279 P.3d 222
Or. Ct. App.2012Background
- Defendants were arrested on the Oregon capitol steps during a day-and-night vigil protesting deployment of National Guard troops.
- They violated a Legislative Administration Committee (LAC) overnight rule restricting-capitol-step use between 11:00 p.m. and 7:00 a.m. and were convicted of second-degree criminal trespass as a misdemeanor treated as a violation, with $500 fines.
- Defendants argued the overnight rule was not properly promulgated or authorized and, if valid, violated Oregon Constitution Article I, section 8, and United States Constitution rights.
- The court held the rule was properly promulgated under ORS 173.710 et seq. and did not facially violate the Oregon Constitution.
- However, the enforceability of the rule depended on whether enforcement was aimed at public safety or suppressing expression; the trial court erred in excluding testimony from two legislators about enforcement motive, necessitating remand.
- The court reversed and remanded to allow testimony on enforcement motive; it did not reach the federal constitutional question.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legitimacy of LAC rulemaking authority | Promulgation exceeds constitutional authority | LAC lacks constitutional basis to promulgate rules | Rule properly promulgated; LAC authority valid |
| Face of rule under Article I, §8 | Rule is overbroad and limits protected speech | Rule is neutral and not aimed at speech | Rule facially valid but enforceable as applied |
| Enforcement motive as applied (public safety vs. stifling expression) | Enforcement aimed at suppressing protest | Enforcement based on public safety | Enforcement motive material; remand for testimony on motive |
| Legislators' testimony and Debate Clause immunity | Co-chairs could provide relevant enforcement testimony | Legislators immune from process during session | Legislators not immune; subpoenas should be quashed and testimony allowed on enforcement motive |
Key Cases Cited
- State v. Robertson, 293 Or 402 (1982) (categorization under Article I, §8 for expressive vs. conduct-based laws)
- State v. Plowman, 314 Or 157 (1992) (analysis of overbreadth with speech-related statutes)
- City of Eugene v. Miller, 318 Or 480 (1994) (as-applied challenges to speech-neutral laws when enforcement burdens protected speech)
- Coffin v. Coffin, 4 Mass 1 (1808) (Speech or Debate Clause scope extending beyond spoken debate to other official acts)
- Kilbourn v. Thompson, 103 US 168 (1880) (early debate clause interpretation extending privilege to acts in connection with official duties)