An Oregon Supreme Court decision Thursday gave something to both sides in a dispute about whether six antiwar protesters had a right to conduct a vigil at the Capitol.
The court held on May 15 that the Legislature could ban overnight use of the Capitol grounds from 11 p.m. to 7 a.m. without violating state constitutional guarantees of free expression and the right to assembly.
A good argument can be made that the Legislature should permit such vigils as part of the public debate over contested state policies, Chief Justice Thomas Balmer wrote for the court. The question here, however, is whether the Oregon Constitution bars the Legislature from limiting use of the Capitol steps for any purpose, including protesting, to the hours of 7 a.m. to 11 p.m. It does not.
But the court also held that the protesters lawyers can question the Legislatures leaders about whether they had a hand in enforcing the ban. The court concluded that such questioning would not violate a constitutional provision against legislators being called in court to answer for legislative actions.
The decision essentially upheld a 2012 ruling by the Oregon Court of Appeals.
The decision returns the case to Marion County Circuit Court, where Judge Jamese Rhoades had quashed subpoenas sought by the protesters lawyers for Senate President Peter Courtney, D-Salem, and then-House Speaker Dave Hunt, D-Gladstone. Hunt is no longer in public office.
Legislators offered no comment.
The American Civil Liberties Union of Oregon said it was disappointed in the overall outcome. Two independent lawyers working as part of the ACLU Foundation of Oregon represented the protesters.
We made the argument that a rule having the effect of prohibiting public assembly to instruct representatives and petition the government is unconstitutional on its face, said Dave Fidanque, ACLU Oregon executive director. But the court rejected that argument we think unwisely in a way that is going to cause bad results in the future.
Balmer said the constitutional provision was meant to thwart fishing expeditions or harassment of legislators by parties in civil or criminal cases. It dates back to the original 1857 Constitution, but the court has never been asked to interpret the provision before this case.
Here, however, the information that defendants seek clearly relates to the enforcement, rather than the enactment, of the guideline, and evidence in the record indicates that the legislators who were subpoenaed had conversations with the legislative administrator regarding the guideline, Balmer wrote.
There is a similar provision in the U.S. Constitution applying to members of Congress.
ACLUs Fidanque said that the permitted questioning of legislators might help the protesters in this case, but its unlikely to help anyone else in the future.
Conveying their message
The case stems from intermittent protests in November 2008 by Michele Darr of Salem, who was issued citations for violation of what was then a guideline for use of the Capitol grounds.
The Legislative Administration Committee, which is led by the Senate president and House speaker, then banned overnight use of the Capitol grounds in January 2009.
On Feb. 15, 2009, six people including Darr were arrested in an overnight vigil protesting the deployment of the Oregon National Guard on federal service to Iraq and Afghanistan.
All were convicted in Marion County Circuit Court on Dec. 3, 2009, of second-degree criminal trespass. The state chose to treat them as simple violations, each with a $500 fine. The protesters then challenged the overnight ban as unconstitutional, and sought to question the involvement of legislators in its enforcement.
Five of the protesters were represented by Portland lawyer Tim Volpert. The other was represented by Silverton lawyer Jossi Davidson. Both were working under the American Civil Liberties Union Foundation of Oregon.
Although the guideline restricted the location of defendants expression during those hours, it did not prohibit that expression from occurring altogether, Balmer wrote in upholding the ban as a valid restriction on the time, place and manner of speech.
Defendants could protest on the Capitol steps 16 hours a day, and there is no indication that defendants were prevented from effectively conveying their message from another location during the eight nighttime hours.
But ACLUs Fidanque said he fears that as a result of Thursdays decision, state and local officials will resort to such restrictions to curtail what is otherwise protected expression under the Oregon Constitution.
In a building that is the seat of government, such a location is entitled to the highest constitutional protection when it comes to the ability of citizens to gather together, he said.
Referring to protests in recent years in Egypt, Ukraine and elsewhere, I think people around the world would be shocked to learn that in the beacon of democracy, you can get around fundamental constitutional rights to gather peaceably and seek redress of grievances from government.
Although Rhoades quashed the subpoenas and dismissed the case, the Oregon Court of Appeals decided in 2012 that the protesters had a right to question legislators about what they might have said about enforcement of the ban. The legislative administrator in 2009 was Scott Burgess, who left the job in 2012, and said he acted on his own authority.
He (Burgess) also testified that he spoke to them about the guideline, and he answered numerous questions by stating that he could not remember whether certain conversations or interactions had occurred, Balmer wrote.
The protesters also challenged the ban on grounds of the First Amendment, the federal constitutional guarantee of free speech and the right to assembly. But Balmer wrote that the Oregon Supreme Court made no decision about that claim.