Ross Day explains good/bad in HB 2005 initiative bill

Letter from Ross Day, Common Sense Oregon,
to Chair of House Rules on HB 2005

My personal and professional dedication to Oregon’s initiative and referendum system is what brings me before the House Rules Committee. Some of the reforms in House Bill 2005 make sense. For instance, requiring the Secretary of State to conduct background checks of potential petition circulators makes sense because presumably the Secretary of State, through the State Police, has access to more background information than a private company would have. Some of the reforms proposed by House Bill 2005 are on the right track, but need a little tweaking. The proposed reform that fits this category are the turn in requirements found in section 8 of House Bill 2005. It makes sense to have signature sheets turned in early in order to give the Secretary of State more time to count signatures, and we are generally supportive of that concept. Secretary Brown told your committee the intent of this section of the bill is to give the Elections Division more time to count signatures. But it is the consequences of an early turn-in that concern us. An amendment should be made to this section of the bill that would prevent the information relating to petitions turned in early (total signatures, validity rates, actual copies of the signature sheets) from being released to anyone other than the chief petitioner before the final July turn in date in every even-numbered year.

If the purpose of section 8 is to make it easier for the Secretary to count signatures, and nothing else, then there should be absolutely no opposition to such an amendment. But we suspect the intent behind section 8 is not to make it easier on the Secretary to count signatures, but instead section 8 is intended to be used as a tool by certain special interests (and perhaps the Oregon Legislature) to monitor and track the progress of certain initiative petitions. This information would be useful in an attempt to thwart a circulation effort either through harassment of circulators or petition signers, or by having the Oregon Legislature short circuit an initiative petition by putting their own competing ballot measure before the voters.

Finally, some of the provisions of House Bill 2005 are simply unconstitutional.

If you remember anything from this letter, remember that circulating petitions for signatures is the pinnacle of First Amendment protected speech. The right to circulate an initiative petition for signatures involves the type of speech – political speech – that receives the highest order of protection under the First Amendment. Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988). Accordingly, the Legislature should be careful when enacting restrictions on Oregon’s initiative and referendum system, else those restrictions will run afoul of the United States Constitution.

The following sections of House Bill 2005 are fundamentally unconstitutional:

1. Sections 13. and 14. (pages 10 and 11, lns. 33-45, 1-3 of House Bill 2005)

These two sections impose the “reforms” of House Bill 2005, regardless of whether a chief petitioner has gotten through the current initiative process or not. Colloquially, these two sections change the rules in the middle of the game. To any fair-minded person, changing the rules in the middle of the game is simply wrong.

There are chief petitioners who have circulated a prospective petition, gotten a ballot title, and are preparing to circulate their initiative petition(s). These two sections will force these chief petitioners (and those who are currently collecting signatures on prospective petitions) to throw away all of the signatures gathered to this point and start all over.

The unconstitutionality of such a provision should be self-evident.

But just in case there are those on your committee who do not believe such a provision would be unconstitutional, I offer the following legal arguments.

First, the Oregon Constitution requires that in order to qualify an initiative petition for the ballot, a chief petitioner must obtain a certain number of signatures in the manner required by law. See Or. Const. Art. IV, Sec. 1. Take for instance initiative petition #13, currently qualified to be circulated (having gone through the prospective petition and ballot title processes already).

Initiative petition 13 has already garnered 1,000 signatures towards the constitutionally required number of signatures. By requiring the chief petitioners of initiative petition #13 to throw out the 1,000 signatures they have already obtained and gather another initial 1,000 signatures, House Bill 2005 imposes a requirement of an additional 1,000 signatures above -and-beyond what the Oregon Constitution currently requires. Such a requirement, to the extent it conflicts with the Oregon Constitution, is invalid. See State v. Langworthy, 55 Or. 303, 309-310, 104 P. 424 (1909).

Second, under the Fourteenth Amendment, a state cannot deprive a citizen of a fundamental right without due process of law. Anderson v. Celebrezze, 178 460 U.S. 780 (1983). First Amendment rights are liberty rights, therefore fundamental rights. Whitney v. California, 274 U.S. 357, 47 S.Ct. 641 (1927). However the protections of procedural Due Process under the Fourteenth Amendment are not limited to interests which are “fundamental.” The rights at issue – the right to circulate initiative petitions – is on par with the right of suffrage is in fact fundamental for the purposes of a procedural due process analysis. Due process claims are analyzed in two steps: (1) the existence of an interest protected by the due process clauses; and (2) the inadequacy of the procedures provided to protect against erroneous or arbitrary deprivation. American Manufacturers Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 57 (1999); G & G Fire Sprinklers, Inc. v. Bradshaw, 156 F.3d 893, 901 (9th Cir. 1998) vacated on other grounds citing Goldberg v. Kelly, 397 U.S. 254 (1970)).

The exercise of the initiative and referendum power in Oregon establishes an individual’s right to participate directly in adopting legislation:

Article IV, section 1, confers an unfettered right to propose laws and constitutional amendments by initiative petition, and to approve or reject such proposed laws or amendments through the voting process. The case law also fairly can be read to hold that the power conferred by Article IV, section 1, encompasses that which is necessary to its exercise, such as the ability to solicit signatures for initiative petitions and the ability to sign such petitions. Stranahan v. Fred Meyer, Inc., 11 P.3d 228, 242 (Or. 2000).

Oregon courts have long held that the exercise of the initiative power is on par with the right to vote in an election:

Participation in the initiative of measures to be submitted to voters for their approval or repudiation is not an election wherein any choice is required to be made, but an initiative petition affords evidence of a desire on the part of a few persons that the expediency of a proposed law may be determined at the polls pursuant to notice thereof. No great prerogative of the people is violated by the organic act in prescribing a small percentage of legal voters as sufficient to inaugurate a proposed law. The inception of enactments having been delegated by the fundamental law to legal voters, the authority thus conferred is so closely allied to an election, however, that the privilege of signing an initiative petition cannot be abridged by any legislation that would amount to a deprivation of the right. Woodward v. Barbour, 59 Or. 70; 116 P. 101, 103 (1911)(Holding that law requiring initiative signers to be registered voters was void because constitution did not provide for limitation of vested right) (emphasis added)).

Where a state created right exists, government actions that result in their deprivation are subject to the due process clause of the Fourteenth Amendment and require “a hearing prior to the deprivation.” Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996). The protection of due process extends whether or not a right rises to the level of a “fundamental right”, because the cloak of the Fourteenth Amendment acts to prevent the “arbitrary use of government power.” Id. These two sections of HB 2005 deprive chief petitioners of the right to continue circulating their petitions by pulling the rug out from under them, changing the rules in the middle of the game, pick your metaphor. In the effort to circulate petitions, the chief petitioners and the signers have established a vested right to have those signatures counted. These sections of HB 2005 take that right away, in violation of basic standards of due process.

2. Section 2., subsection(9) (page 4, lns. 27-29 of House Bill 2005)

This section says that I can carry a petition for pay, I can carry a petition as a volunteer, but I cannot do both. Further, it prohibits me from carrying both at the same time.

The right to circulate a petition is unquestionably an exercise in free speech. See Buckley, supra. In fact, circulating an initiative petition is exactly the type of speech, political speech, that receives the highest protection by the First Amendment. Id. By telling me that I can carry a petition for pay, or as a volunteer, but not both, you are restricting my right to engage in one-on-one communication by forcing me to choose to either volunteer or ply my trade. Forcing such a

choice on a petition circulator to forgo her constitutional rights in order to obtain a benefit is fundamentally unconstitutional. See Meyer, 486 U.S. at 422-423.

What this section does is prevent a person – on their own time – from circulating an initiative petition. We don’t prevent lawyers, or doctors, or construction workers, or even legislators from circulating petitions on their own free time, why are we going to prevent professional circulators?

This section of HB 2005 prevents a class of citizens from engaging in direct, one-on-one political communication.

3. Section 5., subsection (1) (page 6, lines 39-45 of House Bill 2005)

This section of the bill holds a chief petitioner liable if the chief petitioner knew or “should have known” that a violating has occurred. This section begs the question: How do we determine whether a chief petitioner “should have had knowledge” of something? Better yet, who gets to determine whether a chief petitioner “should have had knowledge” of something? What standards are used to determine whether a chief petitioner “should have had knowledge” of something?

As a matter of due process, a law is void on its face if it is so vague that persons “of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. General Construction Co., 269 U.S. 385, 391 (1926). A law that fails to define clearly the conduct it proscribes “may trap the innocent by not providing fair warning,” and may, in practical effect impermissibly delegate “basic policy matter to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Graynerd v. Rockford, 408 U.S. 104, 108-109 (1972).

Vague laws that implicate First Amendment concerns are particularly disfavored. Id. Where a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms, uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked. Id. at 109 & n.5.

House Bill 2005 fails to answer any of the questions posed in the paragraph above. The lack of any standards the guide a chief petitioner, and the breadth and depth of First Amendment activity that House Bill 2005 would suddenly make illegal make this section of House Bill 2005 a textbook example of an unconstitutionally vague law.

Ms. Olney, the Special Attorney for the Attorney General, told the Committee on Wednesday that the “should have known” standard is [A]kin to standard law making employers liable through respondeat superior for the misconduct of their employees. In both situations, the potential liability serves as an incentive for the employer – or the chief petitioner – to oversee and manage the process.

Ms. Olney’s analogy is flawed in several respects. First, the doctrine of respondeat superior only applies to negligent tortuous conduct committed by an employee. The purpose of the doctrine of respondeat superior is to attach liability to the party that is most likely able to make a person once again whole. The theory posits that an employer is in a position to make a person whole, and therefore justifies attaching liability to the employer.

The doctrine of respondeat superior does not attach criminal liability to an employer for the criminal acts of an employee, unless the employer specifically commanded the illegal act. See State ex. rel. Kruckman v. Rogers 124 Or. 656, 265 P. 784 (1928).

Second, Ms. Olney’s analogy misinterprets the relationship between a chief petitioner and a petition circulator as an employer/employee relationship. Ordinarily, a chief petitioner enters into a service contract with a company that will circulate the chief petitioner’s petition. The company hires employees who actually circulate the petition. This relationship is not unlike hiring a painting contractor to paint your home: as the homeowner, you are not the “employer” of the painting contractor’s employees. Further, there is no theory in the law that I am aware of that would attach criminal liability to a homeowner for the illegal acts of the employee of the painting contractor.

But that is exactly what this section of the bill does – it creates a new standard of liability that does not currently exist in the law. This section imposes criminal liability on the homeowner -or the chief petitioner – even if the chief petitioner never did anything wrong!

4. Section 3., subsection (4(c)) (page 5, lines 27 – 28 of House Bill 2005)

This section adds to the delay three days before I can circulate a prospective petition. Each time they add days it just makes it that more difficult to collect the number of signatures we need to qualify a measure. And the more delay added to the process, the closer they get to violating the First Amendment. See generally Arizona Right To Life v. Bayless, 320 F.3d 1002 (2003) citing Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969)(Holding that a delay in spontaneous speech constitutes a prior restraint on speech that violates the First Amendment).

House Bill 2082 (2007) has already added significant delays to the initiative and referendum process. Adding three more days will tip the balance in favor of a finding that this section is unconstitutional.

There are a number of changes that would need to be made to HB 2005 in order to ensure the bill passes constitutional muster. But if the Committee is serious about enacting reforms to the Oregon System that will make the process work better, and restore integrity to the process, let me suggest adding the following provisions to the bill:

1. Sections 8 and 9 of HB 2005 provide for “rolling turn ins” of signature sheets. There are some logistical problems with this, but they are problems I think we can work around. I would suggest a provision requiring the Secretary of State provide 30 days after the monthly turn in, information to the chief petitioners indicating the number of valid signatures turned in and the current validity rate;

2. Allowing a person whose signature has been “thrown out” in the signature verification process to submit an affidavit attesting that the signature is in fact valid.

3. Under the current law and administrative regulations, a chief petitioner has to sign a separate certification for each person who will be a paid petition circulator for the particular petition. We would suggest an amendment allowing “batch certification” of petition circulators, where appropriate.

4. There is a lot of paper involved in the initiative petition process. We would suggest an amendment allowing chief petitioners to submit information electronically, complete with electronic signatures.

5. In the alternative to #4, we would suggest an amendment allowing chief petitioners to grant a power of attorney to a person to act on the chief petitioner’s behalf for purposes handling all of the filings required by Oregon law.

These are some of the ideas we would like the Committee to consider as you wade into the area of initiative reform. In the event a workgroup is formed, I would appreciate the opportunity to be appointed to the group and included in this very important discussion.

Thank you again for taking the time to consider my thoughts and concerns.

Best regards, Ross Day Executive Director Common Sense For Oregon