City of Portland v. Aziz

• Jurisdiction: Oregon
• Parties: CITY OF PORTLAND, Appellant, v. Slaih AZIZ, Respondent. 177184-7908; CA 16522.
• Citation: 615 P.2d 1109,47 Or.App. 937
• Docket Number: No. DA,DA
• Court: Oregon Court of Appeals
• Decision Date: 18 August 1980

Page 1109

615 P.2d 1109

47 Or.App. 937

CITY OF PORTLAND, Appellant, v. Slaih AZIZ, Respondent.

No. DA 177184-7908; CA 16522.

Court of Appeals of Oregon.

Argued and Submitted April 18, 1980.

Decided Aug. 18, 1980.

Karen H. Green, Asst. Atty. Gen., Salem, argued for appellant. With her on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Charles J. Merten, Portland, argued the cause for respondent. With him on the brief was Merten & Saltveit, Portland.

Before GILLETTE, P. J., and ROBERTS and CAMPBELL, JJ.

ROBERTS, Judge.

The defendant was charged with a violation of Portland City Ordinance No. 139931, § 14.24.160, infra, which prohibits the unlawful operation of a device designed for sound production. He demurred to the city's complaint, contending inter alia that the ordinance is vague and overbroad. The trial court first overruled the demurrer, but on the defendant's motion to reconsider the court sustained the demurrer. The city appeals from the subsequent order dismissing its complaint. ORS 46.810; 138.060(1). We reverse.

The defendant's demurrer had several bases. In addition to the claim that the underlying ordinance is vague and overbroad, the defendant also challenged the specific language of the city's complaint. We will first examine these more specific challenges.

On appeal, as below, the defendant argues that the city's complaint is defective because it was not properly verified.

ORS 133.015 provides that,

"An information or complaint shall contain substantially the following:

" * * *

"(8) The verification by the complainant and the date of the signing of the information or complaint." ¹ (Emphasis supplied.)

The complaint in this case first alleges the violation of the ordinance. The complaint is signed by a deputy district attorney who swears that the "foregoing complaint is true as (she) verily believe(s)." The defendant insists that this verification is insufficient because it "gives no indication that (it) was made on personal knowledge."

We hold that, at least on the record before us, the verification is adequate. We first note that the defendant makes no attempt to link his objection to the verification to the provisions of the statute setting out the grounds for demurrer, ORS 135.630, ² and the link is not obvious on the face of the complaint. However, even assuming, without deciding, that an insufficient verification or the failure to verify renders a complaint subject to demurrer, still there is nothing on the face of this complaint which demonstrates that this verification is inadequate.

The verification recites the deputy district attorney's belief that the allegations of the complaint are true. See State v. Harvey, 117 Or. 466, 242 P. 440 (1926). While the defendant seems to assume that the deputy district attorney did not know enough to form this belief, this fact, even if true, is not apparent from the face of the complaint. The verification of the city's complaint did not render the complaint subject to demurrer. ³

The complaint filed against the defendant reads as follows:

"The above-named defendant is accused by this complaint of the offense of UNLAWFUL OPERATION OF SOUND PRODUCING DEVICE committed as follows:

"The said defendant, on or about June 4, 1979 within the corporate limits of the said City of Portland, Oregon, did unlawfully and knowingly permit the use and operation of a device designed for sound production between the hours of 10:00 p. m. and 7:00 a. m. so as to be plainly audible within a dwelling unit which is not the source of the sound, * * *.

" * * *."

The defendant also demurred to the complaint on the basis that it was too general and did not inform him as to the " * * * cause of the accusation against him * * *." Or.Const., art. I, § 11. ⁴

The complaint filed against the defendant is in the language of the ordinance. The Supreme Court has observed that,

" 'In an indictment for an offense created by statute, it is usually sufficient to describe the offense in the words of the statute. * * * ' "

State v. Sanders, 280 Or. 685, 688, 572 P.2d 1307, 1308 (1977), quoting from State v. Smith, 182 Or. 497, 502, 188 P.2d 998 (1948).

We hold that this complaint is sufficient. In State v. Shadley/Spencer/Rowe, 16 Or.App. 113, 120, 517 P.2d 324 (1973), we noted that, with the advent of criminal discovery ⁵ and with other statutory changes, an accusatory instrument is now " * * * merely a formal method of initiating criminal proceedings and identifying the name of the crime that the accused is alleged to have committed. * * * "

"In light of the present criminal procedure code the accusatory instrument has lost much of its historical significance as a means of notifying defendant of the crime charged. * * * As a result, the trend in Oregon has been to require less specificity in the accusatory instrument. See State v. Keys, 25 Or.App. 15, 548 P.2d 205 rev. den. (1976). * * * If the complaint, read in conjunction with the statutory definition of the terms used, informs the defendant of the elements of the offense with which he is charged it is sufficient."

State v. House, 37 Or.App. 131, 133, 586 P.2d 388, 390 (1978); State v. Thompson, 40 Or.App. 461, 595 P.2d 842 (1979). ⁶

Having held that this specific complaint is sufficient, we now turn to the question of whether the complaint is invalid because it is based on a vague or overbroad ordinance. ^{7 7} The ordinance, § 14.24.160 provides:

"It is unlawful to operate or permit the use or operation of any device designed for sound production or reproduction, including, but not limited to any radio, television set, musical instrument, phonograph, loudspeaker, bell or chime, in such a manner as to cause a noise disturbance as defined in Section 18.04.040(15) or to operate or permit the operation of any such device between the hours of 10:00 p. m. and 7:00 a. m. so as to be plainly audible within any dwelling unit which is not the source of the sound ; or to operate any such device on public property or on a public right-of-way so as to be plainly audible fifty feet or more from such device provided that a person operating any such device in a city park pursuant to a permit granted by the commissioner in charge of the park bureau shall be in violation only if the device is plainly audible at any point along the park boundary. Violation of this section shall be punishable by a fine of up to five hundred ($500.00) dollars." (Emphasis supplied.)

The parties agree that "plainly audible sound" is defined in § 18.04.040(21) as:

"Any sound for which the information content of that sound is unambiguously communicated to the listener, such as, but not limited to understandable spoken speech, comprehension of whether a voice is raised or normal, or comprehensible musical rhythms."

Vagueness and overbreadth are intertwined issues. However, disentangling the two to the extent possible, we will first consider the vagueness of the ordinance. We hold that it is not unconstitutionally vague.

"Due process requires that penal statutes provide an adequate basis for judicial determination of whether particular conduct is criminal. The statute must establish a standard for the trial court's decision whether to submit a case to the jury and it must provide a framework for the jury's determination of guilt or innocence. If the terms of a statute are so elastic that the determination of guilt or innocence in individual prosecutions must necessarily be ad hoc, the statute is unconstitutionally vague. State v. Hodges, 254 Or. 21, 25, 27-28, 457 P.2d 491 (1969); State v. Sanderson, 33 Or.App. 173, 176-77, 575 P.2d 1025 (1978).

"A determination of whether a statute is void for vagueness necessarily involves questions of degree. The legislature need not define an offense with such exactitude that a person could determine in advance whether specific conduct in all possible factual circumstances will be found to be an offense. State v. Samter, 4 Or.App. 349, 352, 479 P.2d 237 (1971). The standard need not be so exact that persons affected by it will never be required to hazard their freedom upon a correct assessment of the manner in which a jury will resolve a question of degree. State of Oregon v. Wojahn, 204 Or. 84, 137, 282 P.2d 675 (1955). * * *." State v. Williams, 37 Or.App. 419, 422-23, 587 P.2d 1049 (1978).

While we recognize that " * * * statutes impinging upon First Amendment rights will be strictly tested * * *," State v. Hodges, 254 Or. 21, 26, 457 P.2d 491 (1969), we find that this ordinance passes that test.

The defendant argues that the ordinance applies to the unamplified human voice, or at least that it is not clear whether the ordinance applies to unamplified speech. We disagree. A human voice is not a "device designed for sound production or reproduction" akin to a "radio, television set, musical instrument, phonograph, loudspeaker, bell or chime * * *." This portion of the ordinance is clear.

The defendant also asserts that the ordinance provides no standard to guide the exercise of judicial discretion, claiming that the ordinance is subjective. The defendant describes a variety of hypothetical situations in which the application of the ordinance varies with the construction of neighboring "dwelling units" and the sensitivity of their occupants.

The fact that an ordinance or statute may apply differently in different situations does not render it void. Few laws apply with mathematical precision. Whether a sound can be plainly heard in another dwelling during certain specified hours is an adequate standard to guide a judge and jury. The fact that the necessary volume of sound will differ depending upon whether the neighboring dwelling is well-insulated or flimsy, and upon whether it is a hot summer night or the midst of rainy November does not mean that the ordinance is vague. Flexibility is not equivalent to vagueness. ⁸

The defendant next attacks the...