State v. Babson

• Decision Date: 11 April 2012
• Docket Number: 09C41582,09C41593,A144039,09C41583,A144037 (Control); A144038,A144042,A144345.,09C41581,A144043,09C41584,09C41594
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Mark N. BABSON, Defendant–Appellant. State of Oregon, Plaintiff–Respondent, v. Michele C. Darr, Defendant–Appellant. State of Oregon, Plaintiff–Respondent, v. Teresa L. Gooch, Defendant–Appellant. State of Oregon, Plaintiff–Respondent, v. Margaret M. Morton, Defendant–Appellant. State of Oregon, Plaintiff–Respondent, v. George G. Meek, Defendant–Appellant. State of Oregon, Plaintiff–Respondent, v. Gregory J. Cleland, Defendant–Appellant.
• Court: Oregon Court of Appeals

249 Or.App. 278
279 P.3d 222

STATE of Oregon, Plaintiff–Respondent,
v.
Mark N. BABSON, Defendant–Appellant.
State of Oregon, Plaintiff–Respondent,
v.
Michele C. Darr, Defendant–Appellant.
State of Oregon, Plaintiff–Respondent,
v.
Teresa L. Gooch, Defendant–Appellant.
State of Oregon, Plaintiff–Respondent,
v.
Margaret M. Morton, Defendant–Appellant.
State of Oregon, Plaintiff–Respondent,
v.
George G. Meek, Defendant–Appellant.
State of Oregon, Plaintiff–Respondent,
v.
Gregory J. Cleland, Defendant–Appellant.

09C41582, 09C41583, 09C41584, 09C41593, 09C41594, 09C41581; A144037 (Control); A144038, A144039, A144042, A144043, A144345.

Court of Appeals of Oregon.

Argued and Submitted Oct. 10, 2011.
Decided April 11, 2012.

[279 P.3d 224]

Timothy R. Volpert argued the cause for appellants Mark N. Babson, Michele C. Darr, Teresa L. Gooch, Margaret M. Morton, and George G. Meek. With him on the briefs were Alan J. Galloway and Davis Wright Tremaine LLP.

Jossi Davidson argued the cause for appellant Gregory J. Cleland. With him on the brief was Gracey & Davidson.

Judy C. Lucas, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

SCHUMAN, P.J.

[249 Or.App. 281]Defendants were arrested on the steps of the state capitol in Salem while conducting a day-and-night vigil to protest the deployment of Oregon National Guard troops to Iraq and Afghanistan. The state charged, and defendants do not deny, that defendants at the time of the arrest were in violation of a rule that prohibited use of the capitol steps between 11:00 p.m. and 7:00 a.m. They were subsequently convicted of second-degree criminal trespass, a misdemeanor that the state chose to treat as a violation, and fined $500 each. On appeal, they argue that the rule making their presence on the steps unlawful was not properly promulgated or authorized and that, if it was, then—as written and as applied against them—it violated their rights of free expression and assembly under the Oregon Constitution, as well as their free speech rights under the United States Constitution. We conclude that the rule was properly promulgated and that, on its face, it does not violate any provision of the Oregon

[279 P.3d 225]

Constitution. We also conclude, however, that whether the rule was lawfully enforced against defendants depends on whether the motive driving the enforcement was a desire to protect public safety, as the state maintains, or to stifle defendants' expression, as they maintain, and that the trial court erred in preventing defendants from questioning two members of the Legislative Assembly who might have provided relevant and significant testimony on that question. We therefore reverse and remand with instructions to allow defendants to question the two legislators on that specific issue. Because the result of that remand could obviate the need to address federal law, we do not reach the federal constitutional question.

At the outset, we note that defendants do not focus their argument on the criminal trespass statute itself, which provides, “A person commits the crime of criminal trespass in the second degree if the person enters or remains unlawfully in * * * or upon premises.” ORS 164.245(1). Entering or remaining in premises occurs “unlawfully” when “the premises, at the time of such entry or remaining, are not open to the public[.]” ORS 164.205(3)(a). The focus of defendants' challenge is the rule that purportedly rendered the capitol steps “not open to the public” at the time of their arrests. [249 Or.App. 282]That rule (the “overnight rule”) was promulgated by the Legislative Administrative Committee (LAC) and provides, in part,

“Overnight use of the [capitol] steps is prohibited, and activities on the steps may be conducted only between 7:00 a.m. and 11:00 p.m., or during hours between 11:00 p.m. and 7:00 a.m. when legislative hearings or floor sessions are taking place.”

I. LEGITIMACY AND RULEMAKING AUTHORITY OF THE LAC

Before arguing that the overnight rule violates their individual rights under the state and federal constitutions, defendants argue that the rule is procedurally unconstitutional for three reasons: because rules promulgated by the LAC do not meet the Oregon Constitution's requirements for legislation (passage by both chambers, presentation to the governor, etc.); because the existence of the LAC as an entity with rulemaking power is not authorized anywhere in the Oregon Constitution; and because the rule authorizes members of the legislative branch to exercise an executive function (law enforcement) contrary to Article III, section 1, of the Oregon Constitution.¹

The LAC is established pursuant to ORS 173.710: “The Legislative Administration Committee hereby is established as a joint committee of the Legislative Assembly.” Although it is staffed by a nonlegislator administrator, all of its members are legislators. ORS 173.730(1). Among the LAC's duties is “[c]ontrol [of] all space and facilities within the State Capitol and such other space as is assigned to the Legislative Assembly.” ORS 173.720(1)(g). To carry out that duty, the LAC “may adopt rules,” ORS 173.770, provided that it gives “reasonable notice of its intent to adopt rules and conduct a hearing open to the public” beforehand, ORS 173.770(2). Those procedural requirements were met with respect to the rule that defendants challenge.² To the extent [249 Or.App. 283]that defendants question the statutory authority for the LAC to exist and promulgate rules, their challenge fails.

The same is true of their argument that, although the LAC may have statutory authority to exist and to promulgate rules, the committee's rulemaking authority itself is not authorized by the constitution. Underlying that argument is the assertion that authoritative rules must be enacted either by initiative or through the familiar procedures set out in Articles IV and V of the Oregon Constitution: preliminary reading, passage in both chambers by requisite numbers, signing by presiding officers, presentation to and signing

[279 P.3d 226]

by the governor, etc. That assertion is not correct. Several provisions of Article IV allow for unicameral rulemaking. Section 11, for example, gives each chamber the authority to “determine its own rules of proceeding”; Article IV, section 14, provides that “[e]ach house shall adopt rules” to ensure open deliberations. We cite these particular provisions not as authority for LAC rules, but to demonstrate that the Oregon Constitution authorizes the Legislative Assembly, with respect to its own governance, to enact some rules outside of the formal legislative process.

The more general provision conferring on the Legislative Assembly the authority to govern itself is Article IV, section 17: “Each house shall have all powers necessary for a branch of the Legislative Department, of a free, and independant [ sic ] State.” As Chief Justice John Marshall famously wrote regarding the word “necessary” in the “necessary and proper” clause of the United States Constitution,

“we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable.”

McCulloch v. Maryland, 4 Wheat. 316, 17 U.S. 316, 413–14, 4 L.Ed. 579 (1819). We readily conclude that, given the nineteenth century understanding of the word “necessary,” the power to promulgate rules regulating physical access to its chambers falls within the ambit of powers “necessary” for a free and [249 Or.App. 284]democratic legislature. And our conclusion is bolstered by our prudential reluctance to interfere in the operations of a co-equal branch. See State ex rel. Stadter v. Patterson, 197 Or. 1, 13, 251 P.2d 123 (1952) (citing Article I, section 17, in support of legislature's authority to extend constitutional terms of office for legislators).

Nor does the overnight rule offend separation of powers principles. Defendants appear to contend that, by authorizing the LAC to direct the arrest of rule violators, the LAC rules confer enforcement authority, an executive function, on a body within the legislative branch. But the LAC has no enforcement authority. Its own rules contain no such grant, and if they did, the grant would be ineffectual because it would be beyond the duties conferred on the LAC by statute. The executive function of enforcement is left to employees of the executive department—in this case, Oregon State Police. In sum, the promulgation of the overnight rule did not violate any of the structural or procedural provisions of the Oregon Constitution.

II. CLAIMS UNDER THE OREGON BILL OF RIGHTS

Our conclusion that the overnight rule is constitutionally authorized does not, of course, mean that the rule is immune from the constitutional limitations imposed on all government action, usually by a provision in a bill of rights. Nor does our reluctance to interfere in the legislature's control of its own operations extend to the exercise of judicial review for constitutionality of generally applicable enactments. In this case, defendants argue that the overnight rule violates the Oregon Constitution's limitations on enactments that infringe on free expression and assembly, as well as the United States Constitution's free speech guarantee. We begin with defendants' state constitutional arguments. State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983).

A. Article I, section 8

The review of enactments for compliance with Article I, section 8,³ follows a by-now familiar template, first [249 Or.App. 285]articulated in State v. Robertson, 293 Or. 402, 409, 649 P.2d 569 (1982), and succinctly summarized in ...