State v. Chakerian

• Decision Date: 31 October 1995
• Citation: 135 Or.App. 368,900 P.2d 511
• Parties: STATE of Oregon, Appellant, v. Faith Erin CHAKERIAN, Respondent. STATE of Oregon, Appellant, v. Hans Michael VON MOHN, Respondent. STATE of Oregon, Appellant, v. Collin Nyle BEGGS, Respondent. STATE of Oregon, Appellant, v. Mark S. GOSNELL, Respondent. STATE of Oregon, Appellant, v. Robert Peter McDONALD, Jr., Respondent. C93-07-34971, C93-07-34975, C93-07-34970, C93-07-34972 and C93-07-34973; CA A83155 (Control), CA A83173 to CA A83176.
• Court: Oregon Court of Appeals

Page 511

900 P.2d 511

135 Or.App. 368

STATE of Oregon, Appellant, v. Faith Erin CHAKERIAN, Respondent.

STATE of Oregon, Appellant, v. Hans Michael VON MOHN, Respondent.

STATE of Oregon, Appellant, v. Collin Nyle BEGGS, Respondent.

STATE of Oregon, Appellant, v. Mark S. GOSNELL, Respondent.

STATE of Oregon, Appellant, v. Robert Peter McDONALD, Jr., Respondent.

C93-07-34971, C93-07-34975, C93-07-34970, C93-07-34972 and

C93-07-34973; CA A83155 (Control), CA A83173 to

CA A83176.

Court of Appeals of Oregon.

Argued and Submitted April 27, 1995.

Decided June 28, 1995.

Review Allowed Oct. 31, 1995.

Ann Kelley, Asst. Atty. Gen., argued the cause for appellant. With her on the briefs were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Jesse Wm. Barton, Deputy Public Defender, argued the cause for respondents Hans Michael Von Mohn, Mark S. Gosnell and Robert Peter McDonald, Jr. With him on the brief was Sally L. Avera, Public Defender.

No appearance for respondents Erin Faith Chakerian and Collin Nyle Beggs.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

HASELTON, Judge.

The state appeals, seeking reversal of orders that allowed defendants' demurrers to charges of riot. The trial court concluded that the statute underlying those charges, ORS 166.015, is unconstitutionally overbroad. We reverse and remand.

Defendants were charged, in a single indictment, with violating the anti-rioting statute, ORS 166.015. They demurred, asserting, inter alia, that (1) ORS 166.015 is unconstitutional in that it is directed to the content of expression and does not fall within any historically recognized exception to the free speech protections of Article I, section 8, of the Oregon Constitution; ¹ (2) ORS 166.015 is overbroad in that it criminalizes expression protected under Article I, section 8; and (3) ORS 166.015 is unconstitutionally vague. The trial court rejected defendants' arguments that the statute is content-driven and unconstitutionally vague, but ultimately allowed their demurrers on the ground that ORS 166.015 is overbroad.

The state appeals those orders, ORS 138.060(1), and argues that ORS 166.015 is not susceptible to facial overbreadth challenges, by way of demurrer, based on Article I, section 8. Defendants cross-assign error to the court's rejection of their alternative grounds for demurrer.

ORS 166.015 provides:

"(1) A person commits the crime of riot if while participating with five or more other persons the person engages in tumultuous and violent conduct and thereby intentionally or recklessly creates a grave risk of causing public alarm.

"(2) Riot is a Class C felony."

In reviewing the trial court's determination that that statute is unconstitutionally overbroad, we employ the analysis described in State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982). In City of Eugene v. Miller, 318 Or. 480, 871 P.2d 454 (1994), the court summarized Robertson 's taxonomy of three types of statutes implicating expression:

"The first Robertson category consists of laws that 'focus on the content of speech or writing' or are ' "written in terms directed to the substance of any 'opinion' or any 'subject' of communication." ' Laws within that category violate Article I, section 8, 'unless the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach.' The second Robertson category consists of laws that 'focus[ ] on forbidden effects, but expressly prohibit[ ] expression used to achieve those effects.' Laws in that category 'are analyzed for overbreadth.' Finally, the third Robertson category consists of laws that 'focus[ ] on forbidden effects, but without referring to expression at all.' Laws within the third category are analyzed to determine whether they violate Article I, section 8, as applied." Id. at 488, 649 P.2d 569 (citations omitted; emphasis in original).

The trial court held that ORS 166.015 does not fall into the first Robertson category, and we agree. On its face, the statute does not "focus on the content of speech or writing." Robertson, 293 Or at 416, 649 P.2d 569. Nor is it "written in terms directed to the substance of any 'opinion' or any 'subject' of communication." Id. at 412, 649 P.2d 569. Indeed, ORS 166.015 does not refer to expression at all.

Rather, like the statutes at issue in State v. Moyle, 299 Or. 691, 705 P.2d 740 (1985), and State v. Garcias, 296 Or. 688, 679 P.2d 1354 (1984), ORS 166.015 is a statute that "focuses on a forbidden effect." Robertson, 293 Or. at 418, 649 P.2d 569. In Garcias, the Supreme Court categorized the menacing statute, which makes it a crime to attempt to place another in fear of imminent serious physical injury "by word or conduct," as effects-driven:

"The concern of the menacing statute appears to center on preventing harm to the victim in the form of tension, alarm and whatever injury may result from the confrontation. * * * The fact that the harm may be brought about by use of words, even by words unaccompanied by a physical act, does not alter the focus of the statute, which remains directed against attempts to cause an identified harm, rather than prohibiting the use of words as such." 296 Or. at 697, 679 P.2d 1354.

Similarly, in Moyle, the Supreme Court characterized the harassment statute, ORS 166.065(1), as focusing on proscribing a forbidden effect. That statute makes it a crime to subject another to alarm by conveying certain types of telephonic or written threats:

"By its terms, the statute does not punish one who conveys a telephonic or written threat unless the threat has the effect of alarming the addressee, and such alarm must be reasonable in the circumstances. Harm to another, in the form of alarm, is the focus of the statute. Speech and writing are merely the means, albeit the only prohibited means, of achieving the forbidden effect--actual and reasonable alarm." Moyle, 299 Or. at 699, 705 P.2d 740.

Like those statutes, ORS 166.015 focuses on preventing a specified harm--the creation of a "grave risk of public alarm." "Violent and tumultuous conduct" merely describes the range of means that may be employed to achieve that harm. Thus, ORS 166.015 does not fall within Robertson 's first category. ²

The inquiry reduces, then, to whether ORS 166.015 falls into Robertson 's second category, which is susceptible to an overbreadth challenge, or Robertson 's third category, which is not. By invalidating the statute as overbroad, the trial court placed ORS 166.015 in Robertson 's second category. The state argues, however, that because ORS 166.015 does not refer to expression at all, it belongs in the third Robertson category.

The distinction between laws in the second and third Robertson categories is somewhat uncertain. That uncertainty has its roots in Robertson itself. Two oft-quoted portions of the Robertson opinion, which explain how effects-driven statutes should be analyzed, contribute to that uncertainty. First:

"When the proscribed means include speech or writing, however, even a law written to focus on a forbidden effect * * * must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such 'overbreadth.' " Robertson, 293 Or. at 417-18, 649 P.2d 569.

But compare:

"If [a] statute [is] directed only against causing the forbidden effects, a person accused of causing such effects by language or gestures would be left to assert (apart from a vagueness claim) that the statute could not constitutionally be applied to his particular words or other expression, not that it was drawn and enacted contrary to article I, section 8." Id. at 417, 649 P.2d 569.

The first quoted section might be read as stating that if a statute can be violated by a variety of means, and some of those means include expression, the statute is analyzed for overbreadth. Conversely, the second quotation suggests that if a statute can be violated by a variety of means, some of which involve expression, overbreadth is inapposite and a defendant is limited to challenging a statute's vagueness and its constitutionality on an as applied basis.

Uncertainty concerning the content of Robertson 's second and third categories is exacerbated by the fact that, to the extent we can determine, neither we nor the Supreme Court have ever explicitly assigned a statute to Robertson 's third category. Conversely, there appears to be no reported instance in which an effects-driven statute has been subjected to overbreadth analysis merely because the proscribed means might, but need not, involve expression. Finally, it appears that, in every case in which a statute has been assigned to Robertson 's second category, the statute has explicitly mentioned speech or some other form of communicative conduct.

Thus, post-Robertson cases have not explicitly acknowledged, much less resolved, the ostensible tension in Robertson 's description of statutes susceptible to overbreadth challenges. However, in State v. Plowman, 314 Or. 157, 838 P.2d 558 (1992), the Supreme Court described Robertson 's second category as "focus[ing] on forbidden effects, but expressly prohibit[ing] expression used to achieve those effects." Id. at 164, 838 P.2d 558 (emphasis supplied). The court further described Robertson 's third category as "focus[ing] on forbidden effects, but without referring to expression at all." Id. (emphasis supplied). Since Plowman, the Supreme Court and this court have consistently invoked those phrases as shorthand definitions of Robertson 's second and third categories. See, e.g., Miller, 318 Or. at 488, 871 P.2d 454; State v. Stoneman, 132 Or.App. 137, 140, 888 P.2d 39 (1994).

Although a requirement that a statute "expressly prohibit[ ] expression" might provide a useful "bright-line"...