*1 11,1984, July reassigned Argued and submitted March Court of grounds, affirmed on different conviction affirmed June reconsideration 30,1985 July denied SALEM, CITY OF Review, on Respondent v.
BRUNER, Petitioner Review. (TC A28085; S30627) 139,465; CA SC *2 Crandall, Salem, argued L. the cause and filed the Dale petitioner brief for on review. Salem, Lee, and filed the brief for argued
Paul the cause respondent on review. General, Mountain, E. Frohnmayer, James Attorney
Dave 263-a
Jr., General, Solicitor Virginia L. Linder, Assistant Solicitor General, Stephen Peifer, F. General, Attorney Assistant Salem, filed an amicus curiae brief for Oregon. the State of Meyer Baron,
Gail Portland, filed an amicus curiae brief for the Oregon Criminal Lawyers Defense Association.
ROBERTS, J. J.,
Campbell, concurred and filed and opinion.
263-b *4 264
ROBERTS, J. Appeals Appeals
Defendant seeks review of the Court of dismissal of his to that court. The Court of jurisdiction, citing dismissed for lack of 221.360, set forth petitioned raising note 3. Defendant for review court, to this inability Appeals, the claim that his to the Court of except constitutionality on the of the charter or ordi- equal privileges nance, denied him and immunities under Oregon 1, Article Constitution.
THE FACTS driving Defendant was arrested for under the influ- by City police ence of intoxicants of Salem officer. He was charged with a violation of the Salem Revised Code Section 100.330(a)(2) Municipal and cited into Salem Court.
The citation stated that the offense occurred in Polk County but the arrest was made after the officer followed bridge defendant across the into Salem, downtown located in County. Although major part Marion of Salem is situated County, part in Marion of Salem is situated on the west side County. of the Willamette River in Polk municipal court, Prior to trial in defendant moved to litigation County have the transferred to Polk District Court. jury The motion was denied.1Defendant waived trial and filed suppress a motion to evidence. That motion also was denied. stipulated Trial was had on facts and defendant was found guilty. appealed County Defendant then to Marion Circuit repeated Court and had a trial de novo. Defendant his motion suppress again evidence, and the motion was denied. He again jury again guilty. waived a trial and was found appealed
Defendant then to the Court of evidentiary grounds, asserting suppress that his motion to City should have been allowed. The of Salem moved for dismissal based on ORS 221.360 and Klamath Falls v. upheld Winters, provided dual scheme in ORS 221.360.The Court of Appeals allowed the motion for dismissal. assigned ruling. Defendant has not error to this *5 STATUTES
THE
state, county
police
Salem,
city
a
or
City of
In the
has commit
person
to believe
having probable cause
officer
for a
alleged
the
offender
traffic offense
cite
major
ted a
city
of the
ordinance
of state statute or
violation
Code
See Salem Revised
incorporates
these state laws.
person into
has the choice to cite the
The officer also
100.330.2
to district
person
court. A
cited
municipal court or district
or a state law
city
for
of either a
ordinance
court
violations
issue. ORS
any legal
of
on
Appeals
to the Court
may appeal
for
municipal
to
court
violat
Likewise,
person
cited
46.250.
municipal court to
may seek removal from
ing a state statute
153.565, 51.050(2),
court,
484.030(2),
Hen
ORS
the district
(1978),
from
Smith,
and
v.
[2] are following adopted “100.330. ADOPTION OF enumerated reference and made a sections, being sections of STATE part MAJOR of this Oregon TRAFFIC chapter. Revised OFFENSES, (a) Statutes, hereby
“(1) 487.550 “(2) 487.540 “(3) (2) (4) (b) 483.602(1), “(4) 483.604 “(5) 487.560 “(6) 487.555 “(b) of made unlawful the above mentioned sections All acts which are against Oregon the when as offenses Revised Statutes shall considered penalty be as the for such offenses shall within its boundaries and committed 86-82). 161.635(l)(a). (Ord 161.615(1) provided No. in ORS defining driving intoxi- under influence of 487.540 is the state statute ORS 100.330(a)(2). against charge a violation of Section defendant was cants. Therefore adopt cities ordinances state statutes. ORS 221.330 allows as * “* * Oregon, may adopt the State Cities as ordinances statute of authority by scope subject reference to of the charter matter of which within the section, chapter publication posting or thereof.” or without further 3 provides: 221.350 any city any person in court of is convicted “Whenever ordinance, by any city punishable unless or and made charter
offense defined court, person city prohibits appeals have the such shall from such charter of statute, part, provides: This “Where the right appeal depends upon such cases being there involved an issue as constitutionality to the provision charter ordinance, the decision of the court shall be upon such Polanski, issue In only.” City constitutional v. Salem 509-10, Or interpreted we this statute appeals beyond to disallow the circuit court except as expressly provided in the statute. We that only held cases involving the constitutional issues specified came within the jurisdiction Court of Appeals. In Klamath v. Falls Winters, supra, we read declined to ORS 221.350 and 221.360 as grants of appellate jurisdiction; rather, they held we were restrictions on that jurisdiction. The effect of these statutes interpreted preclude right plenary *6 appeal in cases such as the present.
THE CONSTITUTIONAL CLAIM statutes, Defendant contends these restrict- ing him to a limited a appeal, rather than full violate the equal privileges I, 20, and immunities of clause Article section of the Oregon Constitution.4 The essence of defendant’s claim is that he was a privilege similarly denied available to situated person defendants because a cited for the same conduct to municipal under a a court state statute or to district court right appeal jurisdiction city same of to the within circuit court whose the its has legal city government situs and maintains its seat of as now obtains a from justice peace. appeal conviction from courts of the of shall be taken and
perfected provided by taking appeals justice in the manner law for from courts.” provides: ORS 221.360 involving constitutionality provision “In all the cases of the charter or 221.350, ordinance which the was in under conviction obtained as indicated ORS person appeal right such have the court in shall of to the circuit the manner 221.350, provided regardless provision in ORS of charter or ordinance prohibiting appeals municipal penalty from the court because amount of the appeal may judgment or otherwise. An be in likewise taken such cases from the or Appeals final order of the circuit court to of in same the Court manner as other appeals Appeals are from the to in taken circuit court the Court of other criminal right appeal depends upon being cases. Where the cases there such involved constitutionality provision ordinance, an issue as to the of the charter or appellate upon only.”
decision of the court shall be such constitutional issue 4 20, I, provides: Article section passed granting privileges, to “No law shall citizen or class citizens which, immunities, terms, upon equally belong shall all same to citizens.”
267 ultimately would city a or state statute either ordinance under any legal on issue Appeals able to Court to defendant, ordinance violation was cited for who while Court of court, only appeal could to the municipal a city ordinance or constitutionality underlying the dual finds with The fault defendant provision. charter police discretion” of lies in the “unbridled appeal procedures of two by checking one route officers to determine a violation of charging citation form on the uniform boxes fixing in blank filling state statute and ordinance or The box checked original trial is be held. court in which the availability designated scope set the and the court appeal. Freeland, argues
Defendant that State v. discretion requires citing P2d that the officer’s consistently meaningful applied criteria simi- must rest on larly defendants. Defendant is correct. situated
The state as amicus defends dual first there is no grounds. argues scheme on three It appellate opportunities disparity because review, a form of review corpus defendants seek habeas to, “comparable if not substan- which the state contends is tially as, the district court appellate rights the same Second, plenary appellate defendant.” the state asserts that If no particular “privilege” review on defendants. confers no “privilege” no is denied “privilege” identified then Third, I, the state contends inapplicable. Article was prove that defendant has failed that discretion exer- asserts that each cised in a standardless manner. The state *7 which to may upon law have standards agency enforcement case, In has not demon- citing make decisions. defendant contrary. strated the that suggestion with the state’s disagree
We
first
corpus
comparable
appellate
is
to direct
review.
habeas
review
may
array
by
of
issues
legal
a defendant
raise a full
Although
a
is
only
is
available to defendant who
corpus,
habeas
writ
liberty,”
of his
“imprisoned or otherwise restrained
interpreted
language
require
have
this
to
some
34.310. We
Oregon
of
and within
“physical
restraint within the state
v.
county
judicial
of the state.” White Glad
some
district
(1956).
den,
53, 60,
In
we held
discussion.
In
a
of
majority
rejected
challenges
this
court
to the instant
statutory
scheme under
the federal and state constitutional
guarantees
equal
treatment.
only
We examined
the classifi
by
cations drawn
the statutes
in relation
to
purported
purpose
for the two
routes and found a “rational
Winters
for the system.
basis”
I,
did not consider
the Article
20, guarantee
section
of equality of privileges of each indi
separate
vidual “citizen”
from
application
of this guaran
to
tee
“class of citizens.” We later discussed
aspect
this
Clark,
State v.
I,
20,
in
231,
Article
section
291 Or
and State v.
supra.
In particular, Winters stated:
upon
we were
hold ORS
221.360
be invalid
“[I]f
ground
municipal
that
in
a defendant convicted
court and
equal protection
circuit court is denied
because he
does
have
right
the same
to the Court of
as
granted
court,
person
to a
convicted in
defendant
a district
a
convicted in
equally
a district court could
is
contend that he
equal protection
denied
in that he does not have the same
to review a trial de novo in
right
granted
circuit
as
Yet,
in municipal
defendant convicted
court.
both defen-
originate
municipal
dants whose cases
court and defen-
originate in
enjoy
dants whose cases
advantages
district court
that are not available to the other.
reasons, may
“For these
it
well be
differences
procedures
between the
available to a defendant convicted in a
court,
compared
with those available to a defen-
court,
dant convicted in district
rise to
do not
such a level
‘inequality’
‘unequal’ protection
as to
constitute
the laws.”
But,
course,
processes
exist
one
the fact
two
person
enjoy advantages
not available
to another
I,
the Article
we
precisely
triggers
what
concerns
Freeland.
Whenever
some
person
addressed
denied
*8
advantage
for a choice
he or
entitled but
to which
she would be
requires
authority,
by government
20,
I,
Article section
a
made
advantage
deny
government
decision to offer or
that the
consistently applied.”
“by permissible
State
criteria and
made
answering
supra,
Freeland,
Both plenary appeal legal not offer a substantial of issues does “privilege.” enough advantage advantages a There are distinct to be Appeals of review. Considera which attend Court body uniformity by multi-judge a trial court tion of point among However, them. not how decisions are many advantages compared catalogued procedure as can with one if two with another. Even we assume that average, roughly equivalent procedural are, channels on the they obviously defendants, to whole “classes” are any equivalent 20, I, as to Article one defendant. section equality for “class citizens” as mandates treatment for well as “citizen.” purely instance,
A issue, second trial of a factual for speed driving he was at which defendant was or whether may driving intoxicants, under be advan- the influence of tageous to a A further defendant who denies those facts. to the Court would be of no value unless genuine law. On the other defendant can raise some issue of undisputed, challenges hand, if the facts are but defendant legal premise interpretation of a ordinance or some other prosecution, “privileges, he is not afforded or immu- of the nities cannot * * * upon all citizens when he the same terms” with beyond the circuit court as a citizen that issue Indeed, has do. where circuit court tried in district court quite possible department judge, it more than one contrary legal rulings the same defendants would receive issue appellate a chance for resolution of conflict. without “privilege” purposes I, Moreover, a of Article for meaning it in the has the same whether arises challenge discrimination, as in context to invidious class SAIF, or to the Hewitt v. grant standardless or denial priveleges to individual citizens Freeland, as in State v. supra. present two routes of “priv- choice
ileges” is, which must be criteria, made defensible criteria which consistency ensure question treatment. The *9 is whether there are in upon this case “terms” the which two systems were “equally” “any administered citizen.” Oregon
Amicus Criminal Lawyers Defense Associa- tion asserts that the can be statutes never administered in a way comports I, that with Article 20. section The Association argues that upon the criteria which citing the decision is made must relate to appellate the function of review In itself. other words, they argue that the setting appellate decision available, route defendant has either de novo review to the circuit court with limited appeal plenary appeal further legal issues to Appeals, the Court of must be on based some consideration whether appeal primarily defendant will factual or legal issues. Amicus contends no can that criteria fashioned at the initiation of a criminal case which will anticipate appeal. Therefore, amicus, issues on according not, the be, statute are and cannot “capable of valid admin- istration,” because the on the “terms” which one or other appeal route is chosen are under not defensible the constitu- equal Edmonson, tional State guarantees treatment. v. supra. Freeland,
In State v. supra, this court assumed that determining probable prosecute, the two methods of cause to is, that preliminary hearing information and on the one hand jury other, the grand “capable indictment on were of valid procedures administration.” Because are specified both constitution, validity of their co-existence could not be However, challenged. the “terms” or criteria for choosing when one or other would used were to be required “defensible,” is, upon based standards which assure consistency among similar cases.
The instant case involves a scheme of alternative by statutes, procedures created constitution. question Amicus raises the threshhold choice of whether this statutory procedures is “capable valid administration.” We reject I, amicus’s claim that Article requires upon citing the criteria which the decision is made must defendants. route for most effective reflect capable of valid admin- otherwise Whether these statutes are this issue to confront premature is not before us. It is istration on the state of this record. we State and State v. Edmonson
In both v. Clark choice of must show how the suggested that the defendant purely that the choice was procedure was administered and statutory scheme, haphazard For of the instant purposes one. rights his or her are defendant who claims that unconstitutionally must raise that limited under ORS 221.360 develop first and must issue in the trial trial before factual time. necessary possible record at earliest
There is in this record that reveals whether a nothing acted exists officer policy citing and whether citing established the officer’s law accordance with criteria For the same reasons as in Clark and agency. enforcement Edmonson, Appeals we therefore affirm Court of different grounds.
The Court of is affirmed on different *10 grounds. judgment The of conviction affirmed.
CAMPBELL, J., concurring. opinion I in reached concur the result in the court’s analysis and state an alternative on which I think the will decision should be based. opinion
At the crux of reliance on majority is the police his petitioner’s argument outlined in brief that had “unbridled officer discretion” determine one citation by checking route of two boxes the uniform of either a or a state indicating form violation ordinance original and the court in which the trial designating statute However, aban- argument, petitioner would be held. at oral city police that the officer argument doned this conceded did have unbridled discretion. attempt bit so
“I to narrow the issues here a little want focus on the real issue is. I’ll concede that we can what prevent haphazard policy can that consistent course administration ordinance; I’ll concede that of the even policy in case. The City Salem such a this have however, reason, that the scheme ordinances — I case is a violation Article Section 20 this statutes that policy of Salem’s did not cover and could not similarly cover all citizens situated. major And this is the distinction that similarity takes it out of the reasoning that gone on with Clark and Edmonson and Freeland. In those has cases, the issue consistently was whether applied policy create, administration could though even there were two procedure, alternative routes of to create terms which there would be appropriate application an procedural of the State’s similarly rules to a person.” situated focus of his argument thus shifted from “unbridled discretion” part on the of the officer to the fact there were three overlapping jurisdictions city police, — county sheriff police and state of which could have a — each different, but consistent within each organization, citing pol- icy. At oral argument, petitioner continued:
«* * * statutory ii is a scheme in relation to the ordinances and the statutes and the overlapping jurisdictions of the * * courts and of the statutes *. It is not so much a matter of undefined discretion as it is person a matter of a certain particular set of place circumstances at a certain and time being subject potentially to alternative appeals courses of merely because of happens which officer that to arrive at the * * scene.
The bottom line of his argument is as follows: “I think that ought the defendant to be afforded the same opportunity to remove and make his [from court] initially, get own election himself to a court of record.”
For the following reasons, my it is opinion that defendant right prayed has the he for but that he did not elect fully pursue right. Freeland,
In State v. 367, 369, (1983), we said that claim of impermissibly unequal use of “[a] authority, like other claims of illegality, must be tested first against legal authority source of the against and second * * the state constitution *.” The authority source of for the Municipal Judge of Salem comes from *11 City Salem’s Charter. pertinent The part of Section City 8 of the Charter entitled “Recorder, Municipal Court Judge”, and reads as follows: municipal judge
“The
judge
municipal
shall be the
of the
Salem,
City
established,
court of the
hereby
of
which is
and
jurisdiction
city ordinances,
shall have
over all violations of
may
bail,
and
hold
persons
guilty
fine or commit
found
justice
like a
power
thereof,
jurisdiction
have
and
and shall
of
governing
city
laws
said
and the
within the limits
peace
the
of
to all his
apply
applicable
peace shall
as far as
justices
the
of
added.)
(Emphasis
proceedings.”
peace
the
Thus,
justices of
governing
rules
procedural
the
Municipal Court because the
apply to the Salem
would
system.
the
court
incorporated
them into
charter
(1917).
Stevenson,
We must therefore look at the 51.050(2) provides: justice of the court. ORS “(2) Any in a charged defendant with a misdemeanor entering justice plea guilty, not shall be court after immediately his right notified of to have the matter trans- county justice where the ferred the district court for located, county, if is court court is there no district justice county where the then to the circuit court for the days after the The election shall be made within located. immediately plea guilty justice is entered and the shall appropriate court.” transfer case to court, and power justice of the therefore Court, limited. Municipal Salem power and jurisdiction states that
Salem’s charter justice as the courts. city court shall be the same to refuse a Therefore, power not have the city judge does *12 274 any
transfer judge jurisdiction nor does the retain once trans- requested. fer is gives ORS 46.040 district courts “concurrent jurisdiction municipal with courts all violations of the charter and city wholly ordinances of in part or within respective counties, their committed or triable within their respective counties.” If a defendant with charged a misde- meanor wants to remove court, the case to district justice court, or in this case the Salem Municipal Court, does not have the power to retain but jurisdiction must allow removal and district court has jurisdiction hear the case. pertinent
The definitions meaning to the misde- 161.505, meanor are contained in ORS 161.515 and 161.545. ORS 161.505 defines offense follows: “An offense is conduct for a which sentence to a term imprisonment provided by any or ato fine is law this state by any or law or political ordinance a subdivision this
state. An offense is either a crime a violation or an added.) (Emphasis infraction.” 161.515 ORS defines crime as:
“(1) A crime is an a offense for which sentence of imprisonment is authorized.
“(2) felony A crime is either or misdemeanor.” ORS 161.545 defines misdemeanor as: designated
“A if crime is a misdemeanor it is so person statute of this state or if a convicted thereof sentenced to a imprisonment maximum term of of not more year.” than one
When the adopted of Salem major state’s offenses, traffic adopted provided it also for penalties 1, supra. state statute. See footnote A conviction under Salem Code, 100.330(2) jail Revised section allows for a sentence of up year up $2,500. Oregon to one and a fine of Thus under Statutes, Code, conviction of a violation of Salem Revised 100.330(2) would be a conviction of a misdemeanor. Smith,
In Henderson v. P2d 504 this court determined that when a court municipal offense, tries a the municipal judge state author exercising court, 484.010(2) ity citing as a justice ORS and ORS 484.030(2) (renumbered 153.55(2)). proceeded interpret We 51.050(2) ORS as follows: charged with a person in a court hold that
“We option right to notified of his traffic offense has a state court; municipal judge had the case to district remove appropri- regard; mandamus is this no discretion right.” ate to enforce this decision, stated that it need
In that provisions the issue on whether the charter decide based 484.010(2) former removal state statutes allowed because 484.030(2) (renumbered 153.55(2)) In this controlled. are not because defendant case, applicable the state statutes a state with of a ordinance and not charged was violation City Charter, incorporates Therefore, Salem’s statute. *13 and jurisdiction courts, governs the power justice the defendant removal of misdemeanor cases to district allows Judge remedy Municipal court if he so chooses. The when the to allow was would not refused removal mandamus. Removal County County be Polk District but to Marion to Court had he right District Court.1 The defendant therefore for, right prayed right corresponding of removal with the Appeals. to on issue to Court of Under legal he arguments, either of his theories raised constitutional validity relief he He attack sought. had the chose not to removal, allow but Municipal Judge’s Court refusal to rather waited to attack ORS 221.360 constitutional remove, grounds. By his defendant failing pursue rights in essence has made an election. He has foreclosed Court Appeals review his own conduct. should
This court has held that constitutional
issues
an
for
adequate statutory
reached when there is
basis
Division,
v.
Or
making
Highway
a decision. Webb
293
151, 156,
(1982); Douglas County Briggs,
v.
Or