Amicus Brief — Oregon v. Kennedy

FEB 8 1982

No. 80-1991 ALEXANDER L. STEVAS.

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

STATE OF OREGON,

Petitioner,

Vv.

BRUCE ALAN KENNEDY,

Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

OF THE STATE OF OREGON

BRIEF OF AMICUS CURIAE AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF OREGON, INC.,

IN SUPPORT OF RESPONDENT

JENNIFER FRIESEN

Kulongoski, Heid,

Durham & Drummonds

1209 Pearl Street

Eugene, Oregon 97401

(503) 485-1350

Counsel of Record for

Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE . © ee. 8 6 6 ' ee oa 2 Fe.

CONSTITUTIONAL PROVISIONS ...ceeeeeeceess

SUMMARY OF ARGUMENT

ARGUMENT

I.

BECAUSE THE DECISION BELOW

MAY WELL REST ON AN INDEPEN-

DENT AND ADEQUATE STATE GROUND,

THE COURT SHOULD DISMISS THE

OR SHOULD VACATE AND

REMAND THE CASE FOR CLARIFI-

CATION BY THE OREGON COURTS .......

WRIT,

A.

Federal Law Is Not the

Sole Basis for the Court

of Appeals’ Holding ..........

as No constitutional

text is cited

Ze State v.

Rathbun -

controlling state

law eeeeoeeeeeenteeeeeeeeeee

3 The legally appro-

priate practice is

to dismiss the writ,

or, alternatively, to

vacate and remand .......

The Question of the Supreme

Court's Jurisdiction in this

Case Is Not Answered by

Delaware v.

Prouse

10

15

19

1. Double jeopardy cases ...

2. Other Oregon cases ......

II. THIS CASE SHOULD BE VACATED AND

REMANDED TO THE OREGON COURT OF

APPEALS EVEN IF THIS COURT DETER-

MINES THAT THE LOWER COURT SIMPLY

FAILED TO RESOLE THE STATE ISSUE

BEFORE IT wccccccccccvcscscscscceee

A. Comity Requires that State

Courts Resolve Potentially

Dispositive State Issues

Before Supreme Court Review ..

i. Unnecessary or

advisory opinions .......

y Avoiding jurisdictional

doubts Seeceeeee_eV@Dse @e@e eee es = 2. eo

» * Considerations of

federalism and state

court innovation «sscsnse

4. Political balance

within the states .......

5. Judicial economy ........

CONCLUSION eoeeeeveeeeeeeeeeeeeeeeeeeeeeee

21

23

28

28

31

32

33

38

40

40

- iii -

TABLE OF AUTHORITIES

Cases: Page

Air Pollution Variance Bd. v.

Western Alfalfa Corp., 416 U.S. 861

(1974) e*eeeeeneneeeneeeneeeneeneeeeeneneeeeeeeeee 17

Benton v. Maryland, 395 U.S.

784 (1969) eeeeeneeneneeeeeeeneneneeneeeeneeeeee 22

Brown v. Multnomah County Dist.

Ct., 200 OF. 95, 570 P.2G 52 (1977) ceo 27

California v. Braeseke, 446 U.S.

932 (1980) eeeeeeeeteieieeeneeeneeeneeeneeestee#ee#e# 16

California v. Green, 399 U.S.

149 (1970) oeeeeeeeeeeeeeeeeeeeeeeeeeenee 37

California v. Krivda, 409 U.S.

De BEPTED See bReeSE DOCH ORORS Serer ccercee DeOe8,y

17,18,

33

California v. Level, 449 U.S.

945 (1980) e*eenereeeeneteeneeeeneeeneenee#ee#ee#e#ee#ee##e# 16

California v. Silvey, 101 S. Ct.

3153 (1981) e*ene7neneeeseeee2ese eeeee#fee#e#e#e#e#e#e#e#ee 16

California v. Superior Ct., 449

U.S. 945 (1980) oeeeeeweeeveeeeeeeeeeeeeenee 16

City of Tacoma v. Heater, 67 Wash.

BG fad5 SUP PedG SOT (1966) covccecccccece 19

Commonwealth v. Campana, 452 Pa. 233,

304 A.2d 432 (1973) eoenerieneeneeeneeeeneteeee#ee#e 17

Delaware v. Prouse, 440 U.S. 648

(1979) e*eereeneteenrtenrenee#e#e#nree#ee#s#fhiee#e#ee#e#ee*#e#e#teeeeee#e 7,19,20

o de"

Page

Department of Mental Hygiene v.

Kirchner, 380 U.S. 194 (1965) ....0ee.-- 6,8,15

Department of Motor Vehicles v.

Rios, 410 U.S. 425 (1973) w.ceeeeeeeeeee 17

Fair Assessment in Real Estate

Ass'n v. McNary, 50 U.S.L.W. 4017

(1981) eeeeoeeveeeeeeeeeeneeeeneeeeeneeeeneeee@ 36

General Atomic Co. v. Felter,

429 Vibe 973 (1976) eeeeeeeeneteeeneneteeeeee#e 16

Haynes v. Burks, 290 Or. 75,

619 P.2d 632 (1980) wcccccccccccccccccce 26

Herb v. Pitcairn, 324 U.S. 117

(1945) eoeeeeeeneeeneeneeneeeeeneneeneneeeneeneeeee 4,6,7,

14,31

Ilinois v. Vitale, 439 U.S. 974

(1978) eeeeeneeeeneeneenerteeneeneeneeneeeneeeeeeeee 16

Louisiana v. Mora, 423 U.S. 809

(1975) eeeeeeeeeeneeeneeeeneeneeneeneeeneeeeeee 16

Matthews v. Rodgers, 284 U.S. 521

(1932) eeeeeeeeeeneeeeeeeeeeeeeeeeeeeeee @ 36

Michigan v. Peques, 101 S. Ct.

3073 (1981) eoeeeveeeeeveeeeeeveeeeeeeeeeee eee e 16

Minnesota v. Clover Leaf

Creamery Co., 449 U.S. 456 (1981) ...... 36

Minnesota v. National Tea Co.,

309 U.S. 551 (1940) e*eeneeeeneteeeneneeeeneeeeee @ 6

Ohio v. Gallagher, 425 U.S. 257

(1976) eeeeeeeeeeneeneteneenereeeneeneeeneneeeeeeeee 16

Oregon v. Hass, 420 U.S. 714 (1975) .... 5,29,30

37,40

Page

Pennsylvania v. Campana, 414 U.S.

808 (1973) eeeeeeeneeeeneveeneteenenenee#eeeeeste#e#e#e @ 16,18

People v. Braeseke, 25 Cal. 3d 691,

602 P.2d 384, 159 Cal. Rptr. 684

(1979) eoeeeeeeneteneeeneeneeneneeeneeneeeeneeeeeee# 19

People v. Level, 103 Cal. App. 3d

» 462 Cal. Rptr. 682 (1980) wcccccsee 19

People v. Pegques, 104 Mich. App.

45, 304 N.W.2d 482 (1980), aff'd,

410 Mich. 894, 304 N.W.2d 455 (1981) ... 19

People v. Silvey, 110 Cal. App. 3d

67, 167 Cal. Rptr. 566 (1980) wcccccceces 19

People v. Westerfield, 71 Mich. App.

618, 248 N.W.2d 641 (1976) ...cceeeeeees 19

Percy v. Terry, 434 U.S. 808 (1977) .... 16

Philadelphia Newspapers, Inc. v.

Jerome, 434 Uswte 241 (1978) oeeeeeeaeeeee 16

Roundhouse Constr. Corp. v. Telesco

Masons Supplies Co., 423 U.S. 809

(1975) eeeeee0eneteeeeenrteeneeneteeneeeneneeeee#e#e# ee @ 17

South Dakota v. Opperman, 428 U.S.

364 (1976) eeeeoeeetensteneneneeeneeeneeeeeeeeeeee 14

State v. Brown, 262 Or. 442, 497

P.2a 1191 (1972) eoeneeenetenseeneeeeneeeeee#eee#e## 22

State v. Clarke, 291 Or. 231, 630

P.2d 810 (1981) e*eeeseeeneeeenree#2eee#ee#e#e#ee#ee#e#e#ee#*# 24,27

State v. Fitzsimmons, 93 Wash. 2d

436, 610 P.2d 893 (1980) e*eeeeeeneteeeee#e#e# 19

Page

State v. Kessler, 289 Or. 359, 614

P.2d 94 (1980) eeeeeenerteenteeeeeneeeneneeeeeeee 26

State v. McCormack, 8 Or. 236 (1880) ... 10,21

State v. Opperman, 247 N.W.2d 673

‘S.D. 1976) eeeeeeenereeneeneeeeeneeneneeeneeeeee 14

State v. Rathbun, 287 Or. 421, 600

P.2d 392 (1979) e*ene<eneree#ee#e#ense#ee#e#ee#e#ee#e#e## e*eweees 2,4,10

State v. Roper, 286 Or. 621,

595 P.2d 1247 (1979) e*eneeneeeee *eneenetneeeee 27

State v. Scharf, 288 Or. 451, 605

P.2d 690 (1980) e*eeeee#eneeeneeneeneee#ee#e#ee#e### 24,26

State v. Shaffer, 23 Or. 555, 32 P.

545 (1893) ee oeeeveeeeeeeeeeeeeeeee ene 21

State v. smyth. 286 Or. 293, 593

P.2 1166 979) *“eneeeeeenrenereeneeneeeeeeee#e 21,a7

State v. Spada, 286 Or. 305, 594

oa 815 1979) eo*eneeeneensereneeneenseeeneeeeee#e#e# Zy

State v. Valdez, 277 Or. 621, 561

P.2a 1006 (1977) e*eneeneteeneeneeteenense #@eeee#ee#e#e# 27

State ex rel. Oregonian Publishing

Co. v. Deiz, 289 Or. 277, 613 P.2d .

23 (1980) eoeneeoeeeeeeeeneeeneteeeeeneeeeneeeeeee 26

State Tax Comm'n v. Van Cott, 306

Use. 511 (1939) eeeeneeeeneeeeeeieeeneee#e ee @ 6

stern Vv. Sale 290 Or. 611, 625

3 1 e*enereeneeneteeneeeeeee#ee eeeeee 2,24,25

United States v.

- vii -

Dinitz, 424 U.S.

600 (1976)

United States v. Jorn,

470 (1971)

United States v. Title

400 U.S.

Ins. &

WOEEe th, > BOD Urls GTA VESSE) ) ccc vice on

Washington v. Fitzsimmons, 449

U.S. 977 (1980) cee

Wisconsin v. Constantineau, 400

U.S. 433 (1971) oeeevee

Woods v. Interstate Realty Co.,

337 U.S. 535 (1949) ..

Younger v.

Harris, 401

eeeeevoeevpeeveeeeeeee #

UsBe 37

(1971) cccccccccccccccccccccscceccccccce

Constitutional Provisions

Or. Const.

Or. Const.

Or. Const.

U.S. Const.

U.S. Const.

U.S. Const.

art I, § iz

art IV, § l

art XVII, §

amend. IV

amend. V.

amend. XIV

A wees 603 es taeees

Page

10,13

16

33

34

1,2,4,

8,11,21,

22,23,28

39

39

- viii -

Page

Periodicals

Douglas, State Judicial Activism--

The New Role for State Bills of Rights,

2 GUE COL Gels DMs BABS {ESTOS oe vrecs 38

Galie & Galie, State Constitutional

Guarantees and Supreme Court Review:

Justice Marshall's Proposal in

Oregon v. Hass, 82 Dickinson L. Rev.

SFe CERISE Sede eVES CES ERVERCOR DES wee eee’ 31

Linde, First Things First:

Rediscovering the States' Bills of

pegnts. 9 U. Balt. L. Rev. 379

1980 e*eeetieenstenseneeeseeeeenteenete#s#keee#e#e#e#e#e####e##e#e# 32

Linde, Without "Due Process"--

Unconstitutional Law in Oregon,

49 Or. Bie Rev. 125 (1970) oeweeeeeeveeeeene 24,25,26

INTEREST OF AMICUS CURIAE

The American Civil Liberties Union

Foundation of Oregon, Inc. is a nonprofit

organization dedicated to defending civil and con-

stitutional rights. ACLU-Oregon appears as Amicu~

with the consent of the defendant and the State of

Oregon.

CONSTITUTIONAL PROVISIONS

Oregon Constitution article I, sec-

tion 12:

No person shall be put in jeopardy twice

for the same offence... .

United States Constitution amendment V:

[NJor shall any person be subject for

the same offence to be twice put in

jeopardy of life or limb.

United States Constitution amendment XIV:

No State shall .. . deprive any person

of life, liberty, or property, without

due process of law... .

SUMMARY OF ARGUMENT

z.

Because the holding below rests on an

adequate state ground, the Court should dismiss

the writ of certiorari as improvidently granted.

@2@

Alternatively, the Court should decline to decide

the federal constitutional questions raised in

this case until the Court has permitted the Oregon

Court of Appeals to clarify, upon vacation and

remand of the judgment, whether the state consti-

tutional double jeopady clause, raised by the defen-

dant below, would adequately and independently

dispose of the case.

The judgment of the Oregon Court of

Appeals rests in part upon the Oregon court's

application of the state's own constitutional

double jeopardy guarantee. The opinion itself

refers to no federal constitutional text. And,

although the decision discusses federal cases

interpreting the Fifth Amendment, it also cites

State v. Rathbun, 287 Or. 421, 600 P.2d 392, a

1979 Oregon Supreme Court double jeopardy case.

Rathbun applied the Oregon Constitution's double

jeopardy clause, article I, section 12, to bar a

second prosecution in circumstances very similar

=3<

to the facts in Kennedy. / Particularly when read

in light of Oregon's tradition of deciding applic-

able state law claims before reaching any issue of

federal due process, see, e.g., Sterling v. Cupp,

290 Or. 611, 614, 625 P.2d 123, 126 (1981), the

opinion sufficiently rests upon an independent and

adequate state ground to preclude this Court's

review at this time. Accordingly, the writ should

either be dismissed, or the case vacated and re-

manded to the Oregon courts under California v.

Krivda, 409 US 33, 35 (1972), for articulation of

the basis for the decision.

Dismissal or remand would avoid an erron-

eous assumption of this Court's jurisdiction.

Dismissal or remand would also avoid this Court's

rendering what will almost certainly be an ad-

visory opinion. Defendant would entitled be to

reassert his state constitutional claims in Oregon

regardless of what this Court says about federal

: Alternative grounds for decision are

generally considered independent, and not dicta.

See United States v. Title Ins. & Trust Co., 265

U.S. 472, 486 (1924). See also Woods v.

Interstate Realty Co., 337 U.S. 535, 537 (1949).

~~

law. The holding in State v. Rathbun, supra, would

likely compel the Oregon Court of Appeals once

again to rule for the defendant. This Court could

avoid the risk of rendering a purely advisory opin-

ion on the meaning of the federal Fifth Amendment

by first remanding the cause back to the Oregon

courts for a determination whether the opinion

rests on stace law, federal law, or both. Only if

the judgment for the defendant necessarily rests

only on federal law is it appropriate for this

Court to exercise its jurisdiction and to express

its opinion. Herb v. Pitcairn, 324 U.S. 117, 125

(1945).

Alternatively, the Court should vacate

and remand without decision even if the Court deter-

mines that the Oregon Court of Appeals did not

intend to rest its decision on the Oregon Constitu-

tion. Defendant below expressly raised the Oregon

double jeopardy clause in his defense. Even assum-

ing arguendo that the Court of Appeals bypassed

article I, section 12, of the Oregon Constitution

to decide this case, this Court, as a matter of

policy, should nevertheless permit the Court of

=5—=

Appeals and Supreme Court of the State of Oregon

to rule expressly on defendant's Oregon constitu-

tional claim before the Court reviews the federal

questions which may also be present on the record.

Amicus respectfully submits that this is

an appropriate occasion for the Court to adopt a

policy of declining to review a state court judg-

ment reversing a conviction involving federal ques-

tions until all state law questions which are raised

below have in fact been resolved by the state court

adversely to the defendant. This rule, suggested

by Justices Marshall and Brennan in Oregon v. Hass,

420 U.S. 714, 729 (1975), would diminish unneces-

sary federal court review of state court decisions,

reduce the risk of advisory opinions, avoid juris-

dictional puzzles, encourage state courts to assume

responsibility for applying their own laws, and

help to relieve the heavily burdened Supreme Court

docket. Reflecting the federalist principle of

respect and comity, this restraint would lead to a

measure of decentralized standards in the criminal

justice system, and would return to the states a

=6=-

measure of responsibility for regulating these

sensitive relations between government and citizen

to the states, subject only to federal minimum

standards.

ARGUMENT

ae

BECAUSE THE DECISION BELOW MAY WELL

REST ON AN INDEPENDENT AND ADEQUATE

STATE GROUND, THE COURT SHOULD

DISMISS THE WRIT, OR SHOULD VACATE

AND REMAND THE CASE FOR CLARIFICATION

BY THE OREGON COURTS.

~

Since at least 1939,“ the Supreme Court

has followed a practice of dismissing or remanding

state cases back to state courts for clarification

whenever the Court is in doubt whether the judg-

ment below rested solely and necessarily on federal

law grounds. The rule is based on a concern with

2 See State Tax Comm'n v. Van Cott, 306 U.S.

511 (1939). See also California v. Krivda, 409

U.S. 33, 35 (1972); Department of Mental Hygiene v.

Kirchner, 380 U.S. 194, 196-97 (1965); Herb v.

Pitcairn, 324 U.S. 117, 128 (1945); Minnesota v.

National Tea Co., 309 U.S. 551, 557 (1940).

3 The Supreme Court vacated and remanded six

such cases for clarification during the October

1980 Term alone. See cases cited in footnote 10

infra.

a

observing the constitutional division of authority

between the state and federal systems, a division

which safeguards to the states the right freely to

interpret their own statutes and constitutions.

And, as Justice Jackson explained in the much-cited

Herb v. Pitcairn:

[W]e cannot perform our duty to refrain

from interfering in state law questions

and also to review federal ones without

making a determination whether the one

or the other controls the judgment. And

in cases where the answer is not clear

to us, it seems consistent with the

respect due the highest courts of states

of the Union that they be asked rather

than told what they have intended.

324 U.S. 117, 127-28 (1945).

Typically, in doubtful cases, the pre-

vailing party below has relied upon both state and

Similar federal constitutional guarantees. The

ambiguity arises when the state court renders an

apparent constitutional holding, but does not

clearly specify whether the court intends to rely

solely upon an independent state ground, solely

upon a federal ground, or upon both. 4 Under these

4 Delaware v. Prouse, 440 U.S. 648 (1979),

typifies an exception to this general rule. The

=§-

circumstances, the Court will require the party

seeking review to demonstrate that a federal ques-

tion is necessarily presented and that the Court's

jurisdiction is therefore clear.”

Oregon v. Kennedy is precisely the type

of case which the Court has customarily remanded

for clarification under the Krivda rule.> Decision

of this case without first giving the Oregon Court

of Appeals an opportunity to eliminate any perceived

ambiguities in its present opinion would erode

sound and long-standing principles of restraint.

A. Federal Law Is Not the Sole

Basis for the Court of Appeals'

Holding.

Ba No constitutional text is cited.

Both article I, section 12, of the

Oregon Constitution and the Fifth Amendment to the

4 (continued)

Prouse case is distinguishable from the Kenned

nko: -s ; ; xennecy

case in importan ways. See discussion below at

pp. 19-27.

Department of Mental Hvgiene v. Kirchner, 380

U.S. 194, 197 (1965).

6

California v. Krivda, 409 U.S. 33, 35 (1972).

~~

United States Constitution contain a prohibition

against what is commonly called "double jeopardy."’

Defendant raised the Oregon Constitution as a

defense to his second prosecution. He also raised

the same challenge under the federal Constitution.

Both clauses were cited and briefed to the Oregon

Court of Appeals. See Defendant's Brief p. 8;

State's Brief pp. 7-8.

The Oregon court cited neither Con-

stitution in Oregon v. Kennedy. The cour*'s open-

ing paragraph simply stated the error assigned as

the "trial court's failure to dismiss the case

against [defendant] based upon a theory of prior

jeopardy." 49 Or. App. at 417, 619 P.2d at 949,

The opinion goes on to refer to "prior jeopardy"

, The relevant language of each clause is set

forth for comparison. Or. Const. art. I, § 12:

No person shall be put in jeopardy twice

for the same offence... .

U.S. Const. amend. V (as applied to the states by

the Fourteenth Amendment):

{NJor shall any person be subject for

the same offence to be twice put in

jeopardy.

-10-

or the "double jeopardy clause" four more times,

always without citation to any constitutional text.

Judge Gillette's short discussion adverts to deci-

sional law based solely on the Federal Constitution,

United States v. Dinitz and United States v. Jorn,

and to decisional law based solely on the Oregon

Constitution's double jeopardy clause, State v.

Rathbun, supra, but comes to rest openly upon

neither. From all that appears in the opinion,

the court may even have intended to rule for the

defendant on the Oregon common law principle of

"prior jeopardy." See, e.g., State v. McCormack,

8 Or. 236 (1880) (Oregon prior jeopardy clause is

equivalent to a declaration of the ancient common

law principle that no person shall be twice tried

for the same offense).

Ze State v. Rathbun - controlling

state law.

The Court of Appeals' opinion would

probably be too indefinite for purposes of confident

assumption of federal question jurisdiction even

without the court's reliance on State v. Rathbun,

287 Or. 421, 600 P.2d 392 (1979). The citation

«jj-

to Rathbun, however, demonstrates an adequate and

independent state ground for the Kennedy holding.

Rathbun, a double jeopardy case decided by the

Oregon Supreme Court solely under the state con-

stitution, dictated the result below.

Rathbun held that article I, sec-

tion 12, of the Oregon Constitution barred retrial

of the defendant when prejudicial remarks made by

an officer of the court -- a bailiff -- contami-

nated the jury so as to require a mistrial, even

though causing a mistrial was not the bailiff's

intent. 287 Or. at 432-33, 600 P.2d at 398. The

mistrial in the Kennedy case was similarly pro-

voked by prejudicial remarks before the jury by

the prosecutor, also an officer of the court, also

without intent to cause a mistrial. 49 Or. App.

at 418, 619 P.2d at 949.

The Kennedy result is precisely in

keeping with the following key language in Rathbun:

Undisputably, however, a first trial is

a bar to a second where a mistrial is

declared because of prosecutorial or

judicial misconduct.

@12=

287 Or. at 432, 600 P.2d at 398. Unlike the impli-

cations of available Fifth Amendment precendent,

the concept of prosecutorial "misconduct" is not,

according to Rathbun, limited to misconduct

intended to cause a mistrial, for the Oregon

Supreme Court concluded:

The state put this officer of the court

in the position to wreak havoc and must

bear the same burden as when its prose-

cutor in like manner offends.

287 Or. at 433, 600 P.2d at 398 (emphasis added).

This statément strongly implies that unintentional

prosecutorial "havoc" will also bar a second

prosecution under the Oregon Constitution. °

In determining whether the Oregon

Court's opinion is grounded on state or federal

8 The opionion below also provides reason to

believe the Court of Appeals was not persuadéd

that the federal precedents it cited covered the

case at hand. The court's scepticism is recorded

in footnote one of the opinion:

As the text of our opinion, post, indi-

cates, we are not sure that the subjec-

tive intent of the prosecutor should

necessarily play a pivotal role in the

decision as to whether or not prior jeop-

ardy forbids retrial.

49 Or. App. at 418 n.1, 619 P.2d at 949 nw,

=) 3=

law, the Court must not stop at the bare language

of the opinion. The Court must also focus on what

in fact the Oregon Court of Appeals has done. The

judgment for Mr. Kennedy is in accord with Oregon

precedent. The opinion is a correct statement of

Oregon double jeopardy law. It is, therefore,

unsurprising that the Oregon Supreme Court de-

clined to grant discretionary review of the Court

of Appeals' decision. Although denial of review

does not necessarily connote approval of the lower

court's opinion, the Supreme Court could well have

been satisfied that Kennedy had correctly applied

the holding of State v. Rathbun,

Rathbun may represent, as the

Oregon Attorney General asserts, a “uniquely

errant interpretation of jeopardy principles,"

see Brief for Petitioner State of Oregon p. 37,

but it is Oregon law. The propriety of Oregon's

8 (continued)

The Court's reference is, plainly, to United

States v. Jorn, 400 U.S. 470 (1971), and United

States v. Dinitz, 424 U.S. 600 (1976), which

implied that only a prosecutorial intent to

provoke a mistrial bars a second prosecution,

-14-

interpretation of its own constitution is not

reviewable by this Court, despite the prosecu-

tion's displeasure with it. If this Court is

persuaded that the holding is compelled by the

Oregon Constitution, it must dismiss the writ.

Moreover, Rathbun so clearly dic-

tates the result in Kennedy that the holding seems

virtually certain to compel a judgment for the

defendant even if the Fifth and Fourteenth Amend-

ments do not. Accordingly, this Court runs the

risk of transgressing its long-standing rule

against rendering advisory or unnecessary opinions

if it decides this case merely to correct the

Oregon Court of Appeals' suspected view of federal

9

law. The rule against advisory opinions is well-

stated in Herb v. Pitcairn, which declares:

Our only power over state judgments is

to correct them to the extent that they

incorrectly adjudge federal rights. And

our power is to correct wrong judgments,

9 This Court's decision in South Dakota v.

Opperman, 428 U.S. 364 (1976), was subsequently

rendered advisory on remand to the South Dakota

Supreme Court, which reversed the conviction under

its state constitution. State v. Opperman, 247

N.W.2d 673 (S.D. 1976).

-15-

not to revise opinions. We are not per-

mitted to render an advisory opinion,

and if the same judgment would be ren-

dered by the state court after we cor-

rected its views of federal laws, our

review could amount to nothing more than

an advisory opinion,

324 U.S. at 125-26 (emphasis added).

The Court has authority to review

the case before it only if the federal ground is

the sole basis for the decision. Department of

Mental Hygiene v. Kirchner, 380 U.S. 194, 198

(1965). The Court can have no such certainty in

this case. And, the Court should be doubly wary

of assuming jurisdiction when the risk is so plain

that the Court's eventual decision will have no

effect on this defendant's case,

Se The legally appropriate practice

is to dismiss the writ, or, alternatively, to

vacate and remand.

The Kennedy opinion, if it does not

Clearly reflect its state-law underpinnings, is

nevertheless well within the class of cases which

the Court considers sufficiently ambiguous to

warrant dismissal or remand. Relying on the rea-

soning of California v. Krivda, supra, the Court

has vacated and remanded for clarification at

-16=

least 17 such decisions in the last 9 terms

10 Many, if not most, of these cases

alone.

contain considerably less evidence of reliance

upon state law -- therefore much less reason to be

cautious about the possibly erroneous assumption

of jurisdiction -- than does the Kennedy case.

Pennsylvania v. Campana, 414 U.S.

808 (1973), is illustrative. In Campana, a double

jeopardy case, the Pennsylvania Supreme Court

seemed to ground its decision openly on federal

law:

Presented for consideration in

these consolidated appeals is whether

appellants . . . were subjected to

"Double Jeopardy" in contravention of

the Fifth and Fourteenth Amendments of

the United States Constitution [citing

Benton v. Maryland, 395 U.S. 784

(1969)]. We ista that .. . the second

prosecutions violated the Double

Jeopardy Clause of the Fifth Amendment.

10 See California v. Silvey, 101 S. Ct. 3153

(1981); Michigan v. Peques, 101 S.Ct. 3073 (1981);

Washington v. Fitzsimmons, 449 U.S. 977, (1980);

California v. Level, 449 U.S. 945 (1980);

California v. Superior Ct., 449 U.S. 945 (1980);

California v. Braeseke, 446 U.S. 932 (1980);

Illinois v. Vitale, 439 U.S. 974 (1978);

——

Philadelphia Newspapers, Inc. v. Jerome, 434 U.S.

241 (O78) 3 Percy v. Terry, 434 U.S. 808 (1977);

General Atomic Co. v. Felter, 429 U.S. 973 (1976);

Ohio v. Gallagher, 425 U.S. 257 (1976); Louisiana v.

o17=

Commonwealth v. Campana, 452 Pa. 233, 239-40, 304

A.2d 432, 434 (1973) (footnotes omitted). The

majority opinion went on to discuss the common law

origin of double jeopardy, and the cases decided

under the Pennsylvania Double Jeopardy Clause

(which had been limited to capital cases only),

but did not expressly tie the holding to state

law. Both dissenting and concurring judges in

Campana viewed the decision as one of federal con-

stitutional law. See 452 Pa. at 269, 304 A.2d at

446 (Pomeroy, J., dissenting) ("The Court does not

purport to bottom its decision on any theory of

Pennsylvania as distinguished from federal consti-

tutional law."); and 452 Pa. at 256, 304 A.2d at

451 (Eagen, J., concurring) (question for the court

is the scope of the Fifth Amendment). Neverthe-

less, the Supreme Court found sufficient ambiguity

10 (continued)

Mora, 423 U.S. 809 (1975); Roundhouse Constr.

Corp. v. Telesco Masons Supplies Co., 423 U.S. 809

TIS yey, Air roLlution Variance Bd. v. Western Alfalfa

Corp., 416 U 861 (1974) (reversed and remanded);

Sones’ vania’ = Campana, 414 U.S. 808 (1973); Depart-

ment of Motor Vehicles v. Rios, 410 U.S. 425 ( ;

California v. Krivda, 409 U.S. 33 (1972).

=-18-

to warrant vacating and remanding the case to

Pennsylvania for an answer to the Krivda question

whether the holding was based on federal or state

law. Pennsylvania yw. Campana, 414 U.S. 808 (1973).

If the Pennsylvania majority

opinion's marginal treatment of state law created

an uncertainty which counseled remand--in spite of

that court's overt federal holding--then Oregon v.

Kennedy, a "prior jeopardy" judgment citing neither

Constitution, presents an even more serious ques-

tion of judicial intent. When the intent is less

than completely clear, only remand will avoid the

risk of an erroneous assertion of federal

jurisdiction.

Unfortunately, it is commonplace

for many state judges to announce constitutional

law without benefit of textual reference to the

applicable law. Thus, of the six state criminal

procedure cases in which this Court granted certi-

orari during the October 1980 Term and then vacated

and remanded pursuant to Krivda, four, like Kennedy,

invoked no constitutional clauses of any kind, but

-19-

relied on decisional law invoking both state and

11

federal constitutional concepts. Two others

referred explicitly to various federal constitu-

tional amendments, but were clouded by references

to decisions citing neither Constitution? or

decisions relying on both Constitutions. /3

B. The Question of the Supreme Court's

Jurisdiction in this Case Is Not

Answered by Delaware v. Prouse.

Delaware v. Prouse, 440 U.S. 648 (1979),

illustrates an exception to the Court's general

practice of vacating and remanding whenever the

state court relies on the state charter as one

ground for its holding. The Court assumed juris-

diction in Prouse because it determined that,

11 See People v. Silvey, 110 Cal. App. 3d 67,

167 Cal. Rptr. 566 (1ae0y; People v. Level, 103

Cal. App. 3d 899, 162 Cal. Rptr. 682 (1980);

People v. Braeseke, 25 Cal. 3d 691, 602 P.2d 384,

159 Cal. Rptr. 684 (1979).

se See People v. Peques, 104 Mich. App. 45, 304

N.W.2d 482 SLOP aria. 410 Mich, 894, 304

N.W.2d 455 (1981) (citing People v. Westerfield,

71 Mich. App. 618, 248 N.W.2d 641 (1976), and

others).

13° gee State v. Fitzsimmons, 93 Wash. 2d 436,

610 P.2d 893 (1980) (citing City of Tacoma v.

Seater. 67 Gash, 24.733, 409° 8 22 SCT (1SesiT.

-20-

despite citation to the Delaware Constitution, the

Delaware Supreme Court did not intend to rest its

decision independently on the state charter.

440 U.S. at 650-53. Two significant factors led

to this conclusion, factors not present in the

Kennedy case.

First, the language of the Delaware

court's decision itself indicated that the court

would initially decide the federal Fourth Amend-

ment question and then automatically tack that

holding onto the similar state search and seizure

clause. This approach, assuredly, is the opposite

of independent analysis. Second, earlier Delaware

cases reflected a consistent tradition of reliance

on Fourth Amendment cases to find a violation of

state law. See 440 U.S. 652-53 n.5. Thus, the

Supreme Court was confident that the state court,

far from being independent, had felt compelled by

federal law to reach the result which the Court

then reviewed.

=2le@

No similar language in the Kennedy opin-

ion evinces this sort of compulsion to follow fed-

eral precedents. The Oregon Court of Appeals does

not hold that the double jeopardy clauses are nec-

essarily coterminuous. And, a brief review of

Oregon decisional law will demonstrate that in

criminal procedure cases (including cases

involving double jeopardy protection), and in

constitutional adjudication in general, Oregon has

a firm tradition of vigorous, independent analysis

of the state Bill of Rights.

1. Double jeopardy cases.

This independent tradition is strik-

ingly evident in litigation under Oregon's double

jeopardy clause, Or. Const. art. I, § 12. Oregon's

Constitution was adopted in 1859, nine years before

the federal Fourteenth Amendment. See State v.

Smyth, 286 Or 293, 297, 593 P2d 1166, 1168 (1979).

Early, necessarily "independent" applications of

article I, section 12, are reported in State v.

McCormack, 8 Or. 236 (1880) (barring two convic-

tions for a unitary crime), and State v. Shaffer,

-22-

23 Or. 555, 32 P. 545 (1893) (article I, section 12,

not offended by retrial after mistrial due to a

"hung jury").

Even after the United States Supreme

Court announced in Benton v. Maryland, 395 U.S.

784, 794 (1969), that the double jeopardy prohibi-

tion of the Fifth Amendment applied to the states

through the Fourteenth Amendment, Oregon continued

its tradition of independent double jeopardy analysis

The basis for State v. Brown, 262 Or. 442, 497

P.2d 1191 (1972), decided by the Oregon Supreme

Court just three years after Benton, could not be

clearer:

We are without clear authority from the

Supreme Court when we consider whether a

Single act or course of conduct which

violates more than one statute consti-

tutes one or more offenses within the

meaning of the double jeopardy provision

of the Fifth Amendment. However, as our

own constitution also prohibits a second

jeopardy for the same offense, we need

not speculate what the Supreme Court

will decide. We are free to adopt our

own interpretation of our state

constitution.

° - « We hold that under Article I,

Section 12, of our Constitution, statutory

violations may be the "same offense" for

purposes of testing a second prosecution,

even though each contains different elements

and requires proof of different facts.

~23<

262 Or. at 453, 497 P.2d at 1196. State v. Rathbun

continued this independent tradition, in a differ-

ent strand of double jeopardy theory, when it

declared:

It seems that there is little to be

gained by our attempting to guess what

the United States Supreme Court might do

under the Constitution of the United

States if this case were before that

court. We shall dispose of this case

under Oregon law although giving proper

weight to the statements of [the] United

States Supreme Court which we find to

touch upon the matter.

287 Or. 421, 431-32, 600 P.2d 392, 397 (1979) (foot-

note omitted).

Ze Other Oregon cases.

Unlike the state of Delaware, the

general rule in the Oregon courts when a party

raises both state and federal claims is first to

decide the effect of the state's own laws before

addressing any federal issue. Justice Linde,

speaking for the Oregon Supreme Court, has stated

the Oregon rule in this way:

The proper sequence is to analyze the

state's law, including its «onstitu-

tional law, before reaching a federal

constitutional claim. This is required,

not for the sake either of parochialism

o24-

or of style, but because the state does

not deny any right claimed under the

federal Constitution when the claim

before the court in fact is fully met by

State law.

Sterling v. Cupp, 290 Or. 611, 614, 625 P.2d 123,

126 (1981).74 According to the expressly declared

Oregon rule, only if the state law is determined

to be adverse to the claimant need the court reach

and decide the federal constitutional issues.

State v. Clark, 291 Or. 231, 630 P.2d 810 (1981);

State v. Scharf, 288 Or. 451, 455, 605 P.2d 690,

692 (1980) .?° This, according to Justice Linde,

is so for reasons of logic, 2° among others.

a For a cogent exposition of this approach to

the Fourteenth Amendment by Justice (formerly

Professor) Linde, see Linde, Without "Due Process"

--Unconstitutional Law in Oregon, 49 Or. L. Rev.

125 (1970), especially pp. 133-34.

15 In Justice Linde's view, a defendant's

“equivalent” state and federal constitutional

claims are not cumulative but alternative. If the

state law grants defendant the "process" that is

"due," it follows that the state has not violated

the Fourteenth Amendment. Thus, Justice Linde

insists on a clear differentiation of tederal and

state constitutional arguments:

Convenient as it may be to reduce

the diverse federal and state premises

in this manner to a single body of "con-

stitutional law," there are two things

=35-

Prior to Kennedy, application of

this logic produced a substantial body of indepen-

dent state law analysis, both statutory and con-

stitutional, in areas elsewhere frequently occupied

only by federal due process precedents. These

areas include: prisoners' rights, Sterling v.

15

(continued)

wrong with it. First, it contradicts

the hierarchical logic of the federal

constitutional premises. Second, the

provisions of the federal and Oregon

constitutions are not in fact alike.

49 Or. L. Rev. at 133.

16

First, the logical relationship

between the state and federal constitu-

tional claims. The federal source of

all “due process" and "equal protection"

attacks on state regulation is the four-

teenth amendment's command that "No State

shall .. . deprive any person of life,

liberty, or property, without due process

of law; nor deny to any person within

its jurisdiction the equal protection of

the laws." Whether this command has

been violated depends on what the state

has finally done. Many low-level errors

that potentially deny due process or

equal protection are corrected within

the state court system; that is what it

is for. The state constitution is part

of the state law, and decisions applying

it are part of the total state action in

a case. When the state court holds that

a given state law, regulation, ordinance,

=26-

Cupp, supra; defendant's right to a prompt trial

Haynes v. Burks, 290 Or. 75, 619 P.2d 632 (1980);

public and press access to court proceedings,

State ex rel, Oregonian Publishing Co. v, Deiz,

289 Or. 277, 613 P.2d 23 (1980); defendant's

access to counsel, State v. Scharf, 288 Or. 451,

604 P.2d 690 (1980); right to bear arms, State v.

Kessler, 289 Or. 359, 614 P.2d 94 (1980); defen-

dant's right to exculpatory evidence, State v.

16 (continued)

or official action is invalid and must

be set aside under the state constitu-

tion, then the state is not violating

the fourteenth amendment,

The point is obvious when a con-

clusion such as “Regulation X denies

defendant's rights under the fourteenth

amendment and the corresponding sections

of Oregon constitution article I" is

broken down into its component parts.

When a judgment holds with the defendant

that the regulation is invalid under the

state constitution, it cannot move on to

a second proposition invalidating the

state's action under the federal Consti-

tution. By the action of the state court

under the state constitution, the state

has accorded the claimant the due process

and equal protection commanded by the

fourteenth amendment, not denied it.

49 Or. L. Rev at 133-34 (footnotes omitted).

@27e

Spada, 286 Or. 305, 594 P.2d 815 (1979); defen-

dant's right to confront adverse witnesses,

State v. Smyth, 286 Or. 293, 593 P.2d 1166 (1979);

venue in criminal prosecutions, State v. Roper,

286 Or. 621, 595 P.2d 1247 (1979); right to counsel

and to a jury trial, Brown v. Multnomah County

Dist. Ct., 280 Or. 95, 570 P.2d 52 (1977); and

illegal stops by police, State v. Valdez, 277 Or,

621, 561 P.2d 1006 (1977). This practice continues,

See, e.g., State v. Clark, 291 Or. 231, 630 P.2d

810 (1981) ("privileges or immunities"); State v.

Blocker, 291 Or. 255, 630 P.2d 824 (1981) (right

to bear arms).

Placed in this context, the proba-

bility that State v. Kennedy rests on an independ-

ent state ground is greatly enhanced.

Il.

II. THIS CASE SHOULD BE VACATED AND REMANDED

TO THE OREGON COURT OF APPEALS EVEN IF

THIS COURT DETERMINES THAT THE LOWER COURT

SIMPLY FAILED TO RESOLVE THE STATE ISSUE

BEFORE IT,

A. Comity Requires that State Courts

esolve Potentially DispoSsitive

State Issues Before Supreme Court

Review.

Even if this Court finds that the

Oregon Court of Appeals intended to ground its

decision on the federal Fifth Amendment, and also

failed to pass on the article I, section 12,

issues, the Court should nevertheless remand the

case to the Oregon Court of Appeals for resolution

of the state constitutional issue which was cited

and briefed by the parties. This, in fact, is the

approach suggested several years ago by Justice

Marshall, when he wrote:

[W]e have too often rushed to correct

state courts in their view of federal

constitutional questions without suffi-

ciently considering the risk that we

will be drawn into rendering a purely

advisory opinion. ...

In addition to the importance of

avoiding jurisdictional difficulties, it

seems much the better policy to permit

-29-

the state court the freedom to strike

its own balance between individual rights

and police practices, at least where the

state court's ruling violates no consti-

utional pro ons. S peculiarly

within the competence of the highest

court of a State to determine that in

its jurisdiction the police should be

subject to more stringent rules than are

required as a federal constitutional

minimum,

» « « Accordingly, in my view the

Court should not review a state-court

decision reversing a conviction unless

it is quite clear that the state court

has resolved all applicable state-law

questions adversely to the defendant and

that it feels compelled by its view of

the federal constitutional issue to

reverse the conviction at hand,

Oregon v. Hass, 420 U.S. 714, 726, 728-29 (1975)

(dissenting opinion) (emphasis added). Thus,

under Justice Marshall's view, whenever an

unresolved state law claim was properly hefore the

state court -- either because one of the parties

cited the law or because under the rules of the

state the court could raise the issue sua sponte

-- the Supreme Court should vacate and remand the

case, even when the state court seems to have

-30-

ignored the state law in deciding the federal law

17

in the defendant's favor.

Although in 1975, a majority of the

then constituted Court was not persuaded by this

view, Amicus respectfully submits that it is now

timely for this Court to reconsider whether the

policy suggested by the Oregon v. Hass dis-

senters -- akin to a rule of comity -- might not

better serve the needs of a healthy federalism.

A rule that would encourage state

courts to resolve a properly raised state law issue

a7 Justice Marshall's suggested rule could not,

of course, logically be extended to the reverse

situation--that is, when the state court has ruled

against the criminal defendant on federal grounds,

but has failed to pass on cited state grounds. In

that situation, the reasons for Supreme Court

restraint would vanish. First, in contrast to the

case at bar, federal rights might actually have

been lost, making Supreme Court intervention imper-

ative. Second, there would be no danger of inad-

vertent interference with a nonreviewable state

ground. Third, there would be virtually no danger

of an advisory Supreme Court opinion, since a

state court which rules against a defendant on

federal grounds, and ignores the cited state con-

stitution, is extremely unlikely, on remand, to

discover a state law reason for reversing itself.

=3)]-

before turning to federal law would serve a number

of concerns which are, and should be, of import-

ance to this Court. Commentators have articulated

some of these concerns:

The reasons for the adoption of the rule

are as follows: it would enable the

Court to avoid rendering advisory or

unnecessary opinions; it would resolve

the perplexing problem of attempting to

discern upon which law the lower court's

decision rests; in accordance with the

doctrine of federalism it would estab-

lish a policy of permitting the individ-

ual states to strike the delicate balance

when the state interest is paramount to

the federal interest; it would also help

maintain the state's political balance;

and finally, it would greatly promote

needed judicial economy.

1. Unnecessary or advisory opinions.

The Court has stated that it is not

permitted to render an advisory opinion. Herb v.

18 Galie « Galie, State Constitutional Guaran-

tees and Supreme Court Review: Justice Marshall's

Proposal in Oregon v. Hass, 62 Dickinson L. Rev.

273, 280 (1978). The authors provide an excelient

review of the implications for federal courts of

the "new state court activism" in interpreting

state Bills of Rights. They conclude that the

basic policy proposed by Justice Marshall is desir-

able, provided that the Supreme Court, rather than

refusing all review of decisions containing unre-

solved state issues, accepts review and vacates

and remands these cases for lower court decision.

=32=

—

Pitcairn, 342 U.S. 117, 125-26 (1945). The

reasons for the rule are equally applicable when

state issues are raised but not squarely resolved.

Whenever there are, on the record, state law

grounds which may support the judgment before the

court, the state court is free upon remand to

reground its judgment on state law. As noted in

Part I of the above Argument, this result is

likely in the case at bar. The same result will

follow with more frequency as more state courts

become cognizant of their responsibility to

interpret their own constitutions, in ways not

necessarily identical to the tests employed to

construe counterpart language in the federal Bill

of Rights.!?

2. Avoiding jurisdictional doubts.

The ambiguities frequently encount-

ered in state appellate court opinions presented

19 There is also the matter of the differing

nature of the texts of the various state constitu-

tions. See Linde, First Things First:

Rediscovering the States" Bills of Rights, 9 U.

Balt. L. Rev. ’ - .

@33-

for Supreme Court review do not allow for an easy

and confident answer to federal jurisdiction ques-

tions. Employing Justice Marshall's rationale,

the Court need only examine the record of a case,

facially premised on federal law, to see whether a

state law issue arguably decisive of the case was

raised below. The Krivda approach of granting

certiorari, then vacating and remanding for a

decision on the applicable state law, is equally

appropriate here. A properly raised but unresol-

ved state issue in the record should be considered

to be an "ambiguity" requiring remand.

3. Considerations of federalism and

state court innovation,

The Court has repeatedly stated its

respect for the independence of state functions,

whether legislative or judicial. With increasing

frequency, the Court has disapproved of federal

intervention when state forums and state laws

could resolve state concerns. This broad principle

of comity is recognizable in a number of different

types of litigation, but has had perhaps its most

=34-

familiar application in cases touching upon the

state's administration of criminal justice.

In the "abstention" context, the

Court, per Justice Black, expressed the principle

in Younger v. Harris:

[The] underlying reason for restraining

courts of equity from interfering with

criminal prosecutions is reinforced by

an even more vital consideration, the

notion of "comity," that is, a proper

respect for state functions, a recogni-

tion of the fact that the entire country

is made up of a Union of separate state

governments, and a continuance of the

belief that the National Government will

fare best if the States and their insti-

tutions are left free to perform their

separate functions in separate ways. ...

[T]he concept [represents] a system in

which there is sensitivity to the legit-

imate interests of both State and National

Governments, and in which the National

Government, anxious though it may be to

vindicate and protect federal rights and

federal interests, always endeavors to

do so in ways that will not unduly inter-

fere with the legitimate activities of

the States. It should never be forgot-

ten that this slogan, "Our Federalism,"

born in the early struggling days of our

Union of States, occupies a highly import-

ant place in our Nation's history and

its future.

401 U.S. 37, 44, 45 (1971) (emphasis added).

Chief Justice Burger, dissenting in

a case striking a state statute as unconstitutional,

=3$=

has pointed to unresolved state constitutional

issues as a reason for noninterference:

The reason for my dissent is that

it seems to me a very odd business to

strike a state statute, on the books for

almost 40 years, without any opportunity

for the state courts to dispose of the

problem either under the Wisconsin

Constitution or the U.S. Constitution.

For all we know, the state courts would

find this statute invalid under the

State Constitution, but no one on either

side of the case thought to discuss this

or exhibit any interest in the subject.

Wisconsin v. Constantineau, 400 U.S. 433, 440

(1971) (emphasis added; footnote omitted).

In another context, the principle

of comity has restrained federal courts from using

their injunctive powers to interfere with state

tax laws:

The reason for this guiding

principle [of equitable restraint] is of

peculiar force in cases where the suit,

like the present one, is brought to

enjoin the collection of a state tax in

courts of a different, though paramount

sovereignty. The scrupulous regard for

the rightful independence of state

governments which should at all times

actuate the federal courts, and a proper

reluctance to interfere by injunction

with their fiscal operations, require

that such relief should be denied in

every case where the asserted federal

right may be preserved without it.

=36-

Matthews v. Rodgers, 284 U.S. 521, 525 (1932)

(emphasis added).

Most recently, Justice Rehnquist,

speaking for the Court, has held that the principle

of comity also bars federal courts from granting

damage relief in state tax cases, notwithstanding

the Court's jurisdiction to do so by virtue of 42

U.S.C. § 1983 and 28 U.S.C. § 1343. Fair Assess-

ment in Real Estate Ass'n v. McNary, 50 U.S.L.W.

4017, 4019 (Dec. 1, 1981).7°

Amicus does not take the position

here that comity should bar the doors of federal

trial courts to civil rights litigants. Neverthe-

less, the Court's deference to state independence,

according to these announced principles, is appro-

priate in cases like the present one.

20 See also Minnesota v. Clover Leaf Creamery

Co., 449 U.S. 456, 477 (1981) (Stevens, J.,

dissenting) (suggesting that there may be

instances where state courts should be given

greater latitude in applying federal law even

though a reviewing federal court might rule

differently).

=37=

These principles of comity support

the policy stated in Justice Marshall's Oregon v.

Hass dissent. Criminal procedure cases involve

important relations between the sovereign states

and their citizens. To be sure, the federal

Constitution binds the states to provide no less

in the way of procedural guarantees than is pro-

vided in the federal Bill of Rights. But if state

law, cited to state courts and left unresolved by

them, could provide state solutions to these prob-

lems of criminal justice, federal restraint pending

their resolution may avoid the need for federal

intervention at all.

There is another reason, also aris-

ing from the structure of a federal system of govern-

ment, which makes restraint good policy. Overreli-

ance on federal rights creates centralization of

the criminal: justice system, discouraging state

experimentation. Chief Justice Burger voiced this

concern when he stated:

I add this comment onlv to emphasize the

importance of allowing the States to

experiment and innovate, especially in

-38-

the area of criminal justice. If new

standards and procedures are tried in

one State their success or failure will

be a guide to others and to the

Congress.

California v. Green, 399 U.S. 149, 171 (1970)

21

(Burger, C.J., concurring).

4. Political balance within the

states.

When a state court judge ignores

available state law to base a holding on a federal

constitutional clause, he or she places that deci-

sion beyond the reach of normal state political

processes. Voters and legislatures do not learn

what their own statutes and constitutions mean

when those laws are bypassed by a reference to the

federal precedents. State constitutions can be

amended, typically with much greater ease than the

21 See also Douglas, State Judicial Activism--The

New Role for State Bills of Rights, 12 Suffolk

U.L. Rev. 1123, 1137 (1978). The author is a Justice

of the New Hampshire Supreme Court.

=39-

ae if the citizenry disagrees with

federal charter,

the judges' result, whether it be too protective

or not protective enough of the right claimed.

Statutes can implement newly interpreted state

guarantees, in sufficient detail to achieve pre-

dictability and direction for state government

officials. But if state courts are not encouraged

to assume responsibility for interpreting and

applying state law, these democratic processes

at the state level are frustrated. So long as

state courts can freely insulate their decisions

from popular review by cloaking them in any fed-

eral phraseology, these courts place whole areas

of important and potentially sensitive legal and

political issues beyond the constitutional acount-

ability ordained by state charter.

By encouraging state courts not to

evade responsibility for interpreting their own

22 See, e.g., Or. Const. art. IV, § 1 (constitu-

tional amendment by popular initiative); id.

art. XVII, § 2 (constitutional amendment by referral

of legislative resolution).

-40-

laws, the proposed rule would be a step away from

federal dominance of state policy-making and toward

reinvigoration of policy at the state level.

5. Judicial economy.

Of course, federal rights may not

be sacrificed to judicial economy. The rule coun-

seling remand when state grounds are raised but

not resolved should be applied only in those cases

where the state court's ruling is not alleged to

violate the defendant's constitutional rights, as

23

Justice Marshall suggested in Oregon v. Hass.

In this wav, the Court's burdened docket can be

relieved without impairing minimum federal standards

CONCLUSION

This Court should not decide the federal

constitutional issues raised in this case because

to do so deprives the state court of an opportunity

to dispose of the case on state law issues actually

raised by the defendant. Further, in view of set-

tled double jeopardy precedents under the Oregon

Constitution, any opinion rendered by this Court

23° 420 U.S. at 728.

-41-

is likely to become merely advisory after defen-

dant reasserts his state constitutional rights at

the state level. Finally, the principle of comity

counsels against unnecessary federal intervention

in the conduct of the functions of state govern-

ments. Where, as here, state courts can resolve

issues of local interest without resort to federal

constitutional decision making, they should be

encouraged by federal restraint to assume their

rightful responsibility to do so.

Respectfully submitted,

/s/ JENNIFER FRIESEN

JENNIFER FRIESEN

Counsel of Record for

Amicus Curiae