State v. Robertson

• Court: Supreme Court of Oregon
• Citation: 649 P.2d 569,293 Or. 402
• Parties: STATE of Oregon, Respondent on review, v. Dwight ROBERTSON, Petitioner on review. TC 10-80-07971; CA 19337; SC 28280; TC 10-80-07969; CA 19338; SC 28281. STATE of Oregon, Respondent on review, v. Reginald Dwayne YOUNG, Petitioner on review.
• Decision Date: 03 August 1982

Page 569

649 P.2d 569

293 Or. 402

STATE of Oregon, Respondent on review, v. Dwight ROBERTSON, Petitioner on review.

TC 10-80-07971; CA 19337; SC 28280; TC 10-80-07969; CA

19338; SC 28281.

STATE of Oregon, Respondent on review, v. Reginald Dwayne YOUNG, Petitioner on review.

Supreme Court of Oregon.

Argued and Submitted March 3, 1982.

Decided Aug. 3, 1982.

Kenneth A. Morrow, Eugene, argued the cause for petitioner Dwight Robertson on review. With him on the petition for review was Morrow, McCrea & Divita, P.C., Eugene.

James R. Strickland, Eugene, filed a brief for Reginald Dwayne Young, petitioner on review. With him on the brief was Curtis & Strickland, Eugene.

Darryl L. Larson, Asst. Dist. Atty., Eugene, argued the cause for respondent on review. With him on the brief in the Court of Appeals was J. Pat Horton, Dist. Atty., for Lane County.

Before DENECKE, C. J., ^* and LENT, LINDE, PETERSON, TANZER and CAMPBELL, JJ.

LINDE, Justice.

The issue to be decided is the constitutional validity of a statute creating and defining the crime of "coercion." Defendants were indicted under one subsection of the statute, ORS 163.275(1)(e), which makes it a crime to compel or induce another person to engage in conduct from which he has the legal right to abstain by causing him to fear the disclosure of discreditable assertions about some person. ¹ Defendants demurred on the ground that the terms of the statute are too vague for a penal law.

The trial court sustained the demurrers. On the state's appeal, the Court of Appeals reversed, upholding the validity of the statute and the indictment by divided opinions first in a panel decision in State v. Robertson, 54 Or.App. 630, 635 P.2d 1057 (1981) and State v. Young, 54 Or.App. 681, 635 P.2d 681 (1981), and subsequently in banc, with three judges dissenting, in State v. Paige, 55 Or.App. 519, 638 P.2d 1173 (1981). Having allowed review and heard argument in the first two cases, we take account also of the opinions of the entire court in Paige.

I. The state's appeal.

There is a preliminary question whether the Court of Appeals obtained jurisdiction by the state's appeal. The circuit court in each case entered an order sustaining defendant's demurrer to the coercion count of the indictment, which was based "on the ground that the facts therein do not state a crime for the reason that the same and ORS 163.275 are unconstitutionally vague." Finding no statute whose literal terms authorize an appeal from such an order, we asked the parties to submit additional memoranda on the issue.

Since the Deady Code of 1864, the statutes have required that upon considering a demurrer in a criminal case, "the court shall give judgment, either allowing or disallowing it, and an entry to that effect shall be made in the journal." ORS 135.660. For a century between that code and 1963, the state could appeal only from "a judgment for the defendant, on a demurrer to the indictment" or from an order arresting judgment. Act of Oct. 19, 1864, § 227, in Oregon Laws 1845-64, at 480. ORS 138.060 (1961 ed.) An order merely sustaining a demurrer was not appealable. State v. Cloran, 233 Or. 400, 374 P.2d 748 (1962), State v. Davis, 207 Or. 525, 296 P.2d 240 (1956). A 1963 amendment added an appeal from an order sustaining a plea of former conviction or acquittal; the existing reference to a "judgment for the defendant on a demurrer" was reenacted. 1963 Or.Laws ch. 385.

In 1968, the state attempted to appeal from a trial court order dismissing an indictment upon defendant's motion. This court dismissed the appeal because the order was not a judgment on a demurrer and therefore not within the list of appealable orders. State v. Sieckmann, 251 Or. 259, 445 P.2d 599 (1968). Thereafter the Department of Justice obtained an amendment which allowed the state to appeal from an "order made prior to trial dismissing the indictment." The amendment did not add these words to ORS 138.060; rather, they replaced the prior reference to an appeal from a judgment on a demurrer, removing the explicit basis for such an appeal. 1971 Or.Laws ch. 644. The statute was further amended in 1973 to add the words "setting aside" to "dismissing" and broadening "indictment" to "accusatory instrument," so that the relevant provision now reads: "The state may take an appeal from the circuit court or the district court to the Court of Appeals from: (1) An order made prior to trial dismissing or setting aside the accusatory instrument." ORS 138.060(1).

At the same time, the legislature enacted a new provision providing for dismissal of an accusatory instrument, ORS 135.470. The statutes now prescribe different grounds for demurring to an accusatory instrument, for "dismissing" such an instrument, and for "setting aside" an indictment. ² The demurrer in the present case properly invoked failure to state an offense, on grounds of constitutional defect. Under ORS 135.660 this would lead to a "judgment" that would have been appealable under ORS 138.060 as it stood until 1971, when the reference to appeals from judgments on demurrers was eliminated from ORS 138.060.

The state's memorandum in response to this court's questions concedes that the statutes now do not expressly allow the state to appeal from an order or judgment on a demurrer "if the present Oregon criminal procedure statutes are read literally, with an insistence upon precise and uniform terminology, and with an incomplete appreciation of the history behind them." The state argues, however, that a proper appreciation of that history should persuade us not to limit ORS 138.060 literally to orders "dismissing" accusatory instruments. It contends that when the Department of Justice, after State v. Sieckmann, supra, induced the legislature to substitute "order ... dismissing the indictment" for "judgment for the defendant on a demurrer," the state did not mean to sacrifice its long-standing right to appeal from adverse judgments on demurrers but to expand it to include orders of dismissal, and also orders sustaining demurrers without requiring a judgment prescribed by ORS 135.660, superseding the rule of State v. Cloran, supra, and the decisions there cited. In short, the department asks us to effectuate the policy objectives shown by the legislative history of the 1971 and 1973 amendments.

Though the legislative history is sparse, it appears consistent with the department's version of the intended goal of the amendments. ³ When the 1971 amendment removed judgments on demurrers from ORS 138.060, any effect of rendering them unappealable was certainly unintended. In deciding that it had jurisdiction of this appeal, the Court of Appeals extended its earlier decision in State v. Thomas, 32 Or.App. 85, 573 P.2d 1259, reconsidered in 34 Or.App. 187, 578 P.2d 452 (1978), which it had initially decided the other way. In the second Thomas opinion, the court in banc expressed continued doubt whether an order sustaining a demurrer but not dismissing the accusatory instrument was appealable under the 1971 amendment, but the court concluded that at least the 1973 addition of the words "setting aside" to ORS 138.060 covered such an order if the 1971 reference to orders "dismissing" an indictment did not. As the department recognizes, the statutes can benefit from further revision. Nevertheless, we are not inclined to disturb the conclusion of the Court of Appeals that because the purpose of the amendments was to broaden the state's ability to appeal orders that invalidate accusatory instruments, the court may take jurisdiction of such appeals from "orders" sustaining demurrers whether or not they are identified as judgments, as prescribed in ORS 135.660.

II. The issues.

Although the defendant's demurrer alleged only that the crime charged in the indictment was "unconstitutionally vague," the Court of Appeals construed a supporting trial memorandum as having attacked the statute also as unconstitutionally "overbroad." As the court proceeded to decide the case on that basis, we accept its characterization of the memorandum. But we once again draw attention to the frequently misunderstood difference between the two constitutional claims. "Vagueness" and "overbreadth" of a law are not two alternative or cumulative epithets for the same shortcoming.

The rule against vague penal laws has been rested on various constitutional premises. In State v. Hodges, 254 Or. 21, 457 P.2d 491 (1969), this court suggested that abdication of the lawmakers' responsibility to define a crime to prosecutors, judges, or jurors in case-by-case adjudication allowed those charged with enforcing the law to make the law after the event:

"A law that permits the judge and jury to punish or withhold punishment in their uncontrolled discretion is defective as much for its uncertainty of adjudication as for its failure to notify potential defendants of its scope and reach.

"... A vague statute lends itself to an unconstitutional delegation of legislative power to the judge and jury, and, by permitting the jury to decide what the law will be, it offends the principle, if not the rule, against ex post facto laws. See Oregon Constitution, Art I, § 21."

254 Or. at 27, 457 P.2d 491, quoted in State v. Blair, 287 Or. 519, 522-23, 601 P.2d 766 (1979). ⁴ Perhaps the vice of the "uncontrolled discretion" mentioned in Hodges lies as much in inviting standardless and unequal application of penal laws, contrary to article I, section 20. ⁵

Moreover, the unfairness of "failure to notify potential defendants of (the law's) scope and reach" can constitute a denial of due process under the federal 14th amendment. See Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939). Recently in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., --- U.S. ----, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), the Supreme Court of the United States reaffirmed the constitutional objections to vague laws in terms much...