Oregon Advisory Opinions September 23, 1966: OAG 66-123 (September 23, 1966)

Oregon Attorney General Opinions

1966.

OAG 66-123.

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ORS 260.380, prohibiting persons from making or circulating certain material, knowing it contains "any false statement, charge or comment relating to any candidate," refers to statements of a defamatory nature, and does not apply to false claims that a candidate may make about himself.

You have submitted to this office a copy of the campaign card of a candidate for state representative, containing the words:

"10 YEARS EXPERIENCE IN THE OREGON LEGISLATURE"

You state that your records indicate the candidate has never been a member of the legislature but has, however, served during legislative sessions as a lobbyist.

You ask if such use of the statement quoted above constitutes a violation of the Oregon Corrupt Practices Act.

Assuming for purposes of discussion only that the language quoted above constitutes a "false statement" we shall proceed to an examination of the provisions of the Oregon Corrupt Practices Act (ORS chapter 260).

A review of that Act indicates that the answer to your question must be determined by the applicability of ORS 260.380, which provides as follows:

"(1) No person shall write, print or circulate, or cause to be written, printed or circulated, any letter, circular, bill, placard or poster, or cause any paid advertisement to be placed in a newspaper or any other publication, or singly or with others pay for any such advertisement, knowing such letter, circular, bill, placard, poster, publication or paid advertisement to contain any false statement, charge or comment relating to any candidate. Any person violating this section shall be guilty of a corrupt political practice.

"(2) Violation of this section is punishable, upon conviction, by a fine of not less than $100 nor more than $1,000, or by imprisonment in the county jail not less than three months nor more than one year, or both."

ORS 260.380 was enacted in 1941 (chapter 205, Oregon Laws 1941) as an amendment to § 81-2533, O.C.L.A., dealing with anonymous publications and political criminal libel. The provisions regarding political criminal libel had read as follows:

"* * * If any letter, circular, poster, bill, publication, or placard shall contain any false statement or charges reflecting on any candidate's character, morality, or integrity, the author thereof and every person printing or knowingly assisting in the circulation thereof shall be guilty of political criminal libel, and upon conviction thereof shall be punished by imprisonment in the penitentiary for not less than one nor more than three years. If the person charged with such crime shall prove on his trial that he had reasonable ground to believe such charge was true and did believe it was true, and that he was not actuated by malice in making such publication, it shall be a sufficient defense to such charge. But in that event, and as part of such defense, the author and the printer or publisher or other person charged with such crime shall also prove that, at least fifteen days before such letter, circular, poster, bill, or placard containing such false statement or statements was printed or circulated, he or they caused to be served personally and in person upon the candidate to whom it relates a copy thereof in writing, and calling his attention particularly to the charges contained therein, and that, before printing, publishing, or circulating such charges, he received and read any denial, defense, or explanation, if any, made or offered to him in writing by the accused candidate within ten days after the service of such charge upon the accused person."

Chapter 205, Oregon Laws 1941, deleted all but the first sentence of the part of the statute above quoted, and substituted therefor the provisions now codified as ORS 260.380, supra.

Thus, at the same time, the legislature eliminated the statutory defense with respect to material containing "any false statement or charges reflecting on any candidate's character, morality, or integrity," and added the broader provision regarding material containing "any false statement, charge or comment relating to any candidate." The similarity of language indicates that the false statements referred to in both instances were those of a defamatory nature and that the legislature intended by enacting chapter 205, Oregon Laws 1941, to broaden and strengthen the law with respect thereto.

The Oregon court has said:

"When, in the process of statutory construction, the legislative intent is not manifest, courts may properly seek the intent by considering the subject matter, the necessity for the law, the circumstances under which it was enacted, the mischief sought to be remedied and the objective to be attained. Union Fishermen's Co. v. Shoemaker, 98 Or 659, 193 P 476, 194 P 854; State ex rel Hood River Hospital v. Employees' Hospital Ass'n et al, 157 Or 618, 73 P2d 693; Sunshine Dairy v. Peterson et al, 183 Or 305, 193 P2d 543.

"* * * when the legislative intent, in en-

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acting a statute, has been ascertained, it should be given effect, although the literal meaning of the words used is not followed." Peters et al. v. McKay et al., (1952) 195 Or. 412, 439-440, 238 P. (2d) 225, 246 P. (2d) 535.

Here, the "mischief sought to be remedied" was that of false charges against candidates and the "objective to be attained" was a strengthening and broadening of the law against statements containing such charges. If the legislature had intended, for instance, that a candidate in making exaggerated claims regarding himself would thereby subject himself to fine and imprisonment it would have clearly said so in specific terms. Such a result would be unusual in American election law and an interpretation of existing law to the same result would not be justified. Therefore the statement referred to in your inquiry could not be in violation of ORS 260.380. That portion of Opinions of the Attorney General, 1958-1960, p. 393, holding to the contrary is hereby overruled to the extent that it is inconsistent herewith.