461 P.3d 985
Or. Ct. App.2020Background
- Petitioner Martin Allen Johnson was convicted of aggravated murder, sentenced to death, and later challenged his conviction in a post-conviction proceeding alleging ineffective assistance of trial counsel.
- The post-conviction court granted Johnson a new trial in 2013; the Supreme Court later affirmed that relief in Johnson v. Premo (361 Or 688).
- Before Longo and Brumwell were decided, the post-conviction court denied Johnson’s pretrial ORCP 36 C motion for a protective order restricting use of attorney-client materials disclosed in discovery.
- After Longo and Brumwell, Johnson filed a pro se post-judgment ORCP 36 C motion (2015) seeking broad protection for materials disclosed in the post-conviction case; the post-conviction court denied it as untimely and beyond its jurisdiction.
- Retrial on the criminal charges occurred while this appeal was pending; trial counsel asked the retrial court about prosecutors’ exposure to post-conviction privileged materials, prosecutors said they had only seen judicial opinions, and retrial resulted in a guilty verdict and life sentence.
- The Court of Appeals considered whether the appeal remained justiciable and concluded that, because retrial had concluded and Johnson identified no concrete practical effects or collateral consequences from the denial, the appeal was moot and was dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a post-judgment ORCP 36 C protective order should have been entered to limit the state’s use of privileged materials from the post-conviction proceeding | Johnson: court should issue protective order (per Longo/Brumwell) to prevent later use of privileged materials at retrial or other proceedings | Premo: motion was untimely, repetitive, outside post-conviction court’s jurisdiction; retrial moots the request | Appeal dismissed as moot; court did not reach merits of issuing a post-trial ORCP 36 C order |
| Whether disclosure in post-conviction discovery waived the attorney-client privilege or required prophylactic orders for later proceedings | Johnson: absent protective order, disclosed privileged materials could be used against him at retrial | Premo: disclosure under the limited OEC 503(4)(c) exception does not effect a waiver beyond the post-conviction case; privilege persists | Court: privilege is not dependent on issuance of a protective order; limited exception applies only during the pendency of the post-conviction case and does not waive privilege for future proceedings |
| Whether the appeal is justiciable / moot because a retrial has occurred and petitioner got the relief he sought earlier | Johnson: denial of protective order could have practical effects or collateral consequences in future litigation if privileged materials were used | Premo: retrial occurred; prosecutors represented they had not accessed privileged materials; petitioner has not shown a significant probability of concrete harm | Court: petitioner identified no practical effects or non-speculative collateral consequences; appeal is moot and dismissed |
Key Cases Cited
- Longo v. Premo, 355 Or 525 (recognizing a limited OEC 503(4)(c) breach-of-duty exception in post-conviction discovery and that protective orders are appropriate to prevent use of privileged materials not reasonably necessary to the claim)
- Brumwell v. Premo, 355 Or 543 (same principle as Longo regarding discovery-stage protective orders in post-conviction proceedings)
- Johnson v. Premo, 361 Or 688 (Sup. Ct.) (affirming post-conviction relief—new trial—based on ineffective assistance of counsel)
- Brumnett v. PSRB, 315 Or 402 (mootness: a case is moot when the court’s decision will no longer have a practical effect on the parties)
- State v. Hemenway, 353 Or 498 (mootness doctrine: changed circumstances can render a case moot)
- Garges v. Premo, 362 Or 797 (explaining that a party opposing mootness must identify practical effects or collateral consequences that are more than speculative)