Dеfendants were arrested for “[i]nterfer[ing] with agricultural operations,” a Class A misdemeanor. ORS 164.887 (set out below). At trial, each defendant filed a motion to dismiss on the grounds that the statute on its face violated the free speech, free assembly, and equality guarantees of the Oregon and United States constitutions. When the trial court denied their motions, defendants entered conditional pleas of no contest, reserving the right to withdraw the pleas in the event of a successful appeal.
1
The court
Defendants’ only challenge to ORS 164.887 is facial. Thus, facts involving the circumstances of defendants’ arrests are immaterial; the only relevant “fact” in this case is that defendants were convicted of violating that statute, and the only issue is whether the legislature transgressed one of the specified state or federal constitutional provisions by enacting it.
City of Eugene v. Lincoln,
ORS 164.887 provides:
“(1) Except as provided in subsection (3) of this section, a person commits the offense оf interference with agricultural operations if the person, while on the property of another person who is engaged in agricultural operations, intentionally or knowingly obstructs, impairs or hinders or attempts to obstruct, impair or hinder agricultural operations.
“(2) Interference with agricultural operations is a Class A misdemeanor.
“(3) The provisions of subsection (1) of this section do not apply to:
“(a) A person who is involved in a labor dispute as defined in ORS 662.010 with the other person; or
“(b) A public employee who is performing official duties.
“(4) As used in this section:
“(a)(A) ‘Agricultural operations’ means the conduct of logging and forest management, mining, farming or ranching of livestock animals or domestic farm animals;
“(B) ‘Domestic farm animal’ means an animal used to control or protect livestock animals or used in other related agricultural activities; and
“(C) ‘Livestock animals’ has the meaning given that term in ORS 164.055.
“(b) ‘Domestic farm animal’ and ‘livestock animals’ do not include stray animals.”
A “labor dispute as defined in ORS 662.010” is
“any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.”
ORS 662.010(1).
We begin with defendants’ state constitutional challenges.
State v. Kennedy,
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”
Article I, section 26, provides, in part:
“No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good[.]”
According to defendants, ORS 164.887 prohibits conduct that, in some circumstances, might be constitutionally protected expression or assembly. Bеcause they moved to dismiss the charges based on the language of the statute itself and not on its application to their own activity, their argument is that the statute is facially overbroad. They rely principally on
State v. Ausmus,
“A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, the person * * * [congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse^]”
Becаuse the challenge was facial, the defendants demurred to the indictment and the circumstances of their arrests were not in evidence. Nonetheless, the court reasoned that the statute hypothetically could be applied against
“an individual who, in response to an order to disperse, abandons whatever activity in which they [sic] were engaged that made the order lawful in the first place, but continues peaceably to congregate with others, with the intent to cause public inconvenience, annoyance, or alarm or recklessly creates the risk of causing public inconvenience, annoyance or alarm. And, because ORS 166.025(l)(e) reаches that conduct, the legislature has stepped beyond the permissible regulation of damaging conduct or the harmful effects that may result from assembly or speech.”
Ausmus,
Defendants contend that, like the statute struck down in Ausmus, the statute that they challenge here could also hypothetically be applied so as to restrain constitutionally protected conduct.
Defendants’ argument, however, depends on the proposition that a facial challenge to a statute that regulates only conduct is cognizable under Article I, sections 8 and 26— a proposition that seemingly follows from
Ausmus,
where the court sustained a facial challenge under Article I, section 8, to a statute that did not mention expression, and from
State v. Hirsch/Friend,
Their challenge under Article I, section 20, is more complex. That section provides:
“No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”
Although section 20 is textually and historically a leveling provision aimed at prohibiting laws that confer special benefits on an aristocratic or quasi-aristocratic “class,” it has for
many years served as the state constitutional analog to the federal Equal Protection Clause, prohibiting legislation that imposes burdens on a historically oppressed minority.
See, e.g., Tanner v. OHSU,
The Oregon courts have developed a framework for analyzing claims under Article I, section 20, in its capacity as a state analog to the Equal Protection Clause, but, in some respects, that framework is inapplicable to claims of allegedly unlawful special privilege. For examрle, to determine whether a statute unlawfully discriminates against members of a minority class, we first determine whether the burdened group can correctly be called a true “class,” that is, a group that consists of individuals who would be considered as belonging to a distinctive group even if the statute that burdens them did not exist (for example, African-Americans, Catholics, veterans, residents of Portland). If the group does not fit that definition, then Article I, section 20, simply does not apply.
Sealey v. Hicks,
It is not necessary here. In
MacPherson v. DAS,
“Some litigants seeking the protеction of Article I, section 20, claim- — as do plaintiffs here — that a particular ‘class,’ of which they are not a member, unlawfully has been accorded a special privilege or status. Other litigants claim that they are members of a ‘class’ suffering disparate treatment without legitimate reason. In either situation, this court consistently has held that the protection that Article I, section 20, affords is available to only those individuals or groups whom the law classifies according to characteristics that exist apart from the enactment that they challenge.”
Id. Thus, even when the claim put forward by a statute’s challengers alleges that the statute confers a privilege on a special few, the claim is not cognizable under Article I, section 20, when the favored group would not be considered a cohesive and societally recognized group were it not for the challenged statute itself.
That is the situation in this case. If ORS 164.887 immunized trade union members, we might conclude that it privileges a true class, but that is not what the statute does. Rather, it immunizes any person who is “involved in”
“any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or sеeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.”
ORS 164.887(3)(a); ORS 662.010. The exception, then, expressly encompasses union members and nonunion members, employees, employees’ supporters, and, for example, their attorneys, as well as promanagement demonstrators. It also could encompass any person involved in a personal
injury or
Having determined that the state’s law does not deprive defendants of any rights guaranteed by the state constitution, we turn to their argument that the state’s law (including its constitutional law) nonetheless falls short of the federal constitutional guarantees of equal protection, 3 free speech, and free assembly. 4
As it happens, this case occupies the small plot of federal constitutional territory where analysis under the Equal Protection Clause is colored by First Amendment considerations. The territory was first mapped in
Police Department of Chicago v. Mosley,
“ ‘A person commits disorderly conduct when he knowingly:
“ ‘(i) Pickets or demonstrates on a public way within 150 feet of any primary or secondary school building while the school is in session and one-half hour before the school is in session and one-half hour after the school session has been concluded, provided, that this subsection does not prohibit the peaceful picketing of any school involved in a labor dispute * * *.’ Municipal Code, c. 193-1 (i).”
Id. at 92-93. The Seventh Circuit had held that the ordinance violated the First Amendment because it was overbroad. Mosley v. Police Department of City of Chicago, 432 F2d 1256 (7th Cir 1970). Thе Supreme Court affirmed on different grounds:
“Because Chicago treats some picketing differently from others, we analyze this ordinance in terms of the Equal Protection Clause of the Fourteenth Amendment. Of course, the equal protection claim in this case is closely intertwined with First Amendment interests; the Chicago ordinance affects picketing, which is expressive conduct; moreover, it does so by classifications formulated in terms of the subject of the picketing. As in all equal protection cases, however, the crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment.”
Police Department of Chicago,
Eight years after
Police Department of Chicago,
the Court reaffirmed that case’s core holding in another context.
In
Carey v. Brown,
“[T]he exclusion for labor picketing cannot be upheld as a means of protecting residential privacy for the simple reason that nothing in the content-based labor-nonlabor distinction has any bearing whatsoever on privacy. * * *
“The central difficulty with the [special status of labor protests] argument is that it forthrightly presupposes that labor picketing is more deserving of First Amendment protection than are public protests over other issues, particularly the important economic, social, and political subjects about which these appellees wish to demonstrate. We reject that proposition.”
Id. at 465-66.
The unambiguous import of these cases is that a statute that imposes criminal penalties on persons who engage in picketing, but creates an exception for persons who are involved in a labor protest, violates the Equal Protection Clause because the statute creates a distinction that has no bearing on any legitimate governmental interest. That conclusion appears fatal to ORS 164.887.
The state, however, contends that there is a dispositive difference between the unconstitutional enactments in Police Department of Chicago and Carey, on the one hand, and ORS 164.887, on the other: The Oregon statute, the state argues, is directed at conduct, while the unconstitutional enactments in Police Department of Chicago and Carey are directed at picketing, which is per se expressive. For two reasons, we are persuaded that this distinction is not significant.
First, we can perceive no reason why a statute that privileges labor-related conduct
including
expressive labor-related conduct should be treated any differently, for purposes of equal protection analysis, from a statute that privileges labor-related conduct that is expressive
per se.
The former
contains
an unlawful discrimination; the latter
is
an unlawful discrimination. Both are discriminatory, and, in both, the discrimination is based on the beliefs, opinions, or motives of the actor. It is perhaps for that reason that
Police Department of Chicago
itself announcеs, “The Equal Protection Clause requires that statutes
affecting
First Amendment interests be narrowly tailored to their legitimate objectives.”
Second, we take issue with the state’s assertion that ORS 164.887 is directed at conduct. If the statute did not have the labor
We therefore conclude that, because it contains the impermissible labor-nonlabor distinction, ORS 164.887 violates the Equal Protection Clause. That conclusion, however, does not end our inquiry. We will not declare an entire statute unconstitutional based on the unconstitutionality of one of the statute’s parts; rather, the preferred remedy is to sever the unconstitutional provision and salvage the remainder. The legislature has codified that preference in ORS 174.040:
“It shall be considered that it is the legislative intent, in the enactment of any statute, that if any part of the statute is held unconstitutional, the remaining parts shall remain in fоrce unless:
“(1) The statute provides otherwise;
“(2) The remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the remaining parts would not have been enacted without the unconstitutional part; or
“(3) The remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the legislative intent.”
We must therefore determine whether this statutory presumption of severability applies in the present case.
We conclude that it does not. ORS 174.040, by its terms, applies to statutes that contain an “unconstitutional part” and “rеmaining parts.” When a statute offends principles of equal protection because one part creates an entitlement (or burden) and another part withholds that entitlement (or burden) from some people, the statute does not necessarily contain an “unconstitutional part.” It is more accurate to say that the constitutional infirmity lies in the rationale underlying the distinction embodied in the conjunction of the exemption created in paragraph (3)(a) with the prohibition embodied in the remaining parts. The issue is not exactly whether an unconstitutional part can be severed. It is, more precisely, whethеr the legislature would prefer to eliminate the exemption, so that all those who interfere with agricultural operations commit the crime, or, alternatively, would prefer to extend the exemption to everybody, in which case the appropriate remedy would be to do away with the statute entirely.
Salem College & Academy, Inc. v. Emp. Div.,
“If [the federal unemployment statute] validly requires coverage of independent religious schools, a holding that excludes them from coverage under [Oregon law] would have consequences directly contrary to the legislature’s dominant objective of maintaining Oregon’s conformity with [federal law]. In a choice between exempting independent religious schools and losing conformity with [federal law] or maintaining that conformity and extending coverage to all religious schools, the legislaturein 1977 surely would have chosen the latter course.”
Id. at 494. Thus, the decision whether to extend the exemption or eliminate it rested оn a determination of which option the legislature that enacted the statute would have preferred.
That determination in this case leads us to conclude that ORS 164.887 must be declared unconstitutional in toto. We reach that conclusion based, first, on legislative history. ORS 164.887 began in the 1999 legislative session as Senate Bill (SB) 678. As introduced, it did not contain a labor exemption, and it created a Class C felony. In that form, it moved out of the Agriculture and Natural Resources Committee with a “do pass” recommendation after several witnesses testified orally and in writing that the bill would address vandalism, harassment, monkeywrench operations, property dеstruction, and environmental sabotage. Minutes, Senate Committee on Agriculture and Natural Resources, SB 678, Mar 18 and Apr 21, 1999. The bill was then referred to the Senate Judiciary Committee, which held a public hearing on May 5. Supporters provided the same sort of testimony that had been presented before the Agriculture and Natural Resources Committee. Minutes, Senate Committee on Judiciary, SB 678, May 5,1999.
However, testimony against the bill occurred as well. A representative from a farmworkers’ organization, Pineros y Campesinos Unidos del Noroeste, testified against the bill, pointing out that it would make much of the activity associated with farm lаbor disputes against the law. He called the committee’s attention to a 1990 case,
Pineros Y Campesinos Unidos v. Goldschmidt,
Between the May 5 Judiciary Committee public hearing and a May 26 Judiciary Committee work session, a work group consisting of representatives from ranching and timber groups, the ACLU, and key legislators convened and produced two suggested amendments. One reduced a violation of the statute from a Class C felony to a Class A misdemeanor. Exhibit W, Senate Committee on Judiciary, SB 678, May 26,1999. The other added what is now paragraph (3)(a), the labor exemption. Exhibit V, Senate Committee on Judiciary, SB 678, May 26, 1999. With those amendments, the bill moved out of committee with a “do pass” recommendation. Minutes, Senate Committee on Judiciary, SB 678, May 26, 1999, 10. Ultimately, and without further amendments of significance, the bill passed both houses and was signed by the governor. Or Laws 1999, ch 694, § 1.
From this legislative history, we can fairly infer that the labor exemption was a critical component of the bill and that the legislature — or at least key players in the legislative process — was concerned about constitutional violations and took measures to craft a statute that avoided them.
That inference is reinforced by the assumption that the legislature prefers to avoid еnacting a bill that raises serious questions of constitutionality.
Easton v. Hurita,
And, in fact, ORS 164.887 without the exemption does raise serious constitutional questions. It applies to conduct that occurs “on the property of another person who is engaged in agricultural operаtions.” ORS 164.887(1). There is no exception for conduct by people who are guests or invitees on that property. A “person” is defined for purposes of most criminal law as including a governmental entity. ORS 161.015(5). “Agricultural operations” include “forest management.” ORS 164.887(4)(a)(A). Thus, the statute could criminalize a person for conduct that occurs on forestlands that are managed by the state and federal governments. Conduct constituting the offense includes not only obstructing, impairing, or hindering forest management, but also attempting to do so. ORS 164.887(1). One definition of “obstruct” is “to be or come in the way of,” with the illustrative examples, “unwise rules [obstruct] legislаtion” and “constant interruptions [obstruct] our progress.” Webster’s Third New Int’l Dictionary 1559 (unabridged ed 2002). “Hinder” is listed as a synonym. Id. Thus, a person peacefully picketing against labor or logging practices on public or private land could, under these definitions, be attempting to obstruct an agricultural practice by another person on that person’s property by attempting to convince the person, the person’s employees, or the general public to alter the offensive practice. An attorney for an environmental group who seeks to enjoin a company’s forest practice, or who represents employees who object to an allegedly unsafe practice, and who goes to company headquarters to participate in a deposition regarding that action, could likewise be guilty of attempting to obstruct an agricultural practice — even if the attorney is invited to the headquarters. Other examples are limited only by a creative litigant’s imagination.
Because defendants in this case bring only a facial challenge, we do not have the occasion to decide whether such hypothetical situations fall within the ambit of the statute’s prohibition, or whether criminalizing them is unconstitutional, but that is not the point; the point is that the statute cleаrly raises serious constitutional concerns. 6 That fact, in combination with the fact that almost all of the constitutional applications of ORS 164.887 are already crimes, persuades us that, when presented with the choice between enacting a potentially unconstitutional and almost entirely redundant statute, on the one hand, and, on the other, not enacting anything, the legislature would have opted to do nothing.
In sum, we conclude that ORS 164.887 does not, on its face, violate any provision of the Oregon Constitution, but that it does violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. We alsо conclude that the appropriate relief is not to excise the labor exemption, because, if presented with the option of taking that action or not enacting the statute at all, the legislature would have chosen the latter. We therefore hold that ORS 164.887 is unconstitutional.
Reversed.
Notes
ORS 135.335(3) provides:
“With the consent of the court and the state, a defendant may enter a conditional plea of guilty or no contest reserving, in writing, the right, on appeal from the judgment, to a review of an adverse determination of any specified pretrial motion. A defendant who finally prevails on appeal may withdraw the plea.”
Defеndants were also charged with disorderly conduct and obstructing governmental administration. Those charges were dismissed.
The statute also immunizes public employees who are performing official duties. ORS 164.887(3)(b). Defendants do not argue that the statute violates Article I, section 20, on that basis, and we do not address that issue.
The Equal Protection Clause of the Fourteenth Amendment provides, in part, “No state shall * :i: * deny to any person within its jurisdiction the equal protection of the laws.” US Const, Amend XIV, cl 1.
The First Amendment provides, in part, “Congress shall make no law * * * abridging the freedom of speech, or of the press; or the right of the people рeaceably to assemble[.]” The First Amendment applies against the states through incorporation into the Fourteenth Amendment.
Grosjean v. American Press Co.,
Defendants also argue that, even if this degree of heightened scrutiny — legitimate governmental objective, narrow tailoring — does not apply to statutes like OES 164.887 that are written in terms of conduct but nonetheless affect speech, the statute still fails, even under the more deferential analysis that requires only some degree of logical connection between the statute’s distinction and a legitimate objective. In the terms that the Court used in
Carey,
they argue that the labor exclusion “cannot be uрheld” as a means of achieving the state’s objective (presumably the prevention of disruptions of agricultural activities) “for the simple reason that nothing in the content-based labor-nonlabor distinction has any bearing whatsoever” on that objective.
Under the First Amendment, in order for a facial challenge to a statute to succeed, “the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”
Broadrick v. Oklahoma,