Couey v. Clarno

Petitioner appealed from a judgment dismissing a complaint against the Secretary of State and seeking a declaration that ORS 250.048(10) is facially unconstitutional as a restriction of the free speech and free assembly provisions in violation of Article I, sections 8 and 28 of the Oregon Constitution. On appeal, Petitioner argued the trial court erred when it concluded that under Article I, sections 8 and 26 of the Oregon Constitution, a person may not obtain signatures on a petition or prospective petition for which the person is being paid and, simultaneously, obtain signatures on a petition or prospective petition for which the person is not being paid. Petitioner asserted that ORS 250.048(10) is facially unconstitutional because it violates a circulator’s right to expression and assembly. Further, petitioner sought to enjoin the Secretary of State from effectuating the statute. In response, the secretary argued that the regulations on the nonexpressive conduct of obtaining signatures do not regulate the subject of any protected expression. A statute is subject to a facial challenge if the text is “written in terms directed to the substance of any ‘opinion’ or any ‘subject’ of communication.” Robertson, 293 Or. 402, 412 (1982). The court held that ORS 250.048(10) restricts conduct, not expression, and therefore is not subject to a challenge for facial invalidity under Article I, sections 8 and 26. Judgment vacated and remanded for entry of judgment that includes an appropriate declaration.