IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR MULTNOMAH COUNTY THE STATE OF OREGON, Plaintiff, v.

CATHY ALEXANDER, ANDREW BARNICK, LAURIE BENOIT, BENJAMIN BRYAN BURSON, MATTHEW DENNEY, NADIA FAE GREENE, HANNA GRUNDNER, ANGELA IRENE HAMMIT, BENJAMIN HARRIS, KELLER DEAN HENRY, ASHLEY LYNN JACKSON, RHONDA ELAINE JELINEK, CAMERON SCOTT MATTA, JACQUELYN BEATRICE MILLER, DEBORAH NORTON, JOHN WADE SAUNDERS, MATTHEW WALSH, BRAD MATHEW WHISLER, CAMERON WHITTEN, CAITLIN TRIALL WILSON, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case Nos. 1110-51989, 1110-51385, 1110-51946, 1110-51950, 1110-51990, 1111-52433, 1111-52427, 1111-52426, 1110-51951, 1110-51386, 1110-51384, 1110-51959, 1111-52548, 1110-51388, 1110-51991, 1110-51383, 1111-52432, 1110-51382, 11-11-52431, 11-12-53180, 11-12-53732, 1111-52430 OPINION AND ORDER GRANTING IN PART, DENYING IN PART DEFENDANTS MOTIONS FOR APPLICATION OF CONSTITUTIONAL RIGHTS

The defendants listed above are charged with a variety of offenses, including Interfering with a Peace Officer (ORS 162.247, Class A misdemeanor); Disorderly Conduct in the Second Degree (ORS 166.025, a Class B misdemeanor); Harassment (ORS 166.065, a Class B misdemeanor) and Criminal Trespass in the Second Degree (ORS 163.245, a Class C misdemeanor). The charges are all crimes that the District Attorney elected to treat as violations pursuant to ORS 161.566. Defendants move for the application of certain rights under the Oregon and United States Constitution to their cases, including right to court-appointed counsel; jury trials; confrontation of adverse witnesses; to remain silent; and to have the burden in their cases be proof beyond a reasonable doubt. The court held hearing on the motions on January 9. 2012. Mr. Wilner-Nugent, on behalf of his client Keller Henry, served as lead counsel for purposes of arguing the motion. The court granted motions of the other defendants listed above to join in the motion, and this order applies to those cases. Violations are included within the definition of criminal action. ORS 131.005(6). Criminal proceeding means any proceeding which constitutes a part of a criminal action or occurs in court in connection with a prospective, pending or completed criminal action. ORS 131.005(7). ORS 153.030(1) provides that the procedures set out in Chapter 153 apply to violations described in 153.008. Except as otherwise provided by Chapter 153, the criminal procedure laws applicable to crimes also apply to violations. ORS 153.030(1). ORS 153.076 provides that violation proceedings are tried to a court sitting without jury; that the burden of proof is by a preponderance of the evidence; that the defendant is not required to be a witness in his or her case; and that defense counsel will not be appointed at public expense. Except for good cause shown, the District Attorney shall not appear in violation proceedings unless defense counsel appears. ORS 153.075(6). A prosecuting attorney may elect to treat a crime as a violation. ORS 161.566. Upon doing so, the case is a violation. ORS 153.008(1)(d). To treat a case as a violation, the prosecuting attorney may elect to treat any misdemeanor as a Class A violation by making the election orally at the time of the first appearance of the defendant or in writing filed before the first appearance. ORS 161.566(1). Alternately, a prosecuting attorney may elect to treat a misdemeanor as a violation by requesting the court amend the accusatory instrument to reflect that it is a violation. ORS 161.566(2). Whether the district attorney elects to issue the case as a violation or requests the court amend the charging instrument to reflect it as a violation, it is treated as a violation. ORS 153.008(1)(d). A violation proceeding means a judicial proceeding initiated by issuance of a citation that charges a person with commission of a violation. ORS 153.005(4). The procedure for issuance of a citation are set out in ORS 153.042, et. seq.
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Two questions are presented to the court. First is whether the trial procedures set out in ORS 153.076 also apply to cases that started out as punishable crimes but were elected by the district attorney to go forward as violations or whether the criminal procedural rules set out in other statutes apply via ORS 153.030. Second, is whether the character of the incidents are sufficiently criminal in nature that the constitutional protections available to an accused under Article I, Section 11 of the Oregon Constitution should apply in the instant proceedings. I. CONDUCT OF TRIAL STATUTES A court begins its analysis by looking to sub-constitutional grounds. State v. Phillips, 235 Or App 646, 651 (2010). To determine a statutes meaning, a court looks to the text and context of the statute, and to the extent a court deems appropriate, legislative history. State v. Gaines, 346 Or 160, 166 (2009). Existing case law is part of a statutes context. SAIF v. Walker, 330 Or 102, 108-109 (2000). Chapter 153 makes a distinction between violations and violation proceedings. As stated above, ORS 153.005(4) specifies that violation proceedings are initiated by a citation. It does not mention anything about cases the district attorney elects to be violations. ORS 153.076 refers to conduct of a trial for violation proceedings and contemplates that the case would have been issued as a citation by noting that The trial may not be scheduled fewer than seven days after the date that the citation is issued. It also does not mention cases that a district attorney elects to be violations. ORS 153.005(3) incorporates ORS 153.008 as the definition for what is a violation, but neither statute states a case treated as a violation follows the same trial procedures as those set out for violation proceedings. Violation proceedings are also distinct from criminal proceedings in ORS 131.005(7), which include violation trials. The closest ORS 153.076 comes to setting out conduct for violation trials is via 153.030, which notes that the procedures provided for in this chapter apply to violations described in ORS 153.008. However, ORS 153.030 additionally notes that except as specifically provided for in this chapter, the criminal procedure laws apply to violations (emphasis provided). In examining the statute, it is clear that both the procedures provided for in Chapter 153 and the criminal procedure laws apply to violations as set out in ORS 153.008. ORS 153.030 sets forth but one exception. Criminal procedure laws apply unless a statute specifically provides otherwise. Thus, the statute would need to specifically exclude criminal procedural laws in order to preclude the application of any and all criminal procedural laws. ORS 153.076 is an example of a statute that specifically excludes criminal procedural laws. However it does so only in a particular context, that being for violation proceedings. It is helpful to examine the various statutes that govern violations and violation proceedings. ORS 153.005(3): Violations are defined as those set out in 153.008. 153.008: Violations include offenses designated as a violation in the statute as well as those offenses that the District Attorney elects to treat as violations pursuant to ORS 161.566. 153.005(4): Violation proceeding means a judicial proceeding initiated by issuance of a citation that charges a person with commission of a violation.
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153. 039(3)(b): Enforcement officers may issue citations for a violation. 153.042: Enforcement officers may issue a violation citation only if conduct alleged to constitute a violation takes place in the presence of the law enforcement officer. 153.005: Defines enforcement officers. Enforcement officers include investigator of a district attorneys office only if also sworn in as a peace officer. District Attorneys are not included within the definition of enforcement officers. 153.045: Citations issued by enforcement officers must follow the statutory requirements for the form of citation. 153.076: District Attorneys may assist in preparing evidence but must not appear in violation proceedings unless defense counsel also appears. 153.083: In any trial of a violation in which a district attorney does not appear, the peace officer who issued the citation may present evidence, examine and cross-examine witnesses and make arguments as set out in the statute. These statutes can be read to create distinct paths for violations initiated by a citation and violations treated as such by the District Attorney. In construing statutes, a court cannot inset what has been omitted nor omit what has been inserted. ORS 174.010. To conclude that a District Attorneys election is the same as a violation proceeding would require the court to ignore the definition of violation proceeding and its requirement that it be initiated by the citation process. The statutes further outline a procedural scheme for cases initiated by the citation process in which District Attorneys have a limited role. To conclude that cases initiated by District Attorney election came within the procedural rules for violation proceedings would be to insert language into the definition of violation proceeding and ORS 153.076 that is not present. Note also that per ORS 174.020(2), when a general and particular provision are inconsistent, the latter is paramount to the former so that a particular intent controls a general intent that is inconsistent with the particular intent. In motions for these instant cases, the District Attorneys office provided legislative history for SB 732, which established procedure for violation trials in 1993. The engrossed version reads in Section 1 The trial of any violation is by the court without a jury (emphasis added). Chapter 153 and the law regarding violations and citations were significantly revised in 1999. 1999, Chapter 1051, Sections 1- 328. The language regarding procedures for any violation trial no longer appears in ORS Chapter 153 or Chapter 161. The legislative history is not helpful to the court and the court is not obligated to investigate legislative history. State v. Gaines, 346 Or 160, 166 (2009). Except as specifically provided, for violations that are not initiated by a citation, criminal procedures apply. No statute in Chapter 153 addresses trial procedures for violations not initiated by a citation. As such, both criminal procedures and other applicable procedures set out in Chapter 153 that are not limited in their application apply to violation trials that are not initiated by violation citations. In State v. Thomas, 311 Or 182 (1991), the Oregon Supreme Court considered the applicable burden of proof in a case in which the District Attorney elected to proceed as a violation and found it to be the criminal burden of proof beyond a reasonable doubt. In examining the legislative history of the
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law that gave rise to the prosecutors ability to elect, the Court noted the legislative history evinced the intent to allow the election as a cost-saving measure to avoid recent statutes providing for court- appointed attorneys. Id, 311 Or at 186. The statute allowing the election did not, in and of itself, alter the burden of proof. Id, 311 Or at 185. The statutes cited in Thomas remain intact. By the terms set out in Chapter 153, ORS 153.076 applies only to violation proceedings initiated by the issuance of a citation. As such, ORS 153.076 does not govern the conduct of trial in the above listed cases. Certain constitutional procedures are codifed in Oregon statutes. ORS 136.001 provides for a right to public trial by an impartial jury in all criminal prosecutions. ORS 136.415 provides for proof beyond a reasonable doubt in all criminal actions. ORS 136.420 provides for testimony of a witness to be given orally and in person in the presence of the court and jury in criminal actions. ORS 135.045 provides that if a defendant in a criminal action appears without counsel at arraignment or thereafter, the court shall determine whether the defendant wishes to be represented, and if so, shall appoint counsel in accordance with ORS 135.050. ORS 135.050(2) allows for appointment of counsel if the defendant is before the court on a matter described in subsection (5). ORS 135.050(5) allows for appointed counsel when defendants appear on a crime; for an enhanced sentencing proceeding; for extradition proceedings; and any proceeding concerning an order of probation. The court is not aware of statutes specifically codifying the right to cross examine witnesses or the right not to incriminate oneself at trial. It should be noted that ORS 153.076 specifically provides that the defendant may not be required to be a witness in a violation proceeding and that ORS 153.083 addresses the role of cross examination during violation proceedings. ORS 136.420 is generally recognized to be a codification of confrontation rights as well as extending the right of direct examination to defendants witnesses. State ex rel. Gladden v. Lonergan, 201 Or 163, 173 (1954). Violations are criminal actions. ORS 131.005(6). As stated above, trials for violations that are initiated by District Attorney election are not limited by the provisions of ORS 153.076. The burden of proof in criminal actions is proof beyond a reasonable doubt. See, State v. Thomas, supra. There is nothing in the change from ORS 161.565 to ORS 161.566 that would change this result. Likewise, the right to confront witnesses applies in criminal actions. Violations are not crimes or other matters within ORS 135.050(5) that qualify for court appointed attorney. Thus, the court finds that the statutes applicable to misdemeanors elected to proceed as violations provide for proof beyond a reasonable doubt; confrontation of adverse witnesses; and the right not to be required to appear as a witness in ones own case. Statutory procedures do not provide for court-appointed counsel. The remaining statutory question is whether ORS 136.001 confers jury trial rights. Criminal prosecution is not defined in statutes as are criminal action and criminal proceedings. Article I, Section 11 is the starting point for examining what rights are required for criminal prosecutions, and the court turns next to this question. II. CONDUCT OF TRIAL CONSTITUTIONAL CONSIDERATIONS
The right to a jury trial and appointed counsel in "criminal prosecutions" is rooted in Article I, Section 11 of the Oregon Constitution and the Sixth Amendment of the United States Constitution.
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 Article I, Section 11 provides: In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor; provided, however, that any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing; provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise; provided further, that the existing laws and constitutional provisions relative to criminal prosecutions shall be continued and remain in effect as to all prosecutions for crimes committed before the taking effect of this amendment. While Article I, Section 11 addresses a number of circumstances particular to Oregon, it is virtually the same as the federal version for purposes of the rights conferred. The state constitution can provide greater protections than does the federal constitution. State v. Kennedy, 295 Or 260, 270-271 (1983). The proper sequence is to analyze a state's law, including its constitutional law, before reaching a federal constitutional claim. Id, 295 Or at 262. At the federal level, no jury trial right exists for petty offenses. Lewis v. US, 518 US 322, 325 (1996). The most important criterion is the maximum level of punishment because it reveals the legislatures judgment about the offenses severity. Id, 518 Us at 326. The Lewis court wrote: The judiciary should not substitute its judgment as to seriousness for that of a legislature, which is far better equipped to perform the task.... [citing Blanton v. North Las Vegas, 489 US, 538, 541 and n. 5 (1989) (internal quotation marks omitted)]. In evaluating the seriousness of the offense, we place primary emphasis on the maximum prison term authorized. While penalties such as probation or a fine may infringe on a defendant's freedom, the deprivation of liberty imposed by imprisonment makes that penalty the best indicator of whether the legislature considered an offense to be petty or serious. Id., at 542. An offense carrying a maximum prison term of six months or less is presumed petty, unless the legislature has authorized additional statutory penalties so severe as to indicate that the legislature considered the offense serious. Id., at 543. Codispoti v. Pennsylvania, 418 U.S. 506, 512, 94 S.Ct. 2687, 2691, 41 L.Ed.2d 912 (1974). The court held that the maximum sentence of six months imprisonment was presumptively petty, and remained petty even though the defendant could have received consecutive sentences exceeding six months. Lewis v. US, 518 US at 327. Oregon jurisprudence has followed a different tack since the 1977 decision of Brown v. Multnomah County District Court, 280 Or 95 (1977). While using a somewhat similar analysis to Lewis, that decision explored whether the "decriminalization" of a first conviction of DUII to an infraction freed the offense of the punitive traits that characterize a criminal prosecution so as to justify denial of Article I, Section 11 protections. The case explored a number of factors to determine whether the offense carried enough punitive traits to require those protections apply. Though the case has been considered "offense specific" [State v. Rode, 118 Or App 665, 668-669, (1993)], the criteria have nonetheless been applied in multiple scenarios, including double jeopardy [State v. Selness, 334 Or 515 (2002)], stalking [Johnson v. McGrew, 137 Or App 55 (1995)], bar disciplinary proceedings [In re Harris, 334 Or 353 (2002)], civil penalty hearing for drug paraphernalia possession [Jackson County v. Roark, 124 Or App 505 (1993)] and contempt proceedings for failure to pay child support [State ex rel. Dwyer v. Dwyer, 299
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Or 108 (1985). It remains an oft-cited case central to the interpretation of the meaning of criminal prosecution for purposes of Article I, Section 11. It should also be noted that although Brown predates Lewis, it did contemplate the six-month time period so stated as presumptive for petty offenses. See, Brown, 290 Or at 104, citing Cheff v. Schnackenberg, 384 US 373 (1966). State v. Rode is the sole case to apply Brown to trials in violations reduced from crimes by district attorney election. The case explores the effect of then-existing ORS 161.565 and stated The legislature is free to devise a system to sanction violations of law other than by a criminal prosecution. State v. Rode, 118 Or App at 669. The court further held that the effect of ORS 161.565 is to create such a system by eliminating criminal penalties and collateral consequences related to conviction. Id. The remaining aspect of criminal prosecution, pre-arraignment arrest, is not of such gravity as to render the prosecution of a violation a criminal prosecution. Id. The court held that a misdemeanor treated as a violation does not constitute a criminal prosecution that carries a right to a jury trial. Id at 670. Although the same issue is at stake in these cases, misdemeanors reduced to violations by district attorney election, there are enough distinguishing characteristics that warrant reconsideration of the Brown factors as they apply here. The first is the difference between the statute then and now. At the time of Rode, the statute ORS 161.565 presumed a misdemeanor would proceed as a violation unless declared otherwise. Now, under ORS 161.566, the case proceeds as a misdemeanor unless declared otherwise. The Rode court noted about the prior version of the statute, The legislature, for whatever policy reasons, determined that misdemeanors no longer represented anti-social behavior serious enough to warrant criminal prosecution in the absence of a district attorney's affirmative decision otherwise. Id, at 670. That policy decision has now been reversed. Another distinguishing characteristic is the fine. The fine in Rode was a maximum of $250. Currently, a fine for a misdemeanor reduced to a violation is punished at not lower than the presumptive fine for a Class A violation under ORS 153.019 and not higher than the maximum fine if it had remained a misdemeanor. ORS 161.568(3). That means the fines for violations could be a maximum of $6,250 if the crime started as a Class A misdemeanor, $2,500 if it was a Class B misdemeanor, and $1,250 if it was a Class C misdemeanor. ORS 161.635. Another distinguishing characteristic is the pre-arraignment custody. The case in Rode was initiated by a citation for a misdemeanor in lieu of custody. That statute, OR 133.055, authorizes a police officer with probable cause that a misdemeanor has occurred to issue a citation without conducting an arrest. Here, the officers conducted arrests and the individuals were photographed, fingerprinted, booked and released and later charged by a district attorneys complaint. The Brown court explored a number of indicia used to determine whether an ostensibly civil penalty remains a criminal prosecution for constitutional purposes, including A) type of offense; B) penalty; C) collateral consequences; D) punitive significance; and E) arrest and detention. See, also, State v. Selness, 334 Or 515, 532 (2002) (Applying four of the standards for purposes of Article I, Section 12 of the Oregon Constitution). In applying the Brown factors to determine whether a statute is sufficiently criminal to warrant safeguards of a criminal prosecution, each factor is relevant, but no single factor is determinative. Jackson County v. Roark, 124 Or App at 514 (1993). The court turns to an exploration of those factors.
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A. Type of offense: The offense may have been a crime at common law, or at the time the constitution was adopted, or for a long time thereafter. Similarly, it may involve traditional elements of mens rea or a lower degree of culpability. These characteristics can bear on whether the downgrading marks a genuine change in the public assessment of the conduct or merely seeks procedural short-cuts, but they do not mean that what was once a crime can never be regulated by other means. Brown v. Multnomah County District Court, 280 Or at 102. Disorderly conduct incorporates behavior that was an offense at common law. Multnomah County Fair Association v. Langley, 140 Or 172, 182 (1932) (The keeping of a gaming house was an offense at common law because among other things it disturbed the peace and tranquility, by encouraging idleness, riot, thriftlessness, breaches of the peace, disorderly conduct, and the like). Trespass was actionable at common law. Harassment falls within a class of behaviors that were actionable offenses at common law. Interfering with a Peace Officer was a legislatively-created offense created in 1997. The offenses here are unlike the more serious cases of assault in Rode or theft in Davis. The gravity of the instant offenses is not a criterion that alone compels the protections of Article I, Section 11. B.Penalty: The prescribed penalty is regarded as the single most important criterion. The absence of potential imprisonment does not conclusively prove a punishment non-criminal. The assessment has been made on two factors, the severity of the penalty and whether it is infamous. [citations omitted]. The second of these relates again to the significance attached to imprisonment to which we have referred, even for a short term. But a large fine may be as severe, in practical terms, as a short imprisonment, and so strikingly severe as to carry the same punitive significance. Brown v. Multnomah County District Court, 290 Or at 103-104. In the instant cases, the legislature has indeed stated a case that originates as a crime carries the same financial penalty as if it had remained a crime. This is the most important criterion. The fine at issue in Brown was $1,000. "In this context a $1,000 fine, if not in itself a criminal rather than civil penalty, must be at the margin of legislative discretion. At the least it is strong evidence of the punitive significance that the legislature meant to give this fine." Brown 290 Or at 105. Certainly, $1000 in 1977 dollars is different than that amount in 2012 dollars. Note that both DUII and DWS proceeding as crimes carry minimum $1000 fines. The maximum fine for a Class A violation is $2000. Misdemeanors reduced to violations are treated as Class A violations yet retain the ability to be fined up to $2,500 for Class B misdemeanors and $6,250 for Class A misdemeanors. That is evidence that the legislature considers amounts of more than $2000 to be punitive in nature. Additionally, there is at least potential imprisonment for contempt for failure to pay fines. See, ORS 161.685; State v. Bailey, 133 Or App 310, 314 (1995) ( Court has authority to find defendant in contempt for unpaid court costs despite lack of explicit statutory authority. The question is whether a statute exists to limit the courts inherent judicial power.) C. Collateral consequences: There are no known collateral consequences to the conviction of these violation offenses.
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D. Punitive significance: What distinguishes a criminal from a civil sanction and all that distinguishes it, a leading scholar concluded, is the judgment of community condemnation which accompanies and justifies its imposition. The stigma of that condemnation can accompany the imposition of a sanction whether it is imprisonment, a fine, or something else; and its presence in a judgment of conviction, as much as the potential sanction itself, makes the right to a jury peculiarly appropriate to a criminal prosecution. Brown v. Multnomah County, 280 Or at 106. There is no particular societal stigma that automatically demeans the character of an individual who is convicted of disorderly conduct, trespass in areas that are not private dwellings or interfering with a peace officer. Harassment is classified in different terms and areas of the law than the assault and person crimes set out in ORS Chapter 163 and does not bear the same stigma as those offenses. E. Arrest and Detention: It bears on the constitutional distinction between a civil case and a criminal prosecution that the Oregon Vehicle Code retains many of the pre-trial practices used in the enforcement of criminal laws. It is by now well understood that this process encompasses the stages before charge, plea, and trial as well as the trial itself. The statutes place major traffic offenses with felonies and misdemeanors in the law of arrest. A person thus arrested faces the possible use of physical restraints, such as handcuffs, a search of the person, booking (including the taking of fingerprints or photographs), and detention in jail if not released by police officers, or at a later time by a magistrate. Of course a traffic offender must be subject to being stopped, and in the case of apparent intoxication prevented from resuming his driving. Often that could be accomplished by other means. But detention beyond the needs of identifying, citing, and protecting the individual or grounding him, especially detention for trial unless bail is made, comports with criminal rather than with civil procedure and is surely so perceived by the public. (statutory citations omitted). Brown v. Multnomah County District Court, 280 Or at 108. Ms. Kellar Henry was arrested, booked and held in a process that took nine hours. The record details her description of the events that took place during her particular custody, including experiencing pain related to a pre-existing injury, being cuffed for an extended period of time in a painful and uncomfortable position, and having a facial piercing cut off from her lip without her consent and with a sharp implement. The circumstances of custody are unique to each individual, but each person was booked and held for a period of several hours, released pursuant to the authority given to Recognizance Officers in ORS 135.235 and ordered to appear at an arraignment. There was the risk of incarceration up until the time the district attorney's office elected to treat their cases as violations had the release officers exercised their discretion to defer the release decision for the court. The arrest is a record, that has enough stigmatizing effect that it is singled out for relief in the form of expungement even if no judgment of conviction is filed. ORS 137.225(1)(b). Citation in lieu of arrest was a procedure that could have been used in the alternative. ORS 133.055. The court recognizes the need of the State to be able to affirm the identities of those charged at later proceedings. However, the pre-trial arrest and detention procedures used when citations in lieu of arrest could have been used are a significant factor that give the character of a criminal prosecution to the proceedings. The Brown court wrote in conclusion: Considering the magnitude of the potential fine, the secondary sanctions in case of non-payment, the relationship of DUII to the other major traffic offenses, the evident legislative desire to emphasize the seriousness of this offense while facilitating its
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punishment, and the retention of criminal law enforcement procedures, the 1975 code did not free this offense from the punitive traits that characterize a criminal prosecution. 280 Or at 110. This court concludes the same for the offenses here that started as Class A and Class B misdemeanors, but does not conclude that the cases originating as Class C misdemeanors fall under the constitutional provision protections. The court makes this finding given the legislatures intent that the maximum fines remain as if charged as a crime and the criminal nature of the pre-trial procedures. The nature of disorderly conduct and harassment as the kinds of offenses that were actionable at common law is also a factor within the courts consideration. The use of pre-trial arrest procedures for Class C misdemeanors is not a factor that in and of itself requires constitutional level protections for trial given that the maximum penalty is well below what the legislature has set as a maximum for a case originating as a violation. The Rode case included a significant dissenting opinion, which states as follows: The majority correctly says that the legislature is free to define what is criminal and what is not. But that is not what has happened when the legislature enacted ORS 161.565(2). No conduct that was once a crime is declared to be lawful. Rather, under the statute, a criminal charge commences as a criminal proceeding with all its punitive traits intact and purportedly changes in the midst of the process. If the prosecutor elects, the prosecution ends up being classified as a non-criminal proceeding, potentially resulting in a conviction for a violation. The change in many ways is semantical, not substantive. A defendant can be arrested, must be arraigned, and can be required to post security for future court appearances before the prosecution elects to charge him with a violation. Even after the election, the charge is still prosecuted by the state who can call agents of the government who will accuse the defendant of conduct that would otherwise be considered criminal. The defendant who desires to be vindicated must appear and defend himself in an environment identical to what would have occurred had the prosecutor not made his election. The state must prove his guilt beyond a reasonable doubt just as in a criminal prosecution. State v. Rode, 118 Or App at 672 (Edmonds, dissenting). The dissenting opinion also states, To the Patty Thomas' of the state (the defendant in State v. Thomas, supra) the majority opinion says that the right to have an adjudication by a jury of peers on what begins as a criminal proceeding can be abrogated at the discretion of the prosecutor. Surely, Section 11s s guarantee must have more substance than that. Those words take on more resonance in the light of the substantive differences between the violations at issue there and those at issue under the current state of the law. In sum, the court orders the following protections: Burden of proof beyond a reasonable doubt: per statute, all cases originating as crimes Jury trial: per Article I, Section 11, Class B and Class A misdemeanors Right to appointed counsel: per Article I, Section 11, Class B and Class A misdemeanors
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 Right to confront witnesses: per statute, all cases originating as crimes Privilege against self-incrimination: per statute, all cases originating as crimes. For the reasons and authorities stated above, IT IS SO ORDERED this 6th day of February, 2012. ___________________________ Judge Cheryl Albrecht

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