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To Be Argued by
Brian P. Carr
Time: 15 minutes
Court of Appeals
State of Oregon
State of Oregon
Brian Patrick Carr
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 7th St, Apt J5
Vancouver, WA 98684
Hardy Myers, #64007, Attorney General
Mary Williams, #91124, Solicitor General
Erika Hadlock, #91297
1162 Court Street NE
Salem, OR 97301
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Table of Contents
1. Civil Restraining Order under ORS 137.225 9
2. Violations of Restraining Orders Defined as Crimes 12
3. Nature of Crime Determinations 12
4. Validity of the Order 14
5. Requirement to correct entries in Criminal Record 16
6. Due Process and Equal Protection Jurisdiction 17
7. Publishing Records resulting from invalid Order 18
8. Publishing Records from arrest without Probable Cause 18
9. Publishing Records biased with Sexual Stereotyping 18
References to Record
06 Motion to Set Aside, 11/28/2005 8
07 Affidavit in Support, 11/28/2005 7
10 State's Opposition to Motion, 02/21/2006 8, 11
11 State's Memorandum, 02/21/2006 11
12 Revised Motion, 03/13/2006 8
13 Memorandum of Law, 03/13/2006 8, 9
14 Affidavit in Support, 03/13/2006 6, 7, 8
14 Affidavit in Support, 03/13/2006 Exhibit A 6, 7, 13
14 Affidavit in Support, 03/13/2006 Exhibit B 7, 8
14 Affidavit in Support, 03/13/2006 Exhibit D 7
14 Affidavit in Support, 03/13/2006 Exhibit E 7
14 Affidavit in Support, 03/13/2006 Exhibit F 7, 15
18 Order entered 04/18/2006 4
Transcript of Hearing, 04/13/2006 7, 9, 12, 13
Notice of Appeal 04/20/2006 4
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References to Cases, Papers
Bachman v. Bachman, 171 Or App 665 10
Barker v. Barker, 31 Wn. (2d) 506 15
Beyerle v. Bartsch, 111 Wash. 287 15
Cooley v. Fredinburg, 144 Or App 410 15
Current Controversies on Family Violence, Donileen Loseke, Sage Publications 8
Hathaway v. Hart, 300 Or 231 9, 10
Intimate Violence in Families, Richard J. Gelles, Sage Publications 8
Levens v. Zineski, 9503-63306 11
Li v. State of Oregon, 338 Or 376 15
Marbury v. Madison, 1 Cranch 137 17
Montoya v Housing Authority of Portland, 192 Or App 408 15
Ordell v. Gaddis, 99 Wn.2d 409 15
Springer v. Oregon, 50 Or App 5 17
State ex rel Dwyer v. Dwyer, supra, 299 Or at 111 9
State v. Branstetter, 332 Or 389 4
State v. K.P., 324 Or 1 4
State v. Thompson, 294 Or 528 9
Utsey v. Coos County, 176 Or App 524 17
What is the Truth About Family Violence? A 1999 report from Family Resources & Research 8
References to Statutes, Rules, Constitution
OAR 257-010-0035 16
OAR 257-010-0035 (3) 4, 5, 8, 20
ORS 019.205 4
ORS 033.015-155 4, 8, 9
ORS 033.065 10, 11, 20
ORS 107.700 - FAPA 10, 11, 12, 14, 19
ORS 137.225 4, 5, 7, 8, 9, 11, 12, 13, 14, 16, 17, 18, 20
ORS 137.225 (1) 9, 12
ORS 137.225 (5) 9, 10, 11, 12, 14
ORS 163.750 12
ORS 181-555 4, 5, 8, 20
ORS 183.555 16
RCW 26.12.010 15
RCW 26.12.050 (3) 15
RCW 26.50 4, 6, 12, 14, 15
RCW 26.50.110 12
U.S. Constitution, 14th Amendment 4, 6, 8, 10, 13, 17, 18, 20
Washington Constitution Article IV, Section 23 14, 15
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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)
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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.
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Statement of the Facts
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)
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)
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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)
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)
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)
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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)
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)
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)__________________________________
1 Thousands of couples were involved in these studies. The conclusions are based on more than 20 years of research. For the average of reports by both males and females: Husband on wife severe assault occurred at a rate of 2.0%, whereas wife on husband severe assault occurred at a rate of 4.6%. and Husband on wife minor assault occurred at a rate of 9.9%, whereas wife on husband assault occurred at a rate of 9.5%.
What is the Truth About Family Violence? A
1999 report from Family Resources & Research. See:
Intimate Violence in Families, Richard J. Gelles, Sage Publications
Current Controversies on Family Violence, Second Edition, Donileen Loseke, Sage Publications
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1. Civil Restraining Order under ORS 137.225
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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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.
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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.
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2. Violations of Restraining Orders Defined as Crimes
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:
163.750 Violating court’s stalking
(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.
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3. Nature of Crime Determinations
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.
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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
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...
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The orders appointing four Superior Court Commissioners (14 Af 03/13/06 Ex F) contemporaneously from a single county invalidates all their appointments. A review of the legislature's different references to Superior Court Commissioners (see RCW 26.12.050 (3) and RCW 26.12.010) makes it clear the legislature also did not intend for Superior Court Commissioners to hear RCW 26.50 matters without regard to the number of appointments in a single county. Further, while the court found in Ordell v. Gaddis, 99 Wn.2d 409 that Family Court / Law Commissioners and Pro Tempore Commissioners do not count in the numerical limit, there are no such references in the four orders included in the record (14 Afd 03/13/06 Ex F) before the Oregon courts. Further, Ordell makes it clear that the constitutional numeric limit on Superior Court Commissioners is a valid limit and that the courts may not otherwise exceed that limit.
The appointment of Commissioners beyond the numeric limit infringes on the rights of Washington citizens to be heard by an actual judge rather than an appointee. As it is not possible to determine after the fact which of the items heard by Commissioners should not have been heard by a Commissioner, all items heard by a Commissioner during that period are without jurisdiction. While Washington Courts have not to date published any decisions concerning the implications of Commissioners appointed in violation of the limits of the Washington Constitution Article IV, Section 23, the law is clear on the effect of Orders made when the court did not have jurisdiction. An order can be 'declared void for the reason that the ... court did not have jurisdiction to enter such decree.' Barker v. Barker, 31 Wn. (2d) 506. It is also well established that all subsequent actions based on the void order are void ab initio Beyerle v. Bartsch, 111 Wash. 287 or void from the beginning. As the orders appointing the Commissioners were void, all their subsequent orders were similarly void and any arrests and convictions which stem from these are void. Oregon has a similar history voiding court actions which are without jurisdiction. Li v. State of Oregon, 338 Or 376, 391, 110 P3d 91 (2005), Montoya v Housing Authority of Portland, 192 Or App 408, 86 P3d 80 (2004), Cooley v. Fredinburg, 144 Or App 410, 927 P2d 124 (1996)
The Court of Appeals is asked to reverse the Trial Court, to have the arrest set aside and records of the arrest expunged as any arrest or conviction is void if it was from an order from a Washington Superior Court Commissioners where it can be demonstrated that there were more than three contemporaneous Commissioners appointed who were not Family Court Commissioners.
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5. Requirement to correct entries in Criminal Record
ORS 183.555 requires the Department of State Police to maintain the accuracy of the Criminal Offender Information System and process requests for corrections and this is implemented through OAR 257-010-0035 which says in paragraph (3):
If after review of the information concerning them as maintained in such record, the individual believes that it is incomplete or incorrect in any respect and wishes changes, corrections, or updating of the alleged deficiency, they must make application directly to the contributor of the questioned information, requesting the appropriate agency ... to correct it in accordance with its respective administrative rules and procedures.
and as Portland Police Bureau refers requests to correct their criminal records to ORS 137.225 procedures, then all of the abilities to correct these records required under ORS 183.555 have been delegated to the trial court under ORS 137.225.
While it is possible that the Portland Police Bureau has approved alternative administrative rules and procedures for processing these requests but not published these procedures (indeed there could be several dozen different administrative procedures approved but not published), these procedures are not in place until they are published so that individuals can access the procedures. In particular,
Training the clerks who process requests for the criminal record as to the procedures for correcting that record.
Publishing the procedures for correcting the criminal record via a link from the web page describing how to get copies of the criminal record.
Including a reference to the procedures for correcting the criminal record on the criminal records provided to individuals.
Until the Portland Police Bureau provides alternative administrative procedures for correcting entries in an individual's criminal record, then the courts have that authority under ORS 137.225 as well as OAR 257-010-0035 and ORS 183.555.
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6. Due Process and Equal Protection Jurisdiction
There is little doubt that the court has virtually unrestricted power to seal or release the records of the court. The only real question is the court's authority to seal the records of law enforcement agencies such as the Portland Police Bureau. While it was decided in Springer v. Oregon, 50 Or App 5, 621 P2d 1213 (1981) that the court did not have unlimited power to seal the records of such agencies (the legislature has since given the court the authority and guidelines to seal arrest records which were contested there), the court does have that authority if the legislature provided procedures do not provide adequate protection of Fourteenth Amendment rights of due process and equal protection under the law as well as the right to privacy. The decision in Springer v Oregon was based on the adequacy of the procedures provided by the legislature as well as the intention of the legislature rather than any intrinsic limit on the court's authority to protect individual rights.
Since this decision (1981) the widespread use of background checks has made a party's criminal record an integral element in the ability to gain and retain employment. While the framers of the constitution (both state and federal) could not have foreseen the widespread dissemination of criminal records, they did provide the guarantee of certain rights when they impacted a person's livelihood as criminal records do today. While the state certainly has the ability to impair a person's livelihood, it can only do so within the constraints of due process. This guarantees the right of the affected individual to be heard before an impartial authority (not necessarily a judge), presented with the evidence against him, given the opportunity to present evidence on his own behalf, and the right to appeal.
Indeed, under the criteria established in Utsey v. Coos County, 176 Or App 524, 32 P3d 933 (2001) it is always a question if the legislature can grant the courts jurisdiction to 'intermeddle with the prerogatives of the executive' Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (U.S.1803) as it did in ORS 137.225. However, all courts of general jurisdiction already have jurisdiction to enforce the due process requirements of the Fourteenth Amendment. It is the widespread sharing of criminal records and their impact on a person's livelihood that give the courts jurisdiction over these records and ORS 137.225 simply codifies these procedures. However, it can not restrict an individuals pre-existing rights to due process.
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As such, the Oregon Circuit Courts have jurisdiction to seal the records of law enforcement agencies to preserve Fourteenth Amendment rights of due process and equal protection under the law when the existing state procedures are found to violate those rights. These rights may be invoked in any action where the state is represented and it becomes apparent that an individual's livelihood is being impaired by the improper publication of these records.
The Court of Appeal is asked to reverse the Trial Court and remand this matter to the Trial Court for consideration of the due process and equal protection under the law issues.
7. Publishing Records resulting from invalid Order
Given that the Order in case was invalid due to the lack of jurisdiction of the Superior Court Commissioner issuing the restraining order, the lack of an alternative process to correct this erroneous entry, and the significant impact that this entry has on the Appellant's livelihood, the Court of Appeals is asked to declare this and similar arrests and convictions void and expunge the record of the arrest of the Appellant on November 4, 2004 based on the due process requirements of the Fourteenth Amendment.
8. Publishing Records from arrest without Probable Cause
Given the lack of any evidence (much less probable cause) for the arrest listed in the Appellant's criminal record, the lack of an alternative process to correct this erroneous entry, and the significant impact that this entry has on the Appellant's livelihood, the Court of Appeals is asked to Order the record of the arrest of the Appellant on November 4, 2004 expunged based on the due process requirements of the Fourteenth Amendment.
9. Publishing Records biased with Sexual Stereotyping
As there was no probable cause to justify the arrest of the Appellant for any offense, this raises the question of why the defendant was arrested in the absence of such evidence. It opens the possibility that the police were acting on the sexual stereotype that men are violent brutes and women are helpless victims which prevented them from actually evaluating the evidence they were presented with.
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It has been determined in scientific peer reviewed studies of domestic violence that women are as likely to physically abuse their domestic partner as men. 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.
Over the last several decades there have been numerous portrayals in the media of the scenario where 'Man says something which Woman finds offensive, Woman slaps Man, Man is silenced by this justified response to his offensive behavior, and, later, through the typical sort of karmic retribution, terrible things happen to Man for his prior offensive behavior'. The problem with this scenario is that it has the effect of condoning and even encouraging criminal physical abuse of men in domestic relations (with the inherent emotional abuse of such physical abuse) while at the same time convincing men that any abuse they receive must be justified and that they have no real alternative to accepting their abuse in silence. The reverse scenario when a man strikes a woman is uniformly portrayed as a heinous act. This abhorrence of abuse by men is consistent with the values of our society and the law itself The sexually discriminatory acceptance of the physical abuse of men is an example of the inconsistencies in our society's values, but the law does not and should not reflect these inconsistencies.
While the law formally requires equal protection it does not actually provide it with respect to the enforcement of domestic violence. The Court of Appeals is asked to remand this matter to the trial court to determine if arrests and subsequent convictions by the Portland Police Bureau in FAPA and other domestic violence cases demonstrate any sexual bias.
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If the trial court finds that the enforcement of the law with respect to domestic violence is sexually biased, the court is asked to seal the records of all such arrests and convictions. The correction of the sexual bias in reporting and enforcement of domestic violence is a very difficult problem due to its foundation in the values of our society. However, the court can prevent this sexual bias from impacting the livelihood of individuals who are subjected to this bias.
The Multnomah County Circuit Court relied on a narrow interpretation of its jurisdiction in ORS 137.225 and ORS 33.065 and this is commendable. However, this narrow interpretation was also extended to ORS 181-555 and OAR 257-010-0035 (3) and the result was unconstitutional gaps in the due process procedures mandated by the Fourteenth Amendment of the U.S. Constitution. Further, the trial court did not address the equal protection under the law requirements of the Fourteenth Amendment with respect to apparent sexual stereotyping by the Portland Police Bureau.
Respectfully submitted, July 25, 2006 (Portland, OR).
Signature of Appellant|
11301 NE 7th St., Apt J5
Vancouver, WA 98684
Hardy Myers, #64007, Attorney General
Mary Williams, #91124, Solicitor General
Erika Hadlock, #91297
1162 Court Street NE
Salem, OR 97301
IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR MULTNOMAH COUNTY
THE STATE OF OREGON,
BRIAN PATRICK CARR,
On April 13, 2006, this matter came before the court on defendant's motion for expungement of the record pursuant to ORS 137.225, the State of Oregon appearing by Travis T. Sewell, Deputy District Attorney, and the defendant appearing pro se, and being fully advised in the premises, the court finds that:
Defendant's Motion to Set Aside record of arrest, under ORS 137.225, is denied.
IT IS ORDERED that defendant's motion to set aside conviction/arrest is hereby DENIED.
Dated this 17th day of April, 2006.
JULIE E FRANTZ, Judge
Travis T. Sewell, OSB 95169
Agencies to receive certified copies of this Order:
11301 NE 7THST APT # J5
VANCOUVER WA 98684
Multnomah County District Attorney's Office
Attn: Ginny Holter
1021 SW Fourth Ave, Ste 600
Portland, OR 97204
|Appellant's Brief July 25, 2006||21 / 21|
Affidavit of Service
Brian P Carr, am the Appellant in these matters, have knowledge of
the facts of these matters and make the following statements under
oath and penalty of perjury.
On July 25, 2006, I served two complete and accurate copies of the original of this Brief (except that they were not signed) on the Respondent in these matters by mailing in an envelope addressed to:
Hardy Myers, #64007, Attorney General
Mary Williams, #91124, Solicitor General
Erika Hadlock, #91297
1162 Court Street NE
Salem, OR 97301
with first class postage attached which I placed in a U.S.P.S. mail box located at SW 5th Ave and Stark in Portland, OR
I certify under penalty of perjury under the laws of the state of Oregon that the foregoing is true and correct.
Signature of Defendant / Appellant|
Brian P. Carr
11301 NE 7th St., Apt J5
Vancouver, WA 98684