City of Portland v. Welch

ON REHEARING

*318 Alexander G-. Brown, City Attorney, and Richard A. Braman and Delbert A. Weaver, Deputy City Attorneys, Portland, for the petition.

GOODWIN, J.

Courts traditionally seek to interpret legislation, if possible, to avoid rendering it invalid. In our previous opinion, handed down September 20, 1961, we followed this doctrine. We rested our decision on the fatal defect in the complaint so we would not have to reach the virtually obvious unconstitutionality of the ordinance if it granted plenary powers of censorship to a police officer. The complaint did not describe an offense. Accordingly, we reversed.

The city of Portland now seeks a rehearing on the ground that in avoiding the constitutional question we stepped outside the bounds of our statutory jurisdiction.

ORS 221.360 provides:

“In all cases involving the constitutionality of the charter provision or ordinance under which the conviction was obtained as indicated in ORS 221.350, such person shall have the right of appeal to the circuit court in the manner provided in ORS 221.350, regardless of any charter provision or ordinance prohibiting appeals from the municipal court because of the amount of the penalty or other-wise. An appeal may likewise be taken in such eases from the judgment or final order of the circuit court to the Supreme Court in the same manner as other appeals are taken from the circuit court to the Supreme Court in other criminal cases. Where the right of appeal in such cases depends upon there being involved an issue as to the constitutionality of the charter provision or ordinance, the decision *319 of the appellate court shall be upon such constitutional issue only.”

In City of Salem v. Polanski, 202 Or 504 , 276 P2d 407 , the defendant appealed from a conviction of violating an ordinance which denounced driving while under the influence of intoxicating liquor. As the defendant Polanski did not challenge the constitutionality of the ordinance, we dismissed his appeal.

The city of Portland now demands the same result. It contends that once we have construed the ordinance so as to avoid passing upon its constitutionality, our jurisdiction evaporates and we must ignore the fact that the complaint did not state an offense.

Granting that our jurisdiction is thus limited, the bizarre result demanded by the city need not necessarily follow. The doctrine of self-imposed judicial restraint, in the exercise of which we stopped short.of the constitutional question in our original opinion, has much to commend it; but it is not’ a procrustean device for amputating reason and logic. For a discussion of the conflicting results reached hy the United States Supreme Court on one aspect of judicial restraint, see Note, 53 Yale L J 788 (1944); 56 Harv L Rev 1162 (1943). See, also, Pollak, Mr. Justice Frankfurter: Judgment and the Fourteenth Amendment, 67 Yale L J 304, 315-16 (1957); Summers, Frankfurter, Labor Law and the Judge’s Function, 67 Yale L J 266, 272-76 (1957).

Under OES 221.360, as pressed upon us by the city, we cannot save the ordinance except 'by affirming a void conviction. Since the refusal to reach the constitutional question results in a patent absurdity, we must consider the constitutionality of the ordinance.

The licensing laws of the Seventeenth Century pro *320 ceeded upon the theory that ordinary folk did not know what was meet and proper; therefore, censors were designated to make wise choices in their behalf. 13 & 14 Car 2, ch 33 (1662). The only standards were the opinions of the censors. The draftsmen of the federal Bill of Bights failed to appreciate snch parliamentary solicitude for approved thinking, and rejected the entire scheme in 1789. See Madison’s Report on the Virginia Resolutions, 4 Elliot’s Deb (2d ed) 546, 567-76. It is self-evident that the draftsmen of Oregon’s basic charter wanted no censorship in Oregon.

6-8. Article I, § 8 of the Oregon Constitution reads:

“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right. — ”

As a preliminary matter, we note that this provision applies to moving pictures. Cf. Joseph Burstyn, Inc. v. Wilson, 343 US 495 , 72 S Ct 777 , 96 L Ed 1098 (1952). Article I, § 8, makes a sharp distinction between legislative restraint imposed prior to publication and penalties imposed afterward. Censorship by licensing is, of course, a prior restraint. One conspicuous vice of administrative licensing such as that challenged in the ease at bar is that, as a practical matter, it imposes the burden on the wrong party. Emerson, The Doctrine of Prior Restraint, 20 L & Contemp Prob 648, 655-60 (1955). After the censor has accomplished his work, there may be a right of appeal to an administrative agency and eventually to a court, but the appellant bears the very considerable burden of showing that the censor has abused his power. This shifting of the burden alone is repugnant to Article I, § 8.

*321 Although we rely upon our own constitution, we note that the ordinance is also repugnant to the First and Fourteenth Amendments of the United States Constitution, since it contains no constitutional standards for enforcement. Holmby Productions, Inc. v. Vaughn, 350 US 870 , 76 S Ct 117 , 100 L Ed 770 (1955); Superior Films v. Dept. of Education, 346 US 587 , 74 S Ct 286 , 98 L Ed 329 (1954); Gelling v. Texas, 343 US 960 , 72 S Ct 1002 , 96 L Ed 1359 (1952); Joseph Burstyn, Inc. v. Wilson, supra. See, also, dissenting opinion of Warren, C.J., in Times Film Corp. v. Chicago, 365 US 43 , 81 S Ct 391 , 5 L Ed2d 403 (1961). Despite the city’s reliance upon the provision in the ordinance for review by the city council, the ordinance remains repugnant to federal due process. The provision for review by the council merely substitutes the unguided discretion of a committee for that of its appointee. The council’s action in ratifying a particular instance of censorship can not cure the unconstitutional vagueness of the ordinance. William Goldman Theateres, Inc. v. Dana, 405 Pa 83, 173 A2d 59 (1961); Zenith International Film Corp. v. City of Chicago, Ill., 291 F2d 785 (7th Cir 1961). (Both decided in light of Times Film Corp. v. Chicago, supra.) See, also, State v. Corbisiero, 67 N J Super 170, 182, 170 A2d 74, 82 (1961).

The city has constitutional remedies at its disposal. An injunction may lie against a particular kind of communication, subject to Article I, § 8. See Crouch v. Central Labor Council, 134 Or 612 , 293 P 729 , 83 ALR 193 (1930). Further, it would seem that an injunction will lie against obscenity if the party seeking the remedy can prove a case in court. Cf. Kingsley Books, Inc. v. Brown, 354 US 436 , 77 S Ct 1325 , 1 L Ed2d 1469. It should be obvious that the city *322 has yet another protection against purveyors of obscenity. State v. Jackson, 224 Or 337 , 356 P2d 495 , points the way to a constitutional method for protecting the legitimate'public interest in freedom from commercial filth. Our constitution does not prohibit sending convicted obscenity dealers to jail; but it does forbid the censor usurping the function of judge and jury.

It is our conclusion that the rehearing must be denied, but that the former opinion must be modified in two pártieulars. First, the ordinance is unconstitutional. Second, the references in our former opinion to violations of the ordinance as “crimes” or “criminal” should die understood in light of the well-settled rule in' .this state that violations of city ordinances are not necessarily crimes. It was not intended to suggest otherwise.

Our former opinion is modified accordingly. The petition for rehearing is denied.