# Oregon State Police Officers Ass'n v. State

> Oregon Supreme Court · November 30, 1989 · 308 Or. 531

URL: https://www.frixlaw.com/law-library/cases/9790928

## Case

- **Full name:** OREGON STATE POLICE OFFICERS ASSOCIATION, INC. Et Al, Respondents on Review, v. STATE OF OREGON Et Al, Petitioners on Review
- **Court:** Oregon Supreme Court
- **Decided:** November 30, 1989
- **Citations:** 308 Or. 531; 783 P.2d 7
- **Precedential status:** Published
- **Opinion:** Concurrence by Linde
- **Judges:** Hoomissen, Linde, Van Hoomissen
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9790928

## How later opinions describe it (automated extraction)

- stating that where an appellant fails “to provide us with a summary of all the 12 facts material to consideration of [the] issue, as required by [Rule 12-208], we cannot 13 grant relief on [that] ground”
- holding that, where state remedies were adequate to protect plaintiffs’ rights, state did not deny plaintiffs any federal constitutional rights, and attorney’s fees under section 1988 were not available
- recognizing that, in reviewing the sufficiency of the 8 evidence, the appellate court looks at all evidence admitted, including wrongfully 9 admitted evidence

## Opinion text

LINDE, J.,
concurring.
It soon will be 100 years since Judge Oliver Wendell Holmes for the Supreme Judicial Court of Massachusetts, wrote of a predecessor of today’s plaintiffs: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” McAuliffe v. New Bedford, 155 Mass 216, 220, 29 NE 517 (1892). The epigram was facile; McAuliffe did not claim a constitutional right to be a policeman but a right not to be disqualified or dismissed from that position because he exercised the political rights of a citizen. This court long has recognized that citizens cannot be forced to sacrifice all political rights simply because they accept public employment. Minielly v. State, 242 Or 490 , 411 P2d 69 (1966) (invalidating requirement that civil service employees resign when becoming a candidate for elective office).
The court therefore correctly decides that ORS 181.400(2) is unconstitutional under Article I, section 8 (and, I believe, under other Oregon constitutional provisions for the political rights of citizenship), insofar as it purports to deny state police officers all participation in political activities beyond voting. It is less obvious whether the statute is flatly invalid on its face because it is textually directed against political speech and writing rather than some feared effect of political activity by police officers, or whether the statute is overbroad because it so far exceeds any permissible regulation of those activities that a court cannot save it.
ORS 181.400(2), which states no penalty, presumably *540 is not a penal law. Analysis therefore begins with the question whether there are some activities that lawmakers could not forbid citizens generally but that they may declare to be incompatible with the role and work of police officers. Examples are In re Lasswell, 296 Or 121 , 673 P2d 855 (1983), which held that a professional rule directed to prosecutors could validly restrict their comments on a pending case if it was narrowly limited to situations when a prosecutor intends or “knows or is bound to know that the statements pose a serious and imminent threat to the [factfinding] process,” 296 Or at 126 , and in Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358 , 723 P2d 298 (1986), appeal dismissed 480 US 942 (1987), which held that a statute could validly restrict public school teachers’ rights under Article I, sections 2 and 3, if the statute was limited to “circumstances when a teacher’s dressing in accordance with the standards of his or her religion is truly incompatible with the school’s commitment to maintaining for its students [an] atmosphere of religious freedom and neutrality,” 301 Or at 380 .
It is important to note that lawmakers may not simply attach the sacrifice of constitutional rights to public employment. The constitutional test is found not in an analogy between public employers and private employers but between the government as regulator and as manager. The relevant source is not the employment relationship but the incompatibility of otherwise privileged conduct with performance in one’s role or function; for instance, the application of the disciplinary rule in In re Lasswell would apply to a lawyer retained as a city attorney or ad hoc prosecutor as well as to a regularly employed prosecutor. 1 In judging government constraints on the “incompatible” exercise of constitutional privileges, it is immaterial whether a librarian, a driver, a nurse, or a security guard is employed in the private or in the public sector, unless (as with religious displays by public school teachers) the very fact of one’s public role and function makes conduct incompatible that would not be incompatible with the same role or function in a private capacity.
*541 The proper test, therefore, is whether the state could require anyone engaged in similar work, private or public, to refrain from otherwise privileged activities; and if not, whether the particular restriction is justified by the specific public role of police officers. That is a difficult question. Perhaps the strongest arguments for insisting on a nonpolitical, at least a nonpartisan, police force may be drawn from the experience of countries where such forces (as well as other armed forces) have been instruments of the regime in power against its political opponents and where the authority of a regime sometimes rests on the political assent of these forces. Forestalling the abuse or perceived abuse of police power for political ends may justify some narrowly designed limitation on police officers’ political activities. But such arguments must in the first instance be assessed by lawmakers; it is not for courts to invent such reasons in reviewing a law. See Cooper v. Eugene Sch. Dist. No. 4J, supra, 301 Or at 373 . The law must specify expressly or by clear inference what “serious and imminent” effects it is designed to prevent. See In re Lasswell, supra, 296 Or at 126 .
This court has wrestled with the problem closer to home, in phrasing the constraints of the Oregon Code of Judicial Conduct on political activities of judges. Thus, Canon 7 does not forbid “political activity” as such (defined in the canon as including to speak publicly, to raise or give funds, or to lend one’s name to a political purpose or a political organization), but only when the activity produces one of four stated effects that the drafters considered incompatible with judicial office. One of these is that the activity “jeopardizes the confidence of the public or of government officials in the political impartiality of the judicial branch of government.” 2 The effect therefore has to be assessed at the time of the political activity; it is not simply assumed at the time of enactment.
This approach, followed in Lasswell and in Cooper , may not be the final word on disqualification from a position or assignment on grounds of incompatible activities that otherwise are constitutionally privileged. It may, however, aid *542 toward the analysis of proposals put forward to prevent identifiable adverse effects of political activities.
I concur in the court’s opinion.
Another example might be the position of drug counselors like those in Smith v. Employment Division, 307 Or 68 , 763 P2d 146 (1988), cert granted_US_, 109 S Ct 1526 (1989), whose religious use of peyote government authorities might find incompatible with that role equally in private or in public employment. See also Humphers v. First Interstate Bank, 298 Or 706 , 696 P2d 527 (1985) (medical services act limits licensed physician’s freedom to disclose confidential patient information).
Canon 7(A)(4). Canon 7(B)(4) also forbids judges or candidates for judgeships to “make pledges or promises of conduct in office other than the faithful, impartial and diligent performance of the office,” presumably on the premise that a judge must remain free to reach decisions on the merits untrammeled by prior campaign commitments.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9790928. Public record. Not legal advice.