FILED: November 18, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

MICHAEL L. ROSELLE,

Defendant-Appellant.

Douglas County Circuit Court
03CR2054MI
A132261

George William Ambrosini, Judge.

Argued and submitted on February 24, 2009.

Lauren C. Regan argued the cause for appellant.  With her on the brief were Misha J. Dunlap and Civil Liberties Defense Center, and Kenneth Kreuscher.

Janet A. Metcalf, Assistant Attorney General, argued the cause for respondent.  With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before Edmonds, Presiding Judge, and Wollheim, Judge, and Sercombe, Judge.

PER CURIAM

Reversed.

PER CURIAM

Defendant was charged with "interference with agricultural operations" under ORS 164.887.  He moved to dismiss the charge on the grounds that the statute on its face violates the free speech, free assembly, and equality guarantees of the Oregon and United States constitutions.  The trial court denied the motion, and defendant entered a conditional plea of no contest under ORS 135.335(3), reserving the right to withdraw the plea if the appeal is successful.  On appeal, defendant renews his claims that ORS 164.887 is facially unconstitutional.

In State v. Borowski, 231 Or App 511, __ P3d __ (2009), we determined a number of consolidated appeals raising the same contentions about the constitutionality of ORS 164.887.  We held that the statute violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and that the unconstitutional portion of the statute cannot be severed from the remainder of the law under ORS 174.040.  In light of our holding in Borowski, the trial court erred in failing to grant defendant's motion to dismiss the charge. 

Reversed.


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