By Mark Fefer
In a victory at the State Court of Appeals, a DWT team from Portland succeeded in overturning the conviction of several anti-war protestors who had been arrested for trespassing on the steps of the Oregon Capitol building.
An appellate panel ruled in April that the trial judge had erred in quashing DWT’s subpoena of two state legislators. The panel said the lawmakers were not immune from testifying and that their testimony could be used to determine whether the enforcement action against the protestors had violated their right of free expression, as DWT contends.
DWT attempted to get the rule under which the protestors were arrested—a ban on activity on the capitol steps between 11 p.m. and 7 a.m.—and the process under which that rule was created, declared a violation of the state constitution. But the appellate panel disagreed with those arguments. As a consequence, DWT will file a petition for review of the appellate court’s decision with the Oregon Supreme Court, says Portland associate Alan Galloway, who did much of the research for the First Amendment and state constitutional issues in the case.
The arrests took place in February 2009, following several months of round-the-clock protests at the Capitol against the deployment of Oregon National Guard troops to Iraq and Afghanistan. Previous arrests had aroused the interest of the ACLU, but charges were never filed by the county. This time, the state chose to prosecute.
At the trial stage, DWT sought to subpoena two high-ranking state legislators—the Senate president and the former House Speaker—in order to learn what discussions took place in the run-up to the decision to enforce the activity-ban against the protestors. As DWT noted at the trial and in its briefs, at least two groups—a church group conducting a Bible-reading marathon and participants in a three-on-three basketball tournament—had been previously permitted to use the steps overnight without interference.
Writing for the three-judge panel, Appeals Court Judge David Schuman found that the nighttime ban, created by a Legislative Administrative Committee, had been properly promulgated and authorized. But he said, whether the rule was properly enforced in this case “depends on whether the motive driving the enforcement was a desire to protect public safety, as the state maintains, or to stifle defendants’ expression, as they maintain.”
Construing the Debate Clause of the Oregon Constitution for the first time ever, Judge Schuman further held that the protections that the Debate Clause grants state legislators from being “questioned” extend only to legislative work, and do not insulate them from inquiries into discussions they might have had about enforcement.
DWT’s pro bono team on the matter was led by Tim Volpert. He and Galloway wrote the opening and reply briefs to the Court of Appeals, while Tim Cunningham helped with the supplemental brief, requested by the Court of Appeals, on the Debate Clause. Volpert, who is himself running for a seat on the Oregon Appeals Court this year, made the oral argument.
In April, Galloway was named the recipient of DWT’s 2012 Heart of Justice Award in part for his work on this matter.