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City of Eugene v. Hejazi

Court of Appeals of Oregon

February 21, 2019

CITY OF EUGENE, Plaintiff-Respondent,
v.
HAMID MICHAEL HEJAZI, Defendant-Appellant.

          Submitted January 4, 2019

          Lane County Circuit Court 17VI209537 Maurice K. Merten, Judge.

          Hamid Michael Hejazi fled the brief pro se.

          Ben Miller fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         After a confrontation in a park between defendant and others, defendant was cited for and found to have violated provisions of the City of Eugene's park rules. He appealed that judgment to the circuit court, which likewise found him to have violated the rules after a trial de novo. He now appeals the circuit court judgment, arguing, among other contentions, that the ordinance that adopted the park rules, and which he was found to have violated, cannot be constitutionally applied to him. The city responds that this court lacks jurisdiction to hear the appeal but that, in any event, the appeal has no merit. Held: Under ORS 221.360, the Court of Appeals has jurisdiction to consider defendant's contention that the city's ordinance, as drafted and enforced in this circumstance, violates his constitutional rights; however, none of the arguments raised in defendant's appeal provided any basis on which to reverse the circuit court's judgment.

         Affirmed.

         [296 Or.App. 205] LAGESEN, P. J.

         After a confrontation in a park between defendant and others, defendant was cited for violating the City of Eugene's Park and Open Space Rules. Those rules, which were adopted by Administrative Order No. 58-17-07-F, make it unlawful to "participat [e] in a disturbance or riotous behavior that interferes with the reasonable use by the general public of the park, open space, or facility," Rule 1.010(4), or to "[e]ngag[e] in any activity or conduct within a park, open space area, or park facility that is prohibited by these rules, state statutes, the Eugene Code, 1971, or posted signs," Rule 1.010(15). After a trial in municipal court, defendant was found to have violated those rules. He then appealed that decision to the circuit court. See ORS 221.359(2) ("Except as provided [for municipal courts that have become courts of record], in a prosecution of any offense defined and made punishable by any city charter or ordinance, a plaintiff may appeal to the circuit court within whose jurisdiction the city has its legal situs and maintains its seat of city government in the manner provided by ORS 157.020(2) for taking appeals from justice courts.").

         The circuit court, after a trial de novo, likewise found that defendant had violated the park rules and fined him $150. He now appeals to this court, asserting that we have jurisdiction pursuant to ORS 138.057(2). That statute provides that "[a]n appeal from a judgment involving a violation entered by a circuit court may be taken as provided in ORS chapter 19."

         Notwithstanding the plain text of that provision, the City of Eugene disputes that we have jurisdiction to hear the appeal. It argues that the statute is inapplicable in light of our decision in City of Lowell v. Wilson, 197 Or.App. 291, 105 P.3d 856, rev den, 339 Or. 406 (2005). In that case, we recognized that "ORS 138.057 appears to confer an unqualified right to appeal to this court from convictions for violations in municipal court," but we held that, even so, "in the circumstances presented here-viz., an appeal arising from a municipal court conviction for violation of a municipal code provision-ORS 138.057 does not apply" and that the "sole potential source of our jurisdiction is ORS 221.360 [296 Or.App. 206] as construed in [City of Salem v. Polanski, 202 Or. 504, 276 P.2d 407 (1954)]." Wilson, 197 Or.App. at 309, 311 (emphasis in Wilson).

         The statute we held to be applicable in Wilson provides:

"In all cases involving the constitutionality of the charter provision or ordinance under which the conviction was obtained as indicated in ORS 221.359, such person shall have the right of appeal to the circuit court in the manner provided in ORS 221.359, regardless of any charter provision or ordinance prohibiting appeals from the municipal court because of the amount of the penalty or otherwise. An appeal may likewise be taken in such cases from the judgment or final order of the circuit court to the Court of Appeals in the same manner as other appeals are taken from the circuit court to the Court of Appeals in other criminal cases. Where the right of appeal in such cases depends upon there being ...

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