Oregon Education Ass'n v. Oregon Taxpayers United

291 P.3d 202, 253 Or. App. 288
CourtCourt of Appeals of Oregon
DecidedNovember 7, 2012
Docket001212632, 010808942; A143460
StatusPublished
Cited by18 cases

This text of 291 P.3d 202 (Oregon Education Ass'n v. Oregon Taxpayers United) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Oregon Education Ass'n v. Oregon Taxpayers United, 291 P.3d 202, 253 Or. App. 288 (Or. Ct. App. 2012).

Opinion

BREWER, J.

In this consolidated appeal, defendants Oregon Taxpayers United, Oregon Taxpayers United Education Foundation, Give Seniors a Break PAC, and Bill Sizemore challenge two judgments holding them in contempt for violating the terms of an injunction issued pursuant to the Oregon Racketeer Influence and Corrupt Organizations Act (ORICO). ORS 166.715 - 166.735. Defendants raise four assignments of error, arguing that the trial court erred in (1) holding them in contempt for violating an injunction that they assert was invalid for lack of jurisdiction; (2) interpreting provisions of the injunction in a manner that violates the Oregon and United States constitutions; (3) concluding that defendants’ constitutional challenges were precluded; and (4) holding that defendants willfully violated the injunction. We conclude that defendants have made no cognizable jurisdictional challenge, that the trial court did not err in concluding that defendants were precluded in these proceedings from challenging the constitutionality of the injunction, and that the trial court did not err in determining that defendants willfully violated the injunction. Therefore, we affirm.

This opinion marks nearly a decade of litigation between these parties relating to defendants’ efforts to place initiatives on the ballot. The Supreme Court has affirmed the underlying ORICO judgment in this action. American Fed. Teachers v. Oregon Taxpayers United, 345 Or 1, 189 P3d 9 (2008) (AFT II). We also have previously addressed issues concerning the injunction that the trial court included in the underlying judgment in this action. American Fed. Teachers v. Oregon Taxpayers United, 208 Or App 350, 145 P3d 1111, adh’d to as modified on recons, 209 Or App 518, 149 P3d 159 (2006), rev den, 345 Or 95 (2008) (AFTI); OEA v. Oregon Taxpayers United, 227 Or App 37, 204 P3d 855 (2009) (AFT III). Because we conclude that certain previous adjudications in this action and another action are binding and preclusive in this appeal, we begin with a procedural history.

In the underlying action, plaintiffs Oregon Education Association (OEA) and American Federation of Teachers (AFT) brought an ORICO claim against the Oregon [292]*292Taxpayers United Political Action Committee (OTU-PAC) and the Oregon Taxpayers United Education Foundation (OTU-EF), alleging three counts of forgery, fraud, and other violations concerning initiative ballot measure activities and election law filings. After the jury reached its verdict, the state intervened and joined plaintiffs in seeking injunctive relief against defendants. In 2003, the trial court made extensive additional findings of fact and conclusions of law, followed by the entry of a money judgment in favor of plaintiffs and an injunction barring defendants and their successors from engaging in certain activities.

Paragraph 7 of the injunction (paragraph 7), which is at issue in this appeal, restricted the activities of OTU-PAC, OTU-EF, and their “successor organizations,” which the injunction defined as any 501(c)(3) organization or political action committee in which Sizemore was a manager, officer, director, trustee, or controlling person. Paragraph 7 provided:

“OTU-PAC and OTU-EF and their successor organizations and successor political action committees which are joined referred to herein as ‘OTU successors’ are hereby enjoined from transferring or destroying any of their assets, whether cash, personal property or real property, and including documents, computers, and computer hardware, software and files, and are so enjoined until the judgment entered in this action is fully satisfied or until further order of this Court.”

Defendants appealed the judgment, arguing, among other things, that the injunction embodied an unconstitutional prior restraint of political activities that are protected under Article I, section 8, and Article IV, sections 1 and 2, of the Oregon Constitution, and that the trial court erroneously enjoined “successor organizations” who were not parties to this litigation from engaging in various activities. AFT I, 208 Or App at 374. We affirmed the trial court’s rulings with one exception.1 We reversed the [293]*293trial court’s denial of defendants’ motion to dismiss a count against OTU-PAC based on “unsworn falsification.” Id. at 353. Because we could not determine whether the trial court would have entered paragraph 7 of the injunction against OTU-PAC without reference to that claim, we vacated that provision and remanded as to OTU-PAC. Id. at 375-76. The Supreme Court affirmed our decision.* 2 AFT II, 345 Or at 4. On remand, in March 2009, the trial court concluded that paragraph 7 of the injunction still applied to OTU-PAC under the first count of plaintiffs’ ORICO claim.

In the period between the jury’s verdict and the trial court’s entry of the judgment containing the injunction in 2003, Sizemore transferred assets to a newly formed successor organization, the Oregon Taxpayers Union (referred to as OTU2-PAC). AFT III, 227 Or App at 42. While AFT I and AFT II were pending in the appellate courts, plaintiffs then brought a contempt proceeding against OTU-PAC and Sizemore for violating paragraph 7 of the injunction (AFT III). Defendants raised an affirmative defense that, to the extent that the injunction restricted Sizemore in his individual capacity from engaging in political activity, it infringed on his right to free speech under the Oregon and United States constitutions. The trial court found that the specific provisions of the injunction applied to Sizemore as a “high-managerial agent” of OTU-PAC, OTU-EF, and OTU2-PAC, who was actively involved in the wrongdoing. When it held Sizemore in contempt despite defendants’ constitutional challenges, the court implicitly rej ected the premise that applying paragraph 7 to Sizemore or successor organizations who were nonparties to the underlying case would violate their free speech rights. Sizemore appealed the trial court’s judgment but did not raise the constitutional issues on appeal.

On appeal in AFT III, we affirmed the trial court’s judgment, noting that, “[a]lthough Sizemore is not [294]*294a defendant in the underlying case, he is the controlling party of both OTU-PAC and OTU-EF, and the trial court held him liable for their violations of the injunction.” AFT III, 227 Or App at 40 n 1. We concluded that the injunction properly applied to Sizemore, because an important purpose of the injunction was to prevent Sizemore from resuming his racketeering activities, and not merely to protect the plaintiffs’ interests in the assets of OTU-PAC and OTU-EF in order to satisfy the money judgment. Id. at 51.

In November 2004, 16 months after the injunction was entered, and while the appeals were pending in AFT I and AFT II, Sizemore filed a “motion for relief from injunction order” (AFT IV) in the trial court. In that motion, Sizemore sought permission to engage in various initiative-related activities; he argued that, if the injunction proscribed such activities, it would violate his constitutional rights.

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Cite This Page — Counsel Stack

Bluebook (online)
291 P.3d 202, 253 Or. App. 288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oregon-education-assn-v-oregon-taxpayers-united-orctapp-2012.