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
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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
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The State of the Constitutions: New Developments in Federal and State Constitutional Law
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SCHEDULE
8:00Registration
9:00 U.S. Supreme Court Review and Preview
Professor Pamela S. Karlan, Stanford Law School, Stanford, CA
10:30Break
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
NoonLunch
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
2:15Break
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
3:45Adjourn
The State of the Constitutions: New Developments in Federal and State Constitutional Law
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The State of the Constitutions: New Developments in Federal and State Constitutional Law
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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 awardwinning 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
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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-inCharge 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
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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
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The State of the Constitutions: New Developments in Federal and State Constitutional Law
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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.
II.
III.
Introduction
A.
The shape of recent Supreme Court Terms at 30,000 feet
B.
The Docket
C.
The Justices
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
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
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1A–1
Chapter 1A—Recent Developments in Constitutional Law—Presentation Outline
B.
C.
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
Criminal Justice
1.
2.
IV.
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
The Fifth Amendment: Salinas v. Texas
Conclusion
The State of the Constitutions: New Developments in Federal and State Constitutional Law
2
1A–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
Reprinted with permission of author.
1 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
The State of the Constitutions: New Developments in Federal and State Constitutional Law
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Chapter 1B—Some Thoughts About State Constitutional Interpretation
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PENN STATE LAW REVIEW
[Vol. 115:4
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 countermajoritarian 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.
The State of the Constitutions: New Developments in Federal and State Constitutional Law
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Chapter 1B—Some Thoughts About State Constitutional Interpretation
2011]SOME THOUGHTS ABOUT STATE CONSTITUTIONAL INTERPRETATION
I.
839
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 wideranging 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, 102830 (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”).
The State of the Constitutions: New Developments in Federal and State Constitutional Law
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Chapter 1B—Some Thoughts About State Constitutional Interpretation
2011]SOME THOUGHTS ABOUT STATE CONSTITUTIONAL INTERPRETATION
841
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 “firstthings-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 “countermajoritarian 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 undemocratic—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:
THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT)
ROBERT A. DAHL, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? (2001).
WHERE
(2006);
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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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 antidemocratic, 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-personone-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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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
The details about those reasons were readily available,
be.”100
particularly in contemporaneous press accounts. Those sources, the
court concluded, “leave little doubt what the sponsors and the public
93.
94.
95.
96.
97.
98.
99.
100.
OR. CONST. art. V, § 15a.
See Lipscomb v. Bd. of Higher Educ., 753 P.2d 939, 940-41 (Or. 1988).
Id.
See id. at 946-47.
Id. at 944.
Id. at 943-44.
See id. at 944-46.
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 openended. 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. PinedaMoreno, 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 circuitriding 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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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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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 decisionmaking, 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
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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]
David Evans Skaggs, Herbert Lawrence Fenster,
McKenna Long & Aldridge, LLP, Emily L.
Droll, Geoffrey M. Williamson, John A.
Herrick, Lino S. Lipinsky De Orlov, Michael F.
Feeley, Brownstein Hyatt Farber Schreck, LLP,
Denver, CO, for Plaintiffs.
Bernard A. Buescher, Daniel D. Domenico,
Maurice G. Knaizer, Megan Paris Rundlet,
Colorado Attorney General's Office, Denver,
CO, for Defendant.
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT'S
MOTION TO DISMISS
WILLIAM J. MARTINEZ, District Judge.
This action challenges the constitutionality
and legality of the Taxpayer's Bill of Rights
(“TABOR”), an amendment to the Colorado
Constitution passed by voter initiative in 1992.
Among other provisions, TABOR prohibits the
Colorado General Assembly from increasing tax
rates or imposing new taxes without voter
approval. Plaintiffs allege that, by taking away
the General Assembly's power to tax, TABOR
violates Colorado's constitutional and statutory
obligations to maintain a republican form of
government.
This matter is before the Court on
Defendant's Motion to Dismiss. (ECF No. 18.)
In the Motion, Defendant argues that
[880 F.Supp.2d 1118]
Plaintiffs lack standing to bring this action, that
Plaintiffs' claims present non-justiciable political
questions, and that Plaintiffs' Equal Protection
claim and “Impermissible Amendment claim” 1
are independently subject to dismissal. ( Id.) On
February 15, 2012, the Court held oral argument
on the Motion, and thereafter requested
supplemental briefing from the parties on
various issues related to standing. ( See ECF No.
57, 68). The Motion to Dismiss is fully briefed
and now ripe for adjudication. ( See ECF No. 18,
30, 51, 72, 73; see also ECF No. 21–1, 61.)
Having carefully analyzed the issues
presented, the Court GRANTS IN PART and
DENIES IN PART the Motion to Dismiss. The
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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
members of the Colorado General Assembly
have standing to bring this action, and therefore
the action is not subject to dismissal for lack of
standing.2 The Court also holds that Plaintiffs'
claims are not barred by the political question
doctrine. Further, the Court holds that Plaintiffs
have failed to state an Equal Protection claim,
but that their “Impermissible Amendment claim”
is not subject to dismissal. Therefore, the Court
will allow this action to proceed past the
pleading stage on all claims except for the Equal
Protection claim.
I. BACKGROUNDA. TABOR
TABOR is codified in Article X,3 Section
20 of the Colorado Constitution. TABOR
provides,4 among other things, that:
• A “district” (defined in TABOR as the
State of Colorado or any local government in
Colorado) “must have voter approval in advance
for ... any new tax, tax rate increase, mill levy
above that for the prior year, valuation for
assessment ratio increase for a property class, or
extension of an expiring tax, or a tax policy
change directly causing a new tax revenue gain
to any district.” Colo. Const. art. X, § 20, cls.
(2)(b), (4)(a).5
• A district “must [also] have voter
approval in advance for ... creation of any
multiple-fiscal year direct or indirect district
debt or other financial obligation whatsoever
without adequate present cash reserves pledged
irrevocably and held for payments in all future
fiscal years.” Id.art. X, § 20, cl. (4)(b).6
• “The maximum annual percentage change
in state fiscal year spending equals inflation plus
the percentage change in state population in the
prior calendar year.... The maximum annual
[880 F.Supp.2d 1119]
percentage change in each local district's fiscal
year spending equals inflation in the prior
calendar year plus annual local growth.... The
maximum annual percentage change in each
district's property tax revenue equals inflation in
the prior calendar year plus annual local
growth.... If revenue from sources not excluded
from fiscal year spending exceeds these limits in
dollars for that fiscal year, the excess shall be
refunded in the next fiscal year unless voters
approve a revenue change as an offset.” Id.art.
X, § 20, cl. (7)(a)-(d).7
• “New or increased transfer tax rates on
real property are prohibited. No new state real
property tax or local district income tax shall be
imposed.... Any income tax law change after
July 1, 1992 shall also require all taxable net
income to be taxed at one rate, excluding refund
tax credits or voter-approved tax credits, with no
added tax or surcharge.” Id.art. X, § 20, cl.
(8)(a).
Given that TABOR is part of the Colorado
Constitution, it cannot be revoked or amended
without voter approval. SeeColo. Const. art.
XIX, § 2, cl. (1) (provision of Colorado
Constitution explaining how amendments to
Constitution are adopted, and stating that
proposed constitutional amendments “shall be
submitted to the registered electors of the state
for their approval or rejection [during a general
election], and such as are approved by a majority
of those voting thereon shall become part of this
constitution”); id.art. XIX, § 1 (constitutional
provision explaining how a constitutional
convention is called, providing that voter
approval must be obtained to hold the
convention, and providing that voter approval is
required for the adoption of any revisions,
alterations, or amendments to the Constitution
resulting from the convention); see also id.art.
X, § 20, cl. (1) (provision of TABOR stating that
“[o]ther limits on district revenue, spending, and
debt may be weakened only by future voter
approval”).
B. The Operative Complaint
For purposes of Defendant's Motion to
Dismiss, the Court properly accepts as true the
allegations in Plaintiffs' First Amended
Substitute Complaint for Injunctive and
Declaratory Relief (the “Operative Complaint”).
( See “Legal Standards” section below.)
-2-
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Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
1. Plaintiffs
This action is brought by 33 Plaintiffs. ( Id.
¶¶ 10–42.) Five Plaintiffs are current members
of the Colorado General Assembly, four of
whom are members of the Colorado House of
Representatives and one of whom is a member
of the Colorado Senate (the “Legislator–
Plaintiffs”). ( Id. ¶¶ 10, 22, 28, 31, 36.) 8 Nine
Plaintiffs are former members of the Colorado
General Assembly. ( Id. ¶¶ 11, 16, 19, 30, 32,
34, 35, 40, 41.) Other Plaintiffs include current
or former county commissioners, mayors, city
councilpersons, members of boards of education,
public university presidents and professors,
public school teachers, and parents
[880 F.Supp.2d 1120]
of school-age children. ( See generally id. ¶¶ 10–
42.) All Plaintiffs are Colorado citizens. ( Id.)
2. General Allegations
Plaintiffs' Operative Complaint states, “The
purpose of this case is to seek a ruling that
[TABOR] is unconstitutional because it deprives
the state and its citizens of effective
representative democracy, contrary to a
Republican Form of Government as required
under both the United States and Colorado
Constitutions.” (ECF No. 36, ¶ 8.) Plaintiffs
explain their position that “[a]n effective
legislative branch must have the power to raise
and appropriate funds. When the power to tax is
denied, the legislature cannot function
effectively to fulfill its obligations in a
representative democracy and a Republican
Form of Government.” ( Id. ¶ 7.) They allege
that TABOR has caused a “slow, inexorable
slide into fiscal dysfunction [in Colorado]” ( id.
¶ 3), and specifically allege that TABOR has
constrained the state government's ability to
comply with its constitutional obligation to
adequately fund public education ( id. ¶ 81).
After reviewing some of TABOR's provisions (
id. ¶¶ 75–77, 79), the Complaint states,
The totality of these TABOR provisions
removes entirely from the Colorado General
Assembly any authority to change state law
concerning taxation to replace or increase
revenue, and prohibits the General Assembly
from raising funds by any other means,
including borrowing. Moreover, the interactions
of the provisions of TABOR may actually force
existing taxes to be decreased without any action
of the General Assembly.
( Id. ¶ 80.)
3. Claims
Plaintiffs bring five claims for relief in the
Operative Complaint:
(1) The “Guarantee Clause claim,” alleging
that TABOR violates Article IV, Section 4 of the
United States Constitution (the “Guarantee
Clause”). ( Id. ¶ 82.) The Guarantee Clause
provides that “[t]he United States shall
guarantee to every State in this Union a
Republican Form of Government....” U.S. Const.
art. IV, § 4. Plaintiffs' Guarantee Clause claim
alleges that, “[b]y removing the taxing power of
the General Assembly, the TABOR amendment
renders the Colorado General Assembly unable
to fulfill its legislative obligations under a
Republican Form of Government and violates
the guarantee of Article IV, Section 4....” (ECF
No. 36, ¶ 82.)
(2) The “Enabling Act claim,” alleging that
TABOR violates the Enabling Act of 1875 (the
“Enabling Act”), the U.S. statute granting
statehood to Colorado. ( Id. ¶ 83.) The Enabling
Act, inter alia, authorized the formation of “a
constitution and State Government [for
Colorado].... Provided, That the constitution
shall be republican in form ... and not repugnant
to the Constitution of the United States....” 18
Stat. 474 (1875). Plaintiffs' Enabling Act claim
alleges that “the TABOR amendment violates
the Enabling Act” because “[t]he Enabling Act's
requirement for a Republican Form of
Government entail[s] having and maintaining a
fully effective legislature.” (ECF No. 36, ¶ 83.)
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Chapter 1C—Developments in State Constitutionalism—Three Cases
Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
(3) The “Supremacy Clause claim,”
alleging that TABOR violates Article VI of the
United States Constitution (the “Supremacy
Clause”). ( Id. ¶ 84.) The Supremacy Clause
provides that “[t]his Constitution, and the Laws
of the United States which shall be made in
Pursuance thereof ... shall be the supreme Law
of the Land ... any Thing in the Constitution or
Laws of any State to the Contrary
notwithstanding.” U.S. Const. art. VI, cl. 2.
Plaintiffs' Supremacy Clause claim alleges that
TABOR is in “irresolvable conflict” with the
[880 F.Supp.2d 1121]
Guarantee Clause and Enabling Act, and
therefore “must yield to the requirements of the
‘Guarantee Clause’ and of the Enabling Act that
Colorado maintain a Republican Form of
Government.” (ECF No. 36, ¶ 84.)
(4) The “Equal Protection claim,” alleging
that TABOR violates the Equal Protection
Clause of the Fourteenth Amendment of United
States Constitution. ( Id. ¶ 85.) The Equal
Protection Clause provides that “[n]o State shall
... deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const.
amend. XIV, § 1. Plaintiffs' Equal Protection
claim alleges that, because TABOR violates the
requirement of a Republican Form of
Government, TABOR “den[ies] to Plaintiffs and
others similarly situated the Equal Protection of
the Laws....” (ECF No. 36, ¶ 85.) 9
(5) The “Impermissible Amendment
claim,” alleging, inter alia, that TABOR
impermissibly
amended
the
Colorado
Constitution in violation of constitutionally
superior
provisions
of
the
Colorado
Constitution, specifically Article II, Section 2;
Article V, Sections 31 and 32; and Article X,
Section 2 of the Colorado Constitution. ( Id. ¶¶
87–92.) 10,11
4. Relief Sought
Through this action, Plaintiffs seek an order
rendering TABOR “null and void” and
“prohibiting any [Colorado] state officer from
taking any action whatsoever to effect the
requirements and purposes of [TABOR].” ( Id.
at 20–21.)
C. Procedural History
Plaintiffs filed this action on May 23, 2011.
(ECF No. 1.) On June 15, 2011, Plaintiffs filed
an unopposed motion to amend the original
Complaint in order to, inter alia, replace the
State of Colorado as the named defendant with
the Governor of Colorado, John Hickenlooper,
in his official capacity. (ECF No. 9.) The Court
granted the request (ECF No. 11), and Plaintiffs'
Substituted Complaint for Injunctive and
Declaratory Relief (“Substitute Complaint”) was
entered on June 16, 2011 (ECF No. 12).
[880 F.Supp.2d 1122]
On October 17, 2011, Plaintiffs again filed
an unopposed motion to amend their complaint.
(ECF No. 31.) The only differences between the
proposed
First
Amendment
Substitute
Complaint for Injunctive and Declaratory Relief
and the Substitute Complaint were the removal
of one of the 34 Plaintiffs, the addition of a new
position for another Plaintiff, and a slight reordering of paragraphs. ( Compare ECF No. 12,
with ECF No. 36.) The Court again granted the
request (ECF No. 35), and the First Amended
Substitute Complaint for Injunctive and
Declaratory Relief (the “Operative Complaint”)
was entered on October 18, 2011 (ECF No. 36).
On August 15, 2011, Defendant filed the
Motion to Dismiss currently at issue. (ECF No.
18.) On October 11, 2011, Plaintiffs filed their
Brief in Opposition to the Motion to Dismiss.
(ECF No. 30.) On November 18, 2011,
Defendant filed a Reply to Plaintiffs'
Opposition. (ECF No. 51.) The Court has also
allowed the filing of two amicus briefs, one filed
by the Independence Institute (ECF No. 21–1),12
and one filed by Professors Erwin Chemerinsky,
Gene Nichol, and William Wiecek (ECF No.
61).13
On February 15, 2012, the Court held oral
argument on Defendant's Motion to Dismiss.
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(ECF No. 68.) At the oral argument, the parties
formally stipulated that the Motion to Dismiss is
properly construed as moving to dismiss the
Operative Complaint.14 Based on this stipulation
and the Court's authority to do so, the Court
construes Defendant's Motion to Dismiss as
moving to dismiss the Operative Complaint in
this action. See Medinger v. City of Ashland, No.
1:11–CV–00470, 2012 WL 1849667, at *1
(D.Or. May 17, 2012) (construing motion to
dismiss as applying to later-filed amended
complaint).
Because the parties in their briefing on the
Motion to Dismiss and at oral argument
disproportionately focused on the political
question doctrine's applicability vel non to this
action, the Court on February 17, 2012 ordered
further briefing from the parties on issues related
to Plaintiffs' standing to bring this action. (ECF
No. 70.) On March 16, 2012, both sides filed
supplemental briefs addressing the standing
issues identified by the Court. (ECF No. 72, 73.)
Defendant's Motion to Dismiss is now ripe
for adjudication.
II. LEGAL STANDARDSA.
Dismiss and Parties' Positions
Motion
to
Defendant's Motion to Dismiss is brought
pursuant to Federal Rules of Civil Procedure
12(b)(1) (lack of subject-matter jurisdiction) and
12(b)(6) (failure to state a claim). There is some
dispute between the parties regarding which of
these two rules applies to each of Defendant's
purported bases for dismissal. ( See ECF No. 18,
at 3–4; ECF No. 30, at 5–7; ECF No. 51, at
[880 F.Supp.2d 1123]
2.) See also, e.g., Schroder v. Bush, 263 F.3d
1169, 1171 n. 1 (10th Cir.2001) (discussing
Rules 12(b)(1) and 12(b)(6), and stating,
“Deeply rooted ambiguity in the nature and
justification of the political question doctrine has
prevented clear classification of the appropriate
type of dismissal in political question cases.”).
However, the parties agree that, no matter which
of the two rules applies to each purported basis
for dismissal, for every purported basis for
dismissal the Court should accept the Operative
Complaint's allegations as true. ( See ECF No.
18, at 3–4; ECF No. 30, at 5–6; ECF No. 51, at
2.)
B. Federal Rule of Civil Procedure 12(b)(1)
Under Federal Rule of Civil Procedure
12(b)(1), a party may move to dismiss a claim
for lack of subject-matter jurisdiction. Rule
12(b)(1) challenges are generally presented in
one of two forms: “[t]he moving party may (1)
facially attack the complaint's allegations as to
the existence of subject matter jurisdiction, or
(2) go beyond allegations contained in the
complaint by presenting evidence to challenge
the factual basis upon which subject matter
jurisdiction rests.” Merrill Lynch Bus. Fin.
Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th
Cir.2004) (citation and quotation marks
omitted). Where, as here, the defendant's motion
to dismiss presents a facial attack on the
existence of subject-matter jurisdiction, “the
district court must accept the allegations in the
complaint as true ... and construe the complaint
in favor of [the plaintiffs].” United States v.
Rodriguez–Aguirre, 264 F.3d 1195, 1203 (10th
Cir.2001); see also Warth v. Seldin, 422 U.S.
490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)
(“For purposes of ruling on a motion to dismiss
for want of standing, ... courts must accept as
true all material allegations of the complaint,
and must construe the complaint in favor of the
complaining party.”). However, “[t]he burden of
establishing subject matter jurisdiction is on the
party asserting jurisdiction.” Port City Props. v.
Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th
Cir.2008).
C. Federal Rule of Civil Procedure 12(b)(6)
Under Federal Rule of Civil Procedure
12(b)(6), a defendant may move to dismiss a
complaint for “failure to state a claim upon
which relief can be granted.” In evaluating such
a motion, a court must “assume the truth of the
plaintiff's well-pleaded factual allegations and
view them in the light most favorable to the
plaintiff.” Ridge at Red Hawk, L.L.C. v.
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Schneider, 493 F.3d 1174, 1177 (10th Cir.2007).
In ruling on such a motion, the dispositive
inquiry is “whether the complaint contains
‘enough facts to state a claim to relief that is
plausible on its face.’ ” Id. (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007)). Granting a
motion to dismiss “is a harsh remedy which
must be cautiously studied, not only to
effectuate the spirit of the liberal rules of
pleading but also to protect the interests of
justice.” Dias v. City & Cnty. of Denver, 567
F.3d 1169, 1178 (10th Cir.2009) (quotation
marks omitted).
III. ANALYSIS
The Court begins its analysis by evaluating
Plaintiffs' standing to bring this action, and then
proceeds to discuss whether the political
question doctrine bars this action, in addition to
the other arguments raised in Defendant's
Motion to Dismiss. See Schlesinger v. Reservists
Comm. to Stop the War, 418 U.S. 208, 215, 94
S.Ct. 2925, 41 L.Ed.2d 706 (1974).15
[880 F.Supp.2d 1124]
A.
Standing1.
Operative
Complaint's
Allegations Regarding Standing
The Operative Complaint contains the
following
allegations
regarding
various
Plaintiffs' purported standing to bring this
action:
• “Several plaintiffs ... hold[ ] public office
in certain state and local governmental bodies.
The offices held by these plaintiffs are relevant
to their standing in the case.” (ECF No. 36, ¶ 9.)
• “In [Andy Kerr's] individual capacity as a
citizen of the State of Colorado and in his
capacity as a State Representative, he has
standing to challenge the constitutionality of the
TABOR amendment.” ( Id. ¶ 10.)
• “Certain plaintiffs in this case are past or
sitting elected representatives in the General
Assembly of the State of Colorado. As such,
they have a direct and specific interest in
securing to themselves, and to their constituents
and to the state, the legislative core functions of
taxation and appropriation. Other plaintiffs in
this case include officers of counties, districts
and municipalities which are dependent, under
the state constitution, on the power of the
legislature and their own powers to tax and
appropriate.” ( Id. ¶ 43.)
• “Certain plaintiffs in this case are past or
sitting elected officials of counties, cities, and
school districts in the State of Colorado,
jurisdictions whose abilities to tax are eliminated
by TABOR.” ( Id. ¶ 44.)
• “Certain plaintiffs in this case are or have
been educators employed by the State of
Colorado or by various school districts. In
addition to their interests as citizens of the state,
they also have a specific interest in assuring that
the legislature of the state can discharge its
responsibilities to tax for the purpose of
adequately
funding
core
education
responsibilities of the state as provided in Article
IX, Section 2 of the Colorado Constitution.” ( Id.
¶ 45.)
• “Certain plaintiffs in this case are citizens
of the State of Colorado, having a specific,
protectable interest in assuring that their
representatives can discharge the inherently
legislative function of taxation and appropriation
and an interest in assuring that the State of
Colorado has a Republican Form of
Government, as required by the United States
Constitution.” ( Id. ¶ 46.)
2. Summary of Parties' Arguments Regarding
Standing
In terms of the Legislator–Plaintiffs,
Defendant argues that those Plaintiffs do not
have standing to assert their claim that TABOR
has caused a diminution of their political power,
analogizing this case to Raines v. Byrd, 521 U.S.
811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997),
and distinguishing Coleman v. Miller, 307 U.S.
433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). (ECF
No. 51, at 5–7.) Plaintiffs, on the other hand,
argue that the Legislator–Plaintiff have standing
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because “TABOR directly impacts their ability
to fulfill their official responsibilities.” (ECF
No. 30, at 8.) The Legislator–Plaintiffs argue
that their claim
[880 F.Supp.2d 1125]
is akin to the claim at issue in Coleman, and
distinguishable from that in Raines.(Id. at 8–9 &
n. 5.) The Court requested further briefing from
the parties' regarding Raines's applicability vel
non to this action (ECF No. 70, at 3), which the
parties have provided (ECF No. 72, at 4–8; ECF
No. 73, at 13–16).
In terms of citizen standing, Defendant
argues that Plaintiffs as citizens of Colorado do
not have standing because their claim is “a
generally
available
grievance
about
government—claiming only harm to [their] and
every citizen's interest in proper application of
the Constitution and laws....” (ECF No. 18, at
15–16 (quoting Lance v. Coffman, 549 U.S. 437,
439, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007)).)
In response, Plaintiffs liken their claim of citizen
standing to Flast v. Cohen, 392 U.S. 83, 88 S.Ct.
1942, 20 L.Ed.2d 947 (1968), in which
taxpayers bringing an Establishment Clause
challenge were found to have standing. (ECF 30,
at 10–11.) Defendant argues that Flast, a narrow
exception to the general rule that taxpayers do
not have standing, is inapplicable. (ECF No. 51,
at 8–11.) The Court requested further briefing
from the parties' regarding Lance's applicability
to this action (ECF No. 70, at 3), which the
parties have provided (ECF No. 72, at 9–14;
ECF No. 73, at 10–13).
The parties' original briefing on the Motion
to Dismiss focused only on legislative standing
and citizen standing. Given the allegation in the
Operative Complaint regarding the standing of
educators (ECF No. 36, ¶ 45), the Court asked
Plaintiffs to clarify whether they were alleging
standing based on injury to educators, and asked
the parties to brief whether standing would exist
on that basis (ECF No. 70, at 3). In the
supplemental briefing, Plaintiffs clarified that
they do seek standing on that basis, and both
sides provided argument on that issue. (ECF No.
72, at 14–17; ECF No. 73, at 16–19.)
The parties also disagree as to whether
TABOR caused the injuries alleged, and whether
a ruling in Plaintiffs' favor would redress those
alleged injuries. (ECF No. 18, at 17–18; ECF
No. 30, at 12–14; ECF No. 51, at 11–13.)
3. General Rules of Constitutional Standing
Article III of the United States Constitution
limits the jurisdiction of federal courts to
“[c]ases” and “[c]ontrover[sies].” U.S. Const.
art. III, § 2. “No principle is more fundamental
to the judiciary's proper role in our system of
government than the constitutional limitation of
federal-court jurisdiction to actual cases or
controversies.” Simon v. E. Ky. Welfare Rights
Org., 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d
450 (1976).
“[T]he core component of standing is an
essential and unchanging part of the case-orcontroversy requirement of Article III.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560, 112
S.Ct. 2130, 119 L.Ed.2d 351 (1992). “The gist
of the question of standing” is whether the
plaintiffs have “alleged such a personal stake in
the outcome of the controversy as to assure that
concrete adverseness which sharpens the
presentation of issues upon which the court so
largely depends for illumination of difficult
constitutional questions.” Baker v. Carr, 369
U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663
(1962). Standing “is perhaps the most important
of the[ ] doctrines” limiting the federal judicial
power. Allen v. Wright, 468 U.S. 737, 750, 104
S.Ct. 3315, 82 L.Ed.2d 556 (1984).
“[T]he irreducible constitutional minimum
of standing contains three elements”: (1) the
plaintiff must have suffered a “concrete and
particularized” injury
[880 F.Supp.2d 1126]
that is “actual or imminent” ( i.e., an “injury in
fact”), (2) there must be “a causal connection
between the injury and the conduct complained
of,” and (3) it must be “likely ... that the injury
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will be redressed by a favorable decision.”
Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130
(quotation marks omitted); see also Allen, 468
U.S. at 751, 104 S.Ct. 3315 (“A plaintiff must
allege personal injury fairly traceable to the
defendant's allegedly unlawful conduct and
likely to be redressed by the requested relief.”)
“The party invoking federal jurisdiction
bears the burden of establishing these elements.”
Lujan, 504 U.S. at 561, 112 S.Ct. 2130.
At the pleading stage, general factual
allegations of injury resulting from the
defendant's conduct may suffice, for on a motion
to dismiss we presume that general allegations
embrace those specific facts that are necessary to
support the claim. In response to a summary
judgment motion, however, the plaintiff can no
longer rest on such mere allegations, but must
set forth by affidavit or other evidence specific
facts, which for purposes of the summary
judgment motion will be taken to be true. And at
the final stage, those facts (if controverted) must
be supported adequately by the evidence
adduced at trial.
Id. (citations, quotation marks, and brackets
omitted).
Also,
[w]hen the suit is one challenging the
legality of government action or inaction, the
nature and extent of facts that must be averred
(at the summary judgment stage) or proved (at
the trial stage) in order to establish standing
depends considerably upon whether the plaintiff
is himself an object of the action (or forgone
action) at issue. If he is, there is ordinarily little
question that the action or inaction has caused
him injury, and that a judgment preventing or
requiring the action will redress it.
Id. at 561–62, 112 S.Ct. 2130.
4. Legislative Standing—“Injury in Fact”
The Court first addresses the issue of
whether the Legislator–Plaintiffs have standing
to bring this action.
a. Governing Case Law(1) U.S. Supreme
Court Cases
The United States Supreme Court has
infrequently addressed the issue of legislative
standing. One of the few cases in which it did so
is Coleman v. Miller, 307 U.S. 433, 59 S.Ct.
972, 83 L.Ed. 1385 (1939). There, twenty
Kansas State Senators, among others, brought
suit after a vote in the Kansas State Senate
deadlocked at 20–20 (which ordinarily would
mean the measure would not pass), but the
State's Lieutenant Governor cast a deciding vote
passing the measure. Id. at 435–36, 59 S.Ct. 972.
The Court found standing based on the complete
nullification of the effectiveness of those
Senators' votes, explaining, “[the plaintiffs']
votes against ratification have been overridden
and virtually held for naught although if they are
right in their contentions their votes would have
been sufficient to defeat ratification. We think
that these senators have a plain, direct and
adequate
interest
in
maintaining
the
effectiveness of their votes.” Id. at 438, 59 S.Ct.
972. The Court in Coleman ultimately ruled
against the plaintiffs on the merits, affirming the
Kansas Supreme Court's denial of mandamus.
See id. at 437–56, 59 S.Ct. 972.
The Supreme Court more recently took up
the issue of legislative standing in Raines v.
Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138
L.Ed.2d 849 (1997). In Raines, six members of
the United States Congress challenged the
constitutionality of
[880 F.Supp.2d 1127]
the Line Item Veto Act (the “Act”), which had
been passed by Congress and signed into law by
the President in 1996. Id. at 814, 117 S.Ct. 2312.
The six plaintiffs had voted against passage of
the Act. Id. The Court held that the plaintiffs
lacked constitutional standing to bring the action
because, among other reasons discussed in more
detail below, the alleged injury constituted only
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an abstract dilution of institutional legislative
power. Id. at 818, 825–26, 830, 117 S.Ct.
2312.16
The Supreme Court in Raines began its
analysis by laying out fundamental rules of
standing, id. at 818–20, 117 S.Ct. 2312, and
emphasized that “our standing inquiry has been
especially rigorous when reaching the merits of
the dispute would force us to decide whether an
action taken by one of the other two branches of
the Federal Government was unconstitutional,”
id. at 820, 117 S.Ct. 2312. Later in the decision,
the Court again emphasized the importance of
separation-of-powers concerns in the standing
analysis, evaluating in depth instances during the
nation's history when Members of Congress or
the Executive declined to entangle the Judiciary
in confrontations between Congress and the
Executive branch. Id. at 826–28, 117 S.Ct. 2312.
The Raines Court then proceeded to
analyze Coleman and another prior Supreme
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
Powell, the Supreme Court held that the
exclusion of a member of Congress from the
House of Representatives (with a consequent
loss of salary) presented a live “case or
controversy.” 395 U.S. at 512–14 & n. 35, 89
S.Ct. 1944.Raines distinguished Powell on two
grounds. First, the Court stated that, unlike in
Powell, the plaintiffs in Raines “ha[d] not been
singled out for specially unfavorable
treatment.... [Instead t]heir claim is that the Act
causes a type of institutional injury (the
diminution of legislative power), which
necessarily damages all Members of Congress
and both Houses of Congress equally.” 521 U.S.
at 821, 117 S.Ct. 2312. Second, the Court stated
that, unlike in Powell, the Raines plaintiffs'
“claim of standing is based on a loss of political
power, not loss of any private right, which
would make the injury more concrete.” Id. The
Court in Raines emphasized that the plaintiffs
were suing in their official capacities rather than
based on some private injury. Id.
Raines then turned to Coleman, identifying
Coleman as “[t]he one case in which we have
upheld standing for legislators (albeit state
legislators) claiming an institutional injury.” Id.
(emphasis in original). After evaluating
Coleman, the Court in Raines stated,
[O]ur holding in Coleman stands (at most)
for the proposition that legislators whose votes
would have been sufficient to defeat (or enact) a
specific legislative Act have standing to sue if
that legislative action goes into effect (or does
not
[880 F.Supp.2d 1128]
go into effect), on the ground that their votes
have been completely nullified.
521 U.S. at 823, 117 S.Ct. 2312 (citation
omitted). The Court then proceeded to explain
why Coleman provided “little meaningful
precedent” for the situation presented in Raines:
[The Raines plaintiffs] have not alleged that
they voted for a specific bill, that there were
sufficient votes to pass the bill, and that the bill
was nonetheless defeated. In the vote on the Act,
their votes were given full effect. They simply
lost that vote. Nor can they allege that the Act
will nullify their votes in the future in the same
way that the votes of the Coleman legislators
had been nullified. In the future, a majority of
Senators and Congressmen can pass or reject
appropriations bills; the Act has no effect on this
process. In addition, a majority of Senators and
Congressmen can vote to repeal the Act, or to
exempt a given appropriations bill (or a given
provision in an appropriations bill) from the Act;
again, the Act has no effect on this process.
Id. at 824, 117 S.Ct. 2312. The Court ultimately
stated, “There is a vast difference between the
level of vote nullification at issue in Coleman
and the abstract dilution of institutional
legislative power that is alleged here. To uphold
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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In conclusion, the Court in Raines stated:
In sum, appellees have alleged no injury to
themselves as individuals (contra, Powell ), the
institutional injury they allege is wholly abstract
and widely dispersed (contra, Coleman ), and
their attempt to litigate this dispute at this time
and in this form is contrary to historical
experience. We attach some importance to the
fact that appellees have not been authorized to
represent their respective Houses of Congress in
this action, and indeed both Houses actively
oppose their suit. We also note that our
conclusion neither deprives Members of
Congress of an adequate remedy (since they may
repeal the Act or exempt appropriations bills
from its reach), nor forecloses the Act from
constitutional challenge (by someone who
suffers judicially cognizable injury as a result of
the Act). Whether the case would be different if
any of these circumstances were different we
need not now decide.
We therefore hold that these individual
members of Congress do not have a sufficient
“personal stake” in this dispute and have not
alleged a sufficiently concrete injury to have
established Article III standing.
Id. at 829–30, 117 S.Ct. 2312 (some citations
omitted).
(2) Tenth Circuit Case
In Schaffer v. Clinton, 240 F.3d 878 (10th
Cir.2001), the Tenth Circuit discussed Raines
and legislative standing. In Schaffer, Bob
Schaffer, a member of the U.S. House of
Representatives, brought suit challenging a
statute authorizing cost of living adjustments
(“COLAs”) for Members of Congress, claiming
that the statute violated the Twenty–Seventh
Amendment to the Constitution.17 Although the
statute granted Congressman Schaffer a pay
increase, he brought suit claiming that the
unconstitutional salary increase was “personally
offensive and professionally harmful to him, as
well as damaging to his
[880 F.Supp.2d 1129]
political position and his credibility among his
constituency.” Id. at 883 (quotation marks and
brackets omitted). Although that case presented
an alleged injury quite different than the one
alleged here, the Tenth Circuit's discussion of
Raines is notable:
Like the plaintiffs in Raines, Congressman
Schaffer has not alleged a sufficiently personal
injury to establish standing because he has not
been singled out for specially unfavorable
treatment as opposed to other Members of the
House of Representatives. Instead the COLAs,
which apply to every Representative, necessarily
damage all Members of Congress equally.
Congressman Schaffer's allegations of harm to
his political position and his credibility among
his constituency are even more abstract than the
assertion of a dilution of institutional legislative
power the Court found wanting in Raines.
Finally, as in Raines, there has been no
nullification of Congressman Schaffer's ability
to vote on the COLAs; if he received a COLA
..., that is simply because he lost that vote. The
[COLA] has no effect on either Congressman
Schaffer's ability to press for a change in the law
setting Representatives' salaries or for Congress
to amend the COLA provisions pursuant to the
normal legislative process.
Id. at 885–86 (citations, quotation marks,
brackets, and ellipses omitted).
b. Analysis of Whether the Legislator–
Plaintiffs Have Alleged a Cognizable Injury
in Fact
Raines identifies numerous issues to
consider in determining whether legislators in a
particular case have standing: whether the
alleged injury is concrete or abstract; whether
the legislators allege an institutional injury in
their official capacities that is common to all
members of the legislative body; whether the
legislators have been authorized to bring suit on
behalf of the legislative body; whether
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separation-of-powers concerns are present;
whether the legislators have an adequate internal
remedy within the legislative body; and whether
declining standing to the legislators would
foreclose any constitutional challenge to the
disputed measure. See521 U.S. at 829, 117 S.Ct.
2312.Raines also specifically stated, “Whether
the case would be different if any of these
circumstances were different [than those present
in Raines ] we need not now decide.” Id. at 829–
30, 117 S.Ct. 2312. The Court will analyze these
important standing considerations in turn.
(1) Concreteness of Injury
Standing jurisprudence makes clear that
the concreteness (versus abstractness) of an
injury is one of the more important, if not the
critical issue, governing the standing question.
See Lujan, 504 U.S. at 560, 112 S.Ct.
2130;Schlesinger, 418 U.S. at 222, 94 S.Ct.
2925 (“To permit a complainant who has no
concrete injury to require a court to rule on
important constitutional issues in the abstract
would create the potential for abuse of the
judicial process, distort the role of the Judiciary
in its relationship to the Executive and the
Legislature and open the Judiciary to an
arguable charge of providing ‘government by
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
fact.’ ”); Okpalobi v. Foster, 190 F.3d 337, 352
(5th Cir.1999) (stating that “the fundamental
goal of the standing inquiry” is to “ensur[e] that
litigants have a concrete stake in the outcome of
the proceedings such that the issue will be
framed properly”).
In Raines, the Court did not engage in any
extended discussion of why the injuries
[880 F.Supp.2d 1130]
alleged by the plaintiffs there were too abstract
to confer standing. The Court's entire discussion
regarding the nature of the injuries alleged was
made during the process of distinguishing
Coleman:
[A]ppellees rely heavily on our statement in
Coleman that the Kansas senators had “a plain,
direct and adequate interest in maintaining the
effectiveness of their votes.” Appellees claim
that this statement applies to them because their
votes on future appropriations bills (assuming a
majority of Congress does not decide to exempt
those bills from the Act) will be less “effective”
than before, and that the “meaning” and
“integrity” of their vote has changed.... Even
taking appellees at their word about the change
in the “meaning” and “effectiveness” of their
vote for appropriations bills which are subject to
the Act, we think their argument pulls Coleman
too far from its moorings. Appellees' use of the
word “effectiveness” to link their argument to
Coleman stretches the word far beyond the sense
in which the Coleman opinion used it. There is a
vast difference between the level of vote
nullification at issue in Coleman and the abstract
dilution of institutional legislative power that is
alleged here.
Raines, 521 U.S. at 824–26, 117 S.Ct. 2312, 117
S.Ct. 2312.Raines based its holding, in part, on
the ultimate conclusion that “institutional injury
[that plaintiffs] allege is wholly abstract and
widely dispersed (contra, Coleman)....” Id. at
829, 117 S.Ct. 2312.18
In the Court's view, it is significant that
Raines did not overrule Coleman, but instead
reaffirmed that the “level of vote nullification”
at issue in Coleman was sufficient to confer
standing. Coleman involved a vote on one
measure in which legislators' votes were
“nullified.” This action, on the other hand,
challenges a state constitutional provision in
effect for nearly twenty years, under which
members of the Colorado General Assembly
have not had the power to increase tax rates or
approve new taxes without voter approval.19 In
the Operative Complaint, Plaintiffs allege:
• “An effective legislative branch must
have the power to raise and appropriate funds.
When the power to tax is denied, the legislature
cannot function effectively to fulfill its
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obligations in a representative democracy and a
Republican Form of Government.” ( Id. ¶ 7.)
complaint based on claim that the plaintiffs
lacked standing).
• “[T]axation and appropriation”
“legislative core functions.” ( Id. ¶ 43.)
As alleged, this injury is of a greater
magnitude than the single instance of vote
nullification in Coleman, and is far more
concrete than the alleged injury in Raines. The
injury alleged here is a concrete injury involving
the removal of a “core” legislative power of the
General Assembly. The allegations of the
Operative Complaint are of such a magnitude
that the term “dilution of institutional power”
appears insufficient to describe the alleged
injury TABOR has effected on Plaintiffs' core
representative powers. More importantly, the
allegations of the Operative Complaint detail
anything but an abstract dilution of power. As a
consequence, the concreteness of the injury
alleged here weighs in favor of finding
standing.20
are
• “[TABOR] removes entirely from the
Colorado General Assembly any authority
[880 F.Supp.2d 1131]
to change state law concerning taxation to
replace or increase existing revenue, and
prohibits the General Assembly from raising
funds by any other means, including borrowing.
Moreover, the interaction of the provisions of
TABOR may actually force existing taxes to be
decreased without any action of the General
Assembly.” ( Id. ¶ 80.)
• “A fully effective legislature is an
essential component of a Republican Form of
Government, as guaranteed to each state by [the
Guarantee Clause]. By removing the taxing
power of the General Assembly, the TABOR
amendment renders the Colorado General
Assembly unable to fulfill its legislative
obligations under [the Guarantee Clause].” ( Id.
¶ 83.)
• “The TABOR amendment has made the
General Assembly ineffective by removing an
essential function, namely the power to tax. In
so doing, the TABOR amendment violates the
Enabling Act.” ( Id. ¶ 84.)
At this early stage of the proceedings, the
Court must accept as true that the Legislator–
Plaintiffs have suffered a concrete injury. See
Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (“At the
pleading stage, general factual allegations of
injury resulting from the defendant's conduct
may suffice, for on a motion to dismiss we
presume that general allegations embrace those
specific facts that are necessary to support the
claim.”); see also Am. Tradition Inst. v. State of
Colorado, 876 F.Supp.2d 1222, 1233, 2012 WL
2899064, at *6–*7 (D.Colo. July 17, 2012)
(emphasizing importance of the stage of
proceedings in denying motion to dismiss
[880 F.Supp.2d 1132]
With respect to the nature of the injury
alleged by the Legislator–Plaintiffs and its effect
on standing, Lujan is telling. There, the Supreme
Court specifically emphasized:
When the suit is one challenging the
legality of government action or inaction, the
nature and extent of facts that must be averred
(at the summary judgment stage) or proved (at
the trial stage) in order to establish standing
depends considerably upon whether the plaintiff
is himself an object of the action (or forgone
action) at issue. If he is, there is ordinarily little
question that the action or inaction has caused
him injury, and that a judgment preventing or
requiring the action will redress it.
Lujan, 504 U.S. at 561–62, 112 S.Ct. 2130.
Other courts have applied this holding from
Lujan in finding standing for legislators or
legislative bodies. See Miller v. Moore, 169 F.3d
1119, 1122–23 (8th Cir.1999) (finding standing
where Nebraska voters passed ballot initiative
intended to punish legislators who did not
support and actively pursue the passage of
congressional term limits); U.S. House of
Representatives v. U.S. Dep't of Commerce, 11
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Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
F.Supp.2d 76, 89 (D.D.C.1998) (holding that
House of Representatives had standing to
challenge the Census Bureau's plan to use
statistical sampling in the Census “because the
House's composition will be affected by the
manner in which the Bureau conducts the
Census,” and citing this holding from Lujan ).
Here, the allegations of the Operative
Complaint indicate that TABOR was
specifically designed to take away from the
General Assembly “the power to tax and [to]
arrogat[e] that power to [the voters]
themselves.” (ECF No. 36, ¶ 1.) The Legislator–
Plaintiffs, along with other members of the
Colorado General Assembly, were the targeted
objects of TABOR's design. See Bickel v. City of
Boulder, 885 P.2d 215, 226 (Colo.1994)
(“[TABOR's] requirement of electoral approval
is not a grant of new powers or rights to the
people, but is more properly viewed as a
limitation on the power of the people's elected
representatives.”) (emphasis in original). That
makes this case different than Raines, where the
challenged action was the passage of a statute
where the plaintiffs, although on the losing side
of the vote, were not the targets of the action
being challenged.
Thus, the concreteness and nature of the
injury alleged here is distinguishable from the
abstract injury alleged in Raines. Moreover, the
Court finds that the injury alleged here is of
greater magnitude than the single instance of
vote nullification in Coleman. Both of these
considerations weigh in favor of finding that the
Legislator–Plaintiffs have standing in this
action.21
(2) Institutional Injury, Suing in an Official
Capacity, and Authorization to Represent the
Legislative Body
Raines
repeatedly
emphasized
the
importance of the fact that the plaintiffs there
alleged an institutional injury in their official
capacities, and not any personal injury
differentiable from the injury suffered by all
Members of Congress. See, e.g., 521 U.S. at
821, 117 S.Ct. 2312
[880 F.Supp.2d 1133]
(in distinguishing Powell, the Court stated,
“[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
institutional injury (the diminution of legislative
power), which necessarily damages all Members
of Congress and both Houses of Congress
equally.”). The Raines Court also attached
“some importance” to the fact that the plaintiffs
there had not been authorized to represent the
legislative bodies in which they served. Id. at
829, 117 S.Ct. 2312. These concepts are
obviously inter-related because an institutional
legislative injury might be more appropriately
raised by the legislative institution itself, or by
legislators authorized to represent the legislative
institution.
As in Raines, the Legislator–Plaintiffs here
clearly base their claim of standing on an
institutional injury: TABOR's removal of the
Colorado General Assembly's power to increase
tax rates or impose new taxes without voter
approval. The Legislator–Plaintiffs also clearly
bring their claims in their official capacities as
state legislators. (ECF No. 36, ¶¶ 9–10 (“The
offices held by [the Legislator–Plaintiffs] are
relevant to their standing in the case.... [They
bring this action] in [their] capacity as [ ] State
Representative[s].”) The Legislator–Plaintiffs
also concede that they have not been authorized
to bring this action on behalf of the General
Assembly. ( Id. ¶ 9 (“[Plaintiffs do] not imply
that the governmental bodies have themselves
taken any official position regarding this
litigation nor that these plaintiffs speak for those
governmental bodies regarding this litigation.”).
The law remains unclear regarding the
situations in which an institutional legislative
injury (where the plaintiffs legislators are not
authorized to represent the legislative body)
confers standing on legislators, and when it does
not. Notably, in Coleman, the plaintiffs alleged
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an injury suffered in their official capacities, of
an institutional nature, and they had not been
authorized to bring suit on behalf of the Kansas
Senate. The Supreme Court in Raines could
have overruled Coleman and laid down a per se
rule that legislators alleging an institutional
injury, where the legislators have not been
authorized to bring suit on behalf of the
legislative body, never have standing to pursue
such claims. Instead, Raines's treatment of
Coleman was significantly more limited. After
analyzing ways in which Coleman was
distinguishable (including the presence or lack
of an adequate internal legislative remedy), the
Court in Raines expressed concern about pulling
Coleman “too far from its moorings,” and
emphasized how significantly different the
concreteness and magnitude of the injuries were.
Raines, 521 U.S. at 825–26, 117 S.Ct. 2312
(“There is a vast difference between the level of
vote nullification at issue in Coleman and the
abstract dilution of institutional legislative
power that is alleged here.”). Also, although the
Raines Court held that Coleman stands “at most”
for the proposition that legislators have standing
where their votes have been completely nullified
(because their votes would have been successful
but for the challenged action), that does not
mean legislative standing can only be found to
exist if the circumstances in Coleman are
present. By analyzing Coleman in these ways,
the Court in Raines provided less guidance to
future lower courts, including this Court,
regarding when an institutional legislative injury
does or does not confer standing.
Given Raines's discussion of Powell,
however, and much of the case law interpreting
Raines,22 the institutional injury
[880 F.Supp.2d 1134]
alleged by the Legislator–Plaintiffs here, and the
fact that they have not been authorized to bring
suit on behalf of the Colorado General
Assembly, draws some skepticism from this
Court regarding whether the injury alleged can
provide a legitimate basis for standing. But
because Raines did not provide clearer guidance,
and because of the concreteness of the injury
alleged here, the Court finds it appropriate to
also evaluate the other factors identified in
Raines to determine whether they weigh in favor
or against finding legislative standing in the
circumstances presented here. See Raines, 521
U.S. at 829–30, 117 S.Ct. 2312 (“Whether the
case would be different if any of these
circumstances were different we need not now
decide.”).
(3) Separation–of–Powers and Federalism
Concerns
In Raines, the Court's emphasis on
separation-of-powers concerns was significant.
Overlaying the entirety of the decision was the
Court's initial statement that
our standing inquiry has been especially
rigorous when reaching the merits of the dispute
would force us to decide whether an action taken
by one of the other two branches of the Federal
Government was unconstitutional. The law of
Article III standing is built on a single basic
idea—the idea of separation of powers. In the
light of this overriding and time-honored
concern about keeping the Judiciary's power
within its proper constitutional sphere, we must
put aside the natural urge to proceed directly to
the merits of this important dispute and to
“settle” it for the sake of convenience and
efficiency.
Id. at 819–20, 117 S.Ct. 2312 (citations and
quotation marks omitted). Also, later in the
decision, the Court engaged in a detailed
analysis of different times in the nation's history
when Members of Congress or the Executive
declined to entangle the Judiciary in
confrontations between Congress and the
Executive Branch. Id. at 826–28, 117 S.Ct.
2312. This historical discussion underscores the
importance of separation of powers in the Raines
Court's analysis. Further, it is notable that the
Raines Court's initial statement regarding
Coleman emphasized that Coleman was brought
by state legislators, not federal legislators,
further reiterating the importance of federal
separation-of-powers concerns in the Court's
analysis. Id. at 821, 117 S.Ct. 2312 (“The one
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case in which we have upheld standing for
legislators (albeit state legislators) claiming an
institutional injury is Coleman ....) (emphasis in
original).
Indeed, the vast majority of case law
addressing legislative standing involve cases in
which the federal Judiciary is asked to resolve a
dispute between the federal Executive and
Legislative Branches.23 Here, however, this
Court is not being asked “to decide whether an
action taken by one of the other two branches of
the Federal Government was unconstitutional.”
Id. at 819–20, 117 S.Ct. 2312. Instead, like in
Coleman, this Court is being asked to resolve a
dispute involving a state legislature.24
[880 F.Supp.2d 1135]
It is significant, too, that this Court is also
not being asked to resolve a dispute between
separate branches of Colorado government.25
Articles IV, V, and VI of the Colorado
Constitution create three “distinct departments”
of the Colorado government, the Executive
Department, the Legislative Department, and the
Judicial Department, respectively. SeeColo.
Const. arts. III, IV, V, VI. This action involves a
solely intra-branch dispute involving only the
Colorado Legislative Department: Article V of
the Colorado Constitution—the Article creating
the Legislative Department—not only creates
the Colorado General Assembly, it also reserves
to the Colorado electorate the initiative and
referendum power as a legislative power.
SeeColo. Const. art. V, § 1, cls. (1)-(3). This
dispute, therefore, is between two components
of the same Legislative Department.
The fact that this action does not present
any separation-of-powers concerns, either
between separate branches of the federal
government or separate branches of the
Colorado government, does not end this Court's
inquiry into whether an equivalent concern
warrants declining to hear this case:
federalism.26See13B Wright & Miller, Federal
Practice & Procedure § 3531.11.3 (3d ed. 2012)
(“State legislator standing raises issues similar to
the issues of congressional plaintiff standing,
although the separation-of-powers concerns are
much diminished and largely replaced by
concerns of federalism.”).
[Federalism involves] the notion of
‘comity,’ that is, a proper respect for state
functions, a recognition of the fact that the entire
country is made up of a Union of separate state
governments, and a continuance of the belief
that the National Government will fare best if
the States and their institutions are left free to
perform their separate functions in their separate
ways.... The concept does not mean blind
deference to ‘States' Rights' any more than it
means centralization of control over every
important issue in our National Government and
its courts. The Framers rejected both these
courses. What the concept does represent is a
system in which there is sensitivity to the
legitimate interests of both State and National
Governments....
Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct.
746, 27 L.Ed.2d 669 (1971). Where, however, it
is state action which allegedly violates the U.S.
Constitution, federalism concerns are reduced.
See Valdivia v. Schwarzenegger, 599 F.3d 984,
991 n. 6 (9th Cir.2010) (“[P]rinciples of
federalism do not permit a state to violate what
this
[880 F.Supp.2d 1136]
court has already deemed to be a
constitutionally-protected right.”); Mackin v.
City of Boston, 969 F.2d 1273, 1275–76 (1st
Cir.1992) (“[F]ederal courts, in mulling whether
to relax or abandon their supervision over the
operation of local governmental units, should
take federalism concerns into account, ever
mindful that the legal justification for
displacement of local authority is a violation of
the Constitution by the local authorities.”)
(quotation marks and ellipses omitted).
In this regard, the Court finds it significant
that TABOR was passed nearly twenty years
ago.27 In Lucas v. Forty–Fourth General
Assembly of the State of Colorado, 377 U.S.
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713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964), the
Supreme Court emphasized that a federal court
might properly wait a short period to allow a
state's electorate to remedy an unconstitutional
measure passed by ballot initiative, but that
otherwise the federal court must act to remedy
the constitutional violation:
Courts sit to adjudicate controversies
involving alleged denials of constitutional rights.
While a court sitting as a court of equity might
be justified in temporarily refraining from the
issuance of injunctive relief in an apportionment
case in order to allow for resort to an available
political remedy, such as initiative and
referendum, individual constitutional rights
cannot be deprived, or denied judicial
effectuation, because of the existence of a
nonjudicial remedy.... [C]onstitutional rights can
hardly be infringed simply because a majority of
the people choose that it be.... [T]he fact that a
practicably available political remedy, such as
initiative and referendum, exists under state law
provides justification only for a court of equity
to stay its hand temporarily while recourse to
such a remedial device is attempted....
Id. at 736–37, 84 S.Ct. 1459 (1964).28
At this stage of the proceedings, this Court
must assume the validity of Plaintiffs'
allegations that TABOR is unconstitutional, and
their allegations regarding the importance of the
constitutional rights at issue. See Lujan, 504
U.S. at 561, 112 S.Ct. 2130. Given these
accepted allegations, the fact that TABOR has
been in effect for nearly twenty years counsels
against the Court “staying its hand,” and in favor
of allowing the case to proceed without further
delay.
With there being no separation-of-powers
concerns in this case (unlike in Raines ), and
with federalism concerns diminished by the
length of time TABOR has caused the alleged
harms at issue (with those allegations being
accepted as true at this stage of the proceedings),
the Court finds that these considerations weigh
in favor of finding legislative standing here.
(4) Whether Legislators Have an Adequate
Internal Remedy
TABOR was passed by the Colorado
electorate by ballot initiative, without any
involvement of the Colorado General Assembly.
(ECF No. 36, ¶ 1.) Also, significantly, TABOR
is an amendment to the
[880 F.Supp.2d 1137]
Colorado Constitution that can only be revoked
or amended by a majority of Colorado voters.
SeeColo. Const. art. XIX, §§ 1, 2. The only
power members of the Colorado General
Assembly have to undo TABOR is to propose to
Colorado voters that they pass a constitutional
amendment or authorize a constitutional
convention. See id. In order for the legislature to
submit a proposed constitutional amendment to
the Colorado electorate, an affirmative vote by
two-thirds of each House of the General
Assembly is required. See id. This leaves the
Legislator–Plaintiffs in this case with little
available remedy in the political process to undo
TABOR, and no means by which to effect any
change to the current TABOR regime by way of
any of the legislature's remaining powers or
prerogatives.
That distinction makes this case remarkably
different from Raines. Indeed, in Raines the
presence of an internal legislative remedy was
one of the primary bases upon which the Court
distinguished Coleman. See521 U.S. at 824, 117
S.Ct. 2312. The removal of the Colorado
General Assembly's power to independently
pass any tax legislation, without any recourse
available to that Assembly, places this case in
stark contradistinction to the facts in Raines, in
which various internal remedies were available
to the plaintiffs.
Courts since the Raines decision have
continued to emphasize the importance of the
existence of a legislative remedy in legislative
standing analysis. For example, in Kucinich v.
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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military action in Libya without congressional
approval. Analyzing Raines and Coleman, the
court concluded that for legislative standing to
exist,
plaintiff legislators must be without
legislative recourse before they may turn to the
courts to seek their desired remedy.... [The
plaintiffs] have not demonstrated that they are
without a legislative remedy.... By contending
that their votes were nullified, despite seemingly
acknowledging that they retain legislative
remedies, the plaintiffs' arguments overlook the
important role political remedies have in the
standing analysis. In the end, the availability of
effective political remedies goes to the very
heart of the standing analysis....
Kucinich, 821 F.Supp.2d at 119–20.29 Also, in
Russell v. DeJongh, 491 F.3d 130 (3d Cir.2007),
a Senator of the Virgin Islands challenged the
Governor's appointment of Supreme Court
justices on the ground that the Governor was
untimely in submitting the nominations to the
legislature for approval. The court distinguished
cases in which there were no internal legislative
remedies, stating, “the Legislature was free to
confirm, reject, or defer voting on the
Governor's nominees. The consequence of the
Governor's late submission of the nominations
was thus not to circumvent the Legislature, but
to place the decision whether to confirm the
nominees directly in their hands.” Id. at 136. The
Third Circuit in DeJongh also stated,
[880 F.Supp.2d 1138]
“[C]ourts have drawn a distinction ... between a
public official's mere disobedience of a law for
which a legislator voted—which is not an injury
in fact—and an official's distortion of the
process by which a bill becomes law by
nullifying a legislator's vote or depriving a
legislator of an opportunity to vote—which is an
injury in fact.” Id. at 135–36 (quotation marks
omitted).
The importance of the presence of a
potential internal legislative remedy makes
sense, because this consideration is directly tied
to federal separation-of-powers concerns. See,
e.g., Leach v. Resolution Trust Corp., 860
F.Supp. 868, 875 (D.D.C.1994) (stating that
courts should be “reluctant to meddle in the
internal affairs of the legislative branch” due to
separation-of-powers concerns). If a legislator
has an adequate internal remedy, he should not
be challenging a decision of the legislature in an
Article III court. Instead, he should work within
his own legislature to enact a remedy. Those
concepts are entirely inapplicable here. The fact
that Colorado voters enacted TABOR in 1992,
with members of the Colorado General
Assembly having no effective recourse to
legislatively prevent its passage or undo its
effects, weighs heavily in favor of finding
legislative standing in this case.
(5) Whether a Finding of No Standing Would
Foreclose TABOR from Constitutional
Challenge
Without discussing the issue during most
of the decision, the Supreme Court at the end of
the Raines decision also “note[d]” that its
decision to deny legislative standing would not
“foreclose[ ] the [Line Item Veto] Act from
constitutional challenge (by someone who
suffers judicially cognizable injury as a result of
the Act).” 521 U.S. at 829, 117 S.Ct. 2312. The
weight of Supreme Court jurisprudence on this
point, however, makes clear that this issue is
irrelevant: standing cannot be found merely
because there is no other plaintiff who would
have standing. See Valley Forge Christian Coll.
v. Ams. United for Separation of Church &
State, Inc., 454 U.S. 464, 489, 102 S.Ct. 752, 70
L.Ed.2d 700 (1982) (“ ‘[T]he assumption that if
respondents have no standing to sue, no one
would have standing, is not a reason to find
standing.’ This view would convert standing into
a requirement that must be observed only when
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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Kerr v. Hickenlooper, 880 F. Supp. 2d 1112 (D. Colo., 2012)
418 U.S. 166, 179, 94 S.Ct. 2940, 41 L.Ed.2d
678 (1974) (“It can be argued that if respondent
is not permitted to litigate this issue, no one can
do so. In a very real sense, the absence of any
particular individual or class to litigate these
claims gives support to the argument that the
subject matter is committed to the surveillance
of Congress, and ultimately to the political
process.”); see also State of Utah v. Babbitt, 137
F.3d 1193, 1202 (10th Cir.1998). Given this
precedent, the Court declines to place any
weight on the possibility that if the Legislator–
Plaintiffs were denied standing, there might be
no other plaintiff who would have standing to
bring an action in federal court challenging
TABOR.
c. Conclusion on Injury in Fact
This action involves an alleged institutional
legislative injury asserted by legislators suing in
their official capacities, but who have not been
authorized to bring this action on behalf of their
respective legislative bodies. These factors are
of considerable significance in determining
whether the Legislator–Plaintiffs have standing
to pursue this action.
[880 F.Supp.2d 1139]
It is there, however, that the similarity
between this case and Raines ends. Unlike in
Raines, this action involves a concrete, though
dispersed, injury. Also, unlike Raines, there are
no separation-of-powers concerns present in this
case, concerns that lie at the heart of standing
analysis. Moreover, given the circumstances of
this dispute, federalism concerns do not weigh
against hearing this case. And finally, unlike in
Raines, the Legislator–Plaintiffs here are
without meaningful legislative recourse. All of
these factors, especially when considered
together, weigh in favor of finding that the
Legislator–Plaintiffs have standing to pursue this
action.
The Court therefore concludes that the
Legislator–Plaintiffs have, at this early stage of
the proceedings, advanced sufficient allegations
of a cognizable injury in fact sufficient to confer
Article III standing.
5. Legislative
Redressability
Standing—Causation
and
Having determined that the Legislator–
Plaintiffs have sufficiently alleged injury in fact,
the Court has little trouble concluding that the
remaining causation and redressability elements
for legislative standing are also met at the
pleading stage. Lujan, 504 U.S. at 561, 112 S.Ct.
2130. Plaintiffs have sufficiently alleged that the
passage of TABOR and resulting amendment of
the Colorado Constitution directly and
proximately caused the harm of which Plaintiffs
complain: the removal of the Colorado General
Assembly's power to raise tax rates or impose
new taxes without separate voter approval. (ECF
No. 36, ¶¶ 1, 6–8.) See alsoColo. Const. art. X, §
20, cls. (2)(b), (4)(a). Thus, as Plaintiffs also
allege, it would appear to easily follow that the
invalidation of TABOR would remove the
requirement that a tax rate increase or new tax
passed by the General Assembly obtain separate
voter approval prior to becoming law. See Sierra
Club v. Young Life Campaign, Inc., 176
F.Supp.2d 1070, 1084–85 (D.Colo.2001)
(accepting general allegations of causation and
redressability at the pleading stage); Am.
Tradition Inst., 876 F.Supp.2d at 1234–35, 2012
WL 2899064, at *7 (same).
The Court therefore concludes that, at this
stage of the litigation, the Legislator–Plaintiffs
have constitutional standing.
6. Prudential
Plaintiffs
Standing
of
Legislator–
Neither in the Motion to Dismiss nor in the
Reply brief does Defendant specifically argue
that the Court should dismiss this action based
on prudential standing principles. Defendant's
Supplemental Brief, however, contains a brief
section arguing that dismissal is warranted based
on the prudential standing principle that federal
courts should refrain from resolving “abstract
questions of wide public significance.” (ECF
No. 73, at 23–24.)
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“Beyond the constitutional requirements
[for standing], the federal judiciary has also
adhered to a set of prudential principles that bear
on the question of standing.” Valley Forge
Christian Coll., 454 U.S. at 474, 102 S.Ct.
752;see also Allen, 468 U.S. at 751, 104 S.Ct.
3315 (describing prudential standing principles
as “judicially self-imposed limits on the exercise
of federal jurisdiction”). First, “when the
asserted harm is a ‘generalized grievance’
shared in substantially equal measure by all or a
large class of citizens, that harm alone normally
does not warrant exercise of jurisdiction.”
Warth, 422 U.S. at 499, 95 S.Ct. 2197. Second,
“even when the plaintiff has alleged injury
sufficient to meet the ‘case or controversy’
requirement, ... the plaintiff generally must
assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights
or interests of third parties.” Id.
[880 F.Supp.2d 1140]
And third, “the interest sought to be protected
[must be] arguably within the zone of interests
to be protected or regulated by the statute or
constitutional guarantee in question.” See Ass'n
of Data Processing Serv. Orgs., Inc. v. Camp,
397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184
(1970). See also Allen, 468 U.S. at 751, 104
S.Ct. 3315 (summarizing all three prudential
standing principles).
The prudential standing principle that
federal courts should refrain from resolving
“abstract
questions
of
wide
public
significance”—the basis on which Defendant
tardily seeks dismissal—might arguably be
applicable to Plaintiffs' claim that they have
standing as citizens of Colorado. However, the
Court declines to reach the issue of whether
Plaintiffs as citizens have standing in that
capacity. ( See infra.) In terms of the Legislator–
Plaintiffs (five of whom have brought this action
and where there are a total of 100 members of
the Colorado General Assembly), the Court
declines to dismiss this action based on the
prudential
standing
principle
barring
adjudication of “abstract questions of wide
public significance.” Accepting the Operative
Complaint's allegations as true, TABOR was an
action targeted at the 100–member General
Assembly. The injury alleged by the Legislator–
Plaintiffs is not a “generalized grievance shared
in substantially equal measure by all or a large
class of citizens.” Warth, 422 U.S. at 499, 95
S.Ct. 2197 (emphasis added); see also Akins,
524 U.S. at 23, 118 S.Ct. 1777 (“Whether styled
as a constitutional or prudential limit on
standing, the Court has sometimes determined
that where large numbers of Americans suffer
alike, the political process, rather than the
judicial process, may provide the more
appropriate remedy for a widely shared
grievance.”) (emphasis added). The prudential
standing principle barring adjudication of
“generalized grievances” or “abstract questions
of wide public significance” does not apply to
the Legislator–Plaintiffs' claims.
Likewise, no other prudential standing
principle bars this action, and Defendant has not
asserted as much. First, the principle prohibiting
a litigant from raising another person's legal
rights does not apply. The Operative
Complaint's allegations, accepted as true,
indicate that TABOR was directly targeted at
taking away the power of members of the
General Assembly to independently enact tax
legislation. See Lujan, 504 U.S. at 561–62, 112
S.Ct. 2130 (“[If] the plaintiff is himself an object
of the action (or forgone action) at issue ..., there
is ordinarily little question that the action or
inaction has caused him injury, and that a
judgment preventing or requiring the action will
redress it.”). And second, the zone of interests
test does not bar this action, at least at this early
stage of the proceedings. In terms of that test,
the Court has found little to no case law
authority indicating who falls within the zone of
interests intended to be protected by the
Guarantee Clause and Enabling Act. See Largess
v. Supreme Judicial Court for the State of Mass.,
373 F.3d 219, 228 n. 9 (1st Cir.2004) (citing
authorities discussing question of whether the
Guarantee Clause confers judicially cognizable
rights on individuals as well as states). As to the
Supremacy Clause, the Tenth Circuit recently
declined to decide who falls within the zone of
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interests test, but pointed to case law from other
Circuits in which courts held that consideration
of prudential standing is unnecessary in
Supremacy Clause challenges. See Wilderness
Soc'y v. Kane Cnty., Utah, 632 F.3d 1162, 1170
(10th Cir.2011) (citing cases). Given the lack of
precedent, the Court will err on the side of
finding that the zone-of-interests test is met here.
See Match–E–Be–Nash–She–Wish Band of
Pottawatomi Indians v. Patchak, –––U.S. ––––,
132 S.Ct. 2199, 2210, 183 L.Ed.2d 211 (2012)
(stating that
[880 F.Supp.2d 1141]
the zone of interests prudential standing test “is
not meant to be especially demanding” and that
“we have always conspicuously included the
word ‘arguably’ in the test to indicate that the
benefit of the doubt goes to the plaintiff”)
(quotation marks omitted).
On these grounds, the Court concludes that
prudential standing principles do not bar the
Legislator–Plaintiffs at this stage of the
proceedings.
7. Standing of Other Plaintiffs
Because the Court holds that the
Legislator–Plaintiffs have standing to pursue this
action, the Court need not, and declines to,
address whether any other Plaintiffs have
standing. See Village of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 264 &
n. 9, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (
“[Because] we have at least one individual
plaintiff who has demonstrated standing ..., we
need not consider whether the other individual
and corporate plaintiffs have standing to
maintain the suit.”); Sec'y of the Interior v.
California, 464 U.S. 312, 319 n. 3, 104 S.Ct.
656, 78 L.Ed.2d 496 (1984) ( “Since the State of
California clearly does have standing, we need
not address the standing of the other
respondents, whose position here is identical to
the State's.”); cf. Horne v. Flores, 557 U.S. 433,
129 S.Ct. 2579, 2592, 174 L.Ed.2d 406 (2009)
(“Because the superintendent clearly has
standing to challenge the lower courts' decisions,
we need not consider whether the Legislators
also have standing to do so.”).30
B. The Political Question Doctrine
Defendants also argue that the political
question doctrine bars all of Plaintiffs' claims
brought in the Operative Complaint.
1. General Rules Regarding the Political
Question Doctrine
“The political question doctrine excludes
from judicial review those controversies which
revolve around policy choices and value
determinations constitutionally committed for
resolution to the halls of Congress or the
confines of the Executive Branch.” Japan
Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S.
221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166
(1986); see also United States v. Munoz–Flores,
495 U.S. 385, 394, 110 S.Ct. 1964, 109 L.Ed.2d
384 (1990) (stating that the political question
doctrine “is designed to restrain the Judiciary
from inappropriate interference in the business
of the other branches of Government”); Baker v.
Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7
L.Ed.2d 663 (1962) (“The nonjusticiability of a
political question is primarily a function of the
separation of powers.”). The basis for the
doctrine is that “courts are fundamentally
underequipped to formulate national policies or
develop standards for matters not legal in
nature.” Japan Whaling, 478 U.S. at 230, 106
S.Ct. 2860 (quotation marks omitted). It is a
“judicially created” doctrine (not an express
constitutional or statutory provision), In re Nazi
Era Cases Against German Defendants Litig.,
196 Fed.Appx. 93, 97 (3d Cir.2006), having its
roots in case law dating back to Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60
(1803).
The six widely recognized tests for
determining whether a particular case presents a
non-justiciable political question come from
Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7
L.Ed.2d 663 (1962). There, the Court stated,
[880 F.Supp.2d 1142]
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It is apparent that several formulations
which vary slightly according to the settings in
which the questions arise may describe a
political question, although each has one or
more elements which identify it as essentially a
function of the separation of powers. Prominent
on the surface of any case held to involve a
political question is found [1] a textually
demonstrable constitutional commitment of the
issue to a coordinate political department; or [2]
a lack of judicially discoverable and manageable
standards for resolving it; or [3] the
impossibility of deciding without an initial
policy determination of a kind clearly for
nonjudicial discretion; or [4] the impossibility of
a court's undertaking independent resolution
without expressing lack of the respect due
coordinate branches of government; or [5] an
unusual need for unquestioning adherence to a
political decision already made; or [6] the
potentiality of embarrassment from multifarious
pronouncements by various departments on one
question.
Id. at 217, 82 S.Ct. 691 (bolded numbering
added by this Court). The Baker Court
continued,
Unless one of these formulations is
inextricable from the case at bar, there should be
no dismissal for non-justiciability on the ground
of a political question's presence. The doctrine
of which we treat is one of ‘political questions,’
not one of ‘political cases.’ The courts cannot
reject as ‘no law suit’ a bona fide controversy as
to whether some action denominated ‘political’
exceeds constitutional authority.
Id.Baker further emphasized, “The cases we
have reviewed show the necessity for
discriminating inquiry into the precise facts and
posture of the particular case, and the
impossibility of resolution by any semantic
cataloguing.” Id.; see also id. at 210–11, 82
S.Ct. 691 (“Much confusion results from the
capacity of the ‘political question’ label to
obscure the need for case-by-case inquiry.
Deciding whether [the political question doctrine
applies] is itself a delicate exercise in
constitutional interpretation ....”); id. at 210, 82
S.Ct. 691 (“the attributes of the [political
question] doctrine ... in various settings, diverge,
combine, appear, and disappear in seeming
disorderliness”).
2. The Guarantee Clause Claim and the
Political Question Doctrinea. Summary of
Parties' Arguments Regarding the Political
Question
Doctrine's
Applicability
to
Plaintiffs' Guarantee Clause Claim
The parties' arguments, particularly those of
Defendant, regarding the applicability vel non of
the political question doctrine to this action
focus on Plaintiffs' First Claim for Relief in the
Operative Complaint, the Guarantee Clause
Claim. Plaintiffs' Guarantee Clause claim alleges
that, “[b]y removing the taxing power of the
General Assembly, the TABOR amendment
renders the Colorado General Assembly unable
to fulfill its legislative obligations under a
Republican Form of Government and violates
the guarantee of Article IV, Section 4....” (ECF
No. 36, ¶ 82.)
In moving to dismiss Plaintiffs' Guarantee
Clause claim, Defendant argues that this case is
directly on point with Pacific States Telephone
& Telegraph Co. v. State of Oregon, 223 U.S.
118, 32 S.Ct. 224, 56 L.Ed. 377 (1912), a U.S.
Supreme Court case holding that a Guarantee
Clause challenge to Oregon's ballot initiative
system was barred by the political question
doctrine. Defendant also argues that all of the six
tests identified in Baker v. Carr for whether a
case presents a non-justiciable political question
are met here.
In response, Plaintiffs (and the amici
Professors) argue that Pacific States is
distinguishable, because that case involved
[880 F.Supp.2d 1143]
a challenge to Oregon's entire ballot initiative
process, while this case presents a far narrower
challenge to only one particular measure passed
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by Colorado voters pursuant to their power of
initiative. Plaintiffs (and amici Professors) also
argue that none of the six Baker tests are met
here.
b. The History of the Application of the
Political Question Doctrine to Guarantee
Clause Claims, and Whether Such Claims
Are Per Se Non–Justiciable
The United States Supreme Court's most
recent
pronouncement
regarding
the
applicability of the political question doctrine to
Guarantee Clause claims came in 1992 in New
York v. United States, 505 U.S. 144, 112 S.Ct.
2408, 120 L.Ed.2d 120 (1992). There, the Court
reviewed the history of court decisions and other
sources addressing the issue of whether
Guarantee Clause claims are barred by the
political question doctrine. Id. at 184–85, 112
S.Ct. 2408. The Court first pointed out a
substantial line of cases, beginning with Luther
v. Borden, 48 U.S. 1, 7 How. 1, 12 L.Ed. 581
(1849), that “metamorphosed into the sweeping
assertion” that Guarantee Clause claims are per
se non-justiciable. New York, 505 U.S. at 184,
112 S.Ct. 2408.31 The Court then pointed out
other cases (decided between 1875 and 1905) in
which courts “addressed the merits of claims
founded on the Guarantee Clause without any
suggestion that the claims were not justiciable.”
Id. at 184–85, 112 S.Ct. 2408. Further, the Court
indicated that more recent authority “suggest[s]
that perhaps not all claims under the Guarantee
Clause
present
nonjusticiable
political
questions.” Id. at 185, 112 S.Ct. 2408 (citing,
inter alia, Reynolds v. Sims, 377 U.S. 533, 84
S.Ct. 1362, 12 L.Ed.2d 506 (1964)). Ultimately,
the Court did not resolve the question, stating,
“We need not resolve this difficult question
today. Even if we assume that petitioners' claim
is justiciable, [it ultimately lacks merit].” Id.
This Court proceeds to conduct its own,
albeit non-exhaustive, historical analysis of the
case law on the topic. In Luther v. Borden, 48
U.S. 1, 7 How. 1, 12 L.Ed. 581 (1849) (“Luther
”), the Supreme Court was asked to decide
whether the charter government of Rhode Island,
or a competing faction, was the legitimate
government of Rhode Island. The Court
ultimately held that the case could not be heard
in the courts because “it rests with Congress to
decide what government is the established one in
a State. For as the United States guarantee to
each State a republican government, Congress
must necessarily decide what government is
established in the State before it can determine
whether it is republican or not.” Id. at 42. The
Luther Court also pointed out that the President
had already recognized the charter government
by agreeing to assist it with military force if the
need should arise, and that courts in Rhode
Island had also recognized the charter
government's authority. Id. at 40, 43–44. The
Luther Court further emphasized, among other
things, that there were no judicially manageable
standards to resolve the dispute, and that the
Court was being asked to make a political
decision. Id. at 41.
New York emphasized that the “limited”
holding in Luther—that it rests with Congress to
decide what government is the established one in
a
state—subsequently
began
“metamorphos[izing]
into
the
sweeping
assertion” that Guarantee Clause claims are per
se non-justiciable. New York, 505 U.S. at 184,
112 S.Ct. 2408; see also Akhil Reed Amar, The
[880 F.Supp.2d 1144]
Central Meaning of Republican Government:
Popular Sovereignty, Majority Rule, and the
Denominator Problem, 65 U. Colo. L. Rev. 749,
753 (1994) (“[T]he hoary case said to establish
the general nonjusticiability of the [Guarantee]
Clause, Luther v. Borden, in fact establishes no
such thing....”).
The next significant U.S. Supreme Court
decision in this area is Pacific States Telephone
& Telegraph Co. v. State of Oregon, 223 U.S.
118, 32 S.Ct. 224, 56 L.Ed. 377 (1912) (“Pacific
States ”). This is the case focused on most
heavily by the parties, with Defendant arguing
that the case is on point, and Plaintiffs arguing
that it is distinguishable. In that case, Pacific
States Telephone & Telegraph Co. challenged a
corporate tax passed by voter initiative. Through
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the framing of the issues, the U.S. Supreme
Court was asked to decide whether Oregon's
entire voter initiative system violated the
Guarantee Clause. The Court in Pacific States
analyzed the Luther opinion and concluded that
“[i]t was long ago settled that the enforcement of
th[e] guaranty [of a republican form of
government] belonged to the political
department.” Id. at 149, 32 S.Ct. 224. Applying
Luther, the Court continued,
[The] essentially political nature [of the
attack on the statute here] is at once made
manifest by understanding that the assault which
the contention here advanced makes is not on
the tax as a tax, but on the state as a state. It is
addressed to the framework and political
character of the government by which the statute
levying the tax was passed. It is the government,
the political entity, which (reducing the case to
its essence) is called to the bar of this court, not
for the purpose of testing judicially some
exercise of power ... but to demand of the state
that it establish its right to exist as a state,
republican in form.
Id. at 150–51, 32 S.Ct. 224. Based on this
rationale, the Court held that the challenge to
Oregon's ballot initiative system presented a
non-justiciable political question. Id. at 151, 32
S.Ct. 224.
In Colegrove v. Green, 328 U.S. 549, 66
S.Ct. 1198, 90 L.Ed. 1432 (1946) ( “Colegrove
”), the Supreme Court was asked to intervene in
a dispute regarding the apportionment of
legislative districts within Illinois. The Court
held that the issue was political and nonjusticiable. “To sustain this action would cut
very deep into the very being of Congress.
Courts ought not to enter this political thicket.
The remedy for unfairness in districting is to
secure State legislatures that will apportion
properly, or to invoke the ample powers of
Congress.” Id. at 556, 66 S.Ct. 1198. Citing to
Pacific States, the Court in Colegrove again
enunciated the broad rule called into question in
New York: “Violation of the great guaranty of a
republican form of government in States cannot
be challenged in the courts.” Id.
The next case discussing the justiciability
of Guarantee Clause claims is the foundational
case for the political question doctrine, Baker v.
Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663
(1962) (“Baker ”).32 There, the Court laid out the
six (now widely recognized) tests for whether a
case presents a non-justiciable political question.
Id. at 217, 82 S.Ct. 691. The Court also
repeatedly emphasized that the facts of each case
must be scrutinized in determining justiciability.
See id. (“The cases we have reviewed show the
necessity for discriminating inquiry into the
precise facts and posture of the particular case,
and the impossibility of resolution by any
semantic cataloguing.”). After reviewing other
subject areas, the Court addressed
[880 F.Supp.2d 1145]
Guarantee Clause cases, discussing Luther and
its progeny, and stating that “the Court has
consistently held that a challenge to state action
based on the Guaranty Clause presents no
justiciable question....” Id. at 224, 82 S.Ct.
691;see generally id. at 218–26, 82 S.Ct. 691.
There is language in Baker indicating the Court's
belief, based on precedent, that Guarantee
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,
any reliance on that clause would be futile.”).
However, there is other language to the contrary.
See id. at 222 n. 48, 82 S.Ct. 691 (“Even though
the [ Luther ] Court wrote of unrestrained
legislative and executive authority under this
Guaranty, thus making its enforcement a
political question, the Court plainly implied that
the political question barrier was no[t]
absolute....”). Further, it is important to note that
Baker involved an equal protection claim, not a
Guarantee Clause claim, so the Court's
discussion of Guarantee Clause cases, albeit
detailed, is clearly dicta. Nevertheless, Baker is
much more widely recognized for setting forth
the six governing tests for determining whether a
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particular claim presents a non-justiciable
political question.
Between the Baker decision in 1962 and the
1992 New York decision, the Supreme Court did
not address in detail the justiciability of
Guarantee Clause cases. Two years after the
Baker decision, the Court in Reynolds v. Sims,
377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506
(1964), cited Baker and stated, “ some questions
raised under the Guaranty Clause are
nonjusticiable, where [they are] ‘political’ in
nature and where there is a clear absence of
judicially manageable standards.” Id. at 582, 84
S.Ct. 1362 (emphasis added). This is the case
cited by the New York Court for the proposition
that “[m]ore recently, the Court has suggested
that perhaps not all claims under the Guarantee
Clause
present
nonjusticiable
political
questions.” 505 U.S. at 185, 112 S.Ct. 2408.
That brings this Court back to the Supreme
Court's most recent pronouncement of the issue
in New York, in which the Supreme Court called
into question the cases adopting a per se rule
that Guarantee Clause claims are not justiciable.
In addition to looking at controlling precedent
from the U.S. Supreme Court, this Court also
looks for binding precedent from the Tenth
Circuit. Significantly, two recent Tenth Circuit
decisions have discussed the fact that New York
called into question the idea that Guarantee
Clause claims are per se non-justiciable. In
Kelley v. United States, 69 F.3d 1503 (10th
Cir.1995), the Tenth Circuit described the New
York decision, pointing out that “there has been
some belief that violations of the Guarantee
Clause cannot be challenged in the courts,” but
also pointing out that “it has [been] suggested, in
more recent opinions, that this belief may be
incorrect.” Id. at 1510. Like New York, the Court
in Kelley did not resolve the issue: “Assuming,
without deciding, that plaintiffs' claim is
justiciable, there appears to be no merit to it.” Id.
at 1511. Then, in Hanson v. Wyatt, 552 F.3d
1148 (10th Cir.2008), the Tenth Circuit briefly
identified Colegrove's holding that Guarantee
Clause claims cannot be raised in court, and then
stated, “[t]he New York court, however, was not
so sure about that. It decided not to resolve the
matter on justiciability grounds. Rather, it
assumed justiciability and rejected the claim on
the merits.” Id. at 1163 (emphasis in original).33
[880 F.Supp.2d 1146]
c. Discussion of Whether a Per Se Rule
Would Be Properly Applied, and Whether
Pacific States Controls, in this Action
New York, Kelley, and Hanson provide
little to no guidance to this Court regarding
whether the political question doctrine bars the
particular Guarantee Clause claim being raised
in this action, a claim based on unique
allegations involving TABOR and its effects.
However, given this recent U.S. Supreme Court
and Tenth Circuit case law seriously calling into
question the propriety of applying a per se rule
of non-justiciability in Guarantee Clause cases,
the Court determines that it cannot summarily
conclude that Plaintiffs' Guarantee Clause claim
is per se non-justiciable. See Trimble v. Gordon,
430 U.S. 762, 776 n. 17, 97 S.Ct. 1459, 52
L.Ed.2d 31 (1977) (“To the extent that our
analysis in this case differs from [a previous
case] the more recent analysis controls.”);
Peoples v. CCA Detention Ctrs., 422 F.3d 1090,
1102 (10th Cir.2005) (“We ... think it prudent to
follow the Court's most recent pronouncement
on the issue.”).
The Court concludes that Pacific States is
not controlling here. The way the issues were
framed in Pacific States led the Court there to
consider whether the entire voter initiative
system in Oregon violated the Guarantee Clause.
Similarly, Defendant in this case tries to
characterize Plaintiffs' Guarantee Clause claim
as challenging the entire initiative process in
Colorado. ( See, e.g., ECF No. 18, at 2 (“[W]hile
[Plaintiffs'] policy preferences lead them to
focus their ire on one particular instance of
direct democratic participation in Colorado, the
Taxpayers' Bill of Rights, their arguments
ultimately would require the Court to hold
unconstitutional all forms of direct citizen
lawmaking.”). So framed, Defendant has little
trouble arguing that Pacific States controls.
Indeed, the Court would agree that it would be
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appropriate to apply Pacific States in an action
brought under the Guarantee Clause challenging
Article V, Section 1, Clause 2 of the Colorado
Constitution, the clause reserving in Colorado
voters the power of the initiative process.
This action, however, seeks not the
invalidation of Colorado's ballot initiative
system. Plaintiffs, in fact, seek only to invalidate
one particular measure passed via the Colorado
voter initiative process: TABOR. ( See ECF No.
36, at 20–21 (prayer for relief seeking
invalidation of
[880 F.Supp.2d 1147]
the “TABOR AMENDMENT”).) Invalidating
Article X, Section 20 of the Colorado
Constitution will in no way affect Colorado
voters' power of initiative codified in Article V,
Section 1 of that Constitution. The Court cannot
conclude that a challenge to the effects of
TABOR itself should be equated with a
challenge to the entire voter initiative process, at
least at this stage of the proceedings, merely
because both involve questions regarding how
power is to be divided between the General
Assembly and the Colorado electorate. While
Pacific States has language that one can argue
should be similarly applied to the power struggle
involved here, the Court declines to read Pacific
States that broadly.
Given that the Court declines to adopt a per
se rule of non-justiciability in Guarantee Clause
cases, and given that Pacific States is not
controlling, the Court finds it appropriate to
apply the widely-recognized Baker tests to
determine whether Plaintiffs' Guarantee Clause
claim is barred by the political question doctrine.
See Baker, 369 U.S. at 217, 82 S.Ct. 691 (“The
cases we have reviewed show the necessity for
discriminating inquiry into the precise facts and
posture of the particular case, and the
impossibility of resolution by any semantic
cataloguing.”).34
d. The Baker Tests(1) “A textually
demonstrable constitutional commitment of
the issue to
department”35
a
coordinate
political
Addressing the first Baker test of whether
there is “a textually demonstrable constitutional
commitment of the issue to a coordinate political
department,” Defendant argues that there is a
textually
demonstrable
commitment
of
Guarantee Clause disputes to a coordinate
political department, namely, Congress. (ECF
No. 51, at 18–19.) Defendant purports to support
that argument by citing to Luther and Pacific
States, arguing that “[t]he Supreme Court has
long been clear that the question of what
constitutes a republican form of government is
committed to Congress.” ( Id. at 19.) But
“textually demonstrable” means demonstrable
from the text of the constitution itself, not from
case law interpreting the constitutional text. See
Nixon v. United States, 506 U.S. 224, 228, 113
S.Ct. 732, 122 L.Ed.2d 1 (1993) ( “[C]ourts
must, in the first instance, interpret the text in
question and determine whether and to what
extent the issue is textually committed [to a
coordinate branch of government].”) (emphasis
added); Powell, 395 U.S. at 519–20, 89 S.Ct.
1944 (“In order to determine whether there has
been a textual commitment to a coordinate
department of the Government,
[880 F.Supp.2d 1148]
we must interpret the Constitution.”). The
language in case law precedent, even from the
U.S. Supreme Court, does not make the
commitment of an issue to a coordinate branch
of government “textually demonstrable.”
Although Defendant also baldly argues that
“[t]he text of the Guarantee Clause ...
definitively commit[s] this question to
Congress,” that assertion is not correct. Again,
the Guarantee Clause provides, “The United
States shall guarantee to every State in this
Union a Republican Form of Government....”
The implication in the Guarantee Clause that the
“United States” will enforce this guarantee of a
republican form of government in no way
specifies whether enforcement will lie in the
Legislative, Executive, or Judicial Department
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of the U.S. government. See Wang v. Masaitis,
416 F.3d 992, 996 (9th Cir.2005) (stating that
there
was
no
textually
demonstrable
commitment to a coordinate political branch
because “the text [in question] is silent”
regarding any such commitment); cf. Nixon, 506
U.S. at 229–36, 113 S.Ct. 732 (holding that
constitutional clause providing that “[t]he Senate
shall have the sole Power to try all
Impeachments”
constituted
a
textually
demonstrable commitment of that issue to the
Senate). Also, importantly, the Guarantee Clause
is included within Article IV of the Constitution,
the Article entitled “The States.” Thus, it does
not fall under Article I (specifying Congress's
powers), Article II (specifying the Executive's
powers), or Article III (specifying the Judiciary's
powers).
Plainly, there is no textually demonstrable
commitment of this issue to Congress or to the
Executive Department. Thus, this Baker test is
not met and does not indicate the political
question doctrine's applicability to this case.
(2) “A lack of judicially discoverable and
manageable standards for resolving [the
issue]”
The second Baker test, asking whether
there are judicially discoverable and manageable
standards for resolving a plaintiff's claim, gives
this Court some pause.
As previously discussed, the U.S. Supreme
Court has focused on the justiciability of
Guarantee Clause challenges, providing little
guidance to lower courts regarding actual
standards for resolving Guarantee Clause claims
on the merits. Also, in Largess v. Supreme
Judicial Court for the State of Mass., 373 F.3d
219 (1st Cir.2004), the First Circuit pointed out
that “scholars have interpreted ... the Guarantee
Clause in numerous, often conflicting, ways.”
Id. at 226 (citing various law review articles).
The Largess Court also noted that “John Adams
himself, twenty years after ratification of the
Constitution, confessed that he ‘never
understood’ what the Guarantee Clause meant
and that he ‘believ[ed] no man ever did or ever
will.’ ” Id. at 226–27 (citing letter written by
Adams in 1807). However, the Largess Court
ultimately found sufficient standards for
interpreting the Guarantee Clause, concluding
that the plaintiffs' Guarantee Clause challenge in
that case lacked merit. See id. at 227–29.
Notably, the Independence Institute's amicus
brief argues the merits of Plaintiffs' Guarantee
Clause claim, indicating its belief that there are
sufficiently clear standards for dismissing
Plaintiffs' Guarantee Clause claim on the merits.
(ECF No. 21–1.) See also Zivotofsky ex rel.
Zivotofsky v. Clinton, ––– U.S. ––––, 132 S.Ct.
1421, 1428, 182 L.Ed.2d 423 (2012) (stating
that the judicially manageable standards for
determining the constitutionality of the statute in
question were evidenced by the detailed legal
arguments made by both sides on the issue).
[880 F.Supp.2d 1149]
However, the foregoing discussion of this
Baker test reflects the fact that the discussion is
premature at this stage of the litigation.
Resolving the issue of whether there are
judicially
discoverable
and
manageable
standards for determining the merits of
Plaintiffs' Guarantee Clause claim would
necessarily require this Court to begin to wade
into the merits of this dispute. Indeed, in
Largess, the court stated, “[R]esolving the issue
of justiciability in the Guarantee Clause context
may also turn on the resolution of the merits of
the underlying claim.” 373 F.3d at 225. For
obvious reasons, the Court declines to address
the merits of Plaintiffs' Guarantee Clause claim
based merely on the pleadings filed in this
action. See Shakman v. Democratic Org. of
Cook Cnty., 435 F.2d 267, 271 (7th Cir.1970)
(“We do not view [the aforementioned]
difficulties ... as demonstrating ‘a lack of
judicially
discoverable
and
manageable
standards for resolving’ the case or as requiring,
at the pleading stage, a decision that plaintiffs'
claim is not justiciable.”); Holtzman v.
Richardson,
361
F.Supp.
544,
551
(E.D.N.Y.1973) (declining to evaluate whether
there were judicially discoverable and
manageable standards for resolving a dispute
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because “the issue arises on a motion to dismiss
the complaint on its face”). 36
At this early stage of the proceedings, the
Court cannot resolve the issue of whether there
will be judicially discoverable and manageable
standards for evaluating Plaintiffs' Guarantee
Clause claim. At the very least, the Court is
comfortable at this early stage in concluding that
this Baker test is not “inextricable from” this
case. See Baker, 369 U.S. at 217, 82 S.Ct. 691
(“Unless one of these formulations is
inextricable from the case at bar, there should be
no dismissal for non-justiciability on the ground
of a political question's presence.”).
(3) “The impossibility of deciding without an
initial policy determination of a kind clearly
for nonjudicial discretion”
The third Baker test asks whether it is
possible for a court to resolve a plaintiff's claim
“without
[making]
an
initial
policy
determination of a kind clearly for nonjudicial
discretion.”
As to this test, Defendant's argument
focuses entirely on Plaintiffs' motives in
bringing this action—that Plaintiffs only brought
this particular action because of their own values
and judgments that TABOR is bad public policy.
(ECF No. 18, at 8–9; ECF No. 51, at 20–21.)
However, notwithstanding Plaintiffs' personal
motivations for bringing this particular action,
this Baker test concerns whether the Court itself
will be required to make a policy determination
in resolving the claims. The question of whether
TABOR violates Colorado's obligation to
maintain a republican form of government is a
question requiring interpretation of the
Guarantee Clause. A court's interpretation of the
Constitution does not constitute a policy
determination, but instead a legal determination
that courts are well-positioned to resolve. See
Marbury, 5 U.S. (1 Cranch) at 177 (“It is
emphatically the province and duty of the
judicial department to say what the law is.”);
Powell, 395 U.S. at 548, 89 S.Ct. 1944 (in
finding the political question
[880 F.Supp.2d 1150]
doctrine inapplicable, the Court stated that
resolving the claim at issue “would require no
more than an interpretation of the Constitution.
Such a determination falls within the traditional
role accorded courts to interpret the law....”).
That
makes
this
case
entirely
distinguishable from the types of cases involving
non-justiciable policy determinations soundly
committed to the political branches of
government. See, e.g., Schroder v. Bush, 263
F.3d 1169, 1174 (10th Cir.2001) (“Appellants'
request that courts maintain market conditions,
oversee trade agreements, and control currency
... would require courts to make [non-justiciable]
policy determinations....”); Ad Hoc Comm. on
Judicial Admin. v. Commonwealth of
Massachusetts, 488 F.2d 1241, 1245 (1st
Cir.1973) (finding non-justiciable a policy
determination regarding the financing of the
judicial branches, an issue that has “been left to
the people, through their legislature”); Orlando
v. Laird, 443 F.2d 1039, 1044 (2d Cir.1971) (in
action challenging war in Vietnam, court stated,
“[D]ecisions regarding the form and substance
of congressional enactments authorizing
hostilities are determined by highly complex
considerations of diplomacy, foreign policy and
military strategy inappropriate to judicial
inquiry.”).
The Court thus finds that the third Baker
test does not apply to the case at bar.
(4) “The impossibility of a court's
undertaking independent resolution without
expressing lack of the respect due coordinate
branches of government”
The fourth Baker test requires the Court to
consider whether it is possible to undertake
resolution of this action “without expressing
lack of the respect due coordinate branches of
government.”
As to this test, Defendant first argues that
the Court's consideration of Plaintiffs' Guarantee
Clause claim would express a lack of respect
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due to the U.S. Congress. (ECF No. 18, at 9;
ECF No. 51, at 22–23.) In support of that
argument, Defendant cites cases in which courts
have held that questions arising under the
Guarantee Clause are to be decided by Congress,
not the federal Judiciary. ( Id.) However, the
Court has already determined that, at this early
stage of the proceedings, it is not appropriate to
apply those cases' per se rules of nonjusticiability. Thus, there is still a question
whether Plaintiffs' Guarantee Clause claim can
be decided by the Court, or whether the decision
should be deferred to Congress. Further, the
Court again finds it of some import that TABOR
has been in effect for nearly twenty years, and
the Court is not aware of Congress ever having
taken a position on TABOR's constitutionality.
While silence could indicate approval, the Court
cannot so presume. See Hanson v. Wyatt, 552
F.3d 1148, 1164 (10th Cir.2008) (“It may be
worth noting that neither New York's treatment
of the Guarantee Clause issue in that case nor
our resolution of [this case] is likely to raise any
concern in the political branches about the
courts' violating their turf.”).
Defendant also argues that this Court
should defer to decisions of the Colorado
Supreme Court which have addressed TABOR:
Zaner v. City of Brighton, 917 P.2d 280
(Colo.1996) (“Zaner ”), and Bickel v. City of
Boulder, 885 P.2d 215 (Colo.1994) (“Bickel ”).
(ECF No. 51, at 22; see also ECF No. 18, at 11.)
If the Colorado Supreme Court had addressed a
Guarantee Clause challenge to TABOR, this
Court would now likely defer to that Court's
interpretation of the U.S. Constitution. See
Trans Shuttle, Inc. v. Pub. Utils. Comm'n, 24
Fed.Appx. 856, 859 (10th Cir.2001) (“One of
the fundamental policies underlying the Younger
doctrine is the recognition that state courts are
fully competent to decide federal constitutional
[880 F.Supp.2d 1151]
questions.”). However, in neither Zaner nor
Bickel did the Colorado Supreme Court consider
whether TABOR violated the U.S. Constitution's
Guarantee Clause, whether TABOR violated the
requirement that Colorado maintain a republican
form of government, or even more generally
whether TABOR is constitutional under either
the U.S. Constitution or Colorado Constitution.
Instead, Bickel merely stated (a passage repeated
by Zaner ) that TABOR “is a perfect example of
the people exercising their initiative power to
enact laws in the specific context of state and
local government finance, spending and
taxation.” Bickel, 885 P.2d at 226;Zaner, 917
P.2d at 284. These cases' statements that
TABOR is a “perfect example” of the Colorado
electorate's exercise of its initiative power does
not speak to the issue of whether that particular
exercise of the initiative power in 1992 resulted
in a violation of the Guarantee Clause, the issue
presented in this case.
And finally, Defendant suggests that this
Court must defer to the will of the Colorado
electorate itself in enacting TABOR. As a
foundational matter, the political question
doctrine's applicability in a particular case is
lessened or eradicated when the action
challenges an act of a state. See Baker, 369 U.S.
at 210, 82 S.Ct. 691 (“[I]n the Guaranty Clause
cases and in the other ‘political question’ cases,
it is the relationship between the judiciary and
the coordinate branches of the Federal
Government, and not the federal judiciary's
relationship to the States, which gives rise to the
‘political question.’ ”); L.A. Cnty. Bar Ass'n v.
Eu, 979 F.2d 697, 701–02 (9th Cir.1992) (“[T]he
political question doctrine arises primarily from
concerns about the separation of powers within
the federal government.... Accordingly, the
doctrine has at best limited applicability to
actions challenging state statutes as violative of
the federal Constitution.”). Also, as the Court's
previous discussion of Lucas indicates, the
Court cannot defer to the will of a state's
electorate when it passes an allegedly
unconstitutional ballot initiative, particularly
when that law has been in effect for nearly
twenty years. See also Romer v. Evans, 517 U.S.
620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996)
(invalidating
amendment
to
Colorado
Constitution passed by ballot initiative
prohibiting all legislative, executive, or judicial
action designed to protect homosexuals).
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Although the fourth Baker test presents
more difficult and sensitive issues, the Court
finds that the test is not met here.
(5) “An unusual need for unquestioning
adherence to a political decision already
made”
Regarding the issue of whether this case
presents “an unusual need for unquestioning
adherence to a political decision already made,”
Defendant argues that “[t]wenty-six states now
use some form of direct democracy, and
countless laws and constitutional provisions
have
been
instituted
through
these
mechanisms.... Plaintiffs' argument, if accepted,
would call into question all of these provisions,
and all of the countless laws enacted under
them.” (ECF No. 18, at 10; see also ECF No. 51,
at 23–24.)
The Court has already addressed and
rejected Defendant's argument that this action is
properly interpreted as a frontal attack on
Colorado's entire ballot initiative process. Thus,
Defendant's more incredible argument that this
action should be construed as an attack on the
ballot initiative systems in place in twenty-six
states in this country is similarly and even more
appropriately rejected. Thus, Defendant's
concern regarding the continuing validity of
laws enacted via ballot initiative (other than
TABOR, of course) is also unfounded. And
significantly, in terms of Plaintiffs' actual
challenge to TABOR itself, it warrants
mentioning that laws are not enacted pursuant to
TABOR. Instead, TABOR
[880 F.Supp.2d 1152]
merely acts to limit the power of the General
Assembly to legislate in certain areas (“core”
areas according to Plaintiffs). See Bickel, 885
P.2d at 226 (“[TABOR's] requirement of
electoral approval is not a grant of new powers
or rights to the people, but is more properly
viewed as a limitation on the power of the
people's elected representatives.”). Thus, the
invalidation of TABOR would not undo any
other enacted law. Further, as already explained,
the Colorado Supreme Court's decisions in
Zaner and Bickel did not address the question of
whether TABOR violates Colorado's obligation
to maintain a republican form of government,
and therefore a judgment resolving that issue
would not violate those “decision[s] already
made.”
The Court therefore concludes that the fifth
Baker test is not met here.
(6) “The potentiality of embarrassment from
multifarious pronouncements by various
departments on one question”
As for the sixth and final Baker test,
Defendant again repeats the mantra that this
action challenges the entire ballot initiative
process, a process repeatedly upheld by state and
federal decision-makers. ( See ECF No. 18, at 10
(“[A] court pronouncement in favor of Plaintiff
would be in conflict with the views of various
state and federal departments on ... whether
direct democracy is incompatible with a
republican form of government.... Congress ...
has never questioned the practice of state direct
democracy.... State courts and legislators have
likewise upheld and relied upon citizen-initiated
or approved laws.”).) Defendant also again cites
Zaner and Bickel for the proposition that
TABOR has already been upheld. ( Id. at 11;
ECF No. 51, at 24.) For the aforementioned
reasons, those arguments are rejected. The sixth
Baker test is also not met in this case.
e. Conclusion
In summary, there is no basis to conclude,
at this stage of the proceedings, that any of the
six Baker tests are “inextricable from the case at
bar.” 369 U.S. at 217, 82 S.Ct. 691. Thus, the
Court concludes it is not appropriate to dismiss
Plaintiffs' Guarantee Clause claim at this stage
as non-justiciable under the political question
doctrine.
3. The Enabling Act Claim and the Political
Question Doctrine
Defendant's Motion to Dismiss includes
little argument as to why the Enabling Act in
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particular should be dismissed, saying only in a
footnote that “[t]he rationale applied by the
Supreme Court to Guarantee Clause claims
therefore applies with equal force to Plaintiffs'
claims brought under the Colorado Enabling
Act,” and citing the fact that Pacific States
included an Enabling Act claim. (ECF No. 18, at
6 n. 4.) 37 Defendant repeats the same argument
in the Reply brief. (ECF No. 51, at 25–26.)
However, as explained above, Pacific States is
not controlling and does not bar this Court's
consideration of Plaintiffs' Guarantee Clause
claim. Because the Court holds Plaintiffs'
Guarantee Clause claim to be justiciable at this
early stage of the proceedings, Plaintiffs'
Enabling Act claim is likewise not subject to
dismissal.
[880 F.Supp.2d 1153]
Further, even if Plaintiffs' Guarantee Clause
claim were barred by the political question
doctrine, the Court would nevertheless conclude
that Plaintiffs' Enabling Act claim is not subject
to dismissal. Pacific States includes a brief
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
that Colorado maintain a republican form of
government. SeeU.S. Const. art. IV, § 4; 18 Stat.
474 (1875).
However, the fact that Plaintiffs' Enabling
Act claim is a statutory claim leads the Court to
conclude that it would have jurisdiction to hear
that claim even if the Guarantee Clause claim
were held to be non-justiciable under the
political question doctrine. In Japan Whaling
Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 106
S.Ct. 2860, 92 L.Ed.2d 166 (1986), wildlife
conservation groups brought an action
challenging an executive agreement between
Japanese and U.S. officials that allegedly
violated a U.S. statute requiring sanctions for
violations of whale harvesting quotas. On
appeal, petitioners argued that the action was
barred by the political question doctrine because
federal courts lack the power to call into
question Executive Department decisions, such
as the executive agreement at issue. Id. at 229,
106 S.Ct. 2860. The Court disagreed:
[I]t goes without saying that interpreting
congressional legislation is a recurring and
accepted task for the federal courts. It is also
evident that [whether the statute was violated]
presents a purely legal question of statutory
interpretation. The Court must first ... apply[ ]
no more than the traditional rules of statutory
construction, and then apply[ ] this analysis to
the particular set of facts presented below. We
are cognizant of the interplay between [the
statute] and the conduct of this Nation's foreign
relations, and we recognize the premier role
which both Congress and the Executive play in
this field. But under the Constitution, one of the
Judiciary's characteristic roles is to interpret
statutes, and we cannot shirk this responsibility
merely because our decision may have
significant political overtones. We conclude,
therefore, that the present cases present a
justiciable controversy....
Id. at 230, 106 S.Ct. 2860.
Earlier this year, the Supreme Court again
reiterated the rule that federal courts have
jurisdiction to interpret federal statutes, even in
politically charged cases. In Zivotofsky ex rel.
Zivotofsky v. Clinton, ––– U.S. ––––, 132 S.Ct.
1421, 182 L.Ed.2d 423 (2012), the plaintiff, who
was born in Jerusalem, challenged a decision by
State Department officials to deny his request
that his passport indicate his place of birth as
Israel, in apparent direct violation of a federal
statute. The Secretary of State argued that the
case presented a non-justiciable political
question. The Court disagreed:
The existence of a statutory right ... is
certainly relevant to the Judiciary's power to
decide Zivotofsky's claim. The federal courts are
not being asked to supplant a foreign policy
decision of the political branches with the courts'
own unmoored determination of what United
States policy toward Jerusalem should be.
Instead, Zivotofsky requests that the courts
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enforce a specific statutory right. To resolve his
claim, the Judiciary must decide if Zivotofsky's
interpretation of the statute is correct, and
whether the statute is constitutional. This is a
familiar judicial exercise.
Id. at 1427.
For the Court's purposes here, a fellow U.S.
District Judge has stated the rule clearly. In
[880 F.Supp.2d 1154]
Bredesen v. Rumsfeld, 500 F.Supp.2d 752
(M.D.Tenn.2007), the Court stated that “it is
well-settled that the political question doctrine
applies only to constitutional questions, not to
questions of statutory violations.” Id. at 762
(citing Japan Whaling ). In Bredesen, the Court
ultimately found that the plaintiff's constitutional
claims (but not the statutory claims) were barred
by the political question doctrine. Id. at 762–
63.38
Thus, it is not surprising that numerous
courts have evaluated the merits of Enabling Act
claims. See Branson Sch. Dist. v. Romer, 161
F.3d 619 (10th Cir.1998) (evaluating whether an
amendment to the Colorado Constitution passed
by voter initiative violated the Colorado
Enabling Act); (ECF No. 30, at 41–44 (listing
117 other cases in which courts have taken up
the issue of whether a provision in an Enabling
Act has been violated).).
Given the sufficiently clear and recent case
law authority (some of it binding U.S. Supreme
Court authority from the past three decades) that
this Court has jurisdiction to hear the Enabling
Act claim, it would be error to dismiss this case
based only on the fact that Pacific States also
involved an Enabling Act claim. The Court
therefore concludes that it has jurisdiction to
hear Plaintiffs' Enabling Act claim under 28
U.S.C. § 1331, and as a consequence Plaintiffs'
Enabling Act claim is not subject to dismissal.
To summarize, the Court concludes that, at
this stage of the litigation, Plaintiffs' Guarantee
Clause and Enabling Act claims are justiciable
and not barred by the political question doctrine.
C. Equal Protection Claim
Defendant separately moves to dismiss
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
alleged that they are members of a
constitutionally protected class or that they are
being treated differently than other similarly
situated people in Colorado. ( Id. at 19.)
Defendant also points out that Colorado cannot
extend its jurisdiction outside its borders so as to
treat Colorado citizens differently than citizens
in other states. ( Id. at 20.)
In response, Plaintiffs argue that their Equal
Protection claim should not be dismissed
because their claim is analogous to the Equal
Protection claims found viable in the legislative
apportionment cases of Baker v. Carr, 369 U.S.
186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962),
[880 F.Supp.2d 1155]
Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362,
12 L.Ed.2d 506 (1964), and Lucas v. Forty–
Fourth General Assembly of the State of
Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12
L.Ed.2d 632 (1964). (ECF No. 30, at 33–36.)
Plaintiffs argue that, as in the legislative
apportionment cases, this action involves a
majority's efforts to impose an unconstitutional
law on a minority. ( Id.) 40
The Equal Protection Clause of the
Fourteenth Amendment to the United States
Constitution provides, “No State shall ... deny to
any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend.
XIV, § 1. The Equal Protection Clause “is
essentially a direction that all persons similarly
situated should be treated alike.” City of
Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S.
432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313
(1985); see also Plyler v. Doe, 457 U.S. 202,
216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)
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(“The Equal Protection Clause directs that all
persons similarly circumstanced shall be treated
alike.”) (quotation marks omitted); Barney v.
Pulsipher, 143 F.3d 1299, 1312 (10th Cir.1998).
“In order to assert a viable Equal Protection
claim, plaintiffs must first make a threshold
showing that they were treated differently from
others who were similarly situated to them.”
Barney, 143 F.3d at 1312;see also Brown v.
Montoya, 662 F.3d 1152, 1172–73 (10th
Cir.2011) (same); Campbell v. Buckley, 203
F.3d 738, 747 (10th Cir.2000) (same).
Plaintiffs' Equal Protection claim is
properly dismissed because Plaintiffs have not
plead or otherwise shown that TABOR has
treated any of the Plaintiffs differently from
others who are similarly situated to them. All
Colorado voters had an equally weighted vote on
TABOR in 1992. All Colorado voters would
have an equal vote on any attempt to pass a
ballot initiative invalidating TABOR. TABOR
increases all Colorado voters' power equally by,
inter alia, giving them the power to approve or
reject any proposed new tax or tax rate increase.
TABOR decreases Colorado General Assembly
members' power equally by, inter alia, taking
away their power to approve new taxes or tax
rate increases without voter approval.41 Plaintiffs
have not plead or shown how TABOR treats
similarly situated people in Colorado differently.
[T]he concept of equal protection has been
traditionally viewed as requiring the uniform
treatment of persons standing in the same
relation to the governmental action questioned
or challenged. With respect to the allocation of
legislative representation, all voters, as citizens
of a State, stand in the same relation regardless
of where they live.... Diluting the weight of
votes because of place of residence impairs basic
constitutional rights under the Fourteenth
Amendment.... Simply stated, an individual's
right to vote for state legislators is
unconstitutionally impaired when its weight is in
a substantial fashion diluted when compared
with votes of citizens living in other parts of the
State.
Id. at 565–68, 84 S.Ct. 1362. In the legislative
apportionment cases, the allegation was that
similarly situated people—voters from different
districts—were being treated differently. That is
not the case here. Here, TABOR affects all
voters equally. TABOR does not give any voter
more or less voting power than any other voter.
And even if TABOR does violate Plaintiffs'
constitutional rights as citizens to have a
government republican in form, TABOR has the
same effect on every Colorado citizen's
constitutional right to a republican form of
government.43
42
[880 F.Supp.2d 1156]
The legislative apportionment cases cited
by Plaintiffs are inapposite. Of those cases,
Reynolds provides the clearest explanation for
why the legislative apportionment at issue there
violated the Equal Protection Clause. In
Reynolds, the plaintiffs raised an Equal
Protection claim challenging the apportionment
of legislative districts in Alabama that gave
voters in certain districts greater weighted votes
than voters in other districts. 377 U.S. at 537–
46, 84 S.Ct. 1362. The Court struck down the
apportionment as violative of the Equal
Protection Clause, stating,
The Court therefore concludes that
Plaintiffs' Equal Protection claim is properly
dismissed. Because Plaintiffs have not requested
leave to amend this Claim, nor made any
suggestion how this fundamental defect in their
Equal Protection claim might be cured, the
dismissal will be with prejudice. See Curley v.
Perry, 246 F.3d 1278, 1282 (10th Cir.2001).
D. Impermissible Amendment Claim
Defendant's primary argument in moving to
dismiss Plaintiffs' Impermissible Amendment
claim is that the claim presents a non-justiciable
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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bar this action or any claims brought herein,
including the Impermissible Amendment claim.
Defendant also argues that the
Impermissible Amendment claim fails to state a
claim upon which relief can be granted. (ECF
No. 18, at 22.) In support of that contention,
Defendant argues that the Colorado Supreme
Court considers the
[880 F.Supp.2d 1157]
initiative and referendum process to be a
fundamental right of voters, and also argues that
the Colorado Supreme Court has never
questioned TABOR's general structure. ( Id.)
Regarding the first argument, as this Court has
already stated, this action challenging TABOR is
not properly interpreted as an attack on the
entire initiative and referendum process in
Colorado. Nonetheless, it is also indisputable
that just because Colorado voters have the right
to the initiative process does not mean they can
pass any ballot initiative they choose, no matter
how violative of state or federal constitutional
rights. See Romer, 517 U.S. 620, 116 S.Ct. 1620.
As to the second argument, Defendant attempts
to read far too much into the fact that the
Colorado Supreme Court to date has never
questioned
TABOR's
general
structure.
Particularly in light of the fact that a direct
challenge to TABOR's constitutional legitimacy
has never previously been mounted, Defendant's
contention that the Colorado Supreme Court has
at least implicitly found TABOR to pass
constitutional muster is without merit.
The Court therefore also finds that
Plaintiffs' Impermissible Amendment claim is
not subject to dismissal for failure to state a
claim.
The
Court
properly
exercises
supplemental jurisdiction over this claim
pursuant to 28 U.S.C. § 1367(a). ( See ECF No.
36, ¶ 53.)
E. Supremacy Clause Claim
Defendant does not separately move to
dismiss Plaintiffs' Supremacy Clause claim. In
fact, the only time the Supremacy Clause claim
is even mentioned in Defendant's Motion to
Dismiss (ECF No. 18) or in his Reply brief
(ECF No. 51) is in a footnote pointing out that
Pacific States also involved a claim brought
under the Supremacy Clause. (ECF No. 18, at 13
n. 7.) Plaintiffs' Supremacy Clause claim is
based on the allegation that “TABOR must yield
to the requirements of the ‘Guarantee Clause’
and of the Enabling Act that Colorado maintain
a Republican Form of Government.” (ECF No.
36, ¶ 84.) The Supremacy Clause claim is
derivative of the Guarantee Clause claim and
Enabling Act claim; if TABOR violates the
Guarantee Clause and/or the Enabling Act, then
it would appear that it also violates the
Supremacy Clause. Because the Court has held
that Plaintiffs' Guarantee Clause claim and
Enabling Act claim are not subject to dismissal
at this stage of the proceedings, Defendant's
Motion to Dismiss Plaintiffs' Supremacy Clause
claim will also be denied.
F. Unopposed Motion to Amend Complaint
On March 28, 2012, Plaintiffs filed an
Unopposed Motion for Leave to File Second
Amended Substitute Complaint for Injunctive
and Declaratory Relief (“Unopposed Motion”).
(ECF No. 74) In the Unopposed Motion,
Plaintiffs explain that they only seek to amend
the Operative Complaint in order to update the
current elective status of six particular plaintiffs.
( Id.) This Court's review of the Operative
Complaint and the proposed Second Amended
Substitute Complaint for Injunctive and
Declaratory Relief confirms that those were the
only changes made to the Operative Complaint.
( Compare ECF No. 36, with ECF No. 74–1.)
The Court therefore finds good cause to grant
the Unopposed Motion.
IV. CONCLUSION
In accordance with the foregoing, the Court
hereby ORDERS as follows:
(1)
Plaintiffs'
properly
Plaintiffs'
Defendant's Motion to Dismiss
Substitute Complaint (ECF No. 18),
construed as moving to dismiss
First Amended Substitute Complaint
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for Injunctive and Declaratory Relief, is
GRANTED IN PART and DENIED IN PART;
[880 F.Supp.2d 1158]
(2) Defendant's Motion to Dismiss is
GRANTED as to Plaintiffs' Equal Protection
claim. Plaintiffs' Equal Protection claim is
hereby DISMISSED WITH PREJUDICE;
(3) Defendant's Motion to Dismiss is
DENIED as to Plaintiffs' other four claims for
relief. Those four claims will be allowed to
proceed past the pleading stage in this action;
(4) Plaintiffs' Unopposed Motion for Leave
to File Second Amended Substitute Complaint
for Injunctive and Declaratory Relief (ECF No.
74) is GRANTED;
(5) The Clerk of Court shall FILE as a
separate docket entry the Second Amended
Substitute Complaint for Injunctive and
Declaratory Relief, currently filed as an
attachment at ECF No. 74. The Second
Amended Substitute Complaint for Injunctive
and Declaratory Relief will hereinafter be the
operative complaint in this action; and
(6) The Court's Order staying disclosures
and discovery in this action (ECF No. 29) is
VACATED and said stay is hereby LIFTED.
--------
The Court explains the nature of
Plaintiffs' “Impermissible Amendment claim”
below.
1.
As explained below, because of this
determination, the Court need not consider the
standing of the remaining Plaintiffs.
2.
Article X
“Revenue.”
is the
Article
entitled
The Court properly takes judicial notice
of TABOR's provisions. SeeFed.R.Evid. 201(b)
4.
Clause (4)(a) exempts from this limitation
“emergency taxes” as defined in clause (6), and
also exempts the scenario (described in clause
(1)) where “annual district revenue is less than
annual payments on general obligation bonds,
pensions, and final court judgments.”
5.
Clause (4)(b) exempts from this limitation
“refinancing district bonded debt at a lower
interest rate or adding new employees to existing
district pension plans.”
6.
In 2005, Colorado voters approved
Referendum C, which, inter alia, allowed the
state to retain and spend all excess revenue
collected above the TABOR limit for five years
(from fiscal year 2005–06 through fiscal year
2009–10), and allowed the state, beginning in
fiscal year 2010–11, to retain and spend excess
revenue up to a new “excess state revenues” cap.
SeeColo.Rev.Stat. § 24–77–103.6.
7.
The Plaintiffs who are current members
of the Colorado House of Representatives are
Lois Court, Dickey Lee Hullinghorst, Andy
Kerr, and Claire Levy. Plaintiff John P. Morse is
a current member of the Colorado Senate. ( Id.)
See also www. leg. state. co. us (last visited June
20, 2012); Fed.R.Evid. 201(b); Grynberg, 390
F.3d at 1278 n. 1.
8.
Notes:
3.
(providing that judicial notice may be taken of a
fact that is “not subject to reasonable dispute in
that it is ... capable of accurate and ready
determination by resort to sources whose
accuracy cannot reasonably be questioned”);
Grynberg v. Koch Gateway Pipeline Co., 390
F.3d 1276, 1278 n. 1 (10th Cir.2004) (stating
that, in evaluating a motion to dismiss, a court
may take judicial notice of facts that are a matter
of public record).
Despite the fact that paragraph 86 of the
Operative Complaint is ambiguous regarding
whether Plaintiffs are attempting to assert a
claim under the Fourteenth Amendment separate
and apart from their Equal Protection claim, the
Court holds that the Operative Complaint as a
whole is properly interpreted as bringing a claim
9.
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under the Fourteenth Amendment based only on
the alleged violation of the Equal Protection
Clause. ( See id. ¶¶ 47, 51, 58.)
To the extent that the Impermissible
Amendment claim can be construed as also
alleging violations of the Guarantee Clause and
the Enabling Act, such allegations are already
encompassed within the Guarantee Clause claim
and the Enabling Act claim.
10.
Those sections
Constitution provide:
11.
of
the
Colorado
• “The people of [Colorado] have the sole
and exclusive right of governing themselves, as
a free, sovereign and independent state; and to
alter and abolish their constitution and form of
government whenever they may deem it
necessary to their safety and happiness,
provided, such change be not repugnant to the
constitution of the United States.” Colo. Const.,
art. II, § 2.
The amicus brief filed by the
Independence Institute only addresses the merits
issue of what constitutes a republican form of
government. (ECF No. 21–1.) The Independence
Institute argues that, even if this case is
justiciable, it should be dismissed on the merits.
( Id.)
12.
The amicus brief filed by the three
Professors (the “ amici Professors”) only
addresses the political question doctrine. (ECF
No. 61.) The amici Professors argue that this
action does not present non-justiciable political
questions. ( Id.)
13.
As a technical matter, the Motion to
Dismiss was filed in response to the Substitute
Complaint, not the Operative Complaint.
However, the Substitute Complaint and
Operative Complaint are virtually identical, so
from a practical perspective the Motion to
Dismiss is properly construed as moving to
dismiss the Operative Complaint.
14.
15.
• “All bills for raising revenue shall
originate in the house of representatives; but the
senate may propose amendments, as in the case
of other bills.” Id. art. V, § 31.
• “The general appropriation bill shall
embrace nothing but appropriations for the
expense of the executive, legislative and judicial
departments of the state, state institutions,
interest on the public debt and for public
schools. All other appropriations shall be made
by separate bills, each embracing but one
subject.” Id. art. V, § 32.
• “The general assembly shall provide by
law for an annual tax sufficient, with other
resources, to defray the estimated expenses of
the state government for each fiscal year.” Id.art.
X, § 2.
In Schlesinger, the Court stated,
[T]he concept of justiciability, which
expresses the jurisdictional limitations imposed
upon federal courts by the ‘case or controversy’
requirement of Art. III, embodies both the
standing and political question doctrines.... Each
of these doctrines poses a distinct and separate
limitation, so that either the absence of standing
or the presence of a political question suffices to
prevent the power of the federal judiciary from
being invoked by the complaining party. The
more sensitive and complex task of determining
whether a particular issue presents a political
question causes courts ... to turn initially,
although not invariably, to the question of
standing to sue.
418 U.S. at 215, 94 S.Ct. 2925 (citations
omitted).
Notably, the Act specifically authorized
Members of Congress to bring a legal action
challenging the constitutionality of the Act. See
16.
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id. at 815–16, 117 S.Ct. 2312. As the Court in
Raines pointed out, however, “Congress cannot
erase Article III's standing requirements by
statutorily granting the right to sue to a plaintiff
who would not otherwise have standing.” Id. at
820 n. 3, 117 S.Ct. 2312. Rather, “Congress'
decision to grant a particular plaintiff the right to
challenge an Act's constitutionality [only serves
to] eliminate[ ] any prudential standing
limitations.” Id.; see also Warth v. Seldin, 422
U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343
(1975) (“Congress may grant an express right of
action to persons who would otherwise be barred
by prudential standing rules.”). Raines,
therefore, dealt only with the issue of whether
the plaintiffs there met the minimum
constitutional requirements for standing.
The Twenty–Seventh Amendment
provides, “No law, varying the compensation for
the services of the Senators and Representatives,
shall take effect, until an election of
Representatives shall have intervened.” U.S.
Const. amend. XXVII.
17.
18.
The Court's emphasis on the “widely
dispersed” nature of the injury appears to be tied
to the fact that it is an institutional injury.
Notably, though, in the Supreme Court's
jurisprudence, this idea of a widely dispersed
injury not being cognizable appears to have only
been consistently applied in the context of
citizen or taxpayer suits. See, e.g., Warth, 422
U.S. at 499, 95 S.Ct. 2197 (“[W]hen the asserted
harm is a ‘generalized grievance’ shared in
substantially equal measure by all or a large
class of citizens, that harm alone normally does
not warrant exercise of jurisdiction.”).
Importantly, the Supreme Court in Akins stated,
“Often the fact that an interest is abstract and the
fact that it is widely shared go hand in hand. But
their association is not invariable, and where a
harm is concrete, though widely shared, the
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
shared by all or a vast majority of Americans,
this Court would be hard-pressed to deny
standing if a sufficiently concrete injury existed,
just because it was “widely shared” by 100
Colorado General Assembly members.
Notably, in Raines, the plaintiffs brought
suit the day after the Line Item Veto Act was
passed, see521 U.S. at 814, 117 S.Ct. 2312, and
so did not even wait until the President had
exercised his new powers under the Act.
19.
The cases cited by Defendant are
distinguishable. In Alaska Legislative Council v.
Babbitt, 181 F.3d 1333 (D.C.Cir.1999), the court
applied Raines and denied standing to state
legislators challenging a federal statute that took
away the power of the Alaska Legislature to
control hunting and fishing on federal lands
within Alaska. At this early stage of these
proceedings, this Court can without hesitation
distinguish the relatively narrow removal of the
power over hunting and fishing on the portions
of land in Alaska owned by the federal
government, as being of less civic import than
the alleged wholesale removal of the Colorado
legislature's “core functions” of taxation and
appropriation.
20.
Defendant also unpersuasively likens this
case to Daughtrey v. Carter, 584 F.2d 1050
(D.C.Cir.1978). There, two legislators brought
suit challenging the Executive Department's
alleged failure to enforce a law that the
legislature had passed. The Court denied
standing on the ground that “[t]he failure or
refusal of the executive branch to execute
accomplished legislation does not affect the
legal status of such legislation; nor does it
invade, usurp, or infringe upon a Congressman's
power to make law. [citation omitted] Once a
bill becomes law, a Congressman's interest in its
enforcement is shared by, and indistinguishable
from, that of any other member of the public.”
Id. at 1057. Here, however, the claim is that the
power to legislate itself has been taken away.
Also, as previously mentioned, in Schaffer,
a member of the House of Representatives
alleged injuries based on a law being “personally
offensive and professionally harmful to him, as
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well as damaging to his political position and his
credibility among his constituency.” 240 F.3d at
883. The Tenth Circuit denied standing, in part,
on the conclusion that those asserted harms were
“even more abstract” than those at issue in
Raines.Id. at 885. Here, however, the alleged
harm is significantly more concrete than that in
Raines.
It would be overly formalistic to deny
standing on the ground that the Colorado
General Assembly has never unsuccessfully
attempted to circumvent TABOR by, for
example, passing a tax bill and attempting to
coax the Governor's office to sign the bill into
law without first submitting the bill to the voters
for approval, but ultimately being prevented
from doing so by the Colorado Attorney
General.
21.
As Defendant points out, however,
numerous lower courts since Raines, in denying
legislative standing, have placed great weight on
the fact that what was being alleged was an
institutional injury common to all members of
the legislative body and/or one involving a mere
loss of political power. See, e.g., Schaffer, 240
F.3d at 885;Alaska Legislative Council, 181
F.3d at 1336–38;Chenoweth v. Clinton, 181 F.3d
112, 115–16 (D.C.Cir.1999); Kucinich v.
Obama,
821
F.Supp.2d
110,
116–18
(D.D.C.2011).
22.
Not surprisingly, for this reason most of
these cases come out of the D.C. Circuit.
23.
See also Harrington v. Bush, 553 F.2d
190, 204 n. 67 (D.C.Cir.1977) (“The major
distinguishing factor between Coleman and the
present case lies in the fact that the plaintiffs in
Coleman were state legislators. A separation of
powers issue arises as soon as the Coleman
holding is extended to United States legislators.
If a federal court decides a case brought by a
United States legislator, it risks interfering with
the proper affairs of a coequal branch.”). But see
Alaska Legislative Council, 181 F.3d at 1337–39
(applying Raines to deny standing to state
legislators challenging a federal statute that took
24.
away the power of the Alaska Legislature to
control hunting and fishing on federal lands
within Alaska).
See Planned Parenthood of Mid–Missouri
& E. Kan., Inc. v. Ehlmann, 137 F.3d 573, 578
n. 5 (8th Cir.1998) (“Justice Souter [in his
concurring opinion in Raines ] cautioned against
courts embroiling themselves in a political
interbranch controversy between the United
States Congress and the President. [citation
omitted] Federal courts should exercise this
same caution when, as in this case, there exists a
political interbranch controversy between state
legislators and a state executive branch
concerning implementation of a bill.”).
25.
Raines declined to address appellants'
alternative arguments that Coleman should be
distinguished because “the separation-of-powers
concerns present in such suit were not present in
Coleman, and since any federalism concerns
were eliminated by the Kansas Supreme Court's
decision to take jurisdiction over the case.”
Raines, 521 U.S. at 824 n. 8, 117 S.Ct. 2312.
26.
TABOR has only been modified since by
Referendum C, which in no way affected the
limitation on the General Assembly's power to
increase tax rates or impose new taxes without
voter approval.
27.
See also Kean v. Clark, 56 F.Supp.2d
719, 727 (S.D.Miss.1999) (“The States and their
officers are bound by obligations imposed by the
Constitution and by federal statutes that comport
with the constitutional design.... [Further,] it is
irrelevant that a statutory restriction is based
upon a constitutional provision enacted by
petition. The voters may no more violate the
United States Constitution by enacting a ballot
issue than the general assembly may by enacting
legislation.”) (citations, quotation marks,
brackets, and ellipses omitted).
28.
Defendant cites Kucinich in support of
the argument that the Legislator–Plaintiffs do
not have standing here. (ECF No. 73, at 13, 15–
16.) Indeed, the Kucinich decision also placed
29.
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great weight on the fact that what was alleged
there was an institutional injury and that the
legislator plaintiffs had not been authorized to
bring suit on behalf of their respective legislative
bodies. 821 F.Supp.2d at 116–18. However, the
fact that in Kucinich an internal legislative
remedy existed—and the fact that Kucinich
placed so much importance on this fact—makes
Kucinich distinguishable on that basis. Also, like
in Raines, separation-of-powers concerns existed
in Kucinich, but do not exist here, further
distancing Kucinich from the issues presented by
the instant dispute.
See also U.S. Dep't of Labor v. Triplett,
494 U.S. 715, 729, 110 S.Ct. 1428, 108 L.Ed.2d
701 (1990); Bowsher v. Synar, 478 U.S. 714,
721, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986);
Watt v. Energy Action Educ. Found., 454 U.S.
151, 160, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981).
30.
Also citing Pacific States, 223 U.S. 118,
32 S.Ct. 224;Colegrove v. Green, 328 U.S. 549,
66 S.Ct. 1198, 90 L.Ed. 1432 (1946); Baker, 369
U.S. 186, 82 S.Ct. 691; and City of Rome v.
United States, 446 U.S. 156, 100 S.Ct. 1548, 64
L.Ed.2d 119 (1980).
31.
Notably, Baker held to be justiciable the
same
type
of
claim—legislative
apportionment—that was at issue in Colegrove.
32.
It is notable that many courts, like New
York, Kelley, and Hanson, have resolved cases
on the merits rather than having to resolve the
difficult question of whether any Guarantee
Clause claims are justiciable, and if some are,
which types of claims. See, e.g., City of New
York v. United States, 179 F.3d 29, 37 (2d
Cir.1999) (citing New York, and stating, “Even
assuming the justiciability of this [Guarantee
Clause] claim, [it lacks merit].”); United States
v. Vazquez, 145 F.3d 74, 83 (2d Cir.1998)
(same); Adams v. Clinton, 90 F.Supp.2d 27, 34
(D.D.C.2000) (same); see also State of Michigan
v. United States, 40 F.3d 817, 837 (6th Cir.1994)
(Guy, J., dissenting) (“I hesitate to reach the
substantive question of the Guarantee Clause's
effect on federal taxation.... The district court
33.
did not reach plaintiffs' main arguments, for it
concluded that this was a nonjusticiable issue....
Just as the Supreme Court has declined to
answer this difficult question, see New York ..., I
would decline here. I would leave it to the
Supreme Court in the first instance to enter this
constitutional thicket.”).
Indeed, if possible, courts should “adhere to
[the] wise policy of avoiding the unnecessary
adjudication
of
difficult
questions of
constitutional law.” See Town of Castle Rock,
Colo. v. Gonzales, 545 U.S. 748, 778, 125 S.Ct.
2796, 162 L.Ed.2d 658 (2005). This
consideration, alone, would not warrant allowing
this case to proceed past the pleading stage into
the burdensome discovery process. However,
independent of this consideration, the Court
concludes below that it is not appropriate to
dismiss this action as non-justiciable at this early
stage of the proceedings. Given that the case will
proceed to the summary judgment stage, the
Court notes that it may be able to resolve the
case on the merits at that stage, rather than
having to address this difficult constitutional
question.
Indeed, both Plaintiffs and Defendant,
and the amici Professors, conduct a thorough
review of the Baker tests. ( See ECF No. 18, 7–
11; ECF No. 30, at 29–33; ECF No. 51, at 18–
24; ECF No. 61, at 12–16.) At the very least this
suggests Defendant's agreement that, if there is
no per se rule of non-justiciability in political
question cases, and if Pacific States does not
govern, then the Baker tests should be applied.
34.
Some recent Supreme Court decisions
have only identified the first two Baker tests in
describing the test for whether the political
question doctrine applies in a particular case,
suggesting the importance of the first two tests.
See Zivotofsky ex rel. Zivotofsky v. Clinton, –––
U.S. ––––, 132 S.Ct. 1421, 1427, 182 L.Ed.2d
423 (2012) (“[A] controversy involves a
political question where there is a textually
demonstrable constitutional commitment of the
issue to a coordinate political department; or a
lack of judicially discoverable and manageable
35.
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standards for resolving it.”) (quotation marks
and ellipses omitted); Clinton v. Jones, 520 U.S.
681, 700 n. 34, 117 S.Ct. 1636, 137 L.Ed.2d 945
(1997) (same); Nixon v. United States, 506 U.S.
224, 228, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993)
(same).
See generally United Steelworkers of Am.
v. Or. Steel Mills, Inc., 322 F.3d 1222, 1229
(10th Cir.2003) (“Defendants ... outline what
must be proven to ultimately succeed on the
merits, and not what is required at the pleading
stage.”); Enriques v. Noffsinger Mfg. Co., Inc.,
412 F.Supp.2d 1180, 1183 (D.Colo.2006)
(“[Defendant's] argument, while perhaps
appropriate at the merits stage with the benefit
of discovery, is insufficient to dismiss the claim
at the pleading stage, where a plaintiff's wellpleaded allegations must be accepted as true.”).
36.
Pacific States did include an Enabling
Act claim. See223 U.S. at 139, 32 S.Ct. 224
(listing as an assignment of error, “The
provision in the Oregon Constitution for direct
legislation violates the provisions of the act of
Congress admitting Oregon to the Union”). The
Court in Pacific States held that the Guarantee
Clause claim and the Enabling Act claim, among
others, were to be resolved on the same basis:
“the propositions each and all proceed alone
upon the theory that the adoption of the initiative
and referendum destroyed all government
republican in form in Oregon.” Id. at 141, 32
S.Ct. 224.
37.
See also Schiaffo v. Helstoski, 492 F.2d
413, 419 (3d Cir.1974) (“[S]ince Congress has
seen fit to enact a statute granting the franking
privilege, we have considerable doubt whether
the political question doctrine is applicable at
all. We have found no case regarding the
application of a statute concerned solely with
domestic affairs and passed by Congress in
which the political question doctrine has
precluded Supreme Court review.”); El–Shifa
Pharm. Indus. Co. v. U.S., 607 F.3d 836, 851
(D.C.Cir.2010) (Ginsburg, J., concurring)
(“Under Baker v. Carr a statutory case generally
does not present a non-justiciable political
38.
question because the interpretation of legislation
is a recurring and accepted task for the federal
courts.”) (quotation marks omitted). But see Ctr.
for Policy Analysis on Trade & Health (CPATH)
v. Office of the U.S. Trade Representative, 540
F.3d 940, 945 (9th Cir.2008) (“[I]t is a political
question arising out of a statute that provides us
with no meaningful standards to apply.”).
Defendant also briefly argues that
Plaintiffs “cannot use [the Equal Protection
claim] to turn their otherwise non-justiciable
question into a justiciable one.” (ECF No. 18, at
19.) Because the Court has held that Plaintiffs
have standing and that the political question
doctrine does not bar this action, Plaintiffs'
Equal Protection claim is not subject to
dismissal on the ground of non-justiciability.
39.
Specifically, Plaintiffs make clear that
their Equal Protection claim is based on the
premise that a voting majority has taken away
the minority's right to a republican form of
government. ( See ECF No. 36, ¶ 85 (“The
aforesaid violations of the requirement for a
Republican Form of Government deny to
Plaintiffs and others similarly situated the Equal
Protection of the Laws....”); ECF No. 30, at 33
(“[The Equal Protection Clause prohibits] a
majority's efforts to impose an unconstitutional
law on a state's entire population.”); id. at 35
(“[Plaintiffs' Equal Protection claim] concerns a
minority's attempt to vindicate rights lost
through the will of the majority.”); id. at 35–36
(“The Equal Protection Clause [bars] a
majority's attempt ... to place in its own hands
the critical functioning of the state
legislature.”).)
40.
Although Plaintiffs have not made the
argument, it would not be appropriate to treat a
Colorado voter as similarly situated to a member
of the General Assembly for purposes of equal
protection analysis. See Campbell, 203 F.3d at
748 (“Citizens who propose legislation through
the initiative process and members of the general
assembly who pass bills are not similarly
situated classes.... The legislative process and
the initiative process are so fundamentally
41.
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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
Protection Clause of the federal Constitution to
require the state to afford the same title setting
treatment to these two processes.”).
In the Court's view, it would also not be
appropriate in evaluating Plaintiffs' Equal
Protection claim to consider how TABOR treats
Colorado citizens differently than the citizens of
other states. U.S. Const. amend. XIV, § 1 (“No
State shall ... deny to any person within its
jurisdiction the equal protection of the laws.”)
(emphasis added); see also Fetzer v.
McDonough, No. 4:07cv464–WS, 2009 WL
3163147, at *7 (N.D.Fla. Sept. 29, 2009)
(“Plaintiff's argument that inmates in other states
are provided Kosher food does not show that
these Defendants, who are responsible for
42.
inmates incarcerated in Florida, have treated
other inmates in Florida differently than
Plaintiff. These Defendants are not responsible
for the conditions of confinement for other
prisoners incarcerated in other states ....”)
(emphasis in original).
Plaintiffs attempt to generalize the
holdings of the voter apportionment cases to
stand for the propositions that the Equal
Protection Clause does not allow a voting
majority to “remake a state legislature,” to
“compromise the fundamental operations” of the
legislature, and to “manipulate their legislatures
to promote the interests of particular groups.”
(ECF No. 30, at 33–34.) Such a reading of the
voter apportionment cases is overly broad and
unsupported.
43.
- 40 -
The State of the Constitutions: New Developments in Federal and State Constitutional Law
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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:
Source: Justia
The issue before the Supreme Court in this case
was a challenge to two provisions of the voterenacted RCW 43.135.034 (2011) (Initiative
1053). The first provision required that any bill
containing tax increases be passed by a twothirds 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
addressed only whether the challenges to the
provisions were justiciable and whether they
violated the Washington Constitution. A
superior court found both provisions justiciable
but that the supermajority requirement and
referendum requirement both violated the
Constitution. The State appealed. Upon review,
the Supreme Court affirmed in part, and
reversed in part. The Court affirmed the superior
court's holding that one provisions were
justiciable, and that justiciable provision, the
supermajority requirement, violated Article II,
section 22 of the state Constitution. However,
the Court reversed the superior court's decision
that the referendum provision was justiciable.
Accordingly, the Court made no determination
as to its constitutionality.
[295 P.3d 745]
Maureen A. Hart, Attorney at Law, Jeffrey Todd
Even, Office of The Attorney General, Olympia,
WA, Allyson Zipp, NYSERDA, Albany, NY,
for Appellant.
Paul J. Lawrence, Matthew J. Segal, Sarah
Christine Johnson, Gregory J. Wong, Pacifica
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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
Wright Tremaine LLP, Seattle, WA, for
Respondent.
Kristopher Ian Tefft, Association of Washington
Business, Olympia, WA, amicus counsel for
Association of Washington Business.
Michael J. Reitz, Attorney at Law, Saginaw
Township, MI, amicus counsel for Freedom
Foundation.
Harry H. Schneider Jr., Nicholas Manheim,
David A. Perez, Perkins Coie LLP, Seattle, WA,
amicus counsel for League of Women Voters of
Washington.
OWENS, J.
[176 Wash.2d 812]¶ 1 Before us is a
constitutional challenge to two provisions of
voter-enacted former RCW 43.135.034 (2011)
(Initiative 1053 (I–1053)). The first provision
requires that any bill containing a tax increase be
passed by a two-thirds majority vote of the
legislature (Supermajority Requirement), and the
second provision requires that any tax bill
increasing spending beyond the state spending
limit be approved by the voters (Referendum
Requirement). At the outset, we note that our
opinion does not reflect whether these
provisions embody sound policies. We agree
with the dissenting justices that such judgment is
reserved for the people and the legislature.
However, as Chief Justice John Marshall wrote,
“[I]f both the law and the constitution apply to a
particular case, ... the court must determine
which of these conflicting rules governs the
case.” Marbury v. Madison, 5 U.S. (1 Cranch)
137, 177–78, 2 L.Ed. 60 (1803). We meet that
task today by addressing only whether the
challenges to the two provisions are justiciable
and whether the challenged provisions violate
the Washington Constitution. The King County
Superior Court found the challenge to both
provisions justiciable and held that the
Supermajority Requirement violated article II,
section 22 and the Referendum Requirement
violated article II, section 1(b). The State
appealed,
contending
this
dispute
is
nonjusticiable and that both provisions of former
RCW 43.135.034 are constitutional.
¶ 2 We affirm the trial court in part and
reverse in part. We affirm the trial court's
decision regarding the justiciability and the
constitutionality
of
the
Supermajority
Requirement. Article II, section 22 states that
“[n]o bill shall [176 Wash.2d 813]become a law
unless ... a majority of the members elected to
each house” vote in its favor. The plain
language,
[295 P.3d 746]
constitutional history, and weight of persuasive
authority support reading this provision as
setting both a minimum and a maximum voting
requirement. Therefore, the Supermajority
Requirement violates article II, section 22 by
requiring certain legislation to receive a twothirds vote. However, we reverse the trial court's
decision that the Referendum Requirement
presents a justiciable controversy. Because the
Referendum Requirement is not justiciable, we
make no determination as to its constitutionality.
STATEMENT OF FACTS
¶ 3 In 2010, voters passed I–1053, which is
codified at former RCW 43.135.034. Laws of
2011, ch. 1, § 2. Former RCW 43.135.034 was
another iteration of a long line of initiatives that
have established two requirements for certain
tax legislation: the Supermajority Requirement
and the Referendum Requirement.
¶ 4 A rich litigious history surrounds both
the Supermajority Requirement and the
Referendum Requirement. These requirements
were first imposed by Initiative 601 (I–601),
which was approved by the voters in 1993. Laws
of 1994, ch. 2. Before the initiative went into
effect, a group of legislators, public advocacy
groups, and citizens sought a writ of mandamus
in this court ordering the legislature to prevent
I–601's implementation, claiming it was
unconstitutional. Walker v. Munro, 124 Wash.2d
402, 406–07, 879 P.2d 920 (1994). The court
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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
to compel legislative officers to perform
discretionary acts or duties like determining
whether I–601 applied to a particular bill. Id. at
410, 879 P.2d 920.
¶ 5 I–601 remained in effect for several
years until the legislature suspended it for two
years in 2005. [176 Wash.2d 814]Brown v.
Owen, 165 Wash.2d 706, 713, 206 P.3d 310
(2009).1 Then in 2007, voters passed Initiative
960 (I–960). Id. I–960, like I–601 before it,
contained a Supermajority Requirement and a
Referendum Requirement. Id. at 714, 206 P.3d
310. I–960 spawned two separate cases. First, a
group of challengers sought to prevent the
secretary of state from even placing I–960 on the
ballot. Futurewise v. Reed, 161 Wash.2d 407,
408, 166 P.3d 708 (2007). This court dismissed
the action as nonjusticiable because the dispute
did not fit the narrow requirements for
challenging initiatives preelection. Id. at 415,
166 P.3d 708. The second case arose
postenactment. There, a state senator sought a
writ of mandamus in this court to force the
senate president to forward a tax bill to the
house of representatives that received only a
simple majority in the senate. Brown, 165
Wash.2d at 711, 716, 206 P.3d 310. The court
again did not address the constitutionality of the
Supermajority Requirement because the case
raised a nonjusticiable political question. Id. at
727, 206 P.3d 310.
¶ 6 The legislature suspended I–960 after
two years, just as it had suspended I–601. Laws
of 2010, ch. 4. Knowing such a suspension was
a possibility, voters passed I–1053 in 2010,
which again contained the Supermajority
Requirement and the Referendum Requirement
and prevented the legislature from suspending
the requirements for another two years. Sponsors
also filed Initiative 1185 (I–1185) for the 2012
ballot, which again contained these two
requirements. Laws of 2013, ch. 1. Voters
passed I–1185.
PROCEDURAL HISTORY
¶ 7 In July 2011, respondents—the League
of Education Voters (LEV), Washington
Education Association (WEA), 12 individual
legislators, and numerous individual taxpayers
(hereinafter collectively referred to as “LEV”
unless otherwise[176 Wash.2d 815]noted)—
filed a complaint in King County Superior Court
seeking a declaratory judgment that the
Supermajority Requirement and Referendum
Requirement violated article II, section 22 and
article II, section 1(b) of the Washington
Constitution. LEV filed its complaint only after
the attorney general refused to challenge the
constitutionality of former RCW 43.135.034.
[295 P.3d 747]
¶ 8 The parties filed cross motions for
summary judgment in January 2012, and
Governor Gregoire filed a brief requesting a
decision on the merits, although she expressed
no view on the merits of the dispute. After oral
argument, the trial court granted LEV's motion
for summary judgment, holding that (1) the
dispute was justiciable; (2) the dispute
constituted a matter of great public importance;
(3) article II, section 22 prohibited the
Supermajority Requirement; and (4) article II,
section 1(b) prohibited the Referendum
Requirement.
¶ 9 The State then appealed directly to this
court. We accepted direct review.
ISSUES
¶ 10 1. Are the constitutional challenges to
the Supermajority Requirement and the
Referendum Requirement justiciable?
¶ 11 2. If justiciable, is the Supermajority
Requirement constitutional under article II,
section 22 and is the Referendum Requirement
constitutional under article II, section 1(b)?
¶ 12 3. Is the Supermajority Requirement or
the Referendum Requirement severable from
former RCW 43.135.034?
ANALYSISI. Justiciability
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League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
¶ 13 We must first determine whether
LEV's constitutional challenges to the
Supermajority Requirement and [176 Wash.2d
816]the Referendum Requirement constitute
justiciable controversies. We conclude that the
Supermajority Requirement's constitutionality is
justiciable because the requirement has nullified
the legislator respondents' votes by preventing
the passage of tax legislation that received a
simple
majority
vote.
However,
the
constitutionality
of
the
Referendum
Requirement is not justiciable given the
hypothetical nature of the claim and the lack of
injury.
controversy requirement, LEV points to the
failed passage of Substitute House Bill 2078,
62d Leg., 1st Spec. Sess. (Wash. 2011) [176
Wash.2d 817](SHB 2078), as a concrete
example of the Supermajority Requirement's
impact. SHB 2078 would have funded a
reduction in kindergarten through third grade
class sizes by closing tax loopholes. Closing tax
loopholes constitutes a tax increase subject to
the Supermajority Requirement. See former
RCW 43.135. 034(1), (6). As a result of
triggering the Supermajority Requirement, SHB
2078 failed to pass the house even though it
received a simple majority of votes.
¶ 14 Under the Uniform Declaratory
Judgments Act (UDJA), chapter 7.24 RCW,
courts have the “power to declare rights, status
and other legal relations” by a declaratory
judgment. RCW 7.24.010. Unless a dispute
involves “issues of major public importance, a
justiciable controversy must exist before a
court's jurisdiction may be invoked under the
[UDJA].” Nollette v. Christianson, 115 Wash.2d
594, 598, 800 P.2d 359 (1990). A justiciable
controversy requires
¶ 16 In his dissent, Justice Charles Johnson
claims that the “essence” of SHB 2078 was
passed in Engrossed Senate Bill 6635, 62d Leg.,
2d Spec. Sess. (Wash. 2012) (ESB 6635).
Dissent (C. Johnson, J.) at 3. While ESB 6635
certainly closed the same tax loophole
“(1) ... an actual, present and existing
dispute, or the mature seeds of one, as
distinguished from a possible, dormant,
hypothetical, speculative, or moot disagreement,
(2) between parties having genuine and
opposing interests, (3) which involves interests
that must be direct and substantial, rather than
potential, theoretical, abstract or academic, and
(4) a judicial determination of which will be
final and conclusive.”
To–Ro Trade Shows v. Collins, 144 Wash.2d
403, 411, 27 P.3d 1149 (2001) (alteration in
original) (quoting Diversified Indus. Dev. Corp.
v. Ripley, 82 Wash.2d 811, 815, 514 P.2d 137
(1973)).2
¶ 15 Here, there is little question that the
constitutionality
of
the
Supermajority
Requirement
constitutes
a
justiciable
controversy. To satisfy the justiciable
[295 P.3d 748]
as SHB 2078, ESB 6635 differed substantially in
that it did not fund a reduction in school class
sizes. Compare ESB 6635, with SHB 2078, at 4;
Clerk's Papers (CP) at 672–94. Moreover, ESB
6635 created four new tax loopholes, thus
reducing the overall revenue generated by the
bill. Compare ESB 6635, at 4–44, with SHB
2078; CP at 672–94. Accordingly, the dissent's
claim that ESB 6635 contained the “essence” of
SHB 2078 is inaccurate.
¶ 17 The failed passage of SHB 2078
satisfies the four elements of a justiciable
controversy. The legislator respondents “have a
plain, direct and adequate interest in maintaining
the effectiveness of their votes.” Coleman v.
Miller, 307 U.S. 433, 438, 59 S.Ct. 972, 83
L.Ed. 1385 (1939). 3 The legislator respondents'
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.
“[L]egislators whose votes would have been
sufficient to defeat (or enact) a specific
legislative Act have standing to sue if that
legislative action goes into effect (or does not go
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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
that their votes have been completely nullified.”
Raines v. Byrd, 521 U.S. 811, 823, 117 S.Ct.
2312, 138 L.Ed.2d 849 (1997).4 The specific
example of SHB 2078 moves the legislator
respondents' claim from the realm of abstract
diluted legislative power to the realm of actual
vote nullification. Consequently, there is an
actual dispute between the State and LEV.
Finally, neither party disputes that a
determination from this court will be final and
conclusive. Thus, the failed passage of SHB
2078 demonstrates that the Supermajority
Requirement's constitutionality presents a
justiciable controversy.5
¶ 18 Further, we note that the State's
position would effectively insulate the
Supermajority Requirement from review. Under
the State's theory, review would be proper only
if the legislature ignored the Supermajority
Requirement and passed a tax bill without a twothirds majority vote. The State's position,
however, would require the legislature to ignore
the well-established principle that statutes are
presumed constitutional, Island County v. State,
135 Wash.2d 141, 146, 955 P.2d 377 (1998).
Given that the legislator respondents cannot
ignore the Supermajority Requirement without
violating their obligation to uphold the laws of
the state, the State's position would render the
Supermajority Requirement unreviewable and is
therefore unacceptable.
¶ 19 The State also argues that the court
should dismiss this action as nonjusticiable
because it dismissed similar disputes in three
prior decisions— Walker, Brown, and
Futurewise. This argument ignores the
fundamental procedural distinctions between
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
filed in superior court in this case. See Walker,
124 Wash.2d at 405, 879 P.2d 920;Brown, 165
Wash.2d at 711, 206 P.3d 310. And, in
Futurewise, the preelection challenge to an
initiative's constitutionality at issue was
nonjusticiable because it did not meet the
stringent requirements for a preelection
challenge. 161 Wash.2d at 411–12, 166 P.3d
708. Consequently, the fact that we have been
unable to address the merits of the
Supermajority Requirement previously does not
inform
the
current
discussion.
The
Supermajority Requirement's constitutionality is
properly before us.
¶ 20 In contrast, LEV's challenge to the
Referendum Requirement is not justiciable.
Unlike the Supermajority Requirement, the
Referendum Requirement has not harmed any of
the respondents. The legislator respondents do
not claim it has nullified
[295 P.3d 749]
their votes, nor do any of the other respondents
claim harm from the Referendum Requirement.
Without identifying a legal interest at issue, let
alone an injury to that interest, LEV cannot
establish a justiciable controversy. See To–Ro
Trade Shows, 144 Wash.2d at 411–14, 27 P.3d
1149. The circumstances surrounding the
Referendum Requirement have not changed
since we stated in Walker that addressing the
requirement is premature. 124 Wash.2d at 413,
879 P.2d 920.
Perhaps the Legislature can comply with
[the Supermajority Requirement], without taking
action which will result in expenditures over the
expenditure limit, such that no referral to the
voters will occur under [the Referendum
Requirement].... The course of future events is,
at this time, purely speculative and subject to a
challenge when a specific dispute arises in
regard to a particular bill.
Id.
¶ 21 Even though there is no identifiable
legal interest harmed by the Referendum
Requirement or specific dispute, LEV believes
its challenge to the Referendum Requirement is
justiciable because this court declared a similar
provision unconstitutional in [176 Wash.2d
820]Amalgamated Transit Union Local 587 v.
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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
P.3d 608 (2000) ( ATU ). ATU, however, does
not inform the current discussion because
justiciability was explicitly not considered in
ATU. Id. at 203, 11 P.3d 762, 27 P.3d 608. The
court refused to consider whether the dispute
was justiciable because the party challenging
justiciability had failed to properly brief the
issue. Id. Granted, we noted in a footnote that
the claims in the case were justiciable, id. at 203
n. 4, 11 P.3d 762, 27 P.3d 608, but the footnote
was merely dicta. Justiciability was properly
briefed in this case, and LEV's challenge to the
Referendum Requirement is not justiciable
because no legal interest has been identified.
¶ 22 We also note that the Referendum
Requirement does not constitute a matter of
major public importance warranting review
under these circumstances. For the public
importance exception to apply, the dispute must
be ripe, Walker, 124 Wash.2d at 414, 879 P.2d
920, and, as discussed above, the Referendum
Requirement has never been triggered or
otherwise affected any legal interests.
Accordingly, the constitutionality of the
Referendum Requirement is not properly before
this court.
II. Whether the Supermajority Requirement
Violates Article II, Section 22
¶ 23 The central question remaining before
us is whether former RCW 43.135.034(1), the
Supermajority Requirement, is constitutional.
The
party
challenging
a
statute's
constitutionality “must prove that the statute is
unconstitutional beyond a reasonable doubt.”
Sch. Dists.' Alliance for Adequate Funding of
Special Educ. v. State, 170 Wash.2d 599, 605,
244 P.3d 1 (2010). This court has consistently
stated that “ ‘the legislature's power to enact a
statute is unrestrained except where, either
expressly or by fair inference, it is prohibited by
the state and federal constitutions.’ ” Wash. State
Farm Bureau Fed'n v. Gregoire, 162 Wash.2d
284, 300–01, 174 P.3d 1142 (2007) (alteration
omitted) (quoting State ex rel. Citizens Against
Tolls v. Murphy, 151 Wash.2d 226, 248, 88 P.3d
375 (2004)). Thus, the [176 Wash.2d
821]question before us is whether article II,
section 22 prohibits the legislature from
requiring a two-thirds majority vote for tax
legislation. We conclude that it does.
¶ 24 Determining whether the constitution
prohibits a particular legislative action requires
the court to first examine the plain language of
the constitutional provision at issue. Wash.
Water Jet Workers Ass'n v. Yarbrough, 151
Wash.2d 470, 477, 90 P.3d 42 (2004). The court
gives the words “their common and ordinary
meaning, as determined at the time they were
drafted.” Id. (citing State ex rel. O'Connell v.
Slavin, 75 Wash.2d 554, 557, 452 P.2d 943
(1969)). The court may look to the constitutional
history for context if there is ambiguity. Id. In
this particular case, the historical context
necessarily includes other provisions adopted
contemporaneously with article II, section 22.
¶ 25 The plain language of article II,
section 22 states in relevant part, “No bill shall
become a law unless on its final passage ...
[295 P.3d 750]
a majority of the members elected to each house
be recorded thereon as voting in its favor.” By
providing the words their ordinary meaning near
the time of ratification, the provision essentially
states that a bill cannot become a law upon any
condition less than receiving more than half the
vote. Webster's International Dictionary 1578
(1899) (defining “unless” as “[u]pon any less
condition than ...; if not”); id. at 885 (defining
“majority” as “[t]he greater number; more than
half”). In other words, if a bill has become law,
then it must have been supported by a simple
majority vote.
¶ 26 Under a commonsense understanding,
any bill receiving a simple majority vote will
become law. No language in the provision
qualifies that requirement by stating a bill needs
“at least a majority vote.” The court's decision in
Gerberding v. Munro, 134 Wash.2d 188, 207–
11, 949 P.2d 1366 (1998), supports such a
reading. In Gerberding, this court rejected the
argument
that
a
negatively
phrased
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constitutional provision merely sets a minimum
requirement to which the legislature may add.
Id. The court held that two [176 Wash.2d
822]constitutional provisions established the
exclusive constitutional qualifications for state
constitutional officers. Id. Despite the
provisions' negative phrasing,6 the court held
that the legislature could not impose additional
requirements, such as term limits. Id. at 210, 949
P.2d 1366. In reaching its decision, the court
relied on a principle favoring eligibility for
office—a principle not evident from the plain
language of the provision—and the framers'
explicit consideration and rejection of term
limits for the officers at issue. Id. at 202–04,
210, 949 P.2d 1366.
¶ 27 Gerberding can be contrasted with
Robb v. City of Tacoma, 175 Wash. 580, 587, 28
P.2d 327 (1933), where the court allowed the
legislature to add requirements to a negatively
phrased constitutional provision governing
municipal debt. Article VIII, section 6 provided,
“ ‘No [municipality] shall for any purpose
become indebted in any manner to an amount
exceeding one and one-half per centum ...
without the assent of three-fifths of the voters....
Provided further, that any [municipality], with
such assent, may be allowed to become indebted
to a larger amount.’ ” Id. at 584, 28 P.2d 327
(emphasis added) (quoting Wash. Const. art.
VIII, § 6). The court focused on the permissive
language in the final proviso and found it
“carrie[d] a very positive implication that the
legislature still has the power to fix an additional
limitation.” Id. at 587, 28 P.2d 327.
¶ 28 The State primarily relies on the
negative phrasing of article II, section 22, and
the reasoning in Robb, to claim the provision
sets a minimum voting requirement only. Article
II, section 22, however, is more like the
provision in Gerberding than the provision in
Robb. As in Gerberding, where a principle
favored the result, there is an informal principle
here favoring a simple majority vote for ordinary
[176 Wash.2d 823]legislation. Additionally, like
the constitutional history in Gerberding that
supported the outcome, the constitutional
language and history in this case illustrates that
the framers never intended ordinary legislation
to require a supermajority vote.
¶ 29 This dispute also raises constitutional
concerns not at issue in either Gerberding or
Robb—the very form and function of this state's
government. The language and history of the
constitution evince a principle favoring a simple
majority vote for legislation. The State's
proposed reading of article II, section 22 would
fundamentally alter our system of government,
and such alteration is possible only through
constitutional
amendment.
Washington's
government was founded as a representative
democracy based on simple majority rule.
SeeWash. Const. art. II, § 1 (orig. text) (“The
legislative powers shall be vested in a senate and
house of representatives.”), art. II, § 22; Kristen
L. Fraser, Method, Procedure, Means, and
Manner: Washington's Law of Law–Making, 39
Gonz. L. Rev. 447, 449–50, 480 (2004) (noting
that a simple majority is “the number of votes
ordinarily required to pass a bill”). More
importantly, the framers were particularly
[295 P.3d 751]
concerned with a tyranny of the minority. Fraser,
supra, at 449–50 (noting that the framers feared
“special interests that might capture or corrupt
public institutions”); see alsoRobert F. Utter &
Hugh D. Spitzer, The Washington State
Constitution: A Reference Guide 51 (G. Alan
Tarr ed., 2002).
¶ 30 This preference for simple majority
rule is evident from the very language of the
constitution, which required only a simple
majority vote for ordinary legislation and
reserved a supermajority vote for special
circumstances. The seven supermajority
requirements in the original constitution were all
relegated to special circumstances, not the
passage of ordinary legislation.7 These
circumstances included expelling a member of
the legislature or overriding [176 Wash.2d 824]a
veto. Wash. Const. art. II, § 9, art. III, § 12.
Thus, the framers were aware of the significance
that a supermajority vote requirement entailed
and consciously limited it to special
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circumstances; the passage
legislation is not one of those.
of
ordinary
¶ 31 When debating article II, section 22,
the framers specifically included the majority
vote requirement. The Journal of the
Washington State Constitutional Convention
1889: with Analytical Index 535–36 (Beverly
Paulik Rosenow ed., 1999). More to the point,
the framers rejected a move to exclude the
words “majority vote.” Id. at 536. They also
rejected a motion to allow a majority of those
present to pass a bill. Id. There was no
discussion of whether the legislature should be
allowed to alter this requirement. Had the
framers wished to give the legislature the ability
to alter the majority vote requirement of article
II, section 22, they could easily have included
the proviso “and under such rules as the
legislature shall prescribe” as the framers did in
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
exhaustive unless otherwise provided. Any other
reading would render the proviso in section 32
superfluous, contrary to our canons of
constitutional interpretation. Wash. Econ. Dev.
Fin. Auth. v. Grimm, 119 Wash.2d 738, 746, 837
P.2d 606 (1992) ( “constitutional provisions
should be construed so that no clause ... shall be
superfluous”).
¶ 32 Moreover, as mentioned above,
allowing a supermajority requirement for
ordinary legislation alters our system of
government. The framers of the United States
Constitution expressed as much in the Federalist
papers:
If a pertinacious minority can controul the
opinion of a majority respecting the best mode
of conducting it; the majority in order that
something may be done, must conform to the
views of the minority; and thus the sense of the
smaller number will over-rule that of the greater.
[176 Wash.2d 825]The Federalist No. 22, at 141
(Alexander Hamilton) (Jacob E. Cooke ed.,
1961); accordThe Federalist No. 58 (James
Madison). In the same way, a supermajority
requirement for ordinary legislation would allow
special interests to control resulting legislation.
While the current Supermajority Requirement
applies only to tax increases, if carried to its
logical conclusion, the State's argument could
allow all legislation to be conditioned on a
supermajority vote. In other words, under the
State's reasoning, a simple majority of the
people or the legislature could require particular
bills to receive 90 percent approval rather than
just a two-thirds approval, thus essentially
ensuring that those types of bills would never
pass. Such a result is antithetical to the notion of
a functioning government and should be rejected
as such. Cf. ATU, 142 Wash.2d at 242, 11 P.3d
762, 27 P.3d 608 (rejecting an argument because
“[s]uch a result would be inconsistent with the
representative form of government in this
state”).
¶ 33 Finally, analogous authority from
other states supports reading article II, section
22 as establishing both a minimum and a
maximum vote requirement. Although the State
argues the court should not consider authority
from other states, we follow the precedent of
both Gerberding and Robb where the court
looked to such authority before reaching its
conclusion.
[295 P.3d 752]
Gerberding, 134 Wash.2d at 206–08, 949 P.2d
1366;Robb, 175 Wash. at 588–92, 28 P.2d 327.
¶ 34 The most analogous case, Alaskans for
Efficient Government, Inc. v. State, held that a
negatively phrased constitutional provision
prohibited the legislature from requiring more
than a simple majority vote for bills. 153 P.3d
296, 299, 302 (Alaska 2007). The court noted
that the negative phrasing of a constitutional
provision does not automatically warrant
distinguishing it from positively phrased
provisions. Id. at 300–01 (citing Powell v.
McCormack, 395 U.S. 486, 538–39, 89 S.Ct.
1944, 23 L.Ed.2d 491 (1969); Gerberding, 134
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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.
Meyer, 2004 WY 49, 88 P.3d 1050, 1070–71).
The court also noted that every other state, [176
Wash.2d 826]except for Washington, that has
passed a supermajority vote requirement has
done so through constitutional amendment, thus
indicating it is a subject properly addressed by
constitutional amendment, not legislation. Id. at
299–300 & n. 12 (listing 13 states that have
adopted supermajority requirements through
constitutional amendment).
¶ 35 Additional support is found in a
California Court of Appeal case. The court held
that a negatively phrased constitutional
provision prevented local governments from
requiring a two-thirds majority vote for local tax
legislation. Howard Jarvis Taxpayers Ass'n v.
City of San Diego, 120 Cal.App.4th 374, 392, 15
Cal.Rptr.3d 457 (2004). Although the case
involved local government authority, the court
still addressed whether a negatively phrased
constitutional provision could prohibit requiring
more than simple majority vote for the passage
of certain legislation. The court concluded that
the “constitutional language clearly and
unambiguously ... requires only a majority vote,
and a two-thirds vote cannot be required.” Id.
¶ 36 Ultimately, article II, section 22
requires that bills receive a majority vote before
they can become a law. Article II, section 22 is
exhaustive under an ordinary reading of the
provision. The Supermajority Requirement
unconstitutionally amends the constitution by
imposing a two-thirds vote requirement for tax
legislation. More importantly, the Supermajority
Requirement substantially alters our system of
government, thus enabling a tyranny of the
minority. The framers were aware of the
extraordinary nature of a supermajority
requirement as evidenced by their decision to
use it only under special circumstances. The
passage of ordinary legislation is not one of
those circumstances. If the people and the
legislature wish to adopt such a requirement,
they must do so through constitutional
amendment. We also note that our holding is
supported by other jurisdictions that have
addressed this issue. Accordingly, we affirm the
trial court's decision.
[176 Wash.2d 827]III. Severability
¶ 37 Next, we must determine whether the
unconstitutional Supermajority Requirement is
severable from the remaining provisions of
former RCW 43.135.034. Whether provisions
should be severed depends on
“whether
the
constitutional
and
unconstitutional provisions are so connected ...
that it could not be believed that the legislature
would have passed one without the other; or
where the part eliminated is so intimately
connected with the balance of the act as to make
it useless to accomplish the purposes of the
legislature.”
State v. Abrams, 163 Wash.2d 277, 285–86, 178
P.3d 1021 (2008) (alteration in original)
(internal quotation marks omitted) (quoting Hall
v. Niemer, 97 Wash.2d 574, 582, 649 P.2d 98
(1982)). Because former RCW 43.135.034 was
passed by initiative, we must determine if the
voters, not the legislature, intended severability.
See McGowan v. State, 148 Wash.2d 278, 296,
60 P.3d 67 (2002).
¶ 38 Here, the complete text of I–1053
contained a severability clause stating, “If any
provision of this act or its application to any
person or circumstance is held invalid, the
remainder of the act or the application of the
provision to other persons or circumstances is
not affected.” Laws of 2011, ch. 1, § 7. Where
the initiative passed by the people contains a
severability clause, the court may view this as “
‘conclusive as to the circumstances asserted’
unless it can be said that the declaration is
obviously false on its
[295 P.3d 753]
face.” McGowan, 148 Wash.2d at 296, 60 P.3d
67 (quoting State v. Anderson, 81 Wash.2d 234,
239, 501 P.2d 184 (1972)). LEV claims it is
obviously false because the intent of the
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League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
initiative was to impose both the Supermajority
Requirement and the Referendum Requirement.
¶ 39 However, the fact that voters intended
to impose both requirements is inconsequential.
Anytime a bill or initiative contains multiple
provisions, it can be [176 Wash.2d 828]argued
that the legislators or voters intended to pass
multiple provisions. Whether those provisions
were intended to be severable is a different
inquiry. More importantly, the voters intended
the initiative to make passing tax increases more
difficult. Laws of 2011, ch. 1, § 1 (“These
important policies ensure that taking more of the
people's money will always be an absolute last
resort.”). The Referendum Requirement hinders
the legislature's ability to pass tax increases in a
different way from the Supermajority
Requirement.
Thus,
the
Referendum
Requirement serves the voters' intent even
absent the Supermajority Requirement. There is
no reason to believe the voters passed the
Referendum Requirement only because it was
accompanied by the Supermajority Requirement.
Consequently,
the
unconstitutional
Supermajority Requirement is severable from
the remainder of the statute and the Referendum
Requirement stands.
CONCLUSION
¶ 40 As Justice Robert F. Utter affirmed,
“Both history and uncontradicted authority make
clear that ‘ “[i]t is emphatically the province and
duty of the judicial department to say what the
law is.” ’ ” In re Salary of Juvenile Dir., 87
Wash.2d 232, 241, 552 P.2d 163 (1976)
(alteration in original) (quoting United States v.
Nixon, 418 U.S. 683, 703, 94 S.Ct. 3090, 41
L.Ed.2d 1039 (1974) (quoting Marbury, 5 U.S.
(1 Cranch) at 176)). Today we hold that article
II, section 22 prohibits either the people or the
legislature from passing legislation requiring
more than a simple majority for the passage of
tax legislation—or any other ordinary
legislation. Such a result is supported by article
II, section 22's plain language and the language
from surrounding provisions, section 22's
history, and current case law. Accordingly, we
affirm the trial court's decision with respect to
the Supermajority Requirement. But we reverse
the trial court's decision as it relates to the
Referendum Requirement because we hold the
dispute is not justiciable. We [176 Wash.2d
829]therefore do not reach the merits of the
Referendum Requirement's constitutionality.
¶ 41 Our holding today is not a judgment
on the wisdom of requiring a supermajority for
the passage of tax legislation. Such judgment is
left to the legislative branch of our government.
Should the people and the legislature still wish
to require a supermajority vote for tax
legislation, they must do so through
constitutional
amendment,
not
through
legislation.
WE
CONCUR:
MADSEN,
C.J.,
CHAMBERS,
J.P.T.,
FAIRHURST,
WIGGINS and GONZÁLEZ, JJ.
C. JOHNSON, J. (dissenting).
¶ 42 In its eagerness to embroil itself in the
political arena, the majority abandons any
semblance of judicial restraint to declare the
process of legislative enactment constitutionally
infirm. For the past two decades, the people of
this state have repeatedly voted for the
supermajority provision, as has the legislature
when no initiative occurred. The majority hardly
recognizes, let alone analyzes, that this court has
been repeatedly asked to step in and decide this
issue, and we have consistently held and rejected
that invitation. In Walker v. Munro, 124
Wash.2d 402, 879 P.2d 920 (1994), in
Futurewise v. Reed, 161 Wash.2d 407, 166 P.3d
708 (2007), and again in Brown v. Owen, 165
Wash.2d 706, 206 P.3d 310 (2009), we rejected
the invitation to engage in this political dispute,
exercising the wisdom, restraint, and temperance
not to step outside the court's constitutional
authority. Evidently something has changed,
though the majority does not tell us what, to
cause it to abandon these limiting principles and
chart a new course for the court to more actively
engage in the political process. This change is
both unwise and unprecedented.
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¶ 43 The majority summarily claims that
since, procedurally, this case involves review
[295 P.3d 754]
of a declaratory judgment that makes a
difference. But this procedural distinction[176
Wash.2d 830]does not make sense and is
unsupported
by any
logical
analysis.
Justiciability questions are broader and more
important than the specific mechanism used to
get a case in front of the court. Surely more than
this distinction is required to disregard 20 years
of precedent. The majority does not tell us why
in this case the issue must suddenly be answered
when, in our prior cases, addressing this exact
issue, we concluded that any resolution of the
dispute required a legislative solution. Concepts
of judicial restraint, justiciability, and separation
of powers and issues raising political questions
do not change based on the type of proceeding.
¶ 44 Although these doctrines do somewhat
overlap, they have been applied in those cases
where the issue raised required a determination
of whether and when courts should decide an
issue. These concepts of judicial restraint are not
new or remarkable and have been applied
consistently in cases raising the exact same issue
presented here.
¶ 45 The majority anchors its cursory
analysis of justiciability by focusing on
Substitute House Bill (SHB) 2078's failure to
pass. Substitute H.B. 2078, 62d Leg., 1st Spec.
Sess. (Wash. 2011). However, the bill focused
on by the majority was later largely passed
through the legislative process and enacted into
law. SHB 2078 dealt with closing certain tax
loopholes. The problem with the majority's
assertion is that a core component of SHB 2078
did pass. The legislature instead enacted
Engrossed Senate Bill (ESB) 6635, 62d Leg., 2d
Spec. Sess. (Wash. 2012), which, in substantive
effect, contained the exact language of SHB
2078. Compare SHB 2078, § 2(3)(a)-(e), with
ESB 6635, § 102(3)(a)-(e). The majority does
not explain, presumably because no credible
explanation exists, how the enactment of a law
supports its conclusion that the political process
in that enactment is constitutionally infirm.
¶ 46 When this bill was first proposed, the
house majority vote to enact SHB 2078 could
have resulted in several outcomes, as is always
the political reality. The speaker could [176
Wash.2d 831]have ruled it passed, and it then
would go to the senate, which could have passed
it, rejected it, or revised it. If it passed both the
house and the senate and was submitted to the
governor, it could have been signed into law or
vetoed. No certainty exists as to what ultimately
would have occurred in the political legislative
process had the speaker ruled “favorably.” What
did happen in this case is that the “essence” of
SHB 2078 went through the legislative process
and was later enacted as part of ESB 6635. The
majority does not tell us or acknowledge in any
way how the passage of these provisions can
support a finding of justiciability based on the
same provisions' failure to pass. At the very
least, that passage moots any dispute concerning
how votes were counted or how the speaker
ruled on SHB 2078.
¶ 47 The legislative process works
precisely this way, and any disgruntled legislator
can pursue a legislative remedy. When the
speaker ruled against the bill, a member could
have challenged that decision and ask that it be
overturned, which may require majority vote.
The proposal could have, as here, resurfaced as
part of a different proposal. The proposal might
have been relegated by its sponsors into the
political process and debate and prioritized as
part of that process. The point is that this effort
to enact a legislative proposal has consistently
been recognized by this court as a political
legislative action, in which courts have not
interfered, nor should they. Because of the
multitude of possible outcomes, the essence of
the political legislative process involves many
competing political choices into which courts
should not intrude to act as referee. It should be
further noted that the majority's decision does
absolutely nothing that affects SHB 2078,
which, as indicated, later passed.
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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
justiciable, the majority incredibly cites the
“completely nullified” statement from the
United States Supreme Court decision in Raines
v. Byrd, 521 U.S. 811, 823, 117 S.Ct. 2312, 138
L.Ed.2d 849 (1997). Because the bill was
enacted, the [176 Wash.2d 832]majority's claim
is simply wrong that the legislators' votes were “
‘completely nullified.’ ” Majority at 748
(quoting Raines, 521 U.S. at 823, 117 S.Ct.
2312). Moreover, the majority does not
acknowledge
[295 P.3d 755]
that in Raines the United States Supreme Court
rejected this argument. Raines involved a
challenge brought by members of Congress
claiming the line-item veto, which gave the
president a “veto-type” power over acts passed
by
Congress,
effectuated
a
complete
nullification of the votes supporting passage of
those acts. In concluding that the Court lacked
jurisdiction to decide the dispute, it recognized
two principles that directly apply to the
individual legislators here. First, the Court found
that the individual members of Congress could
not represent the interests of Congress itself.
Second, the court recognized that, as here, an
adequate political remedy existed to resolve the
dispute, a principle which our cases have
consistently held. Raines, 521 U.S. at 824, 829,
117 S.Ct. 2312;see Brown, 165 Wash.2d 706,
206 P.3d 310;Walker, 124 Wash.2d 402, 879
P.2d 920. The majority misrepresents the
holding of Raines, which, if thoroughly
reviewed, rejects the majority's position here.
¶ 49 Similarly, the majority's claim that the
determination of justiciability hinges on the
nature of the proceedings, declaratory action
versus original jurisdiction, lacks foundation and
misunderstands the concept of justiciability.
“Justiciability” is defined as “[t]he quality or
state of being appropriate or suitable for
adjudication by a court.” Black's Law Dictionary
943 (9th ed. 2009). In determining justiciability,
it makes no difference where or how a claim is
instituted. Our prior cases do not support any
distinction, and the majority (absent the bare
assertion that a distinction exists) cites no case
or authority where such a difference was
recognized. No such cases exist.
¶ 50 If the issue in this case looks
somewhat familiar, we recently decided this
exact issue. In Brown, we rejected a challenge to
a decision made by the lieutenant governor that
a bill failed to pass by not receiving the required
supermajority vote, which is the precise claim
brought here. [176 Wash.2d 833]We extensively
discussed and analyzed the history of the
supermajority requirement. In that case we
recognized that, under the senate rules, the
decision could have been overruled by a simple
majority vote. We correctly found that this type
of dispute involved the legislative process and
was a political question and, utilizing a
separation of powers analysis, we would not
intervene to referee. We have consistently and
wisely embraced this approach since this
supermajority restriction was first challenged in
Walker. The majority makes no meaningful
attempt to discuss, analyze, or distinguish the
Brown case or any of our prior case holdings
from the issue again raised here.
¶ 51 In addition to the comprehensive
discussion and analysis in Brown, our rulings
have been consistent on this issue. The list of
cases includes Walker and Washington State
Farm Bureau Federation v. Gregoire, 162
Wash.2d 284, 174 P.3d 1142 (2007). These
cases are not unique but are instead consistent
with the results in many other cases. State v.
Manussier, 129 Wash.2d 652, 670, 921 P.2d 473
(1996) (political questions are not within the
judicial power to determine); Roehl v. Pub. Util.
Dist. No. 1 of Chelan County, 43 Wash.2d 214,
238, 261 P.2d 92 (1953) (political questions lie
outside the cognizance of the judiciary); see also
Gilbreath v. Pac. Coast Coal & Oil Co., 75
Wash.2d 255, 259, 450 P.2d 173 (1969)
(taxation issues are not within the purview of the
courts in the absence of an attack upon the
constitutionality of the legislation involved);
Skidmore v. Fuller, 59 Wash.2d 818, 822, 370
P.2d 975 (1962) (the truth or falsity of the
allegations in a recall demand is a political
question to be determined by the voters); Capitol
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League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
Hill Methodist Church v. City of Seattle, 52
Wash.2d 359, 368, 324 P.2d 1113 (1958) (the
power to vacate streets is a political function,
which, in the absence of collusion, fraud, or
interference with a vested right, will not be
judicially reviewed); State ex rel. Donohue v.
Coe, 49 Wash.2d 410, 417, 302 P.2d 202 (1956)
(determination of questions arising incidental to
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
making the question judicial); State ex rel. York
v. Bd. of Comm'rs, 28 Wash.2d 891, 911, 184
P.2d 577 (1947) (protection of the public from
unreasonable uses of the highways is a political
question, not a judicial one). The majority never
mentions
[295 P.3d 756]
these cases or acknowledges why these holdings
are being abandoned.
¶ 52 The majority also fails to apply or
meaningfully analyze the factors our cases
require when determining justiciability. We have
defined a “justiciability controversy” as
“(1) ... an actual, present and existing
dispute, or the mature seeds of one, as
distinguished from a possible, dormant,
hypothetical, speculative, or moot disagreement,
(2) between parties having genuine and
opposing interests, (3) which involves interests
that must be direct and substantial, rather than
potential, theoretical, abstract or academic, and
(4) a judicial determination of which will be
final and conclusive.”
To–Ro Trade Shows v. Collins, 144 Wash.2d
403, 411, 27 P.3d 1149 (2001) (alteration in
original) (quoting Diversified Indus. Dev. Corp.
v. Ripley, 82 Wash.2d 811, 815, 514 P.2d 137
(1973)). We have elaborated that “the four
justiciability factors must ‘coalesce’ to ensure
that the court will be rendering a final judgment
on an actual dispute between opposing parties
with a genuine stake in the resolution.” To–Ro
Trade Shows, 144 Wash.2d at 411, 27 P.3d 1149
(quoting Diversified Indus. Dev. Corp., 82
Wash.2d at 815, 514 P.2d 137). None of the
factors are satisfied here. As indicated, the first
factor is not satisfied because the dispute over
SHB 2078 no longer exists as it later passed
under ESB 6635 and became law. Any current
dispute is hypothetical at this time and certainly
moot as to SHB 2078.
¶ 53 As to the second factor, perhaps an
argument can be envisioned that the parties have
opposing interests, but no genuine dispute
actually exists concerning a current situation.
Any disagreement between the parties involves
what [176 Wash.2d 835]might possibly occur in
the future in the legislative process. Because of
this, even assuming the second factor is
satisfied, the third factor is not because we can
only speculate as to what bills may be pursued
sometime in the future. Based on these factors,
justiciable controversy does not exist in this
case.
¶ 54 The fourth factor could be established
under the majority's holding but, predictably, the
future dispute over the raising of taxes and
political choices about the appropriation of
revenues involves ongoing political discourse,
which this court lacks power to affect or
influence. Under any approach, the dispute is, at
best, possible to recur in the future.
¶ 55 Whether the justiciability factors are
thoroughly analyzed or the holdings of our prior
cases are applied and followed, this case is
nonjusticiable. The decision of the superior court
should be reversed and the matter remanded
with direction to dismiss.
J.M. Johnson and Stephens, JJ., joined.
J.M. JOHNSON, J. (dissenting).
¶ 56 Article II of our constitution, as
modified by Amendment 7 to authorize
initiatives and referenda, requires action on the
part of the legislature or a direct vote of the
people to resolve legislative political issues such
as taxation. The majority ironically overrides our
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constitution and prior case law to enforce an
invented policy concern: the fear that laws
requiring a supermajority to raise taxes permit a
“tyranny of the minority.” Majority at 752.
There is, of course, no historical evidence
justifying such a concern in Washington. With
regard to taxation, the historical record in this
state is to the contrary; taxes often need a special
vote of the people to qualify or pass. School
levies and special assessments for [176 Wash.2d
836]special purpose districts are only a few
examples.1See, e.g.,Const. art. VII, § 2(a)
(excess levies require “three-fifths of the voters
... [and/or] the number of voters voting ‘yes' on
the proposition shall constitute three-fifths of a
number equal to forty percent of the total
number of voters voting in such taxing district at
the last preceding general election....”); Gordon
v. Lance, 403 U.S. 1, 7, 91 S.Ct. 1889, 29
L.Ed.2d 273 (1971) (upholding a supermajority
requirement).
¶ 57 There is considerable irony in today's
decision given the majority's claimed fear of
tyrannical minority control. Through a single
[295 P.3d 757]
decision, a court of nine people (actually only
six votes) is imposing their policy preference
over that of the 1,575,655 voters who passed
Initiative 1053 (I–1053) and the millions who
qualified and passed similar tax protections.2,3 I
regretfully observe that this court has become
the tyrannous minority it purports to guard
against. This violation of our constitution can
only detract from public respect for this court
and its decisions. I therefore dissent.4
¶ 58 The majority opinion suffers from
three obvious and grave infirmities. First, the
majority's historical interpretation[176 Wash.2d
837]of the Washington Constitution and its
separation of powers incorrectly place the court
in a position of preeminence over the legislature
and the people. Second, the majority's plain
language reading of article II, section 22 is
contrived and illogical. It will be repeatedly
observed that our founders could have written
article II, section 22 to read as follows: “Every
bill attaining a simple majority shall become
law.” They choose not to and, as is further
explained below, were aware of other states'
constitutional provisions in existence at the time
that more clearly establish a simple majority
vote as a ceiling. Third, the majority's historical
analysis of article II, section 22 ignores the only
evidence this court has ruled admissible to show
our framers' intent. This evidence conclusively
establishes that the framers intended this section
to create a quorum requirement for bill passage.
¶ 59 This state's geographical size and the
slow means of travel available at that time could
enable legislators from areas closer to the capitol
to meet and pass legislation before legislators
could arrive from areas located far away. Snowclogged mountain passes were likely a common
source of this problem. Thus, adopting the
simple majority language would not protect the
citizens of this state living in remote areas. The
framers had to adopt article II, section 22 as it is
currently written in order to secure a quorum
requirement and protect voters living in the far
corners of our state. See Proceedings of the
Constitutional Convention, Seattle Times, Aug.
9, 1889, at 1, inWashington State Constitutional
Convention 1889: Contemporary Newspaper
Articles (Marian Gallagher Law Library 1998)
(further discussed infra ).
[176
Wash.2d
838]ANALYSISI.
The
Washington State Constitution First and
Foremost Serves to Protect Individual Rights
and Private Property
¶ 60 Incredibly, this six-vote majority
overrides the votes of an overwhelming majority
of Washington voters out of an invented concern
that laws like I–1053 could impose a “tyranny of
the minority.” Majority at 752. This policy
concern is better directed at opposing a
constitutional amendment that would establish a
permanent two-thirds majority requirement than
it is for a court decision overturning an initiative
that can be changed by the legislature or be
periodically renewed by a majority of the voters.
¶ 61 In the Federalist papers, the founding
fathers of our nation briefly addressed their
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desire to guard against minority control in a few
specific policy areas. SeeThe Federalist No. 22,
at 141–42 (Alexander Hamilton)
[295 P.3d 758]
(Jacob E. Cooke ed., 1961); The Federalist No.
58, at 392 (James Madison) (Jacob E. Cooke ed.,
1961). The majority's myopic reliance on this
narrow concern, however, is unfounded.
¶ 62 First, historical accounts indicate that
the framers of the Washington Constitution had
goals and anxieties distinct from those of the
framers of the United States Constitution. Above
all, the Washington Constitution is predicated on
the protection of individual rights, including
those related to property, which is clearly
affected by taxes. The framers declared the
primacy of individual rights in their vision of the
role of state government in the very first section
of the constitution: “All political power is
inherent in the people, and governments derive
their just powers from the consent of the
governed, and are established to protect and
maintain individual rights.” Const. art. I, § 1. A
key component of that protection is the direct
influence on state government the constitution
affords voters. Second, more so than any
contrived “tyranny of the minority,” the framers
[176 Wash.2d 839]sought to prevent corruption
and special interests from controlling state
government. Again, the framers and those who
have drafted constitutional amendments 7 and 8
thought that this was best accomplished by
allowing the voters to have more of a direct say
in the management of their government, not less.
¶ 63 Washington's framers forged a distinct
path predicated on mistrust of government and
the primacy of individual rights. The citizens of
Washington were not alone in these views
toward
government.
The
Washington
Constitution was adopted during a period of
national skepticism toward legislative bodies
collectively referred to as “populis[m].” Robert
F. Utter & Hugh D. Spitzer, The Washington
State Constitution: A Reference Guide 50–51
(2002).
¶ 64 Even after the ratification of a
constitution especially designed to limit
government and promote individual rights,
Washingtonians have felt the need to
periodically
reinforce
popular
control.
Legislators (and courts) sometimes forget article
I, section I: it is the citizens of this state that
empower the legislature. The power is vested in
the people. Consequently, in 1912, out of a
concern that individual rights needed further
protection from elected (and sometimes corrupt)
officials, Washingtonians passed Amendment 7,
which established the power of initiative and
referendum. Passed concurrently, Amendment 8
allowed for the recall of all elected officers
except judges.5Utter & Spitzer,supra, at 50. To
this day, the powers of initiative, referendum,
and recall vest in the people the ability to hold
government
accountable.
The
majority
essentially contends that because our nation's
founders expressed their concerns about
minority control in a few areas of national
concern, Washington's framers intended to keep
Washington voters from limiting the power of
the legislature to tax. Given Washington's
unique reliance on popular governance, the
majority's contention is unfounded.
[176 Wash.2d 840]¶ 65 Historical records
reveal that the nation's founders' main fear was
that some states could gain disproportionate
power in Congress through bicameralism.
SeeThe Federalist No. 58, at 392 (James
Madison) (Jacob E. Cooke ed., 1961). In
Federalist No. 22, quoted in the majority
opinion, Alexander Hamilton expressed the
additional concern that a minority of the states
might be able to prevent the nation from making
peace during wartime. The Federalist No. 22, at
141–42 (Alexander Hamilton) (Jacob E. Cooke
ed., 1961). Fortunately, history has proved these
concerns to be overstated. Indeed, this has never
been a problem. Certainly, these particular
national issues were irrelevant to the framers of
our state constitution. Washington's framers did
not have to consider national security or
congressional decision making when designing
Washington's government. Washington's framers
instead faced more pressing local and personal
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issues relating to private property, individual
rights, and corruption in government.
¶ 66 In fact, the prospect of a tyranny (or
corruption) of the majority was a far more
pressing concern for drafters of a state
constitution. While the United States
Constitution
[295 P.3d 759]
was created to grant limited and enumerated
powers to the federal government, the
Washington State Constitution was created to
limit the broader, nearly plenary, police power
of the state. Utter & Spitzer,supra, at 2. In 1889,
the framers were justifiably worried that a
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
Constitution of the State of Washington, 4 Wash.
Hist. Q.. 227, 250 (1913) (“These restrictions on
legislative action then, we may conclude, are
indicative of the onward march of true
democracy, for, of all oppressive and unjust
instruments of government the legislature is the
greatest
and
most
irresponsible.”)
A
supermajority requirement for the passage of
legislation is [176 Wash.2d 841]a powerful tool
for combating abuse by a short-term majority
and addresses the concerns of the framers.6
¶ 67 Furthermore, providing such
protection against taxation is affirmed in express
United States Supreme Court precedent. See
Gordon, 403 U.S. at 7, 91 S.Ct. 1889 (holding
that state constitutional requirement of 60
percent of voters to approve bonded
indebtedness and approve the tax increase to pay
for the debt did not violate equal protection even
though each vote who favored taxes would have
a proportionately smaller impact on the outcome
of the election than those opposed).7
¶ 68 In Federalist No. 10, James Madison
directly noted that taxation is a tempting tool for
a majority to use in its abuse of a minority:
The apportionment of taxes on the various
descriptions of property, is an act which seems
to require the most exact impartiality; yet, there
is perhaps no legislative act in which greater
opportunity and temptation are given to a
predominant party, to trample on the rules of
justice. Every shilling with which they overburden the inferior number, is a shilling saved to
their own pockets.
The Federalist No. 10, at 60 (James Madison)
(Jacob E. Cooke ed., 1961). This idea was
echoed by Chief Justice John Marshall when he
penned the axiomatic words “the power to tax
involves the power to destroy.” McCulloch v.
Maryland, 17 U.S. (4 Wheat.) 316, 431, 4 L.Ed.
579 (1819).
¶ 69 The majority correctly notes that
Washington's framers were familiar with
supermajority requirements and specifically
employed their use seven times in the
constitution. See majority at 751 n. 7. Absolutely
no evidence exists, however, to suggest that the
framers intended those [176 Wash.2d 842]uses
to be exclusive. There is certainly no
constitutional provision to that effect.
¶ 70 In Federalist No. 51, James Madison
wrote, “In framing a government which is to be
administered by men over men, the great
difficulty lies in this: you must first enable the
government to controul the governed; and in the
next place, oblige it to controul itself.” The
Federalist No. 51, at 349 (James Madison)
(Jacob E. Cooke ed., 1961). Through the
initiative process, the voters of this state placed a
limitation on the legislature's power to tax,
which fully accords with our state constitution.
This court's interference today unlawfully
invalidates a legitimate action of the people of
this state under the initiative power. SeeConst.
art. II, § 1 (“[T]he people reserve to themselves
the power to propose bills, laws, and to enact or
reject the same at the polls, independent of the
legislature, and also reserve power, at their own
option, to approve or reject at the polls any act,
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item, section, or part of any bill, act, or law
passed by the legislature.”)
II. The Plain Language of Article II, Section
22 Allows the People to Institute Supermajority
Requirements Through Initiative
¶ 71 The majority would rewrite the plain
language of article II, section 22 to mean
[295 P.3d 760]
that “any bill receiving a simple majority vote
will become law.” Majority at 750. This reading
defies logic and assumes the framers were
incapable of expressing themselves clearly.
¶ 72 Article II, section 22 reads, “No bill
shall become a law unless ... a majority of the
members elected to each house be recorded
thereon as voting in its favor.” Const. art. II, §
22. This section establishes the principle that
any vote less than a majority is not enough to
pass a bill. Put another way, this language
describes the circumstances under which a bill
does not pass. The likely frequent problem of
delay in arriving from across the state for the
legislative sessions was anticipated. Snowblocked passes were common, travel [176
Wash.2d 843]was hard and slow, and the likely
impact fell directly on legislators from eastern
Washington.
¶ 73 Had the framers wished to require only
a simple majority vote for passage, they could
have worded the section to accomplish this.
Wording as simple as “Every bill attaining a
simple majority shall become a law” would have
sufficed. In fact, the framers could have modeled
such a simple provision after a number of other
states' constitutions in existence at that time.
Notably, Washington's framers drew from the
Indiana Constitution, which contains a provision
much more akin to a voting floor and ceiling
than does our constitution. See Arthur S.
Beardsley, Sources of the Washington State
Constitution, in 2011–2012 Legislative Manual
386. Article IV, section 25 of Indiana's 1851
constitution reads: “A majority of all the
members elected to each House, shall be
necessary to pass every bill or joint resolution;
and all bills and joint resolutions so passed, shall
be signed by the Presiding Officers of the
respective Houses.” This language has not been
amended and remains in Indiana's constitution
today.
¶ 74 Indiana's article IV, section 25 stands
in stark contrast to Washington's article II,
sections 22 and 32, which read, “No bill shall
become a law unless ... a majority of the
members elected to each house be recorded
thereon as voting in its favor [and][n]o bill shall
become a law until the same shall have been
signed by the presiding officer of each of the
two houses.” Const. art. II, §§ 22, 32.8
Washington's language, worded in the negative,
describes only the circumstances under which a
bill will not become a law. These include not
gaining a majority vote and not being signed by
the presiding officers. In contrast, Indiana's
positively worded provision provides that all
bills gaining a majority shall be signed by the
presiding officers. Having derived 7 sections
directly from the Indiana Constitution and
creating 10 others with marked similarities, the
Washington framers could have [176 Wash.2d
844]written a positively worded provision
similar to Indiana's article IV, section 25. See
Beardsley, supra, at 387. They did not by
choice. We must presume that the words were
deliberately chosen by the framers to effectuate
their desired goals. The voters read and ratified
what was written.
¶ 75 Importantly, the majority makes
another logical error in order to reach their
rewrite of article II, section 22. They explain,
“In other words, if a bill has become law, then it
must have been supported by a simple majority
vote.” Majority at 750. The next sentence reads,
“Under a commonsense understanding, any bill
receiving a simple majority vote will become
law.” Id. These two sentences present a textbook
example of a logical fallacy: they confuse
necessary and sufficient conditions. The
majority is correct, a simple majority is
necessary for the passage of a bill. However, the
majority is wrong when it contends that just
because a simple majority is necessary, it is also
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always sufficient. The majority has obviously
forgotten abstentions or “present” votes.
Furthermore, the confusion of necessary and
sufficient conditions defies basic rules of logic
and provides support for the majority to
misinterpret the plain language of article II,
section 22 as written by its founders and ratified
by the state. See majority at 749.
¶ 76 The legislature has itself relied upon
the plain language of article II, section 22 to
affirm supermajority requirements and has
specifically done so with regard to taxes.
[295 P.3d 761]
For example, Initiative 601 (I–601), originally
enacted in 1993, which created a two-thirds
supermajority requirement for raising taxes, was
codified at chapter 43.135 RCW (the Taxpayer
Protection Act or TPA). See Brown v. Owen,
165 Wash.2d 706, 712, 206 P.3d 310 (2009).
Since then, “ ‘[t]he TPA has been revised,
amended, and reenacted many times.’ ” Id. at
713, 206 P.3d 310 (quoting Wash. State Farm
Bureau Fed'n v. Gregoire, 162 Wash.2d 284,
292, 174 P.3d 1142 (2007)). The legislature
“reenacted and reaffirmed” Initiative 601 (I–
601) in 1998. Laws of 1998, ch. 321, § 14. The
legislature later strengthened portions of the
TPA, again reenacting [176 Wash.2d 845]and
reaffirming it before finally temporarily
suspending some of its requirements. Brown,
165 Wash.2d at 713, 206 P.3d 310. The
majority's holding today implies that the history
of the TPA shows frequent unconstitutional
legislative action. Unlike the majority, I presume
that the legislators have acted in accordance with
their oaths of office to uphold the state
constitution. Given the plain language of article
II, section 22, I am confident in this conclusion.
III. The History Surrounding Article II,
Section 22 Shows that the Section Simply
Establishes a Quorum Requirement
¶ 77 The majority opinion disregards
historical evidence that clearly establishes that
the framers intended to create a quorum
requirement,
not
prospectively
prevent
supermajority requirements. See Proceedings of
the Constitutional Convention,Seattle Times,
Aug. 9, 1889, at 1. The proceedings of
Washington's constitutional convention were
recorded. The members of the convention
recorded summaries of motions and votes in the
“Minutes of Proceedings.” Court reporters did
take shorthand notes but no appropriation
covered the cost of transcribing the shorthand
notes and they were destroyed. The Journal of
the Washington State Constitutional Convention
1889: With Analytical Index, at vi-vii (Beverly
Paulik Rosenow ed., 1999).
¶ 78 We have previously recognized, in the
absence of transcripts, we must rely on the
proceedings of the convention as recorded in
newspaper articles published at the time.
Fortunately, these articles remain as an
important tool to ascertain the intent of the
framers. See Witters v. Comm'n for the Blind,
112 Wash.2d 363, 385, 771 P.2d 1119 (1989)
(“[T]his court has used contemporary
newspapers' accounts of the state constitutional
convention to supplement the official minutes
since no verbatim record of the convention
exists.” (citing Yelle v. Bishop, 55 Wash.2d 286,
293, 347 P.2d 1081 (1959))).
¶ 79 The minutes of the convention indicate
that there were two relevant motions concerning
article II, section 22:
[176 Wash.2d 846]Motion: Turner moved
that the words “majority vote” be [ ] stricken.
Action: Motion lost.
Motion: Power moved to insert a provision
that a majority of those present could pass a bill.
Action: Motion lost.
The Journal of the Washington State
Constitutional Convention 1889, supra, at 536.
These motions and rulings were published in
both the Seattle Times and the Tacoma Ledger.
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¶ 80 The Seattle Times article from August
9, 1889, describes the first motion: “Turner
moved to strike out the provision that a majority
vote of the members elected be necessary to pass
a bill. The motion was lost and the section
passed.” Proceedings of the Constitutional
Convention,Seattle Times, Aug. 9, 1889, at 1.
This article provides a key piece of information
that is otherwise left out of the minutes: namely,
that the debate surrounding article II, section 22
was whether the majority of the members elected
could pass a bill, as opposed to simply the
majority of members present.
¶ 81 This is further supported by the second
motion, to insert a provision that a majority of
those present could pass a bill. This motion also
failed, and the article II, section 22 controlling
today was enacted. When read in this light,
article II, section 22 is clearly and unequivocally
a quorum requirement.
¶ 82 That article II, section 22 is a quorum
requirement is understandable given the
historical context within which the framers were
[295 P.3d 762]
operating. As I noted before, in 1889, the state
was still relatively undeveloped, rendering travel
difficult
and
unexpected
delays
not
uncommon—storm- or snow-closed passes have
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.
Because the debate surrounding article II,
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
¶ 83 The majority disregards the
importance of individual rights as the
centerpiece for the state constitution and our
populist roots; illogically construes the plain
language of article II, section 22; and fails to
consider historical evidence that establishes that
the provision simply sets out a quorum
requirement. The supermajority requirement
created by I–1053 in no way violates our state
constitution.
¶ 84 If the history of this great state can
teach us anything, it is this: the power of the
people will prevail. If the legislature passes a tax
the people oppose, the people will find a way to
repeal it. That “way” may include throwing out
legislators or using other article II remedies. In
an even more commanding exercise of their
power, the people may choose to enact a
constitutional
amendment
requiring
a
supermajority to pass taxes. The changes in the
way our state values property and limits levies
followed a similar history. Consistent with the
spirit and history of our Washington
Constitution, I am sure democracy will carry the
day; the voters will not be denied their rights.
¶ 85 The framers of our constitution, and
the electors who ratified it and then added the
initiative and referendum as additional ways for
the people to control the legislature, would be
appalled by this court's blatant rewrite of our
constitution. I agree with our framers and the
voters who ratified article II, section 22, and
therefore dissent.9
[176 Wash.2d 848]Appendix A
+-----------------------------------------------------+
¦Washington
State
Initiative Statistics ¦
Supermajority
+-----------------------------------------------------+
+---------------------------------------------------------------+
¦Initiative ¦Year
¦Votes for
against
¦Pass or Fail
¦
¦Votes
+-----------+------+-----------+----------------+---------------¦
10
¦I–1185
¦1,069,083
¦2012
¦Pass
¦1,892,969
¦
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League of Educ. Voter v. State, 176 Wash.2d 808, 295 P.3d 743 (Wash., 2013)
+-----------+------+-----------+----------------+---------------¦
¦
¦(48.79%)
¦
¦
¦(51.21%)
¦
+---------------------------------------------------------------+
shall be eligible to hold any state office.” Wash.
Const. art. II, § 7 (emphasis added), art. III, § 25
(emphasis added).
.Wash. Const. art. II, §§ 9, 36, art. III, §
12, art. IV, § 9, art. V, § 1, art. XXIII, §§ 1, 2.
7
The United States Supreme Court's
decision
upholding
the
“supermajority”
requirements is discussed infra.
1.
-------Notes:
The legislature is ordinarily required to
wait at least two years before amending any
initiative unless two-thirds of the legislature
approves amending the initiative sooner. Wash.
Const. art. II, § 41.
1.
As with any discussion of justiciability,
some of the concepts discussed are similar in
nature to a discussion of standing. See
Amalgamated Transit Union Local 587 v. State,
142 Wash.2d 183, 203, 11 P.3d 762, 27 P.3d
608 (2000).
2.
As the legislator respondents may
properly bring this dispute, we need not consider
whether the other respondents may as well. See
Bowsher v. Synar, 478 U.S. 714, 721, 106 S.Ct.
3181, 92 L.Ed.2d 583 (1986) (reasoning that the
presence of one party with standing satisfies the
jurisdictional requirement).
3.
Because SHB 2078 and ESB 6635 are
substantially different bills, the factual basis for
Justice C. Johnson's analysis of Raines is
inapposite.
4.
Having concluded that the dispute is
justiciable, we decline to address whether the
dispute constitutes a matter of great public
importance warranting review.
5.
The provisions stated, “ No person shall
be eligible to the legislature who shall not be a
citizen of the United States and a qualified voter
in the district for which he is chosen” and “ No
person, except a citizen of the United States ...
6.
I–1053 passed in 2010 with 1,575,655
(63.75%) votes for and 895,833 (36.25%) votes
against. November 02, 2010 General Election
Results: Initiative Measure 1053 Concerning tax
and fee increases imposed by state
government,Washington Secretary St. (Nov. 29,
2010 9:49 AM), http:// vote. wa. gov/ results/
20101102/
Initiative–
Measure–
1053–
Concerning– tax– and– fee– increases–
imposed– by– state– government. html; see also
infra App. A.
2.
This court is also imposing its agenda
over that of the 1,892,969 voters who passed
Initiative 1185 in 2012. November 06, 2010
General Election Results: Initiative Measure
1185 Concerning tax and fee increases imposed
by state government,Washington Secretary St.
(Nov. 27, 2012 4:55 PM), http:// vote. wa. gov/
results/ 20121106/ Initiative– Measure– No–
1185– Concernstax– and– fee– increases–
imposed– by– state– government. html. After its
initial adoption in 1993, each time the
supermajority requirement has been put before
the voters it has passed by a higher percentage of
the vote than the last time. See infra App. A.
3.
I also join in senior Justice C. Johnson's
dissent, which correctly analyzes the jurisdiction
of this court and the many cases in which we
have held partisan political matters are charged
to the legislature, the elected governor, and the
people, not to the courts.
4.
Raising one obvious and simple solution,
if the people decide that their judges are
disregarding their constitution, recall should
apply to judges as well.
5.
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The State of the Constitutions: New Developments in Federal and State Constitutional Law
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I feel compelled to again point out that it
is a majority of the voters who have imposed
this limitation on the legislature's power.
6.
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
three-fifths vote closes the debate by invoking
cloture. Standing Rules of the Senate Rule XXII,
§ 2.
7.
It is not clear how the court's majority
deals with abstention in a close vote.
8.
I also vehemently agree with Justice C.
Johnson's scholarly jurisdictional and historical
analysis opposing the majority and have signed
that opinion.
9.
November 02, 2010 General Election
Results: Initiative Measure 1053 Concerning tax
and fee increases imposed by state
government,Washington Secretary St. (Nov. 29,
2010 9:49 AM), http:// vote. wa. gov/ results/ 2
0101102/Initiative–
Measure–
1053–
Concerning– tax– and– fee– increases–
imposed– by– state– government. html.
10.
+---------------------------------------------------------------+
¦
¦(36.09%)
¦
¦
¦(63.91%)
¦
+-----------+------+-----------+----------------+---------------¦
¦I–1053
¦Pass
11
¦2010
¦
¦1,575,655
¦895,833
+---------------------------------------------------------------+
November 06, 2010 General Election
Results: Initiative Measure 1185 Concerning tax
and fee increases imposed by state
government,Washington Secretary St. (Nov. 27,
11.
2012 4:55 PM), http:// vote. wa. gov/ results/ 2
0121106/Initiative– Measure– No– 1185–
Concerns– tax– and– fee– increases– imposed–
by– state– government. html.
+---------------------------------------------------------+
¦
¦
¦
¦
¦(63.75%)
¦(36.25%)
+----------+-----+----------+--------------+--------------¦
¦I–960
¦Pass
12
¦2007
¦
¦816,792
¦777,125
+---------------------------------------------------------+
November 06, 2007 General Election
Results: Initiative Measure 960 Concerns tax
and fee increases imposed by state
government,Washington Secretary St. (Nov. 29,
2007 4:08 PM), http:// vote. wa. gov/ results/ 2
0071106/Initiative– Measure– 960– concerns–
tax– and– fee– increases– imposed– by– state–
government. html.
12.
+---------------------------------------------------------+
¦
¦
¦
¦
¦(51.24%)
¦(48.76%)
+----------+-----+----------+--------------+--------------¦
¦I–601
¦Pass
13
¦1993
¦
¦774,342
¦737,735
+---------------------------------------------------------+
November 1993 General,Washington
Secretary St., http:// www. sos. wa. gov/
elections/ results—report. aspx? e= 22& c=& c
2=& t=& t 2= 5& p =& p 2=& y= (last visited
Feb. 25, 2013).
13.
- 21 -
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,
Dianne T. Renwick
Rosalyn H. Richter
Paul G. Feinman,
J.P.
JJ.
10508
Index 653584/12
________________________________________x
In re New York Statewide Coalition
of Hispanic Chambers of Commerce,
et al.,
Petitioners-Respondents,
-againstThe 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.
2
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
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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),
6
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
7
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
8
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 selfservice cup or container size for sugary drinks to 16 fluid
ounces for all FSEs within New York City, and defined “sugary
9
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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
1
Petitioners alleged that the Board’s adoption
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
10
The State of the Constitutions: New Developments in Federal and State Constitutional Law
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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.
11
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Chapter 1C—Developments in State Constitutionalism—Three Cases
misunderstanding of the power of administrative agencies vis-avis 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).
12
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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
13
The State of the Constitutions: New Developments in Federal and State Constitutional Law
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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
14
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
15
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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).
16
The State of the Constitutions: New Developments in Federal and State Constitutional Law
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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
17
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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.
does it apply to all sugary beverages.
Nor
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
18
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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.
19
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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 citywide 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
20
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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
21
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(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
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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
23
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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
24
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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
25
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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.
26
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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
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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.
28
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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
29
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The State of the Constitutions: New Developments in Federal and State Constitutional Law
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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
Reprinted with permission of author.
1 Chapter 1D—Should the Oregon Constitution Be Revised, and If So, How Should It Be Accomplished?
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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.
1
Hans A. Linde (1987)
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]
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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.
2
G. Alan Tarr (2006)
D
oes Dr. Alan Tarr’s assessment apply to Oregon? Is this state’s
constitution 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,
3
constitution.
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 stateconstitutional 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).
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I
THE OREGON CONSTITUTION
4
The Oregon Constitution is relatively long. It has been amended
5
on average nearly one-and-a-half times per year. This amendment
rate is somewhat above the mean rate of amendment for state
6
constitutions.
7
The adoption of Oregon’s 1859 constitution is well documented.
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
8
the wisdom of hindsight.” 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
9
already accepted practice.
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
10
of Switzerland.
As Frank Grad and I have recently contended, there is no “ideal”
11
state constitution. We characterized state constitutions as tools or
instruments of government, the “suitability and adaptability” of which
12
“can only be gauged in the relationship to its set task.” 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
13
entire machinery and operation of the state’s government.
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
14
adjustments to the state constitution.
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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871
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.15However, most
constitutional change in the states does not qualify.
These are, of course, not perfect, bright-line distinctions, but they
16
are important distinctions all the same. Therefore, the fundamental
questions in evaluating the functionality of the Oregon Constitution
are whether “piecemeal amendments . . . have compromised [its]
17
coherence as [a] plan[] of government” to such an extent that there
is a necessity of “fundamental reconsideration of constitutional
18
foundations.”
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
19
should definitely not be compared to the U.S. Constitution. There
are a variety of reasons for the impropriety of this comparison. All
state constitutions, including Oregon’s relatively long one, are
20
substantially longer than the federal Constitution. 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
21
U.S. Constitution.
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
22
in considerable detail.”
These sorts of policy provisions may
prohibit legislative action, mandate the enactment of certain policies,
23
or directly enact the policies themselves.
Dr. Tarr concluded that
during the nineteenth century “state constitutions increasingly became
instruments of government rather than merely frameworks for
24
government.” The Oregon Constitution’s coverage of, for example,
19
See GRAD & WILLIAMS, supra note 11, at 14.
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.
20
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26
873
27
tax and finance, water development, and corporations, 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
28
convention may only be presented to the voters by the legislature.
Oregon permits use of the initiative to propose amendments to the
29
state constitution, although its constitution does not have any
30
required automatic mechanism of review built into it, so Oregon is
located toward the easier end of the spectrum of amendment
31
Oregon’s procedure for legislatively proposed stateprocedures.
constitutional amendments is somewhat rigorous, requiring passage
by a majority vote of elected legislators and separate presentation of
32
issues to the voters. Also, since 1960 the legislature may propose a
revision of the state constitution, including alternative proposals, to
33
the voters after a two-thirds vote of its members.
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 stateconstitutional 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
34
country.
The Oregon Constitutional Convention originally rejected, though
probably not consciously, the Jeffersonian view that state
constitutions should be considered for revision once every
35
generation in favor of the Madisonian preference for a more stable
36
state constitution. 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
38
propose revisions, not just single amendments, to the constitution.
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
39
constitutions. Dr. Hammons analyzed all of the state constitutions
according to this distinction and concluded that forty-three percent of
40
Oregon’s constitution is made up of policy-oriented provisions.
41
This is just a little above the national average of forty percent. 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
42
provisions. Interestingly, Dr. Hammons concluded that the longer
and more policy oriented a state constitution is, the longer it endures
43
before replacement. 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 (thirtynine 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, A HISTORY 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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44
statutory regulation of private conduct. 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
45
policy-oriented provisions to a “statutory article” in the constitution.
A similar approach, a “two-tiered” constitution, with an easier
amendment procedure for “statutory” provisions, was briefly
46
considered in New York in the 1960s.
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
47
in the introductory quote from Dr. Tarr. 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,
48
it has been amended more frequently than the national average.
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
49
Oregon nor in other states.
In fact, one might see the major change to the Oregon Constitution
in 1902, which permitted use of the initiative to amend the state
50
constitution, as constituting a form of revision. 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
51
after World War II. 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
52
proposal to the legislature, which passed the House but failed by
53
one vote in the Senate.
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.
54
Supreme Court’s one-person, one-vote decisions.
As noted, the advent of the initiative method of amending Oregon’s
55
constitution could be seen as a “revision.” 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
56
by at least an equivalent supermajority.
It is quite unlikely that
Congress, assuming it has the power to do so, will step in to limit the
57
states’ use of the initiative for state-constitutional amendments.
It appears that the avenues for judicially imposed (even by state
58
courts) limits on the substance of initiated amendments to state
59
constitutions, championed by Hans Linde, have been foreclosed.
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
60
Guarantee Clause, it was dealing with a statutory initiative rather
61
than a state-constitutional initiative.
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
62
amendable state constitution in the country.
A proposed stateconstitutional 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
63
The court approved the
requirement) prior to the referendum.
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
64
inclusion in Florida’s statute books than in the state constitution.”
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
65
federalism. 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: A REFERENCE
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,
66
should be considered.
They concluded generally that state67
constitutional initiatives were increasing in number 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
68
voters were very similar. 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
69
proposed amendment.
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 stateconstitutional 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
70
1944.
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
71
recommended revised constitution by the voters.
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
72
more than a century. The convention met at Rutgers University, not
73
in the state capital, to avoid the appearance of “politics as usual.”
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,
IN NEW JERSEY: 1940–1947 (1970).
THE PROCESS OF CONSTITUTIONAL REVISION
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
75
segregation.
B. Michigan (1961–1962)
After the 1960 adoption of an initiative amendment to the state
constitution, which eased the requirements for calling a stateconstitutional 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
76
constitutional convention in 1961 and 1962. The Governor created
77
After the
a study commission to prepare for the convention.
legislature refused to provide funding for the operation of the
78
commission, a private foundation stepped forward with financing.
Slightly more than two-thirds of the delegates to the convention were
79
Republican.
The convention, by a wide margin, proposed a
modernized constitution that was ratified by the voters and, with
80
amendments, is still in effect today.
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.
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: A REFERENCE GUIDE
20–21 (1996).
77 Id. at 21.
78 Id.
79 Id. at 21–22.
80 Id. at 23–24.
75
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Constitutional Convention Commission to prepare for a 1966
automatic (but not always honored by the legislature) referendum on
81
The convention call
whether to call a constitutional convention.
was approved by the voters, convention delegates were elected, and
82
the convention met from 1967 to early 1968.
The convention’s
proposed constitutional revision was soundly defeated at the polls in
83
1968. This has led Maryland’s experience to be referred to as the
84
One commentator has summarized the
“Magnificent Failure.”
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 failed85to
persuade the electorate of the necessity of constitutional revision.
Interestingly, however, the convention’s proposals that were rejected
in 1968 formed the basis for a number of specific state-constitutional
86
changes over the following generation.
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: A REFERENCE 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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87
constitutional reform.”
Despite the adoption in 1950 of an
amendment to the state constitution that liberalized Illinois’s
constitutional-amendment process, substantial revision had not taken
88
place.
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
89
The voters
submitted to the voters at the 1968 general election.
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
90
campaign.
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
91
delegates and organization of the convention.”
There was even a
third commission created by the legislature to make preparations
92
immediately before the convention was convened.
The
constitutional convention delegates, elected on a nonpartisan basis,
93
worked from December 1969 through September 1970. 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
94
constitutional convention and Alaska’s 1955 to 1956 convention.
The convention succeeded in proposing a modernized constitution for
95
Illinois that voters adopted in December 1970.
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.
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).
89
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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
97
through the constitutional commission process.
The commission,
98
was authorized by the
with strong gubernatorial backing,
99
legislature, and its members were named by the Governor in 1968.
After detailed study, public hearings, and deliberation, the
commission submitted its report to the Governor and the legislature at
100
Based on the commission’s
the beginning of 1969.
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
101
question.”
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
102
and to encourage their support.
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
103
constitutional revision in other states during this period.
He
96
Samuel W. Witwer, Introduction, 6 J. MARSHALL J. PRAC. & PROC. 213, 213 (1973).
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).
97
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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
104
to Virginia’s success.
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
105
adequately serving the current needs of the people.”
Based on the
Council’s recommendation, the legislature created a Constitutional
106
Revision Commission in 1969.
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
107
convention.
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
108
Constitutional Convention met in 1972.
The convention met at a
time when it could draw on two significant trends in state
constitutionalism. The first was the movement toward “managerial
109
constitutionalism”:
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 110
on how the
state government addressed current and future problems.
Second, there was a more recent trend called “constitutional
111
populism”:
104
See Howard, supra note 97, at 86–96.
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
113
movements.”
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
114
environment.
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
115
gambling.
A legal challenge, contending that the constitution was
actually not ratified by a majority, was rejected by the Montana
116
Supreme Court by a three-to-two vote.
Despite this narrow margin
of approval, the Montana voters rejected overwhelmingly the
opportunity to call another constitutional convention twenty years
117
later in 1990.
G. Louisiana (1973)
The people of Louisiana, also after a number of attempts and with
118
convened a
the help of strong gubernatorial leadership,
constitutional convention in 1973.
One leading commentator
concluded, with respect to the convention’s product, “[l]ittle
112
Id.
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: A REFERENCE 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
119
reformers.”
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
120
condition, or political ideas or affiliations.”
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
121
unicameral constitutional convention in 1974.
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
122
widely representative of the Texas citizenry.
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
123
Dr. Janice May, a member of the Constitutional
revision package.”
Revision Commission, explained this failure:
119
Id. at 17.
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: A REFERENCE GUIDE 24–
25 (1996).
122 See id. at 25.
123 Id. at 26; see also TEX. CONSTITUTIONAL REVISION COMM’N, A NEW
CONSTITUTION FOR TEXAS: SEPARATE STATEMENTS OF COMMISSION MEMBERS (1973);
TEX. CONSTITUTIONAL REVISION COMM’N, A NEW CONSTITUTION FOR TEXAS: TEXT,
EXPLANATION, COMMENTARY (1973).
120
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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
125
overwhelmingly rejected the proposals.
I. Georgia (1983)
Based on the recommendations of a Constitutional Revision
Commission, the Georgia legislature engaged in a two-month
126
extraordinary session in 1964 and adopted a new constitution.
The
document was, however, never submitted to the people because of a
federal court decision declaring that it was the product of a
127
malapportioned legislature.
Despite the fact that the U.S. Supreme
128
Court ultimately vacated the judicial decision, the new constitution
129
was never submitted to the voters.
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.
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: A REFERENCE 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.
125
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accomplished, and the voters adopted the document in 1976 by a wide
130
margin.
The legislature immediately embarked on a process leading to
substantive revision of the Georgia Constitution. The process was
131
also based on strong gubernatorial leadership.
A multiyear
legislative process culminated in 1982, and the legislative product
132
was submitted to the people and adopted overwhelmingly.
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
134
recommendations to the legislature in 1996.
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
135
place on the ballot.”
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.
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.
131
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of the issues, and the vested interests of a number of legislators and
136
other elected officials.
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
137
Florida’s 1968 constitution
people and went into effect in 1968.
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
138
to the legislature.
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
139
would flow from the new process.”
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
140
constitutional revision commission process.
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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141
matters.
Several other states have considered Florida’s
142
commission mechanism, but none have adopted it.
Florida’s initial experience with this constitution revision
mechanism ended in a failure. The 1977 Commission submitted eight
143
propositions to the voters and all of them were defeated.
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
144
Commission’s proposals.
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
145
process.
The 1997 Constitution Revision Commission, however, was much
more successful. A preparatory committee developed background
146
research and even proposed rules for the Commission.
It learned a
number of lessons from the unsuccessful commission of twenty years
earlier and made a number of recommendations that were accepted by
147
The commission successfully utilized opinion polling
the voters.
148
during its deliberations.
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
149
organization was put into place to support the proposed revisions.
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
152
work and gubernatorial leadership.
The 1997 process, in contrast
to that in 1977, included an important post-commission process of
153
publicizing and supporting its proposals.
L. New York (1967, 1997)
New York had a constitutional convention in 1967 that was highly
154
partisan and dominated by legislative leaders.
The revised
constitution presented by that convention was defeated at the polls by
155
the voters.
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
157
The
to operate with gubernatorial discretionary funds.
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
158
safety.”
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 themselves159
to take
definitive action on these final proposals by a date certain.”
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,
160
the voters rejected the call in 1997.
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
161
changes to the status quo.
156
Benjamin, supra note 154, at 155; see also PETER J. GALIE, THE NEW YORK STATE
CONSTITUTION: A REFERENCE 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
162
renewed emphasis on reform in the past decade or so.
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
163
simplification of Alabama’s longest-in-nation state constitution.
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
164
a greater battle ahead.”
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
165
after World War II, 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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•
•
•
•
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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
166
nonpartisan approach;
(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
167
“passive aggression,”
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
168
absolutely crucial to the success of such bodies.
• 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 stateconstitutional 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
169
1962 one-vote “failure.”
These and many other lessons can be drawn from the stateconstitutional 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.
170
Georgia Governor George D. Busbee (1983)
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’
171
popular sovereignty
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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173
policies that could have been left to the legislature.
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
174
contained therein.
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
175
of powerful corporations.
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 stateconstitutional 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.
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).
174
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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
177
could be utilized.
State-constitutional commissions can be created
either by the legislature or the governor, and may receive funding
178
Such commissions can be limited in their
from either source.
mandate. Legislatures have sometimes authorized state-constitutional
commissions as a substitute for a constitutional convention that is
179
feared by the legislature.
State-constitutional commissions can
also be utilized to prepare for and assist a constitutional
180
convention.
New Jersey even recently utilized a commission
(“Task Force”) to advise the legislature on how to call and structure a
181
limited constitutional convention on property tax.
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
182
possess greater flexibility.
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
183
Therefore, it
possibility of a limited constitutional convention.
seems as though the Oregon Constitution would provide no barrier to
a limited constitutional convention, if the limits were specified by the
184
legislature and approved by the voters.
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
185
“conventionphobia” in this country.
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,
186
Ohio and Michigan—majorities have rejected the opportunity.”
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
187
usual by the “government industry.”
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.
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:
184
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
188
deliberation.
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
189
interests.
Gais and Benjamin called for an additional element to achieve
meaningful, publicly acceptable state-constitutional revision:
190
independence.
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
191
them, along predictable lines.”
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
192
generations.
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
193
box” with reference to state-constitutional change.
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
194
be upon those who seek to include material in state constitutions.
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 stateconstitutional status quo. Voting against a constitutional convention
can reflect fear of the future, satisfaction concerning the stateconstitutional status quo, or an opinion that defects in the state
constitution may be cured by less complex amendment or revision
192
193
194
Sundquist, supra note 49, at 556.
See Tarr & Williams, supra note 30, at 1106–21.
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
195
As one of the most in-depth studies of stateover time.
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. Conventions196
in one era meet to undo the
careful reforms of an earlier generation.
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
197
at that point in time.
All of these concerns point to the conclusion that decision-makers
in Oregon should carefully evaluate the question of whether stateconstitutional 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 stateconstitutional 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 stateconstitutional 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
198
reconsideration of Oregon’s constitutional foundations?
Are any
195
See GRAD & WILLIAMS, supra note 11, at 8–14.
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.
196
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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
199
If such fundamental flaws do exist, leading to
proposed changes?
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”
200
element of “conventionphobia?”
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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Chapter 1E
Why State Constitutions Matter1
Professor Robert F. Williams
Rutgers University School of Law–Camden
Camden, New Jersey
Reprinted with permission of author.
1 Chapter 1E—Why State Constitutions Matter
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1E–ii
Chapter 1E—Why State Constitutions Matter
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 of 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 I 
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). 901 The State of the Constitutions: New Developments in Federal and State Constitutional Law
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902 New England Law Review v. 45 | 901 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. The State of the Constitutions: New Developments in Federal and State Constitutional Law
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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/. The State of the Constitutions: New Developments in Federal and State Constitutional Law
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904 New England Law Review v. 45 | 901 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. The State of the Constitutions: New Developments in Federal and State Constitutional Law
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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. The State of the Constitutions: New Developments in Federal and State Constitutional Law
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906 New England Law Review v. 45 | 901 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). The State of the Constitutions: New Developments in Federal and State Constitutional Law
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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. The State of the Constitutions: New Developments in Federal and State Constitutional Law
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908 New England Law Review v. 45 | 901 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). The State of the Constitutions: New Developments in Federal and State Constitutional Law
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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. The State of the Constitutions: New Developments in Federal and State Constitutional Law
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910 New England Law Review v. 45 | 901 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). The State of the Constitutions: New Developments in Federal and State Constitutional Law
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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). The State of the Constitutions: New Developments in Federal and State Constitutional Law
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912 New England Law Review v. 45 | 901 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). The State of the Constitutions: New Developments in Federal and State Constitutional Law
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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
Separation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–2
A.
Judicial Power and Justiciability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–2
B.
Subject Matter Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–3
1.
(a)Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–3
(b)Ripeness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–5
(c)Mootness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–5
Inherent Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–8
2.
Stare Decisis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–9
3.
Policy Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–10
4.
Legislative Power and Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–10
C.
1.Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–10
2.
Immunity: The Debate Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–11
Initiative and Referendum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–11
3.
Executive Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–12
D.
II.
Free Expression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–14
Origins and Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–14
A.
B.Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–15
Politicking, Campaigning, and Lobbying . . . . . . . . . . . . . . . . . . . . . . . . . 2–15
C.
D.Stalking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–19
Civil Stalking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–19
1.
2.
The Crime of Violating an Existing SPO . . . . . . . . . . . . . . . . . . . . . . 2–21
Terminating an SPO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–21
3.
The Crime of Stalking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–21
4.
Jury Right in Civil Stalking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–21
5.
Profanity in Public or Fighting Words . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–22
E.
First Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–23
F.
III.Religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–25
IV.
Search or Seizure and Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–28
Origins and Meaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–28
A.
B.
Probable Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–29
Fourth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–30
C.
Protected Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–30
D.
Privacy Rights—Searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–30
1.
Possessory Rights—Seizures . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–32
2.
E.Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–34
Traffic Stops . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–34
1.
(a)Vehicles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–34
The Stop . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–34
(i)
The Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–37
(ii)
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
The State of the Constitutions: New Developments in Federal and State Constitutional Law
2–ii
Chapter 2—The Oregon Constitution and Cases in 2013
2.
3.
4.
General Fourth Amendment Tenets . . . . . . . . . . . . . . . . . . . . . . . . .2–95
Exceptions to Suppression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2–96
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
Public Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–128
8.
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
The State of the Constitutions: New Developments in Federal and State Constitutional Law
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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
Full Faith and Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–171
B.
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
Judicial Factfinding; Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . 2–173
5.
6.
Plea Bargaining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–173
D.
Ninth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–174
Fourteenth Amendment—Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . 2–175
E.
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
The State of the Constitutions: New Developments in Federal and State Constitutional Law
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Chapter 2—The Oregon Constitution and Cases in 2013
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)).
The State of the Constitutions: New Developments in Federal and State Constitutional Law
2–1
Chapter 2—The Oregon Constitution and Cases in 2013
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
The State of the Constitutions: New Developments in Federal and State Constitutional Law
2–2
Chapter 2—The Oregon Constitution and Cases in 2013
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 selfseeking, 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’ nostanding 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 politicalquestion 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, 34849 (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 speechneutral 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 10second 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 speechbased 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-307MO (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 lifethreatening, 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 eighteenthcentury 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 proslavery 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 MorfinEstrada, 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 policecitizen 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 MorfinEstrada, 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 trafficstop 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.
2.
3.
4.
5.
6.
did not make eye contact with the sheriff when the sheriff passed him
slowed down and took an exit off the highway after the sheriff passed
twice said he was going to Denny’s before saying ultimately San Jose
held up two fingers when he said he was going to San Jose for 2 days
did not appear to have luggage
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 drugdetection 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 10minute 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-thescene 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 defendantpassenger 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 exigencybased 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 stopand-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 45’ 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.
2.
3.
4.
5.
How far are the signs from the entrance to the property?
How large is the font on the signs?
Were the signs obvious or obscured?
Did the officers notice the signs?
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, 4748 (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, 50910 (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 powerconsumption 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 selfinflicted; 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 neardeath 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 cooccupant 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 doghandler 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, nondrug 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 KurokawaLasciak’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 officersafety 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 plainview 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, 20203 (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 oneinch 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 selfincrimination, 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 selfincrimination 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 selfincrimination. 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 selfincrimination 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
T
of the court,
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
R
compelled
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.
2.
3.
4.
5.
6.
7.
8.
A public trial
An impartial jury
A trial in the county where the offense was committed
Be heard
Demand the nature and cause of the accusation
Have a copy of the accusation
Meet witnesses face to face
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 10person 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 fivewitnesses 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 5253. 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