Lafferty v. Newbry

ROSSMAN, J.,

specially concurring.

The photograph which Mr. Lafferty wishes to have included in his space in the Voters’ Pamphlet is one of the statue of Sacajawea which stands in City Park, Portland. The statue as a work of art has won wide recognition. Obviously, there is nothing offensive about the picture. The candidate deems the picture material to the argument which he wishes to make to the voters. A proverb says that “One picture is worth a thousand words.”

The sole objection to the publication of the picture that has been suggested is that the picture is not relevant to the arguments which the candidate offers in support of his candidacy. One of the dissenting opinions holds that the Secretary of State has discretion in determining the relevancy of material which is offered to him by candidates for publication in the Voters’ Pamphlet and that he properly ruled that the photograph of the Sacajawea statue is irrelevant. That opinion says: “I am also of the opinion that the matter involved is not substantial or of sufficient importance * * *. The argument supporting petitioner’s case was irrelevant and frivolous. * # * It is no more difficult for this court to determine ‘relevance’ in this case than in any other legal controversy.” No argument is needed to make one realize that if the Secretary of State can reject a map, photograph or drawing from the Voters’ Pamphlet, under a belief that it is “irrelevant”, he can do the same with the written statement which the candidate offers. The question thereupon *692 presents itself as to whether or not the legislature has entrusted the Secretary of State with power to review the arguments which candidates present for inclusion in the Voters’ Pamphlet and to reject those which he deems irrelevant. In short, did the legislature, when it made provision for the Voters’ Pamphlet, intend that the Secretary of State should have the power of censorship. In determining that issue, we must bear in mind that the Secretary of State holds a partisan, elective office. "With no reference whatever to the present gentleman who is the incumbent of that high office, let us bear in mind that men who hold that office sometimes are politically ambitious. They are, and should be, partisans. Candidates of various political beliefs and the political parties themselves are entitled to space in the Voters’ Pamphlet. Did the legislature intend that a partisan holding an elective political office should have the power of passing upon statements filed by candidates as well as by parties and of determining whether the statements or somé picture that accompanied them are relevant to the arguments?

Up to this time no one has ever claimed that the Secretary of State can censor any material that is submitted to him for inclusion in the Voters’ Pamphlet.

In determining whether or not the Secretary has power to censor material and reject that which he believes is irrelevant, we must give attention to the section of our laws which I will presently quote. The legislature, in making provision that obscene, vulgar, profane, scandalous, etc. matter should be excluded from the Voters’ Pamphlet, did not entrust the exclusionary power to the Secretary of State alone. It made provision for a board of three to be the official arbiters. The board does not include the Secretary of State. Its membership contains the Superintendent of *693 Public Instruction, holder of one of the state’s highest nonpartisan offices. Its membership also embraces the Governor and the Attorney General. When account is taken of the fact that the legislature included those three high officials in the board, one can reasonably infer that the legislature deemed that the power to exclude from the Voters’ Pamphlet a statement presented by a candidate or a political party is a very great one. The following is the pertinent provision:

“The Secretary of State shall reject any statement or other matter favoring or opposing any candidate and offered for filing and printing in the voters’ pamphlet, which, in Ms opinion contains any obscene, vulgar, profane, scandalous, libelous or defamatory matter, or any language which in any way incites, counsels, promotes or advocates hatred, abuse, violence or hostility toward, or which tends to cast ridicule or shame upon any person or group of persons by reason of race, color, religion or manner of worsMp, or any language or matter the circulation of which through the mails is prohibited by Congress. Such statement shall not be filed or printed in the voters’ pamphlet. Nor shall any candidate be entitled to display in the pampMet any cut showing the uniform or insignia of any organization which advocates or teaches racial or religious intolerance.

“Within five days after such rejection the persons submitting such statement for filing may appeal to a board of review, consisting of the Governor, Attorney General and Superintendent of Public Instruction. The decision of such board shall be final upon the acceptance or rejection of the statement or matter thus in controversy.

Manifestly, the power to exclude from the Voters’ Pamphlet a statement upon a finding of irrelevancy is a greater one than to exclude something else under *694 a belief that it is vulgar, scandalous or libelous. Vulgar and profane matter, in all likelihood, will not advance a candidate’s cause with the people, but material which a censoring official may deem irrelevant may, in effect, be a winning argument with the voters. Although it is claimed that the Secretary of State has the power to exclude material when he believes that it is irrelevant to the candidate’s cause, there is not one word in the statute that so states or which defines relevancy. It is rare that an administrative official has a power which is not mentioned in the statute and which is nowhere defined. If the argument which has been advanced in behalf of the Secretary of State is warranted, then that official’s power to exclude material from the Voters’ Pamphlet which he deems irrelevant has been entrusted to the Secretary alone, whereas his exclusion of vulgar and defamatory matter is subject to review by a board composed of three of the state’s highest officials. The disparity in treatment argues against the purported power.

Clearly, the value of the Voters’ Pamphlet would be enhanced if everything included within its covers were relevant, but I cannot convince myself that the power to determine relevancy reposes in the Secretary of State. It is even more important that everything included in the Voters’ Pamphlet should be truthful, but certainly no one will claim that the Secretary of State has the power of passing upon the truthfulness and correctness of material that is submitted.

The statement, “It is no more difficult for this court to determine ‘relevance’ in this case than in any other legal controversy” is more plausible than sound. If this court takes upon itself the power to pass upon the relevancy of appeals made by candidates to the voters for their ballots, it will find itself enmeshed in *695 many difficult and embarrassing issues. Wisdom cautions that the court avoid issues of that kind. It is not equipped to render that kind of service to the electorate. The truth of the matter is that if we hold that the Secretary of State has the power to reject arguments which he believes are irrelevant and if, under a belief that a given statement presented for publication is irrelevant, he rejects it, it will be virtually impossible to secure judicial review of the Secretary’s ruling. The only remedy that might possibly be available is mandamus. Yet mandamus can never be employed to control the exercise of judgment by a court, public official or administrative body.

Obviously, material included in the Voters’ Pamphlet should be relevant if the candidates hope to win. But it is the voter alone who passes upon relevancy. The candidate’s appeal is addressed to him. If the voter finds that a given candidate presents, in behalf of his candidacy, arguments that are irrelevant, they will be rejected and the candidate will be defeated. Upon that score the voter has the sole power of ruling. Without doubt, every issue of the Voters’ Pamphlet through the years has contained scores of irrelevant arguments. It is far better that the voters — rather than some censoring official — rejected them.

I concur in the opinion of the Chief Justice. In so doing, I wish to make it clear that OPS 255.060 specifies the size and kind of type which must be used in the printing of the Voters’ Pamphlet. In printing Mr. Lafferty’s material, the Secretary of State will, of course, conform to that section of our laws.

Tooze and Perry, JJ., concur in this opinion.