Wolfe v. Brown

Plaintiff appealed from a final order by the Secretary of State (“Secretary”) who imposed a civil penalty against Petitioner for 26 violations of the Article IV, of the Oregon Constitution, sections 1b’s prohibition against paying circulators per signature collected. Petitioner assigned error to the administrative law judge’s (“ALJ”) decision to exclude evidence concerning Petitioner’s First Amendment challenge. On appeal, Petitioner argued the “pay-per-signature” violation penalty imposed on him burdened his and other petitioner’s First Amendment speech rights. Additionally, Petitioner argued the ALJ’s order to exclude some of Petitioner’s evidence as “irrelevant” was an error because the ALJ viewed his challenge more narrowly when it should have been interpreted more broadly. In response, the Secretary argued Petitioner’s evidence was irrelevant and properly excluded because it did not “specifically” pertain to Petitioner’s conduct or Petitioner’s ballot measure. Under ORS 183.450(1), “Irrelevant, immaterial or unduly repetitious evidence shall be excluded but erroneous rulings on evidence shall not preclude agency action on the record unless shown to have substantially prejudiced the rights of a party.” “Evidence is relevant so long as it increases or decreases, even slightly, the probability of the existence of a fact that is of consequence to the determination of the action.” State v. Davis, 269 Or App 532, 541, 345 P3d 499, rev den, 358 Or 69 (2015). The Oregon Court of Appeals concluded that the excluded evidence was relevant because it showed the issues with paying circulators per hour versus per signature. Additionally, the Court concluded excluding the evidence was prejudicial because it went “to the heart of” Petitioner’s First Amendment argument.

Reversed and remanded.