OrCon Law

Not so fast, KGW

So KGW thinks that ""Oregon High Court Rules Live Sex Shows Should Be Allowed." Perhaps its reporters did not read the opinion. Mr. Ciancanelli LOST -- he didn't win. The eloquent first 3/4 of the opinion, with its very important and helpful clarification of Robertson, is of little comfort to Mr. Ciancanelli. Live sex shows can now be prosecuted under the "promoting prostitution" statute. This opinion will be the death knell of adult video stores and every other kind of provider of movies that show two adults engaged for pay in "sexual conduct" or "sexual contact" as defined in ORS 167.002.

A person promotes prostitution if, with intent to promote prostitution, the person "receives *** money *** pursuant to an *** understanding that the money *** is derived from a prostitution activity." ORS 167.012. Surely a person who makes a film of the activity that went on in Mr. Ciancanelli's establishment is "promoting prostitution" just as much as Mr. Ciancanelli was. And how about the purchaser? Or the hotel that sells such films to its guests on a pay-per-view basis?

Supreme Court Reaffirms Robertson Framework

In State v. Ciancanelli, (Gillette, J.)  the Supreme Court reaffirmed the Robertson framework as the proper structure for analyzing Article I, section 8 claims and, applying that framework, held that ORS 167.062, which criminalizes the directing, financing, presentation, etc. of live public sex shows, violates Article I, section 8.  The Court categorically declined to adopt a "balancing test" approach to Article I, section 8, analysis.  Justice De Muniz dissented; Justice Kistler did not participate in the decision.  Then, applying its Ciancanelli analysis, in City of Nyssa v. Dufloth, (Gillette, J.), the Court concluded that the Nyssa ordinance requiring nude dancers to perform at least four feet away from their audiences was facially unconstitutional under Article I, section 8.  Again, Justice De Muniz dissented and Justice Kistler did not participate.   Although each opinion contains significant legal analysis that will keep us talking for months or years to come, the AP has summed up the rulings as follows:  "Oregon High Court Rules Live Sex Shows Should Be Allowed."(This is a link to KGW.com; a subscription may be required).

Big Day for Article I, Section 8, Tomorrow

The Oregon Supreme Court reports that it will issue six opinions tomorrow, including the decisions on review in State v. Ciancanelli (does statute barring live public sex shows violate Article I, Section 8), and City of Nyssa v. Dufloth (does ordinance barring nude dancing within four feet of audience members violate Article I, section 8), which are, plainly, significant cases on the relationship between sexual conduct and constitutionally-protected speech.

2005 Con Law Section CLE: Message from the Section Executive Committee

If you are an OSB member, you should be receiving the brochure and registration information for this year's November 4 Constitutional Law Section CLE within the next few days, if you haven't already.  Seating for lunch is extremely limited so we urge you to register early in order to ensure a spot at a table.  Last year, we had to turn away requests for the limited lunch spots, and we expect we will have to do so again this year. Regretfully, a larger room is unavailable.
 
As a reminder, our lunchtime speakers are Jeffrey Dobbins of Perkins Coie, Stephen Walters of Stoel Rives, James Gardner of Gardner and Gardner, and Cory Streisinger, the Director of Oregon's Department of Consumer and Business Services.   They will talk about their experiences clerking at the U.S. Supreme Court.  Our CLE featured speakers are Professors Mark Tushnet and Jesse Choper, who have both published extensively on the Supreme Court.  Both will discuss the Legacy of the Rehnquist Court and Professor Tushnet will wrap-up the recent and upcoming Supreme Court terms.  Our other panels will address the Oregon Death with Dignity Act case that will be argued before the Supreme Court this coming October, just before the CLE, and Recent Developments in Oregon Constitutional Law.

In addition, the Section will hold its annual meeting after lunch, just before the afternoon session of the CLE begins.

Imposition of mandatory minimum sentence based on judicially-found facts does not violate the Sixth Amendment

according to the Ninth Circuit in United States v. Dare (9th Cir. Sept. 23, 2005).  Writing for the majority, Judge Leavy concluded that under Harris v. United States, the district court did not violate the Sixth Amendment by imposing a mandatory minimum sentence based on facts found by the judge by a preponderance of the evidence.  Judge Bea dissented, concluding that under Blakely v. Washington and United States v. Booker, Harris is not longer good law and that, under the reasoning in those cases, a court may not, consistent with the Sixth Amendment, impose a sentence in excess of the sentence that it can impose based on facts admitted by the defendant or found by the jury beyond a reasonable doubt.

Judicial Conference endorses rule permitting citation of unpublished decisions

The Judicial Conference (the policy-making body for the federal judiciary) has announced that it supports a rule change to permit citation to unpublished decisions.  Read about it here.

What are we entitled to know about judges?

I responded yesterday to a post by Erin Lagesen and a comment by Ed Trompke, regarding the question of how much a candidate for a judgeship should be expected to reveal to those who are responsible for deciding whether to elect the candidate (in the case of judicial elections, as in Oregon) or to confirm the candidate's nomination (in the case of the federal bench).

People for the American Way has just released its report opposing the confirmation of Judge Roberts.  Regardless of how one feels about the merits of the Roberts nomination, PFAW makes some interesting points about his refusal to answer questions.

http://media.pfaw.org/Final_Post_Hearing_Report.pdf

Recitation of Pledge of Allegiance in Schools Unconstitutional

Once again the Pledge of Allegiance is the subject of litigation here on the west coast.  AP Coverage of the ruling by a federal district court in Sacramento is accessible here.

How much should judicial candidates talk?

With the hearings on The Roberts Nomination in progress, and with an Oregon Supreme Court race on the horizon as the result of Chief Justice Carson's retirement, one topic on the minds of constitutional scholars, senators, and journalists, is what, if anything, a judicial candidate should reveal about his or her views on legal, social, and political issues that may come before the court on for which he or she is a candidate.  Roberts has already revealed this much in his written responses to the Senate Judiciary questions.  Should he tell more?  Or, given that the judicial role is to decide specific cases before the court, does it conflict with that role to compel a judicial candidate to resolve hypothetical cases in the confirmation process?  Should a candidate for an elected judicial position be more forthcoming than one for an unelected position?  Is there a tension between ethical constraints on judicial candidates' speech and those candidates speech rights under the state and federal constitutions?  I'm sure the debate will continue here at OrConLaw over the next weeks and months.

Oregon Supreme Court holds that statute barring recovery of noneconomic damages by uninsured motorists does not violate Article I, section 10 or Article I, section 17

In Lawson v. Hoke, (Gillette, J.), the Supreme Court held that ORS 37.715(1), which precludes a plaintiff from recovering noneconomic damages in an action for death or injury arising out of the operation of a motor vehicle if that plaintiff was driving without insurance, does not deprive a plaintiff of a constitutionally-protected remedy, in violation of Article I, section 10 of the Oregon Constitution.  The court held further that the uninsured motorist statute did not violate any Article I, section 17, right to a jury trial.  Because the court "found no Oregon cases from around the time of the adoption of the Oregon Constitution that so closely match the circumstances of this case that they are dispositive," it turned to other sources to guide its analysis of the drafters' intent: roughly contemporaneous cases from other jurisdictions, as well as Oregon cases decided in the decades shortly after the adoption of the constitution."

Justice De Muniz, joined by Justices Durham and Riggs, dissented.  In their view, a plaintiff has an "absolute common-law right" to seek noneconomic damages for harm caused by a negligent driver that Article I, section 10, bars the legislature from limiting.