Committee to Retain Judge Jacob Tanzer v. Lee

527 P.2d 247, 270 Or. 215, 1974 Ore. LEXIS 293

• Court: Oregon Supreme Court
• Decided: October 22, 1974
• Status: Published

Opinions

HOWELL, J.

Plaintiff, the Committee to Retain Judge Jacob Tanzer, filed this action against Jason Lee seeking to declare Lee’s nomination to the office of judge of the Oregon Court of Appeals vacant and to recover punitive damages and attorney fees. The jury found in favor of the plaintiff and awarded $2,500 punitive damages. The defendant appeals, alleging numerous assignments of error, including the failure of the court to sustain his demurrer on the grounds the plaintiff’s complaint does not state a cause of action; failure of the court to grant his motion for a judgment of involuntary nonsuit; and failure to give certain instructions.

It is not necessary that we discuss all of the assignments of error made by the defendant, including the constitutional issues raised, because we conclude that the defendant’s demurrer should have been sustained as the plaintiff’s complaint did not allege a cause of action.

This action arises out of the 1974 primary election in which Jason Lee, the challenger, received a majority of votes to defeat Judge Jacob Tanzer, the incumbent on the Oregon Court of Appeals. The plaintiff contends that the defendant published certain false statements, and plaintiff’s amended complaint alleges:

“HI

“During the period of May 24, 1974 to May 28, 1974, the date of the election, defendant published and communicated advertising material through newspapers and radio within the state of Oregon which defendant knew contained false statements of material facts relating to the candidacy of Jacob Tanzer and to the plaintiff as follows:

“ ‘$72,000.00

“ ‘On 2-29-74 my opponent, the present Judge decided that $72,000.00 should be paid from your hard-earned TAX DOLLARS for attorney’s fees in a condemnation case. On 5-11-74 the law firm that received this money made a $200.00 contribution to the present Judge’s campaign. (LEE accepts NO CONTRIBUTIONS.)’

“Said publication was false in that the present judge, Jacob Tanzer, did not decide the amount of attorneys’ fees that were awarded in the case. This decision was made by the trial court. The award was affirmed by the Oregon Court of Appeals, of which Judge Tanzer was only one member. The affirming opinion did not decide the amount that should be paid; it held only that the Court of Appeals was without power to modify the trial court’s award in that case. Defendant knew that his said publication was false.

“IV

“Plaintiff’s purpose of promoting the candidacy of Jacob Tanzer for judge of the Court of Appeals was injured by the false publications and communications disseminated by defendant. Plaintiff received the sum of $13,177.50 in contributions during the period within 250 days preceding said election.”

OES 260.532, under which plaintiff’s action was filed, states, in pertinent part:

“(1) No person shall write, print, publish, post, communicate or circulate, or cause to be written, printed, published, posted, communicated or circulated, any letter, circular, bill, placard, poster or other publication or communication, or cause any advertisement to be placed in a newspaper or any other publication, or singly or with others pay for any such advertisement, knowing such letter, circular, bill, placard, poster, communication, publication or advertisement to contain any false statement of material fact relating to any candidate, or political committee, or if he is candidate, to himself, or any false statement of material fact relating to any measure.”

To prevail in a cause of action brought under OES 260.532, a plaintiff must allege and prove that the defendant (1) published (2) a false statement (3) of a material fact (4) knowing it to be false.

①

The plaintiff contends that the defendant’s statement was false in two particulars: (1) Judge Tanzer did not “decide” the condemnation case mentioned in defendant’s advertisement, because the decision was made by the entire court, and (2) the decision of the Court of Appeals did not “decide” the amount of attorney fees that should be paid in the condemnation case.

We believe that the distinctions attempted to be made by the plaintiff are without merit. Judge Tanzer wrote the opinion of the Court of Appeals, and to this extent he “decided” the case which was under consideration. It is true, of course, that the “decision” was that of the Court of Appeals, but it is common practice to refer to the judge who wrote the opinion for the court as the judge who “decided” the case. Whether the appellate judge is said to have “decided,” “held,” “concluded,” or to have “written the decision” is only a question of semantics, and to say that a judge “decided” a certain case does not constitute a false statement.

The same reasoning applies to the plaintiff’s contention that the Court of Appeals did not decide the amount of attorney fees to be paid in the condemnation case. The issue presented to the Court of Appeals was whether there was substantial evidence to sustain the amount of attorney fees awarded by the trial court. The decision rendered by the Court of Appeals and authored by Judge Tanzer held that there was sufficient evidence and therefore the award made by the trial court was affirmed. To that extent, the decision affirmed the award of the attorney fees. Again we believe that it requires an exercise in technical legal semantics to attempt to distinguish between whether attorney fees are part of costs or whether there was or was not substantial evidence presented in the trial court for the Court of Appeals to affirm, the award. The statement in the published advertisement was not false.

To attempt to draw distinctions in the manner suggested by plaintiff would lead the courts into a linguistic quagmire over the meaning of certain phrases or conclusions which are important only to lawyers and may even then be the subject of dispute within the profession. As we stated in Thornton v. Johnson, 253 Or 342, 453 P2d 178 (1969), the courts are reluctant to be placed in the position of becoming “censors of political campaigns” and to “judge the reasonableness of all campaign statements and the possible inferences to be drawn therefrom.” 253 Or at 362.

The most that could be said about defendant’s advertisement that Judge Tanzer “decided” and that attorney fees “should be paid” as a result of the decision of the Court of Appeals is that the statements were ambiguous and might have permitted an erroneous inference to have been drawn therefrom. This court in Mosee v. Clark, 253 Or 83, 453 P2d 176 (1969), held that such an ambiguous statement, or the possible erroneous inference to be drawn therefrom, did not constitute a violation of the Corrupt Practices Act.

Reversed with directions to enter a judgment for defendant.② The mandate shall issue forthwith.

This court has interpreted the former Corrupt Practices Act [amended by Or Laws 1973, ch 744] on several occasions. See Thornton v. Johnson, 253 Or 342, 453 P2d 178 (1969); Mosee v. Clark, 253 Or 83, 453 P2d 176 (1969); and Cook v. Corbett, 251 Or 263, 446 P2d 179 (1968).

A violation of the former Corrupt Practices Act could result in a fine of up to $1,000 or imprisonment for up to one year, or both. [Repealed by Or Laws 1973, ch 744, § 36.] Also, the former law requires that the court not only set aside the nomination or election of the violator, but “also declare as nominated or elected for or to the office in question the other person who received the highest number of votes at the election * * *.” [Repealed by Or Laws 1969, ch 617, § 1.]

In contrast, the present law allows only for the recovery of general and punitive damages and attorney fees, ORS 260.532 (5), and provides that a violator “shall be deprived of the nomination or election and the nomination or office shall be declared vacant.” ORS 260.532(7).

Although not raised by the parties, a question exists as to whether the Committee to Retain Judge Jacob Tanzer is the proper party to bring the action in this case in the absence of an allegation that something false was said about the Committee. ORS 260.532 (1) prohibits a knowing publication or communication of a false statement of material fact relating to any candidate or political committee. Subsection (4) allows to any candidate or political committee which has been aggrieved by a violation of subsection (1) a right of action against the person alleged to have committed the violation. That subsection also provides that the aggrieved party may file the action in the circuit court for the county in which the defendant resides or can be found. The statute gives a cause of action to the candidate if he is the aggrieved party or to the political committee if it has been the aggrieved party.

It is possible for a candidate to have a political committee in each of the 36 counties. It is doubtful that the legislature intended to give each committee a cause of action for the same alleged false statement about their candidate, nor that a successful candidate who won 35 such cases and lost one should thereby lose the nomination.

The fact that subsection (6) of ORS 260.532 gives a political committee standing to bring an action assures that the committee instead of all its members will have the legal standing to sue in the event that a false statement is made about it.