OrCon Law

Supreme Court hears arguments in Oregon Punitive Damages Case

The Court heard arguments today in Philip Morris USA v. Williams.  On review is a decision of the Oregon Supreme Court upholding an award of punitive damages of $79.5 million in a case where the plaintiff had been awarded a little over $800,000 in compensatory damages for harm caused to her husband by cigarettes, and by the defendant's fraudulent representations regarding the health risks posed by cigarettes.  The focus at the argument was on whether the Oregon courts had erred in rejecting a jury instruction proposed by defendant that would have informed the jury that it is impermissible to award punitive damages to punish a defendant for harm caused to others not presently before the court, even though it is permissible to consider such harm (orpotential harm) to others in assessing an appropriate amount of punitive damages to punish the defendant for harm caused to the plaintiff.  The Court appeared to think that the Oregon Supreme Court may have rejected the instruction for an incorrect reason, and discussed whether the case should be remanded for the Oregon Supreme Court to re-evaluate and clarify its reasons for rejecting the proposed instruction.  A transcript of the argument is available here.

New Jersey Supreme Court Holds that Same-Sex Couples Are Entitled to the Same Benefits Afforded to Married Couples

In Winslow v. Harris, (viewable here:   Download 20061025_decision.pdf ), the New Jersey Supreme Court held that denying same-sex couples the benefits and privileges afforded to opposite-sex married couples violates the equal protection guarantee of the New Jersey Constitution.  The court further held that same-sex couples must be afforded such benefits on equal terms with the benefits afforded married couples under the civil marriage statutes.  However, the court concluded that name for the statutory scheme affording the benefits to same-sex couples should be left to the democratic process.  The court gave the state legislature 180 days to bring New Jersey law into compliance with its decision.

Armatta - An Unsavory Concoction

Like Godzilla who never dies and keeps coming back to ravage Tokyo, Armatta v. Kitzhaber has reared its head again, used uncritically as the touchstone for analysis in LINT v. Kitzhaber, decided on October 19.  The question posed and decided there by the Oregon Supreme Court was the now-familiar "whether [name your Oregon constitutional initiative measure] actually contains two or more constitutional amendments in violation of Article XVII, section 1, of the Oregon Constitution."  Very seriously and carefully, the court has applied the Armatta test, as glossed by several other supreme court opinions since 1998, and it has concluded that the scrutinized amendment does not contain "two or more constitutional amendments."

I'm not going to argue whether the supreme court's application of the almost hopelessly arcane and subjective Armatta test is correct or not in this latest case to require it (but it's a 4-3 decision with Justices Kistler, De Muniz, and Balmer dissenting).  Instead, I'd like to use this forum to say what I've believed from the beginning, that Armatta was wrongly decided.  The apple cart may be too big by now to overturn gracefully, but the oldest apple in it, the Armatta decision, has always been rotten.

This could turn into a long treatise on early 20th century Oregon history, but I'll cut to the essential points.  One - Article XVII section 1 was an initiative placed on the ballot in 1906 by the People's Power League and its "secretary" (read driving force), William S. U'Ren.  The Oregon initiative system itself, along with that 1906 amendment, both owed their existence to U'Ren and his colleagues.  Two - There was a reason for the language in Article XVII section 1 about requiring "two or more amendments" in the same election to "be voted on separately."  Three - The reason plainly was not to keep a single ballot measure from enacting multiple "amendments" to the Oregon Constitution - People's Power League initiatives before and after 1906 regularly embodied multiple amendments.  Heck, the 1906 measure itself dealt with (1) the canvassing of votes on amendments and (2) the prohibition of a state constitutional convention without a vote of the people to call it.  Would it survive Armatta scrutiny today?  I don't think so.  Four - The reason for requiring that votes on separate "amendments" be counted separately was not hard to see in 1906.  The loosely used term "amendments" actually meant "ballot measures for amendments" to the constitution.  The problem being addressed was the undervote, plain and simple.

Before 1906, a ballot measure for amending the constitution had to be approved by a majority of the voters who cast ballots in the election.  With the multiplicity of constitution-amending measures that the People's Power League intended to place on the ballot in coming elections, there was a real risk that some of the amendments would receive a majority of those voting on that measure but would fail because not enough of the voters had bothered to go down the ballot as far as the particular measure.  Under the proposed 1906 change (Article XVII section 1), the vote canvassers would count the votes for and against each measure, "severally" as the new amendment said, and if a majority of the votes on the measure favored it, the measure would pass.  William U'Ren actually made that point in a letter to the editor of The Oregonian that was printed just before election day in 1906.

So Article XVII section 1 solved the undervote problem.  The last thing in the minds of the People's Power League, or of the voters (if they understood the amendment) was bringing about the strange concoction that we now know as Armatta v. Kitzhaber.

Here's an ironic footnote.  Amended Article VII of the Oregon Constitution (Judiciary) was an initiative adopted in 1910.  The measure was at the very bottom of a long ballot of initiatives, probably put there purposely by U'Ren and the People's Power League, who may have feared for its passage.  Sure enough, the measure passed with a small majority of the vote on that particular measure, but well short of fifty percent of the voters who cast ballots in that election.  Amended Article VII passed into the Oregon Constitution only because Article XVII section 1 had performed its intended purpose.

I say this reluctantly, out of respect for the institution and the justices of the Oregon Supreme Court, but in establishing the rule in Armatta, which now is the gold standard for parsing of initiated constitutional amendments, the supreme court made it up.  The Armatta rule came pretty much out of thin air and finds no support in the history of Article XVII section 1.

Supreme Court issues doozy of opinion on separate vote analysis

In LINT v. Kitzhaber, the Supreme Court reversed the decision of the Court of Appeals and held that Measure 3 (adopted in 2000), which added to Article XV of the Oregon Constitution a section addressing forfeitures, complied with the separate vote requirement of Article XVII, section 1.  Justice Gillette authored the plurality opinion (joined by Justices Carson and Riggs), which concludes that Measure 3 did not alter any existing provisions to the Constitution, but, instead, makes three identifiable changes to the Constitution by the additions that it makes to Article XV.  The plurality concludes that all the changes are closely related, reasoning that there is plainly a relationship among the changes, and that "it is permissible" to deem the relationship "close enough" to satisfy the separate vote requirement.

Justice Durham specially concurred and filed an opinion in which he concludes that Measure 3 made one constitutional change.  He rejects the plurality's "closely related" test on the ground that it appears to replicate single subject analysis.

Justice Kistler, joined by Justice Balmer and Chief Justice DeMuniz, filed a dissenting opinion concluding that Measure 3 made multiple changes to existing parts of the Constitution, and that those changes are not closely related.

The opinion is fascinating (to me anyway) because it illustrates - by the way to court split on the issue -- exactly how difficult the Armatta analysis is to apply, and the degree to which there is still substantial disagreement on the court as to what sort of standard Article XVII, section 1, sets for proposed constitutional amendments.  On a practical level, given that Article XVII, section 1, governs the people's power to initiate amendments to the Constitution (people who are not all lawyers), I wonder if the drafters of the Constitution intended the standard set by the separate vote requirement to be so difficult to understand and to apply that experienced lawyers and judges cannot agree on how it works? 

Oregon Supreme Court holds that legislature's conferral of statutory standing is sufficient to satisfy any constitutional standing requirement

In Kellas v. Department of Corrections (Durham, J.) the Oregon Supreme Court reversed the Court of Appeals, concluding that legislature's conferral of statutory standing in ORS 183.400, which authorizes "any person" to bring a proceeding in the Court of Appeals to challenge the validity of an agency rule, satisfies any standing requirement contained in the Oregon Constitution.  The Supreme Court rejected the Court of Appeals' conclusion that the constitution requires a person bringing a rule challenge to demonstrate that the resolution of the challenge would have a practical effect on that person.  It construed ORS 183.400 as a provision that, in effect, authorized individuals to act as "private attorney generals" to vindicate the public interest in having the government act lawfully, and concluded that nothing in the Oregon Constitution prohibited the legislature from deputizing such "private attorney generals."

The court does not appear to have rejected the idea that the Oregon Constitution does impose some standing requirements, leaving open the question of what sort of showing of standing a person must make to pursue a suit if the legislature has not conferred statutory standing.