Significant State and Federal Constitutional Law Cases –
January to June 2022
State ex rel Kristof v. Fagan, 306 Or 261 (2022): Article V, section 2, of the Oregon Constitution requires the Governor to “have been three years next preceding his election, a resident within this State.” The Secretary of State refused to permit a prospective candidate for Governor to appear on the ballot of a party preference primary for the 2022 gubernatorial election after she concluded that he had not established domicile in Oregon as of November 2019 and the candidate sought a writ of mandamus to require that he be allowed to appear on the ballot. The Supreme Court concluded that Article V, section 2 requires a candidate for Governor to have established their permanent place of abode within Oregon at least three years prior to their election. The Supreme Court’s opinion can be found here.
City of Portland v. Barlett, 369 Or 606 (2022): The city contended that a public records law provision that prohibited public bodies from relying on the attorney-client privilege to withhold information from disclosure if the public record was more than 25 years old violated the home-rule provisions of the Oregon Constitution. The Supreme Court held that laws of general applicability that establish uniform rules concerning the state and local government records do not violate the constituton’s home rule provisions. The Supreme Court’s opinion can be found here.
Lowell v. Wright, 369 Or 806 (2022): Plaintiff sued defendants for libel per se after one of the defendants left an online review on of the plaintiff’s business that stated, among other things, that the business had misrepresented the age of a piano, its ability to sell new pianos, and that the business “could not be trusted.” The circuit court granted summary judgment to defendants. The Supreme Court held that the online review touched on a matter of public concern and that the defendants’ motives were not relevant to determining whether defendants’ speech was protected by the First Amendment. The court also declined to overrule a line of defamation cases, including Wheeler v. Green, 286 Or 99 (1979), that held that the First Amendment requires of actual malice in defamation cases only when a private party sues a media defendant. The court’s opinion can be found here.
State v. Martineau, 317 Or App 590 (2022): A trial court determined that the Sixth Amendment to the U.S. Constitution requires unanimous verdicts for either conviction or acquittal, and instructed the jury accordingly. In this post-conviction case, defendant argued that the trial court was wrong to instruct the jury that unanimity was required for acquittal and that this error warranted dismissal of the convictions. The Court of Appeals acknowledged that the Sixth Amendment does not prevent application of Article I, section 11 of the Oregon Constitution with respect to nonunanimous not-guilty verdicts, but held that the instructional error had little likelihood of affecting the jury’s unanimous verdict of guilty and that the error was therefore harmless. The Court of Appeals’ opinion can be found here.
State v. Laney, 318 Or App 509 (2022): In this post-conviction case, defendant argued that the trial court incorrectly held that for purposes of Article I, section 9 of the Oregon Constitution defendant had abandoned his property interest in computer hard drives on which incriminating evidence was found when he gave the hard drives to a neighbor with instructions to recycle and destroy them. The Court of Appeals held that the defendant relinquished both his possessory and privacy interest in the hard drives once he left them in his neighbor’s control and chose not to contact the neighbor to ensure that the hard drives had been recycled and destroyed over the ensuing six years. The Court of Appeals’ opinion can be found here.
State v. Krieger, 318 Or App 441 (2022): In this post-conviction case, defendant alleged that the investigating officer violated defendant’s rights under Article I, section 9 of the Oregon Constitution when defendant was pulled over at a traffic stop and the officer asked defendant questions such as why the defendant was in the area, where the defendant was coming from, and whether the defendant would let the officer see a citation from a recent court appearance by defendant that was in defendant’s car. The Court of Appeals held that the officer’s questions violated the subject-matter limitation that Article I, section 9 imposes on investigative inquiries during an ongoing seizure, as the questions were unrelated to the purpose of the traffic stop and the officer asked the questions before developing reasonable suspicion that defendant was driving under the influence of intoxicants. The Court of Appeals’ opinion can be found here.
State v. Gonzalez-Coria, 318 Or App 524 (2022): In this post-conviction case, defendant alleged that the search of the home defendant shared with her boyfriend violated the Fourth Amendment to the U.S. Constitution and Article I, section 9 of the Oregon Constitution. The Court of Appeals noted that defendant had denied living at the house or having any authority to consent to the search, before finding that under the “disagreeing-tenants” exception to the Fourth Amendment a person cannot simultaneously claim no right to control who enters the premises, but also object to the police’s entry. The Court then declined to resolve whether the disagreeing-tenants exception applies under Article I, section 9, of the Oregon Constitution, as it determined that any parameters it could potentially adopt would not apply to defendant’s circumstances. The Court of Appeals’ opinion can be found here.
Klein v. Oregon Bureau of Labor and Industries, 317 Or. App. 138 (2022): Bakery owners refused to provide a wedding cake to a same-sex couple. After a prior opinion by the Court of Appeals was vacated and remanded by the United States Supreme Court, the Court of Appeals held neither the First Amendment to the United States Constitution nor Article I, sections 2 or 3 of the Oregon Constitution precluded the enforcement of a neutral and generally-applicable law that prohibited places of public accommodation from denying full and equal service to a person on account of the person’s sexual orientation, even when enforcement of the statute burdened the practice of a business owner’s faith. However, the Court of Appeals found that by expressly awarding damages in part based on the cake shop owner’s expression of his views in the context of a religious dialogue, the Bureau of Labor and Industries violated the First Amendment’s free exercise clause. The Court of Appeals’ opinion can be found here.
Smith v. Kelly, 318 Or App 567 (2022): In this post-conviction case, petitioner contends that his right to adequate counsel under Article I, section 11 of the Oregon Constitution and the Sixth Amendment to the U.S. Constitution was violated when his trial counsel failed to object to the trial court’s nonunanimous jury instruction in a criminal case. The Court of Appeals held that neither constitutional provision required trial counsel to foresee that the United States Supreme Court would depart from its prior precedent permitted convictions by nonunanimous verdicts. The Court of Appeals’ opinion can be found here.
McDougall v. County of Ventura, 23 F.4th 1095 (9th Cir. 2022): After the county issued a series of public health orders requiring closure of gun and ammunition shops and firing ranges for 48 days during the Covid-19 pandemic, plaintiffs brought suit alleging that the orders violated their rights under the Second Amendment to the U.S. Constitution. The Ninth Circuit concluded that the county’s actions warranted strict scrutiny because they burdened the core Second Amendment right and that the orders did not pass that level of scrutiny because they discriminated against activities related to firearms and were not the least restrictive means available. The Ninth Circuit’s opinion can be found here.
Hemphill v. New York, 142 S. Ct. 681 (2022): During his murder trial, petitioner asserted that a third party had murdered the victim and elicited testimony that the police had recovered the ammunition of the type that killed the victim. The trial court permitted prosecutors to admit an out-of-court statement by the third party to established that he had had a weapon of different type than the one that killed the victim. The United States Supreme Court held that the trial court violated petitioner’s Sixth Amendment right to confront the witnesses against him. The Court’s opinion can be found here.
Houston Community College System v. Wilson, 142 S. Ct. 1253 (2022): A member of community college board was verbally censured by his fellow board members after he alleged that they had violated the board’s bylaws and made other critical statements concerning their actions. The board member brought an action alleging that their censure violated his First Amendment rights. The United States Supreme Court held that a purely verbal censure does not give rise to a First Amendment claim. The Court’s opinion can be found here.
Shurtleff v. City of Boston, 142 S. Ct. 1583 (2022): The city had a “flag flying program” in which it regularly permitted organizations to fly an organizational flag from a city-owned flagpole located outside city hall. A member of a religious organization sought to fly what he described as a “Christian flag” the flagpole, and the city refused. The United States Supreme Court held that the city’s flag flying program was not government speech and that the city’s refusal violated the First Amendment. The Court’s opinion can be found here.
Federal Election Commission v. Ted Cruz for Senate, 142 S. Ct. 1638 (2022): A senatorial candidate’s campaign challenged a federal law that limited post-election contributions that can be used to repay a candidate’s loans to the candidate’s campaign. In this case, the candidate had lent his campaign $260,000, but could only use post-campaign contributions of up to $250,000 to repay himself, leaving $10,000 unpaid. The United States Supreme Court held that the law violated the First Amendment because it improperly burdened the rights of candidates who wished to make expenditures on their own behalf through personal loans without furthering a permissible goal. The Court’s opinion can be found here.
Denezpi v. United States, 142 S. Ct. 1838 (2022): Petitioner, who had been convicted of a tribal law in a court established by federal authority brought a Double Jeopardy challenge to his subsequent indictment and conviction in federal court for federal offenses arising out of the same conduct that underlie his tribal conviction. The United States Supreme Court held that the Double Jeopardy Clause did not prohibit successive prosecutions of distinct offenses arising from a single act, even if a single sovereign prosecutes them. The Court’s opinion can be found here.
New York State & Rifle Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022): Petitioners brought a Second and Fourteenth Amendment challenge to a state law that required them to demonstrate a special need for self-protection in order to obtain a concealed carry permit. The United States Supreme Court held that the law violated the Second and Fourteenth Amendments. The Court’s opinion can be found here.
Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022): A clinic challenged a state law that prohibited abortions after the fifteenth week of pregnancy except in cases of medical emergency or severe fetal abnormality, contending that the statute violated a woman’s constitutional right to an abortion. The United States Supreme Court held that the Fourteenth Amendment does not establish a constitutional right to obtain an abortion. The Court’s opinion can be found here.
Kennedy v. Bremerton School Dist., 142 S. Ct. 2407 (2022): A high school football coach contended that his employer, a school district, violated his constitutional rights when it suspended him following instances where he prayed at the 50-yard line after football games. The United States Supreme Court held that the school district violated the coach’s First Amendment right to be engage in a personal religious observance without government reprisal. The Court’s opinion can be found here.