Oregon State's Reply Brief

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The state rejects petitioner's statement of the case as confusing and argumentative. The state offers the following statement of the case.

This is an appeal in a special statutory proceeding from an order denying defendant's motion to set aside his arrest for violation of a restraining order. ("VRO"). Defendant filed a motion with the circuit court to have his VRO arrest records expunged. The state objected to defendant's motion. Defendant seeks reversal of that order. A copy of the order is attached to the appellant's brief. (App Br 21).

On November 8, 2005, under ORS 137.225, defendant filed a motion to set aside his VRO arrest record. The state opposed the motion on the ground that violation of a restraining order is not a crime for which an arrest record may be expunged under ORS 137.225. Following a hearing, the trial court entered an order denying defendant's motion to set aside the records of his arrest for VRO. The order was signed on April 17, 2006 and entered on April 18, 2006. A copy of the court's order denying the motion to set aside is attached to the appellant's brief. (App Br 21). Defendant appeals from that order.

This appeal involves defendant's challenge to an order in a special statutory proceeding. State v. Jansen, 197 Or App 251, 253, 105 P3d 928 (2005). This court has jurisdiction pursuant to ORS 19.205(5).¹ State v. Young, 24 Or App 5, 7, 544 P2d 179 (1976) (holding that court has jurisdiction over appeal pursuant to former ORS 19.010(4)).

The challenged order was entered in the trial court's register on April 18, 2006. Defendant timely filed and served his notice of appeal on April 20, 2006. ORS 19.255(1).

Did the trial court err in denying defendant's motion to set aside the record of his arrest for violation of a restraining order under ORS 137.225?

1 That statute provides:

(5) An appeal may be taken from the circuit court in any special statutory proceeding under the same conditions, in the same manner and with like effect as from a judgment or order entered in an action, unless appeal is expressly prohibited by the law authorizing the special statutory proceeding.

ORS 19.205(5).

The trial court did not err in denying defendant's motion to set aside his arrest record for violation of a restraining order. Under ORS 137.225(1)(b), under certain circumstances, a trial court has authority to set aside records of arrests for crimes.

Violation of a restraining order is not a crime. Rather, it is punishable in a contempt proceeding. A contempt proceeding is not a criminal prosecution and a person convicted of criminal contempt has not been convicted of a crime.

In this appeal, defendant raises several issues regarding the validity of the underlying restraining order, the validity of his arrest and argues that failure to expunge his VRO arrest records under ORS 137.225 violates his due process and equal protection rights. Defendant, however, may not collaterally attack the validity of the underlying restraining order or the validity of his arrest in this proceeding. In addition, his due process and equal protection challenges to the procedures and process for the maintenance of arrest records was not well-developed below and also is not well-developed on appeal. Therefore, this court should decline to address them. The state contends that the sole issue properly before this court is whether an arrest for violation of a restraining order may be set aside under ORS 137.225(1)(b). Whether the underlying restraining order and arrest were valid is irrelevant to that issue.

The trial court did not err in denying defendant's motion to set aside his record of arrest for violation of a restraining order.

Whether defendant is eligible to have the records of his arrest set aside presents a question of statutory interpretation, and this court reviews for errors of law. State v. McCoin, 193 Or App 623, 626, 91 P3d 760 (2004).

Following the hearing on defendant's motion to set aside his VRO arrest records, the trial court explained its rationale for denying the motion as follows:

[T]his 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. The court must adhere to the statutory language and criteria that is set out under ORS 137.225. It can not look to the Washington Law or any errors that you allege may have occurred in the process there. The cases that have been cited by the state are on point: State ex rel Hathaway v. Hart and State ex rel Dwyer v. Dwyer. The violation of a restraining order simply does not fall under ORS 137.225 as an action whether it be an arrest or otherwise that can be expunged. 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.

(Tr 6). The trial court's ruling is supported by the relevant statutes and case law.

C. Defendant was not eligible to have his arrest for violation of a restraining order set aside.

Setting aside an arrest record is governed by ORS 137.225. The statute generally provides that under certain circumstances a person may apply to have an arrest record set aside if charges have not been filed within a year of the arrest or anytime after the charges are dismissed. Under ORS 137.225(1)(b), in order for the record to be set aside, the arrest must be for a crime. The relevant statutory provision provides:

(1)(b) At any time after the lapse of one year from the date of any arrest, if no accusatory instrument was filed, or at any time after an acquittal or a dismissal of the charge, the arrested person may apply to the court which would have had jurisdiction over the crime for which the person was arrested, for entry of an order setting aside the record of such arrest. For the purpose of computing the one-year period, time during which the arrested person has secreted himself or herself within or without the state shall not be included.

In general, ORS 137.225(5) provides that Class C felony, misdemeanor and violation convictions and arrests may be set aside. An arrest for violation of a restraining order is not an arrest for a crime. Rather, a person who violates a restraining order is subject to a criminal contempt charge and proceeding. Such a proceeding is not a criminal proceeding and does not result in a conviction for a crime. State ex rel Hathaway v. Hart, 300 Or 231, 708 P2d 1137(1985).

In Hart, the court held that a contempt proceeding for violation of a restraining order is neither a criminal action, nor a criminal proceeding. The court concluded that "the legislature intended to leave criminal contempts as unique proceedings." Id. at 238. More recently, this court has held that contempt is not a crime, but rather "it is a unique and inherent power of a court to ensure compliance with its orders." State v. Lam, 176 Or App 149, 158, 29 P3d 1206 (2001) (internal quotation marks omitted); see also State v. Litscher, 207 Or App 565, 142 P3d 549 (2006) (holding that violation of a restraining order is not a crime). Contempt of court is an "inherent judicial power" codified in ORS 33.025 et seq. Criminal contempt is also not a violation because it is punishable by incarceration. ORS 153.008.

Defendant was not arrested for a crime and, therefore, his arrest records may not be set aside under ORS 137.225(1)(b). The authority of the court to set aside arrest records under that statute is limited. It derives solely from the statute. State v. Springer, 50 Or App 5, 621 P2d 1213 (1981).

In Springer, the issue before this court was whether a former version of ORS 137.225 provided authority for the expunction of arrest records as well as convictions. At that time, this court concluded that it did not (ORS 137.225 has since been amended to include arrest records for crimes). This court also concluded that the legislature's failure to include arrest records within the purview of the expunction statute "provided no constitutional basis for relief." This court reasoned that:

Many * * * safeguards against improper use or maintenance of records * * * exist[s] under the Oregon statutory and regulatory scheme: arrest records must contain disposition reports (ORS 181.511, 181.521); there are elaborate assurances of confidentiality and limitations on use (ORS 181.540; OAR 257-10-25); there are assurances of completeness and accuracy, and for challenge of the contents of records by the persons to whom they relate (ORS 181.540, 181.555; OAR 257-10-20; 257-10-35).

50 Or App at 12. Similar (if not the exact same) statutory and regulatory safeguards exist today. See, e.g., ORS 181.511, 181.521, 181.548, 181.555; OAR 257-10-20, 257-10-25, 257-10-35. The legislature has expanded a court's authority to expunge the records of a person's arrest for a crime; but it has not expanded that authority to the records of a person's arrest for a violation of a restraining order, which is not a crime. The legislature has continued to place control over arrest records for other than crimes within the auspices of the agency.

D. Defendant's challenges to the validity of the underlying restraining order and his arrest are not relevant to this proceeding.

Defendant raises numerous arguments in support of his contention that the underlying restraining order was not valid. (App Br 5-6 and App Supp Br 1). This court, however, need not reach defendant's arguments related to the validity of the underlying restraining order because it is irrelevant. Defendant may not collaterally attack the restraining order. Cf. State v. Sims, 335 Or 269, 66 P3d 472 (2003) (holding that order revoking driver's license not subject to collateral attack in criminal prosecution for driving while revoked). Accordingly, whether the underlying restraining order is valid is not an issue in this proceeding.

Defendant also raises a challenge to the validity of his arrest. He argues that no probable cause existed to arrest him for a violation of the restraining order. (App Br 5, 7). But, for the same reasons that defendant may not collaterally attack the restraining order in this proceeding, he also may not attack the validity of his arrest. The only issue in this case is whether the trial court has authority under ORS 137.225 to expunge the records of defendant's arrest for violation of a restraining order. As shown above, it does not.

In a cursory fashion, defendant argues that, if ORS 137.225(1)(b) does not authorize the expunction of his records of arrest for violation of a restraining order, then the statute violates his due process and equal protection rights. (App Br 7, 10, 17). This court's reasoning in Springer suggests no constitutional basis for relief. In any event, defendant has not adequately developed his constitutional arguments and this court should decline to address them on that basis. Merely stating that a statute violates his due process and equal protection rights is insufficient to preserve any error. See State v, Riggs, 143 Or App 427, 923 P2d 683 (1996) (merely citing to Article 1, section 12 without more did not preserve issue of double jeopardy under state constitution). Moreover, the record and the briefing on the constitutional challenges to ORS 137.225 are "so sparse and amorphous as to be inadequate to permit reasonable appellate review of th[ose] issue[s]." Sanchez v. Clatsop County, 146 Or App 159, 932 P2d 557 (1997). For those reasons, this court should decline to address those constitutional issues on appeal.

On June 6, 2007, this court granted defendant's motion to file a supplemental appellant's brief. In his supplemental brief, defendant has not assigned any other matter as error. Rather, he raises an additional issue framed as follows: "Can Oregon courts enforce Orders for Protection signed by Washington Family Court Commissioners which are of duration greater than 14 days * * * ?" That issue relates to the validity of the underlying restraining order. As shown above, defendant may not collaterally attack the underlying restraining order in this proceeding. Accordingly, this court should not address the issue raised in appellant's supplemental brief.

I certify that I directed the original Respondent's Brief to be filed with the State Court Administrator, Records Section, at 1163 State Street, Salem, Oregon 97301-2563, on September 14, 2007.

I further certify that I directed the Respondent's Brief to be served upon Brian P. Carr, pro se appellant, on September 14, 2007, by mailing two copies, with postage prepaid, in an envelope addressed to:

STATEMENT OF THE CASE	1
Nature of the proceedings	1
Nature of order to be reviewed.	1
Basis for Appellate Jurisdiction	2
Timeliness	2
Question Presented On Appeal	2
Summary of argument	2
ASSIGNMENT OF ERROR NO. 1	3
The trial court did not err in denying defendant's motion to set aside his record of arrest for violation of a restraining order	3
ARGUMENT	3
A. Standard of Review	3
B. The trial court's ruling	4
C. Defendant was not eligible to have his arrest for violation of a restraining order set aside	4
D. Defendant's challenges to the validity of the underlying restraining order and his arrest are not relevant to this proceeding.	6
E. Defendant's constitutional challenges	7
F. The supplemental appellant's brief	8
CONCLUSION	9

Sanchez v. Clatsop County, 146 Or App 159, 932 P2d 557 (1997).	8
State ex rel Hathaway v. Hart, 300 Or 231, 708 P2d 1137 (1985)	5
State v, Riggs, 143 Or App 427, 923 P2d 683 (1996)	7
State v. Jansen, 197 Or App 251, 105 P3d 928 (2005)	2
State v. Lam, 176 Or App 149, 29 P3 d 1206 (2001)	5
State v. Litscher, 207 Or App 565, 142 P3d 549 (2006)	5
State v. McCoin, 193 Or App 623, 91 P3d 760 (2004)	3
State v. Sims, 335 Or 269, 66 P3d 472 (2003)	7
State v. Springer, 50 Or App 5, 621 P2d 1213 (1981)	5,6,7
State v. Young, 24 Or App 5, 544 P2d 179 (1976)	2

Former ORS 19.010(4)	2
Or Const Art 1, § 12	7
ORS 137.225	1, 2, 3, 4, 6, 7
ORS 137.225(1)(b)	2, 3, 4, 5, 7
ORS 137.225(5)	5
ORS 153.008	5
ORS 181.511	6
ORS 181.521	6
ORS 181.548	6
ORS 181.555	6
ORS 19.205(5)	2
ORS 19.255(1)	2
ORS 33.025	5

OAR 257-10-20	6
OAR 257-10-25	6
OAR 257-10-35	6