State v. Borowski, 05-0307M.

• Decision Date: 28 October 2009
• Docket Number: 05-0339M.,05-0427M.,05-0564M.,05-0341M.,05-0364M.,A132129 (Control).,05-0333M.,A132136.,05-0367M.,A132133.,A132132.,05-0307M.,A132135.,05-0337M.,A132137.,A132138.,A132130.,05-0426M.,A132134.,05-0342M.,A132141.,A132131.,05-0310M.,05-0309M.,A132140.,A132139.
• Citation: 220 P.3d 100,231 Or. App. 511
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Sherry Sue BOROWSKI, Defendant-Appellant. State of Oregon, Plaintiff-Respondent, v. Holly Christiansen, Defendant-Appellant. State of Oregon, Plaintiff-Respondent, v. Marilyn Mooshie, Defendant-Appellant. State of Oregon, Plaintiff-Respondent, v. Holly Christiansen, Defendant-Appellant. State of Oregon, Plaintiff-Respondent, v. Jesse Brown, aka John # 6 Doe, Defendant-Appellant. State of Oregon, Plaintiff-Respondent, v. Ryan Navickas, aka Ryan Doe, Defendant-Appellant. State of Oregon, Plaintiff-Respondent, v. George C. Sexton, Defendant-Appellant. State of Oregon, Plaintiff-Respondent, v. Eric C. Navickas, aka Eric C. Nauickas, Defendant-Appellant. State of Oregon, Plaintiff-Respondent, v. Amber Dawn Birmingham, Defendant-Appellant. State of Oregon, Plaintiff-Respondent, v. Dorothy Fisher-Smith, Defendant-Appellant. State of Oregon, Plaintiff-Respondent, v. Nicole Julia Webb, Defendant-Appellant. State of Oregon, Plaintiff-Respondent, v. Stacey Dawn Williams, Defendant-Appellant. State of Oregon, Plaintiff-Respondent, v. Amber Dawn Birmingham, Defendant-Appellant.
• Court: Oregon Court of Appeals

220 P.3d 100

231 Or. App. 511

STATE of Oregon, Plaintiff-Respondent, v. Sherry Sue BOROWSKI, Defendant-Appellant.

State of Oregon, Plaintiff-Respondent, v. Holly Christiansen, Defendant-Appellant.

State of Oregon, Plaintiff-Respondent, v. Marilyn Mooshie, Defendant-Appellant.

State of Oregon, Plaintiff-Respondent, v. Holly Christiansen, Defendant-Appellant.

State of Oregon, Plaintiff-Respondent, v. Jesse Brown, aka John # 6 Doe, Defendant-Appellant.

State of Oregon, Plaintiff-Respondent, v. Ryan Navickas, aka Ryan Doe, Defendant-Appellant.

State of Oregon, Plaintiff-Respondent, v. George C. Sexton, Defendant-Appellant.

State of Oregon, Plaintiff-Respondent, v. Eric C. Navickas, aka Eric C. Nauickas, Defendant-Appellant.

State of Oregon, Plaintiff-Respondent, v. Amber Dawn Birmingham, Defendant-Appellant.

State of Oregon, Plaintiff-Respondent, v. Dorothy Fisher-Smith, Defendant-Appellant.

State of Oregon, Plaintiff-Respondent, v. Nicole Julia Webb, Defendant-Appellant.

State of Oregon, Plaintiff-Respondent, v. Stacey Dawn Williams, Defendant-Appellant.

State of Oregon, Plaintiff-Respondent, v. Amber Dawn Birmingham, Defendant-Appellant.

05-0307M.

A132129 (Control).

05-0309M.

A132130.

05-0310M.

A132131.

05-0333M.

A132132.

05-0337M.

A132133.

05-0339M.

A132134.

05-0341M.

A132135.

05-0342M.

A132136.

05-0364M.

A132137.

05-0367M.

A132138.

05-0426M.

A132139.

05-0427M.

A132140.

05-0564M.

A132141.

Court of Appeals of Oregon.

Argued and Submitted March 18, 2009.

Decided October 28, 2009.

Lauren C. Regan, Eugene, argued the cause for appellants. With her on the brief were Misha J. Dunlap, Civil Liberties Defense Center, and Kenneth Kreuscher.

Janet A. Metcalf, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ROSENBLUM, Judge.

SCHUMAN, J.

Defendants were arrested for "[i]nterfer[ing] with agricultural operations," a Class A misdemeanor. ORS 164.887 (set out below). At trial, each defendant filed a motion to dismiss on the grounds that the statute on its face violated the free speech, free assembly, and equality guarantees of the Oregon and United States constitutions. When the trial court denied their motions, defendants entered conditional pleas of no contest, reserving the right to withdraw the pleas in the event of a successful appeal.¹ The court entered judgments of conviction. Defendants appeal. We conclude that the statute does not violate any provision of the Oregon Constitution, but that it does violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Defendants' only challenge to ORS 164.887 is facial. Thus, facts involving the circumstances of defendants' arrests are immaterial; the only relevant "fact" in this case is that defendants were convicted of violating that statute, and the only issue is whether the legislature transgressed one of the specified state or federal constitutional provisions by enacting it. City of Eugene v. Lincoln, 183 Or.App. 36, 41, 50 P.3d 1253 (2002). That is a purely legal question that we review for legal error.

ORS 164.887 provides:

"(1) Except as provided in subsection (3) of this section, a person commits the offense of interference with agricultural operations if the person, while on the property of another person who is engaged in agricultural operations, intentionally or knowingly obstructs, impairs or hinders or attempts to obstruct, impair or hinder agricultural operations.

"(2) Interference with agricultural operations is a Class A misdemeanor.

"(3) The provisions of subsection (1) of this section do not apply to:

"(a) A person who is involved in a labor dispute as defined in ORS 662.010 with the other person; or

"(b) A public employee who is performing official duties.

"(4) As used in this section:

"(a)(A) `Agricultural operations' means the conduct of logging and forest management, mining, farming or ranching of livestock animals or domestic farm animals;

"(B) `Domestic farm animal' means an animal used to control or protect livestock animals or used in other related agricultural activities; and

"(C) `Livestock animals' has the meaning given that term in ORS 164.055.

"(b) `Domestic farm animal' and `livestock animals' do not include stray animals."

A "labor dispute as defined in ORS 662.010" is

"any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee."

ORS 662.010(3).

We begin with defendants' state constitutional challenges. State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983). Defendants argue, first and second, that ORS 164.887 violates Article I, sections 8 and 26, of the Oregon Constitution. Article I, section 8, provides:

"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."

Article I, section 26, provides, in part:

"No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good[.]"

According to defendants, ORS 662.010(3) prohibits conduct that, in some circumstances, might be constitutionally protected expression or assembly. Because they moved to dismiss the charges based on the language of the statute itself and not on its application to their own activity, their argument is that the statute is facially overbroad. They rely principally on State v. Ausmus, 336 Or. 493, 85 P.3d 864 (2003). In that case, the court sustained a facial overbreadth challenge, id. at 498-99, 85 P.3d 864, based on Article I, sections 8 and 26, to ORS 166.025(1)(e) (2003), amended by Or. Laws 2005, chapter 631, section 1, which provides:

"A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, the person * * * [c]ongregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse[.]"

Because the challenge was facial, the defendants demurred to the indictment and the circumstances of their arrests were not in evidence. Nonetheless, the court reasoned that the statute hypothetically could be applied against

"an individual who, in response to an order to disperse, abandons whatever activity in which they [sic] were engaged that made the order lawful in the first place, but continues peaceably to congregate with others, with the intent to cause public inconvenience, annoyance, or alarm or recklessly creates the risk of causing public inconvenience, annoyance or alarm. And, because ORS 166.025(1)(e) reaches that conduct, the legislature has stepped beyond the permissible regulation of damaging conduct or the harmful effects that may result from assembly or speech."

Ausmus, 336 Or. at 507, 85 P.3d 864. The court concluded that, "on its face, ORS 166.025(1)(e) [(2003)] is unconstitutionally overbroad because it restrains conduct that Article I, sections 8 and 26, of the Oregon Constitution protects." Id. at 508, 85 P.3d 864.

Defendants contend that, like the statute struck down in Ausmus, the statute that they challenge here could also hypothetically be applied so as to restrain constitutionally protected conduct.

Defendants' argument, however, depends on the proposition that a facial challenge to a statute that regulates only conduct is cognizable under Article I, sections 8 and 26-a proposition that seemingly follows from Ausmus, where the court sustained a facial challenge under Article I, section 8, to a statute that did not mention expression, and from State v. Hirsch/Friend, 338 Or. 622, 114 P.3d 1104 (2005), where the court adjudicated (but rejected) a facial challenge under Article I, section 26, to a statute that did not mention assembly. What defendants fail to recognize, however, is that their predicate proposition was emphatically rejected in State v. Illig-Renn, 341 Or. 228, 142 P.3d 62 (2006). In that case, the court held that statutes could not be facially challenged under either Article I, section 8, or Article I, section 26, if the statutes did not expressly restrain expression or assembly. A statute written in terms to restrain only conduct, without mentioning expression or assembly, is immune from facial challenge even if the statute restrains conduct that is primarily expressive; even if "words accompany [the] conduct"; and even if "the very reason for [the] conduct is expressive." Illig-Renn, 341 Or. at 237, 142 P.3d 62. Such statutes can be challenged only as applied. Id. at 234, 236-37, 142 P.3d 62. ORS 164.887 expressly restrains only conduct: obstructing, impairing, or hindering specified agricultural operations (or attempting to do so). It does not expressly prohibit speaking, writing, printing, or assembling, although those activities may accompany the prohibited conduct. Defendants' facial challenges under Article I, sections 8 and 26, therefore fail.

Their challenge under Article I, section 20, is more complex. That section provides:

"No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens."

Although section 20 is textually and historically a leveling provision aimed at prohibiting laws that confer special benefits on an aristocratic or quasi-aristocratic "class," it has for many years served as the state constitutional analog to the federal Equal Protection Clause, prohibiting legislation that imposes burdens on a historically oppressed minority. See, e.g., Tanner v....