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Server Trespass, Litigation Privilege Property Invasion, Damages, Trespass

Discussion in 'Criminal Charges' started by AFAF, Feb 6, 2021.

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  1. AFAF

    AFAF Law Topic Starter New Member

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    Jurisdiction:
    Oregon
    What is the basis for prosecution, other than court bias towards victim right's advocate provided by court to complainant who merely wants to evade litigation?

    Process server charged with criminal trespass for walking up driveway, then crossing "no trespass" sign at recipient's front door, when leaving papers at the door, without entry to curtilage -- as provided in ORCP 9B, which is a legislative enactment. ORS 1.735(1); Goodyear Tire & Rubber Co. v. Tattling Tire & Auto, 325 Ore. 46, 49 n.4, 932 P.2d 1141, 1142 (1997) (“the Oregon Rules of Civil procedure, effectively is a legislative enactment…”) Under UTCR 2.020, service of court papers as provided in ORCP 9 is essentially “civil process.”

    Oregon's criminal trespass law follows common law civil trespass: entry to premises without privilege or authorization. ORS 164.205(3)(a), 164.245; State v. Endicott, 296 Ore. App. 644, 652-53, 439 P.3d 510 (2019). Oregon has adopted Restatement (second) Torts §158. Collier v. Portland, 57 Ore. App. 341, 344, 644 P.2d 1139 (1982) (“Trespass to real property is an intentional entry upon the land of another by one not privileged to enter. Amphitheaters, Inc. v. Portland Meadows, 184 Ore. 336, 343, 198 P.2d 847 (1948); Restatement (Second) of Torts §158 (1965).”) That incorporates §§176-211. This was expressly recognized by the Oregon Supreme Court in, State v. Foster, 347 Ore. 1, 9 n.5, 217 P.3d 168 (2009):

    “Where one is privileged to execute civil process on the person… of another, one is also privileged to enter the other’s land, by force if necessary, to serve the process.” 1 Fowler V. Harper, Fleming James, Jr., and Oscar S. Gray, Harper, James and Gray on Torts §1.19, at 75 (2006) (footnote omitted); see Restatement (Second) of Torts §§ 208-09 (1965)(discussing requirements of the privilege).

    Legislated privilege is addressed at, Restatement (Second) Torts §211, which was adopted by the Oregon Supreme Court in, Hay v. Or. Dep’t of Transp., 301 Ore. 129, 135-36, 719 P.2d 860 (1986):

    A duty or authority imposed or created by legislative enactment carries with it the privilege to enter land in the possession of another for the purpose of performing or exercising such duty or authority in so far as the entry is reasonably necessary to such performance or exercise, if, but only if, all the requirements of the enactment are fulfilled.

    Oregon has affirmatively expanded the absolute litigation privilege to conduct in relation to litigation, with extraordinarily in-depth analysis in, Mantia v. Hanson, 190 Ore. App. 412, 418, 79 P.3d 404 (2003). Most recently elucidated in -- The Puff Factory, LLC v. Port of Cascade Locks, Case No. 3:20-cv-65-SI, 2020 WL 6547637, 2020 U.S. Dist. LEXIS 208280 (D.OR, 6 Nov. 2020):

    As explained by the Oregon Court of Appeals, the litigation privilege “is based upon a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients. Therefore, the privilege is absolute. It protects the attorney from liability in an action for defamation irrespective of his purpose in publishing the defamatory matter, his belief in its truth, or even his knowledge of its falsity.” Mantia v. Hanson, 190 Ore. App. 412, 418, 79 P.3d 404 (2003) (quoting Restatement (Second) of Torts, § 586 cmt a (1977)). This doctrine has been expanded beyond tort immunity for defamation to include other common law torts and to apply to litigants as well as their lawyers.

     
    Last edited: Feb 6, 2021
  2. adjusterjack

    adjusterjack Super Moderator

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    Prosecution of who (or whom if you prefer)?

    That's one of those loaded questions like "Have you stopped beating your wife"?

    Charged by who (or whom if you prefer)? Under what circumstances? Charged and convicted are two different things. He would appear to have a defense under the law(s) and decisions you quoted.

    Who are you in this situation? Plaintiff, defendant, process server, somebody else?
     
  3. AFAF

    AFAF Law Topic Starter New Member

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    Specifically established in, Mantia, 190 Ore. App. at 417 (underscore added):
    Oregon courts have long recognized, and enforced, an absolute privilege for statements in the course of or incident to judicial and quasi-judicial proceedings. That privilege applies equally to parties to such proceedings and to their attorneys.
    Id. at 418:
    See also Ramstead [v. Morgan, 219 Ore. 383, 387, 347 P.2d 594 (1959)] ("'There are certain relations of life in which it is so important that the persons engaged in them should be able to speak freely that the law takes the risk of their abusing the occasion and speaking maliciously as well as untruly, and in order that their duties may be carried on freely and without fear of any action being brought against them.'" (Quoting Moore v. Weaver, 2 K. B. 520, 521 (1928))
    And, Mantia, at 423 (underscore added):
    In Franson [v. Radich, 84 Ore. App. 715, 719, 735 P.2d 632 (1987)], we further, and dramatically, extended the application of the absolute privilege in two respects. First, we held that the principle applied not merely to defamatory statements, but also to conduct undertaken in connection with litigation.

    CONCLUSION
    The absolute litigation privilege applies to this instance of alleged trespass by serving court papers "in connection with litigation" as the agent of a party.
     
  4. AFAF

    AFAF Law Topic Starter New Member

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    >Prosecution of who?
    "Process server charged with criminal trespass for walking up driveway,"

    >Charged by who
    District Attorney/Prosecutor -- typically the only entity that can bring a criminal charge.

    >Who are you in this situation?
    Process Server - Defendant.
     
  5. adjusterjack

    adjusterjack Super Moderator

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    You apparently have a defense base on what you originally posted though I'm not sure how your second post applies to a trespassing charge.

    And what does:

    have to do with anything?

    At what stage of prosecution are you? Do you have a criminal defense attorney? What is he telling you about your defense?

    What is it that you want to learn by posting here?
     
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  6. mightymoose

    mightymoose Moderator

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    This sounds silly. A person serving legal papers is not trespassing, regardless of the sign.
     
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  7. army judge

    army judge Super Moderator

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    I agree.

    This would be akin to "trespassing" fire department, health department, police department, sheriff's department, or other government officials acting in their official capacity transacting government business on behalf of their agency.
     
  8. AFAF

    AFAF Law Topic Starter New Member

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    Well, obviously. But tell that to the DA and judge who issued the arrest warrant.

    Why do you think they couldn't care less about the law?

    It's great to talk about legal theory, but this is legal REALITY.
     
  9. Zigner

    Zigner Well-Known Member

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    You need an attorney. Your professional insurance may assist in your defense - it's a long shot, but worth a try.
     
  10. Tax Counsel

    Tax Counsel Well-Known Member

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    And the reality is that you have to make the proper motion or defense in your case. The judge that issued the warrant may not have been told in the warrant application that you were serving judicial process, after all. The DA might not have been aware of that either, for that matter. But once you establish that is what you were doing and point out the case law you should find the charges dismissed. Your best shot at doing that is to get an attorney to represent you.
     
  11. AFAF

    AFAF Law Topic Starter New Member

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    Thank you for your thoughtfulness.

    Apparently, the court has appointed an attorney who is their "go to guy" for plea bargains. He will not argue the above case law.

    Suggestions on getting a court to change an appointed attorney?

    While I can handle motions and civil litigation, I have no experience in criminal procedure. Complainant is a woman who considers service of process to be legal harrassment and stalking -- i.e., a person who simply wants to be immunized from the other's due process rights.
     
    Last edited: Feb 9, 2021
  12. mightymoose

    mightymoose Moderator

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    Just curious... What is the exact criminal statute you are accused of violating?
     
  13. adjusterjack

    adjusterjack Super Moderator

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    That's easy. You "hire" your own attorney. Your attorney files his appearance as your representative and the public defender goes bye bye.

    Which is exactly why you hire your own attorney.
     
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  14. Zigner

    Zigner Well-Known Member

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    Have you spoken to your insurer about this matter?
     
  15. AFAF

    AFAF Law Topic Starter New Member

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    I am not a "professional" process server, and thusly do not need or have "professional insurance" for helping people 2 or 3 times a year.
     
  16. AFAF

    AFAF Law Topic Starter New Member

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    Please let me know how much you want to donate.
    If I had the money, I would not have qualified for a court appointed lawyer.

    So just how do you propose that I "hire" wink-wink, my own attorney, the "easy" way?
     
    Last edited: Feb 18, 2021
  17. AFAF

    AFAF Law Topic Starter New Member

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    (underscore added)

    ORS 164.245
    (1) A person commits the crime of criminal trespass in the second degree if the person enters or remains unlawfully... in or upon premises.

    ORS 164.205
    (3) Enter or remain unlawfully means:
    (a) To enter or remain in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the entrant is not otherwise licensed or privileged to do so;
     
  18. AFAF

    AFAF Law Topic Starter New Member

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    (underscore added)

    ORS 164.245
    (1) A person commits the crime of criminal trespass in the second degree if the person enters or remains unlawfully... in or upon premises.

    ORS 164.205
    (3) Enter or remain unlawfully means:
    (a) To enter or remain in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the entrant is not otherwise licensed or privileged to do so;
     
  19. mightymoose

    mightymoose Moderator

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    Unless you are leaving out significant details I suspect your appointed counsel can make easy work of this. You are one of many clients though. You'll have to be patient.
    The prosecution will have to prove beyond a reasonable doubt that your presence was not lawful in order for you to be convicted.
     
  20. Redemptionman

    Redemptionman New Member

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    Yeah something doesn't sound right, sometimes a court may issue a blanket warrant without knowing the true facts of the case. I am not clear if you are the actual process server and bonded as such which would allow defense under the statues that you quoted.

    Lots of claimants do just what this individual did with a counterclaim, harassment charge which is basically meaningless and by its nature intended to harass and limit the person who was just doing their job. If it is cut and dry as you say then you should get it thrown out.
     

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