STATE OF OREGON, Plaintiff, v. THOMAS HARRY BRAY, Defendant. J. B., Appellant, v. Brigid TURNER, prosecuting attorney; Thomas Harry Bray; and State of Oregon, Respondents.
(CC 11FE0228, 11FE1078; SC S060320)
In the Supreme Court of the State of Oregon
Argued and submitted June 1, interlocutory appeal dismissed June 7, 2012
279 P.3d 216
34
Brigid K. Turner, Deputy District Attorney, Bend, argued the cause and filed the response for respondent prosecuting attorney.
Greg Rios, Assistant Attorney General, Salem, argued the cause and filed the response for respondent State of Oregon. With him on the response were John K. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Stephen A. Houze, Portland, argued the cause and filed the response for respondent Thomas Harry Bray.
LANDAU, J.
De Muniz, J., concurred and filed an opinion.
In this criminal case, the victim has filed an interlocutory appeal, challenging several orders of the trial court that she contends violate her right to “refuse an interview, deposition or other discovery request by the criminal defendant,” under
The relevant facts are uncontested and largely procedural. The state charged defendant with a variety of sex offenses arising out of an incident in February 2011 in which the victim reported that defendant repeatedly and forcibly raped her. Defendant apparently intends to raise a defense of consent. Specifically, defendant contends that the victim was sufficiently uncertain about what had transpired that she felt the need to conduct an Internet search regarding the legal definition of “rape” before reporting the incident to the police. That fact, defendant asserts, would tend to contradict her claim that defendant repeatedly and forcibly raped her.
Defendant attempted to obtain from Google, Inc., by subpoena duces tecum “all internet activity and searches conducted by [the victim], email [of the victim], from February 22, 2011 to March 31, 2011, including IP addresses, web searches requested, results, and sites viewed” as well as “[a]ny and all of [the victim‘s] email *** to or from anyone concerning [defendant] from February 22, 2011, to March 31, 2011.” Google denied defendant‘s request, asserting that, under the
Defendant then moved for an order compelling the state to obtain the requested information from Google and provide him with copies of any information produced. Defendant argued that, under the
The prosecuting attorney requested the victim‘s consent, but she refused. Defendant then renewed his motion to compel. The prosecuting attorney opposed defendant‘s motion, arguing that requiring the discovery of the requested information following the victim‘s refusal to provide it would violate her right to refuse a discovery request under
Over the next several months, the prosecuting attorney resisted the trial court‘s order, contesting its ability to comply with the order for various reasons. By March 2012, the prosecuting attorney had yet to comply with the trial court‘s order.
On March 28, 2012, the prosecuting attorney filed, on behalf of the victim, a claim, under
On April 6, 2012, the trial court held a hearing on the victim‘s claim.1 Following arguments on the matter, the
On April 12, 2012, the prosecuting attorney submitted a form order that purported to reflect the trial court‘s “previous orders in this case related to the victim‘s Google search history.” The trial court responded that “[t]he prior orders of the court are all on the record.” The following day, Deschutes County District Attorney, Patrick Flaherty, sent a letter to the trial court requesting that it sign the previously submitted order. It appears from the record that the trial court did not immediately respond to that letter.
On April 27, 2012, the victim, represented by private counsel, filed with this court a notice of interlocutory appeal. Meanwhile, on May 14, 2012, the trial court entered an order that expressed in writing its reasons for its April 6 decision. Three days later, the victim filed an amended notice of interlocutory appeal. In her memorandum in support of her interlocutory appeal, the victim argues that the trial court erred in denying her victim‘s rights claim. She asserts that, by requiring the state to obtain her Google information on defendant‘s behalf, the trial court was “using the District Attorney‘s Office as a conduit to obtain discovery which Defendant cannot get directly from the victim given she has exercised her constitutional right not to provide such information.”
The prosecuting attorney and the Attorney General separately filed responses to the victim‘s notice of interlocutory appeal and supporting memorandum, essentially agreeing with her position. Both argue that the
In his response, defendant first asserts that this court lacks jurisdiction to address the merits of the victim‘s appeal because she failed to appeal within the time limit set by statute. Specifically, defendant argues that, under
The victim filed a reply memorandum responding to defendant‘s jurisdictional challenge. She argues that
We address only the parties’ arguments concerning jurisdiction, because the issue is dispositive. We begin with a brief overview of the relevant statutory context, before turning to the statutes that pertain to the dispute over jurisdiction in this case. In 1999, the voters enacted
Under those statutes, a victim who wishes to vindicate the rights set out in
The statute sets out certain requirements for such an order. First, subject to exceptions not relevant to this case, the order must “include the reasons relief was granted or denied.”
Appeal of such an order “shall be solely as provided” in the victims’ rights statutes.
Thus, in this case, the victim had seven days after “the trial court issued the order being appealed,” to file her
Defendant is correct. First,
The victim insists that the April 6, 2012, order was insufficient to trigger the statutory deadline for filing a notice of interlocutory appeal because it failed to include the reasons for the trial court‘s decision, as
First, that the order failed to include findings or reasons does not mean that the order did not “issue” within the meaning of
Second, in any event, the statute simply does not state what the victim contends, viz., that only a written order containing reasons triggers the deadline for filing a notice of interlocutory appeal. As we have noted,
The Attorney General, although agreeing that the statute permits the court to issue an order orally in open court, contends that the trial court‘s attempt to do so in this case was ineffective because the court‘s stated reasons were too abbreviated. As we have noted, however, whether the order was supported by sufficient reasons does not necessarily mean that the order had not been issued within the meaning of
At oral argument, the prosecuting attorney argued that, even if the issuance of an order on the record in open court might otherwise suffice to trigger the deadline for filing a notice of interlocutory appeal, the trial court‘s April 6, 2012, order did not have that effect in this case because the court neglected to provide her with a copy of the written order, as provided in
Nothing in the statute indicates that the legislature intended that providing a copy of the order to any particular person would be a jurisdictional predicate for appealing the order. To the contrary, the statute provides that issuance of the order —not additional notice of issuance —is what triggers the seven-day deadline.
The interlocutory appeal is dismissed.
DE MUNIZ, J., concurring.
I concur in the court‘s conclusion that we must dismiss this appeal for lack of jurisdiction. I write separately, however, to express my concern regarding the legislatively prescribed procedures to bring an interlocutory appeal to this court in a victims’ rights case.
This is the fourth interlocutory appeal of an order involving crime victims’ rights that this court has received since the voters adopted
The first appeal, State v. Mann (SC S059297), was jurisdictionally defective because the victim did not serve the notice of appeal on the prosecuting attorney and the Attorney General in a manner calculated to ensure that it was received on the same date that the notice of appeal was filed with this court. See
The second notice of appeal, State v. Barrett (SC S059408), was jurisdictionally defective because the victim had not timely served the Office of Public Defense Services. See
The fourth appeal is the present case. As we have explained, it is jurisdictionally defective because the notice of appeal was not filed within seven days after the trial court had “issued” its order. See
Of the four interlocutory appeals of an order involving crime victims’ rights, then, three failed because procedural errors deprived this court of jurisdiction. Only one case proceeded to an opinion on the merits, and that was simply and solely because the victim had time to file a corrected and jurisdictionally proper notice of appeal. Even though these appeals involve constitutional rights —with all the importance that the constitutional grant of those rights suggests—we cannot ignore legislatively prescribed limitations on the ability to appeal decisions involving them. See State v. Endsley, 214 Or 537, 539, 331 P2d 338 (1958) (in civil and criminal cases, “[a]n appeal is not a matter of absolute right, but a statutory privilege” (citations omitted)); Anderson et al. v. Harju et al., 113 Or 552, 556, 233 P 848 (1925) (“The right of appeal is wholly statutory and the methods of procedure therein are such only as the statute provides.“). See also
In
I concur.