State v. Marbet
| Citation | 32 Or.App. 67,573 P.2d 736 |
| Parties | STATE of Oregon, Respondent, v. Lloyd Knox MARBET, Appellant. |
| Decision Date | 16 January 1978 |
| Court | Court of Appeals of Oregon |
Douglas D. Hagen, Portland, argued the cause for appellant. With him on the briefs was Kafoury & Hagen, Portland.
W. Michael Gillette, Sol. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Donald L. Paillette, Asst. Atty. Gen., Salem.
Before RICHARDSON, P. J., and LEE and TANZER, JJ.
Defendant appeals his conviction of Criminal Trespass in the Second Degree, ORS 164.245. He was arrested when he refused to leave a Public Utility Commission rate hearing after being ordered to do so by the hearings officer. From a conviction by a jury in the district court he appealed to the circuit court. 1 In the circuit court he requested a trial by jury. Prior to trial the circuit court granted the state's "Motion in Limine." 2 The effect of the order was to (1) limit the introduction of evidence on the lawfulness of the hearings officer's order denying defendant the right to participate in the hearing, and (2) limit the scope of defendant's voir dire of the jury. Defendant asserts it was error to exclude the evidence and to limit his voir dire.
A detailed recitation of the facts is necessary to understand the issues raised by this appeal. The Public Utility Commissioner scheduled a hearing for July 20, 1976, to consider an application for an electric rate increase by a public utility. Prior to the hearing a colleague of defendant, Mr. Rosalie, sought permission to represent himself and an organization known as the Coalition for Safe Power (the Coalition) in the hearing. After several preliminary rulings regarding representation of the Coalition the hearings officer ultimately ruled Mr. Rosalie could not represent the Coalition in the hearing on the ground he was not a lawyer. This ruling was certified to the Public Utility Commissioner on July 7, 1976, for his final determination. 3 Defendant was apparently working with Mr. Rosalie in making the request for leave to represent the Coalition; he, however, had made no individual request to appear in a representative capacity.
On the day of the hearing defendant and Mr. Rosalie went to the Commissioner to inquire if he had made a determination on the ruling of the hearings officer. When they determined no decision had been made they proceeded directly to the hearing room located in a public building in Salem. Upon arrival at the hearing they sat at counsel table without objection and stated they represented the Coalition for Safe Power.
The utility called its first witness and after direct examination and cross-examination by the other parties, Mr. Rosalie sought to cross-examine the witness. The hearings officer, on objection from the utility, ruled he was out of order. Defendant then attempted to cross-examine the witness and was likewise ruled out of order. Defendant remonstrated with the hearings officer insisting he had the right to examine the witness as a representative of the Coalition. The hearings officer told defendant he would be asked to leave if he did not cease his disruptive behavior. When defendant persisted he was asked to leave. He refused and was arrested for trespass and forcibly removed from the hearing room by a police officer.
At trial in the circuit court defendant elected to represent himself. The trial court ruled, in response to the state's pretrial motion, that the defendant could not question the jury or argue to the jury regarding his reputation, capabilities or effectiveness in representing the Coalition for Safe Power. The ruling on the motion also excluded any evidence or argument respecting the propriety or legality of the hearings officer's ruling that Mr. Rosalie or defendant could not participate in the hearing as representatives of the Coalition.
Following the rulings on the motion the court stated its opinion that the only fact questions remaining were whether the hearings officer was the person in charge and had ordered the defendant to leave. Defendant agreed the hearings officer was a person in charge and had given an order to leave which he disobeyed. The defendant then waived trial by jury and consented to present the case to the court on stipulated facts. The court allowed defendant to state in some detail the evidence he would have presented had it not been excluded by granting the motion. The court adhered to its original ruling that defendant could not in this proceeding collaterally attack the hearings officer's ruling and found the defendant guilty.
We first discuss defendant's contention he was denied a fair and impartial trial because of the limitation on voir dire questioning. Since defendant waived trial by jury that contention is not preserved for review. The court's ruling had no effect on the fairness of a trial to the court. Defendant does not challenge the propriety of the waiver.
Defendant's contention regarding the exclusion of evidence requires an interpretation of the trespass statute, ORS 164.245.
ORS 164.205(3) gives the term "remain" the following meaning:
Defendant argues the term "lawfully directed" in ORS 164.205(3)(b) requires that the order to leave given by the person in charge be in itself lawful. The lawfulness of the order, he contends, can be posed as a defense to the trespass charge. Under this theory he asserts he should have been allowed to present evidence, as a defense to the charge, that the ruling of the hearings officer denying him the opportunity to participate in the hearing was unlawful.
The state contends, absent a challenge based upon a constitutional right to remain, the only factors bearing on the lawfulness of the order to leave is the authority of the person in charge to issue the order. The authority, the state argues, stems from the hearings officer being a person in charge.
There is no contention the hearing room was not premises open to the public and defendant concedes the hearings officer was a person in charge. The status of being a person in charge does not by that fact alone disclose the authority to direct someone to leave the premises. This can be seen by the plain wording of the statute, i. e., "being lawfully directed to do so by the person in charge." If the legislature intended that the authority to issue the order stemmed from the status of being in charge it would have been unnecessary to add the words "lawfully directed." In order to give meaning to these phrases we construe the statute to require not only proof the person giving the order was in charge but also that he had the authority to give such an order. The lawfulness of the directive to leave must be determined apart from the status of being in charge.
If the person giving the order is in charge and has authority to direct someone to leave the premises, this authority may in turn be limited or circumscribed by statutory or constitutional provisions. An example set forth in defendant's brief illustrates this point. We quote the example:
If the manager had authority to direct the patron to leave the restaurant the exercise of the authority is limited by the proscription forbidding discrimination against handicapped persons. That the discrimination statute may have been violated by the order to leave is a proper inquiry in a criminal trespass trial.
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State v. Koenig
...to show that defendant was "lawfully directed" not to enter the Public Services Building. See ORS 164.205(3)(c). In State v. Marbet, 32 Or.App. 67, 71-73, 573 P.2d 736 (1978), we considered the meaning of "lawfully directed" as used in a prior version of ORS 164.205, which then, as now, def......
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State v. White
...an order may be limited or circumscribed by statutory or constitutional provisions and may be raised as a defense. State v. Marbet, 32 Or.App. 67, 72, 573 P.2d 736 (1978). Accordingly, "[w]hether a person has a constitutional right to remain as an incident to the proper exercise of a consti......
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State v. Riddell
...he had a constitutional right to engage in such activity in a public forum such as the Square. The trial court, citing State v. Marbet, 32 Or.App. 67, 573 P.2d 736 (1978), held that defendant was not permitted to mount a collateral attack on the constitutional validity of the exclusion orde......
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State v. Cargill
...was lawful, 5 the stipulation does not express a clear intention by defendants to do so. The state also argues that State v. Marbet, 32 Or.App. 67, 573 P.2d 736 (1978), places the burden of proof on defendants. Again, we do not agree. In Marbet, we held that the authority to order a person ......