STATE OF OREGON, Petitioner on Review, v. CLIFFORD DARRELL KEYS, Respondent on Review.
(CC 16CR24492) (CA A163519) (SC S067691)
IN THE SUPREME COURT OF THE STATE OF OREGON
Argued and submitted January 7; decision of Court of Appeals reversed, and case remanded to Court of Appeals for further proceedings June 10, 2021
368 Or 171 | 489 P3d 83
Defendant was charged by information with possessing methamphetamine. At his preliminary hearing, defendant‘s appointed counsel waived defendant‘s right to a preliminary hearing. Defendant appealed, arguing that he did not knowingly waive his right to a preliminary hearing as required by Article VII (Amended), section 5, and that the lack of a valid waiver deprived the circuit court of subject matter jurisdiction. Held: An invalid waiver of a preliminary hearing does not deprive a circuit court of subject matter jurisdiction, so a challenge to the validity of such a waiver is subject to ordinary rules of preservation.
The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.
On review from the Court of Appeals.*
Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender.
Jordan R. Silk, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Walters, Chief Justice, and Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices, and Kistler, Senior Judge, Justice pro tempore.**
KISTLER, S. J.
The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.
KISTLER, S. J.
“We will acknowledge receipt of the Information, waive any further reading or advice of rights. His name and date of birth are correctly set out on that document. We are prepared to waive preliminary hearing at this time, reserving the right to assert that in the future should it become necessary.”
Several days later, defendant filed a motion to suppress evidence that he had possessed methamphetamine. The trial court denied the motion, and defendant agreed to a stipulated facts trial. Among other things, defendant stipulated that, during a traffic stop, an officer “observed what he believed was a small bindle of controlled substance in defendant‘s wallet” and that the substance tested positive for methamphetamine. Based on those and other stipulations, the circuit court found defendant guilty of possessing methamphetamine.
On appeal, defendant did not challenge the circuit court‘s ruling on his suppression motion. Rather, he argued that he had not knowingly waived his right to a preliminary hearing, as the Oregon Constitution requires. See
Defendant acknowledged he had not raised that issue in the trial court. He relied, however, on this court‘s decision in Huffman for the proposition that an invalid waiver of a preliminary hearing is a jurisdictional issue that can be raised for the first time on appeal. Alternatively, he argued that, even if an invalid waiver is not a jurisdictional issue, it is a plain error that the Court of Appeals not only can but must correct. The state responded that, under the Court of Appeals decision in State v. Sheppard, 35 Or App 69, 581 P2d 549 (1978), rev den, 285 Or 1 (1979), defendant had waived his right to a preliminary hearing by proceeding to trial while being represented by counsel and without objecting to the absence of a preliminary hearing.
In analyzing the parties’ arguments, the Court of Appeals limited its decision in Sheppard to its unique procedural facts and sought to follow this court‘s decision in Huffman. Keys, 302 Or App at 523-26. The court began by noting that it was undisputed that defendant‘s waiver had failed to comply with
the term “jurisdiction” was atypical. The court determined, however, that Huffman established that a defective waiver of a preliminary hearing deprives a circuit court of “jurisdiction to try or convict” a defendant. Id. at 523 (emphasis in original). The court did not decide whether “jurisdiction to try or convict a defendant” differs from subject matter jurisdiction. Rather, the court concluded that, without a preliminary hearing or a valid waiver of a preliminary hearing, a circuit court lacks “the kind of jurisdiction that must exist for a court to try or convict a defendant and, like the absence of subject matter jurisdiction, its absence may be raised for the first time on appeal.” Id. at 524 (emphasis in original). The Court of Appeals accordingly reversed the trial court‘s judgment.
With that background in mind, we note that this is not a case in which there was no accusatory instrument. No one disputes that the district attorney properly initiated this case by filing an information charging defendant with possessing methamphetamine. Nor does this case require us to reconsider our decision in State v. Terry, 333 Or 163, 186, 37 P3d 157 (2001), in which we held that a defective accusatory instrument does not deprive a circuit court of subject matter jurisdiction. Defendant does not contend that the accusatory instrument in this case was defective in any respect. Finally, we note that this is not a case in which there was no apparent waiver of a preliminary hearing. Rather, the issue in this case reduces to the question whether an invalid waiver of a preliminary hearing will deprive a circuit court of subject matter jurisdiction.3 Put differently, the question is whether a defect in the constitutional check on a district attorney‘s charging authority—i.e., a defect in the defendant‘s waiver, a defect in the magistrate‘s probable cause determination, or a defect in the grand jury‘s probable cause determination—deprives a court of subject matter jurisdiction.
On that issue, this court has long recognized that a constitutional defect in the manner in which a grand jury is composed is not a jurisdictional problem that may be raised
at any time. Compare State v. Witt, 33 Or 594, 596-97, 55 P 1053 (1899) (holding that a failure to comply with the constitutionally mandated method of selecting grand jurors could not be raised after the defendant‘s plea), with State v. Lawrence, 12 Or 297, 298, 7 P 116 (1885) (setting aside the grand jury‘s indictment based on a timely objection to the manner in which the grand jurors were selected). More recently, we recognized that a defect in the indictment does not
If a defect in the indictment or a defect in the manner in which the grand jury is selected does not deprive a court of subject matter jurisdiction, as this court held in Terry and Witt, it is difficult to see why a defect in waiving a preliminary hearing should lead to a different result. Defendant, however, argues that this court‘s decision in Huffman establishes that a defective waiver of a preliminary hearing will deprive a court of subject matter jurisdiction. He argues that Huffman is a well-reasoned decision, which we should follow. Moreover, he argues that Huffman‘s holding follows naturally from the text and history of
The state, for its part, does not question whether the complete absence of an accusatory instrument would present a jurisdictional problem. Rather, it views a defendant‘s ability to waive a preliminary hearing as a personal constitutional right that, like other personal constitutional rights, must be raised below or come within an exception to the preservation rule to be considered on appeal. In its view, the text and history of Article VII demonstrate that, to the extent Huffman held that an invalid waiver of an indictment deprives a court of subject matter jurisdiction, Huffman was wrongly decided and should be overruled.
In considering the parties’ arguments, we begin by describing our decision in Huffman. We then explain why Huffman is best understood as resolving only the issue that it stated it was deciding—whether an alleged error in waiving an indictment was a cognizable ground for relief in a state habeas corpus proceeding. More specifically, we explain that the ambiguity that the Court of Appeals perceived in Huffman‘s use of the term “jurisdiction” stems from an issue that was unique to the federal habeas corpus cases on which Huffman‘s analysis relied and does not reflect a determination regarding subject matter jurisdiction. We then turn to the text and history of
I. HUFFMAN v. ALEXANDER
The petitioner in Huffman filed a petition for a state writ of habeas corpus. He alleged, among other things, that his criminal conviction should be set aside because he had limited education and had been fraudulently induced to waive his right to a grand jury indictment in violation of Article VII (Original), section 18 (1927), of the Oregon Constitution.4 Huffman, 197 Or at 291-92. The trial court dismissed the petitioner‘s state habeas claim without holding an evidentiary hearing on that issue, apparently because he sought to impeach on habeas what appeared from the face of the criminal trial record to be an informed, valid waiver. See id. at 301-02.
As this court analyzed the petitioner‘s habeas claim in Huffman, it presented two questions. The first was whether the claim was cognizable in state habeas. See id. at 296-97. If it was, the second question was whether the petitioner could go behind the criminal trial record and impeach on collateral review what appeared from the face of the trial record to be an informed, valid waiver. See id. at 301.
In resolving the first question, Huffman began by discussing the categories of issues that were cognizable, as a matter of state common law, on a writ of habeas corpus. Id. at 297-99. Huffman explained that state habeas corpus could not “be resorted to for the purpose of reviewing judgments or decrees of a court of competent jurisdiction for either errors of fact or law.” Id. at 297 (quoting Harrington v. Jones, 53 Or 237, 239, 99 P 935 (1909)). Rather, the writ was available, at least initially, only if the court that issued the judgment or decree lacked “‘jurisdiction of the person and the subject-matter.‘” Id. (quoting Harrington, 53 Or at 239); see Chavez v. State of Oregon, 364 Or 654, 668-69, 438 P3d 381 (2019) (describing state habeas practice).
Huffman recognized, however, that this court had recently described the issues cognizable in state habeas “somewhat more broadly.” 197 Or at 297-98 (citing Garner v. Alexander, 167 Or 670, 120 P2d 238 (1941)). It explained that Garner had “no doubt [been] influenced” by federal cases recognizing that habeas was available not only “where there [was a] want of jurisdiction over the person or the case,” but also where there was ”some other matter rendering the judgment void.” Id. at 298 (internal quotation marks omitted; emphasis added by Huffman).
Huffman noted that a judgment will be “void or subject to attack in habeas corpus” when there is a “[l]ack of jurisdiction of the subject-matter, jurisdiction of the person, or jurisdiction to render the particular judgment assailed.” Id. (internal quotation marks omitted; emphasis added by Huffman). The court did not explain what the phrase that it emphasized—“jurisdiction to render the particular judgment assailed“—meant. However, it provided one clue when it quoted with approval an earlier decision recognizing that a judgment will be void for the purposes of state habeas when it “is not authorized *** by the pleadings.” Id. at 298-99 (quoting Rust v. Pratt, 157 Or 505, 511, 72 P2d 533 (1937)).
Having canvassed the cases addressing when an issue will be cognizable in state habeas, Huffman explained that the “first question [to be decided] is whether an Oregon court has jurisdiction to try a defendant on an information in the absence of a waiver of indictment.” Id. at 299. Huffman‘s use of the phrase “jurisdiction to try a defendant” is ambiguous. The phrase could refer to the absence of subject matter jurisdiction, or it could refer to the absence of “jurisdiction to render the particular judgment assailed,” which Huffman had noted differed from subject matter jurisdiction. Id. at 298. That is, in framing the first question to be decided, Huffman could have been using the term “jurisdiction to try a defendant” to refer to a “court‘s [lack of] authority to grant the relief requested in a particular case” rather than its lack of subject matter jurisdiction. See Dept. of Human Services v. C. M. H., 368 Or 96, 108-09, 486 P3d 772 (2021) (discussing various ways in which courts historically used the term jurisdiction).
As we explained in C. M. H., courts have not always been precise in their use of the term “jurisdiction.” Sometimes, their lack of precision has not had a practical consequence. Id. at 110. Huffman illustrates that category of cases. In Huffman, there was no need to be precise about the court‘s use of the term “jurisdiction,” since a lack of subject matter jurisdiction or a lack of authority to take a particular action would both give rise to a cognizable state habeas claim. See 197 Or at 298-99. In other cases, the sense in which the term “jurisdiction” is used can matter greatly. This case illustrates the latter category of cases. In this case, if a defective waiver of a preliminary hearing deprives a court of subject matter jurisdiction, then that defect can be raised for the first time on appeal. See C. M. H., 368 Or at 109. However, if a defective waiver instead deprives a court of the authority to render a conviction, then the defect cannot be raised for the first
In answering the first question it posed, Huffman did not explicitly identify the sense in which it was using the term “jurisdiction.” Specifically, in deciding whether the underlying criminal conviction was “subject to attack in [state] habeas corpus,” Huffman quoted the text of Article VII (Original), section 18 (1927), which provided that a person could be charged in circuit court with a “crime or misdemeanor” by indictment but also provided that a person could be charged by a district attorney‘s information if the person appeared before a judge of the circuit court and knowingly waived indictment. Huffman, 197 Or at 298-99.
The court then quoted two authorities that addressed whether the absence of an indictment will give rise to a cognizable habeas claim. The court initially quoted a legal encyclopedia for what it described as the “general rule” on that issue. Id. at 299-300 (quoting Habeas Corpus, 25 Am Jur § 38 (1940)). The court noted that “‘[i]t is essential to the validity of a conviction not only that the court have jurisdiction of the crime, but that its jurisdiction be invoked in the manner sanctioned by law.‘” Id. (quoting Habeas Corpus, 25 Am Jur § 38 (1940)). It then quoted the encyclopedia for the proposition that, if a crime can be charged only by indictment and if a habeas petitioner “has not been indicted ***, his conviction is void, and he may be released on habeas corpus.” Id.
The court also discussed a second authority, the United States Supreme Court‘s 1887 decision in Ex parte Bain, 121 US 1, 7 S Ct 781, 30 L Ed 849 (1887). This court explained that the district court in Bain had erroneously deleted a phrase in the indictment, which it had viewed as surplusage. Huffman, 197 Or at 300 (describing Bain). The United States Supreme Court concluded that the erroneously amended indictment was “‘no indictment‘” at all. See id. (quoting Bain, 121 US at 13). And even though the district court otherwise would have had jurisdiction over the person and the crime, Bain reasoned that, as a result of the erroneous amendment, “‘the jurisdiction of the offense is gone, and the [federal district] court ha[d] no right to proceed any further in the process of the case for want of an indictment.‘” Id. (quoting Bain, 121 US at 13). It followed that the claimed error in Bain was cognizable on federal habeas.
Having described the general rule from the legal encyclopedia and the holding in Bain, Huffman concluded:
“While the provision concerning indictment in the Fifth Amendment [which had been at issue in Bain] is inapplicable to state prosecutions, the same rule must be applied under Article VII, section 18 of the Oregon Constitution.”
Id. at 301. The court added: “It follows from the express language of the [Oregon] constitutional provision and from the authorities cited that unless a defendant validly waives indictment he cannot be tried upon information filed by the district attorney. A judgment rendered upon an information without waiver of indictment would be void” and subject to collateral attack on state habeas. Id.
Although Huffman did not expressly identify the sense in which it was using the term “jurisdiction,” its reasoning provides some clues as to its use of the term. Huffman‘s conclusion that a judgment based on an invalid waiver of indictment will be “void” implies that the court was relying on ”some other matter rendering the judgment void” rather than the absence of subject matter jurisdiction. See 197 Or at 298 (internal quotation marks omitted; emphasis added by Huffman). The same implication follows from the fact that Huffman emphasized that phrase and later emphasized the phrase “jurisdiction to render the judgment assailed,” which Huffman noted differed from subject matter jurisdiction. Id. In short, if we had to determine the sense in which Huffman used the term “jurisdiction” solely from the court‘s decision, we would conclude, tentatively, that Huffman was not using the term to refer to an absence of subject matter jurisdiction or something akin to subject
Huffman, however, does not stand alone. Rather, it drew from a long line of federal habeas corpus cases, which provide greater insight into how Huffman used the term “jurisdiction.” We accordingly look to those decisions to better understand this court‘s decision in Huffman.
II. FEDERAL HABEAS CORPUS
When Congress passed the
In applying that common-law limitation, the Court had to accept one fact: Until 1891, a person convicted of a crime in federal court could not, as a general matter, appeal his or her conviction. Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv L Rev 441, 473 (1963).6 That is, as a general rule, a person convicted in federal court could not challenge either on direct appeal or by a petition for a writ of certiorari whether the conviction was erroneous. Id. The only recourse for a person convicted of a crime in federal court was to petition for a federal writ of habeas corpus. However, as Watkins explained, habeas was available only if the court that issued
the conviction lacked jurisdiction over the crime or the person. See Watkins, 28 US at 203.
One commentator has explained that the absence of a direct appeal in federal criminal cases “placed tremendous expansive pressure on [federal] habeas corpus jurisdiction.” Bator, 76 Harv at 473. Perhaps for that reason, in the second half of the nineteenth century, the Court began expanding the categories of issues that were cognizable in federal habeas. See United States v. Cotton, 535 US 625, 629-30, 122 S Ct 1781, 152 L Ed 2d 860 (2002) (noting that connection). For example, the Court issued a writ of habeas corpus in Ex parte Siebold, 100 US (10 Otto) 371, 25 L Ed 717 (1879), to decide whether a federal criminal statute that resulted in the petitioners’ convictions was unconstitutional. The Court acknowledged, as Watkins had recognized, that the writ of habeas corpus cannot be used to correct an erroneous judgment. Id. at 375. It explained, however, that the writ could be issued for “want of jurisdiction in [a district] court over the person or the cause, or some other matter rendering its proceedings void.” Id. (emphasis added).
In explaining why a judgment based on an unconstitutional statute was “void” rather than erroneous, the Court reasoned:
“An unconstitutional law is void, and is as no law. An offence created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause for imprisonment. It is true, if no writ of error lies, the judgment may be final in the sense that there is no means of reversing it. But personal liberty is of so great moment in the eye of the law that the judgment of an inferior court affecting it is not deemed so conclusive but that, as we have seen, the question of the [district] court‘s authority to try and imprison the party may be reviewed on habeas corpus.”
We do not question the interest that the Court recognized in Siebold in protecting persons from being imprisoned based on unconstitutional laws. However, the line between being convicted of a nonexistent crime and an unconstitutional crime seems a fine one. If, as the Court held in Watkins, a judgment based on a nonexistent crime may not be reexamined on federal habeas because the district court had general jurisdiction over the subject, it is difficult to see why a judgment based on an unconstitutional statute should lead to a different result.
The Court followed a similar pattern in other habeas cases arising from federal convictions in the late nineteenth century; that is, it issued a federal writ of habeas to determine if a federal criminal judgment was “void” in whole or in part for lack of jurisdiction or authority. For example, the Court issued a writ of habeas in Ex parte Snow, 120 US 274, 7 S Ct 556, 30 L Ed 658 (1887), because the district court lacked “jurisdiction” to impose consecutive sentences for three separately charged crimes that, the Court concluded, constituted only a single continuing offense.7 120 US at 285-86. As the Court explained, the district court had jurisdiction to enter a sentence for only one offense. Id. Similarly, in Ex parte Lange, 85 US (18 Wall) 163, 164, 21 L Ed 872 (1873), the district court had vacated an erroneous sentence shortly after entering it and imposed an amended sentence. The Court held that double jeopardy divested the district court of authority to resentence the petitioner, that the new sentence was not merely erroneous but void because “the power of the court to punish further was gone,” and that habeas would lie to correct that lack of authority.8 Id. at 175-78.
In Siebold, Snow, and Lange, the Court did not hold that the district court lacked subject matter jurisdiction.
Rather, it identified constitutional or other errors that resulted in what the Court characterized as a lack of authority or “jurisdiction” to take further action. It followed, the Court reasoned, that the resulting lack of authority rendered the petitioners’ convictions “void” rather than erroneous and that habeas would lie to correct those errors. Although the Court posited in Siebold that the difference between an erroneous sentence and a void one was self-evident, see 100 US at 375, it later candidly acknowledged in Ex parte Bigelow, 113 US 328, 5 S Ct 542, 28 L Ed 1005 (1885), “It may be confessed that it is not always very easy to determine what matters go to the jurisdiction of [the district]
Bain, which this court followed in Huffman, employed similar reasoning. The Court explained in Bain that the district court had amended an indictment to remove what it erroneously had perceived was a superfluous phrase. 121 US at 5-11.9 The Court concluded that the erroneous amendment did not merely result in a defective indictment; it resulted in “no indictment” at all. Id. at 13. The Court reasoned that, even though the district court “would have [had] jurisdiction of the crime, if it were properly presented by indictment, the jurisdiction of the offense is gone, and the court has no right to proceed any further in the progress of the case for want of an indictment.” Id. Because the district court had no “jurisdiction *** [or] right to proceed,” the error was cognizable on federal habeas. Id.10
In 1867, Congress authorized persons held in state custody to petition for a federal writ of habeas corpus. The
For the most part, the substantive grounds for reviewing state convictions on federal habeas corpus initially paralleled those for reviewing federal convictions. However, in 1915, the Court began expanding the grounds for issuing a federal writ of habeas corpus to review state and federal convictions. See Frank v. Mangum, 237 US 309, 327, 35 S Ct 582, 59 L Ed 969 (1915) (due process violation for trial dominated by mob violence); accord Johnson v. Zerbst, 304 US 458, 467-68, 58 S Ct 1019, 82 L Ed 1461 (1938) (waiver of counsel). Initially, the Court characterized the new grounds for issuing the writ as ones that deprived a court of jurisdiction and, as a result, concluded that those grounds were cognizable on federal habeas. See Johnson, 304 US at 467-68; Frank, 237 US at 327.
In 1942, the Court recast the reasoning in Johnson, decided four years earlier, and explained that a petitioner need not show that an essentially identical issue was a jurisdictional defect in order for it to be cognizable on habeas. See Waley v. Johnson, 316 US 101, 104-05, 62 S Ct 964, 86 L Ed 1302 (1942) (per curiam) (coerced guilty plea). The Court reasoned that, when the facts relied on to establish a federal constitutional violation “are dehors the record and their effect on the judgment was not open to consideration and review” on direct appeal, “the use of the writ in the federal courts to test the constitutional validity of a conviction for a crime is not restricted to those cases where the judgment of conviction is void for want of jurisdiction of
In 1953, less than one year after this court issued its decision in Huffman, the Court effectively eliminated many of the restrictions on federal habeas corpus review of state criminal convictions. See Brown v. Allen, 344 US 443, 73 S Ct 397, 97 L Ed 469 (1953).11 As the decision in Brown confirmed, a writ of federal habeas corpus is available when a criminal judgment is based on a federal constitutional error, without regard to whether the error can be recast as jurisdictional.
In the federal courts, the longstanding common-law rule that a federal writ of habeas corpus was available only if a court lacked jurisdiction over the subject or the person was “softened by a long process of expansion of the concept of a lack of ‘jurisdiction,‘” in large part as a result of a federal criminal defendant‘s inability initially to appeal his or her conviction. Henry M. Hart, Jr., Foreword: The Time Chart of the Justices, 73 Harv L Rev 84, 104 (1959). Jurisdiction, as the federal courts used that term in the late nineteenth century to determine whether an issue was cognizable on federal habeas, bore little resemblance to the concept of subject matter jurisdiction. As another commentator explained,
“Once the concept of ‘jurisdiction’ is taken beyond the question of the court‘s competence to deal with the class of offenses charged and the person of the prisoner, it becomes a less than luminous beacon. How is one to tell which errors cause a court to lose jurisdiction and which do not, which render a judgment void and which do not?”
Bator, 76 Harv L Rev at 470-71 (footnotes omitted).12
Both Professors Hart and Bator recognized that, as federal habeas corpus evolved in the late nineteenth and early twentieth centuries, the federal courts’ use of the term “jurisdiction” was not limited to a court‘s “competence to deal with the class of offenses charged and the person of the prisoner.” Id. Rather, they used phrases, such as a “lack of jurisdiction” and its corollary “a void judgment,” to express a conclusion that the alleged error was cognizable on federal habeas. That much follows from the contrast between Johnson‘s obligatory nod at the end of the opinion to “a lack of jurisdiction” to justify issuing a federal writ of habeas corpus and Waley‘s recognition four years later that a court need not label an essentially identical error as jurisdictional to reach it on federal habeas.
We need not determine the precise contours of the phrases “lack of jurisdiction” or “a void judgment,” as the Court used those phrases in Lange, Siebold, Snow, and Bain, to resolve this case. It is sufficient to recognize that the Court used those phrases in federal habeas cases in the late nineteenth century to express a conclusion that an issue was cognizable on federal habeas. It follows that Bain‘s use of the term “jurisdiction” in 1887 and Huffman‘s repetition of that term in 1952 are best understood as standing only for the proposition that the particular claims raised in those cases were cognizable respectively in federal and state habeas corpus proceedings.
One final contextual clue supports that reading of Huffman. In 1931, more than 20 years before Huffman followed the rule from Bain, the federal courts recognized that the Fifth Amendment right to have a grand jury make a probable cause determination is a personal right that can be waived, like the right to counsel or the right against double jeopardy. See United States v. Gill, 55 F2d 399, 402-03 (D NM 1931). In doing so, the federal courts declined to read Bain for the proposition that a grand jury‘s probable cause determination, reflected in an indictment, is a component of a court‘s subject matter jurisdiction that cannot be waived. See id.
Moreover, in 1944, the United States Supreme Court promulgated
We accordingly conclude that Huffman did not hold that an invalid waiver of an indictment will deprive a court of subject matter jurisdiction. Rather, Huffman stands for the more limited proposition that an invalid waiver of an indictment was the kind of error that was
cognizable, as a matter of state common law, in state habeas.13 And, after the enactment of Oregon‘s Post-Conviction Hearing Act in 1959, the common-law limitations on state habeas that Huffman addressed in 1952 became largely irrelevant. See Chavez, 364 Or at 669 (explaining that the 1959 state post-conviction act simplified the procedure for bringing a state collateral challenge to a criminal conviction by replacing state common-law writs, such as habeas corpus and coram nobis, with a single statutory cause of action).III. TEXT AND HISTORY OF ARTICLE VII (AMENDED), SECTION 5
Defendant advances an alternative argument. He contends that the text and history
A. Text
Three subsections of Article VII (Amended), section 5, bear on defendant‘s alternative argument. They provide:
“(3) Except as provided in subsections (4) and (5) of this section, a person shall be charged in a circuit court with the commission of any crime punishable as a felony only on indictment by a grand jury.
“(4) The district attorney may charge a person on an information filed in circuit court of [sic] 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.”
The text of
Defendant‘s argument fails to distinguish two separate aspects of
Even if we assume that the presence of a charging instrument that alleges the commission of a crime is a necessary component of a circuit court‘s subject matter jurisdiction, the difficulty with defendant‘s textual argument is that there is no dispute that the information in this case alleged that defendant had committed the offense of possessing methamphetamine. Indeed, defendant has not claimed that the information in this case was defective in any respect. Cf. Terry, 333 Or at 186 (holding that a defect in a charging instrument does not deprive a court of subject matter jurisdiction). Rather, defendant‘s argument focuses on a related but separate issue—whether a defective waiver in the constitutionally required check on a district attorney‘s charging authority will deprive a court of subject matter jurisdiction.
We considered a similar issue in Figueroa v. BNSF Railway Co., 361 Or 142, 390 P3d 1019 (2017). The issue in that case was whether a statute that authorized a plaintiff to initiate litigation by serving the registered agent for an out-of-state defendant gave a state court personal jurisdiction over the defendant. We explained that jurisdiction and the process for initiating litigation address separate issues. We reasoned:
“Textually, [the statute at issue in Figueroa] addresses service, not jurisdiction. Jurisdiction refers to the forum‘s authority to adjudicate claims against a defendant. Service refers to the process by which a defendant over whom the court has jurisdiction is brought before the court. Both are necessary for a court to issue a binding judgment, but the two concepts are not synonymous.”
Id. at 146 (citations omitted).
The same reasoning applies here. Subject matter jurisdiction refers to a court‘s
B. Context and history
Technically, only
1. Article VII (Original)
Article VII (Original), section 9 (1859), vested “[a]ll judicial power, authority, and jurisdiction” in the circuit courts unless the constitution or laws vested jurisdiction exclusively in some other court. At the same time, Article VII (Original), section 18 (1859), directed the legislature to provide for a seven-person grand jury and specified how many grand jurors must concur to find an indictment. Original section 18 also provided, however, that the “Legislative Assembly may modify or abolish grand Juries.”
The state argues, and defendant does not dispute, that the legislature‘s authority, under original section 18, to abolish grand juries and provide for a different charging procedure demonstrates that a circuit court‘s subject matter jurisdiction to hear criminal cases, set out in original section 9, was not dependent on criminal charges being initiated by a grand jury indictment, as opposed to some other charging instrument.15 The question accordingly becomes whether the various amendments to Article VII demonstrate an intent to depart from that original understanding.
2. The 1908 amendment
The 1899 Legislative Assembly eliminated the requirement that crimes be charged by a grand jury indictment and permitted crimes to be charged solely by a district attorney‘s information. See State v. Haji, 366 Or 384, 412, 462 P3d 1240 (2020). In 1908, the people responded by amending Article VII (Original), section 18, to require that “any crime or misdemeanor” be charged in circuit court by a grand jury indictment. See Or Laws 1909, p 12. As amended in 1908, Article VII (Original), section 18, provided:
“No person shall be charged in any Circuit Court with the commission of any crime or misdemeanor defined or made punishable by any of the laws of this State, except upon indictment found by a grand jury. Provided, however, that any District Attorney may file an amended indictment whenever an indictment has, by a ruling of the court, been held to be defective in form.”
Id. (emphasis in original).
The proponents of the measure explained that district attorneys had unchecked power
Neither the text of the 1908 amendment nor the reasons offered for its adoption suggest that the requirement that a grand jury determine probable cause was viewed as an essential component of a circuit court‘s subject matter jurisdiction. Rather, the reason for requiring that determination was to check the district attorney‘s charging authority. The voters may well have understood that some charging instrument was necessary to invoke the circuit court‘s subject matter jurisdiction; however, nothing in the text or the history of the 1908 amendment suggests that they understood that the check they added—a grand jury‘s probable cause determination—was an essential component of subject matter jurisdiction.
Defendant argues that the 1908 amendment was modeled on the Fifth Amendment Presentment Clause, and he relies on State v. Stockfleth/Lassen, 311 Or 40, 50, 804 P2d 471 (1991), for the proposition that, “when Oregon adopts the statute of another jurisdiction, the legislature is presumed also to adopt prior constructions of that statute by the highest court of that jurisdiction.” It follows, he reasons, that, when the voters amended Oregon‘s constitution in 1908, they should be presumed to have adopted not only the Fifth Amendment Presentment Clause but also the United States Supreme Court‘s interpretation of that clause in Bain.
Defendant‘s argument is problematic. We have applied the presumption stated in Stockfleth/Lassen only when the text of the statute that the Oregon legislature adopted was “virtually identical” to the text of the other jurisdiction‘s statute. See Stockfleth/Lassen, 311 Or at 50 (stating that requirement); Clackamas Cty Assessor v. Village at Main St. Phase II, 349 Or 330, 337-38, 245 P3d 81 (2010) (applying that requirement). While the texts of the 1908 amendment to Article VII (Original) and the Fifth Amendment Presentment Clause both draw from the same Anglo-American tradition, their texts could hardly be described as “virtually identical.”16 We thus have little basis for presuming that the voters intended to adopt Bain‘s holding. Beyond that, as explained above, Bain held only that an erroneously amended indictment was a “jurisdictional” issue that was cognizable on
3. The 1910 amendments to Article VII
In 1910, the voters substantially amended Article VII (Original). The 1910 amendments, however, bear only indirectly on the issue that this case presents. As a result of the 1910 amendments, some sections of Article VII (Original) “were not incorporated into or made a part of [Article VII (Amended)].” State v. Farnham, 114 Or 32, 37, 234 P 806 (1925). Those unincorporated sections of Article VII (Original) retained no constitutional force after the 1910 amendments. Id. at 37-38. However, as a result of Article VII (Amended), section 2 (1910), the unincorporated sections remained in effect as statutes that could be amended by the legislature. Id. at 42.
The 1910 amendments, however, did incorporate some sections of Article VII (Original). See State v. Tollefson, 142 Or 192, 196, 16 P2d 625 (1932). The incorporated sections of Article VII (Original) were not repealed but remained in effect as parallel, operative constitutional provisions. See id. at 196-97. Because Article VII (Amended), section 5 (1910), incorporated Article VII (Original), section 18 (1908), both original section 18 (1908) and amended section 5 remained in effect after the 1910 amendment. Id.
4. The 1927 amendment
In 1927, the voters amended Article VII (Original), section 18 (1908), to permit a person to waive indictment. See Official Voters’ Pamphlet, Special Election, June 28, 1927, 8.17 When the 1927 amendment was referred to the people, the proponents explained that the amendment was intended “to save time and expense in disposing of the cases of criminals who desire to plead guilty.” Id. at 9. They observed that, under the then-current system, a person charged with a crime or misdemeanor had to be bound over to the grand jury and await an investigation by that body. Id. Moreover, a grand jury investigation could take months to complete, especially in counties with few court terms each year. Id. The proponents reasoned that, because most criminal cases were resolved by guilty pleas, requiring grand jury investigations in every case often resulted in unnecessary costs to the counties and unnecessary burdens on witnesses who had to travel to testify before the grand jury. Id. The amendment accordingly permitted a person accused of a crime or misdemeanor to waive indictment and be prosecuted on a district attorney‘s information, as long as the waiver occurred before a circuit court judge and was knowing.
The 1927 amendment requires a charging instrument (either an indictment or an information), but it treats the right to a grand jury determination of probable cause as a personal right of a defendant, which a defendant can choose to assert or waive. That is, the amendment does not treat the right to a grand jury‘s probable cause determination as an essential component of a court‘s subject matter jurisdiction, which cannot be waived. See Goodall, 82 Or at 331 (subject matter jurisdiction cannot be waived); Evans, 4 Or at 376 (same). To be sure, the voters could have intended to adopt a constitutional amendment in 1927 that altered the well-established rule that subject matter jurisdiction cannot be waived. But nothing in the text or the explanation for the amendment suggests they intended such a change. The more likely explanation is that the 1908 amendment did not make a grand jury‘s determination of probable cause a jurisdictional prerequisite, and the 1927 amendment permitting a waiver of that personal right did not conflict with the rule that subject matter jurisdiction cannot be waived.
The 1958 Legislative Assembly submitted a proposed amendment to Article VII to the voters. See Official Voters’ Pamphlet, General Election, Nov 4, 1958, 25. The proposed amendment made two changes to Article VII. First, it authorized the legislature to provide for more than one grand jury in a county to conduct special investigations. Id. Second, it repealed Article VII (Original), section 18 (1927), and integrated the provisions in that section into Article VII (Amended), section 5. Id.
Most of the discussion in the Voters’ Pamphlet focused on the first change. Id. at 26-27. The second change received far less attention. The official explanation described the second change as follows: “This measure also rearranges for purposes of convenience and clarity sections of the Constitution dealing with indictments, but makes no change in existing constitutional law other than to allow the use of more than one Grand Jury.” Id. at 26. The proponents of the measure described the second change similarly. After discussing the first change, they explained:
“The only other change made by this proposition is purely technical. Section 5 of Amended Article VII of the Constitution, as adopted in 1910, was identical with Section 18 of Original Article VII. In 1927 the voters approved an amendment to Section 18 of the Original Article, which had never been repealed. This measure makes the same amendment, allowing waiver of indictment and plea to an information, to Section 5 of the Amended Article VII, and repeals Section 18 of the Original Article, since it then would be completely repetitious.”
Id. at 27.
Defendant argues that, because the voters repealed Article VII (Original), section 18 (1927), and reenacted Article VII (Amended), section 5, as amended, we should presume that they intended to adopt this court‘s decision in Huffman unless the constitution‘s wording clearly shows a contrary purpose. Defendant draws that presumption from a 1929 statutory construction case, Overland v. Jackson, 128 Or 455, 463-64, 275 P 21 (1929). Whatever the validity of Overland in interpreting statutes, we have focused more closely on the history of constitutional amendments in determining the voters’ intent in reenacting existing constitutional provisions.
This court explained in Haji that, “when the disputed text of an amended constitutional provision consists of text reincorporated from a prior version of the constitutional provision, this court will examine the enactment of that prior version in our effort to determine the meaning of the amended provision.” 366 Or at 400. That is, we look initially and primarily at what the provision meant when it was originally enacted. Intervening court interpretations will inform our understanding of the reincorporated provision, but we have not treated them as dispositive. See State v. Reinke, 354 Or 98, 109-10, 309 P3d 1059, adh‘d to as modified on recons, 354 Or 570, 316 P3d 286 (2013) (explaining that this court‘s prior interpretation of the word “crime” in Article VII (Amended), section 5 (1929), “forms the backdrop against which the 1974 amendment to that article was adopted and informs the meaning of the word ‘crime’ in the 1974 amendment“).
As explained above, the 1927 amendment does not reflect an intent to make a defective waiver of an indictment a jurisdictional issue. And nothing in the history of the 1958 amendment leads to a different conclusion; that is, the history of the 1958 amendment provides no reason to think that the voters understood that, in “rearrang[ing]” the existing terms of Article VII, they were altering the understanding of the 1927 amendment to original section 18. Beyond that, even if we assume that the voters intended to approve Huffman‘s holding when they amended Article VII in 1958, Huffman held only that a defective waiver was a cognizable “jurisdictional” issue in a state habeas proceeding. It did not establish the separate and distinct proposition that a defective waiver of an indictment will deprive a circuit court of subject matter jurisdiction.
6. The 1974 amendment
In 1974, the legislature referred a proposed amendment to Article VII (Amended),
The official explanation for the amendment stated that it gave district attorneys an additional, more flexible charging option. Id. at 13. It told the voters that the reason for requiring either a preliminary hearing or a knowing waiver was to make certain either that “some disinterested judicial officer (the magistrate) has determined that probable cause exists” or “where [the preliminary] hearing has been waived, to at least insure the reasonable implication that there is probable cause to conclude that a felony has been committed by the accused or the accused would have asked for a hearing.” Id. Put differently, the explanation made clear that a probable cause hearing before a magistrate and a waiver of that right provide coequal checks on a district attorney‘s charging authority.
Although defendant argues that the 1974 amendment approved Huffman, the only reason that he identifies for that argument is that Huffman preceded the amendment. Nothing in the text or history of the 1974 amendment suggests that the voters would have understood that they were approving Huffman. Moreover, the 1959 post-conviction act mooted the issue that Huffman had decided—whether a defective waiver of a preliminary hearing is cognizable in state habeas. If the voters were aware of Huffman, they also presumably would have been aware that the issue that Huffman decided no longer mattered. In adopting the 1974 amendment, the voters did not endorse the notion that a defective waiver of a preliminary hearing deprives a court of subject matter jurisdiction.
We note one final contextual clue that bears on defendant‘s argument. In Terry, this court held that, if a defendant has been indicted for a felony, a defective indictment does not divest a circuit court of subject matter jurisdiction. 333 Or at 186. It follows that a defective waiver of an indictment or a preliminary hearing does not divest a circuit court of subject matter jurisdiction either. Although defendant argues that Terry is inconsistent with older Oregon cases, we recently observed that, previously, “‘judicial opinions sometimes obscure[d] the different meanings [of jurisdiction] by dismissing for “lack of jurisdiction” without explicitly addressing whether the problem was a lack of subject matter jurisdiction or only a failure of the particular claim.‘” C. M. H., 368 Or at 110 (quoting Arbaugh v. Y & H Corp., 546 US 500, 510-11, 126 S Ct 1235, 163 L Ed 2d 1097 (2006); internal quotation marks in Arbaugh omitted by C. M. H.). So too here.
Our holding today is narrow. In this case, there was a charging instrument and an apparent waiver of a preliminary hearing. Accordingly, we need not and do not decide whether the complete absence of either a charging instrument or a waiver would be a jurisdictional problem. Rather, the only question that this case presents is whether an invalid waiver of a preliminary hearing deprives a circuit court of subject matter jurisdiction. For the reasons stated above, we hold that it does not. Because defendant did not argue before the trial court that his waiver was invalid, he can raise that issue on appeal only if he comes within an exception to the preservation rule. See Peeples, 345 Or at 219. We turn to that issue.
Ordinarily, before an issue may be raised and considered on appeal, it must first be presented to the trial court. Peeples, 345 Or at 219. There are, of course, exceptions to that rule. As we noted in Peeples, “plain error” is the primary exception. See id. at 219-20. The court also noted another exception. It observed that a right may not be subject to the preservation requirement “due to the unique nature of the right itself.” Id. at 220-21 (citing State v. Barber, 343 Or 525, 530, 173 P3d 827 (2007)). On review, defendant relies on the latter exception while he relied on the former exception in the Court of Appeals.
We begin with the latter exception, which this court discussed in Barber. The defendant in Barber had not signed a written jury waiver, as
In this case, defendant argues that, because the text of
Alternatively, defendant argued in the Court of Appeals that his waiver of his right to a preliminary hearing was not knowing and, as such, was a plain error that the Court of Appeals should reach. It is unclear from defendant‘s briefing in this court whether he believes we should review the validity of his waiver under the plain error doctrine. However, even if he does, we conclude that the issue is more appropriately left to the Court of Appeals. As this court repeatedly has recognized, even when a trial court‘s error is plain, the Court of Appeals retains discretion to decide whether to reach it. See, e.g., Peeples, 345 Or at 219-20 (discussing factors that bear on whether the Court of Appeals should exercise its discretion to reach a plain error); Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991) (same).
The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.
Notes
“(3) Except as provided in subsections (4) and (5) of this section, a person shall be charged in a circuit court with the commission of any crime punishable as a felony only on indictment by a grand jury.
“(4) The district attorney may charge a person on an information filed in circuit court of [sic] 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.”