State v. Babson

Citation326 P.3d 559,355 Or. 383
Decision Date15 May 2014
Docket NumberCA A144037 (Control); CA A144039,CA A144037 (Control); SC S060455 (Control); SC S060610), (CC 09C41583,SC S060455 (Control); SC S060610), (CC 09C41594,SC S060455 (Control); SC S060610), (CC 09C41593,SC S060455 (Control); SC S060610), (CC 09C41581,SC S060455 (Control); SC S060610), (CC 09C41584,CA A144037 (Control); CA A144043,SC S060455 (Control); SC S060376).,(CC 09C41582,CA A144037 (Control); CA A144038,CA A144037 (Control); CA A144345,CA A144037 (Control); CA A144042
PartiesSTATE of Oregon, Petitioner–Respondent on Review, v. Mark N. BABSON, Respondent–Petitioner on Review. State of Oregon, Petitioner–Respondent on Review, v. Michele C. Darr, Respondent–Petitioner on Review. State of Oregon, Petitioner–Respondent on Review, v. Teresa L. Gooch, Respondent–Petitioner on Review. State of Oregon, Petitioner–Respondent on Review, v. Margaret M. Morton, Respondent–Petitioner on Review. State of Oregon, Petitioner–Respondent on Review, v. George G. Meek, Respondent–Petitioner on Review. State of Oregon, Petitioner–Respondent on Review, v. Gregory J. Cleland, Respondent–Petitioner on Review.
CourtSupreme Court of Oregon

OPINION TEXT STARTS HERE

On review from the Court of Appeals.*

Timothy R. Volpert, Portland, on behalf of ACLU Foundation of Oregon, Inc., argued the cause and filed the briefs for respondent-petitioner on review 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, Tim Cunningham, and Michael E. Swaim.

Jossi Davidson, Silverton, on behalf of ACLU Foundation of Oregon, Inc., argued the cause and filed the brief for respondent-petitioner on review Gregory J. Cleland.

Carson L. Whitehead, Assistant Attorney General, and Anna M. Joyce, Solicitor General, argued the cause and filed the briefs for petitioner-respondent on review State of Oregon. With them on the briefs was Ellen F. Rosenblum, Attorney General.

Dexter A. Johnson, Legislative Counsel, Salem, filed a brief for amicus curiae Oregon Legislative Assembly in S060455.

BALMER, C.J.

Defendants held an around-the-clock vigil on the steps of the state capitol building to protest the deployment of Oregon National Guard troops to Iraq and Afghanistan. During that vigil, the state police cited defendants for second-degree criminal trespass when they remained on the capitol steps after 11:00 p.m., in violation of a Legislative Administration Committee (LAC) guideline that prohibited [o]vernight use” of the steps between 11:00 p.m. and 7:00 a.m., except in limited circumstances. Defendants challenged those citations, arguing that the LAC guideline was unconstitutional under Article I, section 8, and Article I, section 26, of the Oregon Constitution—the provisions protecting free expression and the right to assemble, instruct representatives, and apply for redress of grievances. Defendants also argued that the LAC guideline violated the First Amendment to the United States Constitution. The trial court rejected those arguments and found defendants guilty of second-degree criminal trespass. On appeal, the Court of Appeals similarly rejected defendants' facial challenges to the guideline under the Oregon Constitution, but remanded defendants' as-applied challenges to allow defendants to question the legislator co-chairs of the LAC about enforcement of the guideline. Because defendants' state constitutional challenges were unresolved, the Court of Appeals did not reach defendants' First Amendment argument. State v. Babson, 249 Or.App. 278, 307–08, 279 P.3d 222 (2012).

On review, defendants renew their challenges to the guideline under Article I, section 8, and Article I, section 26, of the Oregon Constitution, as well as under the First Amendment. The state also sought review, arguing that the Court of Appeals erred when it determined that defendants could support their as-applied challenges under the Oregon Constitution by questioning the two legislator co-chairs of the LAC about “any instructions or other communications” that they might have given or had regarding enforcement of the guideline against defendants. Id. at 302, 279 P.3d 222. The state asserts that Article IV, section 9, of the Oregon Constitution—the Debate Clause—bars defendants from questioning those legislators.

For the reasons set out below, we affirm the Court of Appeals. We conclude that the LAC guideline, on its face, does not violate Article I, section 8, or Article I, section 26, of the Oregon Constitution. To determine whether the LAC guideline was applied unconstitutionally to defendants' expression and assembly, however, we must remand to permit defendants to question the legislator co-chairs of the LAC about their involvement, if any, in enforcement of the guideline against defendants. Taking that testimony into account, the trial court must determine whether enforcement of the guideline against defendants was an impermissible restriction on their protected activities or whether it was a reasonable restriction on the time, place, and manner of their expression and assembly. Because of our resolution of that issue, we do not reach defendants' First Amendment argument.

I. FACTS AND PROCEEDINGS BELOW

On November 1, 2008, on the steps of the state capitol, Darr began a protest against the deployment of Oregon National Guard troops to Iraq and Afghanistan.1 Darr chose the capitol steps as the location for her protest because it was the seat of state government “where decisions are made” and because it was a “very public place.” The goal of the protest was to compel the Governor to meet with members of the National Guard and their families, to bring public attention to the pending deployment of the National Guard, and, when the legislature was in session, to persuade the legislature to support a bill and resolutions aimed at allowing and encouraging the Governor to avoid deploying the National Guard.

Darr's protest took the form of an around-the-clock vigil on the capitol steps, and included fasting, lighting candles, displaying signs, and speaking with the general public, veterans, members of the National Guard, and legislators. The other defendants joined the vigil at different times, and participated in the vigil for varying lengths of time. Some joined the vigil on the capitol steps as early as November 2008, while at least one defendant joined the vigil for a single night in February 2009.

Use of the capitol steps is regulated by the Legislative Administration Committee (LAC), which is a joint committee of the Legislative Assembly that, among 17 other things, is charged with making policies for control of the state capitol. SeeORS 173.710 (establishing the LAC); ORS 173.720(1)(g) (describing the duties of the Legislative Administrator, who acts [p]ursuant to the policies and directions” of the LAC, to include [c]ontrol [of] all space and facilities within the State Capitol and such other space as is assigned to the Legislative Assembly”); ORS 173.770(1) (providing that the LAC “may adopt rules to carry out its duties”). At the time that Darr began her vigil, the LAC Policies and Guidelines included a guideline regarding overnight use of the capitol steps that read, “Activity shall be held between 7:00 am and 11:00 pm, unless otherwise authorized by the Legislative Administrator. No overnight use.” That guideline had been in place for at least eight years, since 2000. After Darr began her vigil, the LAC discussed that guideline at two different meetings. As discussed below, in November 2008, the LAC clarified that it intended the guideline to prohibit overnight use of the capitol steps, and in January 2009, the LAC amended the guideline to remove the Legislative Administrator's discretion to allow overnight use of the steps. The citations at issue in this case occurred after the January 2009 amendment.

The LAC first discussed the guideline at a meeting on November 13, 2008, twelve days after Darr began her vigil. At that meeting, members of the LAC stated that the guideline had not been enforced consistently, because the prior Legislative 18 Administrator had authorized groups, on request, to use the capitol steps between the hours of 11:00 p.m. and 7:00 a.m.2 The LAC voted to “reaffirm[ ] the existing guideline, including the portion of the guideline that permitted the Legislative Administrator to authorize overnight use of the steps, but the LAC indicated that it intended the guideline to prohibit use of the steps between 11:00 p.m. and 7:00 a.m. The Legislative Administrator understood the LAC to be directing him to deny any requests for use of the steps between 11:00 p.m. and 7:00 a.m., despite the guideline's text allowing him to authorize overnight use.

That same day, the Legislative Administrator delivered a letter to Darr, advising her of the text of the reaffirmed guideline and directing her to leave the steps by 11:00 p.m. that night and every night to avoid violating the guideline. Darr did not leave the steps, and that night, shortly after 11:00 p.m., the Oregon State Police cited Darr on the capitol steps for second-degree criminal trespass. Two days later, in the early morning hours of November 15, 2008, the state police again cited Darr for second-degree criminal trespass for being on the capitol steps after 11:00 p.m. and before 7:00 a.m. The district attorney did not prosecute those citations, and, as a result, those citations are not at issue in this case. Darr continued her vigil, and, as noted, the other defendants joined her vigil as it progressed.

A second LAC meeting occurred a few months later, in January 2009. At that meeting, the LAC amended the text of the capitol steps guideline to remove the 19 Legislative Administrator's discretion to permit use of the steps between 11:00 p.m. and 7:00 a.m.: “Overnight use of the steps is prohibited, and activities on the steps may be conducted only between 7:00 am and...

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