Oregon Advisory Opinions November 29, 1967: OAG 67-186 (November 29, 1967)

Oregon Attorney General Opinions

1967.

OAG 67-186.

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The circulation of reproductions of an editorial commenting upon candidates at a school district election, where such reproductions include on their face an identification of the source of the editorial as being a newspaper of general news, long prominent in the community, would not constitute a violation of ORS 260.360, the statute having been substantially complied with.

You ask whether the provisions of ORS 260.360, made applicable to school

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district elections by ORS 331.002 apply in the following fact situation:

"A newspaper runs an editorial which lauds one candidate for a non-partisan school board office and makes disparaging remarks about another candidate by name. Xerox copies were made of this editorial and they included no disclaimer information indicating who made the copies or who distributed the copies. The copies were then distributed by placing in the boxes at an administrative location of the staff members of the school board involved. In other words many of the employees of the board received this unidentified reproduction through distribution to their administrative pickup boxes. The distribution was two days before the election."

You state that the office involved is one "for which no funds are paid, having no salary," and refer us to ORS 260.010(6).

ORS 331.002 provides:

"Unless the context clearly indicates otherwise, the provisions of ORS 260.210 to 260.390 and 260.610 to 260.760 pertaining to elections shall apply to all school district elections and, in so far as practicable, the general duties of a school election board shall conform to the election board duties fixed by the general election laws of the State of Oregon."

ORS 260.360 provides:

"(1) No person shall write, print, publish, post or circulate or cause to be written, printed, published, posted or circulated through the mails or otherwise any letter, circular, bill, placard, poster or other publication relating to any election or to any candidate at any election, unless it bears on its face the name and address of the author and publisher thereof.

"(2) Violation of this section is an illegal practice, and is punishable, upon conviction, by a fine of not less than $25 nor more than $1,000, or by imprisonment in the county jail for not more than six months, or both."

"Candidate" is defined in ORS 260.010(1) as follows:

" 'Candidate' shall apply to any person whose name is printed on an official ballot for public office, or whose name is expected to be or has been presented for public office, with his consent, for nomination or election." (Emphasis supplied)

ORS 260.010(6) defines "public office" as follows:

" 'Public office' shall apply to any national, state, county, or city office to which a salary attaches and which is filled by the voters, as well as to the office of presidential elector, or presiding officer of either branch of the legislature."

If the definitions of "candidate" and "public office" above quoted are literally applied to the fact situation you describe, the persons mentioned in the newspaper editorial were not "candidates" within the scope of ORS 260.360 because they were seeking election to an office to which no salary attaches.

However, it is provided in ORS 260.010, preceding the listed definitions, that they shall not be construed to apply where

"* * * other meaning is clearly apparent from the language or context or unless such construction is inconsistent with the manifest intent of the law: * * *"

This provision has qualified the definitions of "candidate" and "public office" since the original adoption of the Corrupt Practices Act (chapter 3, General Laws of Oregon 1909, of which ORS 260.360 and 260.010 are a part without substantial change, for our purpose here) by initiative of the people in the election of 1908. The title of that Act read in part as follows:

"To propose by initiative petition a law to limit candidates' election expenses; to define, prevent and punish corrupt and illegal practices in nominations and elections; to secure and protect the purity of the ballot; * * *"

It is seen that several purposes were intended to be accomplished by adoption of the Corrupt Practices Act.

In Opinions of the Attorney General, 1936-1938, p. 618, we said that the requirement of a statement of election contributions and expenditures did not apply to a candidate for director of a people's utility district because no salary attached to the office. Clearly such requirement fell within that part of the Act intended to enforce the limitation on "candidates' election expenses." However, in Opinions of the Attorney General, 1962-1964, p. 22, we said that a candidate for nonlucrative office in a school district election would be a "candidate" within the meaning of ORS 260.390, generally prohibiting bribery or use of undue influence in connection with an election, although emphasis was placed on the fact that the statute specifically included school district elections. The latter statute must be considered part of the Act intended "to define, prevent and punish corrupt and illegal practices in nominations and elections."

There is no reason why the framers of the Corrupt Practices Act or the people of Oregon in adopting it would have intended that part which was "to define, prevent and punish corrupt and illegal practices in nominations and elections," to be inoperative where the public office involved was nonlucrative. Foul play vitiates an election, whether it be in a race for governor or mayor; member of the legislature or member of a school board. On the other hand it is understandable that the detailed provisions in that part of the Act which

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were "to limit candidates' election expenses" would have been intended to apply only to candidates for lucrative offices. For one thing, it may have been considered less likely that inordinate sums of money would be spent to obtain an office which carried with it no compensation. Also, it may have appeared that it would be unfair to require a candidate for a nonlucrative office and his supporters to file the detailed accounts of contributions and expenditures required by the Act.

We conclude that the definition of "candidate" in ORS 260.010 was not intended to limit the effect of ORS 260.360 so that the circulation of anonymous publications would not be prohibited so long as the candidate is running for a nonlucrative office, and that to give the definition such effect would be "inconsistent with the manifest intent of the law."

Furthermore, we are compelled to conclude that ORS 260.360 applies to anonymous publications regarding candidates at school district elections because of the manifest purpose of the legislature in enacting ORS 331.002. This statute applies ORS 260.360 to "all school district elections." The ordinary, regular school district election is to elect persons to nonlucrative offices on school boards, and why should the legislature have specified " all school district elections" in ORS 331.002 if it did not intend the provisions of ORS 260.360 to have any practical effect regarding such ordinary election contests? Virtually the only anonymous publication relating to such an election, which would yet not constitute comment "relating to any candidate," would be a noncontroversial statement such as one which urges citizens to "Get out and vote." This would hardly seem to be the evil intended to be prevented by the legislature in contests for the nonlucrative office of school director when it enacted ORS 331.002 to apply 260.360 to " all school district elections." Statutes are to be construed according to the overall policy they are intended to promote. Wimer v. Miller, (1963) 235 Or. 25, 383 P. (2d) 1005.

Our conclusion that such comment as was made in the instant situation is not exempt from the provisions of ORS 260.360 need not, however, rest upon a determination that the definition of "candidate" in ORS 260.010 is not applicable to ORS 260.360 in an election for membership on a school board.

ORS 260.360 would apply to the fact situation you present because of the broad statement in the statute prohibiting anonymous publications " relating to any election or to any candidate at any election." The intention seems to be clear that the prohibition in ORS 260.360, through its specific application to school district elections via ORS 331.002 is intended to apply to any anonymous publication if it is directly related to the election itself, such as is the case here. Meaning must be given to every part of a statute where possible (Blyth & Co., Inc. v. City of Portland, (1955) 204 Or. 153, 282 P. (2d) 363) and the reference to "any election" is clear. Why the statute, with seeming redundancy, refers to "any candidate at any election" after having already referred to "any election" we are not sure. It is possible that the framers of the law feared that it could otherwise be evaded through personal attacks on office-seekers which attacks might not include a direct reference to the election involved. In the fact situation you present it appears clear that the statement circulated related to the election itself, and did not purport to be unrelated comment upon the merits and demerits of the persons involved.

You state, however, that the reproductions of the newspaper editorial included the name and date of the publication. We are further informed that the newspaper has been long established in the community as a journal of general circulation for reporting local news and is well known to the local citizenry, so that by such identification the responsible source of the comment would be immediately familiar to the ordinary reader of any such reproduction, without further inquiry.

Regarding a statute somewhat similar to ORS 260.360, it is said in Canon v. The Justice Court for The Lake Valley Judicial District of El Dorado County; The People, (1964) 61 Cal. (2d) 446, 452, 393 P. (2d) 428, 431:

"The purpose of the statute is clear. It requires identification so that (1) the electorate may be better able to evaluate campaign material by examination of the competence and credibility of its source, (2) irresponsible attacks will be deterred, (3) candidates may be better able to refute or rebut charges---so that elections will be the expression of the will of an undeceived, well-informed public. * * *"

Under the circumstances presented the purpose of ORS 260.360 has been fully satisfied. We conclude that the circulation of the reproduction of the editorial comment, having included on the face thereof an identification of the source as being a newspaper of general news, long prominent in the community, would not constitute a violation ORS 260.360.