State v. Babson

A Legislative Administration Committee (LAC) guideline prohibiting overnight stay on the Capitol grounds does not violate rights to expression and assembly found in Article 1, Sections 8 and 26, or the Oregon Constitution.

Defendant conducted an all night vigil on the steps of the Capitol. The Legislative Assembly Committee (LAC) controlled access to the Capitol steps. The LAC warned Defendant regarding the vigil being in violation of LAC guidelines prohibiting such activity. The LAC gave citations to Defendant after Defendant refused to move from the steps during overnight hours. On appeal, Defendant contended that the LAC guideline, and subsequent fines, violated Defendant's rights to freedom of expression and assembly as guaranteed to them in the Oregon Constitution. The Court found State v. Robertson controlled on the issue of interpreting the LAC guideline. Robertson set out three categories for determining whether the guideline operated within the appropriate scope of impingement of Constitutional rights: (1) whether the regulation aimed to control particular subject matter; (2) whether the regulation operated with over breadth; (3) whether the regulation focused only on forbidden effects. The Court held that a regulation must fall within the third category exclusively in order to allow an individual to challenge the regulation based on their individual circumstances. The Court acknowledged that, to this point in Oregon's jurisprudence, analysis under this third category was sparse. Thus, the Court imported a time, place, manner analysis from an analogous case as the rubrik for category three. See Outdoor Media Dimensions v. Dept. of Transportation, 340 Or 275 (2006). Remanded to permit Defendant's to question the co-chairs of the LAC about their role, if any, in enforcing the guideline against Defendant's. Based on that testimony and the other testimony presented, the trial court must determine whether enforcement of the guideline was a reasonable restriction on the time, place, and manner of Defendants' expression and assembly, or whether it targeted Defendants because they were engaged in expression and assembly, and therefore violated Article I, section 8, and Article I, section 26, as applied to Defendants. The decision of the Court of Appeals is affirmed. The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded for further proceedings.