State v. Ausmus
| Decision Date | 05 March 2003 |
| Citation | 336 Or. 493,336 Ore. 493,85 P.3d 864 |
| Parties | STATE of Oregon, Respondent on Review, v. Jason Lee AUSMUS, Petitioner on Review. State of Oregon, Respondent on Review, v. Christopher Peck Andrews, Petitioner on Review. State of Oregon, Respondent on Review, v. Warren B. Cox, Petitioner on Review. State of Oregon, Respondent on Review, v. Maria Estela Gonzalez, Petitioner on Review. State of Oregon, Respondent on Review, v. Mashaun Allen Horne, Petitioner on Review. State of Oregon, Respondent on Review, v. Leah Hart-Landsberg, Petitioner on Review. State of Oregon, Respondent on Review, v. Charles Wilmer Johnson, Petitioner on Review. State of Oregon, Respondent on Review, v. Aaron William Miller, Petitioner on Review. State of Oregon, Respondent on Review, v. Kristen Earleen Sage, Petitioner on Review. State of Oregon, Respondent on Review, v. Dana DeMaster, Petitioner on Review. State of Oregon, Respondent on Review, v. Melissa Wade Rohs, Petitioner on Review. |
| Court | Oregon Supreme Court |
Hugh Sage, Portland, argued the cause and filed the briefs for petitioner on review Sage. With him on the brief on the merits was Timothy M. Bowman. Andrew S. Chilton, Portland, argued the cause and filed the briefs for petitioners on review Cox, DeMaster, Gonzalez, Hart-Landsberg, Johnson, Miller, and Rohs. With him on the brief on the merits were Lisa J. Ludwig, Steven J. Sherlag, Timothy M. Bowman, Paul T. Loney, A. Alexander Hamalain, Stuart A. Sugarman, and Lake James H. Perriguey.
No appearance for petitioners on review Ausmus, Andrews, and Horne.
Erika L. Hadlock, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Alia S. Miles and Jonathan A. Ater of Ater Wynne LLP, Portland, and Les Swanson, Portland, filed a brief on behalf of amicus curiae ACLU Foundation of Oregon, Inc.
Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, DE MUNIZ, and BALMER, Justices.1
DE MUNIZ, J.
The issue in each of these cases, which were consolidated on appeal and on review, concerns the facial constitutionality of one variation of the crime labeled in ORS 166.025(1)(e) as disorderly conduct. ORS 166.025(1)(e) provides, in part:
Each defendant demurred to an accusatory instrument that charged that defendant with violating the foregoing statute. Each defendant raised, among other things, two types of facial constitutional challenges to the statute, arguing that (1) the statute was unconstitutionally overbroad, in that it criminalized forms of expression, speech, and peaceable assembly protected under Article I, sections 8 and 26, of the Oregon Constitution2 and the First Amendment to the United States Constitution;3 and (2) the statute was unconstitutionally vague under Article I, sections 20 and 21, of the Oregon Constitution4 and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.5 The trial court sustained defendants' demurrers, concluding that ORS 166.025(1)(e) was unconstitutionally vague under the Oregon Constitution. The state appealed, and the Court of Appeals reversed and remanded to the trial court. State v. Ausmus, 178 Or.App. 321, 37 P.3d 1024 (2001). We allowed review and now reverse the decision of the Court of Appeals and affirm the judgments of the trial court. In this court, defendants, joined by amicus curiae American Civil Liberties Union Foundation of Oregon, Inc., again challenge the constitutionality of ORS 166.025(1)(e) on the grounds that that statute is both overbroad and vague in violation of the state and federal constitutions.6 Because we cannot address those constitutional challenges until we first discern the conduct that ORS 166.025(1)(e) proscribes, we begin our analysis by construing that statute, beginning with its text and context. See State v. Chakerian, 325 Or. 370, 376-80, 938 P.2d 756 (1997) (); PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993) (). In doing so, we give words of common usage "their plain, natural and ordinary meaning." Id. at 611, 859 P.2d 1143. We also consider, at the first level of analysis, any prior case law from this court interpreting the statute at issue. State v. Toevs, 327 Or. 525, 532, 964 P.2d 1007 (1998). If the legislature's intent is clear from that analysis, then our inquiry ends. PGE, 317 Or. at 611,859 P.2d 1143.
Under ORS 166.025(1)(e), a person commits one variation of the crime of disorderly conduct when the person: (1) with the intent to cause, or by recklessly creating a risk of causing, public inconvenience, annoyance, or alarm; (2) congregates with other persons in a public place; and (3) refuses to comply with a lawful order of the police to disperse. The parties agree, as do we, that the element of "[c]ongregates with other persons in a public place" under ORS 166.025(1)(e) describes conduct encompassed within the meaning of the phrase "assembling together" under Article I, section 26, and the word "assemble" under the First Amendment. See 336 Or. at 498 nn. 1, 2, 85 P.3d at 866 nn. 1, 2 (). The parties, however, disagree as to the meaning of the other two elements of the crime—specifically, the statutory culpable mental state and the meaning of the term "lawful order" contained within the phrase "refuses to comply with a lawful order of the police to disperse." We address in turn the parties' arguments about the meaning of each of those statutory elements.
Defendants and the state disagree about both the effect and the scope of the culpable mental state described in ORS 166.025(1)(e). First, defendants argue that the culpable mental state under ORS 166.025(1)(e) operates to prohibit a congregation of people that intentionally causes, or recklessly creates a risk of causing, public inconvenience, annoyance, or alarm. As we understand the premise of that argument, defendants view the culpable mental state under ORS 166.025(1)(e)—that is, an "intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof" —as effectively proscribing any congregation from which a factfinder may infer an intent to cause, or a reckless creation of a risk of causing, the type of harm described under that statutory phrase. See generally Delgado v. Souders, 334 Or. 122, 135, 137, 46 P.3d 729 (2002) (). As we explain below, that premise is incorrect, because it ignores the part of the statutory definition of the crime that requires a person also to "refuse to comply with a lawful order of the police to disperse."
This court previously has explained that the statutory phrase "intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," does not describe a harm, or a risk of a harm, that ORS 166.025(1) prohibits. See State v. Spencer, 289 Or. 225, 229, 611 P.2d 1147 (1980) (). Instead, that phrase describes the culpable mental state that the state must prove that a defendant possessed when the defendant engaged in the conduct that the statute proscribes under each variation of the crime of disorderly conduct.7Id. Under paragraph (e) of ORS 166.025(1), the paragraph challenged here, that proscribed conduct is both the congregation with others in a public place and the refusal to obey a lawful order of the police to disperse. Stated differently, a person who congregates with others in a public place with the intent to cause, or by recklessly creating a risk of causing, public inconvenience, annoyance, or alarm violates ORS 166.025(1)(e) only if that person also refuses to obey a lawful police order to disperse with that same mental state. Thus, contrary to defendants' argument, the statutory culpable mental state does not purport to criminalize only the act of congregating with others with the intent to cause the statutorily described circumstances.
Defendants and the state also make arguments that suggest that their views differ respecting the effect of the culpable mental state that ORS 166.025(1)(e) requires. Defendants posit that ORS 166.025(1)(e) would withstand their constitutional challenges if the culpable mental state under that statute required the state to prove that, by engaging in the proscribed conduct, the defendant intended only to cause public inconvenience, annoyance, or alarm—or, in other words, that the defendant lacked any intent to exercise a constitutionally protected right, such as the right to free expression or speech, or peaceable assembly. The state, however, asserts that, even if a defendant intended to exercise a constitutionally protected right, a defendant also may possess the requisite statutory mental state if he or she intended to cause, or recklessly created a risk of causing, one of the statutorily described circumstances.8
Whether the culpable mental state under ORS 166.025(1)(e) requires proof of a...
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State v. Babson
... ... Chakerian, 325 Or. 370, 378–80, 938 P.2d 756 (1997) (examining context to determine whether text proscribing “tumultuous and violent conduct” was intended to reach protected expression under the second category of Robertson ); State v. Ausmus", 336 Or. 493, 499–503, 85 P.3d 864 (2003) (examining text and context to “discern the conduct that [the statute] proscribes”). If the meaning or scope of the text of a statute is not in dispute, there is generally no need to apply the statutory interpretation framework described in Gaines. \xC2" ... ...
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State v. Christian
... ... More recently, this court also addressed an overbreadth challenge invoking both Article I, section 8, and Article I, section 26, which delineates constitutionally protected conduct by guaranteeing the right to peaceable assembly. State v. Ausmus, 336 Or. 493, 85 P.3d 864 (2003). 338 Or. at 628, 114 P.3d 1104. 10. The Court of Appeals stated: It is also worth noting that this overbreadth rule derives from United States Supreme Court cases under the First Amendment, State v. Blocker, 291 Or. 255, 261, 630 P.2d 824 (1981), and is, in ... ...
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... ... Kate BROWN, in her official capacity as Governor of the State of Oregon; and State of Oregon, Respondents on Review. CC 161109273 (SC S066564) Supreme Court of Oregon. Argued and submitted November 13, 2019 ... See State v. Ausmus , 336 Or. 493, 508, 85 P.3d 864 (2003) (invalidating statute prohibiting disorderly 475 P.3d 90 conduct, former ORS 166.025(1)(e) (2003), after ... ...
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State v. Kreis
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Chapter §16.2 NATURE OF THE ISSUE
...first construe the statute, rule, or ordinance at issue "to discern the conduct that [it] proscribes." State v. Ausmus, 336 Or 493, 499, 85 P3d 864 (2003). That generally requires the court to consider the text, context, and any legislative history supplied by the parties. State v. Gaines, ......
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Chapter § 16.2
...323-25 (a party's argument sometimes "requires a brief digression into statutory construction"); see also State v. Ausmus, 336 Or 493, 499, 85 P3d 864 (2003) (construing statute to "discern the conduct that [it] proscribes"). The method of statutory interpretation or construction is set out......
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Chapter §18.4 PROCEDURE TO CHALLENGE STATUTE
...the defendant may demur to the charge. See State v. Illig-Renn, 341 Or 228, 230, 142 P3d 62 (2006); State v. Ausmus, 336 Or 493, 498, 85 P3d 864 (2003); State v. Borowski, 231 Or App 511, 518, 220 P3d 100 (2009) (demurrer and motion to dismiss). Civil cases may be commenced under other stat......
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Chapter §18.2 INTERPRETIVE METHOD
...is unconstitutionally overbroad if it purports to prohibit conduct that is constitutionally protected." State v. Ausmus, 336 Or 493, 85 P3d 864 (2003) (citing Robertson, 293 Or at 410). Article I, section 8 (expression) and section 26 (assembly) have received "parallel treatment" in analysi......