Oregon Advisory Opinions October 23, 1981: OAG 81-80 (October 23, 1981)

OAG 81-80.

As contemplated by Or Const Art IV, sec 6, the Oregon Legislature enacted a legislative reapportionment measure in 1981. Or Laws 1981, ch 261. That measure was challenged, and in McCall v. Legislative Assembly, 291 Or 663, 634 P2d 223 (1981), the court held:

"The measure does not comply with subsection (1) of Or Const, art IV, section 6, and therefore is null and void." Slip opinion, p 26. (Emphasis added.)

Pursuant to Art IV, sec 6, the Secretary of State was directed to and did file a revised legislative reapportionment plan, which is now under consideration by the court.

This opinion request arises out of a portion of the reapportionment measure, section 6, which was not itself challenged. It was mentioned in passing at page six of the opinion, but the court did not consider it. Section 6 related to matters affected by legislative reapportionment, but its purpose is not in any way thwarted or affected by invalidation of the legislature's reapportionment, or by the adoption of any other reapportionment plan. We are asked if section 6 remains valid, despite invalidation of the reapportionment as a whole. We conclude that it does not, for two separate reasons.

Oregon Laws 1981, ch 261, sec 6 provides as follows:

"Notwithstanding ORS 260.542, the following may use the term 'reelect':

"(1) A member of the Senate who served in the Sixty-First Legislative Assembly and who is a nominee or candidate for nomination or election in 1982 or 1984 to the Senate.

"(2) A member of the House of Representatives who served in the Sixty-First Legislative Assembly and who is a nominee or candidate for nomination or election in 1982 to the House of Representatives."

ORS 260.542, which is referred to in sec 6, provides as follows:

"No person shall use the term 'reelect' in any material, statement or publication supporting the election of a candidate unless the candidate:

"(1) Was elected to the identical office with the same position number, if any, in the most recent election to fill that office;

"(2) Was elected from the same district from which the candidate is seeking election or, if district boundaries have been changed since the previous election, if the majority of the population in the district from which the candidate is seeking election was in the district from which the candidate was previously elected; and

"(3) Is serving and has served continuously in that office from the beginning of the term to which the candidate was elected."

ORS 174.040 provides:

"It shall be considered that it is the legislative intent, in the enactment of any statute, that if any part of the statute is held unconstitutional, the remaining parts shall remain in force unless:

"(1) The statute provides otherwise;

"(2) The remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the remaining parts would not have been enacted without the unconstitutional part; or

"(3) The remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the legislative intent."

Oregon Const Art IV, sec 6 provides:

"(1) The number of senators and representatives shall, at the session next following an enumeration of the inhabitants of the United States government, be fixed by law and apportioned among the several counties according to the population in each. . . .

"(2)(a) Original jurisdiction hereby is vested in the Supreme Court upon the petition of any qualified elector of the state filed with the Clerk of the Supreme Court prior to September 1 of the year in which the Legislative Assembly enacts a reapportionment measure, to review any measure so enacted.

". . . .

"(c) If the Supreme Court determines that the measure does not comply with subsection (1) of this section, said measure shall be null and void . . . ." (Emphasis added.)

The quoted language clearly indicates that it is simply not contemplated that a legislative reapportionment measure shall contain other provisions not a part of the reapportionment. Validity of such an extraneous provision would thus be in serious question, even if the Supreme Court had approved the measure. But if the court disapproves the reapportionment, the measure "shall be null and void." And as noted above, the court held: "The measure . . . is null and void. It is difficult to avoid a conclusion that section 6 is null and void along with the rest of ch 261, even if it were properly a part of that measure.

But we also conclude that section 6 was not properly a part of ch 261 for another reason. Oregon Const Art IV, sec 20 provides:

"Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an Act which shall not be expressed in the title, such Act shall be void only as to so much thereof as shall not be expressed in the title.

"This section shall not be construed to prevent the inclusion in an amendatory Act, under a proper title, of matters otherwise germane to the same general subject, although the title or titles of the original Act or Acts may not have been sufficiently broad to have permitted such matter to have been so included in such original Act or Acts, or any of them."

The title of HB 2001, which became ch 261, reads in full:

"Relating to reapportionment of the Legislative Assembly; creating new provisions; amending ORS 188.230; repealing ORS 188.210, 188.220 and 188.240; and declaring an emergency."

Is section 6 nevertheless within the subject expressed in the title, or a matter properly connected with it? We think not. It is indirectly connected, in that it relates to elections, and particularly to elections for the newly created legislative districts. But section 6 relates to false statements by candidates. It has no direct relationship to reapportionment. Insofar as it allows a member of the 61st Legislative Assembly who resigns (or in the case of a senator, who is defeated in 1982) and is no longer the incumbent, or who moves and runs from an entirely new part of the state, to run for "reelection" in 1982 or 1984, it is not even indirectly related to legislative reapportionment.

The requirement of Art IV, sec 20 is mandatory. Brugger v. Wagner, 135 Or 615, 297 P 343 (1931); State v. Hawks, 110 Or 497, 222 P 1071 (1924). However, sec 20 is to be liberally construed. Anthony v. Veatch, 189 Or 462, 220 P2d 493, 221 P2d 575 (1950). Its purpose ". . . is to prevent parliamentary mischief, not to strike down valid legislation." Croft v. Lambert, 228 Or 76, 81, 357 P2d 513 (1961). The title requirement prevents the concealment of the true nature of the provisions of the bill from the legislature and the public. Northern Wasco County PUD v. Wasco County, 210 Or 1, 305 P2d 766 (1957); State v. Williamson, 4 Or App 41, 475 P2d 593 (1970). But for a violation to be found, the title must give no notice of the questioned provision; the conflict must be palpably plain. Calder v. Orr, 105 Or 223, 209 P 479 (1922); Clayton v. Enterprise Electric Co., 82 Or 149, 161 P 411 (1916).

A title "relating to election of members of the Legislative Assembly" might well be broad enough to cover all provisions of ch 261. But "relating to legislative reapportionment" does not fairly give notice, in our opinion, that the measure contains a change in the provisions relating to who may use the term "reelect." An act "relating to the protection of salmon" would have been broad enough to justify a prohibition on the placing of obstructions to the passage of salmon in the Rogue River, but a 28-line title specifying many other protections for salmon, but not mentioning obstructions, was not. State v. Bea-

ver Portland Cement Co., 169 Or 1, 124 P2d 1094 (1942). The provision was clearly related to all other provisions of the act: but those other provisions were mentioned or at least generally within the scope of the title; obstructions were not.

An act "to grant to nonresident owners of motor vehicles the privilege of using the highways of the state," and to subject " such nonresident users of the highways" to substituted service, did not justify a provision subjecting nonresident users who were not owners to substituted service, because they were not such users. State ex rel Pardee v. Latourette, 168 Or 584, 125 P2d 750 (1942). This was perhaps a hypertechnical application of Art IV, sec 20. But we see nothing hypertechnical in Multnomah County v. First National Bank of Portland, 151 Or 342, 50 P2d 129 (1935), which held that an act "relating to duties and powers of the county auditor of Multnomah County in auditing of claims" did not give adequate notice that the act went on to authorize the auditor to borrow money when the county treasury did not contain enough money to pay approved claims. Certainly there was a relationship between auditing of claims, and the borrowing of money to pay claims. But the title was not broad enough to cover both of those subjects, or to give notice that borrowing was covered.

We conclude with reasonable certainty that the title of Or Laws 1981, ch 261 is not broad enough to cover, or give adequate notice that it might contain, a provision authorizing members of the 61st Legislative Assembly to use the term "reelect" in circumstances which would otherwise be prohibited by ORS 260.542. We accordingly conclude that section 6 is invalid for this reason as well.

This conclusion leaves ORS 260.542 unaffected by ch 261, and presumably fully applicable to members of the legislature. The second question requires us to examine whether this is in fact the case.

We have quoted ORS 260.542 above. Under ORS 260.993(1), violation of ORS 260.542 is a Class A misdemeanor. A Class A misdemeanor is punishable by a prison term not exceeding one year or a fine not exceeding $1,000, or both. ORS 161.615, 161.635. Under ORS 260.345, a complaint alleging violation of an election law is filed with the Secretary of State, and if investigation so warrants, is prosecuted by the Attorney General. Upon a conviction, if the court determines that the violation was deliberate and material, the defendant shall be deprived of the nomination or (except for a person elected to the state legislature) the election. ORS 260.355. (fn1) A person thus deprived of the nomination or election is disqualified from service during the entire term of the office sought:

Thus use of the term "reelect" in the 1982 primary campaign by an incumbent state representative, residing in a new district which includes some but not most of the population of the district from which the representative was elected in 1980, would subject that candidate to possible imprisonment and to loss of the nomination, and to

disqualification for any office until expiration of the legislative term sought. This is the result if ORS 260.542 is valid, and Or Laws 1981, ch 269, sec 6 is not.

ORS 260.542 is to be contrasted with ORS 260.532, dealing with false election statements generally. Such a false statement subjects the maker to a judgment for punitive and general damages in a civil suit filed by an aggrieved candidate or political committee, and to loss of the nomination or (except for a person elected to the state legislature) the election. The Secretary of State and Attorney General play no role in this process, and the remedies provided by ORS 260.532 are exclusive. No criminal prosecution is possible.(fn3)

The state may constitutionally make it a crime to make a false statement of fact in an election campaign. Time, Inc. v. Hill, 385 US 374, 389-390 (1967); Garrison v. Louisiana, 379 US 64, 75 (1964); see Or Const Art II, sec 8, which provides:

"The Legislative Assembly shall enact laws to support the privilege of free suffrage, prescribing the manner of regulating, and conducting elections, and prohibiting under adequate penalties, all undue influence therein, from power, bribery, tumult, and other improper conduct."

One court has even held that "election" has such a broad meaning that appointed incumbents may be "reelected." Barrett v. Hite, 61 C2d 103, 389 P2d 944, 946 (1964). Contra, Baird v. Maher, 316 Mich 657, 26 NW2d 346 (1947). (Neither case was in a contested election context.) Webster's New Collegiate Dictionary (1977 ed) defines "reelect" as "to elect for another term in office." This again would not even require a previous election by the voters. Even if we narrow the term "elect" to mean "select by vote," "reelect" simply means "elect (by vote) again."

Given this ordinary and usual meaning of "reelect," it is difficult to see how ORS 260.542 can be valid under the First Amendment to the United States Constitution and its equivalent, Or Const Art I, sec 8. It prohibits, under penalty of fine, imprisonment, loss of right to the office or all three, the use of the term "reelect" in many situations in which it is at least a technically true statement, and in some situations in which it has little or no tendency to mislead.

In 33 Op Atty Gen 150 (1967), it was held that a statute prohibiting use of the term reelect except "for incumbents seeking to succeed themselves in the offices they presently hold," would be unconstitutional. Despite the presumption of constitutionality to which ORS 260.542 is entitled, we would quickly reaffirm that previous conclusion, except for a 1968 Oregon case which casts doubt on it.

In Cook v. Corbett, 251 Or 263, 446 P2d 179 (1968), Alice Corbett was deprived of the Democratic Party nomination as candidate for

State Senator from Multnomah County, for which she has the greatest number of votes, on grounds that her election advertising contained false statements in violation of ORS 260.380 (1967 replacement part). Corbett had twice been elected State Senator from Multnomah County, but her second term expired in January of 1967. Her opponent was an incumbent senator.

The statements apparently found by the court to be intentionally and materially false included the following:

"Re-elect Democratic Senator working for you. . . ."

"RE-ELECT SENATOR CORBETT . . . SENATOR ALICE CORBETT WILL continue to OPPOSE. . . ."

"RE-ELECT SENATOR CORBETT because . . . As your Senator (1959-1967) . . . for eight years . . . she has earned the respect. . . ."

"Re-elect Democratic Senator CORBETT."

". . .Re-elect CORBETT State Senator . . . ."

"Vote to Return Corbett to the Senate . . . Re-elect Corbett. . . ."

The court said:

"We agree with the trial court's finding that the campaign statements made by Corbett as described above were false. [They] . . . clearly implied and obviously were intended to create the belief in the reader that Corbett was the incumbent Senator holding Position No. 4 to which she was seeking re-election. The trial court's finding of falsity is not weakened because some of the advertisements . . . on a complete reading disclosed that Corbett's term as a Senator had expired in 1967. The intent to create the belief that Corbett was the incumbent is clearly apparent even in those ads." Cook v. Corbett, supra, 251 Or at 268-269.

We suppose counsel for defendant argued that these statements were not untrue, but there is nothing in the opinion explaining why "reelect" is not an appropriate statement for a twice-elected senator seeking again, after a two-year lapse, to be elected senator. Nor is there any discussion in the opinion of First Amendment considerations. We suppose that "reelect Senator Corbett" and similar statements were arguably untrue in fact, as "reelect Corbett Senator," in our opinion, would not be. The court did not appear to clearly recognize the distinction. Its all-inclusive characterization of the statements as false, may have been meant to cover them collectively.

We suppose that election campaigns would change drastically in their nature if candidates could be prevented from making true statements which the voters might misunderstand, or if they could be prevented from making true statements with a tendency to mislead. Cook v. Corbett, in our opinion, clearly stands for the proposition (nevertheless arguable) that candidates can be prevented from making ambiguous statements with the specific intention to mislead. It only ambiguously stands for the proposition that "reelect" is a false statement for any person not then the incumbent. There are some references to position numbers in the opinion, but we are unable to determine their significance.

ORS 260.542 prohibits use of the term "reelect" in circumstances not within the holding of Cook v. Corbett, however broadly that case is read. We do not ascribe much

significance to the fact that ORS 260.452 prescribes a criminal penalty, while Cook v. Corbett was not a criminal prosecution: to be deprived of the nomination or election, and disqualified from elective or appointive office for the full term of the office sought is itself a drastic enough sanction. We can read Cook v. Corbett so narrowly as only to say that use of the term "reelect" by a non-incumbent former holder of the office can be prohibited when intended to mislead by implying incumbency, and accompanied by other words ( i.e., reelect Senator Corbett) more directly implying present incumbency. ORS 260.542 goes well beyond this. We accordingly conclude that it should be examined for constitutional validity without reference to Cook v. Corbett.

An election contest, and a statement made in it with respect to qualifications of a candidate, falls within the holding of Garrison v. Louisiana, supra, 379 US 64, in which the court said:

We note that in more recent cases, the Oregon court has if anything been more protective of free speech rights under the Oregon Constitution (Art I, sec 8) than the United States Supreme Court is under the First Amendment. See, e.g., Deras v. Myers, 272 Or 47, 535 P2d 541 (1975). We conclude that ORS 260.542 is clearly unconstitutional under the First Amendment to the United States Constitution and Or Const Art I, sec 8, insofar as it prohibits and provides criminal and other sanctions for use of the term "reelect," without other accompanying untruthful or intentionally misleading statements, by any person who is an incumbent or former incumbent by election of the office sought, without regard to position numbers or district boundaries.

As stated above, the state could prohibit, under penalty of criminal sanctions, use of the term "reelect" in cases where such use would be a knowing falsehood. We nevertheless conclude that ORS 260.542 is probably entirely invalid, under the doctrine of overbreadth. It entirely prohibits use of the word "reelect" in all except a narrow class of cases. Its prohibition applies to those who are constitutionally protected in their use of the term, and to those who are not. It also applies to borderline cases in which use of the term arguably is or is not constitutionally protected.

If ORS 260.542 is invalid, members of the 61st Legislative Assembly, and all other candidates for elective office, would remain subject to ORS 260.532. Use of the term "reelect" in circumstances in which it is clearly a false statement, or in combination with other statements clearly intended to state incumbency, when that is false, would presumably justify a civil penalty and potential disqualification from the nomination or (except for legislators) election. It probably would not, we conclude, subject the user of the term to criminal prosecution. If ORS 260.542 remains valid to any degree, any candidate is nevertheless free to use the term "reelect" in any circumstances in which it is a true statement.

"The remedy provided under subsection (4) of this section is the exclusive remedy for a violation of this section,"