Multnomah Cnty. v. Mehrwein

366 Or. 295

462 P.3d 706

In the MATTER OF VALIDATION PROCEEDING TO DETERMINE THE REGULARITY AND LEGALITY OF MULTNOMAH COUNTY HOME RULE CHARTER SECTION 11.60 AND IMPLEMENTING ORDINANCE NO. 1243 REGULATING CAMPAIGN FINANCE AND DISCLOSURE.

Multnomah County, Petitioner-Appellant,

and

Elizabeth Trojan, Moses Ross, Juan Carlos Ordonez, David Delk, James Ofsink, Ron Buel, Seth Alan Woolley, and Jim Robison, Intervenors-Appellants,

and

Jason Kafoury, Intervenor,

v.Alan Mehrwein, Portland Business Alliance, Portland Metropolitan Association of Realtors, and Associated Oregon Industries, Intervenors-Respondents.

CC 17CV18006 (SC S066445)

Supreme Court of Oregon, En Banc.

Argued and submitted November 14, 2019.

April 23, 2020

Katherine Thomas, Multnomah County Attorney’s Office, Portland, argued the cause for appellant Multnomah County. Jenny M. Madkour, Multnomah County Attorney, filed the briefs. Also on the briefs was Katherine Thomas.

Daniel W. Meek, Portland, argued the cause and filed the briefs for Intervenors-Appellants Moses Ross, Juan Carlos Ordonez, James Ofsink, Seth Alan Woolley, and Jim Robison.

Linda K. Williams, Portland, argued the cause and filed the briefs for Intervenors-Appellants Elizabeth Trojan, David Delk, and Ron Buel.

Gregory A. Chaimov, Davis Wright Tremaine LLP, Portland, argued the cause and filed the brief for Intervenors-Respondents.

Adam Kiel, Kafoury McDougal Law Firm, Portland, filed the briefs on behalf of amici curiae Derek Cressman, Sightline Institute, Asian Pacific American Network of Oregon, Bernie PDX, League of Women Voters of Oregon, League of Women Voters of Portland, Portland Forward, Portland Jobs with Justice, Alliance for Democracy, and Unite Oregon.

Carson L. Whitehead, Assistant Attorney General, Salem, filed the brief on behalf of amicus curiae Kate Brown, Governor. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Cody Hoesly, Larkins Vacura Kayser LLP, Portland, filed the brief for amici curiae Independent Party of Oregon, Oregon Progressive Party, Pacific Green Party, and Honest Elections Oregon.

Kelly K. Simon, ACLU Foundation of Oregon, Inc., Portland, filed the brief on behalf of amicus curiae American Civil Liberties Union Foundation of Oregon, Inc. Also on the brief were Katherine McDowell, McDowell Rackner Gibson PC, Portland, and Daniel Belknap Bartz, Eugene.

Denis M. Vannier, Senior Deputy City Attorney, Portland, filed the brief on behalf of amicus curiae City of Portland. Also on the brief was Naomi Sheffield, Deputy City Attorney.

Steven C. Berman, Stoll Stoll Berne Lokting & Shlachter P.C., Portland, filed the brief on behalf of amicus curiae Planned Parenthood of Oregon. Also on the brief were Nadia H. Dahab and Lydia Anderson-Dana.

Kyle Markley, Hillsboro, filed the brief on behalf of amicus curiae Kyle Markley.

Owen Yeates, Institute for Free Speech, Alexandria, Virginia, filed the brief on behalf of amici curiae Taxpayers Association of Oregon and Taxpayers Association of Oregon Political Action Committee. Also on the brief was Allen Dickerson.

WALTERS, C. J.

In the November 2016 election, Multnomah County voters approved Measure 26-184, an amendment to the Multnomah County Home Rule Charter containing campaign finance provisions. Multnomah County then adopted new ordinances, Multnomah County Code (MCC) §§ 5.200-203, mirroring and implementing those charter provisions. The first substantive section, MCC § 5.201, restricts campaign contributions. It limits the amount of money that donors may contribute and the amount that a candidate or campaign organization may receive from a particular donor. The second section, MCC § 5.202, limits what are known as independent expenditures. It sets a cap on the amount that individuals, acting independently of a campaign, can spend on communications supporting a candidate and forbids entities from spending any amount on communications supporting a candidate. The third section, MCC § 5.203, contains disclosure rules, which require that disclaimers about the sources of funding be attached to communications in support of a candidate.

We consider the validity of those ordinances under the free speech provisions of both the Oregon and United States Constitutions—Article I, section 8, and the First Amendment. As we explain, we reach four conclusions: (1) the county’s contribution limits do not, on their face, violate Article I, section 8, of the Oregon Constitution ; (2) we must remand this case to the trial court for factual findings and to consider, in the first instance, whether the contribution limits violate the First Amendment; (3) the county’s expenditure limits are invalid under both constitutional provisions; and (4) the parties’ dispute with respect to the disclosure provisions is moot.

I. PROCEDURAL BACKGROUND

In May 2017, Multnomah County initiated this validation action in the circuit court. Under ORS 33.710, the county sought judicial examination of MCC §§ 5.200-203, its new campaign finance ordinances, and a judgment upholding their legality. Two groups of intervenors joined in that court proceeding. See ORS 33.720(3) (permitting interested parties to appear in the validation proceeding). Respondents¹ appeared in the action to contest the validity of the county’s ordinances, arguing that they violate Article I, section 8, of the Oregon Constitution and the First Amendment of the United States Constitution. Trojan² intervened in the action to support the county’s position that the county’s ordinances are valid.

Article I, section 8, provides that "[n]o 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." With respect to that provision, respondents’ arguments centered on Vannatta v. Keisling , 324 Or. 514, 931 P.2d 770 (1997) ( Vannatta I ), a decision in which this court struck down limits on campaign contributions and expenditures. The proponents acknowledged that Vannatta I was unfavorable precedent but urged the trial court to reject its reasoning in light of this court’s decision in Vannatta v. Oregon Government Ethics Comm. , 347 Or. 449, 222 P.3d 1077 (2009) ( Vannatta II ), which had distinguished Vannatta I and upheld restrictions on the receipt of gifts by public officials.

The trial court ruled that, under Article I, section 8, all three sections of the county ordinances were facially invalid. The trial court considered Vannatta I controlling on the contribution and expenditure limit issues. Because the court resolved the case on state constitutional grounds, it did not address the ordinances’ validity under the First Amendment. State v. Copeland , 353 Or. 816, 821, 306 P.3d 610 (2013) ("[W]e consider state constitutional issues before we consider federal claims."). The county and Trojan appealed, and the Court of Appeals certified the appeal to this court. See ORS 19.405. We begin with the question of whether the county’s contribution limits violate the Oregon Constitution.

II. CONTRIBUTION LIMITS

A. Article I, Section 8

MCC § 5.201 limits the amount of money that donors may contribute in county elections and the amount that a candidate or campaign organization may receive from a particular donor. Much of the briefing in this case, from the parties and the 11 amici curiae , focuses on the role of campaign contributions in our political system and the asserted harms that are remediated, or not, by the county’s ordinance. Under the First Amendment, it is not unusual for courts to approach campaign finance cases in part by weighing those harms, and the government’s interest in abating them, against the importance of campaign contributions and expenditures to political expression. See Buckley v. Valeo , 424 U.S. 1, 19-22, 26-27, 96 S. Ct. 612, 46 L. Ed. 2d. 659 (1976) (adopting that approach); Citizens United v. Federal Election Comm’n , 558 U.S. 310, 364, 130 S. Ct. 876, 175 L. Ed. 2d. 753 (2010) (discussing the effects of corporate expenditure limits in light of circumvention and changing technology). We need not wade into that thicket, however, to determine the validity of the contribution limits under the Oregon Constitution. In this validation proceeding, the only question that is before us is whether MCC § 5.201 is unconstitutional on its face. As we will explain, not all laws are subject to a facial challenge under Article I, section 8, and we have an established framework for determining which laws may be so challenged. Using that framework, the question presented is whether the contribution limits are "written in terms directed to the substance of any ‘opinion’ or any ‘subject’ of communication." State v. Robertson , 293 Or. 402, 412, 649 P.2d 569 (1982).

In considering that question, we do not write on a clean slate. Respondents rely, as they did in the trial court, on Vannatta I and on our determination that the limits that we considered in that case were subject to a facial challenge and our holding that those limits were unconstitutional. We agree that, if the analysis and the holding in Vannatta I are controlling, then the contribution limits at issue here also are subject to facial challenge and unconstitutional. To decide whether to adhere to that aspect of Vannatta I we must examine not only Vannatta I and Vannatta II , but also the Robertson framework and the limited category of laws that we have held to be subject to facial challenge under Article I, section 8. That, therefore, is where we begin.

1. The Robertson framework

Under Robertson , a law restricting speech falls into one of three categories. The first Robertson category encompasses any law "that is ‘written in terms directed to the substance of any "opinion" or any "subject" of communication.’ " State v. Babson , 355 Or. 383, 393-94, 326 P.3d 559 (2014) (quoting Robertson , 293 Or. at 412, 649 P.2d 569 ). Laws in that category are...