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  ACLU of Oregon—News
Volume XXIX, Number 1
Winter/Spring 1997


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ACLU’s Challenge To 1996’s Measure 40 Headed for Oregon Supreme Court

It looks like ACLU of Oregon’s challenge to the "Victims’ Rights" measure passed by voters last November is headed for a showdown in the Oregon Supreme Court.

Our challenge to Measure 40, Armatta, et al. v. Kitzhaber, et al., was filed by ACLU cooperating attorneys Carl Neil, Tom Christ and Katherine McDowell in Marion County Circuit Court in December, 1996. We argue that Measure 40 is so flawed it should never be enforced.

Armatta v. Kitzhaber, filed on behalf of plaintiffs that include an advocate for victims and the Benton County Sheriff, does not attack individual sections of the measure as unconstitutional (although many are). Rather, we argue that the measure as a whole must be thrown out because it represents an unconstitutional use of the initiative process because it contains more than one subject and is a revision of, as opposed to an amendment to, the constitution and thus should not have been placed on the ballot through initiative (constitutional revisions can only be placed on the ballot through legislative referral).

In an opinion issued in early February, Marion County Circuit Court Judge Pamela Abernethy ruled on our behalf on two important issues. Judge Abernethy denied the State’s request that our challenge be dismissed for lack of standing and found that the plaintiffs in our suit do have standing to challenge the measure.

Further, Judge Abernethy agreed with our revision vs. amendment argument in relation to section 2 of Measure 40, and she severed it from the rest of the measure. A "lock-step" provision, Section 2 would require Oregon Courts to interpret Article 1, section 9 of the Oregon Constitution as offering no greater protection against unreasonable search and seizure than the federal constitution’s Fourth Amendment, which allows government agents far greater latitude in searching individuals..

In addition to Judge Abernethy’s ruling, a number of local circuit courts have ruled on the constitutionality of Measure 40. Courts in Lincoln and Multnomah Counties have ruled that the Measure 40 provision denying bail to almost everyone who is arrested for many felony crimes is an unconstitutional denial of due process under the Fourth and Fifth Amendments of the US Constitution. Additionally, Jefferson County Circuit Court has declared the entire measure an unconstitutional revision of Oregon’s Constitution.

Though we made some important headway in the lower court, we plan to appeal the remainder of the ruling in Armatta v. Kitzhaber in order to further our argument that ALL of Measure 40 is fatally flawed.

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While it is still too soon to make reliable predictions, this year’s Oregon Legislature has the potential to be far more dangerous for civil liberties than any we have seen in recent years.

As of this writing, the deadline for introducing bills was still several weeks away. However, legislative leaders have said they will allow bills dealing with controversial "social" issues to move through the process this year. That is a marked shift from two years ago and could be a sign of trouble on a host of issues.

Measure 16, the Death With Dignity measure approved by voters in 1994, has already been put on the chopping block. Lobbyists for Oregon Right to Life and the Oregon Catholic Conference are urging outright repeal of the measure in anticipation that the Ninth Circuit U.S. Court of Appeals will soon lift the lower court injunction that has prevented it from taking effect.

The Legislature is also considering proposals to require random drug testing of public school teachers and permit state funding of religious schools and colleges. Among the other issues we expect to see that have not yet surfaced are proposals that would restrict abortion, prohibit gay and lesbian marriages, restrict sex education, recriminalize marijuana and promote censorship.

On the bright side, a number of proposals have been introduced that would help curb some of the worst abuses of the initiative process. House Speaker Lynn Lundquist has said that initiative reform is a personal priority on his agenda. We look forward to working with him and other legislators on this issue.

We also expect the Legislature to pass at least two electronic privacy bills. The first would prohibit jail officials from recording clergy/inmate communications such as the Lane Co. jail incident last year when a Catholic priest was recorded while performing the sacrament of reconciliation (confession).

The second would make it a crime to secretly videotape someone who is undressing in a bathroom, changing room or other location where they have a reasonable expectation of privacy. This proposal was prompted by two incidents in the Portland area. The first involved a man left a small video camera inside a port-a-potty at the Rose Festival. The second involved the owner of a tanning salon who made tapes of woman customers undressing.

We will have a more complete report on our work in Salem in a few weeks when we send you the ballot for Oregon ACLU board elections. In the meantime, if you want more information call the Portland or Eugene office, e-mail us at

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Never lacking in variety or quantity, the ACLU Foundation of Oregon’s 1996 litigation docket continued to be diverse and active. Over 50 cases were open in ‘96, and the issues we tackled include religious symbols on public property, censoring student speeches, equal privileges and immunities for gay and lesbian couples, the free speech rights of anti-abortion protesters vs. the safety of reproductive health care providers and, of course, the initiative process.

For more information about any of these cases, or for a copy of the 1996 docket, contact either ACLU office.


As of this writing, 16 initiative proposals slated for the 1998 general election are on file with the Secretary of State’s office. That leaves a mere 16 months for signature gathering; and, of course, filing more initiatives.

As reported in our last newsletter, the 1998 election season began in July, 1996 when the OCA filed an anti-gay & lesbian constitutional amendment proposal. Closely following that filing were two anti-abortion measures, one filed by the OCA, the other by Walter Huss.

In addition to offering ballot title comments and challenges regarding those measures, the ACLU has been involved in the ballot title process regarding measures that would: limit the rights of immigrants; radically alter the process through which local and state judges are elected; and, direct lottery proceeds away from economic development to create college tuition vouchers, including tuition for private, religious colleges.

We look forward to the day when we can act on behalf of a measure that would actually protect civil liberties.

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Anti-solicitation Ordinances

Rick Aquizap was standing near the road, holding a sign reading "Homeless couple willing to work for gas or cash. Please help if you can!". However, when he took one step off the curb into the road, he was fined $45 by the Springfield police for violating ORS 814.090, a state law that prohibited solicitation on or near a highway.

Aquizap thought he was unfairly targeted by the police; he thought he had the right to stand in a public place and hold a sign. ACLU agreed and, on behalf of Aquizap, ACLU cooperating attorney Ed Spinney challenged the citation on the basis that the law violated the state constitution's protection of free expression. The main problem with Aquizap’s fine was that only one behavior had been singled out as unlawful -- speech; specifically, speech asking for money or work.

We lost in the lower courts, when the Springfield Municipal Court, and then the Lane County District Court, upheld the statute and Aquizap’s fine. However, when we appealed the decision to the Oregon Court of Appeals, events took an unusual turn. The State, which normally would have been in the position of upholding the statute and thus the fine, filed a brief agreeing with our position that the statute was unconstitutional and that "[t]his court should reverse the judgments of the district courts." The Court of Appeals heeded the State’s request and reversed the lower court's decision, and the charges were dismissed.

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Musicians Sued for Inciting Violence

On behalf of the ACLU Foundation of Oregon, cooperating attorney Michael Harting eagerly defended free expression when musicians from the "death metal" band Deicide were named in a wrongful death suit following the fatal and near-fatal beating of two employees at a Eugene-area convenience store. The suit claimed that the band targeted its music toward young men who "were immature, easily influenced and prone to violence" and encouraged its audience "to commit acts of violence against people."

The suit, which sought $10 million in compensatory and punitive damages, originally named the Deicide musicians and another band, their record labels, the record distributors, the record stores and the families of the men who committed the crimes as responsible for the crimes. The families settled quickly and all other defendants, except for the two originally named bands, were eventually dropped from the suit.

When we were contacted by Deicide, we knew that ACLU involvement was vital to ensure that the horrendous nature of the crimes did not overshadow the vital constitutional guarantees of free speech and expression that were at stake. Music and other forms of artistic expression are protected by both the Oregon and Federal Bill of Rights. That protection prevents civil liability except in extremely limited situations where "imminent lawless action" results, which was not the case with Deicide’s music or lyrics. In November, 1996, after administrative negotiations, Deicide was dropped from the suit.

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ACLU friends have realized that including the ACLU Foundation of Oregon in their wills is a convenient and meaningful way to continue the financial support they have provided throughout their lives. If you would like to learn more about providing a charitable bequest for the ACLU, contact our associate director, Jann Carson at (503) 227-3186.


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Copyright 1997 ACLU Oregon
Copyright September, 2005 , ACLU of Oregon
Last updated September 05, 2005