Lee v. State of Oregon

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICKI B. LEE; DARRELL E. LEE, 

Plaintiffs-Appellants, v. STEPHEN S. WALTERS, BRAD No. 03-35102

HIGBEE, GEORGE RANKIN, RICHARD

REID, and LAURA A. FINE (in their  D.C. No.

CV-95-00274-JMS

individual and official capacities as members of the Oregon Racing OPINION Commission), and JOANNE MCADAM (in her individual capacity only), Defendants-Appellees.  Appeal from the United States District Court for the District of Oregon Janice M. Stewart, Magistrate Judge, Presiding

Submitted March 9, 2005* Portland, Oregon

Filed December 29, 2005

Before: Procter Hug, Jr., Stephen Reinhardt, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Reinhardt; Partial Concurrence and Partial Dissent by Judge Bybee

*This panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

16797 16800 LEE v. WALTERS

COUNSEL

Kathryn H. Clarke, Portland, Oregon, for the plaintiffs- appellants.

Hardy Myers, Attorney General for the State of Oregon, Mary H. Williams, Solicitor General for the State…

After a series of disputes involving the licensing and financing of The New Portland Meadows, Inc. (TNPM), a horse racing operation partially owned by Vicki and Darrell Lee, the Lees filed a section 1983 *674 action in the district court against Stephen S. Walters, Brad Higbee, George Rankin, Richard Reid, Laura Fine and Joanne McAdam, all members of the Oregon Racing Commission (ORC). The Lees’ complaint alleged, inter alia, that a provision in the Oregon statute pursuant to which they had been ordered excluded from the Portland Meadows track by the ORC violated due process because it was unconstitutionally vague. On summary judgment, the magistrate judge 1 agreed that the provision was invalid and, on that basis, ruled that the entire statute, Oregon Revised Statutes section 462.080(1), was void for vagueness. However, at trial the Lees did not prevail on any of their damages claims, and they appealed the district court’s judgment. In order to resolve some of these claims, it is necessary to determine the validity of the exclusion orders.

We vacate the district court’s ruling that section 462.080(1) is unconstitutionally vague because, after holding one of its provisions…

concurring in part and dissenting in part:

I concur in part and dissent in part. On appeal, the Lees present both a facial and an as-applied challenge to Oregon Revised Statute § 462.080(1). 1 The majority concludes that the Lees’ as-applied challenge fails because the Commission offered alternative grounds for its decision and the constitutionality of at least one of those was not challenged. I join the majority opinion on this point. Inexplicably, however, the majority declines to decide the merits of the Lees’ facial challenge because it finds that the magistrate judge, *678 having concluded that the “detrimental to the best interest of racing” provision was facially void for vagueness, should have severed the unconstitutional provision to preserve the statute’s constitutionality. See Or. Rev. Stat. § 174.040 . There is no need to determine whether the magistrate judge failed to sever: Once the majority concludes that section 462.080(1) was constitutionally applied here, it necessarily answers whether the statute is unconstitutional on its face. It is not. I dissent because our jurisprudence demands that we reverse, and not merely vacate, the magistrate judge’s holding that…