City of Salem v. Bruner

• Decision Date: 18 June 1985
• Citation: 702 P.2d 70,299 Or. 262
• Parties: CITY OF SALEM, Respondent on Review, v. Eddie Paulk BRUNER, Petitioner on Review. TC 139,465; CA A28085; SC S30627.
• Court: Oregon Supreme Court

Page 70

702 P.2d 70

299 Or. 262

CITY OF SALEM, Respondent on Review, v. Eddie Paulk BRUNER, Petitioner on Review.

TC 139,465; CA A28085; SC S30627.

Supreme Court of Oregon In Banc.

Argued and Submitted July 11, 1984.

Reassigned March 26, 1985.

June 18, 1985.

Dale L. Crandall, Salem, argued the cause and filed the brief for petitioner on review.

Paul Lee, Salem, argued the cause and filed the brief for respondent on review.

Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., Virginia L. Linder, Asst. Sol. Gen., and Stephen F. Peifer, Asst. Atty. Gen., Salem, filed an amicus curiae brief for the State of Oregon.

Gail Meyer Baron, Portland, filed an amicus curiae brief for the Oregon Criminal Defense Lawyers Assn.

ROBERTS, Justice.

Defendant seeks review of the Court of Appeals dismissal of his appeal to that court. The Court of Appeals dismissed for lack of jurisdiction, citing ORS 221.360, set forth in note 3. Defendant petitioned for review to this court, raising the claim that his inability to appeal to the Court of Appeals, except on the constitutionality of the city charter or ordinance, denied him equal privileges and immunities under Article 1, section 20 of the Oregon Constitution.

The Facts

Defendant was arrested for driving under the influence of intoxicants by a City of Salem police officer. He was charged with a violation of the Salem Revised Code Section 100.330(a)(2) and cited into Salem Municipal Court.

The citation stated that the offense occurred in Polk County but the arrest was made after the officer followed defendant across the bridge into downtown Salem, located in Marion County. Although the major part of Salem is situated in Marion County, a part of Salem is situated on the west side of the Willamette River in Polk County.

Prior to trial in municipal court, defendant moved to have the litigation transferred to Polk County District Court. The motion was denied. ¹ Defendant waived jury trial and filed a motion to suppress evidence. That motion also was denied. Trial was had on stipulated facts and defendant was found guilty. Defendant then appealed to Marion County Circuit Court and had a trial de novo. Defendant repeated his motion to suppress evidence, and the motion again was denied. He again waived a jury trial and again was found guilty.

Defendant then appealed to the Court of Appeals on evidentiary grounds, asserting that his motion to suppress should have been allowed. The City of Salem moved for dismissal based on ORS 221.360 and City of Klamath Falls v. Winters, 289 Or. 757, 619 P.2d 217 (1980), which upheld the dual appellate scheme provided in ORS 221.360. The Court of Appeals allowed the motion for dismissal.

The Statutes

In the City of Salem, a state, county or city police officer having probable cause to believe a person has committed a major traffic offense may cite the alleged offender for a violation of state statute or of the city ordinance which incorporates these state laws. See Salem Revised Code 100.330. ² The officer also has the choice to cite the person into municipal court or district court. A person cited to district court for violations of either a city ordinance or a state law may appeal to the Court of Appeals on any legal issue. ORS 46.250. Likewise, a person cited to municipal court for violating a state statute may seek removal from municipal court to the district court, ORS 484.030(2), 153.565, 51.050(2), Henderson v. Smith, 282 Or. 109, 577 P.2d 504 (1978), and from there appeal to the Court of Appeals on any legal issue. In contrast, a person cited to the municipal court for a city ordinance violation can seek de novo review to the circuit court, ORS 221.350, 221.390, and appeal to the Court of Appeals only on the constitutionality of an ordinance or charter provision, ORS 221.360. ³

This statute, in part, provides: "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." In City of Salem v. Polanski, 202 Or. 504, 509-10, 276 P.2d 407 (1954), we interpreted this statute to disallow appeals beyond the circuit court except as expressly provided in the statute. We held that only cases involving the constitutional issues specified came within the jurisdiction of the Court of Appeals. In City of Klamath Falls v. Winters, supra, we declined to read ORS 221.350 and 221.360 as grants of appellate jurisdiction; rather, we held that they were restrictions on that jurisdiction. The effect of these statutes as interpreted is to preclude the right to plenary appeal in cases such as the present.

The Constitutional Claim

Defendant contends that these statutes, by restricting him to a limited rather than a full appeal, violate the equal privileges and immunities clause of Article I, section 20 of the Oregon Constitution. ⁴ The essence of defendant's claim is that he was denied a privilege available to similarly situated defendants because a person cited for the same conduct to municipal court under a state statute or to a district court under either a city ordinance or state statute would ultimately be able to appeal to the Court of Appeals on any legal issue while defendant, who was cited for a city ordinance violation to a municipal court, could only appeal to the Court of Appeals on the constitutionality of the underlying city ordinance or charter provision. The fault defendant finds with the dual appeal procedures lies in the "unbridled discretion" of police officers to determine the appeal route by checking one of two boxes on the uniform citation form charging a violation of city ordinance or state statute and by filling in a blank fixing the court in which the original trial is to be held. The box checked and the court designated set the scope and availability of appeal.

Defendant argues that State v. Freeland, 295 Or. 367, 667 P.2d 509 (1983), requires that the citing officer's discretion must rest on meaningful criteria consistently applied to similarly situated defendants. Defendant is correct.

The state as amicus defends the dual appellate scheme on three grounds. It first argues that there is no disparity in appellate opportunities because municipal court defendants may seek habeas corpus review, a form of review which the state contends is "comparable to, if not substantially the same as, the appellate rights of a district court defendant." Second, the state asserts that plenary appellate review confers no particular "privilege" on defendants. If no "privilege" is identified then no "privilege" is denied and Article I, section 20 is inapplicable. Third, the state contends that defendant has failed to prove that discretion was exercised in a standardless manner. The state asserts that each law enforcement agency may have standards upon which to make citing decisions. In any case, defendant has not demonstrated the contrary.

We disagree with the state's first suggestion that habeas corpus review is comparable to direct appellate review. Although a defendant may raise a full array of legal issues by habeas corpus, the writ is only available to a defendant who is "imprisoned or otherwise restrained of his liberty," ORS 34.310. We have interpreted this language to require some "physical restraint within the state of Oregon and within some county or judicial district of the state." White v. Gladden, 209 Or. 53, 60, 303 P.2d 226 (1956). In that case we held that habeas corpus was not available to a defendant on parole. It would likewise appear that habeas corpus relief was not available to those who are convicted and fined. Because of its limited availability, it is not an adequate substitute for direct appellate review.

The state's second and third points deserve further discussion. In City of Klamath Falls v. Winters, supra, a majority of this court rejected challenges to the instant statutory scheme under the federal and state constitutional guarantees of equal treatment. We examined only the classifications drawn by the statutes in relation to the purported purpose for the two appellate routes and found a "rational basis" for the system. Winters did not consider the Article I, section 20 guarantee of equality of privileges to each individual "citizen" separate from the application of this guarantee to any "class of citizens." We later discussed this aspect of Article I, section 20 in State v. Clark, 291 Or. 231, 630 P.2d 810 (1981), State v. Edmonson, 291 Or. 251, 630 P.2d 822 (1981), and State v. Freeland, supra.

In particular, Winters stated:

"[I]f we were to hold ORS 221.360 to be invalid upon the ground that a defendant convicted in municipal court and circuit court is denied equal protection because he does not have the same right to appeal to the Court of Appeals as granted to a defendant convicted in a district court, a person convicted in a district court could equally contend that he is denied equal protection in that he does not have the same right to review by a trial de novo in circuit court as granted to a defendant convicted in municipal court. Yet, both defendants whose cases originate in municipal court and defendants whose cases originate in district court enjoy advantages on appeal that are not available to the other.

"For these reasons, it may well be that the differences between the procedures available to a defendant convicted in a municipal court, as compared with those available to a defendant convicted in a district court, do not rise to such a level of 'inequality' as to constitute 'unequal' protection of the laws." 289 Or. at 771, 619 P.2d 217.

But, of course, the fact that two processes exist by which one person may enjoy advantages not available to another is precisely what triggers the Article I, section 20 concerns we addressed in Freeland. Whenever a person is denied some advantage to which he or she would...