City of Lake Oswego v. Ritchie

DEITS, J.,

dissenting.

I disagree with the majority’s conclusion that ORS 153.595(1) does not allow the city to appeal a Lake Oswego Municipal Court acquittal of a charge of “speed racing,” former ORS 487.515 (now ORS 811.125), to circuit court for trial de novo.

ORS 153.595 provides:

“An appeal from a judgment involving a traffic infraction may be taken by either party:
“(1) From a proceeding in justice’s court or city court, as provided in ORS chapter 53 * * *.”

The majority concludes that ORS 153.595(1) does not allow a prosecutorial appeal of a municipal court acquittal because such a reading of the statute would conflict with the double jeopardy restrictions of ORS 131.515 and would be inconsistent with the legislature’s intent in the adoption of those statutes.

However, examination of the legislative history of 153.595(1) reveals that it was the intent of the legislature to allow such appeals. The statute had its genesis in Senate Bill 1, see Or Laws 1975, ch 451, § 140(b), a measure which significantly revised the Oregon traffic code. Language closely *441resembling present ORS 153.595(1)1 was introduced by Representative Bunn of the House Judiciary Committee in response to the following comment by Legislative Counsel:

“One other amendment suggested by Mick Gillette would be an amendment to permit the state to appeal a judgment in traffic infraction cases. Without the amendment, he is of the opinion that the state would not be able to appeal an adverse, an acquittal in a traffic infraction case.”2

The motion to amend Senate Bill 1 carried unanimously.

Similar intent may also be found elsewhere in the legislative history. For example, the Revised Summary of Proposed Vehicle Code prepared by the House Committee on Judiciary provides:

“This Article, sections 131 to 156, proposes four classes of a new, noncriminal offense denoted as a ‘traffic infraction.’ Except as otherwise specifically provided, e.g., a license suspension or other similar sanction, the penalty for committing a traffic infraction would be a fine only, with the maximum fines for each class as provided in section 133.
“In addition to proposing the new offense, the Article embodies new procedures for handling these offenses in the courts. Important changes in the existing adjudication procedures are made by the Article. For example, section 137 provides that trial of a traffic infraction would be by the court without a jury. The burden of proof standard would be a ‘preponderance of the evidence.’ Defense counsel would not be appointed, although a defendant, of course, could retain counsel. The state was granted a right to appeal from an acquittal of a traffic infraction. ” (Emphasis supplied.) House Committee on Judiciary, Exhibits, p 317, Senate Bill 1, Oregon State Archives, 1975. See also Proposed Oregon Vehicle Code 107, Commentary, § 140 (1975), quoted in State v. Marquette, 39 Or App 519, 522, 592 P2d 1062 (1979).

The majority correctly notes that, although Legislative Counsel stated that the proposal was intended to allow the state to appeal from an acquittal, the original proposal *442submitted by Representative Bunn would only have allowed appeals from convictions. Because of that inconsistency, the majority dismisses counsel’s statement as meaningless. If the clause “conviction for” had not later been replaced by “judgment involving,” I would agree. However, the change in language made the proposal consistent with counsel’s stated purpose as well as with the meaning given the section in the summary quoted above. Thus, I do not believe the relevance of these declarations of meaning should be so summarily dismissed. It is my belief that the substitution of language was undertaken to achieve Representative Bunn’s intent: to allow a state appeal from a justice court acquittal on a traffic infraction charge.

In construing an ambiguous statute, such as this one, the duty of this court is to construe the statute in a manner consistent with the legislature’s intent. The legislative record indicates that the purpose for the adoption of ORS 153.595(1) was to allow precisely the type of appeal taken by the City of Lake Oswego in this case. In addition, interpreting the statute to allow the state to appeal an acquittal is consistent with the general principle of statutory construction that, in case of a conflict between two statutes, a more specific act controls over a general one. Brooks v. City of Beaverton, 67 Or App 588, 679 P2d 343 (1984). In this case the legislature specifically authorized appeals by either party in these limited circumstances. This specific authorization should take precedence over the general double jeopardy prohibition. For these reasons, I would hold that the statutes allow the city to appeal the municipal court’s determination.

In view of my conclusion, it becomes necessary to determine whether, in allowing such appeals, ORS 153.595(1) violates the Article 1, § 12, prohibition against double jeopardy.3 I would hold that it does not. In Brown v. Multnomah County Dist. Ct., 280 Or 95, 570 P2d 52 (1977), the Supreme Court held that a first time offender charged with DUII is entitled to the same constitutional protections as an individual charged with a crime. In State v. Riggs, 35 Or App 571, 582 P2d 457 (1978), rev den (1979), this court, applying the Brown reasoning, afforded those protections to one *443charged with failure to perform the duties required of a driver involved in an accident causing only property damage (FPDD). Former ORS 483.604 (now ORS 811.700). However, in State v. Walter, 36 Or App 303, 584 P2d 356 (1978), rev den (1979), we held that a burden of proof beyond a reasonable doubt, one of the constitutional protections discussed in Brown, need not be applied in a trial on a speed racing charge. The factors which distinguished speed racing from DUII and FPDD were (1) DUII and FPDD were classified as major traffic offenses and speed racing was not, former ORS 484.010(5) (now ORS 153.500(5)), and (2) DUII and FPDD would be prosecuted as Class A misdemeanors if the defendant had been convicted of certain listed traffic infractions or crimes during the five-year period preceding the offense. Former 484.365(1).4 Although our holding in Walter was restricted to the determination of the burden of proof applicable to a trial for speed racing, I believe the Walter reasoning compels my conclusion. The legislature intended to decriminalize speed racing and successfully did so. ORS 811.125 (and former ORS 487.515) do not retain sufficient characteristics of criminality to fall within the ambit of Article I, § 12.

This amendment provided: “Section 140(b). An appeal from a conviction for a traffic infraction, except a traffic infraction prosecuted and made punishable as a Class A misdemeanor pursuant to Section 134 of this 1975 Act, may be taken by either party: (1) From a proceeding in justice court, as provided in ORS Chapter 53 * *

Tape recording, House Committee on Judiciary, May 30,1975,1:00 p.m., Side 1 at 490 et seq.

“No person shall be put in jeopardy twice for the same offence [sic].” Or Const, Art I, § 12.

First offenses under the statutes proscribing DUII and FPDD are now Class A misdemeanors. ORS 813.010; ORS 811.700.