State v. Rangel

• Decision Date: 26 February 1999
• Citation: 328 Or. 294,977 P.2d 379
• Court: Oregon Supreme Court
• Parties: STATE of Oregon, Respondent on Review, v. Eduardo Tinoco RANGEL, Petitioner on Review. (CC 95-0127CM; CA A91166; SC S44151)

Page 379

977 P.2d 379

328 Or. 294

STATE of Oregon, Respondent on Review, v. Eduardo Tinoco RANGEL, Petitioner on Review.

(CC 95-0127CM; CA A91166; SC S44151)

Supreme Court of Oregon.

Argued and Submitted Sept. 10, 1997.

Resubmitted Sept. 30, 1998.

Decided Feb. 26, 1999.

Andy Simrin, Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the briefs was Sally L. Avera, Public Defender.

Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

Before CARSON, Chief Justice, and GILLETTE, VAN HOOMISSEN, DURHAM, and LEESON, Justices. ^**

VAN HOOMISSEN, J.

The issue in this criminal case is whether Oregon's stalking statute, ORS 163.732, is overbroad in violation of Article I, section 8, of the Oregon Constitution, ¹ or the First Amendment to the United States Constitution. ² For the reasons discussed below, we hold that the statute is not overbroad under either constitution.

ORS 163.732 provides in part:

"(1) A person commits the crime of stalking if:

"(a) The person knowingly alarms or coerces another person or a member of that person's immediate family or household by engaging in repeated and unwanted contact with the other person;

"(b) It is objectively reasonable for a person in the victim's situation to have been alarmed or coerced by the contact; and

"(c) The repeated and unwanted contact causes the victim reasonable apprehension regarding the personal safety of the victim or a member of the victim's immediate family or household." ³

Defendant was charged with stalking by "unlawfully and knowingly alarm [ing the victim] by coming to her place of employment and threatening her" on several occasions. ⁴

Before trial, defendant demurred, contending that ORS 163.732 is overbroad in violation of Article I, section 8, and the First Amendment. The trial court held that the statute is overbroad, is not capable of judicial narrowing and, thus, is prohibited by Article I, section 8. The Court of Appeals reversed, concluding that ORS 163.732 is akin in virtually all material respects to ORS 166.065(1)(d) (1981), the harassment statute that this court upheld in State v. Moyle, 299 Or. 691, 705 P.2d 740 (1985). ⁵ The court construed and narrowed ORS 163.732 to require proof that the accused made a threat or its equivalent and that the accused intended to cause the victim alarm. The court held that, as so construed and narrowed, the statute is not overbroad under Article I, section 8, or the First Amendment. State v. Rangel, 146 Or.App. 571, 934 P.2d 1128 (1997). We allowed defendant's petition for review.

On review, defendant argues that ORS 163.732 is facially overbroad under Article I, section 8, because the alarm element of the statute does not require the state to prove that the defendant made a "threat," and because the statute does not require the state to prove that the defendant "intended" to harm anyone. Defendant further argues that the Court of Appeals' narrowing constructions cannot be attributed to the legislature with reasonable fidelity to the legislature's words and apparent intent and therefore, the statute is invalid as enacted. See State v. Robertson, 293 Or. 402, 411-13, 649 P.2d 569 (1982) (to be valid, a narrowing construction must maintain reasonable fidelity to the legislature's words and apparent intent). In the alternative, defendant argues that ORS 163.732 violates the First Amendment. The state responds that the stalking statute is not overbroad, because the narrowing construction of ORS 163.732 adopted by the Court of Appeals follows the constitutional requirements delineated by this court in Moyle.

We review a lower court's interpretation of a constitutional provision for legal error. We consider all questions of state law before reaching federal constitutional issues. State v. Kennedy, 295 Or. 260, 262-65, 666 P.2d 1316 (1983).

Article I, section 8

Our starting point is the analytical framework, first set out in Robertson, that this court traditionally has employed in evaluating the constitutionality of laws involving expression. See State v. Stoneman, 323 Or. 536, 543-44, 920 P.2d 535 (1996) (explaining and applying the Robertson framework); City of Eugene v. Miller, 318 Or. 480, 488, 871 P.2d 454 (1994) (same); State v. Plowman, 314 Or. 157, 163-64, 838 P.2d 558 (1992) (same).

Our first inquiry under the Robertson analysis is whether Article I, section 8, forecloses the enactment of ORS 163.732. Article I, section 8, forbids the enactment of any statute that is written in terms directed to the restraint of "free expression of opinion" or the restriction of "the right to speak, write, or print freely on any subject" of communication, unless the restraint is wholly confined within some historical exception to the free speech guarantees. Robertson, 293 Or. at 412, 649 P.2d 569. Article I, section 8, does not prohibit the enactment of statutes which focus on forbidden effects of expression, if they are not directed at the substance of expression. If 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." Id. at 695-97, 702, 705 P.2d 740; State v. Garcias, 296 Or. 688, 699, 679 P.2d 1354 (1984) (concluding that, under Robertson, 293 Or. at 437 n. 32, 649 P.2d 569, a statute that reaches protected conduct only rarely when compared with its legitimate applications need not succumb to an overbreadth attack and may be interpreted as impliedly excluding the protected activity from coverage). An overbroad statute is one that proscribes speech or conduct that the constitution protects. See Robertson, 293 Or. at 412-13, 649 P.2d 569 (discussing analysis of "overbreadth" claim).

The Court of Appeals concluded, and the parties agree, that ORS 163.732 is directed at the pursuit of forbidden effects (repeated and unwanted "contacts"). Rangel, 146 Or.App. at 574, 934 P.2d 1128. We agree. However, because the law identifies expression as one means that may produce those forbidden effects, the law is open to an overbreadth challenge under Article I, section 8.

As Moyle illustrates, a law written to focus on undesired effects, but which includes speech or writing as the proscribed means of violation, must be examined to determine whether it reaches privileged communication and, if it does so more than rarely, whether a narrowing construction is possible to save it from overbreadth. ⁶ If a statutes passes the first test (which is a determination of whether the statute was directed at the substance of any "opinion" or at the "subject" of communication) it remains open to an overbreadth challenge. A "law is overbroad the extent that it announces a prohibition that reaches conduct which may not be prohibited." Robertson, 293 Or. at 410, 649 P.2d 569 (citation omitted). Therefore, a law challenged as overbroad is scrutinized to determine whether it appears to reach communication privileged by Article I, section 8, or whether the law can be interpreted to avoid such overbreadth. Moyle, 299 Or. at 702, 705 P.2d 740 (quoting Robertson, 293 Or. at 418, 649 P.2d 569). Therefore, we examine the stalking statute to determine whether it is overbroad.

To commit the crime of stalking, a person must make unwanted and repeated, i.e., at least two, "contacts" of the kinds set forth in ORS 163.730(3). Several examples of what may constitute a forbidden "contact" under ORS 163.730(3) consist solely of communication, orally or in writing, between the actor and the alleged victim or a third person. ORS 163.730(3)(d), (e), (f), (h), and (i) describe the methods of "contact" that most clearly involve some form of communication, although the statutory list is not exclusive. Our discussion here concerns only the state's invocation of at least one communication-based form of "contact" to establish the repeated and unwanted contact element of stalking. No overbreadth problem arises if none of the contacts on which the state relies to establish stalking involves communication.

The notable characteristic of the crime of stalking is that the victim's apprehension must arise from, and the actor must inflict alarm or coercion through, "repeated and unwanted" contacts. ORS 163.732(1). A single contact that causes apprehension, no matter how severe, does not constitute criminal stalking. But a contact that occurs through communication with the victim or a third person constitutes stalking if the actor also makes at least one other contact, the actor knowingly alarms or coerces the victim by engaging in the repeated contact, and the repeated contact is unwanted, causes the victim reasonable apprehension, and would have alarmed or coerced a reasonable person. The stalking statute does not require that a "contact" that occurs through speech or writing by itself (1) must constitute a use of words that the law may prohibit, such as the solicitation of a crime, or blackmail, or (2) cause any particular proscribable effect.

We agree with the Court of Appeals that the stalking statute restricts speech, at least in part, because it criminalizes the inducement of alarm or coercion from the repetition of contacts with a victim and those contacts can include speech or writing. Moyle supports that conclusion. In Moyle, this court similarly determined that the statute in question, prohibiting harassment, defined the crime to include the communication of verbal threats, and concluded after analysis that some threats constitute protected speech. Moyle, 299 Or. at 702, 705 P.2d 740. For similar reasons, the communication-based forms of contact listed in ORS 163.730(3) may constitute protected expression in a variety of political and social settings.

The fact...