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Law Students

: Objective Justice

Lemons v. Bradbury

By Sean Sirrine

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Judge Mosman issued an opinion from the bench today that repealed the TRO on the new law allowing civil unions for gay couples. I included the entire opinion below, but you may go to the U.S. District Court of Oregon website or read the PDF :

I hope you can appreciate by virtue of having
heard each other's presentations that this is a difficult
issue in many ways, that it involves serious questions of
law and non-frivolous disputes among you about what ought to
happen here.
I intend, as I mentioned earlier, to give you my
ruling now, and I don't do so because oral argument was
unimportant. I rule from the bench quite a bit in a number
of cases and I think it's because people come here hoping to
walk out with an answer, and where that's possible, I try to
do so.
It's not because I had my mind made up before
today ever started. There were many things that I felt I
needed to hear from you about and many questions that I had.
I have found this oral argument to be extremely helpful in
sorting through these difficult issues.
It's typically the case that something this
complicated would result in a written opinion. Rather than
wait for a written opinion, I've chosen to issue my ruling
today because of the balance of harms that I weighed when I
granted the temporary restraining order. Our discussion
back then was if we could resolve this matter by
February 1st, that the balance of hardship would tip more
towards plaintiffs, and if I extend that another several
4
weeks to write an opinion, then I will have gone against
what I said when I set this for February 1st.
So in lieu of a written opinion, I will make a
transcript of my closing remarks available to you, posted on
the Court's Web site sometime this evening.
I want to start with an issue not directly argued
about today, but which plaintiffs have made clear they
didn't abandon, and that's the First Amendment claim. We
haven't discussed that a lot. But because it's been
preserved, I feel the need to discuss it briefly here.
Plaintiffs' First Amendment claim focuses on their
right to vote, their right to engage in core speech and
their right to free expression. The core of those rights
under the First Amendment is whether the State regulation
here implicates or prohibits in some manner core political
speech.
And here I find that the ability to circulate
petitions, the ability to go out into the public and ask for
signatures has not been in any sense unduly burdened. This
isn't a case, for example, where a shopping mall says no
petition gatherers can come within our mall. This is not
the kind of regulation that implicates some First Amendment
concern.
And the second is whether the regulation on speech
is in some manner discriminatory; that is, are referendums
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that have to do with passionate social issues somehow
treated differently or regulated because of their content as
compared to, perhaps, financial issues of some kind. So, in
other words, does the regulation go to the content, the kind
of speech involved?
And here, whatever plaintiffs may say about these
various regulations involved, including the rules or
practices regarding verification of signatures, there's no
evidence that they're anything other than content neutral.
And so for that reason, I deny any permanent injunction that
would be based on the First Amendment argument.
The second constitutional right about which we've
had a lot of discussion stems from the equal protection
clause. And for lawyers, the equal protection clause always
poses a couple of initial questions: First, what kind of
right is involved, and then what kind of scrutiny is applied
to the State's regulations.
And here, it's clear that the most common equal
protection category isn't in play; that is, that there's
some kind of suspect classification. Here, for example, we
don't have people divided by race or by gender, but rather a
different kind of legislation that's in place. So the most
common way in which the highest level of scrutiny is
employed isn't involved in this case.
The other way, other than a suspect classification
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that the highest level of scrutiny is involved is if the
activity implicates a fundamental right, and there's been
strenuous argument that because it's like the right to vote,
that the signing of a petition does implicate a fundamental
right.
There are a couple of cases that I think matter
here, and we made some reference to them. One is Green v.
City of Tucson, and the other is Hussey v. City of Portland,
and both those cases tried to analyze when signing a
petition really is a lot like voting, and gave factors to
consider: whether the signature expressed the voter's will,
whether it required a majority of votes for success, whether
it finally resolved a political issue of some kind, and
whether it could serve as some sort of substitute for an
election. The most common way that comes up is with
petitions that have to do with annexations, where that
really is the fundamental equivalent of voting.
Here, by contrast, we don't have the same sort of
factors in play. We don't have signatures actually
expressing the will of the voters. We certainly don't have
a majority process, as it calls for an election rather than
substitutes for an election.
So at least in the sense that those cases say that
signing a petition is so much like the right to vote that it
ought to be treated that way for equal protection purposes,
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I don't find those cases controlling.
But even if it is a fundamental right and on equal
footing with voting, it's worth asking whether the State's
procedures unconstitutionally infringe on this right. So
the question is whether some regulation of this right,
whether it's exactly like the right to vote or something a
little bit different, is nevertheless unconstitutional under
the equal protection clause.
The case most strenuously argued by plaintiffs is
Idaho Coalition for Bears v. Cenarrussa, a 2003 case out of
the Ninth Circuit. That is an initiative case, and I've
said already that I don't find any substantial distinction
between initiatives and referendums here.
Earlier, I certainly premised the granting of the
temporary restraining order and preliminary injunction on
that case, but I have given it a great deal of thought since
that time. It's my view that Cenarrussa falls squarely
within a body of cases beginning in 1969 with the Supreme
Court case of Moore v. Ogilvie that deals with those kinds
of regulations that contravene the principle of one person,
one vote.
There are any number of ways in which a system
even of initiatives, let alone of voting, can be set up that
result in some people having a greater say in the outcome
than others, often by geography. In Cenarrussa, as you
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know, state law required seeking signatures from a certain
number of counties. Not unlike Oregon, Idaho has very
populous counties and very sparsely populated counties, and
the natural result of that system was that a proportionately
greater say would be given to voters in the rural counties
than the urban counties. In fact, Idaho made what might be
called the Rhode Island argument, that that was a part of
the checks and balances that they desired to set up. That
was rejected by the Ninth Circuit. I view Cenarrussa as an
extension of the basic principle of Moore v. Ogilvie to
initiatives, that it would violate the constitution if
Oregon were to set up a process that, for example, required
a certain number or percentage of voters from each of
Oregon's counties as opposed to an overall percentage.
I've mentioned also that there are, of course,
other kinds of cases where perhaps even initiatives, and
certainly voting regulations would fall down because they
directly impact or take away the franchise from groups of
people: lengthy residency requirements, literacy tests,
poll taxes, those sorts of things.
It's certainly very clear to me from reading
Burdick v. Takushi, a Hawaii case, where Hawaii's
prohibition of write-in voting was challenged, that not all
regulations, even of the right to vote, unconstitutionally
infringe on that right.
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And so I reject the equal protection analysis
based on Cenarrussa offered by the plaintiffs and deny the
preliminary injunction. I don't find that it comes within
the prohibitions in Cenarrussa or within the body of cases
in Green and Hussey that directly equate some petitions to
voting.
I'm left with perhaps the most troubling of all
the arguments in the case, and that's the analogy to Bush v.
Gore. Bush v. Gore stands, I think, for a fairly pedestrian
principle. If the actual setup for counting votes, and
perhaps by extension for counting signatures, is so without
standards that people who vote or sign a petition in one
county are far more likely to qualify than people in another
county because the evaluators, the people working for the
state don't have any standard by which to make their
judgments, that can violate the equal protection clause.
Here, for example, it would be problematic if the
lack of standards caused county officials in Jackson County
to disqualify a bunch of signatures for their own whimsical
reasons, and the same position, that is county officials in
Washington County counted a bunch of people, that would give
more power and vote to the individuals in Washington County
than Jackson County.
There are, I hope, many things heard today that
should be troubling to the secretary of state about the
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signature verification process. And, of course, not all of
them pose constitutional problems, but if there's anything
that should trouble the secretary of state here, it's the
difficulty the State has had in actually articulating the
standard to be applied to these differing judgments in
different counties. I attribute some of that to the obvious
confusion by Ms. Carlson in terms of what she was really
being asked here. I, of course, have taken into the record
her written statements.
It's my view -- I would say barely so -- that the
State has come forward with sufficient evidence to defeat
the request for a permanent injunction, and to satisfy the
requirements of Bush v. Gore. That is, there is a standard
out there. The general standard being applied quite
obviously I think is whether the signatures match or don't
match. That's the standard. It has some meaning, it's been
given some factors to measure against.
There is an argument to be made that it is a
standard that isn't sufficiently grounded in anything the
State has asked these folks to do, but that's a different
argument than saying there's no standard under the equal
protection clause.
In Bush v. Gore, one of the evidences of the lack
of standard was the widely disparate results for the same
task in different counties. And here, I think overall we
11
have a fairly coherent set of results. I recognize that the
plaintiffs have submitted statistical figures that show
differing results in different counties. I have some
questions about the statistical significance that you can
draw from the very small numbers in play, The Dalles, for
example, I think extrapolating from 21 signatures being
evaluated.
I think there are important differences in trying
to decide what to make of such statistics between ballots at
issue in Bush v. Gore and petitions here. The main question
in Bush v. Gore was how could you get these different
results for any other reason than just the lack of any
coherent standards.
Here, of course, the State has suggested a number
of reasons why one county with small numbers might have a
different result than others. If you have one crazy
petition gatherer who did a bad job in one city, one small
town, then you'd have a disproportionate number of
signatures eliminated there, and that's not an answer that
you can get in counting ballots in Bush v. Gore.
So although I view the issue as a close one, I
don't find that the equal protection problem posed in Bush
v. Gore is present here. I don't find that this is an
utterly standardless inquiry leading to irrationally
different results between counties.
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The final argument raised by plaintiffs is an
argument under the procedural due process clause of the
constitution. And as I explained earlier, I see that as
kind of a two-part analysis. First, does the procedural due
process clause even apply? And that's a question of whether
the State has created some entitlement that it then takes
away.
We talked about driver's licenses, and that's a
fairly good example. Typically the State can't create the
entitlement to a driver's license and then just come and
take it away without some kind of notice and a hearing.
It is my view that if the state grants an
entitlement and takes it away, that the very minimum it's
obligated to do is to provide notice and some kind of an
opportunity to be heard, but as I think I've expressed, that
protection only goes so far. It only goes as far as the
entitlement the State creates. It's sort of like measuring
a property line.
So as one case has suggested, if you give a
16-year-old a driver's license and then arbitrarily take it
away without any warning, that might violate the due process
clause. But a 14-year-old can't come forward and say, I can
prove I'm just as good a driver as anybody else, so you
should give me a license, it's not fair if you don't,
because the 14-year-old doesn't come within that property
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line, doesn't come within the original entitlement granted
by the State. It sounds, certainly to the 14-year-olds I
know, it sounds perhaps cruel to say it, but they simply
have no due process rights in the decision of the State not
to initially grant them a driver's license.
So one of the first things required here today is
to analyze whether the right the plaintiffs claim was
violated is a right the State ever promised them or is an
entitlement the State ever gave to them.
I think essentially the right that plaintiffs
claim was violated was the right to have their signatures on
the petition counted if they are in fact or in truth the
signers of the petition. That's not quite accurate, as I
think you all can appreciate, because we're really talking
about certain signers of the petition, the ones that survive
a statistical sampling and end up in it. But for those
folks, the plaintiffs are saying they have the right to have
their signature counted if they are in fact the people who
signed that petition.
And so one of the most fundamental questions I
have to ask myself is, does the State promise that your
signature will be counted so long as you can show you are
the true signer? There are a number of sources to look to
for whether the State does that: the Oregon Constitution,
the statutes that we've talked about, the regulations in
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play, and to some limited degree the other manuals and
practices of the secretary of state in this arena.
It is a right or a boundary that is capable of
shifting somewhat from time to time. Oregon adopted
initiatives and referendums in 1902. I wouldn't be
surprised if in 1902 there was a greater promise that if you
really signed the referendum, your signature might be
counted. I suspect that enough people knew enough other
people then that it wouldn't have been very hard for the
secretary of state to maybe just go out on the street and
ask if you're the guy who signed that signature. But over
time, various statutes have been enacted and at all times it
has been to some degree left within the power of the
secretary of state to regulate the process by which
signatures are verified.
The answer to the question of whether the right to
have your signature counted, so long as you're the one who
signed the signature, is a promise or an entitlement the
State has given these plaintiffs is no. I don't believe
that comes within the entitlement the State has created
here. That doesn't mean that the State cannot do it. It
might even be true that the State should do it as a matter
of good policy.
But the question I'm being asked is, is whether
the State in fact has done so here. I believe that it has
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not. I believe the State, through a variety of sources, has
demonstrated to the average signer of a petition that it's
not making any promise that your signature ultimately will
be counted. Some of those we've talked about. Some have to
do with the fact that when you sign a petition, there are
any number of ways in which your petition may never see
again the light of day.
Now, admittedly, some of the most common of those
have nothing to do with anybody acting on behalf of the
State. The chief petitioner can simply give up and go home
or raise some question in his or her own mind about a
particular sheet and throw that sheet away just to save
themselves the trouble of a challenge later. There are any
number of ways when you sign a petition that you have no
reasonable expectation that the State is promising it will
make it all the way to home plate.
Even when a series of signatures makes it finally
to the secretary of state's office, there are a number of
ways in which it's fairly clear to me that there's no
promise that your signature will be counted. And those
include the fact that entire sheets of paper even at that
point can be eliminated. They include for constitutional
purposes the troubling question of statistical sampling;
that is, it's difficult to see why the State would grant one
out of 20 people a right that it doesn't grant to the other
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19, where they have no opportunity to be heard.
I understand the practical reasons why the
plaintiffs here can only complain for people who exist, but
it points to, I think, problems associated with an opposite
view that the State has granted such an entitlement. I
would find it very difficult for the State to grant
precisely the gift plaintiffs seek without being
constitutionally obligated to give a much larger gift or
entitlement. And while practical problems don't typically
define constitutional rights (we don't usually say, well,
we're not going to give you this constitutional right
because it would be hard to do), in this case, the practical
problems inform the judgment of whether the State ever
granted such an entitlement in the first place.
If you'll forgive kind of a folksy example, if one
of my kids claims I promised them a Lamborghini when they
graduated from high school, the fact that I cannot do so is
some evidence that I never promised I would. And if the
State is being said to have promised something that would be
extraordinarily difficult to do, that's some evidence, in my
view, that it never promised it in the first place; it's not
within the original entitlement.
Now, it wouldn't be hard, in my view, for the
State to do precisely what the plaintiffs want them to do,
phone up the sample people whose signatures are gone and
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give them a chance to rehabilitate their signatures. That's
not to say it would be easy in the time period that's been
given, but it wouldn't, I think, be unusually difficult.
But I believe that principle unavoidably brings many other
people within the circle of that rule, such that the
principle employed by plaintiffs would necessarily require
the State to radically alter its procedures in ways that
would be extraordinarily difficult. And I only say that
because it's that very difficulty that leads me, among other
factors, to believe that it's not within the original
entitlement the State granted.
Under a constitutional analysis, I read Doe to say
that if what the plaintiffs complained of as having been
deprived of them isn't something the State initially
promised or made as its entitlement, that procedural due
process simply does not apply to protect what the State
never promised. And in that sense, I believe the
plaintiff's procedural due process claim would fall.
Matthews v. Eldridge counsels somewhat that there
are a number of factors to look at, and I think were I to
utilize those factors, it might also lead to the conclusion
that the State has done what it can here in the competition
between what would have to be added to the procedures
compared to the cost to the State.
My concern about Matthews v. Eldridge is that I
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believe it's a case that sets up a test for deciding how
much process is due once the due process clause applies.
And it's my own view that the answer to that question is
never "nothing." The answer to that question is always
notice and opportunity to be heard.
But in my own view, Matthews v. Eldridge is
eliminated by my decision that the procedural due process
doesn't apply in the first place. So for that reason, I
believe the procedural due process claim falls as well.
Plaintiffs for these three reasons have moved for
a permanent injunction here. I deny the request for a
permanent injunction. I lift my former preliminary
injunction and stay and leave for another day the other
issues raised in plaintiffs' complaint, if they're to be
brought up at all.
* * * * *

Full post as published by Objective Justice on February 01, 2008 (boomark / email).

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