Wolfe v. Brown

294 Or.App. 800

432 P.3d 1121

Robert WOLFE, Petitioner,

v.Kate BROWN, Secretary of State of Oregon, Respondent.

A155274

Court of Appeals of Oregon.

Argued and submitted November 22, 2016.

November 15, 2018

Daniel W. Meek, Portland, argued the cause and filed the briefs for petitioner.

Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

ORTEGA, P.J.

This case involves Article IV, section 1b, of the Oregon Constitution, which makes it "unlawful to pay or receive money or other thing of value based on the number of signatures obtained on an initiative or referendum petition." Wolfe, the chief petitioner of Initiative Petition 24 in 2012, petitions for judicial review of a final order of the Secretary of State (secretary) that imposed a civil penalty of $65,000 against Wolfe for 26 violations of Article IV, section 1b ’s prohibition against paying circulators per signature collected. Although Wolfe raises several assignments of error, we write only to address his challenge to evidentiary rulings of the administrative law judge (ALJ) concerning Wolfe’s argument that the pay-per-signature ban imposed by Article IV, section 1b, and the vicarious liability and civil penalty provisions promulgated by the Elections Division of the secretary (division) to enforce the ban burden his free speech rights under the First Amendment to the United States Constitution.¹ Because the evidence he sought to introduce was relevant and its exclusion substantially prejudiced Wolfe, we reverse and remand the secretary’s order.

We begin by explaining the background of Article IV, section 1b, and the statutes and rules implementing it. Article IV, section 1b, was added to the Oregon Constitution by the passage of Ballot Measure 26 (2002), the purpose of which was to "protect the integrity of initiative and referendum petitions."² Official Voters' Pamphlet 106, General Election, Nov. 5, 2002; see Ecumenical Ministries v. Oregon State Lottery Comm. , 318 Or. 551, 560 n. 8, 871 P.2d 106 (1994) (examining voters' pamphlet materials as part of "legislative facts" in determining meaning of constitutional provision adopted through initiative process). That constitutional provision states:

"It shall be unlawful to pay or receive money or other thing of value based on the number of signatures obtained on an initiative or referendum petition. Nothing herein prohibits payment for signature gathering which is not based, either directly or indirectly, on the number of signatures obtained."

Those who argued in favor of the measure asserted that the initiative process had been dominated by an unregulated signature-gathering industry, resulting in fraudulent and forged signatures. See Voters' Pamphlet at 107 (proponents of the measure asserting that the "payment-per-signature business has gotten out of control," the signature-gathering industry has "no accountability [and] is ripe for fraud and abuse," and "[i]f [the measure] passes, there will be no reason to cheat. A person can work 8, 10, 12 hours a day gathering signatures and be paid accordingly—without the incentive to copy signatures from one petition to another.").

The division promulgated rules to effectuate Article IV, section 1b. Included among those rules is OAR 165-014-0260(2), which provides:

"Section 1b and ORS 260.569 _bans the practice of paying circulators or others involved in an initiative, referendum, candidate nominating petition or voter registration card collection effort if the basis for payment is the number of signatures obtained. This means that payment cannot be made on a per signature basis. Employment relationships that do not base payment on the number of signatures collected are allowed. Allowable practices include: paying an hourly wage or salary, using express minimum signature requirements (quota), terminating those who do not meet the productivity requirements, adjusting salaries prospectively relative to productivity, and paying discretionary bonuses based on reliability, longevity and productivity, provided no payments are made on a per signature basis. The use of express minimum signature requirements (quota) for an initiative or referendum petition is allowable so long as that requirement is disclosed to the Elections Division on the SEL 320 as part of accounts."

A chief petitioner need not have actual knowledge that circulators for the petition campaign are being paid per signature to be deemed responsible for violating Article IV, section 1b. Under ORS 260.561(1)(b), if a chief petitioner

"has knowledge or should have had knowledge of a violation of * * * section 1b, Article IV of the Oregon Constitution, or any rule adopted by the Secretary of State related to section 1b, Article IV of the Oregon Constitution, petition sheets or circulator training, registration or certification, committed by a person obtaining signatures on the chief petitioner’s petition or prospective petition or a contractor or subcontractor, as defined in ORS 260.563, the violation by the person obtaining signatures or the contractor or subcontractor is conclusively considered a violation by the chief petitioner."

Additionally, the division has promulgated OAR 165-014-0260(4), which provides that "the chief petitioners are responsible for insuring that agents of the chief petitioner (anyone who is delegated the task of obtaining signatures on the initiative or referendum petition) do not violate Section 1b."³

Under OAR 165-014-0260(5), each individual signature sheet violating Article IV, section 1b, which is turned in counts as a single violation.⁴ The minimum penalty for not complying with Article IV, section 1b, began as a $100 fine per signature sheet, which was increased to $250 per signature sheet. Prete v. Bradbury , 438 F.3d 949, 952 n. 1 (9th Cir. 2006) ("A violation of Measure 26 will result in civil penalties of a minimum of $100 for each signature sheet containing signatures collected in violation of Measure 26."); Day v. Elections Division , 246 Or. App. 140, 142, 265 P.3d 16 (2011) (a Measure 26 violation results in a $250 penalty per violation). In 2009, however, the division increased the minimum civil penalty to $2,500 per signature sheet.⁵

Pay-per-signature restrictions are not without controversy, however. First Amendment challenges to restrictions placed on payment to petition circulators have been litigated in many states, including Oregon. The First Amendment, which is made applicable to the states by the Fourteenth Amendment to the United States Constitution, prohibits the enactment of laws "abridging the freedom of speech." In the seminal decision on this topic, Meyer v. Grant , 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988), the United States Supreme Court considered the constitutionality of a Colorado statute that completely barred payment for initiative-petition circulators. The Court explained that the circulation of initiative petitions involves "both the expression of a desire for political change and a discussion of the merits of the proposed change" and, because "the circulation of a petition involves the type of interactive communication concerning political change, [it] is appropriately described as ‘core political speech.’ " Id. at 421-22, 108 S.Ct. 1886. Further, the Court concluded that a bar on payment "involves a limitation on political expression subject to exacting scrutiny." Id . at 420, 108 S.Ct. 1886 (citing Buckley v. Valeo , 424 U.S. 1, 45, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) ). Because the payment bar made it "less likely that [proponents of an initiative measure to amend the Colorado Constitution regarding trucking regulation would] garner the number of signatures necessary to place the matter on the ballot, thus limiting their ability to make the matter the focus of statewide discussion," the Court struck down the prohibition against paying circulators. Id . at 422-23, 108 S.Ct. 1886.

A decade later, in Buckley v. American Constitutional Law Foundation, Inc. , 525 U.S. 182, 186, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999), the Court addressed the constitutionality of another attempt by the Colorado legislature to curb payment of petition circulators striking down that state’s statute requiring that (1) petition circulators be registered Colorado voters, (2) petition circulators wear an identification badge bearing the circulator’s name and status as a volunteer or paid circulator, and (3) initiative proponents disclose publicly the names, addresses, and amounts paid to circulators. The Court observed that the First Amendment does not categorically prohibit a state’s efforts to regulate election processes. Id . at 191, 119 S.Ct. 636 ("States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally.").

As to the registered voter requirement, the Court explained that it burdened speech rights because it

"decreases the pool of potential circulators as certainly as that pool is decreased by the prohibition of payment to circulators. Both provisions limit the number of voices who will convey the initiative proponents' message and, consequently, cut down the size of the audience proponents can reach."

Id. at 194-95, 119 S.Ct. 636 (internal quotation marks and alterations omitted). The Court also concluded that the name-badge requirement and the disclosure provisions burdened speech rights, explaining that both provisions discouraged participation in the circulation process. Id. at 198-204, 119 S.Ct. 636.

Among lower court decisions that followed Meyer and Buckley , two federal decisions, central to the division’s reasoning and the parties' arguments, as we explain below, bear mention. Both cases, Prete , 438 F.3d at 961, and Independence...