STATE OF OREGON, Petitioner on Review, v. FREDERICK WILLIAM COOKMAN, Respondent on Review.
(CC 91-1524; CA A73459; SC S41424)
STATE OF OREGON
Argued and submitted January 12, 1995, decision of the Court of Appeals and order of the circuit court are affirmed August 15, 1996
920 P2d 1086
FADELEY, J.
Richard Lee Barton, of Barton and Associates, Portland, argued the cause and filed the briefs for respondent on review.
Gayle A. Shields, Michael A. Greenlick, and Ronald M. Fishback, Portland, filed a brief on behalf of amicus curiae Oregon Criminal Defense Lawyers Association.
Before Carson, Chief Justice, and Gillette, Fadeley, Graber, and Durham, Justices.**
FADELEY, J.
** Van Hoomissen, J., did not participate in the consideration or decision of this case; Unis, J., retired June 30, 1996, and did not participate in this decision.
Defendant was indicted for committing three felonies between June 1 and September 1, 1986: (1) using a child in a display of sexually explicit conduct,
Defendant demurred, arguing that the state was time-barred from prosecuting him.1 Specifically, defendant argued that his prosecution was barred by the three-year statute of limitations that was in effect when he allegedly committed the crimes,
On the state‘s appeal,3 a divided Court of Appeals, sitting in banc, affirmed. State v. Cookman, 127 Or App 283,
A concurrence agreed with the outcome, but would not reach the due process issue, because “the trial court‘s judgment can and should be affirmed on state constitutional grounds.” Id. at 290 (Leeson, J., concurring). The concurrence then stated that
A four-judge dissent stated that defendant had not raised a due process issue at trial, id. at 293 (De Muniz, J., dissenting); that, in any case, the majority‘s due process analysis was in error, id. at 295-96; and that the dissent would have held that the ex post facto provisions of the state and federal constitutions do not bar the prosecution, id. at 299.
The state petitioned for review, and we allowed the petition. For the reasons that follow, we affirm the decision of the Court of Appeals and the order of the circuit court.
STATUTORY ANALYSIS
In 1989, the legislature amended
In 1991, the legislature again amended
“ORS 131.125 is amended to read:
“*****
“(2) A prosecution for any of the following felonies may be commenced within six years after the commission of the crime or, if the victim [,] at the time of the crime[,] was under 18 years of age, anytime before the victim attains 24 years of age or within six years after the offense is reported to a law enforcement agency or other governmental agency, whichever occurs first:
“*****
“(j) Sexual abuse in the first degree under
ORS 163.425 .“(k) Using a child in a display of sexual conduct under
ORS 163.670 .“(L) Dealing in depictions of a child‘s sexual conduct under
ORS 163.673 .” (Deletions in brackets; additions in boldface.)
Section 2 of the same Act provided:
“The amendments to
ORS 131.125 by section 1 of this Act apply to all causes of action whether arising before, on or after the effective date of this Act, and shall act to revive any cause of action barred byORS 131.125 (1989 Edition) if the action is commenced within the time allowed byORS 131.125 as amended by section 1 of this Act.”5
The Court of Appeals held that the legislature intended the 1991 amendments to revive the present prosecution, even though that prosecution was barred by the pre-1989 version of
In interpreting a statute, we seek to discern the legislature‘s intent. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). At the first level of analysis, we consider text and context. Ibid.
Section 2 of the 1991 Act, quoted above, begins by providing that the amendments to the statutes of limitation “apply to all causes of action whether arising before, on or after the effective date of this Act.” (Emphasis added.) With respect to crimes, a “cause of action” arises when the crime is committed. The broad sweep of the first half of section 2 covers the crimes alleged here. The second half of section 2 creates an ambiguity, however, by specifying that the amendments are meant to “revive any cause of action barred by ORS 131.125 (1989 Edition).” (Emphasis added.) The context does not resolve that ambiguity in the text.
Because it is not clear from text and context whether the legislature intended the 1991 amendments to revive a prosecution otherwise barred by the pre-1989 version of
The most apt maxim here is that the court will attempt to determine how the legislature would have
First, it is quite clear that the substantive 1991 amendments were intended to make it easier for the state to prosecute the listed crimes. Second, the basic thrust of Oregon Laws 1991, chapter 388, section 2, is to take advantage of retroactivity as broadly as possible. Third, the legislature had before it the opinion of at least one member to the effect that retroactive revival of a time-barred prosecution did not violate constitutional proscriptions against ex post facto laws. Tape recording, House Judiciary Family Justice Subcommittee, February 13, 1991, Tape 31, Side A at 60-67 (comments of Representative Edmunson). In the circumstances, we see no reason why the legislature would have intended that the advantage conferred on the state be limited to revival of prosecutions barred only by the 1989 version of the statute of limitations. We hold, therefore, that the 1991 amendments are to be read to revive all prosecutions of the listed crimes when those prosecutions would have been time-barred under the 1989 or the pre-1989 version of
STATE CONSTITUTIONAL ANALYSIS
This court considers state constitutional claims before considering federal constitutional claims. State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983); Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123 (1981). Accordingly, we turn to the issue raised under Article I, section 21, of the Oregon Constitution, which prohibits ex post facto laws. In interpreting a provision of the Oregon Constitution, we consider “[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).
Article I, section 21, provides, simply, that “[n]o ex-post facto law * * * shall ever be passed.” That is, it forbids the passage of laws “after the fact.”
This provision ought not be read to forbid laws from having any retrospective application, however. Laws are, by design, applicable to historical facts. See Bryant Smith, Retroactive Laws and Vested Rights, 5 Tex L Rev 231, 233 (1927) (discussing concept of retroactivity). Rather, from its wording, the provision forbids only those laws that are designed to be applicable to facts that have occurred before the passage of the laws. In short, the focus of this provision is on the time when a law takes effect, State v. Robertson, 293 Or 402, 408 n 4, 649 P2d 569 (1982): A law may not affect events to which it relates retroactively, if those events occurred before the law‘s effective date.
2. Cases
Despite Article I, section 21‘s seemingly broad scope, this court has restricted that provision‘s prohibition to criminal laws, Fisher et al. v. City of Astoria, 126 Or 268, 286, 269 P 853 (1928), and, further, to only certain kinds of criminal laws:
“Generally speaking, ex post facto laws punish acts that were legal at the time they occurred, change the punishment for those acts,6 or deprive the defendant of a defense for those acts.” State v. Gallant, 307 Or 152, 155, 764 P2d 920 (1988).
In a similar vein, this court has quoted with approval the United States Supreme Court‘s understanding of the scope of the ex post facto provision contained in Article I, section 10, of the federal constitution, on the assumption that that provision‘s scope is similar to the scope of Article I, section 21:
“The Court explained the meaning of the Ex Post Facto Clause as follows:
“ ‘ “It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.” ’ [Collins v. Youngblood, 497 U.S. 37, 42, 110 S Ct 2715, 111 L Ed 2d 30 (1990)] (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S Ct 68, 70 L Ed 216 (1925)).
“In summary, the Court stated, ‘[l]egislatures may not retroactively alter the definitions of crimes or increase the punishment for criminal acts.’ Id. at 42.” State v. Wille, 317 Or 487, 502, 858 P2d 128 (1993).7
The state has conceded before this court that count 2 of the indictment—charging defendant with dealing in depictions of a child‘s sexual conduct,
From our independent analysis, the state‘s concession appears to be well taken.8 Defendant allegedly violated
3. History
Article I, section 21, was adopted by convention in 1857. The record of that convention does not indicate the convention‘s intent in adopting the provision. See Charles Henry Carey, The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857 (1926). However, it appears that Article I, section 21, was derived from the Indiana Constitution of 1851, specifically, Article I, section 24, of that Constitution.9 W. C. Palmer, The Sources of the Oregon Constitution, 5 Or L Rev 200, 202 (1926). Article I, section 24, of the 1851 Indiana Constitution is itself substantially similar to Article I, section 18, of the 1816 Indiana Constitution.10
In 1822, the Indiana Supreme Court construed the 1816 provision as follows:11
“The words ex post facto have a definite, technical signification. The plain and obvious meaning of this prohibition is, that the Legislature shall not pass any law, after a fact done by any citizen, which shall have relation to that fact, so as to punish that which was innocent when done; or to add to the punishment of that which was criminal; or to increase the malignity of a crime; or to retrench the rules of evidence, so as to make conviction more easy.” Strong v. The State, 1 Blackf 193, 196 (1822) (citing Calder v. Bull, 3 US (3 Dall) 386, 1 L Ed 648 (1798), among other authorities).12
It is readily obvious that those Indiana decisions do not add much to this court‘s previously announced understanding of Article I, section 21, discussed above. But see Gallant, 307 Or at 155 (application of a uniform rule of evidence of general application that “did not affect a substantive right” in a trial for a crime committed before the rule was adopted does not violate Article I, section 21).
Be that as it may, the history of the ex post facto clauses found in the various state constitutions,13 as well as in the federal constitution, extends beyond the founding of our republic, and may be traced back to English law, and further back to Roman law, Hall v. Northwest Outward Bound School, 280 Or 655, 658, 572 P2d 1007 (1977), if not to Greek law, Elmer E. Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence, 20 Minn L Rev 775, 775 (1936). Thus, for instance, Blackstone, writing in the 1760s, instructs us:
“[W]hatever way is made use of [to notify the people of the legislature‘s resolutions], it is incumbent on the promulgators to do it in the most public and perspicuous manner; not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them up on high pillars, the more effectually to insnare the people. There is still a more unreasonable method than this, which is called the making of laws ex post facto; when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust. All laws should be therefore made to commence in futuro, and be notified
before their commencement[.]” 1 William Blackstone, Commentaries on the Laws of England 46 (1807) (footnote omitted).
Closer to home, James Madison, in urging the State of New York to ratify the federal constitution, between 1787 and 1788, wrote:
“Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the state constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived, if they have not, in so doing, as faithfully consulted the genuine sentiments, as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils.” The Federalist No. 44 (James Madison).
It was to Blackstone, as well as to the “author of the Federalist,” to whom United States Supreme Court Justice Chase turned, in 1798, to support his now classic formulation of the ex post facto prohibition:
“I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive. * * * The celebrated and judicious Sir William Blackstone, in his commentaries, considers an ex post facto law precisely in the same light as I have done. His opinion is confirmed by his successor, Mr. Wooddeson; and by the author of the Federalist, who I
esteem superior to both, for his extensive and accurate knowledge of the true principles of government.” Calder, 3 US (3 Dall) at 390-91 (seriatim opinion).
Whatever the merits of Justice Chase‘s formulation with regard to the federal constitution,14 as with Blackstone‘s Commentaries and The Federalist, Chase‘s opinion was available to the framers of the Oregon Constitution. Perhaps more importantly, it also was cited by the Indiana Supreme Court in Strong, a decision that was available to the framers of the Oregon Constitution when they decided to adopt the Indiana ex post facto provision in our state constitution.
4. Application of Principles
With the foregoing materials in mind, we return to the issue at hand—whether application of the 1991 amendments to revive defendant‘s time-barred prosecution violates Article I, section 21—and to this court‘s previously announced categories of penal law that are proscribed by Article I, section 21. To recapitulate, the categories are: (1) laws that punish acts that were legal before the enactment of those laws; (2) laws that impose greater or additional punishment than that available before the enactments of those laws; and (3) laws that deprive the defendant of a defense. Wille, 317 Or at 502; Gallant, 307 Or at 155.
As already noted, application of the 1991 amendments to revive defendant‘s prosecution for two kinds of conduct committed in 1986 does not punish acts that were innocent before the amendments. Thus, the question becomes whether application of those amendments to defendant imposes a more burdensome punishment or deprives him of a defense.
An expired period of limitations operates like a legislative waiver, pardon, or grant of immunity, on a condition (the passage of a specified period of time) that has been fully met. Whatever the most apt analogy, the statute of limitations gives a defendant, on the date the specified period expires, a complete defense. The sovereign, having surrendered utterly its right to prosecute after a certain time, cannot, after that time, revive its right to prosecute without running afoul of the ex post facto prohibition.
We hold that Article I, section 21, of the Oregon Constitution prohibits the retroactive application of an amended criminal statute of limitations, extending the period of limitations, to revive prosecutions that already were time-barred when the amendment took effect. To the extent that Oregon Laws 1991, chapter 388, section 2, requires such a retroactive application, that provision is unconstitutional under Article I, section 21. Accordingly, the trial court did not err in allowing defendant‘s demurrer to the indictment. The Court of Appeals did not err in sustaining that order.15
The decision of the Court of Appeals and the order of the circuit court are affirmed.
GILLETTE, J., concurring in part, dissenting in part.
I concur with the majority‘s holding that application of
However, I dissent from the majority‘s holding that application of amended
EX POST FACTO
The majority begins its ex post facto analysis by asserting (correctly, I believe) that the scope of Article I, section 21, is the same as the historical scope of Article I, section 10, of the United States Constitution. State v. Wille, 317 Or 487, 502, 858 P2d 128 (1993). However, as I shall describe, the majority misstates the scope of the ex post facto protection provided by federal law and, having misstated it, then errs in construing the scope of Article I, section 21.
In Wille, this court adopted the longstanding federal ex post facto standard enunciated in Collins v. Youngblood, 497 U.S. 37, 110 S Ct 2715, 111 L Ed 2d 30 (1990); Beazell v. Ohio, 269 U.S. 167, 46 S Ct 68, 70 L Ed 216 (1925); and Calder v. Bull, 3 US (3 Dall) 386, 1 L Ed 648 (1798). With respect to the category of ex post facto protection at issue in this case—defenses—the Wille court quoted with approval the following formulation from Collins, quoting Beazell:
“ ‘ “It is settled * * * that any statute which * * * deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.” ’ ”
Wille, 317 Or at 502 (emphasis added). As expressly—and correctly—stated in that formulation, ex post facto violations are limited to circumstances in which a defendant is deprived of a defense that was available at the time that the crime was
They do not. Statutes of limitations never are available as a defense at the time that a crime is committed. To be sure, a statute of limitations provides a potential bar to prosecution at a future circumscribed date. However, that is not the same as providing an available defense at the time that the crime is committed. A statute of limitations only is “available” to the extent that, if the state should fail to prosecute within a certain period of time, the defendant then may invoke it to prevent a prosecution from proceeding.
The foregoing point concerning the inchoate nature of a statute of limitations defense at the time that the crime is committed points up the fundamental way in which such statutes differ in purpose and effect from those that characterize an offense itself, or defenses to that offense: A statute of limitations does not affect the criminal nature of the act committed. A person who invokes successfully a statute of limitations bar is just as much a criminal as he or she was the day before the statute ran. In contrast, traditional defenses, such as self-defense and insanity, are available at the time the crime is committed. They transform what otherwise would have been a criminal act into something not criminal in nature (or of a lesser criminal nature) when applied to the defendant.1
Indeed, other jurisdictions unanimously have concluded that an extension of a statute of limitations, at least before the original limitations period had expired, does not implicate ex post facto.2
DUE PROCESS
Having concluded that there was no ex post facto violation in this case, the question remains whether application of the revived statute of limitations against defendant is unlawful for some other reason. A divided Court of Appeals held that such an application transgressed defendant‘s federal due process right to “fundamental fairness.” 127 Or App at 286. In my view, that conclusion is wrong.
The argument that revival of a prosecution (effectuated by extending an expired statute of limitations) violates a defendant‘s due process rights was first articulated by Judge Learned Hand, in Falter v. United States, 23 F2d 420, 425-26 (2d Cir), cert den 277 US 590 (1928):
cert den 277 US 590 (1928); People v. Russo, 439 Mich 534, 487 NW2d 698 (1992); Commonwealth v. Johnson, 520 Pa 165, 553 A2d 897 (1989); Commonwealth v. Bargeron, 402 Mass 589, 524 NE2d 829 (1988); State v. Creekpaum, 753 P2d 1139 (Alaska 1988); People v. Whitesell, 729 P2d 985 (Colo 1986); People v. Callan, 174 Cal App 3d 1101, 220 Cal Rptr 339 (1985); People v. Massarella, 80 Ill App 3d 552, 400 NE2d 436 (1979) (all so holding).
“Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of life. The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has become safe from its pursuits, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it.”
Those courts that have considered this question invariably have utilized the same reasoning, oftentimes quoting from Falter.3 See, e.g., United State v. Taliaferro, 979 F2d 1399, 1403 (10th Cir 1992); Clements v. United States, 266 F2d 397, 399 n 4 (1959); People v. Russo, 439 Mich 534, 487 NW2d 698, 703 n 18 (1992).
While I do not often find myself in disagreement with the eloquent Learned Hand, I feel perfectly comfortable in being in that position here. To my mind, there is nothing unfair or dishonest in the state‘s choosing to extend a statute of limitations, even where the statute, as applied to a particular defendant, already had expired when the extension occurred. Rather, the same result should flow, whether the statute was extended before the preexisting limitations period had expired or thereafter.
A statute of limitations is not a fundamental right of a criminal. Indeed, historically, there was no statute of limitations on the prosecution of common-law crimes. Even today, most jurisdictions, including Oregon, have no statute of limitations for the crime of murder. Statutes of limitations are, instead, regulatory measures that have been created by legislatures as a matter of policy to deal with the practical difficulties of prosecuting stale crimes. See, e.g., United States v. Gouveia, 467 U.S. 180, 192, 104 S Ct 2292, 81 L Ed 2d 146 (1984) (stating that statutes of limitations are a guarantee against bringing stale crimes); United States v. Marion, 404 U.S. 307, 322-23, 92 S Ct 455, 30 L Ed 2d 468 (1971)
To hold, as Judge Hand apparently was willing to do, that the revival of a barred criminal prosecution would violate due process, but extending an unexpired limitations period would not, would (to me) create the following anomaly: A criminal could be prosecuted where the legislature extended the applicable statute of limitations from three years to six years so long as the extension occurred two years and 364 days after the crime was committed. However, if the extension occurred three years and one day after the crime was committed a criminal could not be prosecuted.
The foregoing distinction displays the arbitrary nature of a statute of limitations and, in my view, the equally arbitrary reasoning that must be used to find some sort of due process requirement for the difference in outcomes. To whatever extent (if any) the two criminals relied on the statute of limitations in existence at the time of their crimes, I cannot perceive how that reliance merits being exalted to the level of a constitutional protection against modification after the original limitations period has expired. It does not seem unfair to me to prosecute both criminals. Indeed, it would appear far more unfair, both to the victim and to society, to let either criminal evade prosecution, assuming that society was willing to expend its resources to pursue the matters.
In amending
I respectfully dissent.