Argued and submitted June 5, 2013
On alternative writ of mandamus order dated January 29, 2013.[*] CC 111051946.
Jeremy Rice, Assistant Attorney General, Salem, argued the cause for relator State of Oregon. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Cody Hoesly, Larkins Vacura LLP, Portland, Cooperating Attorney for amicus curiae ACLU Foundation of Oregon, Inc., argued the cause for adverse party. With him on the amicus brief was Kevin Diaz, Legal Director, ACLU Foundation of Oregon, Inc.
Bronson James, Portland, filed a brief on behalf of amicus curiae, Oregon Criminal Defense Lawyers Association.
The right to a jury trial under Article I, section 11, of the Oregon Constitution, extends to "all criminal prosecutions." The issue in this mandamus proceeding is whether the state's election under ORS 161.566(1) to "treat" the misdemeanor offense of criminal trespass as a violation effectively decriminalized that offense and thereby deprived defendant of the jury trial right afforded her under Article I, section 11.
On October 11, 2011, defendant was arrested, handcuffed, booked, and lodged in jail along with other 49 other "Occupy Portland" protesters. She was then charged with second-degree criminal trespass, a Class C misdemeanor. See ORS 164.243 (so providing). At defendant's arraignment, the state elected to treat that charge as a violation pursuant to ORS 161.566(1). Under ORS 153.076, violation proceedings must be tried to the court, and certain other protections for criminal defendants are unavailable. After the state made its election, defendant filed a motion for a trial by jury. Relying on the Court of Appeals' recent decision in State v. Fuller, 252 Or.App. 391, 287 P.3d 1263 (2012) (holding that the defendant was entitled to a jury trial on charges of third-degree theft, notwithstanding the prosecutor's election to treat the offense as a violation), the trial court concluded that the violation charge against defendant qualified as a criminal prosecution under Article I, section 11. The trial court therefore granted defendant's motion for trial by jury, and the state filed a petition for a writ of mandamus in this court on that issue. For the reasons explained below, we agree with the trial court that defendant is entitled to a jury trial on the violation charge, although our reasoning differs in some respects from that of the Court of Appeals in Fuller and the trial court here. Accordingly, we dismiss the state's petition.
For various reasons, including budgetary constraints, legislatures around the country have relatively recently begun to treat certain offenses as violations. In Oregon, the legislature created an offense classification for violations in 1971, as part of a general revision to the criminal code. Or Laws 1971, ch 743, § 65; ORS 161.505 ("offense" is either a "crime" or a "violation"). Under that new classification, a violation was punishable by only a fine, forfeiture, or other civil penalty, and offenses that were either specifically designated as such or were punishable by only fines, forfeitures, or other civil penalties were to be considered violations. Or Laws 1971, ch 743, § 71. In 1987, the legislature enacted a statute giving trial courts the option to treat any misdemeanor charge except a misdemeanor created under the Oregon Vehicle Code as a violation if, before the defendant entered a plea to the charge, the court declared that it intended to do so and the state did not object. Former ORS 161.565(2) (1987). In 1989, the legislature altered the statutory scheme to provide that all misdemeanor charges would proceed as violations unless, before the defendant entered a plea to the charge, the district attorney declared on the record that the case would proceed as a misdemeanor. Former ORS 161.565(2) (1989). Finally, in 1999, the legislature repealed former ORS 161.565 and replaced it with ORS 161.566, which remains in effect today. Or Laws 1999, ch 1051, § 47, 49. In doing so, the legislature established a scheme in which misdemeanors now are tried as crimes rather than as violations, unless the state elects otherwise.
Under ORS 161.566(1), subject to exceptions not pertinent here, "a prosecuting attorney may elect to treat any misdemeanor as a Class A violation." The state merely needs to make that election by the time of the defendant's first appearance. The violation is then prosecuted without a jury or appointed counsel, the standard of proof is by a preponderance of the evidence, and various other rights of criminal defendants are eliminated. See ORS 153.076(1), (2), and (5) (setting out procedures for trial of violations). Thus, defendants in violation proceedings lose certain procedural safeguards against the risk of erroneous conviction. However, when a misdemeanor is treated as a violation, a conviction cannot lead to incarceration. See ORS 153.090 (setting out possible contents of judgments in violation proceedings).
The question in this mandamus proceeding is whether, notwithstanding the prosecutor's election to treat the misdemeanor offense of second-degree criminal trespass as a violation, defendant was entitled to a jury trial in this case. As an initial matter, we observe that, as a result of the prosecutor's election, defendant is not entitled to a jury trial under any statute. Although ORS 136.001(1) provides that defendants in "criminal" prosecutions "have the right to public trial by an impartial jury, " ORS 153.030(1) specifies that "[t]he procedures provided for in [ORS chapter 153] apply" to the prosecution of all violations described in ORS 153.008. ORS chapter 153, as we have noted, eliminates trial by jury and certain other rights of criminal defendants in violation proceedings, and ORS 153.008(1)(d), in turn, defines covered violations to include cases in which the prosecuting attorney has elected to treat an offense as a violation under ORS 161.566. Thus, notwithstanding that defendant initially was arrested for and charged with committing a misdemeanor offense, the prosecutor's election to treat that offense as a violation means that, under the applicable statutes, defendant is not entitled to a jury trial.
ORS 153.005(4) does not compel a different conclusion. That provision defines a "violation proceeding" as a proceeding initiated "by issuance of a citation, " which a "reduced" misdemeanor prosecution is not. As explained above, however, ORS 153.030 declares that the procedures set out in chapter 153 apply to all violations, including violations reduced from misdemeanors pursuant to ORS 161.566. That is, ORS 153.030 expressly incorporates all procedures from chapter 153 -- including those found in ORS 153.076 -- into proceedings that involve "reduced" misdemeanors. Thus, ORS 153.030 requires the application of ORS 153.076 in this case.
We turn, then, to consider whether the Oregon Constitution permits defendant to be deprived of a jury trial in this case. As noted, Article I, section 11, provides, in part, that, "[i]n all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed." Under Article I, section 11, whether a proceeding is a "criminal prosecution" is key to determining whether a jury trial and the other protections that Article I, section 11, affords defendants are required.
This court addressed the issue of what constitutes a "criminal prosecution" for purposes of the jury trial right in Article I, section 11, in Brown v. Multnomah County Dist. Court, 280 Or 95, 570 P.2d 52 (1977). In that case, the defendant had been charged with a first offense of driving under the influence of intoxicants (DUII), which the legislature had designated as a "traffic infraction" rather than a "traffic crime." Under then-applicable statutes, defendants being tried for traffic infractions did not, among other things, have the right to appointed counsel, the right to a jury trial, or the right to have the charged offense proved beyond a reasonable doubt. The issue before the court in Brown was whether, despite the legislature's effort to decriminalize a first DUII offense, that offense nonetheless remained a "criminal ...