Measure 114 After a Year of Litigation

Measure 114 After a Year of Litigation

by Jermaine Brown

The summer of 2023 was bookended by federal and state trials on the constitutionality of Measure 114, gun-control legislation enacted by voters in November 2022.

The measure—with some exceptions—prohibits and restricts the use, possession, or sale of “large-capacity magazines,” which the measure defines as magazines that are capable of holding more than 10 rounds of ammunition. BM 114 § 11(1)(d). Measure 114 permits licensed firearm dealers to, among other things, transfer or sell existing large-capacity magazines to persons located outside of Oregon or alter the magazines such that is no longer has a capacity of 10 or more rounds.  Id. § 11(3). The measure also requires individuals to obtain a permit before purchasing a firearm which, in turn requires a purchaser to complete a background check, complete a firearm safety course, not pose a danger to themselves, others, or the community, and pay a fee.  Id. § 4.

Following Measure 114’s enactment, citizens filed suit in state and federal court, respectively alleging that it violated Article I, §27, of the Oregon Constitution and the Second Amendment to the United States Constitution. While the federal court denied the plaintiffs’ request for a  temporary restraining order, the state court enjoined the measure. The respective courts each scheduled trials in May 2023 and September 2023.

The federal trial represented one of the first applications of N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022), which lays out the test for evaluating whether a firearms regulation violates the Second Amendment. As Bruen explained, a court should evaluate whether the regulation is consistent with the nation’s historical tradition of firearms regulation. The Bruen Court also reiterated that the Second Amendment protected only the right of law-abiding citizens to keep and bear those arms that are in common use for self-defense.

The district court’s July 2023 decision upholding Measure 114 touches on some interesting questions raised by the analytical approach in Bruen. While Bruen explains that “when the Second Amendment’s plain text covers an individual’s conduct . . . the government must then justify its regulation,” the opinion is not clear about how courts and practitioners should go about determining whether “the Second Amendment’s plain text covers an individual’s conduct” or whether the party challenging the regulation has the burden of doing so. Moreover, that analysis also requires courts to consider whether a weapon is “in common use for self-defense.” For example, is “common use” the number of weapons sold in the United States, the number of weapons owned in the United States, or the number of weapons used in deterring or repelling a threat of harm?  And what does “use” mean?

The district court answered the burden question relatively easily, explaining that the most logical reading of Bruen was that it was plaintiff’s burden to show that the regulation impinged on the right to keep and bear arms that are in use for self-defense. The court noted that in Bruen, the Court had stated explained “when the Second Amendment’s plain text covers an individual’s conduct . . . the government must then justify its regulation” and reasoned that the most logical reading of Bruen was that the plaintiffs bore the initial burden of demonstrating that the Second Amendment applied.

The district court’s analysis of the common-use question was more involved. The plaintiffs asserted that the district court needed to consider only the number of LCMs in Americans’ possession—some 160 million. The plaintiffs maintained that if a firearm accessory was owned by more than 200,000 individuals, it was in “common use.” The court declined to accept that argument, noting that Bruen had stated the weapon must be in “common use for self-defense” and noted that 200,000 was 0.0006% of the U.S. population. The court also rejected the notion that a person’s intent for possessing a firearm was not sufficient to show that a firearm was in “common use for self-defense.”  In the district court’s view, the proper way to determine whether a weapon is in “common use for self-defense” is to analyze how the weapon has actually been used.

Although the district court upheld Measure 114, its opinion will not be the last word. The plaintiffs have announced that they will appeal to the Ninth Circuit.

Nor will the opinion of the state circuit court be the last word. That court concluded that Measure 114 violates the Oregon Constitution and announced that it would enter a permanent injunction against the statute. The defendants have announced that they will appeal that decision.

The author is an attorney at Markowitz Herbold PC, which served as trial counsel for the state defendants in both the state and federal Measure 114 cases. The opinions expressed here are not the opinions of Markowitz Herbold PC, the State of Oregon, or the Oregon State Bar.

U.S. Supreme Court Considering Challenges to Affirmative Action and the Indian Child Welfare Act

U.S. Supreme Court Considering Challenges to Affirmative Action and the Indian Child Welfare Act

by Hon. Anna Joyce

While at first glance, a case about affirmative action and a case about the Indian Child Welfare Act (ICWA) might not appear to have much in common.  But this term, the United States Supreme Court is hearing challenges to both affirmative action and ICWA based on a similar underlying premise:  that laws or policies enacted to protect people of color are in fact unlawful discrimination based on race.

Students for Fair Admissions, Inc v. University of North Carolina and Students for Fair Admissions v. President and Fellows of Harvard College

On October 31, the court heard over five hours of oral arguments in two cases challenging affirmative action policies at universities.  UNC considers an applicant’s race, among many other factors—including military status, geographic diversity, socioeconomic status—because underrepresented minorities are admitted at lower rates than their white and Asian-American peers.  UNC describes its application review process as “a race-conscious holistic review.”  Harvard follows a similar process and for similar reasons.

SFFA alleges that UNC and Harvard’s processes violate the Fourteenth Amendment because they consider race as a factor in the admissions process.  SFFA argues that the Equal Protection Clause mandates that race never be a factor, with “no exceptions.”  SFFA relies on one of the Supreme Court’s seminal cases on race, Brown v. Board of Education, for the proposition that race-based decisions are per se unconstitutional.

The schools argue that the history of the Fourteenth Amendment should be understood to allow some race-conscious measures.  They point to the Court’s prior cases that have allowed some consideration of race in admissions provided that the universities show that their admissions processes satisfy strict scrutiny, i.e., that they are pursuing a compelling interest and doing so in a narrowly tailored way.  In their view, Brown stands only for the proposition that race-based segregation violates the Equal Protection Clause; in contrast, policies that bring students together “bear no such badge.”

Brackeen v. Haaland

On November 9, the court heard argument in a case challenging the constitutionality of ICWA.  Congress passed that law in 1978 in response to the high rates of Native American children being removed from their homes and being placed with white adoptive families.  The law, among other things, creates a preference for Native American children to be placed with Native American families.  Three white couples who want to adopt Native American children challenged the Act, arguing, among other things, that the law discriminates against them based on their race and is thus subject to strict scrutiny review.  Texas, which is also a party, echoes that argument, asserting that ICWA violates the equal protection component of the Due Process Clause of the Fifth Amendment by categorizing children “based on genetics and ancestry” and potential adoptive parents based on their race.  The tribal defendants and the Secretary of the Interior assert that ICWA’s classifications distinguishing between Indians and non-Indians are “political rather than racial” and are thus subject only to rational-basis review.

Moore v. Harper and the “Independent State Legislature” Theory – Hon. Jack L. Landau

Moore v. Harper and the “Independent State Legislature” Theory

by Hon. Jack L. Landau

For my money, one of the most interesting – and consequential – cases pending before the United States Supreme Court is Moore v. Harper.  It involves an obscure theory that was all but unheard of until a few years ago but which, if adopted, could redefine the nature of state legislative authority and radically alter the conduct of federal elections.  Here’s how the case arose.

In 2019, in Rucho v. Common Cause, the United States Supreme Court held that claims of partisan gerrymandering of legislative districts are nonjusticiable political questions “beyond the reach of the federal courts.”  That holding prompted most commentators to conclude that such claims will now be litigated in state court.  Rucho itself defended its holding by noting that it did not “condemn complaints about districting to echo into a void.”  The states, the court observed, “are actively addressing the issue on a number of fronts.”  The court noted that the Supreme Court of Florida had not long before struck down that state’s congressional redistricting plan as a violation of the state constitution and that other states have mandated state constitutional constraints on partisan gerrymandering.

Then, in 2021, the North Carolina General Assembly drew new congressional districts in response to the 2020 decennial census.   The North Carolina League of Conservation Voters, among many others, challenged the congressional redistricting on the ground that, in adopting the 2021 plan, the General Assembly had engaged in partisan gerrymandering, in violation of the Free Election Clause, the Equal Protection Clause, and the Free Speech and Assembly Clause of the North Carolina Constitution.

In Harper v. Hall, the North Carolina Supreme Court concluded that the General Assembly had engaged in partisan gerrymandering, intentionally designed to maximize Republican advantage in the state’s congressional elections.  The court concluded that partisan gerrymandering claims are justiciable in state court and that the General Assembly’s congressional redistricting plan violated the state constitution “beyond a reasonable doubt.”  In explaining its decision on the justiciability of the claims, the court noted that Rucho itself had noted the independent capacity of state courts to review such claims under their state constitutions.

North Carolina legislator Timothy Moore, among others, sought review by the United States Supreme Court, and the Court granted review, now denominated Moore v. Harper.  Significantly, the petitioners’ claim is not that the decision of the North Carolina Supreme Court was wrong as a matter of state law, but that it violated the federal Constitution.  Invoking what has become known as the “independent state legislature” theory, petitioners argue that the Elections Clause of Article I, section 4, of the federal Constitution provides that the times, places, and manner of holding congressional elections “shall be prescribed in each State by the Legislature thereof,” although Congress may “make or alter” such rules at any time.  According to the petitioners that means that, in the absence of any contrary federal law, state legislatures have final authority over congressional elections.  And because that authority is rooted in the federal Constitution, state law – even state constitutional law – cannot restrict it.  As a result, petitioners argue, state courts are without authority to review state legislative redistricting plans, regardless of whether they might otherwise violate state constitutional prohibitions on partisan gerrymandering.

The pedigree of the independent state legislature theory is the subject of considerable dispute.

The text of the Constitution itself is silent on the authority of state constitutions to impose limits on state legislative control of federal elections.  But supporters contend that the independent legislature theory is inherent in the structure of the Constitution and its delegation of the regulation of federal elections to the political branches of government.  In addition, they claim support from some early and mid-nineteenth-century sources.  Prominently emphasized is the Massachusetts Constitutional Convention of 1820, in which the convention rejected a proposal to require the state legislature to redraw districts after every census and prohibit the legislature from altering the district boundaries at any other time.  Luminaries such as Joseph Story and Daniel Webster complained that the proposal ran afoul of the unlimited authority afforded the legislature in the regulation of federal elections under the Elections Clause.  Supporters also cite litigation during the Civil War as state legislatures authorized soldiers to vote by means of absentee ballots, contrary to state constitutional requirements that votes be cast in person.  For example, the New Hampshire Supreme Court declared, in an 1864 advisory opinion, that the state constitutional restrictions were unenforceable.  Also highlighted by supporters are the actions of the House of Representatives in 1864 to seat a member who had been elected when the deciding votes had been cast by absentee votes, contrary to the state constitution, as well as the decision of the House in 1878 to seat a member who had been elected on a date other than what the state constitution had required.

Critics of the independent state legislature theory contest the idea that it is implicit in the structure of the constitution.  To the contrary, they argue, all powers conferred by the constitution are presumptively bound by law.  They point out that, when the Framers wanted to give a branch unreviewable authority, they said so – as in Article I, section 2, which provides that the House of Representatives has the “sole” power of impeachment.   They acknowledge that there exists a handful of nineteenth-century decisions supporting the independent state legislature theory.  But, critics insist, such decisions fall far short of establishing the original understanding of the Elections Clause.  In fact, they argue, Founding-era state constitutions widely imposed procedural and substantive limitations on federal elections.  Moreover, critics assert, notwithstanding the few mid-nineteenth-century invocations of the independent state legislature theory, for over a hundred years since that time the United States Supreme Court has emphatically and repeatedly rejected it.  As the Court most recently held in Arizona State Legislature v. Independent Redistricting Commission: “Nothing in the [Elections] Clause instructs . . . that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.”

Nevertheless, in recent years, some justices have signaled an interest in giving the independent state legislature theory a fresh look.  And with the Court’s decision to grant review in Moore v. Harper, we’ll soon see what that fresh look produces.

The implications of the independent state legislature theory are eye-watering.  Much will depend on the extent to which the Court feels bound by its existing case law rejecting the theory; if it chooses to adopt the theory, it will have to overrule a good deal of its prior decisions.  If the Court elects to do that, much will also depend on how broadly it chooses to interpret independent state legislative authority.  Under some especially robust versions of the theory – advanced in the briefing in Moore – the term “legislature” would be given a narrow interpretation, effectively nullifying existing laws delegating redistricting authority to independent redistricting commissions and secretaries of state and insulating legislative redistricting for congressional elections from gubernatorial veto.  Even under weaker versions of the theory, state courts would be without authority to enforce state constitutional prohibitions against partisan gerrymandering in congressional elections.   At the very least, adopting any version of independent state legislature theory would have the effect of creating potentially conflicting sets of rules for state and federal elections.  Moreover, if the Court adopts such a reading of the Elections Clause, it could be (and has been) argued that the same reading would apply to the Electors Clause – which would mean that state legislatures would be free to select Electoral College electors without a popular election.

Clearly, much is at stake.  A date for argument in Moore has not yet been set.  But the case is likely to be one of the most consequential of the coming term.  Stay tuned.

Note:  Oral argument in Moore has since been set for December 7, 2022.

Significant State and Federal Constitutional Law Cases – January to June 2022

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.