Summary
The Oregon Supreme Court considers constitutional challenges to a Legislative Administration Committee guideline prohibiting overnight use of the Oregon State Capitol steps. The court holds that the guideline is not facially unconstitutional under Article I, sections 8 or 26, of the Oregon Constitution, but remands for further inquiry into whether it was applied impermissibly to the defendants’ protected expression and assembly. The court also holds that the Oregon Constitution’s Debate Clause does not bar questioning legislator co-chairs about their involvement in enforcing the guideline and does not reach the defendants’ First Amendment claim.
Topics
Practice areas
Questions Presented
- Whether the LAC guideline facially violated Article I, section 8, of the Oregon Constitution by restraining free expression.
- Whether the LAC guideline facially violated Article I, section 26, of the Oregon Constitution by restricting assembly, instruction of representatives, or petitions for redress of grievances.
- Whether enforcement of the guideline against defendants could constitute an unconstitutional, as-applied restriction on protected expression and assembly.
- Whether Article IV, section 9, of the Oregon Constitution's Debate Clause barred defendants from questioning the LAC legislative co-chairs about their involvement in enforcing the guideline.
- Whether the court should reach defendants' First Amendment challenge.
Holdings
- The overnight-use guideline is not facially unconstitutional under Article I, section 8, because it is speech-neutral and is not written in terms directed to the substance of opinion or communication, does not expressly or obviously make expression a proscribed means of causing a targeted harm, and is therefore not subject to facial invalidation under the first or second categories of the Robertson framework.
- The guideline is not facially unconstitutional under Article I, section 26, because its terms do not target assembling, instructing representatives, or applying to the legislature for redress of grievances, and those activities are not expressly or obviously elements or proscribed means of causing a targeted harm.
- Enforcement of a speech-neutral and assembly-neutral guideline may be upheld as a reasonable time, place, and manner restriction, but the record was insufficient to determine whether enforcement against defendants was neutral or instead targeted their expression and assembly.
- Article IV, section 9, does not bar defendants from questioning the LAC co-chairs about their direct involvement, if any, in enforcing the overnight-use guideline against defendants.
- The court declined to reach defendants' First Amendment argument because their state constitutional claims remained unresolved after remand.
Key quotations
“We therefore conclude that legislative members who participate in or specifically direct enforcement of a law against particular individuals may be questioned about that conduct because it is not protected under the Debate Clause of Article IV, section 9.” (at 424-25)
“For the reasons discussed above, on its face, the guideline does not violate Article I, section 8, or Article I, section 26, of the Oregon Constitution.” (at 433-34)
Factual background
Defendants maintained an around-the-clock vigil on the Oregon State Capitol steps to protest deployment of Oregon National Guard troops to Iraq and Afghanistan. The Legislative Administration Committee's guideline prohibited overnight use of the steps between 11:00 p.m. and 7:00 a.m., and state police cited defendants for remaining there during those hours. The vigil included fasting, candles, signs, speech, and interactions with the public, veterans, National Guard members, and legislators.
Procedural history
The trial court rejected defendants' procedural and constitutional challenges to the Legislative Administration Committee guideline and found them guilty of second-degree criminal trespass. The Oregon Court of Appeals rejected the facial challenges under the Oregon Constitution but remanded for defendants to question the LAC co-chairs about enforcement of the guideline. The Oregon Supreme Court affirmed the Court of Appeals, affirmed the circuit court in part, reversed it in part, and remanded for further proceedings.
Remand instructions
The trial court must permit defendants to question the LAC co-chairs about their involvement, if any, in enforcing the overnight-use guideline against defendants. After considering that testimony and the existing evidence, the trial court must determine whether enforcement was a reasonable time, place, and manner restriction or instead targeted defendants because they were engaged in protected expression and assembly. The circuit court's judgment was affirmed in part and reversed in part; the Court of Appeals decision was affirmed.