State v. Keller , 40 Or. App. 143 ( 1979 )

JOSEPH, J.,

specially concurring.

Defendant spit on someone. He was charged with harassment under ORS 166.(^(lXa).¹ The question presented is whether that act was an "offensive physical contact.” On demurrer, the trial court said no; we say, "It can be.”

Once again, what the legislature "has forgotten we will stuff with cotton.”² And there is "solid” precedent for doing so. In State v. Sallinger, 11 Or App 592, 504 P2d 1383 (1973), the court supplied the words "striking, slapping, shoving, kicking, grabbing, and similar acts that are an interference with the 'contactee,’ regardless of whether they produce any pain or discomfort.” That was done to protect the statute from the otherwise obvious conclusion that no reasonable person (or jury) could tell what the words actually used in subparagraph (a) were intended to outlaw. Then, in State v. Zeit, 22 Or App 480, 539 P2d 1130, rev den (1975), the court saved subparagraph (c) by finding that dead-of-night telephone calls by a caller (whose identity was known to the victims) were "anonymously” done, and done "in a manner likely to cause annoyance or harm,” (thus mixing up the questions of intent and action). In State v. Larsen, 37 Or App 425, 588 P2d 41 (1978), we rescued subparagraph (c) once more by reading the words "to convey sexually offensive or threatening messages” into the statute because "it would have been difficult for the legislature to be more precise in defining this offense.”³ In this case we say subparagraph (a) covers anything a jury may be persuaded would offend them.

In this course of cases, there is one that "stands out like a petunia in an onion patch”: State v. Sanderson, 33 Or App 173, 575 P2d 1025 (1978). There, at 176-77, we phrased the standard for determining the quality of a statute under a "void-for-vagueness” attack in this way: .

"*** The basic deficiency is that the phrase 'alarms or seriously annoys’ gives no basis to distinguish between anti-social conduct which was intended to be prohibited and socially tolerable conduct which could not reasonably have been intended to be subject to criminal sanction. This is for two reasons: The over-generality of the language and its subjective quality.”

We proceeded to hold subparagraph (d) unconstitutional in these words:

"*** Thus, it appears that the legislature used deliberately general language to create a statute elastic enough to encompass a wide range of undefined conduct. It succeeded all too well. Because the legislative purpose in enacting the statute provides no basis for judicial narrowing of its scope, the statute is not susceptible to salvation by interpretation and it must be set aside. ***”

The conclusion just quoted found its base in a legislative admission that subsection (d) was intended as a "catchall,” but the faults cited apply to every jot and tittle of ORS 166.065G).⁴

Today we again rescue this catchall statute, this time by leaving the matter of its coverage to the jury. Given that the only issue before us is as narrow as it is, that does not incense me quite as much as the earlier cases do. I regret, however, that the majority’s response to Judge Buttler’s special concurrence may create additional confusion with its theatre crowd example. It is not necessary to talk about what "the legislature may have thought”; what it said is "with intent to harass, annoy or alarm.” And that, of course, is part of the problem.

I concur only because there is no constitutional question before us and because the result makes as much sense as anything else (except Sanderson) that we have done under the statute.

1 ORS 166.065:

"(1) A person commits the crime of harassment if, with intent to harass, annoy or alarm another person, he:

"(a) Subjects another to offensive physical contact; or

"(b) Publicly insults another by abusive or obscene words or gestures in a manner likely to provoke a violent or disorderly response; or

"(c) Communicates with a person, anonymously or otherwise, by telephone, mail or other form of written communication, in a manner likely to cause annoyance or alarm; or

"(d) Engages in a course of conduct that alarms or seriously annoys another person and which serves no legitimate purpose.

"(2) Harassment is a Class B misdemeanor.”

2 Citation omitted.

3 Apparently our function is to read the legislature’s actual words under the guidance of a wee small voice which is saying, "The legislators need all the help we can give them.” What we have done to save a related and at best equally vague statute (ORS 166.025) may be read in State v. Marker, 21 Or App 671, 536 P2d 1273 (1975); State v. Donahue, 39 Or App 79, 591 P2d 394 (1979); and State v. Clark, 39 Or App 63, 591 P2d 752 (1979). Those cases also suggest that we are generally willing to uphold statutes that give maximum broad discretion to the police and prosecutors even when we have to supply the operative wording of the statutory prohibition.

4 And also to ORS 166.025 in all probability. If this court had at the very outset not tried to rescue two vague statutes, we would not have found it necessary to engage in the sort of rationalistic maneuvering evidenced by Donahue and Clark, supra, n 4.