The opinion
JOSEPH, C. J.,
dissenting.
The sum and substance of the majority opinion is that defendant is entitled to challenge the indictments, that the grand jury was unlawfully empaneled and that the indictments were unlawful — but that those conclusions have no consequences, because defendant was convicted in a fair trial. If the ultimate conclusion is correct, only the first of the other three conclusions is of any significance — and that significance is not particularly great, certainly not for this defendant and probably not for any defendant. It is predictable that a challenge of the sort made here, given the majority’s approach, will usually be unsuccessful, because the ultimate verdict will resolve it. If the defendant *748 is acquitted, all well and good; if the defendant is convicted in a trial that is free of reversible error, all also well and good. In short, I accept the first three conclusions, 1 and I dissent from the last. 2
The trial court never reached the merits of the constitutional issue. It held that defendant could not raise the issue because it is not one covered by ORS 135.510. 3 The majority properly concludes that the court was wrong on the only issue that it decided, but the majority then proceeds to say how the question the trial court ought to have reached ought to have been decided. We do not ordinarily do that, and when we do it is usually because the answer is absolutely clear and there is, therefore, an opportunity for economizing on judicial resources. In this instance we ought not to decide the issue unless we are prepared to say that, if the trial court had reached the merits and if it had decided to quash the indictments, it *749 would have been wrong. Of course, as the majority acknowledges, had the trial court quashed the indictments, that determination would have been upheld.
Ninety-seven years ago the Oregon Supreme Court said:
“But it is to be noted that the Constitution of New York does not, as the Constitution of Oregon, require the grand jury to be chosen from the jurors in attendance at the court, but the whole matter of selecting a grand jury [in New York] is left almost entirely to the discretion of the legislature, without limitation or reservation. * * * With us [in Oregon], so long as the grand-jury [sic] system is permitted to remain — not abolished — it is the constitutional right of a defendant accused of a crime to demand that the indictment shall be found by a grand jury selected only as provided in the Constitution. * * *” State of Oregon v. Lawrence, 12 Or 297, 300 (1885).
Nothing the Supreme Court has said since that time has changed that rule — and the grand jury remains part of the mechanism for the administration of criminal law in Oregon. While it is not clear exactly what is the breadth of the constitutional command as to the pool of jurors, it is clear both that the pool from which the defendant’s grand jury was chosen was not the pool intended by the Constitution and that the legislature could not constitutionally have authorized what was done here. Surely, then, what was done here was not authorized in any way, and we have no power to authorize it — if the constitutional provision represents a “right of a defendant accused of a crime to demand that the indictment shall be found by a grand jury selected only as provided in the Constitution.” I think it does — but I also recognize that “accidents do happen.” Accidents, in the sense used here, do not cause bias. The trial judge ought to be given the opportunity to decide the question he did not think he had the authority to decide.
I would not reverse the conviction; I would remand the case to the trial judge. If he concludes that there was no reasonable probability that the constitutional violations that took place here could have caused the selection of a grand jury that was biased against the defendant, then he ought to deny the motion to quash; otherwise he ought to quash the indictment and dismiss the charges.
I would have far less difficulty than the majority in reaching the first three conclusions. If ORS 135.510 were interpreted to limit a defendant’s right to challenge the constitutionality of the process used to select a grand jury, then it is pretty clearly unconstitutional. If a challenger moves prior to trial to test the constitutionality of the process used to select a grand jury and makes a prima facie showing of a constitutional violation, then the burden shifts to the state to persuade the court that the violation could not to any reasonable probability have caused the selection of a grand jury that was biased against the defendant. That is the learning I would draw from the few relevant Oregon cases (State v. Lawrence, 12 Or 297 (1885); State v. Witt, 33 Or 594 , 55 P 1053 (1899); State v. Bock, 49 Or 25 , 88 P 318 (1907)) and from the logic ot the situation. That approach would, it seems to me, avoid the necessity of looking for a “bright line” to divide substantial from insubstantial deviations from the constitutional command. I am inclined to think that, in this instance, if the problem were approached as I suggest, the state would be hard put to persuade any trier of fact that the series of violations demonstrated by the evidence could not to any reasonable probability have caused the selection of a grand jury that was biased against the defendant.
1 believe the majority somewhat confuses or intermixes three distinct questions: Was the jury empaneled by unconstitutional means? Was the jury selected in a manner that violates the statutes regulating the selection of grand juries? Was the jury empaneled by a process that actually or potentially violated constitutional or statutory rights in relating to the provisions regulating the empaneling of grand juries?
Although I might discuss them a bit differently, I agree on the disposition of the motions for acquittal, were I to reach them in the disposition of this case.
Arguably, of course, a grand jury that was not constitutionally assembled could not carry out the mandates in ORS 132.360, 132.400, 132.430 and 132.580. Nonetheless, it is preferable to be much more direct and to say that the legislature cannot limit a person’s right to challenge an unconstitutional administrative act.