatures 3163147, at *7 (N.D.Fla. Sept. 29, 2009) to promote the interests of particular groups.” (“Plaintiff's argument that inmates in other states (ECF No. 30, at 33–34.) Such a reading of the are provided Kosher food does not show that voter apportionment cases is overly broad and these Defendants, who are responsible for unsupported.
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–40 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
176 Wash.2d 808 295 P.3d 743 LEAGUE OF EDUCATION VOTERS, a Washington non-profit corporation; Washington Education Association, a Washington non-profit corporation; Laurie Jinkins, an individual taxpayer and Washington State Representative; David Frockt, an individual taxpayer and Washington State Senator; Jamie Pedersen, an individual taxpayer and Washington State Representative; Robert Utter, an individual taxpayer and former Chief Justice of the Washington Supreme Court; Kim Bielski, an individual taxpayer; Andy Bunn, an individual taxpayer; Rebecca Bunn, an individual taxpayer; Reuven Carlyle, an individual taxpayer and Washington State Representative; John Chesbrough, an individual taxpayer; Deb Eddy, an individual taxpayer and Washington State Representative; Sam Hunt, an individual taxpayer and Washington State Representative; Amy McKenney, an individual taxpayer; Kurt Miller, an individual taxpayer and President of the Tacoma Public Schools Board of Directors; Jim Moeller, an individual taxpayer and Washington State Representative; Timm Ormsby, an individual taxpayer and Washington State Representative; Ryan Painter, an individual taxpayer; Eric Pettigrew, an individual taxpayer and Washington State Representative; Chris Reykdal, an individual taxpayer, Washington State Representative and Tumwater School Board Member; Cindy Ryu, an individual taxpayer and Washington State Representative; Mike Sells, an individual taxpayer and Washington State Representative; and Kristin Skanderup, an individual taxpayer, Respondents, v. STATE of Washington, Appellant. Christine Gregoire, in her official capacity as Governor of the State of Washington, Respondent. No. 87425–5. Supreme Court of Washington, En Banc. Argued Sept. 25, 2012. Decided Feb. 28, 2013.
Summaries: court's holding that one provisions were justiciable, and that justiciable provision, the Source: Justia supermajority requirement, violated Article II, section 22 of the state Constitution. However, The issue before the Supreme Court in this case the Court reversed the superior court's decision was a challenge to two provisions of the voter- that the referendum provision was justiciable. enacted RCW 43.135.034 (2011) (Initiative Accordingly, the Court made no determination 1053). The first provision required that any bill as to its constitutionality. containing tax increases be passed by a two- thirds majority vote of the legislature, and the second provision required that any tax bill increasing state spending above a prescribed limit be approved by the voters. The Court [295 P.3d 745] addressed only whether the challenges to the provisions were justiciable and whether they violated the Washington Constitution. A Maureen A. Hart, Attorney at Law, Jeffrey Todd superior court found both provisions justiciable Even, Office of The Attorney General, Olympia, but that the supermajority requirement and WA, Allyson Zipp, NYSERDA, Albany, NY, referendum requirement both violated the for Appellant. Constitution. The State appealed. Upon review, the Supreme Court affirmed in part, and Paul J. Lawrence, Matthew J. Segal, Sarah reversed in part. The Court affirmed the superior Christine Johnson, Gregory J. Wong, Pacifica
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–41 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
Law Group LLP, Michele G. Radosevich, Davis appealed, contending this dispute is Wright Tremaine LLP, Seattle, WA, for nonjusticiable and that both provisions of former Respondent. RCW 43.135.034 are constitutional.
¶ 2 We affirm the trial court in part and Kristopher Ian Tefft, Association of Washington reverse in part. We affirm the trial court's Business, Olympia, WA, amicus counsel for decision regarding the justiciability and the Association of Washington Business. constitutionality of the Supermajority Requirement. Article II, section 22 states that Michael J. Reitz, Attorney at Law, Saginaw “[n]o bill shall [176 Wash.2d 813]become a law Township, MI, amicus counsel for Freedom unless ... a majority of the members elected to Foundation. each house” vote in its favor. The plain language, Harry H. Schneider Jr., Nicholas Manheim, David A. Perez, Perkins Coie LLP, Seattle, WA, [295 P.3d 746] amicus counsel for League of Women Voters of Washington. constitutional history, and weight of persuasive authority support reading this provision as OWENS, J. setting both a minimum and a maximum voting requirement. Therefore, the Supermajority [176 Wash.2d 812]¶ 1 Before us is a Requirement violates article II, section 22 by constitutional challenge to two provisions of requiring certain legislation to receive a two- voter-enacted former RCW 43.135.034 (2011) thirds vote. However, we reverse the trial court's (Initiative 1053 (I–1053)). The first provision decision that the Referendum Requirement requires that any bill containing a tax increase be presents a justiciable controversy. Because the passed by a two-thirds majority vote of the Referendum Requirement is not justiciable, we legislature (Supermajority Requirement), and the make no determination as to its constitutionality. second provision requires that any tax bill increasing spending beyond the state spending STATEMENT OF FACTS limit be approved by the voters (Referendum ¶ 3 In 2010, voters passed I–1053, which is Requirement). At the outset, we note that our codified at former RCW 43.135.034. Laws of opinion does not reflect whether these 2011, ch. 1, § 2. Former RCW 43.135.034 was provisions embody sound policies. We agree another iteration of a long line of initiatives that with the dissenting justices that such judgment is have established two requirements for certain reserved for the people and the legislature. tax legislation: the Supermajority Requirement However, as Chief Justice John Marshall wrote, and the Referendum Requirement. “[I]f both the law and the constitution apply to a particular case, ... the court must determine ¶ 4 A rich litigious history surrounds both which of these conflicting rules governs the the Supermajority Requirement and the case.” Marbury v. Madison, 5 U.S. (1 Cranch) Referendum Requirement. These requirements 137, 177–78, 2 L.Ed. 60 (1803). We meet that were first imposed by Initiative 601 (I–601), task today by addressing only whether the which was approved by the voters in 1993. Laws challenges to the two provisions are justiciable of 1994, ch. 2. Before the initiative went into and whether the challenged provisions violate effect, a group of legislators, public advocacy the Washington Constitution. The King County groups, and citizens sought a writ of mandamus Superior Court found the challenge to both in this court ordering the legislature to prevent provisions justiciable and held that the I–601's implementation, claiming it was Supermajority Requirement violated article II, unconstitutional. Walker v. Munro, 124 Wash.2d section 22 and the Referendum Requirement 402, 406–07, 879 P.2d 920 (1994). The court violated article II, section 1(b). The State
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–42 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
dismissed the dispute, refusing to use mandamus ¶ 7 In July 2011, respondents—the League to compel legislative officers to perform of Education Voters (LEV), Washington discretionary acts or duties like determining Education Association (WEA), 12 individual whether I–601 applied to a particular bill. Id. at legislators, and numerous individual taxpayers 410, 879 P.2d 920. (hereinafter collectively referred to as “LEV” unless otherwise[176 Wash.2d 815]noted)— ¶ 5 I–601 remained in effect for several filed a complaint in King County Superior Court years until the legislature suspended it for two seeking a declaratory judgment that the years in 2005. [176 Wash.2d 814]Brown v. Supermajority Requirement and Referendum Owen, 165 Wash.2d 706, 713, 206 P.3d 310 Requirement violated article II, section 22 and 1 (2009). Then in 2007, voters passed Initiative article II, section 1(b) of the Washington 960 (I–960). Id. I–960, like I–601 before it, Constitution. LEV filed its complaint only after contained a Supermajority Requirement and a the attorney general refused to challenge the Referendum Requirement. Id. at 714, 206 P.3d constitutionality of former RCW 43.135.034. 310. I–960 spawned two separate cases. First, a group of challengers sought to prevent the [295 P.3d 747] secretary of state from even placing I–960 on the ballot. Futurewise v. Reed, 161 Wash.2d 407, ¶ 8 The parties filed cross motions for 408, 166 P.3d 708 (2007). This court dismissed summary judgment in January 2012, and the action as nonjusticiable because the dispute Governor Gregoire filed a brief requesting a did not fit the narrow requirements for decision on the merits, although she expressed challenging initiatives preelection. Id. at 415, no view on the merits of the dispute. After oral 166 P.3d 708. The second case arose argument, the trial court granted LEV's motion postenactment. There, a state senator sought a for summary judgment, holding that (1) the writ of mandamus in this court to force the dispute was justiciable; (2) the dispute senate president to forward a tax bill to the constituted a matter of great public importance; house of representatives that received only a (3) article II, section 22 prohibited the simple majority in the senate. Brown, 165 Supermajority Requirement; and (4) article II, Wash.2d at 711, 716, 206 P.3d 310. The court section 1(b) prohibited the Referendum again did not address the constitutionality of the Requirement. Supermajority Requirement because the case raised a nonjusticiable political question. Id. at ¶ 9 The State then appealed directly to this 727, 206 P.3d 310. court. We accepted direct review.
¶ 6 The legislature suspended I–960 after ISSUES two years, just as it had suspended I–601. Laws ¶ 10 1. Are the constitutional challenges to of 2010, ch. 4. Knowing such a suspension was the Supermajority Requirement and the a possibility, voters passed I–1053 in 2010, Referendum Requirement justiciable? which again contained the Supermajority Requirement and the Referendum Requirement ¶ 11 2. If justiciable, is the Supermajority and prevented the legislature from suspending Requirement constitutional under article II, the requirements for another two years. Sponsors section 22 and is the Referendum Requirement also filed Initiative 1185 (I–1185) for the 2012 constitutional under article II, section 1(b)? ballot, which again contained these two requirements. Laws of 2013, ch. 1. Voters ¶ 12 3. Is the Supermajority Requirement or passed I–1185. the Referendum Requirement severable from former RCW 43.135.034? PROCEDURAL HISTORY ANALYSISI. Justiciability
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–43 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
¶ 13 We must first determine whether controversy requirement, LEV points to the LEV's constitutional challenges to the failed passage of Substitute House Bill 2078, Supermajority Requirement and [176 Wash.2d 62d Leg., 1st Spec. Sess. (Wash. 2011) [176 816]the Referendum Requirement constitute Wash.2d 817](SHB 2078), as a concrete justiciable controversies. We conclude that the example of the Supermajority Requirement's Supermajority Requirement's constitutionality is impact. SHB 2078 would have funded a justiciable because the requirement has nullified reduction in kindergarten through third grade the legislator respondents' votes by preventing class sizes by closing tax loopholes. Closing tax the passage of tax legislation that received a loopholes constitutes a tax increase subject to simple majority vote. However, the the Supermajority Requirement. See former constitutionality of the Referendum RCW 43.135. 034(1), (6). As a result of Requirement is not justiciable given the triggering the Supermajority Requirement, SHB hypothetical nature of the claim and the lack of 2078 failed to pass the house even though it injury. received a simple majority of votes.
¶ 14 Under the Uniform Declaratory ¶ 16 In his dissent, Justice Charles Johnson Judgments Act (UDJA), chapter 7.24 RCW, claims that the “essence” of SHB 2078 was courts have the “power to declare rights, status passed in Engrossed Senate Bill 6635, 62d Leg., and other legal relations” by a declaratory 2d Spec. Sess. (Wash. 2012) (ESB 6635). judgment. RCW 7.24.010. Unless a dispute Dissent (C. Johnson, J.) at 3. While ESB 6635 involves “issues of major public importance, a certainly closed the same tax loophole justiciable controversy must exist before a court's jurisdiction may be invoked under the [295 P.3d 748] [UDJA].” Nollette v. Christianson, 115 Wash.2d 594, 598, 800 P.2d 359 (1990). A justiciable as SHB 2078, ESB 6635 differed substantially in controversy requires that it did not fund a reduction in school class sizes. Compare ESB 6635, with SHB 2078, at 4; “(1) ... an actual, present and existing Clerk's Papers (CP) at 672–94. Moreover, ESB dispute, or the mature seeds of one, as 6635 created four new tax loopholes, thus distinguished from a possible, dormant, reducing the overall revenue generated by the hypothetical, speculative, or moot disagreement, bill. Compare ESB 6635, at 4–44, with SHB (2) between parties having genuine and 2078; CP at 672–94. Accordingly, the dissent's opposing interests, (3) which involves interests claim that ESB 6635 contained the “essence” of that must be direct and substantial, rather than SHB 2078 is inaccurate. potential, theoretical, abstract or academic, and (4) a judicial determination of which will be ¶ 17 The failed passage of SHB 2078 final and conclusive.” satisfies the four elements of a justiciable controversy. The legislator respondents “have a To–Ro Trade Shows v. Collins, 144 Wash.2d plain, direct and adequate interest in maintaining 403, 411, 27 P.3d 1149 (2001) (alteration in the effectiveness of their votes.” Coleman v. original) (quoting Diversified Indus. Dev. Corp. Miller, 307 U.S. 433, 438, 59 S.Ct. 972, 83 3 v. Ripley, 82 Wash.2d 811, 815, 514 P.2d 137 L.Ed. 1385 (1939). The legislator respondents' (1973)).2 interest in maintaining the effectiveness of their votes was harmed by the Supermajority Requirement when a bill they voted for failed to pass despite receiving a simple majority. ¶ 15 Here, there is little question that the “[L]egislators whose votes would have been constitutionality of the Supermajority sufficient to defeat (or enact) a specific Requirement constitutes a justiciable legislative Act have standing to sue if that controversy. To satisfy the justiciable legislative action goes into effect (or does not go
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–44 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
into effect), [176 Wash.2d 818]on the ground stringent requirements for a preelection that their votes have been completely nullified.” challenge. 161 Wash.2d at 411–12, 166 P.3d Raines v. Byrd, 521 U.S. 811, 823, 117 S.Ct. 708. Consequently, the fact that we have been 2312, 138 L.Ed.2d 849 (1997).4 The specific unable to address the merits of the example of SHB 2078 moves the legislator Supermajority Requirement previously does not respondents' claim from the realm of abstract inform the current discussion. The diluted legislative power to the realm of actual Supermajority Requirement's constitutionality is vote nullification. Consequently, there is an properly before us. actual dispute between the State and LEV. Finally, neither party disputes that a ¶ 20 In contrast, LEV's challenge to the determination from this court will be final and Referendum Requirement is not justiciable. conclusive. Thus, the failed passage of SHB Unlike the Supermajority Requirement, the 2078 demonstrates that the Supermajority Referendum Requirement has not harmed any of Requirement's constitutionality presents a the respondents. The legislator respondents do justiciable controversy.5 not claim it has nullified
¶ 18 Further, we note that the State's [295 P.3d 749] position would effectively insulate the Supermajority Requirement from review. Under their votes, nor do any of the other respondents the State's theory, review would be proper only claim harm from the Referendum Requirement. if the legislature ignored the Supermajority Without identifying a legal interest at issue, let Requirement and passed a tax bill without a two- alone an injury to that interest, LEV cannot thirds majority vote. The State's position, establish a justiciable controversy. See To–Ro however, would require the legislature to ignore Trade Shows, 144 Wash.2d at 411–14, 27 P.3d the well-established principle that statutes are 1149. The circumstances surrounding the presumed constitutional, Island County v. State, Referendum Requirement have not changed 135 Wash.2d 141, 146, 955 P.2d 377 (1998). since we stated in Walker that addressing the Given that the legislator respondents cannot requirement is premature. 124 Wash.2d at 413, ignore the Supermajority Requirement without 879 P.2d 920. violating their obligation to uphold the laws of Perhaps the Legislature can comply with the state, the State's position would render the [the Supermajority Requirement], without taking Supermajority Requirement unreviewable and is action which will result in expenditures over the therefore unacceptable. expenditure limit, such that no referral to the ¶ 19 The State also argues that the court voters will occur under [the Referendum should dismiss this action as nonjusticiable Requirement].... The course of future events is, because it dismissed similar disputes in three at this time, purely speculative and subject to a prior decisions— Walker, Brown, and challenge when a specific dispute arises in Futurewise. This argument ignores the regard to a particular bill. fundamental procedural distinctions between Id. those cases and this one. Both Walker and Brown involved mandamus actions filed directly with this court, which differ greatly from the declaratory[176 Wash.2d 819]judgment action ¶ 21 Even though there is no identifiable filed in superior court in this case. See Walker, legal interest harmed by the Referendum 124 Wash.2d at 405, 879 P.2d 920;Brown, 165 Requirement or specific dispute, LEV believes Wash.2d at 711, 206 P.3d 310. And, in its challenge to the Referendum Requirement is Futurewise, the preelection challenge to an justiciable because this court declared a similar initiative's constitutionality at issue was provision unconstitutional in [176 Wash.2d nonjusticiable because it did not meet the 820]Amalgamated Transit Union Local 587 v.
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–45 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
State, 142 Wash.2d 183, 244, 11 P.3d 762, 27 821]question before us is whether article II, P.3d 608 (2000) ( ATU ). ATU, however, does section 22 prohibits the legislature from not inform the current discussion because requiring a two-thirds majority vote for tax justiciability was explicitly not considered in legislation. We conclude that it does. ATU. Id. at 203, 11 P.3d 762, 27 P.3d 608. The court refused to consider whether the dispute ¶ 24 Determining whether the constitution was justiciable because the party challenging prohibits a particular legislative action requires justiciability had failed to properly brief the the court to first examine the plain language of issue. Id. Granted, we noted in a footnote that the constitutional provision at issue. Wash. the claims in the case were justiciable, id. at 203 Water Jet Workers Ass'n v. Yarbrough, 151 n. 4, 11 P.3d 762, 27 P.3d 608, but the footnote Wash.2d 470, 477, 90 P.3d 42 (2004). The court was merely dicta. Justiciability was properly gives the words “their common and ordinary briefed in this case, and LEV's challenge to the meaning, as determined at the time they were Referendum Requirement is not justiciable drafted.” Id. (citing State ex rel. O'Connell v. because no legal interest has been identified. Slavin, 75 Wash.2d 554, 557, 452 P.2d 943 (1969)). The court may look to the constitutional ¶ 22 We also note that the Referendum history for context if there is ambiguity. Id. In Requirement does not constitute a matter of this particular case, the historical context major public importance warranting review necessarily includes other provisions adopted under these circumstances. For the public contemporaneously with article II, section 22. importance exception to apply, the dispute must be ripe, Walker, 124 Wash.2d at 414, 879 P.2d ¶ 25 The plain language of article II, 920, and, as discussed above, the Referendum section 22 states in relevant part, “No bill shall Requirement has never been triggered or become a law unless on its final passage ... otherwise affected any legal interests. Accordingly, the constitutionality of the [295 P.3d 750] Referendum Requirement is not properly before a majority of the members elected to each house this court. be recorded thereon as voting in its favor.” By II. Whether the Supermajority Requirement providing the words their ordinary meaning near Violates Article II, Section 22 the time of ratification, the provision essentially states that a bill cannot become a law upon any ¶ 23 The central question remaining before condition less than receiving more than half the us is whether former RCW 43.135.034(1), the vote. Webster's International Dictionary 1578 Supermajority Requirement, is constitutional. (1899) (defining “unless” as “[u]pon any less The party challenging a statute's condition than ...; if not”); id. at 885 (defining constitutionality “must prove that the statute is “majority” as “[t]he greater number; more than unconstitutional beyond a reasonable doubt.” half”). In other words, if a bill has become law, Sch. Dists.' Alliance for Adequate Funding of then it must have been supported by a simple Special Educ. v. State, 170 Wash.2d 599, 605, majority vote. 244 P.3d 1 (2010). This court has consistently stated that “ ‘the legislature's power to enact a ¶ 26 Under a commonsense understanding, statute is unrestrained except where, either any bill receiving a simple majority vote will expressly or by fair inference, it is prohibited by become law. No language in the provision the state and federal constitutions.’ ” Wash. State qualifies that requirement by stating a bill needs Farm Bureau Fed'n v. Gregoire, 162 Wash.2d “at least a majority vote.” The court's decision in 284, 300–01, 174 P.3d 1142 (2007) (alteration Gerberding v. Munro, 134 Wash.2d 188, 207– omitted) (quoting State ex rel. Citizens Against 11, 949 P.2d 1366 (1998), supports such a Tolls v. Murphy, 151 Wash.2d 226, 248, 88 P.3d reading. In Gerberding, this court rejected the 375 (2004)). Thus, the [176 Wash.2d argument that a negatively phrased
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–46 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
constitutional provision merely sets a minimum the framers never intended ordinary legislation requirement to which the legislature may add. to require a supermajority vote. Id. The court held that two [176 Wash.2d 822]constitutional provisions established the ¶ 29 This dispute also raises constitutional exclusive constitutional qualifications for state concerns not at issue in either Gerberding or constitutional officers. Id. Despite the Robb—the very form and function of this state's provisions' negative phrasing,6 the court held government. The language and history of the that the legislature could not impose additional constitution evince a principle favoring a simple requirements, such as term limits. Id. at 210, 949 majority vote for legislation. The State's P.2d 1366. In reaching its decision, the court proposed reading of article II, section 22 would relied on a principle favoring eligibility for fundamentally alter our system of government, office—a principle not evident from the plain and such alteration is possible only through language of the provision—and the framers' constitutional amendment. Washington's explicit consideration and rejection of term government was founded as a representative limits for the officers at issue. Id. at 202–04, democracy based on simple majority rule. 210, 949 P.2d 1366. SeeWash. Const. art. II, § 1 (orig. text) (“The legislative powers shall be vested in a senate and ¶ 27 Gerberding can be contrasted with house of representatives.”), art. II, § 22; Kristen Robb v. City of Tacoma, 175 Wash. 580, 587, 28 L. Fraser, Method, Procedure, Means, and P.2d 327 (1933), where the court allowed the Manner: Washington's Law of Law–Making, 39 legislature to add requirements to a negatively Gonz. L. Rev. 447, 449–50, 480 (2004) (noting phrased constitutional provision governing that a simple majority is “the number of votes municipal debt. Article VIII, section 6 provided, ordinarily required to pass a bill”). More “ ‘No [municipality] shall for any purpose importantly, the framers were particularly become indebted in any manner to an amount exceeding one and one-half per centum ... [295 P.3d 751] without the assent of three-fifths of the voters.... Provided further, that any [municipality], with concerned with a tyranny of the minority. Fraser, such assent, may be allowed to become indebted supra, at 449–50 (noting that the framers feared to a larger amount.’ ” Id. at 584, 28 P.2d 327 “special interests that might capture or corrupt (emphasis added) (quoting Wash. Const. art. public institutions”); see alsoRobert F. Utter & VIII, § 6). The court focused on the permissive Hugh D. Spitzer, The Washington State language in the final proviso and found it Constitution: A Reference Guide 51 (G. Alan “carrie[d] a very positive implication that the Tarr ed., 2002). legislature still has the power to fix an additional ¶ 30 This preference for simple majority limitation.” Id. at 587, 28 P.2d 327. rule is evident from the very language of the ¶ 28 The State primarily relies on the constitution, which required only a simple negative phrasing of article II, section 22, and majority vote for ordinary legislation and the reasoning in Robb, to claim the provision reserved a supermajority vote for special sets a minimum voting requirement only. Article circumstances. The seven supermajority II, section 22, however, is more like the requirements in the original constitution were all relegated to special circumstances, not the provision in Gerberding than the provision in 7 Robb. As in Gerberding, where a principle passage of ordinary legislation. These favored the result, there is an informal principle circumstances included expelling a member of here favoring a simple majority vote for ordinary the legislature or overriding [176 Wash.2d 824]a [176 Wash.2d 823]legislation. Additionally, like veto. Wash. Const. art. II, § 9, art. III, § 12. the constitutional history in Gerberding that Thus, the framers were aware of the significance supported the outcome, the constitutional that a supermajority vote requirement entailed language and history in this case illustrates that and consciously limited it to special
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–47 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
circumstances; the passage of ordinary Madison). In the same way, a supermajority legislation is not one of those. requirement for ordinary legislation would allow special interests to control resulting legislation. ¶ 31 When debating article II, section 22, While the current Supermajority Requirement the framers specifically included the majority applies only to tax increases, if carried to its vote requirement. The Journal of the logical conclusion, the State's argument could Washington State Constitutional Convention allow all legislation to be conditioned on a 1889: with Analytical Index 535–36 (Beverly supermajority vote. In other words, under the Paulik Rosenow ed., 1999). More to the point, State's reasoning, a simple majority of the the framers rejected a move to exclude the people or the legislature could require particular words “majority vote.” Id. at 536. They also bills to receive 90 percent approval rather than rejected a motion to allow a majority of those just a two-thirds approval, thus essentially present to pass a bill. Id. There was no ensuring that those types of bills would never discussion of whether the legislature should be pass. Such a result is antithetical to the notion of allowed to alter this requirement. Had the a functioning government and should be rejected framers wished to give the legislature the ability as such. Cf. ATU, 142 Wash.2d at 242, 11 P.3d to alter the majority vote requirement of article 762, 27 P.3d 608 (rejecting an argument because II, section 22, they could easily have included “[s]uch a result would be inconsistent with the the proviso “and under such rules as the representative form of government in this legislature shall prescribe” as the framers did in state”). article II, section 32. The existence of the proviso in article II, section 32—also framed in the negative—illustrates that the framers intended the provisions in article II to be ¶ 33 Finally, analogous authority from exhaustive unless otherwise provided. Any other other states supports reading article II, section reading would render the proviso in section 32 22 as establishing both a minimum and a superfluous, contrary to our canons of maximum vote requirement. Although the State constitutional interpretation. Wash. Econ. Dev. argues the court should not consider authority Fin. Auth. v. Grimm, 119 Wash.2d 738, 746, 837 from other states, we follow the precedent of P.2d 606 (1992) ( “constitutional provisions both Gerberding and Robb where the court should be construed so that no clause ... shall be looked to such authority before reaching its superfluous”). conclusion.
¶ 32 Moreover, as mentioned above, [295 P.3d 752] allowing a supermajority requirement for ordinary legislation alters our system of Gerberding, 134 Wash.2d at 206–08, 949 P.2d government. The framers of the United States 1366;Robb, 175 Wash. at 588–92, 28 P.2d 327. Constitution expressed as much in the Federalist ¶ 34 The most analogous case, Alaskans for papers: Efficient Government, Inc. v. State, held that a If a pertinacious minority can controul the negatively phrased constitutional provision opinion of a majority respecting the best mode prohibited the legislature from requiring more of conducting it; the majority in order that than a simple majority vote for bills. 153 P.3d something may be done, must conform to the 296, 299, 302 (Alaska 2007). The court noted views of the minority; and thus the sense of the that the negative phrasing of a constitutional smaller number will over-rule that of the greater. provision does not automatically warrant distinguishing it from positively phrased [176 Wash.2d 825]The Federalist No. 22, at 141 provisions. Id. at 300–01 (citing Powell v. (Alexander Hamilton) (Jacob E. Cooke ed., McCormack, 395 U.S. 486, 538–39, 89 S.Ct. 1961); accordThe Federalist No. 58 (James 1944, 23 L.Ed.2d 491 (1969); Gerberding, 134
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–48 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
Wash.2d at 201–03, 949 P.2d 1366;Cathcart v. addressed this issue. Accordingly, we affirm the Meyer, 2004 WY 49, 88 P.3d 1050, 1070–71). trial court's decision. The court also noted that every other state, [176 Wash.2d 826]except for Washington, that has [176 Wash.2d 827]III. Severability passed a supermajority vote requirement has done so through constitutional amendment, thus ¶ 37 Next, we must determine whether the indicating it is a subject properly addressed by unconstitutional Supermajority Requirement is constitutional amendment, not legislation. Id. at severable from the remaining provisions of 299–300 & n. 12 (listing 13 states that have former RCW 43.135.034. Whether provisions adopted supermajority requirements through should be severed depends on constitutional amendment). “whether the constitutional and ¶ 35 Additional support is found in a unconstitutional provisions are so connected ... California Court of Appeal case. The court held that it could not be believed that the legislature that a negatively phrased constitutional would have passed one without the other; or provision prevented local governments from where the part eliminated is so intimately requiring a two-thirds majority vote for local tax connected with the balance of the act as to make legislation. Howard Jarvis Taxpayers Ass'n v. it useless to accomplish the purposes of the City of San Diego, 120 Cal.App.4th 374, 392, 15 legislature.” Cal.Rptr.3d 457 (2004). Although the case State v. Abrams, 163 Wash.2d 277, 285–86, 178 involved local government authority, the court P.3d 1021 (2008) (alteration in original) still addressed whether a negatively phrased (internal quotation marks omitted) (quoting Hall constitutional provision could prohibit requiring v. Niemer, 97 Wash.2d 574, 582, 649 P.2d 98 more than simple majority vote for the passage (1982)). Because former RCW 43.135.034 was of certain legislation. The court concluded that passed by initiative, we must determine if the the “constitutional language clearly and voters, not the legislature, intended severability. unambiguously ... requires only a majority vote, See McGowan v. State, 148 Wash.2d 278, 296, and a two-thirds vote cannot be required.” Id. 60 P.3d 67 (2002).
¶ 36 Ultimately, article II, section 22 requires that bills receive a majority vote before they can become a law. Article II, section 22 is ¶ 38 Here, the complete text of I–1053 exhaustive under an ordinary reading of the contained a severability clause stating, “If any provision. The Supermajority Requirement provision of this act or its application to any unconstitutionally amends the constitution by person or circumstance is held invalid, the imposing a two-thirds vote requirement for tax remainder of the act or the application of the legislation. More importantly, the Supermajority provision to other persons or circumstances is Requirement substantially alters our system of not affected.” Laws of 2011, ch. 1, § 7. Where government, thus enabling a tyranny of the the initiative passed by the people contains a minority. The framers were aware of the severability clause, the court may view this as “ extraordinary nature of a supermajority ‘conclusive as to the circumstances asserted’ requirement as evidenced by their decision to unless it can be said that the declaration is use it only under special circumstances. The obviously false on its passage of ordinary legislation is not one of those circumstances. If the people and the [295 P.3d 753] legislature wish to adopt such a requirement, they must do so through constitutional face.” McGowan, 148 Wash.2d at 296, 60 P.3d amendment. We also note that our holding is 67 (quoting State v. Anderson, 81 Wash.2d 234, supported by other jurisdictions that have 239, 501 P.2d 184 (1972)). LEV claims it is obviously false because the intent of the
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–49 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
initiative was to impose both the Supermajority the Supermajority Requirement. But we reverse Requirement and the Referendum Requirement. the trial court's decision as it relates to the Referendum Requirement because we hold the ¶ 39 However, the fact that voters intended dispute is not justiciable. We [176 Wash.2d to impose both requirements is inconsequential. 829]therefore do not reach the merits of the Anytime a bill or initiative contains multiple Referendum Requirement's constitutionality. provisions, it can be [176 Wash.2d 828]argued that the legislators or voters intended to pass ¶ 41 Our holding today is not a judgment multiple provisions. Whether those provisions on the wisdom of requiring a supermajority for were intended to be severable is a different the passage of tax legislation. Such judgment is inquiry. More importantly, the voters intended left to the legislative branch of our government. the initiative to make passing tax increases more Should the people and the legislature still wish difficult. Laws of 2011, ch. 1, § 1 (“These to require a supermajority vote for tax important policies ensure that taking more of the legislation, they must do so through people's money will always be an absolute last constitutional amendment, not through resort.”). The Referendum Requirement hinders legislation. the legislature's ability to pass tax increases in a different way from the Supermajority WE CONCUR: MADSEN, C.J., Requirement. Thus, the Referendum CHAMBERS, J.P.T., FAIRHURST, Requirement serves the voters' intent even WIGGINS and GONZÁLEZ, JJ. absent the Supermajority Requirement. There is no reason to believe the voters passed the C. JOHNSON, J. (dissenting). Referendum Requirement only because it was accompanied by the Supermajority Requirement. ¶ 42 In its eagerness to embroil itself in the Consequently, the unconstitutional political arena, the majority abandons any Supermajority Requirement is severable from semblance of judicial restraint to declare the the remainder of the statute and the Referendum process of legislative enactment constitutionally Requirement stands. infirm. For the past two decades, the people of this state have repeatedly voted for the CONCLUSION supermajority provision, as has the legislature when no initiative occurred. The majority hardly ¶ 40 As Justice Robert F. Utter affirmed, recognizes, let alone analyzes, that this court has “Both history and uncontradicted authority make been repeatedly asked to step in and decide this clear that ‘ “[i]t is emphatically the province and issue, and we have consistently held and rejected duty of the judicial department to say what the that invitation. In Walker v. Munro, 124 law is.” ’ ” In re Salary of Juvenile Dir., 87 Wash.2d 402, 879 P.2d 920 (1994), in Wash.2d 232, 241, 552 P.2d 163 (1976) Futurewise v. Reed, 161 Wash.2d 407, 166 P.3d (alteration in original) (quoting United States v. 708 (2007), and again in Brown v. Owen, 165 Nixon, 418 U.S. 683, 703, 94 S.Ct. 3090, 41 Wash.2d 706, 206 P.3d 310 (2009), we rejected L.Ed.2d 1039 (1974) (quoting Marbury, 5 U.S. the invitation to engage in this political dispute, (1 Cranch) at 176)). Today we hold that article exercising the wisdom, restraint, and temperance II, section 22 prohibits either the people or the not to step outside the court's constitutional legislature from passing legislation requiring authority. Evidently something has changed, more than a simple majority for the passage of though the majority does not tell us what, to tax legislation—or any other ordinary cause it to abandon these limiting principles and legislation. Such a result is supported by article chart a new course for the court to more actively II, section 22's plain language and the language engage in the political process. This change is from surrounding provisions, section 22's both unwise and unprecedented. history, and current case law. Accordingly, we affirm the trial court's decision with respect to
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–50 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
¶ 43 The majority summarily claims that supports its conclusion that the political process since, procedurally, this case involves review in that enactment is constitutionally infirm.
[295 P.3d 754] ¶ 46 When this bill was first proposed, the house majority vote to enact SHB 2078 could of a declaratory judgment that makes a have resulted in several outcomes, as is always difference. But this procedural distinction[176 the political reality. The speaker could [176 Wash.2d 830]does not make sense and is Wash.2d 831]have ruled it passed, and it then unsupported by any logical analysis. would go to the senate, which could have passed Justiciability questions are broader and more it, rejected it, or revised it. If it passed both the important than the specific mechanism used to house and the senate and was submitted to the get a case in front of the court. Surely more than governor, it could have been signed into law or this distinction is required to disregard 20 years vetoed. No certainty exists as to what ultimately of precedent. The majority does not tell us why would have occurred in the political legislative in this case the issue must suddenly be answered process had the speaker ruled “favorably.” What when, in our prior cases, addressing this exact did happen in this case is that the “essence” of issue, we concluded that any resolution of the SHB 2078 went through the legislative process dispute required a legislative solution. Concepts and was later enacted as part of ESB 6635. The of judicial restraint, justiciability, and separation majority does not tell us or acknowledge in any of powers and issues raising political questions way how the passage of these provisions can do not change based on the type of proceeding. support a finding of justiciability based on the same provisions' failure to pass. At the very ¶ 44 Although these doctrines do somewhat least, that passage moots any dispute concerning overlap, they have been applied in those cases how votes were counted or how the speaker where the issue raised required a determination ruled on SHB 2078. of whether and when courts should decide an issue. These concepts of judicial restraint are not ¶ 47 The legislative process works new or remarkable and have been applied precisely this way, and any disgruntled legislator consistently in cases raising the exact same issue can pursue a legislative remedy. When the presented here. speaker ruled against the bill, a member could have challenged that decision and ask that it be ¶ 45 The majority anchors its cursory overturned, which may require majority vote. analysis of justiciability by focusing on The proposal could have, as here, resurfaced as Substitute House Bill (SHB) 2078's failure to part of a different proposal. The proposal might pass. Substitute H.B. 2078, 62d Leg., 1st Spec. have been relegated by its sponsors into the Sess. (Wash. 2011). However, the bill focused political process and debate and prioritized as on by the majority was later largely passed part of that process. The point is that this effort through the legislative process and enacted into to enact a legislative proposal has consistently law. SHB 2078 dealt with closing certain tax been recognized by this court as a political loopholes. The problem with the majority's legislative action, in which courts have not assertion is that a core component of SHB 2078 interfered, nor should they. Because of the did pass. The legislature instead enacted multitude of possible outcomes, the essence of Engrossed Senate Bill (ESB) 6635, 62d Leg., 2d the political legislative process involves many Spec. Sess. (Wash. 2012), which, in substantive competing political choices into which courts effect, contained the exact language of SHB should not intrude to act as referee. It should be 2078. Compare SHB 2078, § 2(3)(a)-(e), with further noted that the majority's decision does ESB 6635, § 102(3)(a)-(e). The majority does absolutely nothing that affects SHB 2078, not explain, presumably because no credible which, as indicated, later passed. explanation exists, how the enactment of a law
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–51 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
¶ 48 In leaping to its result that the case is assertion that a distinction exists) cites no case justiciable, the majority incredibly cites the or authority where such a difference was “completely nullified” statement from the recognized. No such cases exist. United States Supreme Court decision in Raines v. Byrd, 521 U.S. 811, 823, 117 S.Ct. 2312, 138 ¶ 50 If the issue in this case looks L.Ed.2d 849 (1997). Because the bill was somewhat familiar, we recently decided this enacted, the [176 Wash.2d 832]majority's claim exact issue. In Brown, we rejected a challenge to is simply wrong that the legislators' votes were “ a decision made by the lieutenant governor that ‘completely nullified.’ ” Majority at 748 a bill failed to pass by not receiving the required (quoting Raines, 521 U.S. at 823, 117 S.Ct. supermajority vote, which is the precise claim 2312). Moreover, the majority does not brought here. [176 Wash.2d 833]We extensively acknowledge discussed and analyzed the history of the supermajority requirement. In that case we [295 P.3d 755] recognized that, under the senate rules, the decision could have been overruled by a simple that in Raines the United States Supreme Court majority vote. We correctly found that this type rejected this argument. Raines involved a of dispute involved the legislative process and challenge brought by members of Congress was a political question and, utilizing a claiming the line-item veto, which gave the separation of powers analysis, we would not president a “veto-type” power over acts passed intervene to referee. We have consistently and by Congress, effectuated a complete wisely embraced this approach since this nullification of the votes supporting passage of supermajority restriction was first challenged in those acts. In concluding that the Court lacked Walker. The majority makes no meaningful jurisdiction to decide the dispute, it recognized attempt to discuss, analyze, or distinguish the two principles that directly apply to the Brown case or any of our prior case holdings individual legislators here. First, the Court found from the issue again raised here. that the individual members of Congress could not represent the interests of Congress itself. ¶ 51 In addition to the comprehensive Second, the court recognized that, as here, an discussion and analysis in Brown, our rulings adequate political remedy existed to resolve the have been consistent on this issue. The list of dispute, a principle which our cases have cases includes Walker and Washington State consistently held. Raines, 521 U.S. at 824, 829, Farm Bureau Federation v. Gregoire, 162 117 S.Ct. 2312;see Brown, 165 Wash.2d 706, Wash.2d 284, 174 P.3d 1142 (2007). These 206 P.3d 310;Walker, 124 Wash.2d 402, 879 cases are not unique but are instead consistent P.2d 920. The majority misrepresents the with the results in many other cases. State v. holding of Raines, which, if thoroughly Manussier, 129 Wash.2d 652, 670, 921 P.2d 473 reviewed, rejects the majority's position here. (1996) (political questions are not within the judicial power to determine); Roehl v. Pub. Util. ¶ 49 Similarly, the majority's claim that the Dist. No. 1 of Chelan County, 43 Wash.2d 214, determination of justiciability hinges on the 238, 261 P.2d 92 (1953) (political questions lie nature of the proceedings, declaratory action outside the cognizance of the judiciary); see also versus original jurisdiction, lacks foundation and Gilbreath v. Pac. Coast Coal & Oil Co., 75 misunderstands the concept of justiciability. Wash.2d 255, 259, 450 P.2d 173 (1969) “Justiciability” is defined as “[t]he quality or (taxation issues are not within the purview of the state of being appropriate or suitable for courts in the absence of an attack upon the adjudication by a court.” Black's Law Dictionary constitutionality of the legislation involved); 943 (9th ed. 2009). In determining justiciability, Skidmore v. Fuller, 59 Wash.2d 818, 822, 370 it makes no difference where or how a claim is P.2d 975 (1962) (the truth or falsity of the instituted. Our prior cases do not support any allegations in a recall demand is a political distinction, and the majority (absent the bare question to be determined by the voters); Capitol
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–52 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
Hill Methodist Church v. City of Seattle, 52 (quoting Diversified Indus. Dev. Corp., 82 Wash.2d 359, 368, 324 P.2d 1113 (1958) (the Wash.2d at 815, 514 P.2d 137). None of the power to vacate streets is a political function, factors are satisfied here. As indicated, the first which, in the absence of collusion, fraud, or factor is not satisfied because the dispute over interference with a vested right, will not be SHB 2078 no longer exists as it later passed judicially reviewed); State ex rel. Donohue v. under ESB 6635 and became law. Any current Coe, 49 Wash.2d 410, 417, 302 P.2d 202 (1956) dispute is hypothetical at this time and certainly (determination of questions arising incidental to moot as to SHB 2078. the submission of an initiative measure to the [176 Wash.2d 834]voters is a political and not a judicial question, except when there may be express statutory or written constitutional law ¶ 53 As to the second factor, perhaps an making the question judicial); State ex rel. York argument can be envisioned that the parties have v. Bd. of Comm'rs, 28 Wash.2d 891, 911, 184 opposing interests, but no genuine dispute P.2d 577 (1947) (protection of the public from actually exists concerning a current situation. unreasonable uses of the highways is a political Any disagreement between the parties involves question, not a judicial one). The majority never what [176 Wash.2d 835]might possibly occur in mentions the future in the legislative process. Because of this, even assuming the second factor is [295 P.3d 756] satisfied, the third factor is not because we can only speculate as to what bills may be pursued these cases or acknowledges why these holdings sometime in the future. Based on these factors, are being abandoned. justiciable controversy does not exist in this case. ¶ 52 The majority also fails to apply or meaningfully analyze the factors our cases ¶ 54 The fourth factor could be established require when determining justiciability. We have under the majority's holding but, predictably, the defined a “justiciability controversy” as future dispute over the raising of taxes and political choices about the appropriation of “(1) ... an actual, present and existing revenues involves ongoing political discourse, dispute, or the mature seeds of one, as which this court lacks power to affect or distinguished from a possible, dormant, influence. Under any approach, the dispute is, at hypothetical, speculative, or moot disagreement, best, possible to recur in the future. (2) between parties having genuine and opposing interests, (3) which involves interests ¶ 55 Whether the justiciability factors are that must be direct and substantial, rather than thoroughly analyzed or the holdings of our prior potential, theoretical, abstract or academic, and cases are applied and followed, this case is (4) a judicial determination of which will be nonjusticiable. The decision of the superior court final and conclusive.” should be reversed and the matter remanded with direction to dismiss. To–Ro Trade Shows v. Collins, 144 Wash.2d 403, 411, 27 P.3d 1149 (2001) (alteration in J.M. Johnson and Stephens, JJ., joined. original) (quoting Diversified Indus. Dev. Corp. J.M. JOHNSON, J. (dissenting). v. Ripley, 82 Wash.2d 811, 815, 514 P.2d 137 (1973)). We have elaborated that “the four ¶ 56 Article II of our constitution, as justiciability factors must ‘coalesce’ to ensure modified by Amendment 7 to authorize that the court will be rendering a final judgment initiatives and referenda, requires action on the on an actual dispute between opposing parties part of the legislature or a direct vote of the with a genuine stake in the resolution.” To–Ro people to resolve legislative political issues such Trade Shows, 144 Wash.2d at 411, 27 P.3d 1149 as taxation. The majority ironically overrides our
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–53 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
constitution and prior case law to enforce an bill attaining a simple majority shall become invented policy concern: the fear that laws law.” They choose not to and, as is further requiring a supermajority to raise taxes permit a explained below, were aware of other states' “tyranny of the minority.” Majority at 752. constitutional provisions in existence at the time There is, of course, no historical evidence that more clearly establish a simple majority justifying such a concern in Washington. With vote as a ceiling. Third, the majority's historical regard to taxation, the historical record in this analysis of article II, section 22 ignores the only state is to the contrary; taxes often need a special evidence this court has ruled admissible to show vote of the people to qualify or pass. School our framers' intent. This evidence conclusively levies and special assessments for [176 Wash.2d establishes that the framers intended this section 836]special purpose districts are only a few to create a quorum requirement for bill passage. examples.1See, e.g.,Const. art. VII, § 2(a) (excess levies require “three-fifths of the voters ¶ 59 This state's geographical size and the ... [and/or] the number of voters voting ‘yes' on slow means of travel available at that time could the proposition shall constitute three-fifths of a enable legislators from areas closer to the capitol number equal to forty percent of the total to meet and pass legislation before legislators number of voters voting in such taxing district at could arrive from areas located far away. Snow- the last preceding general election....”); Gordon clogged mountain passes were likely a common v. Lance, 403 U.S. 1, 7, 91 S.Ct. 1889, 29 source of this problem. Thus, adopting the L.Ed.2d 273 (1971) (upholding a supermajority simple majority language would not protect the requirement). citizens of this state living in remote areas. The framers had to adopt article II, section 22 as it is ¶ 57 There is considerable irony in today's currently written in order to secure a quorum decision given the majority's claimed fear of requirement and protect voters living in the far tyrannical minority control. Through a single corners of our state. See Proceedings of the Constitutional Convention, Seattle Times, Aug. [295 P.3d 757] 9, 1889, at 1, inWashington State Constitutional Convention 1889: Contemporary Newspaper decision, a court of nine people (actually only Articles (Marian Gallagher Law Library 1998) six votes) is imposing their policy preference (further discussed infra ). over that of the 1,575,655 voters who passed Initiative 1053 (I–1053) and the millions who [176 Wash.2d 838]ANALYSISI. The 2,3 qualified and passed similar tax protections. I Washington State Constitution First and regretfully observe that this court has become Foremost Serves to Protect Individual Rights the tyrannous minority it purports to guard and Private Property against. This violation of our constitution can only detract from public respect for this court ¶ 60 Incredibly, this six-vote majority and its decisions. I therefore dissent.4 overrides the votes of an overwhelming majority of Washington voters out of an invented concern ¶ 58 The majority opinion suffers from that laws like I–1053 could impose a “tyranny of three obvious and grave infirmities. First, the the minority.” Majority at 752. This policy majority's historical interpretation[176 Wash.2d concern is better directed at opposing a 837]of the Washington Constitution and its constitutional amendment that would establish a separation of powers incorrectly place the court permanent two-thirds majority requirement than in a position of preeminence over the legislature it is for a court decision overturning an initiative and the people. Second, the majority's plain that can be changed by the legislature or be language reading of article II, section 22 is periodically renewed by a majority of the voters. contrived and illogical. It will be repeatedly observed that our founders could have written ¶ 61 In the Federalist papers, the founding article II, section 22 to read as follows: “Every fathers of our nation briefly addressed their
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–54 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
desire to guard against minority control in a few ¶ 64 Even after the ratification of a specific policy areas. SeeThe Federalist No. 22, constitution especially designed to limit at 141–42 (Alexander Hamilton) government and promote individual rights, Washingtonians have felt the need to [295 P.3d 758] periodically reinforce popular control. Legislators (and courts) sometimes forget article (Jacob E. Cooke ed., 1961); The Federalist No. I, section I: it is the citizens of this state that 58, at 392 (James Madison) (Jacob E. Cooke ed., empower the legislature. The power is vested in 1961). The majority's myopic reliance on this the people. Consequently, in 1912, out of a narrow concern, however, is unfounded. concern that individual rights needed further ¶ 62 First, historical accounts indicate that protection from elected (and sometimes corrupt) the framers of the Washington Constitution had officials, Washingtonians passed Amendment 7, goals and anxieties distinct from those of the which established the power of initiative and framers of the United States Constitution. Above referendum. Passed concurrently, Amendment 8 allowed for the recall of all elected officers all, the Washington Constitution is predicated on 5 the protection of individual rights, including except judges. Utter & Spitzer,supra, at 50. To those related to property, which is clearly this day, the powers of initiative, referendum, affected by taxes. The framers declared the and recall vest in the people the ability to hold primacy of individual rights in their vision of the government accountable. The majority role of state government in the very first section essentially contends that because our nation's of the constitution: “All political power is founders expressed their concerns about inherent in the people, and governments derive minority control in a few areas of national their just powers from the consent of the concern, Washington's framers intended to keep governed, and are established to protect and Washington voters from limiting the power of maintain individual rights.” Const. art. I, § 1. A the legislature to tax. Given Washington's key component of that protection is the direct unique reliance on popular governance, the influence on state government the constitution majority's contention is unfounded. affords voters. Second, more so than any [176 Wash.2d 840]¶ 65 Historical records contrived “tyranny of the minority,” the framers reveal that the nation's founders' main fear was [176 Wash.2d 839]sought to prevent corruption that some states could gain disproportionate and special interests from controlling state power in Congress through bicameralism. government. Again, the framers and those who SeeThe Federalist No. 58, at 392 (James have drafted constitutional amendments 7 and 8 Madison) (Jacob E. Cooke ed., 1961). In thought that this was best accomplished by Federalist No. 22, quoted in the majority allowing the voters to have more of a direct say opinion, Alexander Hamilton expressed the in the management of their government, not less. additional concern that a minority of the states ¶ 63 Washington's framers forged a distinct might be able to prevent the nation from making path predicated on mistrust of government and peace during wartime. The Federalist No. 22, at the primacy of individual rights. The citizens of 141–42 (Alexander Hamilton) (Jacob E. Cooke Washington were not alone in these views ed., 1961). Fortunately, history has proved these toward government. The Washington concerns to be overstated. Indeed, this has never Constitution was adopted during a period of been a problem. Certainly, these particular national skepticism toward legislative bodies national issues were irrelevant to the framers of collectively referred to as “populis[m].” Robert our state constitution. Washington's framers did F. Utter & Hugh D. Spitzer, The Washington not have to consider national security or State Constitution: A Reference Guide 50–51 congressional decision making when designing (2002). Washington's government. Washington's framers instead faced more pressing local and personal
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–55 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
issues relating to private property, individual The apportionment of taxes on the various rights, and corruption in government. descriptions of property, is an act which seems to require the most exact impartiality; yet, there ¶ 66 In fact, the prospect of a tyranny (or is perhaps no legislative act in which greater corruption) of the majority was a far more opportunity and temptation are given to a pressing concern for drafters of a state predominant party, to trample on the rules of constitution. While the United States justice. Every shilling with which they over- Constitution burden the inferior number, is a shilling saved to their own pockets. [295 P.3d 759] The Federalist No. 10, at 60 (James Madison) was created to grant limited and enumerated (Jacob E. Cooke ed., 1961). This idea was powers to the federal government, the echoed by Chief Justice John Marshall when he Washington State Constitution was created to penned the axiomatic words “the power to tax limit the broader, nearly plenary, police power involves the power to destroy.” McCulloch v. of the state. Utter & Spitzer,supra, at 2. In 1889, Maryland, 17 U.S. (4 Wheat.) 316, 431, 4 L.Ed. the framers were justifiably worried that a 579 (1819). legislature would harm minority groups through abuse of its power. The historical record is replete with criticism in this vein. See, e.g., Lebbeus J. Knapp, The Origin of the ¶ 69 The majority correctly notes that Constitution of the State of Washington, 4 Wash. Washington's framers were familiar with Hist. Q.. 227, 250 (1913) (“These restrictions on supermajority requirements and specifically legislative action then, we may conclude, are employed their use seven times in the indicative of the onward march of true constitution. See majority at 751 n. 7. Absolutely democracy, for, of all oppressive and unjust no evidence exists, however, to suggest that the instruments of government the legislature is the framers intended those [176 Wash.2d 842]uses greatest and most irresponsible.”) A to be exclusive. There is certainly no supermajority requirement for the passage of constitutional provision to that effect. legislation is [176 Wash.2d 841]a powerful tool for combating abuse by a short-term majority ¶ 70 In Federalist No. 51, James Madison and addresses the concerns of the framers.6 wrote, “In framing a government which is to be administered by men over men, the great ¶ 67 Furthermore, providing such difficulty lies in this: you must first enable the protection against taxation is affirmed in express government to controul the governed; and in the United States Supreme Court precedent. See next place, oblige it to controul itself.” The Gordon, 403 U.S. at 7, 91 S.Ct. 1889 (holding Federalist No. 51, at 349 (James Madison) that state constitutional requirement of 60 (Jacob E. Cooke ed., 1961). Through the percent of voters to approve bonded initiative process, the voters of this state placed a indebtedness and approve the tax increase to pay limitation on the legislature's power to tax, for the debt did not violate equal protection even which fully accords with our state constitution. though each vote who favored taxes would have This court's interference today unlawfully a proportionately smaller impact on the outcome invalidates a legitimate action of the people of of the election than those opposed).7 this state under the initiative power. SeeConst. art. II, § 1 (“[T]he people reserve to themselves ¶ 68 In Federalist No. 10, James Madison the power to propose bills, laws, and to enact or directly noted that taxation is a tempting tool for reject the same at the polls, independent of the a majority to use in its abuse of a minority: legislature, and also reserve power, at their own option, to approve or reject at the polls any act,
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–56 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
item, section, or part of any bill, act, or law necessary to pass every bill or joint resolution; passed by the legislature.”) and all bills and joint resolutions so passed, shall be signed by the Presiding Officers of the II. The Plain Language of Article II, Section respective Houses.” This language has not been 22 Allows the People to Institute Supermajority amended and remains in Indiana's constitution Requirements Through Initiative today.
¶ 71 The majority would rewrite the plain ¶ 74 Indiana's article IV, section 25 stands language of article II, section 22 to mean in stark contrast to Washington's article II, sections 22 and 32, which read, “No bill shall [295 P.3d 760] become a law unless ... a majority of the that “any bill receiving a simple majority vote members elected to each house be recorded will become law.” Majority at 750. This reading thereon as voting in its favor [and][n]o bill shall defies logic and assumes the framers were become a law until the same shall have been incapable of expressing themselves clearly. signed by the presiding officer of each of the two houses.” Const. art. II, §§ 22, 32.8 ¶ 72 Article II, section 22 reads, “No bill Washington's language, worded in the negative, shall become a law unless ... a majority of the describes only the circumstances under which a members elected to each house be recorded bill will not become a law. These include not thereon as voting in its favor.” Const. art. II, § gaining a majority vote and not being signed by 22. This section establishes the principle that the presiding officers. In contrast, Indiana's any vote less than a majority is not enough to positively worded provision provides that all pass a bill. Put another way, this language bills gaining a majority shall be signed by the describes the circumstances under which a bill presiding officers. Having derived 7 sections does not pass. The likely frequent problem of directly from the Indiana Constitution and delay in arriving from across the state for the creating 10 others with marked similarities, the legislative sessions was anticipated. Snow- Washington framers could have [176 Wash.2d blocked passes were common, travel [176 844]written a positively worded provision Wash.2d 843]was hard and slow, and the likely similar to Indiana's article IV, section 25. See impact fell directly on legislators from eastern Beardsley, supra, at 387. They did not by Washington. choice. We must presume that the words were deliberately chosen by the framers to effectuate ¶ 73 Had the framers wished to require only their desired goals. The voters read and ratified a simple majority vote for passage, they could what was written. have worded the section to accomplish this. Wording as simple as “Every bill attaining a ¶ 75 Importantly, the majority makes simple majority shall become a law” would have another logical error in order to reach their sufficed. In fact, the framers could have modeled rewrite of article II, section 22. They explain, such a simple provision after a number of other “In other words, if a bill has become law, then it states' constitutions in existence at that time. must have been supported by a simple majority Notably, Washington's framers drew from the vote.” Majority at 750. The next sentence reads, Indiana Constitution, which contains a provision “Under a commonsense understanding, any bill much more akin to a voting floor and ceiling receiving a simple majority vote will become than does our constitution. See Arthur S. law.” Id. These two sentences present a textbook Beardsley, Sources of the Washington State example of a logical fallacy: they confuse Constitution, in 2011–2012 Legislative Manual necessary and sufficient conditions. The 386. Article IV, section 25 of Indiana's 1851 majority is correct, a simple majority is constitution reads: “A majority of all the necessary for the passage of a bill. However, the members elected to each House, shall be majority is wrong when it contends that just because a simple majority is necessary, it is also
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–57 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
always sufficient. The majority has obviously supermajority requirements. See Proceedings of forgotten abstentions or “present” votes. the Constitutional Convention,Seattle Times, Furthermore, the confusion of necessary and Aug. 9, 1889, at 1. The proceedings of sufficient conditions defies basic rules of logic Washington's constitutional convention were and provides support for the majority to recorded. The members of the convention misinterpret the plain language of article II, recorded summaries of motions and votes in the section 22 as written by its founders and ratified “Minutes of Proceedings.” Court reporters did by the state. See majority at 749. take shorthand notes but no appropriation covered the cost of transcribing the shorthand ¶ 76 The legislature has itself relied upon notes and they were destroyed. The Journal of the plain language of article II, section 22 to the Washington State Constitutional Convention affirm supermajority requirements and has 1889: With Analytical Index, at vi-vii (Beverly specifically done so with regard to taxes. Paulik Rosenow ed., 1999).
[295 P.3d 761] ¶ 78 We have previously recognized, in the absence of transcripts, we must rely on the For example, Initiative 601 (I–601), originally proceedings of the convention as recorded in enacted in 1993, which created a two-thirds newspaper articles published at the time. supermajority requirement for raising taxes, was Fortunately, these articles remain as an codified at chapter 43.135 RCW (the Taxpayer important tool to ascertain the intent of the Protection Act or TPA). See Brown v. Owen, framers. See Witters v. Comm'n for the Blind, 165 Wash.2d 706, 712, 206 P.3d 310 (2009). 112 Wash.2d 363, 385, 771 P.2d 1119 (1989) Since then, “ ‘[t]he TPA has been revised, (“[T]his court has used contemporary amended, and reenacted many times.’ ” Id. at newspapers' accounts of the state constitutional 713, 206 P.3d 310 (quoting Wash. State Farm convention to supplement the official minutes Bureau Fed'n v. Gregoire, 162 Wash.2d 284, since no verbatim record of the convention 292, 174 P.3d 1142 (2007)). The legislature exists.” (citing Yelle v. Bishop, 55 Wash.2d 286, “reenacted and reaffirmed” Initiative 601 (I– 293, 347 P.2d 1081 (1959))). 601) in 1998. Laws of 1998, ch. 321, § 14. The legislature later strengthened portions of the ¶ 79 The minutes of the convention indicate TPA, again reenacting [176 Wash.2d 845]and that there were two relevant motions concerning reaffirming it before finally temporarily article II, section 22: suspending some of its requirements. Brown, 165 Wash.2d at 713, 206 P.3d 310. The [176 Wash.2d 846]Motion: Turner moved majority's holding today implies that the history that the words “majority vote” be [ ] stricken. of the TPA shows frequent unconstitutional legislative action. Unlike the majority, I presume Action: Motion lost. that the legislators have acted in accordance with their oaths of office to uphold the state Motion: Power moved to insert a provision constitution. Given the plain language of article that a majority of those present could pass a bill. II, section 22, I am confident in this conclusion. Action: Motion lost.
III. The History Surrounding Article II, The Journal of the Washington State Section 22 Shows that the Section Simply Constitutional Convention 1889, supra, at 536. Establishes a Quorum Requirement These motions and rulings were published in ¶ 77 The majority opinion disregards both the Seattle Times and the Tacoma Ledger. historical evidence that clearly establishes that the framers intended to create a quorum requirement, not prospectively prevent
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–58 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
¶ 80 The Seattle Times article from August consider historical evidence that establishes that 9, 1889, describes the first motion: “Turner the provision simply sets out a quorum moved to strike out the provision that a majority requirement. The supermajority requirement vote of the members elected be necessary to pass created by I–1053 in no way violates our state a bill. The motion was lost and the section constitution. passed.” Proceedings of the Constitutional Convention,Seattle Times, Aug. 9, 1889, at 1. ¶ 84 If the history of this great state can This article provides a key piece of information teach us anything, it is this: the power of the that is otherwise left out of the minutes: namely, people will prevail. If the legislature passes a tax that the debate surrounding article II, section 22 the people oppose, the people will find a way to was whether the majority of the members elected repeal it. That “way” may include throwing out could pass a bill, as opposed to simply the legislators or using other article II remedies. In majority of members present. an even more commanding exercise of their power, the people may choose to enact a ¶ 81 This is further supported by the second constitutional amendment requiring a motion, to insert a provision that a majority of supermajority to pass taxes. The changes in the those present could pass a bill. This motion also way our state values property and limits levies failed, and the article II, section 22 controlling followed a similar history. Consistent with the today was enacted. When read in this light, spirit and history of our Washington article II, section 22 is clearly and unequivocally Constitution, I am sure democracy will carry the a quorum requirement. day; the voters will not be denied their rights.
¶ 82 That article II, section 22 is a quorum ¶ 85 The framers of our constitution, and requirement is understandable given the the electors who ratified it and then added the historical context within which the framers were initiative and referendum as additional ways for the people to control the legislature, would be [295 P.3d 762] appalled by this court's blatant rewrite of our constitution. I agree with our framers and the operating. As I noted before, in 1889, the state voters who ratified article II, section 22, and was still relatively undeveloped, rendering travel therefore dissent.9 difficult and unexpected delays not uncommon—storm- or snow-closed passes have [176 Wash.2d 848]Appendix A been noted supra. The framers did not want legislators from areas closer to the capitol to be +------able to pass legislation in the absence of ------+ legislators traveling from areas farther away. ¦Washington State Supermajority Because the debate surrounding article II, Initiative Statistics ¦ section 22 related to a quorum requirement, [176 Wash.2d 847]no evidence exists to support the +------majority's conclusion that the framers intended ------+ to prevent the institution of a supermajority +------requirement. ------+
Conclusion ¦Initiative ¦Year ¦Votes for ¦Votes against ¦Pass or Fail ¦ ¶ 83 The majority disregards the +------+------+------+------importance of individual rights as the ------+------¦ centerpiece for the state constitution and our populist roots; illogically construes the plain ¦I–1185 10 ¦2012 ¦1,892,969 language of article II, section 22; and fails to ¦1,069,083 ¦Pass ¦
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–59 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
+------+------+------+------shall be eligible to hold any state office.” Wash. ------+------¦ Const. art. II, § 7 (emphasis added), art. III, § 25 (emphasis added). ¦ ¦ ¦(51.21%) ¦(48.79%) ¦ ¦ 7.Wash. Const. art. II, §§ 9, 36, art. III, § +------12, art. IV, § 9, art. V, § 1, art. XXIII, §§ 1, 2. ------+ 1. The United States Supreme Court's decision upholding the “supermajority” requirements is discussed infra. ------2. I–1053 passed in 2010 with 1,575,655 Notes: (63.75%) votes for and 895,833 (36.25%) votes against. November 02, 2010 General Election 1. The legislature is ordinarily required to Results: Initiative Measure 1053 Concerning tax wait at least two years before amending any and fee increases imposed by state initiative unless two-thirds of the legislature government,Washington Secretary St. (Nov. 29, approves amending the initiative sooner. Wash. 2010 9:49 AM), http:// vote. wa. gov/ results/ Const. art. II, § 41. 20101102/ Initiative– Measure– 1053– Concerning– tax– and– fee– increases– 2. As with any discussion of justiciability, imposed– by– state– government. html; see also some of the concepts discussed are similar in infra App. A. nature to a discussion of standing. See Amalgamated Transit Union Local 587 v. State, 3. This court is also imposing its agenda 142 Wash.2d 183, 203, 11 P.3d 762, 27 P.3d over that of the 1,892,969 voters who passed 608 (2000). Initiative 1185 in 2012. November 06, 2010 General Election Results: Initiative Measure 3. As the legislator respondents may 1185 Concerning tax and fee increases imposed properly bring this dispute, we need not consider by state government,Washington Secretary St. whether the other respondents may as well. See (Nov. 27, 2012 4:55 PM), http:// vote. wa. gov/ Bowsher v. Synar, 478 U.S. 714, 721, 106 S.Ct. results/ 20121106/ Initiative– Measure– No– 3181, 92 L.Ed.2d 583 (1986) (reasoning that the 1185– Concernstax– and– fee– increases– presence of one party with standing satisfies the imposed– by– state– government. html. After its jurisdictional requirement). initial adoption in 1993, each time the supermajority requirement has been put before 4. Because SHB 2078 and ESB 6635 are the voters it has passed by a higher percentage of substantially different bills, the factual basis for the vote than the last time. See infra App. A. Justice C. Johnson's analysis of Raines is 4. inapposite. I also join in senior Justice C. Johnson's dissent, which correctly analyzes the jurisdiction 5. Having concluded that the dispute is of this court and the many cases in which we justiciable, we decline to address whether the have held partisan political matters are charged dispute constitutes a matter of great public to the legislature, the elected governor, and the importance warranting review. people, not to the courts.
5. 6. The provisions stated, “ No person shall Raising one obvious and simple solution, be eligible to the legislature who shall not be a if the people decide that their judges are citizen of the United States and a qualified voter disregarding their constitution, recall should in the district for which he is chosen” and “ No apply to judges as well. person, except a citizen of the United States ...
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–60 Chapter 1C—Developments in State Constitutionalism—Three Cases
League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
6. I feel compelled to again point out that it 2012 4:55 PM), http:// vote. wa. gov/ results/ 2 is a majority of the voters who have imposed 0121106/Initiative– Measure– No– 1185– this limitation on the legislature's power. Concerns– tax– and– fee– increases– imposed– by– state– government. html. 7. I–1053's supermajority requirement is not without precedent at the federal level. United +------States Senate rules permit filibuster by allowing ------+ senators to speak as long as they wish unless a ¦ ¦ ¦(63.75%) ¦(36.25%) three-fifths vote closes the debate by invoking ¦ ¦ cloture. Standing Rules of the Senate Rule XXII, § 2. +------+-----+------+------+------¦ 8. It is not clear how the court's majority 12 ¦I–960 ¦2007 ¦816,792 ¦777,125 deals with abstention in a close vote. ¦Pass ¦
9. I also vehemently agree with Justice C. +------Johnson's scholarly jurisdictional and historical ------+ analysis opposing the majority and have signed that opinion. 12. 10. November 06, 2007 General Election November 02, 2010 General Election Results: Initiative Measure 960 Concerns tax Results: Initiative Measure 1053 Concerning tax and fee increases imposed by state and fee increases imposed by state government,Washington Secretary St. (Nov. 29, government,Washington Secretary St. (Nov. 29, 2007 4:08 PM), http:// vote. wa. gov/ results/ 2 2010 9:49 AM), http:// vote. wa. gov/ results/ 2 0071106/Initiative– Measure– 960– concerns– 0101102/Initiative– Measure– 1053– tax– and– fee– increases– imposed– by– state– Concerning– tax– and– fee– increases– government. html. imposed– by– state– government. html. +------+------+ ------+ ¦ ¦ ¦(51.24%) ¦(48.76%) ¦ ¦ ¦(63.91%) ¦ ¦ ¦(36.09%) ¦ ¦ +------+-----+------+------+------+------+------+------+------¦ ------+------¦ 13 11 ¦I–601 ¦1993 ¦774,342 ¦737,735 ¦I–1053 ¦2010 ¦1,575,655 ¦895,833 ¦Pass ¦ ¦Pass ¦ +------+------+ ------+
13. 11. November 1993 General,Washington November 06, 2010 General Election Secretary St., http:// www. sos. wa. gov/ Results: Initiative Measure 1185 Concerning tax elections/ results—report. aspx? e= 22& c=& c and fee increases imposed by state 2=& t=& t 2= 5& p =& p 2=& y= (last visited government,Washington Secretary St. (Nov. 27, Feb. 25, 2013).
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–61 Chapter 1C—Developments in State Constitutionalism—Three Cases
The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–62 Chapter 1C—Developments in State Constitutionalism—Three Cases
SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT,
David Friedman, J.P. Dianne T. Renwick Rosalyn H. Richter Paul G. Feinman, JJ.
10508 Index 653584/12 ______x
In re New York Statewide Coalition of Hispanic Chambers of Commerce, et al., Petitioners-Respondents,
-against-
The New York City Department of Health and Mental Hygiene, et al., Respondents-Appellants. - - - - - The National Alliance for Hispanic Health, The National Congress of Black Women, Inc., The New York Chapter of the National Association of Hispanic Nurses, Maya Rockeymoore, Ph.D., Montefiore Medical Center, The Mount Sinai Medical Center, The New York State American Academy of Pediatrics, District II, The Children’s Aid Society, Prevention Institute, The California Endowment, Shape Up America!, Dr. Walter Willett, Comunilife, United Puerto Rican Organization of Sunset Park, The Harlem Health Promotion Center, The Association of Black Cardiologists, Inc., The National Association of Local Boards of Health, The American Public Health Association, The National Association of County and City Health Officials, The Public Health Association of New York City, ChangeLab Solutions, The Public Health Law Center, The Health Officers Association of California, Jennifer Pomeranz of the Rudd Center for Food Policy at Yale University, Prof. Lawrence
The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–63 Chapter 1C—Developments in State Constitutionalism—Three Cases
O. Gostin of the O’Neill Institute for National and Global Health Law at Georgetown University, Prof. Peter D. Jacobson, Prof. Lindsay F. Wiley, Prof. Wendy E. Parmet, Prof. Lance Gable, Prof. Micah L. Berman, The New York State Conference of the National Association for the Advancement of Colored People, The Hispanic Federation, The U.S. Hispanic Chamber of Commerce, The Mexican American Grocers Association, New York City Council Members Maria del Carmen Arroyo, Charles Barron, Fernando Cabrera, Leroy G. Comrie, Jr., Julissa Ferreras, Helen D. Foster, Daniel R. Garodnick, Vincent J. Gentile, Robert Jackson, Letitia James, Peter Koo, Oliver Koppell, Karen Koslowitz, Melissa Mark-Viverito, Darlene Mealy, Rosie Mendez, Michael C. Nelson, Annabel Palma, Diana Reyna, Donavan Richards, Ydanis Rodriguez, Deborah Rose and Mark Weprin, The Business Council of New York State, Inc., The Bodega Association of the United States, The New York City Hospitality Alliance, The National Supermarket Association, The Food Industry Alliance of New York State, Inc., The Chamber of Commerce of the United States of America, National Black Chamber of Commerce, National Federation of Independent Business, National Association of Manufacturers, Greater Harlem Chamber of Commerce, Staten Island Chamber of Commerce, Manhattan Chamber of Commerce, and New York Association of Convenience Stores and The Street Vendor Project, amici curiae. ______x
Respondents appeal from the order of the Supreme Court, New York County (Milton A. Tingling, J.), entered March 11, 2013, which, inter alia, granted the petition and declared invalid respondent New York City Board of Health’s amendment to New York City Health Code § 81.53 barring the sale of sugary drinks in a cup or container able to contain more than 16 fluid ounces, and enjoined respondents from implementing or enforcing it.
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–64 Chapter 1C—Developments in State Constitutionalism—Three Cases
Michael A. Cardozo, Corporation Counsel, New York (Fay Ng, Leonard J. Koerner, Pamela Seider Dolgow, Mark Muschenheim and Jasmine M. Georges of counsel), for appellants.
Latham & Watkins, LLP, Washington DC (Richard P. Bress of the bar of the District of Columbia, admitted pro hac vice, of counsel), for respondents, and James E. Brandt, New York, for The American Beverage Association, respondent.
Weil, Gotshal & Manges LLP, New York (James W. Quinn, Salvatore A. Romanello and Gregory Silbert of counsel), for The National Restaurant Association, respondent.
Mololamken LLP, New York (Steven F. Molo and Ben Quarmby of counsel), for The New York Statewide Coalition of Hispanic Chambers of Commerce and The New York Korean-American Grocers Association, respondents.
Rivkin Radler, LLP, Uniondale (Evan H. Krinick, Barry I. Levy and Brian L. Bank of counsel), for Soft Drink and Brewery Workers Union, Local 812, International Brotherhood of Teamsters, respondent.
Reese Richman LLP, New York (Kim E. Richman of counsel), for The National Alliance for Hispanic Health, The National Congress of Black Women, Inc., The New York Chapter of the National Association of Hispanic Nurses, Maya Rockeymoore, Ph.D., Montefiore Medical Center, The Mount Sinai Medical Center, The New York State American Academy of Pediatrics, District II, The Children’s Aid Society, Prevention Institute, The California Endowment, Shape Up America!, Dr. Walter Willett, Comunilife, United Puerto Rican Organization of Sunset Park, The Harlem Health Promotion Center, and The Association of Black Cardiologists, Inc., amici curiae.
3
The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–65 Chapter 1C—Developments in State Constitutionalism—Three Cases
Bromberg Law Office, P.C., New York (Brian L. Bromberg of counsel), for The National Association of Local Boards of Health, The American Public Health Association, The National Association of County and City Health Officials, The Public Health Association of New York City, Changelab Solutions, The Public Health Law Center, The Health Officers Association of California, Jennifer Pomeranz of the Rudd Center for Food Policy at Yale University, Prof. Lawrence O. Gostin of the O’Neill Institute for National and Global Health Law at Georgetown University, Prof. Peter D. Jacobson, Prof. Lindsay F. Wiley, Prof. Wendy E. Parmet, Prof. Lance Gable and Prof. Micah L. Berman, amici curiae.
King & Spalding LLP, New York (Ann M. Cook of counsel), for The New York State Conference of the National Association for the Advancement of Colored People, The Hispanic Federation, The U.S. Hispanic Chamber of Commerce and The Mexican American Grocers Association, amici curiae.
Watkins, Bradley & Chen LLP, New York (Clifford Y. Chen, Stephanie F. Bradley and Adam F. Watkins of counsel), for New York City Council Members Maria Del Carmen Arroyo, Charles Barron, Fernando Cabrera, Leroy G. Comrie, Jr., Julissa Ferreras, Helen D. Foster, Daniel R. Garodnick, Vincent J. Gentile, Robert Jackson, Letitia James, Peter Koo, Oliver Koppell, Karen Koslowitz, Melissa Mark-Viverito, Darlene Mealy, Rosie Mendez, Michael C. Nelson, Annabel Palma, Diana Reyna, Donavan Richards, Ydanis Rodriguez, Deborah Rose and Mark Weprin, amici curiae.
Featherstonhaugh, Wiley & Clyne, LLP, Albany (James D. Featherstonhaugh of counsel), for The Business Council of New York State, Inc., The Bodega Association of the United States, The New York City Hospitality Alliance, The
4
The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–66 Chapter 1C—Developments in State Constitutionalism—Three Cases
National Supermarket Association and The Food Industry Alliance of New York State, Inc., amici curiae.
Shapiro, Arato & Isserles LLP, New York (Alexandra A.E. Shapiro, Marc E. Isserles and Chetan A. Patil of counsel), for The Chamber of Commerce of the United States of America, National Black Chamber of Commerce, National Federation of Independent Business, National Association of Manufacturers, Greater Harlem Chamber of Commerce, Staten Island Chamber of Commerce, Manhattan Chamber of Commerce, and New York Association of Convenience Stores, amici curiae.
Friedman Kaplan Seiler & Adelman LLP, New York (Bruce S. Kaplan and Yitzchak E. Soloveichik of counsel), for The Street Vendor Project, amicus curiae.
5
The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–67 Chapter 1C—Developments in State Constitutionalism—Three Cases
RENWICK, J.
In this hybrid CPLR article 78/declaratory judgment
proceeding, we are called upon to decide the constitutionality of
the New York City Board of Health’s Sugary Drinks Portion Cap
Rule. The Sugary Drinks Portion Cap Rule, dubbed the “Soda Ban,”
prohibits New York City restaurants, movie theaters and other
food service establishments from serving sugary drinks in sizes
larger than 16 ounces. Like Supreme Court, we conclude that in
promulgating this regulation the Board of Health failed to act
within the bounds of its lawfully delegated authority.
Accordingly, we declare the regulation to be invalid, as
violative of the principle of separation of powers.
Factual and Procedural Background
We begin with a background of the regulatory agency and the
challenged regulation. Pursuant to New York City Charter § 556,
respondent New York City Department of Health and Mental Hygiene
(DOHMH), an administrative agency in the executive branch of the
City government, is charged with regulating and supervising all
matters affecting health in the City, including conditions
hazardous to life and health, by, among other things, regulating
the food and drug supply of the City, and enforcing provisions of
the New York City Health Code.
Respondent New York City Board of Health (Board of Health),
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–68 Chapter 1C—Developments in State Constitutionalism—Three Cases
established by NY City Charter § 553, is comprised of eleven
individuals with relevant experience who were appointed by the
Mayor. Pursuant to NY City Charter § 558, the Board of Health is
empowered to amend the Health Code with respect to all matters to
which the power and authority of DOHMH extend. This includes
Article 81 of the Health Code, which sets forth rules regulating
City “food service establishments” (FSEs). The Health Code
defines an FSE as “a place where food is provided for individual
portion service directly to the consumer whether such food is
provided free of charge or sold, whether consumption occurs on or
off the premises or is provided from a pushcart, stand or
vehicle.” Pursuant to a 2010 Memorandum of Understanding (MOU)
between the City’s DOHMH and the State’s Department of
Agriculture and Marketing, an FSE is subject to inspection by a
local Health Department only if it generates 50% or more of its
total annual dollar receipts from the sale of food for
consumption on the premises or ready-to-eat for off-premises
consumption.
On May 30, 2012, Mayor Michael Bloomberg announced the
Portion Cap Rule, a proposed amendment to Article 81, that would
require FSEs to cap at 16 ounces the size of cups and containers
used to offer, provide and sell sugary beverages. The Mayor’s
stated purpose of the rule was to address rising obesity rates in
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–69 Chapter 1C—Developments in State Constitutionalism—Three Cases
the City. On June 1, 2012, 14 members of the New York City
Council wrote to the Mayor opposing the proposal and insisting
that, at the very least, it should be put before the Council for
a vote. This did not occur.
Instead, on June 12, 2012, DOHMH presented to the Board of
Health the proposed amendment to Article 81. The Board voted to
allow DOHMH to publish the proposal in the City Record, and
thereby provide the public with an opportunity to comment on the
proposal in advance of a public hearing. On July 24, 2012, a
public hearing was held on the Portion Cap Rule. Of the more
than 38,000 written comments received prior to the scheduled
hearing, approximately 32,000 (84%) supported the proposal and
approximately 6,000 (16%) opposed it. In addition, a petition
opposing the proposal, signed by more than 90,000 people, was
submitted by New Yorkers for Beverage Choice, a coalition of
individuals, businesses, and community organizations.
DOHMH proposed no changes to the initial proposal that was
made public in May. Instead, DOHMH provided the Board with a
memorandum, dated September 6, 2012, summarizing and responding
to the testimony and written comments. In the memorandum, which
supported the promulgation of the Portion Cap Rule, DOHMH pointed
out, among other things, that “[t]he scientific evidence
supporting associations between sugary drinks, obesity, and other
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–70 Chapter 1C—Developments in State Constitutionalism—Three Cases
negative health consequences is compelling.” In addition, DOHMH
pointed out that the proposed rule would have a “material impact”
on consumption of sugary drinks because “[p]atterns of human
behavior indicate that consumers gravitate towards the default
option.” Thus, DOHMH concluded “If the proposal is adopted,
customers intent upon consuming more than 16 ounces would have to
make conscious decisions to do so.” With regard to the critics’
assertion that the rule would result in economic hardship for
certain businesses, the agency responded that the freedom to sell
large sugary drinks “means little compared to the necessity to
protect New Yorkers from the obesity epidemic.”
On September 13, 2012, the Board of Health met for the board
members to cast their votes on the Portion Cap Rule. Before the
vote, both the Commissioner of Health and several board members
echoed DOHMH’s comments about the Portion Cap Rule, as expressed
in the aforementioned memorandum. In the end, the Board voted to
adopt the Portion Cap Rule, and a “Notice of Adoption of an
Amendment (§ 81.53) to Article 81 of the Health Code” was
published in the City Record on September 21, 2012, to go into
effect on March 12, 2013.
As adopted, the Portion Cap Rule limited the maximum self-
service cup or container size for sugary drinks to 16 fluid
ounces for all FSEs within New York City, and defined “sugary
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–71 Chapter 1C—Developments in State Constitutionalism—Three Cases
drink” as a non-alcoholic carbonated or non carbonated beverage
that is sweetened by the manufacturer or establishment with sugar
or another caloric sweetener, has greater than 25 calories per 8
fluid ounces of beverage, and does not contain more than 50
percent of milk or milk substitute by volume as an ingredient.1
The rule thus targeted non-diet soft drinks, sweetened teas,
sweetened black coffee, hot chocolate, energy drinks, sports
drinks, and sweetened juices, but contained carve-outs for
alcoholic beverages, milkshakes, fruit smoothies and mixed coffee
drinks, mochas, lattes, and 100% fruit juices. In addition,
DOHMH announced that the Portion Cap Rule would apply only to
those FSEs subject to the agency’s inspections under the MOU. As
a result, the ban applies to restaurants, delis, fast-food
franchises, movie theaters, stadiums and street carts, but not to
grocery stores, convenience stores, corner markets, gas stations
and other similar businesses.
On October 12, 2012, before the rule went into effect,
petitioners commenced this action seeking to invalidate the
Portion Cap Rule.2 Petitioners alleged that the Board’s adoption
1 The rule set a maximum fine of $200 for each violation.
2 Petitioners are several interest groups, namely, the New York Statewide Coalition of Hispanic Chambers of Commerce, The New York Korean-American Grocers Association, Soft Drink and Brewery Workers Union, Local 812, International Brotherhood of
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–72 Chapter 1C—Developments in State Constitutionalism—Three Cases
of the Portion Cap Rule was ultra vires in that it usurped the
role of the City Council and imposed social policy by executive
fiat, contending that the Board “may not bypass the legislature,
under the guise of public health, and make fundamental policy
choices and establish far-reaching new policy programs all by
themselves, no matter how well-intentioned they may be.”
Supreme Court declared the regulation invalid, primarily on
the ground that by adopting the Portion Cap Rule, the Board of
Health exceeded its authority and violated the separation of
powers doctrine as delineated in Boreali v Axelrod (71 NY2d 1
[1989]). It also found that the rule itself was arbitrary and
capricious. This appeal ensued.
Discussion
At the outset, we agree with Supreme Court that the starting
point for the analysis of whether the subject regulation violates
the separation of powers doctrine is the Court of Appeals’
landmark decision in Boreali. Respondents, however, argue that
Boreali does not apply to the present case because the Board of
Health has been vested with the power to act on any health
related manner. This argument rests on a fundamental
Teamsters, The National Restaurant Association, The National Association of Theatre Owners of New York State, and The American Beverage Association.
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–73 Chapter 1C—Developments in State Constitutionalism—Three Cases
misunderstanding of the power of administrative agencies vis-a-
vis the legislature. The misunderstanding may be readily
clarified.
Respondents correctly point out that local public bodies,
such as the Board of Health, may be delegated a broad range of
powers which are essentially legislative in nature (People v
Blanchard, 288 NY 145 [1942]). The Board of Health, however, has
no inherent legislative power. It derives its power to establish
rules and regulations directly and solely from the legislature,
in this case, the City Council (Under 21, Catholic Home Bur. for
Dependent Children v City of New York, 65 NY2d 344, 356 [1985];
see also Subcontractors Trade Assn. v Koch, 62 NY2d 422 [1984]).3
The separation of powers doctrine of the State Constitution
establishes the boundaries between actions of the legislature and
an administrative agency. Because the constitution vests
legislative power in the legislature, administrative agencies may
only effect policy mandated by statute and cannot exercise
sweeping power to create whatever rule they deem necessary. In
3 The Charter of the City of New York provides for “distinct legislative and executive branches” (Under 21, Catholic Home Bur. for Dependent Children, 65 NY2d at 356). Section 3 designates the Mayor as “chief executive officer of the city,” while § 21 vests the exclusive legislative power in the Council. In general, these co-equal branches of government may not unlawfully infringe on each other's prerogatives (id.; see also Subcontractors Trade Assn., 62 NY2d at 422).
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–74 Chapter 1C—Developments in State Constitutionalism—Three Cases
other words, “[as] an arm of the executive branch of government,
an administrative agency may not, in the exercise of rule-making
authority, engage in broad-based public policy determinations
(Rent Stabilization Assn. of N.Y. City v Higgins, 83 NY2d 156,
169 [1993], cert denied 512 US 1213 [1993], citing Boreali, 71
NY2d at 9).
Ultimately, the Board of Health has failed to distinguish
its action from the action of the analogous administrative body
in Boreali. As here, the state Legislature in Boreali gave the
Public Health Council (PHC) broad authority to promulgate
regulations on matters concerning public health. Still, Boreali
held, the scope of the PHC's authority under its enabling statute
was deemed limited by its role as an administrative, rather than
a legislative body (Boreali, 71 NY2d at 9).
We must then examine whether the Board of Health exceeded
the bounds of its legislative authority as an administrative
agency when it promulgated the Sugary Drinks Portion Cap Rule.
Boreali illustrates when the “difficult-to-demarcate line”
between administrative rulemaking and legislative policymaking
has been transgressed. In Boreali, the PHC promulgated
regulations prohibiting smoking in a wide variety of public
facilities following several years of failed attempts by members
of the state legislature to further restrict smoking through new
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–75 Chapter 1C—Developments in State Constitutionalism—Three Cases
legislation. Boreali found the regulations invalid because,
although the PHC was authorized by the Public Health Law to
regulate matters affecting the public health, “the agency
stretched that statute beyond its constitutionally valid reach
when it used the statute as a basis for drafting a code embodying
its own assessment of what public policy ought to be" (id. at 9).
Boreali relied on four factors in finding that the PHC's
regulations were an invalid exercise of legislative power.
First, Boreali found the PHC had engaged in the balancing of
competing concerns of public health and economic costs, “acting
solely on [its] own ideas of sound public policy” (id. at 12).
Second, the PHC did not engage in the “interstitial” rule making
typical of administrative agencies, but had instead written “on a
clean slate, creating its own comprehensive set of rules without
benefit of legislative guidance” (id.). Third, the PHC's
regulations concerned “an area in which the legislature had
repeatedly tried — and failed — to reach agreement in the face of
substantial public debate and vigorous lobbying by a variety of
interested factions” (id.). Boreali found that the separation of
powers principles mandate that elected legislators rather than
appointed administrators “resolve difficult social problems by
making choices among competing ends” (id.). Fourth, Boreali
found that the agency had overstepped its bounds because the
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–76 Chapter 1C—Developments in State Constitutionalism—Three Cases
development of the regulations did not require expertise in the
field of health (id. at 14).
According to Boreali, these “coalescing circumstances,” when
viewed in combination, paint a portrait of an agency that has
improperly assumed for itself “‘[t]he open-ended discretion to
choose ends,’ which characterizes the elected Legislature's role”
(id. at 10). Boreali went on to say that none of the four
factors, standing alone, is sufficient for a finding that the
administrative agency has violated the separation of powers
(id.). This characterization indicates to us that, contrary to
the Board of Health’s suggestion, Boreali intended the four
factors to be interpreted as indicators of the usurpation of the
legislature, rather than a talismanic rule of four required
elements that must all be present in every case.
Indeed, one year later, in Matter of Campagna v Shaffer (73
NY2d 237, 243 [1979]), the Court explained that “[a] key feature
of [the Boreali] case . . . was that the Legislature had never
articulated a policy regarding public smoking.” Subsequently,
the courts have consistently held that so long as an action taken
by an administrative agency is consistent with the policies
contemplated by the legislature, the action taken will survive
constitutional scrutiny under the doctrine of separation of
powers (see e.g. Higgins, 83 NY2d 156; Matter of Health
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–77 Chapter 1C—Developments in State Constitutionalism—Three Cases
Facilities Assn. v Axelrod, 77 NY2d 340 [1991]; Matter of
Campagna, 73 NY2d 237).4
In any event, we find that all four Boreali factors
indicative of the usurpation of legitimate legislative functions
are present in this case. Turning to the first Boreali factor --
balancing competing concerns of public health and economic costs
-- the Court found that the PHC's promulgation of comprehensive
regulations that banned smoking in some public places was not
consistent with the authority provided by the legislature under
the public health law to promulgate regulations on matters
concerning public health (71 NY2d at 13-14). The Court pointed
to the PHC's inclusion of exceptions and exemptions that
reflected the agency's own balancing of economic and social
implications of the regulations as clear evidence that the
regulatory scheme was inconsistent with the agency's legislative
authority (id.). Specifically, the PHC had exempted certain
4 For instance, in New York State Health Facilities Assn. v Axelrod, the Court upheld a Medicaid patient access regulation adopted by the PHC, which required new applicants seeking nursing home approval to agree to admit “a reasonable percentage of Medicaid patients” (77 NY2d 340). Such regulation did not exceed the scope of legislative power delegated to the PHC because it was “an appropriate means for achieving legislative ends.” This is because the pertinent statutory provisions directed that the PHC should consider a facility's responsiveness to Medicaid patients and take steps designed to prohibit discrimination against Medicaid patients (id. at 347-348).
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–78 Chapter 1C—Developments in State Constitutionalism—Three Cases
establishments, such as bars and certain restaurants, from the
indoor smoking bans (id. at 14)). This effort to “[s]trik[e] the
proper balance among health concerns, costs and privacy interests
. . . is a uniquely legislative function” (id.). According to
Boreali, the presence of exemptions is particularly telling
because exemptions typically “run counter to such goals and,
consequently, cannot be justified as simple implementations of
legislative values” (id.). The exceptions did not, therefore,
reflect the agency's charge to protect public health but instead
reflected the agency's own policy decisions regarding balancing
the relative importance of protecting public health with ensuring
the economic viability of certain industries (id.).
Likewise, in this case, it cannot be said that the Board of
Health acted solely with a view toward public health
considerations when it adopted exemptions to the Portion Cap
Rule. Indeed, during the public comment period and hearings both
the DOHMH and the board members themselves indicated that they
weighed the potential benefits against economic factors. The
Commissioner went as far as to indicate that in addition to
promoting health, the ban would help ameliorate obesity-related
health care expenditures in New York.
These comments alone do not convince us that the Board of
Health considered non-health factors. Rather, we find
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–79 Chapter 1C—Developments in State Constitutionalism—Three Cases
particularly probative the regulation’s exemptions, which evince
a compromise of social and economic concerns, as well as private
interests. As indicated, the regulatory scheme is not an all-
encompassing regulation. It does not apply to all FSEs. Nor
does it apply to all sugary beverages. The Board of Health’s
explanations for these exemptions do not convince us that the
limitations are based solely on health-related concerns.
With regard to the exemption for sugary milk or juice
drinks, the agency explained that it is based on the Board’s
conclusion that they, unlike the covered drinks, have some
nutritional benefits. The agency, however, ignores the fact that
the “soda ban” does more than just target a specific food
category. It also ignores that the Board has never categorized
soda and the other targeted sugary drinks as inherently
unhealthy. In essence, as the DOHMH acknowledges, it prescribes
a mechanism to discourage New Yorkers from consuming those
targeted sugary drinks by dictating a maximum single portion size
that can be made available in certain food service
establishments. Such mechanism necessarily looks beyond health
concerns, in that it manipulates choices to try to change
consumer norms.
Indeed, since a basic premise of the ban is that New Yorkers
consume excessive quantities of sugary drinks, the Board’s
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–80 Chapter 1C—Developments in State Constitutionalism—Three Cases
decision to regulate only these drinks requires that any health
concerns be weighed against consumer preferences for such drinks.
Instead of offering information and letting the consumer decide,
the Board’s decision effectively relies upon the behavioral
economics concept that consumers are pushed into better behavior
when certain choices are made less convenient. For instance, the
regulation makes the choice to drink soda more expensive, as it
costs more to buy two 16-ounce drinks than to buy one 32-ounce
drink. As a result, the Board necessarily concluded, as a
threshold matter, that health concerns outweigh the cost of
infringing on individual rights to purchase a product that the
Board has never categorized as inherently dangerous. As the
intense public debate on the ban bears out, this threshold
decision to regulate a particular food is inherently a policy
decision.5 Such decision necessarily reflects a balance between
health concerns, an individual consumer’s choice of diet, and
business financial interests in providing the targeted sugary
drinks. In this context, the “Soda Ban” is one especially suited
5 See e.g. New York Times editorial, A Ban Too Far, May 31, 2012); Michael M. Grynbaum, New York Plans to Ban Sale of Big Sizes of Sugary Drinks , NY Times, May 30, 2012; USA Today editorial, New York Soda Cap Wouldn't Beat Obesity, June 3, 2012; Washington Post editorial, Slurping Less Soda in New York, June 2, 2012); Paul Whitefield, Los Angeles Times Opinion, Life, Liberty and the Pursuit of Doughnuts and Big Gulps, June 01, 2012.
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–81 Chapter 1C—Developments in State Constitutionalism—Three Cases
for legislative determination as it involves “difficult social
problems,” which must be resolved by “making choices among
competing ends” (Boreali, 71 NY2d at 13).
With regard to the exemption of certain FSE’s (i.e., grocery
markets, 7-11s, bodegas, etc.), the DOHMH does not deny that the
exemption has no relationship to health-related concerns. Still,
the agency argues that it was not based on impermissible reasons,
but on the agency’s allegedly reasonable view that such FSEs
cannot be regulated by the Agency under the MOU signed with the
state’s Department of Agriculture. However, the Board’s claim
that the MOU tied its hands is belied by the fact that the agency
has previously used its regulatory authority to promulgate city-
wide health rules that regulate all FSEs (see e.g. 24 RCNY Health
Code 181.07) [city-wide regulation of common eating and drinking
utensils]; 24 RCNY Health Code 71.05) [city-wide prohibition on
the sale of “any food . . . which is adulterated or
misbranded”]). Moreover, the MOU envisions “cooperative efforts
between the two agencies [to] assure comprehensive food
protection” and to avoid gaps in food surveillance.” Yet, the
agency offers no evidence of any prior attempt to coordinate with
the Department of Agriculture on the Portion Cap Rule. The
failure to obtain such expansion resulted in a ban that includes
exceptions which necessarily favor some businesses and products
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–82 Chapter 1C—Developments in State Constitutionalism—Three Cases
at the expenses of others.
Accordingly, the selective restrictions enacted by the Board
of Health reveal that the health of the residents of New York
City was not its sole concern. If it were, the “Soda Ban” would
apply to all public and private enterprises in New York City. By
enacting a compromise measure — one that tempered its strong
health concerns with its unstated but real worries about
commercial well-being, as well as political considerations — the
Board necessarily took into account its own non-health policy
considerations. Judged by its deeds rather than by its
explanations, the Board of Health's jurisdictional rationale
evaporates.
The second Boreali factor is whether the Board of Health
exceeded its authority by writing on “a clean slate” rather than
using its regulatory power to fill in the details of a
legislative scheme. It cannot be seriously disputed that
administrative agencies like the DOHMH play an important role in
rule making, particularly in the context of broadly worded
legislation that sets out general policy goals and program
parameters. In this context, administrative agencies engage in
what is known as interstitial rule making. Interstitial rule
making is the process of filling in the details of a broad
legislative mandate and making that legislation operational
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–83 Chapter 1C—Developments in State Constitutionalism—Three Cases
(Boreali, 71 NY2d at 13).
Conversely, when an agency's action goes beyond filling in
the details of a broad legislative scheme, it exceeds the limits
of its authority. This was the case in Boreali where there was
no legislation authorizing the PHC to regulate smoking in public
places. Consequently, the PHC was left to make policy choices
that were appropriately for the Legislature. The PHC “wrote on a
clean slate, creating its own comprehensive set of rules without
benefit of legislative guidance” (id. at 13-14). Therefore,
Boreali held that the PHC's actions were “a far cry from the
‘interstitial’ rule making” (id.).
Similarly, in the case at bar, contrary to the Board of
Health’s argument, in adopting the Sugary Drinks Portion Cap
Rule, the Board did not fill a gap in an existing regulatory
scheme but instead wrote on a clean slate. In fact, the Board of
Health does not dispute that neither the State Legislature nor
the City Council has ever promulgated a statute defining a policy
with respect to excessive soda consumption, the purported subject
of the regulation. Instead, the agency points to the City
Charter’s grant of broad authority to the Board of Health to
regulate “all matters affecting the health of the City.” The
Board argues that the Portion Cap Rule fits comfortably within
this broad delegation of power to adopt sanitary regulations
22
The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–84 Chapter 1C—Developments in State Constitutionalism—Three Cases
dealing with matters affecting the “promotion and protection of
health.” However, the Board’s general jurisdiction statute,
although seemingly broad in scope, does not authorize the Board’s
action.
We think it clear that this general language does not
empower the Board of Health to promulgate rules regulating the
conduct of the people of the City of New York with respect to all
matters having some relation to the public health. If the words
of the statute should be so construed, this indeed would be
unfettered delegation of legislative power. As Boreali
explicitly held, “[E]nactments conferring authority on
administrative agencies in broad or general terms must be
interpreted in light of the limitations that the Constitution
imposes” and “[h]owever facially broad, a legislative grant of
authority must be construed, whenever possible, so that it is no
broader than that which the separation of powers doctrine
permits.” In fact, the City Charter itself provides that the
Board of Health may exercise its power to modify the health code
as long as it is “not inconsistent with the constitution,” or
with the laws of the state and the City Charter (see NY City
Charter § 558[b]).
In our view, the City Charter’s Enabling Act, granting the
Board of Health explicit power to establish, amend, and repeal
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–85 Chapter 1C—Developments in State Constitutionalism—Three Cases
the Health Code, was clearly intended by the legislature to
provide the agency with the discretion to engage in interstitial
rule making designed to protect the public from inherently
harmful and inimical matters affecting the health of the City
(see e.g. Grossman v Baumgartner, 17 NY2d 345 [1966] [Court
upheld a provision of the Health Code of the City of New York
prohibiting, for health reasons, tattooing of a child under 16
years old except by a licensed physician and only for medical
purposes]). The general terms employed in the Enabling Act must
be construed in relation to the more specific duties imposed and
the powers conferred by the act taken as a whole. When thus
construed, the general terms are restricted, expressing the true
intent and meaning of the legislature. Indeed, although the
legislature intended to rely on the Board of Health’s expertise
in identifying and determining how to regulate inherently harmful
matters affecting the health of the City, the Charter provides
examples of these general functions when it explicitly grants the
agency the power to supervise and regulate the safety of the
water and food supplies, as well as the control of diseases (see
e.g. NY City Charter §§ 556[c][2]; 556[c][7]; 556[c][9]).
If soda consumption represented such a health hazard, then
the Sugary Drink Portion Cap Rule would be exactly the kind of
interstitial rule making intended by the legislature and engaged
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–86 Chapter 1C—Developments in State Constitutionalism—Three Cases
in by the Board of Health in the past. The Board of Health,
however, does not claim that soda consumption can be classified
as such a health hazard. Rather, the hazard arises from the
consumption of sugary soda in “excess quantity.” The risks of
obesity and developing diabetes and other illnesses are greater
in those who drink soda to excess than in those who drink it in
moderation or not at all. Thus, since soda consumption cannot be
classified as a health hazard per se, the Board of Health’s
action in curtailing its consumption was not the kind of
interstitial rule making intended by the legislature.
With regard to the third factor, Boreali placed significance
on the fact that the legislature had repeatedly tried to pass
legislation implementing indoor smoking bans, yet had failed to
do so. In the Court’s view, this Boreali factor was indicative
of the legislature's inability to agree on “the goals and methods
that should govern in resolving” the issue (Boreali, 71 NY2d at
8). In this context, an agency's attempt to “take it upon itself
to fill the vacuum and impose a solution of its own” is improper
(id.). Significantly, Boreali distinguished the case of failed
legislative action from mere inaction, to which it did not
ascribe the same significance (id.). Therefore, mere legislative
inaction on a particular issue should not satisfy this factor.
The situation here is similar to that of the smoking ban in
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–87 Chapter 1C—Developments in State Constitutionalism—Three Cases
Boreali. Over the past few years, both the City and State
legislatures have attempted, albeit unsuccessfully, to target
sugar sweetened beverages. For instance, the City Council has
rejected several resolutions targeting sugar sweetened beverages
(warning labels, prohibiting food stamp use for purchase, and
taxes on such beverages).6 Moreover, the State Assembly
introduced, but has not passed, bills prohibiting the sale of
sugary drinks on government property and prohibiting stores with
ten or more employees from displaying candy or sugary drinks at
the “check out counter or aisle.”7 While the Portion Cap Rule
6 See e.g. New York City Resolution No. 1265 (2012): Resolution calling upon the New York State Legislature to pass and the Governor to sign legislation that would add an excise tax on sugar sweetened beverages; New York City Resolution No. 1264 (2012): Resolution calling upon the United States Food and Drug Administration to require warning labels on sugar sweetened beverages; New York City Resolution No. 0768 (2011): Resolution calling upon the United States Department of Agriculture to authorize New York City to add certain sugary drinks to the list of prohibited goods for City residents who receive Food Stamp assistance.
7 See e.g. Assembly Bill No. A10010: Prohibiting the sale of sugar sweetened beverages at food service establishments and vending machines located on government property; Assembly Bill No. S67004: Relating to imposition of a tax on beverage syrups and soft drinks; Assembly Bill No. A41004: Relating to imposition of a tax on beverage syrups and soft drinks; Assembly Bill No. A06229A: Providing for the sale, availability and distribution of healthy foods and beverages on school property and at school sponsored functions; Assembly Bill No. A10965: Prohibiting the purchase of food items which are not nutritional with food stamp program coupons or other access devices related thereto.
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–88 Chapter 1C—Developments in State Constitutionalism—Three Cases
employs different means of targeting the sale of certain
beverages than those considered by the legislative bodies, it
pursues the same end, and thus addresses the same policy areas as
the proposals rejected by the State and City legislatures. This
is a strong indication that the legislature remains unsure of how
best to approach the issue of excessive sugary beverage
consumption.
The final Boreali factor in assessing whether the
administrative agency has exceeded the bounds of its legislative
authority is whether any special expertise or technical
competence was involved in the development of the regulation that
is challenged. In Boreali, the PHC attempted to use its broad
legislative grant of authority to improve public health by
developing what the Court called a “simple code” that banned
indoor smoking and exempted certain groups. No technical
competence or agency expertise was necessary to develop the code.
That the regulations in question in Boreali did not require the
agency's specialized expertise indicated to the Court that the
agency had engaged in unauthorized policy-making rather than
interstitial rule-making.
Likewise, in this case, we do not believe that the Board of
Health exercised any special expertise or technical competence in
developing the Portion Cap Rule. The deleterious effects (e.g.
27
The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–89 Chapter 1C—Developments in State Constitutionalism—Three Cases
obesity) associated with excessive soda consumption are
well-known. Moreover, despite the City’s argument to the
contrary, the Board did not bring any scientific or health
expertise to bear in creating the Portion Cap Rule. Indeed, the
rule was drafted, written and proposed by the Office of the Mayor
and submitted to the Board, which enacted it without substantive
changes. Under the circumstances, it cannot be said that the
Board of Health’s technical competence was necessary to flesh out
details of the legislative policies embodied in the Portion Cap
Rule. We find, therefore, that this factor, albeit less
compelling than the others, also weighs in favor of invalidating
the Sugary Drinks Portion Cap Rule.
Conclusion
In sum, we find that under the principles set forth in
Boreali, the Board of Health overstepped the boundaries of its
lawfully delegated authority when it promulgated the Portion Cap
Rule to curtail the consumption of soda drinks. It therefore
violated the state principle of separation of powers. In light
of the above, we need not reach petitioners’ argument that the
subject regulation was arbitrary and capricious.
Before concluding, we must emphasize that nothing in this
decision is intended to circumscribe DOHMH’s legitimate powers.
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–90 Chapter 1C—Developments in State Constitutionalism—Three Cases
Nor is this decision intended to express an opinion on the wisdom
of the soda consumption restrictions, provided that they are
enacted by the government body with the authority to do so.
Within the limits described above, health authorities may make
rules and regulations for the protection of the public health and
have great latitude and discretion in performing their duty to
safeguard the public health.
Accordingly, the order of the Supreme Court, New York County
(Milton A. Tingling, J.), entered March 11, 2013, which, inter
alia, granted the petition and declared invalid respondent New
York City Board of Health’s amendment to New York City Health
Code § 81.53 barring the sale of sugary drinks in a cup or
container able to contain more than 16 fluid ounces, and enjoined
respondents from implementing or enforcing it, should be
affirmed, without costs.
All concur.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 30, 2013
______CLERK
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1C–92 Chapter 1D Should the Oregon Constitution Be Revised, and If So, How Should It Be Accomplished?1
Professor Robert F. Williams Rutgers University School of Law–Camden Camden, New Jersey
1 Reprinted with permission of author. Chapter 1D—Should the Oregon Constitution Be Revised, and If So, How Should It Be Accomplished?
The State of the Constitutions: New Developments in Federal and State Constitutional Law 1D–ii Chapter 1D—Should the Oregon Constitution Be Revised, and If So, How Should It Be Accomplished?
ROBERT F. WILLIAMS∗
Should the Oregon Constitution Be Revised, and If So, How Should It Be Accomplished?∗∗
Today’s conference on constitutional reform in Oregon could not be more timely. It marks a quarter-century since the last effort to modernize our state charter. . . . . Oregon needed a modern constitution twenty-five years ago. It needs a modern constitution today. The need will become more severe into the next century if nothing is done to meet it. Hans A. Linde (1987)1 More than two-thirds of the states now operate under constitutions that are more than a century old, that were designed to meet the problems of another era, and that are riddled with piecemeal amendments that have compromised their coherence as plans of government. In addition, the public disdain for government at all levels, together with the increasing reliance on direct democracy for policy making in the states, suggests a need for constitutional reforms designed to increase the responsiveness of state institutions and to promote popular involvement that does not preclude serious
∗ Distinguished Professor of Law, Rutgers University School of Law, Camden; Associate Director, Center for State Constitutional Studies, http://www.camlaw .rutgers.edu/statecon. ∗∗ This is a modified version of a lecture given at a conference, “Is the Wisconsin Constitution Obsolete?” at Marquette University School of Law, October 6, 2006, and published as Is the Wisconsin State Constitution Obsolete? Toward a Twenty-First Century, Functionalist Assessment, 90 MARQ. L. REV. 425 (2007). It has been revised to address the Oregon situation and is published here with permission of the Marquette Law Review. I wish to acknowledge Justice Hans A. Linde’s twenty-five years of collegiality and support for my work. 1 Hans A. Linde, Future Directions in State Constitutional Reform, 67 OR. L. REV. 65, 65–66 (1988).
[867]
The State of the Constitutions: New Developments in Federal and State Constitutional Law 1D–1 Chapter 1D—Should the Oregon Constitution Be Revised, and If So, How Should It Be Accomplished?
868 OREGON LAW REVIEW [Vol. 87, 867
deliberation about policy options. Many state constitutions would benefit from substantial changes designed to make state governments more effective, equitable, and responsive, and to equip them to deal with the challenges of the twenty-first century. G. Alan Tarr (2006)2 oes Dr. Alan Tarr’s assessment apply to Oregon? Is this state’s Dconstitution obsolete? These are fundamentally different questions from whether the constitution contains specific defects. Another generation has now passed since Hans Linde’s assessment, quoted above, so Oregonians are “back to the future.” The Oregon Constitution is more than a century-and-a-half old. Operating under its original statehood constitution of 1859, Oregon is one of the few states to retain its original, albeit often amended, constitution.3 In Part I, this Article offers a brief description of the Oregon Constitution itself and compares it to other state constitutions, focusing on its several different mechanisms for amendment and revision. Part II provides a brief review of the earlier attempts to revise the Oregon Constitution, including the significant inclusion of the initiative as one of the methods, followed by a review of recent proposals to improve on the use of the initiative to amend state constitutions. In Part III, this Article briefly surveys the processes of state-constitutional revision in a number of other states during the twentieth century, drawing a number of general lessons from these states’ experiences. Finally, Part IV discusses current public attitudes toward state-constitutional revision, particularly by state- constitutional conventions and adds a cautionary note that each method of amendment or revision should be carefully linked to the best method to accomplish it.
2 G. Alan Tarr, Introduction to STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY:THE AGENDA OF STATE CONSTITUTIONAL REFORM 1, 3–4 (G. Alan Tarr & Robert F. Williams eds., 2006). 3 See ROBERT L. MADDEX,STATE CONSTITUTIONS OF THE UNITED STATES 327 (2d ed. 2006); see also John Dinan, State Constitutional Developments in 2007, in THE BOOK OF THE STATES 3, 10–16 (Council of State Gov’ts ed., 2008) (listing adoption and amendment dates of state constitutions).
The State of the Constitutions: New Developments in Federal and State Constitutional Law 1D–2 Chapter 1D—Should the Oregon Constitution Be Revised, and If So, How Should It Be Accomplished?
2008] Should the Oregon Constitution Be Revised? 869
I THE OREGON CONSTITUTION The Oregon Constitution is relatively long.4 It has been amended on average nearly one-and-a-half times per year.5 This amendment rate is somewhat above the mean rate of amendment for state constitutions.6 The adoption of Oregon’s 1859 constitution is well documented.7 It is possible, under one view, to see the Oregon Constitution as having been obsolete as soon as it was adopted. The well-known legal scholar James Willard Hurst noted that specific policies reflected in state constitutions “did not direct, but merely recorded, the currents of social change. Most of this constitutional wisdom was the wisdom of hindsight.”8 Given the fact that some of the provisions of Oregon’s original constitution were “borrowed” from other state constitutions, there is evidence that much of that constitution was already accepted practice.9 This process of modeling, or copying state-constitutional provisions from others, is one of the most significant and, upon reflection, understandable features of the evolution of state constitutions. There is even evidence that the 1902 initiative and referendum provisions of the Oregon Constitution were based on an
4 See MADDEX, supra note 3, at 327; Dinan, supra note 3, at 10; see also Donald S. Lutz, Patterns in the Amending of American State Constitutions, in CONSTITUTIONAL POLITICS IN THE STATES:CONTEMPORARY CONTROVERSIES AND HISTORICAL PATTERNS 24, 32–34 tbl.2.1 (G. Alan Tarr ed., 1996) [hereinafter Lutz, Patterns in Amending]; Donald S. Lutz, Toward a Theory of Constitutional Amendment, 88 AM.POL.SCI.REV. 355, 367 tbl.A-1 (1994) [hereinafter Lutz, Toward a Theory]. 5 Lutz, Patterns in Amending, supra note 4, at 33 tbl.2.1. 6 See id. at 34 tbl.2.1. 7 See THE OREGON CONSTITUTION AND PROCEEDINGS AND DEBATES OF THE CONSTITUTIONAL CONVENTION OF 1857 (Charles Henry Carey ed., 1926). This work is regularly relied upon by Oregon courts and scholars. See, e.g., State v. Hirsch, 114 P.3d 1104, 1112 (Or. 2005); Vannatta v. Keisling, 931 P.2d 770, 782 (Or. 1997); Billings v. Gates, 916 P.2d 291, 298 (Or. 1996); State v. Conger, 878 P.2d 1089, 1094 (Or. 1994); David Schuman, The Creation of the Oregon Constitution, 74 OR. L. REV. 611, 611 n.1 (1995). 8 JAMES WILLARD HURST,THE GROWTH OF AMERICAN LAW 246 (1950). 9 See W.C. Palmer, The Sources of the Oregon Constitution, 5 OR. L. REV. 200 (1926). As James Willard Hurst noted: “There was a sort of stare decisis about this making of constitutions; it was altogether natural in a country in which men moved about readily, taking with them the learning and institutions of their former homes.” HURST, supra note 8, at 224–25.
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idea of direct democracy reflected in the constitutions of the cantons of Switzerland.10 As Frank Grad and I have recently contended, there is no “ideal” state constitution.11 We characterized state constitutions as tools or instruments of government, the “suitability and adaptability” of which “can only be gauged in the relationship to its set task.”12 Therefore, the question of whether the current Oregon Constitution is obsolete should be analyzed through an evaluation of how it actually functions within the state. This needs to be a hard-nosed assessment in “the trenches,” not a library exercise. Do problems with Oregon’s government arise from the state constitution, or do such problems have some effective remedy through the constitution? Many governmental problems, of course, have nothing to do with the state constitution. Professor Grad and I concluded: The least we may demand of our state constitutions is that they interpose no obstacle to the necessary exercise of state powers in response to state residents’ real needs and active demands for service. . . . Any review of the adequacy of a state’s constitution must begin, therefore, not by comparing the state’s present constitution with the more recently adopted charter of another state or with the provisions of some “model” draft, but rather by systematically examining the entire machinery and operation of the state’s government.13 How would one measure the functional effectiveness, or lack thereof, of the Oregon Constitution? It is obvious that any assessment of a current state constitution such as Oregon’s must take account of the authoritative judicial interpretations as well as informal adjustments to the state constitution.14
10 See David Schuman, The Origin of State Constitutional Direct Democracy: William Simon U’Ren and “The Oregon System,” 67 TEMP. L. REV. 947, 950 (1994). 11 See FRANK P. GRAD &ROBERT F. WILLIAMS,STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY:DRAFTING STATE CONSTITUTIONS,REVISIONS, AND AMENDMENTS 7, 13 (2006). 12 Id. at 8; see also Donald S. Lutz, The Purposes of American State Constitutions, 12 PUBLIUS 27, 31 (1982) (“A written constitution is a political technology. In a sense it is the very embodiment of the technology for achieving the good life.” (footnote omitted)). 13 GRAD &WILLIAMS, supra note 11, at 12; see also TERRY SANFORD,STORM OVER THE STATES 189 (1967) (suggesting revision of state constitutions which had been “for so long the drag anchors of state progress”). Comparisons may, however, be interesting and useful. 14 See Michael Besso, Constitutional Amendment Procedures and the Informal Political Construction of Constitutions, 67 J. POL. 69, 69 (2005).
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In considering the stability of the Oregon Constitution, it is clear that it has been changed through amendment and judicial interpretation but has never been either replaced or reformed. These are very important distinctions in the area of state-constitutional development. Alan Tarr explained the distinction: Of course, it is possible to introduce significant constitutional reform without calling a convention or adopting a new constitution—amendments proposed by constitutional commissions, by initiative, or by state legislatures may also produce constitutional reform. But in thinking about constitutional reform, it is important to distinguish it from the ordinary constitutional change that is so prevalent in the states. Any alteration of a state constitution, no matter how technical or minor, qualifies as constitutional change. In contrast, constitutional reform involves a more fundamental reconsideration of constitutional foundations. It introduces changes of considerable breadth and impact, changes that substantially affect the operation of state government or the public policy of the state. The replacement of one constitution by another obviously qualifies as constitutional reform. So too may major constitutional amendments or interconnected sets of amendments. However, most constitutional change in the states does not qualify.15 These are, of course, not perfect, bright-line distinctions, but they are important distinctions all the same.16 Therefore, the fundamental questions in evaluating the functionality of the Oregon Constitution are whether “piecemeal amendments . . . have compromised [its] coherence as [a] plan[] of government”17 to such an extent that there is a necessity of “fundamental reconsideration of constitutional foundations.”18 Under this view, even if a number of specific problems or defects were identified in Oregon’s constitution (and people would differ on each of these), those problems might continue
15 G. Alan Tarr, Introduction to STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY: THE POLITICS OF STATE CONSTITUTIONAL REFORM 1, 2 (G. Alan Tarr & Robert F. Williams eds., 2006) (footnotes omitted); see also Bruce E. Cain, Constitutional Revision in California: The Triumph of Amendment over Revision, in STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY: THE POLITICS OF STATE CONSTITUTIONAL REFORM, supra, at 59, 64 (“In theory, constitutional revision should be more comprehensive and qualitatively more significant than a constitutional amendment. But what if revision occurs increasingly through amendment: What is gained and what is lost? The most important advantage should lie in the ability of a Revision Commission to consider how all the pieces fit together. Where the amendment process is piecemeal and sequential, the revision process affords the opportunity to logically relate proposals to goals, and to make the entire package of proposal[s] coherent.”). 16 See Tarr, supra note 15, at 3. 17 Tarr, supra note 2, at 3. 18 Tarr, supra note 15, at 2.
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to be addressed by amendment, short of state-constitutional reform or revision. In evaluating the Oregon Constitution to determine whether it is obsolete and in need of reform or revision, the state constitution should definitely not be compared to the U.S. Constitution.19 There are a variety of reasons for the impropriety of this comparison. All state constitutions, including Oregon’s relatively long one, are substantially longer than the federal Constitution.20 But the two kinds of constitutions are also called upon to perform different functions and are therefore not comparable on the basis of length. The federal Constitution is incomplete as a governing document; it depends on the state governments to function within it and serves to delegate a limited set of powers to the national government. State constitutions structure a subnational government—a government functioning within a government—and serve primarily to limit the plenary authority retained by states at the time of formation of the Union. Therefore, the federal and state constitutions perform different legal and political functions, and there is simply a wider variety of subject matter to be regulated by a state constitution than there is under the U.S. Constitution.21 Further, even by the time of Oregon’s adoption of its original constitution, state constitutions had already begun to evolve from basic charters of government and protections of rights to encompass policy matters that could have been left to the state legislature. Dr. Tarr noted that “[s]tate constitutions, in contrast [to the U.S. Constitution], deal directly with matters of public policy, sometimes in considerable detail.”22 These sorts of policy provisions may prohibit legislative action, mandate the enactment of certain policies, or directly enact the policies themselves.23 Dr. Tarr concluded that during the nineteenth century “state constitutions increasingly became instruments of government rather than merely frameworks for government.”24 The Oregon Constitution’s coverage of, for example,
19 See GRAD &WILLIAMS, supra note 11, at 14. 20 See Christopher W. Hammons, State Constitutional Reform: Is It Necessary? 64 ALB. L. REV. 1327, 1329 (2001). 21 See id.; see generally Donald S. Lutz, The United States Constitution As an Incomplete Text, 496 ANNALS AM.ACAD.POL.&SOC.SCI. 23 (1988). 22 G. ALAN TARR,UNDERSTANDING STATE CONSTITUTIONS 20 (1998). 23 See id. at 21. 24 Id. at 132; see also Hammons, supra note 20, at 1332–33.
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tax and finance,25 water development,26 and corporations,27 while not so different from that of other state constitutions, clearly illustrates this point. Do policy-oriented provisions in state constitutions become obsolete or incoherent more quickly than framework-oriented provisions? The Oregon Constitution is older, longer, and more often amended than most state constitutions, and it is also, not surprisingly, relatively easier to amend. The question of whether to call a constitutional convention may only be presented to the voters by the legislature.28 Oregon permits use of the initiative to propose amendments to the state constitution,29 although its constitution does not have any required automatic mechanism of review built into it,30 so Oregon is located toward the easier end of the spectrum of amendment procedures.31 Oregon’s procedure for legislatively proposed state- constitutional amendments is somewhat rigorous, requiring passage by a majority vote of elected legislators and separate presentation of issues to the voters.32 Also, since 1960 the legislature may propose a revision of the state constitution, including alternative proposals, to the voters after a two-thirds vote of its members.33 At the time Oregon originally adopted its procedures for amendment, the issue
25 OR.CONST. art. IX. 26 Id. art. XI-D(1). 27 Id. art. XI. 28 Id. art. XVII, § 1. 29 Id. art. IV, § 1(2)(c), art. XVII, § 1. 30 See G. Alan Tarr & Robert F. Williams, Foreword: Getting from Here to There: Twenty-First Century Mechanisms and Opportunities in State Constitutional Reform, 36 RUTGERS L.J. 1075, 1079 (2005) (“Fourteen state constitutions mandate that the question of whether to hold a convention be submitted to voters periodically.”). This mechanism shifts the burden of persuasion from those who advocate a vote on the possibility of state- constitutional revision to those who oppose it. 31 See id. at 1075 n.1. 32 OR.CONST. art. XVII, § 1. On this latter question of separate presentation of amendments to the electors, see the very interesting, in-depth consideration of this matter by the California Supreme Court in Californians for an Open Primary v. McPherson, 134 P.3d 299 (Cal. 2006). For the Oregon Supreme Court’s treatment of this issue, see Armatta v. Kitzhaber, 959 P.2d 49 (Or. 1998). See also GRAD &WILLIAMS, supra note 11, at 70, 72; Gerald Benjamin & Melissa Cusa, Constitutional Amendment Through the Legislature in New York, in CONSTITUTIONAL POLITICS IN THE STATES, supra note 4, at 47 (discussing legislatively proposed amendments). 33 OR.CONST. art. XVII, § 2.
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was one of importance in state-constitutional conventions across the country.34 The Oregon Constitutional Convention originally rejected, though probably not consciously, the Jeffersonian view that state constitutions should be considered for revision once every generation35 in favor of the Madisonian preference for a more stable state constitution.36 The 1902 addition of the initiative as a means of proposing state-constitutional amendments seems to have modified this position. The conflict between stability and ease of change has persisted through the entire evolution of state constitutions. Stephen Holmes captured the modern conflict: Some theorists worry that democracy will be paralyzed by constitutional straitjacketing. Others are apprehensive that the constitutional dyke [sic] will be breached by a democratic flood. Despite their differences, both sides agree that there exists a deep, almost irreconcilable tension between constitutionalism and democracy. Indeed, they come close to suggesting that “constitutional democracy” is a marriage of opposites, an oxymoron.37 If state-constitutional revision is too difficult, constitutionalism overwhelms democracy; if it is too easy, democracy overwhelms constitutionalism. It is difficult to achieve exactly the right balance, and the optimum balance might change over time. Any assessment of the Oregon Constitution’s obsolescence must also take account of, and consider adjustments to, the processes of changing or revising the constitution. A major adjustment was already accomplished by the 1960 amendment permitting the Oregon Legislative Assembly to propose revisions, not just single amendments, to the constitution.38
34 See JOHN J. DINAN,THE AMERICAN STATE CONSTITUTIONAL TRADITION 32–47 (2006). 35 Jefferson’s letter on this subject is quoted in Albert L. Sturm, The Development of American State Constitutions, 12 PUBLIUS 57, 66 n.24 (1982). See also JOHN R. VILE, THE CONSTITUTIONAL AMENDING PROCESS IN AMERICAN POLITICAL THOUGHT 59–78 (1992); John Dinan, “The Earth Belongs Always to the Living Generation”: The Development of State Constitutional Amendment and Revision Procedures, 62 REV.POL. 645, 647–51 (2000); Merrill D. Peterson, Mr. Jefferson’s ‘Sovereignty of the Living Generation,’ 52 VA. Q. REV. 437 (1976). 36 See LAURA J. SCALIA,AMERICA’S JEFFERSONIAN EXPERIMENT 4–5 (1999); see also Stephen Holmes, Precommitment and the Paradox of Democracy, in CONSTITUTIONALISM AND DEMOCRACY 195 (Jon Elster & Rune Slagstad eds., 1988). 37 Holmes, supra note 36, at 197. 38 OR.CONST. art. XVII, § 2(1).
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What about the content of the Oregon Constitution? Dr. Christopher Hammons formulated the distinction between “framework-oriented” and “policy-oriented” provisions in state constitutions.39 Dr. Hammons analyzed all of the state constitutions according to this distinction and concluded that forty-three percent of Oregon’s constitution is made up of policy-oriented provisions.40 This is just a little above the national average of forty percent.41 Of course what constitutes a policy-oriented provision, rather than a framework-oriented provision, can be in the eyes of the beholder, and neutral academic observers may not appreciate the important historic and political reasons why state constitutions contain certain detailed provisions.42 Interestingly, Dr. Hammons concluded that the longer and more policy oriented a state constitution is, the longer it endures before replacement.43 Oregon’s experience seems consistent with this conclusion. It would be important to determine if, over time, the ratio of structural amendments to policy-oriented amendments, particularly those governing private conduct, has changed. If it were demonstrated that the proportion of these latter amendments has increased, this would raise a serious concern that this process was being used (intentionally, no doubt) to make an “end run” around both the state constitution and the state courts in what should be ordinary
39 See Hammons, supra note 20, at 1338 (“Framework provisions are those provisions that deal exclusively with the principles, institutions, powers, and processes of government. They provide the basic building blocks of government. Policy provisions are defined as those provisions that deal with ‘statute law’ or ‘public-policy’ type issues, do not relate to the establishment of the government, are rather specific, typically do not apply to all citizens, and often provide differential benefits. It is these provisions that most political scientists and legal scholars consider ‘extra-constitutional.’”); see also id. at 1351 (examples of each type of provision); Christopher W. Hammons, Was James Madison Wrong? Rethinking the American Preference for Short, Framework-Oriented Constitutions, 93 AM.POL.SCI.REV. 837, 846–47 (1999) (more detailed lists of examples). 40 Hammons, supra note 39, at 848 (referring to policy-oriented provisions as “particularistic”). 41 Hammons, supra note 20, at 1333; see also Hammons, supra note 39, at 840 (thirty- nine percent). 42 For each provision in a state constitution, no matter how seemingly trivial, there is a story to be told. It may be a political story rather than an epic “constitutional” story. As Lawrence Friedman stated, “There was a point to every clause in these inflated constitutions. Each one reflected the wishes of some faction or interest group, which tried to make its policies permanent by freezing them into the charter. Constitutions, like treaties, preserved the terms of compromise between warring groups.” LAWRENCE M. FRIEDMAN,AHISTORY OF AMERICAN LAW 75 (3d ed. 2001). 43 See Hammons, supra note 20, at 1338–41; Hammons, supra note 39, at 845.
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statutory regulation of private conduct.44 By placing policy-oriented matter in the state constitution itself, any existing substantive limitations in the state constitution that might be applied by the courts if the policy had been adopted as a statute are eliminated. This leaves only the federal Constitution as a substantive limit. Perhaps consideration should be given to reviving the 1962 Oregon Commission for Constitutional Revision’s proposal to move certain policy-oriented provisions to a “statutory article” in the constitution.45 A similar approach, a “two-tiered” constitution, with an easier amendment procedure for “statutory” provisions, was briefly considered in New York in the 1960s.46
II PROPOSALS TO REVISE THE OREGON CONSTITUTION The fact that the question is again being raised in Oregon as to whether its constitution is obsolete, and therefore in need of revision or reform, puts the state in the company of several others that have considered reform in response to realizations such as those reflected in the introductory quote from Dr. Tarr.47 Further, calls for revision or reform of the Oregon Constitution are not new. Although it is clear that Oregon’s constitution has not been revised, it has been amended more frequently than the national average.48 This means that state-constitutional change, but not revision, has been regularly on the minds of Oregon political actors and citizens. And, even though the Oregon Constitution has never been formally reformed or revised, the possibility has certainly been considered by the legislature, but never presented to the voters. Thus, the call for a
44 Cf. David B. Frohnmayer & Hans A. Linde, Initiating “Laws” in the Form of “Constitutional Amendments”: An Amicus Curiae Brief, 34 WILLAMETTE L. REV. 749, 753–54 (1998) (arguing that rules imposing sanctions for private conduct are not proper subjects for “constitutional amendments”). 45 Comm’n for Constitutional Revision, State of Oregon, A New Constitution for Oregon: A Report to the Governor and the 52nd Legislative Assembly, 67 OR. L. REV. 127, 207–09 (1988). 46 Tarr & Williams, supra note 30, at 1117–18. 47 See also Richard B. Collins, The Colorado Constitution in the New Century, 78 U. COLO. L. REV. 1265 (2007); Hammons, supra note 20, at 1327 (“During the last decade the four most populous states in the Union—California, New York, Florida, and Texas— each conducted a serious review of its state constitution.”). 48 See supra notes 5–6 and accompanying text.
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“frequent recurrence to fundamental principles” is neither new in Oregon nor in other states.49 In fact, one might see the major change to the Oregon Constitution in 1902, which permitted use of the initiative to amend the state constitution, as constituting a form of revision.50 After all, it is this development that has led to major changes in the Oregon Constitution and that, to this day, leads to many of the calls for change in the Oregon Constitution. Actually, a movement for constitutional revision in Oregon began after World War II.51 Then, after the important 1960 amendment to authorize the legislature to submit a revised constitution to the voters, the Commission for Constitutional Revision made an ambitious proposal to the legislature,52 which passed the House but failed by one vote in the Senate.53 It does not appear that there has been another serious movement for revision until now. Interestingly, the 1960s wave of interest in the Oregon Constitution slightly predated the wave of attention to state constitutions following the U.S. Supreme Court’s one-person, one-vote decisions.54 As noted, the advent of the initiative method of amending Oregon’s constitution could be seen as a “revision.”55 It has certainly resulted in many changes in the state’s governing document, constituting a sort of “continuous revision.” No doubt any current revision efforts in Oregon would focus on modifications to the initiative process, at
49 See John Sundquist, Construction of the Wisconsin Constitution—Recurrence to Fundamental Principles, 62 MARQ. L. REV. 531, 547–51, 556 (1979). 50 Howard Leichter, Oregon’s Constitution: A Political Richter Scale, in THE CONSTITUTIONALISM OF AMERICAN STATES 756, 765 (George E. Connor & Christopher W. Hammons eds., 2008). An analogy could be drawn here to the limitation in some states on using the initiative to revise, as opposed to amend, the state constitution. This can be analyzed both quantitatively and qualitatively. See OR.CONST. art. IV, § 1(2)(c); Raven v. Deukmejian, 801 P.2d 1077 (Cal. 1990); Adams v. Gunter, 238 So. 2d 824 (Fla. 1970). 51 See Alfred T. Goodwin, The Commission for Constitutional Revision, 67 OR. L. REV. 1, 2 (1988). 52 Comm’n for Constitutional Revision, supra note 45. 53 Goodwin, supra note 51, at 10. 54 See James A. Henretta, Foreword: Rethinking the State Constitutional Tradition, 22 RUTGERS L.J. 819, 839 (1991) (“[S]tate legislatures have once again become relatively democratic and representative bodies as a result of the reapportionment revolution begun in 1962 by Baker v. Carr. Not accidentally, that decision spurred a wave of constitutional revision. No fewer than thirteen states revised their basic charters between 1963 and 1976, reviving at least in part, the tradition of activist popular sovereignty.” (footnote omitted)). 55 See supra note 50 and accompanying text.
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least in the area of state-constitutional change. One limitation has already occurred, when in 1998 the Oregon voters approved an amendment mandating that any proposed state-constitutional amendment imposing a supermajority voting requirement be ratified by at least an equivalent supermajority.56 It is quite unlikely that Congress, assuming it has the power to do so, will step in to limit the states’ use of the initiative for state-constitutional amendments.57 It appears that the avenues for judicially imposed (even by state courts) limits on the substance58 of initiated amendments to state constitutions, championed by Hans Linde, have been foreclosed.59 He and others have convincingly pointed out that when the U.S. Supreme Court, in a 1912 case that originated in Oregon, upheld the initiative process against a federal-constitutional challenge under the Guarantee Clause,60 it was dealing with a statutory initiative rather than a state-constitutional initiative.61 Of course, the statutory initiative merely supplements the legislature’s power, and initiated
56 OR.CONST. art. II, § 23; see generally Cody Hoesly, Comment, Reforming Direct Democracy: Lessons from Oregon, 93 CAL. L. REV. 1191 (2005). Florida recently amended its constitution (by majority vote) to require a sixty-percent majority vote to ratify any future state-constitutional amendment, from any source. See Marvin Krislov & Daniel M. Katz, Taking State Constitutions Seriously, 17 CORNELL J.L. &PUB.POL’Y 295, 316 n.60 (2008). 57 Would it be possible for Congress, rather than the federal or state courts, to provide some enforceable limits on state initiatives, along the lines outlined by Justice Linde? See Catherine Engberg, Note, Taking the Initiative: May Congress Reform State Initiative Lawmaking to Guarantee a Republican Form of Government?, 54 STAN. L. REV. 569 (2001); Elizabeth R. Leong, Note, Ballot Initiatives & Identifiable Minorities: A Textual Call to Congress, 28 RUTGERS L.J. 677 (1997). 58 For judicial enforcement of procedural limits, see Armatta v. Kitzhaber, 959 P.2d 49 (Or. 1998). See also Philip Bentley, Note, Armatta v. Kitzhaber: A New Test Safeguarding the Oregon Constitution from Amendment by Initiative, 78 OR. L. REV. 1139 (1999); Lehman v. Bradbury, 37 P.3d 989, 994–1001 (Or. 2002); Swett v. Bradbury, 43 P.3d 1094, 1099–1101 (Or. 2002). 59 See, e.g., State ex rel. Huddelston v. Sawyer, 932 P.2d 1145 (Or. 1997), cert. denied 522 U.S. 994 (1997); State v. Wagner, 752 P.2d 1136, 1197 n.8 (Or. 1988) (Linde, J. dissenting); David B. Frohnmayer & Hans A. Linde, State Court Responsibility for Maintaining “Republican Government”: An Amicus Curiae Brief, 39 WILLAMETTE L. REV. 1487 (2003); Hans A. Linde, Practicing Theory: The Forgotten Law of Initiative Lawmaking, 45 UCLA L. REV. 1735 (1998); Hans A. Linde, When Initiative Lawmaking Is Not “Republican Government”: The Campaign Against Homosexuality, 72 OR. L. REV. 19 (1993); Hans A. Linde, When Is Initiative Lawmaking Not “Republican Government?,” 17 HASTINGS CONST. L.Q. 159 (1989). 60 Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912); see also Kadderly v. City of Portland, 74 P. 710 (Or. 1903). 61 Pacific Telephone, 223 U.S. at 135.
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statutes would still be subject to limits contained in the state constitution. The State of Florida has what has been referred to as the most amendable state constitution in the country.62 A proposed state- constitutional amendment to be placed on the ballot by a citizens’ initiative, mandating humane treatment for pregnant pigs, was evaluated by the Florida Supreme Court for its validity (a requirement) prior to the referendum.63 The court approved the proposed amendment, letting it go to the ballot, and Justice Barbara Pariente concurred, noting: [T]he issue of whether pregnant pigs should be singled out for special protection is simply not a subject appropriate for inclusion in our State constitution; rather it is a subject more properly reserved for legislative enactment. I thus find that former Justice McDonald’s observations made when this Court reviewed the net fishing amendment continue to ring true today: “The merit of the proposed amendment is to be decided by the voters of Florida and this Court’s opinion regarding the wisdom of any proposed amendment is irrelevant to its legal validity. I am concerned, however, that the net fishing amendment is more appropriate for inclusion in Florida’s statute books than in the state constitution.”64 One could predict that at least some Oregon judges have similar opinions. Harry Scheiber has argued effectively that the use of the initiative to amend state constitutions does not advance the purposes of federalism.65 There have, of course, been a host of other arguments both against and in support of direct state-constitutional lawmaking, all of which are beyond the scope of this Article. In the absence of legal limits, what is the likelihood of limits politically imposed through changes to the Oregon Constitution that would modify either (1) the processes for the state-constitutional initiative, or (2) the substance of state-constitutional change that can be accomplished specifically through the initiative rather than through
62 See TALBOT D’ALEMBERTE,THE FLORIDA STATE CONSTITUTION:AREFERENCE GUIDE 146 (1991) (“The Constitution of Florida has more processes for amendment and revision than any other state constitution.”). 63 Advisory Opinion to the Attorney General Re Limiting Cruel and Inhumane Confinement of Pigs During Pregnancy, 815 So. 2d 597 (Fla. 2002). 64 Id. at 600 (Pariente, J., concurring) (quoting Advisory Opinion to the Attorney General—Limited Marine Net Fishing, 620 So. 2d 997, 999–1000 (Fla. 1993) (McDonald, J., concurring)). 65 See Harry N. Scheiber, Foreword: The Direct Ballot and State Constitutionalism, 28 RUTGERS L.J. 787 (1997).
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the other avenues of state-constitutional change? Any detailed analysis of this question must be undertaken within the specific Oregonian context and is, in any event, also beyond the scope of this article. It will be difficult to convince the voters to give up, or even modify, their “democratic” rights. Recent recommendations, however, do bear brief mention. Marvin Krislov and Daniel M. Katz examined the literature and empirical research on state-constitutional amendments through the initiative process and concluded that several moderate reforms, with particular reference to voters’ confusion and lack of information, should be considered.66 They concluded generally that state- constitutional initiatives were increasing in number67 and noted that, in Oregon and many other states, the incentive structure encouraged interest groups to propose constitutional amendments rather than statutes because the requirements and methods of disclosure to the voters were very similar.68 In response Krislov and Katz propose a number of procedural changes to differentiate constitutional from statutory initiatives and increase the information to the voters concerning the substance of the proposal and time for deliberation. Further, they recommend clearer disclosure to the voters that it is the relatively permanent state constitution they are being asked to amend, with the consequence of adoption being that the existing state constitution would be eliminated as any limit on the substance of the proposed amendment.69 These are sober and moderate recommendations with bases in empirical data. These and other proposed reforms of the constitutional initiative should be carefully considered in Oregon, regardless of the process that is utilized. After all, despite the fact that the initiative is democratic, it is a constitution that voters are amending.
66 See Krislov & Katz, supra note 56; see also Glen Staszewski, The Bait-and-Switch in Direct Democracy, 2006 WIS. L. REV. 17. For an assessment of initiatives (not just constitutional ones) from 1959 to 1993, concluding that they have had a negative impact on the civil rights of minority groups, see Barbara S. Gamble, Putting Civil Rights to a Popular Vote, 41 AM. J. POL.SCI. 245 (1997). 67 See Krislov & Katz, supra note 56, at 307–08. 68 See id. at 319. 69 See id. at 329–42.
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III TWENTIETH CENTURY CONSTITUTIONAL REVISION IN OTHER STATES A good deal can be learned from other states that have addressed the question of whether to revise their state constitutions. Looking at these experiences indicates that a number of different mechanisms have been utilized, that there have been successes and failures, and that in the final analysis each state presents its own unique set of state-constitutional concerns and challenges. The following brief summary is intended to suggest some key features in state- constitutional revision attempts in a number of states.
A. New Jersey (1947) New Jersey held a highly successful state-constitutional convention in 1947, which culminated many years of attempts at revision, including a legislatively proposed constitution that was voted down in 1944.70 This constitutional convention took place in the period of postwar optimism and confidence in government. Very strong gubernatorial leadership was a key element in both the approval of the constitutional convention and ratification of the convention’s recommended revised constitution by the voters.71 Furthermore, a key limitation was placed on the convention, thereby taking the question of reapportionment of the state senate off the table. This divisive issue, which threatened the control that small counties had over the state, had stood in the way of state-constitutional revision for more than a century.72 The convention met at Rutgers University, not in the state capital, to avoid the appearance of “politics as usual.”73 The leading commentator on the New Jersey State Constitutional Convention of 1947 concluded: First of all, the convention leaders had limited objectives, basically to update the court system and modernize the executive branch. They did not visualize their job as one of righting all the wrongs in New Jersey’s political and social system. Rather, they looked at the old constitution, at what history had shown to be its basic weaknesses, and tried to correct those that seemed alterable in
70 See generally RICHARD J. CONNORS, THE PROCESS OF CONSTITUTIONAL REVISION IN NEW JERSEY: 1940–1947 (1970). 71 See id. at 192–93; ROBERT F. WILLIAMS,THE NEW JERSEY STATE CONSTITUTION:A REFERENCE GUIDE 15–16 (1990). 72 See CONNORS, supra note 70, at 124–25; WILLIAMS, supra note 71, at 15–16. 73 See CONNORS, supra note 70, at 132–33.
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terms of the current political milieu. This provided marketability for the document and helped ensure its substantive integrity. The 1947 New Jersey constitution was relatively free from reformist gimmicks and untested panaceas. Limited goals also gave the constitution a more enduring character.74 Out of the 1947 process, New Jersey achieved a revised state constitution that gave it one of the best judicial systems in the United States, a very strong governor, and modern rights provisions concerning women’s rights, collective bargaining, and racial segregation.75
B. Michigan (1961–1962) After the 1960 adoption of an initiative amendment to the state constitution, which eased the requirements for calling a state- constitutional convention and required the question of whether a constitutional convention should be called to be placed on the ballot in 1961 and every sixteen years thereafter, Michigan held a constitutional convention in 1961 and 1962.76 The Governor created a study commission to prepare for the convention.77 After the legislature refused to provide funding for the operation of the commission, a private foundation stepped forward with financing.78 Slightly more than two-thirds of the delegates to the convention were Republican.79 The convention, by a wide margin, proposed a modernized constitution that was ratified by the voters and, with amendments, is still in effect today.80
C. Maryland (1966–1968) Following the U.S. Supreme Court’s one-person, one-vote decisions, the Governor of Maryland initiated the formation of a
74 Id. at 194. 75 For an excellent symposium commemorating the fiftieth anniversary of New Jersey’s constitution, see Tenth Annual Issue on State Constitutional Law, 29 RUTGERS L.J. 673 (1998). For a very interesting analysis of the 1947 ban on racial segregation, the first of its kind in the country, see Bernard K. Freamon, The Origins of the Anti-Segregation Clause in the New Jersey Constitution, 35 RUTGERS L.J. 1267 (2004). 76 See SUSAN P. FINO,THE MICHIGAN STATE CONSTITUTION:AREFERENCE GUIDE 20–21 (1996). 77 Id. at 21. 78 Id. 79 Id. at 21–22. 80 Id. at 23–24.
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Constitutional Convention Commission to prepare for a 1966 automatic (but not always honored by the legislature) referendum on whether to call a constitutional convention.81 The convention call was approved by the voters, convention delegates were elected, and the convention met from 1967 to early 1968.82 The convention’s proposed constitutional revision was soundly defeated at the polls in 1968.83 This has led Maryland’s experience to be referred to as the “Magnificent Failure.”84 One commentator has summarized the various views about the reasons for this failure: Some commentators have blamed the content of the proposed constitution, suggesting that it was “too liberal” for Maryland. Some have argued that the convention delegates themselves were too intellectual or too liberal to represent the Maryland electorate. Some political scientists point to the fact that the entire constitution was submitted to the voters for a single vote, as a “single package deal,” and suggest convincingly that this contributed to the defeat. Still others blame the convention delegates and those responsible for the ratification campaign for their lack of political skill. But all commentators agree that the proponents of the constitution failed to persuade the electorate of the necessity of constitutional revision.85 Interestingly, however, the convention’s proposals that were rejected in 1968 formed the basis for a number of specific state-constitutional changes over the following generation.86
D. Illinois (1968–1970) In the 1960s, the state of Illinios built on several “decades of effort by civic groups to provide a climate of opinion favorable to
81 See Dan Friedman, Magnificent Failure Revisited: Modern Maryland Constitutional Law from 1967 to 1998, 58 MD. L. REV. 528, 530–32 (1999). 82 See id. at 532–33; see generally WAYNE R. SWANSON ET AL., POLITICS AND CONSTITUTIONAL REFORM:THE MARYLAND EXPERIENCE, 1967–1968 (1970). 83 See Friedman, supra note 81, at 534; see also DAN FRIEDMAN,THE MARYLAND STATE CONSTITUTION:AREFERENCE GUIDE 9–10 (2006); Robert J. Martineau, Maryland’s 1967–68 Constitutional Convention: Some Lessons for Reformers, 55 IOWA L. REV. 1196 (1970). 84 See, e.g.,JOHN P. WHEELER,JR.&MELISSA KINSEY,MAGNIFICENT FAILURE:THE MARYLAND CONSTITUTIONAL CONVENTION OF 1967–1968 (1970). 85 Friedman, supra note 81, at 534–35 (footnotes omitted). 86 See id. at 529 (“This Article assesses the success or failure of the Maryland Constitutional Convention in light of the later adoption—by constitutional amendment, statute, or regulation—of many of the important innovations proposed in the 1967–1968 constitution.”).
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constitutional reform.”87 Despite the adoption in 1950 of an amendment to the state constitution that liberalized Illinois’s constitutional-amendment process, substantial revision had not taken place.88 The Illinois legislature created a Constitution Study Commission in 1965 and, after several years of deliberation, recommended the calling of a constitutional convention. The legislature followed this recommendation, together with the commission’s other suggestion that no other amendments be submitted to the voters at the 1968 general election.89 The voters approved the convention call after a privately funded campaign for adoption, which included substantial gubernatorial support. The private group relied on statewide opinion polls in designing its campaign.90 Interestingly, after the convention call was approved by the voters, a second commission was established by the legislature to advise it and the Governor on framing the “enabling act for the election of delegates and organization of the convention.”91 There was even a third commission created by the legislature to make preparations immediately before the convention was convened.92 The constitutional convention delegates, elected on a nonpartisan basis, worked from December 1969 through September 1970.93 The site of the convention was moved from the legislative chambers to a different location, primarily to make room for the legislative session, but also to put some distance between the convention and “ordinary politics.” This had been done successfully with New Jersey’s 1947 constitutional convention and Alaska’s 1955 to 1956 convention.94 The convention succeeded in proposing a modernized constitution for Illinois that voters adopted in December 1970.95 The president of the Illinois constitutional convention, Samuel Witwer, reflected on the experience:
87 JANET CORNELIUS,CONSTITUTION MAKING IN ILLINOIS, 1818–1970, at 138 (1972). 88 See id. at 123–37. 89 See id. at 139–40. 90 See id. at 142. 91 Id. at 144. 92 Id. at 144 n.6. 93 See id. at 149–55. 94 Id. at 153. 95 See id. at 162–63; see generally The Illinois Constitution of 1970: A Symposium Issue, 6 J. MARSHALL J. PRAC.&PROC. 213 (1973).
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From the outset, the convention delegates were reminded, with an eye to ultimate voter approval, that their task was to write not the best possible constitution but rather the best constitution that could possibly be adopted in this politically complex state. I believe that we came close to that goal. But such a choice implies unmet governmental needs and continued opportunities for further constitutional reforms.96
E. Virginia (1968–1970) Substantial revision of the Virginia Constitution was accomplished through the constitutional commission process.97 The commission, with strong gubernatorial backing,98 was authorized by the legislature, and its members were named by the Governor in 1968.99 After detailed study, public hearings, and deliberation, the commission submitted its report to the Governor and the legislature at the beginning of 1969.100 Based on the commission’s recommendations, the legislature debated the proposals and presented its proposed revisions to the voters in four separate questions rather than as “a take-it-or-leave-it package in which they were obliged to approve or disapprove all the constitutional changes in a single question.”101 It is very important to note that in Virginia, after the proposals of the commission were debated, revised, and placed before the voters by the legislature, a privately funded committee was created to inform the people of Virginia about the proposed changes and to encourage their support.102 The leading commentator on Virginia’s successful constitutional revision, Professor A.E. Dick Howard (a participant in the process himself), has thoughtfully compared Virginia’s success with problems encountered in constitutional revision in other states during this period.103 He
96 Samuel W. Witwer, Introduction, 6 J. MARSHALL J. PRAC.&PROC. 213, 213 (1973). 97 See A.E. Dick Howard, Adopting a New Constitution: Lessons from Virginia, in STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY: THE POLITICS OF STATE CONSTITUTIONAL REFORM, supra note 15, at 73, 74. 98 See id. at 74, 101. 99 Id. at 74–75. 100 See id. at 75; see also COMM’N ON CONSTITUTIONAL REVISION,THE CONSTITUTION OF VIRGINIA (1969). 101 Howard, supra note 97, at 78, 95. 102 See id. at 78–85. 103 See id. at 86–96; see generally A.E. Dick Howard, “For the Common Benefit”: Constitutional History in Virginia as a Casebook for the Modern Constitution-Maker, 54 VA. L. REV. 816 (1968).
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pointed to strong political support, effective background research, moderation in making proposals, and an effective public-relations campaign in support of the revised constitution as factors contributing to Virginia’s success.104
F. Montana (1967–1972) In 1967, the Montana legislature assigned its Legislative Council to prepare “a study of the Montana Constitution, to determine if it was adequately serving the current needs of the people.”105 Based on the Council’s recommendation, the legislature created a Constitutional Revision Commission in 1969.106 The Montana Constitution includes a provision requiring an automatic question to be placed on the ballot every twenty years as to whether there should be a constitutional convention.107 The creation of the Constitutional Revision Commission was taken in anticipation of that vote in 1970, which was approved by a wide margin. Following legislative authorization and creation of a commission to prepare for the convention, the Montana Constitutional Convention met in 1972.108 The convention met at a time when it could draw on two significant trends in state constitutionalism. The first was the movement toward “managerial constitutionalism”:109 These managerial reformers believed that state government had to be restructured to facilitate vigorous action. Failure to create such proactive state governments, they argued, would result in the erosion of state power, as citizens increasingly looked to the national government to address their concerns. To establish an effective state government, they insisted, required a constitution that was flexible and adaptable, that placed few restrictions on how the state government addressed current and future problems.110 Second, there was a more recent trend called “constitutional populism”:111
104 See Howard, supra note 97, at 86–96. 105 LARRY M. ELISON &FRITZ SNYDER,THE MONTANA STATE CONSTITUTION:A REFERENCE GUIDE 8 (2001). 106 Id. 107 MONT.CONST. art. XIV, § 3. 108 See ELISON &SNYDER, supra note 105, at 9–10. 109 G. Alan Tarr, The Montana Constitution: A National Perspective, 64 MONT. L. REV. 1, 13 (2003). 110 Id. (footnote omitted). 111 Id. at 14.
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The adherents of this newer view . . . distrust activist government. They are skeptical about their state legislature becoming a “little Congress,” their governor a “little president,” or their supreme court a “little Warren Court.” They want not a resurgence of state government but greater control over what they perceive as overly expensive and powerful state governments that are insulated from popular concerns and popular control.112 Dr. Tarr concluded that the Montana Constitution “reflects a judicious blending of the recommendations of both these reform movements.”113 But he also concluded that the 1972 Montana Constitutional Convention went beyond these two themes and included a number of important innovations, including concern for the cultural heritage of Native Americans, expressions of the right to privacy and rights against private entities, and concern for the environment.114 Interestingly, voters adopted the 1972 Montana Constitution, which was submitted as a revised constitution, by an extremely narrow margin even though it had separate votes on three controversial issues: a unicameral legislature, the death penalty, and legalized gambling.115 A legal challenge, contending that the constitution was actually not ratified by a majority, was rejected by the Montana Supreme Court by a three-to-two vote.116 Despite this narrow margin of approval, the Montana voters rejected overwhelmingly the opportunity to call another constitutional convention twenty years later in 1990.117
G. Louisiana (1973) The people of Louisiana, also after a number of attempts and with the help of strong gubernatorial leadership,118 convened a constitutional convention in 1973. One leading commentator concluded, with respect to the convention’s product, “[l]ittle
112 Id. 113 Id. at 15. 114 See id. at 16–17. 115 See ELISON &SNYDER, supra note 105, at 14–15. 116 State ex rel. Cashmore v. Anderson, 500 P.2d 921, 929 (Mont. 1972); see also ELISON &SNYDER, supra note 105, at 15–16. 117 See ELISON &SNYDER, supra note 105, at 16; Tarr, supra note 109, at 20–21; see generally The Honorable James R. Browning Symposium, The 1972 Montana Constitution: Thirty Years Later, 64 MONT. L. REV. 1 (2003). 118 See LEE HARGRAVE,THE LOUISIANA STATE CONSTITUTION:AREFERENCE GUIDE 16 (1991).
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substantive change resulted, but the document was superior technically. It was simplified, shortened, and made more consistent. It was more of a triumph of the legal technicians than of the reformers.”119 There were, however, some interesting modern innovations in the rights provisions of the Louisiana Constitution, including an equal protection clause as well as a provision stating that “[n]o law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations.”120
H. Texas (1971–1975) After the U.S. Supreme Court reapportionment decisions and early gubernatorial support, the Texas Legislature proposed a constitutional amendment that would authorize the legislature itself to serve as a unicameral constitutional convention in 1974.121 This amendment also provided for a preparatory constitutional revision commission. After approval of this amendment by the voters, the legislature established the Constitutional Revision Commission, which was widely representative of the Texas citizenry.122 The commission engaged in a broadly inclusive process and recommended a revised state constitution to the Texas Legislature, which convened as a constitutional convention for six months in 1974. Ultimately, the convention adjourned “after failing by three votes to approve the final revision package.”123 Dr. Janice May, a member of the Constitutional Revision Commission, explained this failure:
119 Id. at 17. 120 LA.CONST. art. I, § 3; see also Lee Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 LA. L. REV. 1, 6–10 (1974); Louis “Woody” Jenkins, The Declaration of Rights, 21 LOY. L. REV. 9, 16–19 (1975). Paradoxically, this provision, which stimulated support by the NAACP for the 1974 constitution, was held by the Louisiana Supreme Court to ban all forms of affirmative action. La. Associated Gen. Contractors, Inc. v. State, 669 So. 2d. 1185, 1188 (La. 1996); see also Robert F. Williams, Shedding Tiers “Above and Beyond” the Federal Floor: Loving State Constitutional Equality Rights to Death in Louisiana, 63 LA. L. REV. 917, 917–18 (2003). 121 See JANICE C. MAY,THE TEXAS STATE CONSTITUTION:AREFERENCE GUIDE 24– 25 (1996). 122 See id. at 25. 123 Id. at 26; see also TEX.CONSTITUTIONAL REVISION COMM’N,ANEW CONSTITUTION FOR TEXAS:SEPARATE STATEMENTS OF COMMISSION MEMBERS (1973); TEX.CONSTITUTIONAL REVISION COMM’N, A NEW CONSTITUTION FOR TEXAS:TEXT, EXPLANATION,COMMENTARY (1973).
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Several reasons have been put forward to explain the convention’s failure to agree on a new constitution. Among the most plausible are the following: the lame-duck status and relative inexperience of the convention president; the legislative political environment in an election year that exacerbated divisive tendencies; several controversial propositions, including a constitutional right-to-work proposal that generated bitter labor union opposition; the solid Black Caucus bloc vote against the final package; a spirited race for the speakership for the next legislature that was going on during the convention; and the two-thirds vote requirement of the authorizing constitutional amendment, which under normal conditions might not have mattered but possibly did in the highly unusual and politically charged situation at the convention.124 Interestingly, at its next regular session, the Texas Legislature submitted most of the proposed changes it had considered but failed to recommend in 1974, while sitting as a constitutional convention, to the voters in 1975 as eight separate amendments at a special election. In a very light turnout, after a poorly funded campaign, the voters overwhelmingly rejected the proposals.125
I. Georgia (1983) Based on the recommendations of a Constitutional Revision Commission, the Georgia legislature engaged in a two-month extraordinary session in 1964 and adopted a new constitution.126 The document was, however, never submitted to the people because of a federal court decision declaring that it was the product of a malapportioned legislature.127 Despite the fact that the U.S. Supreme Court ultimately vacated the judicial decision,128 the new constitution was never submitted to the voters.129 In the 1970s, however, strong gubernatorial leadership led to the recommendation that the legislature prepare a revised constitution, but one without substantive revision. This revision was
124 MAY, supra note 121, at 26–27. 125 See id. at 27, 404; see also Janice C. May, Texas Constitutional Revision: Lessons and Laments, 66 NAT’L CIVIC REV. 64 (1977). 126 MELVIN B. HILL,JR., THE GEORGIA STATE CONSTITUTION:AREFERENCE GUIDE 14 (1994). 127 Toombs v. Fortson, 205 F. Supp. 248, 258–59 (N.D. Ga. 1962), vacated, 379 U.S. 621 (1965); see also HILL, supra note 126, at 14. 128 Fortson v. Toombs, 379 U.S. 621, 622 (1965). 129 HILL, supra note 126, at 14.
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accomplished, and the voters adopted the document in 1976 by a wide margin.130 The legislature immediately embarked on a process leading to substantive revision of the Georgia Constitution. The process was also based on strong gubernatorial leadership.131 A multiyear legislative process culminated in 1982, and the legislative product was submitted to the people and adopted overwhelmingly.132 A commentator on the Georgia legislative process concluded: Perhaps because the document was supported by the leadership of all three branches of state government, perhaps because there was an organized public education campaign to explain it, perhaps because there was no organized opposition to the proposal, or perhaps just because the people had grown weary of twenty years’ worth of “talk” about constitutional revision, the proposed new constitution was approved overwhelmingly at the 1982 election . . . .133
J. California (1993–1996) In California, a Constitutional Revision Commission met beginning in 1993 during a budget crisis and made its recommendations to the legislature in 1996.134 Dr. Bruce Cain, a member of the Commission, noted, “[t]his Commission undertook a comprehensive look at California governance and ultimately proposed some far-reaching and imaginative ideas. But in the end, these recommendations never got to a vote in the legislature, let alone a place on the ballot.”135 Apparently, the Revision Commission’s proposals were essentially doomed when they were sent to the legislature because of an improved economy, the complexity of some
130 See id. at 15. 131 See id. at 16. 132 See id. at 19. 133 Id. There was criticism of the Georgia process on the ground that it did not adequately involve the people in “popular sovereignty.” See Henretta, supra note 54, at 830–31. 134 See Bruce E. Cain, Constitutional Revision in California: The Triumph of Amendment Over Revision, in 1 STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY: THE POLITICS OF STATE CONSTITUTIONAL REFORM, supra note 15, at 59, 67. 135 Id. at 60; see also CAL.CONST.REVISION COMM’N,FINAL REPORT AND RECOMMENDATIONS TO THE GOVERNOR AND THE LEGISLATURE (1996), http://www.caforward.org/dynamic/subpages/sb_subpages_text_9_english_2248.pdf.
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of the issues, and the vested interests of a number of legislators and other elected officials.136
K. Florida (1967, 1977, 1997) Beginning in 1965, the Florida Legislature authorized a constitutional commission to prepare a revised draft of its 1885 constitution. The Commission’s product was presented to the legislature, which held a special session during the summer of 1967 to consider and modify the Commission’s recommendations. The legislature’s recommended revised constitution was adopted by the people and went into effect in 1968.137 Florida’s 1968 constitution contained a unique mechanism for future state-constitutional change: an appointed constitution revision commission would be automatically created every twenty years (ten years for the first cycle), with the power to place its recommendations directly on the ballot for the voters’ approval without sending the recommendations to the legislature.138 This new mechanism was unprecedented and constituted “a leap of faith into the future, a license to later generations with no guarantees as to the substantive outcomes that would flow from the new process.”139 This mechanism was, of course, highly disturbing to the state legislature, but the people of Florida rejected an amendment to the state constitution to remove the constitutional revision commission process.140 In fact, the Florida Constitution was amended to authorize the same commission procedure, with direct access to the ballot, for budget and finance
136 See Cain, supra note 134, at 65–70; see also CONSTITUTIONAL REFORM IN CALIFORNIA:MAKING STATE GOVERNMENT MORE EFFECTIVE AND RESPONSIVE (Bruce E. Cain & Roger G. Noll eds., 1995). 137 Rebecca Mae Salokar, Constitutional Revision in Florida: Planning, Politics, Policy, and Publicity, in 1 STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY: THE POLITICS OF STATE CONSTITUTIONAL REFORM, supra note 15, at 19, 21–22; D’ALEMBERTE, supra note 62, at 11–13. 138 D’ALEMBERTE, supra note 62, at 13; Salokar, supra note 137, at 22; Robert F. Williams, The Florida Constitution Revision Commission in Historic and National Context, 50 FLA. L. REV. 215, 220 (1998). 139 Robert F. Williams, Foreword: Is Constitutional Revision Success Worth Its Popular Sovereignty Price?, 52 FLA. L. REV. 249, 255 (2000). 140 See D’ALEMBERTE, supra note 62, at 15.
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matters.141 Several other states have considered Florida’s commission mechanism, but none have adopted it.142 Florida’s initial experience with this constitution revision mechanism ended in a failure. The 1977 Commission submitted eight propositions to the voters and all of them were defeated.143 A casino gambling amendment was also on the ballot and the Governor exerted great energy opposing it, which left him with little time to support the Commission’s proposals.144 Further, there was no organization or funding to support the proposed revisions. Interestingly, however, the Commission’s proposals set the agenda for state-constitutional discussions over the next decade, and a number of its recommendations were later adopted through the amendment process.145 The 1997 Constitution Revision Commission, however, was much more successful. A preparatory committee developed background research and even proposed rules for the Commission.146 It learned a number of lessons from the unsuccessful commission of twenty years earlier and made a number of recommendations that were accepted by the voters.147 The commission successfully utilized opinion polling during its deliberations.148 The proposals were much more moderate than those of 1978 because the Commission required a super-majority vote before recommending a state-constitutional change, and an organization was put into place to support the proposed revisions.149 As a member of the Florida Bar, and a native Floridian, I had some involvement in these processes and asked the following question: So, the question to be asked by Floridians, as well as those in other states who are watching Florida’s experiment in the processes of state constitutionmaking, is whether the very expansive
141 FLA.CONST. art. XI, § 6; see generally Donna Blanton, The Taxation and Budget Reform Commission: Florida’s Best Hope for the Future, 18 FLA.ST. U. L. REV. 437 (1991). 142 See Williams, supra note 138, at 256–58. 143 See D’ALEMBERTE, supra note 62, at 15; Salokar, supra note 137, at 26. For a complete analysis of the 1978 Commission’s proposals, see Symposium on the Proposed Revisions to the Florida Constitution, 6 FLA.ST. U. L. REV. 565 (1978). 144 See Salokar, supra note 137, at 47. 145 Cf. Williams, supra note 139, at 257 n.30 (citing sources supporting this proposition). 146 See Salokar, supra note 137, at 34. 147 See id. at 35–37, 44. 148 See id. at 48–49. 149 See id. at 35–37, 47; Williams, supra note 139, at 260–61.
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deliberative record of the commission, its arguable independence, and its success in convincing the voters to accept its proposals make up for its seemingly reduced legitimacy on account of its appointed, rather than elected, membership.150 I concluded: It is probably safe to say that Florida conducted the most open and accessible review of a state constitution in the history of our country. This is the source of the Commission’s legitimacy with the living generation, even in the absence of prospective authorization by the current generation. . . . Popular participation and deliberation have taken the place of popular stimulus in Florida constitutional revision.151 Florida’s process has been characterized by substantial preparatory work and gubernatorial leadership.152 The 1997 process, in contrast to that in 1977, included an important post-commission process of publicizing and supporting its proposals.153
L. New York (1967, 1997) New York had a constitutional convention in 1967 that was highly partisan and dominated by legislative leaders.154 The revised constitution presented by that convention was defeated at the polls by the voters.155 One recent analyst of these events noted: Sitting legislators and others in the government industry were heavily represented at the convention. And, especially offensive to some, during the year that the convention met, the constitutional provision for delegate compensation “required” the legislators who
150 Williams, supra note 139, at 260. The Florida process was criticized for not adequately involving the voters. See generally Joseph W. Little, The Need to Revise the Florida Constitutional Revision Commission, 52 FLA. L. REV. 475 (2000). 151 Williams, supra note 139, at 270. 152 See Salokar, supra note 137, at 26–33. 153 See id. at 44–51. 154 Gerald Benjamin, The Mandatory Constitutional Convention Question Referendum: The New York Experience in National Context, in STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY: THE POLITICS OF STATE CONSTITUTIONAL REFORM, supra note 15, at 145, 155; see generally HENRIK N. DULLEA,CHARTER REVISION IN THE EMPIRE STATE:THE POLITICS OF NEW YORK’S 1967 CONSTITUTIONAL CONVENTION (1997). 155 Benjamin, supra note 154, at 155; see also Lewis B. Kaden, The People: No! Some Observations on the 1967 New York Constitutional Convention, 5 HARV. J. ON LEGIS. 343 (1968); Robert B. McKay, Constitutional Revision in New York State: Disaster in 1967, 19 SYRACUSE L. REV. 207 (1967).
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were also delegates, and others on public payrolls, to collect two salaries and the attendant pension benefits.156 In 1993, in preparation for the 1997 automatic vote in New York on whether to call a constitutional convention, the Governor appointed a Constitutional Revision Commission to educate the public prior to the vote and to develop possible constitutional proposals to obviate the necessity of calling a constitutional convention. There was no legislative funding, so the Commission had to operate with gubernatorial discretionary funds.157 The Commission ultimately recommended a unique action-producing alternative to a state-constitutional convention. The Commission’s report sought to change the focus from the constitutional convention to specific policy areas that were in need of reform. These were “fiscal integrity, state [and] local relations, education, and public safety.”158 One analyst explained: The Commission proposed the creation of four Action Panels designed to break the political/policy logjam in all of these issue areas. The panels would create integrated packages of legislation and constitutional amendments by the close of the 1996 legislative session. In creating these panels, the Commission also asked that the governor and legislature “clearly commit themselves to take definitive action on these final proposals by a date certain.”159 When the legislature failed to act, the Commission recommended that the voters approve the call for a constitutional convention. Despite a vigorous campaign, including strong gubernatorial support, the voters rejected the call in 1997.160 Dr. Gerald Benjamin concluded that the 1997 vote did not come at a propitious time, that legislators opposed the calling of a convention that was unlimited and not their idea, that there was a lack of a strong campaign supporting the constitutional convention call, and that there was an array of interest groups that feared a constitutional convention and potential changes to the status quo.161
156 Benjamin, supra note 154, at 155; see also PETER J. GALIE,THE NEW YORK STATE CONSTITUTION:AREFERENCE GUIDE 28–29 (1991). 157 Benjamin, supra note 154, at 153. 158 Id. at 157. 159 Id. (citing TEMPORARY STATE COMM’N ON CONSTITUTIONAL REVISION, EFFECTIVE GOVERNMENT NOW FOR THE NEW CENTURY (1995)); see also Documents, 26 RUTGERS L.J. 1355, 1394–95 (1995) (excerpts from the Commission’s report). 160 See Benjamin, supra note 154, at 158–63. 161 See id. at 159–66; see generally DECISION 1997: CONSTITUTIONAL CHANGE IN NEW YORK (Gerald Benjamin & Henrik N. Dullea eds., 1997).
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M. Alabama (1994–present) Alabama is still operating under its 1901 constitution. Efforts at reforming the constitution go back many years, but there has been a renewed emphasis on reform in the past decade or so.162 Despite strong gubernatorial leadership, and a broad grassroots organization that supported constitutional revision, voters rejected overwhelmingly a package of tax reforms and an amendment permitting the simplification of Alabama’s longest-in-nation state constitution.163 Despite this defeat, the activities of the past decade have gone a long way to raise the level of civic debate about the state constitution, and possibly the “events of 2003 may prove to be the opening skirmish for a greater battle ahead.”164
N. Lessons for the Future There are a number of lessons that can be learned even from this kind of superficial review of state-constitution making over the past several generations: • State-constitutional revision can be a long, multistage, difficult process with no guarantee of success, that sometimes spans a number of decades. In Oregon, the movement for constitutional revision beginning either now, or in the 1960s, or even earlier after World War II,165 may provide this background. • Sometimes the existing processes of state-constitutional change must themselves be reformed, even on a one-time basis, to make way for successful state-constitutional revision. Oregon’s 1960 change permitting a legislatively proposed revision brought real revision to within one Senate vote of success in 1962 (at least for presentation to the voters). • The timing of state-constitutional revision must be right for both citizens and political actors. State-constitutional revision, regardless of its merits, can be overshadowed by other matters such as other proposed constitutional amendments, legislative
162 See H. Bailey Thomson, Constitutional Reform in Alabama: A Long Time in Coming, in STATE CONSTITUTIONS FOR THE TWENTY–FIRST CENTURY: THE POLITICS OF STATE CONSTITUTIONAL REFORM, supra note 15, at 113, 113–24; see generally Symposium on the Alabama Constitution, 33 CUMB. L. REV. 187 (2003). 163 See Thomson, supra note 162, at 126–38. 164 Id. at 139; see also Symposium, Celebrating the Centennial of the Alabama Constitution: An Impetus for Reflection, 53 ALA. L. REV. 1 (2001). 165 See Goodwin, supra note 51, at 2.
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reapportionment (as in Oregon in 1962), changing economic conditions, election campaigns, and changing political climate. • Strong, active gubernatorial leadership is necessary, but not always sufficient, for successful state-constitutional revision. Even gubernatorial support for constitutional revision in Oregon in the 1950s and ’60s was not sufficient, but probably contributed to the almost successful effort. • State-constitutional revision takes place within the state’s ongoing political structure, and changes in state constitutions involve important political questions. • Detailed preparations must be attended to, concerning the following issues: (1) whether a constitutional convention call should be made or a constitutional commission created; (2) how the commission should inform and educate the public prior to the vote if a constitutional convention call is to be made; (3) what should be included within the constitutional convention call (i.e., an unlimited or a limited convention) or commission mandate; (4) which process to use when electing delegates if a constitutional convention call is to be made, or appointing members if a commission is to be used, with a preference for a nonpartisan approach;166 (5) how to legislatively implement a positive decision by the voters on a convention call; and (6) prior to a constitutional convention or commission, how to conduct background research and create a proposal of draft rules, preferably prepared by a separate committee or commission. • The legislature may refuse, through an exercise of legislative “passive aggression,”167 to provide funding for any of these preparatory activities. Under such circumstances there may be a need for private or gubernatorial funding. • The convention or commission must focus on what is politically achievable, rather than the best theoretical state-constitutional revision. The convention or commission must therefore engage in self-restraint and structure its deliberations and voting so that proposed revisions are recommended by substantial consensus. State-constitutional revision is the art of the possible.
166 See Richard Briffault, Electing Delegates to a State Constitutional Convention: Some Legal and Policy Issues, 36 RUTGERS L.J. 1125, 1156–57 (2005). 167 Gerald Benjamin, The Mandatory Constitutional Convention Question Referendum: The New York Experience in National Context, 65 ALB. L. REV. 1017, 1023 (2002); Tarr & Williams, supra note 30, at 1100 n.130.
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• Leadership in constitutional conventions and commissions is absolutely crucial to the success of such bodies.168 • Consideration should be given to holding the convention or commission sessions away from the state capital, as in New Jersey in 1947, to avoid the appearance of “politics as usual.” • Widespread use of modern information technology, such as interactive websites, email, and live internet video coverage should be used to educate and involve the public in a transparent, deliberative constitutional-revision process. Modern public-opinion polling and focus group techniques can be used during deliberations to predict the political acceptance of certain proposed constitutional changes and to inform constitution-makers of needed modifications prior to adoption and submission of final proposals to the voters. • The convention or commission or, in states like Oregon, the legislature, should give serious consideration to separating controversial proposals for their individual presentation to the voters rather than a single “take-it-or-leave-it” package. On the other hand, if proposals are interdependent as part of a coherent revision, they should be identified as such to the voters and presented together if possible under the state’s established processes. If required to be presented separately, the proposals should be interlocked so that the adoption of each is dependent on the adoption of the others. • There must be a well-funded organization (probably not governmental) to advocate for the proposed revisions after the convention or commission has made its recommendations. • Even a disappointing, apparent “failure” of substantial state- constitutional revision or reform may actually have the positive effect of setting the terms of debate concerning piecemeal constitutional change by amendment over the following generation. To some extent, this has been said of Oregon’s 1962 one-vote “failure.”169 These and many other lessons can be drawn from the state- constitutional revision experience in other states in the second half of
168 See ELMER E. CORNWELL,JR., ET AL., STATE CONSTITUTIONAL CONVENTIONS 199 (1975) (“The key roles played by the presidents of the various conventions emerged unmistakably. All that we know descriptively about convention behavior underscores the vital importance of the role of the presiding officer.”). 169 See Goodwin, supra note 51, at 10.
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the twentieth century. Such lessons must be applied, however, in the current, Oregonian context.
IV STATE-CONSTITUTIONAL REVISION IN THE TWENTY-FIRST CENTURY
Constitutional revision is not for the faint of heart. It is not a Sunday drive in the mountains. It is an incredibly difficult, sometimes tedious, sometimes exhilarating, always challenging undertaking requiring the cooperation of the leadership of all three branches of state government, of counties, municipalities, and local school boards, of the business community and the labor community, of public interest groups and private interest groups, of people inside the government and people outside the government—in short, it requires the cooperation of just about everybody. Georgia Governor George D. Busbee (1983)170 Since the drafting of the 1859 Oregon Constitution, both the processes for revising and the content of state constitutions have undergone dramatic change. First, the process of state-constitutional reform or revision has been transformed from an exercise of citizens’ popular sovereignty171 to a more elite and professional exercise. According to Alan Tarr: Perhaps the most striking trend is toward the professionalization of state constitutional change. . . . Typically, it has been political elites and professional reformers who have campaigned for constitutional revision, with the populace reduced to rejecting convention calls and proposed constitutions to register its distrust of a process that it no longer feels it controls.172 Could this view accurately describe the current concern for constitutional revision in Oregon? Is there any grassroots wave of concern about the Oregon Constitution? Could there be with adequate public education? Further, since Oregon’s original constitution was drafted, the content of many of the states’ constitutions (including Oregon’s) has evolved from short, basic documents of government organization and citizen rights to longer constitutions that include a number of specific
170 George D. Busbee, An Overview of the New Georgia Constitution, 35 MERCER L. REV. 1, 1–2 (1983). 171 See Henretta, supra note 54, at 826. 172 TARR, supra note 22, at 170.
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policies that could have been left to the legislature.173 In fact, there has been a major shift in the idea of what the function of a state constitution should be and what matters are important enough to be contained therein.174 Christian Fritz noted this shift in the attitudes of constitution-makers during the nineteenth century as the American society and economy became more complex, particularly with the rise of powerful corporations.175 These constitution-makers believed that they needed to include more material in state constitutions, even if it was in areas that could, theoretically, be governed by legislation. Professor Fritz concluded: The key to explaining the growing length of nineteenth-century constitutions lies in the delegates’ understanding of the purpose of constitutions. There was common agreement that the nature and object of constitutions extended beyond fundamental principles to what delegates called constitutional legislation. Delegates willingly assumed an institutional role that occasionally supplanted the ordinary legislature.176 Oregon has a number of available opportunities for state- constitutional revision as opposed to piecemeal amendment. Of course, a process of piecemeal amendment may turn out to be adequate for state-constitutional problems that exist in Oregon. In any event, the Texas approach of a one-time state-constitutional amendment, which authorizes the legislature to convene as a constitutional convention and submit its proposed revised constitution to the people either as a single package or separate propositions, is already a possibility. The Michigan and Illinois changes in their processes of constitutional change are other approaches. These processes would represent a form of staged constitutional revision, utilizing a vote of the people at two points: first, to approve the amendment modifying the process of revising the constitution (even on a one-time basis); and second, at the point of approval or rejection of the revision proposal or proposals. A variation on this approach would be to propose an amendment adopting a Florida-style appointed constitution revision commission, even on a one-time basis,
173 See id. at 9–12. 174 See id. at 132–33. 175 See Christian G. Fritz, Rethinking the American Constitutional Tradition: National Dimensions in the Formation of State Constitutions, 26 RUTGERS L.J. 969 (1995) (book review). 176 Christian G. Fritz, The American Constitutional Tradition Revisited: Preliminary Observations on State Constitution-Making in the Nineteenth-Century West, 25 RUTGERS L.J. 945, 964–65 (1994).
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with authority to submit its proposal or proposals directly to the people. This would also involve two exercises of popular sovereignty or votes by the people of Oregon. Next, the “extratextual” approach of a constitution revision commission that would make recommendations to the legislature could be utilized.177 State-constitutional commissions can be created either by the legislature or the governor, and may receive funding from either source.178 Such commissions can be limited in their mandate. Legislatures have sometimes authorized state-constitutional commissions as a substitute for a constitutional convention that is feared by the legislature.179 State-constitutional commissions can also be utilized to prepare for and assist a constitutional convention.180 New Jersey even recently utilized a commission (“Task Force”) to advise the legislature on how to call and structure a limited constitutional convention on property tax.181 In a number of states, commissions have failed at certain points in time only to succeed in a later generation, and vice versa. Just because commissions failed in Oregon in the 1960s does not mean one or more of them would fail now. Finally, commissions can evaluate the need for mere change or more extensive revision and the possible processes for each. In this way, these questions can be fully evaluated rather than prejudged without sufficient consideration. With respect to calling a constitutional convention itself, article XVII, section 1 of the Oregon Constitution only requires that a onetime majority vote of the legislature is necessary to ask the voters to approve or reject a constitutional convention. This leaves maximum flexibility with the legislature to provide for the election of delegates, the timing of the convention, and other details. Only states whose constitutions do not mention constitutional conventions at all possess greater flexibility.182 By contrast, some states specify the nature of the question to be put to the voters concerning a
177 Robert F. Williams, Are State Constitutional Conventions Things of the Past? The Increasing Role of the Constitutional Commission in State Constitutional Change, 1 HOFSTRA L. &POL’Y SYMP. 1, 2 (1996); see also Peter J. Mazzei & Robert F. Williams, “Traces of Its Labors”: The Constitutional Commission, The Legislature, and Their Influence on the New Jersey State Constitution, 1873–1875, 33 RUTGERS L.J. 1059, 1062– 68 (2002). 178 Williams, supra note 177, at 4–5. 179 Id. at 9. 180 Id. at 11. 181 See Tarr & Williams, supra note 30, at 1104–05. 182 Id. at 1086, 1090.
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constitutional convention, the form of which sometimes precludes the possibility of a limited constitutional convention.183 Therefore, it seems as though the Oregon Constitution would provide no barrier to a limited constitutional convention, if the limits were specified by the legislature and approved by the voters.184 This way certain controversial or hot-button topics could be taken off the table, leaving room to achieve necessary state-constitutional revision. Gerald Benjamin and Thomas Gais have observed what they call “conventionphobia” in this country.185 Even states with an automatic vote on whether to call a convention have not had recent success. “In the quarter century between 1960 and 1985 automatic convention calls were approved only in New Hampshire, Rhode Island and Alaska. . . . In each of four states that provided for an automatic convention call during the early 1990s—Alaska, New Hampshire, Ohio and Michigan—majorities have rejected the opportunity.”186 This has also occurred in New York, Rhode Island, Illinois, and Montana and, in 2008, in Hawaii, Illinois, and Connecticut. The rejection of convention calls has been occurring at the same time that dissatisfaction with state government has been increasing. The public seems to view a constitutional convention as political business as usual by the “government industry.”187 Constitutional conventions seem to have lost their legitimacy in the public mind. At the time Oregon’s original constitution was drafted, the politicians and special interests were afraid of the people acting through constitutional conventions. Now, by contrast, the people are afraid of politicians and special interests acting through constitutional conventions. In 1859, limited constitutional conventions were not used to alleviate the fears of voters, politicians, and vested interests.
183 Id. at 1086–87. 184 See id. at 1086–92. 185 Gerald Benjamin & Thomas Gais, Constitutional Conventionphobia, 1 HOFSTRA L. &POL’Y SYMP. 53, 69 (1996). 186 Id. (footnote omitted). Gais and Benjamin had observed a year earlier: The number of active constitutional conventions has also dropped from seven between 1968 and 1969, to just two between 1978 and 1979, to none between 1990 and 1991. Moreover, all of the convention calls that some states are required to put on their ballots have gone down to defeat in recent years: New Hampshire, Alaska, and Montana placed such questions before the voters between 1990 and 1992, but all were defeated, as was Michigan’s in 1994. Thomas Gais & Gerald Benjamin, Public Discontent and the Decline of Deliberation: A Dilemma in State Constitutional Reform, 68 TEMP. L. REV. 1291, 1303 (1995). 187 Gais & Benjamin, supra note 186, at 1304; Benjamin & Gais, supra note 185, at 71.
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Under these circumstances, in states, like Oregon, that permit the state constitution to be amended through the initiative, that avenue is likely to be seen by the public as having more popular legitimacy than a convention. But the initiative lacks the possibility of deliberation.188 Gais and Benjamin concluded: What we need instead are constitutional revision procedures that are deliberative as well as legitimate—procedures that command legitimacy by providing for direct citizen participation and control, but that also generate and assess alternative proposals, take into account the best available information about their likely effects, consider the interactions between the proposed changes and the rest of the constitutional structure, and afford opportunities for discussion and accommodation among significant political interests.189 Gais and Benjamin called for an additional element to achieve meaningful, publicly acceptable state-constitutional revision: independence.190 The initiative method also provides independence but, as mentioned before, does not provide for deliberation. Obviously, it’s very important to try to gauge opposition or status quo instincts ahead of time. A massive study of seven constitutional conventions concluded, “[j]ust as the delegates and the political activists in each state tended to break down, ultimately, into ‘reformers’ and supporters of the ‘status quo,’ so the electorate divides in a similar fashion. . . . In short, constitutional revision potentially polarizes state communities, or the attentive portions of them, along predictable lines.”191 It is clear, however, that opportunities have arisen for the exercise of high levels of statesmanship in a number of states as a result of perseverance, the proper leadership, and the right timing. Under the
188 See Gais & Benjamin, supra note 186, at 1301. A more important question is whether the constitutional initiative is a deliberative process, one that involves discussion, learning, and accommodation among all citizens or their representatives regarding common problems. Deliberation is crucial in settling constitutional questions. If we want people to view a constitution as legitimate, we must be sure they believe the rules and institutions it prescribes to be reasonable and fair. That is not an easy task, particularly now, when government institutions must often make decisions which many citizens and interest groups oppose. Id.; see also Arne R. Leonard, In Search of the Deliberative Initiative: A Proposal for a New Method of Constitutional Change, 69 TEMP. L. REV. 1203 (1996). 189 Gais & Benjamin, supra note 186, at 1303. 190 Id. at 1299. 191 CORNWELL, JR., ET AL., supra note 168, at 205–06.
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right circumstances, state political actors have transcended ordinary, short-term politics and have embarked on high level, far-reaching “recurrence to fundamental principles” in reforming their state’s constitution for the betterment of themselves and future generations.192 Sometimes this process takes a period of debate and collegiality before a higher level constitutional-revision culture is achieved by members of a constitutional commission or convention. Sometimes it never happens. Careful consideration must be given to the important connection between the identified problems in the content of a state constitution and the mechanism or process chosen to address the problems. The mechanism should be tailored to the nature of the problems. Alan Tarr and I have suggested a number of ways of “thinking outside the box” with reference to state-constitutional change.193 Once again, of course, people may disagree about the nature of the problems, but if a consensus develops on the areas in need of change, that consensus may dictate the process of state-constitutional change that should be utilized. CONCLUSION Frank Grad and I have argued that the burden of persuasion should be upon those who seek to include material in state constitutions.194 It can be argued that a similar presumption should be applied to those who advocate the calling of a state-constitutional convention. This is a time-consuming, expensive, and uncertain process. It can yield great rewards for a state, but it can also fail or result in the inclusion of problematic material within a state constitution. There are, as noted herein, a number of less ambitious or even preliminary alternatives, such as legislatively proposed amendments, constitutional commissions, or limited state-constitutional conventions to assess the current state constitution. Voting for a constitutional convention can be a major leap of faith for the future or an act of desperation concerning the state- constitutional status quo. Voting against a constitutional convention can reflect fear of the future, satisfaction concerning the state- constitutional status quo, or an opinion that defects in the state constitution may be cured by less complex amendment or revision
192 Sundquist, supra note 49, at 556. 193 See Tarr & Williams, supra note 30, at 1106–21. 194 GRAD &WILLIAMS, supra note 11, at 30; see also Linde, supra note 1, at 70.
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processes. All of these attitudes, in addition to others, are likely to be held by Oregon voters. The issues that would come before an Oregon state-constitutional convention now, or in the near future, would be substantially different from those associated with reform proposals in earlier decades or generations. The functions and responsibilities of states have evolved over time.195 As one of the most in-depth studies of state- constitutional conventions concluded: Doubtless one could take a cluster of constitutional conventions in any era—the Jacksonian period, the years of reconstruction or post-reconstruction, the turn-of-the-century progressive era—and find patterns of issue uniformity in each. In other words, there are broad areas of agreement in any one period as to what “modern,” “effective,” “democratic” state government consists of, but little such agreement over time. Conventions in one era meet to undo the careful reforms of an earlier generation.196 In other words, a state-constitutional convention would not only be concerned with revisions of the existing constitution, but would be confronted with the local, regional, and national issues of importance at that point in time.197 All of these concerns point to the conclusion that decision-makers in Oregon should carefully evaluate the question of whether state- constitutional revision or reform is really called for, and if so, whether the time and expense of a state-constitutional convention is merited. Possibly, even if there is a need for reform or revision, a state- constitutional commission would be the logical starting point. Further, a possible initial step would involve some changes, even onetime-only changes, in Oregon’s mechanisms of state- constitutional change or legislative consideration of revisions in the constitution. This was utilized unsuccessfully in Texas, but saw more success in Michigan and Illinois. Finally, a careful evaluation must focus on whether the passage of time and the accretion of specific amendments over the years have rendered the Oregon Constitution functionally incoherent. Is there really a need for fundamental reconsideration of Oregon’s constitutional foundations?198 Are any
195 See GRAD &WILLIAMS, supra note 11, at 8–14. 196 CORNWELL,JR., ET AL., supra note 168, at 203; see also GRAD &WILLIAMS, supra note 11, at 24–25. 197 For a consideration of current issues in state constitutional change, see generally STATE CONSTITUTIONS FOR THE TWENTY-FIRST CENTURY:THE AGENDA OF STATE CONSTITUTIONAL REFORM, supra note 2. 198 Cf. Tarr, supra note 2, at 2.
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of Oregon’s governmental structures so fundamentally flawed in their operation, or is the interrelationship among them so dysfunctional, as to require fundamental reconsideration of their constitutional foundations in an independent, deliberative process such as the “heavy artillery” of a constitutional convention that can assess proposed changes?199 If such fundamental flaws do exist, leading to incoherence, are they located in one or several parts of the constitution, such that they could be addressed by a limited constitutional commission or convention to avoid the “Pandora’s box” element of “conventionphobia?”200 How can the legislature be convinced to take any of these steps? It is these difficult questions which must be addressed to determine if the Oregon Constitution is obsolete and in need of fundamental reform, and if so, whether anything can be done about it.
199 See Robert J. Martin, Calling in Heavy Artillery to Assault Politics as Usual: Past and Prospective Deployment of Constitutional Conventions in New Jersey, 29 RUTGERS L.J. 963, 964–65 (1998). 200 See Gais & Benjamin, supra note 186, at 1304 (“Citizens may fear that constitutional conventions would open up a ‘Pandora’s box’ or ‘can of worms’ in which delegates would make enormous constitutional changes with little or no public accountability.”); see also Benjamin & Gais, supra note 185.
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Professor Robert F. Williams Rutgers University School of Law–Camden Camden, New Jersey
1 Reprinted with permission of author. Chapter 1E—Why State Constitutions Matter
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Response
Why State Constitutions Matter
ROBERT F. WILLIAMS
want to thank Professor Lawrence Friedman and the New England Law Review for organizing this Paper Symposium on my new book, The Law Iof American State Constitutions. Also, many thanks to the authors who took the time to read the book and write about it and associated topics of state constitutional law. I have learned a good deal from all of them, as well as the readers of this Paper Symposium. State constitutions are becoming more and more relevant both legally and politically. In November 2010, voters in Iowa, Michigan, Maryland, and Montana voted, in automatic, periodic referenda, on whether to call state constitutional conventions.1 The Maryland vote was very close, but all four failed. Such votes also failed in 2008 in Illinois, Connecticut, and Hawaii. New Yorkers voted against a constitutional convention in 1997. Similar automatic referenda will take place in 2012 in Alaska, New Hampshire, and Ohio. A major move for constitutional revision is taking place in Pennsylvania,2 and similar efforts regularly arise in Alabama,3 California,4 New York,5 and other states. In the 2011 Wisconsin standoff, Democratic legislators left the state to
Distinguished Professor of Law, Rutgers University School of Law, Camden; Associate Director, Center for State Constitutional Studies, camlaw.rutgers.edu/statecon. 1 John Dinan, The Political Dynamics of Mandatory State Constitutional Convention Referendums: Lessons from the 2000s Regarding Obstacles and Pathways to Their Passage, 71 MONT. L. REV. 395, 398 (2010). 2 The Pennsylvania Bar Association has set up a commission on constitutional revision. PENN. B. ASS’N CONST. REV. COMMISSION, http://www.pabarcrc.org/ (last visited May 16, 2011). 3 See Sue Bell Cobb, Book Review and Response: Robert F. Williams’s The Law of American State Constitutions, 45 NEW. ENG. L. REV. 803 (2011). 4 See Bruce E. Cain & Roger G. Noll, Malleable Constitutions: Reflections on State Constitutional Reform, 87 TEX. L. REV. 1517, 1526 (2009). 5 See Gerald Benjamin, The Constitutional Convention Catch‐22 in New York, 115 PENN ST. L. REV. (forthcoming 2011).
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defeat a quorum for a bill repealing public sector unions’ collective bargaining rights.6 This was made possible by a state constitutional provision requiring a three‐fifths quorum to enact “fiscal” legislation. The standoff ended when the Republicans deleted the fiscal provision from the bill, and it could be enacted without the Democrats under the normal quorum rule. The law was enjoined, however, based on a statutory open meetings claim.7 Virtually all of the activity on same‐sex marriage, as pointed out by Robert Peck and Indiana Chief Justice Randall Shepard, has taken place under state constitutions,8 including California’s Proposition 8.9 So has litigation concerning equal and adequate school finance,10 eminent domain,11 free speech on private property,12 challenges to tort reform measures,13 and recall of public officials such as that leading to Arnold Schwartzenegger’s election as governor of California.14 A campaign, fueled by out‐of‐state money, succeeded to unseat all three of the Iowa Supreme Court justices up for retention (as required by the state constitution) who voted to strike down, under the state constitution, the ban on same‐sex marriage.15 Similar challenges have been made to state judges who interpreted state constitutions to invalidate various tort reform measures.16 The upcoming decennial redistricting of the U.S. House of Representatives
6 See Tim Johnson, The Seeds for a Compromise?, MILWAUKEE J.‐SENTINEL, Feb. 23, 2011, http://www.jsonline.com/news/opinion/116773954.html. 7 Patrick Marley & Lee Bergquist, Judge’s Order May Delay Union Law for Nearly 2 Months, MILWAUKEE J.‐SENTINEL, April 1, 2011, http://www.jsonline.com/news/statepolitics/1190597 14.html. 8 See Robert S. Peck, For Trailblazers, When the U.S. Constitution is Not Enough, 45 NEW. ENG. L. REV. 855 (2011); Randall T. Shepard, State Constitutional Remedies and Judicial Exit Strategies, 45 NEW. ENG. L. REV. 879 (2011). 9 Vikram David Amar, California Constitutional Conundrums—State Constitutional Quirks Exposed By the Same‐Sex Marriage Experience, 40 RUTGERS L.J. 741, 742 (2009). 10 Peck, supra note 8. 11 See generally David Schultz, Economic Development and Eminent Domain After Kelo: Property Rights and “Public Use” Under State Constitutions, 11 ALB. L. ENVTL. OUTLOOK J. 41 (2006) (discussing public use adjudication under state constitutions). 12 See generally Jennifer A. Klear, Comparison of the Federal Courts’ and the New Jersey Supreme Court’s Treatments of Free Speech on Private Property: Where Won’t We Have the Freedom to Speak Next?, 33 RUTGERS L.J. 589 (2002) (discussing the potential to expand free speech rights on private property); Gregory C. Sisk, Uprooting the Pruneyard, 38 RUTGERS L.J. 1145 (2007) (exploring the state constitutional bases behind the Pruneyard decision). 13 Peck, supra note 8, at 866‐73; Symposium, Tort Reform and State Constitutional Law, 32 RUTGERS L.J. 897 (2001). 14 ROBERT F. WILLIAMS, THE LAW OF AMERICAN STATE CONSTITUTIONS 7 (2009). 15 See Varnum v. Brien, 763 N.W.2d 862, 906 (Iowa 2009). 16 Peck, supra note 8, at 866‐73.
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and state legislatures will take place primarily under state constitutions.17 Florida and California recently amended their state constitutions to prohibit their redistricting commissions from providing partisan advantage or disadvantage. The current state and local fiscal and public pension crises directly implicate state constitutions’ balanced budget mandates and limits on borrowing and taxation.18 In 2002, Florida amended its state constitution to provide detailed requirements for the treatment of pregnant pigs.19 This was the result of a national campaign by animal rights activists, who targeted Florida because of the relative ease of amending its constitution.20 Then, in 2010, South Carolina amended its constitution to guarantee the rights of hunters, in response to perceived threats to hunting by animal rights groups.21 Finally, in 2010, state constitutional amendments were adopted in a few states (Arizona, Oklahoma, and Missouri) in an attempt, likely unsuccessful, to block federal health care and labor law reform measures, and in Oklahoma to ban the use of international and Islamic law.22 The Oklahoma provision has already been enjoined,23 and the Acting General Counsel of the National Labor Relations Board has written to the Attorneys General of Arizona, South Carolina, South Dakota, and Utah, informing them that their state constitutional amendments purporting to guarantee all employees a secret ballot union election conflicts with federal labor law and is therefore preempted.24 Interestingly, as a number of these issues reflect, we have seen a nationalization of state constitutional law issues, with out‐of‐state interest and money flowing on hot button issues perceived as
17 James A. Gardner, Foreword: Representation Without Party: Lessons from State Constitutional Attempts to Control Gerrymandering, 37 RUTGERS L.J. 881, 886 (2006). See generally David Schultz, Redistricting and the New Judicial Federalism: Reapportionment Litigation Under State Constitutions, 37 RUTGERS L.J. 1087 (2006) (discussing the use of state‐court authority to assist in the redistricting process). 18 See, e.g., David Gamage, Preventing State Budget Crises: Managing the Fiscal Volatility Problem, 98 CALIF. L. REV. 749, 763 (2010); David A. Super, Rethinking Fiscal Federalism, 118 HARV. L. REV. 2544, 2606 (2005). 19 FLA. CONST. art. X, § 21. 20 Elizabeth R. Springsteen, A Proposal to Regulate Farm Animal Confinement in the United States and an Overview of Current and Proposed Law on the Subject, 14 DRAKE J. AGRIC. L. 437, 440‐ 42 (2009). 21 Jeffrey Omar Usman, The Game is Afoot: Constitutionalizing the Rights to Hunt and Fish in the Tennessee Constitution, 77 TENN. L. REV. 57, 82‐83 (2009). 22 John Dinan, Subnational Constitutional Amendment Processes and the Safeguards of Federalism: The U.S. in Comparative Context, 115 PENN ST. L. REV. (forthcoming 2011). 23 Awad v. Ziriax, CIV‐10‐1186‐M, 2010 WL 4814077, at *8‐9 (W.D. Okla. Nov. 29, 2010). 24 See Seth Borden, Attorneys General in Four States Respond to NLRB Regarding Secret Ballot Laws, LAB. REL. TODAY (Jan. 28, 2011, 2:39 PM), http://www.laborrelationstoday.com/2011/01 /articles/statelocal‐issues/attorneys‐general‐in‐four‐states‐respond‐to‐nlrb‐regarding‐secret‐ ballot‐laws/.
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affecting nationally‐oriented interest groups. State constitutional developments are carefully reviewed by Dr. John Dinan in the Book of the States, in which he also includes important data on the fifty state constitutions.25 Any intelligent discussion of these processes and issues requires an understanding of state constitutions themselves and the variety of ways in which they differ from the more familiar Federal Constitution. State constitutions are, however, low‐visibility constitutions and are not well understood.26 This leads to an interesting paradox in American constitutionalism. The Federal Constitution is much more familiar in our country, but it is in fact remote and out of reach for any significant public involvement. State constitutions, on the other hand, are much closer to the people and are realistically accessible to popular involvement through a number of avenues. However, as noted, state constitutions are not well understood by the public or even many legal or political professionals. Many people will assume a familiarity with their state constitutions because of surface similarities with the Federal Constitution. They are both called “constitutions,” but there are many differences, as well. One way to build understanding of state constitutions is to compare and contrast them with the more familiar Federal Constitution.27 State constitutions, as noted by Justice Scott Kafker, perform different functions (generally limit plenary powers rather than grant enumerated powers),28 have different origins (from the people themselves),29 and, as described by Alabama Chief Justice Sue Bell Cobb, have a different (longer and more detailed) form.30 The content and quality of state constitutions is also very different, with state constitutions containing many more policy‐oriented provisions, built up
25 John Dinan, State Constitutional Developments, in THE BOOK OF THE STATES 3 (2009). 26 WILLIAMS, supra note 14, at 1‐2. 27 For an excellent and accessible single volume explaining state constitutions, see generally G. ALAN TARR, UNDERSTANDING STATE CONSTITUTIONS (1998). 28 WILLIAMS, supra note 14, at 27; see also Scott L. Kafker, America’s Other Constitutions: Book Review of The Law of American State Constitutions, 45 NEW. ENG. L. REV. 835, 839 (2011): The functions of the state and federal government, and therefore their respective constitutions, are also different. As James Madison explained in The Federalist Number 45, the powers of the national government set out in the Federal Constitution are enumerated and limited. In contrast, the powers “which are to remain in the State governments are numerous and indefinite. . . . [and] will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
Id. (quoting THE FEDERALIST No. 45, at 262 (James Madison) (Am. Bar Ass’n ed. 2009)). 29 WILLIAMS, supra note 14, at 25‐26. 30 Id. at 28‐30; Cobb, supra note 3, at 805.
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over time, as well as provisions concerning the character, virtue, and even morality of the state’s people.31 In fact, state constitutions are more democratic than the Federal Constitution in that they involve the citizenry in approving their amendment and revision, voting to approve borrowing, and in some states, approving new forms of gambling. In many states, like Iowa, for better or worse there is popular participation through electing or retaining judges.32 Further, because of the many waves of revision of state constitutions over the years, they reflect the input of the alternative voices of African Americans, Hispanics, Native Americans and women—voices that had little impact on the Federal Constitution.33 Finally, these waves of state constitutional revision have reflected a continuing dialogue about fundamental matters of governmental structure and function that cannot take place under the difficult‐to‐amend Federal Constitution.34 Such differences can obscure one of the most fundamental aspects of state constitutions: the significant impact that a number of them were adopted before the Federal Constitution had on the framing of our Federal Constitution.35 One of the more recent developments that has helped create a rebirth in state constitutional study and practice is the growth of what is known as the New Judicial Federalism (“NJF”), in which attorneys and others mine state constitutions for interpretations that offer more protective rights than similar provisions of the Federal Constitution.36 The initial thrust of this development, as described by Justice Robert Cordy, was in the area of criminal procedure, where constitutional defenses were expanded from just federal claims to include state constitutional arguments.37 An early
31 Williams, supra note 14, at 21‐23, 30‐31. 32 Id. at 31; see Kafker, supra note 28, at 848. 33 Williams, supra note 14, at 34‐35. 34 See generally JOHN DINAN, THE AMERICAN STATE CONSTITUTIONAL TRADITION (2006) (addressing the importance of constitutional debates at the state level). 35 WILLIAMS, supra note 14, at 37‐71. 36 Id. at 113‐34; Kafker, supra note 28, at 841; Peck, supra note 8, at 858. 37 Robert J. Cordy, Criminal Procedure and the Massachusetts Constitution, 45 NEW. ENG. L. REV. 815, 832‐33 (2011): As the U.S. Supreme Court continues along a path of closely divided opinions on the meaning and application of the Fourth, Fifth, and Sixth Amendments to the myriad factual situations confronting state court criminal judges, it is likely that the trend toward NJF, so evident in the dozens of cases noted in this brief Article, will continue. Defense counsel has become more adept at looking to the Massachusetts Constitution for the protections and explication of the rights of their clients, and the jurisprudence on the subject has accordingly increased in its depth and breadth.
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commentator referred to these as “evasion” cases.38 U.S. Supreme Court Justice William Brennan helped energize this movement when, quoting Justice Brandeis, he called states “laboratories of democracy.”39 This raises the potential for dual, or dueling, claims of rights in state and federal court, which implicate a number of methodology issues, including the sequencing of arguments and development of criteria for recognizing rights beyond the federal minimum standards.40 Too many state courts fail to acknowledge the possible differences between state and federal rights protections, and as Professor Lawrence Friedman states, others engage in “lockstepping,” in which they purport to prejudge future cases by announcing that, in the future, the state and federal rights provisions will be interpreted identically or similarly.41 Both approaches are problematic. Also, the NJF has given rise to state constitutional amendments aimed at overruling state constitutional rulings providing more rights than required by the Federal Constitution.42 Proposition 8 in California, overturning the same‐sex marriage decision, is the most recent example.43 Now, of course, California’s explicit state constitutional ban on same‐sex marriage is the subject of a federal constitutional challenge, which has succeeded at the trial level.44 A critical area in which state constitutional law is distinguished from federal doctrine is the separation or distribution of powers. The Federal Constitution does not mandate any particular arrangement of
Id. 38 Donald E. Wilkes, Jr., The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court, 62 KY. L.J. 421, 425 (1974). 39 See generally William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489 (1977) (“[T]he trend of recent Supreme Court civil liberties decisions should prompt a reappraisal of [] strategy”); Peck, supra note 8, at 856‐58. 40 WILLIAMS, supra note 14, at 135‐92; see also NEW FRONTIERS OF STATE CONSTITUTIONAL LAW: DUAL ENFORCEMENT OF NORMS (James A. Gardner & Jim Rossi eds., 2011) [hereinafter NEW FRONTIERS OF STATE CONSTITUTIONAL LAW]. 41 WILLIAMS, supra note 14, at 193‐232; Lawrence Friedman, The Once and Future Constitutional Law: On The Law of American State Constitutions, 74 ALB. L. REV. (forthcoming 2011). 42 NEW FRONTIERS OF STATE CONSTITUTIONAL LAW, supra note 40, at 128‐29; see John Dinan, Foreword: Court‐Constraining Amendments and the State Constitutional Tradition, 38 RUTGERS L.J. 983, 984 (2007). 43 See Amar, supra note 9. 44 Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1003 (N.D. Cal. 2010). On appeal the California Attorney General refused to defend Proposition 8. The U.S. Court of Appeals for the Ninth Circuit issued an order in early January 2011, certifying a question to the California Supreme Court as to whether the proponents of Proposition 8 had standing to appeal the district court’s decision striking down Proposition 8. See Order Certifying a Question to the Supreme Court of California, 628 F.3d 1191 (2011).
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governmental powers in the states except that they be “republican.”45 In contrast to provisions involving individual rights, the Federal Constitution’s separation‐of‐powers doctrine has not been determined to constrain the states. Therefore, federal separation‐of‐powers doctrines should be even less persuasive in state courts than federal constitutional rights interpretation.46 The states’ constitutional distribution‐of‐powers arrangements, however, also differ greatly from state to state. Some states elect their judges, while others follow the appointment system. Judicial remedies utilized by state courts may be different from federal remedies.47 Some states have strong, single executives, whereas others have a number of statewide elected executive officials. One state (Nebraska) has a one‐ house legislature, and others have part‐time legislatures, term limits, initiative and referendum, etc. Most state constitutions, in contrast to the Federal Constitution, contain extensive procedural limits and requirements for the process of exacting statutes.48 Therefore, it is important to apply a state‐specific separation‐of‐powers analysis based on a state’s specific arrangements.49 A final significant area of difference between state constitutions and the Federal Constitution is the mechanisms of amendment or revision.
45 See WILLIAMS, supra note 14, at 240‐42. 46 Id. 47 Shepard, supra note 8, at 880: Selecting the right remedy can often be the greatest complication in state constitutional work. Remedies are particularly difficult in state constitutional cases because, unlike their federal counterparts, state constitutions are full of positive commands and mandates. A federal constitutional violation can often be remedied simply by ordering the offending party to refrain from engaging in the unconstitutional behavior. State remedies, by contrast, often require a party to take some affirmative action, and that party is often a member of another coequal branch of government. Once a state constitutional violation is identified, courts are stuck with the difficult task of fashioning a remedy that is feasible and will correct the violation. Judges and claimants frequently underestimate the importance and difficulty of this task. Id. See also Helen Hershkoff & Stephen Loffredo, State Courts and Constitutional Socio‐Economic Rights: Exploring The Underutilization Thesis, 115 PENN ST. L. REV. (forthcoming 2011). 48 Friedman, supra note 41: Many state constitutions provide specific instructions and rules on how lawmaking can be accomplished. Disputes about whether a state legislature honored these procedural requirements raise concerns about the judiciary’s role in interpreting and enforcing these kinds of constitutional provisions—provisions that have no analogue in the federal constitution. Id. 49 WILLIAMS, supra note 14, at 238‐40.
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While there is but one, relatively difficult, way to amend the Federal Constitution (another constitutional convention has never been called), amendments or revisions of state constitutions can be accomplished through legislative, constitutional convention (even limited conventions) or constitutional commission proposals, as well as by initiative in some states.50 State constitutions are therefore much more malleable and have been changed at a fairly rapid pace over the years. Indeed, state constitutional change is one of the tools of lawmaking, often resorted to for policymaking by interest groups such as those opposed to same‐sex marriage or higher taxes. There are substantial political difficulties today with state constitutional amendment and revision, including popular distrust of constitutional conventions and other constitution‐making processes as just more “government as usual.”51 Approving a constitutional convention is a leap of faith, or desperation, and certainly faith in governmental processes is in very short supply. To some extent, limited state constitutional conventions that take certain hot button issues off the table and targeted advisory commissions can engender a bit more faith.52 Further, there is extensive judicial involvement in litigation considering the substance and procedure of state constitutional amendment and revision. Some processes of state constitutional change can only be utilized, for example, to amend the state constitution but not to revise it.53 This was the basis of the unsuccessful challenge to Proposition 8 in California.54 Most states require proposed amendments to contain only a “single subject” when presented to the voters.55 Several of the single amendments banning both same‐sex marriage and civil unions were unsuccessfully challenged in court on this basis.56 Interest in state constitutional law has continued to increase in the legal academy, demonstrated by Jim Gardner’s important book,57 as well as in
50 Id. at 380‐97. 51 Id. at 388. 52 Id. at 392‐97; G. Alan Tarr & Robert F. Williams, Foreword: Getting from Here to There: Twenty‐First Century Mechanisms and Opportunities in State Constitutional Reform, 36 RUTGERS L.J. 1075, 1085‐92 (2005). 53 WILLIAMS, supra note 14, at 403‐05; Daniel B. Rodriguez, Revision, Amendment, and the Dynamics of State Constitutional Change, 115 PENN ST. L. REV. (forthcoming 2011). 54 See Amar, supra note 9, at 742‐43. 55 WILLIAMS, supra note 14, at 405‐08. For a thoughtful and in‐depth consideration of the single‐subject rule in the context of Florida constitutional law, see generally Patrick O. Gudridge, Florida Constitutional Theory (For Clifford Alloway), 48 U. MIAMI L. REV. 809 (1994). 56 See, e.g., Perdue v. O’Kelly, 632 S.E.2d 110, 113 (Ga. 2006) (upholding an amendment to the Georgia Constitution banning same‐sex marriage and civil unions). 57 See JAMES A. GARDNER, INTERPRETING STATE CONSTITUTIONS: A JURISPRUDENCE OF FUNCTION IN A FEDERAL SYSTEM (2005).
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the legal profession. In addition, the Rutgers Center for State Constitutional Studies completed a three‐volume work on State Constitutions for the Twenty‐First Century.58 Professor Robert Schapiro published a thoughtful book on federalism more generally but also touched in significant ways on state constitutional law.59 In 2008, Professor Jeffrey Shaman published a comprehensive book on state constitutional equality and liberty guarantees.60 In an extremely important 2010 development, the Conference of Chief Justices adopted a resolution encouraging all law schools to offer courses in state constitutional law. The resolution is included here as an Appendix to this Response. This reflects a notable recognition by the highest judges in the fifty states that further education on state constitutional law is necessary. Many are familiar with the Greenwood Press series Reference Guides to State Constitutions. This series, currently including volumes on forty‐six of the fifty states, edited by Dr. G. Alan Tarr, has now been purchased by Oxford University Press. This new publisher plans to complete the series as The Oxford Commentaries on the State Constitutions of the United States, reissue existing volumes, publish updates, and put the series online.61 This is a tremendous boost to state constitutional research. The past year has seen the publication of additional, important new books in the field of state constitutional law. After a number of years where my casebook was the only national teaching resource on state constitutional law,62 a welcome new casebook has been published by Justice Randy J. Holland of Delaware, Professor Steven R. McAllister of the University of Kansas School of Law, Professor Jeffrey M. Shaman of DePaul College of Law, and Judge Jeffrey S. Sutton of the U.S. Court of
58 See 1 STATE CONSTITUTIONS FOR THE TWENTY‐FIRST CENTURY: THE POLITICS OF STATE CONSTITUTIONAL REVISION (G. Alan Tarr & Robert F. Williams eds., 2006); FRANK P. GRAD & ROBERT F. WILLIAMS, 2 STATE CONSTITUTIONS FOR THE TWENTY‐FIRST CENTURY: DRAFTING STATE CONSTITUTIONS, REVISIONS AND AMENDMENTS (2006); 3 STATE CONSTITUTIONS FOR THE TWENTY‐FIRST CENTURY: THE AGENDA OF STATE CONSTITUTIONAL REFORM (G. Alan Tarr & Robert F. Williams eds., 2006). 59 ROBERT A. SCHAPIRO, POLYPHONIC FEDERALISM: TOWARD THE PROTECTION OF FUNDAMENTAL RIGHTS (2009). 60 See generally JEFFREY M. SHAMAN, EQUALITY AND LIBERTY IN THE GOLDEN AGE OF STATE CONSTITUTIONAL LAW (2008). 61 See The Oxford Commentaries on the State Constitutions of the United States, OXFORD U. PRESS, http://www.oup.com/us/catalog/general/series/OxfordCommentariesontheStateCons/? view=usa (last visited May 16, 2011) (providing information on publication of this series, which was edited by G. Alan Tarr). 62 ROBERT F. WILLIAMS, STATE CONSTITUTIONAL LAW: CASES AND MATERIALS (4th ed. 2006). Professor Lawrence Friedman will be joining me as a coauthor on this casebook.
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Appeals for the Sixth Circuit.63 Professors Jim Gardner and Jim Rossi have edited an important new book on the dual enforcement of state constitutional norms.64 The contributions in this new book are by leading figures in the field of state constitutional law, and they advance the field by analyzing state constitutional law as not separate from, but rather interrelated with, federal constitutional law. The classic 1966 book edited by Merrill D. Peterson, Democracy, Liberty, and Property: The State Constitutional Conventions of the 1820s, has been reissued by the Liberty Fund, with an excellent new foreword by my long‐ time colleague, Alan Tarr.65 Dr. Tarr’s foreword sheds important light on these early debates about, and revisions of, state constitutions, together with their current relevance. Rutgers Law Journal, for well over twenty years, has devoted one issue a year to state constitutional law. The invited forewords, as well as other articles, have built up an invaluable component of scholarship in this area. These issues also include, every year, a number of excellent student Comments on the most important state constitutional cases decided in the past year. These Comments reflect a wide range of issues that arise in state constitutional law, together with the variety of interpretation techniques utilized by state courts. Less detailed coverage of other cases is included online.66 Given the increased focus on state constitutions over the past generation, both as sources of enhanced rights through litigation in state courts and as avenues for policymaking by entrenching rules about such matters as same‐sex marriage, eminent domain, and taxation in a state’s highest law, people generally, and drafters of state constitutional amendments and revisions specifically, need to become more familiar with our little‐understood, other American constitutions.67 In fact, we are even coming to recognize that there may be valuable lessons to be learned from a comparative study of state (“subnational”) constitutions in other countries that are based on constitutional federalism.68 Perhaps, with
63 RANDY J. HOLLAND ET AL., STATE CONSTITUTIONAL LAW: THE MODERN EXPERIENCE (2010). 64 NEW FRONTIERS OF STATE CONSTITUTIONAL LAW, supra note 40. 65 See G. Alan Tarr, Foreword to DEMOCRACY, LIBERTY, AND PROPERTY: THE STATE CONSTITUTIONAL CONVENTIONS OF THE 1820S, ix (Merrill D. Peterson, ed., 1966) (2010). 66 These “State Constitutional Law Case Summaries” can be accessed directly on the Rutgers Law Journal website. See Journal Summaries, RUTGERS L.J., http://camlaw.rutgers. edu/summaries/ (last visited May 16, 2011). 67 GRAD & WILLIAMS, supra note 58. 68 See, e.g., Robert F. Williams, Teaching and Researching Comparative Subnational Constitutional Law, 115 PENN ST. L. REV. (forthcoming 2011); G. ALAN TARR ET AL., FEDERALISM, SUBNATIONAL CONSTITUTIONS, AND MINORITY RIGHTS (2004).
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greater understanding that state constitutions do matter, we can make progress in addressing the many problems in our state governments through state constitutional amendment and revision in the public interest.69
69 See, e.g., Daniel B. Rodriguez, State Constitutional Failure, 2011 U. ILL. L. REV. (forthcoming 2011).
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APPENDIX
Conference of the Chief Justices Resolution 1 Encouraging the Teaching of State Constitutional Law Courses
WHEREAS, all lawyers take an oath to support the United States Constitution and the Constitution of their state; and
WHEREAS, although all law schools offer a course in constitutional law, the overwhelming majority of those courses are taught from the perspective of the federal Constitution; and
WHEREAS, the United States Constitution creates a dual system of government with two sets of sovereigns whereby all powers not delegated to the federal government are reserved to the states; and
WHEREAS, state constitutions contain different structures of government, unique provisions, and substantive provisions or declarations of rights that are often greater than federally guaranteed individual rights and liberties; and
WHEREAS, being a competent and effective lawyer requires an understanding of both the Federal Constitution and state constitutional law;
NOW, THEREFORE, BE IT RESOLVED that the Conference of Chief Justices encourages all law schools to offer a course on state constitutional law.
Conference of Chief Justices, Encouraging the Teaching of State Constitutional Law Courses, 10‐M‐1, (2010), http://ccj.ncsc.dni.us/LegalEducationResols.html (follow “Encouraging the Teaching of State Constitutional Law Courses” hyperlink) (adopted as proposed by the Professionalism and Competence of the Bar Committee at the Conference of Chief Justices 2010 Midyear Meeting).
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 1E–14 Chapter 2 The Oregon Constitution and Cases in 2013
Alycia N. Sykora Alycia N. Sykora PC Bend, Oregon
Contents I. Distribution of Power Within the State ...... 2–1 A. Separation of Powers ...... 2–2 B. Judicial Power and Justiciability ...... 2–2 1. Subject Matter Jurisdiction ...... 2–3 (a) Standing 2–3 (b) Ripeness 2–5 (c) Mootness ...... 2–5 2. Inherent Authority 2–8 3. Stare Decisis ...... 2–9 4. Policy Questions ...... 2–10 C. Legislative Power and Immunity ...... 2–10 1. Power ...... 2–10 2. Immunity: The Debate Clause ...... 2–11 3. Initiative and Referendum ...... 2–11 D. Executive Power ...... 2–12 II. Free Expression 2–14 A. Origins and Interpretation ...... 2–14 B. Assembly ...... 2–15 C. Politicking, Campaigning, and Lobbying 2–15 D. Stalking ...... 2–19 1. Civil Stalking 2–19 2. The Crime of Violating an Existing SPO 2–21 3. Terminating an SPO ...... 2–21 4. The Crime of Stalking ...... 2–21 5. Jury Right in Civil Stalking ...... 2–21 E. Profanity in Public or Fighting Words 2–22 F. First Amendment ...... 2–23 III. Religion ...... 2–25 IV. Search or Seizure and Warrants ...... 2–28 A. Origins and Meaning ...... 2–28 B. Probable Cause 2–29 C. Fourth Amendment ...... 2–30 D. Protected Interests ...... 2–30 1. Privacy Rights—Searches 2–30 2. Possessory Rights—Seizures ...... 2–32 E. Place 2–34 1. Traffic Stops 2–34 (a) Vehicles ...... 2–34 (i) The Stop 2–34 (ii) The Detention ...... 2–37 Chapter 2—The Oregon Constitution and Cases in 2013
(b) Bicycles ...... 2–46 (c) Pedestrians ...... 2–47 2. Non-Private Premises and Non-Traffic ...... 2–47 (a) Public Parks ...... 2–48 (b) Public Restrooms 2–48 (c) Streets, Alleys, Parking Lots ...... 2–49 (d) Hospitals ...... 2–51 (e) Public Schools ...... 2–52 (f) Jails and Juvenile Detention ...... 2–52 (g) Borders and Airports ...... 2–52 3. Residences, Offices, Private Effects ...... 2–52 (a) Houses and Rooms ...... 2–52 (b) Commercial Premises ...... 2–53 (c) Curtilage ...... 2–53 (d) Exigencies/Emergencies as Exceptions ...... 2–55 (e) Computers and Mobile Devices ...... 2–57 F. Warrants ...... 2–57 1. Probable Cause 2–57 2. Scope ...... 2–59 G. Exceptions to Warrant Requirement 2–60 1. Probable Cause to Arrest ...... 2–60 2. Search Incident to Lawful Arrest 2–60 3. Exigent Circumstances ...... 2–63 (a) Fourth Amendment Generally ...... 2–63 (b) Oregon Constitution Generally 2–64 (c) Specific Emergencies 2–66 (i) Emergency Aid 2–66 (ii) Destruction or Damage ...... 2–68 (iii) Escape 2–68 4. Officer Safety ...... 2–69 (a) Closed Containers ...... 2–69 (b) Patdowns ...... 2–69 (c) Protective Sweeps of a House ...... 2–70 (d) Use of Force 2–70 5. Consent ...... 2–70 6. Inventories—Administrative ...... 2–76 7. Administrative Searches ...... 2–78 8. Abandonment ...... 2–78 9. Mobile Automobiles 2–79 10. Public Schools ...... 2–84 11. Jails and Juvenile Detentions ...... 2–87 12. Probation Searches 2–88 13. Lawful Vantage Point ...... 2–91 14. Container That Announces its Contents 2–92 15. Lost Property 2–93 16. Community Caretaking—Fourth Amendment 2–93 17. Special Needs in the Workplace—Fourth Amendment ...... 2–93 G. Remedies ...... 2–94 1. Burden-Shifting Basics Under Article I, Section 9 ...... 2–94
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2. General Fourth Amendment Tenets ...... 2–95 3. Exceptions to Suppression ...... 2–96 4. Fourth Amendment’s Good-Faith Exception to Suppression 2–98 V. Self-Incrimination ...... 2–100 A. Miranda 2–100 B. False Pretext Communications ...... 2–105 C. Polygraph Testing ...... 2–105 D. Right to Counsel ...... 2–106 E. Laboratory Reports ...... 2–107 VI. Accusatory Instruments 2–109 VII. Former Jeopardy ...... 2–111 VIII. Delays 2–112 IX. Trial ...... 2–114 A. Criminal 2–114 1. Venue ...... 2–114 2. Compulsory Process 2–115 3. Jury ...... 2–116 (a) Right to Jury Trial ...... 2–116 (b) Jury Unanimity Not Required; Concurrence ...... 2–117 (c) Number of Jurors ...... 2–118 (d) Waiver of Jury Trial Right 2–120 (e) Juror Anonymity 2–121 (f) Jury’s Duties ...... 2–121 (g) Fair Trial 2–122 4. Right to Counsel ...... 2–124 5. Right to Self-Representation ...... 2–125 6. Right to Be Heard ...... 2–126 7. Confrontation 2–126 8. Public Trial ...... 2–128 9. Victims’ Rights ...... 2–130 B. Civil Jury ...... 2–134 1. History and Interpretation ...... 2–135 2. Specific Claims ...... 2–135 3. Caps on Noneconomic Damages 2–136 4. Verdicts ...... 2–137 C. Open Courts: Public’s Rights 2–139 X. Punishment 2–141 A. Cruel and Unusual Punishment; Proportionality ...... 2–141 B. Consecutive Sentences; Judicial Factfinding ...... 2–143 C. Right of Allocution 2–144 D. Ex Post Facto ...... 2–144 XI. Remedy Guarantee ...... 2–145 XII. Harmless Versus Prejudicial Error ...... 2–148 XIII. Equal Privileges and Immunities 2–151 XIV. Takings ...... 2–154
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XV. Right to Bear Arms 2–160 XVI. Sovereign Immunity 2–163 XVII. Impairment of Contracts ...... 2–165 XVIII. United States Constitution ...... 2–166 A. Federalism ...... 2–166 1. Due Process 2–166 2. Supremacy ...... 2–167 3. Necessary and Proper Clause 2–168 4. Commerce Clause ...... 2–169 5. Tenth Amendment 2–170 B. Full Faith and Credit 2–171 C. Sixth Amendment ...... 2–171 1. Application to the States ...... 2–171 2. Jury ...... 2–171 3. Cross-Examination 2–172 4. Confrontation 2–172 5. Judicial Factfinding; Sentencing ...... 2–173 6. Plea Bargaining 2–173 D. Ninth Amendment 2–174 E. Fourteenth Amendment—Due Process ...... 2–175 1. Application to the States ...... 2–175 2. Defining Procedural Versus Substantive ...... 2–175 3. Punitive Damages ...... 2–176 4. Procedural ...... 2–179 5. Other Substantive Due Process 2–180 (a) Notice ...... 2–181 (b) Personal Jurisdiction 2–183 (c) Brady Violations ...... 2–184 6. Right to Travel ...... 2–185
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THE OREGON CONSTITUTION AND CASES IN 2013 ______
“When a father inquired about the best method of educating his son in ethical conduct, a Pythagorean replied: ‘Make him a citizen of a state with good laws.’” Georg Hegel, Philosophy of Right (1821)
* * *
“For each provision in a state constitution, no matter how seemingly trivial, there is a story to be told.” Robert F. Williams, Should the Oregon Constitution Be Revised, and If So, How Should It Be Accomplished?, 87 OR L REV 875 n 42 (2008).
* * *
“Oregon’s current text can fairly be described as a constitutional mess.” Hans A. Linde, What Is a Constitution, What Is Not, and Why Does It Matter?, 87 OR L REV 717, 730 (2008).
______
I. DISTRIBUTION OF POWER WITHIN THE STATE
"The powers of the Government shall be divided into three separate branches, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of
these branches, shall exercise any of the functions of another, except as in this Constitution expressly provided." -- Article III, section 1, Or Const
“There is only scant reference in the record [of the Constitutional Convention] to the article on distribution of powers in the Oregon Constitution.” Claudia Burton, A Legislative History of the Oregon Constitution of 1857, 39 WILLAMETTE L REV 245, 253 (2003). “There is no reported discussion of section 1 at the Convention.” Id. at 258.
In “its early years, the [Oregon Supreme] court most often invoked the Oregon Constitution in the course of interpreting constitutional provisions involving the operation of various branches of government.” Thomas Balmer, The First Decades of the Oregon Supreme Court, 46 WILLAMETTE L REV 517, 531 (2010).
“Under our constitutional system of government, the legislative, executive and judicial departments are required to function exclusively within their respective spheres.” State v Rudder, 137 Or App 43, 48, rev’d on other grounds, 324 Or 380 (1996) (quoting U’Ren v Bagley, 118 Or 77, 81 (1926)).
See Roy Pulvers, Separation of Powers Under the Oregon onstitution: A User’s Guide, 75 OR L REV 443 (1996).
Article III, section 1, was amended, effective December 6, 2012, “to indicate that what formerly was known as the Judicial Department is a third branch, not a department, of state government.” Weldon v Bd of Licensed Prof Counselors and Therapists, 353 Or 85, 86 (2012) (citing Ballot Measure 78 (2012)).
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A. Separation of Powers
Oregon Constitution: A “separation of powers claim” under Article III, section 1, of the Oregon Constitution “may turn on one of two issues.” First, has one department of government “unduly burdened” the actions of another department? Second, has one department “performed functions that the constitution commits to another department”? State v Speedis, 350 Or 424 (2011).
“[Courts] must be cautious to hold that there has been an encroachment by one branch in the function of another only when there has been ‘a plain and palpable abridgment of the powers of one department by another.’” State v Rudder, 137 Or App 43, 49, rev’d on other grounds, 324 Or 380 (1996) (quoting U’Ren v Bagley, 118 Or 77, 81 (1926)).
United States Constitution: “Separation-of-powers principles are intended, in part, to protect each branch of government from incursion by the others. Yet the dynamic between and among the branches is not the only object of the Constitution’s concern. The structural principles secured by the separation of powers protect the individual as well.” Bond v United States, 131 S Ct 2355, 2365 (2011) (on the Tenth Amendment); see also Stern v Marshall, 131 S Ct 2594, 2609 (2011) (on Article III powers).
B. Judicial Power and Justiciability
"The judicial power of the state shall be vested in one supreme court and in other such courts as may from time to time be created * * *." – Article VII (Amended), section 1, Or Const
“All judicial power, authority, and jurisdiction not vested by this Constitution, or by laws consistent therewith, exclusively in some other Court shall belong to the Circuit Courts, and they shall have appellate jurisdiction, and supervisory control over the County
Courts, and all other inferior Courts Officers, and tribunals.” -- Article VII (Original), section 9, Or Const
“Oregonians can point to the year 1841 and say with certainty that it was the year the judicial branch was created. Prior to 1841 the only organization with activities that could be said to approximate judicial activities was the Hudson’s Bay Company. The Company’s chief representative in the Oregon country, Dr. John McLoughlin, acted as executive, legislator, and judge.” Donald C. Johnson, Politics, Personalities, and Policies of the Oregon Territorial Supreme Court, 1849-1859, 4 ENVT’L L 11, 11-12 (1973). That court, before 1841, had only probate authorities. Id. at 13.
Article VII (Original), section 9, of the Oregon Constitution is the source of circuit court jurisdiction. “[C]ircuit court judges have the power to review the decisions of lower tribunals, but they have no authority to review the decisions of other circuit court judges – let alone the decisions of circuit court judges on whom a particular decisional authority has been exclusively conferred – in the absence of some overriding statutory or constitutional authority.” Oregonian Publishing
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Company, LLC v The Honorable Nan G. Waller and State of Oregon, __ Or __ (2012).
1. Subject Matter Jurisdiction
"The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment, shall remain as
at present constituted until otherwise provided by law. But the supreme court may, in its own discretion, take original jurisdiction in mandamus, quo warranto and habeas corpus
proceedings." – Article VII (Amended), section 2, Or Const
Under the Oregon Constitution, circuit courts have subject matter jurisdiction over all actions unless some statute or other source of law divests them of jurisdiction. Longstreet v Liberty Northwest Ins Corp, 238 Or App 396 (2010) (citing State v Terry, 333 Or 163, 186 (2001), cert denied, 536 US 910 (2002)).
(a). Standing
Note: The words “standing,” “ripeness,” and “mootness” are not in Oregon’s Constitution (or in the federal constitution). Whether those tests should be jurisdictional remains a debatable point. Justice Linde has written: “A case that fails those tests is said to lack a quality called ‘justiciability.’ Of course, the term states a conclusion, not an explanation. Once on that conceptual escalator, justiciability soon is called ‘jurisdictional,’ with the consequence that judges must raise it on their own motion. This leaves judgments open to future attacks even when standing or mootness went undisputed”. Hans A. Linde, Dual Enforcement of Constitutional Norms: The State and the Federal Courts in Governance: Vive La Difference!, 46 WM & MARY L REV 1273, 1283, 1287-88 (2005) (“It is not prudent to link a decision declining adjudication to non-textual, self-created constitutional barriers, and thereby to foreclose lawmakers from facilitating impartial, reasoned resolutions of legal disputes that affect people’s public, rather than self- seeking, interests.”).
(i). Oregon Constitution
A controversy is not justiciable if the party bringing the claim has only an abstract interest in the correct application of the law. "A party must demonstrate that a decision in the case will have a practical effect on its rights." Utsey v Coos County, 176 Or App 524, 542 (2001), rev dismissed, 335 Or 217 (2003).
“Ordinarily, ‘standing’ means the right to obtain an adjudication. It is thus logically considered prior to consideration of the merits of a claim. To say that a plaintiff has ‘no standing’ is to say that the plaintiff has no right to have a tribunal decide a claim under the law defining the requested relief, regardless whether another plaintiff has any such right.” Eckles v State of Oregon, 306 Or 380, 383 (1988). “Whether a plaintiff has standing depends on the particular requirements of the statute under
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which he or she is seeking relief.” Morgan v Sisters School District #6, 353 Or 189, 194 (2013).
"‘Standing’ is a legal term that identifies whether a party to a legal proceeding possesses a status or qualification necessary for the assertion, enforcement, or adjudication of legal rights or duties. See Eckles v State of Oregon, 306 Or 380, 383. A party who seeks judicial review of a governmental action must establish that that party has standing to invoke judicial review. The source of law that determines that question is the statute that confers standing in the particular proceeding that the party has initiated, ‘because standing is not a matter of common law but is, instead, conferred by the legislature.’ Local No. 290 v Dept. of Environ Quality, 323 Or 559, 566 (1996).” Kellas v Dep’t of Corrections, 341 Or 471 (2006).
“[N]o statute governs the issue of standing to seek injunctive relief,” under Eckles v State of Oregon, 306 Or 380, 386 (1988). Morgan v Sisters School District #6, 353 Or 189, 201 (2013). But Oregon courts apply “essentially the same standing requirements that ordinarily apply in declaratory judgment actions.” Ibid.
Morgan v Sisters School District #6, 353 Or 189 (2013) (Deschutes) (Landau) Plaintiff is a taxpayer in Sisters, Oregon. The Sisters School District board of directors adopted a resolution to secure financing for the school system’s classroom-upgrade project. A bank, as escrow agent, issued certificates for purchase by investors to fund the project, under ORS 271.390. A year later, plaintiff, as a taxpayer, filed a complaint for a declaration and injunctive relief; specifically that the certificates were “bonds” that required approval of the voters before issuance under ORS 328.205 et seq. Plaintiff asked the trial court to declare that the certificates were bonds and that the district should be ordered “simply to default on the obligations” (rather than put the issue to the voters for a vote or declaring the certificates as invalid). The trial court granted defendants’ motion for summary judgment (or their motion for dismissal) and denied his motion for summary judgment, because plaintiff lacks standing. On appeal, he alleged that he had standing both as a voter and as a taxpayer. Defendants contended that he had failed to preserve his voter-standing argument and his taxpayer-standing argument failed because his allegations of potential injury were too speculative. The Court of Appeals affirmed.
The Oregon Supreme Court affirmed: plaintiff lacks standing as a voter because he “has offered no explanation as to how the issuance of the judicial declaration that he seeks would have any practical effect on his voting rights, and we are aware of none.” As for his taxpayer-standing basis, he contends that “the potential financial impact of the issuance of the certificates * * * may jeopardize the district’s ability to provide for the daily operation of the district.” But his complaint “does not explain why the issuance of those obligations might have that effect,” nor does he allege that the district’s potential inability to provide for its daily operations affects him in any way. His allegations that issuing the certificates would affect him “are predicated on a series of hypothetical contingencies, not on present facts” and thus are inadequate to require the requirements of standing under the Uniform Declaratory Judgments Act. The bottom line is that “a declaratory judgment “will not remedy any injury to plaintiff’s voting rights.”
As to plaintiff’s standing for an injunction, “no statute governs the issue of standing to seek injunctive relief,” under Eckles v State of Oregon, 306 Or 380, 386 (1988). But Oregon courts apply “essentially the same standing
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requirements that ordinarily apply in declaratory judgment actions.” Thus for the same reason that plaintiff’s standing fails under the Declaratory Judgments Act, his claim for an injunction fails.
(ii). U.S. Constitution
Unlike the concepts of ripeness and mootness, which inquire about "when" litigation has occurred (too soon or too late), standing asks "who." Standing is an answer to the question: "What's it to you?" Kellas v Dept of Corrections, 341 Or 471, 477 n 3 (2006) (quoting Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U L REV 881, 882 (1983)).
(b). Ripeness
(i). Oregon Constitution. "The judicial department may not exercise any of the functions of one of the other departments [legislative and executive], unless the constitution expressly authorizes it to do so." Yancy v Shatzer, 337 Or 345, 352 (2004). The judicial power under Article VII, section 1, is limited to resolving existing judiciable controversies. It does not extend to advisory opinions. Kerr v Bradbury, 340 Or 241, 244 (2006).
To be ripe, a controversy must involve present facts as opposed to a dispute which is based on hypothetical future events. McIntire v Forbes, 322 Or 426, 434 (1996) (quoting Brown v Oregon State Bar, 293 Or 446, 449 (1982)).
(ii). U.S. Constitution. Ripeness in federal courts requires “a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Casualty Co. v Pacific Coal & Oil Co., 312 US 270, 273 (1941).
(c). Mootness
(i). U.S. Constitution. Article III of the federal constitution “restricts federal courts to the resolution of cases and controversies.” Davis v Federal Elections Comm’n, 554 US 724, 732 (2008). A claim is moot “when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” US Parole Comm’n v Geraghty, 445 US 388, 396 (1980).
In federal courts, there is an “established exception to mootness for disputes that are ‘capable of repetition, yet evading review.’” United States v Juvenile Male, 131 S Ct 2860, 2865 (2011). “This exception, however, applies only where ‘(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.’” Ibid. (citations omitted).
(ii) Oregon Constitution. Mootness "is a species of justiciability, and a court of law exercising the judicial power of the state has authority to decide only justiciable controversies." First Commerce v Nimbus Ctr Assoc, 329 Or 199, 206 (1999).
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A case is not justiciable if it becomes moot during judicial proceedings. Yancy v Shatzer, 337 Or 345, 349 (2004). A case is moot when the court’s decision will no longer have a practical effect on the rights or obligations of a party. Brumnett v PSRB, 315 Or 402, 405 (1993).
In contrast with the mootness exception in federal courts, in Oregon, mootness is a constitutional matter, not just prudential, therefore: "The judicial power under [Article VI (Amended), section 1 of] the Oregon Constitution does not extend to moot cases that are 'capable of repetition, yet evading review.'" Yancy v Shatzer, 337 Or 345, 363 (2004) (overruling Perry v Oregon Liquor Comm'n, 180 Or 495, 498-99 (1947)). (But see the concurrence: The "majority's decision that Oregon courts are barred by the Oregon Constitution from deciding [cases that became moot 'simply by the passage of time'] significantly diminishes the 'judicial power' of Oregon courts and ensures that important issues * * * will remain undecided." Yancy, 337 Or at 372 (Balmer, J., specially concurring)).
ORS 14.175 asserts to create a justiciable controversy where the Supreme Court has held that no such controversy exists, allowing for a mootness exception in cases that are capable of repetition yet evading review. That statute was enacted in 2007 after Yancy v Shatzer, 337 Or 345 (2004). See Couey v Brown, 257 Or App 434 (2013); Krisor v Henry, 256 Or App 56 (2013).
Where attorney fees or declaratory judgment is sought, the matter might not be moot. For example: "It is at least arguable that the constitutionality of [an administrative search policy] * * * is a moot question, given that it no longer exists. The voluntary cessation of an action or policy challenged in a declaratory judgment proceeding, however, does not necessarily moot the action." Weber v Oakridge School District 76, 184 Or App 415, 441 n 5 (2002) (citing Tanner v OHSU, 157 Or App 502 (1988)).
Although “punitive contempt is not a ‘crime,’ * * * a judgment imposing a punitive sanction of confinement for contempt * * * is sufficiently analogous to a criminal conviction that it carries a collateral consequence of a stigma that is analogous to a criminal conviction and, for that reason, an appeal of a judgment of punitive contempt is not rendered moot by completion of the confinement.” State v Hauskins, 251 Or App 34 (2012).
State v Hemenway, 353 Or 498 (4/25/13) (Balmer) In January 2013, the Oregon Supreme Court had affirmed the trial court’s judgment of conviction of defendant (reversing the Court of Appeals), see 353 Or 129 (01/10/13). In that decision, the Court modified the analysis for voluntary consent to a search that had been set out in State v Hall, 339 Or 7 (2005). (Note: Brewer and Baldwin, J.J., did not participate in that January 2013 decision. Seven justices participated, with Durham and De Muniz (retired justices) as pro tem senior judges).
But defendant’s appellate defense counsel had not known that defendant had died over a year before that decision. On learning of defendant’s death, defense counsel moved to vacate this court’s decision and the conviction because the case was moot, and argued that vacatur is the only proper disposition. The state did not dispute that the case was moot when the Supreme Court issued its decision because defendant was dead. The state contended that the “public interest in
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leaving the court’s decision undisturbed far outweighs any equitable interests supporting vacatur.” The state also argued that the Supreme Court’s decision in State v Hemenway, 353 Or 129 (2013) had clarified decisions on the exclusionary rule in consent-search cases, and vacating it would create confusion.
The Supreme Court vacated its decision, vacated the Court of Appeals’ decision, and vacated defendant’s judgment of conviction. The Court agreed that Hemenway was moot. As for the remedy: “the absence of an existing controversy means that this court lacked judicial power conferred by Article VII (Amended), section 1, of the Oregon Constitution to issue the decision that it did.” The court based its decision on equitable factors in Kerr v Bradbury, 340 Or 241, adh’d to on recons, 341 Or 200 (2006) as well as ORAP 8.05(2)(c).
Krisor v Henry, 256 Or App 56 (5/03/13) (Lake) (Schuman, Wollheim, Nakamoto) Plaintiff had applied for a job as a fairgrounds maintenance worker. The fairgrounds hired someone else. Plaintiff sued fairgrounds board members, alleging violations of the public meetings laws, and sought his costs and fees. Before trial, the fairgrounds had terminated the worker who got the job that plaintiff had sought. The trial court granted summary judgment for defendants on an issue related to a statute of limitations, and also rejected defendants’ no- standing and mootness grounds for summary judgment. Plaintiff appealed.
The Court of Appeals dismissed the appeal as moot. Plaintiff asked the court(s) to “void the appointment” of the hired maintenance worker, but that worker had already been “unhired” before trial. Granting plaintiff what he wanted – which was to void the hiring of the other worker, would have no practical effect on plaintiff’s rights.
And a prayer for costs and fees do not “save the case from mootness”: “Where a case has become moot before entry of judgment, the entire case, including attorney fees, is moot.” (Citing Kay v David Douglas School District No. 40, 303 Or 574, 578 (1987), cert denied 484 US 1032 (1988)).
The Court of Appeals footnoted: “This case does not require us to decide whether ORS 14.175, by purporting to create a justiciable controversy where the Supreme Court has held that no such controversy exists, is constitutional.”
Couey v Brown, 257 Or App 434 (7/10/13) (Marion) (Schuman, Wollheim, Nakamoto) Plaintiff is a paid signature gatherer for initiative petitions. But he also wanted to circulate petitions as a volunteer, which a statute prohibits, for the November 2010 election. He initiated this declaratory judgment action to prohibit the Secretary of State from enforcing the statutory prohibition on simultaneous paid and unpaid circulation. While extensive discovery occurred in this case, in July 2010, plaintiff’s registration as a paid circulator expired as did the deadline to submit petitions to the Secretary of State (Article IV, section 1(2)(e), of the Oregon Constitution embeds a four-month-before-election deadline for submitting petitions). On cross-motions for summary judgment, the trial court granted summary judgment for defendant, stating in a letter opinion that “under both state and federal law, plaintiff lacks standing and therefore the case is moot.”
The Court of Appeals affirmed, but first reemphasized that “standing” and “mootness” are not the same aspects of justiciability: “to be justiciable * * * the plaintiff must have standing and the controversy must not be moot.” (Emphasis by court). The court decided the case on mootness: “When, at the latest, plaintiff ceased to be a registered paid circulator who was prohibited from circulating initiative petitions as a volunteer, this case became moot, and it does not qualify
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for the mootness exception for cases that are capable of repetition but likely to avoid judicial review.”
Plaintiff contended that although he is not immediately vulnerable to the statutory bar against being both a paid and an unpaid volunteer, that statute exists and precludes him from being both a paid and an unpaid circulator in the future. Case law supports plaintiff’s side and the Secretary of State’s position that the case is moot. After tracing through those cases, the Court of Appeals concluded that the case is moot:
“The lesson to be drawn from these apparently conflicting cases is that a dispute under the declaratory judgment act is or is not moot depending on the facts of the particular case, and in particular, the degree to which the facts that will make the dispute active are imminent and certain, as opposed to contingent and hypothetical. The inquiry necessarily involves judgment. In the present case, we conclude that the dispute falls on the contingent and hypothetical side of the divide. Plaintiff will actually become vulnerable to enforcement of [the statute barring paid and unpaid status] only if several events simultaneously occur, none of which is certain * * * .”
Plaintiff also contended that under the three-part test in ORS 14.475, the case is justiciable even if moot because it is capable of repetition yet evading review. The Court of Appeals agreed that (1) plaintiff had standing when the case began and (2) future challenges to the statute barring paid/unpaid status are capable of repetition. But the third criteria – whether future challenges are likely to evade judicial review – is not met here. The Secretary of State cited several Oregon election law cases that were fully adjudicated through the Oregon Supreme Court in less than 2 years. For “one reason only,” the Secretary of State convinced the Court of Appeals that cases like this are not likely to evade judicial review. The statute that bars paid/unpaid circulators also provides that the circuit court and the Court of Appeals may, in their discretion, give precedence to their dockets. “Plaintiff did not take advantage of that statute to request expedited review. Although it is true that cases typically take more than two years to move from filing to issuance of an appellate judgment, especially cases that go to the Supreme Court, we are unwilling at this time to speculate that the courts are unlikely to respond positively and with alacrity to a request for expedited review of a challenge to the constitutionality of ORS 250.048(9) [the statute barring paid/unpaid status].”
The court also footnoted that it prefers “to avoid constitutional questions when possible.” If the court held that this, or any, case qualifies for review under ORS 14.175, it “would have to confront the obvious question of whether that statute violates the Oregon Constitution” under Yancy v Shatzer, 337 Or 345, 363 (2004).
2. Inherent Authority
i. Generally: “Courts have inherent power to do certain things that are necessary for them to be able to do in order to perform their judicial functions, when the legislature has not otherwise given them authority to do those things. Ortwein v Schwab, 262 Or 375, 385 (1972), aff’d, 410 US 656 (1973). * * * However, by its nature, inherent power is a limited source of
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judicial power. See Ortwein, 262 Or at 385.” Cox v M.A.L., 239 Or App 350 (2010).
ii. Sentencing: “Oregon subscribes to the common-law rule that, once a valid sentence is executed – that is, once a defendant begins serving it – the trial court loses jurisdiction over the case, and thus power to modify the sentence. State v Jacobs, 295 Or 632, 636 (1983). The common law rule includes an exception: If the sentence is invalid because it is contrary to law in some respect, the court is deemed to have failed to pronounce any sentence, and thus it has not yet exhausted its jurisdiction and can substitute a valid sentence for the one that is void. State v Nelson, 246 Or 321, 324, cert denied 389 US 964 (1967). That appears to be the only exception recognized in the common law.” State v Johnson, 242 Or App 279 (2011).
iii. Contempt powers: “The power of a court to punish for direct contempt in a summary manner is inherent in all courts, and arises from the necessity of preserving order in judicial proceedings.” State v Spainhower, 251 Or App 25 (2012) ; Rust v Pratt, 157 Or 505 (1937); City of Klamath Falls v Bailey, 43 Or App 331, 334 (1979)). “Although the direct contempt power is inherent,” “ORS 33.096 codifies a court’s inherent authority to impose a sanction for a contempt committed in the immediate view and presence of the court.” “The inherent common-law authority codified in ORS 33.096 does not offend federal constitutional due process requirements.” In contrast with summary contempt – which must occur in the immediate view and presence of the court – a defendant charged with “indirect contempt” must be afforded certain procedures, including the right to a hearing, see ORS 33.055 and 33.065. Spainhower.
iv. Stays: Courts have “inherent authority to issue stays.” Weldon v Bd of Licensed Professional Counselors and Therapists, 353 Or 85 (2012) (neither the text of a statute nor legislative silence indicates that the legislature intended to prohibit courts from exercising their inherent authority to issue stays).
3. Stare decisis
Note: Stare decisis may be a self-imposed limit on judicial authority. On state constitutional interpretation, see Jack L. Landau, Some Thoughts About State Constitutional Interpretation, 115 PENN STATE L REV 837, 838 (2011), proposing that “in the case of state constitutional interpretation, the pull of stare decisis may not be as strong as it is in other contexts.”
“In the area of constitutional interpretation, our cases emphasize that decisions ‘should be stable and reliable,’ because the Oregon Constitution is ‘the fundamental document of this state.’” Farmers Insurance Co. v Mowry, 350 Or 686 (2011) (quoting Strahanan v Fred Meyer, Inc., 331 Or 38 (2000)). “Strahanan makes the point that this court is the ultimate interpreter of state constitutional provisions – subject only to constitutional amendment by the people – and if we have erred in interpreting a constitutional provision, there is no one else to correct the error. Farmers Insurance Co. v Mowry, 350 Or 686 (2011). The Court will “begin with the assumption that issues considered in our prior cases are correctly decided, and ‘the party seeking to change a precedent must assume responsibility for affirmatively persuading us that we should abandon that precedent.’” Id. (citing State v Ciancanelli, 339 Or 282, 290 (2005)).
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“To revisit and repudiate [a recent case], especially given the intervening changes in the court’s composition, could engender a perception that we have done so merely ‘because the personal policy preferences of the members of the court * * * differ from those of our predecessors who decided the earlier case.’” State v Moore, 247 Or App 39 (2011), review allowed 352 Or 25 (2012) (quoting Farmers Insurance Co. v Mowry, 350 Or 686, 698 (2011) and citing Alexander Bickel, THE LEAST DANGEROUS BRANCH (1962)).
4. Policy Questions
(i). Oregon Constitution
“The phrase ‘policy question’ would be preferable to ‘political question’ to describe decisions beyond judicial determination.” Lipscomb v State of Oregon, 305 Or 472, 477 n 4 (1988) (observing that when distinguishing between the Governor’s “ministerial” and “discretionary duties, the court has equated “political” with “discretionary” decisions.” Id. at 477 (citing Putnam v Norblad, 134 Or 433 (1930)). “Governors, legislators, and other public officials are responsible in the first instance for determining their constitutional duties.” Id. at 478-79. “In the constitutional relationships between the legislative and executive branches, a longstanding understanding and practice shared by both branches doubtless deserves respectful consideration, though it is not conclusive.” Id. at 479 (“a court would be cautious to upset” “a well-established shared understanding of the political constitution”).
(ii). U.S. Constitution
“At least since Marbury v Madison, 1 Cranch 137 (1803), we have recognized that when an Act of Congress is alleged to conflict with the Constitution, ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’ Id. at 177. That duty will sometimes involve the ‘[r]esolution of litigation challenging the constitutional authority of one of the three branches,’ but courts cannot avoid their responsibility merely ‘because the issues have political implications.’ INS v Chadha, 462 US 919, 943 (1983).” This case presents “a familiar judicial exercise.” The “question is whether Congress or the Executive is ‘aggrandizing its power at the expense of another branch.’” The political- question doctrine does not prevent review of this case. Zivotofsky v Clinton, 132 S Ct 1421 (2012).
C. Legislative Power and Immunity
1. Power
"The legislative power of the state, except for the initiative and referendum powers reserved to the people, is vested in a
Legislative Assembly, consisting of a Senate and a House of
Representatives." -- Article IV, section 1(1), Or Const
"[N]or shall any law be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution." – Article I, section 21, Or Const
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“The constraints of Article I, section 21, apply only to the delegation of the legislative authority to enact laws – that is, ‘the constitutional function of the legislature to declare whether there is to be a law; and, if so, what are its terms.’ Marr v Fisher et al, 182 Or 383, 388 (1947). Accordingly, although consistently with Article I, section 21, ‘the legislature cannot delegate it power to make a law, it is well settled that it may make a law to become operative on the happening of a certain contingency or future event.’ Id.” Hazell v Brown, 238 Or App 487, 496 (2010), aff’d, 352 Or 455 (2012).
2. Immunity: The Debate Clause
“Senators and Representatives in all cases, except for treason,
felony, or breaches of the peace, shall be privileged from arrest during the session of the Legislative Assembly, and in going to and returning from the same; and shall not be subject to any civil process during the session of the Legislative Assembly, nor the fifteen days next before the commencement thereof: Nor
shall a member for words uttered in debate in either house, be questioned in any other place.” -- Article IV, section 9, Or Const
Anticipate State v Babson, 249 Or App 278, 283 (2012), rev allowed 353 or 103 (2012).
3. Initiative and Referendum
In Article IV, section 1, subsections (2), (3), and (5), “There are two types of referenda: the citizen referendum and the legislative referendum. The citizen referendum allows the people, after they gather the required number of signatures, to approve or reject legislation that was previously passed by a legislative body. The legislative referendum is the process by which the legislature is required to refer certain matters to the voters for their approval.” Subsections (2) and (3) provide “a clear distinction between an initiative and referendum – that an initiative empowers the people to ‘enact or reject’ a proposed law and a referendum provides the ability to ‘approve or reject’ an act, or a part of an act of the Legislative Assembly.” American Energy, Inc. v City of Sisters, 250 Or App 243 (2012).
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D. Executive Power
“[The Governor] shall have power to grant reprieves, commutations,
and pardons, after conviction, for all offences [sic] except treason, subject to such regulations as may be provided by law. Upon conviction for treason he shall have power to suspend the execution of the sentence until the case shall be reported to the Legislative
Assembly, at its next meeting, when the Legislative Assembly shall either grant a pardon, commute the sentence, direct the execution of the
sentence, or grant a farther [sic] reprieve. * * * * * .” -- Article V, section 14, Or Const
“The framers did not devote much time to debating Article V, section 14.” Haugen v Kitzhaber, 353 Or 175 (2013). But “the Oregon history, although slim, indicates that the delegates considered and rejected additional limitations on the Governor’s clemency power in favor of entrusting that power to the Governor alone.” Id.
The chief executive power of the state is vested in the Governor, under Article V, section 1. And “because the Governor is the head of an equal branch of government, this court must not ‘assume the power to question the action of the executive of the state.’” Haugen v Kitzhaber, 353 Or 175 (2013) (quoting Putnam v Norblad, 134 Or 433, 439 (1930)). Although “it is not within judicial competency to control, interfere with, or even to advise the Governor when exercising his power to grant reprieves, commutations, and pardons,” Eacret v Holmes, 215 Or 121 (1958), the Court may review the Governor’s discretion in invoking clemency power under Article V, section 14, of the Oregon Constitution because one of the “court’s fundamental functions is interpreting provisions of the Oregon Constitution”, per Farmers Insurance Co v Mowry, 350 Or 686, 697 (2011).
Haugen v Kitzhaber, 353 Or 175 (6/20/13) (Balmer) In 1981, Gary Haugen (plaintiff) was sentenced to life in prison for murder. He murdered again in prison. In 2007, for that prison murder, a jury convicted him of aggravated murder and sentenced him to death. Defendant (the Governor) issued a reprieve under Article V, section 14, of the Oregon Constitution, refusing to execute Haugen for the duration of his governorship. Haugen wrote a letter to the Governor refusing the reprieve.
Haugen sued the Governor in this declaratory judgment action, contending that the reprieve was ineffective because: (1) a reprieve must have a stated end date and (2) a reprieve must be accepted by the recipient. The trial court agreed with plaintiff’s “acceptance theory,” ruling that a reprieve must be accepted and, because it was not accepted in this case, the clemency was ineffective. The trial court also concluded that a reprieve need not have a specified end date. The Governor appealed. The Court of Appeals certified the appeal to the Oregon Supreme Court under ORS 19.405, and the Supreme Court accepted that certification.
The Oregon Supreme Court held that the Governor’s reprieve of Haugen’s death sentence is “valid and effective” and reversed the trial court’s judgment. Although “it is not within judicial competency to control, interfere with, or even to advise the Governor when exercising his power to grant reprieves, commutations, and pardons,” Eacret v Holmes,
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215 Or 121 (1958), the Court may review the Governor’s discretion in invoking clemency power under Article V, section 14, of the Oregon Constitution because one of the “court’s fundamental functions is interpreting provisions of the Oregon Constitution”, per Farmers Insurance Co v Mowry, 350 Or 686, 697 (2011).
The Court wrote that in its prior Article V, section 14 cases, it did not analyze Article V, section 14, under the Priest v Pearce, 314 or 411 (1992) method (which is text, history, and case law). But (without bridging the question of why it would now, or why it would use that analysis given that it does not for other original provisions such as Art. I, sections 8 and 9) the Court stated: “Because this court has not previously applied the Priest analysis to Article V, section 14, we begin with the text and history of that provision, and then examine this court’s prior cases in light of the textual and historical analysis.”
The word “reprieve” – which is at issue in this case – is not defined in the Oregon Constitution and “historical definitions of the word provide little insight into the limitations, if any.” But the Court cited a few “typical definitions” from old dictionaries and stated that those definitions do not require a specific end date or any purpose. Without citation, the Court wrote that the origin of the word “reprieve” is from the French “reprendre” for “to take back.” The Court decided that to “the extent that limits are imposed on the clemency power, those limits must come from the constitution itself, or from the people,” and cited a United States Supreme Court case. The Oregon Constitution’s text does not refer to the recipient of clemency at all. In all cases other than treason, the Governor’s clemency power is plenary.
The Court concluded that the text and context of Article V, section 14, does “not require a reprieve to specify and end date” or “limit the Governor to granting reprieves only for a particular purpose, as long as the effect of the reprieve is to delay, temporarily, the execution of the sentence.”
The Court then turned from text and context to history, and engaged in an extensive discussion of clemency power in Article V, section 14, back to the English common law and the federal constitution, footnoting: “the federal clemency power also provides important context, because Oregon cases interpreting Article V, section 14, at times rely on federal cases interpreting the federal clemency power.” Most of the discussion involved English common law, with the Court concluding: “neither the text nor the historical circumstances surrounding Article V, section 14, unequivocally requires an act of clemency to be accepted by the recipient to be effective; nor do they require an act of clemency to have a stated end date or to be granted only for a particular purpose.”
The Court then turned to “interpreting Article V, section 14, to determine whether it resolves those issues,” and did so with federal cases and then state cases, concluding that “none of the Oregon cases holds that an unconditional act of clemency is effective only on acceptance by the recipient.” The “executive power to grant clemency flows from the constitution and is one of the Governor’s only checks on another branch of government.” The Court concluded that the reprieve is valid and effective regardless if Haugen accepted it.
The Court also concluded that the reprieve did not violate the Eighth Amendment’s cruel and unusual punishment prohibition (as to proportionality), or the Due Process Clause (Haugen alleged that the reprieve deprived him of his liberty interest in his “individual autonomy.”
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II. FREE EXPRESSION AND ASSEMBLY
"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." – Article I, section 8, Or Const
A. Origins & Interpretation
Origins. “Oregon’s pioneers brought with them a diversity of highly moral as well as irreverent views, we perceive that most members of the Constitutional Convention of 1857 were rugged and robust individuals dedicated to founding a free society unfettered by the governmental imposition of some people’s views of morality on the free expression of others.” State v Henry, 302 Or 510, 523 (1987).
Article I, section 8, of the Oregon Constitution is identical to Article I, section 9, of the Indiana Constitution of 1851. W.C. Palmer, The Sources of the Oregon Constitution, 5 Or L Rev 200, 201 (1926). The “Bill of Rights of the Oregon Constitution is drawn immediately from that of Indiana, see Carey, ed., THE OREGON CONSTITUTION (1926) p 28 [but] the prototype of all state freedom of speech provisions on the Oregon model appears to be that of the Pennsylvania Constitution of 1790. * * * Earlier state constitutions, dating from the Revolutionary period, contained more general guarantees of free speech comparable to that of the First Amendment.” State v Jackson, 224 Or 337, 348- 49 (1960). (Indiana Constitution of 1851 is at www.in.gov/history/2466.htm).
Interpretations. Article I, section 8, forecloses the enactment of any law written in terms directed to the substance of any "opinion" or any "subject" of communication, unless the scope of the restraining 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. Examples are perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants. Only if a law passes that test is it open to a narrowing construction to avoid "overbreadth" or to scrutiny of its application to particular facts. State v Robertson, 293 Or 402, 412 (1982).
The Court of Appeals has concluded: “the analytical method set out in Robertson controls our evaluation of the parties' Article I, section 8, contentions. Although the Supreme Court has suggested that, because it is part of the original constitution, a different, more originalist, interpretive approach applies to Article I, section 8, the fact remains that the court has yet to overrule Robertson. Moreover, as in Stranahan, the parties in this case have not argued that anything but the Robertson analysis applies. Lacking any assistance from the parties, we decline to undertake on our own an analysis of Article I, section 8, that departs from the method set out in Robertson.” Leppanen v Lane Transit District, 181 Or App 136, 142 (2002) (“In prohibiting the solicitation of initiative petition signatures, [an ordinance] certainly prohibits a form of speech,” based on content, and violates Article I, section 8).
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B. Assembly
“No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good; nor from instructing their Representatives; nor from
applying to the Legislature for redress of grieviances [sic].” -- Article I, section 26, Or Const
State v Babson, 249 Or App 278, 283 (2012), rev allowed 353 or 103 (2012) summarized Article I, section 8 and 26 analysis as follows: State v Robertson, 293 Or 402 (1982), State v Plowman, 314 Or 157 (1992), cert denied, 508 US 974 (1993), and other cases “divide the universe of enactments that are subject to a challenge” under Article I, section 8,” into three categories. The first is “enactments directed toward expression per se,” such as in State v Henry, 302 Or 510 (1987). The second is enactments “directed toward some regulable results and ‘expressly prohibit’ expression used to achieve those results,” as in Plowman. The third is “enactments that regulate or prohibit conduct ‘without referring to expression at all,’ but may when enforced “interfere with a person’s expression,” under Plowman. Each category is reviewed under different rules. “Thus, the first step in reviewing an enactment under Article I, section 8, is to determine the enactment’s category.”
“Statutes fall into the first category only if they expressly forbid speech. * * * They fall into the second category only if they specify a harm and ‘expressly’ provide that speech or some other form of intentionally communicative activity is one way to cause that harm.” Laws that do “not expressly or obviously regulate speech or communication” but instead address conduct that may involve expression, but in other situations do not, “cannot be subjected to a facial challenge – that is, a challenge asserting that the enactors of the rule violated the constitution when they enacted it, regardless of how the enactment is enforced. State v Illig-Renn, 341 Or 228, 233-34 (2006).” “Rather, such enactments are susceptible to challenge only as applied to the facts of a particular case.”
A “person cannot immunize herself or himself from the application of speech- neutral laws by accompanying otherwise illegal conduct with expressive activity. Speech accompanying punishable conduct does not transform conduct into expression under Article I, section 8.” (Citations omitted). “Rather, to determine whether the enforcement of a speech-neutral statute violates an individual’s rights under Article I, section 8, we apply the analysis that we described and explained in City of Eugene v Lincoln, 183 Or App 36, 43 (2002).”
As for Article I, section 26, similar analyses apply to speech and assembly rights under the Oregon Constitution. Article I, section 26, “encompasses three protected activities: peaceful assembly for political purposes, instruction of representatives, and application to government for redress of grievances.”
C. Politicking, Campaigning, and Lobbying
1. Political Speech
“The loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v Burns, 427 US 347, 373 (1976). “The harm is particularly irreparable where, as
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here, a plaintiff seeks to engage in political speech, as timing is of the essence in politics and a delay of even a day or two may be intolerable.” Klein v City of San Clemente, 584 F3d 1196, 1208 (9th Cir 2009).
2. Campaign Contributions, Expenditures, and Reporting
(a). Oregon Constitution
"[B]oth campaign contributions and expenditures are forms of expression for the purposes of Article I, section 8." Vannatta v Keisling, 324 Or 514, 524 (1997). Legislatively “imposed limitations on individual political campaign contributions and expenditures” violate Article I, section 8.” Meyer v Bradbury, 341 Or 288, 299 (2006); Hazell v Brown, 352 Or 455 (2012).
(b). First Amendment
A "decision to contribute money to a campaign is a matter of First Amendment concern – not because money is speech (it is not); but because it enables speech. * * * . . Buckley v Valeo, 424 US 1, 24-25 (1976) (per curiam). Both political association and political communication are at stake." Nixon v Shrink Missouri Government PAC, 528 US 377, 400 (1976) (Breyer, J., concurring) (emphasis in original). “The Buckley Court * * * sustained limits on direct contributions in order to ensure against the reality or appearance of corruption. That case did not extend this rationale to independent expenditures, and the Court does not do so here [in Citizens United].” Citizens United v. Federal Election Commission, 558 US 50, 130 S Ct 876, 908 (2010) (“independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption”).
In Buckley, the US Supreme Court "told us, in effect, that money is speech. This, in my view, misconceives the First Amendment." J. Skelly Wright, "Politics and the Constitution: Is Money Speech?", 85 YALE LJ 1001, 1005 (1976).
Citizens United v Federal Election Comm’n, 558 US 310 (2010): Austin v. Michigan Chamber of Commerce, 494 US 652 (1990) held that political speech may be banned based on the speaker's corporate identity. “Austin upheld a direct restriction on the independent expenditure of funds for political speech for the first time in this Court's history.” Citizens United v. Federal Election Commission, 558 US 50, 130 S Ct 876 (2010). But Citizens United concluded that “Austin interferes with the ‘open marketplace’ of ideas protected by the First Amendment . * * * It permits the Government to ban the political speech of millions of associations of citizens.” Overturning Austin, the Court decided that the “Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.” “We return to the principle established in Buckley and Bellotti that the Government may not suppress political speech on the basis of the speaker's corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations* * * * * * Austin is overruled, so it provides no basis for allowing the Government to limit corporate independent expenditures.”
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Federal law at issue in Citizens United prohibited “electioneering communication.” An electioneering communication is "any broadcast, cable, or satellite communication" that "refers to a clearly identified candidate for Federal office" and is made within 30 days of a primary or 60 days of a general election. Under federal law, corporations and unions are barred from using their general treasury funds for express advocacy or electioneering communications. They may establish, however, a "separate segregated fund" (known as a political action committee, or PAC) for these purposes. The segregated-fund moneys are limited to donations from stockholders and employees of the corporation or, for unions, to members of the union. The law here “makes it a felony for all corporations — including nonprofit advocacy corporations — either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election.” Limits on electioneering communications were upheld in McConnell v. Federal Election Comm'n, 540 US 93, 203-209 (2003) (“McConnell permitted federal felony punishment for speech by all corporations, including nonprofit ones, that speak on prohibited subjects shortly before federal elections.”).
Citizens United wanted to make its movie, Hillary, available through video-on-demand within 30 days of the 2008 primary elections. Hillary promoted the idea that Hillary Clinton was unfit for the US presidency. Citizens United also sought to broadcast one 30-second and two 10- second ads to promote Hillary. It feared, however, that both the film and its promotional ads would be banned as corporate-funded independent expenditures, thus subjecting the corporation to civil and criminal penalties. It sought declaratory and injunctive relief in court, arguing that the federal law is unconstitutional as applied to Hillary and its ads for Hillary. The district court denied Citizens United the relief it sought, and granted the Federal Elections Commission’s motion for summary judgment.
The US Supreme Court reversed: The law’s “prohibition on corporate independent expenditures is * * * a ban on speech. As a ‘restriction on the amount of money a person or group can spend on political communication during a campaign,’ that statute ‘necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.’ Buckley v Valeo, 424 US 1, 19 (1976) (per curiam).” “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. See Buckley, supra, at 14-15 (‘In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential’). The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment "`has its fullest and most urgent application' to speech uttered during a campaign for political office." Eu v San Francisco County Democratic Central Comm., 489 US 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)); see Buckley at 14 (‘Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution’). For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are ‘subject to strict scrutiny,’ which requires the Government to prove that the
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restriction ‘furthers a compelling interest and is narrowly tailored to achieve that interest.’ WRTL, 551 US, at 464 (opinion of Roberts, CJ).”
“The Court has recognized that First Amendment protection extends to corporations.” (about 22 string cites omitted). “This protection has been extended by explicit holdings to the context of political speech* * * * * * Under the rationale of these precedents, political speech does not lose First Amendment protection ‘simply because its source is a corporation.’" (citations omitted). “Corporations and other associations, like individuals, contribute to the `discussion, debate, and the dissemination of information and ideas' that the First Amendment seeks to foster" * * * The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not "’natural persons.’" The “Government lacks the power to ban corporations from speaking.” “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” “Political speech is ‘indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.’ Bellotti, 435 US, at 777” (other citations omitted). It is irrelevant for purposes of the First Amendment that corporate funds may "have little or no correlation to the public's support for the corporation's political ideas." Id., at 660 (majority opinion). “All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker's ideas.” “The Framers may not have anticipated modern business and media corporations. See McIntyre v Ohio Elections Comm'n, 514 US 334, 360-361 (1995) (Thomas, J., concurring in judgment). Yet television networks and major newspapers owned by media corporations have become the most important means of mass communication in modern times. The First Amendment was certainly not understood to condone the suppression of political speech in society's most salient media. It was understood as a response to the repression of speech and the press that had existed in England and the heavy taxes on the press that were imposed in the colonies.”
Under the federal regulations applicable to this case, “televised electioneering communications funded by anyone other than a candidate must include a disclaimer that `___ is responsible for the content of this advertising.' 2 U.S.C. § 441d(d)(2). The required statement must be made in a ‘clearly spoken manner,’ and displayed on the screen in a ‘clearly readable manner’ for at least four seconds. Ibid. It must state that the communication ‘is not authorized by any candidate or candidate's committee’; it must also display the name and address (or Web site address) of the person or group that funded the advertisement. * * * [A]ny person who spends more than $10,000 on electioneering communications within a calendar year must file a disclosure statement with the FEC. * * * That statement must identify the person making the expenditure, the amount of the expenditure, the election to which the communication was directed, and the names of certain contributors* * * * * * Disclaimer and disclosure requirements may burden the ability to speak, but they ‘impose no ceiling on campaign-related activities,’ Buckley, 424 US at 64, and ‘do not prevent anyone from speaking,’ [citation omitted] The Court has subjected these requirements to
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‘exacting scrutiny,’ which requires a 'substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.” (citations omitted). The federal regulations requiring disclosures and disclaimers are applicable to the pay-per-view ads for Hillary. Those regulations are not unconstitutional under the First Amendment.
The US Supreme Court noted that Citizens United “is about independent expenditures, not soft money.” Soft money is donations to political parties. “An outright ban on corporate political speech during the critical preelection period is not a permissible remedy” for Congress’s attempts to dispel either the appearance or the reality of improper influences on politicians.
D. Stalking
1. Civil Stalking Protective Order
“A person may obtain a stalking protective order in two ways. One method involves filing a complaint with law enforcement. See ORS 163.7335 to 163.744. The other method * * * does not require law enforcement involvement. The victim instead directly petitions the circuit court to issue a civil stalking protective order. ORS 30.866.” State v Ryan, 350 Or 670 (2011).
To obtain a Stalking Protective Order (an SPO), the petitioner must meet the statutory requirements and "if the contact involves speech, Article I, section 8, of the Oregon Constitution requires proof that the contact constitutes a threat. A threat 'is a communication that instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts.' State v Rangel, 328 Or 294, 303 (1999). But a threat does not include 'the kind of hyperbole, rhetorical excesses, and impotent expressions of anger or frustration that in some contexts can be privileged even if they alarm the addressee.' State v Moyle, 299 Or 691, 705 (1985)." Swarringim v Olson, 234 Or App 309, 311-12 (2010).
Name-calling is insufficient to meet the Rangel standard for speech- based contacts. Just following a person around a store does not provide a basis for “objectively reasonable apprehension or fear resulting from the perception of danger,” as the element of “danger” is used in ORS 163.170(1) and is defined under Webster’s Third New International Dictionary. K.R. v Erazo, 248 Or App 700 (2012).
There is no culpable mental state that the victim must prove regarding his feeling of alarm, per Delgado v Souders, 334 Or 122 (2002); instead the victim must prove that the stalker acted at least recklessly. T.M.B. v Holm, 248 Or App 414 (2012).
V.A.N. v Parsons, 253 Or App 768 (12/05/12) (Linn) (Hadlock, Ortega, Sercombe) Petitioner is married; she works with the alleged stalker (respondent) who the trial court described as “a very large man.” Petitioner rebuffed his romantic overtures. Respondent then checked himself in to a psychiatric hospital. When released, he resumed sending her numerous text messages over the next month, including three between Christmas and New Year. He kept texting her repeatedly, stating “I guess I need to stop being so nice” and “I guess I
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will have to either confront you at work in front of your coworkers or I will come and confront you in front of [your husband].” Petitioner filed a petition for an SPO under ORS 30.866. That same day the court issued a temporary order and a hearing was held 19 days later. Only petitioner testified; respondent did not testify. He moved to dismiss based on sufficiency of the evidence. The court entered a permanent SPO.
The Court of Appeals reversed: the contacts at issue are text messages. While petitioner’s subjective fear was found to be credible and genuine, her “subjective concern is not sufficient to support entry of the SPO.” Article I, section 8, and Rangel require “an objective determination that respondent intended to carry out any threat that was implicit in his messages to petitioner and probably was going to do so.” (Emphasis by court). No evidence supports a reasonable inference that respondent’s implicit threats of aggression were anything more than “impotent expressions of anger or frustration.” (Quoting Rangel).
D.A. v White, 253 Or App 754 (12/05/12) (Jackson) (Hadlock, Ortega, Sercombe) Petitioner and White, both men, worked together for 5 years at the DEA. White made offensive comments to petitioner’s fiancé. Petitioner said he did not want to be friends with White anymore. White then sent 19 text messages to petitioner that night between 6pm and 1am. White was apologetic, then he called petitioner a douche bag, then he said he would kick his ass, then he said petitioner had better get a protective order because petitioner and his fiancé were going to need it. Petitioner did not respond. The next day at work, the two did not talk. White told a DEA supervisor that petitioner was suicidal, had stolen money from a search warrant, and was “in collections.” (Petitioner was exonerated later). Then, on two different dates, White “repeatedly dry fired his duty weapon” at least 10-15 times in one minute, when the two were together in the DEA office. When people in the office complained to a supervisor, White said he was “just playing.”
When asked on cross at the SPO hearing if he was fearful when White had fired the gun, all petitioner said was, “I was armed at the time, too, sir” and that he was “I was concerned enough to stand up and walk over to see what he was doing, yes.” White stopped working for the DEA. Later he drove his motorcycle to petitioner’s house, stopped near the end of the driveway, revved his engine, and yelled at petitioner to come outside. Petitioner believed White was armed and threatening him, because White always carried his duty gun. The fiancé called 911. White emailed petitioner in a rambling message that indicated to petitioner that White thought he had turned him in for crimes, and for his grandfather’s death, and other things that had nothing to do with petitioner. The trial court entered a temporary then a permanent SPO under ORS 163.738(2)(a)(B).
The Court of Appeals affirmed. First, criteria for obtaining an SPO are identical under ORS 30.866 and 163.738. Second, none of the text messages met the heightened standard required under Article I, section 8, and Rangel thus none of those texts are independent bases for an SPO, although they may serve as context for other contacts. The second dry-firing incident is sufficient to establish fear because petitioner testified that he was “concerned enough to stand up to walk over to see what he was doing, yes.” The motorcycle incident also subjectively and objectively alarmed petitioner, even though he did not testify that he felt alarmed subjectively, the trial court so inferred. Those two contacts were actionable; the trial court did not err.
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2. The Crime of Violating an Existing SPO
In contrast with a petition to obtain an SPO, when defendant is charged with the crime of violating an existing SPO (ORS 163.750), Article I, section 8, does not require the state to prove that defendant made an unequivocal threat that caused the victim to fear imminent and serious personal violence. State v Ryan, 350 Or 670 (2011). “[B]ecause defendant’s communications with the victim were already prohibited by the stalking protective order [and that underlying SPO was not challenged], the state was not required by Article I, section 8, to prove under ORS 163.750 that defendant had communicated an unequivocal threat to the victim.” Id.; see also State v Nahimana, 252 Or App 174 (2012) (under State v Ryan, 350 Or 670 (2011), Rangel’s narrowing standard does not apply to the crime of violating an existing SPO); State v Nguyen, 250 Or App 225 (2012) (Under Ryan, “a defendant who seeks to challenge a conviction under ORS 163.750 on free speech grounds first must successfully attack the underlying stalking protective order.”)
3. Terminating an SPO
ORS 30.866 allows a victim to petition and obtain a civil SPO directly with the court without having law enforcement issue a complaint to the stalker. That statute does not provide for any method for a stalker to terminate an SPO. But the criminal stalking statute (ORS 163.738(2)) does provide for terminating an SPO when the reasons for the SPO “are no longer present,” see Edwards v Biehler, 203 Or App 271, 277 (2005). The statutes require the same evidentiary showing for issuance. C.L.C. v Bowman, 249 Or App 590 (2012).
“Constitutionally protected speech” may be considered in determining the termination of an SPO. C.L.C. v Bowman, 249 Or App 590 (2012) (website postings).
4. The Crime of Stalking
Under State v Ryan, 350 Or 670 (2011), Rangel’s narrowing standard does not apply to the crime of violating an existing. State v Nahimana, 252 Or App 174 (2012) SPO (defendant’s convictions for violating an underlying SPO are affirmed when he did not challenge that underlying SPO).
5. Jury Right in Civil Stalking Cases Seeking Money Damages
When a plaintiff files a petition under ORS 30.866 for both a stalking protective order and compensatory money damages for the stalking “the parties are entitled to a jury trial on the claim for money damages” under Article I, section 19, and Article VII (Amended), section 3, of the Oregon Constitution (although the statute does not grant any jury trial right). M.K.F. v Miramontes, __ Or __ (2012).
If a plaintiff seeks nothing but money under that statute, then her claim would have been “at law” and the defendant would have had a jury-trial right, per Fleischner v Citizens’ Real Estate & Investment Co., 25 Or 119, 130 (1893), Carey v Hays, 243 Or 73, 77 (1966), Molodyh v Truck Insurance Exchange, 304 Or 290, 297 (1987), and Thompson v
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Coughlin, 329 Or 630, 637-38 (2000). Conversely, if a plaintiff seeks only a stalking protective order (injunctive relief), then her claim would have been equitable and the Oregon Constitution would not provide a jury-trial right. Id.
“The right to jury trial must depend on the nature of the relief requested and not on whether, historically, a court of equity would have granted the relief had the legal issue been joined with a separate equitable claim. * * * Article I, section 17, and Article VII (Amended), section 3, of the Oregon Constitution do not guarantee a right to jury trial for claims or request for relief that, standing alone, are equitable in nature and would have been tried to a court without a jury. By the same token, in the absence of a showing that the nature of a claim or request for relief is such that, for that or some other reason, it would have been tried to a court without a jury, those provisions do guarantee a right to jury trial on claims or requests that are properly categorized as ‘civil’ or ‘at law.’”
The Court held: “Article I, section 17, and Article VII (Amended), section 3, preserve the right to jury trial for claims that are properly categorized as ‘civil’ or ‘at law.’ * * * [P]laintiff’s claim seeking monetary damage for injury inflicted fits within those terms, even if it does not have a precise historical analog.”
E. Profanity, Obscenity, and Fighting Words
"One man's vulgarity is another's lyric." Cohen v California, 403 US 15, 25 (1971).
“We die of words.” Robert Conquest, George Orwell (1969).
1. Article I, section 8
Obscenity is not a “historical exception” to the protections of Article I, section 8. State v Henry, 302 Or 510, 525 (1987) stated: “We hold that characterizing expression as ‘obscenity’ under any definition * * * does not deprive it of protection under the Oregon Constitution.” “In this state any person can write, print, read, say, show, or sell anything to a consenting adult even though that expression may be generally or universally considered “obscene.” Id. at 525. “[T]his form of expression, like others,” may be “regulated in the interests of unwilling viewers, captive audiences, minors, and beleaguered neighbors,” but “it may not be punished in the interest of a uniform vision on how human sexuality should be regarded or portrayed.” Id. “We also do not rule out regulation, enforced by criminal prosecution, directed against conduct of producers or participants in the production of sexually explicit material, nor reasonable time, place, and manner regulations of the nuisance aspect of such material or laws to protect the unwilling viewer or children.” Id.
2. First Amendment
“There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words – those which, by their very utterance, inflict injury or tend to incite an
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immediate breach of the peace.” Chaplinsky v New Hampshire, 315 US 568, 571-72 (1942) (The words “‘damned racketeer’ and ‘damned Fascist’ are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.”).
"Unlike der Führer, government officials in America occasionally must tolerate offensive or irritating speech. See Cohen v California." Norse v Santa Cruz, 629 F3d 966 (9th Cir 2010) (en banc) cert denied, 132 S Ct 112 (2011) (Kozinski, CJ, concurring) (city council meeting attendee’s sarcastic “Nazi” salute given to city council during public comment period of meeting was protected by First Amendment).
F. First Amendment
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances." –US Const, amendment I
1. Application to the States
“The term ‘liberty’ in the Fourteenth Amendment to the Constitution makes the First Amendment applicable to the States.” McIntyre v Ohio Elections Comm’n, 514 US 33, 336 n 1 (1995). The rights in the First Amendment apply to the States through the Fourteenth Amendment's due process clause: Gitlow v New York, 268 US 652 (1925) (speech); Near v Minnesota ex rel Olson, 283 US 697 (1931) (press); Cantwell v Connecticut, 310 US 296 (1940) (free exercise); De Jonge v Oregon, 299 US 353 (1940) (assembly); Everson v Board of Education of Ewing, 330 US 1 (1947) (establishment). McDonald v City of Chicago, 130 S Ct 3016, 3034 n 12 (2010) (so reciting).
2. Application to State actors
State action is subject to the Fourteenth Amendment but private conduct is not. State “action may be found if, though only if, there is such a ‘close nexus between the State and the challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State itself.’” Brentwood Academy v Tennessee Secondary School, 531 US 288, 295 (2001). A “host of facts” can bear on whether action may be state action: when the state exercises its coercive power or significant encouragement; when a private actor is a willful participant in joint activity with the state; when an entity is controlled by the state or an agency; when an entity has been delegated a public function by the state; when an actor is entwined with governmental policies; or when the government is entwined in the entity’s management or control. Id. at 296.
3. Speech not protected by the First Amendment
The First Amendment “has no application when what is restricted is not protected speech.” Nevada Comm’n on Ethics v Carrigan, 131 S Ct 2343 (2011). Besides “well-defined and narrowly limited classes of speech” such as obscenity, incitement, and fighting words, the “government has no power to restrict
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expression because of its message, its ideas, its subject matter, or its content.” Brown v Entertainment Merchants Ass’n, 131 S Ct 2729 (2011).
Examples of speech that the First Amendment does not protect:
(a). Legislator’s vote. A legislator’s vote is not protected speech. A legislator’s power is not personal to him but belongs to the people. Nevada Comm’n on Ethics v Carrigan, 131 S Ct 2343 (2011). (b). Obscenity. Brown v Entertainment Merchants Ass’n, 131 S Ct 2729 (2011) (obscenity, incitement, and fighting words “have never been thought to raise any Constitutional problem”); Miller v California, 413 US 15, 23 (1973). (c). Fighting words. Chaplinsky v. New Hampshire, 315 US 568, 571-72 (1942); United States v Stevens, 130 S Ct 1577, 1584 (2010) (certain categories of speech fall outside First Amendment protection precisely because of their content: obscenity, defamation, fraud, incitement, and speech integral to criminal conduct). (d). Lying, defamation, fraud, and some false statements of facts. Knowingly communicating an intentional lie may also be regulated without regard to the substance of that speech as long as the government is not favoring or disfavoring certain messages. United States v Gilliland, 312 US 86, 93 (1941); Gertz v Robert Welch, Inc., 418 US 323, 340 (1974); R.A.V. v City of St. Paul, 505 US 377, 391-92 (1992); United States v Alvarez, 132 S Ct 2537, 2546-47 (2012). Commercial speech that is false, misleading, or proposes illegal transactions is unprotected, see Central Hudson Gas & Electric Corp v Pub Serv Comm’n of New York, 447 US 557, 562, 566-67 (1980). (e). True threats. Watts v United States, 394 US 705, 708 (1969). (f). Advocacy that imminently incites lawless action. Brandenburg v Ohio, 395 US 444, 447-48 (1969). (g). Child Pornography made with real children. Ashcroft v Free Speech Coalition, 535 US 234, 245-46 (2002); New York v Ferber, 458 US 747, 764-65 (1982).
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II. RELIGION
“All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences.” -- Article I, section 2, Or Const
“No law shall in any case whatever control the free exercise, and enjoyment of
religious [sic] opinions, or interfere with the rights of conscience.” -- Article I, section 3, Or Const
“No religious test shall be required as a qualification for any office of trust or profit.” -- Article I, section 4, Or Const
“No money shall be drawn from the Treasury for the benefit of any religious [sic], or theological institution, nor shall any money be appropriated for the payment of any religious [sic] services in either house of the Legislative Assembly.” -- Article I,
section 5, Or Const
“No person shall be rendered incompetent as a witness, or juror in consequence of his opinions on matters of religion [sic]; nor be questioned in any Court of Justice
touching his religious [sic] belief to affect the weight of his testimony.” -- Article I, section 6, Or Const
“The mode of administering an oath, or affirmation shall be such as may be most consistent with, and binding upon the conscience of the person to whom such oath or affirmation may be administered.” -- Article I, section 7, Or Const
A. Oregon Constitution
“By 1834, no state in the Union [had] an established church, and the tradition of separation between church and state would seem an ingrained and vital part of our constitutional system.” Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV L REV 1409, 1437 (1990).
Each of Articles 1 through 7 of the Oregon Constitution are either similar or identical to corresponding articles of the Indiana Constitution of 1851. WC Palmer, The Sources of the Oregon Constitution, 5 OR L REV 200, 201 (1926). But the bill of rights that a constitutional delegate reported to Oregon’s constitutional convention in 1857 “differed most from the Indiana model in its treatment of organized religion and immigration rights.” David Alan Johnson, FOUNDING THE FAR WEST 178 (1992). All references to “God” and “Creator” were removed from Indiana’s text when brought for debate in the Oregon convention. Ibid.
The Indiana Constitution of 1851 – its current constitution -- is online at www.in.gov/history/2466.htm. The 1851 Constitution’s religion clauses appear to be adopted from Indiana’s earlier Constitution of 1816, and “it did not copy or paraphrase the 1791 language of the federal First Amendment.” City Chapel Evangelical Free, Inc. v City of South Bend, 744 NE2d 443,445-50 (Ind 2001) (“Even by the time of Indiana’s
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initial Constitution in 1816, religious liberty provision in other states were broadly construed.”).
An Oregon commentator finds a “secularizing impulse” in the framers’ religion clauses of the Oregon Constitution. Charlie Hinkle, Article I, Section 5: A Remnant of Prerevolutionary Constitutional Law, 85 OR L REV 541, 553 (2006). The convention’s history, including [one framer’s stated] desire for a “complete divorce of church and state,” “shows that a majority of the members of the constitutional convention favored a more explicit separation of church and state than could be found in any other state constitution of the time.” Id. at 559.
Note: Some framers were not secular. At the convention, the provision against using public money for religious services drew the fire and ire of some framers:
The provision is “a bill of wrongs!” “It is a disregard of the injunctions of the New Testament”. (Campbell). “[Y]ou could not find in any country claiming to be Christian a provision of this character * * * Why, sir, that is worse than infidelity. It is a disgrace to any country.” (Dryer). The provision “was intended as a slur * * * at religion itself.” (Watkins). “[T]he action of this convention has cast indirectly a slur upon [the peoples’] religious faith and practices, or upon their creed.” (Farrar).
In response, advocating for separation of church and state, others retorted:
“As to the talk about infidelity and atheism, I pay no attention to it. It is all moonshine, and has nothing to do with the question”. (Deady) “The late constitutions of the western states have, step by step, tended to a more distinct separation of church and state, until the great state of Indiana, whose new constitution has been most recently framed, embraced very nearly the principle contained in this section * * * Let us take the step farther, and declare a complete divorce of church and state.” (Grover) (Charles Henry Carey, HISTORY OF THE OREGON CONSTITUTION 296-303 (1926)).
“The religion clauses of Oregon’s Bill of Rights, Article I, sections 2, 3, 4, 5, 6 and 7, are more than a code. They are specifications of a larger vision of freedom for a diversity of religious beliefs and modes of worship and freedom from state-supported official faiths or modes of worship. The cumulation of guarantees, more numerous and more concrete than the opening clause of the First Amendment, reinforces the significance of the separate guarantees.” Cooper v Eugene School District 4J, 301 Or 358, 371 (1986).
"A law that is neutral toward religion or nonreligion as such, that is neutral among religions, and that is part of a general regulatory scheme having no purpose to control or interfere with rights of conscience or with religious opinions does not violate the guarantees of religious freedom in Article I, sections 2 and 3." Meltebeke v. Bureau of Labor & Indus., 322 Or 132 (1995).
The Oregon Supreme Court has assumed that Article I, section 3, of the Oregon Constitution extends protection to nontraditional religious practices, such as satanism, under Cooper v Eugene School District No. 4J, 301 Or 358, 371 (1986). State v Brumwell, 350 Or 93 (2011). The US District Court for the District of Oregon has assumed that the Wiccan religion also is protected. Luke v Williams, No. CV 09-CV-307- MO (D Or 2010).
State v Beagley, __ Or App __ (6/19/13) (Clackamas) (Schuman, Wollheim, Nakamoto) Defendants let their 16 year old son die, unnecessarily, from loss of kidney function. The parents and the child “shared” religious beliefs that forbade any medical treatment. A police officer
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testified that the parents also had watched their granddaughter die from a lack of medical care, just 3 months before their son died. Charged with homicide, they demurred, contending that the indictment violated their constitutional rights to religious freedom. A jury convicted defendants of criminally negligent homicide.
The Court of Appeals affirmed the convictions, based on State v Hays, 155 Or 41, rev den 328 Or 40 (1998). Hays permits a parent to medically treat a child with prayer if the illness is not life- threatening, but when a reasonable person should know that the child will die, the parent must provide medical care. Parents “have a legal obligation to provide needed life-sustaining medical care for their children” and “parents’ constitutional right freely to exercise their religion” does not encompass “a right unreasonably to fail to meet that obligation.”
The court also addressed a “difficult to understand” distinction created in Meltebeke v BOLI, 322 Or 132, 151-52 (1995). Meltebeke had interpreted the “free exercise guarantee” of the Oregon Constitution: “a person against whom a sanction is to be imposed for conduct that constitutes a religious practice must know that the conduct causes an effect forbidden by law.” The Court of Appeals here guessed at, but did not conclusively interpret, that distinction. The court in this case held that “regardless where the line between religious practice and religiously motivated conduct is drawn, there are some behaviors that fall clearly to one side or to the other.” Taking communion is a “religious practice.” In contrast, on the other side, allowing a child to die needlessly is conduct “that may be motivated by one’s religious beliefs.” In short: “Imposing a sanction for negligently withholding life-sustaining medical care does not interfere with protected religious expression.”
B. Free Exercise: Ministerial Exception in the First Amendment
When “a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.” Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 132 S Ct 694 (2012). This is the first case where the Court has recognized a “ministerial exception” grounded in the First Amendment, “that precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers.” The Court distinguished this case from Employment Division of Oregon v Smith, 494 US 872 (1990) (held: Oregon did not violate the Free Exercise Clause by denying state unemployment benefits to two Native Americans who had used peyote as sacrament when the prohibition is a valid and neutral law). A “church’s selection of its ministers is unlike an individual’s ingestion of peyote” because banning the use of drugs regulates “only outward physical acts.” In contrast, Hosanna-Tabor involves “interference with an internal church decision that affects the faith and mission of the church itself.”
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IV. SEARCH OR SEIZURE AND WARRANTS
"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause supported by oath, or
affirmation, and particularly describing the place to be searched, and the person or thing to be seized." -- Article I, section 9, Or Const
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." – Fourth Amendment, United States Const
A. Origins & Meaning
1. Origins
The wording of Article I, section 9, is similar to its counterpart in the Indiana Constitution of 1851. WC Palmer, The Sources of the Oregon Constitution, 5 Or L Rev 200, 201 (1926). (The Indiana Constitution of 1851 is here: www.in.gov/history/2466.htm).
There is no reported debate on Article I, section 9, during the Oregon Constitutional Convention. Claudia Burton & Andrew Grade, A History of the Oregon Constitution of 1857, 37 WILLAMETTE L REV 469, 515 (2001).
Oregon judge Matthew Deady was a primary force in the Oregon Constitutional Convention. David Alan Johnson, FOUNDING THE FAR WEST 144 (1992) (“six men stood out”). Deady wrote later that Article I, section 9, of Oregon's Constitution "is copied from the fourth amendment to the constitution of the United States, and was placed there on account of a well-known controversy concerning the legality of general warrants in England, shortly before the revolution, not so much to introduce new principles as to guard private rights already recognized by the common law. * * * The law * * * was put beyond controversy, as to the government of the Union, by this fourth amendment, and from there transferred to the constitution of the states." Sprigg v Stump, 8 F 207, 213 (1881) (Deady, J.). (But that may just be Deady’s backward-looking personal view as just one of the 60 convention delegates: “Deady promoted Southern proslavery views” and “remained committed, to the end of his life, to a complex strain of eighteenth- century ideas.” Johnson, FOUNDING THE FAR WEST at 152; David Schuman, The Creation of the Oregon Constitution, 74 OR L REV 611, 617 (1995) (noting that as a Constitutional Convention delegate candidate, Deady ran as “an avowed pro- slavery advocate”)).
“If Oregon’s provision was patterned after Indiana’s, however, it is clear that both were patterned after the Fourth Amendment, which was the common practice in mid-nineteenth-century constitutional drafting.” Jack Landau, The Search for the Meaning of Oregon’s Search and Seizure Clause, 87 Or L Rev 819, 837
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(2009) (noting several variations from the Fourth Amendment and that “the framers of article I, section 9 seem to have had in mind an independently enforceable provision” between the reasonableness and the warrant clauses).
“Beyond the fact that [Article I, section 9] was obviously based on the Fourth Amendment, there is a complete absence of direct historical evidence of what the framers intended or what the voters understood about the provision. It was adopted without discussion in the constitutional convention, and there is no record of public debate about it during ratification. * * * Any attempt to reconstruct what the framers of voters might have intended in adopting Article I, section 9, will yield only speculation.” State v Hemenway, 353 Or 129 (2013) (Landau, J, concurring), vacated as moot 353 Or 498 (2013) (“the majority is correct in rejecting the state’s contention that we should interpret the search and seizure clause of Article I, section 9, to reflect only the intentions or understandings of its framers in 1857.”).
2. Meaning
"Reflect, for a moment, on the fact that the Fourth Amendment actually contains two different commands. First, all government searches and seizures must be reasonable. Second, no warrants shall issue without probable cause. The modern Supreme Court has intentionally collapsed the two requirements, treating all unwarranted searches and seizures – with various exceptions, such as exigent circumstances – as per se unreasonable." Akhil Amar, THE BILL OF RIGHTS 68 (1998).
It is "at least debatable whether the framers [of Oregon's Constitution] would have regarded all warrantless searches to be presumptively unreasonable, even in criminal cases. Historians and legal scholars of the Fourth Amendment – after which Article I, section 9, was patterned – debate whether the meaning of the first clause, which requires that searches and seizures be reasonable, is dependent upon the second clause, which requires that warrants be issued only upon probable cause." Weber v Oakridge School District 76, 184 Or App 415, 429 n 3 (2002).
Nevertheless, in Oregon, the reasoning remains: “The constitutional text itself ties the phrase ‘probable cause’ to warrants. It seems never to become superfluous to repeat that the requirement of a judicial warrant for a search or seizure is the rule and that authority to act on an officer’s own assessment of probable cause without a warrant is justified only by one or another exception.” State v Lowry, 295 Or 338, 346 (1983).
B. Probable Cause
“’Probable cause’ has the same meaning throughout [state and federal] constitutional and statutory requirements.” State v Marsing, 244 Or App 556, 558 n 2 (2011).
The "probable cause" necessary to conduct a warrantless search and to obtain a warrant to search is the same standard. See ORS 131.007(11) (probable cause to arrest); ORS 133.555 (probable cause to issue a search warrant). “The probable cause analysis for a warrantless search is the same as for a warranted one.” State v Foster, 350 Or 161 (2011) (citing State v Brown, 301 Or 268, 274-76 (1986)).
Probable cause requires that an “officer must subjectively believe that a crime has been committed and thus that a person or thing is subject to seizure, and this
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belief must be objectively reasonable in the circumstances.” State v Owens, 302 Or 196, 204 (1986).
Probable cause “does not require certainty” or “that officers limit the place that they search to whatever location may offer the most promising of several possible results.” State v Foster, 350 Or 161 (2011). “Probable cause depends on whether an incriminating explanation remains a probable one, when all of the pertinent facts are considered.” Id.
C. Fourth Amendment
The rights in the Fourth Amendment apply to the states through the due process clause of the Fourteenth Amendment, see Aguilar v Texas, 378 US 108 (1964) (warrants); Mapp v Ohio, 367 US 643 (1961) (exclusionary rule); Wolf v Colorado, 338 US 25 (1949) (unreasonable searches and seizures). McDonald v City of Chicago, 130 S Ct 1316, 3034 n 12 (2010) (so stating).
“The text of the [Fourth] Amendment * * * expressly imposes two requirements. First, all searches and seizures must be reasonable. Second, a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with particularity. See Payton v New York, 445 US 573, 584 (1980).” Kentucky v King, 131 S Ct 1849 (2011).
“We have no doubt that such a physical intrusion [installing a GPS tracker on a car] would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” (Citing Entick v Carrington, 95 Eng. Rep. 807 (C.P. 1765). This would have been a common law trespass. “Whatever new methods of investigation may be devised, our task, at a minimum is to decide whether the action in question would have constituted a ‘search’ within the original meaning of the Fourth Amendment.” United States v Jones, 132 S Ct 945 (01/23/12)
D. Protected Interests
A privacy or possessory interest under Article I, section 9, is an interest against the state; it is not an interest against private parties. State v Tanner, 304 Or 312, 321 (1987).
1. Privacy Rights – Searches Defined
The state conducts a "search" for Article I, section 9, purposes, when it invades a protected privacy interest. State v Brown, 348 Or 293 (2010). A protected privacy interest "is not the privacy that one reasonably expects but the privacy to which one has a right." Id. (quoting State v Campbell, 306 Or 419, 426 (1988)). A search occurs if the state’s action “will significantly impair the peoples’ freedom from scrutiny” if the state engages in it “wholly” at its discretion. Campbell, 306 Or at 171; State v Holiday, 258 Or App 601 (2013).
"[S]ocietal expectations do not necessarily translate into a protected privacy interest under Article I, section 9. * * * Nonetheless * * * societal norms are enmeshed with the determination whether a privacy interest exists under Article I, section 9." State v Cromb, 220 Or App 315, 320-27 (2008), rev den 345 Or 381 (2009).
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To determine “what constitutes a protected privacy interest” (a “search”), the “focus tends to be on the place.” “[D]ivining whether a person has a cognizable privacy interest in a place requires an assessment of the social norms that bear on whether a member of the pubic * * *would have felt free to enter the place without permission.” Then to “discern the norms that would inform a person’s conduct, courts look to societal cues that are used by people to determine the appropriate behavior for them to follow in seeking to enter a place. Those cues most often take the form of barriers to public entry into a place,” with examples being window coverings, fences, no trespassing signs. State v Mast, 250 Or App 605 (2012) (person has a protected privacy interest in his office with a door in a larger office).
If government conduct did not invade a privacy interest, then no search occurred and Article I, section 9, is not implicated, and the inquiry ends. State v Meredith, 337 Or 299, 303 (2004).
State v Holiday, 258 Or App 601 (9/25/13) (Multnomah) (Schuman, Wollheim, Duncan) A police officer saw defendant, whom he knew was on probation, in a Portland park. Officer called defendant’s probation officer, who asked the police officer to detain defendant because he was in violation of his probation.
Later that day, the police officer saw defendant about 50 feet from a public one-person restroom. Defendant saw the police officer and quickly went into the restroom and locked its door. Officer pounded on the door, yelled for defendant to come out because he was under arrest, and radioed to another officer to bring the restroom key. Defendant did not come out. The other officer arrived with the key a few minutes later, knocked on the door, yelled at defendant, and opened the door with the key after a few seconds. Defendant emerged, carrying a plastic grocery bag. Officer handcuffed him, opened the grocery bag, found a smaller plastic bag with defendant’s name on it, and found inside that smaller bag a white cardboard box that contained a glass crack pipe with crack residue on it. Defendant moved to suppress all evidence on grounds that the warrantless search was a search that did not meet any exceptions. The state argued three exceptions: (1) probation search under ORS 137.545; (2) defendant’s evasive action in going to the bathroom created probable cause of flight; and (3) the crack pipe was in plain view after the bathroom door was opened. The trial court denied defendant’s motion without explanation.
The Court of Appeals reversed and remanded. The state appears to have presented only two arguments on appeal: (1) unlocking the bathroom door was not a “search” because defendant was not using it for a private purpose and (2) the crack pipe would inevitably have been discovered even if this was an impermissible warrantless search. The Court of Appeals recited that “every man’s house is his castle” and a restroom is his “bastion of privacy.” It is “clear, therefore, that defendant was protected from certain forms of warrantless police scrutiny while he was occupying the public restroom.” And the particular context must be considered: police used a key to unlock and open the door after several minutes of pounding and yelling at defendant that he was under arrest. The state argued that because defendant was not using the toilet for a “private purpose,” no search occurred. The court noted that it has held that people have protected privacy interests in bathrooms while doing various acts alone, citing State v Owczarzak, 94 Or App 500, 502 (1988), which involved sexual activity in and around doorless stalls of a multi-stall public restroom. In any event: defendant escaped into this single-
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person toilet precisely to achieve privacy: “to achieve freedom from the necessity to confront” the officer. Unlocking the door did interfere with a protected privacy interest.
Note: Owczarzak reasoned: “A restroom is a place that, by its very nature, excludes unlimited observation. A person in a public restroom anticipates that another person might enter and see what is going on. What a person does not anticipate is that his activity will be seen by concealed officers or recorded by concealed cameras. That police surveillance, which allows no ready means for the person to determine that he is being watched, significantly impairs the people's freedom from scrutiny.”
The Court of Appeals did not address the inevitable discovery doctrine because it was unpreserved. The “right for the wrong reason” does not apply either because the record “certainly” would have developed differently. In sum: “opening the door to the locked restroom” was “an unlawful search” and none of the state’s arguments can be sustained.
Note: Significantly, the Court of Appeals did not address the “probation search” exception or destruction of evidence as a basis for warrantless entry into a bathroom. It appears that the state did not advance either theory on appeal. Alternatively, this is a case about opening a closed opaque container (the bathroom) without a warrant.
2. Possessory Rights – Seizures Defined
(a). Seizure of Property
(i). Article I, section 9
"Property is seized for purposes of Article I, section 9, when there is a significant interference, even a temporary one, with a person's possessory or ownership interests in the property." State v Juarez-Godinez, 326 Or 1, 6 (1997); State v Whitlow, 241 Or App 59 (2011).
A person has a possessory right to the contents of his body. "The extraction of human bodily fluids generally is a search of the person and a seizure of the fluid itself." Weber v Oakdridge School District, 184 Or App 415, 426 (2002).
(ii). Fourth Amendment
Under the Fourth Amendment, a "seizure" of property occurs when there is some meaningful interference with an individual's possessory interests in that property. United States v Jacobsen, 466 US 109, 113 (1984).
(b). Seizure of Persons
"Stopping a vehicle and detaining its occupants is a 'seizure' of the person within the meaning of the Fourth Amendment to the Constitution of the United States, 'even though the purpose of the stop is limited and the resulting detention quite brief.' Delaware v Prouse 440 US 648, 653, 59 L Ed 2d 660, 667 (1979)." State v Tucker, 286 Or 485, 492 (1979).
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“A ‘seizure’ of a person occurs under Article I, section 9, of the Oregon Constitution: (a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” State v Ashbaugh, 349 Or 297, 316 (2010) (emphasis in original). The guiding principle is whether the officer has made a “show of authority” that restricts and individual’s “freedom of movement.” Id. at 317.
Under State v Hall, 339 Or 7, 16-17 (2005), State v Amaya, 336 Or 616, 627 (2004), and State v Holmes, 311 Or 400, 410 (1991), there are three general categories of "encounters" that may implicate Article I, section 9:
(1). Mere conversations, in a public place, between officer and citizen, that are free from coercion or interference with liberty, are not "seizures" and thus do not require any justification to occur. (Reasonable suspicion is not required).
(2). “Stops” also known as "temporary restraints" are defined in ORS 131.605(6). A stop is a temporary restraint of a person's liberty for investigatory purposes. “For Article I, section 9, purposes, a stop is a type of seizure. State v Ashbaugh, 349 Or 297, 308–09 (2010); State v Kennedy, 290 Or 493, 498 (1981); State v Warner, 284 Or 147, 161–62 (1978).” State v Morfin- Estrada, 251 Or App 158 (2012) (walking across street as a traffic infraction). Seizures under Article I, section 9, must be justified depending on where the stop occurs. Pedestrians can be “stopped” on the street as a traffic infraction, such as for crossing against a light or for nontraffic-code reasons. That difference appears to matter because if a pedestrian is stopped pursuant to a traffic code, the legal standards differ from a pedestrian stopped pursuant to another non-traffic reason.
(i). Pedestrians in nontraffic stops: “[A]lthough an officer needs no justification for engaging in mere conversation with a citizen, he or she must have a reasonable suspicion of criminal activity for a stop.” State v Ashbaugh, 349 Or 297, 309 (2010); State v Alexander, 238 Or App 597, 604 n 1(2010), rev denied, 349 Or 654 (2011).
During the course of a nontraffic stop that is supported by reasonable suspicion of criminal activity, an officer may inquire whether the stopped person is carrying weapons or contraband. State v Simcox, 231 Or App 399, 403 (2009) (stop in a city park); State v Hemenway, 232 Or App 407 (2009) (state must prove that deputies had "reasonable suspicion of criminal activities" to block defendant's parked truck with their cars). See also ORS 131.615(1) ("A peace officer who reasonably suspects that a person has committed or about to commit a crime may stop the person and, after informing the person that the peace officer is a peace officer, make a reasonable inquiry.").
(ii). Traffic Stops: A traffic stop is not an ordinary police- citizen encounter because, in contrast to a person on the street who can end the encounter at any time, a motorist
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stopped for an infraction is not free to end the encounter when he chooses. State v Rodgers/Kirkeby, 347 Or 610, 623 (2010). But even if a person is walking or biking – not driving – the person comes within the ambit of the traffic stop. A traffic stop (a stop of walkers, bicyclists, drivers) must be supported by probable cause. State v Morfin- Estrada, 251 Or App 158 (2012) (person walking across street stopped for traffic infraction).
(3). Arrests are defined in ORS 133.005(1). An arrest -- placing a person under actual or constructive restraint – requires probable cause to believe the person has committed a crime. State v Alexander, 238 Or App 597, 604 n 1 (2010) rev den 349 Or 654 (2011) (citing Holmes and ORS 133.005(1) (defining “arrest”)); cf. Papachristou v City of Jacksonville, 405 US 156, 169 (1972) (“We allow our police to make arrests only on ‘probable cause’” under the Fourth and Fourteenth Amendments); cf. Cook v Sheldon, 41 F3d 73, 78 (2d Cir 1994) (“It is now far too late in our constitutional history to deny that a person has a clearly established right not to be arrested without probable cause.”).
E. Place
The Oregon Supreme Court has mimicked United States Supreme Court cases in distinguishing searches and seizures based on place. “We note first that the Supreme Court distinguished early between the constitutional protections afforded a dwelling or other building and those afforded an automobile in transit on a public street.” State v Davis, 295 Or 227, 242 (1983).
1. Traffic Stops
Article I, section 9, protection to “effects” applies to vehicle stops based on its application to “persons.” State v Juarez-Godinez, 326 Or 1, 6 (1997); see also Whren v United States, 517 US 806, 809-10 (1996) (Fourth Amendment protection to “persons” extends to vehicle stops. “An automobile stop is thus subject to the constitutional imperative that it not be “unreasonable” under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.”)
(a). Vehicles
(i). The Initial Stop
A. Defined: A traffic stop is a temporary seizure that occurs when an officer restrains an individual's liberty or freedom of movement. State v Hendon, 222 Or App 97, 102 (2008).
B. Drivers: ORS 810.410(3) requires officers to have probable cause to believe that a driver has committed a traffic infraction. The Oregon Supreme Court has interpreted that statute: an "officer who stops and detains a person for a traffic infraction must have probable cause to do so, i.e., the officer must believe that the infraction occurred, and that belief must be objectively reasonable under the circumstances." State v
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Matthews, 320 Or 398, 403 (1994) (held: ORS 810.410(3)(b) requires that "a traffic stop must be based on probable cause").
C. Passengers: An officer may “stop” (temporarily seize) a passenger who is not the driver only on reasonable suspicion of criminal activity. State v Jones, 245 Or App 186 (2011); State v Ayles, 348 Or 622, 628 (2010). “Passengers in a stopped vehicle – whether lawfully or unlawfully stopped – are not seized merely by virtue of their status as passengers. Instead, a passenger is only seized when there has been the ‘imposition, either by physical force or through some “show of authority,” of some restraint on the individual’s liberty.’ Ashbaugh, 349 Or at 309.” State v Ross, 256 Or App 746 (2013). An “officer does not stop a person merely by requesting identification, absent other coercive circumstances. * * * [H]owever, if the person knows that the officer is performing a warrants check on that identification, the person generally has been stopped, at least if the officer also has questioned the person about possible criminal activity.” State v Dierks, 257 Or App 88 (2013) (a reasonable person would not feel free to leave knowing that s/he is the subject of an ongoing criminal investigation).
D. Parked cars: Where there is no traffic code violation, an officer may “stop” the person in a parked car only on reasonable suspicion of criminal activity. State v Jones, 245 Or App 186 (2011). An officer who encounters persons in a parked car in a parking lot, questions them about possible criminal activity in the area, asks them what they are doing, and immediately requests their ID, has stopped those persons: reasonable people would believe that running their names after asking what they were doing renders them not free to leave, especially a driver whose license status would be the most significant. State v Dierks, 257 Or App 88 (2013).
E. Reasonable Suspicion: The test for reasonable suspicion is based on the total circumstances at the time and place of the encounter, ORS 131.605(6), and the officer must testify to “specific and articulable facts” that give rise to a reasonable inference that the person is involved in criminal activity,” State v Ehly, 317 Or 66, 80 (1993); State v Holdorf, 250 Or App 509 (2012), rev allowed 353 Or 208 (2013). Every “reasonable suspicion” case must be decided on its own facts and “attempting to fact-match with existing cases can be a fool’s errand.” Holdorf. Yet courts continue to fact-match with existing cases to determine if detention was objectively reasonable.
The Court of Appeals has expanded Matthews from statute to constitution. But the Court of Appeals also has contradicted itself on whether Article I, section 9, requires only reasonable suspicion or instead probable cause. "Article I, section 9, requires that an officer who stops a person for a traffic infraction have probable cause to believe that the person has committed the infraction. State v Matthews, 320 Or 398, 403 (1994)." State v Rosa, 228 Or App 666, 671 (2009). But in contrast with Rosa, the court in State v Broughton, 221 Or App 580, 587 (2008), review dismissed, 348 Or 415 (2010) asserted a reasonable-suspicion standard rather than a probable-cause standard: "Traffic stops must be supported by reasonable suspicion that the person stopped has committed a traffic infraction."
The Oregon Supreme Court now asserts that it is waiting to weigh in on this issue: “The requirement that an officer have probable cause to
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believe that a driver committed a traffic violation is a statutory requirement. Whether that requirement also is found in Article I, section 9, is a question that this court has reserved. State v Matthews, 320 Or 398, 402 n 2 (1994). We need not decide that question in this case.” State v Watson, 353 Or 353 Or 768, 774 n 7 (2013).
F. Probable Cause: “When a defendant moves to suppress evidence obtained pursuant to a warrantless seizure, the state has the burden of demonstrating the lawfulness of the seizure. State v Sargent, 323 Or 455, 461 (1996). The state may meet its burden by proving that the officer who seized the defendant had probable cause to believe that the defendant had committed a traffic offense. State v Isley, 182 Or App 190 (2002). ‘Probable cause exists if, at the time of the stop, the officer subjectively believes that the infraction occurred’ and that belief is objectively reasonable. Id.” State v Ordner, 252 Or App 444 (2012). An “officer’s belief may be objectively reasonable even if the officer is mistaken as to the facts. Isley, 182 Or App at 190; State v Stookey, 255 Or App 489, 491 (2013).
State v Stookey, 255 Or App 489 (02/27/13) (Coos) (Duncan, Armstrong, Brewer pro tem) The trial court erroneously denied defendant’s motion to suppress by concluding that a recruit trooper had objectively reasonable probable cause to traffic- stop defendant based on a single horizontal crack in his front windshield that was two inches from the windshield base. The trooper stopped defendant believing that the windshield crack could be distracting and might be dangerous, and erroneously believing that the crack was in defendant’s line of sight. ORS 815.020 allows an officer to stop a vehicle if a vehicle is unsafe. Denying defendant’s motion to suppress all evidence resulting from the stop, the trial court allowed in evidence obtained as a result of the stop.
The Court of Appeals reversed. The issue is “whether the crack, as it appeared to the trooper, objectively gave rise to probable cause that defendant had committed a traffic violation.” To violate ORS 815.020, “the vehicle must pose more than a possible risk of danger. * * * that danger must be probable.” The trooper could not have “objectively believed that a single crack would expose defendant or another person to a danger of probable harm or loss by interfering with defendant’s vision.” (Emphasis by court). Thus the trooper lacked probable cause to stop defendant and the stop violated Article I, section 9, of the Oregon Constitution.
State v Pettersen, 256 Or App 385 (4/24/13) (Deschutes) (Sercombe, Ortega, Brewer) The trial court erroneously denied defendant’s motion to suppress evidence obtained from a traffic stop, because although the officer had probable cause to stop the vehicle for expired registration tags, that probable cause evaporated when the officer saw valid registration tags on the license plate when he walked from his car to the driver. The officer had been unable to see valid tags on the vehicle, so he called in the license plates to dispatch, which told him that the DMV records showed that the registration tags had expired a month earlier. Therefore, the officer traffic-stopped defendant. But the officer testified that he saw the valid tags as he walked up the vehicle, and he did not subjectively believe that defendant had committed an infraction. “Accordingly,” the Court of Appeals held, “probable cause dissipated at the time of that observation, and [the officer] was required to cease his investigation and terminate the stop.”
State v Magana/Ramirez-Rivera, __ Or App __ (Clackamas) (Nakamoto, Schuman, Wollheim) (6/19/13) The trial court erred in failing to suppress evidence derived from an unlawful nontraffic stop of Ramirez-Rivera. When officers stopped RamireZ-Rivera, “they only knew that he had waved at, but denied knowing” a bus
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passenger “who had agreed to be searched but who did not possess contraband of any kind.” Their observation of a Jesus Malverde image was insufficient to justify the stop, the Court of Appeals footnoted.
(ii). Detention During a Traffic Stop
A. Generally. A traffic stop is not an ordinary police-citizen encounter because a motorist stopped for an infraction is not free to end the encounter when he chooses. State v Rodgers/Kirkeby, 347 Or 610, 623 (2010).
“In the course of a valid traffic stop of a vehicle or a permissible frisk incident to a stop or an arrest, officers sometimes may come upon other suspicious items. But these may not be seized on suspicion alone; probable cause is required.” State v Lowry, 295 Or 338, 345 (1983).
B. Drivers. “During a traffic stop, a police officer may question the driver about criminal activity that is unrelated to the stop, even if the officer does not have any suspicion of such activity, without violating Article I, section 9.” State v Hampton, 247 Or App 147, 151-52 (2011); State v Hall, 238 Or App 75, 83 (2010) (there are no Article I, section 9, implications if an inquiry unrelated to a traffic stop occurs during a routine stop but does not delay it). Such questioning during an unavoidable lull (while a person looks for his ID or registration, or while police are running warrants checks) is permissible as long as it does not prolong the lull. State v Jones, 239 Or App 201, 208 (2010), rev denied, 350 Or 230 (2011). But questioning that either: (1) causes an extension of the stop or (2) detains a defendant beyond a completed traffic stop must be supported by reasonable suspicion that the defendant is engaged in criminal activity. State v Rodgers, 201 Or App 366, 371 (2008), aff’d, 347 Or 610 (2010).
C. Passengers: A passenger in a stopped car may be unlawfully seized during the course of a traffic stop regardless whether he has no protected privacy or possessory interest in the vehicle. State v Knapp, 253 Or App 151 (2012). A “passenger is only seized when there has been the ‘imposition, either by physical force or through some “show of authority,” of some restraint on the individual’s liberty.’ Ashbaugh, 349 Or at 309.” State v Ross, 256 Or App 746 (5/22/13).
“There are no implications under Article I, section 9, if the inquiry occurs during the stop but does not extend the stop.” State v Hampton, 247 Or App 147 (2011), review denied 352 Or 107 (2012).
Nothing in Rodgers/Kirkeby “supports the proposition that a passenger is seized when a police officer unlawfully extends the stop of a vehicle. That is because Rodgers/Kirkeby did not involve the constitutional rights of passengers at all; only the rights of the defendant drivers were at issue.” State v Ross, 256 Or App 746 (2013).
State v Espinoza-Barragan, 253 Or App 743 (12/05/12) (Marion) (Duncan, Armstrong, Haselton) The trial court erroneously denied defendant-driver’s motion to suppress evidence derived from an unlawful extension of a traffic stop. A sheriff initiated a traffic stop of a Durango with two passengers. Sheriff asked the defendant-driver for his license, registration, and insurance. Sheriff asked where defendant was going. Defendant said “Denny’s.” Sheriff asked where defendant
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came from. Defendant said “Tacoma.” Sheriff asked what defendant’s “final destination” was. Defendant said “Denny’s.” Sheriff continued to ask questions about the final destination. Finally defendant said he was going to San Jose to pick up his wife and son and needed food. Sheriff kept asking questions about the destination. Defendant said he would be in San Jose for 2 days and raised 2 fingers. Sheriff then obtained ID from the two passengers. Defendant said he did not have registration or insurance for the Durango because he had bought it a few days earlier; he showed the sheriff the bill of sale. Sheriff noticed that there was no luggage visible. Sheriff checked the status of all 3 persons in the Durango and learned that there were no warrants for any of them. But sheriff suspected drugs, so he called a second officer who arrived in 5 minutes. Sheriff then asked defendant to step out. He did. Sheriff kept quizzing defendant about his trip, then he asked if defendant had anything illegal on him. Defendant said no. Sheriff asked for consent to search both defendant and the Durango; defendant gave consent. There was a backpack behind the driver’s seat that contained meth and “large amounts of cash.” All three were arrested. The trial court denied defendant’s motion to suppress because “the relevant facts * * * did give rise to a reasonable suspicion of criminal activity.”
The Court of Appeals reversed. The issue is whether the sheriff’s extension of the traffic stop into a criminal investigation for drug trafficking was supported by reasonable suspicion that defendant was engaged in criminal activity, per ORS 131.605 and State v Belt, 325 Or 6, 11 (1997). “Reasonable suspicion” has a subjective and an objective component. Here, the sheriff identified these factors to support objective reasonable suspicion of criminal activity. Defendant, the sheriff said:
1. did not make eye contact with the sheriff when the sheriff passed him 2. slowed down and took an exit off the highway after the sheriff passed 3. twice said he was going to Denny’s before saying ultimately San Jose 4. held up two fingers when he said he was going to San Jose for 2 days 5. did not appear to have luggage 6. did not have registration or insurance and he paid cash for the Durango.
The sheriff said that the first four facts caused defendant to appear to be nervous and evasive. The Court of Appeals determined:
1. There is nothing inherently suspicious about being pulled over by police. 2. Evasiveness, even taking an exit ramp off the highway, is not inherently suspicious. 3. Not making eye contact with a police officer passing a person on the highway at 2:00 a.m. is not suspicious. 4. Evasiveness, even avoiding questions that a person is not required to answer, does not support objective reasonable suspicion. 5. The absence of visible luggage is not entitled to any weight because luggage can be not visible, such as in a trunk or under a seat. In this case, there was a backpack that the sheriff failed to notice until he searched the Durango. 6. Driving a vehicle that the driver recently purchased for cash, and has no registration or insurance, is not sufficient to justify extension of a traffic stop.
Weighing all the factors together, and comparing the factors with prior cases, the Court of Appeals concluded that the extension violated Article I, section 9, because the extension was not supported by reasonable suspicion of criminal activity.
State v Alvarado, 257 Or App 612 (7/24/13) (Umatilla) (Schuman, Wollheim, Nakamoto) The trial court erred in denying defendant’s motion to dismiss evidence obtained from a vehicle where the traffic stop was unlawfully extended without reasonable suspicion. Defendant was speeding in a van on 1-84 and had no front license plate. A trooper pulled directly behind defendant, who slowed to 20 mph
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below the speed limit. Trooper pulled him over, and defendant rolled down the passenger-side window. “A strong odor of cologne emanated from the vehicle.” Trooper saw two bottles of body spray, numerous air fresheners, a cell phone, a pager, an “open energy drink,” and “religious symbols” [the opinion does not identify those symbols]. Trooper asked defendant for his license and registration; defendant produced those. Defendant was from Washington. The van had an Oregon plate and was not registered to defendant. Trooper asked where defendant was going; defendant said he was going to Pendleton to pay his cousin’s taxes. Trooper went to his car and ran the “license and warrants checks” which showed no outstanding warrants, the license was valid, and the van was not reported stolen. Despite that, the Trooper had a feeling that something was amiss, so he called in for a drug detection dog and returned to the van. Defendant looked at his cell phone and had placed the pager in the glovebox. Trooper asked if narcotics were in the vehicle. Defendant became nervous; his cheek twitched. He said the van was not his.
Ten minutes later the dog arrived and it erroneously alerted for drugs. But no drugs were found in the van. Instead a pistol with a scratched-out ID number, plus two loaded magazines and another unloaded magazine were in a bag. Defendant was charged with obliterating the ID number of a firearm and unlawful possession of a firearm. He moved to suppress the evidence and contended that “the obliteration statute” was erroneously applied. The trial court denied that motion to suppress.
The Court of Appeals reversed on the motion to dismiss the gun and ammunition (it affirmed the obliteration conviction even though the court did not correctly apply it). The bottom line is this: “When, having all of the information he needed to cite defendant, [Trooper] chose instead to further question defendant about matters that had no bearing on the traffic stop, [Trooper] did not have reasonable suspicion of criminal activity. Everything that occurred after that point * * * should have been suppressed.” First, another recitation of the law: “Officers may ‘stop and briefly detain motorists for investigation of noncriminal traffic violations.’ State v Rodgers/Kirkeby, 347 Or 610, 624 (2010).” “When police have all of the information necessary to complete their investigation into the traffic infraction, but instead of citing the driver or ending the encounter, they choose instead to launch an investigation into a matter that is unrelated to the infraction, they have unlawfully extended the stop. Police must provide some other justification for continuing a traffic stop beyond that point. Id. at 624 n 4.”
The state argued that the Trooper erroneously but reasonably suspected that defendant had narcotics in his van based on these facts: (1) defendant slowed down when the Trooper drove behind him; (2) defendant was traveling on an Interstate in a van he didn’t own; (3) defendant said he was going to Pendleton to pay someone else’s taxes; (4) defendant had air fresheners and lots of pungent cologne on; (5) defendant had “religious symbols” in the van; (6) defendant had an open energy drink; (7) defendant had a pager and a cell phone; (8) defendant looked at his cell phone while the Trooper was present; (9) defendant moved the pager to the glove box; and (10) defendant was nervous when asked about drugs. The Court of Appeals “consider[ed] these facts individually” before considering them together. [Note: the legal standard for reasonable suspicion requires considering “the totality of the circumstances”].
The Court of Appeals addressed each of those facts “individually before determining whether taken together they support a reasonable suspicion that defendant had committed a crime.” One point is that some of those facts were observed after the Trooper had already found that defendant’s license was valid and he had no warrants and the van was not stolen. So even if facts observed after that point were suspicious, “which they are not,” they are not usable to determine reasonable suspicion. A second point is that the facts relied on must be connected to the crime suspected, and
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the state failed to connect drug trafficking to having an energy drink in the van, driving more slowly when a police officer is tailing the driver, and driving to the county seat to pay taxes. A third point is that the Trooper testified that drug traffickers have “religious symbols” to “falsely create the impression that they are good people.” That explanation “simply holds no water,” the court wrote. The fourth point is that only these facts are considered in the reasonable-suspicion assessment: (1) defendant didn’t own the van he drove; (2) defendant had a cell and a pager; and (3) the van contained cologne and air fresheners. The court agreed with the state that those facts may be consistent with narcotics trafficking. But that consistency is not enough to support reasonable suspicion, particularly where this record does not identify details about how or why this Trooper knows that using scents and carrying a pager and cell phone is consistent with narcotics trafficking. Those facts are afforded “some minimal amount of weight under the totality of the circumstances” except that here the Trooper’s bare assertion that those facts are relevant based on his “training and experience” is inadequate to conclude that the Trooper had reasonable suspicion to detail defendant until the K9 arrived:
“As soon as police were able to issues defendant a citation, their authority to detain defendant evaporated. The extension of the traffic stop, therefore, violated defendant’s rights under Article I, section 9.”
State v Watson, 353 Or 768 (7/05/13) (Douglas) (Walters) An officer lawfully stopped defendant for a traffic infraction. Officer decided to issue a warning rather than a citation, but he also asked defendant for his license, registration, and insurance. Officer then called dispatch for records and warrants checks as was his routine practice. He called in those checks and asked defendant to step out of the car, and defendant did so, leaving his car door ajar. Officer asked for consent to search and defendant began to “yell” at the officer.
Another officer arrived, told the first officer that he could smell a strong odor of marijuana through the open window, and contacted a third officer to bring her drug- detection dog. That second officer’s “detection of the odor of marijuana coming from the defendant’s car * * * launched the chain of events that resulted in defendant’s arrest.” Officers asked defendant if he had marijuana in his car; he said 1/8 oz. The K9 team arrived, and the dog “hit on the vehicle” showing controlled substances. Officer believed he had probable cause to search the car, so he reached inside the open passenger side window and retrieved the backpack on the seat. Cocaine, marijuana, and other drug items were in the backpack. Officer arrested defendant. Then dispatch called back and said defendant’s license was valid and he had no outstanding arrest warrants. The entire stop, from start to the time officer received the return call from dispatch, was 10 minutes. All actions took place during the 10- minute period that the records and warrants checks were pending.
Defendant moved to suppress all property seized during the search on grounds that the officers expanded the scope of the initially lawful stop. The trial court denied the motion without reasoning. The Court of Appeals affirmed.
The Oregon Supreme Court affirmed in a decision that blends traffic-stop cases with nontraffic-stop cases (such as an investigatory patdown of a victim in her home).
The Court began its Article I, section 9, analysis not with traffic-stop cases, but instead with State v Fair, 353 Or 588 (2013). Fair involved the detention of a battered domestic-violence victim whose partial 911 call was traced to her home, and she was ordered out of her home and searched. The Court began its analysis of this traffic case by citing Fair: “Although both arrests and stops are seizures for constitutional purposes, an officer may stop an individual based on reasonable
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suspicion of criminal activity – a lower standard than the probable cause that is required for an arrest. Fair, 353 Or at __).
The Court then switched from the battered woman on her porch in Fair, back to “noncriminal traffic violations” -- the case here – to first state that this stop was lawful at its inception because the officer “had probable cause to believe that defendant had committed a noncriminal traffic violation.” The Court then cited Terry v Ohio (a Fourth Amendment nontraffic stop case), and stated: “This court has not often considered the constitutional limits on police activity during lawful traffic stops due, in part, to the role that Oregon statutory law has played in its analysis.” The Court then recited how it “borrowed the reasoning from federal Fourth Amendment jurisprudence and adopted it for the purposes of Article I, section 9,” again citing Fair (a nontraffic stop case).
Next the Court moved to state statutes on “traffic stops.” Then it shifted to Article I, section 9, State v Rodgers/Kirkeby, 347 Or 610 (2010), which held that Article I, section 9, “permits the police to stop and briefly detain motorists for investigation of noncriminal traffic violations.” Next the Court changed course back toward Fair (the domestic-abuse survivor who called 911 and was seized on her porch as a witness) as precedent for “police authority to temporarily detain or stop a person in a different noncriminal context,” specifically: in Fair “the court held that the stop and on-the- scene detention of a likely material witness will be constitutional” under certain circumstances, even if (or because) that witness is a domestic-violence victim who called 911 from her own home. Then the Court brought in State v Owens, 302 Or 196 (1986), a “search incident to arrest” case, and two “officer safety” search cases, State v Bates, 304 Or 519 (1987) and State v Rudder, 347 Or 14 (2009). Mashing those state and federal cases and statutes together, the Court wrote:
“Thus, both Oregon’s statutes and this court’s Article I, section 9, case law require that law enforcement officers have a justification for temporarily seizing or stopping a person to conduct an investigation, and that the officers’ activities be reasonably related to that investigation and reasonably necessary to effectuate it. If the officer’s activities exceed those limits, then there must be an independent constitutional justification for those activities.”
The Court then concluded:
(1) “An officer’s determination of a person’s identity generally is reasonably related to the officer’s investigation of a traffic infraction.”
(2) “An officer who stops a driver also may release the driver, and a reasonable investigation may therefore include a determination of whether the driver has valid driving privileges, as required by ORS 807.010.”
(3) Because here the officer conducted the records check to verify driving privileges, the officers’ detention of defendant did not violate Article I, seciton9, unless the detention was unreasonably lengthy. Here, the officer testified that it usually takes 4 to 10 minutes to run the records and warrants checks. This one took 10 minutes. Thus, “we have concluded that [the officer] was entitled to verify defendant’s driving privileges, and defendant does not contend that 10 minutes was an unreasonably long period of time given the particular circumstances.”
(4) But the “warrants check necessitates a different analysis.” The Court did not engage in an analysis, thought. The Court returned to Fair (the domestic-violence victim stopped on her porch): “In Fair, this court upheld a warrants check of a material witness, because the officers were unable to
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confirm her identity by means of a license check and because knowing whether she had a prior history of domestic violence would advance the officers’ investigation of the crime at issue. Fair, 353 Or at __).” But in this case, the officer “did not testify that the warrants check was similarly related to the investigation of the traffic infraction for which he stopped defendant. [He] asked dispatch to conduct a warrants check because that was his routine practice. Whether a warrants check is reasonably related to the investigation or otherwise constitutionally justified, for instance, to protect officer safety, presents an important question, but one that we need not decide here.” Here, “the warrants check came back clean” and the officer “requested the records and warrants checks simultaneously and received the results of those checks from dispatch simultaneously.” “There is no indication that the warrants check produced incriminating evidence or extended the duration of the stop beyond the time that was reasonably necessary to conduct the records check; thus, even if the warrants check was not reasonably related to the investigation, it was not a basis for suppression of the incriminating evidence”.
(5) The officer’s questions to defendant about defendant’s involvement with drugs did not lead to the discovery of the evidence that defendant seeks to suppress, so the Court did “not address whether an officer’s inquiries made during the pendency of a valid seizure implicate Article I, section 9.”
(6) In a footnote, the Court decided to “accept” the trial court’s implicit finding that “the smell, admission, and drug-dog detection were sufficient to create the requisite probable cause of criminal activity. See State v Foster, 350 Or 161, 170 (2011).”
(7) The Court wrote in conclusion: An “officer may develop reasonable suspicion or probable cause during the course of a traffic stop that may justify activities that would not have been permissible based on the original purpose of the stop. That is exactly what occurred here.” The officer’s “activities either were reasonably related to the investigation of the traffic infraction, did not lead to the discovery of the evidence that defendant sought to suppress, or were justified by the reasonable suspicion of criminal activity and probable cause that [officer] developed during the course of the stop.”
Passengers
State v Wiener, 254 Or App 582 (01/16/13) (Washington) (Duncan, Armstrong, Haselton) The trial court erroneously suppressed evidence used against defendant- passenger obtained during a traffic stop. Officer traffic-stopped a vehicle for an illegal turn. The driver had no license but gave officer her passport. Officer handed the passport and the driver’s California ID to another officer, who called the data in to dispatch. Meanwhile, during an unavoidable lull in a traffic stop, officer asked the driver if she had any drugs, weapons, or illegal documents in the vehicle. She said no, and asked why. Officer told her that she had just turned out of a meth house and he asked if he could search her vehicle. The driver gave police officers consent to search the vehicle, even though the officer requested consent without reasonable suspicion. The officer asked defendant to step out of the passenger seat to search the vehicle, and when defendant opened the passenger door, the officer saw a bag of meth in the door. Defendant also had a pocket knife and a bag of marijuana on him. Officers did not receive the records check back from dispatch until after driver and defendant were out of the truck. Officer arrested defendant. The trial court suppressed all evidence, stating that he thought Rodgers/Kirkeby prohibits officers from inquiring about unrelated matters during traffic stops, even during unavoidable lulls, unless the
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officer has reasonable suspicion to do so. The trial court recommended that the state appeal from his order, because the bench and bar could benefit from clarity.
The Court of Appeals reversed, quoting State v Hall, 238 Or App 75, 82 (2010), rev den, 349 Or 664 (2011), that “Rodgers/Kirkeby provides no authority for the proposition that police inquiries during and unavoidable lull in a traffic stop must be justified by independent reasonable suspicion.” Calling this the “unavoidable lull rule,” the Court of Appeals further quoted Hall, stating that it had previously “held that there are no Article I, section 9, implications if an inquiry unrelated to a traffic stop occurs during a routine stop but does not delay it.” Thus: “Under the unavoidable lull rule, [the] officer was free to request the driver’s consent while waiting for the results of the records check.” Separately, the court also repeated that it has “held that questions about whether a defendant is engaged in criminal activity do not constitute criminal stops.” Further, it has “held that a police officer’s statement to a defendant that he is following up on a report of criminal activity does not constitute a criminal stop.” The Court of Appeals recognized that it has “drawn a line, perhaps a fine one, between an officer’s statements or actions that would convey, to a reasonable person, that the officer suspects a defendant might be engaged in criminal activity and an officer’s statements or actions that would convey, to a reasonable person, that the officer believes the defendant is engaged in criminal activity.” (Emphasis by court). Here, the officer “used traffic stops as fishing expeditions, which raises separate concerns,” that the court declined to address.
State v Maciel, 254 Or App 530 (01/16/13) (Jackson) (Armstrong, Haselton, Duncan) The trial court erroneously denied defendant’s motion to suppress evidence seized during an unlawful extension of a traffic stop because the officers had no reasonable suspicion that defendant was drug trafficking. Defendant was a passenger in a car driving 60 in a 55 zone at 4:00 a.m. near California. Officers followed the car with their overhead lights on, on grounds that the driver was speeding. The car did not pull over but slowed to 20 mph, straddling the fog line, and the driver slapped someone in the passenger seat. Half a mile later they pulled over, and defendant seemed furious. The registration and insurance did not match defendant’s license. Both said they did not own the vehicle. There was no visible luggage but food wrappers, a kid’s car seat, and a “religious medallion” was in the rearview mirror. Officer thought the vehicle may be stolen. Officer requested a warrant check, then engaged in a conversation with the two in the car who gave strange answers and inconsistent stories. They refused to sign a consent to search paper.
Then the officer received the warrant check back – both defendant and the driver came back clear. But the officer did not write a traffic ticket. Instead he detained them by calling another trooper to bring his drug-dog Cookie, who alerted to the presence of what turned out to be five pounds of meth hidden in a panel. Defendant moved to suppress. The trial court denied the motion.
The Court of Appeals reversed and remanded. “A stop of a person by a police officer is supported by reasonable suspicion when the officer subjectively believes that the person has committed or is about to commit a crime and that belief is objectively reasonable in light of the totality of the circumstances existing at the time of the stop.” State v Belt, 325 Or 6, 11 (1997); State v Espinoza-Barragan, 253 Or App 743, 747 (2012). Here the court concluded: “the stop was supported by reasonable suspicion [that the car was stolen] at its onset but [the officer] lacked reasonable suspicion to extend it to investigate drug trafficking.” The officer’s suspicion that the car may have been stolen was reasonable, so he properly questioned defendant about that potential crime but the problem is that the officer stopped investigating for that crime and instead detained defendant for 35 minutes while waiting for Cookie the drug dog. Officer testified that he had, during that time, stopped investigating for the crime of car theft and instead was investigating for drug trafficking. The problem is
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that there is no objectively reasonable basis for the officer to investigate for drug trafficking. The religious medallion and no visible luggage are nothing and have “serious constitutional concerns” (the court did not identify what those were but cited its precedent on a Jesus Malverde medallion; there is no evidence in this opinion that the medallion was Jesus Malverde). In sum, the detention while awaiting Cookie unlawfully extended the stop and the drug evidence discovered from Cookie must be suppressed.
State v Meza-Garcia, 256 or App 798 (5/30/13) (Douglas) (Sercombe, Ortega, Edmonds SJ) The trial court did not err by denying defendant’s motion to suppress evidence derived from an unlawful stop that was not supported by reasonable suspicion of drug trafficking, because defendant’s consent to the search was “sufficiently attenuated” from the unlawful police conduct. This case is discussed under Remedies, post, at page 94.
State v Ross, 256 Or App 746 (5/22/13) (Marion) (Egan, Armstrong, Nakamoto) The trial court properly denied a defendant-passenger’s motion to suppress. Defendant argued that he -- the passenger -- had been seized “at the moment the traffic stop was improperly extended by [an officer’s] request for the driver’s consent to search the pickup truck” that had been lawfully stopped. The Court of Appeals disagreed.
“A passenger in a lawfully stopped vehicle is not automatically seized within the meaning of Article I, section 9, but a ‘further exercise of coercive authority over the passengers by officers may, in certain circumstances, constitute a seizure.’” (Quoting State v Thompkin, 341 Or 368, 377 (2006)). Nothing in Rodgers/Kirkeby “supports the proposition that a passenger is seized when a police officer unlawfully extends the stop of a vehicle. That is because Rodgers/Kirkeby did not involve the constitutional rights of passengers at all; only the rights of the defendant drivers were at issue.” “Passengers in a stopped vehicle – whether lawfully or unlawfully stopped – are not seized merely by virtue of their status as passengers. Instead, a passenger is only seized when there has been the ‘imposition, either by physical force or through some “show of authority,” of some restraint on the individual’s liberty.’ Ashbaugh, 349 Or at 309.”
State v Kingsmith, 256 Or App 762 (5/30/13) (Union) (Haselton, Ortega, Sercombe) The trial court erred in denying defendant-passenger’s motion to suppress evidence because even if the officers had reasonable suspicion that some occupants were involved in criminal activity, they did not have reasonable suspicion that defendant, “as an individual,” was involved in criminal activity. (Emphasis by court).
Troopers observed a car stop in a dark area on a dead-end road off I-84. A person exited the driver’s side and a person then entered the driver’s side 30 seconds later. A second vehicle was observed nearby in this very remote area. Troopers followed the two cars, “ran the plates,” with one coming back “clean.” The other had window tint so dark that the number of occupants could not be determined (a traffic infraction) and lacked a license-plate light (also a traffic infraction). Troopers stopped that vehicle. The driver seemed “overly friendly” and a “faint odor of marijuana” emanated from the car. The driver did not have a vehicle registration card, so the trooper went to process a traffic citation for that infraction. The trooper did not speak to the other 2 occupants, including defendant who was in the back seat. The other trooper talked to the driver, who had sores on his face consistent with meth use, his hands were shaking, and he had a laser detector in the car. The front-seat passenger kept moving her feet on and off a metal case. The other trooper was still processing the citation while this trooper developed suspicion that both front-seat occupants were involved with drugs. The trooper called in a canine handler who was
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10 miles away. The canine handler, after hearing what the trooper had observed, told the trooper to ask for consent to search the car. The driver denied that request.
It took the trooper 10 minutes to complete the traffic citation and 17 extra minutes for the canine handler to arrive with his canine. Troopers told all occupants to exit for officer safety reasons. Troopers had no suspicion that defendant had been doing anything. The canine alerted at the front door. Troopers searched the car and found defendant’s purse in the back seat. Troopers opened an opaque container in the purse that contained meth. She had a meth pipe in the purse. She had two more meth pipes on her person. The trial court granted, in part, her motion to suppress. It suppressed the meth pipes found on her person, but denied suppression of the vehicle and purse searches.
The Court of Appeals reversed, quoting State v Miglavs, 337 Or 1, 12 (2004): “A police officer’s suspicion must be particularized to the individual based on the individual’s own conduct.” This case pivots on the state’s concession, and specific request that the court not reexamine that fact found by the trial court, that “defendant was seized when the vehicle in which she was a passenger was stopped.” The Court of Appeals expressly noted that concession as “essential” to the analysis in the case. Thus when the stop was extended for the canine, the officer had made no observations of defendant, until she got out of the car for the canine search. The officers lacked “objectively reasonable suspicion that defendant was involved in criminal conduct sufficient to justify continued detention of defendant beyond the point of investigating the traffic infractions and issuing a traffic citation.”
The “faint odor” or “general odor of marijuana in a vehicle alone does not give rise to a reasonable suspicion that a passenger of that vehicle has committed a crime.” (Citing State v Morton, 151 Or App 734, 738 (1997), rev den 327 Or 521 (1998)). And “mere proximity to suspected criminal activity, or association with a suspected (or known) criminal, is insufficient to support reasonable suspicion.” (Citing State v Holdorf, 250 Or App 509 (2012), rev allowed 353 Or 208 (2013)).
State v Faubion, 258 Or App 184 (8/14/13) (Deschutes) (De Muniz SJ, Ortega, Haselton) (Note: it is unclear if this opinion is based on Article I, section 9, or statute). Defendant was a backseat passenger in a car parked at 9:50 pm in a remote “day-use only” public park where drugs were often used. Officer approached the vehicle and the vehicle drove away. Officer pulled the vehicle over for an obscured registration sticker (an infraction). The driver said she was 18 but did not have her driver’s license. Four people were in the car, all appearing 18-25 years old. The officer smelled alcohol. A passenger appeared to be drugged by a stimulant. Defendant and the drugged passenger began moving something between them. Officer did not write the driver a citation but he believed he had reasonable suspicion to investigate the violation of minor in possession of alcohol, ORS 471.430, and the crime of furnishing alcohol to a minor, ORS 471.410. He asked the four for names and dates of birth. The driver was 18, and the three passengers were 22 to 25 years old. Officer smelled alcohol on defendant’s breath.
Officer ran defendant’s name for records and it showed that he was on felony probation for drug possession with a no-alcohol clause. He requested a K9 team. He called defendant’s probation officer, who told the officer to release defendant and have him report to probation the next morning. The officer asked defendant to step out and smelled alcohol on him. The K9 team arrived and the dog alerted at the vehicle, which upon search contained no drugs. Defendant consented to a search of his person but would not move his legs apart sufficiently. Officer believed there was a weapon in there. Upon the officer’s command, defendant spread his legs and a scale fell out. Defendant said there were baggies in his shoe, but they were not his, then later said they were his, and the officer found a meth pipe in his sock and bags of
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meth in his shoes and socks. He moved to suppress the meth because the officer did not have reasonable suspicion that defendant engaged in criminal activity. The trial court denied the motion.
The Court of Appeals affirmed under the constitution and/or statute. ORS 810.410, the court noted, allows police officers to stop vehicles for traffic violations. Regarding whether a “seizure” occurred, the court then used big box quotes from State v Rodgers/Kirkeby, 347 Or 610 (2010), State v Amaya, 336 Or 616 (2004), and State v Ashbaugh, 349 Or 297 (2010). After spending pages discussing “seizure” cases, the court wrote: “we need not resolve that issue,” and instead the court assumed that defendant was seized.
The issue then is whether the officer had reasonable suspicion to investigate a crime and a violation of alcohol to minors. The court began by citing statues, ORS 131.605(6) and 131.615(1), which set out the “objectively reasonable belief under the totality of the circumstances” standard. (Note: Those statutes state a crime, not a violation.) The officer had reasonable suspicion: (1) the vehicle was parked after “day” in a drug-use park; (2) the officer smelled alcohol from someone in the car; (3) a passenger appeared to be drugged by a stimulant; an d(4) the driver was 18; and (5) all passengers appeared to be 18 to 25. Those facts in total (not just any one of them) established “reasonable suspicion to investigate the crime of furnishing alcohol to a minor and the violation of a minor in possession of alcohol” when the officer asked defendant and the others for their ID. (Emphasis added).
As for the ongoing detention of defendant, once the warrants check revealed that he was on felony probation with a no-alcohol clause and the officer smelled alcohol on him, the officer had probable cause to detain him for violating his probation under ORS 137.545(2). He then voluntarily consented to the search of his person.
(b). Bicycles
Traffic statutes, and the Article I, section 9 analysis, apply to bicyclists on public ways; a bicycle stop may be a "traffic stop" if it occurs on a public way. ORS 814.400; State v Jones, 239 Or App 201, 203 n 3 (2010).
An “officer stopping a motor vehicle may have more to check” that an officer stopping a bicycle, because “a check in a motor vehicle stop involves a check of a vehicle's registration and insurance coverage. However, that does not change the nature of the inquiry under ORS 810.410 and Article I, section 9, concerning whether “the investigation reasonably [is] related to that traffic infraction, the identification of persons, and the issuance of a citation.” State v Leino, 248 Or App 121, 128 (2012) (citations omitted).
State v Huffman, 258 Or App 195 (8/14/13) (Lane) (De Muniz, Ortega, Sercombe) Officer stopped defendant, who had been on his bike at 4 in the morning in driveway of a closed area where city vehicles are stored. Defendant’s voice was shaking and he seemed “extraordinarily nervous.” Officer asked if defendant was armed, he said no, and officer asked if he could pat defendant down. Defendant let him do so. Officer asked if he had anything illegal in his backpack. Defendant said no. Officer asked if he could check it. Defendant handed him the backpack. Officer found a meth pipe and asked if anything else was in there. Defendant said a “20 sack of dope” which is $20 of meth. Officer asked if he could retrieve it and defendant said he could. Defendant moved to suppress because nothing except the officer’s intuition served as a basis for suspicion. The trial court denied the motion.
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The Court of Appeals reversed: Reasonable suspicion must be evaluated based on the information the officer had when he made the stop, per State v Juarez-Godinez, 326 Or 1, 23 (1997). Here, the officer stopped defendant because he was riding his bike in a driveway that led to a facility where city-owned vehicles were stored. Officer’s suspicion, that defendant was engaged in criminal activity because the facility was locked up at 4:00 a.m., is not objectively reasonable. Officer did not see defendant carrying anything suspicious or doing anything except being in an area closed to the public at 4:00 a.m. The stop was unlawful.
The evidence must be suppressed under State v Hall, 339 Or 7, 25 (2005). Although State v Hemenway, 353 Or 129 (2013) modified the Hall analysis, Hemenway was vacated in 353 Or 498 (2013), so the Hall analysis applies to determine if illegally obtained evidence is suppressed. And here the state failed to make any argument under Hall. The evidence was derived directly from, or was the product of, the illegal seizure.
(c). Pedestrians
A person walking/standing may be stopped for a traffic-code violation, which requires probable cause to believe that the pedestrian committed the traffic infraction. See, e.g., State v Dennis, 250 Or App 732 (2012) (jaywalking is a traffic code violation). This is different than an officer detaining a person in a public place, outside of the traffic code, as discussed in the next section.
2. Non-Private Places and Non-Traffic
No “stop” occurs if officers initiate “mere conversation” with a person on foot or in a parked car. State v Kinkade, 247 Or App 595 (2012) (on foot); State v Soto, 252 Or App 50, rev den 353 Or 127 (2013) (on foot); State v Dierks, 257 Or App 88 (2013) (parked car).
Separate from traffic codes, Oregon statutes (ORS 131.605 through 131.615) address the “stopping of persons.”
Statute. ORS 131.615(1) gives police officers authority to stop a person if the officer reasonably believes the person has, or is about to, commit a crime. Under ORS 131.605(5), “reasonable suspicion” exists when an officer holds a belief “that is reasonable under the totality of the circumstances existing at the time and place” that s/he acts. “Thus, the reasonable suspicion involves both a subjective and objective component.” State v Wiseman, 245 Or App 136 (2011) (citing State v Belt, 325 Or 6, 11 (1997) (“subjective belief must be objectively reasonable under the totality of the circumstances”)). These stops require reasonable suspicion that the person was engaged in criminal activity. See, e.g., State v Morfin-Estrada, 251 Or App 158 (2012) (“A stop must be supported by reasonable suspicion.”); State v Musser, 253 Or App 178 (2012), rev allowed 353 Or 533 (2013 (“To be reasonable, [the stop] must be supported by reasonable suspicion of criminal activity or an imminent threat of serious physical injury.”)
Constitution. That statutory standard represents a codification of both state and federal constitutional standards. State v Valdez, 277 Or 621, 625-26 (1977). An "officer's stop of a person must be justified by reasonable suspicion of criminal activity. The standard has objective and objective components. An officer must subjectively believe that the person stopped is involved in criminal activity * * *. Reasonable suspicion is established when an officer forms an objectively reasonable belief under the totality of the circumstances that a person
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may have committed or may be about to commit a crime* * * . An officer must identify specific and articulable facts that produce a reasonable suspicion, based on the officer's experience, that criminal activity is afoot." State v Mitchele, 240 Or App 86 (2010); State v Wiseman, 245 Or App 136 (2011).
“Not a Stop” converting into a “Stop.” Would a person, who has complied with a police officer’s request to give his name, think that the officer is running a warrants check on him? Consider State v Soto, 252 Or App 50, rev den 353 Or 127 (2013) (“mere conversation”) with State v Dierks, 257 Or App 88 (2013) (“a stop”). The differences are that (1) Soto was walking whereas Dierks was parked and (2) the officer did not indicate that he would run a warrants check on Soto’s name (uniformed officer chasing down a man who is deliberately walking away from him on a street, and asking for his name, is “something a reasonable person engaged in a conversation with a stranger would expect the stranger to ask”) whereas the officer in Dierks did indicate that he would run a warrants check on Dierks’ name because he returned to his patrol car with Dierks’ companion’s ID and Dierks’ oral recitation of her name.
(a). Public Parks
In State v Ashbaugh, 349 Or 297 (2010), two officers on bikes approached a couple in a park because the couple looked middle-aged and therefore out of place in the park. After the five-minute process of arresting the husband (on an outstanding restraining order against his wife), while the wife had been free to leave, the officers then obtained the wife’s consent to search her purse, containing a drug pipe. The Oregon Supreme Court concluded that the wife-defendant had been seized lawfully, because a reasonable person in her position would not have believed that her liberty or freedom had been intentionally and significantly restricted.
(b). Public Restrooms
State v Holiday, 258 Or App 601 (9/25/13) (Multnomah) (Schuman, Wollheim, Duncan) An officer on horseback spotted defendant briefly in a public park. Officer knew defendant was on probation. Officer called the probation officer, who told the officer that defendant was in violation of his probation, and that the officer should detain defendant if he saw him again. Officer saw him again, trotted his horse over to defendant, who quickly moved 50 feet away to a one-stall public restroom and locked the door behind him. Officer pounded on the door, yelling at defendant to come out, and called another officer for the key to the restroom. Defendant did not respond or come out. A few minutes later, another officer arrived, knocked and yelled at defendant, then unlocked the door after a few seconds. Defendant came out with a plastic sack. Officer handcuffed him and opened the sack which contained a box with a crack pipe inside. He moved to suppress all evidence derived from opening the bathroom door. The state argued that ORS 137.545 (probation violation searches) allowed the officer to unlock the door, and also that the officer had “probable cause” that defendant was fleeing, and the crack pipe was in plain view. The trial court denied the motion.
The Court of Appeals reversed. Unlocking and opening the door to the public restroom is a search under Article I, section 9. A “restroom is a place where a person has a protected privacy interest” regardless of what he is using it for. A search occurs when the government invades a
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protected privacy interest, see State v Meredith, 337 Or 299 (2004). The “analytical focus is on the government’s conduct rather than on a defendant’s subjective expectations.” “The state did not establish that, when the police unlocked and opened the door to the public restroom in which defendant was located, they did not interfere with a protected privacy interest. The police action, under the circumstances of this case, was a search.”
And this warrantless search does not fall into any warrant exception that the state preserved. The state argued “inevitable discovery” for the first time on appeal, but the court did not address that because the record at the trial court would have developed differently had that issue been raised.
(c). Streets, Alleys, Parking Lots
State v Canfield, 253 Or App 574 (11/21/12) (Washington) (Schuman, Wollheim, Nakamoto) An officer saw defendant walk across a street, then get into a parked car, which moved “a short distance,” then the driver and defendant got out and walked to a fast-food restaurant. An officer approached them, asked to speak with them, told them he saw defendant cross the street and that it was strange to get into a parked car that moved then reparked. Officer asked both for identification, and wrote their information on his hand, then returned the IDs. Officer asked if defendant if he had drugs or weapons, defendant said he had a pipe, officer asked if he could search both of them, and they consented. Officer put them in the “patdown position” with fingers laced behind his back. Officer told defendant he was not under arrest, and that defendant could leave. Officer found marijuana on defendant.
In its earlier decision of this case, 251 Or App 442 (2012), the Court of Appeals held that “when the officer took defendant’s identification and wrote down his information and then asked defendant if he was carrying any weapons or drugs, those actions constituted a stop that was not based on reasonable suspicion. Therefore it was a violation of defendant’s right to be free from unreasonable seizure under Article I, section 9, of the Oregon Constitution.
In this reconsideration, the Court of Appeals affirmed that part of its decision, but this time concluded that the consent was unlawful. This defendant consented to a search during an unlawful stop, that is, before he was told he was free to leave. “Such consent is itself unlawfully obtained and cannot justify a warrantless search absent reasonable suspicion.” Reversed and remanded.
State v Dierks, 257 Or App 88 (6/12/13) (Multnomah) (Hadlock, Ortega, Sercombe) The Court of Appeals concluded that the trial court should have suppressed evidence discovered from defendant, who was parked in a “high-crime, high-drug, high-gang area” parking lot because the officer did not have reasonable suspicion of criminal activity before he asked for defendant’s ID. Specifically, officer parked his marked car near defendant’s parked car as she sat in the driver’s seat, questioned her and her passenger about possible criminal activity in the area, asked them what they were doing, and immediately requested their IDs. The officer went back to his vehicle to run a LEDS check.
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Under those circumstances, a reasonable person in defendant’s position would have believed that the officer was running one’s name, as well as the passenger’s, especially the driver’s, whose license status would be the most important. A reasonable person would not feel free to leave because she would believe she was being subjected to a criminal investigation. Asking for ID under those circumstances converted the encounter from “mere conversation” (not a stop) into a stop.
State v Thompson, 254 Or App 282 (12/19/12) (Washington) (Schuman, Wollheim, Nakamoto) Defendant was sitting on a couch in her friend’s apartment. Three sheriff’s deputies arrived to do a “knock and talk” because they suspected the friend was a thief who sold drugs. Two deputies interrogated the friend inside the apartment. One deputy asked defendant to step outside of the apartment. Defendant testified (at a short suppression hearing): “He’s an officer, he had a badge, and he was asking me to do something. So I just figured that I should do it.” Defendant stepped outside while that deputy stood in the apartment doorway, facing her. Deputy asked her for ID, wrote down her name and birthday, and might have returned the ID to defendant (at the hearing, deputy could not remember and defendant wasn’t asked). Deputy told defendant they were at the apartment “on a drug-related investigation” and asked her what she was doing there. She said she was visiting. Deputy asked if she used drugs. She said no. Deputy asked if she had drugs or weapons in her purse. She said no. Deputy asked to search her purse. He did not tell her she had a right to refuse the request. Deputy did not suspect her of criminal activity at this point. Defendant opened the purse for the deputy. Deputy asked if he could take it and look at it himself. Defendant said yes, and deputy saw a small pink coin purse that he thought contained drugs. He opened it and found meth. Defendant said she got it from “some guy in a bar” but when pressured, she said she’d obtained it from the friend. Defendant did not ask or try to leave. Deputy did not inform her that she could. Defendant was charged with possession of meth and the trial court denied her motion to suppress.
The Court of Appeals reversed and remanded. The state conceded that the deputy did not have reasonable suspicion that defendant was engaged in criminal activity when she gave consent to search the purse, and that the discovery of meth came from that consent. “Therefore, if [deputy’s] request occurred while defendant was ‘seized’ [under] Article I, section 9 * * * the evidence must be suppressed.” Here the court concluded that defendant had been seized. Some parameters were addressed:
-- Merely asking a driver for identification is not a stop (without other “show of authority”). (Note: this case does has nothing to do with autos or traffic laws).
-- Taking “a person’s identification card” is a stop until the card is returned.
-- Taking a “person’s identification card and then radio[ing] the information that it contains to ‘dispatch’” is a stop, “because the person at that point has reason to believe that he or she has become the object of a law enforcement investigation,” and that continues “at least until the person is informed that the ‘warrant check’ revealed no inculpatory information”.
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-- “Beyond these precepts, however, the cases reveal only that taking a person’s identification and writing it down, as occurred here, is one factor to consider when determining whether, under the totality of the circumstances, a reasonable person would believe that her liberty has been restrained.”
The court distinguished Ashbaugh (a stop in a public park) and concluded that in this case, “taking her identification and writing down her information, in combination with other circumstances, amounted to what a reasonable person would regard as a significant restraint on her liberty.” In Ashbaugh, officers had taken that defendant’s ID, had run a warrants check, and returned the ID to defendant, so “defendant could, therefore, presume that she was no longer, at that point, the subject of an investigation.” In contrast, this case: (1) “there was no significant break in time” between the deputy’s request for defendant’s ID and his questioning of her; (2) this deputy “asked defendant to change her location”; (3) defendant knew her friend was being investigated by deputies with badges; and (4) this questioning was “more intrusive than in Ashbaugh.” This case is more akin to State v Radtke, 242 Or App 234 (2011).
(d). Hospitals
Observations in ER. A hospital emergency room, even a curtained-off portion of it, is open to the public and is not a private place; officers' observations of a defendant therein do not constitute a search for Article I, section 9, purposes. State v Cromb, 220 Or App 315, 320-27 (2008), rev denied 345 Or 381 (2009).
DUII blood draws. Under the Oregon Constitution, where probable cause exists to arrest for a crime involving the blood alcohol content of a suspect, a warrantless blood draw at a hospital is permissible under Article I, section 9, due to the “exigent circumstance” that is “the evanescent nature of a suspect’s blood alcohol,” except in “the rare case that a warrant could have been obtained and executed significantly faster” than the process used. State v Machuca, 347 Or 644, 657 (2010) (emphasis in original).
But the Fourth Amendment provides greater protection to individuals for warrantless blood draws than Article I, section 9. In drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not categorically constitute an exigency in every case sufficient to justify a warrantless blood draw under the Fourth Amendment. Missouri v McNeely, 133 S Ct 1552 (2012). “We have recognized a limited class of traditional exceptions to the warrant requirement that apply categorically and thus do not require an assessment of whether the policy justifications underlying the exception, which may include exigency- based considerations, are implicated in a particular case. See, e.g., California v Acevedo, 500 US 565, 569-70 (1991) (automobile exception); United States v Robinson, 414 US 218, 224-35 (1973) (searches of a person incident to a lawful arrest). By contrast, the general exigency exception, which asks whether an emergency existed that justified a warrantless search, naturally calls for a case-specific inquiry.” McNeely, 133 S Ct at n 3.
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Other drug testing: In Ferguson v. City of Charleston, 532 US 67, (2001), the Court held that a public hospital's policy of identifying and testing mothers whose children tested positive for drugs at birth was not justified under the "special needs” exception to (or carve-out from) the Fourth Amendment, because "the immediate objective of the searches was to generate evidence for law enforcement purposes." Id. at 83 (emphasis in original). The Court explained that the "central and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance abuse treatment," and concluded that "the purpose actually served by the [ ] searches is ultimately indistinguishable from the general interest in crime control." Id. at 81.
(e). Public Schools
See Public Schools, under Exceptions to Warrant preference, post.
(f). Jails and Juvenile Detention
See Jails and Juvenile Detention, under Exceptions to Warrant preference, post.
(g). Airport and Border Searches
See McMorris v Alioto, 567 F2d 897 (9th Cir 1978)
“Certain kinds of warrantless searches — at the border, in airports, in stop- and-frisk searches and elsewhere — may exist even though a warrant to authorize these very same actions would indeed be unconstitutional.” Akhil Reed Amar and Neal Kumar Katyal, NEW YORK TIMES Op-Ed, June 3, 2013.
3. More Privacy: Residences, Offices, Computers, Mobile Devices
(a). Houses and Rooms
(i). Fourth Amendment: “Privacy and security in the home are central to the Fourth Amendment's guarantees as explained in our decisions and as understood since the beginning of the Republic.” Hudson v Michigan, 547 US 586, 603 (2006) (Kennedy, J., concurring). Physical entry into the home is "the chief evil against which the working of the Fourth Amendment is directed." United States v U.S. District Court, 407 US 297, 313 (1972). "The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Entick v Carrington, 19 Howell's State Trials 1029, 1066 [1795]; Boyd v United States, 116 US 616, 626-630." Silverman v United States, 365 US 505, 511 (1961).
(ii). Article I, section 9: The Oregon Supreme Court has “described a person's living quarters as ‘the quintessential domain protected by the constitutional guarantee against unreasonable searches.’ State v Louis, 296 Or 57, 60 (1983). Under Article I, section 9, of the Oregon Constitution, a warrantless search of one's private living quarters is per se unreasonable and unlawful unless the search fits within a recognized exception to the warrant
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requirement. State v Paulson, 313 Or 346, 351 (1992).” State v Guggenmos, 350 Or 243, 250 (2011).
(b). Commercial Premises
The Fourth Amendment and Article I, section 9, list four things protected from unreasonable searches and seizures: “persons, houses, papers, and effects.” Both also have been extended protect other containers: sheds, trucks, offices, and the like:
On the Fourth Amendment: “[W]hether entrance to the home or office of a person suspected of crime be obtained by a representative of any branch or subdivision of the government of the United States by stealth, or through social acquaintance, or in the guise of a business call, and whether the owner be present or not when he enters, any search and seizure subsequently and secretly made in his absence, falls within the scope of the prohibition of the Fourth Amendment.” Gouled v United States, 255 US 298, 306 (1921) (emphasis added).
“This Court has held that the word 'houses,' as it appears in the Amendment, is not to be taken literally, and that the protection of the Amendment may extend to commercial premises.” Mancusi v Forte, 392 US 364, 367 (1968).
Oregon courts have conflated “houses” with other “premises” in several cases. For example, the court used the general word “premises” when describing a search of a residence: “Under Article I, section 9, warrantless entries and searches of premises are per se unreasonable unless falling within one of the few “specifically established and well-delineated exceptions” to the warrant requirement. State v Davis, 295 Or 227, 237 (1983) (citing Katz v United States, 389 US 347, 357 (1967)).” State v Baker, 350 Or 641, 647 (2011). The Court of Appeals has applied rules on third-party consent of “premises” searches to a third-party consent of a vehicle search in State v Kurokawa-Lasciak, 249 Or App 435, 439-40, rev den 352 Or 378 (2012). The Court of Appeals also has linked businesses with residences: The “businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property,” See v City of Seattle, 387 US 541, 543 (1967) (citing Fourth Amendment as being consistent with Article I, section 9, on this point). State v Mast, 250 Or App 605 n 6 (2012).
Despite indicating similarity of analysis in all premises searches, the Oregon Supreme Court has differentiated houses from public places. See, e.g., State v Fair, 353 Or 588 (2013).
(c). Curtilage
“Article I, section 9, protects the privacy interest in land within the curtilage of a dwelling. Curtilage is ‘the land immediately surrounding and associated with the home.’ State v Dixon/Digby, 307 Or 195, 209 (1988) (quoting Oliver v United States, 466 US 170, 180 (1984)).” State v Baker, 350 Or 461, 650 n 7 (2011). Note: The legal test to determine if officers trespassed is the residents’ intent to exclude the public from entering the property. A “Private Property” sign alone is likely insufficient to show that intent, but a “No Trespassing” sign likely is sufficient. Front doors are different than backdoors or backyards. Under Oregon law, intrusions onto residential curtilage are deemed to be
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trespasses unless the entry is privileged or has the occupant’s express or implied consent. State v Unger, 252 Or App 478 (2012).
“The law assumes that, absent evidence of an intent to exclude, an occupant impliedly consents to people walking to the front door and knocking on it, because of societal and legal norms of behavior.” State v Roper, 254 Or App 197 (2012) (quoting State v Portrey, 134 Or App 460, 464 (1995)). Thus an occupant “impliedly consents to people walking to the front door and knocking on it” unless there is evidence of the occupant’s intent to exclude people. But occupants are not considered to have given implied consent to other entry points other than front doors. * * * Thus entries into backyards are considered to be trespasses and searches. State v Unger, 252 Or App 478 (2012).
“No Trespassing” Signs. Three “No Trespassing” signs that a reasonable person would have seen, even if police officers credibly testified that they did not see the signs, has been deemed sufficient to prove residents’ intent to exclude the public, even if the driveway gate was open and one of those 3 signs was not visible. State v Roper, 254 Or App 197 (2012) (officers trespassed). But in contrast, a “Private Property” sign plus an open gate on a property is not sufficient to manifest intent to exclude the public. State v Cam, 255 Or App 1 (2013) (officers did not trespass).
Note: “No search occurs, however, when police officers make observations from a ‘lawful vantage point.’ State v Ainsworth, 310 Or 613, 617 (1990). A ‘lawful vantage point’ may be within the curtilage of a property in which a defendant has a privacy interest, given that, ‘absent evidence of an intent to exclude, an occupant impliedly consents to people walking to the front door and knocking on it, because of social and legal norms of behavior.’ State v Portrey, 134 Or App 460, 464 (1995).” State v Pierce, 226 Or App 336, 343 (2009).
State v Roper, 254 Or App 197 (12/19/12) (Josephine) (Wollheim, Schuman, Nakamoto) The trial court properly suppressed evidence taken during officer’s search of defendant’s residential curtilage without a warrant. Defendant had a 4- 5’ boundary fence with a gate across the driveway. The driveway gate was open. Four feet “to the left of defendant’s driveway is a ‘No Trespassing’ sign.” “To the right of the gate” at some farther point is another “No Trespassing” sign. A third sign on the gate says “POSTED NO TRESPASSING KEEP OUT.”
Without a warrant, four officers went to the residence “to discuss information” about defendant’s marijuana grow on his property. The driveway gate was open, so the one sign on that gate was not visible. Officers credibly testified that they saw none of the No Trespassing signs. Officers went to both the front and the back doors, meeting defendant at the back door. Defendant made incriminating statements and officers found 16 firearms, meth, meth items, marijuana plants, and processed marijuana. Defendant, a felon, was charged with numerous crimes. He moved to suppress all evidence, and the trial court concluded that the officers failed to use due diligence before entering the curtilage and therefore they trespassed. The state appealed.
The Court of Appeals affirmed: The signs were sufficient to show the resident’s intent to exclude the public, and evidence in the record is consistent with the trial court’s factual findings. The facts the court cited were: (1) a boundary fence around the property even though the driveway gate was open and (2) “No Trespassing” signs. Factors the court stated:
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1. How far are the signs from the entrance to the property? 2. How large is the font on the signs? 3. Were the signs obvious or obscured? 4. Did the officers notice the signs? 5. Did the officers look for the signs?
Note: The Court of Appeals did not address a back door-front door distinction in this case, perhaps because the earlier entry into the driveway was the trespass.
State v Cam, 255 Or App 1 (02/06/13), adh’d to on recons, 256 Or App 146 (4/17/13) (Marion) (Wollheim, Schuman, Nakamoto) The trial court properly admitted evidence officers had seized during a warrantless search of defendant’s residence curtilage. Detectives investigating a crime drove an unmarked police car to defendant’s rural Salem house. An open metal gate “located a short distance from the road” was across defendant’s driveway. Along the driveway, a sign on a tree said “PRIVATE PROPERTY” and another said “10 M.P.H.” and another said “PRIVATE PROPERTY.” Detectives did not recall seeing the signs initially but later one did recall seeing them. Several people were in a shop area at the end of the driveway at the residence. Detectives recognized defendant, inquired about the crime they were investigating, and defendant invited them into the house through the garage. Defendant was arrested when he accompanied detectives off the site. A subsequent warrant resulted in seizures of Ecstasy, meth, marijuana. Defendant was charged with 53 offenses. He moved to suppress the warrantless entry into the curtilage based on the “PRIVATE PROPERTY” sign and the open gate, contending that they manifested clear intent to exclude visitors and the police under State v Dixon/Digby, 307 Or 195 (1988). The trial court denied the motion.
The Court of Appeals affirmed: “a person impliedly consents to visitors approaching the front door unless the person has manifested an intent to forbid the intrusion of casual visitors onto the property.” (Quoting State v Gabbard, 129 Or App 122, rev den 320 Or 131 (1994)). Here, a “PRIVATE PROPERTY” sign plus an open gate does not show intent to exclude, although two months earlier in Roper, the same Court of Appeals panel had ruled that two “NO TRESPASSING” signs plus an open gate did show intent to exclude. The court here noted that “the open gate and the absence of a no-trespassing sign” did not manifest “clear intent to exclude visitors.”
(d). Emergencies to Enter Premises
(i). Article I, section 9
“Absent consent, a warrantless entry can be supported only by exigent circumstances, i.e., where prompt responsive action by police officers is demanded. Such circumstances have been found, for example, to justify entry in the case of hot pursuit, United States v Santana, 427 US 38 (1976), the destruction of evidence, United States v Kulcsar, 586 F2d 1283 (8th Cir 1978), flight, Johnson v United States, 333 US 10 (1948), and where emergency aid was required by someone within, United States v Goldenstein, 456 F2d 1006 (8th Cir 1972)." State v Davis, 295 Or 227, 237-38 (1983) (motel room). “The linchpin in all the cases which rely upon the emergency doctrine to justify a warrantless entry is the urgent need to render aid and assistance within.” Id. at 238.
“[A]n emergency aid exception to the Article I, section 9, warrant requirement is justified when police officers have an objectively
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reasonable belief, based on articulable facts, that a warrantless entry is necessary to either render immediate aid to persons, or to assist persons who have suffered, or who are imminently threatened with suffering, serious physical injury or harm.” State v Baker, 350 Or 641, 649 (2011) (deciding the case under Oregon’s Constitution but reciting the “elements of an emergency aid exception to the Fourth Amendment warrant requirement” from Mincey v Arizona, 437 US 385 (1978) and Brigham City, Utah v Stuart, 547 US 398 (2006)); State v Rennells, 253 Or App 580 (2012).
Under State v Baker, 350 Or 641 (2011), the state must prove and “the court must determine whether there are specific and articulable facts to support the officers’ belief that a person required aid or assistance and whether that belief was reasonable,” to fit the emergency aid exception. Reports of hearing four hours of a woman’s loud crying, and when officers arrived at an apartment, seeing a woman lying in a fetal position while a male refused to consent to officers’ entry, gave the officers an objectively reasonable belief that warrantless entry was necessary to assist a person who was seriously injured. State v Wan, 251 Or App 74 (2012).
(ii). Fourth Amendment
“One well-recognized exception applies when ‘the exigencies of the situation’ make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” Kentucky v King, 131 S Ct 1849, 1856 (citations omitted). Under the Fourth Amendment, the United States Supreme Court “has identified several exigencies that may justify a warrantless search of a home* * * * * * Under the ‘emergency aid’ exception, for example, ‘officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect and occupant from imminent injury.’ * * * Police officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect* * * * * * And * * * the need ‘to prevent the imminent destruction of evidence’ has long been recognized as a sufficient justification for a warrantless search”. Kentucky v King, 131 S Ct 1849 (2011).
In a warrantless blood-draw case, the US Supreme Court recited cases where exigencies allow for “acting without a warrant,” “searching,” and/or “seizing” in homes or buildings: “to provide emergency assistance to an occupant of a home, Michigan v Fisher, 588 US 45, 47- 48 (2009),” to “engage in hot pursuit of a fleeing suspect, United States v Santana, 427 US 38, 42-32 (1976),” or to “enter a burning building to put out a fire and investigate its cause, Michigan v Tyler, 436 US 499, 509- 10 (1978),” or “to prevent the imminent destruction of evidence” under Cupp v Murphy, 412 US 291, 296 (1973), to prevent a person from destroying hidden contraband in his trailer, Illinois v McArthur, 531 US 326, 331 (2001), and to search “a suspect’s fingernails to preserve evidence that the suspect was trying to rub off.” Missouri v McNeely, 133 S Ct 1552 (2012).
State v Rennells, 253 Or App 580 (11/21/12) (Clackamas) (Schuman, Wollheim, Nakamoto) The trial court correctly allowed evidence derived from a warrantless entry into defendant’s apartment based on the emergency-aid exception. Officers responded to an anonymous 911 call reporting screaming
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coming from an apartment. Officers arrived and all was quiet outside. Officer knocked, heard a door inside slam, but no one answered. Officer knocked again, and another officer saw someone peek through a window. Officer kicked at the front door while the other officer yelled through the open window to come to the door. No one came, all was silent, and two vehicles outside the apartment belonged to defendant and the victim. Officers called that in to dispatch and learned that defendant was on probation and had a no-contact order to protect the victim. Officers talked with neighbors who reported “problems” in the apartment “in the past. Officers decided to enter the apartment. (Note: the opinion does not state how long any of this took). Officer got a key from the manager, tried to open it, but a security chain blocked access. Officer called out that police were present and the occupants needed to come to the door. No one responded. Officer kicked in the door, entered, and both defendant and victim were in the bedroom. They made inculpatory statements about defendant committing menacing and assault. Defendant did not move to suppress before trial, but during trial he alleged that the officers’ entry was unlawful. The trial court denied the motion to suppress.
The Court of Appeals affirmed under State v Baker, 350 Or 641, 649 (2011). The “emergency aid exception does not require a life-threatening emergency or violence in progress. Entry is permitted if there are articulable facts reasonably indicating that a person is imminently threatened with suffering serious physical injury or harm.” Here, the immediate screaming, the neighbors’ statements about “earlier problems there,” the no-contact order coupled with both defendant’s and victim’s cars parked outside, and officer’s observation that one person had peeked out the window (confirming that a person was inside) plus the silence within, all together justified warrantless entry.
(e). Computers, Mobile Devices
State v Bray, 352 Or 24 (2012)
State v Tilden, __ Or App __ (2012)
Schlossberg v Solesbee, 844 F Supp 2d 1165 (D Or 2012)
F. Warrants
"[N]o warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be
searched, and the person or thing to be seized." -- Article I, section 9, Or Const
1. Probable Cause
“The probable cause requirement derives from statute, see ORS 133.545(4); ORS 133.555, as well as the state and federal constitutions, see Or Const, Art I, §9, US Const, Amend IV and XIV.” State v Huff, 253 Or App 480, 486 n 6 (2012). “‘Probable cause’ has the same meaning throughout [state and federal] constitutional and statutory requirements.” State v Marsing, 244 Or App 556, 558 n 2 (2011).
The "probable cause" necessary to conduct a warrantless search and to obtain a warrant to search is the same standard. See ORS 131.007(11)
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(probable cause to arrest); ORS 133.555 (probable cause to issue a search warrant). "'Probably' means 'more likely than not.'" "Those basic requirements for objective probable cause are equally applicable in the context of warrantless and warranted searches." State v Foster, 233 Or App 135, aff’d 350 Or 161 (2011).
Probable cause is based on the totality of the circumstances. Courts "consider the entire contents of the affidavit” supporting the warrant application, excised if appropriate. State v Fronterhouse, 239 Or App 194 (2010). The legal test is “whether a neutral and detached magistrate could conclude, based on the facts and circumstances shown by the affidavit, that there was probable cause to believe that the search would discover things specified in the affidavit in the places requested to be searched.” State v Huff, 253 Or App 480 (2012) (quoting State v Castilleja, 345 Or 255, 270 (2008)).
“Staleness” in an affidavit supporting an application for a warrant is determined by time, perishability, mobility, “the nonexplicitly inculpatory character of the putative evidence,” and the suspect’s propensity to retain the evidence. State v Ulizzi, 246 Or App 430 (2011), rev den 351 Or 649 (2012). Stale information can be refreshed by more recent evidence of current or continued illegal activity and thus properly used to support a warrant. State v Huff, 253 Or App 480 (2012).
The “current possession of a small amount of illegal drugs in a person’s home does not give rise to probable cause to search the home for additional drugs.” State v Huff, 253 Or App 480 (2012) (citing State v Mepham, 46 Or App 839 (1980)).
State v Huff, 253 Or App 480 (11/15/12) (Coos) (Armstrong, Haselton, Duncan) Note: This opinion did not identify whether it is based on a statute, the Oregon Constitution, or the US Constitution. In footnote 6, the opinion recited all three as having a “probable cause requirement.”
The trial court erred by issuing a warrant to search defendant’s residence after officers found personal-use amounts of meth in the residence: the details in the detective’s telephonic affidavit were insufficient to establish probable cause of commercial drug activity. To support the warrant application, a detective recited: (1) 4-year old information about defendant’s prior meth sales, (2) the fact that defendant was on supervision for possession of meth and lived with another person supervised for meth use; (3) the same day defendant had consented to a search of his residence and officers found ¼ gram of meth plus a meth pipe; and (4) the detective’s training and experience. The detective sought a warrant to search the residence (which was an RV) and the shop on the premises. The trial court authorized the warrant and evidence of drug sales was found in the RV (none in the shop). Defendant moved to suppress the evidence on grounds that the affidavit lacked probable cause. The trial court denied the motion to suppress.
The Court of Appeals reversed. The legal test (note: unstated whether that is under the statute, the state, or federal constitution) is “whether a neutral and detached magistrate could conclude, based on the facts and circumstances shown by the affidavit, that there was probable cause to believe that the search would discover things specified in the affidavit in the places requested to be searched.” (Quoting State v Castilleja, 345 Or 255, 270 (2008)).
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The affidavit did not state “the typical recidivist behavior of drug dealers or why, based on the officer’s training and experience, the possession of a user amount of drugs by a former dealer or consorting with another prior drug offender might indicate that defendant was continuing to deal in illegal substances.” (Emphasis by court). Current possession of a small amount of drugs does not give rise to probable cause to search the home for additional drugs. “[A]dditional facts beyond the current possession must be presented to establish the probability that further evidence of criminal activity will be fund at the suspected location.” In this case, ¼ gram of meth + a pipe = personal use, which does not “support an inference” that defendant was selling meth from the location, which could in turn establish that more of the drug would be found on defendant’s residence. That said, “the current discovery of drugs at the same location as the prior seizure of drugs provides an indication that some criminal drug activity was ongoing at the suspected location.” But again that is only personal use. Under the totality of circumstances, even if the 4-year old information was not impermissibly stale, it is insufficient to allow a reasonable conclusion that evidence of drug distribution would probably be found on defendant’s property.
State v King/Orr, __ Or App __ (10/23/13) (Washington) (Armstrong, Duncan, Brewer pro tem) Note: This opinion, as with State v Huff, ante, does not indicate whether it is based on the constitution or a statute.
This is a state’s appeal, ORS 138.060, from a trial court’s suppression of evidence derived from a residential search warrant. The Court of Appeals held that the magistrate had properly issued the warrant, and reversed the trial court’s contrary order. The Court of Appeals noted that it does not “defer to the trial court’s findings.” In reviewing an affidavit supporting an application for a search warrant, the appellate court defers to the magistrate’s determination of probable cause.
Here, the magistrate properly issued the warrant based on a police officer’s affidavit. The officer established that the residence was registered as a marijuana-cultivation site, the house’s sole ground-level window was covered from the inside, and power records supported an inference that grow lights were being used. The affidavit supported the probable-cause determination that unlawful marijuana activity was occurring (not just the lawful cultivation). The officer stated that people who grow more than their allowed amount often illegally sell the extra marijuana. The officer and other officers observed sales activity and a person admitted she had purchased marijuana. The power- consumption records are important in that they are very detailed in this affidavit: the type of lights used, the amount of light used for stages of growing, the three stages of marijuana growing (propagation, vegetation, and budding), and the records showed “a large increase in power consumption by the same tenant, described by a PGE representative as a ‘dramatic’ increase.”
2. Scope
(i). Oregon Constitution: When “police have acted under authority of a warrant * * * ‘the burden is on the party seeking suppression (i.e., the defendant) to prove the unlawfulness of a search or seizure.’ State v Johnson, 335 Or 511, 520 (2003).” State v Walker, 350 Or 540 (2011) (due to the underdeveloped record, the Court reserved “for another day the question whether a premises warrant authorizes the search of the personal effects of individuals who happen to be on the premises when those effects are not in the physical possession of those individuals.”).
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(ii). Fourth Amendment: Probable cause must be particular to the person being searched or seized. A premises warrant does not authorize police to search persons who merely happened to be at the premises when the warrant is executed. Ybarra v Illinois, 444 US 85 (1979).
G. Exceptions to Warrant Requirement
"[W]arrantless entries and searches are per se unreasonable unless falling within one of the few 'specifically established and well-delineated exceptions' to the warrant requirement." State v Davis, 295 Or 227, 237 (1983) (quoting Katz v United States, 389 US 347 (1967) and State v Matsen/Wilson, 287 Or 581 (1979)).
"Warrantless searches and seizures are per se unreasonable unless the state proves an exception to the warrant requirement." State v Bridewell, 306 Or 231, 235 (1988);
Article I, section 9, speaks to both searches (privacy rights) and seizures (possessory rights), and with a few well-recognized exceptions, a warrant is required even when only possessory rights are implicated. State v Smith, 327 Or 366, 376-77 (1998).
1. Probable Cause to Arrest
"A warrantless arrest is appropriate if a police officer has probable cause to believe that a person has committed a felony. ORS 133.310(1)(a)." State v Pollack, 337 Or 618, 622-23 (2004); State v Rayburn, 246 Or App 486, 490 (2011). “The state bears the burden of establishing the validity of a warrantless search or seizure.” State v Hebrard, 244 Or App 593, 599 (2011).
“In the context of justification to arrest a person, ‘[p]robable cause’ means that there is a substantial objective basis for believing that more likely than not an offense has been committed and a person to be arrested has committed it.” State v Hebrard, 244 Or App 593 (2011) (citing State v Foster, 233 Or App 135, 144 (2010), aff’d 350 Or 161 (2011)). Hebrard involved a Class C felony.
2. Search Incident to Lawful Arrest
(a). Oregon Constitution
A search incident to arrest is one of the few specifically established exceptions to the warrant requirement. State v Hite, 198 Or App 1, 6 (2005). “The justification for this exception to the warrant requirement is that such searches are necessary in order to protect the arresting officer in case the suspect has a weapon within reach and to prevent the suspect from reaching and destroying evidence. State v Caraher, 293 Or 741, 759 (1982).” State v Groom, 249 Or App 118 (2012). “The arrest must be for a crime, evidence of which reasonably could be concealed on the arrestee’s person or in the belongings in his or her immediate possession at the time of the arrest. * * * [I]f the person is arrested for a crime which ordinarily has neither instrumentalities nor fruits which could reasonably be concealed on the arrestee’s person or in the belongings in his or her immediate possession, no warrantless search for evidence of that crime would be authorized as incident to that arrest.” State v Owens, 302 Or 196, 200 (1986).
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“In addition, a search incident to arrest is lawful if it is ‘relevant to the crime for which defendant is being arrested and so long as it is reasonable in light of all the facts.’” State v Groom, 249 Or App 118 (2012). The “search must be reasonable in time, space, scope, and intensity.” Id. (citing State v Owens, 302 Or 196, 205 (1986)).
Under Article I, section 9, there are three valid justifications for a warrantless search incident to lawful arrest: (1) to protect the officer's safety, (2) to prevent the destruction of evidence, and (3) to discover evidence relevant to the crime for which the defendant was arrested. State v Hoskinson, 320 Or 83, 86 (1994).
For officer safety purposes, an officer may search closed containers without a warrant as an incident to a lawful arrest, “so long as the search was reasonable in time and space and was either for evidence of the crime prompting the arrest, to prevent the destruction of evidence, or to protect the arresting officer.” State v Gotham, 109 Or App 646, 649 (1991) rev den 312 Or 677 (1992) (citing State v Caraher, 293 Or 741, 759 (1982)). An officer is authorized to search closed containers as an incident to arrest “so long as the search was reasonable in time and space and was either for evidenced of the crime prompting the arrest, to prevent the destruction of evidence, or to protect the arresting officer.” State v Caraher, 293 Or 741, 759 (1982).
(b). Fourth Amendment
Mobile Devices: “In recent years, courts have grappled with the question of whether the search incident to arrest exception extends to data within an arrestee’s cell phone.” United States v Wurie, __ F3d __ (1st cir 2013). See Schlossberg v Solesbee, 844 F Supp 2d 1165 (D Or 2012) on warrantless police searches of personal electronic devices as searches incident to arrest. Video is at http://www.youtube.com/watch?v=rVyt4e5SNeM. Personal digital cameras cannot be searched as incident to an arrest “absent a showing that he search was necessary to prevent the destruction of evidence, to ensure officer safety, or that other exigent circumstances exist.” A laptop, a cell phone, a smart phone, and a camera, are categorized the same way because a rule requiring officers to distinguish between such devices is impractical.
DNA Searches of Arrested Persons: Maryland v King,133 S Ct 1958 (2013) held that taking and analyzing DNA from an arrested person’s cheek as a search incident to arrest for a “dangerous” or “serious offense,” supported by probable cause, is a legitimate police booking procedure that is reasonable under the Fourth Amendment, like fingerprinting and photographing. Per the Court, such searches are similar to and different from “special needs” cases. Similar to special needs cases because “the search involves no discretion” by officers. Different from because special needs cases have no individualized suspicion but people are arrested for serious offenses based on probable cause. In this case, the Court appears to have blended “special needs” analysis with the “search incident to arrest” analysis with prison-specific administrative searches.
State v Lovaina-Burmudez, 257 Or App 1 (6/05/13) (Multnomah) (Haselton, Armstrong, Duncan) (It is unclear whether this case is based on the state or
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federal constitution). Defendant was a suspect in a string of robberies. A Red Apple restaurant had just been robbed by a person resembling defendant, who was a passenger in a van. An officer shot defendant who then was fleeing on foot from police. Defendant was arrested. (The opinion does not state what he was arrested for).
En route to OHSU, in an ambulance, paramedics removed defendant’s shirt, shoes, and socks. At OHSU, an officer took that clothing from the ambulance. The ER staff then gave the officer more of defendant’s clothing and a bullet fragment that the ER doctor had removed from defendant’s body. Officer gave all of that evidence to the forensic division of the police department, where it was photographed, cash in the pockets was counted, and the soles of defendant’s shoes were photographed. Later those photographs were compared with imprints from the recent robbery. The officer testified that he treated all of those items seized from defendant as evidence to be maintained for prosecution, rather than personal property to be inventoried and secured for defendant. Later the officer described defendant’s shoes to an investigator who linked the shoes to that robbery. Defendant also was suspected of having robbed a different place (a taco truck) a week earlier.
Six months after defendant’s arrest and hospitalization, an officer applied for and obtained a search warrant authorizing him to seize and search defendant’s clothing and shoes that were already in the police department’s possession. The affidavit described how the officer compared photos of defendant’s shoes with footprints at the robbery site. Defendant moved to suppress his clothes, shoes, cash, and the photos of his shoes, because although the officers may have had reasonable suspicion that he committed that robbery, they did not have probable cause that he did. A warrantless search incident to arrest must be supported by probable cause. Defendant also challenged the inventory policy and scope. The trial court denied suppression, reasoning that seizure of the clothing was lawful based on his arrest for that different taco truck robbery a week earlier.
The Court of Appeals reversed. See “Inventories,” post, for discussion of that warrant exception. As to the search incident to arrest exception, “the record is devoid of any objective nexus between what defendant was wearing” the day he was suspected of the robbery (the say he was shot and arrested) and what he was wearing the date of the earlier taco truck robbery. There also is no evidence as to any officer’s requisite belief that the fruits of the taco truck robbery (the crime of arrest) reasonably could be found on defendant’s person a week later. The Court of Appeals concluded: “Accordingly, the trial court’s ‘search incident to arrest’ rationale for denying suppression of defendant’s shoes, clothing, and derivative evidence was erroneous.” In detail, the Court of Appeals rejected the state’s “inevitable discovery” argument as well, given the “gaps and deficiencies in proof.” The Court of Appeals also concluded that the error was not harmless.
State v Bailey, 258 Or App 18 (8/14/13) (Multnomah) (Armstrong, De Muniz; with Egan dissenting) See “Exclusionary Rule” herein.
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3. Exigent Circumstances
(a). Fourth Amendment Generally
In a warrantless blood-draw case, the US Supreme Court recited cases where exigencies allow for “acting without a warrant,” “searching,” and/or “seizing” in homes or buildings. Those are: “to provide emergency assistance to an occupant of a home, Michigan v Fisher, 588 US 45, 47-48 (2009),” to “engage in hot pursuit of a fleeing suspect, United States v Santana, 427 US 38, 42-32 (1976),” or to “enter a burning building to put out a fire and investigate its cause, Michigan v Tyler, 436 US 499, 509-10 (1978),” or “to prevent the imminent destruction of evidence” under Cupp v Murphy, 412 US 291, 296 (1973), to prevent a person from destroying hidden contraband in his trailer, Illinois v McArthur, 531 US 326, 331 (2001), and to search “a suspect’s fingernails to preserve evidence that the suspect was trying to rub off.” Missouri v McNeely, 133 S Ct 1552 (2012).
“[T]he exigencies of the situation [may] make the needs of law enforcement so compelling that the warrantless search is objectively reasonable.” Michigan v Fisher, 558 US 45, 130 S Ct 546, 548 (2009) (“law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury”) (quoting Mincey v Arizona, 437 US 385, 393– 394 (1978)). Officers “may enter a residence without a warrant when they have ‘an objectively reasonable basis for believing that an occupant is . . . imminently threatened with [serious injury.]’” Ryburn v Huff, 132 S Ct 987, 990 (2012) (quoting Brigham City v Stuart, 547 US 398, 400 (2006) (Fourth Amendment). The Court “explained that the need to protect or preserve life or avoid serious injury is justification for what would otherwise illegal absent an exigency or emergency.” Ibid.
“[T]he exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment.” Kentucky v King, 131 S Ct 1849 (2011). Reiterating exigencies it had identified in Brigham City v Stuart, 547 US 398, 403 (2006) the Court summarized “exigencies that may justify a warrantless search of a home. * * * Under the ‘emergency aid’ exception, for example, ‘officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.’ * * * Police officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect.” The “need to ‘prevent the imminent destruction of evidence’ has long been recognized as a sufficient justification for a warrantless search.” Id. (citations omitted).
Note: In April 2012, the Oregon Supreme Court wrote: “It appears that, although the United States Supreme Court has recognized an ‘exigent circumstances’ exception to the warrant requirement in the Fourth Amendment context, it has never attempted to summarize the exception.” State v Miskell/Sinibaldi, 351 Or 680, 690 n 4 (2012). But in January 2011, in Kentucky v King, 131 S Ct 1849 (2011), the United States Supreme Court had summarized “the exigent circumstances rule.” King is not its first US Supreme Court case to recite the “exigent circumstances” exception. The King Court cited Brigham City v Stuart, 547 US 398, 403 (2006), which listed its cases on exigent circumstances.
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In January 2012, in Ryburn v Huff, 132 S Ct 987 (2012), the US Supreme Court also had issued a per curiam opinion again emphasizing its case law on exigencies and emergencies justifying warrantless entries to houses.
(b). Oregon Constitution Generally
Under Article I, section 9, warrantless entries and searches are per se unreasonable unless the state proves an exception to the warrant requirement, such as the existence of exigent circumstances when the officers have probable cause to arrest a suspect. State v Bridewell, 306 Or 231, 235 (1988).
Under Article I, section 9, to justify entering a residence without a warrant because of an emergency, "the state must make a strong showing that exceptional emergency circumstances truly existed." State v Miller, 300 Or 203, 229 (1985), cert denied, 475 US 1141 (1986) (citing Vale v Louisiana, 399 US 30, 34 (1970)).
“[A]n emergency aid exception to the Article I, section 9, warrant requirement is justified when police officer have an objectively reasonable belief, based on articulable facts, that a warrantless entry is necessary to either render immediate aid to persons, or to assists person who have suffered, or who are imminently threatened with suffering, serious physical injury or harm.” State v Baker, 350 Or App 641, 649 (2011) (referring to it as the “so-called emergency aid exception”). “[I]t does not matter whether the need to render immediate aid is triggered by a human source or a condition idiopathic to the person needing aid.” (Note: The Baker Court stated that this is an “objective” test, but it recited the two officers’ subjective beliefs that an emergency existed in concluding that the test had been met.).
State v Fair, 353 Or 588 (5/31/13) (Linder) Two police officers received a call from dispatch that a woman had called 911 and was saying “stop it!” and “get off me!” while a man yelled in the background, then the call cut off. No one answered when 911 tried to call back. Officers went around the back of the house, saw “an angry-looking man” through the glass, and the man retreated out of sight. Officers went to the front door, knocked, and defendant and the man answered together. Defendant had “a large swollen area” over one eye. Officer ordered both onto the porch. Officer handcuffed the man (husband) while husband yelled to defendant not to say anything. Officer ordered defendant to stay on the porch. Husband kept yelling to defendant not to talk. Defendant said she had not called 911, then that she had accidentally called 911. Officer asked her for ID, she said she had none, and she had just married her husband. Officer ran her names (married and maiden) and no “wants” or warrants came back. Officer asked if she’d ever had a driver’s license; she never had one. Officer asked if she’d ever been arrested. She said she had. Officer asked what for. She said for drugs. Officer asked about her beat-up face. She said the injury was self- inflicted; an item fell on her while she was loading her car. While the officer asked if she felt threatened by her husband an orange plastic syringe cap fell out of her pant leg. Officer asked her about her own drug use. She admitted using IV drugs. Officer asked to search her. She consented, and inside her pants pocket, an officer found a “wadded up napkin containing a broken glass pipe with drug residue on it.” Officer arrested defendant.
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The trial court denied her motion to suppress, on grounds that “defendant had not been seized.” The Court of Appeals reversed, concluding that she had been ordered to come out of her own house.
The Supreme Court, using the words house, home, or private residence 47 times in this opinion, upheld the trial court’s denial of defendant’s motion to suppress. The trial court was incorrect (and the Court of Appeals was correct) in that defendant was seized on her porch. But the seizure was reasonable under Article I, section 9, because officers ordered her out “with probable cause to believe that defendant’s husband had just assaulted her and under exigent circumstances that arose in the contest of the officers’ emergency response to an apparent incident of domestic violence.” The Court called this “a patent exigency excusing a warrant” because police arrived at defendant’s home after she’d made an “aborted 911 call,” and observed that defendant’s face bore evidence of a recent beating potentially by her husband who had evaded police by retreating into the home and ordering her not to speak to the police. Those “circumstances” authorized police to “temporarily detain defendant for purposes of investigation” of violence against defendant in part because she “likely possessed information material to that crime.”
The officers also did not exceed the scope of a reasonable investigation by asking defendant if she’d ever been arrested, and when she said yes, by asking her on what charges. Those “inquiries were reasonably necessary to determine defendant’s identity” because she had no ID to show him (police had ordered out of her home onto her porch) and she never had had a driver’s license. “Asking defendant if she had ever been arrested thus served two purposes reasonably related at that point to the reasons for temporarily detaining defendant. First, it potentially validated defendant’s identifying the information in the database. Second, asking what the arrest had been for was a reasonable way to ascertain whether defendant had a prior history of domestic violence.”
In determining whether defendant was “seized” on her own private home area, the “principal deciding factor is the setting involved – the privacy of the defendant’s home and her interest in her personal autonomy within that place.” The Court distinguished “the home” from “an automobile” or “a public street.”
Note: The Court wove Fourth Amendment cases into Article I, section 9, analysis. For example, it stated: “Although the syntax differs, the guarantee of the Fourth Amendment * * * is substantively the same” as Article I, section 9. For “both provisions, the touchtone is reasonableness. * * * Consequently, for purposes of Article I, section 9, this court has embraced the analysis that originated under the Fourth Amendment”. When citing its own case as Article I, section 9, precedent, the Court footnoted that State v Cloman, 254 Or 1 (1969) “was not explicitly based on Article I, section 9, but the length to which it went on to explain its ‘approval’ of the federal analysis, rather than merely follow it, suggested implicitly that the court was deciding the case as a state law matter.” Footnote 7.
The Court further held that “in appropriate circumstances” Article I, section 9, allows officers to temporarily seize “someone” on the scene if they have reasonable suspicion that that person is a witness: “Officers constitutionally may, in appropriate circumstances, stop and temporarily detain for questioning a person whom they reasonably believe is a potential material witness to a crime.” The Court’s reason: “Persons who possess material information about a crime are also sources of evidence – testimonial evidence, to be sure, but evidence just the same. Such evidence is potentially as beneficial to the defense as to the prosecution.”
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Note: The beat-up defendant did possess material information about the crime of wife-beating (it wasn’t testimonial, it was physical evidence – her face). But under this ruling, a victim seeking emergency help quickly may become a defendant herself for something else. Here, the defendant was seized because she “possessed material information about a crime.” But she became “a source of evidence” – testimonial and physical -- of her own crime (drug possession). A syringe cap dropped from her pocket when the officer asked her if she felt threatened by her husband, whom the officers believed had just freshly beaten her in the head so that there were “large” visible facial wounds. Defendant, having been ordered to remain on her porch by two male officers and while being shouted at by her abusive husband, then apparently “consented” when the two male officers (Marcus Mendoza and Lt. Utter) asked to put their hands into her pants pockets to look for drugs. The Court did not address the voluntariness of her consent to search into her pockets under those circumstances. The Court failed to explain how officers putting their hands into her pants would be “as beneficial to the defense as to the prosecution.”
This case warns women in domestic violence, and anyone who has just been violently assaulted: Be careful what you ask for. The state here characterized officers’ actions as merely a minimal response to her “tacit invitation * * * to come to her aid.” The Court held that defendant was then “seized” but that seizure was “reasonable” under the exigent circumstances exception and because she was a “potential material witness to a crime.”
(c). Specific Emergencies
(i). Emergency Aid
An exigent circumstance is a situation that requires police to act swiftly to prevent danger to life or serious damage to property, or to forestall a suspect's escape or the destruction of evidence. State v Stevens, 311 Or 119, 126 (1991).
"Emergency Aid" exception to the warrant requirement in Article I, section 9, may exist if: (1) police have reasonable grounds to believe there is an emergency and an immediate need for their assistance to protect life; (2) the emergency is a true emergency – a good-faith belief is not enough; (3) search is not primarily motivated by intent to arrest or seize evidence; and (4) officer reasonably suspects the area to be searched is associated with the emergency and by making the entry, the officer will discover something to alleviate the emergency. State v Follett, 115 Or App 672, 680 (1992), rev den 317 Or 163 (1993); see also State v Fair, 353 Or 588 (2013).
The “emergency aid” exception can justify warrantless searches, but Oregon appellate courts have never applied it to justify warrantless traffic stops. Sivik v DMV, 235 Or App 358 (2010).
State v Fessenden, 258 Or App 639 (9/25/13) (Douglas) (Hadlock, Ortega, Sercombe) From a lawful vantage point, a sheriff’s deputy observed defendant’s emaciated horse on private property and confiscated it. The deputy had evaluated thousands of horses in his career. In the suppression hearing, the deputy and neighbors described the extreme emaciation in detail (“the thinnest horse that I’ve seen that was still on its feet”), including the horse’s apparent near-kidney failure, and their belief that the horse was suffering from a near- death medical emergency. Deputy testified that a traditional warrant may have
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taken 4 to 8 hours, and a telephonic warrant probably would have taken “a few hours.” Deputy did not attempt to obtain any warrant. Instead, in 30 minutes he obtained a trailer to take the horse for vet care. Deputy called defendant (the horse’s owner) to let her know he was taking the horse. The horse’s blood work was “normal” but the vet classified the horse as a 0.5 on a 0-9 body-score scale. The horse survived under a vet’s care. Defendant and the property owner (where the horse was starving) were prosecuted for second-degree animal neglect, see State v Dicke, 258 Or App 678 (2013)). They both moved to suppress everything derived from the search and seizure of the horse, including photos, observations, and their own statements. The trial court denied the motion and a jury convicted them both.
The Court of Appeals affirmed, extending the “emergency aid” exception to include this warrantless seizure of a horse that is near death from starvation. The court characterized this case as both a search and a seizure (although the court concluded that the horse was observed from a lawful vantage point which would make it not a search). Even if the horse was not treatable and needed to be euthanized, the deputy’s “actions” were justified under the emergency aid exception to the warrant requirement of Article I, section 9, of the Oregon Constitution. The Court of Appeals wrote two lengthy holdings with reasoning in this case:
“[T]he societal interest in protecting nonhuman animals from unnecessary pain, injury, trauma, and cruel death can justify—at least in some circumstances--a warrantless search or seizure aimed at preventing or alleviating that suffering. Mirroring Baker's description of the emergency aid exception as closely as possible, given the permissibility of killing and physically altering animals in some contexts, we hold that a warrantless search or seizure is justified when law enforcement officers have an objectively reasonable belief, based on articulable facts, that the search or seizure is necessary to render immediate aid or assistance to animals that have suffered, or which are imminently threatened with suffering, serious physical injury or cruel death, unless that injury or death is being inflicted lawfully.”
“To resolve this case, we need conclude only that an officer who reasonably believes that a horse is near death from starvation, is in imminent danger of suffering organ damage (either directly from starvation or as the result of falling), and needs emergency medical care acts reasonably in entering the pasture and seizing the horse without waiting several hours to obtain a search warrant. We so hold.”
State v Dicke, 258 Or App 678 (Douglas) (Per Curiam) See State v Fessenden, 258 Or App 639 (2013) described immediately above. The Court of Appeals affirmed the trial court’s denial of this defendant’s suppression motion after a deputy seized a near-dead horse on her property, based on the emergency aid exception to the warrant requirement in the state constitution. In this case, the Court of Appeals also affirmed under the Fourth Amendment. The court here did not appear to engage in any independent Fourth Amendment analysis, but instead parenthetically string-cited three state cases that extended the emergency-aid exception to “protection of animals under certain circumstances.” Those states are Indiana, Georgia, and Florida, and this court wrote: “We agree.” The court quoted itself in Fessenden and wrote: “We conclude that the same circumstances justify a warrantless search or seizure under the Fourth Amendment; we also conclude that such circumstances existed in this case.”
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(ii). Destruction of or Damage to Evidence
Basic Article I, section 9, standard. If the warrantless search is to prevent destruction of evidence or escape, the state must prove that the destruction or escape was imminent. State v Matsen/Wilson, 287 Or 581, 587 (1979).
DUII blood draws: state versus federal standards. Extraction of human bodily fluids – such as blood draws - is both a search and a seizure. Weber v Oakridge School Dist., 184 Or App 415, 426 (2002). Under Article I, section 9, the state need not prove that destruction of blood-alcohol evidence is imminent in each case to justify a warrantless search and seizure of it: “the evanescent nature of a suspect’s blood alcohol content is an exigent circumstance that will ordinarily permit a warrantless blood draw,” or a warrantless breath test, when an officer has probable cause to believe a suspect has been drunk driving. State v Machuca, 347 Or 644, 657 (2010) (blood draw); State v Allen, 234 Or App 363 (2010) (breath test); State v McMullen, 250 Or App 208 (2012) (urine test).
In contrast with Oregon, the US Supreme Court held that “the natural metabolization of alcohol in the bloodstream” does not present “a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.” Each case is evaluated individually to determine if a warrant was required under the Fourth Amendment: “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” Missouri v McNeely, 133 S Ct 1552 (2012).
In McNeely, the Court footnoted that in contrast with the automobile exception and searches incident to arrest (which are not evaluated on a case-by-case basis), “the general exigency exception, which asks whether an emergency existed that justified a warrantless search, naturally calls for a case-specific inquiry.” Id. at n 3.
Unidentified Controlled Substances. “Once police have probable cause to believe that evidence of a controlled substance will be in a suspect’s urine * * * the exact identity of the substance is of no consequence in determining whether exigent circumstances exist. That is so because we cannot reasonably expect police officers, even drug recognition experts, to be able to determine which controlled substance, alone or in combination, is causing a person to act in such a way as to indicate intoxication.” State v McMullen, 250 Or App 208 (2012); see also State v Fuller, 252 Or App 245 (2012).
(iii). Escape
If the warrantless search is undertaken to prevent destruction of evidence or escape, the state must prove that the destruction or escape was imminent. State v Matsen/Wilson, 287 Or 581, 587 (1979). That “drugs are usually of a destructible nature, and the fact that suspects are likely to run out the back door when police enter the front door does not ipso facto create exigent circumstances.” Id.
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On escape, see also State v Pellar, 287 Or 255 (1979) (if police have no indication that a suspect is attempting to “make a break” then the exigent circumstances exception is not justified to enter a home to retrieve car keys).
4. Officer Safety
Article I, section 9, does not forbid an officer from taking reasonable steps to protect himself and others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion based on specific and articulable facts that the citizen might pose an immediate threat of serious physical injury to the other officer or to others then present. State v Bates, 304 Or 519, 524 (1987).
Note: Based on the way the Oregon Supreme Court has categorized exceptions to the warrant requirement, there now are several subsets of what the Oregon Supreme Court considers “Officer Safety Exceptions.” Note the overlap with “exigent circumstances.”
(a). Closed Containers
Warrantless searches of closed containers may be justified under several situations:
(i) Inventory (ii) Search incident to arrest for officer safety or to preserve evidence (iii) Abandonment
For officer safety purposes, an officer may search closed containers without a warrant as an incident to a lawful arrest, “so long as the search was reasonable in time and space and was either for evidence of the crime prompting the arrest, to prevent the destruction of evidence, or to protect the arresting officer.” State v Gotham, 109 Or App 646, 649 (1991) rev den 312 Or 677 (1992) (citing State v Caraher, 293 Or 741, 759 (1982)).
(b). Patdowns and Intrusions into Clothes
Terry v Ohio, 392 US 1 (1968) created an exception to the Fourth Amendment’s probable cause requirement. On the lesser standard of reasonable suspicion (specific and articulable facts that the person is involved in criminal activity), police may briefly stop a person for investigatory purposes. And if the police have reasonable suspicion that a person is armed and dangerous, the police may frisk for weapons.
ORS 131.625 permits a peace officer to frisk a stopped person for dangerous or deadly weapons if the officer reasonably suspects that the person is armed and presently dangerous. If during the frisk, the officer feels an object that reasonably feels like a dangerous or deadly weapon, the peace officer may take possession of the weapon. A “frisk” is “an external patting of a person’s outer clothing” under ORS 131.605(2).
An officer who immediately pulls everything out of car occupants’ pockets, rather than patting down their outer clothing, may exceed the scope of ORS 131.605(2). Article I, section 9, “does not forbid an officer to take reasonable steps to protect himself or others if, during the course
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of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury”. State v Rickard, 150 Or App 517 (1997).
"A patdown, because of its limited intrusiveness, is constitutionally permissible if it is based on a reasonable suspicion of a threat to officer safety. But intrusion into a suspect's clothing [such as a boot] requires something more – either probable cause or some greater justification than was present here [where defendant was handcuffed when searched and thus did not have access to anything hidden under her pant leg and inside her boot]." (Emphasis in original). State v Coffer, 236 Or App 173 (2010) (quoting State v Rudder, 347 Or 14, 25 (2009)).
(c). "Protective Sweeps of a House" (now an “Officer Safety Search”)
With a warrantless search, under a statute (ORS 133.693(4)), "the burden of proving by a preponderance of the evidence the validity of the search is on the prosecution." And then under Article I, section 9, "a warrantless search of one's private living quarters is per se unreasonable and unlawful unless the search fits within a recognized exception to the warrant requirement.” State v Guggenmos, 350 Or 243 (2011) (citing State v Paulson, 313 Or 346, 351 (1992)).
A "protective sweep" is not an exception to the warrant requirement; rather a protective sweep can be justified under the Oregon Supreme Court's "standards for an officer safety search." State v Guggenmos, 350 Or 243 (2011) (citing State v Cocke, 334 Or 1 (2002)). The officer's suspicion of an immediate threat of serious physical injury must be based on "specific and articulable facts" under State v Bates, 304 Or 519 (1987); State v Guggenmos, 350 Or 243 (2011).
(d). Use of Force – Fourth Amendment
Under the Fourth Amendment, an officer's use of force must be objectively reasonable in light of the facts and circumstances confronting him (including the severity of the crime at issue), whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Graham v Connor, 490 US 386, 396 (1986).
5. Consent
(a). Generally. A search must be conducted pursuant to a search warrant or must fit within a recognized exception to the warrant requirement under Article I, section 9. Consent is a recognized exception to the warrant requirement. State v Paulson, 313 Or 346, 351 (1992). The state must prove by a preponderance of the evidence that someone with authority to consent voluntarily gave consent for the police to search the person or property and that officials complied with any limits to the scope of consent. State v Weaver, 319 Or 212, 219 (1994). The “consent to a search or seizure is invalid if it is the product of illegal police conduct.” State v Pierce, 226 Or App 336, 350 (2009).
(b). Traffic Stops. "ORS 810.410(3)(e) authorizes police to request consent to search during a lawful traffic stop even with no individualized suspicion and * * *
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neither Article I, section 9, nor the Fourth Amendment prohibits such a request." State v Wood, 188 Or App 89, 93-94 (2003).
(c). Nontraffic Stops. "[O]ther than certain appellate court decisions involving the application of ORS 810.410 to traffic stops (and not applicable to [stops of persons on foot in a public park]), no authority supports the proposition than an officer cannot, during the course of a stop that is supported by reasonable suspicion or probable cause, inquire whether the stopped person is carrying weapons or contraband. State v Simcox, 231 Or App 399, 403 (2009). See State v Magana/Ramirez-Rivera, __ Or App __ (2013) on consent to a home search and State v Fair, 353 Or 588 (2013) on consent to a patdown on a home porch.
(d). Third-Party Consent. “[C]ommon authority to validly consent to a search rests on mutual use of the property by persons generally having joint access or control for most purposes.” The state has the burden of proving by a preponderance of the evidence that the consenting person has the requisite authority. One joint occupant of a premises has assumed the risk that another occupant might permit a search of those premises. And conversely where one co- occupant has limited another co-occupant’s authority, the question under Article I, section 9, is “whether the search is within that limited authority.” Held: defendant’s girlfriend knew she did not have authority to consent to a search of a van, and gave consent only did so when badgered by the officer. State v Kurokawa-Lasciak, 249 Or App 435 (2012).
(e). Consent by Conduct versus Mere Acquiescence. Merely failing to oppose officers’ efforts to search does not establish consent. State v Mast, 250 Or App 605 (2012). The act of opening a vehicle door may reasonably be viewed as giving the officer access to the inside of the vehicle – “as manifesting nonverbal consent for the officer to search it” – under some circumstances. That differs from a consent-search of a premises where an officer knocks on the front door and an occupant opens the door (that is not consent to search a premises under State v Martin, 222 Or App 138 (2008), rev den, 345 Or 690 (2009)). State v Pickle, 253 Or App 235 (2012). Words matter in consent-by-conduct cases. State v Jepson, 254 Or App 2990 (2012); State v Martin, 222 Or App 138, 142 (2008).
State v Briggs, 257 Or App 738 (7/31/13) (Deschutes) (Schuman, Wollheim, Nakamoto) Defendant was a suspected drunk driver whose specific car was parked at a resort parking lot. Officer’s ran the plates and found that the owner had a suspended license for drunk driving. Defendant was close by and matched the description of the suspected drunk driver. Officer shone his flashlight at defendant, asked to talk, and defendant turn, ran to a room, banged on the door, went inside, and closed the door. Two officers knocked on the condo door. A young woman answered, the smell of alcohol was evident, 15-20 people could be seen inside holding red plastic cups. Officer told the woman: “I need to talk to the person that just ran in here.” Officer asked her whose room this was, she said she’d rented it for a party. Officer said: “Well, where’s the gentleman * * * that just ran in?” The woman stepped aside, motioned to the back of the room, and said: “He’s in the back.” Officer entered, located defendant, took him outside, where defendant failed FSTs and blew a .10 at the jail. He moved to suppress on grounds that the officers had no warrant and no exceptions. The state contended that the exceptions of consent or exigent circumstances were met. The trial court denied suppression.
The Court of Appeals affirmed. “When [an officer’s] words do not provide the listener with a reasonable opportunity to choose to consent,
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or when the words leave the listener with the impression that the search is inevitable, absent strong countervailing factors, we have consistently found acquiescence rather than consent.” The difference is in saying, “I’d like to come in” versus “I’m coming in.” Here, the state met its burden of proving that the renter’s consent was voluntary. Although the officer’s statement was “a declaration and not a question or a request, it was not a statement that would, in ‘ordinary social intercourse,’ * * * convey to the listener that ‘she had no choice”. Rather, she had a “clear choice.” She could have stepped aside and let the officer enter, or alternatively, she could have left the officer at the door and gone to tell defendant that the officer was wanted to talk to him. That second option “would be the more typical response from the host of a crowded social occasion when a police officer expresses a desire to have a conversation with a guest.”
Note: This opinion does not identify the renter. The opinion also does not discuss who, if anyone, besides the officer, testified at the suppression hearing.
State v Bertha, 256 Or App 375 (4/24/13) (Multnomah) (Sercombe, Ortega, Brewer) Without a warrant, and without exigent circumstances, three armed officers knocked on defendant’s front door in a mobile home park to investigate a recent robbery. A woman answered the door and an officer asked her, “Are there two guys here?”, then the officer saw a suspect with a plate of food and a kitchen knife, drew his gun, commanded that suspect to drop the food and knife and put his hands up, and yelled for the other suspect by name, DJ. Immediately, the officer heard another voice yell, “Who the F*** is looking for DJ?”, then the officer said, “this is the police,” and entered the home with his gun drawn and with another officer behind him. The woman “got out of the way” by “sliding over against the wall” just before the officers entered the home and as a suspect was moving toward the officers. The woman testified that the officers began “shoving their way in.” No one asked her consent to enter the home. Defendant was arrested, confessed, and was charged with theft. He moved to suppress all evidence taken after the officers entered his home. The trial court concluded, in the passive voice, that “consent to enter the home had been manifested ‘by conduct’”, apparently based on the woman’s act of moving out of the way.
The Court of Appeals reversed: “declining to stand between a loaded gun and a criminal suspect,” as the woman had done, does not establish consent and is “not supported by the record, case law, or common sense.” Her conduct is “an attempt to get out of harm’s way rather than a tacit manifestation of consent” to entry. The most relevant factors: (1) the officer had drawn his gun and was engaged with a suspect behind the woman; (2) a short time frame; and (3) no one asked for the woman’s consent.
(f). Probation Searches. A probationer’s “prior consent to a home visit,” as part of a probation condition, does “not also encompass a more intrusive consent to search the private areas of a residence” under State v Guzman, 164 Or App 90 (1999), rev den 331 Or 191 (2000). State v Brock, 254 Or App 273 (2012).
(g). Suppression as Remedy. “[U]nlawful police conduct * * * provides a basis for suppression of evidence seized during a search performed with the consent of that individual in one of two ways: (1) the unlawful police conduct affected the supposed voluntariness of the individual’s consent; or (2) the consent actually derived from, or was obtained through ‘exploitation’ of the prior violation of the
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individual’s constitutional rights.” State v Ashbaugh, 349 Or 297 (2010) (citing State v Rodriguez, 317 Or 27, 38-40 (1993)); State v Hall, 339 Or 1 (2005).
(h). Comparison to Fourth Amendment. The Oregon Court of Appeals has stated: the “test under the Fourth Amendment for the voluntariness of consent to search is ‘essentially the same’ as the test under Article I, section 9.” State v Brock, 254 Or App 273 (2012) (quoting State v Ry/Guinto, 211 Or App 298, 309, rev den 343 Or 224 (2007) (which had cited Schneckloth v Bustamonte, 412 US 218, 248-49 (1973)). Note: Proceed with caution on the idea of “sameness” of two distinct constitutions; the Oregon Supreme Court could change that.
State v Hemenway, 353 Or 129 (01/10/13) (Tillamook) (Balmer) This case dealt with evidence acquired from a consent search when the consent was derived from an illegal seizure. (Note: this case has been vacated, see State v Hemenway, 353 Or 498 (2013), discussed ante under “Mootness.” Defendant had died a year before this January decision was published, but his death was not known to the parties or the court until after it was published. It was vacated. But seven judges participated in this decision, two of whom are retired justices (not members of the Supreme Court). One current justice (Landau) concurred. One current justice (Walters) dissented). Brewer and Baldwin, JJ, did not participate.).
The court here “disavowed” the “minimal factual nexus” test from State v Hall, 339 Or 7 (2005). The court held here: “when a defendant has established that an illegal stop occurred and challenges the validity of his or her subsequent consent to a search, the state bears the burden of demonstrating that (1) the consent was voluntary; and (2) the consent, even if voluntary, was not the product of police exploitation of the illegal stop. In deciding whether the voluntary consent was a product of police exploitation of the illegal stop, the court must evaluate whether the police took advantage of the illegal aspects of the earlier police behavior to obtain consent or whether the other circumstances were sufficient to purge the taint of the prior illegality on the evidence that the police ultimately obtained.” Also: “a voluntary consent to search that is prompted by an officer’s request can be sufficient to purge the taint of illegal police conduct.” The court reiterated that if a “defendant’s consent was not voluntary, the evidence obtained as a result of that search must be suppressed, regardless of whether any exploitation occurred.”
Walters, J., dissented (with De Muniz joining). She began, and ended, her dissent with this statement: “The majority is bold, and it is deft.” She stated that “by sleight of hand, the majority reverses its holdings” in both State v Hall, 339 Or 7 (2005) and State v Rodgers/Kirkeby, 347 Or 610 (2010). The majority failed “to grapple with the need for stability and predictability that the rule of stare decisis fosters”.
State v Jepson, 254 Or App 290 (12/19/12) (Tillamook) (Schuman, Nakamoto, Wollheim) Detective and a child-welfare worker went to defendant’s residence on a report that defendant’s girlfriend had shot his son with a BB gun. Detective asked if there were any other guns in the house. Girlfriend said there were two. Detective told defendant and girlfriend they were both felons who should not have firearms. Girlfriend said it was ok to possess a gun for her business – a “mobile slaughter service.” Defendant said it had been 8 years since his felony. Detective said she’d check and be back. Detective checked, came back, told him he could not possess guns, read him and his girlfriend Miranda rights, and said “we’re going to have to take the firearms.” A deputy asked “where the guns were” and the girlfriend gave detailed directions to the guns’ location in the bedroom. Deputy entered the house, retrieved the guns, and returned to the porch. No one asked for permission. Neither defendant nor girlfriend voiced any objection. Defendant was charged with being a felon in possession of a firearm, and he moved to suppress the guns. The trial court concluded that the encounter was “mere conversation” and that defendant had consented to the search because he did not object.
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The Court of Appeals reversed: the detective’s statement that “we’re going to have to take the firearms” was not a request for consent, but rather was a statement that did not invite a response other than acquiescence. The deputy’s statement, “where the guns were,” given after the detective’s statement, also was not a question for consent but was instead an additional statement of the officers’ intent to seize the guns. Here “the officers’ statements did not express an understanding that they would not, an could not, search without defendant’s and [girlfriend’s] consent.” There was no consent.
State v Brock, 254 Or App 273 (12/19/12) (Morrow) (Schuman, Nakamoto, Wollheim) Defendant and his female roommate were on probation, with a condition that they consented to home visits and a “home search” if an officer had reasonable grounds to believe that they were violating probation. Probation officer decided to do a home visit after defendant failed 4 urinalyses, was not going to treatment, and an informant reported that the two were manufacturing meth in their home. Officer told them she intended to do a home visit, both responded, “Alright,” and neither objected. Officer drove them to their home in her police car because neither had licenses. Defendant said he had marijuana in his bedroom dresser. At the home nine other law enforcement and probation officers were already there, because the probation officer knew that dangerous dogs, weapons, other felons, likely would be there, and that a “prior consent to a home visit did not also encompass a more intrusive consent to search the private areas of a residence” under State v Guzman, 164 Or App 90 (1999), rev den 331 Or 191 (2000).
On arrival at the home, the front door was locked and defendant’s roommate did not have a key. No one answered the door. (The opinion does not address if defendant had a key). Roommate offered to enter through defendant’s bedroom window. A police officer told her no, that he would go through the window instead, then he did, and opened the front door to the house from inside. At his probation officer’s request, defendant showed her where his marijuana had been, but it was not there when the opened the box in his dresser. Probation officer said she had “reasonable grounds to search” and asked defendant: “Do I have consent to search?” Defendant said “yes.” The probation officer asked defendant: “Do you give us consent to go ahead and search your residence?” Defendant said: “Yes, you can search. Everything in the home is mind.” An officer searched, found defendant’s girlfriend hiding in the attic, and found the drugs she’d hidden (she said they were defendant’s gun, drugs, etc). Defendant moved to suppress. The trial court concluded that the roommate lacked authority to consent to entering defendant’s bedroom but suppression was not necessary because defendant voluntarily consented and the consent was not tainted by prior illegality.
The Court of Appeals affirmed: “Under Article I, section 9, a probation condition requiring a probationer to consent to a home visit is not the same as a consent to search; the latter is more intrusive and is conditioned on the existence of ‘reasonable grounds to believe that evidence of a violation will be found.’ ORS 137.540(h) and (i). Further a consent to search is not self-executing; if a probationer refuses to consent, the officer has no authority under the probation condition to search, although the probationer may be subject to a sanction for violating the condition.” To determine voluntariness of consent in probation-condition situations, the court considers “whether the probationer was effectively denied a reasonable opportunity to refuse the search or whether the environment was sufficiently coercive to preclude him from doing so.”
In this case, although 10 officers were present in the house, the court listed these facts as relevant to determine if the consent was “voluntary” as opposed to “mere acquiescence to a thinly veiled demand.” (1) Defendant gave consent to search twice. (2) Defendant had had the same probation officer for 2 years. (3) Defendant was familiar with the terms of his probation (4) Defendant had experienced past home visits during his probation. (5) Defendant was calm and collected, no weapons were displayed, “the situation was not hostile.” (6) Only one of the five probation officers was armed and four of the law enforcement officers waited across the road. (7) There is no evidence of threats or
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promises. Thus “based on the totality of the circumstances” the court concluded that defendant’s consent was “an act of free will, not the product of coercion; thus it was voluntary under Article I, section 9.”
Also defendant failed to establish that, had the alleged illegality not occurred (entering the window), he would not have given the probation officer consent to search when she asked a few seconds later. The probation officer could have asked for consent to search while standing outside the home, defendant already had consented to a home visit, and one officer was prepared to kick in the door. Defendant did not establish any nexus between the unlawful entry and his consent.
State v Marshall, 254 Or App 419 (01/09/13) (Umatilla) (Haselton, Ortega, De Muniz) Defendant lived in a converted bus and managed a Umatilla trailer park. Officers had a warrant to search defendant’s bus and his shop for meth and stolen jewelry. Eleven officers arrived to execute that search warrant. Defendant was arrested and admitted that he had meth in his bus. During the search of his bus and shop, officers discovered more meth and valuable, reportedly stolen items. Officers found two bills of sale for a 1975 Prowler RV that was “in another space on the other side of the same RV park – and which had not been included within the scope of the search warrant.”
Defendant said that the Prowler RV belonged to someone else and it was filled with stolen property and a gun, but emphasized that the Prowler RV was not his. Officer asked defendant for “consent to search.” Defendant again said he did not own the Prowler RV and negotiated a written consent that the officer confirmed in his own writing and own initials: “[Defendant] is not responsible for the property stored inside the RV Trailer! MSW.” Defendant signed that form. Officers searched the Prowler RV and found valuable items, including a shotgun; some had been reported stolen. Defendant was charged with possession and delivery of meth, being a felon in possession of a firearm, and first-degree theft by receiving. He moved to dismiss the evidence in the Prowler RV “because it was based on an improper inducement,” specifically that he had been promised immunity from prosecution per his written agreement. At the hearing, defendant testified that but for that “stipulation and agreement,” he would not have consented. The trial court denied suppression. He appealed from the judgment finding him guilty of being a felon in possession and first-degree theft.
The Court of Appeals reversed: the officer’s act of obtaining consent “so tainted that consent as to compel suppression.” Voluntariness is determined under the totality of facts. The state must prove consent by a preponderance of the evidence. Appellate courts are “bound by the trial court’s findings of historical fact,” but they “must assess independently the ultimate legal determination of voluntariness.”
There are four categories of consent cases. Those involving: (1) voluntariness; (2) authority; (3) scope; and (4) vindication of rights violated by earlier police misconduct. Three of those four categories (except “authority”) involve autonomous choice.
The Court of Appeals applied Article I, section 12, self-incrimination reasoning to this Article I, section 9 consent case, to conclude that “but for” the officer’s promise that defendant would not be held responsible for the contents of the Prowler RV, “defendant would never have consented to the search of the RV. That promise proved to be false, as defendant was charged with evidence discovered during that search. Under those circumstances, defendant’s capacity for self-determination was critically impaired,” abrogating his purported consent. “The warrantless search of the RV did not fall within the consent exception.”
The state also argued “inevitable discovery,” which required the state to establish by a preponderance of the evidence: (1) that certain proper and predictable investigatory procedures would have been utilized in the instant case, and (2) that those procedures
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inevitably would have resulted in the discovery of the evidence in question. (Quoting State v Miller, 300 Or 203, 226 (1985), cert denied, 475 US 1141 (1986)). That issue was not preserved. The state then argued “harmless error” but the court could not conclude that there is “little likelihood” that the admission of the items found in the Prowler RV had affected the verdict.
State v Magana/Ramirez-Rivera, __ Or App __ (Clackamas) (Nakamoto, Schuman, Wollheim) (6/19/13) The trial court erred in denying a motion to suppress evidence derived from a defendant’s home, based on his consent. The state has the burden of proving that consent is voluntary. “Persons have a heightened privacy interest in their homes and the very purpose of Article I, section 9, was to protect a person’s home from governmental intrusions.” (Quoting State v Fair, 353 Or 588 (2013) which upheld a consent to search as voluntary, although done on a battered woman’s home porch while her abuser was yelling at her and police had ordered her out of her home to the porch). In this case the consent was not voluntary because (1) narcotics detectives intended to investigate drug activity when they went to defendant’s home for a “knock and talk,” (2) they did not try to get a search warrant, (3) five officers were present with a canine, (4) defendant cracked open the door then slammed it shut but detectives kept knocking until defendant came out, (5) when he did come out, armed detectives with bulletproof vests immediately ordered him to put his hands up and patted him down and did not tell him why they were there, (6) but the detectives instead asked to search the apartment, (7) no Miranda warnings were given and no consent-to-search information was given in Spanish or English. This happened over just a few minutes. This was coercive not consensual.
6. Inventories
An inventory is a common type of administrative search. "An 'administrative' search is one conducted 'for a purpose other than the enforcement of laws by means of criminal sanctions.' State v Anderson, 304 Or 139, 141 (1987). * * * If those intended consequences are criminal prosecution, then the search is not administrative in nature. Id. at 104-05." Weber v Oakridge School Dist., 184 Or App 415, 433-34 (2002).
The “inventory” situation most commonly arises when police impound an auto or when the person is booked into custody. State v Taylor, 250 Or App 90 (2012). Police departments may adopt policies that authorize officers to itemize the personal property to protect the owner’s property, to reduce the likelihood of false claims against the police, and to protect the safety of the officers. State v Atkinson, 298 Or 1, 7 (1984). “The purpose of the inventory is not to discover evidence of a crime. Rather, an inventory serves civil purposes and is one type of administrative search.” State v Connally, 339 Or 583, 587 (2005).
Under Article I, section 9, police may inventory the contents of a lawfully impounded vehicle or the personal effects of a person being taken into custody if a valid statute, ordinance, or policy authorizes them to do so, and the inventory is designed and systematically administered to involve no exercise of discretion by the officer conducting the inventory. State v Atkinson, 298 Or 1 (1984). The state has the burden of proving the lawfulness of an inventory. State v Tucker, 330 Or 85, 89 (2000).
"Generally, police officers cannot open closed, opaque containers to inventory their contents," but such closed containers may be opened if the containers are "designed for carrying money or valuables, if the applicable inventory policy so directs." State v Guerrero, 214 Or App 14, 19 (2007). The dispositive inquiry is whether the container "was designed to contain valuables and not whether such
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items were often used to hold valuables." The "officer's belief that the container might contain valuables is inapposite to whether it was designed to do so." State v Keady, 236 Or App 530 (2010) (emphasis in original); State v Swanson, 187 Or App 477, 480 (2003).
An inventory search is valid under the Fourth Amendment if conducted according to "standard police procedures." South Dakota v Opperman, 428 US 364, 372 (1976)).
State v Lovaina-Burmudez, 257 Or App 1 (6/05/13) (Multnomah) (Haselton, Armstrong, Duncan) An officer shot defendant who was fleeing after committing a robbery. He then was arrested. En route to OHSU, in an ambulance, paramedics removed defendant’s shirt, shoes, and socks. At OHSU, an officer took that clothing from the ambulance. The ER staff then gave the officer more of defendant’s clothing and a bullet fragment that the ER doctor had removed from defendant’s body. Officer gave all of that evidence to the forensic division of the police department, where it was photographed, cash in the pockets was counted, and the soles of defendant’s shoes were photographed.
Later those photographs were compared with imprints from the recent robbery. The officer testified that he treated all of those items seized from defendant as evidence to be maintained for prosecution, rather than personal property to be inventoried and secured for defendant. Later the officer described defendant’s shoes to an investigator who linked the shoes to the robbery.
Six months after defendant’s arrest, an officer applied for and obtained a search warrant authorizing him to seize and search defendant’s clothing and shoes that were already in the police department’s possession. The affidavit described how the officer compared photos of defendant’s shoes with footprints at the robbery site. Defendant moved to suppress his clothes, shoes, cash, and the photos of his shoes, because although the officers may have had reasonable suspicion that he committed that robbery, they did not have probable cause that he did. A warrantless search incident to arrest must be supported by probable cause. Defendant also challenged the inventory policy and scope. The trial court denied suppression.
The Court of Appeals reversed. See “Search Incident to Arrest,” ante, for discussion of that warrant exception. As to the inventory search: the officer’s initial securing of defendant’s clothing was lawful because it was undertaken pursuant to a valid inventory policy. But the officer’s “subsequent retention and processing of defendant’s clothing and shoes as evidence, including photographing defendant’s shoes (including their soles) exceeded the scope of a lawful inventory and, hence, constituted an unlawful seizure and search” and the clothes and shoes would not inevitably have been lawfully subject to seizure and search under the later-obtained search warrant.
The Portland City Code provides for inventory of people in police custody. Defendant was in police custody while in the ambulance. The officer acted unlawfully by his “subsequent processing of those items as evidence of a crime, including photographing the shoes, and retaining those items as evidence.” (Emphasis by court). Nothing in the inventory policy at issue authorizes such processing of a person’s property. Moreover, the purpose of a lawful inventory is to (1) protect the property; (2) reduce false claims against the police; (3) protect against injury from impounded but uninventoried property. Photographing the shoes exceeded the scope of the inventory.
The Court of Appeals rejected the state’s “inevitable discovery” argument, and its harmless-error rationale.
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7. Other Administrative Searches
"An 'administrative' search is one conducted 'for a purpose other than the enforcement of laws by means of criminal sanctions.' State v Anderson, 304 Or 139, 141 (1987). * * * If those intended consequences are criminal prosecution, then the search is not administrative in nature. Id. at 104-05." Weber v Oakridge School Dist., 184 Or App 415, 433-34 (2002).
“Typical examples include health and safety inspections and certain inventory searches of lawfully seized automobiles” and schools’ student search policies if they are noncriminal and otherwise meet administrative-search requirements. State v B.A.H., 245 Or App 203, 206 (2011).
One requisite element of the administrative search exception is that there must be “a source of legal authority permitting the administrative search,” per State v Atkinson, 298 Or 1 (1984) and Nelson v Lane County, 304 Or 97 (1987). State v Mast, 250 Or App 605 (2012)
State v Atkinson held that "an administrative search conducted without individualized suspicion of wrongdoing could be valid if it were permitted by a 'source of the authority,' that is, a law or ordinance providing sufficient indications of the purposes and limits of executive authority, and if it were carried out pursuant to a 'properly authorized administrative program, designed and systematically administered' to control the discretion of non-supervisory officers." Nelson v Lane County, 304 Or 97, 104-05 (1987) (Carson, J, for plurality) (held: police sobriety checkpoints were not conducted under a recognized source of authority, thus they violated Article I, section 9).
“In general, a search qualifies for the exception if it is conducted for a purpose other than law enforcement * * * pursuant to a policy that is authorized by a politically accountable lawmaking body * * * if the policy eliminates the discretion of those responsible for conducting the search.” State v B.A.H., 245 Or App 205 (2011) (school search); see also State v Spring, 201 Or App 367, 373 (2005) (DNA testing by swabbing a cheek “is a reasonable administrative search” under Article I, section 9, because it was to establish paternity, was conducted per a statute that eliminated discretion in that every person denying paternity must provide a DNA sample).
A search conducted pursuant to a "statutorily authorized administrative program * * * may justify a search without a warrant and without any individualized suspicion at all." Juv Dep't of Clackamas County v M.A.D., 348 Or 381, 389 (2010) (citing State v Atkinson, 298 Or 1, 8-10 (1984)).
8. Abandonment
Abandoning something does not necessarily allow it to be searched or seized as an exception to the warrant requirement. Rather, abandonment may relinquish a constitutionally protected privacy interest in the item, so it is not a “search” or a “seizure.”
(a). Papers or Effects
If a person gives up all rights to control the disposition of property, that person also gives up his privacy interest in the property in the same way that he would if the property had been abandoned. State v Howard/Dawson, 342 Or 635, 642-43 (2007).
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(b). Houses
Under the Fourth Amendment, several factors should be considered to determine if a house has been abandoned, such as after a fire: “the type of property, the amount of fire damage, the prior and continued use of the premises, and, in some cases, the owner’s efforts to secure [the home] against intruders.” Michigan v Clifford, 464 US 287, 292 (1984).
See also United States v Harrison, 689 F3d 301 (3d Cir 2012): “Before the government may cross the threshold of a home without a warrant [under the abandonment theory in the Fourth Amendment], there must be clear, unequivocal and unmistakable evidence that the property has been abandoned. Only then will such a search be permitted.” The police need not be factually correct (that the house was abandoned) but they must be reasonable in so believing. (Note: A mistake of law, even if reasonable, is not permitted in the Third Circuit, although this court may be incorrect in so stating, given the good-faith exception to the exclusionary rule). It is unreasonable to assume that a poorly maintained home is abandoned just because it is a dump: “There simply is no ‘trashy house exception’ to the warrant requirement.” However, when the police know more – the house was a “drug den,” there was nothing in the house except one mattress, it was awash in urine and crack bags, human feces filled the bathtub and toilets, there was no running water and no electricity, squatters came and went, all over the course of several summer month -- that together is sufficient to form probative evidence of abandonment for Fourth Amendment purposes.
9. Mobile Automobiles
(a). Article I, section 9
What it is:
“The automobile exception is ‘a subset of the exigent circumstances exception’ under which the ‘mobility of a vehicle, by itself, creates an exigency.’ State v Meharry, 342 Or 173, 177 (2006).” State v Tovar, __ Or App __ (2013).
“The automobile exception is one of ‘the few specifically established and carefully delineated exceptions to the warrant requirement’ of Article I, section 9.” State v Kurokawa-Lasciak, 351 Or 179 (2011). Automobiles may be searched and seized without a warrant, under Article I, section 9, if the automobile is mobile when police stop it and they have probable cause to believe that the auto contains crime evidence. State v Brown, 301 Or 268, 274 (1986) (creating the automobile exception as a subset of the exigent circumstances exception).
The test for whether the police had probable cause to conduct a search under the mobile auto exception is “whether a magistrate could issue a constitutionally sound search warrant based on the probable cause articulated by the officers,” under State v Brown, 301 Or 268, 277 (1986). State v Tovar, __ Or App __ (2013).
A vehicle remains “mobile” even if blocked by a police car when the driver is under arrest because such a vehicle could be moved after officers relinquish control of it. State v Meharry, 342 Or 173, 181 (2006).
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What it isn’t:
An auto is not mobile if it is “parked, immobile, and unoccupied” when police first encounter it. State v Kock, 302 Or 29 (1986). “Operability” is not the test for the mobile automobile exception. State v Kurokawa-Lasciak, 351 Or 179 (2011) (a vehicle is not “mobile” just because it is “operable”).
The mobile auto exception is not met if the officer’s encounter with the moving auto was not “in connection with a crime” but instead the officer was “merely randomly ‘running’ license plates.” State v Groom, 249 Or App 118 (2012).
Its Scope:
Under the mobile auto exception, “the police may search any area of the vehicle or any container within the vehicle in which they have probable cause to believe that [] contraband or crime evidence may be found.” State v Tovar, __ Or App __ (2013) (quoting State v Smalley, 233 Or App 263, 267, rev den, 348 Or 415 (2010)). Probable cause to believe that either “contraband or crime evidence” is contained in a mobile auto is sufficient to justify a mobile auto search. Smalley, 233 Or App at 270 (search of backpack in auto was lawful because officer had PC that defendant possessed < 1 oz. marijuana, which is contraband) (quoting State v Brown, 301 Or 268, 277 (1986)).
A lawful auto search may become unlawful if it is unreasonable in scope. The scope is defined by “the object of the search and the places in which there is probable cause to believe that it may be found.” State v Tovar, __ Or App __ (2013) (quoting State v Brown, 301 Or 268, 279 (1986) (Brown quoted United States v Ross, 456 US 798, 824 (1982)).
The mobile auto exception has not been extended to “a search of a defendant’s person while the defendant is standing outside the car.” State v Jones, __ Or App __ (2012) (citing State v Brown, 301 Or 268 (1986) and State v Foster, 350 Or 161 (2011)).
The mobile auto exception has been extended to containers attached to a mobile auto. State v Finlay, 257 Or App 581 (2013) (trailer).
(b). Fourth Amendment
"That mobility requirement is specific to the Oregon Constitution." Under the Fourth Amendment, the police may search a stationary vehicle solely on the basis of probable cause. State v Meharry, 342 Or 173, 178 n 1 (2006) (so noting); California v Carney, 471 US 386, 392-93 (1985) (a stationary vehicle, not on a residential property, that is capable of being used on a roadway, is “obviously readily mobile by the turn of an ignition key” and there is a “reduced expectation of privacy” on a roadway as opposed to at a “fixed dwelling” thus justifying a search under the federal constitution).
(c). Detection Dogs and Probable Cause
State v Farmer, __ Or App __ (10/02/13) (Union) (Duncan, Armstrong, Brewer) Defendant was pulled over for driving with too-tinted windows and for lacking an illuminated plate. The officer ran defendant’s criminal history, which came back as having a prior drug conviction. Ten to twelve minutes into the stop,
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an officer spoke by phone to other officers and learned that defendant was a pot and meth dealer. Defendant refused to consent to a search of his car. Officer called a K-9 officer to bring his dog, Mauri. The K-9 team arrived 15-20 minutes later, and Mauri alerted at the driver’s side door. Officers searched the car and found pot and meth. Defendant moved to suppress, arguing that the K-9 team was unreliable therefore the officers did not have probable cause to search.
Everyone agreed that the troopers did not have probable cause before Mauri’s alert. The state’s only evidence about the reliability of Mauri’s alert was her owner’s testimony. The owner did not train her; a private entity trained her. He provided “no information about how the training ‘builds accuracy and reliability’” in the dog-handler team. After the owner acquired Mauri, he then attended his own training with her, but he “did not provide any details about that training or the requirements, if any, that he and Mauri had to meet to complete it successfully.” He did not describe what he learned about her reliability, or what he was taught to maximize her reliability or accuracy. He testified that he and Mauri were certified as a team but he did not testify about the test requirements for certification. The owner testified that after they were certified, he continued training her but he did not describe that training. He testified that she has 100% accuracy in the field, although the team was certified in February 2009 and this traffic stop occurred in February 2010. He did not testify how many times she alerted in that time frame. The trial court denied defendant’s motion to suppress the results of the search.
The Court of Appeals reversed and remanded, concluding that the evidence “fails to establish that Mauri’s alert was reliable enough to even contribute to a conclusion that there was probable cause to search defendant’s car.” The difficulty for the state, the court wrote, “is that the record does not establish Mauri’s reliability to any degree.” The court compared two 2011 K-9 search cases, State v Foster, 350 Or 161 (2011) and State v Helzer, 350 Or 153 (2011), which held that an alert by a properly trained and reliable drug-detection dog can provide probable cause to search, but that the particular alert by the particular dog must be determined on a case-by-case basis. The court here wrote:
“Together, Foster and Helzer establish several principles relevant to this case: (1) whether a particular alert by a particular drug-detection dog is reliable must be determined on a case-by-case basis; (2) the factors relevant to that determination include the dog-handler team’s training, testing, and certification; but (3) the simple fact that a team has been trained, tested, and certified is not enough to establish that an alert is reliable; rather, the type of training, testing, and certification matters. That is because, as Foster and Helzer illustrate, a dog- handler team must be trained in a manner that ensures that the dog alerts in response to drug odors, as opposed to, for example, a desire for a reward, non- drug odors, or handler cues or physical or scent trails left by the person who hid the drugs. Similarly, a dog-handler team must be tested in a controlled environment, where precautions against human cuing have been taken and the dog’s accuracy can be assessed because the persons conducting the test know where the dog should alert and where it should not.
“Foster and Helzer also establish that the value of a dog’s field records may depend on whether their significance is sufficiently developed through testimony at the hearing or is self-evident * * * and that, in all events, the value of field records is limited because it is unlikely that either false positives or false negatives will be detected in the field.” (internal quotes omitted).
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(d). Containers
State v Pirtle, 255 Or App 195 (02/13/13) (Coos) (Haselton, Ortega, Sercombe) Officer went to an apartment complex to investigate a fight between a felon (defendant) and a woman. The officer arrived and found another officer talking with defendant and his mother. The mother’s pickup truck was parked in front of the woman (the victim’s) apartment. Officer spoke with the victim in her apartment; she said defendant had a gun in his backpack and he had that gun earlier that day in her apartment. It was not in her apartment at the time. Officer then asked defendant’s mother – who was in the back of the patrol car – for consent to search her pickup for the gun because the officer suspected it was in the pickup. But someone had moved the pickup had been moved about 100 yards away. An officer took defendant into custody and walked him to the patrol car. Meanwhile, someone was driving the pickup and parked it by the patrol car. The officer who saw that “did not realize that that was the involved vehicle” suspected of containing the gun. Defendant’s mother gave consent to search the pickup, then she rescinded consent, but officers searched it and found defendant’s Masterpiece 9mm pistol. The trial court denied his motion to suppress.
The Court of Appeals reversed. The state failed to produce evidence that when the police encountered the pickup, it was “in connection with a crime,” which is a “temporal” element of the mobile auto exception. Encountering a vehicle “in connection with a crime” is “absolute and unambiguous” under Kurokawa- Lasciak’s mobile auto exception The evidence here does not disclose when, relative to the officer’s observation of the pickup in motion, the officer first understood that the pickup could be connected to a criminal investigation.
Note: The issue here was whether Article I, section 9, had been violated. The court cited no Article I, section 9, case law but instead cited ORS 133.693(4) for the requirement that the state bears the burden of producing evidence and persuading the court that an exception to the warrant applies.
State v Tovar, __ Or App __ (4/03/13) (Jackson) (Armstrong, Haselton, Duncan) Held: The trial court correctly refused to suppress a backpack and contents because the mobile auto exception justified the search of both the vehicle and backpack. But the trial court should have suppressed statements about the backpack because those were made during an unlawful seizure.
An officer observed a vehicle swerving and speeding in its lane. Officer stopped the vehicle, smelled a moderate odor of marijuana, and saw defendant – the passenger – acting lethargically. Officer saw no smoke or other visible evidence of marijuana use or its disposal before he stopped the car, or during his encounter with its occupants. Defendant had no ID but provided his name and birthdate. Officer told driver and defendant to “stay put” while he ran warrant checks. Officer returned to the car, asked if there was any marijuana in the car, and both occupants said “no,” although defendant seemed nervous. Officer asked for consent to search, driver asked if she had to consent, officer said no, then driver said “I guess.” Officer asked driver to step out. Another officer arrived and watched defendant, then instructed him to step out for the vehicle search. Defendant did, and “although nothing about defendant raised his suspicions,” the officer patted down defendant for weapons, which the officer said was “just something that I do if somebody is going to step out of a vehicle.” There were no weapons on defendant but officer felt a small canister in defendant’s coat pocket. The other officer walked over, looked into defendant’s pocket, and saw a clear canister that looked like it contained marijuana.
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Defendant said it was not marijuana, but “notwithstanding defendant’s denial,” the officer “seized the canister .” A backpack was in the car, defendant said it was his, and he denied that it contained marijuana, but when asked how many pounds, defendant said, “I don’t know about pounds.” Twice defendant denied consent to search the backpack, as the officer became “more stern.” Officer said he would apply for a warrant if defendant didn’t consent. Defendant gave consent. About a pound of marijuana was inside. On defendant’s motion to suppress, the trial court held that defendant was seized when officer took his ID, and the pat down of defendant was unlawful, and there was no link between the pat down and backpack search. The trial court concluded that the backpack was justified under State v Smalley, 233 Or App 263, rev den 348 Or 415 (2010). The trial court suppressed the evidence on defendant’s person from the patdown, but did not suppress his statements or the backpack.
The Court of Appeals reversed. The trial court properly denied suppression of the backpack but erred in not suppressing defendant’s statements about the backpack and its ownership. First, the issue is whether and when defendant was unlawfully seized. Defendant argued that it was when officer ordered him to “stay put.” The court did not decide that point, because the state conceded that defendant was unlawfully seized when he was ordered out of the car and subjected to a pat down search. Defendant’s statements about the marijuana were made during that unlawful pat down, and his statements “must be suppressed if we are to restore him to the same position as if the government’s officers had stayed within the law.”
Second, the court concluded that nothing in the facts permits an officer to have probable cause that defendant’s backpack was the source of the odor, or that the backpack even existed, when it encountered the driver and defendant. However, if the officer had sought a search warrant at that time, a magistrate could have issued a valid search warrant allowing for a search of the vehicle and its contents, based on probable cause to believe that some amount of marijuana was in the vehicle,” under State v Bennett, 301 Or 299, 304 (1986) and State v Cromwell, 109 Or App 654, 658 (1991). The test for whether the police had probable cause to conduct a search under the mobile auto exception is “whether a magistrate could issue a constitutionally sound search warrant based on the probable cause articulated by the officers,” under State v Brown, 301 Or 268, 277 (1986).
The Court of Appeals reiterated State v Smalley, 233 Or App 263 rev den, 348 Or 415 (2010): An officer has probable cause to believe that a lawfully stopped vehicle was capable of movement, and contained contraband, therefore a backpack in the auto was lawfully searched under the mobile auto exception. The officer does not need to have probable cause to believe that each container that the officer searches within the auto contains contraband. First, the search must be justified by the mobile auto exception, then second, the search must be reasonable in scope.
State v Finlay, 257 Or App 581 (7/17/13) (Marion) (Sercombe, Ortega, Haselton) Police received a tip that defendant was selling meth and that he drove a Ford Ranger pickup with a his landscaping trailer attached. Police set up two controlled buys in which defendant agreed to sell meth to the informant. At the first buy, defendant drove the pickup to a store without the trailer and his passenger sold meth to the informant. The police officer did not make the arrest at that point because she wanted to continue her investigation. The second buy occurred when defendant agreed to meet the informant at a restaurant. The officer observed defendant pull up in his pickup which was pulling his fully enclosed trailer. The Court of Appeals’ opinion does not state if defendant parked the truck or if it was running, but defendant “got out of his truck.” The Court of
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Appeals wrote that after going into and out of the restaurant, defendant “was arrested approximately 100 feet from his truck. * * * Defendant was searched, but no methamphetamine was found.” Two passengers had been arrested as well. An officer believed she had probable cause to search his pickup and trailer for meth, and 30-40 minutes after his arrest, officers searched and found meth in the trailer. Defendant moved to suppress. The trial court granted the motion to suppress. The state appealed.
The Court of Appeals reversed: under State v Kurokawa-Lasciak, 351 Or 179 (2011), “the vehicle that the police search must be mobile at the time that the police encounter it in connection with a crime” and under State v Meharry, 342 Or 173 (2006), police “encounter” a vehicle when defendant is observed driving the vehicle. Here, the officer observed defendant driving the truck into the restaurant parking lot, and the encounter occurred in connection with a crime, therefore it was “mobile.” This was not a roadside stop but that is “immaterial” because the exigency still existed and two passengers were arrested.
The Court of Appeals also concluded that the trailer – while not an auto itself – is still a searchable container despite being attached to the vehicle rather than inside it.
The Court of Appeals also concluded that the mobile auto exception permits a warrantless search when the auto is mobile and “police have probable cause to believe that the automobile contains contraband or evidence of a crime.” In other words, the police were not “required to have probable cause to believe that there was contraband in the trailer when police encountered the truck” or “before officers arrested defendant and searched him.”
10. Public Schools
Note: The right to attend public school is not a fundamental right under the US Constitution). San Antonia Independent School District v Rodriguez, 411 US 1, 33-37 (1973).
(a). Random Student Searches
(i). Oregon Constitution
Random urine testing in public schools for drug evidence is a search and seizure under the state constitution, even if it is obtained and used for noncriminal purposes. Weber v Oakridge School District, 184 Or App 415 (2002) (the primary purposes of the district's drug-testing policy are noncriminal. They are to deter student use of alcohol and illicit drugs, to encourage participation in treatment programs, and to avoid injuries to student-athletes.”). See “Administrative Searches” for requisite criteria that, when met, allow a search to be conducted in a school under a “statutorily authorized administrative program” that “may justify a search without a warrant and without any individualized suspicion at all.” Clackamas County v M.A.D., 348 Or 381, 389 (2010) (so noting); State v Atkinson, 298 Or 1, 8-10 (1984).
Contrast with Clackamas County v M.A.D., 348 Or 381, 389 (2010), where the school’s search was for a criminal purpose.
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(ii). Fourth Amendment “Special Needs”
"Special needs" inhere in the public school context. "Fourth Amendment rights * * * are different in public schools than elsewhere; the [Fourth Amendment] 'reasonableness' inquiry cannot disregard the schools' custodial and tutelary responsibility for children." Vernonia School Dist. v Acton, 515 US 646, 656 (1995). Suspicionless drug testing of student athletes does not violate the Fourth Amendment – students' privacy interest is limited where the state is responsible for maintaining discipline. Id.
A school district's policy, requiring all middle and high school students to consent to urinalysis testing for drugs to participate in any extracurricular activity is a reasonable means of furthering the school district's important interest in preventing an deterring drug use in school children and does not violate the Fourth Amendment. Board of Education of Pottawatomie County v Earls, 536 US 822 (2002). Drug testing of students need not "presumptively be based upon an individualized reasonable suspicion of wrongdoing . * * * The Fourth Amendment does not require a finding of individualized suspicion." Earls, 536 US at 837.
(b). Particular Student Searches
(i). Fourth Amendment
"[S]chool officials need not obtain a warrant before searching a student who is under their authority." New Jersey v T.L.O., 469 US 325, 340 (1985). "Under ordinary circumstances, a search of a student by a teacher or other school official will be 'justified at its inception' when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." Id. at 341-42.
"The Fourth Amendment generally requires searches to be conducted pursuant to probable cause, or at least 'some quantum of individualized suspicion.' Skinner v Ry Labor Executives' Ass'n, 489 US 602, 624 (1989)." In certain limited circumstances, commonly referred to as "special needs" cases, the warrant and probable cause requirements are impracticable. Other examples of "special needs" cases are public schools, see Vernonia Sch Dist v Acton, 515 US 646, 656 (1995) and Pottawatomie County v Earls, 536 US 822, 829 (2002).
(ii). Article I, section 9
"[W]hen school officials at a public high school have a reasonable suspicion, based on specific and articulable facts, that an individual student possesses illegal drugs on school grounds, they may respond to the immediate risk of harm created by the student's possession of the drugs by searching the student without first obtaining a warrant." Clackamas County v M.A.D., 348 Or 381 (2010). "For the same reasons that we have applied the less exacting 'reasonable suspicion' standard,
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rather than the probable cause standard, to determine whether a limited officer-safety search is permissible under Article I, section 9, we conclude that the reasonable suspicion standard should apply to a search * * * for illegal drugs that is conducted on school property by school officials acting in their official capacity." Id.
State v A.J.C., 254 Or App 717 (01/30/13) (Washington) (Brewer pro tem, Armstrong, Duncan) Youth (the minor defendant) called and then sent a text message to another student, telling her that he was going to shoot her in school the next day. That student reported the threat to a school counselor, who reported to the principal. The principal had not personally met that threatened student but he had no indications of prior problems with her. The principal was personally familiar with the youth and his family and he knew that youth had “disciplinary problems.” The principal did not think that the youth would shoot another student but testified that it was not an option for him to disbelieve it without finding out information. Principal called youth’s mother and a sheriff. Principal searched the locker and found no gun. After the sheriff and mother arrived, the principal went with them to youth’s classroom, where he had a backpack under his desk within reach. Principal brought youth and the backpack to his office. Another friend of youth’s family was there. Youth denied making the threat to the other student. Upon questioning, youth admitted that he had some sort of relationship with her. After 5-6 minutes of talking, principal said he needed to check the backpack. Youth did not object or consent. Principal opened the backpack, which had several compartments. The second compartment he opened contained several rounds of .45 caliber handgun ammunition. Another compartment contained a .45 caliber semi-automatic handgun wrapped in a bandana. The sheriff determined that hit was not loaded, then handcuffed youth and read him his Miranda rights. He moved to suppress the gun and ammo. The trial court denied the motion. In a juvenile delinquency proceeding, defendant was found guilty of 4 crimes: possession of a gun in a public building, unlawful possession of a gun, unlawful use of a weapon, and menacing.
The Court of Appeals affirmed under State v M.A.D., 348 Or 381, 393 (2010). The issue is whether before searching the backpack, the principal reasonably suspected that the backpack contained a weapon that posed an immediate threat of harm to the other student(s). The facts (recited above) in totality were sufficient for the principal to reasonably suspect that youth had brought a gun to school to harm student(s). Further, the scope of the “school-safety search” is determined by “what is reasonable under the perceived circumstances” which is “the nature of the safety threat” per M.A.D. The youth contended that the safety concern had dissipated when the principal seized the backpack, citing an officer- safety search case. The court here quoted M.A.D. that had stated “we do not mean to suggest that the officer-safety doctrine and a school official’s search of a student * * * are identical in all respects.” Moreover, the test is what is reasonable, rather than “fact matching.” The principal here did not know where, if anywhere, a gun was concealed. And the principal would have to either return the backpack or open it. In light of the nature of the safety threat, the principal’s decision to search the backpack was reasonable.
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11. Jails and Juvenile Detention
(a). Fourth Amendment
i. Adults
Maryland v King, 569 US __, 133 S Ct 1958 (6/03/13) held that taking and analyzing DNA at a jail from an arrested person’s cheek as a search incident to arrest for a “dangerous” or “serious offense,” supported by probable cause, is a legitimate police booking procedure that is reasonable under the Fourth Amendment, like fingerprinting and photographing. Per the Court, such searches are similar to and different from “special needs” cases. The Court recited special needs cases because “the search involves no discretion” by officers. But it is not a special needs case, and differs from special needs cases, because special needs cases have no individualized suspicion. The buccal swab at issue in this Maryland statute occurs upon arrest for serious offenses based on probable cause.
Bell v Wolfish, 441 US 520 (1979) held that a mandatory, routine strip search policy applied to prisoners after every contact visit with a person from outside the institution, without individualized suspicion, was facially constitutional. Where "the scope, manner, and justification for San Francisco's strip search policy was not meaningfully different from the scope, manner, and justification for the strip search policy in Bell," Ninth Circuit concluded that a policy requiring strip searching (including visual body-cavity searching) every arrestee without individualized reasonable suspicion as part of the jail booking process, provided the searches are no more intrusive than those in Bell and are not conducted in an abusive manner, does not violate the arrestees' rights. Bull v City and County of San Francisco, 595 F3d 964 (9th Cir 2010).
Jails may have search policies that require detainees, before being held with the general jail population, to undergo a strip search and intimate visual inspection without any reasonable suspicion that they are doing anything dangerous or illegal (such as drugs, weapons, tattoos, or disease or infectious wounds). Regardless of the arrest, the level of offense, the detainee’s behavior or criminal history, jails do not violate the Fourth Amendment by requiring detainees to open their mouths, lift their tongues, lift their genitals, cough and squat, spread the buttocks or genital areas, while jail officers watch. “Jails are often crowded, unsanitary, and dangerous places.” Florence v Board of Chosen Freeholders, 566 US __ (2012). (Note: This case does not involve any touching by jailers – just visual inspections. This case also does not address “the types of searches that would be reasonable in instances where, for example, a detainee will be held without assignment to the general jail population and without substantial contact with other detainees.”).
ii. Juveniles
"Fourth Amendment challenges in the context of prisons and jails are not typically referred to as special needs cases," but the Supreme Court and Ninth Circuit have upheld prison searches predicated on less than probable cause, or even reasonable suspicion, such as "suspicionless strip
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searches of arrestees who were confined in a prison's general population," see Bell v Wolfish, 441 US 520, 560 (1979) and Bull v City and County of San Francisco, 595 F3d 964, 980-82 (9th Cir 2010 (en banc). Mashburn v Yamhill County, 698 F Supp 2d 1233 (D Or 2010) (strip searches conducted on juveniles on admission to detention do not violate Fourth Amendment standards, but the searches after contact visits violate the Fourth Amendment).
(b). Article I, section 9
Case law on this subject is underdeveloped under the Oregon Constitution. The block quotations in this section are not directly on point.
i. Adults
In State v Tiner, 340 Or 551 (2006), the Court wrote: “Neither the United States Constitution nor the Oregon Constitution requires a search warrant or its equivalent before the state may take pictures of or inspect defendant's torso because, once defendant became a prisoner, he enjoyed few rights regarding his privacy. See Hudson v Palmer, 468 US 517, 526 (1984) (prisoner does not have subjective expectation of privacy in prison cell); Bell v Wolfish, 441 US 520, 558 (1979) (visual cavity search of prisoner does not violate Fourth Amendment); Sterling v Cupp, 290 Or 611, 620 (1981) ("Those sentenced to prison forfeit many rights that accompany freedom."). Once defendant was imprisoned, he lacked the right to privacy that he enjoyed when he was not in prison. Among the rights that he forfeited was the right to keep his personal appearance— including any distinguishing marks such as tattoos—from being known to the state. The state thus reasonably could compel defendant to remove his shirt so that he could be photographed. The state's directive that defendant remove his shirt so that police could photograph his tattoos therefore was not a violation of Article I, section 9, of the Oregon Constitution or the Fourth Amendment to the United States Constitution.”
A buccal swab is akin to fingerprinting a person in custody, so that the seizure of DNA of an arrestee via buccal swab “did not constitute an unreasonable seizure under either constitution.” State v Brown, 212 Or App 164, 1167 (2007).
ii. Juveniles
Generally: “Routine searches of prisoners and probationers without probable cause are reasonable if there is a penological objective. See State v. Culbertson, 29 Or App 363, 563 P2d 1224 (1977).” State v Orozco, 129 Or App 148, 151 (1994), rev den 326 Or 58 (1997) (juvenile case).
12. “Probation Searches”
(a). Oregon
ORS 137.545(2) allows a police officer or parole and probation officer to arrest a probationer without a warrant upon reasonable suspicion that
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the probationer is violating any condition of probation. The authority to arrest a probationer for violation of a probation condition implies the authority to stop persons reasonably suspected of violating that probation condition. Even if a defendant is not actually violating a probation condition but the officer believes that he is, "[r]easonable suspicion, as a basis for an investigatory stop, [requires] only that those facts support the reasonable inference of illegal activity by that person." State v Hiner, 240 Or App 175 (2010); State v Faubion, 258 Or App 184, 194 & n 5 (2013); State v Steinke, 88 Or App 626, 629 (1987).
ORS 144.350(1)(a) allows a probation officer to order the arrest of a probationer when the officer has reasonable grounds to believe that the probationer has violated the conditions of probation. The officer may tell a defendant that he may refuse consent, and that such a refusal could subject him to arrest for a probation violation. State v Hiner, 240 Or App 175 (2010); State v Davis, 133 Or App 467, 473-74, rev den 321 Or 429 (1995).
“Under Article I, section 9, a probation condition requiring a probationer to consent to a home visit is not the same as a consent to search; the latter is more intrusive and it is condition on the existence of ‘reasonable grounds to believe that evidence of a violation will be found.’ ORS 137.540(h) and (i). Further, a consent to search is not self-executing; if a probationer refuses to consent, the officer has no authority under the probation condition to search, although the probationer may be subject to a sanction for violating the condition.” State v Brock, 254 Or App 273 (2013) (citing State v Dunlap, 215 Or App 46, 54 (2007)).
State v Brock, 254 Or App 273 (12/19/12) (Morrow) (Schuman, Nakamoto, Wollheim) Defendant and his female roommate were on probation, with a condition that they consented to home visits and a “home search” if an officer had reasonable grounds to believe that they were violating probation. Probation officer decided to do a home visit after defendant failed 4 urinalyses, was not going to treatment, and an informant reported that he and the roommate were manufacturing meth in their home. Officer told them she intended to do a home visit, both responded, “Alright,” and neither objected. Officer drove them to their home in her police car because neither had licenses. Outside the home, defendant said he had marijuana in his bedroom dresser. Nine other law enforcement and probation officers were already there, because the probation officer knew that dangerous dogs, weapons, other felons, likely would be there, and that, legally, a “prior consent to a home visit did not also encompass a more intrusive consent to search the private areas of a residence” under State v Guzman, 164 Or App 90 (1999), rev den 331 Or 191 (2000).
On arrival at the home, the front door was locked and defendant’s roommate did not have a key. No one answered the door. (The opinion does not address if defendant had a key). Roommate offered to enter through defendant’s bedroom window. A police officer told her no, that he would go through the window instead, then he did, and opened the front door to the house from inside. At his probation officer’s request, defendant showed her where his marijuana had been, but it was not there when the opened the box in his dresser. Probation officer said she had “reasonable grounds to search” and asked defendant: “Do I have consent to search?” Defendant said “yes.” The probation officer asked defendant: “Do you give us consent to go ahead and search your residence?” Defendant said: “Yes, you can search. Everything in the home is mind.” An officer searched, found defendant’s girlfriend hiding in the attic, and found the drugs she’d hidden (she said they were defendant’s gun, drugs, etc). Defendant moved to suppress. The trial court concluded that the roommate lacked authority to consent to entering
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defendant’s bedroom but suppression was not necessary because defendant voluntarily consented and the consent was not tainted by prior illegality.
The Court of Appeals affirmed: “Under Article I, section 9, a probation condition requiring a probationer to consent to a home visit is not the same as a consent to search; the latter is more intrusive and is conditioned on the existence of ‘reasonable grounds to believe that evidence of a violation will be found.’ ORS 137.540(h) and (i). Further a consent to search is not self-executing; if a probationer refuses to consent, the officer has no authority under the probation condition to search, although the probationer may be subject to a sanction for violating the condition.” To determine voluntariness of consent in probation-condition situations, the court considers “whether the probationer was effectively denied a reasonable opportunity to refuse the search or whether the environment was sufficiently coercive to preclude him from doing so.”
In this case, although 10 officers were present in the house, the court listed these facts as relevant to determine if the consent was “voluntary” as opposed to “mere acquiescence to a thinly veiled demand.” (1) Defendant gave consent to search twice. (2) Defendant had had the same probation officer for 2 years. (3) Defendant was familiar with the terms of his probation (4) Defendant had experienced past home visits during his probation. (5) Defendant was calm and collected, no weapons were displayed, “the situation was not hostile.” (6) Only one of the five probation officers was armed and four of the law enforcement officers waited across the road. (7) There is no evidence of threats or promises. Thus “based on the totality of the circumstances” the court concluded that defendant’s consent was “an act of free will, not the product of coercion; thus it was voluntary under Article I, section 9.”
Also defendant failed to establish that, had the alleged illegality not occurred (entering the window), he would not have given the probation officer consent to search when she asked a few seconds later. The probation officer could have asked for consent to search while standing outside the home, defendant already had consented to a home visit, and one officer was prepared to kick in the door. Defendant did not establish any nexus between the unlawful entry and his consent.
(b). Fourth Amendment
In Griffin v Wisconsin, 483 US 868 (1987), the Court concluded that a state's operation of its probation system was a "special need" that justified the warrantless search of a probationer's home, based on reasonable grounds to suspect the presence of contraband. Id. at 872. The Court held that the operation of a probation system was a valid "special need," in that the system worked towards genuine rehabilitation through intensive supervision and a "warrant requirement would interfere to an appreciable degree." Id. at 873-76. Cf. Wyman v James, 400 US 309, 317-18 (1971) (social worker’s home visits are not a “search” if done to verify eligibility for benefits rather than for a criminal investigation).
Under the Fourth Amendment, police need only show a “reasonable suspicion that an [effect] to be searched is owned, controlled, or possessed by probationer, in order to the [effect] to fall within the permissible bounds of a probation search.” United States v Bolivar, 670 F3d 1091 (9th Cir 2012). To search a residence, “officers must have ‘probable cause’ that they are at the correct residence but, once validly inside, they need only ‘reasonable suspicion’ that an [effect] is owned, possessed, or controlled by the parolee or probationer.” Id.
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13. Lawful Vantage Point or Plain View (Not a “Search”)
(a). Search
“A search, for purposes of Article I, section 9, occurs when ‘a person's privacy interests are invaded.’ State v Owens, 302 Or 196, 206 (1986). No search occurs, however, when police officers make observations from a ‘lawful vantage point.’ State v Ainsworth, 310 Or 613, 617 (1990). A ‘lawful vantage point’ may be within the curtilage of a property in which a defendant has a privacy interest, given that, ‘absent evidence of an intent to exclude, an occupant impliedly consents to people walking to the front door and knocking on it, because of social and legal norms of behavior.’ State v Portrey, 134 Or App 460, 464 (1995).” State v Pierce, 226 Or App 336, 343 (2009).
(b). Seizure
“Under the plain-view doctrine, an officer may seize an item if the officer can do so from a position where that officer is entitled to be and the incriminating character of the item to be seized is ‘immediately apparent.’ State v Carter, 200 Or App 262 (2005), aff’d, 342 Or 39 (2006).” State v Currin, 258 Or App 715 (2013).
State v Currin, 258 Or App 715 (10/02/13) (Umatilla) (Egan, Armstrong, Nakamoto) A police officer saw a suspected drug dealer walking toward a pickup truck in a high-drug-activity apartment complex. When the officer approached that man, that man changed direction and went into an apartment. Defendant was in the pickup truck. Officer recognized her; he had arrested her twice before for DUII and meth possession. She was still parked in her truck after the officer investigated the man in the apartment. She refused consent to search the truck. Officer ran a records check and found that she had an outstanding warrant. Officer said he was arresting her, opened the truck door, asked her to step out, and saw that she was holding a “plain, unmarked white envelope.” He told her top put it down and step out. She put it halfway into her purse, then paused and tossed it onto the truck floor. Officer thought, at that point, that she was concealing a drug. He handcuffed her, retrieved the envelope, felt a “paperfold” inside, read her her Miranda rights, asked what was inside, she said she didn’t know, then she said “annie,” which is meth. (The opinion does not say if the officer opened the envelope or the paperfold.) Testing showed that it was meth.
Defendant moved to suppress the contents of the envelope plus her statements. The trial court denied the motion, concluding that the mobile auto exception did not apply, the search-incident-to-arrest exception did not apply, and the plain- view doctrine did not apply.
The Court of Appeals reversed and remanded. The officer lacked objective probable cause to believe the envelope contained contraband, an element of plain-view exception, when he retrieved the envelope from the truck after arresting defendant. The only substantial evidence that the officer had to believe the envelope contained contraband was that defendant did not seem want the contents inspected. The “circumstances attendant to the officer’s discovery of the envelope” did not “suggest that a crime had occurred or was ongoing.”
“Under the plain-view doctrine, an officer may seize an item if the officer can do so from a position where that officer is entitled to be and the incriminating character of the item to be seized is ‘immediately apparent.’ State v Carter, 200
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Or App 262 (2005), aff’d, 342 Or 39 (2006).” In “the context of a search incident to arrest,” when “an officer has probable cause to believe that an object he has lawfully discovered is contraband and, therefore, that a crime is being committed in his presence, he has the right to seize it,” per State v Owens, 302 Or 196, 202- 03 (1986).
Here, defendant did not challenge the officer’s right to reach into the truck, so the first issue is whether he had probable cause to believe the “envelope contained contraband or evidence of a crime” when he seized it.” Significantly, defendant’s tossing the envelope into the car did show an intent to protect the privacy of the envelope. Thus the officer’s belief that it contained contraband was not objectively reasonable (so it was not supported by probable cause). A plain white envelope is different from other containers that “announce their contents.” [Note: that is another exception from plain view]. Containers that announce their contents have included: a clear plastic baggie with leafy greens, a transparent vial with powder, and a ripped-out magazine page folded into a one- inch by one-half-inch container with a “unique shape and character.” Per the Court of Appeals, those containers do give probable cause to believe that the containers contain contraband. In contrast, “the envelope in this case was not uniquely associated with drugs, for the universe of items that tends to be contained in a purse or an envelope is vastly larger than that which tends to be contained in a small paperfold.”
Suppression is required because defendant established the “minimal factual nexus” between the unlawful seizure and the discovery of that evidence. “Defendant having done so, the state does not attempt to meet its burden of showing that the ‘evidence did not derive from the preceding illegality’” under State v Hall, 339 Or 7, 25 (2005). Her statements also are suppressed.
14. Container That “Announces its Contents”
“In some circumstances, a container by its nature or transparency ‘announces its contents’ so that there is no privacy interest to protect, and an examination of the contents by the state is not a search for constitutional purposes” under State v Owens, 302 Or 196, 206 (1986). State v Edmiston, 229 Or App 411 n 3 (2009).
This “exception to the warrant requirement is ‘analogous to the plain view exception; it depends only on the nature of the container itself – i.e. whether by its smell, appearance, or other directly observable features, it “announces its contents” – and is thus independent of the context in which the container was found or the subjective knowledge and experience of the officer who found it.’ * * * The nature of the container, however, must be such as to announce ‘that contraband is [its] sole content.’” Ibid. (quoting State v Stock, 209 Or App 7, 12 (2006) and State v Krucheck, 156 Or App 617, 622 (1998), aff’d by an equally divided court, 331 Or 664 (2001)).
Cf. State v Currin, 258 Or App 715 (10/02/13) (Umatilla) (Egan, Armstrong, Nakamoto) [Note: this case was decided under the plain-view exception to the warrant requirement. The Court of Appeals held that an officer’s retrieval of a plain white envelope from a truck, after a defendant was arrested, violated Article I, section 9, because the officer did not have objective probable cause to believe the envelope contained contraband. In so holding, the court referenced and blended the “container that announces its contents” exception with the “plain view” exception.]
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A plain white envelope is different from other containers that “announce their contents.” Containers that announce their contents have included: a clear plastic baggie with leafy greens, a transparent vial with powder, and a ripped-out magazine page folded into a one-inch by one-half-inch container with a “unique shape and character.” Per the Court of Appeals, those containers do give probable cause to believe that the containers contain contraband. In contrast, “the envelope in this case was not uniquely associated with drugs, for the universe of items that tends to be contained in a purse or an envelope is vastly larger than that which tends to be contained in a small paperfold.”
15. Lost Property
State v Pidcock, 306 Or 335, 340 (1988), cert denied, 489 US 1011 (1989), “involving lost, as opposed to abandoned property,” allows officers to open a closed container to determine ownership of lost property. But “[n]either Pidcock nor any other case establishes an exception to the warrant requirements that would allow police to open a closed container in order to determine whether its contents were or were not stolen, and we decline to create such an exception here.” State v Rowell, 251 Or App 463, rev den 353 Or 127 (2012) (search not lawful under any theory the state advanced, including “ownership of lost property” and “abandoned property”).
16. Community Caretaking – Fourth Amendment
A “community caretaking” exception to the warrant requirement exists under the Fourth Amendment. No such exception has been recognized under the Oregon Constitution.
Impounding and inventorying a car without a warrant, rather than leaving it in a high-crime area, may be justified under the Fourth Amendment’s “community caretaking” exception to the warrant requirement. State v ONeill, 251 Or App 424 (2012).
An Oregon statute, ORS 133.033, allows officers to perform certain “community caretaking functions” under situations listed in the statute. Article I, section 9, limits that statute. There “is no community caretaking exception under the Oregon Constitution.” State v Bridewell, 306 Or 231, 239-40 (1988); State v Christenson, 181 Or App 345 (2002).
17. Special Needs in the Workplace
The “special needs” exception to the warrant requirement in the Fourth Amendment is “an exception to the general rule that a search [or seizure] must be based on individualized suspicion of wrongdoing.” Friedman v Boucher, 580 F3d 847, 853 (9th Cir 2009) (quoting City of Indianapolis v Edmond, 531 US 32, 54 (2000)). “Under this exception, suspicionless searches [and seizures] may be upheld if they are conducted for important non-law enforcement purposes in contexts where adherence to the warrant-and-probable cause requirement would be impracticable.” Id.; see also Griffin v Wisconsin, 483 US 868, 873 (1987) (“[W]e have permitted exceptions when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”
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Some courts have recognized a “workplace exception” to the warrant requirement as “special needs” cases under the Fourth Amendment. A plurality in O’Connor v Ortega, 480 US 709, 722 (1987) concluded that a warrantless search of a public employee’s office, desk, or file cabinets in a public workplace for work-related reasons did not violate the Fourth Amendment, because requiring a government employer to obtain a warrant would be “simply unreasonable” and “would be unduly burdensome.” That opinion appears to rest on the “special needs” doctrine.
See also Al Haramain Islamic Foundation v United States, 686 F3d 965 (9th Cir 2012) (“We hold that the “special needs” exception does not apply to the seizure of AHIF–Oregon's assets” by the Office of Foreign Assets Control).
New York has followed O’Connor v Ortega and has applied it to random urinalysis testing of police officers, Caruso v Ward, 72 NY2d 432 (1988). New York courts have applied it when the state of New York attached a GPS tracker to a public employee’s car 24 hours/day for 30 days. That was considered a “workplace search” but in that case, it was unconstitutionally unreasonable in scope because “it tracked petitioner on all evenings, on all weekends and on vacation” and “surely it would have been possible to stop short of seven-day, twenty-four hour surveillance for a full month. Cunningham v New York Dep’t of Labor, 2013 NY Slip Op 04838 (2013).
G. Remedies
The purpose of Oregon’s exclusionary rule is to vindicate a defendant’s personal rights by restoring him to the same position as if the government’s officers had stayed within the law. State v Hall, 339 Or 7, 24-25 (2005); State v Davis, 295 Or 227, 234 91983).
1. Burden-shifting basics under Article I, section 9
Oregon's exclusionary rule for Article I, section 9, violations is not based on a deterrence rationale like the Fourth Amendment's. Instead, in Oregon, the right to be free from unreasonable searches and seizures also encompasses the right to be free from the state's use (in certain proceedings) of evidence obtained in violation of Article I, section 9, rights. State v Hall, 339 Or 7, 24 (2005).
Under Oregon's Constitution, "the deterrent effect on future practices against others, though a desired consequence, is not the constitutional basis for respecting the rights of a defendant against whom the state proposes to use evidence already seized. In demanding a trial without such evidence, the defendant invokes rights personal to himself." State v Murphy, 291 Or 782, 785 (1981).
ORS 136.432 precludes courts from excluding evidence for statutory violations. But see State v Davis, 295 Or 227, 236-37 (1983) (There is "no intrinsic or logical difference between giving effect to a constitutional and a statutory right. Such a distinction would needlessly force every defense challenge to the seizure of evidence into a constitutional mold in disregard of adequate state statutes. This is contrary to normal principles of adjudication, and would practically make the statutes a dead letter.")
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If a search was unlawful under Article I, section 9, suppression of that evidence is a separate inquiry. “Evidence must be suppressed only if the unlawful search violated the rights of the person seeking suppression.” State v Tanner, 304 Or 312, 315-16 (1987); State v Rowell, 251 Or App 463, 473 (2012). The issue may be “not whether the police violated section 9 * * * but whether the police violated defendant’s section 9, rights.” Tanner; Rowell.
When a defendant moves to suppress evidence police obtained without a warrant, then the state must prove that the state’ action did not violate Article I, section 9. State v Davis, 295 Or 227, 237 (1983) (search); State v Wan, 251 Or App 74 (2012) (search); State v Sargent, 323 Or 455, 461 (1996) (seizure); State v Ordner, 252 Or App 444 (2012) (seizures).
If the state’s action did violate Article I, section 9, then the defendant must establish a minimal connection between the evidence and the illegal state action (“but for” the illegal state action, the evidence would not have been obtained). State v Hall, 339 Or 1, 25 (2005); State v Smith, 247 Or App 624 (2012). If the evidence was obtained during the illegal state action, that minimal connection is met. State v Rodgers/Kirkeby, 347 Or 610, 629-30 (2010). This is a “but for” relationship between the evidence and the prior illegal police conduct. Hall, 339 Or at 25.
If the defendant has shown that minimal connection, to avoid suppression, then the state must establish: (1) the police inevitably would have obtained the evidence lawfully; (2) the state obtained the evidence independently of its illegal conduct; or (3) the illegal conduct was not the source of the evidence because it had such a tenuous link. Hall, 339 Or at 25; State v Bailey, 258 Or App 18, 28 & n 1 (2013).
2. General Fourth Amendment Tenets
"The criminal is to go free because the constable has blundered." People v Defore, 242 NY 13, 21-22 (1926) (Cardozo, J.). “The thought is that in appropriating the results [of a federal officer’s trespass], he ratifies the means.” Id. at 22.
The Fourth Amendment “says nothing about suppressing evidence obtained in violation of” the right of people to be secure against unreasonable searches and seizures. “That rule – the exclusionary rule – is a ‘prudential doctrine’ * * * created by [the Supreme] Court to ‘compel respect for the constitutional guaranty.” Davis v United States, 131 S Ct 2419, 2426 (2011) (quotations omitted). “Exclusion is ‘not a personal constitutional right,’ nor is it designed to ‘redress the injury’ occasioned by an unconstitutional search.” Ibid. “The rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations.” The rule’s “bottom-line effect, in many cases, is to suppress the truth and to set the criminal loose in the community without punishment* * * . Our cases hold that society must swallow this bitter pill when necessary, but only as a last resort.” Ibid. (quotations omitted).
“Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means * * * would bring terrible retribution. Against that pernicious doctrine this court should resolutely
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set its face.” Olmstead v United States, 277 US 438, 485 (1928) (Brandeis, J., dissenting); Miranda v Arizona, 384 US 436, 480 (1966) (quoting Brandeis).
"One way of upholding the Constitution is not to strike at the man who breaks it, but to let off somebody else who broke something else." Elkins v United States, 364 US 206, 217 (1960) (quotation omitted).
"It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense [against the right to be free from unreasonable searches and seizures]; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property". Boyd v United States, 116 US 616, 630 (1886).
"Cooley said of the Fourth Amendment 110 years ago that 'it is better oftentimes that crime should go unpunished than that the citizen should be liable to have his premises invaded, his trunks broken up, [or] his private books, papers, and letters exposed to prying curiosity.' * * * If the government could not have gained a conviction had it obeyed the Constitution, why should it be permitted to prevail because it violated the Constitution? * * * It is possible that the real problem with the exclusionary rule is that it flaunts before us the price we pay for the Fourth Amendment." State v Warner, 284 Or 147, 163-64 (1978) (quoting Yale Kamisar, Is the Exclusionary Rule an 'Illogical' or "Unnatural' Interpretation of the Fourth Amendment?, 62 JUDICATURE 66, 73-74 (Aug 1978)).
3. Exceptions to Suppression
(1). Inevitable Discovery
"Generally, evidence that police officers discover as a result of an unlawful seizure must be suppressed under Article I, section 9. An exception is that evidence that law enforcement officers would have inevitably discovered will not be suppressed." State v Medinger, 235 Or App 88 (2010).
“Inevitable discovery” requires the state to establish by a preponderance of the evidence: (1) that certain proper and predictable investigatory procedures would have been used, and (2) that those procedures inevitably would have resulted in the discovery of the evidence in question. State v Miller, 300 Or 203, 226 (1985), cert denied, 475 US 1141 (1986); State v Marshall, 254 Or App 419 (2013).
State v Lovaina-Burmudez, 257 Or App 1 (2013) explains (and rejects) “inevitable discovery” doctrine in a warrant-based inevitable discovery case. That case is addressed under “Search Incident to Arrest” exception to the warrant requirement and under the “Inventory” exception to the warrant requirement. The issue is whether there is evidence in the record that “but for the unlawful seizure” of evidence, that evidence would have been available later for seizure pursuant to a valid search warrant. The court concluded that the record was deficient, so “such a determination would be insupportably speculative.” The court therefore rejected “the state’s warrant-based inevitable discovery alternative basis for affirmance.” And the error was not harmless.
(2). Attenuation
"After a defendant shows a minimal factual nexus between unlawful police conduct and the defendant's consent, then the state has the burden to prove that the defendant's consent was independent of, or only tenuously related to, the unlawful police conduct." "Hall requires the defendant to establish a 'minimal
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factual nexus between unlawful police conduct and the defendant's consent,' not the police officer's request for consent. That is, the focus of the factual nexus determination * * * is on whether defendant would have consented to the search that uncovered the evidence if the officer had not unlawfully seized him." State v Ayles, 348 Or 622 (2010) (emphasis in original).
"A defendant gains nothing from having a constitutional right not to be seized if the police can seize him and – by definition – use the circumstance of that seizure as a guarantee of an opportunity to ask him to further surrender his liberty. There was a minimal factual nexus between defendant's illegal seizure and his decision to consent." Id.
State v Meza-Garcia, 256 or App 798 (5/30/13) (Douglas) (Sercombe, Ortega, Edmonds SJ) The trial court did not err by denying defendant’s motion to suppress evidence derived from an unlawful stop that was not supported by reasonable suspicion of drug trafficking, because defendant’s consent to the search was “sufficiently attenuated” from the unlawful police conduct. In this case, defendant was a nervous passenger in a stopped car that had no visible luggage, a third-party registration, and an air freshener. The Court of Appeals concluded that each fact “carries such little weight in establishing reasonable suspicion that even collectively the facts fail to meet that standard.” (Note: the facts are not weighed alone, they are considered collectively.).
Despite the unlawful stop of defendant as a passenger, the court addressed the State v Hall, 339 Or 7 (2005) framework to determine if suppression is necessary, concluding that suppression is not necessary. Defendant consented to the search during the illegal extension. But “there is no evidence that [the officer] took advantage of the unlawful stop in order to gain defendant’s consent.” And “there is no evidence that [the officer] gained any advantage from the unlawful stop – in the form of new information or otherwise – that caused him to seek defendant’s consent to search the vehicle.” Defendant read and signed a Spanish and English consent-to-search form, and that is a “mitigating circumstance.” The Court of Appeals affirmed.
A Jesus Malverde medallion was not considered in the reasonable suspicion of drug trafficking analysis.
(3). Evidence obtained independently of the unlawful conduct.
Note: This situation may be conflated with a defendant’s failure to demonstrate, on one hand, a “minimal factual nexus” between evidence and bad police conduct, and on the other hand, an exception to the exclusionary rule. In State v Wynne, __ Or App __ (2013), for example, the Court of Appeals wrote: “Even if we assume that defendant was unlawfully seized at some point when he was locked in the patrol car, we conclude that the evidence that defendant seeks to suppress did not result from any unlawful detention.” It also concluded: “[E]ven if we assume that defendant was unlawfully seized, he did not establish a minimal factual nexus between that unlawful detention and the search of the house and discovery of the challenged evidence. That is, the record does not show that defendant was placed ‘in a worse position than if the governmental officers had acted within the bounds of the law.’” (Quoting Hall).
But other cases categorize situations as “purging the taint” of bad police conduct. The Court of Appeals has written: “Oregon has long recognized that the discovery of an outstanding warrant for a defendant’s arrest purges the taint of prior unlawful police conduct that might otherwise require suppression of
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evidence obtained as a result of an arrest on the warrant.” State v Bailey, 258 Or App 18 (2013).
State v Bailey, 258 Or App 18 (8/14/13) (Multnomah) (Armstrong, De Muniz, with Egan, J., dissenting) Defendant was a backseat passenger in a car stopped for an infraction as a pretext. Police suspected the car contained gang members. The backseat passengers repeatedly refused to identify themselves while the driver was failing to produce any valid insurance. “Some time after the officers had concluded their investigation into the driver’s insurance,” a total of 30 minutes after the initial stop, another officer arrived and immediately recognized defendant by name. The officers then ran his name for warrants, and found an outstanding warrant for his arrest. While arresting defendant on that warrant, officers noticed a plastic bag containing cocaine was under defendant’s tongue and $700 was in his seat. He moved to suppress the evidence. The trial court ruled that the police had unlawfully seized defendant during the traffic stop but the discovery of the warrant cured any prior illegality, so the motion to suppress was denied.
The Court of Appeals affirmed. No one disputes that defendant was unlawfully seized during that traffic stop. But the issue is whether the officer’s discovery of the valid arrest warrant purged the taint of that unlawful seizure, under the principle announced in State v Dempster, 248 Or 404 (1967) and State v Snyder, 72 Or App 359, rev den 299 Or 251 (1981). Here, that discovery did purge the taint here. And the analysis for suppression in State v Hall, 339 Or 7 (2005) remains applicable to this case (and this exception). The purpose of the exclusionary rule is to vindicate a defendant’s personal rights by restoring him to the same position as if the government’s officers had stayed within the law. Once a defendant shows unlawful police conduct has occurred, then the state may establish that the unlawful police conduct was “independent of or tenuously related to” the event. The “discovery of a valid warrant is an ‘intervening and independent’ event that severs the causal connection between the unlawful police conduct and the discovery of the disputed evidence for purposes of Article I, section 9,” under Hall. The trial court properly denied the motion to suppress under both Article I, section 9 and the Fourth Amendment.
4. Fourth Amendment’s Good-Faith Exception to Suppression
One exception to the Fourth Amendment’s exclusionary rule is “the good faith” exception established in United States v Leon, 468 US 897 (1984). Under Leon, evidence seized per a defective warrant will not be suppressed if an officer acts in “objectively reasonable reliance on the warrant.” Id. at 922. Four situations per se fail to meet the “good faith” exception: (1) where an affiant recklessly or knowingly placed false information in the affidavit that misled the judge; (2) where a judge wholly abandons his judicial role; (3) where the affidavit is so lacking in indicia of probable cause that believing it is unreasonable; and (4) where the warrant is so facially deficient (ie. failing to particularize the place to be searched of the things to be seized) that the officers cannot presume it to be valid. Id.
If a search violates the Fourth Amendment, the evidence is not subject to the exclusionary remedy if the government, in good faith, relied on a statute or case precedent to obtain the evidence. The exclusionary rule's purpose of deterring law enforcement from unconstitutional conduct would not be furthered by holding officers accountable for mistakes of a legislature. Thus, even if a statute
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is later found to be unconstitutional, an officer "cannot be expected to question the judgment of the legislature." Illinois v Krull, 480 US 340, 349-55 (1987).
“It is one thing for the criminal ‘to go free because the constable has blundered.’ People v Defore, 242 NY 13, 21, 150 NE 585, 587 (1926) (Cardozo, J.). It is quite another to set the criminal free because the constable has scrupulously adhered to governing law. Excluding evidence in such cases deters no police misconduct and imposes substantial social costs. We therefore hold that when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.” Davis v United States, 131 S Ct 2419, 2433 (2011).
A "violation of Oregon law does not constitute a violation of the Fourth Amendment" "even if a reasonable Oregon law enforcement officer should have known he lacked authority under his own state's law to apprehend aliens based solely on a violation of federal immigration law" and cannot be the basis for an egregious Fourth Amendment violation, under Virginia v Moore, 553 US 164, 173-74 (2008). Martinez-Medina v Holder, 616 F3d 1011 (9th Cir 2010).
“Where the search at issue is conducted in accordance with a municipal ‘policy’ or ‘custom,’ Fourth Amendment precedents may also be challenged, without the obstacle of the good-faith exception or qualified immunity, in civil suits against municipalities. See 42 USC §1983; Los Angeles County v Humphries, 131 S Ct 447, 452 (2010) (citing Monell v New York City Dep’t of Social Svcs, 436 US 658, 690-91 (1978)).” Davis v United States, 131 S Ct 2419, 2433, n 9 (2011).
See United States v Pineda-Moreno, 688 F3d 1087 (9th Cir 2012).
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V. SELF-INCRIMINATION
"No person shall be * * * compelled in any criminal prosecution to testify against himself." – Article I, section 12, Or Const
“The right against self-incrimination stated in [Article I, section 12] of the Oregon Constitution is identical to, and presumed to have been based on, Article I, section 14, of the Indiana Constitution of 1851. * * * It was adopted by the framers apparently without amendment of debate of any sort * * * * * The text of the Indiana provision was taken from Kentucky and Ohio bills of rights * * * which were based on the nearly identically worded Fifth Amendment to the United States Constitution.* * * * * The Fifth Amendment, in turn, was based on existing state constitutional bills of rights that were adopted following the revolution, notably Section 8 of the Virginia Declaration of Rights [of 1776].” State v Davis, 350 Or 440, 447-48 (2011).
“Surveys have shown that large majorities of the public are aware that individuals arrested for a crime have a right to remain silent (81%), a right to a lawyer (95%), and have a right to an appointed lawyer if the arrestee cannot afford one (88%).” J.D.B. v North Carolina, 131 S Ct 2394 n 13 (2011) (Alito, J dissenting) (on the Sixth Amendment).
A. Miranda
1. Federal
“We sometimes forget how long it has taken to establish the privilege against self- incrimination, the sources from which it came and the fervor with which it was defended. Its roots go back into ancient times. * * * Thirteenth century commentators found an analogue to the privilege [against self-incrimination] grounded in the Bible. 'To sum up the matter, the principle that no man is to be declared guilty on his own admission is a divine decree.' Maimonides, Mishneh Torah (Code of Jewish Law), Book of Judges, Laws of the Sanhedrin, c. 18, 6, III Yale Judaica Series 52—53. See also Lamm, The Fifth Amendment and Its Equivalent in the Halakhan, 5 JUDAISM 53 (Winter 1956).” Miranda v Arizona, 384 US 436, 458 & n 27 (1966).
“[W]e hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized* * * * * * He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires* * * * * * [U]nless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of the interrogation can be used against him.” Miranda v Arizona, 384 US 436, 478-79 (1966) (Fifth Amendment through Fourteenth).
2. Application to the states
Most of the rights in the Fifth Amendment apply to the States through the due process clause of the Fourteenth Amendment, see Benton v Maryland, 395 US 784 (1969) (double jeopardy); Malloy v Hogan, 378 US 1 (1964) (privilege against self-incrimination); Chicago, B&Q R. Co. v Chicago, 166 US 226 (1897)
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(just compensation). McDonald v City of Chicago, 130 S Ct 1316, 3034 n 12 (2010) (so reciting). The Fifth Amendment's grand-jury indictment requirement has not been fully incorporated to the states but the "governing decisions regarding the Grand Jury Clause of the Fifth Amendment * * * long predate[s] the era of selective incorporation." McDonald, 130 S Ct 1316, 3034-35 n 12 and 13 (so stating, without citing any cases).
3. Fifth Amendment Privilege Against Self-Incrimination
The Oregon Court of Appeals has collated the following Fifth Amendment protections against self-incrimination in Redwine v Starboard LLC and Sawyer, 240 Or App 673 (2011):
—The Fifth Amendment privilege protects a person from being compelled to testify in any proceeding when the answers may incriminate him in a future criminal prosecution. Maness v Meyers, 419 US 449, 464 (1975).
— The privilege protects testimony that would "furnish a link in the chain of evidence" needed to prosecute a crime. Hoffman v United States, 341 US 479, 486 (1951).
— The inquiry is whether the testimony "would provide evidence of a particular crime." Empire Wholesale Lumber Co. v Meyers, 192 Or App 221, 226-27 (2004).
— The privilege is not abrogated just because the government may have access from another source to the same information. Grunewald v United States, 353 US 391, 421-22 (1957).
— The privilege can extend to documentary production if there is a "protected testimonial aspect" to the documents such as where by producing documents pursuant to a subpoena, "the witness would admit that the papers existed, were in his possession or control, and were authentic." United States v Hubbell, 530 US 27, 36 n 19 (2000).
— The witness claiming the privilege bears the burden of establishing that an answer could be injurious, and the court must construe the privilege liberally in favor or the right it is intended to secure. Hoffman v United States, 341 US 479, 486 (1951).
“Any police interview of an individual suspected of a crime has ‘coercive aspects to it.’ Oregon v Mathiason, 429 US 492, 495 (1977) (per curiam). Only those interrogations that occur while a suspect is in police custody, however, ‘heighte[n] the risk’ that statements obtained are not the product of the suspect’s free choice. Dickerson v United States, 530 US 428, 435 (2000).” J.D.B. v North Carolina, 131 S Ct 2394 (2011). “Because [Miranda warnings] protect the individual against the coercive nature of custodial interrogation, they are required “‘only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’” Stansbury v California, 511 US 318, 322 (1994) (per curiam).
A confession is involuntary if it is not “the product of a rational intellect and a free will.” Townsend v Sain, 372 US 293, 307 (1963). “Coercive police activity,” which can be either “physical intimidation or psychological pressure,” is a
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predicate to finding a confession involuntary. Id. at 307. Factors considered in that finding are: the length, location, and continuity of the police interrogation and the suspect’s maturity, education, physical condition, mental health, and age. Yarborough v Alvarado, 541 US 652, 668 (2004). Threats and promises relating to one’s children carry special force. Brown v Horell, 644 F3d 969 (9th Cir 2011) (quoting Haynes v Washington, 373 US 503, 514 (1963) and Lynum v Illinois, 372 US 528, 534 (1963)).
A person subjected to custodial interrogation is entitled to the procedural safeguards in Miranda regardless of the nature or severity of his suspected offense. Berkemer v McCarty, 468 US 420 (1984) (affirming constitutionality of no Miranda warning during roadside seizure for misdemeanor DUII before arrest).
In determining whether a suspect has been interrogated in a custodial setting without being afforded Miranda warnings, a court may consider the suspect’s age. J.D.B. v North Carolina, 131 S Ct 2394 (2011) (child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test.”).
Involuntary or coerced confessions are inadmissible at trial because their admission is a violation of a defendant’s right to due process under the Fourteenth Amendment. Lego v Twomey, 404 US 477, 478 (1972); Jackson v Denno, 378 US 368, 385-86 (1964).
“Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means * * * would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.” Olmstead v United States, 277 US 438, 485 (1928) (Brandeis, J., dissenting); Miranda v Arizona, 384 US 436, 480 (1966) (so quoting).
Salinas v Texas, __ S Ct __ (6/17/13) (Alito) (5-4 division) Defendant went to a police station and was not given Miranda warnings. For an hour, he voluntarily answered several questions, then became silent when asked a critical question. At his trial, he did not testify. The prosecutor elicited testimony that defendant had remained silent when asked about that critical question, then the prosecutor mentioned that testimony in closing. The jury convicted him of murder. The Texas appellate courts affirmed.
The US Supreme Court affirmed. The privilege against self-incrimination is not self-executing, Minnesota v Murphy, 465 US 420, 425 (1984). A witness who desires its protection must claim it. Miranda is an exception to the general rule that the Government has the right to everyone’s testimony, Garner v United States, 424 US 648, 658 n 11 (1976).
4. Oregon
“‘Miranda warnings’ are those warnings ‘required to effectuate the protections afforded by Article I, section 12,’ so named for the United States Supreme Court’s decision, Miranda v Arizona, 384 US 436 (1966).” State v Bielskies, 241 Or App 17, 19 n 1, rev denied 350 Or 530 (2011) (citing State v Vondehn, 348 Or 462, 470 (2010)).
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Under Article I, section 12, Miranda warnings must be given to a person subjected to custodial interrogation who is in "full custody" and also to a person in circumstances that create a setting which judges would and officers should recognize to be compelling. State v Roble-Baker, 340 Or 631, 638 (2006); State v Jarnagin, 351 Or 703, 713 (2013); State v Smith, 310 Or 1, 7 (1990). "Compelling" circumstances are determined by four factors in the encounter: (1) location; (2) length; (3) pressure on defendant; and (4) defendant's ability to terminate the encounter. Roble-Baker at 640-41; State v Shaff, 343 Or 639, 645 (2007) (same).
Under Article I, section 12, the state has the burden to prove, by a preponderance of the evidence, that any admissions or confessions by a defendant were made voluntarily. State v Stevens, 311 Or 119, 135-37 (1991).
Article I, section 12, does not prohibit police from attempting to obtain incriminating information from a suspect at a time that he is not in custody or in compelling circumstances, even if he has invoked his right against self- incrimination and even if the police use subterfuge in obtaining statements from the suspect. State v Davis, 350 Or 440 (2011).
Violations of this constitutional right result in exclusion of the statements “to restore the defendant to the position that he or she would have been in if police had not violated that constitutional right.” It does not matter if statements are obtained through “actual coercion” or through “police interrogation” in the absence of Miranda-like warnings.
State v Fivecoats, 251 Or App 761 (2012) At his jury trial, defendant asked the judge to let him walk in front of the jury so jurors could compare his gait to the twitchy thief in the video. Defendant also invoked his right against self- incrimination. The court then ruled that “the walk would be testimony” so he could “walk in front of the jury” only if he “took the stand,” but he could not “have it both ways.” “[D]emonstrating a walk is not testimonial” under State v Fish, 321 Or 48 (1995) and State v Langan, 301 Or 1, 5 (1986). Thus “demonstrating his walk would not have implicated his state and federal constitutional rights against self-incrimination.” The Court of Appeals wrote:
“The right against compelled self-incrimination applies ‘to any kind of judicial or nonjudicial procedure in the course of which the state seeks to compel testimony that may be used against the witness in a criminal prosecution.” (Emphasis added here).
The Court of Appeals stated that “’testimonial’ evidence is not limited to in-court testimony under oath.” Instead, “testimonial” evidence “communicates by words or conduct an individual’s beliefs, knowledge, or state of mind,” in contrast with “physical characteristics such as identity, appearance, and physical conditions,” citing State v Tiner, 340 Or 551, 561-62 (2006), cert denied, 549 US 1169 (2007). The court then string-cited cases where the state compelled defendant to display or perform for police or jurors, and courts concluded that such performance was not testimonial or violative of due process (although nothing in this case is about due process). Those performances that the Court of Appeals recited were: photographing tattoos, handwriting, standing in court, blood sample admission, field sobriety tests, and wearing a stocking mask. The Court of Appeals here stated: “Because walking is physical evidence concerning a person’s appearance or physical condition and does not communicate beliefs, knowledge, or state of mind, we conclude that it is not testimonial.” This error was not harmless under Article VII (Amended), section 3: “it is not our prerogative on review for harmlessness to weigh the evidence.”
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State v Avila-Nava, 257 Or App 364 (7/03/13) (Washington) (Haselton, Ortega, Sercombe) The trial court erroneously admitted defendant’s statements that he made after invoking his right to remain silent. The question in this case is whether defendant’s statement during Miranda warnings was an unequivocal request that required the officers to stop questioning him. While in police custody in the Hillsboro Police Department, two detectives interviewed defendant from a prepared card. An officer asked (in Spanish), if defendant understood his rights. Defendant said, “I have a question. Do I have to answer your questions?” The detectives said they did not have to answer them or talk to them. Defendant asked, “Why did mister call the police?” The detective said that defendant needed first to understand his Miranda rights before they could talk and read him line by line his rights. Defendant said, “I won’t answer any questions.” After numerous exchanges between defendant and the officer (“Are you saying you don’t want me to talk at all?” and “You just want me to go away?”), defendant finally answered “yes” when asked if he wanted to talk freely. He made incriminating statements, he was charged with robbery, and the trial court concluded that his statement (“I won’t answer any questions”) was equivocal, so the detectives could continue their conversation to make sure he understood his rights.
Defendant testified at trial. His statements made during that police interrogation were used against him. The jury convicted him.
The Court of Appeals reversed. A reasonable officer in the circumstances would have understood defendant’s statement to be an unequivocal invocation of his right to remain silent. “Here, the trial court improperly relied on [the detective’s] unreasonable decision not to accept defendant’s unambiguous statement as an unequivocal invocation of his right to remain silent.” Moreover, in this case, the detective “did not limit himself to merely completing the reiterated advice of Miranda rights,” which may, or may not, have been permissible. “Rather – and without any intervening voluntary reinitiation on defendant’s part – [the detective] asked defendant questions pertaining to his invocation.” The questions the detective asked (“Are you saying you don’t want me to talk at all?” and “You just want me to go away?”) are allowed only in an equivocal invocation. (All emphases by court). The error was not harmless under Article VII (Amended), section 3, either, because it was used to impeach him.
State v Hurtado-Navarrete, 258 Or App 503 (9/11/13) (Washington) (Sercombe, Ortega, Haselton) Detectives formally advised defendant of his Miranda rights three times. Two of those three warnings were given less than one day before defendant confessed to a murder to detectives in his home. Before he confessed in his home, the detectives asked defendant multiple times if he wanted to speak to them, and they also informed him that he was “free” and could ask them to leave anytime, and that he had a right to an attorney. Defendant said he understood and confessed and was arrested. He moved to suppress his statements (his confession) under Article I, section 12, and the Fifth Amendment on grounds that the prior Miranda warnings were stale. The trial court denied that motion.
The Court of Appeals affirmed: “new warnings were not required under either the state or federal constitution.” A defendant must be re-advised of his Miranda rights if “a reasonable person could believe that his or her rights have changed since the time they were originally given.” Here, defendant was advised three times, two of those were less than one day before his interrogation, and each time he said that he understood his rights. No warnings were limited in scope. The day defendant was interrogated – and before he confessed – detectives told him he had a right to an attorney and that he did not have to speak with them. In short, “nothing occurred that would lead a reasonable person to believe that his Miranda rights had changed.” Article I, section 12, and the Fifth Amendment are similar.
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State v D.P., __ Or App __ (10/30/13) (Multnomah) (Egan, Armstrong, Nakamoto) A 12 year old boy was suspected of raping a 10 year old girl. Low-key plainclothes etectives chose to interview the youth at his school so that his parents would not interrupt. Youth was summoned to a school office and interviewed for an hour and 40 minutes. No one was present except for the officers and the youth, and officers did not tell him he could have anyone else present. They took an oral DNA swab, but did not tell him he had a choice to refuse the swab. They kept telling the youth to “tell the truth” and he kept saying he had not done anything wrong. They knew he was 12 and that he had prior behavioral problems. He had a flat affect and appeared to be trying to be in charge of the interview, “like a negotiation, and he was enjoying it.” He never asked for a teacher or parent. He did not appear to be afraid. Eventually he confessed to intercourse and oral sex with the child. The juvenile court determined that the interview was not “custodial” and denied his motion to suppress.
The Court of Appeals reversed. The circumstances were compelling. Miranda warnings were required under Article I, section 12. They were not given.
5. Statute on Coerced Confessions
Under ORS 136.425(1), “A confession or admission of a defendant, whether in the course of judicial proceedings or otherwise, cannot be given in evidence against the defendant when it was made under the influence of fear produced by threats.” That statute has existed since 1864 and was amended in 1957. “ORS 136.425(1) continues to apply to confessions induced by and made to private parties.” State v Powell, 352 Or 210 (2012).
B. False Pretext Communications
Article I, section 12, does not prohibit police from attempting to obtain incriminating information from a suspect when/if he is not in custody or in compelling circumstances, even if he has invoked his right against self- incrimination and even if the police use subterfuge in obtaining statements from the suspect. When Article I, section 12 was adopted, “the constitutional right against self-incrimination generally was understood to limit the means by which the state may obtain evidence from criminal defendants by prohibiting compelled testimony.” And from “very early on, this court’s cases held that the focus of Article I, section 12, is whether a defendant’s testimony was compelled, or, conversely, whether it was voluntarily given* * * * * * “[C]ompulsion is the principal underpinning of the protection.” State v Davis, 350 Or 440 (2011).
C. Polygraph Testing & Compulsory Treatment Disclosures
Ordering parents to take a polygraph test to determine who caused injuries to their child (rather than for treatment only), without providing immunity from criminal prosecution as a condition, violated parents’ Fifth Amendment rights against self-incrimination under Kastigar v United States, 406 US 441,444-45 (1972). Dep't of Human Services v KLR, 235 Or App 1 (2010).
Polygraph testing is not admissible in civil or criminal trials. State v Brown, 297 Or 404 (1984). But on a proper objection, it is admissible in probation revocation hearings (or possibly other proceedings that the Oregon Rules of Evidence do not apply to). State v Hammond, 218 Or App 574 (2008).
United States v Bahr, __ F3d __ (9th Cir 9/16/13) Defendant had prior convictions for sex offenses. His sex offender treatment program for that prior conviction involved a “full disclosure polygraph test” that included his sexual history.
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Defendant disclosed that he had sexual contact with 6 children while he was a minor, plus sexual contact with 7 children while he was an adult, and “he also revealed that he had eight to ten sexual encounters with 15 or 16 year old girls while he was 18-20 years old.” This present case involved a conviction for two counts of possession of child porn. Defendant pleaded guilty. In sentencing him to 20 years in prison, the judge considered defendant’s statements he had made as part of the “full disclosure polygraph test.”
The Ninth Circuit panel reversed and remanded. “Although [defendant] did not assert his Fifth Amendment right against self-incrimination at the time of the disclosures, that right is self-executing where its assertion ‘is penalized so as to foreclose a free choice.’ Minnesota v Murphy, 465 US 420 (1984).” Here, the government conditioned release on defendant’s compliance with the program that required “full disclosure” of past sexual misconduct, with no provision of immunity. That violated the privilege against self-incrimination under the Fifth Amendment. The “threat of revocation is itself sufficient to violate the privilege and make the resultant statements inadmissible.” This is not a case where the terms of supervision did not require answering questions; here, defendant “had no choice but to answer the questions posed during the polygraph examination.” The district court should not have considered the information.
D. Right to Counsel
"In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the
nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory
process for obtaining witnesses in his favor." -- Article I, section 11, Or Const
1. During Arrest
Article I, section 11, right to counsel includes the right of an arrested driver, on request, to a reasonable opportunity to obtain legal advice before deciding whether to submit to a breath test. State v Spencer, 305 Or 59, 74-75 (1988). That right includes the right to consult with counsel confidentially, in private. State v Durbin, 335 Or 183, 191 (2003). That right, however, "is triggered by a request for legal advice, not merely a request to talk with an individual who happens to be a member of a bar association." State v Burghardt, 234 Or App 61 (2010). "The requirement of confidentiality is a consequence of the privileged nature of conversations between an attorney and his or her client." Id. Asking a person to take field sobriety tests or breath tests is not "interrogation" under the state or federal constitution. State v Highley, 236 Or App 570 (2010) (citing South Dakota v Neville, 459 US 553, 564 n 15 (1983)); State v Gardner 236 Or App 150, 155, rev den 349 Or 173 (2010); and State v Cunningham, 179 Or App 498, 502, rev den 334 Or 327 (2002)).
The state has the burden to show that a defendant was afforded a reasonable opportunity to consult with counsel in private. State v Carlson, 225 Or App 9, 14 (2008).
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2. During Investigations
(a). General Tenets
The Article I, section 11, “right to an attorney is specific to the criminal episode in which the accused is charged. The prohibitions placed on the state’s contact with a represented defendant do not extend to the investigation of factually unrelated criminal episodes.” State v Sparklin, 296 Or 85, 95 (1983); State v Potter, 245 Or App 1 (2011) (so noting).
Ordinarily, “there can be no interrogation of a defendant concerning the events surrounding the crime charged unless the attorney representing the defendant on that charge is notified and afforded a reasonable opportunity to attend.” State v Gilmore, 350 Or 380 (2011); State v Randant, 341 Or 64 (2006); State v Sparklin, 296 Or 85 (1983).
Article I, section 11, does not prohibit police from continuing a criminal investigation of a suspect, by attempting to obtain information from the suspect himself, before the initiation of any criminal prosecution, even if the suspect announces that he has retained counsel and will not speak with police without the presence of counsel. State v Davis, 350 Or 440 (2011) (Defendant was not under arrest and no formal charges had been brought, thus he was not an “accused” in a “criminal prosecution” under Article I, section 11).
(b). History
The “Sixth Amendment, like a number of parallel provisions of existing state constitutions, refers to a right of ‘the accused’ that may be exercised during ‘criminal prosecutions,’ which suggests that the focus of the amendment is on the rights of a defendant at trial or, at the earliest, following formal charging.” State v Davis, 350 Or 440 (2011). Thus when Article I, section 11, was adopted, “the constitutional right to counsel would have been understood to guarantee a right to counsel at trial and, perhaps, some measure of preparation for trial following the commencement of formal adversary proceedings * * * [E]ven when state and federal courts began to extend the right to counsel to stages of a criminal prosecution before the trial itself – nearly a century after the adoption of the Oregon Constitution – they uniformly adhered to the conclusion that the text of the guarantee and its underlying purpose could not justify extending the right to encounters before the initiation of formal criminal proceedings.” Id.
E. Laboratory Reports
Admission of a laboratory report “without requiring the state to produce at trial the criminalist who prepared the report or to demonstrate that the criminalist was unavailable to testify” violates a defendant’s right to confront witnesses against him under Article I, section 11, of the Oregon Constitution. State v Birchfield,342 Or 624 (2007). The state cannot require a defendant to “secure the attendance of the criminalist who prepared the laboratory report.” State v Kinslow, 257 Or App 295 (2013).
State v Kinslow, 257 Or App 295 (6/26/13) (Josephine) (Schuman, Wollheim, Nakamoto) The trial court correctly admitted a crime lab report showing that meth was
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the substance found in defendant’s home. Defendant had received a certified copy of that lab report but did not file a written objection to that report within 15 days before trial, as required under ORS 475.235(4)-(5). The state did not have the lab report’s author testify based on defendant’s failure to file any objection. The Court of Appeals already has held that those statutes do not violate the Sixth Amendment, State v Glass, 246 Or App 698 (2011), rev den 352 Or 25 (2012). In this case, the Court of Appeals reaffirmed that conclusion, and also held that the statutes at issue, and the practice that occurred in this case, did not violate Article I, section 11, either: They “do not impermissibly shift the burden to a defendant to procure a criminalist but, rather, set forth a constitutionally permissible process for determining whether the defendant intends to object to the written report.”
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VI. ACCUSATORY INSTRUMENTS AND GRAND JURIES
"(1) The Legislative Assembly shall provide by law for: (a) Selecting juries and qualifications of jurors; (b) Drawing and summoning grand jurors from the regular jury list at any time, separate from the panel of petit jurors; (c) Empaneling more than one grand jury in a county; and (d) The sitting of a grand jury during vacation as well as session of the court.
“(2) A grand jury shall consist of seven jurors chosen by lot from the whole number of jurors in attendance at the court, five of whom must concur to find an indictment.
“(3) Except as provided in subsections (4) and (5) of this section, a person shall be charged in a circuit court with the commission of any crime punishable as a felony only on indictment by a grand jury.
"(4) The district attorney may charge a person on an information filed in circuit court of a crime punishable as a felony if the person appears before the judge of the circuit court and knowingly waives indictment.
"(5) The district attorney may charge a person on an information filed in circuit court if,
after a preliminary hearing before a magistrate, the person has been held to answer upon a
showing of probable cause that a crime punishable as a felony has been committed and that the person has committed it, or if the person knowingly waives preliminary hearing.
"(6) An information shall be substantially in the form provided by law for an indictment. The district“ attorney may file an amended indictment or information whenever, by ruling of the court,T an indictment or information is held to be defective in form." h e “(7) In civil cases three-fourths of the jury may render a verdict.” – Article VII (Amended), section 5, Or Const
“Article VII (Amended), section 5, has a lengthy history” that traces to 1857, in Article VII (Original), section 18, which was repealed in 1958. State v Reinke, 354 Or 98, 107-08 & n 7 (2013). “The people enacted the current version of Article VII (Amended), section 5, in 1974 after the legislature referred an amendment to that section to the voters. See Or Laws 1973, SJR 1.” State v Reinke, 354 Or 98, 106 (2013).
The stated purpose of Article VII (Amended), section 5, in 1974 “was to give prosecutors greater latitude to charge by information.” State v Reinke, 354 Or 98, 112 (2013). Section 5 “requires the grand jury to find and plead only the elements of the crime as defined by the legislature.” The “legislature has provided that a prosecutor need not plead sentence enhancement facts in the indictment” in ORS 136.765. “Timely written notice will suffice.” Id. at 113.
“The current version of Article VII (Amended), section 5, consists of seven subsections that, among other things, authorize the legislature to provide for the selection of jurors and grand jurors, specify the number of grand jurors who comprise the grand jury, and determine the number of jurors necessary to render
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a verdict in civil cases.” State v Reinke, 354 Or 98, 105 (2013) (citing section 5, subsections 1, 2, and 7).
“In Oregon, the state may charge a defendant with a felony by an indictment issued by a grand jury, by a prosecutor’s information if the defendant waives indictment, or by a prosecutor’s information followed by a preliminary hearing.” State v Reinke, 354 Or 98, 101 n 1 (2013) (2013) (Article VII (Amended), section 5).
The grand-jury indictment provision in Article VII (Amended), section 5, serves four functions: (1) to provide notice; (2) to identify the crime to protect against additional prosecution for the same crime; (3) to inform the court; and (4) to ensure that a defendant is tried only for an offense that is based on facts found by the grand jury. State v Burnett, 185 Or App 409, 415 (2002).
Article VII (Amended), section 5(6) "does not require that a grand jury find facts that pertain only to sentencing." There "is no requirement that facts that pertain only to sentencing be pleaded in the indictment." State v Williams, 237 Or App 377 (2010), rev den, 350 Or 131 (2011).
Subcategory facts that pertain only to sentencing need not be submitted to the grand jury; the "Oregon Constitution does not require that a grand jury find facts that pertain only to sentencing. That is because a fact that pertains only to sentencing is not a matter that is essential to show that an offense has been committed." State v Williams, 237 Or App 377, 383 (2010), rev den, 350 Or 131 (2011) (Article VII (Amended), section 5).
The "Oregon Constitution does not require that enhancement factors be set forth in the indictment." State v Sanchez, 238 Or App 259, 267 (2010), rev den 349 Or 655 (2011) (Article VII (Amended), section 5).
State v Reinke, 354 Or 98 (9/12/13) (Multnomah) (Kistler, with Brewer & Baldwin not participating) In this case, the Court concluded that Article VII (Amended), section 5, “requires the grand jury to find and plead only the elements of the crime as defined by the legislature.” The “legislature has provided that a prosecutor need not plead sentence enhancement facts in the indictment” in ORS 136.765. “Timely written notice will suffice.” It does not require the grand jury to find and plead sentence enhancement facts.”
A grand jury indicted defendant for crimes, including second-degree kidnapping, which is a Class B felony with a 10-year maximum sentence. Before trial the state informed defendant that it would ask the court to sentence him as a dangerous offender, in a separate sentencing hearing, under the sentence enhancement criteria in ORS 161.725(1), if he was convicted. As a dangerous offender, he could be sentenced to up to 30 years.
The grand jury did not find any sentence enhancement facts. Defendant waived his right to a jury. The trial court found him guilty. At the separate sentencing hearing, defendant argued that the state could not seek a 30-year dangerous-offender sentence because the grand jury had not found facts to impose that sentence. Those sentence-enhancement criteria are: (1) the felony defendant committed “seriously endangered the life or safety of another”; (2) defendant had a prior felony conviction; and (3) defendant had a “severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another.”
The trial court disagreed and sentenced defendant to about 23 years in prison. The Court of Appeals affirmed.
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The Oregon Supreme Court affirmed. Neither Article I, section 11, nor Article VII (Amended),section 5, require a grand jury to find and plead sentence enhancement facts. Those “facts” are not elements of an offense. The trial court could (and did) consider imposition of dangerous offender sentence without the grand jury’s allegation of dangerous-offender facts.
In State v Wagner, 305 Or 115, 171-72 (1988), vac’d and rem’d on other grounds, 492 US 914 (1989), the Court held that “under state law, an indictment must give a defendant notice of the elements of the crime he or she is charged with committing,” but the indictment need not “give a defendant notice of any sentence enhancement facts that may increase the punishment for committing that crime.” In this case, defendant asked the Court to “revisit” its prior cases, including Wagner, and to overrule Wagner and all cases that followed it on point. The Court undertook a Priest v Pearce, 314 Or 411 (1992) analysis and concluded that Wagner did not “err in holding that, under the Oregon Constitution, the grand jury need not find sentence enhancement facts or plead them in the indictment.”
The Court recited the “lengthy” history of Article VII (Amended), section 5 (voters accepted its current version in 1974). It traces back to 1857, in its earliest form, in Article VII (Original), section 18 (which was gradually repealed and parts incorporated between 1910 to 1958 into Article VII (Amended), section 5). The purpose of Article VII (Amended), section 5, “was to give prosecutors greater latitude to charge by information.” In sum, “the legislature has provided that a prosecutor need not plead sentence enhancement facts in the indictment” under ORS 136.765.
The Court also declined defendant’s two Article I, section 11, arguments. The Court concluded that the “Notice Clause of Article I, section 11, does not require that an indictment allege sentence enhancement facts.” The Court also concluded that “even though the Jury Trial Clause of Article I, section 11, requires the jury to find some facts related to sentencing, those sentencing facts are not elements of the offense that the grand jury must find and that the indictment must plead. * * * [The Grand Jury] needs to find the elements of the ‘conventional charge’ as the legislature has defined it. * * * It need not find any sentence enhancement facts.”
VII. FORMER JEOPARDY
"No person shall be put in jeopardy twice for the same offence, nor be compelledR in any criminal prosecution to testify against himself." – Article I,
section 12, Or Const
Article I, section 12, “was borrowed from a similar provision in the Indiana Constitution of 1851” and “the Oregon Constitutional Convention adopted it without any recorded discussion.” State v Selness, 334 Or 515 (2002) (citing Charles Henry Carey, A HISTORY OF THE OREGON CONSTITUTION 468 (1926)).
Article I, section 12, is interpreted under the Priest v Pearce, 314 Or 411, 415-16 (1992) analysis: its specific wording, case law around it, and historical circumstances that led to its creation. State v Selness, 334 Or 515 (2002).
“Jeopardy” arises only in criminal proceedings, for Article I, section 12, purposes, although even if a proceeding is labeled as “civil,” it may still be “criminal” in nature. State v Selness, 334 Or 515 (2002) (held: forfeiture proceeding is not criminal to constitute jeopardy). In deciding whether a proceeding is “civil” or “criminal” for Article I, section 12, purposes, the Oregon Supreme Court has
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determined that a case under Article I, section 11(to determine whether a right to counsel and a right to a jury trial apply) also applies to Article I, section 12. Id. (applying Brown v Multnomah County District Court, 280 Or 95 (1977)). That is: did the legislature intend to create a civil proceeding? If yes, then the four Brown factors are applied to determine if the proceeding is essentially criminal. (See “Right to Jury Trial,” ante).
Retrial may be barred for egregious prosecutorial misconduct when (1) the misconduct cannot be cured by anything other than a mistrial; (2) the prosecutor knew the conduct was improper and prejudicial; and (3) the prosecutor intended or was indifferent to the resulting mistrial or reversal. State v Kennedy, 295 Or 260, 276 (1983).
VIII. DELAYS
A. Pre-indictment Delay
The time before an arrest or formal charge is not taken into consideration in determining whether a defendant has been given a speedy trial under the state and federal constitutions. State v Serrell, 265 Or 216, 219 (1973); United States v Marion, 404 US 307, 313 (1971).
B. Speedy Trial
"[J]ustice shall be administered, openly and without purchase, completely and without delay." - Article I, section 10, Or Const
Speedy trial claims under Article I, section 10, are guided by considering (1) the length of the delay and, if it is not manifestly excessive or purposely caused by the government to hamper the defense, (2) the reasons for the delay, and (3) prejudice to the defendant. State v Harberts, 331 Or 72, 88 (2000); State v Ivory, 278 Or 499, 501-04 (1977) (taking Sixth Amendment factors from Barker v Wingo, 407 Or 514 (1972) for Article I, section 10 use); State v Lewis, 249 Or App 480 (2012) (so noting).
Delays under the Oregon speedy-trial statute, ORS 135.747, are determined under the two-step analysis in State v Davids, 339 Or 96, 100-01 (2005). First, the Court determines the amount of delay by subtracting delay that defendant requested or consented to from the total delay. A mere failure to appear does not constitute consent within the statute, rather a defendant gives “consent” to a delay only when the defendant expressly agrees to a postponement that the state or the court requested. Second, the Court determines whether that delay is reasonable. If defendants fail to appear, the delays may be nonetheless reasonable even when they did not consent. State v Glushko/Little, 351 Or 297 (2011).
Article I, section 10, extends to sentencing. The analysis considers: (1) length of delay; (2) reasons for delay; and (3) prejudice to defendant, under State v Ivory, 278 Or 499, 501-04 (1977) (taking Sixth Amendment factors from Barker v Wingo, 407 Or 514 (1972) for Article I, section 10 use). Length “alone can constitute a violation” of Article I, section 10, “if it shocks the conscience or if the state purposely caused the delay to hamper the defense.” As for prejudice, three factors from State v Harberts, 331 Or 72, 93 (2000) are considered: (1) damage arising from lengthy pretrial incarceration; (2) anxiety and public suspicion
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resulting from public accusation of crime; and (3) the hampering of defendant’s ability to defend himself. Regarding due process, the court noted that the “United States Supreme Court has not expressly decided whether constitutional speedy trial rights apply to sentencing.” State v Lewis, 249 Or App 480 (2012).
C. Statutory speedy trial
ORS 135.747 provides for statutory speedy trial rights. In State v Emery, 318 Or 460, 467 (1994), the “court concluded that the purpose of the [speedy trial] statute is not to protect defendants from prejudicial delays – as does the guarantee in Article I, section 10, of the Oregon Constitution – but, rather, is to prevent cases from ‘languishing in the criminal justice system * * * without ‘prosecutorial action’.”
Cf. State v Cupp, 257 Or App 652 (7/24/13) (Douglas) (Nakamoto, Wollhehim, Edmonds SJ) Note: this appeal appears to be based only on the speedy-trial statute. Defendant raised both statutory and constitutional claims at trial, and the Court of Appeals did not expressly state that it was not addressing the constitutional issue.
Cf. State v Mercier, __ Or App __ (10/30/13) (Polk) (Hadlock, Sercombe, Ortega) Sixteen-month delay attributable to the state is not reasonable under ORS 135.747.
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IX. TRIAL
A. Criminal
"In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; to
demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have
compulsory process for obtaining witnesses in his favor." -- Article I, section 11, Or Const
“Article I, section 11, was adopted as part of the original state constitution. Its wording is identical to the wording of Article I, section 13, of the 1851 Indiana Constitution and is, consequently, presumed to have been based on that state’s guarantee* * * * * * It was adopted without amendment or debate.” State v Davis, 350 Or 440, 464 (2011).
The original Article I, section 11, was amended in 1932 and 1934 by adding other guarantees concerning jury verdicts in first-degree murder trials. State v Davis, 350 Or 440, 462 n 9 (2011).
The parts of Article I, section 11, that were adopted with the original Constitution are interpreted under the Priest v Pearce, 314 Or 411 (1992) analysis. That is: text in context, historical circumstances, and case law. The “goal is to determine the meaning of the constitutional wording, informed by general principles that the framers would have understood were being advanced by the adoption of the constitution.” State v Mills, __ Or __ (2013) (citing State v Savastano, 354 Or 64, 72 (2013)).
1. Venue
“Article I, section 11, enumerates a defendant’s right to a trial in a particular place: ‘the county in which the offense shall have been committed.’ It does not codify the common-law rule requiring the state to prove venue as a material allegation. The old common-law rule was one of jurisdiction. The constitutional guarantee is a matter of personal right, which – like other constitutional rights – may be forfeited if not timely asserted.” State v Mills, __ Or __ (2013). See also ORS 131.305(1) (venue is proper in the county in which the offense is committed, with exceptions).
State v Mills, __ Or __ (10/17/13) (Washington) (Landau) Held: “Article I, section 11, enumerates a defendant’s right to a trial in a particular place: ‘the county in which the offense shall have been committed.’ It does not codify the common-law rule requiring the state to prove venue as a material allegation. The old common-law rule was one of jurisdiction. The constitutional guarantee is a matter of personal right, which – like other constitutional rights – may be forfeited if not timely asserted.”
Defendant was charged with driving with a revoked license in Washington County. He waived a jury. After the state rested, defendant moved for a
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judgment of acquittal because the state failed to prove venue in the county. The trial court denied the motion on grounds that a factfinder could conclude that the offense was committed in Washington County. The trial court entered a judgment of conviction.
In this case, the Oregon Supreme Court overruled its precedent that had required the state to prove venue beyond a reasonable doubt as a material allegation of every criminal case. The Court explained: “This court’s past case law * * * has concluded that proof of venue as a material allegation is required by Article I, section 11. Those cases, however, reached that conclusion without analysis. Since 1923, this court has simply stated the conclusion. Certainly, in no case has this court examined the issue in accordance with the interpretive analysis that Priest requires.” The Court noted its recent cases overruling its precedent: State v Savastano, 354 Or 64 (2013), State v Christian, 354 Or 22 (2013), Stranahan v Fred Meyer, Inc., 331 Or 38 (2000), and Yancy v Shatzer, 337 Or 354 (2004).
The Court’s Priest v Pearce analysis is as follows: The text of Article I, section 11, says nothing “about elements of proof.” Instead, “the provision lists ‘a panoply of trial-related rights;’ that an accused “may assert or waive.” “Each of those rights pertains to the conduct of a criminal trial. None pertains to matters of substantive proof.” Those are the rights to:
1. A public trial 2. An impartial jury 3. A trial in the county where the offense was committed 4. Be heard 5. Demand the nature and cause of the accusation 6. Have a copy of the accusation 7. Meet witnesses face to face 8. Have compulsory process.
Moreover, a defendant may waive or forfeit his right to venue if he does not “raise the issue of venue before trial begins – that is, before the jury is empaneled [or, if a court trial], before the court begins to hear evidence.” Here, although “the state was not required by Article I, section 11, to prove that the traffic stop occurred in Washington County, given that defendant did not raise the issue of venue until the trial already had commenced,” “it would be unfair to defendant to hold that he forfeited the opportunity to challenge venue” in this case. The case is remanded to the trial court. If defendant challenges venue, the trial court may hold an evidentiary hearing to determine venue.
2. Compulsory Process
“The right to compulsory process under Article I, section 11, of the Oregon Constitution parallels federal Sixth Amendment jurisprudence.” The “analysis of the two is the same.” “The right to compulsory process encompasses both a right to discovery and a right to compel the production of evidence. A criminal defendant’s constitutional entitlement to discovery is limited to information that is both (1) in the possession of the prosecution and (2) material and favorable to a defendant’s guilt or punishment.” State v West, 250 Or App 196 (2012). (Note: In West, the court cited generally to Brady v Maryland, 373 US 83, 87 (1963), which is not a Sixth Amendment case but instead is a due process case. The court wrote: “right to compel production of materials through subpoena extends only to testimony or documents that there are
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‘material and favorable,’ or otherwise ‘demonstrably relevant’ and with established ‘bearing’ on the case.”).
3. Jury
(a). Right to Jury Trial
The right to a jury trial in Article I, section 11, extends to all offenses if they have the character of criminal prosecutions. Brown v Multnomah County District Court, 280 Or 95 (1977). Indicia to determine a civil from a criminal proceeding include: the type of offense, the penalty, the collateral consequences, punitive sanctions, and arrest and detention. Id. at 102-08.
A person arrested for, and charged with, second-degree criminal trespass (a Class C misdemeanor) is entitled to a jury trial under Article I, section 11, even if the state later reduces that charge to a violation under ORS 161.566. State v Benoit, 353 Or 204 (2013).
A person arrested for, and charged with, third-degree theft (a Class C misdemeanor) is entitled to a jury trial under Article I, section 11, even if the state later reduces that charge to a violation under ORS 161.566. State v Fuller, 355 Or 295 (2013).
State v Benoit, 353 Or 204 (10/03/13) (Multnomah) (Brewer) Defendant was handcuffed, arrested, booked, and jailed for several hours with 49 other people for participating in an “Occupy Portland” protest. The state charged her with second-degree criminal trespass, a Class C misdemeanor. The state then reduced that charge to a violation under ORS 161.566. Violations are prosecuted without a jury, without a right to appointed counsel, and with a burden of proof by a preponderance of the evidence per ORS 153.076, and sentencing cannot include jail time per ORS 153.090. Defendant moved for a jury trial, which the trial court allowed. The state filed the present petition for a writ of mandamus.
The Oregon Supreme Court dismissed the petition and held that defendant is entitled to a jury trial. The Court revisited its five factors to determine if a person is entitled to a jury trial, set forth in Brown v Multnomah County District Court, 280 Or 95 (1977), footnoting that “the court in Brown did not purport to derive those factors from the text or context of Article I, section 11, itself. Brown was decided before this court established its methodology for interpreting original constitutional provisions such as Article I, section 11, in Priest v Pearce, 314 Or 411, 415-16 (1992).” Because “neither party has asked us to reconsider Brown,” the Court “accordingly” applied the Brown factors.”
The prescribed penalty for an offense is not the most important Brown factor to determine if a jury is required under Article I, section 11. Even if jail time is not a possible sentence, a proceeding may be “criminal” in nature. In this case, “the most significant factors are the type of offense” and defendant’s “pretrial arrest and detention.” The legislature made this offense a crime, regardless if the prosecutor can reduce it to a violation. That allowed the state “to subject the defendant to uniquely criminal processes.” Here, “an arrest and pretrial incarceration actually occurred.” It was not just a possibility (as in prior cases) – it happened. Defendant was jailed for several hours, then charged with a crime. “Law enforcement officers were permitted to take those actions only because the legislature chose to criminalize the offense.” (Emphasis in original). “Had the officers chosen to cite the protesters for violations, however, the officers could
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not have arrested and detained them. Thus, the officers’ decision to arrest defendant and the other protestors rather than cite them for violations was a practical choice with legal consequences.” (Emphasis added).
The state’s subsequent reduction did not decriminalize the proceeding. It is a “trauma” with a “stigma” to be arrested and booked. Moreover, employers, landlords, licensing agencies, and others can order arrest records under ORS 181.560.
In sum: “There is no textual, historical, or logical support” to transform a crime “that began with defendant’s arrest, booking, and incarceration for a crime” into a noncrime. “[W]here, as here, the accused already has been subjected to pretrial arrest and detention, such a reduction does not deprive the accused of the right to a jury trial.”
State v Fuller, 354 Or 295 (10/03/12) (Multnomah) (Brewer) Defendant was arrested and jailed for third-degree theft, a Class C misdemeanor and attempted first-degree theft, a Class A misdemeanor. The state then reduced the charges to violations under ORS 161.566. Violations are prosecuted without a jury, without a right to appointed counsel, and with a burden of proof by a preponderance of the evidence per ORS 153.076, and sentencing cannot include jail time per ORS 153.090. Defendant moved for a jury trial under Article I, section 11, which the trial court denied. The Court of Appeals reversed.
The Oregon Supreme Court affirmed the Court of Appeals, concurrently with State v Benoit, issued on the same date. Here, “theft is generally regarded as a crime involving dishonesty” thus emphasizing the “type of offense” factor in Brown (see discussion in Benoit). (Emphasis in original). Also, defendant was at risk of a $6500 fine under the former law then applicable ( charges reduced to violations at that time had the same fine structure as misdemeanors; that law has been amended, see ORS 161.566(2)). Significantly here, defendant was arrested and incarcerated. “No subsequent election by the state to purportedly decriminalize the charges could change the fact that defendant was subjected to those uniquely criminal procedures and their stigmatizing effect.”
(b). Jury Unanimity Not Required; Jury Concurrence
"[I]n the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by unanimous
verdict, and not otherwise[.]" – Article I, section 11, Or Const
A criminal defendant’s constitutional right to trial by jury in Article I, section 11, does not require a unanimous verdict, nor does it forbid conviction by a 10-to-2 verdict. State v Gann, 254 Or 549 (1969).
The “privileges and immunities of citizens of the United States do not necessarily include all the rights protected by the first eight amendments to the Federal Constitution against the powers of the Federal government.” Maxwell v Dow, 176 US 581, 597-98 (1900) (thus States “should have the right to decide for themselves * * * whether there shall be a jury of twelve or a lesser number, and whether the verdict must be unanimous or not.”).
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The Sixth Amendment, through the Fourteenth, does not require a unanimous jury verdict in state courts, although the Sixth Amendment requires unanimity in federal jury trials. Apodaca v Oregon, 406 US 404 (1972). “The origins of the unanimity rule are shrouded in obscurity, although it was only in the latter half of the 14th century that it became settled that a verdict had to be unanimous.” Id. at 407 & n 2 (1972).
“The jury concurrence requirement derives from the Oregon Constitution, statute, and case law. * * * ORS 136.450(1) requires that ‘the verdict of a trial jury in a criminal action shall be by concurrence of at least 10 of 12 jurors.’ * * * A jury concurrence instruction (or ‘Boots instruction’) prevents juror confusion and ensures that the jurors agree upon the specific factual predicates for the conviction.” “The test for ‘whether a Boots instruction is required is whether the law or the indictment has made the fact at issue “essential to the crime charged.”’” Under case precedent, the specific crime that defendant intended to commit upon entry is “essential to the crime charged” and accordingly “the jury must concur on the specific crime that defendant intended to commit when defendant attempted the unlawful entry.” In this case, the indictment does not charge alternative crimes (in such cases, the jury concurrence on lesser-included offenses is implicit even without a Boots instruction). State v Frey, 248 Or App 1 (2012).
The Court of Appeals has rejected a defendant’s claim that the trial court committed plain error by instructing the jury that it could convict him on a nonunanimous agreement. State v Ferguson, 247 Or App 747 (2012) (citing State v Cobb, 224 Or App 594 (2008) rev den, 346 Or 364 (2009) and State v Bowen, 215 Or App 199 (2007), adh’d to as modified on recons., 220 Or App 380, rev den 345 Or 415 (2008), cert den, 558 US 52 (2009)).
State v Munoz, 255 Or App 735 (3/20/13) (Washington) (per curiam) The trial court did not err in “refusing to give a concurrence instruction” to the jurors in defendant’s murder trial. The killing was a gang- stabbing of the victim. Defendant asked the trial court to instruct the jury that at least 10 jurors had to concur as to whether he was criminally liable either as a principle or as an accomplice. But regardless how many jurors believed he was a principle or an accomplice, “the requisite number of jurors agreed that defendant, either as a principle or accomplice, intentionally caused the victim’s death.” Under ORS 161.150, a person is guilty of a crime whether he commits it or by another’s conduct for which he is criminally liable, and under case precedent, “an accomplice theory of liability is not itself an independent offense. The Court of Appeals here followed its precedent in State v Phillips, 242 Or App 253 (2011), rev allowed, 351 Or 586 (2012).
(c). Number of Jurors
“Provision may be made by law for juries consisting of less than 12 but not less than six jurors.” -- Article VII (Amended), section 9, Or Const
“[I]n the circuit court ten members of the jury may render a verdict of guilty or not guilty * * *.” -- Article I, section 11, Or Const
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In criminal cases, if the only charges to be tried are misdemeanors, “the trial jury shall consist of six persons.” ORS 136.210(2) (enacted in 1979 under authority of Article VII (Amended), section 9, of the Oregon Constitution).
“Article VII (Amended), section 9, was referred by the legislature for popular vote in 1971 and adopted by the voters in 1972.” State v Sagdal, __ Or App __ (2013).
As to Article I, section 11, in 1934: “the voters’ intent in adopting the 10- person jury verdict provision in Article I, section 11, was to provide for nonunanimous jury verdicts when the jury has 12 members. The amendment was not intended to mandate a minimum of person required to comprise a jury.” State v Sagdal, __ Or App __ (2013).
A State can, consistently with the Sixth Amendment that applies to the States through the Fourteenth, try a defendant in a criminal case with a jury of six rather than twelve members. Williams v Florida, 399 US 78, 86 (1970). That is so, apparently even though “there can be no doubt” that the Sixth Amendment was intended to be composed of twelve jurors. The States may make and enforce their own laws as long as they do not conflict with the Fourteenth Amendment. The right to a 12-person jury is not a privilege or immunity of national citizenship, thus the Seventh Amendment does not preclude the States from enacting laws as to the number of jurors necessary to compose a petit jury in a noncapital criminal case. Maxwell v Dow, 176 US 581 (1900).
State v Sagdal, __ Or App __ (10/09/13) (Multnomah) (De Muniz SJ, Ortega, Nakamoto) Defendant requested a jury of at least 10 persons to try his misdemeanor charge. The trial court denied the request and empaneled six jurors who found him guilty. The Court of Appeals affirmed, concluding that ORS 136.210(2) (trial juries “shall consist of six persons” in misdemeanor charges) comports with Article I, section 11, and Article VII (Amended), section 9, of the Oregon Constitution.
Article I, section 11, provides: “[I]n the circuit court ten members of the jury may render a verdict of guilty of not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise[.].” That segment was referred as a constitutional amendment and voters adopted it in 1934.
Starting with text, the word “may” is permissive. The word “save” means to “except,” in the 1933 edition of Black’s Law Dictionary, and “except” means “to take or leave out * * * to exclude,” in Black’s Law Dictionary. So “the intended effect of the 1934 amendment was to allow a nonunanimous jury verdict in criminal cases other than murder in the first degree, not to create a right to a jury of a particular size.” As to context, in 1934, juries in circuit court were 12 people, and juries in district court were fewer than 12. The ten-person jury verdict provision in the 1934 amendment was intended to provide for nonunanimous jury verdicts, not a requisite minimum number, based in part on State v Osbourne, 153 Or 484 (1936) and State v Sawyer, 263 Or 136 (1972) as context. The court here continued to “historical circumstances” in its analysis, specifically the voters’ pamphlet, which stated that the intent of the 10-person jury verdict provision was to prevent one or two jurors from controlling the outcome, which would make obtaining a conviction easier. In sum, “the voters’ intent in adopting the 10-person jury verdict provision in Article I, section 11, was to provide for
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nonunanimous jury verdicts when the jury has 12 members. The amendment was not intended to mandate a minimum of person required to comprise a jury.”
Article VII (Amended), section 9, was referred by the legislature to the voters, who adopted it in 1972. That provision allows the legislature to make laws for juries of 6 to 12 people. The court here engaged in a lengthy analysis of the erroneous information in the voters’ pamphlet, and the provision’s different phrasing between its legislative introduction and voters’ approval. The court concluded that as adopted by the voters, the provision “was intended to apply to all the courts of Oregon.”
Asserting that its task is to “harmonize” the two constitutional provisions, the court concluded that “the legislature was authorized under Article VII (Amended), section 9, to provide for juries of fewer than 12 persons for misdemeanor cases in circuit court, as it did in ORS 136.210(2).” Affirmed.
(d). Waiver of Jury-Trial Right
"In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury * * * any accused person, in other than capital cases, and with the consent of the trial judge, may
elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing[.] * * * " -- Article I,
section 11, Or Const
In 1932, Oregon voters adopted the part of Article I, section 11, that gives defendants in noncapital cases the right to waive a jury trial and be tried by the court. The purpose was to promote the efficient use of judicial resources by changing the former constitutional rule that had required criminal cases to be tried to a jury. Per State v Baker, 328 Or 355 (1999), Article I, section 11, "grants to only one person the power to defeat a defendant's choice to be tried by the court sitting without a jury – the trial judge." State v Wilson, 240 Or App 708 (2011). In contrast, federal judges must have the government’s approval before accepting a defendant’s written waiver (in addition to the judge’s approval). FRCrP 23(a); United States v Preston, __ F3d __ (9th Cir 02/05/13).
Article I, section 11, gives a criminal defendant in a noncapital case the right to waive a jury, subject to only two conditions: (1) waiver must be in writing and (2) trial court must consent to the waiver. The text does not limit when a defendant must waive that right. State v Harrell, 241 Or App 139 (2011). Holding a bench trial without any written waiver of defendant's right to a jury trial violates Article I, section 11. State v Barber, 343 Or 525 (2007); State v Webster, 239 Or App 538 (2010).
"[A]s the Barber opinion explains, this particular species of error is one that is apparent on the face of the record and, because of the unique specificity of Article I, section 11, this court has no discretion to ignore the error, once it is called to our attention. Barber, 343 Or at 528-30." State v Bailey, 240 Or App 801 (2011).
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(e). Juror Anonymity
"Article I, section 11, permits an anonymous jury only when the trial court finds that the circumstances of a particular case justify that practice and takes steps to mitigate any prejudice to defendant." State v Sundberg, 349 Or 608 (2011).
"[A]nonymous juries are permissible only if the trial court 'concludes that there is a strong reason to believe that the jury needs protection' and the court takes 'reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected.” State v Sundberg, 349 Or 608 (2011) (quoting United States v Paccione, 949 F2d 1183, 1192 (2nd Cir 1991), cert denied, 505 US 1220 (1992)).
A nonexclusive list of factors to be considered in deciding when it is appropriate to withhold juror names from a criminal defendant:
"(1) the defendants' involvement with organized crime; (2) the defendants' participation in a groups with the capacity to harm jurors; (3) the defendants' past attempts to interfere with the judicial process or witnesses; (4) the potential that the defendants will suffer lengthy incarceration if convicted; and (5) extensive publicity that could enhance the possibility that jurors' names would become public and expose them to intimidation and harassment.” State v Sundberg, 349 Or 608 (2011) (quoting United States v Fernandez, 388 F3d 1199, 1244 (9th Cir 2004), cert denied, 544 US 1043 (2005)).
(f). Jury's Duties
"In all criminal cases whatever, the jury shall have the right to
determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases." -- Article I, section 16, Or Const
Article I, section 16, is the result of a compromise at the Oregon Constitutional Convention after intense debate, as noted in Charles H. Carey's The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857 (1926). State v Johnson, 238 Or App 672 (2010).
"[U]nder Article I, section 16 * * * it would be error to allow the jury to decide questions of law. Although the text of the provision states, 'In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law,' the Oregon Supreme Court long ago explained, 'In order to effectuate the clause in the [C]onstitution, "under the direction of the court as to the law," it is the plain duty of the jury to accept and apply the law as given them by the court.' State v Wong Si Sam, 63 Or 266, 272 (1912)." State v Johnson, 238 Or App 672 (2010).
"When a court * * * presents only predicate factual questions to a jury but makes the determination regarding the legal effect of those facts on its own – or, in the words of Article I, section 16, directs the jury with
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respect to legal questions – no violation of Article I, section 16, occurs." State v Johnson, 238 Or App 672 (2010).
(g). Fair Trial – Potential Juror Prejudice
The state, at trial, may not call attention to a defendant's post-arrest silence; a prosecutor's comments to a jury that implicate a defendant's post-arrest silence generally are improper. But under both Article I, section 12, and the Fifth Amendment, a defense attorney during trial cannot "open the door" to the reason for the defendant's post-arrest silence, and then complain that the prosecutor pointed out the defendant's silence to the jury. State v Clark, 233 Or App 553 (2010).
State v Farokhrany, __ Or App __ (10/23/13) (Washington) (De Muniz, Ortega, Nakamoto) Defendant was charged with multiple crimes for allegedly giving cocaine to minors and sexually abusing them. The potential trial jurors did not know defendant’s ethnicity or religion, but knew his last name.
“During voir dire, the prosecutor engaged potential jurors in a discussion about their views regarding the prosecution calling only one witness to prove a fact. The prosecutor contrasted for the potential jurors a scenario that he asserted ‘was out of either Iran or Saudi Arabia’ where an alleged rape victim was required to produce five male witnesses to prove the rape. One juror purported to correct the prosecutor, stating that the prosecutor was describing Sharia law, not the legal system of a country.” The prosecutor used a peremptory challenge to remove that juror, a university student who “was of some type of Indian ethnicity,” due to the student’s “lack of life experience, combined with his chosen field of study” rather than “ethnicity or religious beliefs of the defendant.” A jury was empaneled and sworn.
Defense counsel asked for a curative instruction: that “the jury be instructed not to use defendant’s race, religion, or ethnicity against him in reaching a verdict, and that the prosecutor’s reference to Sharia law was merely an illustration of the difference between legal systems.”
The prosecutor said he always gave that one-witness versus five- witnesses comparison in every sex abuse case. The trial judge, Rick Knapp, “refused to give the proposed instruction, commenting that such an instruction was unnecessary as the jury did not know defendant’s ethnicity or religion.” The jury convicted defendant.
The Court of Appeals reversed defendant’s convictions and remanded for a new trial. Defendant assigned error to the trial court’s failure to give a curative instruction deprived him of his right to a fair trial. The “impartial jury” right in Article I, section 11, guarantees “indifference by jurors to matters of race and religion.” Regardless of the prosecutor’s motives, it was “conduct, blatant or subtle,” that may “border[] on an attempt to introduce * * * issues of racial, ethnic, or religious bias.”
The trial court abused its discretion in failing to give defendant’s proffered jury instruction. “[O]ne likely effect of the prosecutor’s comments was to suggest to jurors that men from countries that follow Sharia law feel free to commit sexual offenses as long as the necessary
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number of male witnesses are not present.” It was therefore “incumbent on the trial court to neutralize the likely effect.”
Note: There is no evidence or discussion about the number of witnesses required in rape cases under Sharia law, or Iranian law, or Saudi Arabian law. The trial court abused its discretion regardless of accuracy of the prosecutor’s statement. Also, no one apparently challenged the prosecutor’s peremptory challenge of the university student.
State v Woodall, __ Or App __ (10/23/13) (Washington) (Schuman, Wollheim, Duncan) This case does not reference the Oregon Constitution. It involved an 8-day jury trial with 15 criminal charges and 24 witnesses.
Defendant was a registered sex offender charged now with multiple counts of rape, sex abuse, sodomy, and giving drugs to minors. Before trial, his attorney moved to exclude any reference to his sex-offender status. The court decided not to rule on those pretrial motions, instead stating that they would be addressed if they arose at trial. But then the defense attorney asked a police officer to read a document, which the officer read, stating that defendant was a registered sex offender. The defense attorney asked for a mistrial. The trial court remarked that the state “convinced me that their witnesses have pretty significant difficulties” in getting through this trial, so “I do find that granting a mistrial for the state would cause a substantial difficulty in their ability to continue with this trial.” The court carefully struck the reference from the record and instructed the jury to disregard the officer’s testimony.
Then during lunch in the court cafeteria, three police officers were openly discussing the case, stating the judge’s name and “the jurors can’t know that he’s a sex offender because it would prejudice the jurors.” Two jurors in the case overheard that and told the officers they were jurors. The officers, the jurors, and a judicial staffer all separately reported the incident to the judge. The court interviewed the jurors, instructed them not to discuss with anyone else, and carefully questioned them regarding potential prejudice, concluding that they were not.
Defendant moved for a second mistrial. The court denied that motion. The jurors convicted defendant.
The Court of Appeals affirmed. Defendant raised two separate assignments of error but the court framed the issue: “Did the repeated references to defendant’s status as a sex offender deprive him of a fair trial?” The court here concluded that on the “daunting standard of review that gives the trial court’s decision great deference,” the trial court did not abuse its discretion, because an abuse of discretion occurs “only when ‘the court’s ruling is not one of “several legally correct outcomes”’”. The court was not required to grant a mistrial on these facts.
The Court of Appeals also cautioned that a trial court should not take “fairness to the state into consideration” on a motion for a mistrial. There is no “balancing prejudice to the state against prejudice to the defendant.” The trial court’s statement that “fairness to the state” was a consideration was “superfluous,” and “would have been “error” if the trial court actually appeared to consider “fairness to the state,” which it did not.
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State v Steltz, __ Or App __ (10/30/13) (Marion) (Hadlock, Sercombe, Ortega) Defendant failed to adequately preserve his claim of error that the trial court’s order, requiring him to wear a Remote Activated Custody Control Belt (“stun belt”), violated his Article I, section 11, and due process rights to be free from physical restraint during trial. It is within the trial court’s discretion to order a defendant to wear shackles or a stun belt if there is evidence of an immediate and serious risk of dangerous or disruptive behavior. Defendant (1) should have asked the trial court to make a record and (2) should have objected on the ground that the trial court impermissibly deferred to the sheriff’s risk assessment. This case was reversed on separate grounds due to a “grave” error.
4. Right to Counsel
See ORS 151.211 et seq on rights to counsel.
“Although an indigent criminal defendant has a right to the assistance of appointed counsel, that right is not to appointed counsel of the defendant’s own choosing. United States v Gonzalez-Lopez, 548 US 140, 151 (2006).” State v Langley, 351 Or 652 (2012).
(a). During Trial
A criminal defendant may waive the right to be represented by counsel at critical stages in criminal proceedings; the waiver must be voluntarily and knowingly made. State v Meyrick, 313 Or 125, 132 (1992). "In determining whether a waiver was knowingly and intelligently made [under the Sixth Amendment], the proper inquiry should focus on the assessment of the defendant's 'knowing exercise of the right to defend himself.'" Meyrick, 313 Or at 137 (quoting Faretta v California, 422 US 806, 836 (1975)). A "colloquy on the record is the preferred method of establishing that the waiver was made knowingly," but courts "will also affirm a trial court's acceptance of a defendant's waiver of the right to counsel where, under the totality of the circumstances, the record reflects that the defendant knew of the right to counsel and understood the risks of self-representation." Evidence to establish an inference of a "knowing" waiver can be the defendant's "prior experience with the criminal justice system," his "first-hand experience of 'some of the basic things that an attorney could do,'" and a "request for retained counsel." State v Easter, 241 Or App 574 (2011).
“A defendant may elect to waive his or her right to counsel and proceed pro se” as long as the waiver is “knowing and intentional” per State v Meyrick, 313 Or 125, 133 (1992). On a counsel’s motion to withdraw, “a trial court may inquire into a defendant’s position on defense counsel’s motion” but “the defendant has no burden to provide information” on the motion. A defendant may waive the right to counsel by his conduct, “so long as the conduct adequately conveys the defendant’s knowing and intentional choice to proceed in court without counsel.” State v Langley, 351 Or 652 (2012).
Closing argument is a critical stage of a criminal proceedings to which Article I, section 11, and the Sixth Amendment attach. State v Easter, 241 Or App 574 (2011).
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State v Lubbers, 257 Or App 595 (7/17/13) (Lane) (Hadlock, Ortega, Sercombe) Defendant stated that he is a 53 year old attorney who is not licensed with the Oregon State Bar. He said he worked as a private investigator and a legal assistant. One morning, defendant Maced several people in Barry's Espresso in Eugene. He resisted arrest and was Tasered. He wanted to proceed to trial without an attorney. The trial judge repeatedly advised defendant that he lacked courtroom knowledge and that his attorney had superior abilities in procedure and evidence. Defendant agreed but said he had made “many, many court appearances” in municipal court on similar charges, and that he was a “business” attorney. The trial judge had required defendant to take a break and confer privately with his attorney before making the decision to represent himself; defendant did so. Defendant called one of his prior lawyers as a witness to testify as to defendant’s fear of police, he claimed to have won “other cases involving ‘issues of police misconduct,’” and he was experienced with the judicial system. After a bench trial, the court convicted defendant.
Defendant appealed, arguing that the trial court violated his right to counsel under Article I, section 11, by allowing him to proceed pro se without a proper showing that he has waived that right. The Court of Appeals affirmed under the state constitution. The trial court correctly granted defendant’s motion to waive his right to counsel – and to proceed representing himself at trial - because the facts establish that his waiver was intelligently made. “Article I, section 11, does not require a catechism by the trial court.” The Court of Appeals also affirmed defendant’s Sixth Amendment argument, although defendant had not made an independent analysis of that basis. Note: Two years after this trial, defendant was arrested for repeatedly slamming a telephone on a female Taco Time worker’s head.
(b). Post-trial
A trial court may accept a defendant's proffered waiver of counsel only if it finds that the defendant knows of his or her Article I, section 11, right to counsel and, if indigent, of his or her right to court-appointed counsel, and that the defendant intentionally relinquishes or abandons that right. State v Meyrick, 313 Or 125, 133 (1992). Under Meyrick, to determine if a defendant has intentionally relinquished or abandoned that right, appellate courts examine the record as a whole and consider the defendant's age, education, experience, and mental capacity, the charge, the possible defenses, and other relevant factors. State v Phillips, 235 Or App 646 (2010).
5. Right to Self-Representation
Under Article I, section 11, and the Sixth Amendment, a criminal defendant has a right to be represented by counsel and to represent himself. State v Blanchard, 236 Or App 472 (2010) (citing State v Verna, 9 Or App 620, 624 (1972) and Faretta v California, 422 US 806, 819 (1975)).
State v Fredinburg, 257 Or App 473 (7/10/13) (Lane) (Sercombe, Ortega, Haselton) The trial court did not abuse its discretion in denying defendant’s motion to substitute counsel and postpone his DUII trial. Defendant made his motion 2 days before the start of trial and at the moment his trial was set to begin. The motions were untimely under ORS 136.070.
Defendant also had asserted his constitutional right to self-representation under Article I, section 11, of the Oregon Constitution (and the Sixth Amendment,
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which the court did not address). The trial court did not err in denying that request: “The request for self-representation and waiver of legal representation may be denied under Article I, section 11, * * * if the request is unclear or equivocal or if it would result in the disruption of the orderly conduct of the trial” per State v Blanchard, 236 Or App 472 (2010). Here, the purported waiver was intelligent and understanding. It may, or may not, have been unequivocal, but the court did not need to reach that issue because “it was within the discretion of the trial court to deny the midtrial request if the court concluded that the timing of the change or other consequences of the self-representation would be disruptive of the orderly conduct of the trial in a way that would be unreasonable under the circumstances.” The trial court has “discretion to deny an unequivocal, knowing, and intelligent request for self-representation.” The record supports the conclusion that self-representation would be unreasonably disruptive in this case (the trial court did not explicitly state that as a basis but the Court of Appeals found that it would delay the process and thus was disruptive).
6. Right to Testify / Right to be Heard
Modifying length of post-prison supervision, sua sponte, and without giving defendant notice or an opportunity to be heard, eight years after the original conviction and sentencing, violated defendant's statutory right to be present at sentencing and his Oregon constitutional right to allocution under Article I, section 11. State v Herring, 239 Or App 416 (2010).
Under the Fourteenth Amendment’s Due Process Clause and the Compulsory Process Clause of the Sixth Amendment, a criminal defendant has a right to take the witness stand and testify on his own defense. Rock v Arkansas, 483 US 44, 49 (1987). “The opportunity to testify is also a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony.” Id. at 52- 53. The Ninth Circuit has concluded that a defendant has a constitutional right to be present at his pretrial competency hearing, and to testify at one. United States v Gillenwater, __ F3d __ (9th Cir 2013).
7. Confrontation
"In all criminal prosecutions, the accused shall have the right * * *i to meet the witnesses face to face * * *." -- Article I, section . 11, Or Const ( (a). Generally
Article I, section 11, was adopted in 1857 without amendment or debate. * * * The provision was derived from the identically worded article from Indiana’s Constitution adopted in 1851.” State v Copeland, 353 Or 816 (2013) (citations omitted).
Article I, section 11, gives an accused the right “to meet the witnesses face to face.” Under Article I, section 11, out-of-court statements made by declarant not testifying are admissible only if (1) the declarant is unavailable and (2) the statement has adequate indicia of reliability, per State v Campbell, 299 Or 633, 648 (1985) (adopting the test from Ohio v Roberts, 448 US 56, 66 (1980)). A statement that falls within a “firmly rooted hearsay exception” or has “particularized guarantees of
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trustworthiness” is considered “reliable” under State v Nielsen, 316 Or 611, 623 (1993). State v Supanchick, 245 Or App 651 (2011).
(b). Hearsay
"[T]o admit hearsay evidence under OEC 803 in a criminal case, the state must establish that the declarant is unavailable for purposes of Article I, section 11." Two requirements must be met: "First, the declarant must be unavailable, and second, the declarant's statements must have 'adequate indicia of reliability.'" State v Cook, 340 Or 530, 540 (2006) (quoting Ohio v Roberts, 448 US 56, 66 (1980))." State v Simmons, 241 Or App 439 (2011).
(c). Unavailable declarant
"A declarant is 'unavailable' under Article I, section 11, if the proponent of the declarant's hearsay statements made a good-faith but ultimately unsuccessful effort to obtain the declarant's testimony at trial. State v Nielsen, 316 Or 611, 623 (1993)." "'The degree of effort which constitutes due diligence in attempting to secure an unavailable witness depends upon the particular circumstances presented by each case.' State v Anderson, 42 Or App 29, 32, rev den, 288 Or 1 (1979)." State v Simmons, 241 Or App 439 (2011).
(d). Forfeiture by Misconduct
The forfeiture by misconduct exception to the hearsay rule (OEC 804(3)(f)–(g)) does not require the state to prove that the defendant engaged in wrongdoing “for the sole or primary purpose of causing a witness to be unavailable.” Under Giles v California, 554 US 353 (2008) and Crawford v Washington, 541 US 36, 54 (2004), the only exceptions to the Sixth Amendment confrontation right are those “established at the time of the founding.” And the “common-law doctrine of forfeiture by wrongdoing constitutes such a founding-era exception to the confrontation right,” but “the defendant must have engaged in wrongful conduct intended to prevent the witness from testifying and, by such wrongful conduct, must have actually prevented such testimony.” Defendant’s sole intent need not have been to prevent the victim from testifying against him. In short, Giles does not require OEC 804(3)(g) to require that the sole purpose of a wrongdoer’s act was to make the victim unavailable as a witness. State v Supanchick, 245 Or App 651 (2011) (the forfeiture-by-misconduct “exception is ‘firmly rooted’ and * * * admission of the victim’s statements pursuant to the exception does not violate defendant’s Article I, section 11, rights”).
(e). Historical Exceptions
A deputy sheriff’s certificate of service of a restraining order, which he was administratively required to serve, does not “trigger” an Article I, section 11, confrontation right because the declaration is an official record that did not include “investigative or gratuitous facts or opinions” and does not “contain a witness statement.” State v Copeland, 353 Or 816 (2013).
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State v Copeland, 353 Or 816 (7/25/13) (Multnomah) (Brewer) Defendant’s former wife obtained a restraining order against him. A sheriff’s deputy certified by written proof of service that he had personally served defendant with that restraining order. Defendant then violated that order. The state charged defendant with punitive contempt under ORS 33.065 (which gives defendants the same constitutional rights as criminal defendants, except for the right to a jury trial). At trial, defendant objected when the state offered the deputy’s certificate of service as proof that defendant had notice of the restraining order. Defendant objected, asserting his confrontation rights were violated if the state did not put the deputy on the stand or show that the deputy was unavailable. The trial court admitted the certificate as an official record under OEC 803(8). The Court of Appeals affirmed.
The Oregon Supreme Court affirmed in a 38-page opinion. First, it interpreted Article I, section 11, under Priest v Pearce, 314 Or 411 (1992), which is “text in its context, the historical circumstances of the adoption of the provision, and the case law that has construed it” with the “goal” of ascertaining “the meaning most likely understood by those who adopted the provision” and “not to freeze the meaning of the state constitution in the mid-nineteenth century” but rather to identify what the “framers” understood to be “relevant underlying principles that may inform our application of the constitutional text to modern circumstances,” per State v Davis, 350 Or 440 (2011).
Given the “historical context” that Article I, section 11, was adopted in, the Court decided “that the framers of the Oregon Constitution likely were influenced to adopt the Article I, section 11, confrontation requirement (1) to prevent the government from using ex parte examinations of suspects and witnesses; and (2) to limit and condition the use of prior testimony in lieu of live witness testimony at trial.” The Court lifted US Supreme Court and Michigan Supreme Court analysis into Oregon’s constitution and concluded that official records as “qualifying documents are admissible in the face of a confrontation objection because they do not contain the statement of a ‘witness’ for purposes of the constitutional guarantee.” At common law, a sheriff’s return of service was admissible as an official record in cases in the 19th century in other states and in Oregon under the Deady Code. Today, ORS 107.718(8)(b) imposes a duty on the sheriff to serve restraining orders and to provide proof of service. The sheriff does not make a “statement of a witness so as to trigger defendant’s confrontation right under Article I, section 11, and it was not necessary to establish that the declarant was unavailable as a condition of its admission.”
The same results from the Sixth Amendment. The certificate of service is not a “testimonial” statement in Crawford v Washington, 541 US 36 (2004) and Melendez-Diaz v Massachusetts, 557 US 305 (2009). A document primarily created for an administrative purpose is not rendered testimonial merely by the possibility that it may be used later in a criminal prosecution.
8. Public Trial
State v MacBale, 353 Or 789 (7/25/13) (Clackamas) (Balmer) Defendant owns the Dolphin 1 Gentleman’s Club in Milwaukie. He was charged with sex crimes against an employee. Before trial, defendant moved for a hearing under OEC 412 (the rape shield statute) to allow him to introduce evidence of the victim’s prior sexual history at his trial. Under OEC 412, that hearing must not be public; instead, an in camera hearing is held. The trial court allowed the OEC 412 hearing, but would not let it be public. Defendant then filed this mandamus petition, which the Court granted.
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The Court dismissed the petition and held: “the exclusion of the public from hearings under OEC 412(4) to determine the admissibility of evidence of a sex crime victim’s past sexual behavior under OEC 412(2) does not violate Article I, section 10 or 11, of the Oregon Constitution or the First or Sixth Amendment to the United States Constitution.” (See “Open Courts” herein for discussion of Article I, section 10).
As to Article I, section 11, the Court wrote that neither the “text or context of Article I, section 11, suggests that the framers intended to require that a pretrial hearing to determine the relevance of a rape victim’s past sexual history take place in public.” (Emphasis by court). Further, it “never has held that the public trial right under Article I, section 11, extends beyond the trial itself to pretrial hearings to determine the admissibility of evidence.”
The Court added that “the only decision in which this court has construed Article I, section 11” is State v Osborne, 54 Or 289 (1909). The jury is not present in OEC 412 hearings, so the goal of a fair trial by having a defendant’s friends present is not “directly furthered” by having public pretrial hearings. In sum: “Article I, section 11, pertains to the trial itself and does not require a pretrial hearing under OEC 412 to be open to the public.”
As to the First and Sixth Amendments: Defendant does not have standing to assert a First Amendment right to access to the OEC 412 hearing (only third parties have standing). And the Sixth Amendment right of public trial extends to pretrial proceedings that are integral to the trial and involve these “values” under United States v Waters, 627 F3d 345 (9th Cir 2010): (1) ensuring a fair trial; (2) reminding the judge and prosecutor of their responsibilities; (3) encouraging witnesses to come forward; and (4) discouraging perjury. The Court here concluded that it has “no trouble” deciding that “those values are not implicated by OEC 412’s requirement” of in camera hearings under the rape shield law.
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10. Victims’ Rights
(a). Victims’ Rights in Article I, section 42
Note: Article I, sections 42 through 45 are lengthy and are not set forth in their entirety here. The full text of Article I is online at http://en.wikisource.org/wiki/Oregon_Constitution/Article_I and also http://bluebook.state.or.us/state/constitution/constitution01.htm
Article I, section 42, in part:
“(1) To preserve and protect the right of crime victims to justice, to ensure crime victims a meaningful role in the criminal and juvenile justice systems, to accord crime victims due
dignity and respect and to ensure that criminal and juvenile court delinquency proceedings are
conducted to seek the truth as to the defendant’s innocence or guilt, and also to ensure that a fair balance is struck between the rights of crime victims and the rights of criminal defendants
in the course and conduct of criminal and juvenile court delinquency proceedings, the following rights are hereby granted to victims in all prosecutions for crimes and in juvenile court delinquency proceedings:
(a) The right to be present at and, upon specific request, to be informed in advance of any
critical stage of the proceedings held in open court when the defendant will be present, and to be heard at the pretrial release hearing and the sentencing or juvenile court delinquency
disposition;
(b) The right, upon request, to obtain information about the conviction, sentence, imprisonment, criminal history and future release from physical custody of the criminal
defendant or convicted criminal and equivalent information regarding the alleged youth offender or youth offender;
(c) The right to refuseArticle an I, interview, section 42, deposition only protects or otherfederal discovery constitutional request rights. by the State criminal v Barrett , 350 Or 390 (2011). defendant or other person acting on behalf of the criminal defendant provided, however, that nothing in this paragraphA victim whoshall established restrict any a otherviolation constitutional of her Article right I, section of the 42,defendant right to toadvance discovery againstnotice the state; of a defendant’s plea and hearing, is entitled to a remedy under Article I, section 52(3)(a). The Double Jeopardy Clause does not bar the remedy of vacating defendant’s sentence and conducting a resentencing hearing. State v (d) The right to receiveBarrett prompt, 350 Or restitution 390 (2011). from the convicted criminal who caused the victim’s loss or injury;
(e) The right to have a copy of a transcript of any court proceeding in open court, if one is
otherwise prepared;
(f) The right to be consulted, upon request, regarding plea negotiations involving any violent felony; and
(g) The right to be informed of these rights as soon as practicable.” -- Article I, section 42(1), Or
Const
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Article I, section 42, in part:
“(2) This section applies to all criminal and juvenile court delinquency proceedings * * *. Nothing in this section reduces a c criminal defendant’s rights under the Constitution of the United States. Except as otherwise specifically provided, this section supersedes any conflicting section of this Constitution.” * * * * *
“(3)(a) Every victim described in paragraph (c) of subsection (6) of this section shall have remedy by due course of law for violation of a right established in this section.” * * * * * -- Article I, section 42(2) and (3), Or Const (in part)
In 1999, voters enacted Article I, section 42, as a ballot measure. HJR 87, 89, 90, 94 (1999); Cf. State v Algeo, 354 Or 236 (2013) (no citation). “In 2008, the voters amended Article I, section 42, to provide victims with a ‘remedy by due course of law’ for violation of their existing constitutional rights. Or Const, Art I, § 42(3)(a).” State v Algeo, 354 Or 236 (2013) (no citation).
Because Article I, section 42, was enacted by voters, it is interpreted based on the voters’ intent. The first focus is text and context, “but also [the courts] may consider the measure’s history, should it appear useful to our analysis.” State v Algeo, 354 Or 236 (2013) (citing Ecumenical Ministries v Oregon State Lottery Comm’n, 318 Or 551, 559 (1994) and State v Gaines, 346 Or 160, 171-72 (2009)).
“The legislature enacted ORS 147.500 to 147.550 to effectuate [the] constitutional rights” in Article I, sections 42 and 43. State v Algeo, 354 Or 236 (2013).
Johnson v Dep’t of Public Safety Stds and Training, 253 Or App 307 (11/7/12) (administrative review) (Schuman, Wollheim, Nakamoto) Article I, section 42(1)(c) does not impose a duty on a private investigator, hired by a defense attorney, to inform a crime victim of his/her right to refuse an interview when conducting an interview. Similarly, a police officer has no duty to inform a person of his/her right to be free from unreasonable searches and seizures when an officer requests consent to search. In contrast, a police officer does have the duty to inform a person of his/her right against self-incrimination under Article I, section 12.
State v Bray, 352 Or 809 (11/30/12) (Deschutes) (De Muniz) This is an interlocutory appeal under ORS 147.537. Defendant, a doctor, raped, sodomized, and strangled a young chemist in his condominium. The morning after the attack, the survivor escaped and Googled something about the definition of rape from her home computer. What she Googled is either unknown or unstated.
While the rape trial was pending, the survivor filed a separate civil suit against defendant. She also tried to delete information from her hard drive. Per a court order, two “clones” were made of her hard drive to preserve it. Her civil-suit lawyer took possession of the clones per court order. Defendant tried to obtain her Google search history from Google, unsuccessfully, see State v Bray, 352 Or 24 (2012). Defendant then subpoenaed the survivor, attempting to order her to bring her laptop or a clone to the criminal trial. She refused and the trial court refused to order her to produce it. The court did order her to produce a clone because one existed in the civil case. After defendant was convicted, the survivor told a newspaper or television reporter that she was going to drop the civil suit. Thus the clone potentially could be destroyed, defendant contended. The trial court issued a proposed order requiring the survivor to produce a clone.
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She filed a claim that production of a clone, even under seal, would violate her rights under Article I, sections 42 and 43, of the Oregon Constitution. After a hearing, the trial court concluded that her rights would not be violated by producing a clone, to be held under seal in an envelope pending the criminal appeal.
The Supreme Court affirmed. First, although the survivor should have filed a petition for review, rather than an interlocutory appeal, the court was not deprived of jurisdiction (“the initiating document was mislabeled” but “construed to be a petition for review,” the petition was allowed). The court footnoted that its discretionary review of this case should not cause “future appellants” to “count on such treatment.” The only issue before the court at this point is the ruling requiring one clone to be placed under seal with the court. Specifically: did that ruling require the survivor to produce “discovery” in contravention of Article I, section 42(c)? The court concluded: “Regardless of what the exact boundaries of ‘discovery’ may be under Article I, section 42, defendant’s request that a clone of the hard drive be preserved under seal for purposes of appellate review, and the trial court’s order allowing that request, do not qualify.”
Note: The Court mused about what “discovery” could mean in Article I, section 42, which voters adopted in 1999. The Constitution does not define “discovery.” The first reference the Court turned to was the word’s “well-defined legal meaning” in Black’s Law Dictionary. The Court didn’t mention anything Oregon-related. Next the Court wrote that the constitutional phrase “other discovery request” is wedged between “interview” and “deposition” “— both of which would occur pretrial --” so therefore “the voters may have intended to refer only to discovery that occurs pretrial.” Would “the voters” know where and when “discovery” occurs in a lawsuit? The Court cited nothing except its own knowledge of where and when discovery occurs in civil litigation. And the Court did not decide what “discovery’ means.
State v Thompson, 257 Or App 336 (6/26/13) (Polk) (Egan, Nakamoto, Armstrong) The trial court correctly entered an amended judgment in favor of a victim (the City of Monmouth) requiring the defendant to pay about $1700 in restitution, after hit a stop sign and a light pole that the city had to repair (he was convicted of failing to perform duties of a driver). The issue in this case arose from the prosecutor’s failure to submit the city’s repair bill to the judge until just before defendant’s sentencing hearing. The trial court would not enter judgment for the light pole repair costs because the prosecutor “Should have got their figure in.” About 3 months later, the city filed a separate claim asserting that its constitutional rights had been violated by the trial court’s refusal to order restitution for the light pole. Five months after defendant’s conviction, the trial court concluded that it had erred by not ordering defendant to pay restitution for the pole and entered an amended judgment imposing restitution. A statute (ORS 147.515(1)) required a victim to inform the court, within 7 days, that he/she/it is a victim under the Oregon Constitution asserting victims’ rights. (That time frame is now 30 days).
The Court of Appeals affirmed under Article I, section 42(3)(a)-(c). The right of a crime victim to receive prompt restitution is created by the Oregon Constitution. That right is not purely statutory. Timely filing is not jurisdictional, as it is with filing a notice of appeal (an appeal being only a statutory right). The statutory time restriction on filing a victims’ rights claim is not jurisdictional. The statutes provide a “procedural path for a crime victim to pursue a remedy for the violation of the victim’s constitutional rights.” But the Court of Appeals here did not address defendant’s argument that the city’s claim was untimely, because it was unpreserved.
And “a trial court may resentence a defendant in order to remedy the violation of a victim’s rights, unless some source of law prohibits that course of action.” (Citing State v Barrett, 350 Or 390 (2011). In this case, ORS 137.106 (2011) did not prevent the court from imposing additional restitution “in these circumstances.”
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State v Wagoner, 257 Or App 607 (7/24/13) (Washington) (Wollheim, Schuman, Nakamoto) Defendant pleaded guilty to identity theft. The victim has a right to restitution. The victim timely gave her restitution documents to the DA’s victim’s advocate. That advocate put the victim’s documents in a desk drawer and failed to give them to the DA, so the DA told the judge that the victim had not submitted a claim for restitution. No restitution was awarded in the judgment entered January 5. On February 1, the victim’s advocate was fired and when cleaning out her desk, workers found the victim’s restitution documents. On March 29, the victim filed a motion asserting that she had a constitutional right to receive restitution under Article I, section 42(1)(d). The court awarded $800 restitution in a supplemental judgment entered on May 24. Defendant appealed.
The Court of Appeals affirmed, under State v Thompson, 257 Or App 336 (2013). The trial court had authority, under Article I, section 42, and ORS 137.106, to award prompt restitution from the convicted criminal more than 90 days after entry of defendant’s judgment. The Court of Appeals concluded: “As in Thompson, ORS 137.600 did not prevent the court from imposing restitution in order to provide the victim a remedy by due course of law, after it was discovered that her constitutional right to restitution was violated.”
State v Algeo, 354 Or 236 (Yamhill) (Walters) In this case, a crime victim argued that because a statute requires a victim’s restitution to be in “the full amount of the victim’s economic damages,” Article I, section 42, should be interpreted to have that same requirement. The Court held: “Article I, section 42(1)(d) does not grant petitioner a right to ‘restitution’ in the ‘full amount’ of her economic damages as that term is defined in ORS 137.106.”
Defendant had been drinking. While driving near Linfield College campus, hit two women who were jaywalking late at night. One woman suffered a fractured skull; she is the petitioner in this case. She does not dispute that she was 90% responsible for the injuries she suffered.
Defendant pleaded guilty to drunk driving and assault. The trial court judgment gave the state 90 days to submit a reasonable final restitution amount, per ORS 137.106. The state timely submitted a proposed supplemental judgment. The amount was the amount defendant stipulated to as the full amount of petitioner’s economic damages. The trial court issued a letter opinion (which became a supplemental judgment) awarding restitution in an amount that was 10% of her full economic damages, because petitioner had been “jaywalking.” The trial court concluded that “almost all of the economic damages suffered by the victim were caused by her violation of the law.” Neither party appealed from that supplemental judgment.
Petitioner hired her own attorney and filed a claim alleging that the supplemental judgment violated Article I, section 42, of the Oregon Constitution, set forth on UTCR Form 4.100.21. She then filed an amended claim on the same form, seeking restitution of her full amount of economic damages. The trial court denied that claim. Petitioner sought review under ORS 147.539, which provides the Oregon Supreme Court with discretionary jurisdiction to review such orders. The Court granted review.
Petitioner’s position is that it does not matter if she is 90% responsible for her injuries. Under Article I, section 42, she is entitled to “receive prompt restitution.” Under ORS 137.106(1)(a) people who commit crimes resulting in economic damages must pay the “full amount” of damages, regardless of who is at fault. She contends that Article I, section 42(1)(d) incorporates that statute, and that the trial court erred by awarding her only 10% of her economic damages.
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The Court affirmed the trial court, holding that the trial court did not err by awarding petitioner less than the full amount of her economic damages. The “term ‘restitution’ as used in Article I, section 42(1)(d), does [not confer] a substantive right to receive the ‘full amount’ of a victim’s economic damages, because either the term ‘restitution’ carries that meaning or because the voters intended that term to incorporate its statutory meaning at the time that restitution is imposed.” Petitioner did not claim that the constitution entitles her to a “substantial” remedy, but rather she contended that she is entitled to the “full amount” of her economic damages.
Further, in 2008 when “the voters amended Article I, section 42, to provide victims with a ‘remedy by due course of law’ for violation of their constitutional rights,” see Article I, section 42(3)(a). The 2008 amendments “do not evince voter intent to provide a constitutional right to the ‘full amount’ of a victim’s economic damages, as provided by Oregon statute.”
(b). Victim Defined
Article I, section 44(3) in part:
“(3) As used in this section, ‘victim’ means any person determined by the prosecuting attorney to have suffered direct financial, psychological or physical harm as a result of a crime and, in the case of a victim who is a minor, the legal guardian of the minor. In the event no person has been determined to be a victim of the crime, the people of Oregon,
represented by the prosecuting attorney, are considered to be the victim. In no event is it intended that the criminal defendant be considered the victim.” -- Art. I, section 44, Or Const
Article I, section 44(3), states that “the people of Oregon” are the victim if no other victim has been identified. The “public is a single collective ‘victim’ of a violation [of the felon in possession law] for purposes of merger.” State v Torres, 249 Or App 571, rev den, 352 Or 378 (2012) (deciding the matter under statute only, not Article I, section 44(3).
B. Civil Jury
"In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases." -- Article I, section
16, Or Const
"In actions at law, where the value in controversy shall exceed $750,
the right of trial by jury shall be preserved * * *." -- Article VII (Amended), section 3, Or Const
“In civil cases three-fourths of the jury may render a verdict.” -- Article VII (Amended), section 5(7), Or Const
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"In all civil cases the right of Trial by Jury shall remain inviolate." --
Article I, section 17, Or Const
1. History and Interpretation
“As we contemplate the brutalities of despotic power arbitrarily exercised in other lands, we can well say with Blackstone, that the right to jury trial is the glory of our law, as the great Commentator felt it to be the glory of the English law.” Pacific Indemnity Co. v McDonald, 25 F Supp 522, 529 (D Or 1938) (commenting on both the Oregon and federal constitutions).
“The language of the constitution indicates that the right of trial by jury shall continue to all suitors in courts in all cases in which it was secured to them by the laws and practice of the courts at the time of the adoption of the constitution. * * * . . So that, in order to ascertain whether such right exists in this case, we must look into the history of our laws and jurisprudence, at and before the adoption of the state constitution.” Tribou v Strowbridge, 7 Or 156, 158-59 (1879).
Article I, section 17, “of the constitution creates no new right to trial by jury. It simply secures to suitors the right to trial by jury in all cases where that right existed at the time the constitution was adopted.” Dean v Willamette Bridge Ry Co, 22 Or 167, 169 (1892); see also Jensen v Whitlow, 334 Or 412, 422 (2002) (Article I, section 17, "is not a source of law that creates or retains a substantive claim or a theory of recovery in favor of any party.”).
2. Specific Claims: Nature of Relief Requested
The right to a jury trial is guaranteed under the Oregon Constitution in those classes of cases in which the right was customary at the time the Constitution was adopted and does not extend to cases that would have been tried in equity. McDowell Welding & Pipefitting v US Gypsum Co., 345 Or 272, 279 (2008) (but see M.K.F. v Miramontes, 352 Or 401 (2012) (nature of relief decides this issue).
“Article I, section 17, guarantees a right to a jury trial for all civil claims or requests for relief, absent a showing that the nature of the particular claim or request at issue is such that it would have been tried to a court without a jury at common law. M.K.F. v Miramontes, 352 Or 401, 425 (2012).” State v N.R.L., __ Or __ (2013).
In cases where both an injunction and money damages are sought, the “right to jury trial must depend on the nature of the relief requested and not on whether, historically, a court of equity would have granted the relief had the legal issue been joined with a separate equitable claim.” M.K.F. v Miramontes, 352 Or 401 (2012) (claims for money damages, even as part of a stalking protective order, have a jury).
Article I, section 17, does not require a jury trial for restitution determinations in adult criminal prosecutions under ORS 137.106. State v Hart, 299 Or 128 (1985).
Article I, section 17, does not require a jury trial for restitution determinations in juvenile delinquency cases under ORS 419C.450. State v N.R.L., __ Or __ (2013).
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Article I, section 17, preserves the right to a jury trial for medical-malpractice claims, including those sustained during a birth. Klutschkowski v PeaceHealth, 354 Or 150 (2013).
State v N.R.L., __ Or __ (10/03/13) (Washington) (Walters) A Youth admitted that he committed acts that, if he were an adult, would be second-degree burglary and first-degree criminal mischief. Before a hearing, he moved for a jury to determine how much restitution he would have to pay. The court denied his motion and entered judgment requiring him to pay $114K. The Court of Appeals affirmed. On review, he asserted jury rights under Article I, section 17 (he did not raise an argument under Article VII (Amended), section 3, or Article I, section 11).
The Oregon Supreme Court held that Article I, section 17, does not require a jury trial for restitution determinations in juvenile delinquency cases under ORS 419C.450. Restitution under that statute does serve a compensatory purpose. But just because a crime victim has a constitutional right to restitution (in Article I, section 42), that right is not analogous to a private right of action for damages: no statute gives a victim a right to a claim against the juvenile offender. Restitution also is a blend of civil and criminal law, but the purpose of restitution under ORS 419C.450 is primarily “a tool to achieve penal and rehabilitative ends.” That statute is not civil in nature, therefore Article I, section 17, did not grant a right to a jury trial in this case.
3. Caps on Noneconomic Damages
Article I, section 17, preserves the right to a jury trial for medical- malpractice claims, including those sustained during a birth. Therefore, Article I, section 17, prohibits the legislature from limiting the jury’s determination of noneconomic damages in medical malpractice cases for injuries during birth. Klutschkowski v PeaceHealth, 354 Or 150 (2013).
Klutschkowski v PeaceHealth et al, 354 Or 150 (9/26/13) (Lane) (Kistler) (Landau, J., concurring) Held: Article I, section 17, prohibits the legislature from limiting the jury’s determination of noneconomic damages in medical malpractice cases for injuries during birth itself (specifically, here, after the baby’s head has been delivered, while the doctor holds the baby’s head in her hands).
This baby sustained a brachial plexus injury during his birth, after his head had emerged and while his shoulders were coming out. It did not occur while he was in his mother’s womb. The family brought a medical malpractice action against several defendants. Several defendants were dismissed before trial. At trial, only the baby’s claim for economic and noneconomic damages went to the jury. The jury found defendants’ employer to be negligent, awarding about $557K in economic damages and about $1.375 million in noneconomics. Defendant moved to apply the statutory cap of $500K on the noneconomic damages (ORS 31.710(1)). Plaintiff responded that the cap’s application would violate Article I, sections 17 and 10. The trial court did not cap the damages. The Court of Appeals reversed and capped the noneconomic damages.
The Oregon Supreme Court reversed the Court of Appeals: the noneconomic damages are not capped, because applying the cap does not violate Article I, section 17. The Court here did not address Article I, section 10 (on remedies).
The Court here corrected the Court of Appeals’ basis for its decision. This is not a “prenatal injury” as in Christiansen v Providence Health System, 210 Or App 290 (2006), aff’d on other grounds, 344 Or 445 (2008). This is an injury to a person during his birth.
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The Court wrote: A “cause of action for medical malpractice preexisted the adoption of the Oregon Constitution. See, e.g., Mead v Legacy Health System, 352 Or 267, 276 n 7 (2012); see also William Blackstone, 3 Commentaries on the Laws of England 122 (1768).” Neither the partiers, nor the Court, found “any nineteenth- century case that discusses one way or the other whether a child could maintain a cause of action for medical malpractice for independent physical injuries that the child sustains during delivery as a direct consequence of the defendant’s acts or omissions.” The Court therefore followed the “general principle that actions for medical malpractice and negligence were recognized in 1857” unless some exception applies, and here no exceptions apply to the timing and type of injuries that this child sustained. And under Lakin v Senco Products, Inc., 329 Or 62, 78 (1999) and Jensen v Whitlow, 334 Or 412, 422 (2002), when a jury trial was customary in 1857 for a type of claim, all factual issues including damages are tried to a jury, and the legislature may not interfere with the full effect of the jury’s noneconomic-damages determination. In sum, applying the statutory cap to the jury’s damages award violated Article I, section 17.
The Court in this case “assume[d]” that “in 1857, a child would not have had a cause of action for physical injuries to the mother during the course of her pregnancy that resulted from a breach of the general standard of due care and that had only a consequential effect on what was, at the time of the injury, a fetus.”
4. Verdicts: “Three-Fourths of the Jury”
Congdon v Berg and Farmers Insurance, 256 Or App 73 (04/03/13) (Multnomah) (Nakamoto, Schuman, Wollheim) The trial court erred in refusing to individually poll the jury, and that error is not harmless. Plaintiff was injured in an auto accident with an uninsured driver. She filed a claim with her own insurer, Farmers Insurance. The parties agreed that the uninsured driver was at fault, so the only issue was damages. A jury awarded her $275K in noneconomic and $48K in economic damages. The jury foreman stated that the verdict was not unanimous. Defendant Farmers Insurance asked the judge to poll each juror to determine if the same 9 jurors agreed on economic and noneconomic damages. The trial court collectively asked for a show of hands to support the economic damages. Nine jurors raised their hands. The court then asked for a show of hands on the noneconomic damages. Eight raised their hands. The court declared the verdict invalid. Plaintiff asked the judge to poll again, and the judge did. This time the judge counted nine hands. The judge did not discharge the jurors but sent them to the jury room while he asked if any party objected to the verdict. Defense counsel asked for an individual polling because s/he had observed different jurors raising their hands for the economic and noneconomic verdicts. Plaintiff disagreed, having counted the same jurors for both. The trial court refused to individually poll the jurors.
That was a mistake. The Oregon Constitution provides that in civil cases, “three- fourths of the jury may render a verdict.” Article VII (Amended), section 5(7). The Court of Appeals here recited: “When there is a twelve-person jury, that means that the same nine or more jurors must agree, in full, on every interdependent element of a particular claim against a particular defendant.” (Quoting Sandford v Chev Div General Motors, 292 Or 590, 613 (1982)).
ORCP 59 G(3) “requires an individual poll of each juror in a manner that demonstrates whether each juror agreed with the entire verdict.” That procedural rule is “an absolute privilege” to each party. The purpose of a jury poll “is to determine if three-fourths of the jurors ‘agree on all issues determined by the verdict,’ * * * whether it be general or special.” (Quoting Sandford v Chev Div General Motors, 52 Or App 579, 587 (1981), aff’d, 292 Or 590 (1982)). “Once the verdict is
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read, the poll, on request, can be conducted in two ways: (1) the jurors can be polled individually on each issue decided, or (2) the jurors can be asked to respond affirmatively or negatively to the question, ‘Is the verdict just read your individual verdict?’, with an instruction that those who say ‘yes’ must agree with the entire verdict.” (Quoting Sandford). Here the court wrote, in sum, “Sandford required the trial court to determine whether the same nine jurors agreed with each part of the verdict upon a request for a jury poll.”
In this case, the trial court’s failure to poll the jurors individually after the showing of hands, as defendant had requested, was harmless and reversible error, “because the trial court’s chosen method for polling the jury failed to establish conclusively whether the same nine jurors agreed with each part of the damages verdict.” The verdict is invalid and must be retried on both economic and noneconomic damages.
Kennedy v Wheeler, 258 Or App 343 (8/28/13) (Yamhill) (Duncan, Schuman, Wollheim) An auto-accident case was tried to a civil jury. The jury instructions and verdict form required “at least the same nine jurors” to agree on “each answer,” with the “answer” involving two subparts: economic and noneconomic damages. The 12- person jury found defendant liable and awarded plaintiff both economic ($65K) and noneconomic ($300K) damages. Defendant requested a poll under ORCP 59 G(3). The poll showed that the jury unanimously agreed that defendant’s negligence caused damage to plaintiff. Nine jurors agreed on the economic damages. Nine jurors agreed on the noneconomic damages. But the same nine did not agree on both economic and noneconomic damages. So only eight jurors agreed on liability, economic damages, and noneconomic damages.”
Before the jury was discharged, defendant brought that issue to the trial court’s attention. The trial court overruled an objection and discharged the jury. Defendant then objected to the court’s receipt of the verdict, arguing that it was invalid because only eight jurors had agreed on both economics and noneconomics. The court overruled the objection. The verdict was filed with the court. Defendant then filed a document entitled “Objections to Judgment and Motion for New Trial” raising the same objection. The court overruled the objection and denied the motion, and then entered a general judgment. Defendant appealed.
The Court of Appeals reversed and remanded, following Congdon v Berg and Farmers Insurance, 256 Or App 73 (2013). “Here, the court instructed the jury that at least the same nine jurors were required to agree on each answer on the verdict form. * * * [T]hat required at least the same nine jurors to agree on the amounts of both types of damages. When the court instructed the jury, apparently without objection, that at least the same nine jurors were required to agree on the amounts of both types of damages, that instruction became the law of the case.” Here only eight jurors agreed on both types of damages. “As a result, the verdict violated Article VII (Amended), section 5(7), of the Oregon Constitution”.
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C. Open Courts
“No court shall be secret, but justice shall be administered, openly and
without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.” -- Article I, section 10, Or Const
Oregon’s “open courts clause” is based on – but not identical to - Indiana’s open courts clause in its constitution of 1851. State v MacBale, 353 Or 789 (2013). The Oregon Supreme Court has decided that the Oregon framers wanted courts to administer justice “in a manner that permits public scrutiny of the court’s work in determining legal controversies,” based on a dictionary definition of the words “secret” and “openly” in Article I, section 10, and citing a law review article, David Schuman, Oregon’s Remedy Guarantee: Article I, section 10 of the Oregon Constitution, 65 OR L REV 35, 38 (1986). Doe v Corp of the Presiding Bishop, 352 Or 77 (2012).
“Article I, section 10, does not compel the trial court to release the public trial exhibits that are subject to a protective order or entitle the public to have access to trial exhibits at the close of trial.” Doe v Corp of the Presiding Bishop, 352 Or 77 (2012). The “command for openness in Article I, section 10, is subject to qualification for some aspects of court proceedings, that, by well-established tradition, were and are conducted out of public view.” Id.
The Oregon Supreme Court interprets Article I, section 10, “by examining the text of the provision, the historical circumstances leading to the creation and adoption of the provision, and the applicable case law concerning the provision.” Doe v Church of Latter Day Saints, 352 Or 77, 87 (2012) (quoting a case that cited Priest v Pearce, 314 Or 411, 415-16 (1992).
Nothing in Article I, section 10, “prohibits a trial court from releasing files to the public. Under ORCP 36 C, issuing and vacating a protective order are within the trial court’s discretion. Doe v Corp of the Presiding Bishop, 352 Or 77 (2012).
“The principle of open justice entitles the public to attend and to view the other aspects of the administration of justice in a court – such as a proceeding to suppress inadmissible evidence – to ensure that the court and the parties comply with the law, and appear to do so, in an accountable manner.” A “court does not comply with Article I, section 10, by confining the public’s attendance in court to only the presentation of admissible evidence.” Doe v Corp of the Presiding Bishop, 352 Or 77 (2012).
Article I, section 10, “does not entitle the public to inspect every trial exhibit at the end of a trial.” Article I, section10, does not create “a right in every observer, at the end of a court proceeding, to obtain the release of the evidence admitted or not admitted during the proceeding.” “Article I, section 10, creates no absolute public right of access to trial exhibits at the close of trial.” Doe v Corp of the Presiding Bishop, 352 Or 77 (2012).
Compare Oregon’s constitutional text and analysis with First Amendment right of access to courts in criminal and civil trials: The US Supreme Court has found that the public has a right of access to voir dire of jurors in criminal trials, see Press–Enterprise Co. v Superior Court, 464 US 501, 511 (1984), and to certain preliminary criminal hearings, see El Vocero de P.R. v Puerto Rico, 508 US 147,
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149–50 (1993) (per curiam) (preliminary criminal hearings as conducted in Puerto Rico); Press–Enterprise Co. v Superior Court, 478 US 1, 10 (1986) (preliminary criminal hearings as conducted in California). Every federal court of appeals that has considered whether there is a right of public access to civil trials has concluded that there is such a right, see Delaware Coalition for Open Gov’t, Inc. v Strine, __ F3d __ (3d Cir 2013) (compiling cases; concluding that the public has a right of access under the First Amendment to Delaware's state- sponsored arbitration program). A proceeding qualifies for the First Amendment right of public access when “there has been a tradition of accessibility” to that kind of proceeding, and when “access plays a significant positive role in the functioning of the particular process in question.” Press- Enterprise Co, 478 US at 10.
State v MacBale, 353 Or 789 (7/25/13) (Clackamas) (Balmer) Defendant owns the Dolphin 1 strip club in Milwaukie. He is charged with sex crimes against an employee. He moved for a hearing under OEC 412 (the rape shield statute) to allow him to bring evidence of his victim’s prior sexual history in at his trial. Under OEC 412, that hearing must not be public; instead, an in camera hearing is held. The trial court allowed the OEC 412 hearing but denied defendant’s request to make that hearing open to the public. Defendant then filed this mandamus petition, which the Court granted. The Court held: “the exclusion of the public from hearings under OEC 412(4) to determine the admissibility of evidence of a sex crime victim’s past sexual behavior under OEC 412(2) does not violate Article I, section 10 or 11, of the Oregon Constitution or the First or Sixth Amendment to the United States Constitution.”
Article I, section 10, is limited to adjudications and does not include all pretrial hearings. An OEC 412 hearing is not an adjudication. Although Oregonian Publishing Co v O’Leary, 303 Or 297 (1987) appears to require the OEC 412 hearing to be open to the public, the Court here shrugged off that case, reasoning:
“O’Leary was decided before this court adopted its current paradigm for interpreting original constitutional provisions. Thus, the court did not scrutinize the words of Article I, section 10, or specifically consider what the framers intended by the phrase ‘no court shall be secret.’”
Further distancing itself from its precedent in O’Leary, the Court added that grand jury proceedings have been secret. And the Court quoted constitutional framer/judge Matthew Deady’s observation in an 1887 case:
“[A]lthough the constitution requires justice to be ‘administered openly and without purchase,’ no one doubts that, * * * in a certain class of cases, the general public, in the interest of public morals and decency, may be excluded from the courtroom.”
The Court thus concluded that the right to public access is not “absolute.” Rather, “despite the court’s sweeping statements in O’Leary, we do not read the court’s decision in that case as standing for the proposition that all pretrial hearings to decide the admissibility of evidence involve adjudications that must be open to the public.”
Further, “Article I, section 10, generally prohibits a judicial proceeding from being ‘secret’ (closed to the public) if, in that judicial proceeding, ‘justice’ is being ‘administered.’ Justice is administered when a court determines legal rights based on the presentation of evidence and argument.” (Emphasis added). Because an OEC 412 hearing “does not result in a determination of guilt or innocence,” “it does not administer justice in that sense.” Instead, the OEC 412 hearing “is narrowly tailored to screen for a discrete type of evidence that the legislature deems to be presumptively irrelevant to a prosecution for
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certain sex crimes.” Closing such a hearing deprives the public of exposure only to private, irrelevant facts. No public interest is advanced. In sum: “a hearing to determine the admissibility of evidence under OEC 412 does not constitute an administration of justice for purposes of Article I, section 10, and that the legislature may provide that such a hearing be closed to the public.”
Note: This opinion also addresses Article I, section 11, which is addressed herein under Public Trial.
X. PUNISHMENT
“No person arrested, or confined in jail, shall be treated with unnecessary
rigor.” -- Article I, section 13, Or Const
“Excessive bail shall not be required, nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense. In all criminal cases whatever, the jury shall
have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases.” -- Article I, section 16, Or Const
“Laws for the punishment of crime shall be founded on these principles: protection of society, personal responsibility, accountability for one’s actions and reformation.” -- Article I, section 15, Or Const
A. Cruel and Unusual; Proportionality
1. Oregon
"This court first articulated the test for determining whether a sentence violates the proportionality provision of Article I, section 16, in Sustar v County Court of Marion County, 101 Or 657 (1921)." State v Wheeler, 343 Or 652, 668 (2007). "Since Sustar, this court often has used the 'shock the moral sense' standard to resolve a claim that a sentence does not meet the proportionality requirement." State v Wheeler, 343 Or 652, 668 (2007).
A punishment is constitutionally disproportionate if it "shocks the moral sense of all reasonable [persons]". Three factors to make that determination are: (1) comparison of the penalty to the crime; (2) comparison of other penalties imposed for other related crimes; and (3) defendant's criminal history. State v Rodriguez/Buck, 347 Or 46, 57-58 (2009).
In Wheeler, the proportionality test includes an assessment of whether the legislature's penalty is founded on an "arguably rational basis," out of respect for separation of powers. In Rodriguez/Buck, "the court appears to have abandoned the 'arguably rational basis' test described in Wheeler," replacing with a 3-factor test: (1) comparison of the severity of the penalty to the gravity of the crime; (2) comparison of the penalties for other related crimes; and (3) the defendant's
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criminal history (and a court's consideration of a defendant's criminal history is not limited to the same or similar offenses). State v Alwinger, 231 Or App 11 (2009), adh'd to as modified on recons., 236 Or App 240 (2010).
Criminal history is one factor in disproportionality analysis, but the lack of a history has never been sufficient to render an otherwise constitutional penalty disproportionate. State v Shaw, 233 Or App 427, rev den 348 Or 415 (2010).
“Under Article I, section 16, a ‘penalty’ is the amount of time that an offender must spend in prison for his ‘offense.’ State v Rodrigutez/Buck, 347 Or 46, 60 (2009). An ‘offense’ is a defendant’s ‘particular conduct toward the victim that constitute[s] the crime.’ Id. at 62. There are two bases on which a particular sentence may violate the proportionality principle. In the first, a sentence may be impermissible if its severity is inappropriate, given the defendant’s criminal act. See id. at 63 * * * In the second, a penalty is impermissible if it is disproportionately severe when compared to a sentence that may be imposed for other, related crimes. Id.” State v Simonson, 243 Or App 535 (2011).
A trial court can take into account a defendant’s mental capacity when determining whether a Measure 11 sentence violates Article I, section 16, under Rodriguez/Buck. “Characteristics of either the defendant or the victim, or both, may be considered.” State v Wilson, 243 Or App 464 (2011).
On probation revocation and vertical proportionality, see State v Barajas, __ Or App __ (2012).
Woodroffe v Nooth, 257 Or App 704 (7/31/13) (Malheur) (Haselton, Brewer pro tem) The trial court did not err in dismissing inmate Woodroffe’s petition for writ of habeas corpus that alleged constitutionally inadequate medical treatment. Plaintiff – the inmate – has obesity, knee pain, headaches, ADHD, and a broken tailbone tip. He wanted stronger pain pills than the doctors and nurses would give him. He refused to meet with the doctor assigned to him. He was caught with “crushed, ‘cheeked’ medications.” He was a “no show” to 12 medical appointments. The Court of Appeals found that the trial court did not err in dismissing his petition for cruel and unusual punishment under either the state or the federal constitutions.
2. Eighth Amendment
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." -- Eighth Amendment,
US Const
(a). Application to the States
Punishment: The cruel and unusual punishment prohibition in the Eighth Amendment applies to the states through the due process clause of the Fourteenth Amendment. Robinson v California, 370 US 660 (1962); McDonald v City of Chicago, 130 S Ct 1316, 3034 n 12 (2010).
Bail: The prohibition against excessive bail in the Eighth Amendment applies to the States. Schilb v Kuebel, 404 US 357 (1971); McDonald v City of Chicago, 130 S Ct 1316, 3034 n 12 (2010).
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Fines: The US Supreme Court has not decided whether the Eighth Amendment's prohibition on excessive fines applies to the states through the Fourteenth Amendment. McDonald, 130 S Ct at 3035 n 13 (citing Browning- Ferris Indust. v Kelco Disposal, Inc., 492 US 257, 276 n 22 (1989)).
(b). “Cruel and Unusual” Includes Proportionality
"The Cruel and Unusual Punishments Clause prohibits the imposition of inherently barbaric punishments under all circumstances. See, e.g., Hope v Pelzer, 536 US 730 (2002). '[P]unishments of torture,' for example, 'are forbidden.' Wilkerson v Utah, 99 US 130, 136 (1879). These cases underscore the essential principle that, under the Eighth Amendment, the State must respect the human attributes even of those who have committed serious crimes. For the most part, however, the Court's precedents consider punishments challenged not as inherently barbaric but as disproportionate to the crime. The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution's ban on cruel and unusual punishments is the 'precept of justice that punishment for crime should be graduated and proportioned to [the] offense.' Weems v United States, 217 US 349, 367 (1910)." Graham v Florida, 130 S Ct 2011, 2021 (2010).
Miller v Alabama and Jackson v Hobbs, 132 S Ct 2455 (2012): “[T]he Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.”
Thompson v Oklahoma, 487 US 815 (1988) (plurality): Capital punishment of offenders under age 16 violates the Eighth Amendment.
Roper v Simmons, 543 US 551 (2005): The Eighth Amendment bars capital punishment for all juveniles under age 18.
Graham v Florida, 130 S Ct 2011 (2010): Life without parole violates the Eighth Amendment when imposed on juvenile nonhomicide offenders.
Kennedy v Louisiana, 554 US 407 (2008): The Eighth Amendment prohibits imposing the death penalty for nonhomicide crimes.
Atkins v Virginia, 536 US 304 (2002): The Eighth Amendment prohibits imposing the death penalty on mentally retarded defendants.
(c). Excessive Fines
(i). Criminal in personam
State v Goodenow, 251 Or App 139 (2012)
(ii). Civil in rem
United States v Ferro, 681 F3d 1105 (9th Cir 2012)
B. Consecutive Sentences; Judicial Factfinding
"No law shall limit a court's authority to sentence a criminal defendant consecutively for crimes against different victims." – Article I, section 44(1)(b), Or Const
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C. Right to Allocution
A defendant has the right to allocution (right to be heard personally) during a hearing to modify a judgment, under Article I, section 11. State v Isom, 201 Or App 687, 694 (2005). The statutory and constitutional rights to speak at a sentence modification proceeding are not unqualified. An enforceable right extends to changes in a sentence that are "substantive" as opposed to "administrative." State v Rickard, 225 Or App 488, 491 (2009).
D. Ex Post Facto
The “framers of the Oregon Constitution intended for Article I, section 21, to proscribe four categories of penal laws: those that punish acts that were legal before enactment; those that aggravate a crime to a level greater than it was before enactment; those that impose greater or additional punishment than that annexed to the crime before enactment; and those that deprive a defendant of a defense that was available before enactment.” State v MacNab, 334 Or 469, 475 (2002).
State v Carroll, 253 Or App 265 (11/07/12) (Benton) (Wollheim, Schuman, Nakamoto) In 2009, the Oregon legislature changed the “look back” period for DUII diversion eligibility, to 15 years (it had been 10 years until the 2009 change). Defendant was convicted of two DUII charges in the past 12 years, then one more in 2009. Therefore he was not eligible for diversion under the 2009 law (ORS 813.215). He filed for diversion anyway. The trial court denied the petition for diversion. Defendant argued that the denial violated state and federal ex post facto requirements.
The Court of Appeals affirmed, citing State v MacNab, 334 Or 469, 475 (2002). First, diversion is not a defense. Second, diversion ineligibility is not a “greater or additional punishment” under McNab. “’Punishment,’ as understood by the constitutional framers, ‘encompasses ‘detriment, restraint or deprivation intended primarily to deter the offender and others from committing future criminal acts,’” the Court of Appeals asserted. The issue is whether the amended law imposes a form of punishment. It does not, as discussed in State v Vazquez-Escobar, 211 Or App 115, 122, rev den, 343 Or 224 (2007) (lifetime revocation was primarily remedial). That case emphasized that “the purpose of the Oregon Vehicle Code is primarily remedial, not punitive,” this Court of Appeals panel stated. The “primary purpose” of the diversion lookback period is “not punitive.” The “practical effect” also is not punitive, because “ex post facto protections are implicated only when the change in the law inflicts punishment ‘not annexed to the crime at the time of commission,” per McNab. Diversion is a procedure to avoid prosecution and punishment. Eligibility for diversion is not punishment. Changes in the criteria for diversion eligibility do not “increase punishment” for DUII under Article I, section 21, of the Oregon Constitution. Defendant did not make a separate argument under the federal constitution “and we would reach the same conclusion under the federal two-part ‘intent-effects’ test,” this Court of Appeals panel wrote.
State v Giles,254 Or App 345 (12/27/12) (Multnomah) (Wollheim, Schuman, Nakamoto) In 1999, defendant murdered a person. A jury convicted him under former ORS 163.115(5) (1997). He was sentenced to “life imprisonment” after serving a mandatory 300-m0nth minimum. After 1999, that statute was declared unconstitutional in a separate case. The legislature later amended it. Defendant here argued that because he murdered after the statute was declared unconstitutional but before the legislature amended it, his current sentence has to be compared to the sentence that this court said applied when he murdered, for ex post facto purposes. The Court of Appeals agreed. As applied to defendant the amended version of the statute would be an ex post facto violation.
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XI. REMEDY GUARANTEE
"[E]very man shall have remedy by due course of law for injury done him in his person, property, or reputation." -- Article I, section 10, Or Const "
See David Schuman, Oregon’s Remedy Guarantee: Article I, section 10 of the Oregon Constitution, 65 OR L REV 35 (1986).
“[I]n analyzing a claim under the remedy clause, the first question is whether the plaintiff has alleged an injury to one of the absolute rights that Article I, section 10 protects. Stated differently, when the drafters wrote the Oregon Constitution in 1857, did the common law of Oregon recognize a cause of action for the alleged injury? If the answer to that question is yes, and if the legislature has abolished the common-law cause of action for injury to rights that are protected by the remedy clause, then the second question is whether it has provided a constitutionally adequate substitute remedy for the common- law cause of action for that injury." Smothers v Gresham Transfer, Inc., 332 Or 83, 124 (2001).
Howell v Boyle, 353 Or 359 (3/14/13) (Landau) This 4:3 opinion includes two dissenting opinions by three dissenters (Walters, DeMuniz, SJ, and Durham, SJ), with Brewer and Baldwin not participating.
A federal jury found that a city police officer hit plaintiff with his car while she crossed a road, resulting in $1 million damages to her, and that both were 50% at fault. The trial court reduced the jury award by 50% for her comparative fault. Defendants (a city and the officer) moved to reduce the $507K award to $200K per ORS 31.270, which is the limit then in the Oregon Tort Claims Act. The district court denied that motion under the remedy clause of the Oregon Constitution. On appeal, the Ninth Circuit certified a 2-part question to the Oregon Supreme Court. One question specifically is: if the remedies clause protects plaintiff’s negligence claim, is a $200K a sufficient remedy despite her contributory negligence?
The Oregon Supreme Court held that to comply with the Remedy Clause, the remedy remaining after a cap must be “substantial” and $200K in this case is substantial. “But for” the damage cap, plaintiff would have recovered $507K. “The damage limitation thus does not leave plaintiff ‘wholly without a remedy,’” the Court decided. The remedy just has to be “substantial.”
Plaintiff had argued – and the dissents in this case agreed -- that she had a common-law right to be made “whole,” and a cap is just a “partial” remedy. But Greist v Phillips, 322 Or 281 (1995) “explicitly rejected” that interpretation, the majority here wrote. “The dissent ignores the court’s holding in Griest.” The Remedy Clause guarantees that plaintiffs “not be left ‘wholly without remedy’” rather than with “a whole remedy.”
When “the state’s constitution was adopted,” “the prevailing law” required a plaintiff to prove that the defendant’s negligence caused her injury and also that her own actions did not contribute to her injuries. “Contributory negligence, in other words, was a principle of causation that constituted a part of a plaintiff’s burden of proof.” There apparently are no Oregon cases from 1857 or 1859 but other states’ cases “strongly suggest that Oregon’s courts followed the established rule.” The Court footnoted cases from Alabama, Connecticut, Iowa, Illinois, Indiana, Louisiana, Missouri, New York, Maine, New Hampshire, New Jersey, Ohio, Pennsylvania, Vermont, and Wisconsin, giving all of those states apparent equal weight. The Court then recited several Oregon cases from 1870 to the 1880s – “a few short years later” than 1857 or 1859 – to show that Oregon’s courts “followed the established rule.” (Note: That seems to mean they followed “the established rule” in 1857 or 1859, although if no cases from 1857-59 show what the “established rule” was then perhaps there was no “established rule” in Oregon in 1857-59.)
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The Court agreed with the dissent “that it is exceedingly difficult to determine the state of Oregon law over 150 years ago. Nevertheless, that is what Smothers requires.” As for the dissent’s observation that the “substantial remedy test” is “standardless and lacks a guiding principle,” the Court noted that the dissent in Greist had made the same observation, and also, “The fact is that not every constitutional provision can be reduced to a neat formula that avoids the necessity of applying careful judgment to the facts and circumstances of each case.”
Schutz v La Costita III, Inc., 256 Or App 573 (5/15/13) (Multnomah) (Schuman, Wollheim, Nakamoto) Plaintiff got very drunk in defendant’s bar. She drove home with at least a .24% BAC. She drove the opposite direction on 1-5, crashed into another car, and became a quadriplegic. She sued the bar for negligently serving her while she was drunk. Defendant bar moved to dismiss under ORCP 21 A(8), alleging that ORS 471.565 bars claims against alcohol servers by the alcohol consumer. The trial court granted that motion and a limited judgment was entered dismissing plaintiff’s claim against the bar.
The Court of Appeals affirmed. Plaintiff alleged that her alcohol consumption was voluntary, so the statute prohibits her claim against the bar. Her Article I, section 10, argument also fails. Smothers v Gresham Transfer, Inc., 332 Or 83 (2001) requires a court to consider whether the common law in Oregon in 1857 would have recognized plaintiff’s claim for her injuries. The Court of Appeals concluded: “Even if there had been a cause of action against alcohol purveyors for injuries sustained as a result of negligently served alcohol in first-party cases such as this one, the action would have been foreclosed by the well-settled doctrine of contributory negligence, if not also by assumption of the risk.” The “extensive and detailed dicta” in Howell v Boyle, 353 Or 359 (2013), concluded that contributory negligence was a “complete bar” to mid-19th century negligence claims. Although that was “pure dicta,” the Court of Appeals here felt it would be “imprudent to ignore it,” citing the three-justice dissent in Howell as “three members of the court.” (Note: two of those three were senior judges). The Court of Appeals concluded that “plaintiff in this case would not have had a cause of action in 1857 against defendant as her claim is pleaded.”
Alcutt v Adams Family Food Services, Inc., 258 Or App 767 (10/09/13) (Umatilla) (Sercombe, Ortega, Hadlock) Plaintiff slipped off a footstool while working at McDonald’s. His workers’ comp claim was denied based on preexisting disc disease. Plaintiff then sued defendant (McDonald’s franchise) alleging negligence and violation of workplace-safety rules. The trial court dismissed plaintiff’s case for lack of subject matter jurisdiction, ORCP 21 A(1), reasoning that workers’ comp is the exclusive remedy, ORS 656.018. Plaintiff appealed arguing that that ruling violated his right to a remedy under Article I, section 10, as interpreted in Smothers v Gresham Transfer, Inc., 332 Or 83 (2001), and misinterpreted ORS 656.019 (“An injured worker may pursue a civil negligence action for a work-related injury that has been determined to be not compensable because the worker has failed to establish that a work-related incident was the major contributing cause of the worker’s injury.”).
The Court of Appeals reversed in part and affirmed in part. First, ORS 656.019 bars plaintiff from bringing his action. Second, the remedy clause of Article I, section 10, entitles plaintiff to bring a civil negligence claim in circuit court, despite ORS 656.018 (the workers’ comp exclusive-remedy statute).
The court reasoned: Smothers “held that a plaintiff who has been denied a workers’ compensation remedy due to application of the major contributing clause standard (i.e. where the work incident was a contributing cause, but not the major contributing cause, of the plaintiff’s disability or need for treatment) is entitled – if he or she ‘alleges an injury to an “absolute” common-law right’ that existed when the Oregon Constitution was drafted in 1857 – to seek redress for that injury notwithstanding the exclusive remedy provision of ORS 656.018.” Then, after Smothers, the Oregon Legislature enacted ORS 656.019 to “lessen the impact” of Smothers by increasing “the number of claims” accepted into the system. That statute allows a worker to file a civil negligence action if his workers’ comp claim failed because the worker failed to establish that the work accident was not the major contributing cause of his injury. But in this
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case, defendant -- not plaintiff – succeeded in proving that the otherwise compensable injury was not the major contributing case. The court “therefore reject[ed]” ORS 656.019 as a basis for subject matter jurisdiction and moved to the Smothers-based constitutional argument.
“Smothers enunciated a two-part test, to be applied on a ‘case-by-case’ basis” to determine Article I, section 10, violations. First, was the alleged injury recognized in 1857? If yes, and if the legislature abolished the cause of action, then did the legislature provide “a constitutionally adequate substitute remedy”? The court here applied that analysis to plaintiff’s three claims. It concluded that the remedy clause does not protect plaintiff’s claim of relief under the Oregon Safe Employment Act (OSEA) (ORS ch 654) but does protect his two negligence claims notwithstanding ORS 656.018. Workers’ claims for negligence against employers and negligence per se were recognized in Smothers, the first explicitly and the second implicitly. But the OSEA claim is based on a statute adopted in 1973, it did not exist at common law, and thus “ORS 656.018 may properly be applied to bar plaintiff’s claim for defendant’ alleged violation of OSEA.”
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XII. HARMLESS VERSUS PREJUDICIAL ERROR
"If the supreme court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was
such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial * * * ." – Article VII (Amended), section 3, Or Const
A. Oregon Constitution
"Under Article VII (Amended), section 3, of the Oregon Constitution, an appellate court must 'affirm a conviction, notwithstanding any evidentiary error, if there is little likelihood that the error affected the verdict.'" State v Gibson, 338 Or 560, 576, cert denied 546 US 1044 (2005). In determining the possible influence on the jury, courts consider whether the evidence went to "the heart of * * * the case." State v Sanchez-Alfonso, 239 Or App 160 (2010) (quoting State v Davis, 336 Or 19, 34 (2003)).
The "test for affirmance despite error" is: "Is there little likelihood that the particular error affected the verdict?" State v Davis, 336 Or 19 (2003) (held: the trial court should not have admitted the physician's diagnosis of child sex abuse under the circumstances of this case; error was not harmless); State v Gibson, 338 Or 560, 576, cert denied, 546 US 1044 (2005). Whether the erroneous exclusion of evidence is “harmless” depends on the content and character of evidence, as well as the context in which it was offered. Erroneous exclusion of evidence that is "merely cumulative" of admitted evidence and not "qualitatively different" than admitted evidence generally is harmless. State v Davis, 336 Or 19, 32-34 (2003).
That standard applies whether the evidence in question is scientific or ordinary. State v Willis, 348 Or 566, 572 n 2 (2010) (citing Melendez-Diaz v Massachusetts, 129 S Ct 2527 (2009) for Sixth Amendment issue).
State v Newman, 353 Or 632 (5/31/13) (Multnomah) (Baldwin) (Brewer not participating) Defendant was charged with felony drunk driving with a .15% BAC. He sought to introduce evidence that he suffers from a sleepwalking disorder and was “sleep driving” when stopped for DUII. The trial court excluded his “sleep driving” evidence (which was, through an offer of proof, his testimony, his friend’s testimony about his prior sleepwalking, and a neurologist’s expert testimony about “parasomnia” as an unconscious act). He waived a jury and the court convicted him of felony DUII. The Court of Appeals affirmed, reasoning that DUII is a strict- liability offense.
The Supreme Court reversed because the sleepwalking evidence is “relevant” to the voluntariness element of DUII and “the jury was required to find that defendant engaged in a volitional act that led to the proscribed act of driving, but was permitted to consider evidence that defendant engaged in volitional acts other than the act of driving.” (Note: the Court wrote that defendant had waived a jury.). In any event, the trial court’s err was not harmless because defendant’s “sleep driving” evidence tended to rebut an essential element of the state’s case; that is whether defendant committed “a voluntary act that led to his driving.”
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State v Whitmore, __ Or App __ (7/24/13) (Lane) (Nakamoto, Schuman, Wollheim)
B. Federal Constitutional Rights
Oregon courts assess violations of federal constitutional rights under the federal harmless error test in Chapman v California, 386 US 18, 23 (1967). That is, the "deprivation of such a right is harmless error when the reviewing court, in examining the record as a whole, can say, beyond a reasonable doubt, that the error did not contribute to the determination of guilt." State v Sierra-Depina, 230 Or App 86, 93 (2009).
C. Statutory “harmless error”
"Harmless error" doctrine is set out in ORS 138.230: "After hearing the appeal, the court shall give judgment, without regard to * * * technical errors, defects or exceptions which do not affect the substantial rights of the parties."
D. Other cases on preservation, plain error, harmless error, and discretion
An error, preserved or not, is “grave” if the evidence is insufficient to convict. The “entry of a criminal conviction without sufficient proof * * * is of constitutional magnitude.” State v Reynolds, 250 Or App 516, 522 (2012); State v Tilden, 252 Or App 581 (2012) (same). A defendant “obviously has a significant interest in not being convicted of a crime that the state did not prove, while the state has no conceivable interest in upholding [an] erroneous conviction.” Tilden, 252 Or App 581 (2012).
“An error is plain if it is a legal error that is obvious or not reasonably in dispute and the court need not go outside the record or select among competing inferences to discern it. State v Brown, 310 Or 347, 355, 800 P2d 259 (1990). If we conclude that an asserted error is plain, we must determine whether to exercise our discretion to address the error. Ailes v Portland Meadows, Inc., 312 Or 376, 382, 823 P2d 956 (1991).” State v Birchard, 251 Or App 223 (2012). Factors to determine if discretion should be exercised include “the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice * * * ; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case another way, i.e., whether the trial court was * * * presented with both sides of the issue and given an opportunity to correct any error. Ailes, 312 Or at 382 n 6.
Plain error is evaluated under the law at the time the appeal is decided. State v Tilden, 252 Or App 581 (2012).
State v Higgins, 258 Or App 177 (8/14/13) (Deschutes) (De Muniz, SJ, Ortega, Sercombe) The jury question in this case is whether defendant had forcibly raped and sodomized a girl, or instead whether the acts were consensual. There was no physical evidence of force, so the state’s case rested on the victim’s credibility. In those types of cases (where the case is a credibility contest between victim and defendant), evidence commenting on the credibility of either person is likely to be harmful. At trial in this case, the victim’s mother answered a prosecutor’s question by stating that her daughter (the victim) told the mother that the man had forced himself on her, and it went “all the way” and the mother “waited like so many hours and let her
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repeat it to me again that way I knew for sure she wasn’t lying.” Defense counsel did not object.
The Court of Appeals held that the trial court’s admission of the mother’s comment on the victim’s credibility is plain error. (So although it was unpreserved, as normally required under ORAP 5.45(a), the appellate courts may correct it because the rule is straightforward that one witness cannot testify that he believes another witness, or that the other witness is honest or truthful).
The court then exercised its discretion to correct the error, under the factors listed in footnote 6 of Ailes v Portland Meadows, Inc., 312 Or 376, 382 (1991). Here the witness who commented on the victim’s credibility was the victim’s mother, which “significantly increases the risk that the jury’s credibility determination was affected” by the mother’s comments. In sum: “the gravity of the error and the ends of justice require that we exercise our discretion to correct the error, reverse defendant’s convictions, and remand for a new trial.”
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XIII. EQUAL PRIVILEGES AND IMMUNITIES
"No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens." -- Article I, section 20, Or Const
Article I, section 20, prohibits two types of unequal treatment: "first, to any citizen, and second, to any class of citizens." State v Clark, 291 Or 231, 237, cert denied 454 US 1084 (1981). Article I, section 20, “applies to government actions generally, including prosecutors making charging decisions.” State v Savastano, __ Or __ (2013).
A. Classes of Citizens
Article I, section 20, "may be invoked by an individual who demands equality of treatment with other individuals as well as by one who demands equal privileges or immunities for a class to which he or she belongs." State v Clark, 291 Or 231, 237, cert denied 454 US 1084 (1981). Class-based claims under Article I, section 20, are similar to Equal Protection claims: a person claims that he or she is unlawfully denied a privilege or immunity based on the person’s membership in some societally-recognized class such as race, religion, or gender. Id.
B. Individual Citizens
To make an individual–based claim under Article I, section 20, “a defendant must initially show that the government ‘in fact denied defendant individually * * * [an] equal privilege * * * with other citizens of the state similarly situated.’” State v Savastano, __ Or __ (2013) (quoting State v Clark, 291 Or 231, 237, cert denied 454 US 1084 (1981)). “An agency or official’s decision will comply with Article I, section 20, ‘as long as no discriminatory practice or illegitimate motive is shown and the use of discretion has a defensible explanation’ in the individual case.” Id. at __ (quoting Clark). “An executive official’s decision will be ‘defensible’ when there is a rational explanation for the differential treatment that is reasonably related to the official’s task or to the person’s individual situation.” Id. at __. “Article I, section 20, does not require consistent adherence to a set of standards or a coherent, systematic policy” but does “require government to treat similarly situated people the same. A government decision-maker will be in compliance with Article I, section 20, as long as there is a rational explanation for the differential treatment that is reasonably related to his or her official task or to the person’s individual situation.” Id. at __ (slip op at 41).
State v Savastano, __ Or __ (9/12/13) (Balmer) (Washington) Until this case, State v Freeland, 295 Or 367 (1983) required prosecutors to have and apply a “coherent, systematic policy” when aggregating theft transactions.” This case overruled Freeland. It reaffirmed State v Clark, 291 Or 231, cert denied 454 US 1084 (1981).
Defendant was charged with embezzling over $200K of her employer’s money in many transactions for 16 months. The prosecutor indicted defendant on 16 theft counts, which was one count for each month she embezzled. The prosecutor’s office did not have a policy to do that, but charged her by month to create a clear organizational outline for the jury. Defendant moved to dismiss the indictment because Freeland interpreted Article I, section 20, as requiring prosecutors to apply a “coherent, systematic policy” when aggregating theft transactions. Defendant did not argue that the prosecutor had any discriminatory or illegitimate motive. She argued that “the prosecutor acted arbitrarily
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when he aggregated the theft transactions by month, because there was no policy for aggregating theft transactions.”
The trial court denied that motion and defendant entered a conditional guilty plea. The Court of Appeals reversed because the prosecutor’s office had no policy providing guidance on aggregating multiple theft transactions, as Freeland required.
The Supreme Court reversed and affirmed defendant’s conviction, overruling Freeland: “Freeland was the first case to hold that Article I, section 20, requires, in addition to the use of permissible criteria, evidence of a policy that standardizes an agency’s exercise of its discretion.” The Court noted that its “post-Freeland decisions involving prosecutorial discretion and Article I, section 20, are not always easy to reconcile with the reasoning in Freeland.” Freeland stands alone, in cases before and after it, in its requirement of a “coherent, systematic policy.” “Freeland, in effect, relieved the defendant of the burden of demonstrating a prima facie violation of Article I, section20, by showing that he or she was treated differently than a similarly situated person, and instead required the state to prove that it had adopted an uniformly applied policies that would prevent such violations. * * * Freeland did not identify any constitutional or statutory basis for imposing that obligation on the state – in the absence of any showing by the defendant of discrimination or the use of improper criteria – and we are aware of none.” “Freeland went beyond the text of Article I, section 20, its history, and the cases interpreting it.” “Freeland adopted a broad prophylactic rule that might well further the rights protected by Article I, section 20, and protect against their violation. [But] that rule is not required by Article I, section 20.”
“Article I, section 20, places the same limitation on other branches of government [such as prosecutors] that it places on the legislature: An executive agency cannot use a criterion in acting in an individual case that the legislature cannot use in enacting a law. * * * That same limitation applies even if no economic benefit is involved.” In other words: “A prosecutor may not use criteria in administering charging procedures that the legislature could not use in enacting laws.” In “making an individual decision, a prosecutor will comply with Article I, section 20, ‘as long as no discriminatory practice or illegitimate motive is shown and the use of discretion has a defensible explanation.”
Now, to bring an individual-based claim under Article I, section 20, a defendant must show that the state denied defendant an equal privilege that other similarly-situated Oregonians. An agency or executive complies with Article I, section 20, if “no discriminatory practice or illegitimate motive is shown and the use of discretion has a defensible explanation.” Here, defendant did not allege that the prosecutor was discriminating against her, such as by race or gender, nor did she contend that similarly- situated people were treated differently. Where, as here, “a defendant does not demonstrate differential treatment” but “claims only that the prosecutor acted arbitrarily, * * * the prosecutor violates defendant’s Article I, section 20, rights if the prosecutor lacks a rational basis for his or her decision.” Defendant’s assertion here “fails under Clark and the cases that preceded it.” The prosecutor had a rational basis for his decision here: he aggregated by month for jury understanding of the case. “That was a reasonable and permissible basis for his action” and “satisfies the requirements of Article I, section 20.”
C. Fourteenth Amendment
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due process of law." -- Fourteenth Amendment, US Const
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The Fourteenth Amendment “was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States. It not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions by appropriate legislation.” Strauder v West Virginia, 100 US 303, 306-07 (1879).
"All equal protection claims, regardless of the size of the disadvantaged class, are based on the principle that, under 'like circumstances and conditions,' people must be treated alike, unless there is a rational reason for treating them differently. See Engquist v Oregon Dep't of Agriculture, 553 US 591, 601-02 (2008) (quoting Hayes v Missouri, 120 US 68, 71-72 (1887)." LaBella Winnetka, Inc. v Village of Winnetka, 628 F3d 937, 941 (7th Cir 2010).
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XIV. TAKINGS
"Private property shall not be taken for public use . . . without just compensation. " – Article I, section 18, Or Const
"No person shall be . . . deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use, without just compensation." -- Fifth Amendment, US Const
“The [federal] Takings Clause is ‘designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ Armstrong v United States, 364 US 40, 49 (1960).” Arkansas Game and Fish Comm’n v United States, __ S Ct __ (2012).
A. Condemnation
1. Introduction
The Just Compensation Clause of the Fifth Amendment applies to the States through the Due Process Clause of the Fourteenth Amendment. Chicago, Burlington, Railroad v Chicago, 166 US 226, 241 (1897).
“A public body that takes private property for public use must pay the property owner ‘just compensation.’ Or Const, Art I, § 18.” City of Harrisburg v Leigh, 254 Or App 558 (2013). In a “total taking” for public use, the owner receives “the fair cash market value of the land” which includes “any improvements thereon.” Ibid. The property is valued on the date the condemnation action is filed or the date the condemnor entered and appropriates the property, whichever is first. Ibid.
Private property is “taken” for public use through “the power inherent in a sovereign state of taking or authorizing the taking of any property* * * for public use or benefit,” under Dep’t of Trans v Lundberg, 312 Or 568, cert den 506 US 975 (1992). Although the government has the power to condemn and take private property (eminent domain), the Fifth Amendment prohibits the government from taking private property without just compensation, which is measured by the market value of the property on the date of the taking. United States v 50 Acres of Land, 469 US 24, 25-26 (1984). “The Fifth Amendment provides, ‘nor shall private property be taken for public use, without just compensation.’ There are two types of ‘per se’ takings: (1) permanent physical invasion of the property, Loretto v Teleprompter Manhattan CATV Corp., 458 US 419, 426 (1982); and (2) a deprivation of all economically beneficial use of the property, Lucas v S.C. Coastal Council, 505 US 1003, 1015-16 (1992).” Laurel Park Community, LLC v City of Tumwater, 698 F3d 1180 (9th Cir 2012).
2. Valuation
Governmental units exercise that authority through condemnation proceedings in ORS chapter 35 and must provide “just compensation” to the property owner based on the fair market value of the property being “taken.” City of Bend v Juniper Utility Company, 242 Or App 9 (2011). The “[a]ppropriateness of a particular valuation method or combination of methods is not determined by
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fixed principles of law, but is a factual determination that depends on the record developed in each case.” Id. at 20–21.
Valuation of “property is measured as of the date the condemnation action is commenced or the date the condemnor enters on and appropriates the property, whichever first occurs.” State v Lundberg, 312 Or 568, 574 n 6, cert denied, 506 US 975 (1992); City of Harrisburg v Leigh, 254 Or App 558 (2013). Note: Lundberg was decided under the federal constitution, and the Court assumed the analysis would be the same under the Oregon Constitution. The Leigh court, conversely, applied the state constitution without noting that Lundberg was decided under the federal constitution.
Where “there is a total taking of the land for public use, the owner is to be compensated by receiving the fair cash market value of the land, which includes the land itself and any improvements thereon which are a part of the realty.” Highway Comm’n v Holt, 209 Or 697, 699 (1957).
“Just compensation is full remuneration for loss or damage sustained by an owner of condemned property. It is the fair market value of the condemned property or the fair market value of that of which the condemnee has been deprived by reason of the acquisition of the condemnee's property. State Highway Comm v Hooper, 259 Or 555, 560 (1971). In the case of a partial taking of property, the measure of damages is the fair market value of the property acquired plus any depreciation in the fair market value of the remaining property caused by the taking. Id. Fair market value is defined as the amount of money the property would bring if it were offered for sale by one who desired, but was not obliged, to sell and was purchased by one who was willing, but not obliged, to buy. Highway Comm. v Superbilt Mfg. Co., 204 Or 393, 412 (1955) (citing Pape v Linn County, 135 Or 430, 437 (1931)). Just compensation requires that valuation of property be based on its highest and best use. Highest and best use is that which, at the time of appraisal, is the most profitable likely use of a property. It may also be defined as that available use and program of future utilization which produces the highest present land value.” Lundberg, 312 Or at 574.
Note: In Lundberg, at footnote 4, the Oregon Supreme Court wrote: “Defendants also relied on Article I, section 18, of the Oregon Constitution, which provides that ‘[p]rivate property shall not be taken for public use * * * without just compensation.’ Defendants, however, do not suggest any different analysis under the Oregon Constitution than under the United States Constitution. Therefore, we assume for purposes of this case, without deciding, that the analysis would be the same under the Oregon Constitution.”
"Oregon law is identical to Fifth Amendment 'physical' takings law." Hoeck v City of Portland, 57 F3d 781, 787 (9th Cir 1995) (citing Ferguson v City of Mill City, 120 Or App 210, 207 (1993)).
Dedications. The "rough proportionality" test from Dolan v City of Tigard, 512 US 374 (1994) governs a Fifth Amendment takings claim. Under that test, "the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development." David Hill Development, LLC v City of Forest Grove, 688 F Supp 2d 1193 (D Or 2010).
City of Harrisburg v Leigh, 254 Or App 558 (01/16/13) (Linn) (Sercombe, Ortega, Hadlock) In the 1990s, the city mistakenly thought it owned defendant’s property and constructed a municipal well and waterworks on defendant’s property without
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defendant’s knowledge. The city used the well to supply its water utility since then. In 2007, the mistake was discovered, and the city sued defendant for adverse possession and prescriptive easement. Defendant filed a counterclaim for ejectment.
In 2008, defendant obtained judgment against the city ejecting the city from her property (the city has “no right, title, or interest in the property”) under ORS 105.055(1). That established that she owned the property. That judgment also ordered the city to decommission the well by a date certain. The city did not decommission the well.
Instead, the city filed a condemnation action one day after the deadline from the prior judgment. The city had declared a resolution that the property was needed for public use, ORS 35.235(1), and offered $7,425 to defendant as “just compensation.” She declined, so the city filed this condemnation action and deposited $7,425 with the court.
At trial, defendant asserted that the ejectment judgment established that she was the owner, including the owner of the improvements, and she is entitled to compensation for the real property as improved, because the city had abandoned any interest in the well by failing to decommission it by the deadline set in the ejectment judgment. The city countered that it owned the well.
The trial court concluded that she was not entitled to money for the increase in the property’s fair market value as improved. That unimproved property value was $11,000, the trial court concluded, and ordered award of that sum as just compensation, together with attorney fees under ORS 35.346(7)(a). Defendant requested $63K in fees. The trial court awarded $45K plus $9K in costs.
The Court of Appeals reversed and remanded. Defendant did not challenge city’s power of eminent domain. She argued that she was entitled to fair market value of the property as improved with the well. The Court of Appeals agreed. The earlier judgment “did not establish ownership of the well; rather, it provided the city with an equitable right to recover the value of the improvements until that date. That right was extinguished when the city failed to do so by the deadline.” So, “ownership of the property, including the well, was adjudicated prior to the condemnation proceeding.”
On remand, “defendant is entitled to additional compensation for any increase in the fair market value of the property that is attributable to its improvements.”
As to attorney fees, the trial court had reduced defendant’s fee award based on its erroneous conclusion that defendant’s interpretation of the ejectment judgment was “unreasonable” and on the small amount of the “just compensation” award. That was error. The Court of Appeals vacated that award (which was in a supplemental judgment) and remanded to the trial court to consider “whether, in light of our conclusion that defendant is owed additional compensation for the value of the property as improved, defendant is entitled to additional attorney fees.”
Although it did not seem to be disputed, the Court also wrote: Property subject to condemnation is valued either on the date the condemnation action is commenced or the on “the date the condemnor enters on and appropriates the property, whichever first occurs,” under Dept. of Transportation v Lundberg, 312 Or 568, 574 n 6, cert den 506 US 975 (1992) (Note: Lundberg was a Fifth Amendment case, not an Article I, section 18, of the Oregon Constitution case. The only constitutional provision referenced in this opinion is Article I, section 18.).
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B. Regulatory Takings and Inverse Condemnation
1. Fifth Amendment
Under the Fifth Amendment, a claim that land use laws violate the Fifth Amendment’s “just compensation” clause, “must be assessed in order to determine if a regulatory taking has occurred,” and that is done by assessing the “parcel as a whole.” Tahoe-Sierra Preservation Council, Inc. v Tahoe Reg. Plann. Agency, 535 US 302, 331-32 (2002); Coast Range Conifers v Board of Forestry, 339 Or 136, 151-54 (2005); Bruner v Josephine County, 240 Or App 276 (2011) (the “entire property interest” must be assessed to determine if a regulatory taking occurred).
To establish an inverse condemnation claim under the Fifth Amendment, the claimant must plead that it has been deprived of all economically viable uses of its property, to create a per se taking under the Fifth Amendment. Lucas v South Carolina Coastal Council, 505 US 1003, 1015 (1992); Bruner v Josephine County, 240 Or App 276 (2011).
“As a general rule, zoning laws do not constitute a taking, even though they affect real property interests: “‘[T]his Court has upheld land-use regulations that destroyed or adversely affected recognized real property interests. Zoning laws are, of course, the classic example, which have been viewed as permissible governmental action even when prohibiting the most beneficial use of the property.’ Penn Cent. Transp. Co. v. City of New York, 438 US 104, 125 (1978) (citations omitted)* * * see also Lingle v Chevron U.S.A. Inc., 544 US 528, 538 (2005) (holding that, in considering a regulatory taking case, ‘we must remain cognizant that ‘government regulation—by definition— involves the adjustment of rights for the public good.” Laurel Park Community, LLC v City of Tumwater, 698 F3d 1180 (9th Cir 2012).
2. Oregon Constitution
“Inverse condemnation is the popular description of a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.” Thornburg v Port of Portland, 233 Or 178, 180 n 1 (1962); Hall v State of Oregon, 252 Or App 649, 651 n 1 (2012), rev allowed __ Or __ (2012) (so stating).
An action to recover the value of private property that the government has taken without first filing condemnation proceedings is an action for "inverse condemnation." Mossberg v University of Oregon, 240 Or App 490 (2011). “Inverse condemnation is the popular description of a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.” Thornburg v Port of Portland, 233 Or 178, 180 n 1 (1962).
“[There are at least two different ways in which governmental action may result in a ‘taking’ by inverse condemnation under Article I, section 18, of the Oregon Constitution. The first arises when a present governmental action creates an expectation that the private land in question eventually will be taken for a public use. See Fifth Avenue Corp. v Washington Co., 282 Or 591, 613 (1978) (illustrating concept). In such circumstances, a property owner must prove that the owner is precluded from "all economically feasible private uses [of the
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property] pending eventual taking for public use" or that "the designation [of the property for eventual public use] results in such governmental intrusion as to inflict virtually irreversible damage." Id. at 613-14. The second category of ‘takings’ by inverse condemnation occurs when the government acts to ‘intervene[ ] to straighten out situations in which the citizenry is in conflict over land use or where one person's use of his land is injurious to others.’ Fifth Avenue Corp., 282 Or at 613 * * *. To establish a ‘taking’ in the latter context, the test is essentially the same as under the former: The property owner must show that the application of the government's particular choice deprives the owner of all economically viable use of the property. Fifth Avenue Corp., 282 Or at 609, 613. If the owner has ‘some substantial beneficial use’ of the property remaining, then the owner fails to meet the test. Dodd v Hood River County, 317 Or 172, 184-86 (1993).” Boise Cascade Corp v Board of Forestry, 325 Or 185, 197-98 (1997) (emphasis added).
“To establish a taking by inverse condemnation, the plaintiff is not required to show that the governmental defendant deprived the plaintiff of all use and enjoyment of the property at issue.” Vokoun v City of Lake Oswego, 335 Or 19, 26 (2002).
“To establish a taking by inverse condemnation, the plaintiff is not required to show that the governmental defendant deprived the plaintiff of all use and enjoyment of the property at issue * * * A ‘substantial interference’ with the use and enjoyment of property is sufficient.” Dunn v City of Milwaukie, 241 Or App 95 (2011) (emphasis added). If government, “in the process of performing some act for the benefit of the public, inflicts a substantial interference with the use and enjoyment of private property, that act can amount to a taking and give rise to a claim” for compensation, under Morrison v Clackamas County, 141 Or 564 (1933). To prevail, the property owner “must prove that the government intended to cause damage” and that damage was a “substantial interference with the owner’s use and enjoyment of the property,” under Volkoun v City of Lake Oswego, 335 Or 19 (2002) and Hawkins v City of La Grande, 315 Or 57 (1992). Dunn, 241 Or App 95 (2011).
A “claim for inverse condemnation requires a showing that the governmental acts alleged to constitute a taking of private property were done with the intent to take the property for a public use." Vokoun v City of Lake Oswego, 335 Or 19, 27 (2002).
Two cases establish a two-part test for assessing the constitutionality of a government exaction of a dedication of private property: First, the exaction must substantially advance the same government interest that would furnish a valid ground for denial of the development permit – also known as the ‘essential nexus’ prong of the test, Nollan v California Coastal Comm’n, 483 US 825, 836-37 (1987). Second, the nature and extent of the exaction must be ‘roughly proportional’ to the effect of the proposed development, Dolan v City of Tigard, 512 US 374, 385 (1994). Brown v City of Medford, 251 Or App 42 (2012).
Damages for takings and under ORS 197.796 are determined as of the date of the injury. Brown v City of Medford, 251 Or App 42 (2012).
The doctrine of unconstitutional conditions “provides that ‘the government may not require a person to give up a constitutional right – here the right to receive just compensation when property is taken for a public use – in exchange for a discretionary benefit conferred by the government where the benefit has little or no relationship to the property.’” (Citing Lingle v Chevron USA, 544 US 528, 547
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(2005)). It “is the imposition of that unconstitutional condition – and not the later physical invasion of the property – that violates a property owner’s rights.” Brown v City of Medford, 251 Or App 42 (2012).
Ordinarily a taking by inverse condemnation does not require a plaintiff to show that the government deprived it of “all” use and enjoyment of the property, but rather a “substantial interference” is sufficient, under Vokoun v City of Lake Oswego, 335 Or 19, 26 (2002). Hall v State of Oregon, 252 Or App 649 (2012), rev allowed, __ Or __.
A lowered value does not establish a compensable taking. When the interference “is legislation or some form of quasi-legislation (agency rules, zoning ordinances, etc.), a taking does not occur unless the enactment deprives the property owner of ‘all substantial beneficial use of its property.’ Fifth Avenue Corp. v Washington Co., 282 Or 591, 609 (1978).” Hall v State of Oregon, 252 Or App 649 (2012), rev allowed, __ Or __.
C. Temporary takings
To assert an inverse condemnation claim for a "temporary taking" under the Oregon Constitution, "the complaining party must allege that it has been denied all economic use of its property under a law, ordinance, regulation, or other government action that either is permanent on its face or so long lived as to make any present economic plans for the property impractical." Boise Cascade Corp v Board of Forestry, 325 Or 185, 199 (1997). To “distinguish between a ‘taking, on the one hand, and simple administrative inconvenience or delay, on the other, it is necessary to require that a complaining party allege some degree of permanence in its loss. We hold that, in order to assert a claim for a ‘temporary taking’ under the Oregon Constitution, the complaining party must allege that it has been denied all economic use of its property under a law, ordinance, regulation, or other government action that either is permanent on its face or so long lived as to make any present economic plans for the property impractical.” Id. at 200.
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XV. RIGHT TO BEAR ARMS
"The people shall have the right to bear arms for the defence [sic] of themselves, and the State, but the Military shall be kept in strict subordination to the civil
power . . ." -- Article I, section 27, Or Const
A. History
Article I, section 17, “was patterned upon and is identical to Art. I, §§ 32 and 33, Constitution of Indiana.” State v Robinson, 217 Or 612, 619 (1959); State v Christian, 354 Or 22 (2013).
Article I, section 27, is not absolute: lawbreakers can be disarmed. In England and colonial America, firearms regulations were directed at public safety concerns; today Oregon laws restricting arms must promote public safety. State v Hirsch/Friend, 338 Or 622 (2005).
B. Tenets
"As a general proposition, individuals in Oregon have a right to possess firearms for defense of self and property, under Article I, section 27." Willis v Winters, 350 Or 299, 302 n 1 (2011) (citing State v Hirsch/Friend, 338 Or 622 (2005)). Article I, section 27, prevents the legislature from infringing on the people’s individual right to bear arms for purposes limited to self-defense. State v Kessler, 289 or 359 (1980) (billy club); State v Christian, 354 Or 22 (2013).
The legislature may prohibit carrying concealed weapons and felons possessing arms when it determines such acts to be threats to public safety. State v Christian, 354 Or 22 (2013). The “legislature has wide latitude to enact specific regulations restricting the possession and use of weapons to promote public safety * * * as long as the enactment does not unduly frustrate the individual right to bear arms for the purpose of self-defense.” Id. A law prohibiting
“[O]verbreadth challenges are not cognizable in Article I, section 27, challenges.” Unlike “protected speech and assembly, recognizing overbreadth challenges in Article I, section 27, cases is not necessary because the enforcement of an overbroad restriction on the right to bear arms does not tend to similarly deter or ‘chill’ conduct that that provision protects.” State v Christian, 354 Or 22, 39 (2013). Instead of facial overbreadth, Article I, section 27, challenges are “conventional facial” challenges. Id. at 40. Such facial challenges are “limited to whether the ordinance is capable of constitutional application in any circumstance.” Id.
State v Christian, 354 Or 22 (2013) (Multnomah) (Baldwin) (Brewer not participating) Defendant walked into a convenience store, placed a black bag behind the counter, left the store, and sat on a chair outside the store. He had a loaded magazine, two knives, and a can of pepper spray on his person. In the bag, he had two loaded .9 mm semiautomatic handguns and additional loaded magazines. Officers searched his car and found a .22 caliber rifle, two sets of handcuffs, police batons, flashlights, and binoculars. He was charged with violating state laws prohibiting carrying a concealed firearm and a knife, and a City of Portland code prohibiting carrying a firearm in a public place having recklessly failed to unload it. He filed a motion to dismiss and a demurrer. Defendant argued that the Portland City Code, banning possession or carrying of loaded firearms in all public places, is facially overbroad and violates Article I, section 27, of the Oregon
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Constitution and the Second Amendment. He acknowledged that both the state and local laws could be constitutionally applied in some circumstances. The trial court denied the motion to dismiss and overruled the demurrer. In a split en banc decision, the Court of Appeals affirmed.
The Oregon Supreme Court affirmed, overruling its precedent and announcing that “overbreadth challenges are not cognizable in Article I, section 27, challenges.” Overbreadth challenges usually apply “only in freedom of expression cases.” But twice, the Oregon Supreme Court had allowed overbreadth challenges in Article I, section 27 cases. “In neither case did the state counter the defendants’ overbreadth theories by claiming that such a theory was unavailable under Article I, section 27. Consequently, this court had no occasion to consider whether an overbreadth challenge should be allowed in Article I, section 27 cases. Both the city and amicus now urge us to limit cognizable constitutional challenges under Article I, section 27, to ‘as applied’ challenges and facial challenges that do not raise issues of overbreadth.” The Court here concluded that arms-rights are not like speech- and-assembly rights that can be chilled unless overbreadth challenges are allowed. In this case (and hereafter), facial challenges under Article I, section 27, are considered “conventional facial” challenges. That analysis “is limited to whether the ordinance is capable of constitutional application in any circumstance.”
The Portland City Code allows possession of loaded firearms in public places if the person has a concealed-handgun license. “Thus, the ordinance is not a total ban on possessing or carrying a firearm for self-defense in public like those bans that this court held violated Article I, section 27, in previous cases. * * * We therefore reject defendant’s facial challenge to the ordinance under Article I, section 27.”
The Court also rejected defendant’s Second Amendment argument under District of Columbia v Heller, 554 US 570 (2008). Heller addressed the right to keep and bear arms for self-defense within the home. This Court (Oregon Supreme Court) declined to extend Heller to include a right to keep and bear loaded firearms in public without restriction. Moreover, the Portland City Code allows a person to carry a loaded firearm in pubic if the person is licensed to carry a concealed handgun. And although Heller did not establish a standard of review for Second Amendment challenges, this Court followed “the majority of federal courts to date” that have applied intermediate scrutiny. (First, Seventh, Tenth Circuits). That means the government (or the state) has to demonstrate that its objective is an important one and its objective is advanced by means substantially related to that objective. Under intermediate scrutiny, the City of Portland “demonstrated that it is important to protect the public from the many risks associated with the presence of loaded firearms in public places” and enforcement of the law “is substantially related to that objective and advances that objective.” No Second Amendment violation.
C. Second Amendment
“A well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be
infringed.” -- Second Amendment, US Const
The Second Amendment applies to the States and to local regulation of firearms. McDonald v City of Chicago, 130 S Ct 3020, 3026 (2010).
The Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” District of Columbia v Heller, 554 US 570,
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592, 635 (2008). A law that “totally bans handgun possession in the home” violates the Second Amendment. Id. at 627, 635.
But the Second Amendment “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” And the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’” limits the Second Amendment right.” Heller, 554 US at 625-27; see also United States v Henry, 668 F3d 637 (9th Cir 2012) (“we hold that the Second Amendment does not apply to machine guns.”).
Cf. Hightower v City of Boston, 693 F3d 61 (1st Cir 2012) (The government may regulate the carrying of concealed weapons outside of the home. Revocation “of a firearms license on the basis of providing false information * * * on the firearms license application form is not a violation of the Second Amendment in this case.”).
Professor Akhil Amar posits that in Article I, section 8, of the US Constitution and the Second Amendment, “army means enlisted soldiers, and militia means citizen conscripts.” Akhil Reed Amar, THE BILL OF RIGHTS 54 (1998) (emphasis in original). In 1789, army meant a “mercenary force” that was “feared” because it was a standing army “filled with hired guns” who had “sold themselves into virtual bondage to the government” and “were typically considered the dregs of society.” Id. at 53. In contrast, the militia was “a randomly conscripted cross- section” of “all citizens capable of bearing arms” who land, families, homes, and served alongside their friends, classmates, parishioners (their community) and thus were less likely to become “servile brutes.” Ibid. and 55.
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XVI. SOVEREIGN IMMUNITY
A. Oregon Constitution
“Provision may be made by general law, for bringing suit against the State, as to all liabilities originating after, or existing at the time of the adoption of this Constitution but no special act authorizeing [sic] such
suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed.” -- Article IV, section 24,
Or Const
Article IV, section 24, of the Oregon Constitution “protects the state, including its political subdivisions, from ‘suit’ unless the legislature provides a cause of action. The courts construe the immunity of the state in Art IV, sec 24, to include immunity for the political subdivisions of the state * * * . The courts could not judicially abolish the unpopular and often harsh doctrine of governmental tort immunity. * * * . In 1967, the Oregon legislature followed the modern trend and passed the Tort Claims Act, thus partially abolishing tort immunity for all public bodies.” Dowers Farms v Lake County, 288 Or 669, 679-80 (1980).
“Article IV, section 24, of the Oregon Constitution protects the state, including its political subdivisions, from ‘suit’ unless the legislature provides a cause of action. Dowers Farms v Lake County, 288 Or 669, 679 (1980).” The Oregon Tort Claims Act, however, “’abrogated, in part, the state’s sovereign immunity.’ Jensen v Whitlow, 334 Or 412, 416 (2002).” Thus under the OTCA, every public body is subject to action or suit for its – and its officers’, employees’, and agents’ – torts, committed in the scope of employment or duties, subject to the time limits in ORS 30.260 to 30.300. The discovery rule applies to the OTCA, so those time periods do not begin until plaintiffs knew or should have known of the facts, see Gaston v Parsons, 318 Or 247 (1994), Stephens v Bohlman, 314 Or 344 (1992), Duyck v Tualatin Valley Irrig Dist, 304 Or 151 (1987), Cooksey v Portland Public School Dist, 143 Or App 527, rev denied 324 Or 394 (1996). Doe v Lake Oswego School District, 242 Or App 605 (2011).
B. Eleventh Amendment
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." - Eleventh Amendment, US Const
In 1793, in Chisolm v Georgia, 2 Dall. 419, the US Supreme Court took jurisdiction in a case brought by a South Carolina citizen against the State of Georgia. The Court reasoned that Article III, section 1, clause 1 (extending federal judicial power to controversies "between a State and Citizens of another State") limited Georgia's sovereign immunity. Chisolm created a "shock of surprise" and prompted the immediate adoption of the Eleventh Amendment. Though the Eleventh Amendment’s precise terms bar only federal jurisdiction over suits brought against one State by citizens of another State or foreign state,
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the Eleventh Amendment repudiated Chisholm's premise that Article III superseded the sovereign immunity that the States had before entering the Union. While immunity from suit is not absolute, the US Supreme Court has "recognized only two circumstances in which an individual may sue a State. First, Congress may authorize such a suit in the exercise of its power to enforce the Fourteenth Amendment – an Amendment enacted after the Eleventh Amendment and specifically designed to alter the federal-state balance. Fitzpatrick v Bitzer, 427 US 445 (1976). Second, a State may waive its sovereign immunity by consenting to suit. Clark v Barnard, 108 US 436, 447-48 (1883)." College Savings Bank v Florida Prepaid, 527 US 666, 670 (1999).
“‘Dual sovereignty is a defining feature of our Nation’s constitutional blueprint.’ Federal Maritime Comm’n v South Carolina Ports Authority, 535 US 743, 751 (2002). Upon ratification of the Constitution, the States entered the Union ‘with their sovereignty intact.’ Ibid.” Sossamon v Texas, 131 S Ct 1651, 1657 (2011). A waiver of sovereign immunity must be expressly and unequivocally stated in the text of the relevant statute. Id. (held: “States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA because no statute expressly and unequivocally includes such a waiver.”).
“Despite the narrowness of its terms, since Hans v Louisiana, 134 US 1 (1890), we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty * * * and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the ‘plan of the convention.’” Blatchford v Native Village of Noatuk, 501 US 775, 779 (1991) (citations omitted).
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XVII. IMPAIRMENT OF CONTRACTS
“No . . . law impairing the obligation of contracts shall ever be passed . . .“ -- Article I, section 21, Or Const
"No State shall . . . pass any . . . Law impairing the Obligation of Contracts." Article I, section 10, clause 1, US Const
A. U.S. Constitution
A court's task is "to reconcile the strictures of the Contract Clause with the essential attributes of sovereign power necessarily reserved by the states to safeguard the welfare of their citizens." United States Trust Co. of New York v New Jersey, 431 US 1, 20 (1977).
B. Oregon Constitution
“Unlike many of the provisions in Article I, of the Oregon Constitution, the provision in section 21 against impairing the obligation of contracts has its ultimate source not in the early state and colonial constitutions but in the Constitution of the United States, Article I, section 10, clause 1, and the Northwest Ordinance of 1787.” Eckles v State of Oregon, 306 Or 380, 389 (1988) (citations omitted). Although the “federal provision was probably intended to apply only to private contracts,” specifically “state debtor relief laws, which many of the framers believed were impairing the credit of the new nation,” in 1810 and 1819, the United States Supreme Court applied the federal provision against states. Id. at 390. “Given this interpretation, Article I, section 21, was very likely intended to apply to both state and private contacts.” Ibid.
To determine if a claim of contractual impairment or breach arises under Article I, section 21: (1) “it must be determined whether a contract exists to which the person asserting an impairment is a party” and (2) “it must be determined whether a law of this state has impaired an obligation of that contract.” Hughes v State of Oregon, 314 Or 14 (1992).
Statutory obligations can become contractual when the statute announces “clearly and unmistakably” that the obligation is immune from statutory change. Campbell v Aldrich, 159 Or 208, appeal dismissed, 305 US 559 (1938); FOPPO v State of Oregon, 144 Or App 535 (1996) (where legislation does not show a legislative commitment not to repeal or amend the statute in the future, a statutory contract probably does not exist).
The “state is not obligated by Article I, section 21, to perform its contracts according to the terms of those contracts, at least where * * * the contractual interests of the parties with whom the state has contracted are financial or property interests. In such cases, Article I, section 21, protects contractual interests by obliging the state to compensate for its breach of those contracts. In this respect, Article I, section 21, is consistent with Article I, section 18.” Eckles v State of Oregon, 306 Or 380, 401 (1988).
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XVIII. UNITED STATES CONSTITUTION
A. Federalism
1. Due Process
“Because the United States is a distinct sovereign, a defendant may in principle be subject to the jurisdiction of the courts of the United States but not of any particular State. This is consistent with the premises and unique genius of our Constitution. Ours is a ‘legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.’ US Term Limits, Inc. v Thornton, 514 US 779, 838 (1995) (Kennedy, J., concurring).” J. McIntyre Machinery, Ltd. v Nicastro, 131 S Ct 2780, 2789 (2011).
Domestic Relations and Equality:
“The nature of injustice is you can’t see it in your own times.”
-- Justice Anthony Kennedy, Remarks at University of California on October 7, 2013, reprinted in the Wall Street Journal, 10/11/13, page A4.
United States v Windsor, 570 US __, 133 S Ct 2675 (6/26/13) (Kennedy)
“The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.” * * * “The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.” * * * “While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.”
“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, see, e.g., Loving v Virginia, 388 US 1 (1967); but, subject to those guarantees, ‘regulation of domestic relations’ is ‘an area that has long been regarded as a virtually exclusive province of the States.’ Sosna v Iowa, 419 US 393, 404 (1975).” * * *
“The avowed purpose and practical effect of [DOMA laws] are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” * * * “DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v Sharpe, 347 US 497 (1954). The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group. Department of Agriculture v Moreno, 413 US 528, 534–535 (1973).”
“By seeking to displace this protection and treating those persons as living in marriages less respected than others, [DOMA] is in violation of the Fifth
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Amendment. This opinion and its holding are confined to those lawful marriages.”
Scalia, J, dissenting from United States v Windsor:
“Near the end of the opinion, we are told that although the “equal protection guarantee of the Fourteenth Amendment makes [the] Fifth Amendment [due process] right all the more specific and all the better understood and preserved”— what can that mean?—“the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does.” Ante, at 25. The only possible interpretation of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today’s holding.” * * * “Near the end of the opinion, we are told that although the “equal protection guarantee of the Fourteenth Amendment makes [the] Fifth Amendment [due process] right all the more specific and all the better understood and preserved”—what can that mean?—“the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does.” Ante, at 25. The only possible interpretation of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today’s holding.”
2. Supremacy
The laws of the United States "shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any state to
“ the Contrary notwithstanding." -- Article VI, clause 2, US Const
“The Supremacy Clause, on its face, makes federal law ‘the supreme Law of the Land’ even absent an express statement by Congress.” Pliva, Inc. v Mensing, 131 S Ct 2567, 2579 (2011).
(i). Preemption
The preemption doctrine stems from the Supremacy Clause. It is a “fundamental principle of the Constitution [] that Congress has the power to preempt state law.” Crosby v Nat’l Foreign Trade Council, 530 US 363, 372 (2000). There are three classes of preemption: express preemption, field preemption and conflict preemption. United States v Alabama, 691 F3d 1269, 1281 (11th Cir 2012) (“Just like Arizona, Alabama has “understandable frustrations with the problems caused by illegal immigration.” * * * Although it is a problem that gives rise to unique issues in our Nation, we must be mindful that individual states “may not pursue policies that undermine federal law.”).
State laws that conflict with federal law are "without effect." Altria Group, Inc. v. Good, 129 S Ct 538 (2008) (quoting Maryland v Louisiana, 451 US 725, 746 (1981)); McCulloch v Maryland, 4 Wheat 316, 427 (1819). “Even in the absence of an express pre-emption provision, the Court has found state law to be impliedly preempted where it is ‘impossible for a private party to comply with both state and federal requirements.’ English v General Electric Co., 496 US 72, 79 (1990). See also Florida Lime & Avocado Growers, Inc v Paul, 373 US 132, 142 (1963) (‘A holding of federal exclusion of state law is inescapable and requires no inquiry into congressional design where compliance with both federal and state regulations is a physical impossibility for one engaged in interstate commerce’).” Mutual Pharmaceutical Co, Inc. v Bartlett, __ US __ (6/24/13).
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In all preemption cases, particularly those where Congress has legislated in a field traditionally occupied by the States, preemption analysis begins with the assumption that the historic police powers of the States were not to be superseded by a federal act unless that was the clear and manifest purpose of Congress. Wyeth v Levine, 129 S Ct 1187 (2009).
The "purpose of Congress is the ultimate touchstone" in every preemption determination. Altria Group, Inc. v Good, 129 S Ct 538 (2008); Wyeth v Levine, 129 S Ct 1187 (2009). Congress may indicate preemptive intent through a statute's express language or through its structure and purpose. Preemptive intent may be inferred if the scope of the statute indicates that Congress intended federal law to occupy the legislative field, or if there is an actual conflict between state and federal law. Altria. An actual conflict will exist either when it is impossible to comply with both state and federal law or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Wyeth, 129 S Ct at 1196-1200 (quoting Hines v Davidowitz, 312 US 52, 67 (1941)).
The Supremacy Clause creates an independent right of action where a party alleges preemption of state law by federal law. Shaw v Delta Air Lines, 463 US 85, 96 n 14 (1983) (“A plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is preempted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve.”).
An Arizona law that intruded on the field of alien registration, a field in which Congress left no room for the States to regulate. Even complementary state regulation is impermissible where Congress intended to have complete federal regulation over the field. The federal government’s broad power over immigration and aliens rests in part on its constitutional power to “establish a uniform Rule of Naturalization” in Article I, section 8, clause 4, and on its inherent sovereign power to control foreign relations. Arizona v United States, 132 S Ct 2492 (2012); Toll v Moreno, 458 US 1, 10 (1982); see also United States v Alabama, 691 F3d 1269 (11th Cir 2012) (state immigration laws stricken in part).
(ii). Supremacy and Intergovernmental Immunity
The "states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government. McCulloch v Maryland, 17 US (4 Wheat) 316, 436 (1819). A state or local law is invalid (thus violating intergovernmental immunity) in either of two ways: "only if it regulates the United States directly or discriminates against the Federal Government or those with whom it deals." North Dakota v United States, 495 US 423, 435 (1990).
3. Necessary and Proper
Congress has power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and
all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." -- Art. I, §8, cl. 18, US Const
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The Necessary and Proper Clause allows Congress to "adopt any means, appearing to it most eligible and appropriate, which are adapted to the end to be accomplished and consistent with the letter and spirit of the Constitution." James Everard's Breweries v Day, 265 US 545, 559 (1924). “The Necessary and Proper Clause * * * authorizes Congress, in the implementation of other explicit powers, to create federal crimes, to confine offenders to prison, to hire guards and other prison personnel, to provide prisoners with medical care and educational training, to ensure the safety of those who may come into contact with prisoners, to ensure the public's safety through systems of parole and supervised release, and, where a federal prisoner's mental condition so requires, to confine that prisoner civilly after the expiration of his or her term of imprisonment. See United States v. Comstock, 560 US 126, 136-137 (2010).” United States v Kebodeaux, 133 S Ct 2496 (2013).
In “determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” United States v Comstock, 130 S Ct 1949, 1956 (2010).
The “individual mandate [of the Patient Protection and Affordable Care Act] cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms.” National Fed. Of Independent Businesses v Sebelius, 132 S Ct 2566, 2592 (2012).
“As Chief Justice John Marshall famously wrote regarding the word ‘necessary’ in the ‘necessary and proper’ clause of the United States Constitution, ‘we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable.’ McCulloch v. Maryland, 4 Wheat. 316 (1819).” State v Babson, 249 Or App 278, 283 (2012), rev allowed 353 or 103 (2012).
4. Commerce Clause
"The Congress shall have Power To * * * regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . " -- Article I, section 8, US Const
There are three commerce clauses in Article I, section 8, of the US Constitution: Interstate, Indian, and Foreign.
“Early opinions of the Court suggest that the three subparts of the Commerce Clause should be interpreted similarly.” United States v Pendleton, 658 F3d 299, 306 (3d Cir 2011) (quoting Gibbons v Ogden, 22 US 1, 194 (1824)); see also United States v Seveloff, 27 F Cas 1021, 1024 (D Or 1892) (“The power to regulate commerce is conferred upon the national government by the constitution (article I, §8), in the same language, and upon the same terms in the case of ‘foreign nations,’ the ‘several states,’ and the ‘Indian tribes.’”). But despite Gibbons, “the three subclauses of Article I, section 8, clause 3 have acquired markedly different meanings over time.” Id.
(i). The Interstate Commerce Clause
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Article I, section 8, of the Constitution confers upon Congress only discrete enumerated governmental powers. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people. Printz v United States, 521 US 898, 919 (1997).
(ii). The Foreign Commerce Clause
A principal reason for assembling the Constitutional Convention of 1787 was “to require uniformity in [the United States’] commercial regulations * * * “ Gibbons v Ogden, 22 US 1, 225 (1824) (Johnson, J., concurring, quoting the preamble of James Madison’s draft resolution at the Virginia Ratifying Convention). The purpose of the Foreign Commerce Clause was to establish national uniformity over commerce with foreign nations. Japan Line, Ltd. v County of Los Angeles, 441 US 434, 448 (1979).
“Although the Constitution, Art. I, sec. 8, cl. 3, grants Congress power to regulate commerce ‘with foreign Nations’ and ‘among the several States’ in parallel phrases, there is evidence that the Founders intended the scope of the foreign commerce power to be the greater.” Japan Line, Ltd. v County of Los Angeles, 441 US 434, 448 (1979).
(iii). The Dormant Commerce Clause
“Courts have long read a negative implication into the [commerce] clause, termed the ‘dormant Commerce Clause,’ that prohibits states from discriminating against interstate commerce. See Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328, 337 (2008). ‘The modern law of what has come to be called the dormant Commerce Clause is driven by concern about “economic protectionism—that is, regulatory measures designed to benefit in-state economic interests by burdening out-of- state competitors.’” Id. at 337–38 (quoting New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273–74 (1988)).” Yakima Valley Mem Hospital v Dep’t of Health, __ F3d __ (9th Cir 2013).
5. Tenth Amendment
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." -- Tenth Amendment, US Const
" If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States." New York v United States, 505 US 144, 156 (1992).
The “federal system rests on what might at first seem a counterintuitive insight, that ‘freedom is enhanced by the creation of two governments, not one.’ Alden v Maine, 527 US 706, 758 (1999).” “Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power.” Individuals’ claims – not the Governmental departments’ “have been the principal source of judicial decisions concerning separation of powers and checks and balances. “ An individual may “challenge a law as enacted in
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contravention of constitutional principles of federalism. That claim need not depend on the vicarious assertion of a State’s constitutional interests, even if a State’s constitutional interests are also implicated.” Bond v United States, 131 S Ct 2355 (2011).
B. Full Faith and Credit
"Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State." -- Article IV, section 1, US Const
The Full Faith and Credit Clause requires (at most) that a state give effect to rights established between parties that arise from judgments, agreements, or statutes originating in other states. State v Berringer, 234 Or App 665, rev denied 348 Or 669 (2010).
C. Sixth Amendment
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." -- Sixth Amendment, US Const
1. Application to the States
Most, but not all, of the rights in the Sixth Amendment apply to the States through the due process clause of the Fourteenth Amendment: Duncan v Louisiana, 391 US 145 (1968) (trial by jury in criminal cases); Washington v Texas, 388 US 14 (1967) (compulsory process); Klopfer v North Carolina, 386 US 213 (1967) (speedy trial); Pointer v Texas, 380 US 400, 403 (1965) (right to confront adverse witnesses); Gideon v Wainwright, 372 US 335 (1963) (assistance of counsel); In re Oliver, 333 US 257 (1948) (right to a public trial). McDonald v City of Chicago, 130 S Ct 1316, 3034 n 12 (2010) (so reciting those cases).
2. Jury
A person charged with a serious offense has a fundamental right to a trial by jury. Duncan v Louisiana, 391 US 145, 157-58 (1968). That includes the right to trial by a jury that is drawn from a fair cross-section of the community. Taylor v Louisiana, 419 US 522, 530 (1975).
Although the Sixth Amendment requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials, see Apodaca v Oregon, 406 US 404 (1972) and Johnson v Louisiana, 406 US 356 (1972). McDonald, 130 S Ct at 3035 n 14 (so stating).
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Oregon requires that jurors must be proficient in English or they do not qualify as jurors. That requirement does not violate the Sixth Amendment, the Due Process Clause, or the Equal Protection Clause. Likewise, Oregon’s decision not to pay for interpreters for jurors does not violate the Sixth or Fourteenth Amendments. State v Haugen, 349 Or 174 (2010).
3. Cross-Examination
The Sixth Amendment protects defendant's opportunity to engage in effective cross-examination, which may not necessarily be defendant's desired cross- examination. Delaware v Van Arsdall, 475 US 673, 679 (1986).
4. Confrontation
(a). Generally. The Confrontation Clause prohibits out-of-court statements that are "testimonial" unless the declarant is unavailable and defendant has had a prior opportunity to cross-examine the declarant about the statements. Crawford v Washington, 541 US 36, 53-54, 59, 68 (2004).
(b). Sworn certificates. sworn certificates prepared by law enforcement to show the forensic results of seized substances are “testimonial.” Melendez-Diaz v Massachusetts, 557 US 305 (2009). Therefore, a witness's testimony against a defendant is inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. Melendez-Diaz (quoting Crawford v Washington, 541 US 36, 54 (2004)).
(c). Lab reports. That standard includes a lab report showing the results of a forensic analysis performed on a seized substance and a forensic lab report with a testimonial certification if it is made to prove a fact at a criminal trial, and if it is made through the in-court testimony of an analyst who neither signed the certification nor personally performed or observed the performance of the test reported in the certification. Bullcoming v New Mexico, 131 S Ct 2705 (2011).
Note: The Melendez-Diaz majority, 557 US 305, 129 S Ct at 2538-39 (citing Palmer v Hoffman, 318 US 109 (1943)), wrote that, in contrast with a clerk or custodian's certificate attesting to a fact, business and public records are generally admissible because (if) they were created for administrative purposes, rather than to establish some fact for a criminal trial; those are not testimonial under the Sixth Amendment. But the majority in Bullcoming v New Mexico, 131 S Ct 2705, 2714 n 6 (2011), did not agree on defining a “testimonial report” based on the primary purpose of its creation.
An expert witness may state an opinion based on facts about events even if the expert lacks first-hand knowledge of those facts, as a long tradition in English since at least 1807, and American courts at least since 1887, permits experts to testify as to “hypothetical questions.” Also defendant’s confrontation rights were not violated when the expert answered “yes” to the prosecutor’s questions at trial about whether there was a DNA match between the DNA from the state’s lab and the outside lab. The expert made no other reference to the outside lab report other than that it was accredited and she had sent forensic samples to it and it sent samples back. Williams v Illinois, 132 S Ct 2221 (2012) (An expert witness referred to the report not to prove the truth of the matter asserted in the report * * * but only to establish
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that the report contained a DNA profile that matched the DNA profile deduced from petitioner’s blood).
5. Judicial Factfinding and Sentencing
“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v New Jersey, 530 US 466, 490 (2000). The “statutory maximum” for Apprendi is the maximum sentence a judge may impose solely on the facts in the jury verdict or as defendant admits. Blakely v Washington, 542 US 296, 303 (2004). This rule preserves the “historic jury function” to determine if the prosecution has proved each element of an offense beyond a reasonable doubt.” Oregon v Ice, 555 US 160, 163 (2009).
“When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding.” Blakely v Washington, 542 US 296 (2004).
Southern Union Company v United States, 132 S Ct 2344 (2012) Apprendi applies to criminal fines. “Criminal fines, like these other forms of punishment, are penalties inflicted by the sovereign for the commission of offenses. Fines were by far the most common form of noncapital punishment in colonial America.” The States “are free to enact statutes that constrain judges’ discretion in sentencing – Apprendi requires only that such provisions be administered in conformance with the Sixth Amendment.” “So far as Apprendi is concerned, the relevant question is the significance of the fine from the perspective of the Sixth Amendment’s jury trial guarantee. Where a fine is substantial enough to trigger that right, Apprendi applies in full.”
As for petty fines and sentences: “Where a fine is so insubstantial that the underlying offense is considered ‘petty,’ the Sixth Amendment right of jury trial is not triggered, and no Apprendi issue arises.” (Citing Muniz v Hoffman, 422 US 454, 477 (1975) which held that a $10,000 fine imposed on a labor union did not entitle the union to a jury trial). “The same, of course, is true of offenses punishable by relatively brief terms of imprisonment – these, too, do not entitle a defendant to a jury trial.” Ibid. (citing Blanton v North Las Vegas, 489 US 538, 542-43 (1989) which established a rebuttable presumption that offenses punishable by 6 months’ imprisonment or less are petty).
Note: In Oregon, trial courts must secure written jury waivers to allow for judicial factfinding in for both guilt-phase and sentencing-enhancement, under ORS 136.776. Trial courts may accept jury waivers that pertain to guilt only if the jury waiver addresses sentencing enhancement factors. State v Lafferty, 240 Or App 564 (2011).
6. Plea Bargaining
“[T]here is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial.” Weatherford v Bursey, 429 US 545, 561 (1977).
Defendants have a Sixth Amendment right to counsel that extends to the plea-bargaining process. Padilla v Kentucky, 130 S Ct 1473 (2010).
Where a counsel’s ineffective advice led to a plea offer’s rejection, and where the prejudice alleged is having to go to trial, a defendant must
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show that but for the ineffective advice of counsel, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than the actual judgment and sentence imposed. Missouri v Frey and Lafler v Cooper, 132 S Ct 1399 (2012). In Frey, defense counsel received a plea offer but did not inform defendant of that plea offer, and defendant pleaded guilty to more severe terms than the plea offer contained. In Cooper, defendant rejected a plea offer of 51-85 months, on his counsel’s bad advice that all agree fell below Sixth Amendment standards of adequate assistance of counsel. Defendant then had a full and fair jury trial, in which the jury found him guilty, and he was sentenced to a harsher sentence than he had been offered in the plea bargain (185 – 360 months’ mandatory imprisonment).
D. Ninth Amendment
“The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage other retained by the people.” – Ninth Amendment, US Const
Note: The Ninth Amendment may not be a source of rights.
“The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail. Again this Court must balance the extent of the guarantees of freedom against a congressional enactment to protect a democratic society against the supposed evil of political partisanship by classified employees of government.” United Public Workers v Mitchell, 330 US 75, 95-96 (1947).
“This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Roe v Wade, 410 US 113, 153 (1973). “The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v Botsford, 141 US 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v Georgia, 394 US 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v Ohio, 392 US 1, 8 -9 (1968), Katz v United States, 389 US 347, 350 (1967), Boyd v United States, 116 US 616 (1886), see Olmstead v United States, 277 US 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v Connecticut, 381 US, at 484 -485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v Nebraska, 262 US 390, 399 (1923). These decisions make it clear that only personal rights that can be
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deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut, 302 US 319, 325 (1937), are included in this guarantee of personal privacy.” Roe v Wade, 410 US 113, 152 (1973).
E. Due Process – Fourteenth Amendment
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due
process of law." -- Fourteenth Amendment, US Const
“A threshold requirement to a substantive or procedural due process claim is the plaintiff’s showing of a liberty or property interest protected by the Constitution.” Ching v Mayorkas, __ F3d __ (9th Cir 2013); Wedges/Ledges of Cal., Inc. v City of Phoenix, 24 F3d 56, 62 (9th Cir 1994). “‘To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.’ Bd Of Regents v Roth, 408 US 564, 577 (1972). Supreme Court ‘cases recognize that a benefit is not a protected entitlement if government officials may grant or deny it in their discretion.’ Town of Castle Rock v Gonzales, 545 US 748, 756 (2005). Instead, ‘[a] reasonable expectation of entitlement is determined largely by the language of the statute and the extent to which the entitlement is couched in mandatory terms.’ Wedges/Ledges, 24 F3d at 62 (internal quotation marks omitted).” Ching v Mayorkas, __ F3d __ (9th Cir 2013).
1. Application to the States
The Fifth Amendment's due process clause applies to the federal government. The Fourteenth Amendment's due process clause applies to the States. See Dusenbery v United States, 534 US 161, 167 (2002).
In McDonald v City of Chicago, 130 S Ct 3016, 3034-35 n 12-14 (2010), the Court recited the provisions of the first eight amendments in the Bill of Rights that have been selectively incorporated to apply to the states through the Fourteenth Amendment's Due Process Clause. The only rights not fully incorporated are the Sixth Amendment right to a unanimous jury verdict, the Third Amendment's protection against quartering of soldiers (has not been decided), the Fifth Amendment's grand jury indictment requirement (“predates the era of selective incorporation”), the Seventh Amendment's civil jury requirement (“predates the era of selective incorporation”), and the Eighth Amendment's prohibition on excessive fines (has not been decided).
The Oregon Constitution does not contain a due process provision. State v Faunce, 251 Or App 58 (2012).
2. Defining Procedural versus Substantive Due Process
(a). Interpreted by the U.S. Supreme Court: (Note: this is Fifth – not Fourteenth -- Amendment jurisprudence). “This Court has held that the Due Process Clause protects individuals against two types of government action. So-called ‘substantive due process’ prevents the
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government from engaging in conduct that ‘shocks the conscience,’ Rochin v California, 342 US 165, 172 (1952), or interferes with rights ‘implicit in the concept of ordered liberty,’ Palko v Connecticut, 302 US 319, 325-26 (1937). When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner. Mathews v Eldridge, 424 US 319, 335 (1976). This requirement has traditionally been referred to as ‘procedural’ due process.” United States v Salerno, 481 US 739, 746 (describing due process under the Fifth Amendment).
(b). Interpreted by Oregon courts: A procedural due process claim “acknowledges that the state’s objective is within its lawful authority, but that the process of achieving that objective does not afford the person who is the subject of the state’s action with adequate procedural safeguards such as prior notice and a meaningful hearing. E.g., Goldberg v Kelly, 397 US 254 (1970)* * * * *. An argument grounded in substantive due process, on the other hand, asserts that the state’s objective is simply beyond its power to achieve, regardless of how many procedural safeguards it might provide. Thus, for example, the state cannot punish a person for using contraception. Griswold v Connecticut, 381 US 479 (1965).” Powell v DLCD, 238 Or App 678, 682 (2010).
3. Punitive Damages (Substantive Due Process)
“The Due Process Clause of the Fourteenth Amendment prohibits a jury from imposing punitive damages to punish a defendant directly for harm caused to nonparties. However, a jury may consider evidence of harm to others when assessing the reprehensibility of the defendant's conduct and the appropriate amount of punitive damages verdict. Philip Morris USA v Williams, 549 US 346, 356-57 (2007).” Schwarz v Philip Morris, Inc., 348 Or 442 (2010).
Oregon courts consider punitive-damages review under “substantive” due process. Schwarz v Philip Morris, Inc., 348 Or 442, 458-59 (2010) (substantive due process places limits on punitive damages award). Punitive damages awards that are "grossly excessive" violate the Due Process Clause of the Fourteenth Amendment because excessive punitive damages serve no legitimate purpose and constitute arbitrary deprivations of property. BMW of North America, Inc. v Gore, 517 US 559, 568 (1996); State Farm Mut. Auto. Ins. Co. v Campbell, 538 US 408, 417 (2003). Excessive punitive damages also implicate the fair-notice requirement in the Due Process Clause. Gore, 517 US at 574.
Oregon courts' review of punitive damages awards involves three stages. First, is there a factual basis for the punitive damages award. Second, does the award comport with due process when the facts are evaluated under the three Gore guideposts ((1) degree of reprehensibility; (2) disparity between the actual or potential harm plaintiff suffered and the punitive damages award; and (3) difference between the punitive damages award and civil penalties authorized or imposed in comparable cases). Third, if the punitive damages exceed that permitted under the Due Process Clause, then what is the "highest lawful amount" that a rational jury could award consistently with the Due Process Clause. Goddard v Farmers Ins Co., 344 Or 232, 261-62 (2008).
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As to the second Gore guidepost (the ratio between the punitive and compensatory damages awards), the Oregon Supreme Court stated that “courts generally hold that, in instances in which compensatory awards are $12,000 or less, awards in excess of single-digit ratios are not ‘grossly excessive.’” “When the compensatory damages award is small and does not already serve an admonitory function, the second guidepost – the ratio between punitive and compensatory damages – is of limited assistance in determining whether the amount of a jury’s punitive damages award meets or exceeds state goals of deterrence and retribution.” Hamlin v Hampton Lumber Mills, Inc., 349 Or 526 (2011) (Court reinstated the jury’s award for a thumb injury with a ratio of 22:1 (punitives to compensatories)).
Lithia Medford LM, Inc. v Yovan, 254 Or App 307 (12/19/12) (Jackson) (Nakamoto) (en banc) In this 5-4 decision, on remand from the Oregon Supreme Court, the Court of Appeals concluded that the trial court erroneously reduced a jury’s punitive damages award from $100K to $2K, with a $500 compensatory damage award. The Court of Appeals remanded for reinstatement of the jury’s award on punitive damages. (The dissent (Wollheim, Schuman, Haselton, Hadlock) would have reduced the award to $25K to comport with due process).
Plaintiff is a car dealership. Defendant bought a used 4Runner from the dealership for about $14K, with financing as a “sub, sub-prime loan” at 21.5% interest. Five days later, he learned that the 4Runner had 25,000 more miles than its odometer showed. There is no evidence that the dealership knew about that odometer rollback. But when defendant told the dealership about it, the dealership demanded that defendant pay the whole balance minus $1K or return the 4Runner for his trade-in. Defendant found a 4Runner at another Lithia dealership that had the mileage and cost he wanted, but the dealership refused to exchange. The dealership began intimidating defendant by threatening prosecution, lying, and trying to repossess the car before the first installment payment was due. Dealership sued for rescission based on mutual mistake. Dealership made misrepresentations to defendant and his lawyer in writing with materially false statements. Dealership knew that defendant was financially vulnerable (based on his credit report), that he was a recent OIT grad with a new job in Yreka with a $34K annual income and a wife and 4 kids. Defendant countersued under the Unlawful Debt Collection Practices Act. Plaintiff took the position that it had done nothing wrong. Defendant broke his wife’s nose, got divorced, lost his job, and lost his house.
The trial court granted the dealership’s claim for rescission. On the counterclaim, the jury awarded $0 in economic damages, $100K in punitives, and $500 in noneconomic damages. That is a 200:1 ratio of compensatory to punitive damages.
The dealership filed a motion for remittitur to reduce the award (or for a new trial) arguing that the punitives violated due process, per BMW of North America, Inc. v Gore, 517 US 559 (1996). The trial court granted the motion, entering a general judgment for $500 in noneconomics and $2K in punitives. Defendant appealed. The Court of Appeals affirmed by an equally divided result. The Oregon Supreme Court vacated and remanded for reconsideration after Hamlin v Hampton Lumber Mills, Inc., 349 Or 526 (2011). Now, the court reversed and remanded for reinstatement of the jury’s award.
The court first noted that “it is bedrock law that, in Oregon, calculating punitive damages is the function of the jury.” The facts must be viewed in a way that favors the jury’s award of $100K in punitives, under Parrott v Carr Chevrolet, Inc. 331 Or 537 (2001) (in Parrott, the Oregon Supreme Court affirmed a one
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million dollar punitive damages award with an $11,496 compensatory damages award, which is an 86:1 ratio). Turning to the Gore guideposts:
First (and most important) guidepost (reprehensibility): The court went through the “subfactors in the reprehensibility analysis.” One is financial vulnerability: here the dealership knew that defendant was particularly vulnerable. A second factor is “malicious and deceitful conduct” and a third is “trickery or deceit” to further one’s financial interests. The court recited the dealership’s deceit, lies, and misrepresentations, which support the jury’s award of punitive damages. The court concluded: “this record establishes that[dealership’s] conduct was ‘more than minimally reprehensible,” under Hamlin, and in fact, the dealership’s “conduct was egregious, as the jury found, given proof that [dealership] repeatedly used deceptive and abusive tactics against a financially vulnerable consumer to enhance tis financial interests as well as plaintiff’s arrogant presentation to the jury of its position that it had done nothing wrong.”
Second guidepost (difference between the punitive and compensatory damages award): The court skipped from the first to the third guidepost.
Third guidepost (civil penalites in comparable cases): The court concluded that the ratio between punitives and compensatories in this case may constitutionally exceed 9 to 1. The civil penalty for comparable UTPA violations is relevant: the legislature determined that up to $25K can be assessed for each violation. The 200:1 ratio in this case is not “grossly excessive” based on similar claims. That 200:1 ratio “alone does not make the punitive damages award ‘grossly excessive,” because the US Supreme Court affirmed a 526:1 ratio in 1993, in TXO Production Corp v Alliance Resources Corp, 509 US 443 (1993). Reversed and remanded for reinstatement of jury award.
Evergreen West Business Center, LLC v Emmert, 254 Or App 361 (12/27/12) (Clackamas) (Schuman, Armstrong, Wollheim) (Wollheim concurring/dissenting) Plaintiff (Evergreen) is an LLC that buys and develops property. Defendant was a member of Evergreen. Evergreen bought a property for $846K with $552K of that on a bank loan, but fell behind on payments. Defendant agreed to work with the bank to postpone a foreclosure, but instead he bought the note and trust deed for the property and let the foreclosure proceed, and bought the property for himself – without telling any of his fellow members of Evergreen, even after members asked him.
Evergreen sued him for breach of fiduciary duty, and later requested punitive damages. The jury returned a verdict for Evergreen: one dollar in compensatory damages but $600K in punitives. (That is a 600,000:1 ratio). The trial court reduced the award to four dollars, under Goddard v Farmers Ins Co, 344 Or 232 (2008) which suggests a 4:1 ratio is proper. The trial court concluded that equitable relief cannot be joined with punitive damages. Then the trial court allowed, as an alternative to the few dollars’ damages, a constructive trust with no punitives. Evergreen chose the constructive trust. Defendant appealed. Evergreen cross-appealed, contending that punitive damages are allowed in equity.
The Court of Appeals reversed, and reviewed taking the facts in the light most favorable to Evergreen as the prevailing party. (The constructive trust was not a permissible equitable remedy. Equitable remedies are not for “correcting disappointing jury verdicts or remedying a failure of proof.” Here, there was no evidence that damages would not adequately compensate Evergreen, so regardless why the jury awarded $1 in compensatories, “the equitable remedy of a
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constructive trust is not available simply because the jury returns a lesser verdict than requested.”)
As to the due process issue, the “familiar guideposts” are: (1) reprehensibility; (2) disparity between harm to plaintiff and the punitives awarded; and (3) the difference between punitive damages and the civil penalites in comparable cases, as stated in State Farm Mutual Ins Co v Campbell, 538 US 408, 418 (2003). In this case, the bad conduct has “solely economic effects” without physical harm, so the second guidepost normally does not exceed 4:1. But under Hamlin v Hampton Lumber Mills, Inc., 349 or 526 (2011), the second guidepost and its 4:1 general restriction are of limited value or assistance “when the compensatory damages award is small and does not already serve an admonitory function.” (Hamlin was a 22:1 ration for a worker’s thumb injury). In such cases, the first and third guideposts are “better indicators of the outer limits of due process.” The Court of Appeals also reiterated its recent reasoning in “Lithia Motors II” [described above] in which it reinstated the jury’s full award of $100K in punitives. The court here concluded:
“like Hamlin and Lithia Motors II, [this] is a case in which the jury’s compensatory award was too small to serve any admonitory function, and that the second guidepost is therefore a poor indicator of the constitutional limits on a punitive damages award.”
The trial court erred in applying a 4:1 ratio. The final step, after determining that the award in a case may exceed a single-digit multiplier, is deciding whether the jury’s award of punitives was nevertheless “grossly excessive.” It was not – although it was high, it is not unconstitutionally high. Juries have awarded large punitive damages awards in cases that parties have suffered significant financial harm from the acts of disloyal agents, and the court here recited several state and federal cases as examples. Moreover, the state has an interest in deterring the conduct at issue. Here, defendant has a net worth of about 160 million dollars. He saw potentially large profits in breaching his fiduciary duties and made a calculated decision to do so. In addition, the jury heard about defendant’s behavior in other business dealings. The jury’s decision did not go beyond the state’s interests. The court therefore “reversed and remanded for further proceedings consistent with that conclusion.”
See Arizona v Asarco, LLC, __ F3d __ (9th Cir 2013) (reducing punitive damages from a 300,000:1 to a 125,000:1 ratio where compensatories were just one dollar).
4. Procedural Due Process
A Fourteenth Amendment procedural due process analysis has two steps: "the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient." Kentucky Dep't of Corrections v Thompson, 490 US 454, 460 (1989).
"It is axiomatic that due process 'is flexible and calls for such procedural protections as the particular situation demands.'" Greenholtz v Nebraska Penal Inmates, 442 US 1, 12 (1979) (citation omitted).
Probationers: "Although a probationer is afforded fewer procedural safeguards than a defendant in a criminal trial, some due process protections attach to probation violation proceedings. Morrissey v Brewer, 408 US 471, 489 (1972);
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Gagnon v Scarpelli, 411 US 778, 782 (1973). Those protections include 'the right to confront and cross-examine adverse witnesses,' unless the government shows good cause for not producing the witnesses. Morrissey, 408 US at 489." State v Wibbens, 238 Or App 737 (2011). To determine whether hearsay evidence at a probation-revocation hearing violates a probationer's right to confrontation in violation of the Due Process Clause of the Fourteenth Amendment, relevant factors include: (1) the importance of the evidence to the court's finding; (2) the probationer's opportunity to refute that evidence; (3) the difficulty and expense of obtaining witnesses; and (4) traditional indicia of reliability borne by the evidence." Here, due to defendant's important interest in confrontation, the absence of good cause for denying it, the balance weighs in favor of confrontation. Based on the four Johnson factors, the admission of the hearsay evidence violated defendant's due process right to confront an adverse witness. Id.
Interpreters: An Oregon statute requires courts to appoint interpreters when necessary to interpret proceedings and testimony of non-English-speaking parties (ORS 45.273 and 45.275). Also “where an accused does not understand or speak English well enough to comprehend or communicate adequately in a criminal proceeding, the accused’s rights to fundamental fairness and due process of law, including the rights to participate in the proceeding, to know and defend against the accusations, and to communication with counsel, require that a qualified interpreter be provided.” State v Erives, 252 Or App 93 (20/12) (legal error for trial court not to appoint an interpreter until after the state had rested, even in this probation-violation hearing).
5. Other Substantive Due Process
The substantive component of the due process clause of the Fourteenth Amendment "forbids the government to infringe certain fundamental [rights] at all, no matter what process is provided." Reno v Flores, 507 US 292, 302 (1993) (emphasis in Reno). A "fundamental right" is one that is "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. at 303. Substantive due process rights are created only by the Constitution. Regents of Univ of Michigan v Ewing, 474 US 214, 229 (1985).
Note: But see Papachristou v City of Jacksonville, 405 US 156 (1972), wherein the Court struck down a statutory prohibition against “nightwalking” (vagrancy). The Court noted that persons “’wandering or strolling’ from place to place have been extolled by Walt Whitman and Vachel Lindsay,” they may be sleepless, loafers, married to “rich wives,” or may be “casing” a place for a holdup. But “the difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. Theses amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged the lives of high spirits rather than hushed, suffocating silence.” Id. at 164 (emphasis added). The Court stated that “the due process implications” are equally applicable to the States and to this vagrancy ordinance.” Id. at 165. The Court did not identify its analysis as procedural or substantive due process right but rather characterized it as void for vagueness as incompatible with “the rule of law” (a phrase the Court used four times in this opinion).
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(a). Notice
“A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” FCC v Fox Television Stations, Inc., 132 S Ct 2307 (2012) (citing Connally v General Construction Co., 269 US 385, 391 (1926). “This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment. * * * It requires invalidation of laws that are impermissibly vague.” The void- for-vagueness doctrine applies both when speech is, and is not, at issue. Two due process concerns are: (1) parties should know what is required of them and (2) precision and guidance are necessary so those enforcing the law do not act in an arbitrary or discriminatory way. “When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.” FCC v Fox Television Stations, Inc., 132 S Ct 2307 (2012); see also Papachristou v Jacksonville, 405 US 156, 162 (1972).
Stated another way: “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” United States v Backlund, 689 F3d 986, 996 (9th Cir 2012) (quoting United States v Kim, 449 F3d 933, 941 (9th Cir 2006) (quoting Grayned v City of Rockford, 408 US 104, 108 (1972))). A statute is void for vagueness if it “fails to give a ‘person of ordinary intelligence a reasonable opportunity to know what is prohibited.’” Hunt v City of Los Angeles, 638 F3d 703, 712 (9th Cir 2011) (quoting Grayned, 408 US at 108).
“Outside the First Amendment context, a plaintiff alleging facial vagueness must show that the enactment is impermissibly vague in all its applications.” Humanitarian Law Project v US Treasury Dep’t, 578 F3d 1133, 1146 (9th Cir 2009). Therefore, a statute is only facially void for vagueness if it “is vague ‘not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.’” Alphonsus v Holder, 705 F3d 1031, 1042 (9th Cir 2013) (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 US 489, 495 n7 (1982)). “Such a provision simply has no core.” Vill. of Hoffman Estates, 455 US at 495 n7 (emphasis in original).
Portland General Electric Company v Ebasco Services, Inc. and Lexington Insurance Company, et al, 353 Or 849 (7/25/13) (Clackamas) (Brewer) A PGE worker sued PGE for asbestos exposure. PGE confidentially settled that claim. PGE then sued its multiple insurers for their failure to indemnify PGE in that asbestos claim. PGE did not allege any money damages against one insurer, Lexington, or the amount of damages it had paid to the worker. PGE attached its insurance policy to the complaint against its multiple insurers; the policy had a cap of $5 million for all insurers. PGE served the complaint on the New York law firm specified in the insurance policy. All other insurers, except Lexington, appeared and defended. Three years after serving the complaint, PGE moved for a default judgment against Lexington and served the New York law firm. The trial court granted that motion, entering default judgment for $800K plus about $27K in costs and fees against Lexington. Lexington did not appeal. Instead it collaterally challenged the default judgment, filing a motion to set it aside solely on the “excusable neglect” ground in
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ORCP 71 and under the court’s inherent discretion. (Lexington did not allege “surprise” as a basis to set aside the judgment.). The trial court denied the motion and awarded more costs and fees in a supplemental judgment.
Lexington appealed both the supplemental judgment and denial of its motion to set aside the default judgment. For the first time, Lexington argued that the trial court lacked jurisdiction(so the judgment was void) because PGE failed to comply with ORCP 67 C, which states in part:
“A judgment for relief different in kind from or exceeding the amount prayed for in the pleadings may not be rendered unless reasonable notice and opportunity to be heard are given * * *.”
The Court of Appeals accepted Lexington’s argument that the default judgment was void because PGE failed to state a damages amount in its complaint. It reasoned that ORCP 67 C imposes a jurisdictional requirement, based on Montoya v Housing Authority of Portland, 192 Or App 408 (2004), which had held that a trial court lacks jurisdiction to enter a default judgment that exceeds the amount pleaded, under due process. No specified damages = no jurisdiction to enter default judgment, in the Court of Appeals’ opinion.
The Oregon Supreme Court reversed and remanded to the Court of Appeals to address another issue. It held that in this case, “the default judgment violated ORCP 67 C because the complaint did not seek any amount of damages.” But the effect of that violation, in this collateral attack, is to render it voidable, rather than void. “[T]he default judgment in this case does not implicate concerns of constitutional dimension.”
The Court held that “due process does not demand the nullification of the default judgment by means of a collateral challenge.” “[N]ot every defect in notice renders a judgment void.” A court lacks authority to enter a judgment “only when the notice ‘is so defective that it does not satisfy the requirements of due process’”. Strict compliance with procedural statutes and rules is not necessarily required.
Notice and opportunity for hearing are part of due process, see Mullane v Central Hanover Bank and Trust Co, 339 US 306, 313 (1950) and Koskela v Willamette Industries, Inc, 331 Or 362, 378 (2000). Here, Lexington did not assert that the default judgment awarded a different kind of relief that sought in the complaint – PGE sought indemnity for the asbestos payout. The default judgment awarded that relief. “Instead, the sole focus of Lexington’s due process argument is on the amount of monetary relief that the default judgment awarded. However the defect in notice concerning the amount of PGE’s claimed damages was apparent on the face of the complaint when Lexington was served with a copy of it and the required summons. Multiple prejudgment options to remedy that defect were at Lexington’s disposal. * * * Yet it took [no] action.” “In these circumstances, Lexington’s challenge comes too late.” Lexington had had years to challenge the very defect that it failed to raise before filing the present appeal (that is, the ORCP 67 C failure to allege specific damages).
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(b). Personal Jurisdiction
The “Due Process Clause of the Fourteenth Amendment sets the outer boundaries of a state tribunal’s authority to proceed against a defendant. Shaffer v Heitner, 433 US 186, 207 (1977). The canonical opinion in this area remains International Shoe [v Washington, 326 US 310 (1945)], in which we held that a State may authorize its courts to exercise personal jurisdiction over an out-of-state defendant if the defendant has ‘certain minimum contacts with [the State] such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”’”. Goodyear Dunlop Tires Operations v Brown, 131 S Ct 2846 (2011) (unanimous). The Court noted that there are two kinds of jurisdiction: case-specific and general. Most of the US Supreme Court’s decisions have been based on case-specific jurisdiction. Goodyear Dunlop Tires is the third US Supreme Court case ever to address general jurisdiction.
One professor notes: “A careful examination of the parallel development of both substantive due process and personal jurisdiction doctrine across the eras of American law reveals that personal jurisdiction is merely an application of substantive due process principles. * * * Procedural due process is concerned with the opportunity to be heard and the procedures employed, not articulating limits on governmental power.” Rhodes, Charles W., Liberty, Substantive Due Process, and Personal Jurisdiction, 82 TUL L REV, 567 (2007).
O’Neil v Martin et al, 258 Or App 819 (10/09/13) (Marion) (Nakamoto, Schuman, Wollheim) Plaintiff was convicted of aggravated murder in Oregon. He was transferred to an Oklahoma prison per the Interstate Corrections Compact in ORS 421.245. While plaintiff was in Oklahoma, an Oregon attorney represented him in various claims before the Klamath County Circuit Court, a review hearing before the parole board in Oregon, and a petition for clemency before the Oregon Governor, and this present action. Plaintiff and his attorney regularly exchanged mail and phone calls.
An Oklahoma prison caseworker confiscated and opened plaintiff’s packages marked “legal mail” from defendant’s Oregon attorney, stating: “This doesn’t look legal. I’m confiscating it.” After that caseworker opened the mail, plaintiff told her that the mail was from his attorney, but she refused to let plaintiff look at it. Plaintiff asked in writing for the mail back, but no one responded. He filed a grievance. The Oklahoma prison warden then wrote to another of plaintiff’s Oregon attorneys and demanded proof that the Oregon lawyer was licensed in Oklahoma and demanded documentation showing that he was plaintiff’s attorney. That Oregon lawyer wrote back, in a 10-page letter with 29 pages of attachments, explaining that he was not licensed in Oklahoma but the mailings were privileged attorney-client communications. The warden sent another letter to plaintiff’s Oregon lawyer stating that the lawyer’s response was inadequate, and returned the lawyer’s mail to him. Plaintiff never got to see his attorney’s mailing to him.
An Oklahoma prison guard then told the United Aryan Brotherhood prison gang that plaintiff was a “rat” who had provided information against “white boys” in Oregon. Plaintiff received death threats and believed guards were working with the Aryans. Oklahoma prison guards did nothing and plaintiff was assaulted by an Aryan prisoner. Oklahoma prison guards did nothing in response despite
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plaintiff’s repeated pleas. (He was transferred to new Mexico after he filed this action).
Plaintiff filed this complaint, naming Oregon Department of Corrections and Oklahoma Department of Corrections, and numerous individuals including the Oklahoma guards, alleging constitutional violations and negligence claims, seeking declaratory relief, injunctive relief, damages for his section 1983 claims, and attorney fees and costs for his section 1983 claims. Oregon DOC and Oregon defendants moved to dismiss for lack of personal jurisdiction and failure to state a claim. Oklahoma defendants filed a similar motion.
The trial court granted the Oklahoma defendants’ motion to dismiss for lack of personal jurisdiction.
The Court of Appeals reversed: the Oklahoma guards “intentionally interfered with plaintiff’s legal mail related to the filing of this action in Oregon. * * * Oklahoma defendants had reason to expect that interference would cause plaintiff harm in Oregon. * * * the exercise of jurisdiction over them is reasonable under ORCP 4L.” Under ORCP 4L, a trial court has jurisdiction if exercising jurisdiction comports with the Fourteenth Amendment’s due process clause. Plaintiff contended, and this court agreed, that under that “catchall” rule, the Oklahoma guards purposefully directed their activities to Oregon by directing contacts to plaintiff’s Oregon attorney. The caseworker deliberately opened and confiscated the “legal mail” and knew her actions had an effect in Oregon because plaintiff told her the mail came from his Oregon attorney regarding his Oregon case, and the caseworker still refused to return the mail. The warden also exchanged letters with the Oregon lawyer. “Those communications rise to the level of purposeful direction * * * and had an effect on plaintiff’s representation for his Oregon case.” Also, “plaintiff’s action relates to Oklahoma defendants’ forum-related activities” and thus “plaintiff established the minimum contacts required for personal jurisdiction in Oregon.” The court then noted that it must still consider whether its exercise of jurisdiction is “reasonable,” meaning its jurisdiction must comport with traditional notions of “fair play and substantial justice.” That test is met here: “Oklahoma defendants had reason to expect that interference would cause plaintiff harm in Oregon” and they could “reasonably foresee being haled into Oregon courts for confiscating and returning plaintiff’s legal mail so that plaintiff could not communicate with his Oregon attorney.”
In addition, this case is not moot even though defendant has been transferred to a New Mexico prison. He sought monetary damages for past injury. Further, plaintiff has an opportunity to file an amended complaint.
(c). Brady violations
Brady v Maryland, 373 US 83, 87 (1963) held that due process bars a State from withholding evidence that is favorable to the defense and material to the defendant’s guilt or punishment. Under Brady and Cone v Bell, 556 US 449, 469-70 (2009), evidence is material if there is a “reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Evidence impeaching eyewitness testimony may not be material if the State’s other evidence is strong enough to sustain confidence in the verdict. Smith v Cain, 132 S Ct 627 (2012) (citing United States v Agurs, 427 US 97, 112- 13 & n 21 (1976)).
Under Brady, the Due Process Clause guarantees a criminal defendant access to evidence in the prosecutor’s possession irrespective of the good faith or bad faith
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of the prosecution when that evidence is favorable to the defendant’s right to a fair trial. In contrast, when a state fails to preserve evidence, the prosecutors good faith or bad faith may be relevant: to establish a due process violation from the state’s failure to preserve evidence a defendant need not show that the state acted in bad faith if it was apparent before the evidence was destroyed that the evidence was favorable and defendant would be unable to obtain comparable evidence elsewhere. State v Faunce, 251 Or App 58 (2012).
6. Right to Travel
(a). Interpreted by Oregon courts: Oregon courts have stated that the federal constitutional right of interstate travel is not named, and its source is not identified, but it "undoubtedly exists" in the Privileges and Immunities Clause of Article VI, section 2, or the Equal Protection Clause, or somewhere else. State v Berringer, 234 Or App 665, rev denied, 348 Or 669 (2010).
(b). Interpreted by Federal courts: Federal courts have established that the right to travel is a fundamental right under the Due Process Clauses of the Fifth and Fourteenth Amendments; infringements are subject to strict scrutiny. Shapiro v Thompson, 394 US 618 (1969); United States v Bredimus, 352 F3d 200, 209-10 & n 12 (5th Cir 2003), cert denied 541 US 1044 (2003). The right to travel internationally is a recognized liberty interest in the Fifth Amendment, Kent v Dulles, 357 US 117, 127 (1958), although that right has less stature than the right to travel interstate (within the United States), Haig v Agee, 453 US 280, 306 (1981). Bredimus, 352 F3d at 209-10 & n 12.
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The State of the Constitutions: New Developments in Federal and State Constitutional Law 2–186 Chapter 3 Summaries of Recent Constitutional Decisions
The Honorable Stephen K. Bushong Multnomah County Circuit Court Portland, Oregon
Contents I. Criminal Procedure ...... 3–1 II. Other Constitutional Rulings 3–1 III. Justiciability/Stare Decisis ...... 3–3 Chapter 3—Summaries of Recent Constitutional Decisions
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I. CRIMINAL PROCEDURE State v. Benoit, 354 Or 302 (2013). Prosecution for criminal trespass reduced to a violation by the district attorney under ORS 166.566(1) is a “criminal prosecution” under Article I, section 11, of the Oregon Constitution. Defendant was therefore entitled to a jury trial on that charge. State v. Fuller, 354 Or 295 (2013). Prosecution for third-degree theft and attempted first-degree theft reduced to violations by the district attorney under ORS 166.566(1) is a “criminal prosecution” under Article I, section 11, of the Oregon Constitution. Defendant was therefore entitled to a jury trial on those charges. State v. Savastano, 354 Or 64 (2013). Theft convictions affirmed. Trial court did not err in denying defendant’s motion to dismiss an indictment charging defendant with 16 counts of theft, one count for each month that defendant embezzled money from her employer. The Court of Appeals had reversed, concluding that the prosecutor’s decision to aggregate the theft counts by month violated Article I, section 20, of the Oregon Constitution under State v. Freeland, 295 Or 367 (1983), because the prosecutor did not apply a coherent, systematic policy when aggregating the theft charges. The Supreme Court reversed the Court of Appeals, overruling Freeland and reaffirming State v. Clark, 291 Or 231 (1981). The Court concluded: “Article I, section 20, does not require consistent adherence to a set of standards or a coherent, systematic policy, as defendant contends; that provision does, however, require government to treat similarly situated people the same. A government decision-maker will be in compliance with Article I, section 20, as long as there is a rational explanation for the differential treatment that is reasonably related to his or her official task or to the person’s individual situation.” 354 Or at 96. State v. Christian, 354 Or 22 (2013). Conviction for carrying a recklessly unloaded firearm in a public place in violation of the Portland City Code (PCC) 14A.60.010 affirmed. Defendant challenged that PCC provision as overbroad in violation of Article I, section 27 or the Oregon Constitution and Second Amendment to the US Constitution. The Supreme Court held that overbreadth challenges are not cognizable under Article I, section 27, and overruled State v. Blocker, 291 Or 255 (1981) and State v. Hirsch/Friend, 338 Or 622 (2005), to the extent those cases permit overbreadth challenges. PCC 14A.60.010 did not violate Article I, section 27, as a facial challenge because it could be constitutionally applied in some circumstances. It also did not violate the Second Amendment because it is substantially related to the city’s important objective in promoting public safety. II. OTHER CONSTITUTIONAL RULINGS Klutschkowski v. PeaceHealth, 354 Or 150 (2013). Plaintiffs brought this medical malpractice action to recover damages for injuries suffered during childbirth. The jury awarded plaintiffs $557,881.11 in economic damages, and $1,375,000 in noneconomic damages. The trial court reduced the noneconomic damages award to $500,000 pursuant to ORS 31.710(1). The Supreme Court reversed. “Because an action for medical malpractice is one for which ‘the right to jury trial was customary in customary in 1857’ [quoting Lakin v. Senco Products, Inc., 329 Or 62, 78 (1999)], Article I, section 17, prohibits the legislature from limiting the jury’s determination of noneconomic damages. . . . It follows that applying ORS 31.710(1) to the jury’s damages award in this case violates that constitutional guarantee.” 354 Or at 177. Based on that ruling, the court found it unnecessary to decide whether the $500,000 limit on noneconomic damages provided plaintiffs with a substantial remedy within the meaning of Article I, section 10, as interpreted in Howell v. Boyle, 353 Or 359 (2013). In a concurring opinion, Justice Landau questioned the precedents that required the court to engage in “imaginative reconstruction of nineteenth-century case law” in deciding whether the common law in 1857 would have recognized plaintiff’s claim. 354 Or at 178 (Landau, J., concurring). In Justice Landau’s view, “the sort of hyper-originalism” required by Smothers v. Gresham Transfer, Inc., 332 Or 83 (2001), and Hughes v.
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PeaceHealth, 344 Or 142 (2008), “is untenable.” Id. Justice Landau invited advocates to address this issue in future cases. Howell v. Boyle, 353 Or 359 (2013). Assuming that “plaintiff’s negligence action is constitutionally protected by Article I, section 10 [of the Oregon Constitution], the $200,000 limitation on her recovery [in the 2007 version of the Oregon Tort Claims Act, ORS 31.270(1)(b)] is constitutionally permissible.” 353 Or at 361. The court explained that its prior case law “consistently holds that the legislature is authorized to enact a limitation on tort claim recovery so long as the remaining remedy is ‘substantial.’” Id. at 373. Those cases also “make clear that the mere fact that the statutory limitation resulted in a reduction in the amount that plaintiff otherwise would have been awarded, by itself, does not establish a violation of Article I, section 10.” Id. at 375. Here, plaintiff would have recovered a total of $507,500 without the statutory limitation. The $200,000 remedy was “substantial” because it “represents a far more substantial remedy than the paltry fraction that remained after the imposition of the limitation in Clarke [v. OHSU, 343 Or 581 (2007)].” Id. at 376. Foster v. Miramontes, 352 Or 401 (2012). When a plaintiff seeks both a stalking protective order and damages under ORS 30.866, the parties are entitled to a jury trial, if requested, on the plaintiff’s claim for money damages. Article I, section 17, and Article VII (Amended), section 3, “preserve the right to jury trial for claims that are properly categorized as ‘civil’ or ‘at law.’” 352 Or at 426. In this case, plaintiff’s “claim seeking monetary damages for injury inflicted fits within those terms, even if it does not have a precise historical analog.” Id. The court did not decide whether, in such an action, the trial court must allow the jury to decide initially the common issues related to both the damages claim and the issuance of the stalking protective order. See 352 Or at 427, n. 18. Schutz v. La Costita III, Inc., 256 Or App 573 (2013). Plaintiff was severely injured in a car crash after she attempted to drive home from a bar while intoxicated. She sued the bar, alleging that it had negligently served her excessive quantities of alcohol and then allowed her to drive. The trial court dismissed the action, concluding that plaintiff’s claims were barred by ORS 471.565(1). Under that statute, a person who voluntarily consumes alcohol does not have a cause of action against the person serving the alcohol, even if she was served while visibly intoxicated. On appeal, plaintiff contended that she was too intoxicated to have consumed alcohol “voluntarily” and that the statute, if applicable, deprives her of a remedy in violation of Article I, section 10, of the Oregon Constitution and violates her right to a jury trial under Article I, section 17. The Court of Appeals disagreed, concluding “that ORS 471.565(1) bars plaintiff’s claim and that the statute does not violate Article I, sections 10 or 17[.]” 256 Or App at 573. Hope Presbyterian v. Presbyterian Church (USA), 352 Or 668 (2012). The issue in this case was “whether a local church or the national church from which it seeks to separate owns certain church property.” 352 Or at 670. Resolving that issue consistent with the First Amendment required the Supreme Court to determine whether to apply the “hierarchical deference” approach to church property disputes described in Watson v. Jones, 80 US 679 (1871), or the “neutral principles” approach described in Jones v. Wolf, 443 US 595 (1979). The first approach requires courts to defer to the determination of the highest governing body of a hierarchical church. Under the second approach, courts resolve a church property dispute by examining deeds, local church charters, statutes, and provisions in the constitution of the general church regarding ownership and control of church property “in the context of generally applicable neutral principles of law, such as trust and property law.” Id. at 675. The Supreme Court adopted the “neutral principles” approach but noted that courts “must take special care to scrutinize the church documents in purely secular terms, and not to rely on religious precepts in determining whether the documents indicate that the parties have intended to create a trust.” Id. at 684. And “if the interpretation of church documents would involve the court in resolving a doctrinal controversy, then the court must defer to the resolution of that doctrinal issue by the church’s governing authority.”
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Id. The Supreme Court concluded that, “under the neutral principles approach to resolving church property disputes, Hope Presbyterian held its property in trust for the benefit of [the national church].” Id. at 696. PGE v. Ebasco Services, Inc., 353 Or 849 (2013). The Supreme Court held that (1) a trial court violated ORCP 67 C when it entered a default judgment awarding monetary relief if the underlying complaint did not state the specific amount of money or damages being sought; and (2) that violation rendered the judgment voidable (and therefore not subject to collateral attack) and not void (and therefore subject to challenge at any time). The court explained that service of the complaint provided defendant with notice of the defect, and the rules of civil procedure provided defendant “with ample opportunity for a predefault hearing at a meaningful time and in a meaningful manner.” 353 Or at 865. Thus, “due process does not demand the nullification of the default judgment by means of a collateral challenge.” Id. Willemsen v. Invacare Corp., 352 Or 191 (2012). Defendant CTE Tech Corp. (CTE), a Taiwanese corporation, manufactured battery chargers that it sold to an Ohio company (Invacare) that manufactures motorized wheelchairs. Invacare then sold the wheelchairs with the battery chargers in Oregon. Plaintiffs sued CTE after their mother died in a fire allegedly caused by a defect in CTE’s battery charger. CTE contended that “the Due Process Clause does not permit Oregon to exercise personal jurisdiction over it when it has not purposefully availed itself of the privilege of conducting business in Oregon.” 352 Or at 197. The Supreme Court disagreed, concluding that “the pattern of sales of CTE’s battery chargers in Oregon establishes a relationship between the defendant, the forum, and the litigation, such that it is fair, in light of the defendant’s contacts with this forum, to subject the defendant to suit here.” Id. at 207 (internal quotes omitted). Doe v. Corp. of Presiding Bishop, 352 Or 77 (2012). “Article I, section 10 [of the Oregon Constitution] does not compel the trial court to release to the public trial exhibits that are subject to a protective order or entitle the public to have access to trial exhibits at the close of trial.” 352 Or at 86. III. JUSTICIABILITY/STARE DECISIS Morgan v. Sisters School District #6, 353 Or 189 (2013). Plaintiff’s status as a taxpayer and voter within the district was not enough to give him standing under the Declaratory Judgments Act, ORS 28.020, to challenge a school district’s “authority to enter into a particular form of financing arrangement without a vote of the people.” 353 Or at 190. The court explained that the requested declaratory relief “will not remedy any injury to plaintiff’s voting rights. And adding to the inquiry his allegations of purely contingent, hypothetical fiscal harm does not alter that fact.”Id. at 201. Couey v. Brown, 257 Or App 434 (2013). Plaintiff alleged that a statute prohibiting him from obtaining signatures on initiative petitions for which he is being paid at the same time as obtaining signatures on petitions for which he is not paid violates his state and federal constitutional free expression rights. The trial court dismissed the claims as moot because the time period for circulating petitions and plaintiff’s status as a registered paid circulator had elapsed. The Court of Appeals affirmed, concluding that the case is moot and does not qualify for ORS 14.175’s exception for cases that are capable of repetition yet likely to evade judicial review. Farmers Ins. Co. v. Mowry, 350 Or 686 (2011). The Supreme Court disavowed the strict “rule of prior interpretation” of statutes adopted in State v. Elliott, 204 Or 460, 465 (1955), and applied in State v. King, 316 Or 437, 445-46 (1993). Under that rule, when the Supreme Court interprets a statute, “the interpretation becomes a part of the statute, subject only to a revision by the legislature.” 350 Or at 695. The court noted that this rule “has long been criticized as wrong in principle and unduly restrictive in practice[.]” Id. at 695. The court explained that the rule was “based on the theory of legislative acquiescence,” which “posits that a judicial decision interpreting a statute becomes ratified
The State of the Constitutions: New Developments in Federal and State Constitutional Law 3–3 Chapter 3—Summaries of Recent Constitutional Decisions by legislative silence and thus can only be changed by the legislature.” Id. at 696. The court concluded that this theory “is a legal fiction that assumes, usually without foundation in any particular case, that legislative silence is meant to carry a particular meaning[.]” Id. Instead of adhering to a rule that precluded the court from reexamining a prior decision construing a statute, the court concluded that, in “applying stare decisis to decisions construing statutes, we will rely upon the same considerations we do in constitutional and common-law cases, although . . . the weight given to particular considerations will not necessarily be the same.” Id. at 697.
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