COMMITTEE TO RETAIN JUDGE JACOB TANZER, Rеspondent, v. LEE, Appellant.
Supreme Court of Oregon
Argued October 11, reversed October 22, 1974
petition for rehearing and motion to recall mandate denied November 1, 1974
269 Or. 215 | 527 P.2d 247
Before O‘CONNELL, Chief Justice, and MCALLISTER, TONGUE, HOWELL, BRYSON, SLOPER and LEAVY, Justices.
HOWELL, J.
Plaintiff, the Committee to Retain Judge Jacob Tanzer, filed this action against Jason Lee seeking to declare Lee‘s nomination to the office of judge of the Oregon Court of Appeals vacant and to recover punitive damages and attorney fees. The jury found in favor of the plaintiff and awarded $2,500 punitive damages. The defendant appeals, alleging numerous assignments of error, including the failure of the court to sustain his demurrer on the grounds the plaintiff‘s complaint does not state a cause of action; failure of the court to grant his motion for a judgment of involuntary nonsuit; and failure to give certain instructions.
It is not necеssary that we discuss all of the assignments of error made by the defendant, including the constitutional issues raised, because we conclude that the defendant‘s demurrer should have been sustained as the plaintiff‘s complaint did not allege a cause of action.
This action arises out of the 1974 primary election in which Jason Lee, the challenger, reсeived a majority of votes to defeat Judge Jacob Tanzer, the incumbent on the Oregon Court of Appeals. The plaintiff contends that the defendant published cer
“III
“During the period of May 24, 1974 to May 28, 1974, the date of the election, defendant published and communicated advertising mаterial through newspapers and radio within the state of Oregon which defendant knew contained false statements of material facts relating to the candidacy of Jacob Tanzer and to the plaintiff as follows:
” ‘$72,000.00
” ‘On 2-29-74 my opponent, the present Judge decided that $72,000.00 should be paid from your hard-earned TAX DOLLARS for attorney‘s fees in a condemnation сase. On 5-11-74 the law firm that received this money made a $200.00 contribution to the present Judge‘s campaign. (LEE accepts NO CONTRIBUTIONS.)’
“Said publication was false in that the present judge, Jacob Tanzer, did not decide the amount of attorneys’ fees that were awarded in the case. This decision was made by the trial court. The award was affirmed by the Oregon Court of Appeals, of which Judge Tanzer was only one member. The affirming opinion did not decide the amount that should be paid; it held only that the Court of Appeals was without power to modify the trial court‘s award in that case. Defendant knew that his said publication was false.
“IV
“Plaintiff‘s purpose of promoting the candidacy of Jacob Tanzer for judge of the Cоurt of Appeals was injured by the false publications and communications disseminated by defendant. Plaintiff received the sum of $13,177.50 in contributions during the period within 250 days preceding said election.”
“(1) No person shall write, print, publish, post, communicate or circulate, or cause to be written, printed, published, posted, communicated or circulated, any letter, circular, bill, placard, poster or other publication or communication, or cause any 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, postеr, communication, publication or advertisement to contain any false statement of material fact relating to any candidate, or political committee, or if he is candidate, to himself, or any false statement of material fact relating to any measure.”
To prevail in a cause of action brought under
The plaintiff contends that the defendant‘s statement was false in two particulars: (1) Judge Tanzer
We believe that the distinctions attempted to be made by the plaintiff are without merit. Judge Tanzer wrote the opinion of the Court of Appeals, and to this extent he “decided” the case which was under consideration. It is true, of course, that the “decision” was that of the Court of Appeals, but it is common practice to refer to the judge who wrote the opinion for the court as the judge who “decided” the case. Whether the appellate judge is said to have “decided,” “held,” “concluded,” or to have “written the decision” is only a question of semantics, and to say that a judge “decided” a certain cаse does not constitute a false statement.
The same reasoning applies to the plaintiff‘s contention that the Court of Appeals did not decide the amount of attorney fees to be paid in the condemnation case. The issue presented to the Court of Appeals was whether there was substantial evidence to sustain the amount of attorney fees awarded by the trial court. The decision rendered by the Court of Appeals and authored by Judge Tanzer held that there was sufficient evidence and therefore the award made by the trial court was affirmed. To that extent, the decision affirmed the award of the attorney fees. Again we believe that it requires an exercise in tеchnical legal semantics to attempt to distinguish between whether attorney fees are part of costs or whether there was or was not substantial evidence presented in the trial
To attempt to draw distinctions in the manner suggested by plaintiff would lead the courts into a linguistic quagmire over the meaning of certain phrases or conclusions which are important only to lawyers and may even then be the subject of dispute within the profession. As we stated in Thornton v. Johnson, 253 Or 342, 453 P2d 178 (1969), the courts are reluctant to be placed in the position of becoming “censors of political campaigns” and to “judge thе reasonableness of all campaign statements and the possible inferences to be drawn therefrom.” 253 Or at 362.
The most that could be said about defendant‘s advertisement that Judge Tanzer “decided” and that attorney fees “should be paid” as a result of the decision of the Court of Appeals is that the statements were ambiguous and might have permitted an erroneous inference to have been drawn therefrom. This court in Mosee v. Clark, 253 Or 83, 453 P2d 176 (1969), held that such an ambiguous statement, or the possible erroneous inference to be drawn therefrom, did not constitute a violation of the Corrupt Practices Act.
Reversed with directions to enter a judgment for defendant.2 The mandate shall issue forthwith.
The majority concedes that the statements in question “were ambiguous and might have permitted an erroneous inferеnce to have been drawn therefrom.” The majority then relies upon Mosee v. Clark,1 for the proposition that an ambiguous statement is not false under the Corrupt Practices Act, even though one of the inferences which can be drawn from the statement is false. If Mosee v. Clark stands for that proposition, it certainly should be overruled. It would seem patently erroneous to hоld that a candidate is privileged under the Corrupt Practices Act to make an ambiguous statement capable of both a true and a false meaning with the purpose of deceiving a part of the electorate. The Corrupt Practices Act was adopted “To secure and protect the purity of the ballot.”2 To effect this objective, the standard of conduct of candidates in making representations to the electorate should be at least as high as that which we apply in an action for
Neither in Mosee v. Clark nor in any other of our cases have we suggested that a candidate may insulate himself from the sanctions of the Corrupt Practices Act by making ambiguous statements calculated to deceive a part of the electorate. The most that Mosee v. Clark can stand for is that the court would not infer from the particulаr ambiguous statement an intent to mislead the public. The court was careful to point out that “In the case at bar there was no deliberate falsehood,”5 thus indicating that if the same ambiguous statement hade been made with the intent to deceive, the Act would have been violated.
The majority in the present case takes the position that it is not important to inquire whether Mr. Lee intended to deceive the public by his ambiguous statements. In my opinion, this is an obviously erroneous and indefensible interpretation of our Corrupt Practices Act which invites unscrupulous candidates to formulate cunning ambiguities capable of deceiving large numbers of the electorate. The majority speaks
The fallacy in the court‘s position is quite clear. The legislature, in enacting
The statement that Judge Tanzer decided that $72,000 should be paid for attorney‘s fees is true in one sense and false in another. A large number of people in this state do not know how an appellate court operates and it is possible that some of the voters were led to believe that Judge Tanzer, either acting individually or as a part of a collegial court, had the authority to decide how much attorney‘s fees should be paid in a particular case. A voter who believed this to be true, might well decide to vote against Judge Tanzer, whereas if he realized that neither Judge Tanzer nor the Court of Appeals had the authority to fix attorney‘s fees, he might well cast his vote the other way. To say, as the majority does, that the ambiguity riding on the word “decided” and “should pay” rather than some other expression “is only a question of semantics,” is
When the $72,000 attorney fee referred to in Mr. Lee‘s advertisement was awarded in the trial court, the matter became the subject of editorial comment and general publiс concern. The jury, in finding against Mr. Lee in the present case, could have decided that Mr. Lee, knowing of this general criticism, used the statement that his opponent “decided” that “$72,000 should be paid” for the purpose of inducing the voters to believe that Judge Tanzer actually had a part in fixing the $72,000 fee in the condemnation case. There was amplе evidence to prove that Mr. Lee knew that neither Judge Tanzer nor the Court of Appeals had authority to decide how much attorney‘s fees should be awarded in a particular case and that their only function was to determine whether there was sufficient evidence to support the trial court‘s award.
There was also evidence that аs a caption for the statement in question, Mr. Lee had put in large letters “NOT FOR SALE.”7 The jury could believe that the caption, together with the statement that “the firm that received this money [$72,000] made a $200.00 con
I think that the majority is led into error by its concentration on the word “decided” as if the question of the falsity of Mr. Lee‘s statement could be determined by an examination of the meaning of that word alone. This approach fails to take account of the fact that words must be dealt with in relation to the other words which they accompany and in relation to the circumstances in which they are used. A series of absolutely true statements, taken separately, can convey an utterly false idea when heard together. Even if the word “decided” could be treated as having only one meaning, the statements that Judge Tanzer decided that $72,000 attorney‘s fees should be paid to a law firm, and that the law firm which received the fee made a contribution to Judge Tanzer, and that Mr. Lee accepts no contributions, although all separately true, could convey the false idea that Judge Tanzer made the decision because he was to be the recipient of a campaign contribution. The addition of another presumptively true statement, “not for sale” would clearly permit a false inference that Judge Tanzer was influenced in making his decision. It was for the jury to decide whether these statements were capable of carrying a false meaning and whether Mr. Lee intended that to occur.
MCALLISTER and TONGUE, JJ., join in this dissent.
Notes
A violation of the former Corrupt Practices Act could result in a fine of up to $1,000 or imprisonment for up to one year, or both. [Repealed by
In contrast, the present law allows only for the recovery of genеral and punitive damages and attorney fees,
It is possible for a candidate to have a political committee in each of the 36 counties. It is doubtful that the legislature intended to give each committee a cause of action for the same alleged false statement about their сandidate, nor that a successful candidate who won 35 such cases and lost one should thereby lose the nomination.
The fact that subsection (6) of