The Washington Appeal Brief is also available on line with the record. These is also a page with links to the sections describing events as they occurred.

Page breaks have been moved slightly to avoid page splits in the middle of paragraphs. Hand written entries (signatures) are shown in italics and underlined. Also, the submitted Brief had a typo in the footer using a date of July 25, 2007 rather the actual date of July 25, 2006. Doh!

To Be Argued by
Brian P. Carr
Time: 15 minutes

Court of Appeals
State of Oregon

Case A132012

State of Oregon

Petitioner-Respondent

versus

Brian Patrick Carr

Defendant-Appellant

Appellant's Brief
Appeal from the Order of the Circuit Court
Multonomah County Case C 0923389
Honorable Julie E. Frantz
April 18, 2006

Brian P. Carr
11301 NE 7^th St, Apt J5
Vancouver, WA 98684
503-545-8357

Respondent:
Hardy Myers, #64007, Attorney General
Mary Williams, #91124, Solicitor General
Erika Hadlock, #91297
1162 Court Street NE
Salem, OR 97301
503-378-4402

Statement of the Case

Nature of the Proceeding

This matter concerns an arrest made by the Portland Police Bureau for an alleged Violation of a Restraining Order issued in Washington State under RCW 26.50 (Domestic Violence) and a Motion to have the record of the arrest expunged under ORS 137.225 which was denied for a purported lack of jurisdiction. Other issues raised were the lack of probable cause for the arrest and the validity of the order. Due process concerns were raised citing ORS 33.015-155, ORS 181-555, and OAR 257-010-0035 (3) as well as the due process and equal protection clauses of the Fourteenth Amendment of the U.S. Constitution

The trial court's narrow interpretations of the trial court's jurisdiction in ORS 137.225, ORS 33.015-155, ORS 181-555, and OAR 257-010-0035 (3) had the unfortunate effect of leaving gaps in the due process and equal protection under the law required by the Fourteenth Amendment of the U.S. Constitution.

Appellant seeks a reversal of the Order with the matter remanded to the Trial Court for a hearing under ORS 137.225 as well as an Order setting aside this and similar arrests, reversing similar convictions, and sealing the records these arrests and convictions. Also, remanding the matter to the Trial Court for a review of arrests by the Portland Police Bureau insuring equal protection under the law.

Basis for Appeal

The jurisdiction of the Court of Appeals is invoked as a special statutory proceeding under ORS 19.205 (4) which was initially applied to ORS 137.225 proceedings in State v. K.P., 324 Or 1 and confirmed in State v. Branstetter, 332 Or 389, 29 P3d 1131 (2001). The basis for this appeal is also directly under the Fourteenth Amendment of the U.S. Constitution.

The Order appealed from was entered on April 18, 2006 with the Notice of Appeal served and filed in a timely manner on April 20, 2006. (ER1)

Assignment of Error

Did the trial court err when it denied the Revised Motion to Set Aside? The trial court abused its discretion in not addressing the due process and equal protection under the law relief sought by the Defendant.

Issues

1. Can arrests and convictions for civil Restraining Order violations be Set Aside under ORS 137.225? The trial court answered in the negative.
2. Can arrests and convictions for Restraining Order violations which are defined as crimes be Set Aside under ORS 137.225? The trial court answered in the negative.
3. Must the trial court look beyond the statement of the District Attorney and at the applicable Orders and / or evidence of probable cause in determining just what crime, if any, an arrest was made for in ORS 137.225 proceedings? The trial court answered in the negative.
4. Can Oregon courts enforce Orders made by Washington Superior Court Commissioners if the Superior Court in that county made more than three cotemporaneous Commissioner appointments which are not for Family Court Commissioners? The trial court did not answer this question.
5. Is the Portland Police Bureau required to provide a process for correcting criminal records under ORS 181-555, and OAR 257-010-0035 (3)? The trial court answered in the negative.
6. Do Circuit Courts in the State of Oregon have jurisdiction to seal the records of law enforcement agencies under the due process and equal protection under the law provisions of the Fourteenth Amendment of the U.S. Constitution? The trial court answered in the negative.
   
   

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   Appellant's Brief July 25, 2006

   6 / 21

   
   
   
7. Can an agency of the state publish arrest or conviction records which are considered in hiring an individual when there was no legal order to justify the arrest or conviction? The trial court answered in the affirmative.
8. Can an agency of the state publish arrest records which are considered in hiring an individual when there was no probable cause to justify the arrest? The trial court answered in the affirmative.
9. Can an agency of the state publish arrest records which are considered in hiring an individual when the arrests demonstrate a sexual bias in enforcement of the law? The trial court answered in the affirmative.

Statement of the Facts

Background

In 1975, Mr. Carr graduated with honors with a B.E. from U.S.M.A., West Point, NY. In 1977, Mr. Carr received a M.A. in Computer Science (Applied Mathematics) from M.I.T., Cambridge, MA. Mr. Carr served in the Signal Corps with a Top Secret security clearance until 1982 when Mr. Carr left the U.S. Army as a Captain. (14 Af 03/13/06 15) Mr. Carr has no criminal record other than the contested arrest. (14 Af 03/13/06 Ex A)

Mr. Carr had been a member of Mensa for over a decade and in October of 2002 was attending a Mensa social function at the Mandarin House Restaurant in Portland, OR where he met Karyn. (14 Af 03/13/06 15) The parties were married on August 16, 2003, but there were problems in the marriage and Karyn filed for a divorce. (14 Af 03/13/06 15)

The Order

Karyn applied for an Order for Protection under RCW 26.50 to prohibit, amongst other things, Mr. Carr from attending Mensa functions. (14 Af 03/13/06 16, Ex D) The Order was granted on October, 27, 2004 by the Honorable Melnick, one of more than three Superior Court Commissioners in Clark County. There were no prohibitions against Mr. Carr attending Mensa functions. (14 Af 03/13/06 16, Ex E, Ex F)

The Arrest

On November 5, 2004, Mr. Carr was attending a Mensa function at the Mandarin House Restaurant. Karyn went to the restaurant but did not enter and instead called the police. Mr. Carr was never aware of her presence until after the police were escorting him out of the facility. (07 Af 11/28/05 2, 14 Af 03/13/06 17) The matter was dismissed (no complaint) on November 8, 2004 due to the lack of evidence that Mr. Carr's violation was willful. (Trn 04/13/06 5)

Due Process

In December of 2004, Mr. Carr obtained a copy of the arrest report from the Portland Police Bureau and inquired how he could have the record corrected as the arrest was not proper. The clerk referred him to http://www.co.multnomah.or.us/da/ and the 'Articles' and then 'Expungement' links which referenced Oregon Revised Statute 137.225 procedures. (14 Af 03/13/06 14, Ex B) Similarly Mr. Carr received a copy of his Criminal Record which listed no entries other than the arrest of November 5, 2004. (14 Af 03/13/06 Ex A) This arrest was described as being for trespass, domestic violence, and civil complaint of a violation of a restraining order. (14 Af 03/13/06 Ex A) At no time did the clerk mention any other procedure for correcting the record. The web pages describing how to get copies of records and the records themselves also made no such reference to other procedures for correcting the record. (14 Af 03/13/06 14)

Probable Cause

There was not any evidence in the police report of trespass (the restaurant was open and there was no complaint from the owner), domestic violence (no violence or threat of violence is described), or a violation of a restraining order (the order referred to prohibits 'knowingly remain' but there is no evidence that Mr. Carr knew of Karyn's presence). (14 Af 03/13/06 14, 17, Ex B)

Impact of Criminal Record on Livelihood

Mr. Carr has an otherwise spotless record and this arrest and the underlying Order have had a significant detriment in his ability to seek employment as well as making him a likely candidate for searches as a potential terrorist.(14 Af 03/13/06 18)

The Motion

On November 28, 2005, Mr. Carr submitted a motion to the trial court to have the arrest expunged in accordance with ORS 137.225 as well as due to the lack of validity of the order or probable cause of any violation thereof. (06 Mt 11/28/05) On February 21, 2006, the District Attorney's office submitted opposing papers with a hearing on the matter scheduled for April 13, 2006. (10 Op 02/21/06) Mr. Carr submitted a Revised Motion expanding the requested relief (12 RvMt 03/13/06) as well as adding ORS 33.015-155, ORS 181-555, OAR 257-010-0035 (3) and due process and equal protection under the law of the Fourteenth Amendment to the basis for the relief sought. (13 RvML 03/13/06 4-13)

Sexual Stereotyping

Scientific peer reviewed studies of domestic violence indicate that in our society at this time women are as likely to physically abuse their domestic partner as men¹. This is in distinct contrast to general perceptions as well as the prosecution of offenders where men are held to be the primary source of domestic violence. This discrepancy is likely explained by the subtle condoning of physical abuse of men by women within our society which certainly includes the lack of enforcement of the law. (13 RvM 03/13/06 12,13)

Argument

1. Civil Restraining Order under ORS 137.225

1. The trial court stated 'an arrest for VRO can not be considered an arrest for a crime so the court denies your motion to set aside.' (Trn 04/13/06 6). While ORS 137.225 (1) (a) restricts the expungement of convictions to particular crimes listed in ORS 137.225 (5), that list with a few specified exceptions is quite broad including any Class C felony, misdemeanor or violation of state law or local ordinance. Further, ORS 137.225 (1) (b) provides for the expungement 'of any arrest, if no accusatory instrument was filed' with no mention of crime other than 'apply to the court which would have jurisdiction over the crime for which the person was arrested'. This last reference to a crime is clearly meant to determine which court should hear the matter and not restrict the classes of arrest which can be expunged and there was no confusion as to what court would hear the matter.

   In Hathaway v. Hart, 300 Or 231, 708 P2d 1137 (1985):

   The defendant argued, and the Court of Appeals correctly held, that the proceeding at issue here was for criminal and not civil contempt. As we said in State v. Thompson, 294 Or 528, 531, 659 P2d 383 (1983), "a penalty for contempt [is] 'civil' when it is imposed in order to compel compliance with an order and will end as soon as the respondent complies, and [is] 'criminal' when it is imposed for a completed contempt that can no longer be avoided by belated compliance." See State ex rel Dwyer v. Dwyer, supra, 299 Or at 111; In re hanks, 290 Or 451, 458 n 10, 623 P2d 623 (1981).

   This clearly indicates that violations of restraining orders are criminal contempt proceedings with all the associated statutory protections of criminal proceedings except for a trial by jury.

   
   

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   Appellant's Brief July 25, 2006

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   ORS 33 includes:

   33.015 Definitions for ORS 33.015 to 33.155. For the purposes of ORS 33.015 to 33.155: ...

   (2) “Contempt of court” means the following acts, done willfully:...

   (b) Disobedience of, resistance to or obstruction of the court’s authority, process, orders or judgments; ...

   (3) “Punitive sanction” means a sanction imposed to punish a past contempt of court...

   33.065 Procedure for imposition of punitive sanctions. ...

   (6) Except for the right to a jury trial, the defendant is entitled to the

   constitutional and statutory protections, including the right to appointed counsel, that a defendant would be entitled to in a criminal proceeding in which the fine or term of imprisonment that could be imposed is equivalent to the punitive sanctions sought in the contempt proceeding. This subsection does not affect any right to a jury that may otherwise be created by statute.

   Of particular note is that the defendant in a criminal contempt proceeding is entitled to virtually all the constitutional and statutory protections for a crime with equivalent sanctions. Assuming the restraining order violation did not entail sex crimes or child molestation, the sanctions would be equivalent to some Class C felony or misdemeanor, and, as such, these statutory protections would certainly include the right to have the arrest and / or conviction expunged.

   While it could be argued that the restrictions of ORS 137.225 (5) to specific listed crimes overrides the broad protections of ORS 33.065, this does not make sense as the listed crimes include most Class C felonies and misdemeanors. Further, this interpretation contradicts the Fourteenth Amendment requirements for due process in that there is no rational basis for making the consequences of actual crimes less serious than civil offenses.

   Oregon is one of the few states which has maintained domestic violence and their resolution as a non criminal procedure. Bachman v. Bachman, 171 Or App 665, 16 P3d 1185 (2000) . In Hathaway v. Hart, 300 Or 231, 708 P2d 1137 (1985):

   The essence of [FAPA] is to prevent acts of family violence through restraining orders and, if the court orders are disobeyed, to provide legal sanctions for the violations of the orders because ordinary criminal actions at law were found to be inadequate to achieve this desired legislative result.

The legislature intentionally avoided criminal procedures and the associated stigma to encourage the use of FAPA by abuse victims who might be hesitant to invoke criminal processes against a family member. However, it is irrational to then interpret ORS 33.065 in a narrow fashion excluding domestic violence from the relief provided by ORS 137.225, thereby increasing the stigma and consequences of domestic violence. The legislature clearly was able to craft ORS 137.225 to maintain records where they were deemed important as in sex crimes which have a historically high rate of recidivism. The only reasonable interpretation of ORS 33.065 and ORS 137.225 is that arrests and convictions for violations of civil restraining orders can be expunged in accordance with ORS 137.225.

There is an interesting facet of the application ORS 33.065, which provides certain rights to defendants without any corresponding penalties. Arrests and convictions for these 'civil' contempt proceedings can not be used to preclude other arrests and convictions from being expunged (as they are not qualifying crimes as listed in ORS 137.225 (5)), but can be expunged themselves without any limit on frequency of application.

As the restraining order in this particular case is not under FAPA, the Court Appeals may find that the trial court incorrectly treated this arrest as a 'civil' contempt proceeding and, as such, this question could be considered moot. However, the Court of Appeals is asked to answer this question in any case as the Appellant has not found any published cases discussing these issues and the Multnomah Circuit Court has relied on an unpublished decision, Jane E. Levens v. Judith A. Zineski, Case No 9503-63306 for all 'civil' VRO Expungement proceedings (10 St Opp 02/21/06, Pg 3, Ex #1) and there is a clear general need for a published decision on FAPA orders under ORS 137.225.

The Court of Appeals is asked to remand this case to the Trial Court for a hearing under ORS 137.225 as no hearing was held based on the classification of the underlying VRO as civil.

2. Violations of Restraining Orders Defined as Crimes

2. The trial court justified the denial of the motion with 'Contempt of Court is not a criminal conviction so an arrest for VRO can not be considered an arrest for a crime so the court denies your motion to set aside.' (Trn 04/13/06 6), but this neglects those cases where violations of court orders are defined to be crimes as in ORS 163.750:

   ORS 163.750 Violating court’s stalking protective order.
   (1) A person commits the crime of violating a court’s stalking protective order...
   (2)(a) Violating a court’s stalking protective order is a Class A misdemeanor.

   which clearly falls within the requirements of ORS 137.225 (5) where misdemeanors are specifically listed as eligible crimes.

   Similarly, violations of Washington Orders for Protection under RCW 26.50 are clearly delineated as crimes as in RCW 26.50.110:

   Whenever an order is granted under this chapter ... and the respondent or person to be restrained knows of the order, a violation of the restraint provisions... is a gross misdemeanor ... [or a more serious crime]

   which also falls within the requirements of ORS 137.225 (5) where misdemeanors are specifically listed as eligible crimes. While the trial court may have considered Washington RCW 26.50 restraining orders as most similar to Oregon FAPA restraining orders, they are, in fact, most similar to ORS 163.750 stalking protective orders (SPO), violations of which are clearly delineated as crimes and, as such, eligible for expungement under ORS 137.225.

   The Court of Appeals is asked to remand this case to the Trial Court for a hearing under ORS 137.225 as no hearing was held and as this and similar actual and alleged violations of restraining orders (VRO) are criminal in nature.

3. Nature of Crime Determinations

3. If the Court of Appeals holds that ORS 137.225 (1) (b) requires that the arrest be for a crime, then there must be a determination of what crimes, if any, the arrest was for. The trial court noted 'this court is confined to the statutory requirements under 137.225 and is not legally entitled to look behind the arrest to determine whether the arrest had probable cause or address the other points that you raised' (22 Trn 04/13/06 6), but that overlooks the details of ORS 137.225. In order to make a determination of whether an arrest can be expunged under ORS 137.225, the court must make a determination of what crime, if any, the arrest was made for. The court can not simply rely on the determination of the District Attorney's office as this would violate the due process requirements of the Fourteenth Amendment. Were the District Attorney permitted to typify the arrest however it chose, the District Attorney's Office could prevent any arrest from being expunged by simply contending that it was for a civil violation of a restraining order (whether or not the order itself was valid or even existed) and whether or not there was probable cause of the violation. This would allow the District Attorney's Office to unreasonably impact an individual's livelihood as there would not be any of the required elements for due process.

   Mr. Carr's criminal record report (14 Af 03/13/06 Ex A) indicates that the arrest was for 'trespass' and 'domestic violence' as well as the violation of a restraining order which was inaccurately categorized as civil. Each of the earlier offenses would be eligible for expungement were it determined that they were for crimes. In order to make this determination, the court must review the evidence in the record and determine what crime the defendant was arrested for.

   However, this determination is problematic in this case as there was not probable cause for any of the crimes listed and it can only be concluded that the arrest was not for any crime or violation of a state law or local ordinance (the arrest was completely without justification). A simple reading of the ORS 137.225 would suggest that arrests which are without justification of any kind can not be expunged as they are not for any crime. However, this interpretation, while possible from a strict reading of the statute, has the effect of making the statute unconstitutional as it would violate the Fourteenth Amendment requirements for equal protection under the law; there is no rational basis for making the consequences of actual crimes less serious than those cases where there was no crime at all.

It is always preferable to interpret a statute is such a way that it is constitutional and this requires that ORS 137.225 be interpreted to include the ability to expunge entries in an individual's criminal record where no crime or violation of state law or local ordinance can be associated with the entry. Indeed, were the Portland Police Bureau to start including purely civil matters such as eviction orders in the criminal record which is shared with other agencies and used in making employment decisions, then the court must allow those entries to be expunged via ORS 137.225. Any entry in the criminal record which is accessed for making employment decisions can be considered for expungement though arrests and convictions for actual crimes or violations of a state law or local ordinance could have expungement limited as described in ORS 137.225 (5).




As with civil violations of restraining orders (FAPA), the court is faced with the case where arrests are eligible for expungement (when there is no valid order and / or probable cause) but which can not be used to block the expungement of other arrests or convictions.




4. Validity of the Order

4. While the Appellant has appealed the validity of the Order for Protection under RCW 26.50 in Washington state due to the number of Superior Court Commissioners appointed in Clark County, the Court of Appeals (Case 32671-0-II) did not address that issue and the Washington Supreme Court (case 78768-9 ) has been asked to address the issue. Until such time as the Washington court address the issue, the Oregon courts must determine the validity of such orders. If the issuing authority was not properly appointed to hear such matters (i.e. had no jurisdiction), then the order had no validity and the police had no authority to enforce such an order.

   Washington Constitution Article IV, Section 23 states

   There may be appointed in each county, by the judge of the superior court having jurisdiction therein, one or more court commissioners, not exceeding three in number, who shall have authority to perform like duties as a judge of the superior court at chambers...