Lead Opinion
Defendant was convicted of theft in the second degree. On appeal, he assigned as error the trial court’s denial of two pretrial motions to dismiss the indictment on constitutional grounds. One of these motions claimed that defendant was denied equal protection of the law because he was prosecuted and potential codefendants were given immunity without reference to any standards for the disparate treatment, and because he could not obtain the testimony of witnesses by granting them immunity from the use of their testimony against themselves, as the state may do or assist other defendants to do. The second motion to dismiss the indictment claimed that the failure to accord defendant a preliminary hearing after his indictment denied him due process and equal protection of the law under a number of state and federal constitutional provisions.
I. Denial of a preliminary hearing.
Oregon law provides for charging a person with a felony either by grand jury indictment or by a district attorney’s information. Article VII (amended), section 5, of the Oregon Constitution permits a district attorney to charge a person on an information filed in
No comparable procedural rights are accorded a person charged before a grand jury. To the contrary, the statutes provide that only the prosecutor and a witness actually under examination shall be present during grand jury sittings, unless a court orders the presence of a reporter of testimony or other necessary attendants, ORS 132.090; the grand jury need not hear any evidence for the defendant, ORS 132.320(4); and it may find an indictment upon the apparent strength of prosecution evidence “if unexplained or uncontradicted,” although the defendant had no opportunity to test, explain, or contradict the evidence. ORS 132.390.
Article I, section 20. Defendant does not spell out the distinct premises of his “equal protection” attack, relying only on the decision of the Supreme Court of
Article I, section 20 provides:
“No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”
This guarantee, taken like most of Article I from Indiana’s Constitution of 1851, has been a part of the Bill of Rights since Oregon became a state in 1859. Antedating the Civil War and the equal protection clause of the fourteenth amendment, its language reflects early egalitarian objections to favoritism and special privileges for a few rather than the concern of the Reconstruction Congress about discrimination against disfavored individuals or groups.
More important to the present case is the dual test of the proscribed kinds of discrimination or unequal treatment. The clause forbids inequality of privileges or immunities not available “upon the same terms,” first, to any citizen, and second, to any class of citizens. In other words, it may be invoked by an individual who demands equality of treatment with other individuals as well as by one who demands equal privileges or immunities for a class to which he or she belongs. Because constitutional attacks under Article I, section 20 mostly have been directed at laws prescribing general rules for one or another class of subjects, these attacks, as well’as most judicial opinions, have been phrased in the rhetoric of forbidden “classification,” but that is only one of two distinct grounds of attack. A classic example of the other, individual, basis is Altschul v. State,
This dual coverage of Article I, section 20, was recognized in the first case under the section, In re Oberg,
“All sailors of a seagoing vessel within the prescribed limits are treated alike, and entitled to enjoy the privileges or immunities granted. The act prescribes the same rule of exemption to all persons placed in the same circumstances. It does not grant to a sailor immunity from arrest for debt, and refuse it to his neighbor, if they be similarly situated. The same privilege or immunity is extended by the act to all in the same situation. Any person who is a sailor may enjoy the immunity, and any citizen desiring such immunity may have it in the words of the constitution, ‘upon the same terms,’ by becoming a sailor. While one may enjoy the benefit of the exemption, and another may not, this results not because the statute favors one, and discriminates against another, but because one brings himself within its terms, and the other does not.”
“It does 'not prescribe one rule for one citizen or soldier, and another for his neighbor, if they be in the same situation. We have a statute regulating continuances on account of the absence of witnesses, which gives a uniform rule to all litigants. And yet one may be entitled to a continuance and another not. This results, not because a different rule is prescribed for each, but because one brings himself within its terms and the other does not.... “
Id. And the Oberg court continued with quotations to the same effect from Tennessee
“The discriminations which are open to objection are those where persons engaged in the same business are subject to different restrictions, or are held entitled to different privileges under the same conditions. It is only*239 then that the discrimination can be said to impair that equal right which all can claim in the enforcement of the laws. (Soon Hing v. Crowley,113 U. S. 709 .)”
It has thus been clear from the earliest judicial discussion of Article I, section 20, that this section is a guarantee against unjustified denial of equal privileges or immunities to individual citizens at least as much as against unjustified differentiation among classes of citizens. It also was early established that the guarantee reaches forbidden inequality in the administration of laws under delegated authority as well as in legislative enactments. White v. Holman, supra, held that a board of commissioners had violated Article I, section 20, in denying petitioners a license to maintain a sailors’ boarding house because the board had not used objective standards for selecting qualified licensees but rather had followed the recommendations of shipowners that the business be limited to another firm’s boarding house. Similarly, in Monroe v. Withycombe, supra, this court said that if the legislature could not itself directly authorize exclusive fishing rights for some persons, it could not authorize a master fish warden to do so indirectly.
One branch of Article I, section 20, and decisions under it thus call for analysis whether the government has made or applied a law so as to grant or deny privileges or immunities to an individual person without legitimate reasons related to that person’s individual situation. More frequent cases have involved attacks on statutes under the branch of the guarantee that forbids laws granting or denying a privilege or immunity to a class of citizens. The two are sometimes interrelated, for when wholly standard-less application of a general law to individual cases is
That mode of analysis has notorious difficulties, which this court has not escaped.
The terms “class” and “classification” are invoked sometimes to mean whatever distinction is created by the challenged law itself and sometimes to refer to a law’s disparate treatment of persons or groups by virtue of characteristics which they have apart from the law in question. Familiar examples of the latter kind of “class” are personal characteristics such as sex, ethnic background, legitimacy, past or present residency or military service. On the other hand, every law itself can be said to “classify” what it covers from what it excludes. For instance, the rule of this court that limits the time for filing a petition for review (Rule 10.05) “classifies” persons by offering the “privilege” of review to those who file within 30 days and denying it to those who file later. Similarly, a law that licenses opticians and optometrists to perform different functions, see Williamson v. Lee Optical,
For like reasons, different treatment of comparable facts at different geographic locations within the state is not necessarily a denial of equal privileges or immunities under Article I, section 20. It may or may not be. The answer depends in part on the level of government that makes the law. When local governments make and administer their own policies, obviously these policies legitimately may produce different privileges or immunities from those available elsewhere, as long as the guarantees of Article I, section 20, are observed within the reach of the local law. The same may be true when state legislation leaves the choice among policies to local agencies. See City of Klamath Falls v. Winters, supra (choice between two channels of prosecution and appeal); Olsen v. State ex rel Johnson,
Application to this case. The foregoing summary of the several distinct issues that can arise under Article I, section 20, serves to isolate the issue that is presented by defendant’s reliance on Hawkins v. Superior Court, supra.
There is no question that the opportunity of a preliminary hearing is a “privilege” within the meaning of the constitutional guarantee, and potentially one of great practical importance. The grant or denial of this privilege is controlled by the state’s choice, acting through the district attorney, to proceed by indictment or by information. Defendant’s attack, under Hawkins, is on the “classification” between persons who are charged by information and
In City of Klamath Falls v. Winters, supra, this court also dealt with the existence of two separate procedures available to prosecute the same offense either in a municipal court, with a new trial in circuit court but no further appeal, or in a district court with an appeal to the Court of Appeals. There the court found it “difficult to state categorically which system offers greater advantages to defendants.”
We do not follow the Hawkins court to the conclusion, however, that this difference between two available procedures necessarily represents a denial of equal protection of the laws, regardless of showing which defendants receive one or the other procedure. Hawkins reached this conclusion in “classification” terms, by defining as two
Each of the two procedures, however, is expressly authorized by the constitution itself. Properly administered, each satisfies the fourteenth amendment. Hurtado v. California,
Fourteenth amendment equal protection. This court often has stated that for most purposes analysis under Article I, section 20 and under the federal equal protection clause will coincide, see, e.g., School Dist. No. 12 v. Wasco County,
II. Denial of immunity.
Defendant also moved to dismiss the indictment on the grounds, first, that the state’s decision to prosecute defendant and grant immunity to potential codefendants were made “without benefit of or reference to any written or otherwise articulated standards and guidelines” and without judicial scrutiny, and second, that the state thereby was able to obtain the testimony of witnesses who would not testify without immunity while denying defendant similar access to testimony, in both respects denying him equal protection of the law.
The facts are that defendant was one of four students at Oregon State University implicated in the theft of chairs from a university basement. Two of the students were granted full immunity from prosecution and became prosecution witnesses against defendant. The circuit court denied defendant’s motion, citing State v. Grabill,
Defendant criticizes Grabill, arguing that the issue is not equal power to immunize a witness from prosecution but only the limited opportunity to compel a reluctant witness to testify by assuring the witness that his testimony cannot later
The Court of Appeals rejected defendant’s attack on the grant of immunity to the other potential defendants by stating that “[t]he district attorney, as the prosecutor, answers to the electorate for the conduct of his office” and that the exercise of his discretion is “not subject to judicial supervision.”
“[discretion is not a magic word. It is only a range of responsible choice in pursuing one or several objectives more or less broadly indicated by the legislature (or, in Oregon, sometimes by the people themselves) under various circumstances pertinent to those objectives. This applies to a discretionary choice of sanctions just as to other delegated authority.”
The Court of Appeals found that there was such an explanation in this case.
“The evidence showed that a number of persons were involved in the criminal activities for which defendant was indicted. Several of those individuals pleaded guilty to one or two charges and were granted immunity from further prosecution in exchange for their testimony against defendant before the grand jury and at his several trials. The prosecutor in charge of the cases testified that he treated defendant differently because the investigation showed that defendant was the instigator of many of the crimes and had demonstrated that he was a greater threat to society than the other individuals.”
Affirmed.
Notes
Defendant relies primarily on Or Const Art I, § 20, and on the provisions of U S Const amend 14, § 1, that “[n]o state shall. . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The singular “law” is used in defendant’s equal protection argument, which refers collectively both to the state and the federal provision. Defendant cited Or Const art I, §§ 10 and 11, and the federal sixth amendment as “fundamental” rights which were not made “equally” available to him. He did not explain his citation of Or Const Art I, §§ 15 and 16. Cf. Sterling v. Cupp,
The concurring opinion asserts that defendant abandoned his reliance on Or Const Art I, § 20, on appeal, though it was a basis of his motion in the trial court. Defendant’s principal argument, however, was predicated on Hawkins v. Superior Court, 22 Cal3d 584,
Or Const Art VII (amended) § 5:
“(4) The district attorney may charge a person on an information filed in circuit court of a crime punishable as a felony if the person appears before the judge of the circuit court and knowingly waives indictment.
“(5) The district attorney may charge a person on an information filed in circuit court if, after a preliminary hearing before a magistrate, the person has been held to answer upon a showing of probable cause that a crime punishable as a felony has been committed and that the person has committed it, or if the person knowingly waives preliminary hearing.”
These procedures are spelled out in statutes; the constitution itself does not define “preliminary hearing.” ORS 135.070 - 135.185. The statutes use the male pronoun collectively for either gender.
Supra, n. 1. As a constitutional premise, the phrase “due process” must refer to this federal clause and must be supported by interpretations of the clause in decisions of the United States Supreme Court or of other courts based on such decisions, since the phrase does not appear in the Oregon Constitution. See Megdal v. Board of Dental Examiners, supra, n. 1. It will avoid needless confusion if “due process” is not used to refer generically to whatever procedures may be required by other sources or state or federal law. No such other sources are quoted or argued in this case.
The fact that a procedure, a power, or a program is itself stated in the constitution, as are the provisions for indictment and information, does not relieve them from compliance with other constitutional standards unless these are expressly excluded. There are many such provisions placed in the Oregon Constitution (e.g. sale of alcoholic liquor, Art I, § 39, educational funding, art VIII, §§ 2-5, and the bonding authorities of Article XI-A through H) that are not thereby placed beyond the guarantees in Article I, the Bill of Rights.
California Const Art I, § 7.
“(a) A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws.
“(b) A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.”
Like the California court, we scrutinize the challenged action under the Oregon Constitution before the fourteenth amendment. See Sterling v. Cupp,
Ind Const Art I, § 23 (1851). Its direct predecessors were Iowa Const Art I, § 6 (1846), Mich Const Art I, § 3 (1835), Tenn Const art XI, § 7 (1834). The original state declarations of rights had proscribed, more narrowly, “exclusive or separate emoluments or privileges from the community, but in consideration of public services,” Va Decl of Rights § 4 (1776) (similarly Mass Decl of Rights § VI (1780)), repeated in many state constitutions. Compare, as to the equal protection clause, Prank & Munro, The Original Understanding of “Equal Protection of the Laws,” 1972 Wash U L Q 421 (1972).
The quotation, taken from State v. Savage,
*237 “The provisions of the state Constitution are the antithesis of the fourteenth amendment in that they prevent the enlargement of the rights of some in discrimination against the rights of others, while the fourteenth amendment prevents the curtailment of rights... “
“[T]his clause of the constitution only prohibits the suspension of a general law or the grant of privileges, immunities or exemptions to an individual or individuals. It does not prohibit legislation for the benefit of classes composed of any members of the community who may bring themselves within the class.”
Davis v. State, 71 Tenn 376, 379 (1879), quoted at
In such cases, however, the constitutional issue normally would be avoided by interpreting the law in a manner consistent with the constitutional guarantee. See State v. Smyth,
“Words like. . . ‘equal’ in any constitutional formula, expressing a principle that like shall be treated alike, cannot rise beyond tautology without deciding what is alike for constitutional purposes, i.e., what are distinctions without a constitutionally permissible difference or what known forms of inequality the particular clause was meant to end____“
Tharalson v. State Dept. of Rev.,
Jones v. Helms rejected an equal protection attack on a differential penalty law. It stated:
“The Equal Protection Clause provides a basis for challenging legislative classifications that treat one group of persons as inferior or superior to others, and for contending that general rules are being applied in an arbitrary or discriminatory way. The portion of the Georgia statute at issue in this case applies equally to all parents residing in Georgia; nothing in appellee’s argument or in thé record suggests that the statute has been enforced against appellee any differently than it would be enforced against anyone else who engaged in the same conduct.”
(citing Yick Wo v. Hopkins,
The court rejected such a claim asserted under the federal equal protection clause in Bailleaux v. Gladden,
Moreover, defendant did not call a witness who refused to testify without immunity against later use of his testimony, nor did he otherwise show that such testimony would have been available to him. Under the circumstances, it is not apparent how the issue could be raised on a motion to dismiss the indictment.
Or Const Art VII (orig), § 17 provided:
“There shall be elected by districts comprised of one, or more counties, a sufficient number of prosecuting Attorneys, who shall be the law officers of the State, and of the counties within their respective districts, and shall perform such duties pertaining to the administration of Law, and general police as the Legislative Assembly may direct.”
See also ORS 8.650 - 8.680.
Concurrence Opinion
specially concurring.
I concur in the result reached by the majority. I disagree, however, with the lengthy discussion by the majority of the reasons why the denial of defendant’s demand for a preliminary hearing did not violate his rights under Article I, Section 20 of the Oregon Constitution.
In defendant’s petition for review to this court defendant not only did not cite Article I, Section 20, but appears to have abandoned the contention that his rights under Article I, Section 20 of the Oregon Constitution were violated. Thus, defendant’s contention in this court is that:
“The present constitutional framework in Oregon violates federal equal protection and due process guarantees.
“It is axiomatic that State constitutional provisions cannot be violative of federal constitutional rights any more than State legislative enactments can.
<<* * * * *
“This State’s failure to afford procedural protections to Defendants is as much a denial of federal equal protection guarantees as the denial of substantive rights under the law.”
At the time of oral argument in this case, defendant’s counsel was specifically asked whether he relied upon Article I, Section 20. His reply was that he relied upon federal equal protection and did not rely upon Article I, Section 20. In any event, he made no attempt to do so in the course of his argument before this court.
In the course of that lengthy discussion, the majority not only traces the development of the caselaw under Article I, Section 20, but undertakes an analysis of that constitutional provision and its application in various situations including, but not limited to, the problem presented in this case — all without the benefit of the adversary process and despite the fact that no such analysis was contended for by any party to this case.
An example may be found in that portion of the majority analysis of Article I, Section 20 as that analysis relates to defendant’s demand for a preliminary hearing when the prosecution is by indictment, rather than by information. There the majority discusses the effect of the fact that the discretion accorded to prosecuting attorneys to charge either by information or by indictment is also based upon provisions of the Oregon Constitution, Article VII, Section 5 (
Nevertheless, the majority undertook to decide this important question by its holding in a footnote that:
“The fact that a procedure, a power, or a program is itself stated in the constitution, as are the provisions for indictment and information, does not relieve them from compliance with other constitutional standards unless these are expressly excluded. There are many such provisions placed in the Oregon Constitution (e.g. sale of alcoholic liquor, art I, § 39, educational funding, art VIII, §§ 2-5, and the bonding authorities of article XI-A through H) that are not thereby placed beyond the guarantees in article I, the Bill of Rights.” (291 Or at 235, n. 5 ).
The majority opinion, in its lengthy discussion and analysis of Article I, Section 20, without benefit of the adversary process, is reminiscent of the recent opinion in Sterling v. Cupp,
In a specially concurring opinion in that case it was said, after citing decisions of the court holding that it will not decide a case upon a theory different from the theory on which the case was tried, that:
“If the adversary process, which is basic to our system of jurisprudence, is to be respected, the fact that this court is now a court of review, rather than a court of direct appeal, cannot properly justify a different result because to hold to the contrary would leave the parties free on petitions for review to propose, if not demand, that this court reverse either the trial court or the Court of Appeals for reasons based upon theories completely different from the theory upon which the case was both tried and appealed to the Court of Appeals.” (Sterling v. Cupp,290 Or at 635 ).
Finally, I must concur in the result reached by the majority by a specially concurring opinion because otherwise I would be acquiescing in the long delay in the decision of this case. This is another case which was “assigned but unwritten” for approximately six months before a proposed opinion was written and one which decides a case primarily upon the basis of an elaborate discussion and analysis of a
This court has previously held in Megdal v. Board of Commissioners,
“* * * Constitutional claims should identify the provisions of the constitution, state and federal, that the governmental action is said to contravene and should show the relevance of these provisions to the claim.”
To the same effect, see Rogers v. Department of Revenue,
Indeed, the majority in this case recognizes that “defendant has made no effort to show that the handling of his case violated those principles,” i.e., the “principles” of Article I, Section 20 of the Oregon Constitution (
See concurring opinion in Sterling v. Cupp,