City of Klamath Falls v. Winters

Citation619 P.2d 217,289 Or. 757
Decision Date21 October 1980
Docket NumberNo. 76-259,76-259
PartiesCITY OF KLAMATH FALLS, Respondent-Petitioner, v. Thomas M. WINTERS and Elena Winters, Appellants-Petitioners. C; CA 12533; SC 26587, 26611.
CourtSupreme Court of Oregon

[289 Or. 758-A] Richard B. Thierolf, Jr., Klamath Falls, and Rex [289 Or. 758-B] E. H. Armstrong, Portland, argued the cause for appellants-petitioners. With them on the briefs were Jerry A. Jacobson, Klamath Falls, and Carl R. Neil, Portland.

B. J. Matzen, City Atty., Klamath Falls, argued the cause and filed the briefs for respondent-petitioner.

Mark E. Pilliod, Deputy City Atty., Beaverton, filed a brief amicus curiae.

Before DENECKE, C. J., and TONGUE, HOWELL, LENT, PETERSON and TANZER, JJ.

TONGUE, Justice.

This is a criminal case involving two defendants, Thomas Winters and his sister, Elena Winters. Both defendants were charged and convicted in the Klamath Falls Municipal Court of disorderly conduct. Thomas Winters was further charged and convicted of resisting arrest. Both charges were based upon violations of Klamath Falls municipal ordinances. 1

Defendants appealed to circuit court where their case was tried de novo pursuant to ORS 221.390. 2 Both defendants requested that the jury be instructed that the defendants had a right to resist the use of excessive force by police officers in making an arrest. That instruction was not given. The circuit court jury returned a verdict of guilty. That court then imposed upon defendant Elena Winters a $53 fine and 10 days in jail with 9 days suspended--the same sentence as had been imposed by the municipal court. Defendant Thomas Winters received a more severe sentence. The municipal court had sentenced him to 15 days in jail with 12 days suspended, and a $53 fine. The circuit court sentenced him to 30 days in jail, with no days suspended, plus a $450 fine on the resisting arrest conviction and a $53 fine on the disorderly conduct conviction. Defendants then appealed to the Court of Appeals, citing as error the circuit court's failure to give the requested jury instructions and the circuit court's imposition of a more severe sentence against defendant Thomas Winters. 3 Respondent, the City of Klamath Falls, moved to dismiss the appeal, contending that ORS 221.350 and 221.360, as interpreted by this court in City of Salem v. Polanski, 202 Or. 504, 276 P.2d 407 (1954), restricts the right of persons convicted in municipal court to a de novo appeal in circuit court and only allows further appeal to the Court of Appeals in 'cases involving the constitutionality of the charter provision or ordinance under which the conviction was obtained.' (ORS 221.360). Defendants responded by contending that this restricted right of appeal in cases originating in municipal court denied them equal protection of the laws, and that they were also denied equal protection of the laws because the police had unlimited discretion to prosecute them in municipal court, rather than in district court.

The Court of Appeals held that ORS 221.360 was unconstitutional as a denial of equal protection of the laws insofar as it imposed such a restriction upon appeals from municipal courts because there exists no corresponding restriction on appeals from district courts and, further, that jurisdiction is granted to the Court of Appeals under ORS 138.040. 42 Or.App. 223, 228-29, 600 P.2d 478 (1979). The Court of Appeals affirmed the circuit court convictions, however, holding that defendants were not entitled to a jury instruction to the effect that a person may use reasonably physical force in resisting allegedly excessive force used by an arresting officer and, further, that the circuit court had properly imposed a more severe sentence on defendant Thomas Winters. 42 Or.App. at 229-30, 600 P.2d 478.

Both parties petitioned this court for review of the decision of the Court of Appeals. Defendants' petition contends that:

1. 'A person has the right to use reasonable force to resist the use of excessive force against him by a police officer, and such resistance constitutes a defense to charges of resisting arrest.'

2. 'ORS 161.209 permits defense of others and self defense is justification for behavior which otherwise would constitute disorderly conduct or resisting arrest.'

Defendants' petition does not raise the issue regarding the circuit court's imposition of a more severe penalty against defendant Thomas Winters. Defendants did, however, raise this issue during oral argument.

The city's petition contends that:

1. 'The Court of Appeals erred in assuming jurisdiction pursuant to ORS 138.040.'

2. 'The Court of Appeals erred in holding that ORS 221.360, to the extent it provides for a reduced scope of appellate court review, violates the equal protection clause of the Fourteenth Amendment and Article I, Section 20 of the Oregon Constitution.'

Both petitions for review were allowed by this court.

Thus, we are requested by the parties to decide four questions:

1. Whether the Court of Appeals had jurisdiction to hear defendants' appeal in view of the limited grant of jurisdiction contained in ORS 221.350 and 221.360;

2. Whether the difference in appeal rights available to defendants prosecuted in municipal court, as compared with those available to defendants prosecuted in district court, or the discretion in the police to prosecute defendants in municipal court, rather than in district court, violated constitutional guarantees of equal protection of the laws;

3. Whether the use of reasonable force to resist the use of excessive force by a police officer in making an arrest could be raised by defendants as a defense to a charge of resisting arrest, and

4. Whether the circuit court could properly impose a more severe sentence following de novo review than had been imposed by the municipal court.

I. The Jurisdictional Question

As held in McGarger v. Moore, 89 Or. 597, 599, 175 P. 77 (1918), after considering the provisions of § 6 of Article VII (Original) of the Constitution of Oregon and § 2 of Article VII (Amended) of that constitution:

'This court, therefore, is one of limited jurisdiction aside from the instances just mentioned, [mandamus, quo warranto and habeas corpus]. It cannot acquire authority to act except in the manner provided by statute, in a case of the kind before us, and can exercise only the power expressly conferred upon it by statute.'

To the same effect, see City of Portland v. Duntley, 185 Or. 365, 371, 203 P.2d 640 (1949), and State ex rel. Venn v. Reid, 207 Or. 617, 630-31, 298 P.2d 990 (1956). 4

The question to be decided is whether any statute conferred jurisdiction upon the Court of Appeals to consider the appeal in this case.

As previously stated, defendants were convicted in municipal court of violating municipal ordinances. They then appealed to the circuit court per ORS 221.350. 5 This appeal to the circuit court was not an appeal in the usual sense, 6 but was a trial de novo as provided by ORS 221.390. 7

Following their conviction in circuit court, defendants appealed to the Court of Appeals. That appeal was considered by that court on its merits in spite of the provisions of ORS 221.360, which provide:

'In all cases involving the constitutionality of the charter provision or ordinance under which the conviction was obtained as indicated in ORS 221.350, such person shall have the right of appeal to the circuit court in the manner provided in ORS 221.350, regardless of any charter provision or ordinance prohibiting appeals from the municipal court because of the amount of the penalty or otherwise. An appeal may likewise be taken in such cases from the judgment or final order of the circuit court to the Court of Appeals in the same manner as other appeals are taken from the circuit court to the Court of Appeals in other criminal cases. Where the right of appeal in such cases depends upon there being involved an issue as to the constitutionality of the charter provision or ordinance, the decision of the appellate court shall be upon such constitutional issue only.' (Emphasis added)

This court held in City of Salem v. Polanski, 202 Or. 504, 276 P.2d 407 (1954), that when, as in this case, defendants do not attack the validity of the underlying city charter provisions or ordinances, then, by reason of the provisions of ORS 221.360, no right of appeal exists beyond the circuit court. The court stated (at 509-10, 276 P.2d 407):

'By specifically providing for appeals to the Supreme Court in cases involving constitutional questions, but omitting to make similar provision for the appeal of other municipal court cases involving violations of city ordinances (except to the circuit court), the legislature clearly indicated its intention that appeals to the Supreme Court from the judgment of the circuit court in the latter type of cases should not be permitted.'

As will be subsequently discussed, the Court of Appeals held that ORS 221.360 violated equal protection guarantees

'* * * by limiting the appeal rights of persons convicted of municipal violations in cities where such violations are initially triable in municipal courts, while persons charged with municipal violations in certain other cities are tried in district courts pursuant to ORS Chapter 46 and, if convicted, have a right to plenary appeal to the Court of Appeals under ORS 46.047.' 42 Or.App. at 227, 600 P.2d 478.

The Court of Appeals then held that because defendants had been convicted in circuit court upon a trial de novo, jurisdiction to hear the appeal was conferred by ORS 138.040, which states in part:

'The defendant may appeal to the Court of Appeals from a judgment on a conviction in a district or circuit court * * *.'

In other words, the Court of Appeals appears to have reasoned that ORS 138.040 grants a general right of appeal and that ORS 221.360 restricts that right in cases originating in municipal cour...

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