State v. Rode

EDMONDS J.,

dissenting.

Today, the majority holds that the legislature can constitutionally abolish an Oregon citizen’s right to a jury trial under Article I, section 11, of the Oregon Constitution when he is charged with attempted assault in the fourth degree and harassment. It does so in the spirit of pragmatism, because our courts are swamped with an ever-increasing criminal caseload. However commendable is its motive and persuasive its reasoning, the precedent that it sets encroaches on a precious right guaranteed by the Oregon Constitution, the right of an accused in a criminal proceeding to have a trial by jury.

Of course, the majority says that the constitutional guarantee of a right to trial by jury is no longer necessary when the prosecution has decided at arraignment to prosecute the charges as violations instead of misdemeanors, because what was once a criminal prosecution becomes something else. The court in Brown v. Multnomah County Dist. Ct., 280 Or 95 , 570 P2d 52 (1977), appropriately rejected that kind of reasoning. It said that there is no easy test for *671 determining when a prosecution by the state is a “ ‘criminal prosecution’ within the meaning of the constitutional guarantees. * * * But it does not follow that a law can avoid this result simply by avoiding the term ‘criminal’ in defining the conduct to be penalized. Constitutional guarantees have more substance than that.” 280 Or at 101 . (Emphasis supplied.)

The importance of the right to jury trials in such cases is illustrated by State v. Thomas, 99 Or App 32 , 780 P2d 1197 (1989), which the majority overrules. Patty Thomas was a black bus driver who was charged by her white supervisor with the theft of $1, a class C misdemeanor. The prosecutor elected to try the case under former ORS 161.565(2) as a violation rather than a misdemeanor, which permitted him to try the case to the court and to prove the charge by a preponderance of the evidence. The verdict likely would turn on whether the trier of fact believed Thomas or the supervisor. At the trial, Thomas offered evidence that she had been framed by her supervisor and that he had fired several other black people. At least two of those fired employees were reinstated by his superior. At the end of the trial, the trial judge found her guilty. He said that had the law required proof beyond a reasonable doubt rather than by a preponderance, he would have found her not guilty.

On appeal, we reversed the conviction and held that, even though the charge was tried as a violation, section 11 guaranteed Thomas the right to a jury trial and the right to require the state to prove her guilt be proven beyond a reasonable doubt. On review, the Supreme Court affirmed, holding that there was no indication in the legislative history that the legislature intended that ORS 161.565(2) provide for a burden of proof standard of less than proof beyond a reasonable doubt. State v. Thomas, 311 Or 182 , 806 P2d 689 (1991). It did not reach the issue of whether Thomas was entitled to a jury trial.

Conceivably, Patty Thomas’ employment, her standing and reputation in the community and her record as a law abiding citizen all were jeopardized because the Theft III charge was brought against her. If she had been convicted, the onus of that conviction would trail after her for the rest of her life whether the conviction was termed a conviction for “Theft III,” a “violation,” or “Theft III,” a “misdemeanor.” *672 Every employment application, credit request, insurance form, or other ordinary life activity would be potentially impacted by what had occurred as the result of the complaint of one person in her past. To the Patty Thomas’ of the state, the majority opinion says that the right to have an adjudication by a jury of peers on what begins as a criminal proceeding can be abrogated at the discretion of the prosecutor. Surely, section ll’s guarantee must have more substance than that.

The majority correctly says that the legislature is free to define what is criminal and what is not. But that is not what has happened when the legislature enacted ORS 161.565(2). No conduct that was once a crime is declared to be lawful. Rather, under the statute, a criminal charge commences as a criminal proceeding with all its punitive traits intact and purportedly changes in the midst of the process. If the prosecutor elects, the prosecution ends v. being classified as a non-criminal proceeding, potentially resulting in a conviction for a “violation.” The change in many ways is semantical, not substantive. A defendant can be arrested, must be arraigned, and can be required to post security for future court appearances before the prosecution elects to charge him with a violation. Even after the election, the charge is still prosecuted by the state who can call agents of the government who will accuse the defendant of conduct that would otherwise be considered criminal. The defendant who desires to be vindicated must appear and defend himself in an environment identical to what would have occurred had the prosecutor not made his election. The state must prove his guilt beyond a reasonable doubt just as in a criminal prosecution.

The subject matter of the trial is about conduct that most citizens would consider criminal when prosecuted by the government. For instance, Patty Thomas was charged with theft. Defendant is charged with attempted assault. The public’s understanding of the implication of those charges comes from the fact that theft and assault were crimes at common law. 1 There can be no doubt that the framers of *673 section 11 contemplated that when the state prosecuted defendants for theft and assault, those prosecutions fell within the meaning of the phrase “in all criminal prosecutions” in section 11. That understanding will not be altered by changing the nomenclature describing the conviction. In sum, the only material difference between this proceeding and a criminal proceeding, when their punitive traits are evaluated, is in the nature of the sanction that can be imposed if conviction results.

The majority’s focus on the nature of the available sanctions ignores the basic nature of the proceeding and its effect on Oregon citizens who are presumed to be innocent when accused of a crime. In Brown v. Multnomah County Dist. Ct., supra, the court recognized the problem that occurs when the legislature decriminalizes conduct while retaining the traits of a criminal proceeding. It held that if a prosecution retains many of the punitive traits that characterize a criminal prosecution, then a defendant’s right to a jury trial under section 11 cannot be abolished by the legislature. 280 Or at 110 . There is much wisdom in that holding, because more than the right to a jury trial may hinge on whether a proceeding is “criminal.” The Bill of Rights and section 11 guarantee a defendant in a criminal proceeding the right to a written accusation, to a trial in the county where the offense was committed, to confront the witnesses against him in open court and to subpoena witnesses, and to be represented by counsel. They protect him against double jeopardy, from being compelled to testify against himself and from being convicted for conduct which was not criminal when committed. If the majority is correct, it logically follows that these rights no longer exist for citizens like Thomas and defendant.

The majority suggests that the legislature can determine that certain conduct no longer represents “anti-social behavior serious enough to warrant criminal prosecution.” 118 Or App at 670. The majority misses the import of ORS 166.565(2) when it maintains that that is the effect of the *674 statute. Rather, the statute enables the state to prosecute criminal conduct in a proceeding that retains most of the traits of a criminal proceeding, but obviates the accused’s right to a jury trial. Interpreted in the way that the majority does, the statute permits the state to do what section 11 proscribes and therefore, it is unconstitutional.

I dissent.

Warren, Riggs and Durham, JJ., join in this dissent.

Our sense of “right and wrong” is a product of our cultural background. For instance, theft is a subject of prohibition in the Mosaic Ten Commandments, a standard that is a cornerstone of the foundation on which our system of jurisprudence is based. In contrast, some cultures have deemed theft as moral conduct. Constitutionally, the legislature could decide that some or all forms of theft are no longer unlawful, but that is not what our legislature has done. Even the theft of $ 1 *673 can constitute a class C misdemeanor. See ORS 164.043. So long as the legislature declares all thefts to be unlawful, the public perception that a crime has been committed will exist and the constitutional guarantees that insure that innocent people will not be convicted should attach to any prosecution by the state for such offenses.