Ask any attorney or staff person who works frequently in court and you’ll learn that courthouses have frequent fliers, just as airlines do. Some persons are there repeatedly on legal matters, probation, etc. But there are some who often have borderline mental stability issues, and often anti-government sentiment, who make the courthouse a regular stomping ground seemingly for fun. And sometimes, the behavior of such persons can become unnerving to staff, particularly when a single staff member becomes the subject of focus.

In such cases, there has always been a tension between protecting the staff member by restricting access to the potential stalker, and remaining faithful to the principle that all citizens should have free access to the courthouse. Today the Oregon Court of Appeals issued an interesting opinion on the subject. This case was briefed, and debated heavily, by my team back when I was at OPDS in Salem. In the end, Kenneth Kreuscher prevailed, as he should have. Kenneth is an excellent attorney, who has recently went into private practice at the Portland Law Collective.

In July, Bronson James, LLC, won a case in front of the Oregon Supreme Court. The opinion can be found here.

Daniels concerns the search of items possessed by social guests when the police execute a search against a residence. The case falls in line with some other recent decisions in this area, such as State v. Casey. Hopefully Daniels and Casey will curb some of the overly zealous searches occurring. Our position before the court was simple, the state doesn’t get to search the purses and wallets of social guests in a home without at least some evidence that the criminal suspect may have secreted items there.  The position seems grounded in common sense.  And sometimes, common sense prevails.

**I warn you now, this post is for attorneys and offers nothing but boredom for the casual reader.

Disorderly conduct is an irritating little law that any criminal attorney, prosecution or defense, would admit is poorly worded.  And as a result, it is over charged, and over applied.  It has become nearly a proxy for a general annoyance crime; used to criminalize what used to pass for boorish behavior, or as Macbeth might have said, the “milk of human unkindness.”  But is the statute vague?

Anyone even vaguely familiar with Oregon law may find the title of this post confusing.  Disorderly conduct has been extensively litigated, and survived a wave of vagueness challenges in the late 1970′s.  See e.g. State v. Marker, 21 Or App 671, 674-75, 536 P2d 1273 (1975), State v. Donahue, 39 Or App 79, 591 P2d 394 (1979).  So the conventional wisdom is that this questions as been answered in the negative.  But hear me out.

Look at State v. Clark, 39 Or App 63, 591 P2d 752 (1979).  There, the Oregon Court of Appeals reversed a district court’s grant of defendant’s demurrer against ORS 166.025(1) on vagueness grounds.  The court defended the statute against a vagueness challenge by tying the statute to New York Penal Law s240.20, upon which Oregon’s law was based, and noting New York’s treatment of the statute:

“In People v. Broadbent, 20 Misc 2d 547, 192 NY S2d 889 (1959), defendant’s conviction for blowing of his automobile horn for no traffic-related reason was reversed. The court held:

“ * * * Private annoyances, however exasperating or reprehensible, are insufficient in law to constitute a violation of the disorderly conduct section where no breach of the peace has resulted.”

“ * ** *

“The New York cases narrow the meaning of the statute to this extent: A defendant’s act, no matter how reprehensible to any particular person, must disrupt a group of persons or a portion of the community at large and we accept that construction.”

Clark, 39 Or App at 66.

Clark thus relied, in part, on the requirement that the mental state to create a “public inconvenience, annoyance or alarm” as expressed in ORS 166.025(1) could only be legitimately inferred by inconvenience, annoyance, or alarm actually manifesting in the public.  Thus, subsequent to Clark, for the next twenty years the state had to prove actual disruption of the pubic.

Now, let us fast forward to 1998.  In State v. Willy, 155 Or App 279, 963 P2d 739 (1998) the Court of Appeals revisited Clark, and a number of other cases building upon its rationale.  The court disavowed Clark’s reliance on New York’s statute and caselaw, holding:

“The linchpin of the first three decisions is the holding that our interpretation of ORS 166.025(1) is limited by prior New York case law. That linchpin, however, is flawed * * *.”

Willy, 155 Or App at 286.

The court reversed Clark, and all of its prior jurisprudence reliant upon New York interpretations, which included ORS 166.025(1), as the court noted:

“With that [New York] narrowed construction, we concluded that the statute posed no vagueness problem; we did not address whether the statute would have been unconstitutionally vague without the narrowing construction.”

Willy, 155 Or App at 284 (emphasis added).

So, post-Willy, all those cases upholding the statute against vagueness grounds are basically, as Macbeth might say, sound and fury signifying……

This story in the Oregonian is a great example of how easily a family, any family, can suddenly be caught up in the criminal justice system. Teenagers behave as…well….teenagers. And increasingly, those juvenile actions can become a crime. Especially worth noting is that these crimes could have been charged as a felony.

Note:  Bronson James LLC. did not represent any individuals in this case, and has no knowledge of the matter beyond what has been reported in the press.