Wolfe v. Brown, 432 P.3d 1121

Background

Wolfe was chief petitioner for IP 24 (2012) to legalize personal marijuana possession; the Secretary of State's Elections Division fined him $65,000 (26 violations × $2,500) under Oregon Const. Art. IV, §1b (ban on pay-per-signature) and implementing rules imposing vicarious liability on chief petitioners.
Division rules (OAR 165-014-0260) permit non-per-signature pay methods (hourly, quotas, bonuses) but treat each signature sheet gathered in violation as a separate violation and expose chief petitioners to liability for contractors' conduct.
At the contested-case hearing, Wolfe sought to introduce evidence (affidavits, declarations, trial testimony, industry materials) that pay-per-signature bans and the division’s civil-penalty/vicarious-liability scheme reduce available professional circulators, increase costs, and burden First Amendment core political speech.
The ALJ excluded that evidence as irrelevant, relying on Prete v. Bradbury, and declined to reconsider the constitutionality of Measure 26; the Elections Division adopted the ALJ’s rulings.
On judicial review, the Oregon Court of Appeals held the excluded evidence was relevant to Wolfe’s as-applied First Amendment challenge to the combined regulatory scheme (Article IV, §1b plus vicarious liability and high civil penalty), and that exclusion substantially prejudiced Wolfe; the court reversed and remanded.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of evidence about industry effects	Evidence that pay-ban + vicarious liability and high penalties reduce professionals, raise costs, and burden speech is relevant to as-applied First Amendment challenge	Evidence irrelevant because Prete forecloses constitutional challenge and exhibits concern other states/cases, not Wolfe/IP 24	Evidence was relevant; exclusion was legal error and substantially prejudiced Wolfe; reversal and remand
Scope of constitutional challenge	Wolfe challenged the ban as implemented (rules, vicarious liability, $2,500 per-sheet penalty), not the text of Article IV, §1b alone	Division treated challenge as barred by Prete and focused only on Measure 26 constitutionality	Court recognized Wolfe’s broader as-applied challenge and rejected reliance on Prete as dispositive
Standard of review for relevance exclusion	N/A (seeking admission of evidence)	Agency invoked irrelevance under ORS 183.450(1) and ALJ discretion	Court reviews relevance as a legal question; OEC 401 low threshold applies; exclusion reviewed for legal error and prejudice
Sufficiency of First Amendment claim on remaining record	Wolfe contended the combined rules and penalties might impose a severe burden	Division argued Wolfe did not prove undue burden and penalty did not act as prior restraint	Court did not resolve substantive First Amendment merits on the existing record; rejected some undeveloped arguments and remanded for consideration of excluded evidence

Key Cases Cited

Meyer v. Grant, 486 U.S. 414 (U.S. 1988) (struck down total ban on paid petition circulators; circulation is core political speech)
Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (U.S. 1999) (upheld states’ regulatory leeway but struck provisions that significantly reduce pool of circulators or chill participation)
Prete v. Bradbury, 438 F.3d 949 (9th Cir. 2006) (upheld Measure 26 on the record before that court; factual finding that ban did not impose a severe burden reviewed for clear error)
Independence Institute v. Gessler, 936 F. Supp. 2d 1256 (D. Colo. 2013) (payment-limitation scheme imposed severe burden on petitioners; applied strict scrutiny and invalidated Colorado statute)
Timmons v. Twin Cities Area New Party, 520 U.S. 351 (U.S. 1997) (articulated balancing framework for state election regulations: character/magnitude of burden vs. state interests)
Citizens for Tax Reform v. Deters, 518 F.3d 375 (6th Cir. 2008) (considered threat of criminal or substantial civil penalties in assessing burden of pay-per-signature restriction)