OrCon Law

WWLD (What Would the Legislature Do)

As noted in Erin Lagesen's post from March 23, the Oregon Supreme Court has held that the section of the Oregon Motorist Information Act that imposes more of a burden on off-premises highway signs than on-premises highway signs amounts to a restriction on expression focusing on content per se and therefore violates Article I, section 8 of the Oregon Constitution.  According to the majority, the "more difficult problem" presented by the case involves choosing a remedy.  Should the court cure the statute's infirmity by imposing a burden on all highway signs, or on none?  Either solution would produce a statute that does not discriminate on the basis on content.  The court, imagining what the legislature would do in this situation, choose to "strike from the OMIA the permit and fee requirements for all outdoor advertising signs."  The result of that choice could be two-fold.  First, it could lead to a proliferation of outdoor highway advertising signs.  Second, it could put Oregon out of compliance with the federal Highway Beautification Act, and, as a consequence, cause the federal government to withhold a significant amount of highway money from its current level of funding.  Interestingly, a similar situation arose in Salem College & Academy, Inc. v. Emp. Div., 298 Or 471, 695 P2d 25 (1985), where the court held that imposing unemployment insurance taxes on schools run by one type of religion but not others violated the religion clauses of the Oregon Constitution.  In that case, the constitutional infirmity could have been cured by taxing all religious schools or none.  Taxing none risked the loss of federal funds.  The court, imagining which remedy the legislature would have preferred, chose to tax all religious schools rather than lose federal funding -- the opposite outcome from the one in Outdoor Media Dimensions.  Are the cases inconsistent?  Has the need for federal funds diminished since 1985?  Or is there some other distinction at work here?

Bogus Legislative History and Ethics

On Tuesday, March 28, the United States Supreme Court heard argument in a case challenging aspects of the Guantanamo detention, Hamdan v. Rumsfeld.  In its brief to the Supreme Court, the Justice Department argues that the Court lacks jurisdiction under the Detainee Treatment Act, which, they assert, applies to Hamdan's case. To bolster its argument, the brief cites legislative history -- in particular a colloquy between Senators Lindsay Graham and Jon Kyl in which the Senators state unequivocally that it is their understanding as the drafters of the Act that it applies to Mr. Hamdan. An amicus brief filed by the two Senators makes the same argument.  According to an article in Slate, the legislative colloquy, complete with phrases such as, "I see my time is running out," was inserted into the Congressional Record after the floor debate was over and never actually occurred.  Such inserted material is not unusual or illegal, but query whether inserting it and then citing it as authority is over the line.

Take that, Court of Appeals!

Erin Lagesen has just posted a notice of today's decision in Kerr v. Bradbury (my case, so I am a completely objective observer).  The decision throws Oregon law on justiciability into even greater doctrinal confusion.  She delicately suggests that Kerr is a retreat from State v. Snyder; it appears to me that they are flatly inconsistent.  Oh, I am sure there is a way they can be distinguished -- but the distinctions are, for all practical purposes, meaningless.

The same thing is true of the Court's treatment of attorney fee awards as a factor in preserving justiciability.  In 2600 Building, the Court said that since the correctness of an attorney fee award depended on the correctness of the underlying decision on the merits, it would decide whether the underlying decision was correct -- even though its decision could have no practical effect on the parties (other than the payment of the attorney fee award).  Yet in Kerr, the Court comes to the opposite conclusion -- simply because the award of fees was made in a separate order, rather than in the Court of Appeals decision on the merits.  What is the principled basis for that distinction?

But the most stunning part of the Kerr decision is the Court's holding (or is it dictum? -- we won't know till the next case) that the Secretary of State is not bound to follow a constitutional holding of the Court of Appeals issued in a case in which the Secretary WAS A PARTY!  The Supreme Court says that even though the Court of Appeals held, definitively, that the "full text" requirement in Article IV, section 1(2)(d) means a certain thing, and even though the Supreme Court did not vacate that holding, the Secretary is free to ignore that holding -- he is NOT "require[d] *** to acquiesce in a constitutional interpretation with which he does not agree."  Wow!

Can anyone think of any previous case in which the Oregon Supreme Court told state agencies that they can ignore Court of Appeals decisions with which they disagree?

One other point:  the Supreme Court suggests that if the Secretary has doubt, in the future, about how he should apply the "full text" rule, he can bring an action under the Declaratory Judgment Act.  But whom would he sue?  The sponsors of the petition?  That would be interesting.  If the sponsors live in Vale, would he have to sue them over there?

Two Constitutional Law Decisions by the Oregon Supreme Court

The Oregon Supreme Court issued two opinions today in which it addressed state constitutional issues:

1. Kerr v. Bradbury, in which the court declined to review a full text challenge pursuant to Article IV, section 1(2)(d) of the Oregon Constitution to the Secretary of State's decision to certify an initiative petition.  The court concluded that the dispute became moot when the measure failed to qualify for the ballot, concluding that neither the Court of Appeals' award of attorney fees nor the practical effect that the Court of Appeals' decision would have on the Secretary of State's responsibilities salvaged justiciability.  The court nonetheless concluded that it was not appropriate to vacate the Court of Appeals' decision.  This looks to me like a retreat from the ruling in State v. Snyder, which held that an appeal from a Court of Appeals' decision was justiciable when resolution of the appeal would have a practical effect on the state's future obligations.
2. Outdoor Media Dimensions v. DMV, in which the court upheld many provisions of the billboard regulations imposed by the Oregon Motorist Information Act against Article I, section 8, challenges, but concluded that "the OMIA unconstitutionally restricts the "subject" of expression in violation of Article I, section 8, by requiring a permit for a sign whose message does not relate to the premises on which the sign is located while providing an exemption for a sign whose message does relate to the premises on which the sign is located."

Ninth Circuit holds Alaska Campaign Finance Law Does Not Violate the First Amendment

In Alaska Right to Life Committee v. Miles, the Ninth Circuit held that various provisions of Alaska's campaign finance law do not violate the First Amendment.  Rejecting multiple vagueness and overbreadth challenges to the law, the court upheld the law's provisions requiring that the plaintiff, a "non-group entity" desiring to engage in "electioneering communications," comply with specified notification, registration, reporting, and disclosure-of-identity requirements.

Mayfield v. United States II

Here's the complaint Mr. Mayfield and his family filed against the US, mentioned by Jim in his post below:  Download Mayfield_v. US.pdf.  And here's the complaint in the Bivens action Mr. Mayfield and his family filed against Attorney General Ashcroft in 2004:  Download Mayfield_v. Ashcroft.pdf.  The latter case is assigned to Judge Aiken and appears ongoing.

The new complaint asserts "all causes of action, known and unknown at the time of filing of this Claim, which logically flow from the actions detailed herein, and which are allowed by the relevant common law, Oregon law, the United States Constitution, and/or other statutory provisions."  It is unclear to me why Mr. Mayfield felt compelled to file this new, apparently omnibus, complaint.

Mayfield v. United States

The media told us this was coming.  Brandon Mayfield, the local attorney who was arrested and held by federal authorities in connection with the Madrid subway bombing, but was exonerated when the FBI's apparently hamfisted misidentification of fingerprints came to light, has initiated a civil rights complaint in U.S. District Court in Portland.  The basis of the claim is religious discrimination (Mr. Mayfield is a Muslim).  The complaint was filed Tuesday March 7 (Civil No. 06-0305), and Judge Michael Mosman has drawn this one too.

Judge Mosman already is assigned the recently-filed challenge to the Bush administration's warrantless wiretaps of communications involving suspected terrorists.  It's an uncomfortable juxtaposition for the government in front of one judge - defending its right to listen in on international conversations of persons it identifies (with unfettered discretion) as linked to terrorism, while it faces a plaintiff who was mistakenly identified (and held for some long time) as terrorist-linked.

John Milton's Areopagitica - his speech on book censorship to the English Parliament in 1644

John Milton delivered his famous address Areopagitica to the English Parliament in 1644 on the subject of book censorship.  It has often been quoted for its strong defense of freedom of the press and of speech.  Stanley Fish, former English Professor and Dept. Chair at Duke University, former Provost at the U of Illinois (Chicago Circle), and currently Professor of Law at Florida International University, wrote a much admired study of Milton, entitled How Milton Works, Harvard Univ. Press, in 2001.  Fish is a post-modernist whose interpretation of Milton's Areopagitica is different, and not surprisingly, post-modernist, compared to more conventional interpretations.  Here are some excerpts from Milton's Areopagitica and a summary of Fish's interpretation of what Milton was up to in this famous address.Download con_law_areopagitica.doc

Carolene Products Footnote Four

     One of the most quoted works on constitutional law is John Hart Ely's Democracy and Distrust:  A Theory of Judicial Review, Harvard University Press, (1980).  The core of Ely's theory of judicial review was footnote four in United States v. Carolene Products Co., 304 U.S. 144 (1938).  At pages 73-74 of his book, Ely sets forth what he believes to be the core of the work of the Warren Court:   
1) Cases regarding criminal procedure and other questions of what judicial or administrative process "is due before serious consequences may be visited upon individuals."  Process oriented decisions.
2) Decisions on political expression and association "as related to the proper functioning of the democratic process."
3) The voter qualification and malapportionment cases.
4) The decisions "insisting on equal treatment for society's  habitual unequals:  notably racial minorities, but also aliens, 'illegimates,' and poor people."

     Then, in his own footnote on page 75 of his book, Ely gives us the center of his constitutional theory:  "[M]y point [is] that the "values" the Court should pursue are "participational values" of the sort I have mentioned, since those are the "values" 1) with which our Constitution has preeminently and most successfully concerned itself, 2) whose "imposition" is not incompatible with, but on the contrary supports, the American system of representative democracy, and 3) that courts set apart from the political process are uniquely situated to "impose."

    Turning to footnote Four in Carolene Products, Ely points out that the first paragraph simply says that the Court should enforce the "specific" provisions of the Constitution.  The second paragraph "suggests that it is an appropriate function of the Court to keep the machinery of democratic government running as it should, to make sure the channels of political participation and communication are kept open."  The third paragraph "suggests that the Court should also concern itself with what majorities do to minorities, particularly mentioning laws 'directed at' religious, national, and racial minorities and those infected by prejudice against them."

    Regarding prejudice highlighted here and in the preceding sentence, Ely has this to say at page 153 of  Democracy and Distrust:  "For whatever else it may or may not be, prejudice is a lens that distorts reality.  We are a nation of minorities and our system thus depends on the ability and willingness of various groups to apprehend those overlappiing interests that can bind them into a majority on a given issue; prejudice blinds us to overlapping interests that in fact exist."

    Here is link to a two page reminder of Carolene Products and the words of its famous footnote four written by then Justice, later Chief Justice, Harlan Fiske Stone. .Download con_law_carolene_products_caseu.doc

John Locke - something about his life and his theory of property.

    John Locke, of course, influenced the ideas behind the The Declaration of Independence as well as those contained in the Constitution.  His ideas about property are often referred to in legal discussions, for example, concerning land use planning, condemnation law, taxation, and the like.  The following link is to a ten-page summary of Locke's life, his roles in English politics, and his views on property.  The sources for these ideas are listed in the document.Download locke_and_property.doc
    If you want a more humorous view of Locke and his ideas concerning human knowledge then go to Laurence Sterne's 18th century novel, The Life And Opinions Of Tristram Shandy, Gentleman, first published in installments between 1759-67 and now available in a Penguin Books paperback (1997).
    First, we need to go to Locke's An Essay Concerning Human Understanding, vol. 1, Book II, Chapter XIV where Locke explains to us his idea of time from an internal point of view: 
    "Hence I leave it to others to judge whether it be not probable that our ideas do, whilst we are awake, succeed one another in our minds at certain distances, not much unlike the images in the inside of a lantern, turned round by the heat of a candle.  This appearance of theirs in train, though perhaps it may be sometimes faster and sometimes slower, yet, I guess, varies not very much in a waking man:  there seem to be certain bounds to the quickness and slowness of the succession of those ideas one to another in our minds beyond which they can neither delay nor hasten."
    Now, we go to Chapter XVIII of Volume III of Sterne's novel where Tristram Shandy's father is having a conversation with Tristram's uncle Toby.  Uncle Toby is a retired artillery man and not much given to philosophical thinking.  Tristram's father, however, is prone to it, but is usually stopped dead in his abstruse abstractions by Toby's much more earthbound responses.  Tristam has not yet been born but is giving us his account of it.  Dr. Slop has been called because of Tristam's mother's labor pains and has been with her now for 2 hours and 10 minutes, and Tristam's father has remarked to Toby that "to my imagination it seems almost an age." Now, he is determined to give Uncle Toby an account of how such a short period of time could seem like "an age."  So, he asks uncle Toby if he has any idea as to how 2 hours and 10 minutes could seem like "an age."  "No more than my horse, replied my uncle Toby."  "Gracious heaven! cried my father, looking upwards, and clasping his two hands together, --- there is a worth in thy honest ignorance, brother Toby, --'twere almost a pity to exchange it for a knowledge ----But I'll tell thee."  Tristram's father then gives Toby a lecture that follows Locke's ideas about our sense of time having to do with ideas circling within our head, one in succession to another.
    Tristam's father concludes by saying to Toby:
"Now, whether we observe it or no...in every sound man's head, there is a regular succession of ideas of one sort or other, which follow each other in train just like -- A train of artillery? said my uncle Toby -- a train of a fiddle stick!---quoth my father,---[his father continues] which follow and succeed one another in our minds at certain distances, just like the images in the inside of a lanthorn [lantern] turned round by the heat of a candle ---I declare, quoth my uncle Toby, mine are more like a smoak-jack [the smoak-jack was used to turn a roasting-spit by means of the hot air rising from the fire]---Then brother Toby, I have nothing more to say to you upon the subject." 

    Toby's ideas are more like something powered from the hot air below, [perhaps akin to Tristam's father's philosophical perambulations] and Locke, as explained by Tristram's father, seems to think that ideas are more like images on the inside of a turning lantern, so the discussion stops dead because of their differing mental images of the process, tied to different physical objects.

    If you are still with me, the whole motive behind all of this Tristram Shandy/Locke stuff is that there is a now a film playing, Tristram Shandy, which I understand is excellent, although I have not yet had time to see it.  I wonder if the script-writer picks up on any of the very clever pot-shots that Laurence Sterne takes at Locke's theories in the course of his novel?  And, of course, even if Locke didn't get it quite right about the relationships between ideas in our head and the passage of time, others have diffiuclty in explaining time, too.  And, I think Locke's political philosophy can stand reasonably well and independently of his early understanding of psychology and his theory of knowledge.