STATE OF OREGON, Aрpellant, v. FREDERICK WILLIAM COOKMAN, Respondent.
(91-1524; CA A73459)
Court of Appeals of Oregon
Argued and submitted January 25, resubmitted In Banc December 8, 1993, affirmed April 20, petition for review allowed August 9, 1994
873 P.2d 335 | 127 Or. App. 283
ROSSMAN, J. Leeson, J., concurring. De Muniz, J., dissenting.
319 Or 572
Richard Lee Barton, argued the cause for respondent. With him on the brief was Barton & Loennig.
ROSSMAN, J.
Leeson, J., concurring.
De Muniz, J., dissenting.
The state appeals from an order allowing defendant‘s demurrer to an indictment that charged him with using a child in a display of sexually explicit conduct, dealing in dеpictions of sexual conduct involving a child and sexual abuse in the first degree.
The pertinent facts are not in dispute. The indictment charged that defendant committed the crimes between June 1, 1986, and September 1, 1986. In 1986, the limitations period for those crimes was three years.
“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 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.” Or Laws 1991, ch 388, § 2. (Emphasis supplied.)
The amendment became effective on September 29, 1991, more than two years after the three-year limitation period in this case had expired. The state filed the indictment on October 3, 1991.
The dissent erroneously concludes that the question of fundamental fairness was not properly preserved below or presented on appeal. The Supreme Court has said:
“We have previously drawn attention to the distinctions between raising an issue at trial, identifying a source for a claimed position, and making a particular argument. The first ordinarily is essential, the second less so, the third least.” State v. Hitz, 307 Or 183, 189, 766 P2d 373 (1988). (Emphasis in original.)
Here, the parties raised the issue of whether it is unconstitutional for the state to resurrect a previously time-barred prosecution and identified the federal Due Process Clause as the source for the position that it is. The record discloses that, during oral argument, the issue of fairness was brought before the court by both the state and defendant. The state admitted that “there is an argument that due process of law applies here” and that “it could be fundamentally unfair to [revive a prosecution] once the statute of limitations has died.” The state also encouraged the court to consider that question so that its decision in this matter would be “based on a complete constitutional background.” Additionally, defendant offered to submit a supplemental brief addressing the fairness question to aid the court in its decision and to ensure
Moreover, contrary to the dissent‘s assertion, defendant has properly advanced this issue on appeal. In the summary of his argument, he avers that “‘reviving’ a lapsed prosecution violates the due process clause of the Fourteenth Amendment [to] the United States Constitution.” In the final section of his brief, entitled “‘Revival’ of a Lapsed Prosecution Violates the Due Proсess Clause,” defendant argues that the practice of extending an expired limitation period to revive a previously time-barred prosecution is “fundamentally unfair” under the Due Process Clause. Having established that the due process issue is properly before us, we turn to its merits.
In Dowling v. United States, 493 US 342, 110 S Ct 668, 107 L Ed 2d 708 (1990), the United States Supreme Court identified a category of infractions that violate the “fundamental fairness” component of the Due Process Clause. Quoting United States v. Lovasco, 431 US 783, 790, 97 S Ct 2044, 52 L Ed 2d 752 (1977), the Court noted that the action complained of — here, revival of a laрsed prosecution — will be considered fundamentally unfair if it
“violates those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions,’ and which define ‘the community sense of fair play and decency.‘” 493 US at 353. (Citations omitted.)
Here, the state has deviated from “fundamental conceptions of justice” and elementary standards of “fair play and decency” by attempting to retroactively apply
“In the absence of statutes of limitations specially applicable to criminal cases, a prosecution may be instituted at any time, however long after the commission of the criminal act. An act of limitation is an act of grace in criminal prosecutions. The state makes no contract with criminals at the time of the passage of the act of limitation that they shall have immunity from punishment if not prosecuted within the statutory period. Such enactments are measures of public policy only. They are entirely subjeсt to the will of the legislature, and may be changed or repealed altogether in any case where a right to acquittal has not been absolutely acquired by the completion of the period of limitation. A statute of limitations in criminal cases therefore differs from one applicable to civil actions, for while the latter bars the remedy only and not the cause of action, a statute limiting criminal prosecutions destroys the right of action as well as the remedy. In other words, statutes of limitation in criminal cases differ from those in civil cases in that in civil cases they are statutes of repose while in criminal cases they create a bar to the prosecution.” (Emphasis supplied; citations omitted.)
We echoed those sentiments in State v. Dufort, 111 Or App 515, 519, 827 P2d 192 (1992), where, in quoting the Washington Supreme Court, we said:
“‘[S]tatutes of limitation are matters of legislative grace; they are a surrendering by the sovereign of its right to prosecute. Since they are measures of public policy only, and subject to the will of the Legislature as such, they may be changed or repealed in any case where the right to a dismissal has not been absolutely acquired by the completion of the running of the statutory period of limitation.’ State v. Hodgson, 108 Wash 2d 662, 667, 740 P2d 848 (1987).” (Emphasis supplied.)
As the Hodgson court recognized,
“‘[u]ntil the statute has run it is a mere regulation of the remedy * * * subject to legislative control. Afterwards it is a defense, not of grace, but of right, not contingent, but absolute and vested, * * * not to be taken away by legislative enactment.‘” 108 Wash 2d at 668, quoting People ex. rel. Reibman v. Warden, supra, 242 AD at 285. (Emphasis supplied.)
The notion that a “perfected” or “complete” statute of limitations defense cannot be abrogated or dispensed with by subsequent legislative action is by no means foreign to this court. In State v. Tyler, 108 Or App 378, 815 P2d 1289 (1991),
“[a]pplying the extended limitation period to the crimes alleged here would impair defendant‘s right to be free from prosecution that had already inured by expiration of the period in the old statute.” 108 Or App at 381. (Emphasis supplied.)
In State v. Dufort, supra, we characterized Tyler as holding “that an extended limitation period did not apply to a criminal prosecution where the shorter period had expired before the longer period was enacted.” 111 Or App at 519 n 3. We notеd the distinct difference between extending an existing limitation period and extending a lapsed limitation period so as to resurrect a case that has not been prosecuted:
“‘Certainly it is one thing to revive a prosecution already dead and another to give it a longer lease of life. The question turns on 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 pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is оn, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it.‘” 111 Or App at 520 n 3, quoting Falter v. United States, 23 F2d 420, 425 (2d Cir.), cert den, 277 US 590 (1928).
It is settled tradition that the state cannot, consistent with the longstanding due process demands of fundamental fairness, enact a law that extends a statute of limitations so as to resurrect a criminal case in which the statutory period has already run. Accordingly, we conclude that, as applied to defendant,
In short, we cannot accept the proposition that the state has the supernatural power to exhume and revitalize a prosecution that is dead and buried.
Affirmed.
LEESON, J., concurring.
The lead opinion is probably correct that
It is well established that Oregon courts have independent responsibility to construe the Oregon Constitution, and that the decision whether to follow federal precedents must be made on a case-by-case basis. See, e.g., State v. Caraher, 293 Or 741, 748, 643 P2d 942 (1982). The ex post facto clause of the Oregon Constitution traditionally has been construed similarly to the parallel provision of the federal constitution. See, e.g., State v. Gallant, 307 Or 152, 155, 764 P2d 920 (1988). However, the practice of construing the ex post facto clause of our constitution in accordance with prevailing federal precedents was not an abdication of the responsibility of independent construction. Rather, it reflected a determination that those federal precedents comported with Oregon judicial interpretation of the ex post facto prohibition of our state constitution.
In Beazell v. Ohio, 269 US 167, 169-71, 46 S Ct 68, 70 L Ed 216 (1925), Justice Stone summarized the federal ex post facto prohibition, as it was then understood:
“[A]ny 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 a crime of any defense available according to the law at the time when the act was committed, is prohibited as ex post facto.”
“* * * * *”
“Expressions are to be found in earlier judicial opinions to the effect that the constitutional limitation may be transgressed by alterations in the rules of evidence or procedure. See Calder v. Bull, [3 US 386, 1 L Ed 648 (1798)]; Cummings v. Missouri, [71 US 277, 18 L Ed 356 (1867)]; Kring v. Missouri, [107 US 221, 2 S Ct 443, 27 L Ed 506 (1883)]. And there may be procedural changes which operate to deny to the accused a defense available under the laws in force at the time of the commission of his offense, or which otherwise affect him in such a harsh and arbitrary manner as to fall within the constitutional prohibition. Kring v. Missouri, [supra]; Thompson v. Utah, [170 US 343, 18 S Ct 620, 42 L Ed 1061 (1898)]. * * *
“Just what alterations of procedure will be held to be of sufficient moment to transgress the constitutional prohibition cannot be embraced within a formula or stated in a general proposition. The distinction is one of degree.”
The court held that the law at issue in that case did not make criminal an act that was innocent when done or increase the quantum of punishment to which the accused was exposed. The law, therefore, was “procedural.” The court went on to hold that that alteration of procedure was not of sufficient moment to implicate ex post facto concerns.1
Shortly after Beazell, in Falter v. United States, 23 F2d 420, 425-26 (2d Cir), cert den 277 US 590 (1928), Judge Learned Hand said:
“[Beazell v. Ohio, supra] laid it down generally that the question [of whether a law violated the ex post facto prohibition] was one of degree and depended upon whether the result was ‘harsh and oppressive.’ 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 pursuit, and thereafter to withdraw its assurancе, 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.”
The Beazell formulation of the federal ex post facto prohibition remained authoritative for 65 years. It was during that period that Oregon courts concluded that the ex post facto clause of the Oregon Constitution had a similar meaning. See, e.g., State v. Gallant, supra.
In 1990, in Collins v. Youngblood, 497 US 37, 110 S Ct 2715, 111 L Ed 2d 30 (1990), the United States Supreme Court overruled Kring v. Missouri, 107 US 221, 2 S Ct 443, 27 L Ed 506 (1883), and Thompson v. Utah, 170 US 343, 18 S Ct 620, 42 L Ed 1061 (1898) (to the extent that it relied on the ex post facto clause). The Collins Court held that procedural changes in the law may always be applied retrospectively without violating the federal ex post facto clause. In essence, Collins amputated the procedural arm of Beazell.2
Although the federal ex post facto clause is now construed differently under Collins, Oregon courts must still undertake an independent construction of the Oregon Constitution. This case squarely presents the question, for the first time, whether to follow Collins in its departure from precedent.3
Procedural alterations in the law that implicate ex post facto concerns may well be few and far between. However,
Warren and Haselton, JJ., join in this concurring opinion.
De MUNIZ, J., dissenting.
I dissent. Until the majority‘s opinion, the issue in this case had been whether the 1991 аmendment to
Far from raising a due process argument, defendant‘s sole constitutional challenge in his demurrer to the indictment was that the legislative act that purported to revive an expired statute of limitations is invalid as an ex post facto law.1 He did not mention due process in his memorandum in support of the demurrer. It was the state, during the hearing on defendant‘s demurrer, that first raised the possibility of a due process argument. Defendant‘s co-counsel then expressed a willingness to brief the issue if the court wished, but stated:
“[E]ssentially what [the United States Supreme Court] has done is no longer considering ex post facto arguments that are
dressed up in a due process argument. That is expressly what they‘re not doing now. “* * * * *”
“If the Court prefers, we would be willing to address the fundamental fairness due process issue at a State level. We didn‘t think it was necessary with the authоrities that we found. And we believe that, [co-counsel] and I believe because of the way Rehnquist and how courts now are dealing with fundamental fairness, that that‘s a dead issue. That there is no longer a fundamental fairness approach that the 9th Circuit, if this case would ever go there, would ever pay any attention to or that the Supreme Court would grant cert on. If we were to win on that basis and the State appeals, I think we would lose.”
In its brief, the state addresses the due process issue only in a footnote, stating that “defendant‘s attorney did allude to a ‘fundamentаl fairness due process claim, but apparently decided not to pursue it * * *.”2 In his answering brief, defendant “rejects the state‘s assertion that he waived arguments based on the due process clause * * *,” but he does not rely on a due process argument to uphold the trial court‘s decision. Rather, he states that, “if the ruling of the trial court is reversed, [he] will raise the [due process] issue on remand with other issues on which the trial court withheld its ruling.”
The majority finds that “defendant has properly advanced this issue on appeal,” 127 Or App at 287, on the basis of his one-page “outline” of an аrgument “[i]n the event this court chooses to deal with the due process issue.” The majority then concludes that, on the above record, the “issue” of fundamental fairness was preserved, reciting the rubric from State v. Hitz, 307 Or 183, 766 P2d 373 (1988). However, in recent discussions, the Supreme Court has made it clear that the role of an appellate court is review, which incorporates the underlying principle that “an appellate court ordinarily considers an issue * * * through competing argument of adversary parties with an opportunity to submit both written and oral arguments to the court.” Ailes v. Portland Meadows, Inc, 312 Or 376, 382, 823 P2d 956 (1991).
However, if the majority elects to address a due process issue not properly before us, its focus in resolving the question is the opposite of what the Supreme Court has cautioned must be the approach. In the field of criminal law, the category of infractions that violate “fundamental fairness” is very narrow, based on the recognition that the Due Process Clause has limited operation beyond the spеcific guarantees set out in the Bill of Rights. Dowling v. United States, 493 US 342, 352, 110 S Ct 668, 107 L Ed 2d 708 (1990). Not only has the Supreme Court shown little inclination to use the Due Process Clause to interfere with a state‘s ability to regulate criminal procedure, see Spencer v. Texas, 385 US 554, 564, 87 S Ct 648, 17 L Ed 2d 606 (1967), any such challenge invokes a complex analysis.
In Medina v. California, 505 US 437, 112 S Ct 2572, 120 L ED 2d 353 (1992), the Supreme Court set out the analytical framework for assessing the validity of state criminal procedures under the Due Process Clause. Under that analysis, the first inquiry is whether there is a historical basis for concluding that the state procedure violates due process. The historical analysis made by the Court in Medina demonstrated reliance on precedent from the 17th, 18th and 19th centuries. If there is no historical basis from which to conclude that there is a due process violation, the next inquiry is whether the challenged “procedure transgresses any recognized principle of ‘fundamental fairness’ in operation.” 505 US at 448, 112 S Ct at 2578. That inquiry is specific to the state‘s procedure and the protections accorded to the defendant.
I am not convinced by the majority‘s “historical” analysis, which quotes from a 1934 New York case and from a 1992 Washington case, which, in turn, quotes the New York cаse. The majority also provides no analysis of how the change in the statute of limitations is fundamentally unfair “in operation.”3 The majority‘s holding is grounded only on
We err in deciding the constitutionality of a statute on a ground that has not been thoroughly argued and briefed. On the record before us, we are not usually so quick to find that a constitutional issue has been preserved, and I can conclude that the majority does so hеre only because it cannot accept that the amended statute presents no ex post facto violation.
I turn to the issue properly before us. Questions that implicate the ex post facto provisions of the federal and state constitutions are analyzed similarly. See State v. Wille, 317 Or 487, 502, 858 P2d 128 (1993); State v. Perez, 119 Or App 436, 439, 851 P2d 617 (1993); State v. Dufort, 111 Or App 515, 520, 827 P2d 192 (1992). The ex post facto clauses prohibit the legislature from enacting a law that (1) punishes an act that was legal when it occurred; (2) increases, after commission of the crime, the punishment for that crime; or (3) deprives the perpetrator of a defense that existed when the crime was committed. Collins v. Youngblood, 497 US 37, 42, 110 S Ct 2715, 111 L Ed 2d 30 (1990); State v. Wille, supra, 317 Or at 502; State v. Dufort, supra, 111 Or App at 520.
The third category of ex post facto laws is really a variatiоn of the first two. The United States Supreme Court has made it clear that, properly construed, the term “defense” should be “linked to the prohibition on alterations in ‘the legal definition of the offense’ or ‘the nature or amount of the punishment imposed for its commission.‘” Collins v. Youngblood, supra, 497 US at 50 (quoting Beazell v. Ohio, 269 US 167, 169-70, 46 S Ct 68, 70 L Ed 216 (1925)). A change in the limitation period for the prosecution of a criminal act is not linked to the elements of the defense or the punishment of the crime. It does not change any affirmative defense or excuse that would make the act not a criminal offense as to defendant.4 Because a change in the limitation period does
not reach those categories, the expiration of the limitation period in effect when defendant committed the act conferred no constitutional right on defendant, under the ex post facto clauses of either constitution, to be free from criminal prosecution.
Judge Leeson argues that procedural defense was a basis of Beazell v. Ohio, supra, and was the jurisprudence adopted by Oregon courts. She concludes, therefore, that, because ”Collins amputated the procedural arm of Beazell,” 127 Or App at 292, we should reject Collins and adhere to the Beazell formulation.
That understanding of Beazell and the conclusion that Collins radically departed from earlier ex post facto jurisprudence is not correct. In Beazell, the defendants appealed from application of an Ohio statute that was amended after the date of their offense but before the defendants were jointly indicted. The original statute provided that jointly indicted defendants had the right to be tried separately. The amendment made separate trials a matter of discretion with the trial court. The Court rejected the defendants’ argument that applying the amended statute to them violated the ex post facto prohibition:
“The constitutional prohibition and the judicial interpretation of it rest upon the notion that laws, whatever their form, which purport to make innocent acts criminal after the event, or to aggravate an offense, are harsh and oppressive, and that the criminal quality attributable to an act, either by the legal definition of the offense or by the nature or amount of the punishment imposed for its commission, should not be altered by legislative enactment, after the fact, to the disadvantage of the accused.
“But the statute of Ohio here drawn in question affects only the manner in which the trial of those jointly accused shall be conducted. It does not deprive the [defendants] of any defense previously available, nor affect the criminal quality of the act charged. Nor does it change the legal definition of the offense or the punishment to be meted out. The quantum and kind of proof required to establish guilt, and all questions which may be considered by the court and
jury in determining guilt or innocence, remain the same.” Beazell v. Ohio, supra, 269 US at 170. (Emphasis supplied.)
Judge Leeson does not cite that holding, relying instead on dicta in which the court noted the “procedural” discussion in Kring v. Missouri, 107 US 221, 2 S Ct 443, 27 L Ed 507 (1883), and Thompson v. Utah, 170 US 343, 18 S Ct 620, 42 L Ed 1061 (1898). She does not address the Court‘s conclusion of its discussion that5
“the constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation * * * and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance.” Beazell v. Ohio, supra, 269 US at 171. (Emphasis supplied.)
A Statute of Limitations defense does not affect a matter of substance. It is not a defense that goes to the quantum of proof or to a question related to guilt or innocence. It is, rather, a defense that avoids those considerations.
Contrary to Judge Leeson‘s understanding, Collins did not abrogate the ex post facto jurisprudence of Beazell. In overruling Kring v. Missouri, supra, and Thompson v. Utah, supra, (to the extent that Thompson rested on the Ex Post Facto Clause) the Collins Court did not view its analysis as a “radical departure.” As the Court noted, the reasoning of those cases had not been relied on since 1898, and the historical basis of the clause demonstrated that
“the word ‘procedural,’ * * * refers to changes in the procedures by which a criminal case is adjudicated, as opposed to changes in the substantive law of crimes.” Collins v. Youngblood, supra, 497 US at 45.
That understanding of ex post facto jurisprudence is the same as noted by the Beazell court. The reach of the ex post facto provision was narrow when Beazell was decided and remains narrow under Collins. That narrow interpretation has been implicitly or explicitly adopted by the Oregon Supreme Court and this court. See State v. Wille, supra; State
Determining a limitation period for the prosecution of a crime rests with the legislature. State v. Dufort, supra, 111 Or App at 519. Nothing prohibits the legislature from changing the time period in which to prosecute those who commit sex crimes against children. Defendant allegedly committed his crimes within six years of the indictment returned against him. I would decide this case as the parties here argued it, hold that the ex post facto provisions do not bar defendant‘s prosecution and reverse and remand.
Richardson, C. J., and Deits and Edmonds, JJ., join in this dissent.