State v. Chakerian
| Decision Date | 12 June 1997 |
| Citation | 325 Or. 370,938 P.2d 756 |
| Parties | STATE of Oregon, Appellant, v. Faith Erin CHAKERIAN, Respondent. STATE of Oregon, Respondent on Review, v. Hans Michael VON MOHN, Petitioner on Review. STATE of Oregon, Appellant, v. Collin Nyle BEGGS, Respondent. STATE of Oregon, Respondent on Review, v. Mark S. GOSNELL, Petitioner on Review. STATE of Oregon, Respondent on Review, v. Robert Peter McDONALD, Jr., Petitioner on Review. CC C93-07-34971, C93-07-34975, C93-07-34970, C93-07-34972, C93-07-34973; CA A83155 (Control), A83173, A83174, A83175, A83176; SC S42481. |
| Court | Oregon Supreme Court |
Jesse Wm. Barton, Deputy Public Defender, Salem, argued the cause on behalf of petitioners on review. With him on the petition was Sally L. Avera, Public Defender.
Rives Kistler, Assistant Attorney General, Salem, argued the cause on behalf of respondent on review. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.
Savoy Rose Jade, Newport, filed an amicus curiae brief on behalf of the Oregon Criminal Defense Lawyers Association.
Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, GRABER and DURHAM, JJ. *
In this criminal case, the issue is the facial constitutional validity of ORS 166.015, Oregon's "riot" statute, which provides:
We hold that the statute is not facially unconstitutional in any respect asserted by defendants.
In a single indictment, the state charged defendants jointly, under ORS 166.015, with one count of riot. Defendants demurred, asserting, inter alia, that: (1) ORS 166.015 violates Article I, section 8, of the Oregon Constitution, 1 because the statute restrains expression 2 and does not fall within a well-established historical exception to the Oregon constitutional guarantee of free speech; 3 (2) ORS 166.015 is unconstitutionally overbroad in that it criminalizes expression protected under Article I, section 8; 4 and (3) ORS 166.015 is unconstitutionally vague in violation of Article I, sections 20 and 21, of the Oregon Constitution, 5 and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 6
The trial court sustained the demurrer, concluding that ORS 166.015 is unconstitutionally overbroad in its reach. Because the trial court further concluded that the constitutional violation could not be avoided in a new accusatory instrument, the court dismissed the riot charge with prejudice. On the state's appeal, the Court of Appeals reversed, holding that ORS 166.015 is not unconstitutional on its face. State v. Chakerian, 135 Or.App. 368, 900 P.2d 511 (1995). We allowed defendants' petition for review and now affirm the decision of the Court of Appeals.
Defendants argue first that, on its face, ORS 166.015 violates Article I, section 8, of the Oregon Constitution. In State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982), this court established the framework for determining whether a law, on its face, violates Article I, section 8, of the Oregon Constitution. That framework requires that we first determine whether the challenged provision is on its face "written in terms directed to the substance of any 'opinion' or any 'subject' of communication." 293 Or. at 412, 649 P.2d 569.
If the statute is not directed to the substance of an opinion or subject of communication, but rather is directed at a harm that the legislature is entitled to proscribe, then a further level of inquiry follows. Id. at 414-17, 649 P.2d 569. See generally State v. Stoneman, 323 Or. 536, 543-48, 920 P.2d 535 (1996). If the statute, by its terms, targets the harm, but the statute expressly prohibits expression used to achieve that harm, then the statute must be subjected to an overbreadth analysis before it can survive Article I, section 8, scrutiny. City of Eugene v. Miller, 318 Or. 480, 488, 871 P.2d 454 (1994); State v. Plowman, 314 Or. 157, 164, 838 P.2d 558 (1992). That is the second level of the Robertson analysis. 7
The first level of analysis may be dispensed with easily. As defined in ORS 166.015, the crime of riot has four elements: A person commits the crime of riot if that person, (1) "while participating with five or more persons," (2) "engages in tumultuous and violent conduct" 8 and (3) "thereby intentionally or recklessly" (4) "creates a grave risk of causing public alarm."
ORS 166.015, by its terms, is not directed at speech at all, let alone at restraining the free expression of opinion or the right to speak freely on any subject. Rather, the statute is directed at a harm--the creation of a grave risk of public alarm. ORS 166.015 by its terms proscribes only a certain type of conduct--conduct that is "violent and tumultuous." The statute does not fit under level one of Robertson.
Turning to the second level of analysis, defendants argue that, even if ORS 166.015 is directed at a proscribable harm--creation of a grave risk of public alarm--the statute is overbroad, because it prohibits too much expression in order to protect against that harm. The pivotal questions, as argued by defendants, are whether that part of ORS 166.015 that proscribes engaging in "tumultuous and violent conduct" forbids making "threats" in all instances, whether making "threats" constitutes protected expression and, if so, whether the court can interpret the statute narrowly to avoid possible overbreadth. 9 Of course, the statute does not itself use the word "threats" at all. Rather, we must consider whether, by proscribing "tumultuous and violent conduct," the legislature intended to proscribe acts that could constitute protected expression under Article I, section 8, of the Oregon Constitution. If it did not, defendants' argument fails.
Defendants' argument that the answer to the foregoing question is "yes" relies on a statement in the Oregon Criminal Law Revision Commission's commentary concerning ORS 166.015. 10 That commentary asserted that the phrase "tumultuous and violent conduct" means "terroristic mob behaviour involving ominous threats of personal injury and property damage." Proposed Oregon Criminal Code § 218 (Commentary) at 212 (1970) (emphasis added). It is from that source that defendants attempt to draw the concept of "threats" into the discussion.
Defendants argue that a "threat" is a kind of expression and, therefore, that the type of conduct prohibited by ORS 166.015--tumultuous and violent conduct--must be construed to be expressive in nature.
This court interprets statutory terms under the methodology set out in PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993). Under that methodology, we look first to the text and context of the statute. If text and context yield an unambiguous meaning, we proceed no further. If the answer is not clear after examining the text and context, we then inquire into legislative history. Finally, if the legislative history coupled with the text and context provides no unambiguous answer, this court turns to legal maxims of statutory construction. Id. at 610-12, 859 P.2d 1143.
The text of ORS 166.015 prohibits persons from engaging in "tumultuous and violent conduct." These are words of common usage, to which we typically ascribe their ordinary meaning. See id. at 611, 859 P.2d 1143 ( rule). "Tumultuous" is defined as:
"1: marked by tumult: full of commotion and uproar: riotous, stormy, boisterous * * * 2: tending or disposed to cause or incite a tumult * * * 3: marked by violent or overwhelming turbulence or upheaval."
Webster's Third New Int'l Dictionary, 2462 (unabridged 1993). The definition of "violent" is:
"1: characterized by extreme force * * *: marked by abnormally sudden physical activity and intensity * * * 2: furious or vehement to the point of being improper, unjust, or illegal * * * 3: extremely or intensely vivid or loud * * *: unusually intense * * *: unnaturally strong * * * 4: produced or effected by force: unnatural * * * 5: tending to distort or misrepresent * * * 6: extremely excited: emotionally aroused[.]"
Id. at 2554. Finally, "conduct" is defined as "behavior in a particular situation or relation or on a specified occasion." Id. at 474.
The trial court concluded that the statute can be violated only by means of either speech or expressive conduct. It reached that conclusion by referring to the commentary of the Oregon Criminal Law Revision Commission and by reasoning that every statutory violation will involve communication of a "threat." Defendant asserts that view here, contending that every threat is a communication of some sort.
As we discuss in greater detail below, we conclude that the trial court (and the Court of Appeals) erred in resorting to the commentary to discern the meaning of ORS 166.015. On the other hand, the Court of Appeals also held that the trial court read the statute too narrowly in concluding that, in all cases, it proscribes making "threats." We agree with that latter proposition. The common definitions of the statute's key terms, quoted above, demonstrate that the statute, on its face, forbids forms of overt criminal behavior that are unattended by speech of any kind. Defendant makes no other argument that the statute is invalid on its face under Article I, section 8. Giving the statute a fair reading in the light of the common definitions of the terms of "tumultuous," "violent," and "conduct", we conclude that the statute refers to physical activity that reasonably is perceived by others as threatening an imminent breach of the peace. 11 That is, the word "threat" may or may not be ambiguous; the statutory...
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