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State v. Babson

Supreme Court of Oregon, En Banc

May 15, 2014

STATE OF OREGON, Petitioner-Respondent on Review,
v.
MARK N. BABSON, Respondent-Petitioner on Review. STATE OF OREGON, Petitioner-Respondent on Review,
v.
MICHELE C. DARR, Respondent-Petitioner on Review. STATE OF OREGON, Petitioner-Respondent on Review,
v.
TERESA L. GOOCH, Respondent-Petitioner on Review. STATE OF OREGON, Petitioner-Respondent on Review,
v.
MARGARET M. MORTON, Respondent-Petitioner on Review. STATE OF OREGON, Petitioner-Respondent on Review,
v.
GEORGE G. MEEK, Respondent-Petitioner on Review. STATE OF OREGON, Petitioner-Respondent on Review,
v.
GREGORY J. CLELAND, Respondent-Petitioner on Review

Argued and Submitted June 13, 2013.

Page 560

[Copyrighted Material Omitted]

Page 561

[Copyrighted Material Omitted]

Page 562

CC 09C41582; CA A144037 (Control); CC 09C41583; CA A144037 (Control); CA A144038; CC 09C41584; CA A144037 (Control); CA A144039; CC 09C41593; CA A144037 (Control); CA A144042; CC 09C41594; CA A144037 (Control); CA A144043; CC 09C41581; CA A144037 (Control); CA A144345. On review from the Court of Appeals.[*]

Timothy R. Volpert, Portland, on behalf of ACLU Foundation of Oregon, Inc., argued the cause and filed the briefs for respondent-petitioner on review Mark N. Babson, Michele C. Darr, Teresa L. Gooch, Margaret M. Morton, and George G. Meek. With him on the briefs were Alan J. Galloway, Tim Cunningham, and Michael E. Swaim.

Jossi Davidson, Silverton, on behalf of ACLU Foundation of Oregon, Inc., argued the cause and filed the brief for respondent-petitioner on review Gregory J. Cleland.

Carson L. Whitehead, Assistant Attorney General, and Anna M. Joyce, Solicitor General, argued the cause and filed the briefs for petitioner-respondent on review State of Oregon. With them on the briefs was Ellen F. Rosenblum, Attorney General.

Dexter A. Johnson, Legislative Counsel, Salem, filed a brief for amicus curiae Oregon Legislative Assembly in S060455.

OPINION

Page 563

[355 Or. 386] BALMER, C. J.

Defendants held an around-the-clock vigil on the steps of the state capitol building to protest the deployment of Oregon National Guard troops to Iraq and Afghanistan. During that vigil, the state police cited defendants for second-degree criminal trespass when they remained on the capitol steps after 11:00 p.m., in violation of a Legislative Administration Committee (LAC) guideline that prohibited " [o]vernight use" of the steps between 11:00 p.m. and 7:00 a.m., except in limited circumstances. Defendants challenged those citations, arguing that the LAC guideline was unconstitutional under Article I, section 8, and Article I, section 26, of the Oregon Constitution -- the provisions protecting free expression and the right to assemble, instruct representatives, and apply for redress of grievances. Defendants also argued that the LAC guideline violated the First Amendment to the United States Constitution. The trial court rejected those arguments and found defendants guilty of second-degree criminal trespass. On appeal, the Court of Appeals similarly rejected defendants' facial challenges to the guideline under the Oregon Constitution, but remanded defendants' as-applied challenges to allow ...


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