Reverend F. Wayne BRYANT, Reverend Jon B. Buffington, Reverend Gary Davis, Reverend John Dennis, Reverend Charles F. Falconer, Reverend Dr. Myron M. Hall, Ellen C. Lowe, Reverend Dr. Mark Reid, Rabbi Emanuel Rose, Reverend Elwin Schwab, Reverend Dr. Marilyn Sewell, Elder Murray J. Smith, Reverend Kenneth D. Steiner, and Reverend Paul R. Swanson, Appellants, v. S. Frank THOMPSON, Superintendent of the Oregon State Penitentiary, and State of Oregon, Respondents.
(CC 96C12828; SC S43560)
In the Supreme Court of the State of Oregon
September 5, 1996
922 P.2d 1219 | 324 Or. 141
Virginia L. Linder, Solicitor General, Salem, argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Attorney General, and Rives Kistler, Robert B. Rocklin, and Janet A. Metcalf, Assistant Attorneys General, Salem.
Before Carson, Chief Justice, Gillette, Van Hoomissen, Fadeley, Graber, and Durham, Justices, and De Muniz, Justice pro tempore.
CARSON, C. J.
Fadeley, J., filed a specially concurring opinion.
On March 21, 1996, this court issued an opinion affirming Douglas Franklin Wright‘s convictions on eight counts of aggravated murder and affirming the sentence of death imposed upon him. State v. Wright, 323 Or 8, 913 P2d 321 (1996). After the period for reconsideration of that decision had passed without the filing of a petition for reconsideration, the appellate judgment issued on May 3, 1996. Wright was represented by counsel throughout the appellate process before this court. No petition for certiorari has been filed with the United States Supreme Court.
On June 6, 1996, in the Circuit Court for Wasco County, the judge who had presided over Wright‘s aggravated murder trial conducted a proceeding that concluded with the issuance that day of a “death warrant,” pursuant to
On August 22, 1996, the case at issue here was filed in the Circuit Court for Marion County. The complaint is for a declaratory judgment and injunctive relief. Plaintiffs are citizens, residents, and taxpayers of the State of Oregon. Defendants are the State of Oregon and the Superintendent of the Oregon State Penitentiary.
Plaintiffs’ claim relies upon
The parties appeared before the Circuit Court for Marion County on August 28, 1996. The court concluded that plaintiffs have failed to join Wright, an indispensable and necessary party, that plaintiffs lack standing, and that plaintiffs are wrong in asserting that
Simply stated, plaintiffs contend that
Plaintiffs’ claim to standing here is based upon the underlying assertion that
Ordinarily, we would examine the question of plaintiffs’ standing as a threshold issue before considering the merits of plaintiffs’ claim. In this case, however, the questions of standing and the merits are intertwined, and the resolution of the merits of plaintiffs’ claim permits us to assume arguendo, without deciding, that they have standing to bring the claim. We proceed, accordingly, to consider whether the requirement under
The source of plaintiffs’ argument is State v. Martini, 144 NJ 603, 677 A2d 1106 (1996). In that recent decision, the New Jersey Supreme Court held that the New Jersey state constitution requires that a post-conviction review be held in every death penalty case, whether or not the convicted criminal defendant wishes to pursue that remedy. The Martini decision is not based upon a state constitutional provision that is textually or otherwise similar to
To interpret a provision of the Oregon Constitution, the court considers “[i]ts specific wording, the case law surrounding it, and the historical circumstances that led to its creation.” Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992).
“No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.”
Case law provides some insight into the meaning of
“[Article I, s]ection 40[, providing for the death penalty] and the statutes to implement it were duly enacted by an overwhelming majority of the people of this state. If defendant received a trial and sentence according to those and other applicable laws, he received ‘justice,’ for justice is received if judgment is given according to the law. A law itself may be unjust, as the opponents of capital punishment believe our present law to be, but unjust and injustice are two different things.” (Emphasis added.)
Nothing in the case law suggests that
We turn to an examination of the history of
“And therefore every Subject of this Realm, for injury done to him in bonis, terris, vel persona [i.e., goods, lands, or person], by any other Subject, be he Ecclesiastical, or Temporal, Free or Bond, Man or Woman, Old or Young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the Law, and have justice and right for the injury done him, freely without sale, fully without any denial, and speedily without delay.
“Hereby it appeareth, that Justice must have three qualities, it must be Libera, quia nihil iniquius venali Justitia; Plena, quia Justitia non debit claudicare; & Celeris, quia dilatio est quaedam negatio; and then it is both Justice and Right.”
The Latin translates: “free, for nothing is more iniquitous than justice for sale; complete, for justice should not do things by halves; swift, for justice delayed is justice denied.”5
Lord Coke in his writing and his work fought against royal interference with the common-law courts. Over 100 years later, American colonists turned to Coke‘s writings as ammunition for their fight against the Crown‘s interference in colonial common-law courts.
Coke wrote the Second Institutes to justify the judiciary‘s independence from the Crown. He fought against the sale of common-law justice through corruption and against the denial and delay of justice through external interference with the courts by the King and his ministers. During Coke‘s era, the King would consult with judges on pending cases and stop or delay proceedings pending in common-law courts.
Similarly, in colonial America, lawyers considered the integrity of their courts to be threatened by improper political pressure. The Crown interfered in the colonial judiciary by controlling the payment of judges and insisting on the right to remove colonial judges at will. Beginning with the Stamp Act, in 1765, the Crown actively hampered the administration of justice by the colonial courts.
“That every freeman for every injury done him in his goods, lands or person, by any other person, ought to have remedy by the course of the law of the land, and ought to have justice and right for the injury done to him freely without sale, fully without any denial, and speedily without delay, according to the law of the land.”
In Pennsylvania‘s 1790 constitution, the phrase “fully without any denial” became “without sale, denial, or delay.” The inclusion of such phrasing was intended to promote and protect an independent judiciary, much as it was in Coke‘s era.
Another provision of the Oregon Constitution lends support to our conclusion about the meaning of
“The privilege of the writ of habeas corpus shall not be suspended unless in case of rebellion, or invasion the public safety require it.”
As we have explained, plaintiffs’ theory on the merits is that the state must conduct post-conviction review before a person may be executed. But the statutory right to post-conviction relief derives from
“The institution of habeas corpus consists of the power of the courts to inquire into the legality of a detention. * * *
“In Oregon, the writ of habeas corpus is intended to allow a detained person the opportunity to inquire into the legality of that detention, with a view to an order releasing the petitioner.”
Bartz v. State of Oregon, 314 Or 353, 364-65, 839 P2d 217 (1992). The Post-Conviction Hearing Act is a statutory substitute for habeas corpus with respect to the substantive grounds set out therein. Id. at 362-64. Nonetheless,
The text of
Case law similarly suggests that the right to seek habeas corpus relief is personal and not obligatory. In Bartz, this court explained that the writ of habeas corpus guaranteed in
Neither does history support a suggestion that collateral review of a criminal conviction or sentence is mandatory and nonwaivable. Standing to bring a habeas corpus action historically has been limited to the affected individual or an individual who can file the action as a “next-friend” in
It follows from the foregoing that, if the remedy is not sought by a person to whom the right belongs, the state constitution does not require that the judicial system conduct some sort of proceeding, either sua sponte or at the behest of a third party who is not connected with a person to whom the right belongs.
In view of our disposition on the merits, we need not decide the remaining assignments of error.
In conclusion, plaintiffs are not entitled to the declaratory judgment and injunctive relief that they seek. It follows that the trial court did not err in dismissing their case.
The judgment of the circuit court is affirmed.
FADELEY, J., specially concurring.
The Solicitor General argued for the government of this state on September 4 that the condemned has a right to
Those among our citizenry who wish him a reformed life rather than a retributive death have done their best, but they are not the condemned. They have succeeded only in demonstrating that a process designed to correct constitutionally erroneous sentences is available under our law, but has not been invoked by the only person who could do so. He has not attempted or completed that process.
The condemned judges himself to be evil; he desires death at the hands of the government for his terrible crimes. He does not join in the efforts to have his death sentence process reviewed for fundamental, prejudicial legal errors. Saying that is sufficient to answer the citizens seeking to avert an “erroneous” execution. This is not the time, nor was this case contested between real parties in interest sufficiently to permit, a constitutional interpretation of an age-old guarantee about the judicial system, a guarantee of independence of the courts from the other holders of governmental power. That guarantee,
All that is necessary is that the court do nothing, because the condemned has brought no real case before it. Because that choice by the court would not be legally wrong, I join in the disposition of this case. I find it unnecessary, therefore, and also unwise in this case, to consider the merits of the other issues to which the majority speaks.