*1 19, 1990, reconsideration Argued censured November submitted June accused 3, 1991 January denied the Conduct of Complaint as to In re FADELEY, N. HONORABLE EDWARD THE Accused. S37022)
(No. 89-13; SC
Susan G. argued cause on behalf Muniz, Justice Fadeley. Garrett, Paul J. De Seideman, Hemann, Muniz, P.C., Salem, & Robertson De filed the briefs. Johnson,
Allen L. Eugene, filed a brief behalf of amicus curiae American Civil Liberties Union. Peterson, Justice, Carson, Gillette,
Before Chief Van 549-a Justices, Howell,
Hoomissen, Unis, Graber, Justice pro tempore.* CURIAM
PER and filed Unis, J., part and dissented in part concurred Hoomissen, J., joined. opinion which Van *3 * See Howell, sitting by designation. Judge, H. Senior The Honorable Edward 1.300(1) (2). ORS
549-b *4 PER CURIAM mandatory pursuant
This case of review to ORS is. 1.430(1) Fact, Findings Conclusions of Law and Recom- Commission on Judicial Fitness and Dis- mendation (the Commission)1 Accused, ability recommending Edward Fadeley, the Honorable N. Associate Justice of court, be censured for wilful violations of the Code of Judicial Conduct. The Accused admits the violations of the Code accused, that, argues statutory he is but he for various which reasons, may disciplined and constitutional he not be for the question. any conduct do not find of the Accused’s We statutory arguments to be well taken. The or constitutional Accused is censured.
FACTS AND PROCEDURAL HISTORY Personal funds a candi- campaign by solicitation date for office and 7D of is forbidden Canons Conduct, provide: the Code of Judicial which judge may “B. A not:
«* * * * *
“(7) contributions; personally judge solicit but a manage financing to secure and establish committees expenses promote public judge’s election and to obtain candidacy; support judge’s statements of for the * * * * 1.410, provides: which Commission is established ORS “(1) Disability Judicial Fitness and There is created the Commission on
consisting of:
“(a) Court; appointed by Supreme judges Three “(b) persons appointed by Three the Board of Governors of the State state; among persons practice in this Bar from admitted to law “(c) qualified persons appointed by under Three the Governor who are not (a) (b) paragraph subsection. either of this “(2) years, ceases to The term of a member is four but whenever a member appointed, membership qualifications meet the under which the member was member, expiration shall of the term of a a successor shall end. Before expira- appointed perform day following the functions of a member on the next cause, vacancy appointing In case of a tion of the term of the member. immediately authority appointment effective for a four- shall make an to become year term. “(3) Appointments by subject the Sen- the Governor are to confirmation provided ate in the in ORS 171.562 and 171.565.” manner *5 provisions apply judge “D. The of this canon in to each person the state at all times and to other becomes a who person A candidate for an elective office. becomes a person an candidate for elective office when taken, candidacy steps announces the or when are with the person’s place approval, or her his name on election ballot.” May 12,1989,
On the Commission notified the Accused that it complaint personally had received a Accused had in with campaign solicited contributions connection his position campaign investigation for the that he now holds. An followed, fully during which Accused disclosed to the Com- during mission those of his activities his for election campaign within clearly to this court arguably even fell prohibitions of Canons and 7B(7) 7D. September
On the Commission served the complaint, Accused alleging that the Accused had vio- lated by personally soliciting Canons and 7D campaign 7B(7) hearing February 16,1990, funds. The Commission held stipulated which Accused counsel for the Commission toas these facts:
“1. Supreme was to the elected Court of [The Accused] Oregon November, election, general and has justice continuously served as an associate on that court since 2,1989. January 2, 1988,
“2. On or about December Labor published, editor, signed by Press as a letter-to-the a letter Accused, justice-elect who was then an associate of this [the soliciting defray expenses of contributions to his cam- court] paign campaign committee incurred for to the election court. June, 1988, campaign organizer meeting, “3. at a [the participated request pledges campaign to his
Accused] committee.
“4. campaign Personal solicitation of contributions occasionally his committee resulted from ask- [the Accused’s] ing representatives campaign business on his to serve finance committee, during 1988. personally “5. solicited finance [The Accused] Bar,
pledges during from some members of the State 1988.” its Find- 27,1990,
On the Commission entered March Fact, Law and Recommendation. The Conclusions of ings It stipulated by the Accused. found the facts Commission 7B(7) Canons question that the acts in violated concluded unanimously It recom- of Judicial Conduct. 7D of Code strongest “in the terms” that the Accused be censured mended final action. is now before us for by this court. The matter 1.420 and 1.430.2 ORS dispute the Commission’s
The Accused does findings that those dispute does he Findings of Fact. Neither Canons and 7D that he has violated both demonstrate Instead, confines the Accused of the Code of Judicial Conduct. *6 (1) assertions that legal in this court to arguments his Accused, the acts in over the jurisdiction Commission had no (2) both, jurisdic- did have or and if the Commission question, question the acts in tion, the Accused for sanctioning then I, section rights under Article would violate his free Fourteenth and the First and Oregon of the Constitution The Ameri- Constitution. Amendments to the United States curiae, (ACLU), amicus can Civil Liberties Union Constitution, that, regula- under the argues separately legislature, a matter entrusted to the tion of elections is on the court, encroaches impermissibly and Canon provides, part: 1.420 ORS judge “(1) any person concerning Upon complaint or the conduct of from Court, investigation request Supreme upon such as the Commis- and after may: necessary, Disability the commission considers sion on Judicial Fitness (3) inquire “(a) hearing pursuant into this section to to subsection Hold a * * * judge; of the the conduct «*** + * * * * “(3) by hearing subsec- the commission as authorized When a is held testimony section, public (1) hearing shall be and all tion of this public judge hearing shall given The in the shall be records. evidence and received counsel, by hearing, represented right present to be to be at such have testimony present witnesses. and to cross-examine and evidence * * *, judge “(4) If, hearing the conduct of the the commission finds that after office, censure, suspension shall recom- justifies the commission or removal judge.” suspension Supreme or or removal Court the censure mend to provides, part: ORS 1.430 “(1) proceedings Supreme under record of the shall review the Court may evidence. The receive additional 1.420 on the law and facts and ORS judge suspended may may judge or Supreme order the censure the or Court
removed from office.” legislature’s authority. We shall consider each of these con- so, tentions in turn. Before doing however, a brief historical discussion is in order. COURT,
THE COMMISSION, THE THE
AND CODE Until there was no provision in the Oregon specifically Constitution governing removal of judges from office this court.3 In year, the legislature referred to the people an amendment judicial article, to the Article VII (Amended) of the Oregon Constitution, adding a new section 8: (1) 8. provided law, “Section manner and not-
withstanding Article, section 1 judge any of this court removed from his Supreme office Court for: “(a) Conviction in state, a court of this or other or of States, the United punishable of a crime felony as a or a crime involving turpitude; moral “(b) Wilful misconduct in a involving office turpitude; moral “(c) persistent Wilful or perform judicial failure to duties; or “(d) Habitual illegal drunkenness or use of narcotic drugs.” Or Laws (SJR) Senate Joint Resolution 9. The amend- ment adopted was 5,1968, the November general election.
Contingent on passage 9, of SJR the 1967 legislature passed also the act creating the Judicial Fitness Commission. Or Laws 1967 ch 294. Section 6 of that 1967 Act4 became ORS 1.420. The section has since been amended expand to the range of sanctions (Or the Commission can recommend 511, 3) Laws 1971 ch and phrase to add the “and Disability” § to (Or the official name of the 520, Commission Laws 1987 ch 5), but its basic thrust has Thus, § remained the same. since the adoption of (Amended), Article VII of the 3 only judge prior II, methods for removal of a § to 1967 were found in Article (recall) (Amend), (removal incompetency, corruption, and Art VII § 6 after trial for delinquency office). malfeasance or in legislative history Mislabeled as “section in 7” the source note to the statute in printed the volumes of the Revised Statutes.
Oregon Constitution,
been
place
there has
in
a mechanism for
disciplining judges through
judicial
a
fitness commission
In re
Piper,
See
726, 730-33,
this court.
Or
Neither
the 1967 constitutional
amendment
nor its
statutory
implementation
mentioned
Code of
the
Judicial
adopted by
Conduct. The Code was not
until
this Court
March
time,
1975.
judicial
governed by
Before that
conduct was
Ethics,
the
by
earlier Canons of
in
adopted
Judicial
this court
1952. In re Piper, supra,
“A including judge, judicial for an incumbent a by public competing office filled that is election between can- funds; campaign may didates should not himself solicit he responsible persons establish to committees of secure and manage expenditures campaign funds of for his and to public support candidacy. obtain statements for of his Such prohibited committees are not from soliciting con- public A support lawyers. tributions and candidate’s may committees solicit for his campaign.” funds Roughly adoption by month after this court Conduct, 1975 Code Judicial a resolution was intro- legislature, seeking duced in the the people refer (Amended), amendment VII that would permit remove, suspend this judges court or censure any judicial violation rule conduct as shall be “[w]ilful by Supreme established Court.” Or Laws Senate approved Joint 48. Resolution The voters the referred con- 4,1975, thereby creating stitutional amendment November Constitution, what (Amended), now Article VII sec- 8(l)(e): tion
“(1) law, provided by manner notwithstanding Article, any judge section 1 of court removed suspended Court, Supreme from his office Court, Supreme censured for: «* * * * *
“(e) violation rule of Wilful conduct as Supreme shall be established Court[.]” *8 Oregon Constitution, (Amended), Article VII thus assumed the form that it day. has retained to this recently, 1,1983,
Most on December prom- this court ulgated Conduct, a revised Code of Judicial this time couched in mandatory terms.5 It contains the present form of Canons 7B(7) and 7D. foregoing history mind, With the we turn to the arguments by made the Accused.
JURISDICTIONAL CONSIDERATIONS The Accused first asks this court to hold that the Commission had no jurisdiction to inquire into his failure to abide the Conduct, Code of Judicial because ORS 1.420 does not mention the Code in its description of the Commis sion’s role.6 The Accused way: reasons this At the same time the people originally granted this authority court to remove judges by the 1967 constitutional amendment, the Judicial Fitness Commission statute operative became gave Commission jurisdiction to inquire any into “complaint from any person concerning the conduct of a judge.” time, At that because there was no Code of Judicial Conduct existence in Oregon, complaint no concerning violation of the Code could have been made to or considered Later, Commission. 1975, when this court the former version of the Code adopted and the people, by their Oregon Constitution, enactment of (Amended), Article VII 8(1)(e), authorized this court remove, suspend or censure a judge for violation of “[w]ilful any rule of judicial conduct as shall be established Supreme Court,” ORS 1.420 was not amended to specify that language, (the hortatory Code) The form of the whether 1975 version of the (the mandatory Code), dispositive. 1983 version of the has not been treated as See In Piper, 726, 534 re (1975) (1975 provision 271 Or mandatory). P2d 159 Code treated as that, acknowledges may provide, The Accused whatever ORS 1.420 this court jurisdiction pursuant specific provisions now has over him to the of Or Const Art VII (Amended), Thus, suggests, inquiry § 8. the Accused into the Commission’s statutory powers point may at this be irrelevant or abstract. We think that If, argues, authority Accused retreats too soon. as he had no Commission investigate complaint against instance, authority him in the first that lack of way acquired authority least colors the this court its own over the Accused for the purpose disciplinary proceeding, proceeding purports of this because this to be based terms, argument the record made before the Commission. In constitutional disciplining authority the Accused for acts over which the Commission had no disciplining provided by would not be him the manner law.” “[i]n
violations of the Code within purview came of the Com- follows, argues, mission. It the Accused Commission has no jurisdiction such complaints. consider *9 argument
That ingenious, unacceptably is but hyper- technical. A wilful violation of Code of Judicial Conduct is as judge,” much “the conduct of a as that is phrase used in 1.420, ORS as would any other forms of conduct reviewable Moreover, Commission before 1975. this that, court has held never before a judge’s violation of (adopted 1952) Canons of Judicial Ethics by this Court in would an inquiry by have been irrelevant the Commission “concerning the conduct a If judge.” anything, we have implied contrary. Piper, See re Or at 736 n 12 (discussing prior Ethics, Canon 30 of the Canons Judicial but that indicating “superseded by had been Canon 5F of new [1975] Code”). Any legislative expansion juris- dictional statement of the Commission in ORS 1.420 to professional include “violations of the code conduct” there- fore surplusage; would have been the Commission had that jurisdiction day at least from the the Code itself became bind- ing on This judges. argument is not well taken. that,
The Accused also all argues because of the acts of which he was accused occurred while he awas candidate for a when judgeship judge-elect, he was a and none occurred duties, after he his judicial assumed the Commission lacks jurisdiction Again, disagree. over him. we clear, instance,
It “judge” is the first includes a judicial position candidate for under the Code of Judicial Conduct. 7D specifically provides: Canon provisions apply judge
“The this canon to each person state at all times and to other who becomes a candidate an elective office.” (Emphasis apply It clear supplied.) equally that to the lim- sitting judges, allowing itations of Canon while their as-yet-unelected opponents campaign unfettered 7B(7), advantage challenger. leg- would create an for the islature intend so little did not the Commission to have and so jurisdiction activity. foregoing ineffective over For the reasons, authority we conclude that the Commission’s judge” of a “concerning the conduct complaint inquire into in this case. acts of the Accused encompasses the Finally, argues the Accused complaint. The the court is an election proceeding before “the especially statutory authorization lack of Commission’s constitutionally jurisdiction over troubling when it seeks 7B(7)’s prohibition personal elections. Canon mandated placing statutes in conflict with election solicitation seems upon candidate and responsibility conduct for election publications. personally authorize requiring the candidate to 260.532(2).” 260.522 and ORS personal by the Accused7 deal with
The statutes cited concerning pub- office public of candidates for responsibility lished matter. provides: ORS 260.522 section, “(1) person printed, Except provided in shall cause to be no *10 matter, broadcast, mailed, any
posted, published, circulated or otherwise written photograph relating any any or to election or to candidate or measure broadcast election, person responsible any for unless it states the name and address of the publication, including publication the the person. a statement that the was authorized “(2) complies requirements the Federal A radio broadcast which with the of regulations required the address Act and under it is not to state Communications person responsible person responsible if the the for the broadcast the of political is a candidate or committee. broadcast
“(3) (1) apply prohibition to: under subsection of this section does “(a) Any principal sign relating if the cam- to a candidate the candidate or displays responsible sign sign paign the for the and the committee of candidate is candidate; the or the name of “(b) prepared Any relating election under written matter to a measure at city, county governing body referred the of the or district that the direction impartial, supports opposes passage neither nor of measure if the written matter is city, county the or district. the measure and contains the name and address of “(4) Any previously published which has been written matter or broadcast publisher publication clearly identified when is shall have the and date of (1) publication under of this section. referred to listed subsection residence, “(5) purposes the of a ‘Address’ for of this section means address conveniently office, person may headquarters or similar location where the be committee, person political of If is the address shall be the address located. the organization political ORS in the statement of under the committee included 260.042.” 260.532(2) provides: ORS publication advertisement “A who of and consents to a or candidate knows knowledge disregard
prohibited by that it con- or with reckless this section with fact, regardless whether section of false statement of material violates this tains a directly publication participated in the or advertisement.” the candidate has necessary There is no inconsistency between the Commission’s and proceedings question, the statutes in or with general. Nothing the election laws in in Oregon Constitu- tion, (Amended), Article or 1.420, pur- VII section in ORS ports limit jurisdiction to the of this or court the Commission to inquire wrongful conduct, into even when that same con- duct also might punishable in some other forum on the basis of other laws. puts spin
Amicus curiae ACLU a different on this aspect inquiry by that, of our arguing the extent the proceedings of the Commission and this court constitute the regulation elections, of such proceedings Oregon violate Con stitution, IV, (“The legislative Article section power of the ** * * * state Legislative *.”) vested in a Assembly and Constitution, III, Article section 1 (Separation of Powers).8 provisions When these two constitutional are read Constitution, II, conjunction (“The Legislative Assembly shall support enact laws to of privilege suffrage, free prescribing regulat the manner elections, ing, conducting and and under prohibiting adequate penalties, all therein, undue influence from power, bribery, tumult, conduct.”), improper argues, other ACLU it is clear legislature constitution leaves to the alone the power regulate to provide penalties elections and for vio lations of election rules. persuaded.
We are not We nothing forego- find ing constitutional sections that establishes that branch not itself regulate election activities its mem- potential bers and that, members. We also think extent that such matters are deemed have been within originally alone, purview legislative branch the people, the adoption by people Oregon Constitution, Article VII (Amended), legislature the enactment *11 may relinquishment ORS 1.420 be seen as a limited of por- a tion power of their over the people such matters and the legislative branch the branch.
8 III, 1, Constitution, provides: Oregon Article of section the powers seperate “The of the Government shall be divided into three [sic] departments, Executive, administrative, Legislative, including the the and the Judicial; person charged depart- and no with official duties under one these ments, any another, except shall exercise the functions of this as in Constitu- provided.” expressly tion
559 pro had jurisdiction Commission hold that the We he is acts with which concerning the Accused against ceed we, likewise, have to disci jurisdiction charged. We hold that acts, they extent constitute those to the pline the Accused for proceed Ethics. We of the Canons of Judicial wilful violations of the Accused arguments the constitutional to examine amicus. CONSTITUTION,
OREGON
I,
8
ARTICLE
SECTION
I,
8,
pro
Article
section
Constitution
write,
print
right
speak,
any
“restricting
scribes
law
repeatedly
This court has
whatever.”9
freely
any subject
on
certain
says: although
means
provision
held that the
what
forbidden, restrictions aimed
may
be
speech
harmful effects
itself nor
speech
not at the harm but at the content of
See,
Assn. v.
mally
e.g., Oregon State Police
impermissible.
are
den_US
(1989),
Oregon,
State
Or
Not even Article is absolute are certain exceptions sweep. Among exceptions to its Lasswell, conduct, see, 296 Or e.g., rules of In re professional (1983) restricted may validly P2d be (prosecutor prosecu- of a criminal says during pendency in what he see, tion), exceptions, e.g., State v. as well as certain historical Robertson, rule). (stating may possi- Or It supra, 293 fund solicitation proscription ble to fit the on direct or, as discuss exception an historical we into however, think, conduct. We post, professional rule of before us in a more problem reach one answer to the we straightforward way. Constitution, provides: opinion, restraining expression passed or restrict- the free “No law shall be whatever; write, every print freely subject ing right speak, but right.”
person responsible shall be for the abuse of *12 noted, As previously we have the 1976 amendment to Constitution, Oregon (Amended), 8, Article VII section con- specific tained a right reference to the this court to disci- pline judges any for violation of of judicial rule “[w]ilful conduct as Moreover, shall be established [this court].” already existed, there at the time when that amendment to the 7B(2), constitution was to people, submitted the Canon former which the contained same restriction on personal solicitation of campaign was, funds that is under consideration here. This therefore, a phrase situation in which the of judicial “rule specific conduct” had a that meaning voter could have up, looked if he or she wished to do so. In referring “any to rule conduct,” proposed constitutional amendment did, was referring to rules that at the time and in future might, degree ability restrict to some to judges speak freely. The adopted by amendment people. was Because the was amendment are adopted, there two — potentially conflicting in provisions the constitution Arti- I, cle (Amended), section VII Article section 8. It is our function to harmonize the two. difficulty that, context,
We
no
holding
have
in
in this
I,
it is Article
section
that is
people,
modified. When the
right
speak, write,
the face
a pre-existing
print freely
to
on any subject whatever, adopt a constitutional
amendment
that by
import
its fair
pre-existing right,
modifies that
later
given
amendment
Hoag
must be
its due. See
v. Wash
ington-Oregon Corp.,
588, 612, 144
574, 147
75 Or
Pac
Pac 756
(“It
(1915)
that,
is a familiar rule of construction
where two
provisions of a written
are
repugnant
each
[constitution
other,
that which
last in order of time
in local
position
** *.”).
preferred
be
To
deny
hold otherwise would be to
provisions
equal dignity
later-enacted
of the
as
constitution
portions of the same
document.
hold
fundamental
We
7B(7)
Oregon Constitution,
does not offend
section
because rules such as Canon
contem
were
plated
consequence
adoption by
people
Constitution,
(Amended),
8.
Article VII
section
See In
re Piper, supra,
Lasswell was the District of Douglas County. His office was prosecuting approximately persons for in large-scale drug activity. involvement Lasswell com- a newspaper pro- mented both interview and a television gram relating then-pending on facts to the cases. The Oregon charged violating 7-107, State Bar him with DR which forbids comment either extrajudicial prosecution or defense on a range topics related to the merits of the underlying prosecu- ground tion. Lasswell defended on the that his statements I, protected by were Article 8. to the Lasswell case is approach
Because this court’s here, pertinent analysis approach so to the we set out that length: some
“Unquestionably any persons rule that in terms directs not to particular square make kinds of is difficult to statements expression, guarantees particu- constitutional of freedom * * * larly those Constitution. “* * * guarantee forecloses [The] [of 8] laws, prohibitory the enactment of at least in the form of sanctions, outright prohibitions by punitive backed whatever,’ speech any subject writing terms forbid or ‘on prohibition an unless it can be shown that the falls within original or historically modern version a excep- established liberating princi- tion that was not meant to be ended ples purposes for guarantees which the constitutional * * * expression adopted. free were decisions [This court’s] preclude particular would enactment text of disci- [the plinary outright prohibition rule at against dis- issue] by persons or generally against closure discussion publication by those to whom the disclosure or comments made. were present
“But disciplin- that does not decide the issue. [The ary general prohibition against a anyone not who rule] might bearing disclose or discuss pending facts on a criminal prosecution. parts here involved are [the rule] * * * specifically lawyer addressed associated with the ‘[a] prosecution potential sanction, of a criminal matter.’ And the though of lawyer, punitive pro- course serious to not a but * * * civil, penal. fessional. It is * * “* incompatibility rule addresses between a [T]he function, prosecutor’s including responsibility official his preserve trial, that, conditions for a fair though privileged against professional sanctions, other than proper performance vitiates of that function under the short, specific lawyer circumstances of the case. In is not write, speak, denied freedom to publish; but when one responsibility exercises conducting prosecution official *14 according standards, to constitutional one also undertakes the professional responsibility protect to those standards what * * * says he or she or writes. * *
a*
* *
disciplinary
“The
purposes
prospective
rule deals with
effects,
completed
pros-
not with
harm.
It addresses the
professional
responsibility
ecutor’s
at
time he or she
speak
incompatible
what
chooses
to
or
At
it is
write.
that time
professional performance
with his or her
in a concrete case to
extrajudicial
make
on
statements
the matters covered
* **
lawyer
rule
when
or
knows
is bound to know that the
pose
process
statements
a serious
threat
and imminent
to the
* * *
question
and acts with indifference to that effect.
is
[T]he
lawyer’s
not whether the tribunal believes that the
comments
impaired
trial,
may may
the fairness of an actual
which
place.
rather,
question,
lawyer’s
have taken
The
is the
intent
knowledge
making published
when
and indifference
state-
highly
that
likely
ments
were
to have
effect.”
Lasswell,
In
supra,
re
(citations omitted).
The analogy between Lasswell and present case is obvious: Each case regulation speech pub- involves the of a servant; lic each an allegation involves of violation of a code of professional conduct; and each involves a claim of conflict between the code professional protection conduct and the I, However, argues 8. the Accused that there are at least three distinctions between Lasswell and the pre- sent case that make the reasoning and the result in Lasswell inapposite.
The
argues
Accused first
that
in order
speech
restriction on the
public
of a
servant like
himself
valid under Article
question
must be
“incompatibl[e]”
public
with the
servant’s “official function.”
Lasswell,
In re
true,
rights of a Attorney District speak freely and the right of a criminally accused to a fair trial. Some balancing of those competing rights was required. disciplinary rule case was relatively constitutional because of the minimal bur- den placed on the Attorney’s District ability speak. Id. at 7B(7). 125. The same justifies rationale The stake of the public judiciary in a is both honest in fact and honest in appearance profound. is A demo- society that, ours, cratic many decisions, like leaves of its final both otherwise, constitutional judiciary to its totally dependent on the scrupulous integrity of that A judiciary. judge’s request direct for campaign contributions a quid offers pro or, least, quo perceived can be public to do so. Insulating judge from such direct solicitation eliminates (at least) appearance impropriety and, extent, to that preserves judiciary’s reputation for integrity. On the other side ledger, seriously impaired candidate is not — ability either in the to solicit and receive funds a committee — permitted ability do that or in the otherwise to com- municate the position candidate’s issues the candidate — is entitled to address something the candidate himself or *15 may do, herself long message as as the does not include a request for funds.
The Accused next argues that the Lasswell rationale should apply case in which the opposi- interest protected tion to that by I, Article section is not constitu- tional in magnitude. We justification see no confining so Lasswell; it is clear that no language from that case itself requires Rather, such a limitation. ought issue to be — whether the offsetting societal interest whether derived — from the constitution of from some other source is of funda- importance mental degree to a akin to expressed the concerns in the constitution. For already stated, the reasons we hold interest integrity and the appearance of judicial integrity is an offsetting societal interest of that kind.
It also that, be said respect least with to the placed limitation on judges by 7B(7), competing interest is of constitutional magnitude. When a judge directly funds, solicits the request puts pressure on person solic- ited, especially (as case) when is often person solicited lawyer. is a lawyer has an absolute right constitutional support whom he or she pleases, money both with and with a vote. that,
The Accused also argues to the extent that the Lasswell depends I, rationale phrase in Article 8, that “every person shall be responsible for the abuse of this right free speech],” the device of defining speech a kind of [of “abuse” is a dangerous approach which threatens general freedom conferred analysis section 8. Our here depend does not on that rationale.
We hold that enforcement this Court of Canon 7B(7) of the Conduct, Code of Judicial pursuant to the autho- (Amended), 8(e), rization of Article VII of the Oregon Constitution, impair does not right Accused’s to free expression under the Constitution.10
FIRST AMENDMENT that, The Accused if argues even the restrictions on embodied in Canon do not offend the Oregon Constitution, they impermissibly political do interfere with speech protected by the First Amendment to the United narrowly, disagree reading. The dissent reads Lasswell more but we with that reading primarily quotations separate, We note that the dissent bolsters its opinions single justice cases, later authored of this court. None those later however, professional involved civil enforcement of a rule of conduct. *16 Constitution,11 States which is applicable made to the states through the Due Process Clause of the Fourteenth Amend- ment. assume,
The parties agree, and we dona- seeking support tions to (including judi- elective office office) and, cial is a form speech particularly, more a form of political expression under the First Amendment. Political expression is at the heart of the expressed values in the First Valeo, Buckley 1, 25, Amendment. v. 424 US 96 S Ct 46 L (1976). Ed However, 2d 659 even this most sensitive area of public discourse, every not law and regulation limiting speech Relatively unconstitutional. significant pro- limitations on tected “may First Amendment rights be sustained if the State demonstrates a sufficiently important and employs interest closely means drawn to avoid unnecessary abridgment of asso- ciational freedoms.” Id. at 25.
As we have explained, elsewhere the interest 7B(7) (made Canon applicable to the Accused through Canon 7D) protects is the state’s interest in maintaining, only integrity of the judiciary, but also the appearance of that integrity. persons actively most interested in judicial races, and persons are who the most consistent contrib- utors to campaigns, lawyers potential are liti- gants. The impression created lawyer potential when a or litigant, who from time to time come before a particular judge, contributes to the campaign judge of that is always Although unfortunate. many lawyers may or most act with viz., pure motives, qualified to ensure a judiciary and to ensure vigorous public debate, the outside observer cannot but think that the lawyer potential litigant expects either to get spe- or, least, cial judge treatment from the at the hopes get to such that, so, treatment. It follows if it is all possible to do spectacle lawyers or potential litigants directly handing money over to candidates should be if avoided public impartiality is to have faith in the judiciary. of its
So long judges process, are chosen the electoral it will impossible deny lawyers to and potential litigants the provides, part: The First Amendment to the United States Constitution * * * * * * “Congress abridging shall make no law the freedom of or the * *
right
people peaceably
to assemble
to
right
give to
campaigns
deny
judges
right to seek
Both
contributions.
activities are
important
too
in the scheme
of things
permit
either to be forbidden outright. See First
Belotti,
National
Bank Boston v.
435 US
98 S Ct
(1978) (Massachusetts
obtain funds to out a campaign spec- but eliminates the ter of going contributions from the hand of the contributor the hand of the judge. The limitation on the ability to raise *17 funds need not cause suffer, the if the judge picks good people for his or her campaign finance committee. It is committee, true that task, the however well may suited to the have trouble obtaining judge might much as the have raised by personal buttonholing, point. but that is the
The decision of the
Supreme
United States
Court
that we find
helpful
most
in this area is Ohralik v. Ohio State
Assn.,
447,
Bar
1912,
(1978).
436 US
98 S Ct
Both
complained
women
county
Ohralik’s
bar
association, which censured him. The case was then reviewed
12
using
speech”
The dissent criticizes this court for
a “commercial
case as author
ity
dealing
present “political speech” problem.
If Ohralik were all that we
for
with the
upon,
might
specifically provides
be well taken. But Ohralik
relied
the criticism
Arizona,
analytical
350, 97
bridge
2691,
between Bates v. State Bar
433 US
S Ct
53
Primus,
(1977),
re
L Ed 2d
810
and
436 US
98
L
S Ct
56 Ed 2d 417
(1978),
post.
relies,
principal
Primus
both discussed
case on which the accused
it
political speech
case,
day
as Ohralik. The dissent’s
is a
and it was decided on the same
analytical relationship
between Ohralik
Primus
failure to see the
and
is one of the
primary
approach
errors in the dissent’s
to the entire First Amendment discussion.
Court,
Supreme
Ohio
which increased
sanction
suspension.
Supreme
an indefinite
The United States
Court
the case
Ohralik’s claim that his
granted review in
to address
legal
two
was
pro-
solicitation
women’s
business
tected
the First and Fourteenth
That Court
Amendments.
disciplinary
against
that
did
held
action
Ohralik
not vio-
protections upon
late
he
the constitutional
which
relied.
previously
Court had
held
advertising
con-
cerning
availability
legal
and terms
routine
services was
Arizona,
Bates v. State Bar of
protected
speech.
commercial
(1977).
US
Ct
L Ed 2d
97 S
Ohralik
Bates. The Court found Bates
relied
it
inapposite. Although
true,
was
the Court acknowledged,
that commercial
solicita-
tion was
degree
protection,
entitled to
limited
it was clear
many
forms of such speech
could be limited
laws
securities,
regulating
exchange
price
the sale
production
among competitors,
information
and the like.
Assn.,
v.
Ohralik Ohio State Bar
supra,
On hand, noted, the other Court implicated particularly “The state interests in this case are strong. general protecting addition to its interest in con- transactions, regulating sumers and commercial the State special responsibility maintaining bears a for standards ** * among professions. members the licensed * * * *
“* * * prophylactic The Rules prohibiting solicitation are prevention objective measures whose is the of harm before it applied discipline occurs. The Rules were in this case to a lawyer soliciting employment pecuniary gain for for under likely consequences circumstances in to result the adverse situation, inherently State seeks to avert. In such a which misconduct, overreaching conducive to and other forms of strong adopting enforcing State has a in interest rules of designed protect public conduct from harmful solicita- by lawyers tion whom it has licensed.” (citations omitted). Id. 436 US at A prophylactic rule under such circumstances did not violate the Constitution. Id. at 466.
Although pains the Court in Ohralik was at to point commercial, out dealing political, that was speech, underlying point equally 436 US at we think that applicable is, here. There in-person the context of solicita- funds, tion of campaign certainty appearance of an impropriety high degree overreaching and a of likelihood of requesting undue influence The has a judge. state fun- damental interest those avoiding consequences, an interest 7B(7). it has by promulgating vindicated More- over, that Canon narrowest, asserts the state’s interest in the least way possible legitimate intrusive consistent with the purpose of the think supports rule. We that Ohralik the result that we reach in this case. Primus, principally Accused relies on In re (1978),
US
98 S Ct
The United States Court review of
569 disciplinary action. The Court Primus’ case and reversed powers regula- that broad in the recognized enjoy first states forbid, in professions, extending power tion of even to instances, by lawyers solicitation who “in-person certain [are purely legal to communicate commercial offers of seeking] Primus, at 422 lay persons.” supra, assistance to In re 436 US Assn., v. Ohio State Bar Primus’ case (citing supra). Ohralik Ohralik, differed from the Court said: in-person pecuniary gain. was not solicitation for “This Appellant communicating was an offer free assistance ACLU, attorneys predicated associated with the not an offer any monetary recovery. on entitlement to a share of And her express personal political actions were undertaken to beliefs objectives ACLU, and to advance the civil-liberties gain.” rather than to derive financial atUS 422. That distinction made all the dif- Ohralik ference, far rights so as Primus’ First Amendment were con- cerned. The long activity Court had held that collective aimed at obtaining meaningful access to the courts was a fundamen- See, Button, tal First right. e.g., Amendment NAACP v. 415, 83 (1963). 328, 9 US S Ct L Ed 2d 405 Like the NAACP case, engaged offering Button the ACLU in Primus was legal primarily profit, services not for its own but to further civil goals long espoused. libertarian the ACLU had Therefore, held, the Court in punish- South Carolina’s action ing Primus soliciting political for a client for purposes could only stand if it “exacting scrutiny” applicable survived the such limitations on “core rights.” First Amendment In re Primus, Valeo, supra, 436 (citing Buckley US v. 44-45). 424 US at
Judged by
standard,
that exacting
application of the
disciplinary
against soliciting
impermissibly
rule
a client
infringed Primus’ First
rights.
Amendment
The solicitation
influence,
letter did not
involve
mis-
overreaching,
undue
—
representation, or
privacy
invasion of
the substantive evils
the bar rule was
did there
meant
alleviate. Neither
appear
any danger
to be
of conflict of interest or of the crea-
bottom,”
tion of a frivolous lawsuit.
“At
“the case rests on the that a [Primus] regulate may prophylactic State all fashion solicitation lawyers potential activities of because there some interest, overreaching, conflict or other substantive evils lawyer gives whenever a unsolicited advice and communicates representation layman. offer to a Under certain circum- *20 stances, approach appropriate is in that the case of simply ‘propose[s] a that commercial In the transaction^]’ association, however, political expression context of a regulate significantly greater precision.” State must with (citations omitted) (footnote omitted). Id. at 437-38 On the hand, other had Primus’ actions been such toas involve undue influence, like, overreaching the seems clear that the approach paralleled Court’s would have that in Ohralik. Not political entirely even the nature of offer Primus’ immunized scrutiny. her from
This is case not like Primus. The Canon here does broadly so sweep disciplinary did the rule there. Solicitation of surrogate funds a of the is judge’s permissible; choice only personal solicitation the is foreclosed. The lim- judge protected itation on the First Accused’s Amendment expression and is far association less extensive than was the limitation in Primus. Equally important is the fact that expression by Canon forbids direct the Accused on one extremely viz., only, request narrow for a subject contribution. The to urge candidacy Accused free his in anyone any way. activity other The in the Accused this clients, far in-person case more resembles the solicitation of with its inherent influ- dangers overreaching and undue ence, which Supreme Court held be in could forbidden Ohralik, carry than it does the of a solicitation client for- Supreme ward a civil liberties cause Court found be protected in Primus. case on the us
Although
exactly
law
issue before
is not
(and
legion, the Accused has cited no case
we
found
have
none) argument
judge
which a court
sustained an
that a
has
entirely by
complying
is excused
First
Amendment
contrary
with the Canons
Judicial Conduct. Cases
Kaiser,
275, 287-89,
include
re
111 Wash 2d
SANCTION carefully Commission and thoughtfully explained reasoning its in selecting a recommended sanction. *21 Because the analysis substantially Commission’s mirrors our own, we set it out at length: some unanimously
“The Commission recommends the Oregon Supreme Court in strongest censure the [the Accused] terms. against personal
“The rule solicitation is not a mere tech- nicality. requirement At the obligation root of this is the of judges judicial and indepen- candidates alike to maintain the impartiality judicial system, dence and of the in both fact and public’s perceptions. in terms judge personally of the When a contributions, campaign lawyers, solicits litigants and cit- izens come to believe that the Judge in will be influenced politi contrary exclusively The dissent’s conclusion relies almost on freedom of cases, e.g., County Committee, cal association Eu v. San Francisco Democratic Central 214, 109 (1989), Tashjian Republican Party 1013, 103 v. 489 US S Ct L Ed 2d 271 of Connecticut, Renne, 208, 107 Geary 544, 93 (1986), v. 479 US S Ct L Ed 2d 514 and (9th 1990). cases, wrings primarily glittering F2d 280 Cir Even from those the dissent — generalities certainly, nothing contrary of them holds in to the result we reach however, disturbing, logic following here. It is that the dissent to see fails where the of necessarily political sweeps broadly, those cases leads. If “freedom of association” so Oregon’s nonpartisan judicial system would follow that election would be unconstitu judge Republican, example. certainly A tional. could run as a Democrat or Such Geary, step seems the next after the Ninth Circuit decision on which the dissent relies (to candid) (even terms) suspect wrongly which but we is on its own decided.
the future knowledge direct of who has contributed to his campaign. or her promoting public aimed at integrity judicial system by insulating confidence the of the judicial a campaign candidate from the of contri- solicitation protect butions. The Canon also serves members of the bar pressure direct judges solicitation before whom they may appear regular on a basis. Violation of the canon politicizes, damages integrity of, judicial election process.
66** * * * personally has admitted that he solicited “[The Accused] campaign throughout contributions as a routine matter his essential, disregard rudimentary, yet a total judicial campaigns. disregard judi- tenet of election Such afor particularly cial discomforting person canon when Supreme Supreme violation is a Court Justice. The Court is Thus, Oregon’s most visible court. conduct its members Moreover, upon judges reflects all of the State. Supreme vests in the Court the ultimate
[Constitution responsibility discipline judges who violate the law rules A Court, the Supreme conduct. Justice of sits who in judgment for judges, scrupulously the conduct other must Supreme adhere to the rules which the Court itself has adopted. short, Oregon Supreme Justice Court highest By must be held to the violating standard for ethics. rules, own Court’s ethical failed to [the Accused] expected high meet the standard conduct office which he was elected. difficulty
“The determining Commission has had appropriate Supreme sanction to recommend to the Court. factors, The Commission has taken into account number of including likely whether violations were [the Accused’s] have affected the outcome of election. Some considera- sanction, pointed tions towards a more severe and there was * * * support some go beyond on the Commission to a censure. balance, though, public “On the Commission believes that *22 strongest by Supreme censure the terms the Court the * * * sanction which best fits the of this circumstances case. * * * voluntarily admitted his and violations [The Accused] provided many Certainly, ignominy the details about them. being Supreme Oregon the first Court Justice in to be sub- jected discipline by colleagues penalty. his minor is no unanimously Commission therefore recommends that [the] Oregon Supreme publicly Court censure [the Accused].” appropriate agree
We is the sanction. censure this that the Accused There can be no doubt from record 7B(7). wilfully hand, there violated Canon On the other was surreptitious nothing or underhanded about his conduct. He only actions, admitted his but also assisted Commis- personal identifying sion in to which he had extent had potential campaign. We contact contributors his have repeated no reason to think that the incidents be will requires any greater publica- the Accused sanction than the opinion publicity pro- tion of this and the attendant to ceeding.
The Accused is censured. part, part. concurring dissenting
UNIS, J., Today extraordinary this court holds that it has the power possessed by equal the other heretofore executive —not legislative government adopt and branches of and enforce —to judicial Oregon Rights. rules of conduct that violate the ofBill agree
I that the Commission on Judicial Fitness and Disability (Commission) jurisdiction and this court have over subject alleged both the matter of the Accused’s violation of person Accused, and over the of the aas candi- judicial date for an elective office as Associate Justice extent, this court. To that I concur. accept majority’s reasoning I cannot, however, (e) Oregon that, because voters in 1976 added subsection (Amended), Oregon Constitution, Article VII “expression opinion” “speech” rights guaranteed by I, 8, Article section Constitution must subor- conflicting judicial promulgated dinated to a rule of conduct personal Moreover, this court. I believe that solicita- mere tion of funds a candidate for elective Oregon’s constitutionally system office in is mandated elective protected I, under Article showing government Constitution, in the absence of “highly likely” that a such effect of solicitation is actual harm government case, to the office. In this has made no 7B(7), showing. would, therefore, such applied I hold that Canon charged for conduct which the Accused is in this government case, violates Article 8. section Because has request personal failed to show that the ban on the mere *23 574 funds a candidate for elective office interest, compelling
serves a state I would hold that Canon 7B(7), as to the conduct applied which the Accused case, charged violates the First and Fourteenth Amend- ments to the United Constitution. States complaint
I the would dismiss Commission reasons, brought against has the Accused. For these I respect analy- respectfully dissent with to the constitutional ses.
I.
CONSTITUTION,
I,
OREGON
ARTICLE
SECTION 8
I,
Oregon Constitution],1
“Article
section 8
[of
laws
the free
of
separately precludes
‘restraining
expression
write,
as
as
opinion’
‘restricting
right
speak,
well
laws
* *
510, 515,
freely’
Henry,
*.” State v.
302 Or
A. Method of governmental To determine whether a enactment —a rule,5 statute,3 ordinance,4 unconstitu- disciplinary or a 1 I, 8, provides: Article section Constitution opinion, passed restraining expression or restrict- “No law shall be the free whatever; write, every speak, print freely subject ing right but person responsible right.” shall for the abuse of this 2 674, 680, 773 (1989) (a era, Lloyd Corporation P2d 1294 See v. 307 Or court Whiff government). principles much other branches of must observe constitutional as the 531, See, Oregon, e.g., Oregon 308 Or P2d State Police Assn. v. State (1989) (statutory provision purports deny police participa state officers all which unconstitutional); Henry, beyond political voting State v. held 302 Or tion in activities (statute 510, 732 (1987) criminalizing knowing possession dissemination and P2d 9 I,
tional under
during
this court’s decisions
past
suggest
analysis.
decade
a method of
I will first set
methodology
apply
forth that
and then
it to this case.
The first inquiry
govern-
in our assessment whether a
mental enactment violates Article
the Oregon
that enactment on its
Constitution
is whether
restrains
face
expression
opinion”
“free
or restricts
the “right
Moyle,
whatever. State v.
speak” on any subject
299 Or
Robertson,
see also State v.
(1985);
If the enactment
restrains
expression
the “free
of
opinion”
“right
speak,”
or restricts
then a second
inquiry
necessary.
is
That
inquiry is whether
the restraint or
restriction was well established when the
guar-
first American
speech
antees of freedom of
adopted
were
one
that those
guarantees demonstrably were not intended to abolish. State
v. Henry,
supra,
514,
City
see also
Hillsboro v.
521;
302 Or at
of
Purcell, supra,
City
Portland
554-55;
306 Or at
Tidyman,
v.
of
174, 179,
306
State Moyle, supra,
(1988);
Or
“[T]he
showing
overcome
the mere
legal
of some
restraints on one
speech
or another form
writing.
party
opposing
privilege [i.e.,
claim of constitutional
government]
must
demonstrate
guarantees
expression
of freedom of
replace
were not
intended
the earlier restrictions.”
invalidated);
Robertson,
(1982)
obscene material
State v.
293 Or
If the enactment’s
restraint or restriction does not
historically
excepted
intended to
involve
that was
be
inquiry
necessary.
from Article
then a third
enactment,
as writ-
question
That
is whether
focus
ten,
or harm that
is on an identifiable actual effect
itself. See id. at
proscribed, rather than on the communication
*25
695;
Or at 192
City
Tidyman,
supra,
Portland
v.
306
(Gillette, J.,
See also
State Police Assn. v.
concurring).
531, 536,
(1989);
541
Oregon,
State
308 Or
577 prohibiting restricting text, harm in its rather than the use words, held, face,7 then the law will not be on its to violate I, Instead, 8. be section will scrutinized to determine protected appears whether it to reach communications8 or interpreted narrowly whether it can be to limit its reach to occurs, situations where harm and thus to avoid such over- inquiry third breadth.9 If the answer is that the enact- proscribes expression words, ment harm, or the use of rather than I, 8,10 claim,
it violates Article section unless there ais infringement constitutionally pro- here, as on otherwise speech justified “incompatibility excep- tected under the inquiry I, event, tion” 8. to Article In that a fourth needs be addressed. inquiry speech
The fourth whether constitutionally prohibited outright not incompatible is nevertheless performance special
with the
of one’s
role or
recognized
function. This court has
that there are some activi-
generally
ties that lawmakers could not forbid citizens
from
doing,
they may
incompatible
but that
declare to be
with the
public
Examples
role
work of a
Lasswell,
official.
are: In re
supra (professional disciplinary rule survived the accused’s
challenge,
narrowly
constitutional
because this court
inter-
preted
coverage,
it so as to limit
its
in the words of Article
prosecutor’s
“right
speak,
to a
“abuse” of the
7
challenge
law, written,
A facial
to a law is a claim that the
is “invalid in toto.”
Village
Flipside
Estates, Inc.,
489, 494 5, 102
Estates v.
n
55 US
S
Hoffman
Hoffman
1186, 71 L
(1982), quoting
Thompson,
432, 474, 94
Ct
Ed 2d 362
v.
415 US
S Ct
Steffel
1209, 39
(1974).
L Ed 2d 505
Robertson,
(statute
supra,
prohibited causing
See State v.
n 3
at issue that
effect, coercing
conduct,
overbreadth,
harmful
another into undesired
invalidated for
specified
by threats,
privileged
because it
coercion
which covered
as well as
unprivileged speech).
Moyle,
691, 705
Compare
(1985) (overbroad
v.
State
299 Or
P2d 740
antiharass
prohibiting
person
causing
ment statute
harm
another
narrowed to the con
by lawmakers)
Purcell,
City
stitutional confines intended
v.
n
Hillsboro
(overbroad
ordinance could not be narrowed to constitutional confines intended
boundaries).
lawmakers where court was unable to discern its intended
Spencer,
(1980) (disorderly
See State v.
289 Or
write, print freely subject v. Cooper or on 4J, 380, Or 723 298 Dist. No. 301 P2d Eugene School (1987) (discussed (1986), 942 in case- appeal dismissed 480 US (1987)) (a validly L note, 23 Willamette Rev 955 statute could I, Article public rights school teachers’ under sections restrict (freedom worship religious opinion guarantees), of 2 and 3 limited when teacher’s if statute was to “circumstances religion his or dressing accordance with the standards of her with school’s commitment to main- truly incompatible is atmosphere religious of neu- taining for its students [an] Blumenauer, 380); and Burt v. 299 Or trality[.]” 301 Or (1985) (public advocacy against P2d of a vote for or 699 168 measure, normally essence of individual disputed ballot incompatible in some speech, may free circumstances duties).11 infringes An an individual’s enactment public “incompatibility speech, justified on and that not under I, challenge. 8 exception,” an Article section cannot survive I, B. under Article Section 8 Analysis Case of I, Written, 8 7B(7), on Article Section Impinges 1. Canon As Rights. 7B(7), on its face Canon prohibition
The
embodied
written,
expression of
(as
terms),
the “free
by its
restrains
Const,
I,
speak.”
Or
Art
opinion”
“right
and restricts the
§
candidate,
7B(7),
any judicial
applies
8. Canon
which
* * *
7D,
personally
solicit
“A judge
Canon
states:
**
directly
The
*.”
canon’s ban
campaign contributions
(which
pub-
political
includes the freedom to
speech
affects
views),
which rests at the
political
inviolability
licize
I,
8 free-
process
of our
and Article
core
electoral
Oregon, supra,
See
State
Assn. v. State
doms.12
Police
11
exception”
applies only
“incompatibility
when the breach of
thus
provision may
assignment
disqualification
governmental
or office
result in
from
sanctions;
apply
regulatory
the sanction for the breach
civil or
it does not
when
other
penal (criminal)
provision
governmental
See
State Police
nature.
(Linde,
531, 539-41, 783
(1989)
J., concurring);
Oregon,
P2d
v. State
308 Or
7
Assn.
Lasswell,
553;
supra,
Purcell,
City
supra,
125.
In re
296 Or at
Hillsboro v.
306 Or at
7B(7)’s
personal
campaign contributions
also
solicitation of
ban
I,
political right
guaranteed
See
implicates
section 26.
to association
Purcell,
556, 9,
City
n
we said:
Or at
where
Hillsboro v.
persons
only
support
soliciting
in their
“Not
a total ban on
financial
would
(either
doorstep, by telephone
by post)
free
attack
face
homes
on the
(1985),
Moyle,
705 P2d
see
v.
299 Or
under Article
State
*27
308 Or at
speech
536
is an
(“[pjolitical
essential
form of
expression protected by
I,
8”);
Article
section
Cooper v.
Eugene
4J,
Sch.
(political
Dist. No.
301
atOr
377
expression
described as “the
of
essence
individual
free
speech”).
Thornton,
550, 553,
See also Ivancie v.
250 Or
443
(1968),
(1969);
P2d 612
State,
cert den
Because Canon impinges I, on Article section 8 rights, necessary proceed to the inquiry second in our analysis. 7B(7)
2. Canon Does Not Restrain “Expression Opinion” of or Speech Historically That Was Excepted Intended to be I, From Article Section 8.
The Commission has not met its burden of demon- strating that the proscription 7B(7) in Canon is a restraint that was well speech established when the guarantees free adopted were and is one that those guarantees were demon- strably not intended to abolish. As this court stated in State v. Henry, supra, 521, 302 Or at guarantee constitutional of “[t]he * ** speech free will not be overcome showing mere legal some restraints on one or speech another form of or writing.”14 majority The does attempt justify not Canon 7B(7) under a exception I, historical 8, to Article section 310 Or at 560. Nor will I.
The Commission authority cites no support its assertion that solicitation of campaign funds a candidate for an or, elective office for matter, by a candidate for elective office in Oregon, was restricted at the time the
implicates
I,
26,
I,
26,
Article
section
as well. Article
section
of the
provides:
Constitution
“
passed restraining any
‘No law shall be
of the
inhabitants
the State
assembling together
peaceable
in a
manner to consult for their common
good;
instructing
Representatives;
nor from
applying
their
nor from
to the
”
Legislature
grievances (sic).’
for redress of
13
Myers,
47, 52-64,
(1975) (law
See also Deras v.
272 Or
The communication, identi- rather than type of proscribes a 7B(7)’s is directed at ban effect. Canon a forbidden fying harm. It specified of a itself, prevention not toward speech I, unless Article is, therefore, invalid under “incompatibility justified is under speech infringement claim, I a makes such Commission Because the exception.” analysis. in our inquiry the fourth turn to Apply. Does Not Exception Incompatibility The 4. my disagreement heart of inquiry is the
The fourth 8. The analysis of in its majority with the Lasswell, hold that Canon supra, to In re relies on majority speech rights political 7B(7)’s the Accused’s prohibition on integrity and the in interest by “societal justified majority The Or at 564. integrity.” 310 appearance states: present case Lasswell and the analogy “The between public speech of a regulation of each case involves
obvious: violation of a code servant, allegation of involves an each conduct, of conflict involves a claim and each professional protection professional conduct and between the code I, section 8.” of Article Or at 563. disciplinary
“The rule was constitutional [Lasswell] relatively placed because minimal burden it on the * * * Attorney’s ability speak. District to same The rationale 7B(7).” justifies Canon at 563. Or misreads Lasswell. The majority majority and, incompatibility exception redefines the contours of the doing, substantially so speech guarantees reduces the free our state constitution. To demonstrate in the majority’s flaws reasoning, I will first forth set the standards that court this has articulated about the incompatibility exception and then apply them to this case. Lasswell,
In gave this court birth to the incom- patibility exception. recognized The court speech that that could not constitutionally prohibited be outright may nev- ertheless, under narrowly circumstances, defined be found incompatible performance with the special one’s role function. See Oregon, also State Police Assn. v. State of Lasswell, (Linde, J., 308 Or concurring). In court held an attorney disciplinary rule could constitu- tionally prosecutors commenting restrict publicly on pending cases they with which are associated if the rule was narrowly actual incompatibility limited between the prosecutor’s and the function, including official his responsi- bility preserve the person’s a right impar- fair trial Lasswell, tial jury. held we the test applied determining prosecutor’s whether comments constitute disciplinary violation rule is whether: incompatible *29 is prosecutor’s] professional per- with “[I]t [the in a concrete case to make formance extrajudicial statements by on the matters covered the rule either with the intent to case, factfinding process the in lawyer affect the or when a or is pose knows bound know that the statements a serious process and imminent threat to the and acts with indifference therefore, that subsequent disciplinary effect. In a inquiry, question the not is whether the tribunal believes the lawyer’s trial, impaired comments the fairness of an actual may may rather, place. question, which or taken have The lawyer’s is the and indifference when knowledge intent or making published statements that were highly likely to have added.) (Emphasis this effect.” 296 at Lasswell professional disciplinary Or 126. The in rule 582 under challenge” the accused’s constitutional
“survive[d]
it
I,
narrowly interpreted
this court
section
because
I,
a
coverage,
limit its
in
words of
section
“to
the
[A]rticle
write,
speak,
freely
‘to
right
print
‘abuse’ of the
prosecutor’s
”
ileged
enactment,
spelled
function need not be
out
the text
likely”
a
“highly
must
to be
government
but it
be shown
Lasswell,
Incompatibility,
Turning present to the could, by law, forbid candidates whether the state question personally soliciting office generally elective directs IV, of the Federal Constitution funds. Article every guarantee States shall State United “[t]he in the Implicit Republican Form of Union Government^]” them- duty part is “a on the States Clause Guarantee v. Happersett, Minor provide government.” selves to such
583 (21 Wall.) 162, (1874). republican govern- US 175 A form of directly ment “a all or government powers is which derives its indirectly great body people.” the of the The Federalist Madison) (J. (R. 1981). 112 No. 39 at Fairfield ed It is “con- on principle, supreme structed that the Power resides Chisholm, (2 Dall) body people.” Georgia, the v. 2 US (1793) Wilson, J.). (opinion of As stated the Duncan, Supreme re United States Court in In 139 US (1891), republican “the of form distinguishing feature” of the of government right people “is the to choose their own administration, governmental pass affairs for and their own laws.” principles
“The
representative
of
government
[are]
enshrined in our [Oregon and
constitutions.” Burt v.
Federal]
Blumenauer, supra,
princi-
It forgotten too often that elections exist for Oregon’s people, not for or parties. through candidates It is the political process representation of election and public maintains control government; over at the victory polls comes with it the An right govern. essential feature of representative government presentation to the electo- varying points rate of public view. Members have the right to make informed choices and select candidates office for on they whatever basis deem relevant. Free helps discussion informed, they citizens become intelligently so can vote Constitution, example, Governor, for mandates election of the V, 4; Legislative Assembly, VI, see Article section members of the see Article 1; State, id.; Secretary Treasurer, id., officers, county State certain see VI, Article section 6. speech represent is, therefore, inti- those who them. Free mately process governing. Representative related to the democracy meaningless protections without the would be guaranteed political matters, sec- free political guaranteed rights association, tion *31 provisions permit public I, to Article 26. Those section conducting govern by all itself a critical examination of pro- personnel policy choices of and affected electoral cess.16 constitutionally process
A electoral based mandated necessarily pub- public requires that for choice candidates choice lic office must have the financial means to make that campaigns. Campaigns require possible. require Elections Today, example, partisan for funds.17 for candidates elective longer responsibility party to the to assume office no can look campaigns. Oregon does have for the cost of their public public “public and fund” from which officials would-be help pub- financial to them officials obtain assistance promote public. messages Moreover, and to the licize their Campaigns campaigning privately owned. and the media of campaigns therefore, are, to those resultant contributions necessary process. Campaign components of electoral compara- costs for all means of communication have escalated - - bly rapidly public and and the need officials and would- for engage fundraising public activities officials to in serious grow year. to continues each
Surely, prohibiting unquestioned it is statute 55, Myers, supra, “recognize[d] importance In Deras v. 272 Or at this court assembly expression opinion over-all electorate’s of and liberties of system government our federal and that of established state and constitutions” democracy’ important rights toas have termed the ‘cornerstone of and so been “[t]hese * * Deras, 62, holding ‘breathing space’ protection require Or at that a and I, Oregon limiting expenditures campaign violates Article section of statute Constitution, stated: court public important impedes channels of communication on closes or law] “[The expression protection freedom where the of issues and thus denies citizens system necessary preserve government.” right the most our constitutional Oregon, principle Police Assn. v. State This court reiterated that State supra, 308 Or at n 6. judicial campaigns, concerning interesting For an discussion the costs recent Renne, 280, 291-92 (CA 1990) (Reinhardt, J., concurring). Geary see v. 911 F2d for their cam- soliciting support personally candidates from Arti- challenge under could not survive constitutional paigns I, mandated electoral Oregon’s constitutionally cle section 8.18 public anticipates choice the need system that bases itself on go directly to the public for candidates for elective office anticipates It also the need for people support. to ask for necessary finance personally request candidates funds candidates for campaigns. their Normal communications of include, words, for public requests support office in other personal funds. A ban on solic- personal requests campaign I, implicates itations of funds also Article Purcell, 306 Or at n 9.19 City 26. See Hillsboro v. personal campaign support solicitation of therefore, is, generally funds candidates for elective office Oregon’s those candidates’ roles in constitu- compatible with tionally process. people mandated electoral If the of the State they do, the election of require, public wish to officials, cannot, legislature then it follows that the consistent all candidates for elective forbid funds. public personally soliciting campaign office *32 Because forbid candidates for the lawmakers cannot public generally personally soliciting elective office from cam- (in funds, question the paign then is whether the lawmakers rulemakers) proceeding, the nevertheless forbid the personal campaign by judicial solicitation of funds a candidate is the role or function of incompatible on the basis that it with a To the in the context of this case and judge. phrase question previously within the this court has stated concern- principles I, 8, of ing “incompatibility exception” the to Article section statutory protected provision implicates Such a also the candidates’ voters’ I, 26, by rights participation guaranteed the of association and Article section * * * * “* * specifically Oregon Oregon’s Rights guarantees Constitution. Bill of the political right good,’ of the inhabitants of the State ‘to consult for their common grievances, representatives, apply legislature instruct their and to to the for redress of (1979). I, Richmond, 469, 474, 591 [Ajrticle 26.” In re 285 Or P2d 728 section Purcell, 4, government City holding n in had In Hillsboro v. local ordinance, authority regulate subject door-to-door solicitation to constitutional and, limitations, question in but the so-called “Green River ordinance” was overbroad Constitution, therefore, I, because it invalid under Article section time, prohibited any purpose any for at we said: all solicitation soliciting support persons only in “Not would a total ban on financial (either doorstep, by telephone post) face free
their homes on the or I, Moyle, P2d 740 Article see State v. 299 Or attack under (1985), implicates as well.” the Constitution: Has the Commission shown that a “highly likely” effect of the Accused’s admitted personal mere solicitation of campaign contributions is actual harm to the judicial it, office? Without addressing and without fortiori it, answering the majority concludes that Canon is con- stitutionally justified by “societal injudicial integrity interest appearance and the integrity.” majority rea- sons: public judiciary
“The stake of the
in a
that is both honest
in
appearance
fact and
profound.
honest
is
A democratic
that,
society
ours,
many
decisions,
like
leaves
of its final
both
otherwise,
constitutional and
judiciary
totally
to its
depen-
scrupulous
dent on
integrity
the
judiciary.
judge’s
of that
A
request
direct
quid pro
for
contributions offers a
quo
or,
least,
perceived
public
can be
the
to do so.
Insulating
judge
the
from such direct solicitation eliminates
(at
appearance
least)
and,
impropriety,
extent,
to that
preserves
judiciary’s reputation
integrity.
On the other
ledger,
side of the
seriously impaired
candidate is not
—
ability
either in the
to solicit and receive funds
a committee
—
permitted
ability
to do
otherwise to com-
position
any
municate the candidate’s
issues the candidate
—
is entitled to
something
address
the candidate himself or
may do,
herself
long
as
message
does not include a
request for funds.”
The majority’s reasoning is flawed for several rea- First, sons. because public profound has a “interest integrity and appearance of judicial integrity,” simply there is associate, no reason to or to assume that associate, electorate would a judicial personal candidate’s by itself, request funds, for campaign corruption, bribery, dishonesty, purchase justice, particular other Myers, Deras v. impropriety. supra, this court held that a statute restricting money the amount of spent that can be *33 support oppose or public candidates for office violated Article I, section 8. The court concluded that money was not a cor- rupting influence in political when campaigns proponents of the law limiting campaign spending had made no factual record support such a conclusion. 55. See also Or at 272 Willner, A Second Look at Constitutional Interpretation in State, Pioneer Populist 93, 103-04 (1988). Or L Rev majority’s personal The conclusion that solicitation candidate, funds otherwise constitu- campaign judicial and, therefore, tionally protected political speech, justified is incompatible judicial constitutional because it is with the conclusion, supported only by speculation. office is a bare The Oregon’s conclusion is inconsistent with constitutional man- judges. date of elected has not the state to show majority required ” “highly likely
actual harm to the
office to be a
effect of
funds,
the Accused’s
solicitations of
as our
personal
campaign
See,
Lasswell,
e.g.,
In re
supra.
require.
decisions
Rather
prior
assessing incompatibility
per-
than
at the time the Accused
see id. sonally
funds,
126;
his requests
campaign
made
Oregon
Oregon,
State Police Assn. v.
supra,
State
308 Or at
(Linde, J.,
concurring),
improperly
assumes
majority
incompatibility
abstract,
on the basis of an
generalized,
7B(7)’s
unsupported
finding
prohibition
“that Canon
on the
political speech rights
is justified
societal inter-
[AJccused’s
in judicial
integrity
est
and the appearance
integ-
rity.”
There not one iota of evidence in the record in this or proceeding empirical data of which this court aware support majority’s conclusion that the health of the judiciary, image, or its was in fact harmed the Accused’s personal solicitation There only funds. sur- mise.
Moreover, * * * phrase[d] court the constraints of the “[t]his Code of Judicial Conduct on * * * political activity judges. (defined ‘political activity’ Canon 7 does not forbid as such including speak publicly, the canon as or [contribute funds, property], or to lend one’s name to solicit] [services political purpose political organization), only or a but when political activity produces one of four stated [effects incompatible Canon the drafters considered 7A] judicial office.” Oregon, State Police Assn. v. State 308 Or at (Linde, J., concurring). Those four effects stated “political activity”
7A are that: “(1) persons, organizations specific issues involves *34 require judge’s disqualification 3(C); that will a under Canon or
“(2) impar- creates a reasonable judge’s doubt about a tiality persons, organizations toward or factual issues that foreseeably may judge come before the court on which the serves, disqualification whether or not actual becomes neces- sary; or “(3) support (as lends judicial the of the office distinct individual) judge private
from the as a to a cause other than justice; the administration of or “(4) jeopardizes public gov- of the of confidence or political judicial
ernment officials in impartiality of the government.” branch of * ** effect has to be assessed at time of
“[T]he political activity; simply it is not assumed at the time of the State Police v. State Assn. enactment Canon [of 7].” of Oregon, J., (Linde, 308 Or concurring). 7A, judge judicial Under Canon a may or candidate not solicit if campaign funds it has one of those effects. Con- 7A, versely, under Canon solicitation funds campaign that does not produce any prohibited. of those is not effects “political activity” produces
Whether that one or specified more of the four in justifies effects Canon 7A infringement protected otherwise need not be proceeding. addressed in this The any record devoid of facts a support finding personal that Accused’s solicitation produced funds of those effects. “appearance of impropriety” is not one of four stated in effects activity,” funds, 7A. “Political such as solicitation is not merely produces appearance that of impropriety stated in the rule to with incompatible judicial be office. Canon 2 Conduct, of the Code Judicial not Canon “appearance addresses of impropriety”: “A Judge Impropriety Should Avoid and the Appearance All Impropriety Activities judge respect comply “A. A should and law public promotes should act at all a times manner integrity impartiality judiciary. confidence in the judge family, social, A “B. not should allow or other rela- tionships judgment. judge A influence conduct or pri- prestige the office to advance the should not lend the others, convey permit judge interests of nor should a vate they special convey impression in a are others to testify judge. judge A not position influence the should voluntarily as a character witness.” canon, appears not” “should” or “should
When rule under which a hortatory; binding the text is See Code disciplined. candidate Model judge 1990), House of adopted by the (August of Judicial Conduct 7,1990. on August of the American Bar Association delegates *35 impropriety goal. of is a laudable Avoiding appearance to avoid such an judge judicial The failure of a candidate not, by protected speech in his or her is appearance exercise action, itself, disciplinary however.20 basis for for recognize I that a state need not treat candidates other elective offices. judicial office the same as candidates for key A in from other elective judicial respects office different constraints, may, state to constitutional subject offices. The the conduct of its the differences in mind. regulate judges with example judicial inap- “For the contours of the function make propriate particularized pledges same conduct kind of very campaigns in are the office that stuff of for most non- judicial mayoralty offices. A can and candidate for often program, should announce his determination to effect some particular question city policy, reach a result on some or to particular group. expected advance the interests of a It in may predetermined by campaign his decisions office judicial commitment. Not so the candidate for office. He [or cannot, proper consistent with the exercise of his she] [or her] powers, particular judicial bind himself to decide [or herself] programmatic given cases order to achieve a result. More- over, judge pro- acts on individual cases and not broad grams.” Louisiana, Judiciary State 565 F2d
Morial v. Com’n of (5th 1013, 98 1887, 56 L Ed 1977), cert den 435 US S Ct Cir (1978). A candidates may require 2d 395 state for can be higher office to maintain a standard of conduct than Conduct,” speech, In a entitled “The Code of Judicial at the Conference, 16,1982, Swanson, April attorney eloquently Judicial Leslie M. Jr. advo standard, “appearance impropriety” aspirational cated that the is fine as an but it is itself, not, however, not, by judges disciplined. something which It is should be sufficiently speech. strong interest to subordinate free
expected in other types of elective contests. Judges and law- yers are members of a responsible profession, and their profession’s adherence to their ethical standards may require what, abstention from circumstances, other would be con- stitutionally protected See, e.g., Lasswell, behavior. In re supra.
Nevertheless,
the state cannot require
person
who
becomes a candidate for judicial office to surrender all speech
rights guaranteed by
I,
Article
of the Oregon Con-
stitution. A professional disciplinary rule that is a restraint on
speech by judges because they
judges
are
could not survive a
constitutional
challenge under
section 8. See In re
Lasswell, supra,
125;
Richmond,
296 Or at
In re
285 Or
474-75,
(1979) (same
A has an obligation to fulfill the placed trust her, him or and in judiciary whole, as a to use the office and power in a manner consistent with the constitutionally required oath of office.21 “As oath of show[s], [that office] [Oregon] does not contemplate that [judges] [Constitution will act they think best and leave the constitutionality their acts to the v. Cooper Eugene 4J., Sch. Dist. No. courts[.]” *36 364, 301 Or at n 7. It should be assumed that judges and lawyers who seek to become judges by will abide their solemn uphold oaths to integrity and honor of their profession and legal system. of the judicial A candidate’s personal mere VII, 7, Oregon provides: Article section of the Constitution “Every court, judge supreme entering upon of the before the duties of his office, subscribe, secretary state, shall take and and transmit to the the follow- ing oath: “ ‘I,-, solemnly (or affirm) do swear I that will support States, the constitution of the United and the constitution of the Oregon, faithfully State impartially discharge and I that will the duties judge state, supreme of a according my of the court of this to the best of ability, accept office, any except offices, I judicial and that will not other ” during the term for which I have been elected.’ XV, 3, Constitution, Oregon See provides: also Article section of the which “Every person appointed any Constitution, elected or to office under this shall, entering thereof, support before on the duties take an oath or affirmation to States, State, the Constitution of the United and of this and also an oath of office.” any (unaccompanied funds itself request campaign protected help defray campaign expenses impropriety) to Constitution, I, Oregon section of the under Article “highly that a showing by government of a in the absence judicial actual harm to the effect of such solicitation is likely” (state) failed simply in this case has office. The Commission likely” per- of the Accused’s “highly demonstrate a effect to the campaign funds is actual harm sonal solicitation judicial office.
II.
(AMENDED),
VII
SECTION
ARTICLE
OF THE OREGON CONSTITUTION
I find to be the astonish-
majority
reaches what
7B(7)
ing and untenable conclusion “that Canon
does
Constitution,
I,
offend the
Article
because
a conse-
contemplated
rules such as Canon
were
Constitution
quence
adoption by
people Oregon
(Amended),
According
Article
section 8.”
tially conflicting provisions in
the constitution
(Amended),
8. It is our
and Article VII
section
function to harmonize the two.”
*37
by import pre-existing its fair right, modifies that the later * * * given amendment must be its due. To hold otherwise deny provisions would be to to later-enacted of constitu- fundamental equal dignity portions tion as of same docu- ment.”
That chain premises of contains problems. serious To problems, understand those an examination history of the the 1976 amendment to Article (Amended), 8, VII section helpful. original Oregon Code Judicial Conduct was
adopted 11, time, by this court on March 1975. At that only sanction available for misconduct removal was Const, VII, office. Oregon types Art 8.22The of mis- § former (1) conduct which removal was authorized were conviction of a felony (2) other crime involving tuipitude; moral wilful (3) misconduct office involving turpitude; moral wilful or persistent (4) perform judicial duties; failure to and habitual drunkenness or illegal drugs. use narcotic Id. April 3,1975,
On
request
of the Commission on
Fitness,
48)
Judicial
(SJR
Senate Joint Resolution 48
was
in the legislature.
Explanation
introduced
See
to Ballot Meas-
2,
ure
Pamphlet, Oregon Primary
No. Official Voters’
Elec-
tion,
May
“Appendix A.”
proposed
1976. See
SJR 48
(Amended),
amend
then Article VII
Constitution,
expand
grounds
on which this court could
include,
alia,
discipline judges to
inter
violation
“[wjilful
rule of
conduct as shall
established
[this
added)
(emphasis
and to
give
authority
court
court]”
censure,
suspend
remove,
as to
judge.
well
errant
Id.
adopted by
30,1975,
SJR 48 was
the Senate on April
20,1975.
May
the House on
When
48 was
SJR
under
House,
History
consideration
Senate and
“Senate
B”)
(see “Appendix
proposed
Sheet”
for the
constitutional
Piper,
730-33,
(1975)
history
See In re
(legislative
271 Or
“Amending Constitution, Oregon upon approval, give to voter authority Supreme suspend Court judge from office or to performance, judge incompetent bringing censure for conduct judiciary disrepute any judi- into or wilfiil violation of rule of presently cial conduct and modifies cause mis- stated of wilful in office.” conduct
SJR 48 was referred to the electorate as Ballot 2 Measure No. to be primary May 25,1976.23 voted on the election of The measure,24 voters overwhelmingly approved thereby the creat- ing (Amended), what nowis Article VII section 8.25 majority’s existed,
The “there premise already that the time (Amended), when that amendment VII [Article 8, section of the was submitted to the Constitution] the same people, 7B(2), Canon which contained former 23 2, election, primary May 25,1976, Ballot No. Measure at the read: “DISCIPLINE OF JUDGES “Purpose: providing Supreme may Amends constitutional section Court misconduct, judge by authority adding Supreme remove a from office for certain of suspend judge. grounds discipline Court to or censure wellas remove Present for conviction, (felony duties, perform judicial drunkenness, illegal failure to habitual drug use) expanded are include also wilfiil misconduct in office related to
performance judicial duties, general incompetence, any of and wilful violation of judicial rule of conduct.” Pamphlet, Election, 25,1976. Primary May Official Voters’ 24 48, For, 639,977; 59,774. Against, The on vote cast SJR “Measure 2”: No. (Amended), provides: Article VII section Constitution now “(1) law, provided by notwithstanding In the manner section of this Article, any judge may suspended judicial court be removed or office his Court, Supreme Court, Supreme or censured for: “(a) any state, Conviction in a court of this other or or of the United States, punishable felony involving turpitude; a crime as a crime or a moral
or “(b) judicial Wilful in a misconduct office where such misconduct bears a duties; relationship performance judicial demonstrable to the effective or
“(c)
persistent
judicial duties;
perform
Wilful or
failure
or
“(d) Generally
duties;
incompetent performance
judicial
“(e)
judicial
Wilful violation
rule of
conduct as shall
established
Supreme Court;
“(f)
illegal
dangerous drugs.
Habitual drunkenness or
use of narcotic or
“(2)
Article,
Notwithstanding
provided
section of this
in this
methods
section,
Constitution,
section la of this
and in
Article II
of this
removal, suspension,
judge.”
are the exclusive methods of the
or censure
aof
funds that is
personal
on
solicitation of
restriction
added)
(emphasis
under
is over-
consideration [in
case]”
7B(2)
part of the 1975
stated. It is true that
Canon
was
former
it was in effect
Oregon Code of Judicial Conduct and that
in 1976.
adopted
proposed
amendment
when
voters
7B(2) was,
how-
language
The form of the
Canon
former
candidate,
ever, only hortatory:
including
“A
an incumbent
* * * should not himself solicit cam-
judge,
office
* *
added.)26
7B(7),
Present Canon
paign
(Emphasis
funds
*.”
hand,
“A
phrased mandatory language:
judge
other
* * *
campaign contributions
personally
solicit
**
Thus,
*.”27
the restriction was not the same.
pro-
that when the
majority’s
premise
next
(Amended),
to Article VII
was
posed amendment
existence at that time of
before the voters in
former
“
con-
phrase
meant
‘rule
*39
duct,’
any voter could have looked
specific meaning
had a
that
phrase
do so” and that such
referred
up, if he or she wished to
conduct,’
did, and in
rule
that at the time
‘any
judicial
“to
might
degree
ability
judges
the future
restrict to some
the
freely.”
surprising.
“In by the manner notwithstanding sec- Article, judge any tion of this court be removed or suspended judicial Court, by Supreme from his office by Court, Supreme censured for:
U* * [**] [*] “(e) Wilful judicial violation of rule of conduct as * * by Supreme shall be established Court *.” Nothing 8(1) in the text (e), of section in the text of SJR 48 or measure, the referred or in it, the official explanation of or in “Argument Favor,”28 all of which appeared in the [Its] Official Voters’ Pamphlet (reproduced “Appendix A”), sug- gested that the proposed constitutional amendment, if adopted, would modify either pre-existing free rights or give this court the far-reaching power to enact rules conduct that would infringe on these rights.
Indeed, if purpose proposed constitutional amendment give was to “rules of conduct as shall be established added) (emphasis constitutional [this court]” dimension, as the majority holds, today then surely pur- pose would have been disclosed in the ballot title. It was not. When Measure No. 2 voters, was submitted to Oregon law required that “the ballot title [prepared either the Legisla- tive Assembly or the Attorney shall consist of a General] caption not exceeding six length by words in which the meas- ure is commonly referred spoken of, to or followed abbreviated statement not exceeding 75 in length words *40 purpose the measure” and so prepared “shall be a con- chief ” cise and impartial statement the purpose the measure. (Emphasis added.) (1975) Former ORS (repealed by 254.070 Or 1979, 190, 431) Laws Ch (relating to ballot title prepared § Attorney General); the (1975) (renumbered ORS 254.073 250.075) ORS (relating prepared by to ballot title Legisla- tive Assembly).
The 2, noted, ballot title for Measure No. as was prepared by Legislative Assembly. It is doubtful that arguments against Pamphlet. There were no the measure the Voters’ had it Assembly have referred that measure
Legislative would broadly as interpreted known that the measure would should, Moreover, presume, if as we majority. has the we 41.360(33) ORS obeyed,” has been see “the law former 98) 1981, 892, OEC {present Or Laws Ch {repealed by § per- 311(l)(x)), duty regularly and that the “official had been 41.360(15) Or Laws formed,” {repealed by see ORS former 98) 1981, 892, 311(l)(i)), reasonably OEC we (present Ch § for Measure from the contents of the ballot title can conclude not either to “constitu- purpose 2 that the measure’s was No. by this court promulgated conduct judicial tionalize” rules of to enforce rules of extraordinary power give or to this court upon rights guaran- infringe conduct that otherwise judicial majority as the by Oregon provisions, constitutional teed today holds. 1, Constitution, IV, gives Article Oregon
The themselves) (and plenary people reserves to the legislature remains to constitu- yet power subject lawmaking power; So, too, Bill is the Rights. such as guarantees, tional I cannot Rights. Bill of subject Oregon’s branch judicial that because accept majority’s premise former 8, (Amended), was in effect when VII 1976, by Article sec- rights guaranteed was amended in conduct any conflicting rule of yield must tion is not A rule of conduct adopted by this court. guaran- constitutional exempted complying amendment merely proposed it existed when the tees because (Amended), in 1976. adopted section was to Article VII proper also our role inter- majority ignores gone beyond constitution. It has an amendment to our preting amendment of the 1976 language the face of the enacted Gas (Amended), Natural section 8. Northwest Article VII (1982), we Frank, 648 P2d v. 293 Or Company said: court, interpret statutes and con- role is to “As a our provisions; provisions. redraft these we We do not
stitutional interpret legislature drafted them. It is has them as statutory con- and constitutional in a case of axiomatic that struction, give preeminent attention to the must
this court adopted. people have legislature and the language which the give to the words that we requirement “The effect
597 doubly question applicable enactment is constitutional amendment when the law in is a * * * adopted the voters. Given electorate, sovereign, that it the the ultimate which fact Constitution, adopted has our we the amendment to are slow * * go beyond language to (Empha- the enacted face of added.) sis Deiz, Oregonian 277, ex rel Pub. Co. 289 Or State v. 284, (1980), 613 P2d in to an that argument 23 answer con- temporaneous I, laws for courts with Article closing co-exist 10, Constitution,29 Oregon section of the this court said: “Contemporaneous legislative necessarily actions should not given weight construing be ples. princi- much when constitutional prin- Constitutional draftsmen are concerned with broad ciples long-range significance; legislators likely are more politi- be concerned with immediate. We have a observed temptation adopt principle cal as an ideal abstract substantially then in undercut the ideal order to accommodate an immediate concern.” Henry, (same See also State v. 302 Or at supra, principle 521 applied in determining scope “speech” protection free I, afforded by 8, Constitution). Article of the Oregon section I, 8, it is 7B(7), So with Article section assuming I, that rule otherwise violates Article section 8.
Today, the majority ignores principle. that It thereby elevates itself above the other branches of government giving authority itself the legislate conduct, rules of judicial enforceable removal suspension or from judicial office or public censure, I, that violate otherwise Article Oregon other provisions. constitutional
The effect of majority’s holding is court adopt conduct, could and enforce judicial rules of violative of Oregon’s could, (a) Rights.30 Bill of It for example, bar a state
29 I, provides: Article Constitution * * secret, administered, justice openly “No court shall but shall be *.” Lloyd Corporation Whiffen, ignores principle recognized v. This court in principles 307 Or at that a court must observe constitutional as much as government. other branches of Clark, 231, 235 5, 630 (1981): State v. As this court stated Or n P2d procedure, power, program “The fact that a or a itself stated in * * * constitution, compliance does not relieve them from other constitui- many expressly provi- tional unless these standards are excluded. There are such placed I, (e.g. liquor, sions in the Constitution sale of Art § alcoholic funding, VIII, 2-5, bonding §§ educational art and the authorities Article XI-A H) through thereby placed beyond guarantees are the Bill Rights.” or a every years,31 for re-election six who must run judge, indi- office, asking state elective candidate for a (b) indi- election, bar an support his or her vidual voters to office from to be elected to state seeking vidual (c) committee, his her to serve on asking an individual time, any place, speak ability judges restrict *42 (d) court whatever; require judges open any subject or, conversely, prohibit judges from prayer, a session with making a difficult decision. guidance before praying for divine claims, why it now extraordinary power has the If this court Lasswell, 121, and In re Rich- 296 Or at supra, it in In re did Article mond, against rules at issue disciplinary test the I, 8? section is that a rule holding of the majority’s
Another effect substance, the 1976 in but for unconstitutional that would be it existed before amendment, because is constitutional If, majority then. as it was unconstitutional though even 8(1)(e), (Amended), made constitu- holds, section Article VII unconstitutional, a there should be rules that had been tional Assembly, who Legislative that showing substantial voters, voters, intended and the SJR 48 to the referred in case. The has been made this showing No such that result. 8(1)(e) (Amended), in the points Article VII text of 8(1) (e) direction; in the tense. Section it is opposite future be established of such rules “as shall speaks court].” [this added.) (Emphasis view, not, have the my sum, this court does rights guaran- the constitutional upon intrude
power to through profes- rules of candidates judges tees itself, 7B(7) majority as the is not conduct. Canon sional Rather, the constitu- holds, dimension. of constitutional a 7B(7) in the context of tested must be tionality of Canon Rights. Canon Oregon Bill against particular case Accused is which the 7B(7)’s ban, to the conduct for applied as of the violates my opinion, charged, therefore, the com- would, dismiss I Constitution. Accused. against the Commission brought by the plaint (Amended), Const, 1.§ See Or Art VII III. AND FOURTEENTH
FIRST AMENDMENT CLAIMS The First Amendment to the United States Constitu- tion, applicable made through to the states the Due Process Amendment, Clause the Fourteenth a make forbids state to * * * a “abridging speech law freedom of or the right people peaceably to that The Accused claims assemble^]” 7B(7) violates the First and Fourteenth Amendments “by freedom,” abridging candidate’s because it “tells a candidate he or speak she or write to others requesting campaign contributions.” The Accused also claims * * * that “Canon right assembly violates the limit- public’s ing political interaction with a candidate.” The majority rejects agree those claims. I do not with the majority. I government believe that because the has failed to show personal the ban on mere requests for campaign funds judicial candidate compelling interest, serves a state I would 7B(7), case, hold that Canon applied violates Accused’s right to free and free provided by association the First and Fourteenth Amendments. *43 authority
The broad of this court to promulgate rules of judicial conduct responsibility does not its extinguish to observe limits established the First and Fourteenth rights Amendments’ of the state’s citizens. Eu v. Fran San County Committee, cisco Democratic 214, Central 489 US 221-22, 109 1013, 1019-20, 103 271, S Ct (1989).32 L Ed 2d 281
To
constitutionality
7B(7)
assess the
of Canon
under
the First and
Amendments,
Fourteenth
we first examine
protected by
whether
burdens rights
the First and Four-
id.;
teenth Amendments.
Tashjian
Party
See
v. Republican
Connecticut,
214,
208,
544,
514,
479 US
107 Ct
L
S
93 Ed 2d
(1986) (quoting
Celebrezze,
789,
523
v.
780,
Anderson
460 US
1564,
(1983));
103 Ct
L
Geary Renne,
S
75 Ed 2d 547
v.
911 F2d
32
protect
speech rights
The First Amendment has
been construed
free
from
by any
government,
including
judiciary,
intrusion
branch of the
the executive and
at
States,
New
state levels. See
York Times Co. v. United
both the federal and
403 US
713, 718-19,
2140,
(1971) (Black, J.,
(First
concurring)
91 S Ct
280,
(9th
canon burdens First
challenged
282
Cir
If the
constitu-
rights,
and Fourteenth Amendment
it can survive
a com-
scrutiny only if the state shows that it advances
tional
interest,
County
Eu v. San Francisco
pelling state
see
Committee,
First National Bank
supra;
Democratic Central
1407,
Bellotti,
765, 786,
55 L Ed 2d
Boston v.
435 US
98 S Ct
Renne,
283,
(1977);
v.
911 F2d at
Geary
supra,
707
v.
Francisco
“narrowly tailored to serve that interest.” Eu
San
Committee,
First
County
supra;
Democratic Central
National
Bellotti,
786; Geary
435
v.
supra,
Bank
Boston v.
US
Renne, supra.
beyond
It is
debate that “[solicitation
[of
by the First
recognized
speech protected
is a
form of
funds]
Kokinda,
States v.
United
[and Fourteenth] Amendment[s].”
US_,_,
3115, 3118,
Ed
110 S Ct
111 L
2d
(1990).
directly
beyond dispute
It is also
(which
pub-
freedom to
includes the
political
affects
“at
views),
inviolability
of which rests
political
licize
First Amendment
free
process
core of our electoral
and of
Central Com
County
Eu v. San Francisco
Democratic
doms.”
Rhodes,
mittee,
v.
(quoting
Because Canon
ban
burdens free
and
association,
free
it only can survive if it serves a compelling
state interest
narrowly
and is
tailored to serve that
interest.
See Eu v. San Francisco County Democratic Central Commit
tee, supra,
281;
103 L Ed 2d at
First National Bank Boston v.
Bellotti, supra,
In Eu v. San Francisco Democratic County Central Committee, supra, a unanimous provisions Court invalidated alia, of the California prohibited, Election Code that inter governing political official bodies of from parties endorsing candidates in party primaries. The Court said that if “the challenged the rights political parties law burdens and their members, scrutiny only it can survive constitutional if * ** shows that compelling interest, State it advances a state is narrowly and tailored to serve interest.” L that 103 Ed 2d 281. California law did burden rights associational and parties their members. Id. at prohibition 282-83. The against “directly endorsements hampers ability party of a its spread message hamstrings seeking and voters to inform themselves about the candidates and Id. issues.” rejected at 282. The Court state’s contention that prohibition serves the interests compelling state of “stable government protecting voters from confusion and undue influence.” * * * “Maintaining political system compelling is stable * * * however, California, adequately
state interest. never explains parties banning endorsing opposing pri- how mary candidates showing, advances that interest. There is no example, political system any is California’s more legislature stable now than it was when the enacted ban.” Id. at 284. The rejected Court also the state’s contention that prohibition necessary protect primary voters from confusion and undue influence. “Certainly legitimate in fostering the State has a interest * * * may regulate
informed electorate. While a State the flow political of information between associations and their mem- * * * necessary prevent corruption, bers when fraud party primary there no evidence that ban on California’s added.) (Emphasis purpose.” endorsements serves that Id. at 285-86. The Court concluded: “Because the ban on primary by political parties political endorsements burdens interests, no we serving compelling governments while hold that the First and Fourteenth prohibition] [the violate[s] Id. at 286. Amendment^].” Renne, Geary v. the United States Court
Appeals
Eu,
for the
upon
holding
Ninth Circuit relied
*46
Eu’s
partisan
Geary,
rationale was not limited to
In
elections.
political party
court
ruled that California’s ban on
endorsements of candidates for judicial
nonpartisan
and other
offices violates the First and Fourteenth Amendments. The
court, speaking through
Judge Goodwin,
Chief
held “that
* * *
* * *
implicate
restrictions
rights”
[F]irst [A]mendment
“directly
because the ban
political speech.”
affects
Id. at 283.
The state
prohibition
pre-
contended that the
is essential
to
serving
nonpartisan
nature of its local and judicial elec-
tions, and that
its
preventing
interest “in
appearance
reality
‘corruption’
nonpartisan
compel-
officeholders” is
ling enough to sustain the
Id.
disagreed.
ban.
at 284. The court
The court said that the corruption
political process
is subject
regulation
prospect
to
involves the
gain
of financial
to candidates themselves or the
of money
infusion
into their
* * *
“(t)he
campaigns. But
fact
that candidates
alter or
reaffirm their own positions
response
political
on issues in
* * *
messages
hardly
corruption,
for one of the essential
[is]
features of democracy
presentation
is the
to the electorate of
varying points
(quoting
view.” Id. at 284
FEC v. Nat’l Con-
Comm.,
480, 498,
servative Political Action
470 US
105 S Ct
1459, 1468,
(1985)).
L84 Ed 2d 455
less intrusive
Suggesting
alternatives,
the court
prohibition
also found that the
at issue
narrowly
was not
tailored
its
to achieve
ends. Id.
state’s
“[T]he
power
protect
integrity
processes
of its electoral
‘does
more,
justify,
abridgement
without
of fundamental
* * *
rights,
vote,
or,
here,
such as the right to
the freedom of
”
political association.’
Id. at 286.
The majority opinion
present
mistakenly
in the
case
Association,
436
relies on Ohralik v. Ohio State Bar
US
S Ct
56 L Ed 2d
(1978),
Primus,
misreads In re
(1978),
US
98 S Ct
propose
transaction,
Board Trustees
State
a commercial
New York
of
of
of
(1989); Bolger
v.
Fox,_US_,_,
3028, 3036, 106
v.
109 S Ct
L Ed 2d 388
Youngs Drug
Corp.,
60, 66, 103
Products
(1983);
463 US
S Ct
L77 Ed 2d 469
Virginia
Pharmacy
Council,
Virginia
State Board
v.
Citizens Consumer
425 US
of
748, 762,
(1976).
speech
“expression
L
S Ct
48 Ed 2d 346
Commercial
solely
speaker
related
to the economic interests of the
and its audience.” Central
Comm’n,
557, 561, 100
2343, 65
Hudson Gas & Elec. v. Public Serv.
447 US
Ct
L
S
Ed
(1980).
2d 341
City
Purcell,
547, 553,
(1988),
See
Hillsboro v.
306 Or
In In re
Supreme
the United States
constitutionally
Court concluded that the state could not
dis-
cipline
lawyer
the American Civil
(assisting
Liberties
Union).
lawyer
client,
The
had advised a
who had
prospective
receipt
been sterilized as a condition of the continued
of medi-
cal assistance under the
that a lawsuit
program,
Medicaid
might
appropriate.
lawyer
be
also wrote a letter to the
prospective client offering
representation
through
free
pro-
ACLU. The Court concluded that
the state’s interest
hibiting the evils of solicitation did not
justify
ban on
Primus’ activities.
In both Primus and the Court made clear the distinction between political speech. commercial In Primus the Court said: political issue, expression
“Where
or association is at
Court has not
degree
imprecision
tolerated the
that often
government
regulation
characterizes
of the conduct of com-
* * * Ohralik,
approach
adopt[ed]
mercial affairs. The
we
* * *
may proscribe in-person
the state
solicitation for
pecuniary gain
likely
under circumstances
to result in adverse
consequences,
applied
activity
cannot be
to [Primus’]
[‘political expression and
on behalf of the ACLU.
association’]
Although
showing
potential
danger may
suffice
* * *
speech],
context
commercial
not be
[of
[Primus]
disciplined
activity
type
unless her
in fact involved the
prohibition
misconduct at which
broad
is said to
[the state’s]
be directed.”
Ohralik,
Id.37In
the Court
stated that
federal constitution
affords “commercial speech
protection,
a limited measure of
commensurate with its
position
subordinate
in the scale of
Ohralik,
First Amendment
supra,
Ohralik clearly inapposite, because here political speech is involved. The analogy between Primus and present case, however, plain: each involves an allegation of violation of a code of professional conduct; each involves political speech association; each attempt by involves an regulate state to that protected activity; each involves a claim of conflict between a professional code of conduct and the First and Fourteenth Amendments; and neither involves a showing by the state of actual harm from the Accused’s activ- ity. sum, in my view, the state has failed to show that 7B(7)’s ban, applied to the conduct for which the
Accused is charged in this proceeding, serves a compelling state interest. I would hold application of Canon 7B(7)’s ban to the facts of this case violates the Accused’s First and Fourteenth Amendment rights to free free would, therefore, association. I dismiss the complaint that brought Commission has against the Accused.
As to the majority’s analyses, constitutional I respectfully dissent.
Van Hoomissen, J., joins opinion. in this
“APPENDIX A” Official Voters’ Pamphlet, Oregon Primary Election, *49 25, 1976, May pages 7-8, provided the following information to Oregon voters:
Measure No. 2 Discipline Judges of Referred to Oregon by Legisla- Electorate of the 1975 ture Primary Election, 25,1976. to be voted on at the May
Explanation By Designated Committee Pursuant to ORS 254.210
In 1968 the people Oregon added Section 8 to Article Oregon (Judicial VII of the Constitution Department). The provided added section the exclusive methods for removing from (other voters) office than recall judge a Oregon (1) court and grounds established as for removal conviction of a felony or other involving (2) crime turpitude; moral willful mis- conduct in office involving turpitude; (3) moral per- willful or sistent perform judicial (4) failure to duties; and habitual drunkenness illegal use drugs. of narcotic
Adoption of permitted this section the establishment of the Commission on Judicial consisting Fitness judges three appointed by Supreme Court, attorneys three appointed by the Board of Bar, Governors of the State and per- three sons who are attorneys neither judges, appointed nor by the Complaints Governor. may against be filed judges with the Com- mission. The complaints are reviewed and investigated and hear- ings are held on those grounds which fall within the for removal. If the Commission finds that the conduct judge justifies of a office, removal from judicial the Commission shall so recommend Supreme Court. Supreme The case, Court then reviews the and it judge remove the from office charge. or dismiss the
Experience since 1968 has shown a need for additional and grounds more realistic and discipline methods for the judges. present law vague is too and restrictive and this has hampered the Commission and Supreme Court in dealing with some misconduct which warrants discipline short of removal from office.
The Act before the voters as Ballot Measure No. 2 clar- ifies and corrects the strengthens deficiencies. It present law, brings types more judicial misconduct within the authority of the Commission and the Supreme provides Court and more flexi- bility and alternatives in disciplining judges. errant
Specifically gives Supreme the measure to the Court authority temporarily suspend judge to censure and to as well as judge present grounds discipline remove from office. The (1) expanded felony are to include conviction of a or other crime (2) involving turpitude; moral willful misconduct in office related duties; (3) performance judicial per- to effective willful or (4) perform duties; sistent failure general incompe- (5) office; any Supreme tence in willful violation of Court rule of conduct; (6) illegal habitual drunkenness or or habit- dangerous drugs. ual use of narcotic Legislature Ballot Measure No. 2 was introduced in the request During of the Commission on Judicial Fitness. measure, Legislature’s consideration of the no one testified it, against only Representative voted two Senators and one against supported by Supreme it. The measure is Court and up made of all Judicial Conference which is Dis- trict, Circuit, Appellate judges Oregon. Tax and Court *50 By Appointed
Committee Members Senator Elizabeth Browne the President of Senate Representative Kulongoski Speaker Ted of the House Johnson, Attorney Secretary Stamm F. of State Representative Secretary Al Densmore of State Senator P. Wallace Carson Jr. Members of Committee
Measure 2No. Discipline Judges Argument in Favor By Legislative Joint Committee Designated Pursuant to ORS 255.465 a judge Should be above the law? Or should he be sub- ject discipline judicial to a for abuses of his office? Ballot Meas- Supreme ure should be voted “YES” so the Court will have #2 flexibility in powers discipline judges greater broader to the discipline applied. kind of to be passes, Supreme the Court
Unless this measure will power suspend judge publicly have the to a nor to censure for misconduct. Supreme And the Court will not have the concerning power potential judge, to correct misconduct of a his duties, official a if the misconduct does not amount to crime dishonesty. heinous present, only types
At most mis- serious may Supreme disciplining in the conduct be reached Court unquestioned. judges. go Cases of lesser misconduct
And, present, only discipline available to the Supreme involving Oregon judge Court in case is removal from office. seldom, ever, if
Removal office is used. This means acknowledged judicial cases of go completely misconduct unre- medied Supreme because the Court feel removal from office is too harsh. greater
The citizens of the state should benefit from the flexibility range coverage provided by broader this meas- ure.
Temporary suspension public from office or censure Supreme Court, should be available to the judge and a who is generally incompetent performance duties, in the of his or who engages wilful violation of a rule of judicial conduct should be subject discipline. example, appropriate For discipline judge should be available where a in judgment sits on his own rights individual to bail or on personal his or her other rights. Judges only are human. they Sometimes fail to decide a case until months after has been tried. they private Sometimes berate the rely citizen who must on the protection. courts for enlarged power discipline judge, which is con- tained in this proposed change constitution, our only can Supreme exercised So, independence Court. Judiciary And, lessening maintained. there is no inde- pendent power of recall people reserved to the in other sections of our constitution. reasons,
For these join Oregon’s we on Commission Fitness, requested Judicial placed which that this measure be ballot, and urge Oregonians to vote “YES” on Measure #2 for broader, power discipline more flexible judges. People have the right respectful, courteous and fair treatment all levels of government, including judiciary. A “YES” vote on Measure *51 help #2 will the people get the judges. best from their Legislative Appointed By Joint Committee Representative Speaker Magruder Dick of the House Representative Hardy Myers Speaker of the House Fadeley Senator Ed President of the Senate
Discipline Judges of by Legislative Assembly Be It Resolved Oregon: of of the State (Amended) Paragraph 1. Section Article VII Constitution of the State of Oregon, is amended to read: (1) by law, notwith- provided
Sec. 8. In the manner may Article, judge any a of court be standing section 1 of this suspended Supreme judicial office removed or his Supreme Court, Court, for: or censured state, (a) any in a this or or Conviction court of other States, a punishable felony a crime as or crime of the United of or involving turpitude; moral
(b) misconduct judicial [involving in a office Wilful a demonstra- turpitude] moral where such misconduct bears relationship performance judicial ble to the effective duties; or
(c) persistent perform judicial failure to Wilful or duties; or judi-
(d) Generally incompetent performance duties; or cial any judicial
(e) violation rule of con- Wilful Supreme Court; or be duct as shall established (f) or use of nar- [(d)] illegal Habitual drunkenness dangerous drugs. cotic or
(2) Article, Notwithstanding 6 of section this section, la of Article and provided methods in this section Constitution, II of this are the exclusive removal, suspension, judge of a methods of the censure judicial [from office].
Paragraph proposed by this resolu- 2. The amendment rejec- people approval for their tion shall be submitted to as the special held on the same date tion at the election primary election 1976. state-wide
BALLOT TITLE OF DISCIPLINE JUDGES providing YES n Purpose: Amends constitutional n judge from office NO Supreme Court remove misconduct, by adding authority for certain as Supreme suspend Court or censure well discipline (felony grounds Present judge. remove duties, conviction, judicial habitual perform failure to use) drunkenness, expanded to also illegal drug are perform- related to wilful misconduct office include duties, incompetence, and general ance of conduct. wilful violation rule *52 B”
“APPENDIX