Key Points

  • The Oregon Court of Appeals reversed a judgment on the pleadings that had declared the Oregon Department of Justice authorized by law to operate the Oregon TITAN Fusion Center.
  • The court held that the trial court misread the complaint as challenging only the center's existence, when it may fairly be read to challenge specific ongoing activities, such as collecting and sharing information about political protests without a criminal nexus.
  • The statutes the department cited, read together, do not obviously authorize the alleged surveillance, and the 1959 Thornton decision bars the attorney general from initiating criminal investigations without a gubernatorial mandate.
  • Legislative appropriations and a 2011 letter from then-Gov. Kitzhaber to federal officials do not confer statutory authority for the alleged activities.
  • The case was remanded for further proceedings, and the court did not reach the challenge to the denial of leave to amend.

The Oregon Court of Appeals on Wednesday revived a lawsuit accusing the state Department of Justice of running an intelligence unit that monitored opponents of a natural gas pipeline without legal authority. The court held that the activists had plausibly alleged that the Oregon TITAN Fusion Center's surveillance of political activity exceeds the powers the Legislature has given the department.

Presiding Judge Egan wrote for a three-judge panel that also included Judge Jacquot and Senior Judge Armstrong. The panel reversed a Marion County Circuit Court judgment that had declared the department "is authorized by law to operate" the center and had dismissed the activists' claims.

The ruling rejects the department's argument that general statutes, legislative funding and a 2011 letter from then-Gov. Kitzhaber settled the center's legality as a matter of law. The activists' claim that the center acts ultra vires, a term for government action beyond an agency's lawful power, now returns to the trial court for litigation over what the center actually does.

The center grew out of a program the department has run since 2004 and is part of its Criminal Justice Division. It is one node in a national network of state-run intelligence hubs that the U.S. Department of Homeland Security developed after the Sept. 11 attacks to anticipate terrorist threats. According to the complaint, the center gathers information from social media, public records and commercial databases and issues suspicious activity reports, threat assessments and safety bulletins to government agencies and private entities.

The plaintiffs are four activists who campaigned against the Jordan Cove Liquified Natural Gas Pipeline: Ka'ila Farrell-Smith and Rowena Jackson, members of the Klamath Tribes; Sarah Westover, a community organizer and former Phoenix City Council member; and Rosemary Francis Eatherington, an environmental activist. Two nonprofit groups, Rogue Climate and 350 Eugene, intervened as plaintiffs.

Their complaint alleges that the center worked with the Coos County Sheriff's Office and Teneo, a public relations firm hired by pipeline developer Pembina Pipeline Corporation, to monitor opponents. It cites an email in which a sheriff's deputy told a fusion center analyst that "as promised," he was tracking attendance at a rally against the pipeline despite an acknowledged "lack of a criminal nexus." The complaint also alleges that the center used digital surveillance software to locate and track social media users who posted the Black Lives Matter hashtag.

A state law, ORS 181A.250, bars law enforcement agencies from collecting information about political, religious or social views unless it directly relates to a criminal investigation and there are reasonable grounds to suspect criminal conduct. The department did not seem to dispute the pipeline allegations, the panel noted, but attributed the conduct to a single analyst who was investigated after a 2019 article in The Guardian and resigned.

The trial judge, Lindsay R. Partridge, had read the complaint as challenging only "the authority of [the fusion center] to even exist" and granted the department judgment on the pleadings, which decides a case on the written pleadings alone. The appeals court held that this reading did not construe the complaint liberally in the activists' favor. The complaint, Egan wrote, "may also be fairly construed to challenge particular activities of the fusion center, including—but not limited to—its collection and dissemination of information related to political protests without a nexus to criminal activity."

The department had argued that statutes naming the attorney general the state's chief law officer, granting the office district attorneys' powers and treating its investigators as peace officers together implied authority to run the center. The panel wrote that "those statutes, even read collectively, do not bear the weight of the alleged activities."

The panel relied on Oregon ex rel Thornton v. Williams, a 1959 Oregon Supreme Court decision holding that the attorney general has "no power or duty to initiate an investigation of alleged violations of our criminal statutes" without a mandate from the governor. When the Legislature wanted the department to gather intelligence on organized crime, the panel noted, it said so explicitly, directing the department to "[e]stablish a coordinated system of collecting, storing and disseminating information relating to organized crime."

The panel rejected the trial court's view that legislative funding of the center showed lawmakers had authorized it. Appropriations "occur in an omnibus format," Egan wrote, and the process "does not involve the type of robust debate and consideration of competing concerns and appropriate limitations that characterize legislation that confers authority."

The panel also held that Kitzhaber's 2011 letter, which told federal officials the center was Oregon's designated fusion center, "does not represent a grant of authority to the fusion center." The letter did not direct the department to create the center and was written years after the center began operating, Egan wrote.

Quoting a 2001 U.S. Supreme Court opinion's observation that legislatures do not "hide elephants in mouseholes," the panel concluded that "the fusion center's operations, as alleged, seem elephantine in comparison to the authorities cited by defendants."

Egan wrote that the question was not whether fusion centers are "important, useful, or supported by federal policy," but whether the Legislature had conferred the necessary authority. The alleged conduct, "operating a secretive law enforcement program in excess of statutory authority in a manner that chills political participation," would "surely test the expectations that Oregonians set for the conduct of our government," the court added.

Tim Cunningham of Davis Wright Tremaine LLP argued for the activists. Assistant Attorney General Christopher A. Perdue argued for the department. Kelly Simon of the ACLU Foundation of Oregon filed a brief for the ACLU of Oregon and the Brennan Center for Justice, and the Cato Institute and a group of legal scholars also filed friend-of-the-court briefs.

The panel did not reach the activists' challenge to the trial court's refusal to let them amend their complaint. The case returns to Marion County Circuit Court for further proceedings.